AS TO THE ADMISSIBILITY OF
Application No. 16563/90
by B.I.
against Switzerland
The European Commission of Human Rights sitting in private
on 13 July 1990, the following members being present:
MM. J.A. FROWEIN, Acting President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 March 1990
by B.I. against Switzerland and registered on 4 May 1990 under
file No. 16563/90;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts submitted by the applicant may be summarised as
follows.
The applicant, a Turkish citizen born in 1963, is a labourer
currently detained at Witzwil prison in Switzerland. Before the
Commission he is represented by Mr. P. Nüspliger, a lawyer practising
at Berne in Switzerland.
In 1977 the applicant left Turkey and moved to Switzerland
where he has since been living. In 1980 he had a car accident
as a result of which he lost one eye. In 1983 he received permission
to reside in Switzerland (Niederlassungsbewilligung).
In 1980 the applicant married in Turkey. His wife joined him
in 1981 in Switzerland where she received permission to reside.
Their two children were born in Switzerland in 1983 and 1987,
respectively.
In 1986 the Aliens' Police (Fremdenpolizei) of the Canton of
Berne admonished the applicant on account of three convictions
concerning inter alia driving a car despite withdrawal of a learner's
driving licence. On 15 January 1988 the Mendrisio Jury Court
convicted the applicant of various drug offences and sentenced him to
four and a half years' imprisonment as well as to expulsion from
Switzerland, though the latter was suspended for a probation period of
five years.
On 7 March 1988 the Police Direction (Polizeidirektion) of the
Canton of Berne decided definitely to expel the applicant as from the
date of his release from detention, which was envisaged for 7 May 1990.
The Police Direction considered in particular that the applicant's
drug dealing had caused a danger for numerous persons.
The applicant's appeal was dismissed by the Council of State
(Regierungsrat) of the Canton of Berne on 22 February 1989. On 15
December 1989 the Federal Court (Bundesgericht) dismissed his
administrative law appeal (Verwaltungsgerichtsbeschwerde). The Court
relied on Articles 10 and 11 of the Federal Act on the Residence of
Aliens (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer)
according to which foreigners may be expelled, inter alia, if they
have been convicted of a criminal offence, and if the expulsion is
proportionate. The Court found that the applicant's culpability
(Verschulden) with regard to the convictions concerned was serious.
Moreover, he still had ties with Turkey; thus before the Mendrisio
Jury Court the applicant himself had referred to an apartment of his
in Turkey where he eventually intended to return. The Court further
found that the applicant's wife, who had grown up in Turkey, could be
expected to follow her husband. The same applied to their children
who were still young and therefore adaptable.
COMPLAINTS
The applicant now complains under Article 8 of the Convention
of the decision to expel him to Turkey which he submits is
disproportionate as he never constituted a danger to the public. The
conviction resulted from an "accident" ("Ausrutscher") rather than
premeditation. The family is acclimatised in Switzerland and the
children are now expected to return to a country which is entirely
foreign to them. His apartment in Turkey was bought as an investment
object and is used by relatives. The applicant also submits that he is
disabled and awaiting an operation in Switzerland which cannot be
undertaken in Turkey.
THE LAW
1. The applicant complains under Article 8 (Art. 8) of the
Convention that as a result of his expulsion to Turkey he will be
separated from his family which cannot be expected to follow him.
Article 8 (Art. 8) provides:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
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. This situation may arise when, as in
the present case, a married person is obliged to leave a State in
which his spouse and his children are living (cf. No. 9203/80, Dec.
5.5.81, D.R. 24 p. 239).
In the present case the Commission considers that the
applicant's expulsion from Switzerland would interfere with his right
to respect for family life within the meaning of Article 8 para. 1
(Art. 8-1) of the Convention. The Commission's task is now to examine
whether such interference was justified under Article 8 para. 2
(Art. 8-2).
The Commission observes that the Swiss authorities based their
expulsion order on Articles 10 and 11 of the Federal Act on the
Residence of Aliens. The interference is therefore "in accordance
with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention.
Moreover, when deciding to expel the applicant, the Swiss
authorities considered that the applicant had been convicted of drug
offences and that his continuing presence in Switzerland constituted a
danger to public safety. The Commission further notes that the
applicant's wife is of Turkish origin and that the children are of
an adaptable age. Moreover, the applicant owns a flat in Turkey.
In these circumstances it would not be unreasonable to expect the
applicant's wife and children to follow him to Turkey.
The Commission therefore considers that the interference with
the applicant's right to respect for family life is justified under
Article 8 para. 2 (Art. 8-2) of the Convention in that it is
"necessary in a democratic society ... for the prevention of
disorder or crime" as well as "for the protection of health". It
follows that this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant has further complained that the expulsion would
render impossible an important operation in Switzerland. The
Commission, which has examined this complaint under Article 3 (Art. 3)
of the Convention, finds that the applicant has insufficiently
substantiated that the operation would not be possible elsewhere, for
instance in Turkey. It follows that the remainder of the application
is also manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (J. A. FROWEIN)
Full & Egal Universal Law Academy