Eduardo Lutete KEMEVUAKO v the Netherlands - 65938/09 [2010] ECHR 981 (12 March 2010)

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The European Court of Human Rights (Third Section), sitting on 1 June 2010 as a Chamber composed of:

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

1. The applicant, Mr Eduardo Lutete Kemevuako, is an Angolan national who lives in Soesterberg. He is represented before the Court by Mr W.A. Venema, a lawyer practising in Rijsbergen.

2. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant entered the Netherlands on 6 July 2001 and requested asylum. In the course of interviews held with immigration officials, he stated that he had been born on 20 May 1985. In 1996 or 1997 he had been taken away from his parents by soldiers of the Angolan Government, who had taken him to a military base where he had stayed for four or five years and where he had received education. He had not been allowed to leave the premises. During the last half year of his stay at the military base, he had been trained to become a soldier. After having heard that he had to fight against troops of the National Union for the Total Independence of Angola (“UNITA”) he had managed to escape the base with the help of his uncle, who had also been stationed there.

3. During the first interview held with the immigration authorities the applicant consented to cooperate in an age-verification examination. This radiographic examination was performed on 18 July 2001 and disclosed that the applicant was about 20 years old and must thus have been born in 1981 rather than in 1985.

4. On 22 July 2001 the applicant's asylum request was rejected by the Deputy Minister of Justice (staatssecretaris van Justitie), who found that the applicant's account could not be considered credible. The applicant lodged appeals, but eventually to no avail. After the Regional Court (rechtbank) of The Hague had quashed the rejection of the asylum request three consecutive times for formal reasons or because it lacked adequate reasoning, the immigration authorities again refused to grant the applicant a residence permit for the purpose of asylum on 4 January 2007. The subsequent appeal of the applicant was rejected by the Regional Court of The Hague, sitting in Utrecht, on 19 July 2007. The Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State, “the Division”) upheld the judgment of the Regional Court on 5 September 2007. No further appeal lay against this decision.

5. On 13 March 2008 the applicant applied for a residence permit “at the discretion of the Deputy Minister” (conform beschikking staatssecretaris), arguing that he had been residing in the Netherlands for seven years, during which period he had become integrated into Dutch society and had developed personal, social and economic ties as a result of the course in electrical engineering he had been following, his membership of a football club, and his adherence to the Jehovah's Witnesses.

6. The request was denied by the Deputy Minister on 13 March 2008 for the reason that the applicant did not hold a provisional residence visa (machtiging tot voorlopig verblijf), which was to be applied for at a representation of the Netherlands in the country of origin and which is a prerequisite for the grant of a residence permit for purposes not related to asylum.

7. The applicant filed an objection (bezwaar) against this decision, arguing that he ought to be exempted from the visa requirement. The Deputy Minister dismissed the objection on 15 August 2008, after which the applicant lodged an appeal with the Regional Court of The Hague, sitting in Breda.

8. In order to be able to await the outcome of the objection and, subsequently, the appeal proceedings in the Netherlands, the applicant also applied for a provisional measure (voorlopige voorziening). By judgment of 8 January 2009, the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague, sitting in Breda, quashed the Deputy Minister's decision on the objection for lacking adequate reasoning. However, the judge upheld the legal consequences and, at the same time, rejected the request for a provisional measure. The provisional-measures judge reiterated that the ratio of the visa requirement for obtaining a residence permit for purposes not related to asylum lay in preventing the national authorities, prior to a decision on a person's request for admission having been taken, from being confronted with a fait accompli as a result of that person's presence in the Netherlands. Furthermore, the provisional-measures judge considered that the authorities were not under a positive obligation to exempt the applicant from the visa requirement, as the fact that the applicant had been allowed to reside in the Netherlands for six years pending the asylum proceedings could not be considered a special circumstance on the basis of which he should be exempted from the visa requirement. No other circumstances had been submitted justifying the conclusion that the decision not to exempt the applicant from the visa requirement constituted an exceptional hardship (onbillijkheid van overwegende aard) and neither had any such circumstances appeared. The provisional-measures judge added that since the obligation to leave the Netherlands in order to apply for a visa was in principle only temporary in nature, it was only in exceptional cases that the refusal to exempt an alien from the visa requirement would amount to an unjustified interference with that alien's right to respect for private life.

