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.

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:

"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 ..."

"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:

"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."

"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:

"A foreigner may be expelled from Switzerland ... only if:

<a> he has been punished by a court for a criminal

offence;"

"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)