CASE OF CILIZ v. THE NETHERLANDS
Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
Elisabeth Palm
8. The applicant came to the Netherlands on 31 March 1988 where he married a Turkish woman on 29 December 1988. Upon his request he was granted a residence permit by the head of the Utrecht police on 14 February 1989 which enabled him to live with his spouse and to work in the Netherlands. This residence permit was valid for one year and, on 5 April 1990, the applicant was given a document showing that as a result of his marriage he was allowed to reside in the Netherlands indefinitely. 9. On 27 August 1990, a son, Kürsad, was born to the applicant and his wife. 10. The applicant and his wife separated in November 1991 and divorce proceedings were initiated. As the applicant's right to reside in the Netherlands indefinitely had been dependent on his being married and cohabiting with his spouse, he lost this right ex jure from the moment of separation. On 24 January 1992, the applicant applied for and was granted an independent residence permit in order to work in the Netherlands pursuant to the relevant provisions of the Aliens Circular (Vreemdelingencirculaire; see paragraphs 40-42 below). This permit was valid for one year. 11. In the period immediately following the separation the applicant made no attempt to see Kürsad, but at a later stage he requested the Utrecht Regional Court (Arrondissementsrechtbank) to establish an arrangement concerning parental access (omgangsregeling – “formal access arrangement”). The Regional Court requested the Child Care and Protection Board (Raad voor de Kinderbescherming) to investigate the feasibility of such an arrangement. 12. In its report of 18 January 1993, the Child Care and Protection Board stated that after an initial refusal to cooperate in a formal access arrangement, the mother had agreed for the applicant to meet Kürsad several times on a provisional basis at the maternal grandparents' house but that the applicant had failed to contact the Board. The Board concluded that the applicant's situation had not become sufficiently clear and for this reason the Board found that a formal access arrangement would not be appropriate. 13. The applicant requested a prolongation of his residence permit in order to work in the Netherlands from the head of the Utrecht police on 11 January 1993. At this time the applicant was in receipt of unemployment benefits and for this reason his request was rejected on 3 February 1993. As regards Article 8 of the Convention, the head of the Utrecht police considered, inter alia, that since it appeared that the applicant had no regular contacts with his son there was no family life between them within the meaning of this provision. In this respect it was held that the applicant's claim that it was not his fault that no regular contacts took place could not be taken into account, since regard could only be had to the factual situation. Furthermore, even assuming there was family life between the applicant and his son, an interference with the right to respect for this life would, according to the head of the Utrecht police, be justified under paragraph 2 of Article 8. 14. The applicant requested the State Secretary for Justice (Staatssecretaris voor Justitie) on 22 April 1993 to review (herzien) the decision of the head of the Utrecht police. He submitted that he was in the process of obtaining a permanent employment contract. He conceded that at present the contacts with Kürsad had not yet been regularised but that the Regional Court of Utrecht was expected to examine and to grant a request for a formal access arrangement shortly afterwards. 15. The applicant's marriage was officially dissolved on 17 March 1994. 16. On 15 July 1994, the applicant was heard by the Advisory Commission for Aliens' Affairs (Adviescommissie voor Vreemdelingenzaken). The applicant stated that since February 1993 he had visited Kürsad between one and three times a week. 17. The Advisory Commission proposed to the State Secretary for Justice that the applicant's request for revision be rejected. Even though it considered that there was family life between the applicant and Kürsad and that the refusal to grant the applicant continued residence in the Netherlands would constitute an interference with the applicant's right to respect for his family life, the Advisory Commission held that this interference was justified for the protection of the economic well-being of the country. In this respect the Advisory Commission considered that the applicant was in receipt of unemployment benefits. Although it might be true that these benefits would be withdrawn in view of the applicant's contract as a stand-by employee in the clothing industry, the Advisory Commission did not regard these activities as serving an essential national interest since it had appeared that on the Netherlands labour market other people, having priority over the applicant, were available for this kind of work. 18. The Advisory Commission further took into account that the applicant had only lived with Kürsad for eighteen months, that he saw Kürsad irregularly and briefly, and that he contributed irregularly to the costs of Kürsad's upbringing and education. 19. In line with the opinion of the Advisory Commission, the State Secretary for Justice rejected the applicant's request for revision on 6 October 1994. 20. The applicant filed an appeal against the decision of 6 October 1994 with the Aliens' Division (Vreemdelingenkamer) of The Hague Regional Court sitting in Amsterdam (nevenzittingsplaats Amsterdam) on 31 October 1994. He submitted, inter alia, that contrary to what the Advisory Commission had held, he had an intense relationship with Kürsad. 21. Meanwhile, following a hearing on 25 November 1994, the Utrecht Regional Court on 24 January 1995 appointed the applicant's former wife as guardian (voogdes) and the applicant as auxiliary guardian (toeziend voogd) of Kürsad. It further ordered that as a contribution to the costs of the maintenance and education of Kürsad, the applicant should pay to the mother any child benefits he might receive under the statutory regulations. In view of the circumstances and the relationship between the parties the Regional Court found it inappropriate, however, to lay down in a formal access arrangement the varying contacts which the applicant was having with Kürsad at that time. The Regional Court assumed in this respect that the contacts which the applicant had had and was still having with Kürsad would be continued in the future; it added that, as part of the upbringing of the child, it was incumbent on the mother to ensure that these contacts between father and child took place. 22. The applicant filed an appeal with the Amsterdam Court of Appeal (Gerechtshof) against the decision of the Utrecht Regional Court not to establish a formal access arrangement. A hearing took place on 19 April 1995, during which the applicant's former wife stated that she was not willing to cooperate in a formal access arrangement, since she felt that the applicant only wished to have such an arrangement established in order to obtain a right to reside in the Netherlands. Furthermore, she did not believe that the applicant was capable of maintaining regular contacts with Kürsad and submitted that irregular contacts would not be conducive to the boy's well-being. 23. On 10 May 1995, a hearing took place before the Hague Regional Court sitting in Amsterdam on the appeal filed by the applicant against the rejection of his request for revision of the decision not to prolong his residence permit. The Regional Court rejected the appeal by decision of 24 May 1995. It held that the refusal to grant the applicant continued residence in the Netherlands constituted a justified interference with his family life. The Regional Court considered in this respect, inter alia, that the Utrecht Regional Court had rejected the applicant's request to establish a formal access arrangement. It found, furthermore, that the contacts between the applicant and Kürsad were irregular and short and that the applicant did not contribute regularly to the costs of his son's maintenance and education. The Regional Court further held that the economic well-being of the country should be taken into account as well. It noted that the applicant had submitted an employment contract from which it appeared that his probationary period had not yet been concluded and that, in any event, there was a sufficient amount of work force with priority over the applicant available on the Netherlands labour market for the kind of work the applicant was employed to do. 24. When this decision was sent to the applicant, that is, on 26 June 1995, the applicant's probationary period had come to an end and he was in possession of a contract of employment for an indefinite period. 25. As regards the applicant's request for the establishment of a formal access arrangement, the Court of Appeal decided in an interlocutory judgment of 1 June 1995 to adjourn these proceedings. The Court found that at the present time there was insufficient reason to deny the applicant right of access to his son. As it was not clear to what extent the applicant was genuinely interested in Kürsad the Court of Appeal requested the Child Care and Protection Board to organise a number of supervised trial meetings between the applicant and Kürsad in order to have the applicant's motives clarified. 26. On 19 September 1995, the applicant was informed that the Court of Appeal had further adjourned the proceedings until 3 December 1995 in view of the heavy workload of the Child Care and Protection Board. By letter of 16 October 1995, the applicant asked the Court of Appeal whether a different organisation might be appointed to organise the trial meetings as he wished to see Kürsad and a further delay would be detrimental to both the applicant and the child. 27. On 31 October 1995, the applicant was placed in detention with a view to his expulsion (vreemdelingenbewaring). 28. On 2 November 1995, the applicant again requested a residence permit in order to work in the Netherlands, to be able to be with his child and for reasons of a compelling humanitarian nature. On this occasion he told the head of police that as of February 1995 he had stopped contributing financially to his son's maintenance since his former wife no longer allowed him to see Kürsad. 