CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 mai 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  The European Commission of Human Rights sitting in private on 6 May 1986,   the following members being present:                 MM. C. A. NØRGAARD, President                   G. SPERDUTI                   J. A. FROWEIN                   M. A. TRIANTAFYLLIDES                   G. JÖRUNDSSON                   S. TRECHSEL                   B. KIERNAN                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs. G. H. THUNE              Sir   Basil HALL                 Mr.   H. C. KRÜGER Secretary to the Commission   Having regard to Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 12 June 1985 by L.B. against the Netherlands and registered on 28 June 1985 under file No. 11619/85;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The facts of the case, as they have been submitted by the applicant, may be summarised as follows.   The applicant is a Moroccan citizen, born on 1 January 1956 and at present residing at Amsterdam.   He is represented by Mrs. M. D. van Aller, a lawyer practising at Amsterdam.   In January 1975 the applicant illegally entered the Netherlands and on 8 August 1975 he started working at a restaurant, where he has been employed since.   In a judgment of 22 May 1980, the applicant was convicted by the police magistrate (Politierechter) of Amsterdam of a criminal offence during the Queen's coronation on 30 April 1980.   He was sentenced to four months' imprisonment, of which two months were conditional.   On 13 August 1981, the applicant was informed that his employer was eligible for a permit to employ him in accordance with the transitional regulation (Overgangsbepaling) of the Foreign Workers Labour Act (Wet Arbeid Buitenlandse Werknemers).   This permit was granted on 2 September 1981.   On 19 August 1981, the applicant's request for a residence permit was rejected because he had come to the Netherlands without a provisional residence permit and was therefore to be considered as an illegal resident.   In addition, he had infringed public order by the above criminal offence.   On the same day the applicant was detained, pending expulsion.   Subsequently the applicant was released pending his request for revision.   This request, which had been given suspensive effect, was however rejected by the Deputy Minister of Justice (Staatssecretaris van Justitie) on 3 March 1982.   On 25 March 1982, thereupon, the applicant appealed this decision to the Council of State's Division for Jurisdiction (Afdeling Rechtspraak van de Raad van State).   However, on 11 March 1985 his appeal was rejected.    The Council considered, inter alia, that according to section 11 of the Dutch Aliens Act (Vreemdelingenwet) a residence permit could be refused in the general interest.   In view of the prison sentence imposed on the applicant and the fact that the applicant had been an illegal immigrant at least until he committed the offence, there were reasonable grounds for the decision of the authorities to refuse the applicant's request for a residence permit in the general interest notwithstanding the permit promised to the applicant's employer.   COMPLAINTS   The applicant complains that he will be expelled to Morocco because he was sentenced to two months' imprisonment.   According to the applicant, this is in contravention of the Dutch Aliens Circular (Nederlandse Vreemdelingencirculaire) and he complains that he is subjected to inhuman and degrading treatment contrary to Article 3 (art. 3) of the Convention because the expulsion forces him to leave the country where he had settled down and had been working for three years.   The applicant has also drawn attention to the fact that he is involved in civil proceedings in the Netherlands concerning his claim to a considerable sum of money.   Furthermore, the applicant complains that he is deprived of his liberty and security of person because the policy of the Dutch Government with regard to aliens forces him to return to Morocco.   He alleges a violation of Article 5 (art. 5) of the Convention in this respect.   Moreover, the applicant invokes Article 6 (art. 6) of the Convention because he is of the opinion that he is prosecuted twice for the same offence because he was sentenced to two months' imprisonment and is also to be expelled to Morocco.   In addition, he complains that his expulsion to Morocco constitutes an unjustified interference with his right to respect for private life. He alleges that the policy of the Dutch Aliens Circular did not take into account transitional regulations for illegal foreign workers and that the Council of State's Division for Jurisdiction in the absence of further regulations took a wrong decision by forcing him to leave the Netherlands and give up his possibilities to earn a living, contrary to Article 8 (art. 8) of the Convention.   Finally, the applicant alleges that his right to marry has been restricted because he wanted to marry a Dutch woman but is afraid that the Dutch Government will consider this as a marriage of convenience.   THE LAW   1.   The applicant complains that he is subjected to inhuman and degrading treatment.   He has alleged a violation of Article 3 (art. 3) of the Convention which reads:   "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."   The Commission recalls that the expulsion or extradition of an individual could, in certain exceptional cases, raise an issue under the Convention and in particular under Article 3 (art. 3) when there are serious reasons to believe that he could be subjected to treatment prohibited by that provision in the State to which he is to be deported (cf. e.g. Dec. No. 6315/73, 30.9.74, D.R. 1 p. 73).   However, the Commission is of the opinion that in the present case there are no indications that the applicant's treatment in Morocco would render his expulsion contrary to Article 3 (art. 3) of the Convention.   This part of the application must therefore be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.   2.       The applicant has further complained that he is deprived of his liberty and security of person because the policy of the Dutch Government forces him to return to Morocco and he has invoked Article 5 para. 1, sub-para. f (art. 5-1-f) of the Convention which provides inter alia:   "1.   Everyone has the right to liberty and security of person.   No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...   (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."   However, the Commission notes that a deportation order was made against the applicant but that he has apparently not been arrested or detained.   Consequently, this part of the application must also be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.   3.       The applicant has also complained about a violation of Article 6 (art. 6) of the Convention because he was prosecuted twice for the same offence.   Article 6 (art. 6) of the Convention provides inter alia:   "1.    In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law...."   The Commission has considered, in the context of previous cases brought before it, the question of the applicability of Article 6 para. 1 (art. 6-1) of the Convention to deportation matters.   The Commission has held in these cases that a decision as to whether an alien should be allowed to stay in a country is a discretionary act by a public authority and that it does not involve as such the determination of civil rights within the meaning of Article 6 para. 1 (art. 6-1) of the Convention (Dec. No. 8144/78, 2.5.79, D.R. 17 p. 157).   It follows that Article 6 para. 1 (art. 6-1) of the Convention is not applicable in the present case and that this part of the application must therefore also be considered as incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.   4.       Furthermore, the applicant has complained of an unjustified interference with his right to respect for private life and he has invoked Article 8 (art. 8) which reads as follows:   "Everyone has the right to respect for his private and family life, his home and his correspondence."   The Commission, however, considers that even assuming that there was an interference with the applicant's right to respect for his private life under Article 8 (art. 8) of the Convention, this interference was justified for one or more of the reasons set out in the second paragraph of Article 8 (art. 8), such as "prevention of disorder".   In this respect the Commission would emphasise the close connection between the policy of immigration control and considerations pertaining to public order (Dec. No. 8245/78, 6.5.81, D.R. 24 p. 98 ff).   It follows that this part of the application must also be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.   5.       Finally, the applicant has complained of a violation of his right to marry.   He has alleged a violation of Article 12 (art. 12) of the Convention which reads:   "Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right."   The Commission, however, is of the opinion that the applicant has not submitted any evidence capable of showing that his right to marry has been restricted as a result of having to leave the Netherlands.   Consequently, the remainder of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission          President of the Commission       (H. C. KRÜGER)                        (C. A. NØRGAARD)