European Court of Human Rights - case of Berrehab v. Netherlands (June 1988)

EUROPEAN COURT OF HUMAN RIGHTS

In the Berrehab case*,

_______________

* Note by the Registrar: The case is numbered 3/1987/126/177. The

second figure indicates the year in which the case was referred to the

Court and the first figure its place on the list of cases referred in

that year; the last two figures indicate, respectively, the case's

order on the list of cases and of originating applications (to the

Commission) referred to the Court since its creation.

_______________

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr. R. Ryssdal, President,

Mr. Thór Vilhjálmsson,

Mr. G. Lagergren,

Mr. C. Russo,

Mr. A. Spielmann,

Mr. J. De Meyer,

Mr. S.K. Martens, ad hoc judge,

and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy

Registrar,

Having deliberated in private on 26 February and 28 May 1988,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") and by the Netherlands Government

("the Government") on 13 March and 10 April 1987 respectively, within

the three-month period laid down in Article 32 § 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 10730/84) against the Kingdom of the Netherlands

lodged with the Commission under Article 25 (art. 25) by a Moroccan

national, Abdellah Berrehab, a Netherlands national, Sonja Koster, and

their daughter Rebecca Berrehab, likewise of Netherlands nationality,

on 14 November 1983. "The applicants" hereinafter means only Abdellah

and Rebecca Berrehab, as the Commission declared Sonja Koster's

complaints inadmissible (see paragraph 18 below).

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby the Netherlands Government

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46); the Government's application referred to Articles 45, 47

and 48 (art. 45, art. 47, art. 48). Both sought a decision from the

Court as to whether the facts of the case disclosed a breach by the

respondent State of its obligations under Articles 3 and 8 (art. 3,

art. 8).

2. In response to the enquiry made in accordance with

Rule 33 § 3 (d) of the Rules of Court, the applicants stated that they

wished to take part in the proceedings pending before the Court and

designated the lawyer who would represent them (Rule 30).

3. The Chamber of seven judges to be constituted included ex

officio Mr. A.M. Donner, the elected judge of Netherlands nationality

(Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the

President of the Court (Rule 21 § 3 (b)). On 23 May 1987, in the

presence of the Registrar, the President drew by lot the names of the

other five members, namely Mr. Thór Vilhjálmsson, Mr. G. Lagergren,

Mr. C. Russo, Mr. A. Spielmann and Mr. J. De Meyer (Article 43 in fine

of the Convention and Rule 21 § 4) (art. 43). In December 1987, as

Mr. Donner was unable to attend, the Government appointed

Mr. S.K. Martens, Vice-President of the Netherlands Court of Cassation

(Hoge Raad), to sit as an ad hoc judge (Rules 23 § 1 and 24 § 1).

4. Mr. Ryssdal assumed the office of President of the Chamber

(Rule 21 § 5) and consulted - through the Registrar - the Agent of the

Government, the Delegate of the Commission and the lawyer for the

applicants on the need for a written procedure (Rule 37 § 1). In

accordance with the order made in consequence on 31 July 1987, the

registry received:

(a) on 3 November, the memorials of the Government and of

the applicants;

(b) on 26 October, the applicants' claims for just satisfaction

(Article 50 of the Convention) (art. 50), which they supplemented in

January 1988.

In a letter of 23 November, the Secretary to the Commission informed

the Registrar that the Delegate would submit his observations at the

hearing.

5. Having consulted - through the Registrar - the persons due to

appear before the Court, the President directed on 24 November that

the oral proceedings should commence on 23 February 1988 (Rule 38).

6. The hearing was held in public in the Human Rights Building,

Strasbourg, on the appointed day. The Court had held a preparatory

meeting immediately beforehand.

There appeared before the Court:

(a) for the Government

Miss D.S. Van Heukelom, Assistant Legal Adviser,

Ministry for Foreign Affairs, Agent,

Mr. J.L. De Wijkerslooth de Weerdesteijn,

Landsadvocaat, Counsel;

(b) for the Commission

Mr. H. Schermers,  Delegate;

(c) for the applicants

Mr. C.N.A.M. Claassen, advocaat,  Counsel.

The Court heard addresses by Mr. De Wijkerslooth de Weerdesteijn for

the Government, Mr. Schermers for the Commission and Mr. Claassen for

the applicants, as well as their replies to its questions.

