Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30997/96

by A. H.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 15 May 1996, the following members being present:

MM. H. DANELIUS, President

S. TRECHSEL

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 29 January 1996

by A. H. against Switzerland and registered on 12 April 1996 under file

No. 30997/96;

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, a Lebanese citizen born in 1958, is a painter

residing in Tagelswangen. Before the Commission he is represented by

his wife, Yvonne Hoteit.

A. Particular circumstances of the case

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

summarised as follows.

In 1989 the applicant entered Switzerland where under different

names he filed various requests for asylum. In 1991, after the Federal

Office for Refugees (Bundesamt für das Flüchtlingswesen) had dismissed

the requests, the applicant was expelled to Lebanon.

On 12 November 1991 the applicant married his present wife, a

Swiss citizen, in Lebanon. Thereafter, he obtained a residence permit

(Aufenthaltsbewilligung) from the Canton of Zurich. On 2 March 1992

the applicant returned to Switzerland.

On 28 July 1993 the applicant was remanded in custody on

suspicion of having contravened the Narcotics Act

(Betäubungsmittelgesetz). On 15 April 1994 the Zurich District Court

(Bezirksgericht) sentenced the applicant to two and a half years'

imprisonment on account of various contraventions of the Narcotics Act,

in particular of having dealt with heroin and cocaine. On 27 March

1995 he was released on probation.

Meanwhile, on 16 February 1994 the Police Directorate

(Polizeidirektion) of the Canton of Zurich dismissed the applicant's

request for a prolongation of the residence permit.

An appeal against this decision was dismissed by the Government

(Regierungsrat) of the Canton of Zurich on 5 April 1995. In its

decision, the Government found, inter alia, that doubts arose as to the

intensity of the applicant's marriage since he himself had admitted

having had a relationship with another person. Moreover, the

applicant's parents and his seven brothers and sisters lived in

Lebanon. The applicant had married his wife in Lebanon, and she had

visited his family there. His wife could be expected to follow the

applicant, particularly since he had explained that he wished to travel

to a third country.

The applicant and his wife filed an administrative law appeal

(Verwaltungsgerichtsbeschwerde) which the Federal Court (Bundesgericht)

dismissed on 25 July 1995. In its decision, the Court relied on

Section 7 para. 1 and Section 10 para. 1 subpara. (a) of the Federal

Act on the Residence and Domicile of Aliens (Bundesgesetz über

Aufenthalt und Niederlassung der Ausländer; see below, Relevant

domestic law). The Court considered that there was a considerable

public interest in removing the applicant from Switzerland as he had

committed serious offences, and as there was a danger that he would

commit new offences. The Court continued:

"he has not been long in Switzerland. After the applicant was

lawfully permitted to stay here in view of his marriage, he

committed a criminal offence already after eleven months'

residence. Professionally he is not particularly integrated; his

criminal convictions did not facilitate this. Both applicants

have themselves stated that they had hardly any close contacts

in Switzerland with the exception of the wife's family members.

The possibility to be supported by a family is also open to her

in Lebanon, as the applicant's family lives there. Thus, only

the applicant's relationship with his wife is an important

connection with Switzerland. Even if she could support him, it

must nevertheless be considered that his marriage did not stop

him from committing criminal offences. A new element is the fact

that the second applicant is in her late pregnancy, i.e. she

expects a child from her husband in early July 1995. It is

unknown whether the child has meanwhile been born. The personal

relations with Switzerland may thereby have become somewhat more

dense, but on balance it is not decisive. ...

The pregnancy and the birth of a child, respectively, may

increase the difficulties of a departure, but they do not render

it impossible. For instance, it is not excluded that the second

applicant, before following her husband abroad, waits until she

has recovered from birth. For the rest, the cantonal authorities

can take these circumstances into consideration when determining

the date of departure, which must in any event be newly decided.

Even if the second applicant could not be expected to leave

Switzerland, this would not in the end decisively affect the

balancing of interests. The first applicant should already

earlier on have considered that he bears a responsibility towards

his wife and any - at that time future - children."

