CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 octobre 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. 14095/88                       by Hassan AKBULUT                       against the Netherlands             The European Commission of Human Rights sitting in private on 12 October 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              MM.   C.L. ROZAKIS                   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 8 June 1988 by H. A. against the Netherlands and registered on 2 August 1988 under file No. 14095/88;           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 applicant is a Turkish citizen, born in 1951 and, at the time of introduction of this application, he was in prison in The Hague, the Netherlands.   He is represented by Mrs.   G.S. Koopman-Rond, a lawyer practising in The Hague.           The applicant arrived with his wife and children in the Netherlands from Turkey on 25 October 1974.   On 26 August 1980 he was granted permanent resident status.   His wife and five children are also Turkish nationals, and have independently been granted permanent residence status.   The children were born between 1971 and 1980.           On 12 November 1982, the applicant was convicted in second instance by the Court of Appeal (Gerechtshof) of The Hague of complicity to murder.   He was sentenced to 10 years' imprisonment. The Supreme Court (Hoge Raad) rejected his appeal in cassation on 19 April 1983.   Two subsequent requests for a retrial were rejected. The applicant has always maintained his innocence.   The circumstances of the crime led the courts to conclude that it was the result of a Turkish family feud.           On 23 July 1985, the Deputy Minister of Justice revoked the applicant's permanent residence permit and declared him an undesirable alien (ongewenst vreemdeling).   His request for a review of this decision was without success, as was his appeal to the Council of State (Raad van State).           In its decision of 10 December 1987, it stated, inter alia, that the applicant could not be considered to be integrated into Dutch society because he had only been in the country for seven years when he committed the crime, which, moreover, was a culturally determined crime.   Furthermore, it stated that the applicant's claim to innocence and his requests for retrial, did not change the fact that he had been lawfully convicted and sentenced to 10 years' imprisonment.           The applicant was released on parole on 6 September 1988 and subsequently deported to France where he was granted a temporary residence permit.     COMPLAINTS   1.       The applicant complains of various shortcomings in his detention and trial.   He alleges that, therefore, his expulsion is based on a defective conviction.   He invokes Article 5 para. 2 and the whole of Article 6 of the Convention.   2.       Furthermore, the applicant complains that his permanent residence permit was withdrawn and that he was declared an undesirable alien on 23 July 1985, which is 31/2 years after the day of the murder. The final decision on his appeal against the withdrawal and the declaration was taken on 10 December 1987.   He submits that this exceeds "a reasonable time" within the meaning of Article 6 para. 1 of the Convention.   3.       The applicant complains of an unjustified interference with his family life.   He submits that he will be separated from his wife and children because of his expulsion.   He invokes Article 8 of the Convention.   He furthermore complains of discrimination because the expulsion is an extra punishment which cannot be imposed on a Dutch person.   He invokes Article 14 of the Convention.     THE LAW   1.       The applicant has complained of the lawfulness of his detention and the fairness of his trial.   He has invoked Articles 5 (Art. 5) and 6 (Art. 6) of the Convention.           However, the Commission notes that the final decision in the criminal proceedings against the applicant was taken on 19 April 1983, which is more than six months before this application was introduced. It follows that this part of the application must be rejected under Articles 26 (Art. 26) and 27 para. 3 (Art. 27-3) of the Convention.   2.       The applicant has also complained of the duration of the proceedings concerning the withdrawal of his permanent residence permit.   He has invoked Article 6 para. 1 (Art. 6-1) of the Convention.           However, the Commission recalls that Article 6 (Art. 6) is not applicable to proceedings concerning the withdrawal of a permanent residence permit and a declaration of being an undesirable alien (cf. No. 9285/81, Dec. 6.7.82, D.R. 29 p. 205).   This part of the application is therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   3.       Finally, the applicant has complained that his deportation and undesirable alien status amount to an interference with his right to respect for his family life.   Furthermore, he claims that his expulsion is an unfair differentiation in comparison with Dutch nationals.   He has invoked Articles 8 (Art. 8) and 14 (Art. 14) of the Convention.           The Commission recalls 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. No. 6357/73, Dec. 8.10.74, D.R. 1 p. 77 ; No. 9285/81, Dec. 6.7.82, D.R. 29 pp. 205, 209).           In the present case the Commission is of the opinion that the applicant's expulsion from the Netherlands constituted an interference with the applicant's right to respect for his 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 Commission notes from the file that the withdrawal of the applicant's residence permit and the declaration of undesirable alien were made in accordance with the relevant provisions of the Aliens Act (Vreemdelingenwet).   Given the nature and the seriousness of the crime for which the 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.   Furthermore, the Commission finds the alleged difference in treatment objectively and reasonably justified.           It follows that this part of the application is 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.     Deputy Secretary to the Commission        President of the Commission             (J. RAYMOND)                          (C.A. NØRGAARD)