Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13325/87

by S.

against Switzerland

The European Commission of Human Rights sitting in private

on 15 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 9 July 1987

by S. against Switzerland and registered on 23 October 1987

under file No. 13325/87;

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 applicant, an Egyptian citizen born in 1951, is a student

residing in Stuttgart in the Federal Republic of Germany. Before the

Commission he is represented by Ursula and Rainer Röder, lawyers

practising in Stuttgart.

In 1976 the applicant married in Cairo an Egyptian national,

who was the daughter of an Egyptian father and a Swiss mother. The

son Sh. of the applicant and his wife was born in 1982. In December

1984 the applicant declared his marriage divorced whereupon the Misr

El Gedia Court in Egypt enforced the divorce. His former wife has

remarried and lives in Stuttgart together with Sh.

On 20 December 1985 the Stuttgart District Court (Amtsgericht)

conferred the parental custody over the applicant's son to his former

wife. The applicant appealed against this decision, alleging that

according to the Hanefitic doctrine of Egyptian-Islamic law the father

had the parental custody, whereas the mother had the factual custody.

This appeal was granted by the Stuttgart Court of Appeal (Oberlandes-

gericht) on 10 March 1986. The decision has acquired legal force.

On 18 March 1986 the applicant's former wife obtained a

declaration under Article 57 para. 8 (a) of the Swiss Nationality Code

(Bürgerrechtsgesetz) according to which she was recognised

(Anerkennung) as a Swiss citizen. The son was included in the act of

recognition. The recognition was confirmed upon appeal by the Council

of State (Regierungsrat) of Basel-Landschaft on 30 September 1986. The

Council of State took note in particular of the decision of the

Stuttgart Court of Appeal but found that disregard of the interests of

the child would run counter to the Swiss ordre public.

The applicant's administrative court appeal (Verwaltungs-

gerichtsbeschwerde) against this decision was dismissed by the

Federal Court (Bundesgericht) on 3 April 1987. The Court found in

particular:

"The approval of the father can in any event be

disregarded if, as here, the marriage of the parents has

been dissolved before the application for recognition as a

Swiss national has been submitted and, in addition, if the

child will in all probability continue to live together with

its mother and if the father cannot mention any convincing

facts which, from the point of view of the interests of the

child, would run counter to the inclusion into Swiss

citizenship of the child. In such circumstances it is

actually irrelevant which parent has custody over the child.

The applicant has not demonstrated, and it is not made

clear, how the well-being of Sh. would require not to grant

Swiss citizenship. As the Council of State found, the dual

nationality will not result in any disadvantages. This

conclusion is not affected by the consideration that the

(today five-year old) boy may in future possibly be

confronted with the decision where he wants to comply with

his duty to military service. The Swiss citizenship gives

him the advantage that he can at any time enter Switzerland,

i.e. the home country of his mother with whom he is living

together (in a neighbouring country). It is irrelevant if

the applicant submits that he has close ties with his child

since Sh. will not lose the Egyptian nationality - a fact

which the applicant accepts."

COMPLAINTS

The applicant complains under Article 6 para. 1 of the

Convention that in the proceedings at issue he was not personally

heard by the Swiss authorities.

Under Articles 8 and 9 of the Convention the applicant

complains that the recognition of his son as a Swiss citizen, upon

application of his former wife, runs counter to the decision of the

Stuttgart Court of Appeal of 10 March 1986 in that it violates his

fatherly honour and his rights under Islamic law which grant the

father parental custody over the child. Moreover, his son had no ties

with Switzerland. Finally, difficulties will arise in respect of the

son's military service.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of

the Convention that in the proceedings at issue he was never

personally heard by the Swiss authorities. Article 6 para. 1

(Art. 6-1), first sentence, provides:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled

to a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

The Commission has previously held that Article 6 para. 1

(Art 6-1) does not apply to proceedings regulating a person's

citizenship (cf. No. 5258/71, Dec. 8.2.1973, Collection 43 p. 71).

The proceedings in which the present applicant was involved concerned

his contestation of the recognition of his son as a Swiss citizen. It

follows from the above case-law that such proceedings do not involve

either "the determination of his civil rights and obligations or of

any criminal charge against him" within the meaning of Article 6 para.

1 (Art. 6-1) of the Convention. Consequently, this provision does not

apply to these proceedings.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

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

2. The applicant further complains under Articles 8 and 9 (Art.

8, 9) of the Convention that the recognition of the son's Swiss

nationality, upon application of his former wife, violates his

fatherly honour and his right under Islamic law to exercise parental

custody. Difficulties will arise in respect of the son's military

service.

The Commission has first examined these complaints under

Article 8 (Art. 8) of the Convention which states:

"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."

Insofar as the applicant complains that he has been hurt in

his fatherly honour or that difficulties will arise in respect of his

son's military service, the Commission considers that the measure at

issue does not constitute an interference with the applicant's right

to respect for private and family life within the meaning of Article 8

para. 1 (Art. 8-1) of the Convention.

The applicant also complains that under Islamic law it is up

to him as the holder of parental custody to decide such matters.

However, the Commission finds that there is nothing in the

authorities' conduct which would indicate a lack of respect for the

applicant's private and family life. As a result, also in this

respect there is no interference with the applicant's rights under

Article 8 para. 1 (Art. 8-1) of the Convention.

Insofar as the applicant invokes Article 9 (Art. 9) of the

Convention, which protects the right to freedom of religion, the

Commission finds that the facts of the case do not disclose any

appearance of a violation of this provision.

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.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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S. v. SWITZERLAND

S. v. SWITZERLAND

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