European Court of Human Rights

THIRD SECTION

DECISION

Application no. 23208/05
by Mirsad MEŠIĆ and Others
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 30 June 2009 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Egbert Myjer,
Luis López Guerra, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 20 June 2005,

Having regard to the respondent Government’s letter of 20 January 2009,

Having deliberated, decides as follows:

THE FACTS

The application is brought by six applicants. The first applicant, Mr Mirsad Mešić, born in what is now Bosnia and Herzegovina in 1967, is married to the second applicant, Ms Mirsada Kostić, who was born in Bosnia and Herzegovina in 1975. These applicants are Dutch nationals. The third and fourth applicants, Mersud and Irnis Mešić, are both sons of the first applicant. They were born in Bosnia and Herzegovina in 1984 and 1988 respectively, and are Bosnian nationals. The fifth and sixth applicants, Alen and Amina Mešić, are children of the first and second applicant and were born in the Netherlands in 1995 and 2002 respectively. They are Dutch nationals. All applicants live in Nuland, the Netherlands. They were represented before the Court by Ms A. Barada, a lawyer who used to practice in Amsterdam.

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

Mr Mirsad Mešić fled from a refugee camp in Croatia to the Netherlands in January 1995 together with his partner, Ms Kostić. Both he and Ms Kostić were granted asylum in the Netherlands and subsequently, in November 2000, obtained Dutch nationality. They were married in January 2002. The fifth and sixth applicants were born from this marriage in the Netherlands, where they have been living all their life.

Mersud and Irnis Mešić, the third and fourth applicants, who were born from Mr Mirsad Mešić’s previous marriage, entered the Netherlands on 16 January 2000, aged 15 and 11 respectively. Their father applied to the head of police (korpschef) of the Brabant-Noord region for a residence permit for them for the purpose of residing with him.

By decision of 21 December 2000 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected that application. Objections (bezwaar) lodged on behalf of both Mersud and Irnis were dismissed by decisions of respectively 13 and 26 May 2003 of the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie, the successor to the Deputy Minister of Justice). A subsequent appeal to the Regional Court (rechtbank) of The Hague, sitting in Breda, was dismissed by judgment of 27 December 2004. The Regional Court considered inter alia that no actual close family ties (feitelijke gezinsband) existed between Mersud and Irnis on the one hand and their father on the other, as they had lived separated from each other for more than five years. Noting that the applicants had not invoked Article 8 of the Convention until the hearing, the Regional Court further held that due process precluded it from taking that argument into consideration. No further appeal lay against this decision.

COMPLAINTS

The applicants complained that the Dutch authorities’ refusal to grant them a residence permit for the purpose of staying with their father, stepmother and siblings was in breach of their rights under Article 8 of the Convention.

The applicants further complained that in respect of their above complaint they did not have an effective remedy within the meaning of Article 13 of the Convention, since the Regional Court refused to examine their appeal in the light of Article 8 despite the fact, firstly, that the question whether or not family ties had been severed had been at issue in the entire proceedings and, secondly, that the Minister and Deputy Minister had addressed the matter in their decisions.

THE LAW

Subsequent to the decision of 2 September 2008 of the President to give notice of the present application to the respondent Government (Rule 54 § 2 (b) of the Rules of Court), the Government informed the Court on 20 January 2009 that counsel for the applicants had informed their Agent on 29 December 2008 that the applicants intended to withdraw the application, of which decision counsel would inform the Court shortly. Furthermore, counsel had informed the Agent earlier that she had decided to discontinue her activities as a lawyer as of 1 November 2008. The Government further informed the Court that, in the light of this development, they did not deem useful the submission of written observations as requested by the Court.

On 26 January 2009 counsel for the applicants was asked to indicate, by 9 February 2009, whether the applicants wished to maintain their application and, if so, who would be their representative.

As no reply was received to that letter, a reminder, with a new deadline of 19 March 2009, was sent to counsel by facsimile as well as registered mail on 5 March 2009. A copy of that letter was sent to the applicants on the same day. Attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. Neither the applicants nor counsel replied.

As the message transmitted by facsimile to counsel on 5 March 2009 to the number known to the Court had proved to be undeliverable and subsequent attempts made by the Registry to contact counsel by telephone at the number known to the Court had remained unsuccessful, a letter was sent to the applicants by registered mail on 6 March 2009, setting out what steps had been taken in order to contact counsel and asking the applicants to inform the Court, by 20 March 2009, whether they wished to maintain their application.

No reply was received.

The Court considers that, in these circumstances, the applicants may be regarded as no longer wishing to pursue their application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. 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