I.P. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 24080/94
by I. P.
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
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 17 March 1994 by
I. P. against Switzerland and registered on 3 May 1994 under file
No. 24080/94;
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 1961 and of Serb origin, is a national of
former Yugoslavia residing at Chur in Switzerland. He is represented
by Mr H.-M. Allemann, a lawyer practising in Chur.
In 1988 the applicant married M.D., a national of former
Yugoslavia of Bosnian origin. M.D. had been granted the right to
domicile (Niederlassungsbewilligung) in Switzerland since 1984. In
1988 the applicant joined his wife in Switzerland where he obtained a
residence permit (Aufenthaltsbewilligung).
On 25 May 1989 the Davos District Court (Kreisgericht) convicted
the applicant of attempted compulsion to an indecent act (Nötigung zu
einer unzüchtigen Handlung) and sentenced him to three months'
conditional imprisonment. The offence had been committed under the
influence of alcohol. As a result of the conviction, the Aliens'
Police issued a disciplinary admonition (Verwarnung).
On 12 March 1990 the Cantonal Court (Kantonsgericht) of the
Canton of Graubünden convicted the applicant of rape (Notzucht) and of
having committed bodily harm (einfache Körperverletzung) and sentenced
him to two and a half years' imprisonment. The offences had been
committed under the influence of alcohol. The Court also revoked the
suspensive effect of the previous sentence and ordered the applicant's
banishment (Landesverweisung) from Switzerland for ten years.
On 16 April 1991 the Government (Regierung) of the Canton of
Graubünden decided in application of Article 38 of the Swiss Penal Code
provisionally to release the applicant from prison. It further
suspended the applicant's expulsion from Switzerland for a probationary
period of three years and ordered him to submit to an alcohol
withdrawal treatment. In its decision the Government referred to the
applicant's excellent conduct in prison; it also considered that the
case-file did not demonstrate that the applicant's presence constituted
a danger to public security.
The applicant then applied for a prolongation of his residence
permit. This was refused by the Aliens' Police (Fremdenpolizei) of the
Canton of Graubünden on 14 May 1991 and, upon appeal, by the Department
of Justice, Police and Health (Justiz-, Polizei und Sanitätsdeparte-
ment) of the Canton of Graubünden on 16 August 1991. The latter
referred inter alia to the fact that both offences had been committed
under the influence of alcohol, and that the applicant had already in
Yugoslavia unsuccessfully undergone treatment against alcoholism.
The applicant's further appeal was dismissed by the Government
of the Canton of Graubünden on 4 February 1992. Insofar as the
applicant complained of a contradiction in that the Government of the
Canton of Graubünden, in its decision of 16 April 1991, had found that
the applicant did not constitute a danger to public security, the
Government found that those proceedings had concerned the applicant's
criminal conviction, whereas in the present proceedings the Aliens'
Police was considering a threat to public order and security.
The applicant then filed an administrative law appeal
(Verwaltungsgerichtsbeschwerde) which the Federal Court (Bundesgericht)
dismissed on 24 January 1994.
The Federal Court considered that the applicant had been
sentenced to altogether two and three quarter years' imprisonment, that
his culpability was severe, and that he had clearly contravened public
order within the meaning of 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 Federal Court noted that the applicant had committed the
second offence during the probation period following his first
conviction, and in spite of an admonition of the Aliens' Police. The
Court found that with his inclination to violence the applicant
constituted a continuing danger to public order. The decision states:
<Translation>
"On the other hand, the applicant's wife has already spent nine
years in Switzerland. In view of her advanced integration in
Switzerland a return would imply much bigger difficulties. The
applicant is of Serb origin; the family of his wife apparently
lives in Bosnia. Apparently the relations with the family have
been broken on account of her marriage with the applicant. The
couple are not obliged to travel to Bosnia and furthermore do not
depend on these family relations; the family situation is
therefore not relevant. The decisive point is rather that the
wife also stems from former Yugoslavia, and that the conditions
there are not completely alien to her. She can therefore be
expected to return. In this connection, the present situation
of civil war is not directly pertinent: rather, it will become
relevant in case the applicant's removal must be ordered and
executed."
<Original>
"Anderseits weilt seine Ehefrau seit über neun Jahren in der
Schweiz. Für sie ist eine Rückkehr angesichts ihrer
fortgeschrittenen Integration in der Schweiz mit erheblich
grösseren Schwierigkeiten verbunden. Der Beschwerdeführer ist
serbischer Herkunft; die Familie seiner Frau soll ... in Bosnien
leben. Die Beziehungen zur Familie seien, angeblich wegen ihrer
Heirat mit dem Beschwerdeführer, abgebrochen worden. Da die
Ehegatten nicht nach Bosnien ausreisen müssen und ausserdem auf
diese familiären Beziehungen auch nicht angewiesen sind, ist die
familiäre Situation nicht ausschlaggebend. Entscheidend ist
vielmehr, dass die Ehefrau ebenfalls aus dem ehemaligen
Jugoslawien stammt und ihr die dortigen Verhältnisse nicht völlig
fremd sind. Eine Rückkehr ist ihr daher zumutbar. Die aktuelle
Bürgerkriegssituation ist in diesem Zusammenhang nicht
unmittelbar massgeblich; sie ist vielmehr für die Anordnung oder
den Vollzug einer allfälligen Wegweisung des Beschwerdeführers
von Belang."
The Aliens' Police requested the applicant to leave Switzerland
before 31 March 1994.
COMPLAINTS
The applicant complains under Article 8 of the Convention that
his expulsion from Switzerland will separate him from his wife who has
the right to domicile in Switzerland. The applicant submits that upon
his return he would have to serve in the Serb army and would therefore
be prevented from leaving former Yugoslavia for a long period of time.
The applicant points out that his good conduct in prison led to
his provisional release, and that the Government of the Canton of
Graubünden, in its decision of 16 April 1991, found that the applicant
did not constitute a danger to public security. Thus, the reasons for
expulsion could not be urgent. He also submits that he has overcome
his alcohol problems by submitting to treatment against alcoholism
(Antabuskur).
The applicant further submits that his wife has completely
distanced herself from her family in former Yugoslavia, and no ties
whatsoever remain. She has integrated in Switzerland, speaks German
well and cannot be expected to return.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 March 1994.
On 23 March 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 3 May 1994.
Considerations
THE LAW
The applicant complains that the refusal to prolong his residence
permit will separate him from his wife who has the right to domicile
in Switzerland. 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."
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 applicant's
wife has been permitted to establish domicile in Switzerland where she
lawfully resides. Thus, the applicant's expulsion from Switzerland
interfered with his 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, namely of attempted
compulsion to an indecent act and of rape. The second offence was
committed during the probation period following his first conviction
and in spite of an admonition of the Aliens' Police. The applicant was
sentenced altogether to two and three quarter years' imprisonment.
It is true that the applicant submits that he has meanwhile
submitted to a treatment against alcoholism. However, in its decision
of 16 August 1991 the Department of Justice, Police and Health of the
Canton of Graubünden found that the applicant had already in Yugoslavia
unsuccessfully undergone treatment against alcoholism.
The Commission further notes the Federal Court's decision of
24 January 1994 according to which the applicant's wife is a citizen
of former Yugoslavia. As she does not depend on any family relations,
she is not obliged to travel to Bosnia.
Before the Commission the applicant has furthermore not
sufficiently explained in what respect the Federal Court was wrong in
finding that the conditions in former Yugoslavia would not be alien to
his wife.
It is true that the applicant also submits that the Swiss
authorities contradicted themselves. Thus, the Government of the
Canton of Graubünden in its decision of 16 April 1991 originally found
that the applicant did not constitute a danger to public security.
The Commission notes that the Federal Court decided on the
applicant's case in last resort, after having considered all
circumstances. It found that the applicant's inclination to violence
constituted a continuing danger to public order and outweighed any
difficulties which the applicant's wife would encounter upon her
return. 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 achieved an
improper balance between the interests involved.
The Commission therefore considers that the interference with the
applicant's right to respect for family life was justified under this
provision 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)