Lexploria

The European Commission of Human Rights sitting in private on

1 December 1986, the following members being present:

MM. E. BUSUTTIL, Acting President

C. A. NØRGAARD

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. J. RAYMOND, Deputy Secretary to the

Commission

Having regard to Article 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 August 1985 by K.R-J.

against Denmark and registered on 22 November 1985 under file No.

11846/85;

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 of the case, as submitted by the applicant, may be

summarised as follows.

The applicant is a Polish citizen, born in 1959. He is an electrician

by profession and resides in Copenhagen. When introducing his

application the applicant was serving a three year prison sentence at

Vestre fængsel (prison), Copenhagen.

The applicant came to Denmark in 1977 and he has lived there since.

In 1981 he married a Polish citizen and his wife came to Denmark in

1982. They do not have any children. The applicant's mother,

stepfather, sister and grandmother also live in Denmark.

On 18 August 1983 the applicant was arrested by the Danish police and

detained on remand. By indictment of 27 February 1984 he was charged

with a number of violations of the Danish Penal Code, including

11 counts of fraud. It appears that the applicant's wife was also

involved in the criminal activity and she was also arrested and

detained on remand.

By judgment of 15 June 1984 the City Court of Copenhagen (Københavns

byret) found the applicant and his wife guilty of the charges brought

against them and sentenced them to three years' and one year's

imprisonment respectively. During the court proceedings it was

established that the applicant could not expect political persecution

in Poland but that he still had to do his military service.

Therefore, in addition to the sentence imposed the Court ordered that

the applicant and his wife be expelled from Denmark when released and

furthermore the Court imposed re-entry bans, of indefinite duration in

the applicant's case and for a period of ten years in the case of his

wife.

The applicant and his wife appealed against the judgment to the Court

of Appeal (Østre Landsret) insofar as it concerned the expulsions and

the entry bans. On 23 November 1984 the Court of Appeal upheld the

lower court's judgment in this respect, insofar as it concerned the

applicant, whereas it quashed the judgment in this respect in regard

to the applicant's wife. The applicant subsequently applied to the

Ministry of Justice for leave to appeal to the Supreme Court in regard

to the expulsion and the entry ban. However, on 13 August 1985 the

Ministry refused to grant leave to appeal.

COMPLAINTS

The applicant invokes Articles 3 and 8 (art. 3, art. 8) of the

Convention maintaining that the decisions to expel him, and to refuse

him entry to Denmark, amount to inhuman treatment and disrespect for

his private and family life since his wife, mother, sister, stepfather

and grandmother all live in Denmark whereas he no longer has any

relatives or other connections in Poland.

THE LAW

1. The applicant has complained that his expulsion, which is to

follow the prison sentence imposed, and the prohibition of entry

amount to an unjustified interference with his right to respect for

his private and family life.

Article 8 (art. 8) of the Convention ensures inter alia everyone's

right to respect for his private and family life and forbids any

interference by a public authority with the exercise of this right

except under certain conditions.

The Commission has constantly held that the right of an alien to

reside in a particular country is not as such guaranteed by the

Convention (cf. eg. No. 9492/81, Dec. 14.7.82, D.R. 30, p. 232 with

further references). However, regarding the notion of "family life"

it is true that the Commission has previously held that the expulsion

of a person from a country where close relatives reside can in certain

situations amount to an infringement of Article 8 (art. 8) of the

Convention (cf. e.g. No. 7816/77, Dec. 19.5.77, D.R. 9, p. 219). In

such circumstances the Commission first examines whether such a link

exists between the applicant and the relatives as can be considered to

establish a family life within the meaning of Article 8 (art. 8).

The Commission finds that this requirement is fulfilled in regard to

the relations between the applicant and his wife. However, the

applicant and his wife, who have been married since 1981, are both

aliens of the same nationality and it has not been established that

they will be unable to make reasonable arrangements to live together

outside Denmark, even though they would prefer to live there. Where

the circumstances are such that the wife has a reasonable possibility

of following her husband out of the country, there is not in the

Commission's opinion any interference with family life contrary to

Article 8 para. 1 (art. 8-1) of the Convention (cf. No. 7729/76,

Dec. 17.12.76, D.R. 7, p. 164).

Regarding the remainder of the relatives mentioned by the applicant

the Commission observes that scarce information has been given about

these relatives and the closeness of the relationship involved. In

particular no claim of any dependence between the applicant and the

other relatives has been made. In these circumstances, therefore, the

Commission considers that it has not been shown that there exists a

sufficiently close link between the applicant and his relatives in

Denmark which could be deemed to have established the family life

which is protected by Article 8 (art. 8).

Accordingly, whilst some disturbance in the applicant's family life,

between the applicant and his wife, will inevitably result from a

refusal to permit him to reside in Denmark, the Commission considers

that it has not been shown that these disturbances are of such a

nature as to amount to a violation of the Convention and in particular

of Article 8 (art. 8).

The Commission has also considered the applicant's complaint regarding

interference with his "private life" also protected by Article 8

(art. 8) of the Convention. However, the Commission finds that the

expulsion necessarily implies a disruption of private life but this

inevitable consequence of any expulsion cannot in principle be

regarded as an interference with the right to respect for private life

protected by Article 8 (art. 8) of the Convention (cf. No. 10427/83,

Dec. 12.5.86, unpublished). Furthermore, the applicant has not

submitted any evidence which would suggest that this principle should

be departed from in the present case. The Commission therefore finds

that there has been no interference with the applicant's right to

respect for his private life.

It follows that the applicant's complaints under Article 8 (art. 8)

of the Convention, are, as a whole, manifestly ill-founded within the

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

2. The applicant has finally complained that his expulsion from

Denmark and the prohibition of entry amount to inhuman treatment

within the meaning of Article 3 (art. 3) of the Convention. However,

the Commission finds that an examination of this complaint, as

submitted by the applicant, does not disclose any appearance of a

violation of this provision and it follows that this part 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) (E. BUSUTTIL)

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