Lexploria

Application No. 16249/90

by B.

against Switzerland

The European Commission of Human Rights sitting in private

on 1 October 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 December 1989

by B. against Switzerland and registered on 7 March 1990 under file

No. 16249/90;

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 Zaire citizen born in 1929, is a former Zaire

diplomat residing at Zurich in Switzerland. He is currently employed

as a labourer in a building firm in Zurich. Before the Commission he

is represented by Mr. H. Hegetschweiler, a lawyer practising at

Hedingen in Switzerland.

The applicant is married and has six children. The wife was

born in 1945, the children in 1959, 1961, 1963, 1969, 1977 and 1983

respectively. The situation of the three children born in 1959, 1961

and 1963 is not at issue in the present application; the child born in

1959, an adult daughter, now resides at Rome in Italy. The child born

in 1961, a son, entered Switzerland independently in 1982 where he was

granted asylum in 1985. The child born in 1963, a son, was granted

temporary residence in Switzerland together with the applicant in 1987.

In 1977 the applicant was posted as a diplomat at the Zaire

Embassy at Bangui in the Central African Republic. A dispute then

arose with his superior, the Ambassador, who was allegedly an

influential member of the same tribe as the President of Zaire. Thus,

the Ambassador accused the applicant of treason, as he had withdrawn

certain documents concerning the military assistance of Zaire by the

Central African Republic.

As a result, the applicant left the diplomatic service in 1978

and went into hiding. In 1978 he also sent some of his children to

Italy, where they commenced school. In 1982, the applicant's wife

went to Italy. The family members living in Italy are supported by a

caritative organisation.

On 1 June 1983 the applicant left Zaire. On 4 June 1983 he

entered Switzerland where he applied for asylum in view of the

disputes with his superior. On 4 January 1984 the applicant's son,

born in 1963, entered Switzerland and requested asylum, claiming that

he was also endangered in Zaire.

On 27 November 1984 the Swiss Federal Office for Police

Affairs (Bundesamt für Polizeiwesen) dismissed the requests. The

applicant then filed an appeal (Beschwerde) which the Federal

Department of Justice and Police (Eidgenössisches Justiz- und

Polizeidepartement) dismissed on 2 December 1986. In its decision the

Department considered a report prepared by the Swiss Representation at

Kinshasa in Zaire which concluded that the applicant had not been

charged with any criminal offences. The Department nevertheless decided

not to expel the applicant nor his son, as the Zaire authorities might

consider the applicant's lengthy absence as hostile conduct.

As a result, on 21 January 1987 the Delegate for Refugees

(Delegierter für das Flüchtlingswesen) decided, with the applicant's

consent, to fix a temporary residence (Internierung) within the Canton

of Zurich for the applicant and his son born in 1963. The applicant

occasionally had the possibility, upon application for an entry visa

to Italy and a reentry visa to Switzerland, temporarily to visit his

family in Rome.

On 19 May 1987 the applicant requested the Delegate for

Refugees to permit his wife and children born in 1959, 1969, 1977 and

1983 to enter Switzerland. He explained that he was not allowed to

leave Switzerland; he would also hardly receive an entry visa for

Italy. On the other hand, as his wife and children had no possibility

to enter Switzerland, the family was permanently separated. The

applicant also requested the permission to reside (Aufenthalts-

bewilligung) in Switzerland.

On 4 July 1988 the Zurich Aliens' Police (Fremdenpolizei)

dismissed the applicant's request with reference inter alia to a

statement of the Delegate for Refugees of 9 June 1988 according to

which in the long term the applicant could be expelled.

The applicant's appeal (Beschwerde) against this decision was

dismissed by the Council of State (Regierungsrat) of the Canton of

Zurich on 7 December 1988. The Council of State considered inter alia

that any right under Article 8 of the Convention of the family to

follow the applicant could only exist to the extent that the applicant

had the permission to reside in Switzerland, which he did not have.

On 14 August 1989 the Federal Court (Bundesgericht) rejected

the applicant's administrative law appeal (Verwaltungsgerichtsbeschwerde).

On 30 August 1989 the Delegate for Refugees invited the Zurich

Director of Police (Polizeidirektor) to reconsider the decision of the

Council of State of 7 December 1988 and to grant the applicant a

residence permit. The Delegate considered in particular that

the applicant could no longer be expected to return to Zaire.

On 3 November 1989 the Zurich Police Direction

(Polizeidirektion) dismissed the request of the Delegate for Refugees,

finding no relevant new facts warranting a reconsideration of

the situation.

