AS TO THE ADMISSIBILITY OF
Application No. 23810/94
by B.H., T.H., R.H. and R.H.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 May 1994, the following members being present:
MM. H. DANELIUS, Acting President
S. TRECHSEL
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
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 8 March 1994 by
B.H., T.H., R.H. and R.H. against Switzerland and registered on
6 April 1994 under file No. 23810/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants are Kosovo Albanians currently residing at Zell
in Switzerland. The first applicant was born in 1967. The second
applicant, his wife, was born in 1965. The third and fourth
applicants, born in 1989 and 1991, respectively, are their children.
As from 1989 the first applicant had the permission to enter, and
reside, in Switzerland as a seasonal worker (Saisonnier). His
permission for the year 1992 ended on 12 December 1992.
The first applicant then filed a request for himself and the
other applicants, claiming special circumstances which warranted
commutation of the seasonal permission to a regular residence
permission (Jahresaufenthaltsbewilligung). This request was refused
on 13 July 1993 by the Federal Aliens' Office (Bundesamt für
Ausländerfragen) on the ground that the applicant had not resided as
a seasonal worker during four consecutive years in Switzerland.
The applicants' further appeal (Beschwerde) was dismissed on
15 June 1993 by the Federal Department of Justice and Police (Eidgenös-
sisches Justiz- und Polizeidepartement). Insofar as the first
applicant invoked Article 8 of the Convention in respect of his
brothers and parents living in Switzerland, the Department found that
the right to respect for family life within the meaning of this
provision did not affect adult children and their relations with their
parents.
The applicants' further administrative law appeal (Verwaltungs-
gerichtsbeschwerde) was dismissed by the Federal Court (Bundesgericht)
on 7 September 1993, the decision being served on the applicants on
15 September 1993. The Federal Court found in particular that the
appeal only concerned the issue whether the first applicant fell into
the category of persons who could claim an exceptional commutation of
the seasonal permission to a regular residence permission, and not
whether the first applicant was entitled to a residence permit as such.
COMPLAINTS
The applicants complain under Article 6 of the Convention of
unfairness of the proceedings, alleging incorrect calculation by the
authorities of the number of imputable years, and that the decisions
were not duly motivated.
The applicants also complain that the refusal to permit them to
reside in Switzerland amounts to a breach of Article 8 of the
Convention as they have no roots and no further family members in
Kosovo, and the first applicant's brothers and parents live in
Switzerland.
The applicants finally claim that they would risk persecution as
political criminals in Kosovo as they have always supported
independence movements, in particular by transferring amounts of money
to a Kosovo Association.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 8 March 1994.
On 11 March 1994 the Commission decided not to apply Rule 36 of
the Commission Rule's of Procedure.
Following further correspondence with the applicants, the
application was registered on 6 April 1994.
THE LAW
1. The applicants complain under Article 6 (Art. 6) of the
Convention of unfairness of the proceedings. They allege incorrect
calculation of the number of imputable years, and that certain
decisions were not duly motivated.
However, according to the Commission's case-law, a decision as
to whether an alien should be allowed to stay in a country or be
expelled does not involve either the determination of the alien's civil
rights or obligations, or of a criminal charge, within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention (see No. 8118/77, Dec.
19.3.81, D.R. 25 p. 105). In this respect the application is,
therefore, incompatible ratione materiae with the provisions of the
Convention, pursuant to Article 27 para. 2 (Art. 27-2) of the
Convention.
Insofar as the applicants may be understood as complaining under
Article 1 of Protocol No. 7 (P7-1) to the Convention, and even assuming
that this provision applies in the present case, the Commission notes
that the Swiss authorities, in particular the Federal Department of
Justice and Police and the Federal Court, gave reasoned decisions on
the applicants' requests. The Commission finds no indication that in
these proceedings the applicants could not properly explain their own
point of view. It follows that the application, if examined under
Article 1 of Protocol No. 7 (P7-1), is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. a) The applicants complain of the refusal to permit them to
reside in Switzerland. They rely on Article 8 (Art. 8) and,
apparently, also on Article 3 (Art. 3) of the Convention.
b) 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 No. 9203/80, Dec. 5.5.81, D.R. 24 p. 239).
Moreover, expulsion may in exceptional circumstances involve a
violation of the Convention, in particular where there is a serious
fear of treatment contrary to Articles 2 or 3 (Art. 2, 3) of the
Convention in the country to which the person is to be expelled (see
No. 10564/83, Dec. 10.12.84, D.R. 40 p. 263; Eur. Court H.R., Soering
judgment of 7 July 1989, Series A no. 161, p. 32 et seq., para. 81 et
seq.).
c) The applicants complain that the refusal to permit them to reside
in Switzerland amounts to a breach of Article 8 (Art. 8) of the
Convention as they have no roots, and no further family members, in
Kosovo, and the first applicant's brothers and parents live in
Switzerland.
However, the Commission notes that the prohibition to reside in
Switzerland concerns all applicants and does not as such separate the
first applicant, his wife and their children. Moreover, the applicants
who are from Kosovo have not explained why a return to Kosovo would
hinder them in the enjoyment of their right to respect for their family
life within the meaning of Article 8 (Art. 8) of the Convention.
Finally, it has not been shown that in the relations between the first
applicant and his brothers and parents, who live in Switzerland, there
exist elements of dependency, other than the normal emotional ties,
which would involve the protection of Article 8 (Art. 8) of the
Convention.
This part of the application is therefore manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
d) Insofar as the applicants may be understood as relying on Article
3 (Art. 3) of the Convention, they have not shown that they filed a
request for asylum before the Swiss authorities in which they raised
the claims they are now making before the Commission. Thus, they have
not complied with the requirements under Article 26 (Art. 26) of the
Convention as to the exhaustion of domestic remedies, and the
application must in this respect be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
This complaint would in any event also be manifestly ill-founded.
Thus, the applicants have not sufficiently demonstrated that in view
of their support of an independence movement they were ill-treated by
the authorities before they left Kosovo, or that upon their return to
Kosovo they would face a real risk of being subjected to treatment
contrary to Article 3 (Art. 3) of the Convention.
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)
Full & Egal Universal Law Academy