European Court of Human Rights

THIRD SECTION

DECISION

Application no. 9258/07
by Mirmohamad BELEWAL
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 12 May 2009 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 20 February 2007,

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, Mr Mirmohamad Belewal, is a Dutch national who was born in 1970 in Bele (Afghanistan) and lives in Hattem (the Netherlands). He was represented before the Court by Mr F.H. Koers, a lawyer who practised in Blankenham, and, upon the latter’s death, by Ms S. Land, also a lawyer practising in Blankenham. The respondent 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 parties, may be summarised as follows.

The applicant fled his native Afghanistan in December 1996 and applied for asylum in the Netherlands on 5 January 1997. He was issued a provisional residence permit (voorwaardelijke vergunning tot verblijf) on 3 February 1997. On 18 February 2002 he obtained Dutch nationality.

The applicant had had to leave his wife and two children (born in 1989 and 1991 respectively) behind in Afghanistan. He was not in contact with them and did not know where they were. He eventually succeeded in finding his children but learned that his wife had died in late 2000. His subsequent application for provisional residence visas (machtigingen tot voorlopig verblijf) for his children was rejected on 20 May 2005 by the Netherlands Minister of Foreign Affairs who, on 19 September 2005, also dismissed the applicant’s objection against that decision. The applicant’s appeal was rejected by the Regional Court (rechtbank) of The Hague, sitting in Almelo, on 3 March 2006. On 4 September 2006 his further appeal to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) was upheld to the extent that the Regional Court’s decision had only dealt with the case of the applicant’s children and not of the applicant himself. However, as the grievances of the applicant were the same as those brought on behalf of his children, the Administrative Jurisdiction Division rejected the appeal which the applicant had lodged with the Regional Court on behalf of himself.

COMPLAINT

The applicant complained under Article 8 of the Convention that residence in the Netherlands for the purpose of family reunion was refused to his children, as a result of which he was unable to enjoy family life with them.

THE LAW

A.  Article 37 § 1 (b) of the Convention

By letter dated 2 July 2007 the Government informed the Court that provisional residence visas would be issued to the applicant’s children. The Court asked the applicant to indicate whether, in the light of this development, he nevertheless wished to maintain his application. By letter dated 28 August 2007, the applicant stated that he did. His representative explained that he had had to exhort the competent Government body to comply with its undertaking to issue visas to the children on a number of occasions before being sent a decision of 24 August 2007 in which the Minister of Foreign Affairs had revoked the original decision of 20 May 2005 and, in view of a policy review that had taken place after that decision, now upheld the objection lodged by the applicant against the original decision. The applicant had been informed that his children could collect the visas from the Representation of the Netherlands in Islamabad, Pakistan, within six months from the date on which the decision had been notified. However, since it was difficult – and for children almost impossible – to obtain admission to the Representation of the Netherlands in Islamabad without a written invitation, the applicant considered that the issue had not yet been resolved since the visas which the children had obtained for Pakistan might expire while they were waiting to be admitted to the Representation. Moreover, in the decision of 24 August 2007, the Minister had refused to grant compensation for the various heads of costs and damages incurred by the applicant.

On 24 October 2007 the applicant’s representative informed the Court that the children had arrived in the Netherlands earlier that month. The Government informed the Court on 18 December 2007 that, by decision of 11 December 2008, the children had been granted residence permits for the purpose of family reunion with their father, valid until 10 October 2012. In view of this development, the Government submitted that the case should be struck out of the list as the applicant could no longer be considered a “victim” within the meaning of Article 34 of the Convention.

The Court recalls that Article 37 § 1 of the Convention provides as follows:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a)  the applicant does not intend to pursue his application; or

(b)  the matter has been resolved; or

(c)  for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court further recalls that in order to ascertain whether Article 37 § 1 (b) applies to the present case, it must answer two questions in turn: first, whether the circumstances complained of directly by the applicant still obtain and, second, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, § 30, 20 December 2007).

