Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 40080/98

by Ylber REDZEPI

against Switzerland

The European Commission of Human Rights sitting in private on

12 March 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

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

E. BIELIUNAS

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 23 December 1997

by Ylber Redzepi against Switzerland and registered on 3 March 1998

under file No. 40080/98;

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 applicant, of Kosovo origin, is a citizen of Yugoslavia born

in 1973. According to his submissions, he and his family reside in

Dietikon in Switzerland. Before the Commission he is represented by

Mr R. Ilg, a lawyer practising in Zürich.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant entered Switzerland together with his parents on

8 May 1989, and has meanwhile obtained the authorisation to establish

domicile (Niederlassungsbewilligung).

On 3 July 1992 the applicant married V. M., a Yugoslav citizen

of Kosovo origin, in Yugoslavia. His wife entered Switzerland on

23 August 1992. Their daughter G. was born on 18 June 1993.

On 17 August 1994 the applicant was remanded in custody, and on

9 November 1995 the Zürich District Court (Bezirksgericht) sentenced

him to three years' imprisonment for having contravened the Narcotics

Act (Betäubungsmittelgesetz).

On 29 January 1997 the Government (Regierungsrat) of the Canton

of Zürich ordered the applicant's expulsion from Switzerland for a

period of ten years.

The applicant filed an administrative law appeal (Verwaltungs-

gerichtsbeschwerde) which the Federal Court (Bundesgericht) dismissed

on 7 July 1997.

In its decision, the Court noted at the outset that the contested

measure was based on S. 10 para. 1 (a) of the Aliens' Residence and

Domicile Act (Bundesgesetz über Aufenthalt und Niederlassung der

Ausländer), according to which a foreigner may be expelled if he has

been convicted by a court.

The Court further considered in the light of the sentence imposed

on the applicant that his culpability was severe (das strafrechtliche

Verschulden wiegt schwer) and that the Aliens' Police (Fremdenpolizei)

had a considerable interest in expelling him.

The Court also noted that the applicant had only lived in

Switzerland for eight years, of which two years had been spent in

detention. He continued to have relations with his home country. The

decision continued:

"The disadvantages are somewhat more serious for his wife and

their common child, who are not responsible for the faults

committed by the applicant. However, both the wife's mother and

her siblings live in Kosovo. She herself has only lived five

years in Switzerland. She regularly spent her holidays in her

home country. The child is only four years old and does not

therefore have any difficulties to adapt to the new circumstances

of life. The family can therefore be expected to follow the

applicant upon his return to Kosovo. As a result, the possible

disadvantages for the family ... do not seriously militate

against the expulsion. As the family members, who are entitled

to reside in Switzerland, can be expected to travel with the

expelled foreigner, the right to respect for family life within

the meaning of Article 8 of the Convention has a priori not been

breached."

According to a statement of the Zürich Aliens' Police

(Fremdenpolizei) of 1 October 1997, there was no need to order the

applicant's expulsion as he was then serving a prison sentence in

Yugoslavia.

COMPLAINTS

The applicant complains under Article 8 of the Convention of his

expulsion from Switzerland, resulting in the separation from his wife

and his daughter. The latter was born in Switzerland and only knows

the home country from holidays. The applicant's wife cannot be

expected to return to the Kosovo region which is insecure and where

there is unemployment. There is furthermore no public interest in the

expulsion as the Zürich District Court only imposed a prison sentence

on the applicant and did not order his expulsion.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 December 1997.

On 9 January 1998 the Acting President decided not to apply

Rule 36 of the Commission's Rules of Procedure.

The application was registered on 3 March 1998.

THE LAW

The applicant complains of his expulsion to Yugoslavia, alleging

that neither his wife nor his daughter can be expected to follow him.

He relies on Article 8 (Art. 8) of the Convention which states, insofar

as relevant:

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

family life ...

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

(Art. 8-1) 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

expulsion would interfere with his right to respect for his private and

family life within the meaning of Article 8 para. 1 (Art. 8-1) of the

Convention.

The Commission must, therefore, examine whether such interference

is justified under Article 8 para. 2 (Art. 8-2) of the Convention.

The Commission notes that the Swiss authorities, in particular

the Federal Court in its decision of 7 July 1997, relied on S. 10

para. 1 (a) of the Federal Act on Residence and Domicile of Aliens.

According to this provision, a foreigner may be expelled if he has been

punished by a court.

The interference is, therefore, "in accordance with the law"

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

Moreover, when deciding to expel the applicant, the Swiss

authorities considered that he had been convicted of contravening the

Narcotics Act. The measure was therefore imposed "for the prevention

of ... crime" within the meaning of Article 8 para. 2 (Art. 8-2) 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 (Art. 8-2) of the Convention, as interpreted in the Convention

organs' case-law (see Eur. Court HR, Bouchelkia v. France judgment of

29 January 1997, Reports 1997-I, No. 28, para. 48).

In the present case, the Commission considers, on the one hand,

that the applicant has been convicted for contravening the Narcotics

Act. In its decision of 7 July 1997 the Federal Court found that the

applicant's culpability was severe.

On the other hand, the Commission notes that the applicant's

wife, who is a Yugoslav citizen of Kosovo origin, has only lived in

Switzerland for five years and remains familiar with the circumstances

in her home country where her mother and her siblings live. The

applicant's daughter, born in 1993, is still of an adaptable age.

Thus, both the applicant's wife and his daughter can be expected to

follow the applicant upon his return to Yugoslavia.

Taking into account 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 1996-II, No. 8, p. 610,

para. 41), the Commission considers that the interference with the

applicant's right to respect for his private and family life is

justified under Article 8 para. 2 (Art. 8-2) of the Convention in that

it can reasonably be considered "necessary in a democratic society ...

for the prevention of ... crime".

The application is therefore manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) 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

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REDZEPI v. SWITZERLAND

REDZEPI v. SWITZERLAND

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