Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 36865/97

by H. U.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 1997, the following members being present:

Mrs G.H. THUNE, President

MM S. TRECHSEL

J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 June 1997 by

H. U. against Switzerland and registered on 15 July 1997 under file

No. 36865/97;

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 1971 and currently residing in Affoltern a.A. 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 on 5 January 1992 and filed a

request for asylum.

On 6 August 1992 he was arrested, and on 4 September he was

indicted of having contravened the Narcotics Act (Betäubungsmittel-

gesetz).

The applicant's request for asylum was dismissed on 2 October

1992. By ordinance of 26 October 1992 he was prohibited from entering

Switzerland until the year 2002.

On 23 November 1992 the Zürich District Court (Bezirksgericht)

convicted the applicant of contravening the Narcotics Act and sentenced

him to 16 months' imprisonment, suspended on probation.

On 21 March 1994 the applicant married S.I., a Yugoslav citizen

who had the right to domicile (Niederlassungsbewilligung) in

Switzerland. He then requested a residence authorisation

(Aufenthaltsbewilligung) in Switzerland in order to remain with his

wife. On 30 June 1994 a son was born.

On 20 September 1994 the Swiss Asylum Appeals Commission

(Schweizerische Asylrekurskommission) dismissed the applicant's appeal

against the decision of 2 October 1992.

On 20 January 1995 the Aliens' Police (Fremdenpolizei) dismissed

the applicant's request for a residence authorisation. The applicant's

appeal against this decision was dismissed by the Government

(Regierungsrat) of the Canton of Zürich on 25 June 1996.

The applicant's administrative law appeal (Verwaltungsgerichts-

beschwerde) was dismissed by the Federal Court (Bundesgericht) on

4 February 1997.

In its decision the Court noted that it was only concerned with

the applicant's request for residence in Switzerland, not with his

expulsion as such. The Court also noted that the contested measure was

based on S. 17 para. 2 of the Aliens' Residence and Domicile Act

(Bundesgesetz über Aufenthalt und Niederlassung der Ausländer),

according to which a foreigner has no right to a residence

authorisation if he has breached public order.

With reference to Article 8 para. 2 of the Convention, the

Federal Court then considered that the applicant, soon after his entry

into Switzerland, started dealing with drugs together with a

compatriot, and that it was to be feared that he would again do so.

Thus, he had clearly breached Swiss public order. In respect of the

proportionality of the measure, the Court noted that the applicant's

wife had entered Switzerland in 1988 when she was 14 years old. The

decision continued:

"A return would appear more difficult for her than for the

applicant. Nevertheless, it must be assumed that she is still

familiar with the circumstances in her home country. One must

further consider that the wife, when marrying the applicant, must

have been aware of his criminal conviction; of his prohibition

to enter Switzerland; and of the first instance refusal of his

request for asylum. Thus, she could not assume that she could

live her marriage with certainty in Switzerland. The common son

was born in 1994 and is therefore still of an adaptable age ...

It is claimed that the applicant is a Kosovo Albanian, and his

wife of Serb origin and that in view of the current civil war

they have no common home country. However, in view of their

common nationality this cannot be decisive."

As a result, the Court considered that the applicant's wife could

be expected to follow the applicant to Yugoslavia, and that his private

interest in the residence authorisation was outweighed by the public

interest in the applicant leaving Switzerland. If his wife did not

wish to leave Switzerland, she was free to visit her husband in

Yugoslavia; it was also not excluded that his prohibition to enter

Switzerland could be temporarily suspended in order to allow him to

visit his wife.

COMPLAINTS

The applicant complains under Article 8 of the Convention that

there was no public interest in his expulsion. His wife, who travelled

to Switzerland in 1988 when she was 14 years old, does not know

Yugoslavia as an adult. She has no relatives there and no economic

prospects. She has lived her professional life in Switzerland. Their

common child was born in Switzerland in 1994 and has no ties whatsoever

with Yugoslavia. As a result, neither the applicant's wife nor his son

can be expected to return to Yugoslavia.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 June 1997.

On 11 July 1997 the Commission decided not to apply Rule 36 of

the Commission's Rules of Procedure.

The application was registered on 15 July 1997.

THE LAW

The applicant complains of his expulsion to Yugoslavia, alleging

that neither his wife nor his son 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 applicant's expulsion would separate him

from his wife and son who are both residing in Switzerland. The

Commission accepts, therefore, that the Swiss authorities' refusal to

grant the applicant a residence authorisation interfered 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 4 February 1997, relied on S. 17

para. 2 of the Federal Act on Residence and Domicile of Aliens.

According to this provision, a foreigner has no right to a residence

authorisation if he has breached public order.

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

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

Moreover, when refusing to grant the residence authorisation, the

Swiss authorities considered that the applicant had been convicted of

a narcotics offence. 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 was

"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 of a narcotics offence; moreover,

the Federal Court found in its decision of 4 February 1997 that it was

to be feared that he would again start dealing with drugs.

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

wife, who left Yugoslavia in 1988 when she was 14 years old, must be

familiar with the circumstances in her home country, and that the

applicant's son, born in 1994, is still of an adaptable age. Moreover,

both the applicant and his wife have common nationality. Thus, it is

not excluded that both the applicant's wife and his son could follow

the applicant upon his return to Yugoslavia. If the applicant's wife

wishes to remain in Switzerland, she has the possibility of visiting

the applicant in Yugoslavia; the Federal Court also did not exclude in

its decision that his prohibition to enter Switzerland could be

temporarily suspended in order to allow him to visit his wife.

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 could 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.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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H.U. v. SWITZERLAND

H.U. v. SWITZERLAND

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