YALCINKAYA v. SWITZERLAND

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant, a Turkish citizen born in 1952, is an employee

who until January 1991 resided at Reinach in Switzerland. He

apparently now resides in Turkey. Before the Commission he is

represented by Mr. A. Flachsmann, a lawyer practising in Zurich.

In 1978 the applicant was permitted to reside in Switzerland

(Aufenthaltsbewilligung). In 1979 his wife, who is also a Turkish

citizen, joined him. Their son was born in 1980. In January 1991 the

applicant left Switzerland.

I.

In 1987 the applicant, after heavy alcohol consumption, fired

various shots with a revolver and thereby accidentally injured his

sister-in-law who eventually died.

On 8 January 1988 the Criminal Court (Strafgericht) of the

Canton of Basel-Landschaft convicted the applicant of committing in

1987 inter alia the offence of a multiple threat to life (mehrfache

Lebensgefährdung), in one case with the result of death, and of

attempted compulsion (versuchte Nötigung), and sentenced him to three

and a half years' imprisonment. The applicant was also ordered to

undergo a medical treatment of his alcoholism. In view of the

applicant's wife and son the Court refrained from expelling him from

Switzerland.

On 26 February 1988 the Aliens' Police (Fremdenpolizei) of the

Canton of Basel-Landschaft decided not to renew the residence permit

of the applicant and his family after his release from prison. His

appeal against this decision was dismissed by the Council of State

(Regierungsrat) of the Canton of Basel-Landschaft on 6 September 1988

which nevertheless decided to exclude the applicant's wife and child

from the decision.

On 29 March 1988 the Federal Aliens Office (Bundesamt für

Ausländerfragen) issued two decisions ordering the applicant's

expulsion from, and a prohibition to enter, Switzerland.

On 9 August 1989 the applicant's wife and son were permitted

to establish their domicile in Switzerland (Niederlassungsbewilligung)

on account of their ten years' residence.

On 16 October 1989 the Aliens Police dismissed the applicant's

request to reconsider its previous decision in the light of the

changed circumstances. The applicant's appeal was dismissed by the

Council of State of the Canton of Basel-Landschaft on 12 December

1989.

II.

Meanwhile, the applicant appealed against the decisions of the

Federal Aliens Office of 29 March 1988 to the Federal Department of

Justice and Police (Eidgenössisches Justiz- und Polizeidepartement).

On 1 December 1989 the Department dismissed the appeal.

In its decision the Department considered with regard to

Article 8 of the Convention that there was nothing to show that the

applicant's marriage was disrupted. On the other hand, the

applicant's wife was a Turkish citizen who had grown up in Turkey and

hardly spoke German. Thus, she could be expected to follow the

applicant to Turkey, particularly as they had spent longer periods of

time living together with the now deceased sister-in-law. The

Department further found that for this reason the nine-year old child

was acquainted with the Turkish language and customs.

The Department further considered that, given the serious

offences of which the applicant was convicted, the interest of the

general public in his expulsion outweighed his interest in family

life. It also considered that the legal basis for the expulsion lay

in Articles 4, 12 and 13 of the Federal Act on Aliens' Residence and

Domicile (Bundesgesetz über Aufenthalt und Niederlassung der

Ausländer). Article 4 states that the competent authority may, within

the framework of the law, freely decide on the permission to grant

residence and domicile in Switzerland. Article 12 provides that the

alien who has no such permission may at any time be requested to leave

Switzerland. Article 13 states that an unwanted alien can be

prohibited from entering Switzerland.

The Department finally considered that other measures were not

proportionate to the aim concerned. It noted that the applicant's

attempt to have his alcoholism cured remained unsuccessful. While he

had not given any grounds for complaint in prison, it could not be

assumed with sufficient certainty that in daily life outside he would

not return to his old habits.

III.

Against the decision of the Council of State of 12 December

1989 the applicant filed an administrative law appeal

(Verwaltungsgerichtsbeschwerde) which the Federal Court

(Bundesgericht) dismissed on 24 September 1990.

The Court considered in particular that, although the applicant

and his family had a close relationship with Switzerland, they had not

broken off contacts with Turkey. His wife had bonds with her home

country. Moreover, the applicant's culpability was considerable. He

had contravened substantially the Swiss legal order and abused his

right as a guest. In the Court's view he had to be considered an

alcoholic and a criminal. Insofar as he complained of the strained

relationship with his wife's family in Turkey, the Court found that he

was himself responsible for it as he had brought about his

sister-in-law's death.

COMPLAINTS

The applicant complains under Article 8 of the Convention that

his expulsion from Switzerland has resulted in a separation from his

family. His son would have difficulties adapting to Turkish schools.

Moreover, if he returns to his home village his brother-in-law may

take revenge for his sister-in-law's death.

The applicant claims that his alcoholism results largely from

unfortunate circumstances. He points out that all these authorities

with whom he had personal contact issued a favourable prognosis for

his future conduct. After his release from prison in Switzerland he

had integrated well and was cured from alcoholism.