At the hearing the Commission produced various documents at the

Registrar's request on the President's instructions. By a letter of

19 April 1988, the Government supplemented their reply to a question

posed by the Court.

AS TO THE FACTS

I. The circumstances of the case

7. Mr. Berrehab, a Moroccan citizen born in Morocco in 1952, was

permanently resident in Amsterdam at the time when he applied to the

Commission.

His daughter Rebecca, who was born in Amsterdam on 22 August 1979, has

Netherlands nationality. She is represented by her guardian, viz. her

mother, Mrs. Koster, who is likewise a Netherlands national.

8. After marrying Mrs. Koster on 7 October 1977, Mr. Berrehab

sought permission to stay in the Netherlands where he had been for

some time already. The Ministry of Justice granted him permission on

25 January 1978 "for the sole purpose of enabling him to live with his

Dutch wife", and then renewed it until 8 December 1979.

From November 1977 Mr. Berrehab worked for a self-service shop.

On 9 March 1978, a work permit was issued to him under the Aliens

(Work Permits) Act 1964 (replaced since 1 November 1979 by the

Employment of Aliens Act). This permit was renewed on

18 October 1979. From April 1981 to April 1983 Mr. Berrehab was

employed by a cleaning firm.

9. On 8 February 1979, his wife sued for divorce. The Amsterdam

Regional Court (Arrondissementsrechtbank) granted the divorce on

9 May 1979 on the ground of the irretrievable breakdown of the

marriage, which was dissolved by registration of the decision in the

Civil Registry of Amsterdam on 15 August 1979. By an order of

26 November 1979, the Amsterdam Regional Court appointed Mrs. Koster

guardian of her daughter, Rebecca, who had been born in the meantime,

and appointed the girl's father as an auxiliary guardian (toeziende

voogd). On 5 February 1980, it ordered the latter to pay the Child

Welfare Council 140 guilders a month as a contribution to the cost of

maintaining and educating his daughter.

When Rebecca was born, her father and Mrs. Koster agreed to ensure

that the child had frequent, regular contacts with her father.

On 27 February 1984, they had a notary legalise an agreement between

them as to arrangements for these contacts and certify that over the

previous two years Mr. Berrehab had seen his daughter four times a

week for several hours each time.

10. On 7 December 1979, Mr. Berrehab made an application for

renewal of his residence permit. The head of the Amsterdam police

refused the application on the same day, stating that it would be

contrary to the public interest to renew the permit, regard being had

to the fact that Mr. Berrehab had been allowed to remain in the

Netherlands for the sole purpose of living with his Dutch wife, which

condition was no longer fulfilled on account of the divorce.

By letter of 26 December 1979, Mr. Berrehab asked the Minister of

Justice to review this decision. He pointed out among other things

that he needed an "independent" residence permit in order to fulfil

his moral and legal obligations as a father. He said he had

sufficient means of subsistence and that he was in a position to bear

part of the costs of Rebecca's upbringing and education.

11. The Minister did not reply within the statutory period of

three months, which under Netherlands law constituted an implied

rejection of the request.

Mr. Berrehab consequently appealed, on 23 April 1980, to the

Litigation Division (Afdeling Rechtspraak) of the Raad van State.

He stated that he could not see how the grant to him of a residence

permit could be prejudicial to the national interest, particularly

since he was under various legal obligations as a father and he had

been able to support himself since 1977 by working. At the hearing on

14 March 1983, he claimed that the impugned decision infringed

Article 8 § 1 (art. 8-1) of the Convention on the ground that it

prevented him from remaining in contact with his daughter whom he saw

regularly four times a week.

The Raad van State dismissed his appeal on 9 May 1983. It recalled in

the first place that, under section 11(5) of the Aliens Act of

13 January 1965 (Vreemdelingenwet - "the 1965 Act"), renewal of a

residence permit could be refused in the public interest. As the

Minister of State for Justice had pointed out, Mr. Berrehab no longer

satisfied the condition upon which the grant of his residence permit

depended; consequently, the refusal appealed against could be

justified under section 11(5). As for Mr. Berrehab's obligations to

his daughter, the Raad van State held that the fulfilment thereof did

not serve any vital national interest and that those obligations

subsisted independently of his place of residence. It added that four

meetings a week were not sufficient to constitute family life within

the meaning of Article 8 (art. 8) of the Convention and that the impugned

decision would, moreover, not necessarily entail a break in relations

between the child and her father, as the latter could remain in

contact with his daughter by agreement with his ex-wife.

12. On 30 March 1983, Mr. Berrehab was dismissed by his employer with

effect from 15 April. He was, furthermore, arrested on 28 December 1983

for the purpose of his deportation. He made an urgent application (kort

geding) to the presiding judge of theAmsterdam Regional Court , but

withdrew it shortly after the execution of the impugned deportation order

on 5 January 1984; on 18 January, the presiding judge accordingly held

that there was no ground on which to give a decision.

In 1984, Rebecca and her mother spent two months with Mr. Berrehab and

his family in Morocco. On 28 August 1984, Mr. Berrehab applied to the

Netherlands Embassy in Rabat for a three-month residence permit.

After an initial refusal he obtained a visa valid for one month, for

the purpose of enabling him to exercise his rights of access.

Accordingly, he went to the Netherlands on 27 May 1985 where he

requested an extension of his visa until the following 27 August. His

request having been turned down on 6 June, he lodged an appeal with

the Raad van State, accompanied by an urgent application. Hearing the

latter application, the President of the Litigation Division decided,

on 20 June, that the applicant should be treated - subject to a

condition which is not relevant to this judgment - as if he had been

granted a visa valid until 27 August.

13. On 14 August 1985, Mr. Berrehab remarried Mrs. Koster in

Amsterdam. On 9 December 1985, the Ministry of Justice granted him

permission (which he had sought on 29 August) to reside in the

Netherlands "for the purpose of living with his Dutch wife and working

during that time".

II. The relevant legislation, practice and case-law

A. The general context of Netherlands immigration policy

14. The Netherlands authorities pursue a restrictive immigration

policy. The authorities, however, permit exceptions prompted, inter

alia, by the wish to honour the obligations flowing from the

Convention, by the country's economic well-being and by humanitarian

considerations, including the reuniting of families.

The entry requirements and the grounds on which aliens may be expelled

are laid down primarily in the 1965 Act and its implementing

regulations. In addition to these legal provisions, there is the

"Circular on Aliens" (Vreemdelingencirculaire), which is a body of

directives drawn up and published by the Ministry of Justice.

The right to stay is therefore governed in principle by sections 8-11

of the Act. A prolonged stay requires the authorisation of the

Minister of Justice or a body acting under his control. A refusal to

grant an authorisation must be accompanied by a statement of the

reasons on which it is based. An appeal lies to the Minister of

Justice and then, if need be, to the Raad van State. An application

is usually granted - normally for one year - only if the individual's

presence serves an essential national interest or if there are

compelling humanitarian grounds.

Foreigners married to a Netherlands national fall into the latter

category; they may obtain a residence permit "in order to live with

their spouse" in the Netherlands and, if appropriate, "in order to

work there during that time".

B. Changes in this policy

15. This policy, however, has changed over the years. Foreigners

coming to live with their husbands or their wives were initially

granted resident status and a conditional residence permit. That

status was forfeited if the marriage in respect of which it was

granted was dissolved, in which case the foreigner had to leave the

country.

In order to enhance the position of foreigners lawfully established in

the Netherlands, the Minister of State for Justice felt it necessary

to soften the line followed in this respect. Under the terms of the

"Vreemdelingencirculaire" (Chapter B 19, paragraph 4.3), foreigners

who had been married for more than three years and had lived with

their spouses in the Netherlands for at least three years prior to the

dissolution of their marriage were enabled to apply for an

"independent" residence permit; the underlying idea was that after

that length of time they would have forged sufficient links with the

country for it to be unnecessary to make their status subject to

conditions.

It was subsequently thought advisable to make further changes in the

regulations in favour of this category of foreigner. The requirement

of three years' marriage was retained but the requisite period of

residence was reduced to one year. The purpose of this relaxation was

to improve the often precarious position of divorced women,

particularly those of Mediterranean origin; it was felt that they

ought to be permitted to stay in the Netherlands with a status

independent of that of their former husbands.

