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AS TO THE ADMISSIBILITY OF

Application No. 24377/94

by B. P. and D. P.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 31 August 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 6 June 1994 by

B. P. and D. P. against Switzerland and registered on 13 June 1994

under file No. 24377/94;

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 applicants, may be

summarised as follows.

The first applicant, a Swiss citizen born in 1943, is a social

worker. The second applicant, an Argentinian citizen born in 1962, is

a businessman. The applicants reside at Burgdorf in Switzerland.

Before the Commission they are represented by Mr. W. Egloff, a lawyer

practising in Bern.

Particular circumstances of the case

On 13 February 1991 the Criminal Court (Kriminalkammer) of the

Canton of Bern convicted the second applicant of repeated and

continuing contraventions of the Narcotics Act (Betäubungsmittel-

gesetz), in particular dealing with cocaine, and sentenced him to five

years' imprisonment and expulsion from Switzerland for five years.

While these criminal proceedings were pending, the second

applicant, who had been remanded in custody at Thorberg prison in the

Canton of Bern, met the first applicant who was a social worker there.

They married on 13 September 1991.

On 10 December 1991 the Aliens' Police (Fremdenpolizei) of the

Canton of Bern ordered the applicant's expulsion for an unlimited

period after his release from imprisonment; reference was made to

Section 7 of the Federal Act on the Residence and Domicile of Aliens

(Bundesgesetz über Aufenthalt und Niederlassung der Ausländer, see

below, Relevant domestic law). The applicants' appeal against this

decision was dismissed by the Police Directorate (Polizeidirektion) of

the Canton of Bern on 1 July 1992.

On 24 November 1992 the applicant was conditionally released from

imprisonment; the expulsion pronounced by the Criminal Court was

suspended on probation.

The applicants' administrative law appeal (Verwaltungsgerichts-

beschwerde) against the decision of 1 July 1992 was upheld by the

Administrative Court (Verwaltungsgericht) of the Canton of Bern on

18 January 1993. The Court found that expulsion was an inadequate

measure, quashed the order of 10 December 1991 and referred the case

back to the Aliens' Police which were ordered to grant a residence

permit to the second applicant.

The Aliens' Office then intended to issue a residence permit.

However, on 5 March 1993 the Federal Office for Aliens' Affairs

(Bundesamt für Ausländerfragen) refused to give its consent thereto.

The applicants' appeal against this decision was dismissed on

20 July 1993 by the Federal Department of Justice and Police

(Eidgenössisches Justiz- und Polizeidepartement) which found inter alia

that the applicant's conviction amounted to a "ground of expulsion"

within the meaning of Section 7 para. 1 of the Federal Act on the

Residence and Domicile of Aliens, and that the refusal of a residence

permit appeared proportionate in the circumstances.

The applicants' further administrative law appeal was dismissed

on 28 February 1994 by the Federal Court (Bundesgericht) which found

that the Federal Office for Aliens' Affairs had been competent to

refuse its consent. The Court also found that Section 7 para. 1 of the

Federal Act on the Residence and Domicile of Aliens did not grant a

right to a residence permit in Switzerland if there was a ground for

expulsion within the meaning of Section 10 of the Federal Act on the

Residence and Domicile of Aliens.

When balancing the conflicting interests (Interessenabwägung) the

Court noted that the applicant had been convicted of exceptionally

serious offences. The decision continued:

"It must furthermore be considered that the (first) applicant

only got to know and to marry her husband when he was already

serving his sentence. Even if she would have assumed that she

could live her marriage in Switzerland despite his criminal

conviction, she must at least have been aware that a residence

permit would not be issued easily ... It is correct that the

(first) applicant would encounter difficulties if she had to

follow her husband to his home country in Argentina. It must

also be considered that she has two - albeit adult - children in

Switzerland, and that her mother, who is of a very advanced age,

also lives here. Also from a professional point of view it will

not be easy for her as a social worker to find adequate

employment in Argentina. The social and cultural, but also the

economic living conditions in Argentina are nevertheless not so

different from those in Switzerland that a life for a Swiss woman

in that country would as a matter of course have to be described

as unacceptable ..."

"In Betracht fällt sodann, dass die (Erst-)Beschwerdeführerin

ihren Mann erst kennengelernt und geheiratet hat, als sich dieser

bereits im Strafvollzug befand. Auch wenn sie angenommen haben

mochte, sie könne ihre Ehe trotz der strafrechtlichen

Verurteilung in der Schweiz leben, so musste ihr doch zumindest

bewusst sein, dass eine Aufenthaltsbewilligung nicht ohne

weiteres ausgestellt würde ... Zutreffend ist zwar, dass es für

die (Erst-)Beschwerdeführerin mit Schwierigkeiten verbunden wäre,

ihrem Ehemann in dessen Heimat nach Argentinien zu folgen. Dabei

ist zu berücksichtigen, dass sie in der Schweiz zwei - allerdings

erwachsene - Kinder hat und auch ihre betagte Mutter hier lebt.

