Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24080/94

by I. P.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 29 June 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 17 March 1994 by

I. P. against Switzerland and registered on 3 May 1994 under file

No. 24080/94;

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 1961 and of Serb origin, is a national of

former Yugoslavia residing at Chur in Switzerland. He is represented

by Mr H.-M. Allemann, a lawyer practising in Chur.

In 1988 the applicant married M.D., a national of former

Yugoslavia of Bosnian origin. M.D. had been granted the right to

domicile (Niederlassungsbewilligung) in Switzerland since 1984. In

1988 the applicant joined his wife in Switzerland where he obtained a

residence permit (Aufenthaltsbewilligung).

On 25 May 1989 the Davos District Court (Kreisgericht) convicted

the applicant of attempted compulsion to an indecent act (Nötigung zu

einer unzüchtigen Handlung) and sentenced him to three months'

conditional imprisonment. The offence had been committed under the

influence of alcohol. As a result of the conviction, the Aliens'

Police issued a disciplinary admonition (Verwarnung).

On 12 March 1990 the Cantonal Court (Kantonsgericht) of the

Canton of Graubünden convicted the applicant of rape (Notzucht) and of

having committed bodily harm (einfache Körperverletzung) and sentenced

him to two and a half years' imprisonment. The offences had been

committed under the influence of alcohol. The Court also revoked the

suspensive effect of the previous sentence and ordered the applicant's

banishment (Landesverweisung) from Switzerland for ten years.

On 16 April 1991 the Government (Regierung) of the Canton of

Graubünden decided in application of Article 38 of the Swiss Penal Code

provisionally to release the applicant from prison. It further

suspended the applicant's expulsion from Switzerland for a probationary

period of three years and ordered him to submit to an alcohol

withdrawal treatment. In its decision the Government referred to the

applicant's excellent conduct in prison; it also considered that the

case-file did not demonstrate that the applicant's presence constituted

a danger to public security.

The applicant then applied for a prolongation of his residence

permit. This was refused by the Aliens' Police (Fremdenpolizei) of the

Canton of Graubünden on 14 May 1991 and, upon appeal, by the Department

of Justice, Police and Health (Justiz-, Polizei und Sanitätsdeparte-

ment) of the Canton of Graubünden on 16 August 1991. The latter

referred inter alia to the fact that both offences had been committed

under the influence of alcohol, and that the applicant had already in

Yugoslavia unsuccessfully undergone treatment against alcoholism.

The applicant's further appeal was dismissed by the Government

of the Canton of Graubünden on 4 February 1992. Insofar as the

applicant complained of a contradiction in that the Government of the

Canton of Graubünden, in its decision of 16 April 1991, had found that

the applicant did not constitute a danger to public security, the

Government found that those proceedings had concerned the applicant's

criminal conviction, whereas in the present proceedings the Aliens'

Police was considering a threat to public order and security.

The applicant then filed an administrative law appeal

(Verwaltungsgerichtsbeschwerde) which the Federal Court (Bundesgericht)

dismissed on 24 January 1994.

The Federal Court considered that the applicant had been

sentenced to altogether two and three quarter years' imprisonment, that

his culpability was severe, and that he had clearly contravened public

order within the meaning of Section 17 para. 2, last sentence of the

Federal Act on Residence and Domicile of Aliens (Bundesgesetz über

Aufenthalt und Niederlassung der Ausländer). According to this

provision the entitlement of a foreigner to a prolongation of his

residence permission will expire if he breaches public order (gegen die

öffentliche Ordnung verstösst).

The Federal Court noted that the applicant had committed the

second offence during the probation period following his first

conviction, and in spite of an admonition of the Aliens' Police. The

Court found that with his inclination to violence the applicant

constituted a continuing danger to public order. The decision states:

"On the other hand, the applicant's wife has already spent nine

years in Switzerland. In view of her advanced integration in

Switzerland a return would imply much bigger difficulties. The

applicant is of Serb origin; the family of his wife apparently

lives in Bosnia. Apparently the relations with the family have

been broken on account of her marriage with the applicant. The

couple are not obliged to travel to Bosnia and furthermore do not

depend on these family relations; the family situation is

therefore not relevant. The decisive point is rather that the

wife also stems from former Yugoslavia, and that the conditions

there are not completely alien to her. She can therefore be

expected to return. In this connection, the present situation

of civil war is not directly pertinent: rather, it will become

relevant in case the applicant's removal must be ordered and

executed."

"Anderseits weilt seine Ehefrau seit über neun Jahren in der

Schweiz. Für sie ist eine Rückkehr angesichts ihrer

fortgeschrittenen Integration in der Schweiz mit erheblich

grösseren Schwierigkeiten verbunden. Der Beschwerdeführer ist

serbischer Herkunft; die Familie seiner Frau soll ... in Bosnien

leben. Die Beziehungen zur Familie seien, angeblich wegen ihrer

Heirat mit dem Beschwerdeführer, abgebrochen worden. Da die

Ehegatten nicht nach Bosnien ausreisen müssen und ausserdem auf

diese familiären Beziehungen auch nicht angewiesen sind, ist die

familiäre Situation nicht ausschlaggebend. Entscheidend ist

vielmehr, dass die Ehefrau ebenfalls aus dem ehemaligen

Jugoslawien stammt und ihr die dortigen Verhältnisse nicht völlig

fremd sind. Eine Rückkehr ist ihr daher zumutbar. Die aktuelle

Bürgerkriegssituation ist in diesem Zusammenhang nicht

unmittelbar massgeblich; sie ist vielmehr für die Anordnung oder

den Vollzug einer allfälligen Wegweisung des Beschwerdeführers

von Belang."

The Aliens' Police requested the applicant to leave Switzerland

before 31 March 1994.

COMPLAINTS

The applicant complains under Article 8 of the Convention that

his expulsion from Switzerland will separate him from his wife who has

the right to domicile in Switzerland. The applicant submits that upon

his return he would have to serve in the Serb army and would therefore

be prevented from leaving former Yugoslavia for a long period of time.

The applicant points out that his good conduct in prison led to

his provisional release, and that the Government of the Canton of

Graubünden, in its decision of 16 April 1991, found that the applicant

did not constitute a danger to public security. Thus, the reasons for

expulsion could not be urgent. He also submits that he has overcome

his alcohol problems by submitting to treatment against alcoholism

(Antabuskur).

The applicant further submits that his wife has completely

distanced herself from her family in former Yugoslavia, and no ties

whatsoever remain. She has integrated in Switzerland, speaks German

well and cannot be expected to return.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 March 1994.

On 23 March 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 3 May 1994.

THE LAW

The applicant complains that the refusal to prolong his residence

permit will separate him from his wife who has 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 has been permitted to establish domicile in Switzerland where she

lawfully resides. Thus, the applicant's expulsion from Switzerland

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

Section 17 para. 2, last sentence, 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 criminal offences and that his continuing presence in

Switzerland constituted a danger to public order.

In this respect, the Commission observes in particular that the

applicant was convicted of serious offences, namely of attempted

compulsion to an indecent act and of rape. The second offence was

committed during the probation period following his first conviction

and in spite of an admonition of the Aliens' Police. The applicant was

sentenced altogether to two and three quarter years' imprisonment.

It is true that the applicant submits that he has meanwhile

submitted to a treatment against alcoholism. However, in its decision

of 16 August 1991 the Department of Justice, Police and Health of the

Canton of Graubünden found that the applicant had already in Yugoslavia

unsuccessfully undergone treatment against alcoholism.

The Commission further notes the Federal Court's decision of

24 January 1994 according to which the applicant's wife is a citizen

of former Yugoslavia. As she does not depend on any family relations,

she is not obliged to travel to Bosnia.

Before the Commission the applicant has furthermore not

sufficiently explained in what respect the Federal Court was wrong in

finding that the conditions in former Yugoslavia would not be alien to

his wife.

It is true that the applicant also submits that the Swiss

authorities contradicted themselves. Thus, the Government of the

Canton of Graubünden in its decision of 16 April 1991 originally found

that the applicant did not constitute a danger to public security.

The Commission notes that the Federal Court decided on the

applicant's case in last resort, after having considered all

circumstances. It found that the applicant's inclination to violence

constituted a continuing danger to public order and outweighed any

difficulties which the applicant's wife would encounter upon her

return. 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 achieved an

improper balance between the interests involved.

The Commission therefore considers that the interference with the

applicant's right to respect for family life was justified under this

provision 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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I.P. v. SWITZERLAND

I.P. v. SWITZERLAND

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