Z.A. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 25036/94
by Z. A.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 18 October 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 11 July 1994 by
Z. A. against Switzerland and registered on 31 August 1994 under file
No. 25036/94;
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 1965, is a Slovenian citizen. When filing
his application he resided in Berne in Switzerland. Before the
Commission he is represented by Ms. Suzanne Lehmann, a lawyer
practising in Basel.
I.
The applicant resided in Switzerland for three months in 1986 and
1987. On 25 February 1988 he married a Swiss citizen as a result of
which he obtained a residence permit.
On 26 February 1988 a penal order was served on the applicant
sentencing him to a fine of 300 SFr for having driven a car without a
driving licence and for breach of domicile (Hausfriedensbruch).
After quarrels with his wife and a period of detention on remand,
the applicant returned to Yugoslavia in 1990.
On 21 September 1990 the Federal Office for Aliens' Affairs
(Bundesamt für Ausländerfragen) refused the applicant entry into
Switzerland. However, it annulled this order on 22 October 1990 when
the applicant's wife declared her wish to resume marital life. The
applicant then returned to Switzerland.
II.
On 18 April 1991 the Court of Appeal of the Canton of Berne
convicted the applicant inter alia of repeated and qualified theft
displaying a particular danger (fortgesetzter, qualifizierter Diebstahl
unter Offenbarung besonderer Gefährlichkeit), of repeated and
continuing damage to property (wiederholte und fortgesetzte
Sachbeschädigung) and of receiving stolen goods (Hehlerei). He was
sentenced to six and a half months' imprisonment suspended on
probation.
On 11 June 1991 the President of a Berne District Court
(Gerichtspräsident) sentenced the applicant to 15 days' imprisonment
suspended on probation and to a fine of 800 SFr for drunken driving
(Fahren in angetrunkenem Zustand).
On 27 October 1992 the Berne Criminal District Court (Strafamts-
gericht) convicted the applicant inter alia of contraventions of the
Narcotics Act (Betäubungsmittelgesetz) and sentenced him to 42 months'
imprisonment and expulsion from Switzerland for six years, the latter
suspended on probation.
On 2 February 1994 the President of the Erlach District Court
sentenced the applicant to seven days' imprisonment for a contravention
of the Narcotics Act while serving his prison sentence.
On 11 March 1994 the applicant was released from prison on
probation after having served two thirds of his prison sentence.
III.
Meanwhile, on 27 November 1992 the Aliens' Police (Fremdenpoli-
zei) of the Canton of Berne refused to prolong his residence permit and
ordered his expulsion after his release from imprisonment.
An appeal against this decision was dismissed on 25 January 1994
by the Police Directorate (Polizeidirektion) of the Canton of Berne
which relied on Articles 7 and 10 para. 1 of the Federal Act on the
Residence and Domicile of Aliens (Bundesgesetz über Aufenthalt und
Niederlassung der Ausländer, see below, Relevant domestic law).
The applicant's administrative law appeal (Verwaltungsgerichts-
beschwerde) was dismissed by the Administrative Court (Verwaltungs-
gericht) of the Canton of Berne on 30 March 1994.
On 28 April 1994 the applicant filed a further administrative law
appeal which the Federal Court (Bundesgericht) dismissed on 2 June
1994.
In its decision the Court found that Article 7 para. 1 of the
Federal Act on the Residence and Domicile of Aliens did not grant
foreign spouses of Swiss citizens a right to a residence permit in
Switzerland if there was a ground for expulsion within the meaning of
Article 10 of the Federal Act on the Residence and Domicile of Aliens.
The decision noted that the applicant had been convicted of serious
offences and then continued:
<Translation>
"In respect of such serious contraventions, from which
a ruthless behaviour transpires, the Aliens' Police has a
weighty interest, for the protection of Swiss order and
security and for the security of others, in keeping the
applicant away from Switzerland. This interest must be
balanced against the applicant's personal and family
interests in staying in Switzerland.
When balancing these conflicting interests it must
first be considered that the applicant is married to a
Swiss citizen. Nevertheless, someone who, like the
applicant, has seriously contravened the domestic legal
order and thereby has frequently had to be punished, once
even with several years' imprisonment, has in principle to
accept that he must leave Switzerland and cannot lead his
marital life here. This also applies, even in regard to
Article 8 para. 2 of the Convention, when the spouse cannot
be expected to follow the husband abroad ... The balancing
of interests would only lead to another conclusion if there
were special circumstances, for instance if the foreigner,
after many years of orderly residence, had well established
roots in Switzerland and had committed an isolated crime or
offence. However, it would have to be a real exception.
Such special circumstances do not transpire here ..."
<German>
"Bei derart schweren Verfehlungen, die auf eine
rücksichtslose Haltung schliessen lassen, besteht ein
gewichtiges fremdenpolizeiliches Interesse daran, den
Beschwerdeführer zum Schutze der schweizerischen Ordnung
und Sicherheit sowie zum Schutze anderer von der Schweiz
fernzuhalten. Diesem Interesse sind die persönlichen und
familiären Interessen des Beschwerdeführers an einem Ver-
bleib in der Schweiz gegenüberzustellen.
