CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1997

.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. 33257/96                       by Andries H. KLIP and Swantje A. KRÜGER                       against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 3 December 1997, the following members being present:              Mrs    G.H. THUNE, President            MM     J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, Secretary to the Chamber          Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 12 August 1996 by Andries H. KLIP and Swantje A. KRÜGER against the Netherlands and registered on 6 September 1996 under file No. 33257/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The first applicant is a Dutch national, born in 1965. The second applicant is a German national, born in 1964. The applicants are a married couple and reside in Zeist, the Netherlands.        The facts of the case, as submitted by the applicants, may be summarised as follows.   a.    Particular circumstances of the present case        The applicants have a relationship with each other since 1987 and, in November 1995, have jointly bought the house in which they live.        On 2 January 1996, the second applicant applied for a residence permit on grounds of stay with the first applicant, which was subsequently issued with a validity of one year. On 17 January 1996, the applicants gave notice to the Registrar of births, deaths and marriages (Ambtenaar van de burgerlijke stand, hereinafter referred to as "Registrar") of the municipality of Zeist of their intention to get married.        Upon indication by the Registrar, the first applicant informed the Aliens Department (Vreemdelingendienst) of the intended marriage. Upon request of the Aliens Department, the first applicant provided the Aliens Department with the necessary information for a written statement referred to in Article 44 para. 1(k), Book I of the Civil Code (Burgerlijk Wetboek), i.e. the data requested in part A of the standard questionnaire D79-1 (see under b. Relevant domestic law). At that point in time the first applicant did not realise that this information was requested for the purposes of Article 44 para. 1 (k), Book I of the Civil Code, but thought the information was needed in view of the imminent change in the second applicant's civil status.        On 6 February 1996, the Registrar of Zeist accepted to register the applicants' notification of their intended marriage on 10 April 1996, but informed them that they should seek a new statement referred to in Article 44 para. 1(k), Book I of the Civil Code, as the validity of the initial statement would have expired on the date of their marriage.        By letter of 26 February 1996, the applicants informed the Registrar of their objections against seeking permission of the Aliens Department for their marriage. They submitted that such an obligation was contrary to their rights under Articles 8, 12 and 14 of the Convention. They further submitted that the condition was superfluous, since it would not create a stronger right of residence for the second applicant than the one she already had.        By letters of 5 and 25 March 1996, the Registrar informed the applicants that, pursuant to the Act on prevention and suppression of marriages of convenience (Wet voorkoming en bestrijding schijnhuwelijken) of 2 June 1994, a statement referred to in Article 44 para. 1(k), Book I of the Civil Code is one of the documents which must be submitted, where one or both future spouses do not hold Dutch citizenship. At the date of marriage this statement must not be older than two months.        The applicants were further informed that, as they did not intend to seek a new statement although, pursuant to Article 58 para. 1, Book I of the Civil Code, the validity of their initial statement would expire on 18 March 1996, the Registrar would not be able to issue a marriage certificate. Consequently, the applicants' marriage planned for 10 April 1996 could not take place if they would not submit a new statement before 10 April 1996.        On 1 April 1996, the applicants filed a petition (verzoekschrift) with the Regional Court (Arrondissementsrechtbank) of Utrecht in which they objected to the Registrar's refusal to issue a marriage certificate in the absence of a new statement referred to in Article 44 para. 1(k), Book I of the Civil Code and requested a judicial order to the Registrar to issue the marriage certificate.        On 11 June 1996, the Registrar informed the applicants' lawyer that, following an informal request from the Regional Court, he had contacted the Aliens Department with the question whether it would be possible to issue a second statement without requiring the personal appearance of the applicants. The Aliens Department had reacted favourably and, on 14 May 1996, issued a new statement with validity until 14 July 1996.        The applicants married on 26 June 1996. Although the proceedings before the Regional Court had thus become devoid of purpose, the applicants chose to continue these proceedings in order to obtain a decision as to the costs of the proceedings.   b.    Relevant domestic law        On 1 November 1994, the Act on prevention and suppression of marriages of convenience entered into force. This Act sought to create a systematic examination of all intended marriages involving aliens and all such marriages which have been concluded abroad. As a result of this Act, a new Article 44 was included in Book I of the Civil Code. This new provision enumerates the documents which must be submitted to the Registrar when notifying an intended marriage.        