Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18017/91

by Hidir YALCINKAYA

against Switzerland

The European Commission of Human Rights sitting in private

on 3 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

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

16 January 1991 by Hidir YALCINKAYA against Switzerland and

registered on 22 March 1991 under file No. 18017/91;

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, a Turkish citizen born in 1952, is an employee

who until January 1991 resided at Reinach in Switzerland. He

apparently now resides in Turkey. Before the Commission he is

represented by Mr. A. Flachsmann, a lawyer practising in Zurich.

In 1978 the applicant was permitted to reside in Switzerland

(Aufenthaltsbewilligung). In 1979 his wife, who is also a Turkish

citizen, joined him. Their son was born in 1980. In January 1991 the

applicant left Switzerland.

I.

In 1987 the applicant, after heavy alcohol consumption, fired

various shots with a revolver and thereby accidentally injured his

sister-in-law who eventually died.

On 8 January 1988 the Criminal Court (Strafgericht) of the

Canton of Basel-Landschaft convicted the applicant of committing in

1987 inter alia the offence of a multiple threat to life (mehrfache

Lebensgefährdung), in one case with the result of death, and of

attempted compulsion (versuchte Nötigung), and sentenced him to three

and a half years' imprisonment. The applicant was also ordered to

undergo a medical treatment of his alcoholism. In view of the

applicant's wife and son the Court refrained from expelling him from

Switzerland.

On 26 February 1988 the Aliens' Police (Fremdenpolizei) of the

Canton of Basel-Landschaft decided not to renew the residence permit

of the applicant and his family after his release from prison. His

appeal against this decision was dismissed by the Council of State

(Regierungsrat) of the Canton of Basel-Landschaft on 6 September 1988

which nevertheless decided to exclude the applicant's wife and child

from the decision.

On 29 March 1988 the Federal Aliens Office (Bundesamt für

Ausländerfragen) issued two decisions ordering the applicant's

expulsion from, and a prohibition to enter, Switzerland.

On 9 August 1989 the applicant's wife and son were permitted

to establish their domicile in Switzerland (Niederlassungsbewilligung)

on account of their ten years' residence.

On 16 October 1989 the Aliens Police dismissed the applicant's

request to reconsider its previous decision in the light of the

changed circumstances. The applicant's appeal was dismissed by the

Council of State of the Canton of Basel-Landschaft on 12 December

1989. II.

Meanwhile, the applicant appealed against the decisions of the

Federal Aliens Office of 29 March 1988 to the Federal Department of

Justice and Police (Eidgenössisches Justiz- und Polizeidepartement).

On 1 December 1989 the Department dismissed the appeal.

In its decision the Department considered with regard to

Article 8 of the Convention that there was nothing to show that the

applicant's marriage was disrupted. On the other hand, the

applicant's wife was a Turkish citizen who had grown up in Turkey and

hardly spoke German. Thus, she could be expected to follow the

applicant to Turkey, particularly as they had spent longer periods of

time living together with the now deceased sister-in-law. The

Department further found that for this reason the nine-year old child

was acquainted with the Turkish language and customs.

The Department further considered that, given the serious

offences of which the applicant was convicted, the interest of the

general public in his expulsion outweighed his interest in family

life. It also considered that the legal basis for the expulsion lay

in Articles 4, 12 and 13 of the Federal Act on Aliens' Residence and

Domicile (Bundesgesetz über Aufenthalt und Niederlassung der

Ausländer). Article 4 states that the competent authority may, within

the framework of the law, freely decide on the permission to grant

residence and domicile in Switzerland. Article 12 provides that the

alien who has no such permission may at any time be requested to leave

Switzerland. Article 13 states that an unwanted alien can be

prohibited from entering Switzerland.

The Department finally considered that other measures were not

proportionate to the aim concerned. It noted that the applicant's

attempt to have his alcoholism cured remained unsuccessful. While he

had not given any grounds for complaint in prison, it could not be

assumed with sufficient certainty that in daily life outside he would

not return to his old habits.

III.

Against the decision of the Council of State of 12 December

1989 the applicant filed an administrative law appeal

(Verwaltungsgerichtsbeschwerde) which the Federal Court

(Bundesgericht) dismissed on 24 September 1990.

The Court considered in particular that, although the applicant

and his family had a close relationship with Switzerland, they had not

broken off contacts with Turkey. His wife had bonds with her home

country. Moreover, the applicant's culpability was considerable. He

had contravened substantially the Swiss legal order and abused his

right as a guest. In the Court's view he had to be considered an

alcoholic and a criminal. Insofar as he complained of the strained

relationship with his wife's family in Turkey, the Court found that he

was himself responsible for it as he had brought about his

sister-in-law's death.

COMPLAINTS

The applicant complains under Article 8 of the Convention that

his expulsion from Switzerland has resulted in a separation from his

family. His son would have difficulties adapting to Turkish schools.

Moreover, if he returns to his home village his brother-in-law may

take revenge for his sister-in-law's death.

The applicant claims that his alcoholism results largely from

unfortunate circumstances. He points out that all these authorities

with whom he had personal contact issued a favourable prognosis for

his future conduct. After his release from prison in Switzerland he

had integrated well and was cured from alcoholism.

THE LAW

The applicant complains under Article 8 (Art. 8) of the

Convention that as a result of his expulsion to Turkey he has been

separated from his family. Article 8 (Art. 8) provides:

"1. Everyone has the right to respect for his private

and family life, his home and his correspondence.

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. This situation may arise when, as in

the present case, a married person is obliged to leave a State in

which his spouse and his children are living (cf. No. 9203/80, Dec.

5.5.81, D.R. 24 p. 239).

In the present case, the Commission notes that the applicant's

wife and son, who on account of their ten years' residence have been

permitted to establish their domicile in Switzerland, have been

lawfully residing in that country. Thus, the Commission considers

that 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's task is now to

examine whether such interference was justified under Article 8 para.

2 (Art. 8-2).

The Commission observes that the Swiss authorities based their

expulsion order on Articles 4, 12 and 13 (Art. 4, 12, 13) of the

Federal Act on Aliens' Residence and Domicile. The interference was

therefore "in accordance with Convention.

Moreover, when deciding to expel the applicant, the Swiss

authorities considered that the applicant had been convicted of

criminal offences, and that, in view of the applicant's alcoholism,

his continuing presence in Switzerland constituted a danger to the

public.

In this respect, the Commission observes in particular that

the applicant was convicted of serious criminal offences, namely the

offence of a multiple threat to life, in one case with the result of

death, and of attempted compulsion. Moreover, the Commission notes

that the applicant was 35 years old when he committed these offences.

The Commission further notes that the applicant's wife is of

Turkish origin and has bonds with Turkey and that the child is of an

adaptable age. In these circumstances it would not be unreasonable to

expect the applicant's wife and child to follow him to Turkey.

Taken into account the margin of appreciation which is left to

Contracting States in such circumstances, 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 as "necessary

in a democratic society ... for the prevention of disorder or crime".

It follows that the application is 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 Commission President of the Commission

( H.C. KRÜGER) (C.A. NØRGAARD)

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YALCINKAYA v. SWITZERLAND

YALCINKAYA v. SWITZERLAND

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