As to the first question, the Court notes that the applicant’s children have been granted residence permits to live in the Netherlands until 2012. Therefore, as matters stand, the applicant is able to enjoy family life with his children in the Netherlands and the latter do not face any real and imminent risk of removal to Afghanistan (Sisojeva and Others v. Latvia [GC], no. 60654/00, §§ 99-100, ECHR 2007-...). Clearly, the circumstances complained of no longer obtain. As regards the second question, the Court finds that granting the applicant’s children residence permits also provides adequate and sufficient redress for the applicant (see El Majjaoui, cited above, § 33).

Having regard to the above, the Court finds that both conditions for the application of Article 37 § 1 (b) of the Convention are met. The matter giving rise to the applicant’s complaints can therefore now be considered to be “resolved” within the meaning of Article 37 § 1 (b). Finally, no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue its examination of the application under Article 37 § 1 in fine.

Accordingly, the application should be struck out of the Court’s list of cases.

B.  Application of Rule 43 § 4 of the Rules of Court

Rule 43 § 4 of the Rules of Court provides as follows:

“When an application has been struck out, the costs shall be at the discretion of the Court. ....”

The applicant claimed a total of 7,406.50 euros (EUR) in legal costs and expenses incurred in the proceedings at the domestic level and before the Court. This comprised, as far as the national proceedings were concerned, an amount of EUR 2,066.50 for the mandatory personal contribution which the applicant had had to pay to his legal-aid lawyer as well as court fees, and, for the Strasbourg proceedings, EUR 5,340 for lawyer’s fees exclusive of value-added tax (22.3 hours’ work at an hourly rate of EUR 240).

The applicant submitted that he had sought reimbursement of the costs incurred at the national level from the Minister of Foreign Affairs. The Minister had refused to reimburse the costs relating to the proceedings on the applicant’s objection against the original decision not to issue provisional residence visas because that decision had been revoked due to a policy review which had taken place after the decision had already been made. According to the applicant, the policy review in question was aimed at harmonising the interpretation of the concept of “actual close family ties” (feitelijke gezinsband) as laid down in Dutch legislation with the concept of “family life” within the meaning of Article 8 of the Convention. The applicant argued that if the original decision had been taken in accordance with Article 8 in the first place, the requested provisional residence visas would have been issued and there would have been no need for him to institute further proceedings.

The applicant further sought compensation of the costs of a trip to Afghanistan in 2006, made in order to visit his children, and for the fact that due to the initial decision not to allow the children to join their father, family life could not be enjoyed and the education of the children and their integration into Dutch society was delayed.

The Government submitted that the claims for just satisfaction were not relevant should the Court decide to strike the application out of its list of cases. If the Court nonetheless examined the merits of the application and concluded that Article 8 of the Convention had been breached, the Government were of the opinion that costs incurred in relation to the proceedings on the applicant’s objection against the decision not to issue provisional residence visas should not be eligible for compensation since the applicant had already applied for compensation at the domestic level for the damages he claimed to have suffered in relation to the reconsideration of the application for provisional residence visas. This application had been refused; the applicant had not, however, had recourse to the legal remedies available to him. Moreover, under domestic law the applicant qualified for compensation of roughly 85% of the costs incurred in the proceedings before the Regional Court and the Administrative Jurisdiction Division. Finally, the Government considered that the costs claimed in respect of the proceedings before the Court were excessive.

The Court reiterates that Article 41 of the Convention allows it to award just satisfaction to the “injured party” only if it has previously “[found] that there has been a violation of the Convention or the Protocols thereto”, which it has not in this case. Accordingly, under Rule 43 § 4, the Court can award only costs and expenses to the applicant (see Sisojeva, cited above, § 132).

Having regard to the parties’ observations relating to the costs incurred by the applicant at the national level, the Court does not consider it opportune to make an award in respect of those costs.

As regards the Strasbourg costs, the Court notes the lack of complexity of proceedings and in particular the fact that it has decided to strike the case out of its list at a relatively early stage in the proceedings. In these circumstances, the Court considers it reasonable to award the applicant EUR 2,000 for costs and expenses incurred in the proceedings before the Court. To this amount is to be added any tax that may be chargeable to the applicant. As to default interest, the Court considers it appropriate that it should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

For these reasons, the Court unanimously

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

Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand Euros) plus any tax that may be chargeable to him, in respect of costs and expenses;

(b)  that 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.

Santiago Quesada Josep Casadevall
Registrar President