"(es handelt) sich nicht um eine lange hiesige Anwesenheit.

Nachdem der Beschwerdeführer sich infolge seiner Heirat

rechtmässig hier aufhalten durfte, wurde er bereits nach nur

elfmonatiger Anwesenheit straffällig. Beruflich scheint er nicht

fest integriert zu sein, wobei er sich dies durch seine

Straffälligkeit auch nicht erleichtert hat. Beide

Beschwerdeführer haben sodann selbst ausgesagt, in der Schweiz

abgesehen von den Familienmitgliedern der Ehefrau kaum enge

Kontakte zu pflegen. Die Möglichkeit zu familiärem Rückhalt

eröffnet sich für sie aber auch im Libanon, lebt dort doch die

Familie des Beschwerdeführers. Somit stellt einzig die Beziehung

zur Ehefrau einen wichtigen Bezugspunkt des Beschwerdeführers zur

Schweiz dar. Selbst wenn sie ihm eine Stütze sein könnte, ist

doch zu beachten, dass ihn auch die Ehe nicht an seiner

Delinquenz gehindert hat. Neu kommt nunmehr dazu, dass die

Beschwerdeführerin hochschwanger ist beziehungsweise auf Anfang

Juli 1995 von ihrem Mann ein Kind erwartet hat. Ob dieses

inzwischen geboren wurde, ist nicht bekannt. Die persönlichen

Beziehungen zur Schweiz mögen sich dadurch etwas verdichtet

haben, entscheidend ins Gewicht fällt dies aber auch nicht ...

Die Schwangerschaft beziehungsweise die Geburt eines Kindes

mögen die Schwierigkeiten einer Ausreise vergrössern, sie

verunmöglichen sie aber nicht. So ist nicht ausgeschlossen, dass

die Beschwerdeführerin, bevor sie dem Ehemann ins Ausland

nachfolgt, noch so lange zuwartet, bis sie sich von der Geburt

erholt hat. Im übrigen können die kantonalen Behörden diesen

Umständen allenfalls auch bei der Festlegung der Ausreisefrist,

die gemäss dem angefochtenen Entscheid ohnehin neu zu bestimmen

ist, Rechnung tragen. Selbst wenn eine Ausreise der

Beschwerdeführerin aber unzumutbar wäre, würde dies die

Interessenabwägung im Ergebnis nicht entscheidend beeinflussen.

Der Beschwerdeführer hätte sich bereits früher darüber klar

werden können, dass er seiner Frau und seinen allfälligen - aus

damaliger Sicht künftigen - Kindern gegenüber Verantwortung

trägt."

On 28 July 1995 the applicant's wife gave birth to a child, a

boy, at Winterthur in Switzerland.

The applicant's request for reopening the Federal Court

proceedings was dismissed by the Federal Court on 10 November 1995.

B. Relevant domestic law

Article 7 para. 1 of the Federal Act on Residence and Domicile

of Aliens states:

"The foreign spouse of a Swiss citizen is entitled to be

granted, or have prolonged, a residence permit ... This

entitlement ceases when there is a ground for expulsion."

"Der ausländische Ehegatte eines Schweizer Bürgers hat

Anspruch auf Erteilung und Verlängerung der Aufenthalts-

bewilligung ... Der Anspruch erlischt, wenn ein Ausweisungsgrund

vorliegt."

According to Article 5 para. 1 of the Act, the residence permit

is always limited in time (ist stets befristet). Article 10 para. 1

of the Act states:

"A foreigner may be expelled from Switzerland ... only if:

(a) he has been punished by a court for a crime or offence;"

"Der Ausländer kann aus der Schweiz ... nur ausgewiesen

werden:

(a) wenn er wegen eines Verbrechens oder Vergehens gerichtlich

bestraft wurde;"

COMPLAINTS

The applicant complains under Article 8 of the Convention that

the authorities refused to prolong his residence permit. He submits

that they relied solely on the sentence of two and a half years which

he received. His personal circumstances, for instance his reduced

culpability and his integration in Switzerland, were not considered.

