Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25161/94

by S. Z.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 30 November 1994, the following members being present:

MM. H. DANELIUS, Acting President

S. TRECHSEL

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 10 September 1994

by S. Z. against Switzerland and registered on 16 September 1994 under

file No. 25161/94;

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, born in 1954, is a Slovenian citizen, having

previously resided in Jona in Switzerland and now apparently residing

in Slovenia. The applicant is married to a citizen of former

Yugoslavia who has been residing in Switzerland where she has the right

to domicile (Niederlassungsbewilligung) since 1968. The couple have

four children, born in 1978, 1980, 1984 and 1986 respectively, who also

have the right to domicile in Switzerland. Before the Commission the

applicant is represented by Mr. M. Bleuler, a lawyer practising in

Basel.

A. Particular circumstances of the case

In 1977 the applicant entered Switzerland with a seasonal

authorisation (Saisonbewilligung). He was expelled on 13 February 1978

for having outstayed the permitted time. Later in 1978 he was again

granted a seasonal authorisation. On 17 June 1978 he married,

whereupon he obtained a residence permit (Aufenthaltsbewilligung).

On 31 August 1981, after the expiration of his residence permit

the Aliens' Police (Fremdenpolizei) of the Canton of St. Gallen ordered

the applicant's expulsion from Switzerland. The decision stated that

the applicant had neglected his financial obligations towards his

family; that he had contravened regulations of the Aliens' Police; and

that he was involved in criminal proceedings.

On 28 May 1985 the See District Court (Bezirksgericht) sentenced

the applicant to 15 months' imprisonment for repeated fraud (Betrug),

theft (Diebstahl), receiving stolen goods (Hehlerei) and drunken

driving (Fahren in angetrunkenem Zustand).

On 18 July 1985 the applicant applied for a new residence permit.

The Aliens' Police of the Canton of St. Gallen decided that his

presence should be tolerated (Toleranzbewilligung) after drawing his

attention to the consequences of any further contraventions of the

Aliens' Police regulations.

In July 1988 the applicant was granted a regular residence

permit.

On 23 February 1990 the Mendrisio Jury Court convicted the

applicant of contraventions of the Narcotics Act (Betäubungsmittel-

gesetz) and drunken driving and sentenced him to imprisonment of three

years and nine months.

While in prison the applicant applied for a prolongation of his

residence permit. On 15 November 1991 the Aliens' Police refused the

request and ordered that the applicant should after his release from

prison be expelled to Slovenia.

The applicant was released on probation on 11 December 1991,

after having served two and a half years of his sentence.

An appeal against the decision of 15 November 1991 was dismissed

on 8 September 1992 by the Council of State (Regierungsrat) of the

Canton of St. Gallen which relied on Section 9 para. 2 subpara. (b) and

Section 10 para. 1 subparas. (a), (b) and (d) of the Federal Act on the

Residence and Domicile of Aliens (Bundesgesetz über Aufenthalt und

Niederlassung der Ausländer, see below, Relevant domestic law).

The applicant's administrative law appeal (Verwaltungsgerichts-

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

9 February 1994.

The Court noted that the applicant had been sentenced to

altogether five years' imprisonment, that his culpability was severe,

and that he had clearly contravened public order within the meaning of

Section 17 para. 2 of the Federal Act on Residence and Domicile of

Aliens (see below Relevant domestic law). Moreover, the applicant had

committed new offences despite an admonition by the Aliens' Police.

While the applicant was not a drug addict himself, the Court noted that

he had brought 1 kg of heroin into Switzerland. It could also not be

said that the applicant had become closely integrated in Switzerland.

The decision continues:

"... his wife has already spent approximately 25 years in

Switzerland. In view of the advanced integration of (his wife)

and the children, who were born and have grown up here, a return

to their home country would imply much bigger difficulties. It

may nevertheless remain open whether they can hardly, as the

previous deciding authority assumed, or not at all, as the

applicant submits, be expected to return. In view of the severe

and repeated offences which the applicant has committed and the

frequent admonitions of the Aliens' Police, the public interest

in the refusal to prolong the residence permit outweighs

necessarily the opposing private interests. In any event, if the

family members do not want to follow the applicant abroad, they

can be expected to continue their relationship by means of mutual

visits, a possibility which also remains for the applicant."

"... seine Ehefrau (lebt) seit rund 25 Jahren in der

Schweiz. Für sie und die hier geborenen und aufgewachsenen Kinder

wäre eine Ausreise ins Heimatland angesichts ihrer

fortgeschrittenen Integration in der Schweiz mit erheblich

grösseren Schwierigkeiten verbunden. Ob ihnen eine Rückkehr, wie

die Vorinstanz annimmt, kaum oder, wovon der Beschwerdeführer

ausgeht, nicht zumutbar ist, kann jedoch offenbleiben. Angesichts

der schweren und wiederholten Straffälligkeit des

Beschwerdeführers und der mehrfachen fremdenpolizeilichen

Warnungen, überwiegen so oder anders die öffentlichen Interessen

an einer Nichtverlängerung der Aufenthaltsbewilligung die

entgegenstehenden privaten Interessen. Es ist der Familie

jedenfalls zumutbar und möglich, sofern die Familienangehörigen

dem Beschwerdeführer nicht ins Ausland folgen wollen, ihre

Beziehungen mittels gegenseitigen Besuchen zu pflegen, eine

Möglichkeit, die auch dem Beschwerdeführer verbleibt."

