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THIRD
SECTION
DECISION
Application no.
35864/11
Rajwinder KAUR
against the Netherlands
The
European Court of Human Rights (Third Section), sitting on
15 May 2012 as a Chamber composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Egbert Myjer,
Ján
Šikuta,
Luis López Guerra,
Nona
Tsotsoria, judges,
and Marialena Tsirli,
Deputy
Section Registrar,
Having
regard to the above application lodged on 22 December 2011,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Ms Rajwinder Kaur, is an Indian national who was born in
1986 and lives in Punjab, India. She was represented before the Court
by Mr J.E. Groenenberg, a lawyer practising in Hoofddorp.
- The facts of the case, as submitted by the applicant,
may be summarised as follows. On 10 September 2009 the applicant
lodged a request – with the Dutch representation in New Delhi,
India – for a provisional residence visa (machtiging tot
voorlopig verblijf) for the purpose of joining her partner in the
Netherlands, with whom she has a (minor) child. By decision of
21 October 2009 the applicant’s request was denied by the
Minister of Foreign Affairs. The applicant was deemed a threat to
public order given her conviction by the single-judge chamber of the
Regional Court (rechtbank) of The Hague in February 2009 for
theft in association with one or more persons, for which offence she
had been sentenced to payment of a fine of EUR 400. The Minister also
considered that this refusal did not violate the applicant’s
right to respect for family life as guaranteed by Article 8 of the
Convention given the fact that it had been the applicant’s own
doing that had led to her conviction and no insurmountable obstacles
could be found preventing the applicant and her family from living
their family life outside the Netherlands.
- By
decision of 26 March 2010 the Minister dismissed the applicant’s
objection (bezwaar) against the above mentioned decision. The
Minister had regard to the fact that the Court of Appeal
(gerechtshof) of The Hague had upheld the applicant’s
conviction for theft in association with one or more persons in
February 2010 and had only reduced the fine to EUR 300. Furthermore,
taking into account the principles set out in the Court’s
judgments in Boultif v. Switzerland, no. 54273/00, 2 November
2001 and Üner v. the Netherlands [GC], no. 46410/99, ECHR
2006-XII, the Minister considered that the applicant’s right to
respect for family life had not been violated.
- The
applicant’s appeal against the decision of 26 March 2010 was
upheld by the Regional Court of The Hague by decision of 22 September
2010 and the decision of the Minister was subsequently quashed. The
Regional Court considered that the Minister had not weighed the (lack
of) seriousness of the offence committed by the applicant in an
appropriate manner.
- The
Minister lodged a further appeal with the Administrative Jurisdiction
Division of the Council of State (Afdeling Bestuursrechtspraak van
de Raad van State; hereafter “the Division”). By
decision of 25 March 2011 the Division upheld the Minister’s
further appeal, quashed the judgment of the Regional Court on the
applicant’s appeal and rejected that appeal. The Division held
that the authorities had struck a fair balance between all interests
involved and that there had been no infringement of the applicant’s
right to respect for family life. Also on 25 March 2011, the judgment
of the Division was sent to the lawyer who had represented the
applicant pursuant to article 8:79 of the General Administrative Law
Act (Algemene Wet Bestuursrecht).
COMPLAINT
- The
applicant complained under Article 8 of the Convention that her right
to respect for her family life had been violated by the Netherlands
authorities’ refusal to grant her a provisional residence visa
for the purpose of joining her partner in the Netherlands.
PROCEDURE BEFORE THE COURT
- The
application was electronically lodged with the Court by
Mr Groenenberg, stating he was acting as the applicant’s
representative, on 26 May 2011. Mr Groenenberg sent the signed paper
copy of the form and supporting documents to the Court on 27 May 2011
without, however, including an authority form for representation. By
letter of 12 September 2011 Mr Groenenberg was requested to complete
the application by returning a duly completed, original authority
form not later than 10 October 2011. With reference to the
Court’s decision in the case of Post v. the Netherlands
(no. 21727/08, 20 January 2009), it was also drawn to
Mr Groenenberg’s attention that failure to submit an
authority form could lead the Court to declare the application
inadmissible on the ground that there was no valid application.
- No
reply having been received, on 20 October 2011 Mr Groenenberg was
once again requested to submit an authority form, this time not later
than 10 November 2011. This letter also contained the warning that
the Court could declare the case inadmissible in the absence of an
authority form.
- On
22 December 2011 Mr Groenenberg submitted a completed and signed
authority form. The accompanying letter did not contain any
explanation for the delay.
THE LAW
- The
applicant raised a complaint under Article 8 of the Convention in
relation to the refusal of the Dutch authorities to grant her a
provisional residence visa. 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.
- Article
35 § 1 of the Convention, in so far as relevant, reads:
“The Court may only deal with the matter ...
within a period of six months from the date on which the final
decision was taken.”
Rule
36 § 1 of the Rules of Court provides:
“Persons, non-governmental organisations or groups
of individuals may initially present applications under Article 34 of
the Convention themselves or through a representative.”
Rule
45 of the Rules of Court, in so far as relevant, reads:
“1. Any application made under Articles
33 or 34 of the Convention shall be submitted in writing and shall be
signed by the applicant or by the applicant’s representative.
...
3. Where applicants are represented in accordance with
Rule 36, a power of attorney or written authority to act shall be
supplied by their representative or representatives.”