Article 44 para. 1(k) requires, in case one of the future spouses does not hold Dutch citizenship, the submission of a statement issued by the Head of the local police in accordance with the Aliens Act (Vreemdelingenwet) to the effect that the foreign partner is lawfully residing in the Netherlands, has filed an application for a residence permit or does not intend to take up residence in the Netherlands.        In order to obtain this statement, the future spouses must complete part A of the standard questionnaire D79-1. The Dutch future spouse is requested to state his or her name, place and date of birth, current address and telephone number(s), and nationality. He or she is further required to submit a proof of identity and, as the case may be, proof of permanent residence abroad.        The information sought about the alien future spouse is the name, date, country and place of birth, nationality, current address and telephone number(s). Where children are involved, information on the particulars and parentage of these children is also requested. Finally, information is requested as regards the period of time the alien future spouse has already resided in the Netherlands, whether he or she already holds a residence permit, whether he or she has applied for a residence permit or does not intend to take up residence in the Netherlands.        By completing part B of the standard questionnaire D79-1, the authorities of the Aliens Department are to verify the immigration history and residence status of the alien future spouse, including questions whether or not this person has been expelled in the past.        Only where the Alien Department has a reasonable suspicion that the intended marriage is one of convenience, it further has to complete an additional standard questionnaire D79-2. If the Aliens Department does not have such a reasonable suspicion, this questionnaire does not have to be completed.        The questionnaire D79-2 contains questions about the aliens' immigration and residence history, whether the Registrar has ever refused to issue a marriage certificate to the persons involved before, whether a previous marriage of one of the persons involved has ever been annulled on grounds of being a marriage of convenience, whether a registration of a marriage concluded abroad has ever been refused before, whether incorrect information has ever been provided by or on behalf of the alien concerned, whether it has appeared that the future spouses hardly know each other, whether or not the future spouses have made contradictory statements, whether statements expressed by the intended spouses indicate a marriage of convenience, whether the Dutch partner has clearly indicated not to be willing to go to the country of the alien spouse, whether or not the partners unusually frequently change addresses, whether or not the Dutch future spouse has already concluded more than one short-lasting marriage and whether the future spouses are in an extreme hurry to conclude the intended marriage.        Pursuant to Article 53 para. 3, Book I of the Civil Code, the public prosecutor is competent to oppose (stuiten) a marriage for being contrary to Dutch public order where the primary purpose of one or both of the future spouses is to obtain entry into the Netherlands. According to Article 56, Book I of the Civil Code a marriage cannot be concluded until an opposition has been lifted in accordance with the procedure laid down in Article 55, Book I of the Civil Code.        Under Article 71(a), Book I of the Civil Code, upon a request of the public prosecutor, a concluded marriage can be nullified as a fictitious act contrary to Dutch public order where the primary purpose of one or both of the future spouses was to obtain entry into the Netherlands.     COMPLAINTS   1.    The applicants complain under Article 8 of the Convention that an investigation as to their motives to get married with each other constitutes an unjustified interference with their right to respect for their private life.   2.    The applicants complain under Article 12 of the Convention that the exercise of their right to marry was unjustly delayed on discriminatory and humiliating grounds, i.e. an investigation into the motives of their marriage, which went beyond the accepted limits under the Commission's case-law. The applicants refer in this respect to the cases of Hamer (No. 7114/75, Comm. Report 13.12.79, D.R. 24, p. 5) and Draper (No. 8186/78, Comm. Report 10.7.80, D.R. 24, p. 72).   3.    The applicants further complain under Article 12 of the Convention that they were only given a limited period of time in which they could get married, i.e. the period of validity of the statement referred to in Article 44 para. 1(k), Book I of the Civil Code.   4.    The applicants finally complain under Article 14 of the Convention in conjunction with Article 12 of the Convention that the obligation for non-nationals to obtain a statement referred to in Article 44 para. 1(k), Book I of the Civil Code from the Aliens Department when they wish to marry a Dutch national constitutes a discriminatory treatment on grounds of nationality. They further complain under Article 14 of the Convention that this requirement is superfluous in the circumstances of their case, as the second applicant's residence status would not be altered on basis of her marriage.     THE LAW   1.    The applicants complain under Article 8 (Art. 8) of the Convention that an investigation as to their motives to get married with each other constitutes an unjustified interference with their right to respect for their private life.        Article 8 (Art.   8) of the Convention, insofar as relevant, reads:        "1.    Everyone has the right to respect for his private ... life      ...        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of ... the economic well-being of the country..."        