Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16563/90

by B.I.

against Switzerland

The European Commission of Human Rights sitting in private

on 13 July 1990, the following members being present:

MM. J.A. FROWEIN, Acting President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

Mr. J. RAYMOND, Deputy 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 22 March 1990

by B.I. against Switzerland and registered on 4 May 1990 under

file No. 16563/90;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts submitted by the applicant may be summarised as

follows.

The applicant, a Turkish citizen born in 1963, is a labourer

currently detained at Witzwil prison in Switzerland. Before the

Commission he is represented by Mr. P. Nüspliger, a lawyer practising

at Berne in Switzerland.

In 1977 the applicant left Turkey and moved to Switzerland

where he has since been living. In 1980 he had a car accident

as a result of which he lost one eye. In 1983 he received permission

to reside in Switzerland (Niederlassungsbewilligung).

In 1980 the applicant married in Turkey. His wife joined him

in 1981 in Switzerland where she received permission to reside.

Their two children were born in Switzerland in 1983 and 1987,

respectively.

In 1986 the Aliens' Police (Fremdenpolizei) of the Canton of

Berne admonished the applicant on account of three convictions

concerning inter alia driving a car despite withdrawal of a learner's

driving licence. On 15 January 1988 the Mendrisio Jury Court

convicted the applicant of various drug offences and sentenced him to

four and a half years' imprisonment as well as to expulsion from

Switzerland, though the latter was suspended for a probation period of

five years.

On 7 March 1988 the Police Direction (Polizeidirektion) of the

Canton of Berne decided definitely to expel the applicant as from the

date of his release from detention, which was envisaged for 7 May 1990.

The Police Direction considered in particular that the applicant's

drug dealing had caused a danger for numerous persons.

The applicant's appeal was dismissed by the Council of State

(Regierungsrat) of the Canton of Berne on 22 February 1989. On 15

December 1989 the Federal Court (Bundesgericht) dismissed his

administrative law appeal (Verwaltungsgerichtsbeschwerde). The Court

relied on Articles 10 and 11 of the Federal Act on the Residence of

Aliens (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer)

according to which foreigners may be expelled, inter alia, if they

have been convicted of a criminal offence, and if the expulsion is

proportionate. The Court found that the applicant's culpability

(Verschulden) with regard to the convictions concerned was serious.

Moreover, he still had ties with Turkey; thus before the Mendrisio

Jury Court the applicant himself had referred to an apartment of his

in Turkey where he eventually intended to return. The Court further

found that the applicant's wife, who had grown up in Turkey, could be

expected to follow her husband. The same applied to their children

who were still young and therefore adaptable.

COMPLAINTS

The applicant now complains under Article 8 of the Convention

of the decision to expel him to Turkey which he submits is

disproportionate as he never constituted a danger to the public. The

conviction resulted from an "accident" ("Ausrutscher") rather than

premeditation. The family is acclimatised in Switzerland and the

children are now expected to return to a country which is entirely

foreign to them. His apartment in Turkey was bought as an investment

object and is used by relatives. The applicant also submits that he is

disabled and awaiting an operation in Switzerland which cannot be

undertaken in Turkey.

THE LAW

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

Convention that as a result of his expulsion to Turkey he will be

separated from his family which cannot be expected to follow him.

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 considers that the

applicant's expulsion from Switzerland would interfere 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 10 and 11 of the Federal Act on the

Residence of Aliens. The interference is 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 the applicant had been convicted of drug

offences and that his continuing presence in Switzerland constituted a

danger to public safety. The Commission further notes that the

applicant's wife is of Turkish origin and that the children are of

an adaptable age. Moreover, the applicant owns a flat in Turkey.

In these circumstances it would not be unreasonable to expect the

applicant's wife and children to follow him to Turkey.

The Commission therefore considers that the interference with

the applicant's right to respect for family life is justified under

Article 8 para. 2 (Art. 8-2) of the Convention in that it is

"necessary in a democratic society ... for the prevention of

disorder or crime" as well as "for the protection of health". 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 applicant has further complained that the expulsion would

render impossible an important operation in Switzerland. The

Commission, which has examined this complaint under Article 3 (Art. 3)

of the Convention, finds that the applicant has insufficiently

substantiated that the operation would not be possible elsewhere, for

instance in Turkey. It follows that the remainder of the application

is also manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (J. A. FROWEIN)

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B.I. v. SWITZERLAND

B.I. v. SWITZERLAND

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