DISSENTING OPINION OF JUDGE MORENILLA

1. To my regret I cannot share the conclusion of the majority in finding that Article 8 of the Convention (art. 8), which recognises everyone ’ s right to respect for his family life, has not been violated by the refusal of the Netherlands authorities to admit Souffiane Ahmut - a 9-year-old child who has lost his mother in Morocco - to live with his father, a well-established immigrant who at the time of application had acquired Netherlands nationality.

2. In view of these circumstances, the measures adopted by the Netherlands authorities do not appear to be either necessary or proportionate to the legitimate aims that Article 8 para. 2 (art. 8-2) foresees, and therefore not justified under this provision (art. 8-2). To deny a father and son their right to be together when the son is at an age at which he needs his father ’ s care and guidance, particularly since his mother has died, and to deny a national of the Netherlands the right to have his son begin an education in the adopted country of which he is a national according to the law, is in my opinion contrary not only to the European Convention of Human Rights but also to "cogent reasons of a humanitarian nature" as set forth in the national legislation (1982 Aliens Circular, Chapter B19, paras. 1.1 and 2.5).

3. Furthermore, human rights are recognised in international instruments in the form of legal formulas imposing on national authorities positive or negative obligations to ensure the effective enjoyment of those rights and liberties. The juridical treatment of these provisions, their interpretation and application by the authorities - and, obviously, by the courts - should in my view be in accordance with the humanitarian grounds for which they were established, avoiding excessive formalism. These humanitarian reasons are to me more "cogent" than the opposite interpretation of the conventional text offered by the majority.

4. The subsequent education of the child in Morocco and the fact that he is now 14 years old and has grown up outside the Netherlands in the care of other relatives are circumstances that should not be considered when deciding the present case. They are facts extraneous to the measures complained of, and, as such, they merely highlight the fatal consequences of impeding the reunited family life which the applicants desired. The benefit of hindsight when deciding judicial cases several years after a complaint has been lodged may certainly prove to be of use when assessing the reality of a risk but never, in my opinion, to judge the conformity with the Convention of impugned measures adopted by national authorities at the time. This opinion is not inconsistent with the principles set out in paragraph 67. The fact that Mr Salah Ahmut is a national of the Netherlands , and his child ’ s age at the time of the refusal, are in my view, decisive in finding a violation in the present case.

[1] The case is numbered 73/1995/579/665. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning the States bound by Protocol No. 9 (P9).

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-VI), but a copy of the Commission's report is obtainable from the registry.