Bei der Interessenabwägung ist vorab zu berücksichti-
gen, dass der Beschwerdeführer mit einer Schweizerin ver-
heiratet ist. Wer jedoch, wie er, in schwerer Weise gegen
die hiesige Rechtsordnung verstossen hat und deshalb mehr-
mals bestraft werden musste, einmal zu einer mehrjährigen
Freiheitsstrafe, hat grundsätzlich in Kauf zu nehmen, dass
er die Schweiz verlassen muss und die Ehe nicht mehr hier
leben kann. Dies gilt, auch unter dem Gesichtspunkt von
Art. 8 Ziff. 2 EMRK, selbst dann, wenn der Ehefrau nicht
zugemutet werden kann, ihm ins Ausland nachzuziehen ... Zu
einem anderen Ergebnis kann die Interessenabwägung höch-
stens dann führen, wenn besondere Umstände vorliegen, etwa
wenn der Ausländer nach langjähriger ordnungsgemässer Anwe-
senheit in der Schweiz fest verwurzelt ist und sich ein
vereinzeltes Verbrechen oder Vergehen hat zuschulden kommen
lassen. Es muss aber ein eigentlicher Ausnahmefall vorlie-
gen.
Solche besonderen Umstände sind hier nicht erkennbar ..."
The Court then recalled that the applicant had only briefly
resided in Switzerland during short periods in 1986 an 1987 whereupon
he entered the country in 1988. However, shortly thereafter he
commenced committing offences and spent a longer time in prison, and
in 1990 he spent some months in Yugoslavia. He could not at all
therefore be considered as having been integrated in Switzerland.
Finally, insofar as the applicant referred to his problems with
alcohol the Federal Court found that it could not consider this point
as it had not been raised before the previous instance.
IV.
The Aliens' Police of the Canton of Berne has ordered the
applicant to leave Switzerland before 15 July 1994. It does not appear
that the applicant has in the meantime left Switzerland.
Article 7 para. 1 of the Federal Act on the Residence and
Domicile of Aliens states:
<Translation>
"The foreign spouse of a Swiss citizen has a right to be
granted or have prolonged, a residence permit ... This
right ceases to exist if there is a ground for expulsion."
<German>
"Der ausländische Ehegatte eines Schweizer Bürgers hat
Anspruch auf Erteilung und Verlängerung der Aufenthalts-
bewilligung ... Der Anspruch erlischt, wenn ein Auswei-
sungsgrund vorliegt."
Article 10 para. 1 <a> of this Act states:
<Translation>
"A foreigner may be expelled from Switzerland ... only if:
<a> he has been punished by a court for a criminal
offence;"
<German>
"Der Ausländer kann aus der Schweiz ... nur ausgewiesen
werden:
<a> wenn er wegen eines Verbrechens oder Vergehens
gerichtlich bestraft wurde;"
COMPLAINTS
The applicant complains under Article 8 of the Convention that
his residence permit in Switzerland has not been prolonged and that he
will therefore be separated from his wife. He submits that she cannot
be expected to follow him abroad as she is a Swiss citizen who does not
speak his mother tongue. Thus, his personal interest in staying in
Switzerland and in leading his marital life outweighs the interests of
public order and security. The applicant also submits that he is
changing his ways in that he is coming to terms with his alcohol
problem.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 July 1994.
On 19 July 1994 the President of the Commission decided not to
apply Rule 36 of the Rules of Procedure.
Following further correspondence, the application was registered
on 31 August 1994.
Considerations
THE LAW
The applicant complains under Article 8 (Art. 8) of the
Convention that his residence permit has not been prolonged and that
he will therefore be separated from his wife. Article 8 (Art. 8)
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 is
married to a Swiss citizen living in Switzerland who cannot reasonably
be expected to follow her husband to Slovenia. Thus, the refusal to
grant him a residence permit interferes with his right to respect for
his family life within the meaning of Article 8 para. 1 (Art. 8-1) of
the Convention. The Commission has therefore to examine whether such
interference is justified under Article 8 para. 2 (Art. 8-2) of the
Convention, i.e. whether it was in accordance with the law and
necessary in a democratic society for one of the aims mentioned in that
provision.
The Commission observes that the Swiss authorities, when refusing
to prolong the applicant's residence permit, relied on Articles 7 and
10 (Art. 7, 10) of the Federal Act on the Residence and Domicile of
Aliens. According to these provisions, the applicant as the spouse of
a Swiss citizen no longer had a right to a residence permit in view of
his convictions for criminal offences which constituted a ground for
expulsion. 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 several times of serious offences. The Commission notes in
particular that he was convicted of contraventions of the Narcotics Act
and sentenced altogether to four years' imprisonment.
Furthermore, in its decision of 2 June 1994 the Federal Court
carefully balanced the various interests. It considered, on the one
hand, that the applicant was married to a Swiss citizen who could not
be expected to live abroad. On the other hand, it considered that the
applicant had committed serious criminal offences, that he constituted
a danger to public order and that it could not be said that he had
become integrated in Switzerland.
The Federal Court also noted the applicant's statement that he
was coming to terms with his alcohol problem, but observed that this
point could not be considered as it had not previously been raised
before the Administrative Court.
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 to
prolong his residence permit, acted unreasonably when balancing the
various interests involved.
The Commission therefore considers that the interference with the
applicant's 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 the Acting President of the
Second Chamber Second Chamber
(K. ROGGE) (H. DANELIUS)