CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 avril 1989

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 13318/87                       by K. and A.                       against the Netherlands             The European Commission of Human Rights sitting in private on 14 April 1989, the following members being present:                 MM. S. TRECHSEL, Acting President                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   J. CAMPINOS                   H. VANDENBERGHE              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   J. RAYMOND, Deputy Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 31 August 1987 by K. and A.against the Netherlands and registered on 13 October 1987 under file No. 13318/87;           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 first applicant is a Pakistani citizen born in 1943 in Tandoj, Pakistan.   His present address is unknown to the Commission. The second applicant, the first applicant's wife, is a Dutch citizen, born in 1944 in Ghazi, Pakistan.   She is presently residing in Amsterdam.   In the proceedings before the Commission the applicants are represented by Mr.   W.J. van Bennekom, a lawyer practising in Amsterdam.           The facts, as submitted by the applicants, may be summarised as follows:           On 6 July 1974 the first applicant entered the Netherlands. Under the so-called "Regularisation order" (regularisatieregeling) for illegal migrant workers, he was granted a residence permit (vergunning tot verblijf) at the end of 1975 or the beginning of 1976.           The second applicant, with her six children, entered the Netherlands in the beginning of 1979.   On 5 June 1979 she was granted a residence permit.           On 2 March 1981 the first applicant was granted a permanent residence permit (vergunning tot vestiging).           On 7 November 1981 the first applicant's cousin was killed in Amsterdam.           By judgment of 24 February 1983 the Court of Appeal (Gerechtshof) of Amsterdam convicted the first applicant of complicity to kidnapping, and of being an accessory to arson and the murder of his cousin and sentenced him to seven years and six months' imprisonment.   The first applicant has always denied the charge.           By decision of 18 December 1984 the Deputy Minister (Staatssecretaris) of Justice withdrew the first applicant's permanent residence permit, in accordance with Section 14 para. 1 (c) of the Aliens Act (Vreemdelingenwet).   By the same decision, the Deputy Minister declared the first applicant an undesirable alien (ongewenste vreemdeling), in accordance with Section 21 para. 1 (b) and (c) of the Aliens Act.           On 1 April 1985 the first applicant requested the Deputy Minister to revise her decision.   By decision of 26 June 1985 the Deputy Minister rejected the request.           On 22 July 1985 the first applicant appealed to the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State).   Since this appeal had no suspensive effect, he instituted summary proceedings (kort geding) with the President of the Regional Court (Arrondissementsrechtbank) of Amsterdam, requesting a prohibition to deport him from the Netherlands until the Council of State had decided on his appeal.   By judgment of 11 December 1986 the President of the Regional Court granted the request.   On 24 December 1986 the State of the Netherlands appealed against this judgment to the Court of Appeal (Gerechtshof) of Amsterdam.   By judgment of 9 April 1987 the Court of Appeal quashed the judgment of the President of the Regional Court.           By decision of 23 September 1986 the second applicant and her under-age children were naturalized Dutch citizens.           In November 1986 the first applicant was conditionally released from prison.           By judgment of 30 June 1987 the Judicial Division of the Council of State rejected the first applicant's appeal against the Deputy Minister's decision of 26 June 1985.   It held, inter alia, that no objective obstacles existed for the first applicant's family to return to Pakistan and that, therefore, no interference in the first applicant's family life was involved.   Even assuming that there was an interference in the first applicant's family life, this interference was, according to the Judicial Division, justified under Article 8 para. 2 of the Convention for the prevention of disorder.           It appears that the first applicant has been in hiding since 9 April 1987 in order to prevent his deportation from the Netherlands.   COMPLAINTS           The applicants complain that the withdrawal of the first applicant's permanent residence permit and the decision to declare him an undesirable alien amount to a lack of respect for their family life within the meaning of Article 8 para. 1 of the Convention without this being justified under Article 8 para. 2 of the Convention.   THE LAW           The applicants have complained that the withdrawal of the first applicant's permanent residence permit and the decision to declare him an undesirable alien amount to an interference with their right to respect for their family life.   They have invoked Article 8 of the Convention.           The Commission recalls that according to its established case-law the Convention does not guarantee, as such, any right for an alien to enter or reside in a specific country (cf., for example, No. 4403/70, Dec. 10.10.70, Collection 36 p. 92; No. 5269/74, Dec. 8.2.72, Collection 39 p. 104) or not to be expelled from a particular country (cf., for example, no. 4314/69, Dec. 2.2.70, Collection 32 p. 96). However, the Commission has also stated that expulsion from a country in which close members of the family of the person concerned are living may be contrary to Article 8 (Art. 8) of the Convention (cf., for example, No. 6357/73, Dec. 8.10.74, D.R. 1 p. 77; No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219).           In the present case the Commission is of the opinion that the first applicant's expulsion from the Netherlands would constitute an interference with the applicants' right to respect for their family life within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.           The Commission recalls, however, that under Article 8 para. 2 (Art. 8-2) of the Convention there may be an interference by a public authority with the exercise of the right to respect for family life, if such interference is in accordance with the law and is necessary in a democratic society for the prevention of disorder and crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.           The withdrawal of the first applicant's permanent residence permit was decided in accordance with Section 14 para. 1 (c) of the Aliens Act.   The decision to declare the first applicant an undesirable alien was taken in accordance with Section 21 para. 1 (b) and (c) of the Aliens Act.   The Commission notes that it would involve considerable hardship for the second applicant and her children, if they were to follow the first applicant to Pakistan.           However, given the nature and the seriousness of the crime for which the first applicant was convicted, the Commission is satisfied that the interference complained of was justified as a measure necessary in a democratic society for the prevention of disorder and crime.           It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For this reason, the Commission           DECLARES THE APPLICATION INADMISSIBLE     Deputy Secretary to the Commission      Acting President of the Commission             (J. RAYMOND)                             (S. TRECHSEL)