Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20301/92

by M.B. and F.B.

against Switzerland

The European Commission of Human Rights sitting in private on

7 May 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 21 May 1992 by

M.B. and F.B. against Switzerland and registered on 16 July 1992 under

file No. 20301/92;

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 parties, may be

summarised as follows.

The first applicant is a Turkish citizen born in 1968, currently

without a profession. The second applicant, a Turkish citizen born in

1968, is a housewife. The applicants are a married couple. It appears

that they are currently residing in Germany. Before the Commission the

applicants are represented by Mr. Jürg Walker, a lawyer practising at

Pratteln in Switzerland.

Asylum proceedings concerning the first applicant

The first applicant entered Switzerland on 22 April 1987

whereupon he filed a request for asylum, claiming that he was a Kurd

and had been beaten by the Turkish police. Later he claimed that in

Turkey he had had to flee from the authorities as he had been active

for the PKK political party.

On 8 September 1987 the Delegate for Refugees (Delegierter für

das Flüchtlingswesen) refused the first applicant's request for asylum

and ordered his expulsion.

The first applicant's appeal against this decision was dismissed

on 25 September 1991 by the Federal Department of Justice and Police

(Eidgenössisches Justiz- und Polizeidepartement) which found that the

first applicant's statements were contradictory and therefore not

credible.

On 6 January 1992 the first applicant married the second

applicant. On 31 January 1992 their daughter, H., was born.

Asylum proceedings concerning the second applicant and her family

Mr. Z.A. and Mrs. Y.A. are the second applicant's parents. They

have several children, among them Musa, Ayse, Deniz, Elif and the

second applicant.

Mr. Z.A. has resided since 1987 in Switzerland, where he filed

a request for asylum; Mrs. Y.A. entered Switzerland together with her

child Elif in 1988 and applied for asylum. Mr. Z.A.'s request for

asylum was eventually refused, though on 26 October 1988 the

authorities decided provisionally not to expel him in view of the

pending proceedings concerning his wife, Mrs. Y.A.

In 1989 Musa, Ayse and Deniz entered Switzerland.

The second applicant entered Switzerland in 1990. On 5 June 1990

she applied for asylum. When questioned by the Swiss authorities she

explained inter alia that after her parents and brothers and sisters

had left, she had lived alone in the village in Turkey. At night,

soldiers had frightened her by knocking at the window. There had also

been a search of the neighbours' house at night. She claimed that she

had travelled to Switzerland as she was afraid to live in her village

and wanted to be with her family.

Mr. Z.A and Mrs. Y.A. were eventually granted the right to stay

in Switzerland on humanitarian grounds. Mr. Z.A. and Mrs. Y.A. then

withdrew their applications for asylum.

Asylum proceedings after the applicants' marriage

On 7 and 15 January 1992 the applicants informed the Federal

Office for Refugees (Bundesamt für Flüchtlinge) that they were now

married. With reference to Article 8 of the Convention they requested

the Office not to expel the first applicant in view of the second

applicant's pending asylum proceedings.

On 10 February 1992 the Federal Office for Refugees refused the

applicants' request. The Office found that the first applicant had

married the second applicant after the decision to expel him had been

taken.

On 13 February 1992 the applicants informed the Federal Office

for Refugees that the second applicant could not withdraw her request

for asylum as she was persecuted in Turkey.

On 26 February 1992 the second applicant informed the Federal

Office that her request for asylum was dependent on the request of her

mother, Mrs. Y.A., who was seriously ill and that her younger brother

and sister were both invalids.

On 4 May 1992 the Swiss Commission for Appeals in Matters of

Asylum (Schweizerische Asylrekurskommission) dismissed the first

applicant's request for reconsideration of his expulsion. In its

decision the Commission found that the legal situation concerning the

first applicant had not changed on account of his marriage with an

asylum seeker, i.e. the second applicant. The second applicant who was

in Switzerland on account of her request for asylum did not possess a

right to residence. Article 8 of the Convention and the rights derived

therefrom could only be invoked by a person who had a secure right to

residence.

By letter of 27 May 1992 the Federal Office granted the

applicants' lawyer insight into the case-file inter alia by informing

him of the results of the Swiss authorities' investigations. Thus, the

Office stated that in respect of Mrs. Y.A. there existed a political

file (politisches Datenblatt) in which she was listed as a sympathiser

of the PKK, though she was not prohibited from being issued a passport.

In respect of Mr. Z.A. there was no such political file, and also no

prohibition from being provided with a passport. In fact, both Mrs.

Y.A. and Mr. Z.A. as well as the second applicant had received

passports in 1986, 1988 and 1989 respectively.

The Federal Office further found that no right to reside in

Switzerland could be granted to the second applicant simply because she

had married the first applicant and had now founded a "small family"

("Kleinfamilie") with him.

On 19 May 1992 the first applicant was ordered to leave

Switzerland by 31 May 1992. He left the country on a date not

specified by the parties.

On 6 August 1992 the Federal Office for Refugees dismissed the

second applicant's request for asylum and ordered her to leave

Switzerland before 15 December 1992. The decision stated that an

appeal could be filed with the Swiss Commission for Appeals in Matters

of Asylum.

In its decision the Federal Office considered inter alia that the

second applicant had never alleged that she had been persecuted in her

home country on political grounds. In fact, she had the possibility

of residing in Turkey outside her village or her province. Thus, she

could be expected to return to Turkey to continue common matrimonial

life with the first applicant.

