OLGUN v. THE NETHERLANDS
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
1. The applicant, Mr Mehmet Olgun, is a Turkish national who was born in 1971 and, as far as the Court is aware, now lives in Turkey. He was represented by Mr C.A. Madern, a lawyer practising in Amsterdam. The Netherlands Government (“the Government”) were represented by their Agents, Mr R.A.A. Böcker and Ms J. Schukking, and their Deputy Agent, Ms L. Egmond, of the Ministry for Foreign Affairs. 2. The Turkish Government, informed by the Registrar of their right under Article 36 § 1 of the Convention to take part in the proceedings, did not elect to do so. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant first came to the Netherlands in September 1988. He had been issued a visa, valid for one month, enabling him to visit relatives. It is not clear how long he stayed in the Netherlands. 5. In October 1991 the applicant married Ms Ö., a Turkish national, in Turkey. The couple subsequently returned to the Netherlands, apparently without a visa, where they resided illegally. A son, E., was born to them on 16 July 1992. They lived together as a family for some eighteen months before the spouses separated in 1994. The applicant had access to his son and would meet with him at his brother’s house. Divorce proceedings in Turkey were started in 1995, resulting in the divorce being pronounced on 15 July 1997. Ms Ö. was given parental authority over E., with the applicant being granted access to his son every first Sunday of the month and every first day of national and religious holidays. 6. Meanwhile, in 1996, the applicant had returned to Turkey to do his military service. Between 1996 and 1998, E. visited Turkey during holidays, staying for a while with the applicant’s parents as well as with the applicant himself. In March 1998 the applicant returned to the Netherlands on a short-stay visa to visit relatives, but he overstayed. He saw his son a few times at his brother’s house. The applicant states that Ms Ö. thwarted the access arrangement as much as possible. 7. Ms Ö. was granted a residence permit on an unknown date. 8. On 27 March 2000 the juvenile judge (kinderrechter) of the Amsterdam Regional Court (arrondissementsrechtbank) issued a supervision order (ondertoezichtstelling), valid for one year, in respect of the applicant’s son E. and the latter’s half-sister (a child born of a previous relationship of the applicant’s ex-wife). This decision resulted from an investigation carried out by the Child Care and Protection Board (Raad voor de Kinderbescherming), which had found that E. and his half-sister were being ill-treated, that their mother had limited pedagogical abilities and that she would often leave the children on their own. The Amsterdam Youth Care Office (Bureau Jeugdzorg) was appointed as the family-supervision institution (gezinsvoogdij-instelling). 9. On 26 January 2001 the applicant applied for a residence permit on the basis of a temporary regulation on the legalisation of illegal aliens who had been residing in the Netherlands for a long period of time (Tijdelijke regeling witte illegalen). He indicated that he had regular contacts with his son, which it would be practically impossible to maintain from Turkey, and that there thus existed compelling reasons of a humanitarian nature militating in favour of the grant of a residence permit. As the legalisation regulation only applied to requests which had been lodged between 1 October and 1 December 1999, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s request on 16 March 2001. The Deputy Minister further considered that there were no indications that the applicant ought to be allowed to reside in the Netherlands for reasons of a humanitarian nature. 10. In a report of February 2001 compiled by the Youth Care Office and enclosed with their request to the juvenile judge for an extension of the supervision order, the applicant is mentioned as being E.’s biological father who is residing illegally in the Netherlands at an unknown address. On 19 March 2001 the supervision order was extended for a further year. In addition, on 29 March 2001 the juvenile judge ordered E. and his half-sister urgently to be taken into care (spoeduithuisplaatsing) as it had been found that they were suffering serious neglect and abuse at home. They were accommodated in a foster home. This measure was confirmed on 9 April 2001 and prolonged until 9 July 2001. 11. Meanwhile, in his objection (bezwaar) of 12 April 2001 against the decision refusing him a residence permit, supplemented by an additional document dated 1 May 2001, the applicant argued, inter alia, that his ex-wife was unable to look after their son by herself so that it was in E.’s interests that the applicant also assist in his upbringing – and, therefore, that the applicant reside in the Netherlands. 12. On 22 May 2001 the Deputy Minister dismissed the objection, finding that Article 8 of the Convention did not impose a positive obligation on the Netherlands to grant the applicant a residence permit. In this context the Deputy Minister considered that the applicant had not substantiated his claim that his ex-wife was unable to bring up their son by herself. Moreover, it had not appeared that any impediment existed to the exercise of family life abroad. 13. The applicant appealed this decision to the Regional Court of The Hague, sitting in Utrecht, and also applied to that court for an injunction in order to stay his expulsion. 14. In a report evaluating the course of the supervision order, drawn up by the Youth Care Office and submitted with a request by that Office of 29 January 2002 for an extension of the order, it is stated that the applicant had expressed the wish to see his son more often. Neither Ms Ö. nor E. was very taken with that idea. An access arrangement had nevertheless been agreed, but this did not appear to work in practice. 15. In additional grounds of 12 February 2002 for his appeal to the Regional Court of The Hague, sitting in Utrecht, in the aliens-law proceedings, the applicant argued that an investigation was being carried out into the question whether it would be better for E. if his father were made responsible for his care and upbringing. The applicant claimed that he was willing and able to do so, and that he had even applied for an amendment of the parental authority situation. The applicant further submitted that his son would have no possibility of maintaining the relationship with his father if the latter was not in the Netherlands. In that case, E. would have to stay with his mother or, as had been suggested by the family supervisor (gezinsvoogd), be placed away from his mother and be accommodated in a foster family. 