Rule
47 §§ 1 and 5 of the Rules of Court, in so far as relevant,
provide:
“1. Any application under Article 34 of
the Convention shall be made on the application form provided by the
Registry, unless the President of the Section concerned decides
otherwise. It shall set out
(a) the name, date of birth, nationality,
sex, occupation and address of the applicant;
(b) the name, occupation and address of the
representative, if any;
(c) the name of the Contracting Party or
Parties against which the application is made;
(d) a succinct statement of the facts;
(e) a succinct statement of the alleged
violation(s) of the Convention and the relevant arguments;
(f) a succinct statement on the applicant’s
compliance with the admissibility criteria (exhaustion of domestic
remedies and the six-month rule) laid down in Article 35 § 1 of
the Convention; and
(g) the object of the application;
and be accompanied by
(h) copies of any relevant documents and in
particular the decisions, whether judicial or not, relating to the
object of the application.
...
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.”
Paragraph
4 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, provides as
follows:
“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.”
Persons
wishing to lodge an application electronically are also informed in
the on-line application form that such electronic submission suspends
the six-month time-limit provided a signed paper copy of the form,
together with all supporting documents, is sent to the Court within
eight weeks. The on-line application form further states that if the
person signing is a representative, the form is to be accompanied by
a duly completed authority form for representation. In this context
the Court emphasises that in principle it is to be provided with the
original authority form if the applicant is represented in the
Strasbourg proceedings, pursuant to Rule 45 § 3 of the Rules of
Court.
- The
purpose of the six-month rule is to promote security of 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 any uncertainty for a prolonged period of
time (see Worm v. Austria, 29 August 1997, §§
32-33, Reports of Judgments and Decisions 1997-V). As the
Court has previously held, it would be contrary to the spirit and aim
of the six-month rule if, by any initial communication, an applicant
or his or her representative could set into motion the proceedings
under the Convention and then remain inactive for an unexplained and
unlimited length of time. Applicants and their representatives must
therefore pursue their applications with reasonable expedition, after
any initial introductory contact (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).
- As
to the question whether the omission to submit an authority form –
in cases where applicants are represented –, may have
consequences for the date of introduction of an application, it is
true that the Court has previously held that the date on which a form
of authority has been submitted is not decisive for the purposes of
assessment of the compliance with the six-month requirement (see Post
v. the Netherlands (dec.), no. 21727/08, 20 January 2009 and
W.S. v. Poland, no. 21508/02, § 42, 19 June 2007).
However, that consideration concerned the – different –
question whether it is required that an authority form be submitted
within a period of six months from the date on which the final
decision was taken at the national level. The question at issue here
is whether an application – even if it contains all the data
and documents as set out in Rule 47 § 1 of the Rules of Court –
can continue to be considered to have been introduced at a particular
date when an authority form is not submitted until considerably later
and after the expiry of time-limits fixed for the submission of that
form. The Court is of the opinion that such should not be the case,
for the following reasons.
- In
a number of cases in which the applicant had not been in contact with
the Court directly, the Court has held that it considers it essential
for representatives to demonstrate that they have received specific
and explicit instructions from the alleged victim(s) within the
meaning of Article 34 of the Convention on whose behalf they purport
to act. Where the case files did not contain a power of attorney –
i.e. a document in which the applicants themselves had indicated that
they wished the stated representative to lodge an application with
the Court on their behalf –, the Court considered that such
cases should be rejected for want of an “applicant” for
the purposes of Article 34 of the Convention and it declared them
inadmissible as incompatible ratione personae pursuant to
Article 35 §§ 3 and 4 of the Convention (see Post,
cited above; K.M. and Others v. Russia (dec.), no. 46086/07,
29 April 2010; Çetin v. Turkey (dec.), no. 10449/08,
13 September 2011).
- It
would clearly run contrary to the purpose of the six-month rule as
set out above (paragraph 12) if Convention proceedings could be
instituted on behalf of purported applicants who did not confirm to
the Court for an unexplained and unlimited length of time their wish
for those proceedings to be set in motion on their behalf. In
addition, against the background of the Court’s current
overload and the fact that a large number of applications raising
serious issues on human rights are pending, it can no longer be
expected of the Court that it deal with the merits of cases in which
time-limits set for the purpose of submitting an authority form are
exceeded without an extension having been sought and an explanation
provided for the delay incurred in complying with this very simple
yet crucial procedural requirement (see mutatis mutandis Bock
v. Germany (dec.), no. 22051/07, 19 January 2010).
- Turning
then to the circumstances of the present case, the Court considers
that the six-month period started to run on 25 March 2011, i.e. the
date on which the Administrative Jurisdiction Division of the Council
of State upheld the Minister’s further appeal and on which date
that decision was sent to the applicant’s representative as
provided for by national law (see paragraph 5 above). Accordingly,
the application to the Court should have been introduced at the
latest on 25 September 2011.
- As
mentioned above (paragraph 7), the first communication received in
this case was the electronic submission of the application form on
26 May 2011. However, the Court does not consider this to be
date of the introduction of the application. It observes in this
respect that although Mr Groenenberg submitted the signed paper
copy of the application form as well as supporting documents on 27
May 2011, no duly signed and completed authority form was included.
Moreover, such a form was also not submitted within the time-limits
fixed for that purpose in the two letters subsequently sent to Mr
Groenenberg, and in which he was explicitly warned that failure to
submit an authority form within those time-limits could lead the
Court to declare the application inadmissible (see paragraphs 7
and 8 above).
- It
was not until 22 December 2011 that a completed authority form was
despatched to the Court. The Court observes that the accompanying
letter did not contain any explanation for the delay.
- In
these circumstances the Court finds that the date of the submission
of the authority form, namely 22 December 2011, is to be considered
as the date of introduction of the application pursuant to Rule 47 §
5 of the Rules of Court. Since, as mentioned above (paragraph 16),
the six-month time period ended on 25 September 2011, it follows that
the application has been lodged out of time and that it must be
rejected pursuant to Article 35 §§ 1 and 4 of the
Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Marialena Tsirli Josep Casadevall
Deputy Registrar President