29. The first trial meeting between the applicant and Kürsad, organised by the Child Care and Protection Board, took place on 3 November 1995 at the offices of this organisation. Since the applicant was still in detention, he was accompanied by two police officers who observed the meeting between the applicant and Kürsad from a different room. 30. On 7 November 1995, the applicant's representative contacted the officer of the Child Care and Protection Board who had also been present at the meeting between the applicant and his son. In the opinion of this officer, the meeting had gone well given the circumstances under which it had taken place. Although father and son initially had had to re-accustom themselves to being together, it had been clear that Kürsad knew his father and was familiar with him. After the meeting Kürsad had spontaneously gone to the window to wave to the applicant. The officer submitted as her opinion that another trial meeting should be organised by the Board, perhaps in the presence of a psychologist, following which the possibility of a supervised access arrangement should be considered. 31. The applicant's request of 2 November 1995 for a residence permit was rejected by the State Secretary for Justice on 6 November 1995. The State Secretary held that no relevant new facts had been adduced by the applicant. On the basis of the information submitted by the police officers who had observed the meeting between the applicant and Kürsad on 3 November 1995, the State Secretary considered furthermore that it had not appeared that the relationship between the applicant and his son at the present time was meaningful, mutual or anything more than shallow and neither was it realistically foreseeable that a closer relationship would develop. 32. The applicant filed an objection (bezwaar) against the refusal of a residence permit with the State Secretary for Justice on 6 November 1995. He submitted, inter alia, that proceedings concerning access to his son were still pending before the Amsterdam Court of Appeal and that the trial meeting which had been ordered by the Court of Appeal on 1 June 1995 had only taken place as late as 3 November 1995. Given the fact that at that time the applicant had been in detention, it was unreasonable to expect that this meeting between the applicant and Kürsad would give a true impression of the nature of the relationship between them. The applicant also requested an interim measure from the President of the Hague Regional Court sitting in Amsterdam. 33. The applicant was expelled to Turkey on 8 November 1995. 34. On 7 March 1996 the President of the Regional Court rejected both the objection which the applicant had filed against the refusal of a residence permit and the request for an interim measure. 35. The appeal proceedings concerning the formal access arrangement before the Amsterdam Court of Appeal were adjourned for some time and finally continued in the absence of the applicant who had not been granted an entry visa in order to attend either more trial meetings or the hearing before the Court of Appeal. On 7 May 1998 the Court of Appeal confirmed the decision of the Utrecht Regional Court not to lay down a formal access arrangement (see paragraph 21 above). Having regard to the report of the Child Care and Protection Board of 18 January 1993 (see paragraph 12 above), the fact that Kürsad and his father had not seen each other since November 1995, that it had not been possible for the trial meetings – except for the one of 3 November 1995 – to take place within a reasonable time, the uncertainty as to whether the father would come to the Netherlands and stay there temporarily, the continued doubt as to whether the father was capable of maintaining regular contacts with Kürsad and the continuing tension in respect of the father's uncertain situation, the Court of Appeal considered that such an arrangement would be contrary to the compelling interests of the child. 36. The applicant lodged an appeal on points of law against this decision with the Supreme Court (Hoge Raad) which was rejected on 16 April 1999. 37. Meanwhile, on 5 January 1999, the applicant re-entered the Netherlands with a visa valid for three months. He submitted a new application for a formal access arrangement to the Utrecht Regional Court on 25 January 1999, arguing that there had been a change of circumstances since the decision of the Court of Appeal of 7 May 1998 (see paragraph 35 above) in that he was currently in the Netherlands and had employment. Following a hearing on 23 February 1999, during which Kürsad's mother stated that the boy did not want to see the applicant, the Regional Court requested the Child Care and Protection Board to examine whether it would be in Kürsad's best interests to be brought into contact with his father. 38. On 15 December 1999 the Regional Court rejected the applicant's request for a formal access arrangement and denied him the right of access to his son. It noted the conclusion reached by the Child Care and Protection Board, after another trial meeting had taken place, to the effect that the interests of the child militated against access since Kürsad had displayed strong opposition to the idea and the applicant had not proved able to overcome this opposition. The applicant has lodged an appeal against this decision, which proceedings are currently still pending. 39. Under section 11(2) of the Aliens Act (Vreemdelingenwet) residence permits granted for a specific purpose, such as family reunification or family formation, can be granted subject to restrictions relating to that purpose. If the purpose for which the permit was granted is no longer complied with, the residence permit may be revoked pursuant to section 12(d) of the Aliens Act, and prolongation may be refused pursuant to section 11(5) of the Act on grounds relating to the public interest. An alien who has been granted entry to the Netherlands but is not or is no longer eligible for admission is under an obligation to leave the country pursuant to section 15(d)(2). If he or she does not leave voluntarily, expulsion may follow (section 22). 