It transpires that the second applicant has meanwhile also left

Switzerland and that the applicants are now residing in Germany.

COMPLAINTS

1. The applicants complain under Article 8 of the Convention that

the expulsion of the first applicant separated him from the second

applicant and their child. This separation of the family also amounted

to inhuman treatment contrary to Article 3 of the Convention.

2. The applicants further complain under Article 13 of the

Convention that they had no effective remedy at their disposal to raise

their complaint under Article 8 of the Convention before the Swiss

authorities. After the marriage and the birth of the child, the first

applicant never received a decision which he could duly challenge.

3. The applicants also complain that the procedure chosen by the

Swiss authorities breached Article 1 of Protocol No. 7.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 May 1992 and registered on

16 July 1992.

On 25 May 1992 the President decided not to apply Rule 36 of the

Commission's Rules of Procedure.

On 10 September 1992 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

The Government's observations were submitted on 3 December 1992

and the applicants' observations in reply on 8 January 1993.

THE LAW

1. a) The applicants complain under Article 8 (Art. 8) of the

Convention that the expulsion of the first applicant separated him from

the second applicant and their child.

The applicants point out that after the first applicant was

ordered to leave Switzerland, the second applicant could not be

expected to follow him until her mother withdrew her application for

asylum. There had always been a connection between the second

applicant's request for asylum and that of her mother, since both

requested asylum on the ground of persecution (Anschlussverfolgung).

The applicants submit that they continue to have an interest in their

application since they were not able to lead a family life for many

months.

The Government submit that the applicants are now living together

in a third country and can no longer claim to be a victim within the

meaning of Article 25 (Art. 25) of the Convention. Moreover, while

residing in Switzerland the applicants and their child were not

separated from each other. After the first applicant's request for

asylum was rejected he was no longer entitled to reside in Switzerland.

He might have enjoyed such a right if his wife, the second applicant,

had been granted the right to stay in Switzerland. However, the second

applicant's request for asylum has also been rejected, and she did not

appeal against this decision.

The Government further recall that the second applicant's parents

have a right to stay in Switzerland. However, there is no dependency

existing between the second applicant and her parents which would

warrant the conclusion that family life exists between them within the

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

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. This situation may arise when a married person is

obliged to leave a State in which his spouse and his children are

living (see No. 9203/80, Dec. 5.5.81, D.R. 24 p. 239).

In the present case the Commission notes that when filing the

application the first applicant had been ordered to leave Switzerland

by 31 May 1992. The second applicant who had applied for asylum

claimed that she could not be expected to follow him to Turkey, inter

alia as she had herself fled from that country. Eventually, the first

applicant left Switzerland at a date not specified by the parties.

After filing the application, the second applicant's request for

asylum was rejected on 6 August 1992. It transpires that the second

applicant has meanwhile also left Switzerland and that the applicants

are now residing in Germany.

Thus, the applicants are presently living together as a family.

In this respect, therefore, they are not subjected to a breach of their

right to respect for their family life within the meaning of Article 8

(Art. 8) of the Convention. It follows that they can no longer claim

to be victims within the meaning of Article 25 (Art. 25) of the

Convention and that this part of the application is inadmissible under

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

b) The applicants may be understood as complaining that the Swiss

authorities' refusal to grant asylum to the second applicant separated

her from her sick mother, and that this breached her right to respect

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

Convention.

However, the Commission notes that the applicants have not

referred to any bonds, for instance dependency, which would indicate

the existence of family life among the applicants and the second

applicant's parents as would be required by Article 8 (Art. 8) of the

Convention. In this respect, the Commission notes, for instance, that

the second applicant's mother was not accompanied by the second

applicant when she entered Switzerland in 1989. Other children

followed her in the same year, though the second applicant entered

Switzerland in 1990.

It follows that this part of the application is manifestly ill-

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

Convention.

2. The applicants complain that the separation of their family,

resulting from the authorities' refusal to grant asylum to the first

applicant, amounted to inhuman treatment contrary to Article 3

(Art. 3) of the Convention. However, in view of its consideration of

the applicants' complaints under Article 8 (Art. 8) of the Convention,

the Commission considers that no separate issue arises under Article

3 (Art. 3). This part of the Convention is therefore also manifestly

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

Convention.

3. The applicants complain under Article 13 (Art. 13) of the

Convention that they had no effective remedy at their disposal to raise

their complaint under Article 8 (Art. 8) of the Convention before the

Swiss authorities. Under Article 1 of Protocol No. 7 (P7-1) they

complain that the procedure chosen by the Swiss authorities breached

that Article.

The Commission notes that before the Swiss authorities the

applicants complained under Article 8 (Art. 8) of the Convention that

their marriage had changed the situation regarding their right to

reside in Switzerland. In its decision of 4 May 1992 the Swiss

Commission for Appeals in Matters of Asylum effectively dealt with, and

then dismissed, this complaint.

The applicants therefore had an "effective remedy" at their

disposal within the meaning of Article 13 (Art. 13) of the Convention.

Moreover, they have not shown in which respect these proceedings

did not comply with the requirements of Article 1 of Protocol No. 7

(P7-1).

The remainder of the application is therefore also manifestly

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

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Menu

M.B. AND F.B. v. SWITZERLAND

M.B. AND F.B. v. SWITZERLAND