COMPLAINTS

In his application the applicant complained under Article 8 of

the Convention of the separation from his family, in particular his

wife and his children born in 1969, 1977 and 1983. He submitted that

it was only possible for his family to live together in Switzerland.

Thus, as the Swiss authorities themselves had pointed out, the

applicant would be persecuted in Zaire. It could also not be expected

of his wife to make the same request in Italy, as the Italian

authorities would most likely refer to the possibility of the family

reuniting in Switzerland; in particular, the wife and children had no

permission at all to reside in Italy, whereas the applicant and his

one son had a provisional permission to stay in Switzerland, and the

other son was even a recognised refugee.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 December 1989 and

registered on 7 March 1990.

By letter of 12 June 1990 the applicant informed the

Commission that on 5 April 1990 the Zurich Aliens' Police had granted

him an annual residence permission. On 6 June 1990 the Aliens' Police

informed the applicant that his wife and the children born in 1977 and

1983 had permission to join the applicant in Switzerland. In a

separate decision of 1 June 1990 the Aliens' Police refused the two

daughters born in 1959 and 1969 to enter Switerland as they were no

longer minors.

The applicant informed the Commission in his letter of 12 June

1990 that he maintained his application. He submitted with regard to

the daughter born in 1969 that when he originally asked for permission

for his family to enter Switzerland she was still a minor. The

applicant left it to the Commission to decide whether or not the

application had become obsolete with regard to those family members

who had received permission to join him in Switzerland.

THE LAW

1. In his application the applicant originally complained under

Article 8 (Art. 8) of the Convention of the separation from his

family. He complained in particular that the Swiss authorities

refused to let his wife and his children born in 1969, 1977 and 1983

join him in Switzerland.

The Commission concludes from the applicant's subsequent

letter of 12 June 1990 to the Commission that he maintains his

application with regard to the refusal of the Swiss authorities to let

his daughter, born in 1969, join him in Switzerland. With regard to

the other members of the family the applicant leaves it to the

Commission to decide whether or not the application has become

obsolete.

2. Insofar as the applicant complains under Article 8 (Art. 8)

that the Swiss authorities refuse to let his daughter, born in 1969,

join her father in Switzerland, the Commission recalls that there is

no right to enter, remain or reside in a particular country guaranteed

as such by the Convention. However, if a person is refused entry to a

country where his close family resides, an issue may arise under

Article 8 (Art. 8) of the Convention (see No. 10375/83, Dec. 10.12.84,

D.R. 40 p. 196).

In examining such cases the Commission must first consider

whether a sufficient link exists between the relatives concerned as to

give rise to the protection of "family life" under Article 8 (Art. 8)

of the Convention. Generally, this protection involves cohabiting

dependents, such as parents and their dependent, minor children.

Whether it extends to other relationships depends on the circumstances

of the particular case. Relationships between adults, the father and

his 21 year old daughter in the present case, would not necessarily

acquire the protection of Article 8 (Art. 8) without evidence of

further elements of dependency, involving more than the normal,

emotional ties (see No. 10375/83, ibid.)

However, in the present case it has not been shown that the

applicant's daughter is economically dependent on the applicant.

Moreover, the Commission notes that the applicant had the possibility

of applying for a visa to visit family members in Italy, and he has not

shown that this would not be possible in the future.

In these circumstances the Commission does not find it

established that there exists a sufficiently close link between the

applicant and his daughter which could be deemed to require the

protection afforded by Article 8 (Art. 8) to family life. As a result

there is no appearance of an interference with the applicant's right

to respect for family life within the meaning of this provision. In

this respect the application is therefore manifestly ill-founded

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

Convention.

3. As regards the other members of the applicant's family, in

particular his wife and the children born in 1977 and 1983, the

Commission notes that the Swiss authorities have permitted them

to join the applicant in Switzerland and that the applicant leaves it

to the Commission to decide whether or not his application has become

obsolete.

The Commission considers that the factual basis of this part

of the applicant's petition has now been resolved, within the meaning

of Article 30 para. 1 (a) and (b) (Art. 30-1-a, 30-1-b) of the

Convention. Moreover, the Commission finds no reasons of a general

character affecting respect for Human Rights, as defined in the

Convention, which require the further examination of this aspect of

the case by virtue of Article 30 para. 1 (Art. 30-1) in fine of the

Convention.

For these reasons, the Commission, by a majority,

DECLARES INADMISSIBLE the applicant's complaints concerning

his daughter, born in 1969;

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES

with regard to the applicant's complaints concerning the

remaining family members.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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B. v. SWITZERLAND

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