The Commission notes in the first place that the information requested by the Aliens Department from the applicants themselves, in order to verify the immigration status of the second applicant in view of her intended marriage to a Dutch national, consisted mainly of the applicants' particulars.        Having noted the scope of the questions the applicants had to reply in part A of the standard questionnaire D79-1, the Commission considers that an obligation to provide information of this kind at the request of public authorities does not constitute an interference with the applicants' private life within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention (cf., mutatis mutandis, No. 16810/90, Dec. 9.9.92, D.R. 73, p. 136).        The Commission further does not find it established that, apart from the verification of the second applicant's residence status, any further investigation has been conducted by the Aliens Department as to the motives of the marriage at issue. In this respect it notes that the second applicant already held a Dutch residence permit.        It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicants complain under Article 12 (Art. 12) of the Convention that the exercise of their right to marry was unjustly delayed on discriminatory and humiliating grounds, i.e. an investigation into the motives of their marriage, and that they were only given a limited period of time in which they could get married.        Article 12 (Art. 12) of the Convention provides as follows:        "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 recalls that this provision of the Convention guarantees the fundamental right to marry and found a family. The exercise thereof "shall be subject to the national laws of the Contracting States, but ... the limitations thereby introduced must not... restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired (cf. Eur. Court HR, F. v. Switzerland judgment of 18 December 1987, Series A no. 128, p. 16, para. 32). As noted by the Court in the F. v. Switzerland judgment, in all the Council of Europe Member States, these limitations appear as conditions and are embodied in procedural or substantive rules.        The Commission notes that in the present case, the issue concerns substantive rules, the purpose of which is to prevent marriages of convenience between Dutch nationals and aliens for immigration purposes. In this respect the Commission recalls that the Dutch immigration policy is clearly related to the economic well-being of the country, in particular to the authorities' concern, given the population density in the Netherlands, to regulate the labour market (cf. No. 14501/89, Dec. 6.1.92, D.R. 72, p. 118).        Although in the specific circumstances of the present case the relevance of the statement at issue may be questionable, the Commission cannot find the limitation at issue, namely the applicants' obligation to submit a statement referred to in Article 44 para. 1(k), Book I of the Civil Code, to be contrary to Article 12 (Art. 12) of the Convention (cf. No. 31401/96, Dec. 16.10.96, D.R. 87, p. 160).        Insofar as the applicants complain that they only had a limited period of time within which they could get married in view of the date of expiry of the validity of the statement referred to in Article 44 para. 1(k), Book I of the Civil Code, the Commission does not find it established that the Aliens Department was unable or unwilling to issue a new statement when it appeared that its validity would not cover the marriage date chosen by the applicants.        It follows that this part of the application must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicants finally complain under Article 14 of the Convention in conjunction with Article 12 (Art. 14+12) of the Convention that the obligation for non-nationals to obtain a statement referred to in Article 44 para. 1(k), Book I of the Civil Code from the Aliens Department when they wish to marry a Dutch national constitutes a discriminatory treatment on grounds of nationality. They further complain under Article 14 (Art. 14) of the Convention that this requirement is superfluous in the circumstances of their case, as the second applicant's residence status would not be altered on basis of her marriage.        Article 14 (Art. 14) of the Convention reads:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex, race, colour, language, religion, political or other      opinion, national or social origin, association with a national      minority, property, birth or other status."        For the purposes of Article 14 (Art. 14) a difference of treatment is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.   Moreover the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (cf. Eur. Court HR, Van Raalte v. the Netherlands judgment of 21 February 1997, Reports 1997-I, No. 29, para. 39).        The Commission notes that the obligation to submit a statement referred to in Article 44 para. 1(k), Book I of the Civil Code is aimed at preventing marriages of convenience between Dutch nationals and aliens for immigration purposes.        The Commission considers that the resulting difference of treatment between Dutch nationals who wish to marry another Dutch national and Dutch nationals who wish to marry a non-Dutch national has an objective and reasonable justification. It pursues the legitimate aim of controlling immigration in a densely populated country. The Commission cannot find, in view of this aim, that requesting future spouses in such a situation to submit information as regards the immigration status of the alien future spouse constitutes a disproportionate measure.        The Commission does not find that the applicants' other complaint under Article 14 (Art. 14) of the Convention raises any issues under this provision.        It follows that this part 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, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber