DISSENTING OPINION OF JUDGE MARTENS, APPROVED BY JUDGE RUSSO

A. Introduction

1.   To my regret I have not been able to persuade the majority. I remain unable to share their opinion.  I will refrain from arguing why, but just set out my own judgment.  I trust that from that judgment it will be sufficiently clear why I could not join the majority.

2.   What is at stake in this case is whether the refusal of the Swiss authorities to grant the applicant ’ s son Ersin authorisation to reside in Switzerland with his parents violated Switzerland ’ s obligation under Article 8 (art. 8) to respect the applicant ’ s family life.  Consequently, the circumstances obtaining at the date of the (first) refusal of the requested authorisation - that is 19 September 1990 - are decisive.

I will come back to these circumstances hereinafter (see paragraph 14), but I note already here that on 19 September 1990 the applicant and his wife were living lawfully in Switzerland having been granted a residence permit on humanitarian grounds on 15 February 1990.  Their son Ersin, who was born on 20 January 1983, was then 7 years old and lived in Turkey under circumstances which still remain controversial (see paragraph 12 below).

3.   One more preliminary remark with regard to the facts.  The Court has repeatedly stressed that it is not bound by the Commission ’ s findings of fact and remains free to make its own appreciation in the light of all the material before it (see, inter alia, the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 29, para. 74).  In doing so we should, however, bear in mind our limitations and be particularly careful not to take into account facts other than those which are properly established.  The Government have contended - without basing their contention on specific facts - that in 1983 the applicant left Turkey "of his own free will, preferring to seek employment in Switzerland " thereby suggesting that the applicant ’ s assertion that he came to Switzerland as a refugee was a falsehood.  However, although the applicant sought asylum on 26 April 1983, his application was only dismissed on 9 February 1989 together with that of his wife (which dated from 8 February 1988).  The applicant appealed.  This appeal was never decided because the applicant withdrew his application, since - as his counsel put it without being contradicted - pursuing the application for asylum was incompatible with accepting the residence permit on humanitarian grounds that had been offered to him and his wife.  Under these circumstances it is not for us to simply base ourselves on the refusal at first instance or to speculate, thirteen years hence, on the truth and relevance of the assertions underlying the applicant ’ s asylum request.  True, it is common ground that in the summer of 1995 the applicant visited Ersin in Turkey and, although attracting notice by a press interview, has apparently not experienced any disagreeableness from the Turkish authorities.  However, that does not in itself warrant the conclusion that thirteen years earlier, in 1983, the applicant had no relevant and sufficient grounds for fleeing from persecution in Turkey and requesting asylum in Switzerland .

B. Applicability of Article 8 (art. 8)

4.   In its Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, the Court adopted the established doctrine of the Commission that although, certainly, the right of aliens to enter or to remain in a country is not as such guaranteed by the Convention, immigration controls have to be exercised consistently with Convention obligations and that, accordingly, the exclusion of a person from a State where members of his family are living may raise an issue under Article 8 (art. 8) (see paragraphs 59 and 60 of the judgment). Since this judgment there has been a considerable evolution in the Court ’ s general doctrine on Article 8 (art. 8), but not on this point.  On the contrary, its subsequent case-law has solidly confirmed the principle that, although Contracting States have, as a matter of well-established international law, the right to control the entry, residence and expulsion of aliens, that right is subject to their obligations under the Convention, notably those under Article 8 (art. 8) (see the Berrehab v. the Netherlands judgment of 21 June 1988, Series A no. 138, pp. 15-16, paras. 28-29; the Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193, p. 19, para. 43; the Cruz Varas and Others judgment cited above, p. 28, para. 70; the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, para. 102; the Beldjoudi v. France judgment of 26 March 1992, Series A no. 234-A, p. 27, para. 74; and the Nasri v. France judgment of 13 July 1995, Series A no. 320-B, p. 25, para. 41).

Accordingly, if on 19 September 1990 there existed "family life" between the applicant and his son Ersin, the applicability of Article 8 (art. 8) to the facts of the present case cannot be called into question.  To the evolution in the Court ’ s general doctrine on Article 8 (art. 8) I will return in paragraph 7 below.

5.   On 19 September 1990 there certainly was a family life relationship between the applicant and Ersin.  Since Ersin was born from the legitimate marriage between the applicant and his wife, it follows from the aforementioned Berrehab judgment (p. 14, para. 21) that there is ipso facto such a relationship (see also the Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 19, para. 54).  True, as the Court recognised in the Berrehab judgment, subsequent events may break such a family life relationship, but only exceptional circumstances can warrant the conclusion that the tie between a parent and his or her child is severed.  The mere fact that, at the relevant date, the applicant had not seen his then seven-year-old son for almost seven years is not sufficient to produce this negative effect.  In this context it is immaterial whether the applicant left his wife and Ersin under fear from political prosecution or purely for economic reasons.

C. Is Switzerland in breach of an obliga tion under Article 8 (art. 8)?

6.   "According to the Court ’ s well established case-law, ‘ the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life ’ ", as the Court pointed out in paragraph 86 of the McMichael v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 55. Consequently, decisions of State authorities hindering such enjoyment in principle amount to an infringement of the State ’ s obligation to respect the family life of those concerned.  It follows that the refusal of the Swiss authorities to grant the applicant ’ s son Ersin authorisation to reside in Switzerland in principle entails their responsibility under Article 8 (art. 8).

Before it is possible to assess whether the refusal was justified, it is - alas - necessary to give some consideration to the question whether or not Switzerland ’ s obligation under Article 8 (art. 8) is a positive or a negative one.

D. Positive or negative obligation?

7.   The Court ’ s case-law distinguishes between positive and negative obligations.  Negative obligations require member States to refrain from action, positive to take action.  The Court has repeatedly stressed that the boundaries between the two types "do not lend themselves to precise definition" (see, for instance, the Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, p. 19, para. 49).  The present case well illustrates the truth of this proposition since the question whether the Swiss decision violated a positive or a negative obligation, if either, seems hardly more than one of semantics: the refusal of the Swiss authorities to let Ersin and his parents be reunited may be considered as an action from which they should have refrained, whereas it could arguably also be viewed as failing to take an action which they were required to take, namely making a reunion possible by granting the authorisation.  If one takes the view that, if there is a violation at all, it must be of a positive obligation - a view that finds support in the aforementioned Abdulaziz, Cabales and Balkandali judgment (see paragraph 4 above) - then one has to put up with the rather awkward systematic inconsistency that exclusion of a person from a state where his family lives does not fall into the same category of breaches as expulsion of a person from a state where his family lives: the former decision may be in breach of a positive obligation under Article 8 (art. 8), whereas the latter may be in breach of a negative obligation.

8.   These and other difficulties in distinguishing between cases where positive and cases where negative obligations are at stake would be immaterial if both kinds of obligation were treated alike.  There was a time, however, when the Court ’ s case-law did treat them differently.

The Abdulaziz, Cabales and Balkandali judgment is a striking instance: see paragraph 67 of that judgment.  Under the pretext of the vagueness of the notion "respect" in Article 8 (art. 8) the Court held that its requirements will vary from case to case, thus creating for itself the possibility of taking into account, when establishing whether or not there is a positive obligation, whether or not there is a consensus between member States and, moreover, a wide margin of appreciation for the State concerned. This approach has been rightly criticised both outside and inside the Court.  One of the main objections was that under this doctrine, in the context of positive obligations, the margin of appreciation might already come into play at the stage of determining the existence of the obligation, whilst in the context of negative obligations it only plays a role, if at all, at the stage of determining whether a breach of the obligation is justified.

The Court ’ s doctrine on this point has, however, evolved considerably since the Abdulaziz, Cabales and Balkandali judgment.  The aforementioned difference in treatment between positive and negative obligations has gradually dwindled away. The Court now holds that the applicable principles are similar, adding that in both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community (see, inter alia: the above-mentioned Keegan judgment, loc. cit. (paragraph 7 above); the above-mentioned Hokkanen judgment, p. 20, para. 55; and the Stjerna v. Finland judgment of 25 November 1994, Series A no. 299-B, p. 61, para. 39).

9.   For present purposes it may, therefore, be assumed that it makes no material difference whether a positive or a negative obligation is at stake.  The present doctrine notably implies that the distinction between the two types of obligation has no bearing on either the burden of proof or the standards for assessing whether a fair balance has been struck.

It follows that the refusal of the Swiss authorities to grant the applicant ’ s son Ersin authorisation to reside in Switzerland amounts to a violation of Article 8 (art. 8), unless it is deemed justified under paragraph 2 of that Article (art. 8-2) or under similar principles to those enshrined therein.

I agree with the Commission that the requirements of "in accordance with the law" and "legitimate aim" are fulfilled.  The applicant ’ s argument that the refusal was not "in accordance with the law" did not convince me.  On the other hand I cannot help saying that I consider the Government ’ s attempt to embellish the harsh, political objectives of their decision by pleading that in the first place it was designed to serve Ersin ’ s interests rather hypocritical.  The stress laid on financial considerations makes it clear that the legitimate aim pursued was, if not only then mainly, "the interests of the economic well-being of the country".

It follows that in any event the decisive question is whether the refusal of authorisation to reside in Switzerland was proportionate.

E. Was the refusal proportionate?

10. Was it "necessary in a democratic society" to refuse the applicant ’ s seven-year-old son Ersin authorisation to come and live in Switzerland with his parents?  In other words, did that decision of the Swiss authorities strike a fair balance between the competing interests of the applicant, his wife and their son on the one hand and those of the community as a whole on the other?

11. In explaining the interests of the community the Government have stressed that Switzerland has a very high percentage of foreigners living within its borders.  Hence, as counsel for the Government put it at our hearing, "in Switzerland immigration is a particularly sensitive subject".  Against this background the Government are, understandably, afraid of creating a precedent and therefore emphasise - rightly - that what is at stake is their right to control the entry of non-nationals into their territory and that, accordingly, we should leave them a wide margin of appreciation.  In this context they stress that they have only granted the applicant and his wife a temporary residence permit on humanitarian grounds, that as a consequence of that generosity they have already to bear the costs of subsistence of the applicant, his wife and their daughter Nursal and that it is therefore asking too much to expect them to do the same for Ersin.

12. So much for the one scale of the balance.  What lies in the other?  First and foremost, of course, a fundamental element of an elementary human right, the right to care for your own children.  It was only natural that the applicant and his wife, as soon as their residence situation was regularised, wanted their seven-year-old son to live with them.  There is a dispute as to Ersin ’ s living conditions, but I need not go deeply into that.  It suffices to note that the Government have not convincingly established that those conditions were satisfactory, let alone that, at the decisive moment, it was more in the interest of Ersin to remain in Turkey than to be reunited with his father and mother.

13. The Government do not argue that these are not weighty interests.  But they seek to diminish their relevance by contending that the applicant - on whom, they add, is the burden - has not shown that there are obstacles to re-establishing the family - father, mother and Ersin - in Turkey .  It is clear that the Government are thus relying on paragraph 68 of the Abdulaziz, Cabales and Balkandali judgment.  However, they choose to ignore the fact that the Court, in the first sentence of that paragraph, explicitly distinguishes "the present proceedings" - i.e. the cases of the three wives that were before the Court - from the case of "immigrants who already had a family which they left behind in another country until they had achieved settled status in the United Kingdom" (= the country of settlement).

That is an important proviso, for it strongly suggests that in a case of "immigrants who already had a family which they left behind" - such as the present applicant - different norms should be applied.

14. Which norms?  The Court does not answer that question, but it is natural to infer that it intended to make it clear that in respect of such cases it might possibly hold that, in the context of the issue of family reunion, the State of settlement should respect the choice of the immigrants who have achieved settled status there and, accordingly, must accept members of their family which they had left behind for settlement.

In other words, contrary to the Government ’ s suggestion, the Abdulaziz, Cabales and Balkandali judgment is no authority for their allegation that Switzerland may refuse Ersin entry - although he is a member of the family which the applicant and his wife left behind - on the mere ground that if the applicant and his wife want family reunion they should go back to Turkey, there being a violation of Switzerland ’ s obligations under Article 8 (art. 8) only if the applicant proves that there are obstacles to doing so or other special reasons why that could not be expected of him.

On the contrary, the Abdulaziz, Cabales and Balkandali judgment supports the proposition that in cases where a father and mother have achieved settled status in a country and want to be reunited with their child which for the time being they have left behind in their country of origin, it is per se unreasonable, if not inhumane to give them the choice between giving up the position which they have acquired in the country of settlement or to renounce the mutual enjoyment by parent and child of each other ’ s company which constitutes a fundamental element of family life.

15. It remains, of course, to be considered whether the latter principle applies in the present case, where the applicant has not "achieved settled status" in Switzerland, in so far as he and his wife have not been granted a "settlement permit", but have to base their right of residence on a permit which has, in principle, a temporary character and, consequently, a lower legal status than a settlement permit.

It cannot be denied that, from a point of view of State interest - that is from a point of view of immigration and residence - there is a good case for answering this question in the negative.  However, the European Court of Human Rights has to ensure, in particular, that State interests do not crush those of an individual, especially in situations where political pressure - such as the growing dislike of immigrants in most member States - may inspire State authorities to harsh decisions. As we stressed in paragraph 29 of our aforementioned Berrehab judgment (see paragraph 4 above), the Court must examine cases like this not only from the point of view of immigration and residence, but also with regard to the mutual interests of the applicant, his wife and Ersin.

Whether he came as a refugee (as we must presume (see paragraph 3 above)) or as a job seeker (as the Government allege), at the material time the applicant had been living in Switzerland for seven years and his wife for four years.  During these years he had been legally employed, apparently by the same employer, until an unspecified date in 1990 when he fell ill (see paragraph 7 of the Court ’ s judgment).  The Swiss authorities have taken this time element into consideration, since their decision to grant a residence permit was partly based on the time the applicant had been living in Switzerland (see paragraph 11 of the Court ’ s judgment).  Rightly so, for, generally speaking, it may be assumed that after a period of between three and five years immigrants become rooted in the country of settlement.  By then they have formed new social ties there and have definitively begun to adapt themselves to their new homeland.  In assessing the humaneness of the choice with which the Swiss authorities confronted the applicant and his wife this element, the fact that they have become integrated in their new homeland - an element which, incidentally, is closely connected with their private life - is of far more importance than the formal status of their permit.

There are some further, specific elements to be taken into account.

The first is that for the applicant and his wife the choice in question was not only between renouncing their son or renouncing the position which they had acquired in Switzerland, but also between renouncing their son Ersin or their little daughter Nursal who was being educated in a home in Switzerland and whose interests almost certainly would have required that she should be left behind.

The second is that the applicant ’ s wife is dependent on medical care which she can certainly get in Switzerland , whilst it is in debate to what extent, if at all, she will be able to get it in Turkey .

The third is that the mere fact that the Turkish authorities did not immediately arrest the applicant when he entered the country as a visitor does not imply that he would not get into trouble if he tried to settle there again on a permanent basis.

The fourth is that the applicant and his wife deserve compassion: whilst his wife had been suffering from epilepsy since 1982 and had a terrible accident in 1987, the applicant himself became disabled in 1990.

Under these circumstances it could not reasonably be required of the applicant and his wife that in order to be reunited with Ersin they should leave Switzerland and return to Turkey .

It follows that a proper balance was not achieved between the interests involved, that the refusal of the Swiss authorities is disproportionate and, as such, not necessary in a democratic society. I thus conclude that there was a vi olation of Article 8 (art. 8).

[1] The case is numbered 53/1995/559/645.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.