V.K. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 34295/96
by V. K.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 26 February 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. S. TRECHSEL
J.-C. GEUS
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, 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 December 1996
by V. K. against Switzerland and registered on 19 December 1996 under
file No. 34295/96;
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 applicant, born in 1960, is of Croat origin and a citizen of
former Yugoslavia. He resides in Subotica in Yugoslavia. Before the
Commission he is represented by Mr St. Fraefel, a lawyer practising in
Bern.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant was married to a citizen of former Yugoslavia.
They have a son born in 1987. The applicant and his wife obtained the
authorisation briefly to enter and reside in Switzerland
(Kurzaufenthalts-Bewilligung).
In 1990 the applicant's wife and their son entered Switzerland
and in 1992 they obtained an annual residence authorisation
(Jahresaufenthalts-Bewilligung).
The applicant who had entered Switzerland in 1991 obtained a
restricted residence authorisation in 1993 in order to enable him to
stay with his wife and son. The authorisation was granted until
31 August 1995. The applicant lived with his wife and son.
On 24 August 1994 the applicant attacked and injured his wife and
damaged her clothes. The applicant's wife was hospitalised for nine
days.
On 20 June 1995 the applicant was convicted of having committed
simple bodily injury and damage to property (einfache Körperverletzung
und Sachbeschädigung) and sentenced to three months' imprisonment,
suspended on probation.
On 23 June 1995 the applicant and his wife were divorced. The
son was placed under the parental authority of the applicant's wife.
The applicant was granted the right to visit his son on Saturdays and
Sundays on the first and third weekend of every month.
On 25 August 1995 the Aliens' Police (Fremdenpolizei) of the
Canton of Bern dismissed the applicant's request for a prolongation of
his residence authorisation. Reference was made in particular to the
divorce and his criminal conviction. The applicant's appeal was
dismissed by the Police and Military Directorate (Polizei- und
Militärdirektion) of the Canton of Bern on 7 November 1995.
The applicant's administrative law appeal (Verwaltungsgerichts-
Beschwerde), in which he relied on Article 8 of the Convention, was
rejected by the Administrative Court (Verwaltungsgericht) of the Canton
of Bern on 6 March 1996. In its decision the Court referred in
particular to the established case-law of the Federal Court
(Bundesgericht) on Article 8 of the Convention. Thus, family members
could only join a person in Switzerland if the latter had either Swiss
nationality or the authorisation to establish domicile (Niederlassungs-
bewilligung), while a mere residence authorisation did not suffice.
As the applicant's wife and son had neither Swiss nationality nor a
permission to establish domicile, the applicant was not entitled to
invoke Article 8 of the Convention in order to have his residence
authorisation prolonged.
The applicant's further administrative law appeal was dismissed
by the Federal Court on 14 May 1996, the decision being served on the
applicant on 7 June 1996. With reference to its case-law the Court
found that the applicant's wife and son did not have a consolidated
right to stay (gefestigtes Anwesenheitsrecht) in Switzerland and that,
therefore, Article 8 of the Convention did not entitle him to a
prolongation of the residence authorisation.
The applicant left Switzerland in September 1996.
According to S. 1 of the Federal Act on Residence and Domicile
of Foreigners (Bundesgesetz über Aufenthalt und Niederlassung der
Ausländer), foreigners may only stay in Switzerland if they have a
residence authorisation or the right to domicile in Switzerland.
S. 5 para. 1 of the Act provides that a foreigner may be expelled
from Switzerland if he has been punished by a court for a criminal
offence.
According to S. 38 of the Federal Ordinance on the Limitation of
the Number of Foreigners (Verordnung über die Begrenzung der Zahl der
Ausländer), the Cantonal Aliens' Police may permit the spouse and
unmarried children under 18 years of age to join a foreigner in
Switzerland.
COMPLAINTS
The applicant complains under Article 8 of the Convention that
the Swiss authorities did not prolong his residence authorisation. As
a result, he has been separated from his son.
The applicant contests the Federal Court's case-law, according
to which Article 8 of the Convention can only be invoked when there is
a consolidated right to stay in Switzerland. He submits that this
case-law does not comply with the Convention organs' case-law under
Article 8 of the Convention. He claims that he had intensive contacts
with his son; indeed, he was granted the right regularly to visit him.
His former wife, on the other hand, has been living in Switzerland
since 1990 and has regular employment.
