(Application no. 16351/03)
26 April 2007
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Konstatinov v. the Netherlands,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Mr B.M. Zupančič,
Mr C. Bîrsan,
Mrs E. Fura-Sandström,
Mr E. Myjer,
Mr David Thór Björgvinsson,
Mrs I. Ziemele,
Mrs I. Berro-Lefèvre, judges,
and Mr S. Quesada, Section Registrar,
Having deliberated in private on 29 March 2007,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“It is not in dispute that there is 'family life' between the appellant, her husband and child. There is no question of an interference with this family life within the meaning of the second paragraph of Article 8 of the Convention as the impugned decision does not entail the withdrawal of a residence title that enabled her to exercise that family life. The remaining question is whether [the Netherlands authorities] are under a positive obligation under Article 8 to enable the appellant to exercise her family life in the Netherlands. In order to determine the existence of such a positive obligation, a balancing exercise must be carried out – on the basis of reasonableness – between the interests of the person concerned and those of society as a whole. The Regional Court accepts the finding of [the Deputy Minister] that the appellant's interests are outweighed by the public interests pursued by [the Netherlands authorities]. In this balancing exercise, the Regional Court puts first that the countless, ever recurring antecedents of both the appellant and her husband weigh very heavily. The Regional Court further considers it of importance that the family's subsistence needs are met by public funds and that none of the family members holds Netherlands citizenship. As to the alleged statelessness of the appellant, the Regional Court notes that she stated at the outset of the present proceedings that she was holding Yugoslav citizenship and submitted a Yugoslav passport. It was only later that she declared to be stateless. It appears from the fax message of 28 June 2001 of the 's-Hertogenbosch Aliens Police that the appellant presented herself in order to obtain the return of her Yugoslav passport for the purpose of having her son registered in this passport. It is further relevant that the appellant and her son are registered under the above-cited citizenship in the Municipal Personal Records Database (Gemeentelijke Basisadministratie). For the above reasons, the Regional Court is of the opinion that the alleged statelessness of the appellant and her son has not been established and that it has not been demonstrated that the appellant's son could not follow her to the country of origin.
According to the data from the Municipal Personal Records Database, the citizenship of the appellant's husband is unknown. [Pursuant to the relevant immigration rules], where it is registered in respect of an alien that the citizenship cannot be determined, or where – such as in the instant case – in the category citizenship the standard value 0000 ('unknown') is recorded, statelessness has not been established. Noting this as well as the fact that also the alleged statelessness of the appellant has by no means been established, the Regional Court does not find it demonstrated that the appellant's husband is stateless. As it has neither appeared that he is a recognised refugee, no objective obstacles have appeared for exercising family life in the Federal Republic of Yugoslavia or at least outside of the Netherlands.
As an exclusion order has also been imposed on the appellant, the impugned decision does to that extent entail interference with the family life between the appellant, her husband and son. In order to determine whether that interference is justified under the second paragraph of Article 8 of the Convention, [the Deputy Minister] must strike a reasonable balance between the interests of the individual and of society as a whole. In this, the Regional Court refers to the weighty arguments which it has found decisive in the above balancing of [competing] interests. The Regional Court finds that these also justify the interference with the family life [at issue].”
Also the applicant's request for a provisional measure was rejected. No further appeal lay against this ruling.
II. RELEVANT DOMESTIC LAW AND PRACTICE
“a. it concerns a marriage on the basis of which residence can be granted. This requirement entails, inter alia, that it should concern a marriage valid under Netherlands (international) private law. Marriages concluded by partners younger than 16 years are not recognised in the Netherlands;
b. the partner living in the Netherlands must hold a valid Netherlands residence title, have sufficient means of subsistence and suitable housing;
c. the foreign marital partner must not represent a danger for public peace, public order or national security.”
This letter further specifies that admission is refused when one or more of these conditions are not met unless special facts or circumstances constitute a compelling reason of a humanitarian nature warranting admission nevertheless.
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private and family 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 national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. The parties' submissions
2. The Court's assessment
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 26 April 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič