European Court of Human Rights

THIRD SECTION

DECISION

Application no. 7137/07
by Jagoda DINIĆ
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 1 July 2008 as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 9 February 2007,

Having regard to the decision to examine jointly the admissibility and merits of the case (Article 29 § 3 of the Convention),

Having regard to the formal declarations accepting a friendly settlement of the case,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Jagoda Dinić, is a national of the former Yugoslavia who was born in 1992 and lives in Nieuwegein. She was represented before the Court by Mr L. Louwerse, a lawyer practising in Utrecht. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was born in Italy. When she was seven months old, her parents took her to the Netherlands and left her there in the care of her maternal grandmother (a Dutch national). She has been living in the Netherlands ever since and has been going to school there since the age of five.

On 19 November 1999 the applicant’s parents made a declaration at the Embassy of Yugoslavia in The Hague, to the effect that they entrusted the care of their daughter to the grandmother. On 14 March 2000 the Utrecht District Court (Kantongerecht) appointed the grandmother as temporary guardian (tijdelijk voogd) of the applicant.

On 16 February 2002 the applicant applied for a residence permit for the purpose of residing in the Netherlands as a foster child (pleegkind) with her grandmother. She submitted that she was unable to comply with the requirement of holding a provisional residence visa (machtiging tot voorlopig verblijf). Such a visa is normally a prerequisite for the grant of a residence permit, which confers more permanent residence rights, and it has to be applied for in a person’s country of origin. According to the applicant, she did not have any relatives in Yugoslavia who could look after her pending the outcome of a visa application, and her relatives in the Netherlands could not accompany her as they were too afraid to return to Yugoslavia.

The application for a residence permit was rejected on 1 October 2002, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; hereafter “the Minister”) holding that there was no reason to exempt the applicant from the visa requirement. It was further held that the refusal of a residence permit was not contrary to Article 8 of the Convention.

The applicant lodged an objection (bezwaarschrift) against this decision, which was dismissed by the Minister on 28 September 2004. The appeal subsequently lodged by the applicant was upheld by the Regional Court (rechtbank) of The Hague, sitting in Amsterdam, on 31 March 2005, which found that the reasoning employed by the Minister was insufficient.

In a new decision of 12 May 2005, the Minister again dismissed the applicant’s objection. The Regional Court of The Hague, sitting in Utrecht, rejected the applicant’s appeal against this decision on 8 June 2006.

The applicant subsequently lodged a further appeal to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State), arguing inter alia that by insisting the applicant leave the Netherlands in order to apply for a visa, the Dutch authorities were indulging in excessive formalism and had, in breach of Article 8 of the Convention, failed to carry out a proper balancing exercise.

The further appeal was rejected by the Administrative Jurisdiction Division in a decision of 29 November 2006. It considered that the grievances raised by the applicant did not provide grounds for quashing the impugned ruling.

COMPLAINT

The applicant complained that the obligation imposed on her by the Dutch authorities to go to the former Republic of Yugoslavia in order to apply for a provisional residence visa was in breach of Article 8 of the Convention.

THE LAW

On 27 May 2008 the Court received the following declaration from the Government:

“I, R.A.A. Böcker, Agent of the Government of the Netherlands at the Ministry of Foreign Affairs, declare that the Government of the Netherlands offer to exempt Ms J. Dinić from the requirement of obtaining a provisional residence visa (machtiging tot voorlopig verblijf), to grant her a residence permit with a view to the right to family life as laid down in Article 8 of the European Convention on Human Rights, and to pay to her the sum of 3,000.00 euros with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

The abovementioned sum, which is to cover both immaterial damages and costs for legal representation, will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

The Court received the following declaration signed by the applicant’s representative:

“I, L. Louwerse, counsel, note that the Government of the Netherlands are prepared to exempt Ms J. Dinić from the requirement of obtaining a provisional residence visa (machtiging tot voorlopig verblijf), to grant her a residence permit with a view to the right to family life as laid down in Article 8 of the European Convention on Human Rights, and to pay to her the sum of 3,000.00 euros with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

The abovementioned sum, which is to cover any costs and expenses, will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the proposal and waive any further claims against the Netherlands in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Santiago Quesada Josep Casadevall
Registrar President