S.T. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 24089/94
by S. T.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 29 June 1994, the following members being present:
MM. H. DANELIUS, Acting President
S. TRECHSEL
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 April 1994 by
S. T. against Switzerland and registered on 5 May 1994 under file
No. 24089/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
Facts
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant, born in 1947 and of Serb origin, is a national of
former Yugoslavia residing at Zurich in Switzerland. He is represented
by Mr V. Landmann, a lawyer practising in Chur.
In 1972 the applicant married M.V., a national of former
Yugoslavia who had a residence permit (Aufenthaltsbewilligung) in
Switzerland. It appears that the applicant then took up residence in
Switzerland. Two daughters were born in 1972 and 1973.
In 1978 the applicant was granted a residence permit in
Switzerland, and in 1980 his wife obtained the right to domicile
(Niederlassungsbewilligung). In 1982 their third daughter was born.
Between 1980 and 1984 the applicant was convicted of
contraventions of the Road Traffic Act (Strassenverkehrsgesetz) and of
the Gambling Act (Spielbankengesetz). On 13 July 1982 the Aliens'
Police (Fremdenpolizei) admonished the applicant for having
participated in unlawful gambling. On 27 August 1987 the Court of
Appeal (Obergericht) of the Canton of Zurich sentenced the applicant
to 14 days' imprisonment on account of contravening the Gambling Act.
On 24 November 1987 the Aliens' Police again admonished the applicant.
On 27 March 1991 the Zurich District Court (Bezirksgericht)
convicted the applicant of repeated and continuing contraventions
against the Narcotics Act, in particular of having traded in heroin,
and sentenced him to six and a half years' imprisonment. The applicant
was also sentenced to ten years' banishment from Switzerland which was
suspended on probation for a period of four years.
The applicant served his prison sentence until 16 June 1993 when
he was released on probation due to his good conduct in prison.
Before this release from prison, the applicant filed two requests
for a prolongation of his residence permit which the Aliens' Police of
the Canton of Zurich refused on 20 July 1992.
The applicant's appeal (Rekurs) was dismissed by the Council of
State (Regierungsrat) of the Canton of Zurich on 17 November 1993. In
its decision, the Council of State found that, even if the applicant
had been released on probation on account of his good conduct, the
Aliens' Police could apply stricter conditions. The Council of State
considered that in view of the severity of the offences committed by
the applicant the family could be expected to suffer certain
disadvantages if it did not want to follow the applicant. In this
respect the Council of State also noted that the applicant had his
parents as well as a brother and a sister in Yugoslavia.
In its decision the Council of State referred inter alia to
Section 17 para. 2, last sentence of the Federal Act on Residence and
Domicile of Aliens (Bundesgesetz über Aufenthalt und Niederlassung der
Ausländer). According to this provision the entitlement of a foreigner
to a prolongation of his residence permission will expire if he
breaches public order (gegen die öffentliche Ordnung verstösst).
The applicant then filed an administrative law appeal
(Verwaltungsgerichtsbeschwerde) which the Federal Court (Bundesgericht)
dismissed on 23 February 1994.
The Federal Court considered that the applicant had repeatedly
been sentenced to imprisonment on account of various offences, that his
culpability was very serious, and that he had clearly contravened
public order. By trading in drugs, in order to finance his gambling,
he had endangered a considerable part of the population (Gefährdung
eines grösseren Bevölkerungskreises). The Court further noted that the
applicant had twice been admonished by the Aliens' Police. The
decision continued:
<Translation>
"On the other hand, if the residence permit is not prolonged,
there will be direct consequences for the wife and the youngest
daughter. The previous decision-making authority assumed that
in view of their advanced integration in Switzerland they could
not at all be expected to return to their home country. Whether
this is so may at least be questioned in respect of the wife who
herself grew up in Yugoslavia. The daughter, moreover, is of
quite an adaptable age. The situation need nevertheless not be
finally resolved. The applicant has committed serious and
repeated offences and was repeatedly admonished by the Aliens'
Police. In view thereof, the family members may be expected, and
it would be possible for them, to maintain their relations by
mutually visiting each another, if they do not wish to follow the
applicant abroad. The applicant should have realised earlier
that he bears a responsibility towards his family. As the
consequences of his offences to him as an alien must have been
clear to him, he must have taken into account the possibility of
a local separation from his family. Finally, given the previous
experiences the family members must also have been aware for some
time that future family life in Switzerland would not necessarily
be assured."
<Original>
"Hingegen zeitigt die Nichtverlängerung der Aufenthaltsbewilli-
gung unmittelbare Folgen für die Gattin und die jüngste Tochter.
Ob ihnen eine Ausreise ins Heimatland mit Blick auf ihre fortge-
schrittene Integration in der Schweiz geradezu unzumutbar wäre,
wie die Vorinstanz annimmt, ist jedenfalls bei der Ehefrau, die
selbst in Jugoslawien aufgewachsen ist, fraglich. Auch die
Tochter befindet sich durchaus noch in einem anpassungsfähigen
Alter. Wie es sich damit genau verhält, kann jedoch offenblei-
ben. Angesichts der schweren und wiederholten Straffälligkeiten
des Beschwerdeführers und der mehrfachen fremdenpolizeilichen
Warnungen ist es der Familie jedenfalls zumutbar und möglich,
sofern die Angehörigen dem Beschwerdefúhrer nicht ins Ausland
folgen wollen, ihre Beziehungen mittels gegenseitigen Besuchen
zu pflegen. Der Beschwerdeführer hätte sich bereits früher
darüber klar werden können, dass er eine Verantwortung seiner
Familie gegenüber trägt. Da ihm die fremdenpolizeilichen Folgen
seiner Straftaten bewusst sein mussten, hat er eine örtliche
Trennung von seiner Familie selbst in Kauf genommen. Im übrigen
musste auch den Angehörigen angesichts der früheren Erfahrungen
schon seit geraumer Zeit bewusst gewesen sein, dass ein künftiges
Familienleben in der Schweiz nicht ohne weiteres gesichert war."
The Court concluded that, in view of the risk of further
offences, the public interest in keeping the applicant away from
Switzerland outweighed any private interests of the applicant in
respect of his personal and family situation.
On 28 March 1994 the Federal Office for Aliens' Affairs
(Bundesamt für Ausländerfragen) decided to prohibit the applicant from
entering Switzerland for ten years as from 18 April 1994. The decision
stated that he could file an appeal with the Federal Department of
Justice and Police within thirty days.
On 29 March 1994 the Federal Aliens' Police ordered the applicant
to leave Switzerland before 17 April 1994.
COMPLAINTS
1. The applicant submits that the political and economic conditions
in Serbia are such that, if he had to return, there would be a very
great danger of a breach of Articles 2 and 3 of the Convention (lassen
die Gefahr ihrer Verletzung als sehr hoch erscheinen).
2. The applicant also complains under Article 8 of the Convention
that the refusal to prolong his residence permit will separate him from
his family. He submits that he has close relations with his wife who
now runs a large café in Switzerland and is completely at home there.
He has very close relations with their youngest daughter, and the
contacts with the other two daughters have intensified. All three
children are closely attached to Switzerland, it only being a question
of time until the youngest daughter obtains Swiss nationality. The
children cannot be expected to live in former Yugoslavia.
The applicant himself cannot be expected to return to Serbia
where there is a war, and in other parts of former Yugoslavia there is
clearly no place for the applicant or for his wife and children.
The applicant points out that the banishment from Switzerland
ordered by the Zurich District Court on 27 March 1991 was suspended on
probation, and that while serving his sentence he never gave rise to
any complaints. The risk that he will again commit a criminal offence
is minimal, as he has stopped gambling and taking drugs, and has
intensified the contacts with his family.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 April 1994.
On 20 April 1994 the President of the Commission decided not to
apply Rule 36 of the Commission Rule's of Procedure.
Following further correspondence with the applicant, the
application was registered on 5 May 1994.
Considerations
THE LAW
1. The applicant complains that, if he is obliged to return to
Serbia, the political and economic conditions there would involve a
breach of Articles 2 and 3 (Art. 2, 3) of the Convention. Under
Article 8 (Art. 8) of the Convention he complains of a separation from
his family.
2. The Commission recalls that no right of an alien to enter or to
reside in a particular country is as such guaranteed by the Convention.
However, expulsion may in exceptional circumstances involve a
violation, in particular where there is a serious fear of treatment
contrary to Articles 2 or 3 (Art. 2, 3) of the Convention in the
country to which the person is to be expelled (see No. 10564/83,
Dec. 10.12.84, D.R. 40 p. 263; Eur. Court H.R., Soering judgment of
7 July 1989, Series A no. 161, p. 32 et seq., para. 81 et seq.)
Moreover, the expulsion of a person from a country where close members
of his family are living may amount to an infringement of the right to
respect for family life guaranteed in Article 8 para. 1 (Art. 8-1) of
the Convention (see Eur. Court H.R., Moustaquim judgment of
18 February 1991, Series A no. 193, p. 18, para. 36; No. 9203/80,
Dec. 5.5.81, D.R. 24 p. 239).
3. Insofar as the applicant complains that, if he is obliged to
return to Serbia, the political and economic conditions there would
involve a breach of Articles 2 and 3 (Art. 2, 3) of the Convention, he
has not shown that he obtained a decision by the Swiss authorities on
these complaints. He has therefore not complied with the requirements
under Article 26 (Art. 26) of the Convention as to the exhaustion of
domestic remedies, and the application must in this respect be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
This complaint would in any event also be manifestly ill-founded.
Thus, the applicant has not at all shown that upon his return to a part
of former Yugoslavia he would face a real risk of being subjected to
treatment contrary to Article 2 or Article 3 (Art. 2, 3) of the
Convention.
4. The applicant complains that the refusal to prolong his residence
permit will separate him from his wife and his daughters. He relies
on Article 8 (Art. 8) of the Convention which states, insofar as
relevant:
"1. Everyone has the right to respect for his ... family life
...
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."
In examining such cases the Commission must consider whether a
sufficient link exists between the relatives concerned as to give rise
to the protection of "family life" within the meaning of Article 8
(Art. 8) of the Convention. Generally, this involves cohabiting
dependents such as parents, spouses and their dependent, minor
children. Whether it extends to other relationships depends on the
circumstances of the particular case.
The Commission has first examined the situation of the
applicant's daughters born in 1972 and 1973. The latter are no longer
minors, and the relationships between them and the applicant do not
enjoy the protection of Article 8 (Art. 8) of the Convention without
evidence of further dependency, involving more than the normal,
emotional ties (see No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).
In the present case, it has not been shown that these daughters
are dependent on the applicant. Moreover, it is not excluded that they
can visit the applicant after he has left Switzerland. In respect of
this part of the application there is, therefore, no appearance of an
interference with the applicant's right to respect for family life
within the meaning of Article 8 (Art. 8) of the Convention.
The Commission has next examined the situation of the applicant's
wife and their daughter born in 1982. It accepts that sufficient links
exist between these persons and the applicant as to give rise to the
protection of "family life" within the meaning of Article 8 (Art. 8)
of the Convention. Thus, the refusal of the Swiss authorities to
prolong the applicant's residence permit amounts to an interference
with the applicant's right to respect for family life within the
meaning of Article 8 para. 1 (Art. 8-1) of the Convention. The
Commission must therefore examine whether such interference is
justified under Article 8 para. 2 (Art. 8-2) of the Convention.
The Commission observes that the Swiss authorities, when refusing
to prolong the applicant's residence permit in Switzerland, relied on
Section 17 para. 2, last sentence, of the Federal Act on Residence and
Domicile of Aliens. The interference was therefore "in accordance with
the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention.
Moreover, when refusing to prolong the applicant's residence
permit, the Swiss authorities considered that the applicant had been
convicted of criminal offences and that his continuing presence in
Switzerland constituted a danger to public order.
In this respect, the Commission observes in particular that the
applicant was convicted of serious offences of repeated and continuing
contraventions against the Narcotics Act, and sentenced to six and a
half years' imprisonment. These offences were committed although the
Aliens' Police had twice admonished the applicant in respect of
previous offences.
The Commission further notes that the applicant's wife is a
citizen of Yugoslavia. Before the Commission the applicant has not
sufficiently shown that the conditions in former Yugoslavia would
nevertheless be alien to his wife, or that the daughter could not adapt
thereto.
It is true that the applicant also appears to refer to a
contradiction between various decisions of Swiss authorities. Thus,
the banishment from Switzerland originally ordered by the Zurich
District Court on 27 March 1991 was suspended on probation.
The Commission notes that the Federal Court decided on the
applicant's case in last resort, after having considered all
circumstances. It found that, in view of the risk of further offences,
the public interest in keeping the applicant away from Switzerland
outweighed any private interests of the applicant in respect of his
personal and family situation.
Having regard to all the circumstances of the present case the
Commission finds that the Swiss authorities have not exceeded the
margin of appreciation which is left to Contracting States in such
circumstances (see Eur. Court H.R., Berrehab judgment of 21 June 1988,
Series A no. 138, p. 15, para. 28).
The Commission therefore considers that the interference with the
applicant's right to respect for family life was justified under
Article 8 (Art. 8) in that it could reasonably be considered "necessary
in a democratic society ... for the prevention of disorder or crime".
The remainder of the application is therefore manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
Order
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to Acting President
the Second Chamber of the Second Chamber
(K. ROGGE) (H. DANELIUS)