AS TO THE ADMISSIBILITY OF

Application No. 43678/98

by A.Z. , A.S.Z. and G.A.Z.

against Switzerland

The European Commission of Human Rights sitting in private on 30 October 1998, the following members being present:

MM J.-C. GEUS, Acting President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 September 1998 by A.Z. , A.S.Z. and G.A.Z. against Switzerland and registered on 1 October 1998 under file No. 43678/98;

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having deliberated;

Decides as follows: 

THE FACTS

The first applicant is a Yugoslav citizen of Kosovo origin born in 1966.  The second applicant, his wife, is a Swiss citizen.  The third applicant, born in 1997, is their daughter.  The applicants live in Gerlafingen in Switzerland.  Before the Commission they are represented by Mr T. Poledna , a lawyer practising in Zürich .

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

While in Yugoslavia, the first applicant served in 1986 in the army.  In view of the emerging political difficulties he wished to leave Yugoslavia.  He obtained a medical suspension from military service for two years and travelled first to Austria and in 1990 to Switzerland.

While in Switzerland the first applicant was convicted on 25 July 1991 of driving under the influence of alcohol and sentenced to 20 days' imprisonment and three years' expulsion from Switzerland.  He returned to Switzerland shortly thereafter and was sentenced on 14 August 1991 to 30 days' imprisonment for breaching the Aliens' Residence and Domicile Act ( Bundesgesetz über Aufenthalt und Niederlassung der Ausländer ).

In 1991 the first applicant married.

On 2 February 1993 the first applicant was convicted, inter alia , of forging documents and sentenced to 40 days' imprisonment.

On 20 April 1993 the Aliens' Police of the Canton of Berne formally admonished ( Verwarnung ) the applicant.

On 12 November 1993 the Interlaken Criminal District Court ( Strafamtsgericht ) convicted the first applicant, inter alia , of attempted rape and bodily injury and sentenced him to imprisonment of 28 months and 20 days.  On 5 December 1995 the first applicant was fined 1,500 CHF for breaching the Aliens' Residence and Domicile Act.  On 18 December 1995 he was sentenced to 45 days' imprisonment on account, inter alia , of committing damage to property.

In May 1995 the first applicant's marriage was dissolved by divorce.

On 27 October 1995 the applicant was ordered to leave Switzerland.

On 19 July 1996, while serving a prison sentence, the first applicant married the second applicant with whom he had had a relationship since 1994.  Their child, the third applicant, was born in 1997.

The first applicant then filed a request to obtain the right to reside ( Aufenthaltsbewilligung ) in Switzerland.  This was refused on 13 March 1997 by the Berne Aliens' Police.

The first applicant's appeal against this decision was dismissed on 4 July 1997 by the Police and Military Directorate ( Polizei - und Militärdirektion ) of the Canton of Berne , and, upon a further appeal, by the Administrative Court ( Verwaltungsgericht ) of the Canton of Berne on 27 October 1997.

In its decision, the Administrative Court noted that according to S. 7 para. 1 of the Aliens' Residence and Domicile Act the foreign spouse of a Swiss citizen had in principle the right to reside in Switzerland, though this right was subject to any grounds for expulsion.  According to S. 10 of the Act, the foreigner could be expelled, inter alia , if he had been convicted of a crime.  The Court referred to various offences committed by the applicant, in particular attempted rape, and to the fact that the police authorities had described him as being brutal and aggressive.  The Court concluded that the first applicant's culpability ( Verschulden ) was severe.

The Court further noted that the first applicant had come to know the second applicant while he was in prison.  When they established family life, they would, therefore, have been aware that the first applicant would not necessarily obtain a residence permit and would have to leave Switzerland.  Moreover, the distance between Yugoslavia and Switzerland was such that marital relations might be difficult, but not impossible.  Their common child was still very young and could be expected to follow the parents to Yugoslavia.  The Court also considered that the first applicant was the father of a further child born out of wedlock with whom he had no contacts.

The first applicant's administrative law appeal ( Verwaltungs-gerichtsbeschwerde ) was dismissed by the Federal Court ( Bundesgericht ) on 12 March 1998.

COMPLAINTS

1. The applicants complain under Article 8 of the Convention that the first applicant is obliged to return to Yugoslavia.  The second applicant, a Swiss citizen, and the third applicant, their common child, cannot be expected to follow him.

2. The first applicant further complains that in view of the war and the ethnic persecution in Yugoslavia his return to this country would amount to inhuman treatment contrary to Article 3 of the Convention.  He points out that his aunt and her daughter and grandchildren had to flee and request asylum in Switzerland.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 September 1998.

On 30 September 1998 the Acting President decided not to apply Rule 36 of the Commission's Rules of Procedure.

The application was registered on 1 October 1998.

THE LAW

1. The applicants complain under Article 8 of the Convention that the first applicant is obliged to return to Yugoslavia.  The second applicant, a Swiss citizen, and the third applicant, their common child, cannot be expected to follow him.