16. At a hearing on 25 March 2002 before the juvenile judge concerning the request for an extension of the supervision order relating to E., the applicant stated that at the previous hearing the judge had said that it should be investigated whether or not it would be better for E. to live with his father, but no such investigation had taken place. An investigation into the feasibility of an access arrangement, also ordered, had not taken place either. The applicant announced that a change in the parental authority situation would be sought if the family supervisor failed to carry out the investigation into the possibility of E. living with him. At the hearing the family supervisor admitted that he had not yet done much about the request for an access arrangement as he had been concentrating on the situation of E.’s half-sister. 17. In a decision of 25 March 2002 the juvenile judge extended the supervision order and also ordered the starting-up of an access arrangement and an investigation into the possibility of E. living with his father. 18. The applicant subsequently informed the Utrecht Regional Court, where his appeal was pending in the proceedings relating to his request for a residence permit, that the juvenile judge had instructed the Youth Care Office to investigate whether he should be invested with parental authority over his son and whether his son should live with him. 19. The hearing in these appeal proceedings took place before the Utrecht Regional Court on 12 July 2002. The applicant submitted inter alia that an investigation, ordered by the Amsterdam juvenile judge, was currently pending into the question whether E. should be brought up by his father and whether parental authority over E. ought to be awarded to him. Furthermore, it was plain to see that there were obstacles to the applicant developing family life with his son in Turkey: there was a supervision order in place, issued by a Netherlands court, and parental authority still remained with E.’s mother – the applicant was thus not free to take his son with him. 20. Since the Youth Care Office had still not carried out the investigation ordered by the juvenile judge, the applicant submitted a petition to the Amsterdam Regional Court on 16 July 2002 in which he requested to be granted sole parental authority over E. and to be entrusted with E.’s upbringing. The applicant argued that E. had indicated that he wanted to see his father more often and even wanted to live with him, but that his mother did not agree to this. 21. On 18 July 2002 the Utrecht Regional Court rejected the appeal as well as the request for an injunction in the proceedings relating to the applicant’s request for a residence permit. It considered that the Deputy Secretary had been correct in attaching greater weight to the interests of the community as a whole than to those of the individual. In this context the Regional Court took into account that the applicant had only submitted a decision of the juvenile judge extending the supervision order, but no documents showing that he had lodged a request for parental authority. The applicant had furthermore not submitted proof of the existence of an access arrangement; it was unclear where the child was staying; and the applicant had not demonstrated that there were any objective impediments to family life between himself and his son being pursued in a different manner. The Regional Court noted that the applicant could keep in contact with his son by telephone or letters. No further appeal lay against this decision. 22. The Youth Care Office subsequently decided that, for the time being at least, it would not be in E.’s best interests for him to go and live with his father. Although E.’s situation with his mother was not ideal, it was not so alarming that he urgently required to be placed away from her. In addition, a placement with his father – to which neither E. nor his mother consented –would confront E. with a serious conflict of loyalties. For those reasons, the Youth Care Office did not consider it opportune to examine the applicant’s situation. The Youth Care Office informed the applicant of its position on 21 October 2002. It had further agreed with E. that he would see his father every first Sunday of the month. 23. On 18 December 2002 the Amsterdam Regional Court refused the applicant’s request to be awarded sole parental authority. The court agreed with the Youth Care Office that at the present time it was not in E.’s best interests for the applicant to be invested with parental authority. The applicant lodged an appeal against this decision, submitting that the supervision order had been in place for a number of years without E.’s situation having undergone any real improvement. 24. The applicant left the Netherlands in December 2002 and, as far as the Court is aware, has resided in Turkey ever since. 25. Following a hearing on 20 August 2003, the Amsterdam Court of Appeal (gerechtshof) ordered the Child Care and Protection Board to investigate, before 25 January 2004, the applicant’s background and the possibility of parental authority being granted to him. 26. In a decision of 17 June 2004, the Court of Appeal rejected the appeal. It had regard to the report issued by the Child Care and Protection Board on 4 March 2004, from which it appeared that the applicant had not been involved in the Board’s investigation as he was residing in Turkey and was unable to come to the Netherlands due to the fact that his visa applications kept being refused. The Board had, however, contacted a brother of the applicant’s and the former’s spouse, according to whom E. had had irregular contacts with his father in the past years. The Board noted that, if parental authority was awarded to the applicant, this would mean that E., who had been born and bred in the Netherlands, who did not speak Turkish and who did not want to go to Turkey, would have to move to Turkey at the age of eleven. The Board considered that this would not be in E.’s best interests, even though it was true that the situation in which he was being raised had not been ideal in recent years. The Court of Appeal agreed with the Board’s assessment, adding that it had not been made clear in what way the applicant would wish to exercise his parental authority. While it understood the applicant’s concerns, the court also took into account that E.’s health and performance at school had in the meantime improved and that the supervision order was also expected to have a positive effect. 27. The applicant did not lodge an appeal on points of law with the Supreme Court (Hoge Raad) against this decision. 28. Domestic law and practice relevant to the present case are set out in Benamar v. the Netherlands (dec.), no. 43786/04, 5 April 2005.