After his release he has behaved well.

The applicant points out that he has a child. The matrimonial

relationship continued while he was in prison; his wife visited him

regularly, and after his release, he again lived together with her.

The applicant submits that his wife could not integrate in

Lebanon. She was not responsible for the applicant's conviction, and

residence in Lebanon would be extremely complicated for her. She would

lose her employment in Switzerland. She could not be expected to live

with a baby in a country which has been destroyed by war, the language

of which she does not speak, and to the culture of which she has no

attachment. The applicant's wife only saw his family members once,

i.e. upon marriage. On the other hand she has strong roots in

Switzerland where her brother and parents live who assist her with

their child. In the long run, it would be very painful for the child

to be without the father.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 January 1996.

On 6 February 1996 the Acting President decided not to apply Rule

36 of the Commission's Rules of Procedure.

The application was registered on 12 April 1996.

THE LAW

The applicant complains under Article 8 (Art. 8) of the

Convention that his residence permit has not been prolonged and that

he will therefore be separated from his wife. Article 8 (Art. 8)

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.

However, 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 private and family life guaranteed in Article 8 para. 1

(Art. 8-1) of the Convention (see Eur. Court H.R., Moustaquim judgment

of 18 February 1991, Series A, no. 193, p. 18, para. 36; No. 9203/80,

Dec. 5.5.81, D.R. 24, p. 239).

The present applicant is married to a Swiss citizen. Thus the

refusal to prolong his residence permit interfered with his right to

respect for 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 will thereby take into

account that it would raise difficulties for the applicant's wife to

follow him to Lebanon.

The Commission observes that the Swiss authorities, when refusing

to grant the applicant a new residence permit, relied on Sections 7

and 10 of the Federal Act on the Residence and Domicile of Aliens.

According to these provisions, the applicant as the spouse of a Swiss

citizen no longer had a right to a residence permit in view of his

conviction of a criminal offence which constituted a ground for

expulsion. 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 applicant a new residence

permit, the Swiss authorities considered that the applicant had been

convicted of serious offences. The Commission notes in particular that

he was convicted of contraventions under the Narcotics Act and

sentenced to imprisonment of altogether two and a half years. The

interference was therefore imposed "for the prevention of crime" within

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

Furthermore, in its decision of 25 July 1995 the Federal Court

carefully balanced the various interests involved. It considered, on

the one hand, that apart from the applicant's marriage to a Swiss

citizen, he had no contacts with Switzerland. On the other hand, it

considered that the applicant had committed serious criminal offences

and that his departure from Switzerland was in the public interest.

It is true that the applicant claims to have behaved well since

his release from prison. However, the Commission notes that the

Federal Court decided on the applicant's case in the last resort, and

after having considered all circumstances of the case. It concluded

that the refusal to grant the applicant a new residence permit served

the purpose of removing him from Switzerland.

Moreover, the present case differs from the Beldjoudi case (Eur.

Court H.R., judgment of 26 March 1993, Series A no. 234-A) in that the

present applicant was not born in Switzerland; that his stay in

Switzerland was comparatively short; and that the period of marriage

spent together with his wife was also comparatively short.

Finally, the domestic authorities considered that the applicant

had a large family in Lebanon - his parents as well as seven brothers

and sisters - who could assist the applicant's wife and their child,

which is still of an adaptable age, if they settled in Lebanon. The

Commission also notes the decision of the Government of the Canton of

Zurich of 5 April 1995 according to which the applicant had stated that

he and his wife wished to travel to a third country, rather than

returning to Lebanon.

Taking into account the margin of appreciation which is left to

Contracting States in such circumstances (see Eur. Court H.R., Berrehab

judgment of 21 June 1988, Series A no. 138, p. 15, para. 28), the

Commission does not find that the Swiss authorities, when refusing to

grant the applicant a new residence permit, acted unreasonably in

balancing the various interests involved.

The Commission therefore considers that the interference with the

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

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 disorder or 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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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A.H. v. SWITZERLAND

A.H. v. SWITZERLAND

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