Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27269/95

by Hasan DOYMUS

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 28 June 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

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 9 March 1995 by

Hasan Doymus against Switzerland and registered on 5 May 1995 under

file No. 27269/95;

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

summarised as follows.

The applicant, a Turkish citizen born in 1969, is a labourer

residing at Lenzburg in Switzerland. Before the Commission he is

represented by Mr. U. Oswald, a lawyer practising at Zurzach in

Switzerland.

The applicant came to Switzerland in 1976 to join his parents,

who are Turkish citizens. Subsequently, he went to school in

Switzerland. He obtained a permission to establish domicile (Nieder-

lassungsbewilligung) in Switzerland.

On 27 September 1989 the Aarau District Court (Bezirksgericht)

sentenced the applicant to six years' imprisonment on account of having

contravened the Narcotics Act (Betäubungsmittelgesetz) and also ordered

his expulsion from Switzerland for a period of 15 years. Upon appeal,

the Court of Appeal (Obergericht) of the Canton of Aargau on

6 June 1990 reduced the sentence to four and a half years'

imprisonment.

On 3 May 1991 the Department of the Interior of the Canton of

Aargau ordered the applicant to leave Switzerland for an undetermined

period of time. His appeal was dismissed by the Government

(Regierungsrat) of the Canton of Aargau on 21 September 1992; in its

decision it was pointed out that the applicant was still living with

his parents.

Meanwhile, the Justice Division (Justizabteilung) of the

Department of the Interior ordered the applicant's suspended release

from imprisonment on 3 July 1991, though it did not suspend the

applicant's expulsion from Switzerland. His appeal against this

decision was upheld on 15 November 1991 by the Administrative Court

(Verwaltungsgericht) of the Canton of Aargau.

The applicant's administrative law appeal (Verwaltungsgerichts-

beschwerde) against the decision of the Government of the Canton of

Aargau was dismissed by the Federal Court on 21 October 1994, the

decision being served on the applicant on 10 November 1994.

In its decision the Court found that Section 10 para. 1 (a) of

the Act on Residence and Domicile of Aliens (Bundesgesetz über

Aufenthalt und Niederlassung der Ausländer) envisaged expulsion of a

person who had been convicted by a court of a criminal offence.

According to Section 11 para. 3 of the Act, expulsion could only be

pronounced if it appeared proportionate (angemessen). Section 16 of

the Ordinance to the Act stated that when deciding on the expulsion the

length of time spent in Switzerland had to be considered as well as the

disadvantages arising for the person's family.

The Court further found that between 1987 and 1988 the applicant

had dealt with heroin. The length of the prison sentence indicated

that the applicant's criminal culpability was serious. The security

police therefore had a considerable interest (sicherheitspolizeiliches

Interesse) in keeping the applicant away from Switzerland. The

decision continues:

"In the applicant's case ... it must be considered that he has

not at all entirely integrated into Swiss society. It transpires

from the decision of the Court of Appeal that he moves mainly in

circles of Turkish and Kurdish immigrants. Every one to two

years, recently every year, he has spent his holidays in Turkey.

Until his arrest he had a girlfriend in Turkey who regularly

wrote to him. He also has a relationship to an aunt living

there. It is not credible that the applicant no longer speaks

his mother tongue; he spent at least the first six years of his

life in Turkey, his father cannot speak German, and he mainly

communicates with his countrymen. It is true that the parents

and siblings live in Switzerland. However, the applicant has

today reached an age where these family ties diminish and he must

in any event stand on his own feet. Even if it involves

considerable difficulties, it cannot completely be regarded as

unreasonable that he returns to his home country and lives

there."

"Beim Beschwerdeführer ist ... in Rechnung zu stellen, dass er

keineswegs vollständig in die schweizerische Gesellschaft

integriert ist. Wie aus dem obergerichtlichen Urteil hervorgeht,

bewegte er sich hauptsächlich in Kreisen türkischer und

kurdischer Emigranten. Die Ferien verbrachte er alle ein bis

zwei Jahre, in der letzten Zeit jährlich, in der Türkei. Bis zu

seiner Verhaftung hatte er eine Freundin in der Türkei, welche

ihm regelmässig schrieb. Beziehungen bestehen auch zu einer dort

wohnhaften Tante. Dass der Beschwerdeführer seine Muttersprache

nicht mehr beherrschen würde, ist nicht glaubhaft, da er

zumindest die ersten sechs Lebensjahre in der Türkei verbracht

hatte, sein Vater nicht deutsch spricht und er überhaupt

vorwiegend mit eigenen Landsleuten verkehrte. Was die Familie

betrifft, leben zwar Eltern und Geschwister in der Schweiz. Der

Beschwerdeführer ist aber in einem Alter, in welchem diese

familiären Bindungen abnehmen und er ohnehin auf eigenen Füssen

stehen muss. Es ist für ihn, wenn auch mit erheblichen

Schwierigkeiten verbunden, so doch nicht unzumutbar, in seinen

Heimatstaat zurückzukehren und dort zu leben."

The applicant was ordered to leave Switzerland by the end of

March 1995.

COMPLAINTS

The applicant complains that his expulsion to Turkey would breach

Article 8 of the Convention. He has done all his schooling in

Switzerland, and his relatives live here. He speaks Swiss German. He

would lose his entire social network, as he has no longer any contacts

or ties with Turkey. He cannot therefore be expected to remain abroad.

The applicant refers to the Convention organs' case-law, inter alia to

the cases of Moustaquim and Beldjoudi (see Eur. Court H.R., Series A

nos. 193 and 234-A).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 March 1995.

On 15 March 1995 the President of the Commission decided not to

apply Rule 36 of the Commission's Rules of Procedure.

The application was registered on 5 May 1995.

THE LAW

The applicant complains, with reference to the Convention organs'

case-law, that his expulsion to Turkey would breach Article 8 (Art. 8)

of the Convention. He would lose his entire social network, as he has

no longer any contacts or ties with Turkey.

Article 8 (Art. 8) of the Convention 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 and 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; No. 9478/81, Dec. 8.12.81, D.R. 27

p. 243).

In the present case the issue arises whether there was family

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

Convention. The applicant, who is now 26 years old, has merely

submitted, without closer substantiation, that his relatives all live

in Switzerland. Having regard to the decisions of the Swiss

authorities, it transpires that the applicant has siblings in

Switzerland and that he lived with his parents at least until the end

of 1992.

The Commission need nevertheless not resolve this issue. Thus,

even if the decision of the Swiss authorities to expel the applicant

amounted to an interference with the applicant's right to respect for

his private and family life within the meaning of Article 8 para. 1

(Art. 8-1) of the Convention, such interference would be justified

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

The Commission observes that the Swiss authorities, in particular

the Federal Court in its decision of 21 October 1994, when deciding to

expel the applicant, relied on Sections 10 and 11 of the Act on

Residence and Domicile of Aliens, as well as on Section 16 of the

Ordinance to this Act. 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 deciding to expel the applicant, the Swiss

authorities considered that he had been convicted of a serious offence.

The Commission notes in particular that he was convicted of

contravening the Narcotics Act and, upon appeal, sentenced to four and

a half years' imprisonment. 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 21 October 1994 the Federal Court

carefully balanced the various interests involved. It considered on

the one hand that the applicant had not at all integrated into Swiss

society; that he moved mainly in circles of Turkish and Kurdish

immigrants; and that he spent most of his holidays in Turkey where he

also had an aunt and a girlfriend. On the other hand, the Court

considered that the ties with his family had diminished.

The Commission furthermore 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 decision to expel

the applicant was necessary in order to maintain public security.

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 deciding to

expel the applicant, acted unreasonably in balancing the various

interests involved.

The Commission therefore considers that any interference with the

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

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

it could reasonably be considered "necessary in a democratic society"

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

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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DOYMUS v. SWITZERLAND

DOYMUS v. SWITZERLAND

LEXI