40. The Netherlands authorities pursue a restrictive immigration policy in view of the high population density. Admission is only granted on the basis of treaty obligations, if the individual's presence serves an essential national interest or if there exist compelling reasons of a humanitarian nature. This policy is laid down, inter alia, in the “Circular on Aliens” (Vreemdelingencirculaire – “the Circular”): a body of directives drawn up and published by the Ministry of Justice. 41. At the relevant period, the requirements for admission of aliens for the purpose of family reunification and family formation, and for continued residence after separation, were laid down in Chapter B19 of the 1982 Circular. Aliens married to either a Netherlands national, a recognised refugee or a holder of a permanent residence permit (vestigingsvergunning) acquired, after one year of legal residence, ex jure an indefinite right to remain pursuant to section 10(2) of the Aliens Act. This right expired ex jure when the spouses no longer cohabited. 42. Pursuant to Article 4.3 paragraphs (a) and (d) of Chapter B19 of the 1982 Circular an alien whose marriage had lasted for at least three years before it broke down could be granted one year's residence from the date of the de facto breakdown of the marriage, subject to the restriction “for the purpose of finding work, in paid employment or self-employed”. During this year, dependence on social security or unemployment benefits would not be held against the alien. When assessing an application for a subsequent prolongation of the residence permit, the authorities had to determine whether the person concerned was in paid employment or was self-employed, and would continue to be so for at least another year, regardless whether this durable income was obtained from work in a sector where there were sufficient nationals of European Union member States or aliens residing lawfully in the Netherlands available to fill all vacancies. Where no such employment existed for another year, the right of continued residence would be denied. Employment found subsequently would not change that decision unless that work served an essential national interest. 43. Respect for family life as enshrined in Article 8 of the Convention constitutes one of the treaty obligations which may lead to the granting of admission or continued residence (see paragraph 40 above). Article 1.2 of Chapter B19 of the 1982 Circular provided in this respect that where an alien was not eligible for (continued) residence on the basis of the applicable rules, the question whether a refusal of (continued) residence was in accordance with Article 8 of the Convention should always be examined. Similarly, Article 4.4 of Chapter B19 of the 1982 Circular stipulated that in the decision whether or not to grant continued residence, regard should be had to the individual's family life within the context of Article 8 of the Convention. 44. Article 377a of Book 1 of the Civil Code (Burgerlijk Wetboek) regulates access between a child and the parent who was not awarded parental responsibility following the divorce, as well as the grounds on which access can be denied. This provision, in so far as relevant, reads as follows: “1. A child and a parent on whom parental responsibility has not been conferred shall have the right of access to each other. 2. At the request of one or both parents, the court shall establish an arrangement, for an indefinite period or otherwise, for the exercise of the right of access, or shall deny the right of access, for an indefinite period or otherwise. 3. The court shall deny the right of access only if: a. access would seriously damage the child's psychological or physical development; b. the parent is clearly incapable or must clearly be deemed incapable of access; c. when interviewed, a child over the age of 12 has indicated serious objections to access; d. access would be contrary in some other way to the compelling interests of the child. ...” 45. If the parents disagree about the access arrangement, the courts request the Child Care and Protection Board for a report. Where the father has seen the child only occasionally since the child was very young and the parents are in dispute about the question of access, the Board may organise a number of meetings on Board premises, in order to determine how the child responds to the father and how the father treats the child. Such observations are then used to decide on the request for an access arrangement. 46. The applicant applied to the Commission on 6 November 1995. He maintained that the authorities' refusal to grant him continued residence and his subsequent expulsion had infringed Articles 3, 8 and 14 of the Convention. 47. On 27 June 1996 the Commission declared the complaints under Articles 3 and 14 inadmissible, and on 22 October 1997 it declared the complaint under Article 8 admissible. 48. In its report of 20 May 1998, the Commission expressed the unanimous opinion that there had been a violation of Article 8 of the Convention.