B.P. AND D.P. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 24377/94
by B. P. and D. P.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 31 August 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
L. LOUCAIDES
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 6 June 1994 by
B. P. and D. P. against Switzerland and registered on 13 June 1994
under file No. 24377/94;
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 applicants, may be
summarised as follows.
The first applicant, a Swiss citizen born in 1943, is a social
worker. The second applicant, an Argentinian citizen born in 1962, is
a businessman. The applicants reside at Burgdorf in Switzerland.
Before the Commission they are represented by Mr. W. Egloff, a lawyer
practising in Bern.
Particular circumstances of the case
On 13 February 1991 the Criminal Court (Kriminalkammer) of the
Canton of Bern convicted the second applicant of repeated and
continuing contraventions of the Narcotics Act (Betäubungsmittel-
gesetz), in particular dealing with cocaine, and sentenced him to five
years' imprisonment and expulsion from Switzerland for five years.
While these criminal proceedings were pending, the second
applicant, who had been remanded in custody at Thorberg prison in the
Canton of Bern, met the first applicant who was a social worker there.
They married on 13 September 1991.
On 10 December 1991 the Aliens' Police (Fremdenpolizei) of the
Canton of Bern ordered the applicant's expulsion for an unlimited
period after his release from imprisonment; reference was made to
Section 7 of the Federal Act on the Residence and Domicile of Aliens
(Bundesgesetz über Aufenthalt und Niederlassung der Ausländer, see
below, Relevant domestic law). The applicants' appeal against this
decision was dismissed by the Police Directorate (Polizeidirektion) of
the Canton of Bern on 1 July 1992.
On 24 November 1992 the applicant was conditionally released from
imprisonment; the expulsion pronounced by the Criminal Court was
suspended on probation.
The applicants' administrative law appeal (Verwaltungsgerichts-
beschwerde) against the decision of 1 July 1992 was upheld by the
Administrative Court (Verwaltungsgericht) of the Canton of Bern on
18 January 1993. The Court found that expulsion was an inadequate
measure, quashed the order of 10 December 1991 and referred the case
back to the Aliens' Police which were ordered to grant a residence
permit to the second applicant.
The Aliens' Office then intended to issue a residence permit.
However, on 5 March 1993 the Federal Office for Aliens' Affairs
(Bundesamt für Ausländerfragen) refused to give its consent thereto.
The applicants' appeal against this decision was dismissed on
20 July 1993 by the Federal Department of Justice and Police
(Eidgenössisches Justiz- und Polizeidepartement) which found inter alia
that the applicant's conviction amounted to a "ground of expulsion"
within the meaning of Section 7 para. 1 of the Federal Act on the
Residence and Domicile of Aliens, and that the refusal of a residence
permit appeared proportionate in the circumstances.
The applicants' further administrative law appeal was dismissed
on 28 February 1994 by the Federal Court (Bundesgericht) which found
that the Federal Office for Aliens' Affairs had been competent to
refuse its consent. The Court also found that Section 7 para. 1 of the
Federal Act on the Residence and Domicile of Aliens did not grant a
right to a residence permit in Switzerland if there was a ground for
expulsion within the meaning of Section 10 of the Federal Act on the
Residence and Domicile of Aliens.
When balancing the conflicting interests (Interessenabwägung) the
Court noted that the applicant had been convicted of exceptionally
serious offences. The decision continued:
<Translation>
"It must furthermore be considered that the (first) applicant
only got to know and to marry her husband when he was already
serving his sentence. Even if she would have assumed that she
could live her marriage in Switzerland despite his criminal
conviction, she must at least have been aware that a residence
permit would not be issued easily ... It is correct that the
(first) applicant would encounter difficulties if she had to
follow her husband to his home country in Argentina. It must
also be considered that she has two - albeit adult - children in
Switzerland, and that her mother, who is of a very advanced age,
also lives here. Also from a professional point of view it will
not be easy for her as a social worker to find adequate
employment in Argentina. The social and cultural, but also the
economic living conditions in Argentina are nevertheless not so
different from those in Switzerland that a life for a Swiss woman
in that country would as a matter of course have to be described
as unacceptable ..."
<German>
"In Betracht fällt sodann, dass die (Erst-)Beschwerdeführerin
ihren Mann erst kennengelernt und geheiratet hat, als sich dieser
bereits im Strafvollzug befand. Auch wenn sie angenommen haben
mochte, sie könne ihre Ehe trotz der strafrechtlichen
Verurteilung in der Schweiz leben, so musste ihr doch zumindest
bewusst sein, dass eine Aufenthaltsbewilligung nicht ohne
weiteres ausgestellt würde ... Zutreffend ist zwar, dass es für
die (Erst-)Beschwerdeführerin mit Schwierigkeiten verbunden wäre,
ihrem Ehemann in dessen Heimat nach Argentinien zu folgen. Dabei
ist zu berücksichtigen, dass sie in der Schweiz zwei - allerdings
erwachsene - Kinder hat und auch ihre betagte Mutter hier lebt.
Aber auch in beruflicher Hinsicht dürfte es für sie als
Sozialarbeiterin nicht einfach sein, in Argentinien eine
angemessene Beschäftigung zu finden. Dennoch sind die
Lebensverhältnisse in Argentinien in sozialer und kultureller,
aber auch in wirtschaftlicher Hinsicht nicht derart verschieden
von denjenigen, wie sie in der Schweiz bestehen, dass ein Leben
in diesem Land für eine Schweizerin zum vorneherein als
unzumutbar bezeichnet werden müsste ..."
The Court further found that the offences at issue were serious;
however, the more serious the nature of the offences committed, the
less acceptable was the risk of a new criminal offence. The Court
concluded that in the present case the interests of public order and
security prevailed over the interest of the applicants in a residence
permit for the second applicant in Switzerland.
On 12 April 1994 the Federal Office for Aliens' Affairs ordered
the second applicant to leave Switzerland by 31 May 1994.
Relevant domestic law
Section 7 para. 1 of the Federal Act on the Residence and
Domicile of Aliens states, insofar as relevant:
<Translation>
"The foreign spouse of a Swiss citizen has a right to be granted,
or have prolonged, a residence permit ... This right no longer
exists if there is a ground for expulsion."
<German>
"Der ausländische Ehegatte eines Schweizer Bürgers hat Anspruch
auf Erteilung und Verlängerung der Aufenthaltsbewilligung ...
Der Anspruch erlischt, wenn ein Ausweisungsgrund vorliegt."
Section 10 para. 1 (a) of the Federal Act states that a foreigner
can be expelled from Switzerland inter alia if he has been punished by
a court for a criminal offence (wegen eines Verbrechens oder Vergehens
gerichtlich bestraft).
COMPLAINTS
The applicants complain under Article 8 of the Convention that
the second applicant has not been granted a residence permit in
Switzerland.
The applicants submit, inter alia with reference to the
Administrative Court's decision of 18 January 1993, that the first
applicant cannot be expected to live in Argentina where she will not
find employment. She also refers to the inferior position of women in
South America; to the dirty air in Buenos Aires where she will suffer
in view of her asthma; to her two children, a grandchild and her mother
residing in Switzerland; and to her political activities in
Switzerland.
The applicants further complain that the measure lacked a legal
basis. Thus, the Administrative Court quashed the second applicant's
expulsion; as a result, the first applicant has a right to a residence
permit within the meaning of Section 7 of the Federal Act on the
Residence and Domicile of Aliens.
Finally, the applicants point out that the second applicant has
changed his ways for which reason the measure is not "necessary" within
the meaning of Article 8 para. 2 of the Convention.
Considerations
THE LAW
The applicants complain that the refusal to grant the second
applicant a residence permit will separate him from his wife, the first
applicant. They rely 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."
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, 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).
In the present case, the Commission notes that the applicants are
a married couple, and that the first applicant is a Swiss citizen.
Thus, the second applicant's expulsion from Switzerland interfered with
the applicants' 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 7 para. 1 of the Federal Act on the Residence and Domicile of
Aliens. According to this provision, the second applicant no longer
had a right to a residence permit in view of his conviction of a
criminal offence, the latter constituting a ground for expulsion within
the meaning of Section 10 para. 1 (a) of the Federal Act. 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 second applicant had
been convicted of serious criminal offences. The Commission notes in
particular that he was convicted of contraventions of the Narcotics
Act, in particular dealing with cocaine, and sentenced to five years'
imprisonment.
Furthermore, the applicants married after the second applicant's
conviction, and while he was in prison. They had therefore to expect
that, upon his release from prison, they would have to continue their
married life outside Switzerland.
The Federal Court found in its decision of 28 February 1994 that
the social, cultural and economic living conditions in Argentina are
not so different from those in Switzerland that life for a Swiss woman
in that country would as a matter of course have to be described as
unacceptable.
The first applicant has also not shown in what respect her
mother, her two adult children, or her grandchild, are dependent on
her.
It is true that in the applicants' submissions the second
applicant has meanwhile changed his ways. Reference has also been made
to the Administrative Court's decision of 18 January 1993 which quashed
the decision regarding the second applicant's expulsion. However, the
Commission notes that the Federal Court decided on the applicants' case
in the last resort, after having considered all circumstances of the
case. It found that the more serious the nature of the offences
committed, the less acceptable was the risk of a new offence, and that
the interests of public order and security prevailed over the interest
of the applicants in a residence permit for the second applicant in
Switzerland.
Taking into account 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 does not find that the Swiss authorities, which refused a
residence permit, acted unreasonably when balancing the interests
involved.
The Commission therefore considers that the interference with the
applicants' right to respect for family life was justified under
Article 8 para. 2 (Art. 8-2) of the Convention in that it could
reasonably be considered "necessary in a democratic society ... for the
prevention of disorder or crime".
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)