This policy was later refined still further, when it was decided that

even where the aforementioned conditions were not met, overriding

humanitarian considerations might justify the grant to a foreigner of

authorisation to remain on Netherlands territory on an independent

residence permit, for example if he had close links with the

Netherlands or with a person resident there. According to the

Government, this was an exceptional measure that was rarely applied.

C. Case-law

16. As far as the Netherlands case-law on aliens is concerned, a

distinction must be drawn between the courts hearing urgent

applications - the civil courts up to and including the Court of

Cassation at last instance - and the court conducting a full

examination of the merits of the case, namely the Litigation Division

of the Raad van State.

While the Court of Cassation in its decisions in other fields, such as

the right of access, had already favoured a fairly broad conception of

"family life" (see in particular the leading case decided on

22 February 1985, in Nederlandse Jurisprudentie, 1986, no. 3), the

Litigation Division of the Raad van State had tended to take a

narrower view. Its decision in the instant case is fully in line with

that tradition. Several of its most recent decisions, however,

suggest that it is going to adopt the principle laid down in a Court

of Cassation judgment of 12 December 1986 concerning aliens, from

which it emerges that cohabitation is not a sine qua non of "family

life" for the purposes of Article 8 (art. 8) of the Convention

(Nederlandse Jurisprudentie, 1988, no. 188).

The Court of Cassation recently had before it a case similar to the

present one. A court of appeal, hearing an urgent application, had

held that where a foreigner threatened with expulsion pleads the right

to respect for his own and his child's family life, the onus is on him

to show that the minor's interest is sufficiently important to

outweigh the State's interest. On appeal, the Court of Cassation

quashed the decision on 18 December 1987 (Rechtspraak van de Week,

1988, no. 9). It fell to be decided whether "family life" existed

between the alien and his child, and the Court of Cassation began by

emphasising that the child was a legitimate one. It went on:

"For the duration of the marriage, there existed between Garti and his

son a relationship that amounted to family life within the meaning of

Article 8 (art. 8) of the ... Convention .... Neither the

cessation of cohabitation nor the divorce ended that relationship.

It must also be noted that, as Garti claimed and as the Court of

Appeal apparently regarded as having been established, Garti and his

son remained in close touch after the cessation of cohabitation."

The decision was quashed on the ground, inter alia, that the appeal

court had lost sight of the fact that:

"if, in such a case, the expulsion of a foreigner must be regarded as

an interference with his right to respect for family life within the

meaning of Article 8 (art. 8) ..., the sole means of determining

whether that interference is justified or may be justified is to

weigh, in the light of the facts of the case and the policy directives

(beleidsregels) in force, the seriousness of the interference with the

right of the foreigner concerned and his minor child to respect for

their family life against the interests served by those policy

directives, and in so doing one may, in order to assess the

seriousness of the interference, have regard notably to the length of

time during which those concerned have lived together, to the nature

and degree of intensity of the contacts maintained after cohabitation

came to an end and to whether it is the parent or the child who is

threatened with expulsion".

PROCEEDINGS BEFORE THE COMMISSION

17. In their application of 14 November 1983 to the Commission

(no. 10730/84), Mr. Berrehab and his ex-wife Mrs. Koster, the latter

acting in her own name and as guardian of their under-age daughter

Rebecca, alleged that Mr. Berrehab's deportation amounted - in respect

of each of them, and more particularly for the daughter - to treatment

that was inhuman and therefore contrary to Article 3 (art. 3) of the

Convention. In their submission, the deportation was also an

unjustified infringement of the right to respect for their private and

family life, as guaranteed in Article 8 (art. 8).

18. On 8 March 1985, the Commission declared Mrs. Koster's

complaints inadmissible, but Mr. Berrehab's and Rebecca's complaints

were declared admissible.

In its report of 7 October 1986 (made under Article 31) (art. 31), the

Commission concluded that there had been a violation of Article 8

(art. 8) (by eleven votes to two) but not of Article 3 (art. 3)

(unanimously). The full text of the Commission's opinion and of the

dissenting opinion contained in the report is reproduced as an annex

to this judgment.

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)

19. In the applicants' submission, the refusal to grant a new

residence permit after the divorce and the resulting expulsion order

infringed Article 8 (art. 8) of the Convention, which provides:

"1. Everyone has the right to respect for his private and family

life, his home and his correspondence.

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."

The Government disputed this submission but the Commission accepted

it.

A. Applicability of Article 8 (art. 8)

20. The applicants asserted that the applicability of Article 8

(art. 8) in respect of the words "right to respect for ... private and

family life" did not presuppose permanent cohabitation. The exercise

of a father's right of access to his child and his contributing to the

cost of education were also factors sufficient to constitute family

life.

The Government challenged that analysis, whereas the Commission agreed

with it.

21. The Court likewise does not see cohabitation as a sine qua non

of family life between parents and minor children. It has held that

the relationship created between the spouses by a lawful and genuine

marriage - such as that contracted by Mr. and Mrs. Berrehab - has to

be regarded as "family life" (see the Abdulaziz, Cabales and

Balkandali judgment of 28 May 1985, Series A no. 94, p. 32, § 62). It

follows from the concept of family on which Article 8 (art. 8)

is based that a child born of such a union is ipso jure part of that

relationship; hence, from the moment of the child's birth and by the

very fact of it, there exists between him and his parents a bond

amounting to "family life", even if the parents are not then living

together.

Subsequent events, of course, may break that tie, but this was not so

in the instant case. Certainly Mr. Berrehab and Mrs. Koster, who had

divorced, were no longer living together at the time of Rebecca's

birth and did not resume cohabitation afterwards. That does not alter

the fact that, until his expulsion from the Netherlands, Mr. Berrehab

saw his daughter four times a week for several hours at a time; the

frequency and regularity of his meetings with her (see paragraph 9 in

fine above) prove that he valued them very greatly. It cannot

therefore be maintained that the ties of "family life" between them

had been broken.

B. Compliance with Article 8 (art. 8)

1. Paragraph 1 of Article 8 (art. 8-1)

22. In the applicants' submission, the refusal to grant

Mr. Berrehab a new residence permit after the divorce and his

resulting expulsion amounted to interferences with the right to

respect for their family life, given the distance between the

Netherlands and Morocco and the financial problems entailed by

Mr. Berrehab's enforced return to his home country.

The Government replied that nothing prevented Mr. Berrehab from

exercising his right of access by travelling from Morocco to the

Netherlands on a temporary visa.

23. Like the Commission, the Court recognises that this

possibility was a somewhat theoretical one in the circumstances of the

case; moreover, Mr. Berrehab was given such a visa only after an

initial refusal (see paragraph 12 above). The two disputed measures

thus in practice prevented the applicants from maintaining regular

contacts with each other, although such contacts were essential as the

child was very young. The measures accordingly amounted to

interferences with the exercise of a right secured in paragraph 1 of

Article 8 (art. 8-1) and fall to be considered under paragraph 2

(art. 8-2).

2. Paragraph 2 of Article 8 (art. 8-2)

(a) "In accordance with the law"

24. The Court finds that, as was submitted by the Government and

the Commission, the measures in question were based on the 1965 Act;

and indeed, the applicants did not dispute that.

(b) Legitimate aim

25. In the applicants' submission, the impugned interferences did

not pursue any of the legitimate aims listed in Article 8 § 2

(art. 8-2); in particular, they did not promote the "economic

well-being of the country", because they prevented Mr. Berrehab from

continuing to contribute to the costs of maintaining and educating his

daughter.

The Government considered that Mr. Berrehab's expulsion was necessary

in the interests of public order, and they claimed that a balance had

been very substantially achieved between the various interests

involved.

The Commission noted that the disputed decisions were consistent with

Dutch immigration-control policy and could therefore be regarded as

having been taken for legitimate purposes such as the prevention of

disorder and the protection of the rights and freedoms of others.

26. The Court has reached the same conclusion. It points out,

however, that the legitimate aim pursued was the preservation of the

country's economic well-being within the meaning of paragraph 2 of

Article 8 (art. 8-2) rather than the prevention of disorder:

the Government were in fact concerned, because of the population

density, to regulate the labour market.

(c) "Necessary in a democratic society"

27. The applicants claimed that the impugned measures could not be

considered "necessary in a democratic society".

The Government rejected this argument, but the Commission accepted it,

being of the view that the interferences complained of were

disproportionate as the authorities had not achieved a proper balance

between the applicants' interest in maintaining their contacts and the

general interest calling for the prevention of disorder.