Article 8 of the Convention states, insofar as relevant:

"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 Commission recalls that no right of an alien to enter or to reside in a particular country is as such guaranteed by the Convention.  Nevertheless, the expulsion of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life guaranteed in Article 8 para. 1 of the Convention (see Eur. Court HR, Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193, p. 18, para. 36).

In the present case, the Commission finds that the applicant's obligation to return to Yugoslavia would interfere with his right to respect for his private and family life within the meaning of Article 8 para. 1 of the Convention.

The Commission must, therefore, examine whether such interference is justified under Article 8 para. 2 of the Convention.

The Commission notes that the Swiss authorities relied on SS. 7 and 10 para. 1 (a) of the Federal Act on Residence and Domicile of Aliens.  According to these provisions a foreigner who has committed a crime may be expelled and will not be granted the right to reside in Switzerland.

The interference is, therefore, "in accordance with the law" within the meaning of Article 8 para. 2 of the Convention.

Moreover, when deciding to expel the first applicant, the Swiss authorities considered that he had been convicted of various criminal offences.  The measure was therefore imposed "for the prevention of ... crime" within the meaning of Article 8 para. 2 of the Convention.

Finally, the Commission has examined whether the measure is "necessary in a democratic society" within the meaning of Article 8 para. 2 of the Convention, as interpreted in the Convention organs' case-law (see Eur. Court HR, Bouchelkia v. France judgment of 29 January 1997, Reports of Judgments and Decisions 1997-I, p. 65, para. 48).

In the present case, the Commission considers, on the one hand, that the first applicant has been convicted, inter alia , of attempted rape.  In its decision of 27 October 1997 the Administrative Court of the Canton of Berne found that his culpability was severe.

On the other hand, when the first and second applicants established family life within the meaning of Article 8 of the Convention, they did so at a moment when they must have been aware that the first applicant would no longer have a right to stay in Switzerland and that it was therefore likely that they would have to lead their family life elsewhere.

The Commission considers that the second applicant will only be able to follow her husband, the first applicant, with some difficulty.  However, taking into account the serious offence which the first applicant has committed as well as the margin of appreciation which is left to Contracting States in such circumstances (see Eur. Court HR, Boughanemi v. France judgment of 24 April 1996, Reports of Judgments and Decisions 1996-II, p. 610, para. 41), the Commission considers that the interference with the applicants' right to respect for their private and family life is justified under Article 8 para. 2 of the Convention in that it can reasonably be considered "necessary in a democratic society ... for the prevention of ... crime".

This part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

2. The first applicant also complains that in view of the war and the ethnic persecution in Yugoslavia his return to this country would amount to inhuman treatment contrary to Article 3 of the Convention.  He points out that his aunt and her daughter and grandchildren had to flee and request asylum in Switzerland.

Article 3 of the Convention states:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

According to the Convention organs' case-law, the right of an alien to reside in a particular country is not as such guaranteed by the Convention.  Nevertheless, expulsion may in exceptional circumstances involve a violation of the Convention, for example where there is a serious and well-founded fear of treatment contrary to Article 3 of the Convention in the country to which the person is to be expelled (see Eur. Court HR, Chahal v. United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions, 1996-V, p. 1831, paras. 72 et seq.).

a) The Commission recalls that the prohibition of ill-treatment contained in Article 3 of the Convention is absolute in expulsion cases.  Nevertheless, applicants invoking this Article are not dispensed as a matter of course from exhausting available and effective domestic remedies and normally complying with formal requirements and time-limits laid down by domestic law (see Eur. Court HR, Bahaddar v. the Netherlands judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 263 et seq., paras. 45 et seq.).

In the present case, the first applicant has not shown that on account of his fear of persecution in Yugoslavia he instituted asylum proceedings in Switzerland, which he could do at any time, or that he raised the complaints he is now making before the Convention in any other way before the domestic authorities.

The first applicant has not, therefore, complied with the requirement as to the exhaustion of domestic remedies according to Article 26 of the Convention, and this part of the application must be declared inadmissible according to Article 27 para. 3 of the Convention.

b) The first applicant's complaints would, in any event, also be inadmissible for the following reason.

Thus, the mere possibility of ill-treatment on account of the unsettled general situation in a country is in itself insufficient to give rise to a breach of Article 3 of the Convention (see Eur. Court HR, Vilvarajah and others v. United Kingdom judgment of 30 October 1991, Series A no 215, p. 37, para. 111).

The Commission has examined the circumstances of the present case as they have been submitted by the first applicant.  However, it notes that he has not provided any substantiation whatsoever for his claims that upon his return to Yugoslavia he would face a real risk of being subjected to treatment contrary to Article 3 of the Convention.

This part of the application is, therefore, also manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

        M. de SALVIA                                                             J.-C. GEUS

         Secretary                                                                Acting President

      to the Commission                                                   of the Commission