The applicant points out that his son came to Switzerland when
he was three and a half years old. He started school there and is now
in the fourth grade. He has integrated into Switzerland and speaks
German better than Serbo-Croat. The applicant submits that it cannot
be expected from his son to leave his mother and to follow him to war-
torn former Yugoslavia. The applicant himself is currently without
employment and cannot afford trips to Switzerland.
The applicant complains that the measure is disproportionate and
is in particular not justified in view of his criminal conviction. He
points out that he once lost control over himself and injured his wife.
This was a single occurrence; in view of his good conduct, his sentence
was suspended on probation. Since then he has had normal relations
with his former wife and no further such events occurred. He also
never gave rise to any other complaints while in Switzerland where he
had regular employment.
Considerations
THE LAW
The applicant complains under Article 8 (Art. 8) of the
Convention that his residence authorisation has not been prolonged and
that he has therefore been separated from his son. Article 8 (Art. 8)
states, insofar as relevant:
"1. Everyone has the right to respect for his private and
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 his private and family life guaranteed in Article 8 para. 1
(Art. 8-1) of the Convention (see Eur. Court HR, Moustaquim v. Belgium
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).
The Commission has examined whether the refusal of the Swiss
authorities to prolong the applicant's residence authorisation in
Switzerland will separate him from close members of the family and thus
infringe his right to respect for family life within the meaning of
Article 8 (Art. 8) of the Convention.
According to the Convention organs' case-law, from the moment of
a child's birth and by the very fact of it, there exists between the
child and its parents a bond amounting to "family life", even if the
parents are not then living together (see Eur. Court HR, Berrehab v.
Netherlands judgment of 21 June 1988, Series A no. 138, p. 14,
para. 21).
In the present case, the applicant had a son with whom he lived
in Switzerland from 1993 until 1995. After his divorce, the applicant
was granted the right regularly to visit his son. As a result, the
refusal to prolong the applicant's residence authorisation interfered
with his right to respect for his private and 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.
S. 1 of the Federal Act on Residence and Domicile of Foreigners
provides that foreigners may only stay in Switzerland if they have a
residence authorisation or the right to domicile in Switzerland. S. 5
of the Act provides that a foreigner may be expelled from Switzerland
if he has been punished by a court for a criminal offence. S. 38 of
the Federal Ordinance on the Limitation of the Number of Foreigners
states that the Cantonal Aliens' Police may permit the spouse and
unmarried children under 18 years of age to join a foreigner in
Switzerland.
According to these provisions, after the applicant's criminal
conviction and his divorce, he no longer had a right to stay in
Switzerland. 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 grant the applicant a new residence
permit, the Swiss authorities, in particular the Aliens' Police of the
Canton of Bern in its decision of 25 August 1995, based their decisions
on the fact that the applicant had been convicted of a criminal
offence. The interference was therefore imposed "for the prevention
of disorder or crime" within the meaning of Article 8 para. 2
(Art. 8-2) of the Convention.
Finally, the Commission has examined whether the measure was
"necessary in a democratic society" within the meaning of Article 8
para. 2 (Art. 8-2) of the Convention, as interpreted in the Convention
organs' case-law (see Eur. Court HR, Berrehab judgment, loc. cit., p.
15, para. 27).
The Commission considers, on the one hand, that the applicant's
son, who is under the parental authority of his mother and has
integrated well in Switzerland, cannot be expected to follow the
applicant.
Moreover, as in the Berrehab case, the present applicant has had
close ties with his son for many years. The Commission finds this to
be confirmed by the fact that the Swiss authorities, when pronouncing
the divorce of the applicant and his wife, granted the applicant the
right to visit his son on two weekends every month. Furthermore, the
applicant has lawfully lived in Switzerland for some time where he had
regular employment (see Eur. Court HR, Berrehab judgment, loc. cit.,
p. 16, para. 29).
On the other hand, the present case differs from the Berrehab
case in that the present applicant has committed a criminal offence
which, in fact, was directed against a family member.
Moreover, other than referring to financial difficulties, the
applicant has not shown, or even claimed, that he will not be able to
visit his son in Switzerland on the basis of a short term temporary
visa or that the son would be unable to visit him in Yugoslavia.
Taking into account the margin of appreciation which is left to
Contracting States in such circumstances (see Eur. Court HR, Berrehab
judgment, loc. cit., p. 15, para. 28), the Commission considers that
the interference with the applicant's right to respect for his private
and 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
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber