PARTLY DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE

I respectfully dissent with regard to the finding of no violation of Article 8 for the following reasons.

Firstly, the Criminal Court for the district of Rolle, by a judgment of 5 July 2000, found the applicant guilty of a serious offence of a sexual nature, sentenced him to twenty months ’ imprisonment and ordered his expulsion from Swiss territory for ten years subject to a five-year suspension ( sursis ). The court did not mince its words when referring to the applicant as an “animal on heat” (“ animal en rut ”), using language that one would expect to hear in the street rather than in a reasoned act of adjudication. But when it came to justifying the expulsion order, the sole argument given was as follows: “The need for an expulsion measure is self-evident. The clemency shown in such matters in the case-law requires that [the expulsion] be suspended” (“ Une mesure d ’ expulsion s ’ impose à l ’ evidence. La clémence de la jurisprudence en la matière impose le sursis ”). The Court of Cassation of the Canton of Vaud confirmed, by a judgment of 15 August 2000, the conviction and sentence, but on an appeal on grounds of nullity ( pourvoi en nullité ) by the public prosecutor, the Court of Cassation of the Federal Supreme Court annulled, by a judgment of 14 June 2001, the impugned judgment of the Court of Cassation of the Canton of Vaud and remitted the case for a new judgment. By a new judgment of the Cantonal Court of Vaud of 24 September 2001, the applicant was found guilty of the same offence and sentenced to three years ’ imprisonment. The expulsion order banning him from Swiss territory for the subsequent period of ten years was maintained, subject to a suspension on condition that his behaviour remained irreproachable for five years. By so finding, the first Criminal Court judgment did not provide any plausible legal ground for the expulsion order other than that it was “self-evident”! A single word, “clemency”, was invoked to determine the suspension of the expulsion. No reference whatsoever was made to the factual and legal requirements for the imposition of such a measure.

Secondly, the Department of Justice, Police and Public Security of the Canton of Geneva ordered the applicant ’ s expulsion for an unlimited period of time on 28 October 2002 and he was denied a residence permit by the Office for Migration of the Canton of Geneva on 7 December 2004. Both decisions were confirmed by a decision of the Cantonal Appeals Board of 19 May 2005, which was quashed by the Federal Supreme Court ’ s judgment of 9 January 2006. After reassessing the situation, the same Cantonal Appeals Board reaffirmed, by a decision of 14 February 2007, its previous decision dismissing the applicant ’ s appeal, with the argument that the applicant had in the meantime been charged with another criminal offence of a sexual nature, thus proving the existence of a threat to public safety. The Federal Supreme Court explicitly upheld this understanding by a judgment of 25 June 2007. Yet the public prosecutor of Geneva had, on 9 February 2007, decided to discontinue the criminal proceedings for lack of evidence of any criminal conduct. In other words, the Federal Supreme Court based a presumption of a threat to public safety on a decision to discontinue criminal proceedings. In fact, the Federal Supreme Court invoked not one, but two decisions discontinuing criminal proceedings against the applicant, one referring to a complaint of 2006 and another referring to a much older complaint dating back to 1995. In both cases, the applicant was not even formally accused of any criminal offence, but that was enough for the Federal Supreme Court to ground a presumption of risk to public safety.

Thirdly, the sole sexual offence for which the applicant has ever been convicted and sentenced was committed on 21 November 1997 and after that he was never again convicted, either in Switzerland or in France, of any similar criminal offence. Almost 16 years have passed since those facts and the European Court of Human Rights (“the Court”) has not been presented with any evidence of a threat of reoffending. The applicant had no criminal record when he committed the above-mentioned offence.

Fourthly, the applicant entered Switzerland in 1992 and was obliged to leave Switzerland on 8 February 2008. As the Federal Supreme Court acknowledged, the applicant fully complied with the conditions of parole after having served his prison sentence in December 2002. He followed psychiatric treatment and continued working as a chauffeur.

Fifthly, in spite of two denials of permission to return to Switzerland in 2007 and 2008, the applicant returned unlawfully, as on 5 May 2009 and 10 January 2012 he was convicted for illegal entry, among other minor offences. On the first date, he was found to be working illegally in Switzerland. It is clear that the applicant does maintain an interest in returning to Switzerland and, if possible, working there.

Finally, all the applicant ’ s brothers and sisters, with whom he used to have regular contact, live in different Swiss cantons (see the testimony of the applicant ’ s wife of 12 April 2005, attached to the file). His wife is a Swiss citizen and had lived in Switzerland with the applicant prior to February 2008.

In view of these facts, the expulsion order imposed on the applicant is disproportionate. The administrative order of expulsion for an unlimited period of time superseded a criminal expulsion order which was limited in time and had been suspended. In practical terms, the administrative authorities “punished” the applicant with a penalty that the criminal courts saw no need to apply. Moreover, it is to be stressed that the Federal Supreme Court inferred a threat to public safety from legally irrelevant facts. The discontinuance of the criminal proceedings initiated in 1995 and 2006 was not based on a procedural ground, but on the substantive ground of a lack of criminal characterisation of the facts imputed to the applicant. A threat to public safety was ascertained on the basis of two decisions dismissing criminal charges for a lack of criminal characterisation of the facts. The arbitrariness of this presumption of risk or threat to public safety is patent.

With the benefit of hindsight, the arbitrariness of the presumption becomes even clearer. The best evidence of a lack of any threat to public safety is the fact that the applicant has not been convicted of any similar criminal offences for the last 16 years. But even without the benefit of hindsight, the plain fact that the only criminal offence for which the applicant had been convicted occurred in 1997 should have been enough for the Federal Supreme Court to find ten years later, in 2007, that there was no “current threat” (“ menace actuelle ”) to public safety. On the contrary, the Federal Supreme Court attached extremely severe legal consequences, namely the applicant ’ s expulsion, and not temporarily but for an unlimited period of time, to facts that had been considered legally irrelevant by the competent public prosecutors.

Furthermore, the “unlimited” nature of the administrative expulsion order aggravates the misapplication of national law. The Court has held in clear terms that unlimited expulsion orders, such as that in the present case, breach Article 8 of the European Convention on Human Rights (see Emre v. Switzerland , no. 42034/04, § 85, 22 May 2008). The same principle should have been applied in this case. If not for any other reason, this alone would suffice to find a breach of Article 8 in the applicant ’ s case.