Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24545/94

by D. O.

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

D. O. against Switzerland and registered on 6 July 1994 under file

No. 24545/94;

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, an Italian citizen born in 1966 in Italy, is a

labourer residing at Feuerthalen in Switzerland. Before the Commission

he is represented by Mr. H.R. Gantenbein, a lawyer practising at Buchs

in Switzerland.

I.

The applicant passed his early childhood in Switzerland with his

parents. From 1972 until 1980 he lived with his grandparents in Italy

where he went to school.

In 1980 he went to Switzerland where he went to school in

Feuerthalen and visited German language courses. From 1983 until 1985

he visited a vocational school for immigrants. From 1985 until 1990

he undertook various jobs. The applicant has the right to domicile

(Niederlassungsbewilligung) in Switzerland.

II.

The applicant has been convicted of various criminal offences and

has been sentenced to altogether 46 months' imprisonment.

On 4 May 1987 the applicant was convicted by the Zurich Court of

Appeal (Obergericht) inter alia of repeated theft and fraud and

sentenced to 14 days' imprisonment on probation.

On 3 June 1987 the Andelfingen District Prosecutor's Office

(Bezirksanwaltschaft) issued a penal order (Strafbefehl), sentencing

the applicant to 30 days' imprisonment on probation for dealing with

impounded goods.

On 12 November 1987 the Police Directorate (Polizeidirektion) of

the Canton of Zurich issued a warning, threatening the applicant with

expulsion.

On 18 February 1988 the Cantonal Court (Kantonsgericht) of the

Canton of Schaffhausen sentenced the applicant to six months'

imprisonment inter alia on account of repeated theft.

On 3 March 1988 the Cantonal Court repealed the probation granted

in respect of the sentence of 3 June 1987, and prolonged the probation

period by one year in respect of the sentence of 4 May 1987.

On 17 November 1988 the Aliens' Police (Fremdenpolizei) again

issued a warning to the applicant.

On 7 May 1992 the Cantonal Court of the Canton of Schaffhausen

sentenced the applicant to two years' imprisonment inter alia on

account of professional theft and repeated and attempted fraud. It

also repealed the probation granted in respect of the sentence of

4 May 1987.

On 10 July 1992, the St. Gallen police, upon instruction of the

Aliens' Police, questioned the applicant in view of his possible

expulsion from Switzerland.

On 27 August 1992 the Office of the Investigating Judge (Unter-

suchungsrichteramt) of the Canton of Schaffhausen issued a penal order,

sentencing the applicant to 21 days' imprisonment on account of theft.

III.

On 7 July 1993 the Council of State (Regierungsrat) of the Canton

of Zurich ordered the applicant's expulsion from Switzerland for a

period of 10 years. Reference was made in particular to Section 10

para. 1 of the Federal Act on the Residence and Domicile of Aliens

(Bundesgesetz über Aufenthalt und Niederlassung der Ausländer).

According to this provision, a foreigner may be expelled from

Switzerland if a court has convicted him of an offence, or if his

conduct permits the conclusion that he is not willing, or able, to

adhere to the Swiss legal order.

In its decision the Council of State noted that the applicant's

criminal culpability (strafrechtliches Verschulden) was serious. There

was a considerable public interest in his expulsion as he had committed

new offences while on probation. The applicant's offences had become

more serious with his age. According to his own submissions, the

relationship with his parents was not particularly good, and he was not

allowed to live in their flat. He also had no friends. On the other

hand, he had stated that he had relatives in Italy. The Council of

State concluded that the prospects for him to start an orderly life

were not worse in Italy than in Switzerland.

The applicant's administrative law appeal (Verwaltungsgerichts-

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

18 April 1994.

In its decision the Court noted that the applicant had been

sentenced to imprisonment of altogether 46 months, and that he had

twice been warned by the Aliens' Police. He had nevertheless continued

to commit criminal offences. Reference was made in particular to the

last offence which was committed while he was on leave from prison.

The Court further considered that the measure was proportionate as the

applicant could be expected to return to Italy where he had spent a

considerable part of his youth.

On 20 June 1994 the Aliens' Police ordered the applicant to leave

Switzerland before 30 June 1994.

COMPLAINTS

Under Article 8 of the Convention the applicant complains of his

expulsion to Italy. He submits that he has served his prison sentence

and there is no longer a public interest which outweighs his private

interests in family life. The applicant's relatives, i.e. his parents,

three uncles and an aunt, all live in Switzerland; no relatives live

in Italy, his grandparents having died. He speaks Swiss dialect, and

nothing indicates that he is Italian. The applicant considers himself

a "second generation immigrant". He finds his situation similar to

that in the Moustaquim case (Eur. Court H.R, judgment of

18 February 1991, Series A no. 193) in that he committed most of his

offences between 18 and 25 years of age.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 June 1994.

On 14 June 1994 the President of the Commission decided not to

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

Following further correspondence with the applicant, the

application was registered on 6 July 1994.

THE LAW

The applicant complains that in view of his family ties his

expulsion from Switzerland to Italy would breach his rights under

Article 8 (Art. 8) of the Convention. This provision 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 examining such cases the Commission must first consider

whether a sufficient link exists between the relatives concerned as to

give rise to the protection of "family life" within the meaning of

Article 8 (Art. 8) of the Convention. Generally, family life exists

when there are cohabiting dependents such as parents, spouses and their

dependent, minor children. Whether family life extends to other

relationships depends on the circumstances of the particular case (see

No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).

In the present case, it is true that the applicant's parents,

three uncles and an aunt, reside in Switzerland. On the other hand,

the Commission notes that the applicant is meanwhile 28 years old, and

there is no evidence of any dependence, involving more than the normal,

emotional ties.

The Commission need nevertheless not determine this issue since,

even if there was an interference with the applicant's right to respect

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

the Convention, it would be justified under Article 8 para. 2

(Art. 8-2) of the Convention.

The Commission observes that the Swiss authorities, when deciding

to expel the applicant, relied on Section 10 para. 1 of the Federal Act

on the Residence and Domicile of Aliens (Bundesgesetz über Aufenthalt

und Niederlassung der Ausländer). According to this provision, a

foreigner may be expelled from Switzerland if a court has convicted him

of an offence, or if his conduct permits the conclusion that he is not

willing, or able, to adhere to the Swiss legal order. The interference

complained of 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 there was a considerable public interest

in his expulsion. He had been convicted of various criminal offences

and sentenced to altogether 46 months' imprisonment.

Furthermore, the Swiss authorities found that the applicant could

be expected to return to Italy where he had spent a considerable part

of his youth. The Commission notes in this respect that the applicant

speaks Italian and that he lived from 1972 until 1980 in Italy where

he went to school.

In this respect the present case differs from the Moustaquim

case, invoked by the applicant. The applicant in that case could not

be expected to return to Morocco inter alia as he had received all his

schooling in Belgium (Eur. Court H.R., loc. cit., p. 19, para. 45).

The present case also differs in that Moustaquim committed the offences

at issue as an adolescent, whereas the present applicant committed most

of the offences between 18 and 25 years, and some even thereafter.

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 interests

involved.

The Commission therefore considers that the interference with the

applicant's 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 the Acting President of the

Second Chamber Second Chamber

(K. ROGGE) (H. DANELIUS)

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D.O. v. SWITZERLAND

D.O. v. SWITZERLAND

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