Lakner ; Min ; and Their Children v. the Netherlands



AS TO THE ADMISSIBILITY OF

Application No. 13916/88

by Istvan LAKNER, Agatha Helena MIN

and their children

against the Netherlands

The European Commission of Human Rights sitting in private

on 12 April 1991, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, 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 23 May 1988

by Istvan LAKNER, Agatha Helena MIN and their children against the

Netherlands and registered on 7 June 1988 under file No. 13916/88;

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 facts, as submitted by the applicants, may be summarised as

follows.

The first applicant, born in Hungary in 1952, resides at

Amsterdam in the Netherlands. The second applicant, a Dutch citizen

born in 1957, resides at Amsterdam. The applicants married in 1984

and then lived at Amsterdam. Their children, both Dutch citizens,

were born in 1984 and 1987. In 1990 the applicants' marriage was

dissolved.

In the proceedings before the Commission the applicants are

represented by Mrs. J.J. Bolten, a former lawyer practising in

Amsterdam.

The first applicant, of whom it was not clear whether he was a

Hungarian national or a stateless person, was granted political asylum

in Sweden after he fled Hungary in 1976. A conviction for possession

of drugs led to his expulsion from Sweden. In 1979 he went to the

Netherlands where he was denied asylum. Subsequently he was sentenced

to imprisonment for possession of drugs. After his conditional release

he was expelled several times to Sweden and Belgium. In this context

he unsuccessfully instituted various proceedings to avoid expulsion.

In February 1989 he was granted a temporary residence permit. On 4

May 1990 he received Dutch nationality.

COMPLAINTS

The applicants complain that their right to respect for their

family life has been violated for several years, as the Dutch

authorities wanted to expel the first applicant and there existed a

constant threat that he would have to return to Hungary. Moreover,

the rest of the family had been expected to follow him. However, as

the Hungarian authorities had deprived the first applicant of his

nationality, neither he nor the second applicant and their children

would at that time have been accepted in Hungary. Furthermore, no

other country would have accepted him. The applicants submit that

these facts constituted at that time a violation of Article 8 para. 1

of the Convention even if the first applicant has in the meantime been

granted Dutch nationality.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 May 1988 and registered

on 7 June 1988.

On 30 September 1988 the applicants requested the Commission

to indicate an interim measure under Rule 36 of the Commission's Rules

of Procedure in view of the first applicant's imminent expulsion. On

14 October 1988 the Commission decided not to apply Rule 36.

Also on 14 October 1988 the Commission decided to communicate

the application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application with regard to the issue under Article 8 of the Convention

concerning the right to respect for family life.

The Government's observations were received by letter dated

2 March 1989 and the applicants' observations by letter dated 17 April

1989 Further information was submitted by the applicants by letter

dated 31 May 1990.

THE LAW

The applicants complain of the first applicant's imminent

expulsion to Hungary to where his family would have had to follow him.

They contend that at that time this threat constituted a breach of the

right to respect for family life as guaranteed by Article 8 (Art. 8)

of the Convention.

The Commission recalls that there is no right to enter, remain

or reside in a particular country guaranteed as such by the

Convention. However, if a person is excluded from a country where his

close family resides, an issue may arise under Article 8 (Art. 8) of the

Convention (see No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).

The respondent Government submit that, since the first

applicant has been granted an unrestricted residence permit, the

applicants have no concrete interest in the continuation of the

proceedings.

The Commission observes that the first applicant has been

granted a residence permit and subsequently Dutch nationality.

There is therefore no longer a danger of expulsion. As a result, the

applicants can no longer claim to be victims of the alleged violation

within the meaning of Article 25 (Art. 25) of the Convention.

It follows that 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 unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)