The Court concluded that the refusal to prolong the applicant's

residence permit was proportionate to the aim pursued, i.e. to maintain

public order.

The Aliens' Police requested the applicant to leave Switzerland

before 31 March 1994. Upon his request the time-limit was extended to

30 April 1994.

In June 1994 and in September 1994 the applicant was permitted

to enter Switzerland for three days to visit his wife and children.

B. Relevant domestic law

Section 9 para. 2, subpara. (b) of the Federal Act on the

Residence and Domicile of Aliens states:

"A residence permit may be revoked:

(b) if a condition attached to it is not fulfilled or the

foreigner's conduct is a ground for serious complaint."

"Die Aufenthaltsbewilligung kann widerrufen werden:

(b) wenn eine mit ihr verbundene Bedingung nicht erfüllt wird

oder wenn das Verhalten des Ausländers Anlass zu schweren

Klagen gibt."

Section 10 para. 1 subparas. (a), (b) and (d) of the Act state:

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

(a) he has been punished by a court for a criminal offence;

(b) it transpires from his behaviour in general or from his

actions that he is not willing or not able to comply with

the order of the guest state; ... [or]

(d) he, or a person for whom he has to care, continuously and

considerably depends on social welfare."

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

(a) wenn er wegen eines Verbrechens oder Vergehens gerichtlich

bestraft wurde;

(b) wenn sein Verhalten im allgemeinen oder seine Handlungen

darauf schliessen lassen, dass er nicht gewillt oder nicht

fähig ist, sich in die im Gaststaat geltende Ordnung

einzufügen: ... [oder]

(d) wenn er oder eine Person, für die er zu sorgen hat, der

öffentlichen Wohltätigkeit fortgesetzt und in erheblichem

Masse zur Last fällt."

Section 17 para. 2 of the Act states, insofar as relevant:

"(i)f the foreigner has the right to domicile, his or her spouse

has the right to obtain, or to have prolonged, a residence

permit, as long as the spouses live together. ... These rights

expire if the entitled person has contravened public order."

"... ist der Ausländer im Besitz der Niederlassungsbewilligung,

so hat sein Ehegatte Anspruch auf Erteilung und Verlängerung der

Aufenthaltsbewilligung, solange die Ehegatten zusammen wohnen.

... Die Ansprüche erlöschen, wenn der Anspruchsberechtigte gegen

die öffentliche Ordnung verstossen hat."

COMPLAINTS

The applicant complains under Article 8 of the Convention that

the refusal to prolong his residence permit will separate him from his

wife and children who have the right to domicile in Switzerland. He

points out that the Mendrisio Jury Court did not order his expulsion

(Landesverweisung) from Switzerland and that his good conduct in prison

led to his provisional release. He also submits that since his release

from prison he has behaved well and was able to assist his wife in

earning a living for the family. If he is expelled from Switzerland

his wife would no longer be able to raise the children and earn a

living.

THE LAW

The applicant complains that the refusal to prolong his residence

permit will separate him from his wife and his children who have the

right to domicile in Switzerland. He relies on Article 8 (Art. 8) of

the Convention which states, insofar as relevant:

"1. Everyone has the right to respect for his ... 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 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).

In the present case, the Commission notes that the applicant's

wife and his children have the right to domicile in Switzerland. By

refusing to prolong the applicant's residence permit, the Swiss

authorities interfered with his right to respect for 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 observes that the Swiss authorities, when refusing

to prolong the applicant's residence permit in Switzerland, relied on

Sections 9 para. 2, 10 para. 1 and 17 para. 2 of the Federal Act on

Residence and Domicile of Aliens. 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 prolong the applicant's residence

permit, the Swiss authorities considered that the applicant had been

convicted of various criminal offences.

In this respect, the Commission notes that the applicant was

convicted of serious offences, in particular of contraventions of the

Narcotics Act, and sentenced to altogether five years' imprisonment.

Moreover, these offences were committed despite an admonition by the

Aliens' Police.

Furthermore, in its decision of 9 February 1994 the Federal Court

carefully balanced the various interests. It considered, on the one

hand, that the applicant's wife and children had the right to domicile

in Switzerland and were fully integrated in Switzerland. On the other

hand, it considered that the applicant constituted a danger to public

order, and that it could not be said that he had become closely

integrated in Switzerland.

The Federal Court also noted that, following his expulsion, the

applicant could visit his family in Switzerland, a possibility of which

he has availed himself in the meantime.

The Commission notes the applicant's submissions that the

Mendrisio Jury Court in its judgment of 23 February 1990 did not order

his expulsion from Switzerland, and that his good conduct in prison led

to his provisional release. However, 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 prolong

the applicant's residence permit was proportionate to the aim pursued,

i.e. to maintain public order.

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

prolong his 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 family life could reasonably be

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

Convention as being "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 Acting President

the Second Chamber of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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S.Z. v. SWITZERLAND

S.Z. v. SWITZERLAND

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