Aber auch in beruflicher Hinsicht dürfte es für sie als

Sozialarbeiterin nicht einfach sein, in Argentinien eine

angemessene Beschäftigung zu finden. Dennoch sind die

Lebensverhältnisse in Argentinien in sozialer und kultureller,

aber auch in wirtschaftlicher Hinsicht nicht derart verschieden

von denjenigen, wie sie in der Schweiz bestehen, dass ein Leben

in diesem Land für eine Schweizerin zum vorneherein als

unzumutbar bezeichnet werden müsste ..."

The Court further found that the offences at issue were serious;

however, the more serious the nature of the offences committed, the

less acceptable was the risk of a new criminal offence. The Court

concluded that in the present case the interests of public order and

security prevailed over the interest of the applicants in a residence

permit for the second applicant in Switzerland.

On 12 April 1994 the Federal Office for Aliens' Affairs ordered

the second applicant to leave Switzerland by 31 May 1994.

Relevant domestic law

Section 7 para. 1 of the Federal Act on the Residence and

Domicile of Aliens states, insofar as relevant:

"The foreign spouse of a Swiss citizen has a right to be granted,

or have prolonged, a residence permit ... This right no longer

exists if there is a ground for expulsion."

"Der ausländische Ehegatte eines Schweizer Bürgers hat Anspruch

auf Erteilung und Verlängerung der Aufenthaltsbewilligung ...

Der Anspruch erlischt, wenn ein Ausweisungsgrund vorliegt."

Section 10 para. 1 (a) of the Federal Act states that a foreigner

can be expelled from Switzerland inter alia if he has been punished by

a court for a criminal offence (wegen eines Verbrechens oder Vergehens

gerichtlich bestraft).

COMPLAINTS

The applicants complain under Article 8 of the Convention that

the second applicant has not been granted a residence permit in

Switzerland.

The applicants submit, inter alia with reference to the

Administrative Court's decision of 18 January 1993, that the first

applicant cannot be expected to live in Argentina where she will not

find employment. She also refers to the inferior position of women in

South America; to the dirty air in Buenos Aires where she will suffer

in view of her asthma; to her two children, a grandchild and her mother

residing in Switzerland; and to her political activities in

Switzerland.

The applicants further complain that the measure lacked a legal

basis. Thus, the Administrative Court quashed the second applicant's

expulsion; as a result, the first applicant has a right to a residence

permit within the meaning of Section 7 of the Federal Act on the

Residence and Domicile of Aliens.

Finally, the applicants point out that the second applicant has

changed his ways for which reason the measure is not "necessary" within

the meaning of Article 8 para. 2 of the Convention.

THE LAW

The applicants complain that the refusal to grant the second

applicant a residence permit will separate him from his wife, the first

applicant. They rely 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 applicants are

a married couple, and that the first applicant is a Swiss citizen.

Thus, the second applicant's expulsion from Switzerland interfered with

the applicants' 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

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

Aliens. According to this provision, the second applicant no longer

had a right to a residence permit in view of his conviction of a

criminal offence, the latter constituting a ground for expulsion within

the meaning of Section 10 para. 1 (a) of the Federal 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 refusing to prolong the applicant's residence

permit, the Swiss authorities considered that the second applicant had

been convicted of serious criminal offences. The Commission notes in

particular that he was convicted of contraventions of the Narcotics

Act, in particular dealing with cocaine, and sentenced to five years'

imprisonment.

Furthermore, the applicants married after the second applicant's

conviction, and while he was in prison. They had therefore to expect

that, upon his release from prison, they would have to continue their

married life outside Switzerland.

The Federal Court found in its decision of 28 February 1994 that

the social, cultural and economic living conditions in Argentina are

not so different from those in Switzerland that life for a Swiss woman

in that country would as a matter of course have to be described as

unacceptable.

The first applicant has also not shown in what respect her

mother, her two adult children, or her grandchild, are dependent on

her.

It is true that in the applicants' submissions the second

applicant has meanwhile changed his ways. Reference has also been made

to the Administrative Court's decision of 18 January 1993 which quashed

the decision regarding the second applicant's expulsion. However, the

Commission notes that the Federal Court decided on the applicants' case

in the last resort, after having considered all circumstances of the

case. It found that the more serious the nature of the offences

committed, the less acceptable was the risk of a new offence, and that

the interests of public order and security prevailed over the interest

of the applicants in a residence permit for the second applicant in

Switzerland.

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, which refused a

residence permit, acted unreasonably when balancing the interests

involved.

The Commission therefore considers that the interference with the

applicants' right to respect for 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 Acting President

the Second Chamber of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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B.P. AND D.P. v. SWITZERLAND

B.P. AND D.P. v. SWITZERLAND

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