9. On 15 June 2009 the Division upheld the judgment of the provisional-measures judge. No further appeal lay against this decision. On that same day, the judgment of the Division was sent to the applicant pursuant to article 8:79 of the General Administrative Law Act (Algemene Wet Bestuursrecht).

10. The applicant complained that the refusal by the Netherlands authorities to grant him a residence permit constituted a violation of his right to respect for his private life, as guaranteed by Article 8 of the Convention.

11. On 14 December 2009 the applicant's representative sent a fax to the Registry, stating that he wanted to lodge a complaint under Article 8 of the Convention on behalf of the applicant. A hard copy of this fax was received by the Registry by post on 6 January 2010.

12. By letter of 7 January 2010 the Registry informed the applicant's representative as follows:

“You should return the completed application form and all relevant documents not later than eight weeks from the date of the present letter. In other words, the date on which you send back the completed application form must not be later than 4 March 2010. Failure to comply with this time-limit will mean that it is the date of the submission of the completed application form rather than that of your first communication which will be taken as the date of the introduction of the application. Your attention is drawn to the fact that it is the date of introduction that is decisive for compliance with the time-limit set out in Article 35 § 1 of the Convention (see para. 18 in enclosed notes to applicants).”

13. Together with the letter of 7 January 2010 the Registry sent an application package to the applicant, including Notes for Guidance. These Notes for Guidance contain – in so far as relevant – the following items:

“14. Applications to the Court may be made only by post (not by telephone). If you send your application by e-mail or fax, you must confirm it by post. ...

15. All correspondence relating to your complaint should be sent to the following address:

18. If you consider that your complaints concern one of the rights guaranteed by the Convention or one of the Protocols, and that the conditions described above are satisfied, you should fill in the application form carefully and legibly and send it, together with any documents required for its examination, as soon as possible and not later than eight weeks after the date of the first letter from the Registry. If the application form is not sent within those eight weeks, it will be the date on which you send your completed application form which determines whether you have complied with the six-month time-limit set out in Article 35 § 1 ... and not the date of your first letter. ...”

14. On 4 March 2010 the applicant's representative sent a fax to the Registry, consisting of a cover letter, a completed application form, and an authority form signed by both the applicant and the representative. All three documents were dated 4 March 2010. In his letter, the applicant's representative notified the Registry that he would send the relevant documents by post.

15. The hard copy of the cover letter dated 4 March 2010, the original of the completed application form and of the authority form, as well as copies of all relevant documents were received by the Registry by post on 12 March 2010. The envelope containing all these documents was postmarked 10 March 2010.

16. The applicant raised a complaint under Article 8 of the Convention in relation to the refusal of the Dutch authorities to grant him a residence permit. Firstly, however, it is to be considered whether the complaint has been lodged within a period of six months from the date on which the final decision was taken, pursuant to Article 35 § 1 of the Convention.

“The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken.”

“1. Any application made under Articles 33 or 34 of the Convention shall be submitted in writing ...”

“5. The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application, provided that a duly completed application form has been submitted within the time limits laid down by the Court. The Court may for good cause nevertheless decide that a different date shall be considered to be the date of introduction.”

Paragraphs 1, 4 and 5 of the Practice Direction on the Institution of Proceedings, appended to Rules 45 and 47 of the Rules of Court and issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 1 November 2003 and amended on 24 June 2009^¹, provide as follows:

“1. An application under Article 34 of the Convention must be submitted in writing. No application may be made by phone.

4. If an application has not been submitted on the official form or an introductory letter does not contain all the information referred to in Rule 47, the applicant may be required to submit a duly completed form. It must be despatched within eight weeks from the date of the Registry's letter requesting the applicant to complete and return the form.

Failure to comply with this time-limit will have implications for the date of introduction of the application and may therefore affect the applicant's compliance with the six-month rule contained in Article 35 § 1 of the Convention.

However, they must despatch the signed original by post within eight weeks from the date of the Registry's letter referred to in paragraph 4 above.”

18. The Court reiterates that according to its case-law the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment in cases where the applicant is entitled, pursuant to domestic law, to be served ex officio with a written copy of the final domestic decision, irrespective of whether that judgment was previously delivered orally (see Worm v. Austria, judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, § 33; Venkadajalasarma v. the Netherlands (dec.), no. 58510/00, 9 July 2002). Since, in accordance with national law, the final judgment of the Division was sent to the applicant in the present case on 15 June 2009, the Court considers that the six-month period started to run on that date.

19. In accordance with the established practice of the Convention organs and Rule 47 § 5 of the Rules of Court, the Court normally considers the date of the introduction of an application to be the date of the first communication indicating an intention to lodge an application and giving some indication of the nature of the application (see Rule 47 § 5 of the Rules of Court, quoted above). Such first communication, which may take the form of a letter sent by fax, will interrupt the running of the six-month period.

20. The purpose of the six-month rule is to promote security of the law, to ensure that cases raising Convention issues are dealt with within a reasonable time and to protect the authorities and other persons concerned from being under uncertainty for a prolonged period of time. As the Court has held, it would be contrary to the spirit and aim of the six-month rule if, by any initial communication, an application could set into motion the proceedings under the Convention and then remain inactive for an unexplained and unlimited length of time. Applicants must therefore pursue their applications with reasonable expedition, after any initial introductory contact (see P.M. v. the United Kingdom (dec.), no. 6638/03, 24 August 2004). A failure to do so may lead the Court to decide that the interruption of the six-month period is to be invalidated and that it is the date of the submission of the completed application which is to be considered as the date of its introduction (see Rule 47 § 5 of the Rules of Court and paragraph 4 of the Practice Direction on the Institution on Proceedings, quoted above).

21. In the present case, the Court notes that, following receipt of his initial communication of 14 December 2009, the applicant's representative was notified by the Registry, pursuant to Rule 47 § 5 of the Rules of Court and paragraph 4 of the Practice Direction on the Institution of Proceedings, that he had to return the application form to the Court by 4 March 2010, eight weeks from the date of the Registry's letter of 7 January 2010. The representative was further informed that if he failed to do so, the date of submission of the completed application form would be taken as the date of introduction of the application.

22. In this context the Court emphasises that in principle it is to be provided with the original of the application form, and also of the authority form if the applicant is represented in the Strasbourg proceedings. Transmissions by fax of these documents are, without the originals of these documents being provided to the Court, insufficient to constitute a complete or valid application. Reference is made in this respect to paragraphs 1 and 4 5 of the Practice Direction on the Institution of Proceedings, quoted above. The last-mentioned paragraph states specifically that it is the signed, original application which is to be despatched by post within eight weeks from the date of the Registry's letter requesting the applicant to complete and return the form.

23. The fact, therefore, that the completed application form in the present case was transmitted to the Registry by fax on 4 March 2010 is irrelevant as long as the original form was not also despatched within the eight-week period, which ended on 4 March 2010. In this respect, the Court observes that although the cover letter accompanying the application form, as well as that form itself, were indeed dated 4 March 2010, the envelope containing the original completed application form, as well as the signed authority form and copies of all relevant documents, was postmarked 10 March 2010.

24. In its case-law relating to the question whether an application was introduced within six months from the final decision, the Court has held − in a case which did not involve transmissions by fax − that in order for the date featuring on a first communication to be considered as the date of introduction of an application, it should be posted at the latest on the day after the date which appears on the communication. If that communication is postmarked more than one day later, it is the date of the postmark − rather than the date featuring on the letter or application form − that will be considered as the date of introduction (see Arslan v. Turkey (dec.), no. 36747/02, ECHR 2002-X (extracts)). The Court sees no reason to apply a different criterion in respect of the question whether the original application form has been submitted within the eight-week period.

25. Having regard to the above considerations the Court therefore finds that the date on which the envelope containing the original application form was postmarked, namely 10 March 2010, should be considered as the date of introduction of the present case. The six-month period having started to run on 15 June 2009, it accordingly concludes that the application is out of time for the purposes of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

1. Practice Directions are appendices to Rules of Court. They are available on the Court’s website and sent to the applicant on request.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Eduardo Lutete KEMEVUAKO v the Netherlands - 65938/09 [2010] ECHR 981 (12 March 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/981.html Cite as: [2010] ECHR 981