28. In determining whether an interference was "necessary in a

democratic society", the Court makes allowance for the margin of

appreciation that is left to the Contracting States (see in particular

the W v. the United Kingdom judgment of 8 July 1987, Series A

no. 121-A, p. 27, § 60 (b) and (d), and the Olsson judgment of

24 March 1988, Series A no. 130, pp. 31-32, § 67).

In this connection, it accepts that the Convention does not in

principle prohibit the Contracting States from regulating the entry

and length of stay of aliens. According to the Court's established

case-law (see, inter alia, the judgments previously cited), however,

"necessity" implies that the interference corresponds to a pressing

social need and, in particular, that it is proportionate to the

legitimate aim pursued.

29. Having to ascertain whether this latter condition was

satisfied in the instant case, the Court observes, firstly, that its

function is not to pass judgment on the Netherlands' immigration and

residence policy as such. It has only to examine the interferences

complained of, and it must do this not solely from the point of view

of immigration and residence, but also with regard to the applicants'

mutual interest in continuing their relations. As the Netherlands

Court of Cassation also noted (see paragraph 16 above), the legitimate

aim pursued has to be weighed against the seriousness of the

interference with the applicants' right to respect for their family

life.

As to the aim pursued, it must be emphasised that the instant case did

not concern an alien seeking admission to the Netherlands for the

first time but a person who had already lawfully lived there for

several years, who had a home and a job there, and against whom the

Government did not claim to have any complaint. Furthermore,

Mr. Berrehab already had real family ties there - he had married a

Dutch woman, and a child had been born of the marriage.

As to the extent of the interference, it is to be noted that there had

been very close ties between Mr. Berrehab and his daughter for several

years (see paragraphs 9 and 21 above) and that the refusal of an

independent residence permit and the ensuing expulsion threatened to

break those ties. That effect of the interferences in issue was the

more serious as Rebecca needed to remain in contact with her father,

seeing especially that she was very young.

Having regard to these particular circumstances, the Court considers

that a proper balance was not achieved between the interests involved

and that there was therefore a disproportion between the means

employed and the legitimate aim pursued. That being so, the Court

cannot consider the disputed measures as being necessary in a

democratic society. It thus concludes that there was a violation of

Article 8 (art. 8).

II. ALLEGED VIOLATION OF ARTICLE 3 (art. 3)

30. The applicants maintained that the refusal to grant

Mr. Berrehab a new residence permit after the divorce and his

resulting deportation infringed Article 3 (art. 3), which provides:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

In the Government's submission, the applicants' complaints disclosed

no problem under this provision.

In the Commission's view, the facts of the case did not show that

either of the applicants underwent suffering of a degree corresponding

to the concepts of "inhuman" or "degrading" treatment.

31. The Court shares this view and finds that there has been no

violation of Article 3 (art. 3).

III. APPLICATION OF ARTICLE 50 (art. 50)

32. By Article 50 (art. 50) of the Convention,

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising from

the ... Convention, and if the internal law of the said Party allows

only partial reparation to be made for the consequences of this

decision or measure, the decision of the Court shall, if necessary,

afford just satisfaction to the injured party."

The applicants, who had legal aid for the proceedings before the

Commission and the Court, did not seek reimbursement of costs and

expenses. They did, on the other hand, claim financial compensation

for twofold pecuniary damage: loss of earnings (31,429.56 guilders)

allegedly suffered by Mr. Berrehab from April 1983 to May 1985 by

reason both of the dismissal from his job following the refusal to

issue him with a new residence permit and of the impossibility of

finding work in his home country; and the cost (4,700 guilders) of

the journey made by Rebecca Berrehab and her mother to Morocco in July

1984 and by Mr. Berrehab to the Netherlands in May 1985

(see paragraph 12 above). The applicants also sought an unspecified

amount of compensation for the mental suffering caused by their

separation.

33. In the Government's submission, no causal link had been

established between the disputed measures and the alleged pecuniary

damage. The Commission accepted that argument with respect to the

loss of earnings, but considered that partial compensation for the

travel expenses was justified. It also recognised that Mr. Berrehab

and Rebecca had sustained non-pecuniary damage; the Government did

not express any view on that point.

34. The Court shares the view of the Commission. Taking its

decision on an equitable basis, as required by Article 50 (art. 50),

it awards the applicants the sum of 20,000 guilders.

FOR THESE REASONS, THE COURT

1. Holds by six votes to one that there has been a violation of

Article 8 (art. 8);

2. Holds unanimously that there has been no violation of Article 3

(art. 3);

3. Holds unanimously that the Netherlands is to pay to the applicants

20,000 (twenty thousand) Dutch guilders by way of just satisfaction;

4. Rejects unanimously the remainder of the claim for just

satisfaction.

Done in English and in French, and delivered at a public hearing in

the Human Rights Building, Strasbourg, on 21 June 1988.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 § 2 (art. 51-2) of the Convention and

Rule 52 § 2 of the Rules of Court, the dissenting opinion of Mr. Thór

Vilhjálmsson is annexed to this judgment.

Initialled: R.R.

Initialled: M.-A.E.

DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

To my regret, I have not been able to agree with my colleagues who

have found a violation of Article 8 (art. 8) of the Convention in

this case. I can agree with the judgment with the sole exception of

paragraph 29. It is therefore not necessary for me to elaborate on the

issues where I share the opinion of the majority of the Court, namely

that there was family life between the applicants, that the first

applicant, Mr. Abdellah Berrehab, was treated in accordance with the

Aliens Act 1965 and other applicable rules and that the legislation

pursues a legitimate aim. There remains the question of whether the

interference complained of was "necessary in a democratic society".

As already indicated, I have no comments to make on what is stated on

this point in paragraph 28 of the judgment. As to the final

assessment of whether or not there was a violation of Article 8

(art. 8), I would make the following observations.

The policy of the Netherlands in the field at issue here is set out in

detailed rules found in or based on the 1965 Act, as amended. The

amendments have been made in the light of experience and there has

been a tendency to enable persons of foreign nationality who have

certain family ties with Netherlands citizens to take up residence in

the Netherlands. As already indicated, the rules pursue a legitimate

aim. It may be added that the problem of immigration and residence of

foreigners is a very important issue and there is no doubt that

restrictions are unavoidable. Generally speaking, in this field the

Government must have a wide margin of appreciation when formulating

their policy and the necessary legal rules.

Against this have to be weighed the rights embodied in the first

paragraph of Article 8 (art. 8-1). There are two applicants,

the father and his daughter. It was the father who had to leave the

Netherlands and who had dealings with that country's authorities. As

stated in the judgment, he and the mother of his daughter had been

married to each other, but they had been divorced by the time their

child was born. They did not live together. The mother and the first

applicant agreed that he should see his daughter frequently and

regularly and it must be assumed that he did so during the relevant

period. He was also formally appointed an auxiliary guardian of his

daughter. Notwithstanding their contacts, which constituted family

life, I nevertheless find, taking into account the circumstances that

the applicants did not live in the same home and that the parents of

the child were not married to each other at the relevant time, that on

balance the first applicant's rights did not outweigh the respondent

State's interests recognised in paragraph 2 of Article 8 (art. 8-2).

This conclusion is supported by the fact that the contacts between the

two applicants were not completely terminated after the first

applicant left the Netherlands.

As to the rights of the second applicant, the daughter, it seems that

they were not considered by the Netherlands authorities who dealt with

the first applicant's case. That in itself did not, in my opinion,

give rise to a violation of Article 8 (art. 8). I take the view that

the Court must assess the competing rights and interests

independently. It should be noted that the second applicant was a

young girl when her father had to leave the Netherlands. The family

life she had enjoyed with him was limited to what he had agreed with

the mother. The child had hardly any voice on the scope of her

contacts with her father and the respondent State could not alter that

situation by any positive action on its part. Thus, her situation was

very precarious. In my opinion, this is an argument in favour of the

respondent State's position in this case. Taking into account the

family situation already described, I have come to the conclusion that

neither the rights of the second applicant, taken alone, or the

combined rights of the two applicants can lead to a finding of a

breach of Article 8 (art. 8).

It should be mentioned that I have, in accordance with the practice in

this Court, voted on the question of Article 50 (art. 50) on the basis

that there was a violation of Article 8 (art. 8) as decided by the

majority.