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AS TO THE ADMISSIBILITY OF

Application No. 23810/94

by B.H., T.H., R.H. and R.H.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 11 May 1994, the following members being present:

MM. H. DANELIUS, Acting President

S. TRECHSEL

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

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 8 March 1994 by

B.H., T.H., R.H. and R.H. against Switzerland and registered on

6 April 1994 under file No. 23810/94;

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 applicants are Kosovo Albanians currently residing at Zell

in Switzerland. The first applicant was born in 1967. The second

applicant, his wife, was born in 1965. The third and fourth

applicants, born in 1989 and 1991, respectively, are their children.

As from 1989 the first applicant had the permission to enter, and

reside, in Switzerland as a seasonal worker (Saisonnier). His

permission for the year 1992 ended on 12 December 1992.

The first applicant then filed a request for himself and the

other applicants, claiming special circumstances which warranted

commutation of the seasonal permission to a regular residence

permission (Jahresaufenthaltsbewilligung). This request was refused

on 13 July 1993 by the Federal Aliens' Office (Bundesamt für

Ausländerfragen) on the ground that the applicant had not resided as

a seasonal worker during four consecutive years in Switzerland.

The applicants' further appeal (Beschwerde) was dismissed on

15 June 1993 by the Federal Department of Justice and Police (Eidgenös-

sisches Justiz- und Polizeidepartement). Insofar as the first

applicant invoked Article 8 of the Convention in respect of his

brothers and parents living in Switzerland, the Department found that

the right to respect for family life within the meaning of this

provision did not affect adult children and their relations with their

parents.

The applicants' further administrative law appeal (Verwaltungs-

gerichtsbeschwerde) was dismissed by the Federal Court (Bundesgericht)

on 7 September 1993, the decision being served on the applicants on

15 September 1993. The Federal Court found in particular that the

appeal only concerned the issue whether the first applicant fell into

the category of persons who could claim an exceptional commutation of

the seasonal permission to a regular residence permission, and not

whether the first applicant was entitled to a residence permit as such.

COMPLAINTS

The applicants complain under Article 6 of the Convention of

unfairness of the proceedings, alleging incorrect calculation by the

authorities of the number of imputable years, and that the decisions

were not duly motivated.

The applicants also complain that the refusal to permit them to

reside in Switzerland amounts to a breach of Article 8 of the

Convention as they have no roots and no further family members in

Kosovo, and the first applicant's brothers and parents live in

Switzerland.

The applicants finally claim that they would risk persecution as

political criminals in Kosovo as they have always supported

independence movements, in particular by transferring amounts of money

to a Kosovo Association.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 March 1994.

On 11 March 1994 the Commission decided not to apply Rule 36 of

the Commission Rule's of Procedure.

Following further correspondence with the applicants, the

application was registered on 6 April 1994.

THE LAW

1. The applicants complain under Article 6 (Art. 6) of the

Convention of unfairness of the proceedings. They allege incorrect

calculation of the number of imputable years, and that certain

decisions were not duly motivated.

However, according to the Commission's case-law, a decision as

to whether an alien should be allowed to stay in a country or be

expelled does not involve either the determination of the alien's civil

rights or obligations, or of a criminal charge, within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention (see No. 8118/77, Dec.

19.3.81, D.R. 25 p. 105). In this respect the application is,

therefore, incompatible ratione materiae with the provisions of the

Convention, pursuant to Article 27 para. 2 (Art. 27-2) of the

Convention.

Insofar as the applicants may be understood as complaining under

Article 1 of Protocol No. 7 (P7-1) to the Convention, and even assuming

that this provision applies in the present case, the Commission notes

that the Swiss authorities, in particular the Federal Department of

Justice and Police and the Federal Court, gave reasoned decisions on

the applicants' requests. The Commission finds no indication that in

these proceedings the applicants could not properly explain their own

point of view. It follows that the application, if examined under

Article 1 of Protocol No. 7 (P7-1), is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. a) The applicants complain of the refusal to permit them to

reside in Switzerland. They rely on Article 8 (Art. 8) and,

apparently, also on Article 3 (Art. 3) of the Convention.

b) 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 No. 9203/80, Dec. 5.5.81, D.R. 24 p. 239).

Moreover, expulsion may in exceptional circumstances involve a

violation of the Convention, in particular where there is a serious

fear of treatment contrary to Articles 2 or 3 (Art. 2, 3) of the

Convention in the country to which the person is to be expelled (see

No. 10564/83, Dec. 10.12.84, D.R. 40 p. 263; Eur. Court H.R., Soering

judgment of 7 July 1989, Series A no. 161, p. 32 et seq., para. 81 et

seq.).

c) The applicants complain that the refusal to permit them to reside

in Switzerland amounts to a breach of Article 8 (Art. 8) of the

Convention as they have no roots, and no further family members, in

Kosovo, and the first applicant's brothers and parents live in

Switzerland.

However, the Commission notes that the prohibition to reside in

Switzerland concerns all applicants and does not as such separate the

first applicant, his wife and their children. Moreover, the applicants

who are from Kosovo have not explained why a return to Kosovo would

hinder them in the enjoyment of their right to respect for their family

life within the meaning of Article 8 (Art. 8) of the Convention.

Finally, it has not been shown that in the relations between the first

applicant and his brothers and parents, who live in Switzerland, there

exist elements of dependency, other than the normal emotional ties,

which would involve the protection of Article 8 (Art. 8) of the

Convention.

This part of the application is therefore manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

d) Insofar as the applicants may be understood as relying on Article

3 (Art. 3) of the Convention, they have not shown that they filed a

request for asylum before the Swiss authorities in which they raised

the claims they are now making before the Commission. Thus, they have

not complied with the requirements under Article 26 (Art. 26) of the

Convention as to the exhaustion of domestic remedies, and the

application must in this respect be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

This complaint would in any event also be manifestly ill-founded.

Thus, the applicants have not sufficiently demonstrated that in view

of their support of an independence movement they were ill-treated by

the authorities before they left Kosovo, or that upon their return to

Kosovo they would face a real risk of being subjected to treatment

contrary to Article 3 (Art. 3) 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.H., T.H., R.H. AND R.H. v. SWITZERLAND

B.H., T.H., R.H. AND R.H. v. SWITZERLAND

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