AS TO THE ADMISSIBILITY OF
Application No. 24377/94
by B. P. and D. P.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 31 August 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 6 June 1994 by
B. P. and D. P. against Switzerland and registered on 13 June 1994
under file No. 24377/94;
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 first applicant, a Swiss citizen born in 1943, is a social
worker. The second applicant, an Argentinian citizen born in 1962, is
a businessman. The applicants reside at Burgdorf in Switzerland.
Before the Commission they are represented by Mr. W. Egloff, a lawyer
practising in Bern.
Particular circumstances of the case
On 13 February 1991 the Criminal Court (Kriminalkammer) of the
Canton of Bern convicted the second applicant of repeated and
continuing contraventions of the Narcotics Act (Betäubungsmittel-
gesetz), in particular dealing with cocaine, and sentenced him to five
years' imprisonment and expulsion from Switzerland for five years.
While these criminal proceedings were pending, the second
applicant, who had been remanded in custody at Thorberg prison in the
Canton of Bern, met the first applicant who was a social worker there.
They married on 13 September 1991.
On 10 December 1991 the Aliens' Police (Fremdenpolizei) of the
Canton of Bern ordered the applicant's expulsion for an unlimited
period after his release from imprisonment; reference was made to
Section 7 of the Federal Act on the Residence and Domicile of Aliens
(Bundesgesetz über Aufenthalt und Niederlassung der Ausländer, see
below, Relevant domestic law). The applicants' appeal against this
decision was dismissed by the Police Directorate (Polizeidirektion) of
the Canton of Bern on 1 July 1992.
On 24 November 1992 the applicant was conditionally released from
imprisonment; the expulsion pronounced by the Criminal Court was
suspended on probation.
The applicants' administrative law appeal (Verwaltungsgerichts-
beschwerde) against the decision of 1 July 1992 was upheld by the
Administrative Court (Verwaltungsgericht) of the Canton of Bern on
18 January 1993. The Court found that expulsion was an inadequate
measure, quashed the order of 10 December 1991 and referred the case
back to the Aliens' Police which were ordered to grant a residence
permit to the second applicant.
The Aliens' Office then intended to issue a residence permit.
However, on 5 March 1993 the Federal Office for Aliens' Affairs
(Bundesamt für Ausländerfragen) refused to give its consent thereto.
The applicants' appeal against this decision was dismissed on
20 July 1993 by the Federal Department of Justice and Police
(Eidgenössisches Justiz- und Polizeidepartement) which found inter alia
that the applicant's conviction amounted to a "ground of expulsion"
within the meaning of Section 7 para. 1 of the Federal Act on the
Residence and Domicile of Aliens, and that the refusal of a residence
permit appeared proportionate in the circumstances.
The applicants' further administrative law appeal was dismissed
on 28 February 1994 by the Federal Court (Bundesgericht) which found
that the Federal Office for Aliens' Affairs had been competent to
refuse its consent. The Court also found that Section 7 para. 1 of the
Federal Act on the Residence and Domicile of Aliens did not grant a
right to a residence permit in Switzerland if there was a ground for
expulsion within the meaning of Section 10 of the Federal Act on the
Residence and Domicile of Aliens.
When balancing the conflicting interests (Interessenabwägung) the
Court noted that the applicant had been convicted of exceptionally
serious offences. The decision continued:
"It must furthermore be considered that the (first) applicant only got to know and to marry her husband when he was already serving his sentence. Even if she would have assumed that she could live her marriage in Switzerland despite his criminal conviction, she must at least have been aware that a residence permit would not be issued easily ... It is correct that the (first) applicant would encounter difficulties if she had to follow her husband to his home country in Argentina. It must also be considered that she has two - albeit adult - children in Switzerland, and that her mother, who is of a very advanced age, also lives here. Also from a professional point of view it will not be easy for her as a social worker to find adequate employment in Argentina. The social and cultural, but also the economic living conditions in Argentina are nevertheless not so different from those in Switzerland that a life for a Swiss woman in that country would as a matter of course have to be described as unacceptable ..." "In Betracht fällt sodann, dass die (Erst-)Beschwerdeführerin ihren Mann erst kennengelernt und geheiratet hat, als sich dieser bereits im Strafvollzug befand. Auch wenn sie angenommen haben mochte, sie könne ihre Ehe trotz der strafrechtlichen Verurteilung in der Schweiz leben, so musste ihr doch zumindest bewusst sein, dass eine Aufenthaltsbewilligung nicht ohne weiteres ausgestellt würde ... Zutreffend ist zwar, dass es für die (Erst-)Beschwerdeführerin mit Schwierigkeiten verbunden wäre, ihrem Ehemann in dessen Heimat nach Argentinien zu folgen. Dabei ist zu berücksichtigen, dass sie in der Schweiz zwei - allerdings erwachsene - Kinder hat und auch ihre betagte Mutter hier lebt. Aber auch in beruflicher Hinsicht dürfte es für sie als Sozialarbeiterin nicht einfach sein, in Argentinien eine angemessene Beschäftigung zu finden. Dennoch sind die Lebensverhältnisse in Argentinien in sozialer und kultureller, aber auch in wirtschaftlicher Hinsicht nicht derart verschieden von denjenigen, wie sie in der Schweiz bestehen, dass ein Leben in diesem Land für eine Schweizerin zum vorneherein als unzumutbar bezeichnet werden müsste ..." The Court further found that the offences at issue were serious; however, the more serious the nature of the offences committed, the less acceptable was the risk of a new criminal offence. The Court concluded that in the present case the interests of public order and security prevailed over the interest of the applicants in a residence permit for the second applicant in Switzerland. On 12 April 1994 the Federal Office for Aliens' Affairs ordered the second applicant to leave Switzerland by 31 May 1994. Relevant domestic law Section 7 para. 1 of the Federal Act on the Residence and Domicile of Aliens states, insofar as relevant: "The foreign spouse of a Swiss citizen has a right to be granted, or have prolonged, a residence permit ... This right no longer exists if there is a ground for expulsion." "Der ausländische Ehegatte eines Schweizer Bürgers hat Anspruch auf Erteilung und Verlängerung der Aufenthaltsbewilligung ... Der Anspruch erlischt, wenn ein Ausweisungsgrund vorliegt." Section 10 para. 1 (a) of the Federal Act states that a foreigner can be expelled from Switzerland inter alia if he has been punished by a court for a criminal offence (wegen eines Verbrechens oder Vergehens gerichtlich bestraft). COMPLAINTS The applicants complain under Article 8 of the Convention that the second applicant has not been granted a residence permit in Switzerland. The applicants submit, inter alia with reference to the Administrative Court's decision of 18 January 1993, that the first applicant cannot be expected to live in Argentina where she will not find employment. She also refers to the inferior position of women in South America; to the dirty air in Buenos Aires where she will suffer in view of her asthma; to her two children, a grandchild and her mother residing in Switzerland; and to her political activities in Switzerland. The applicants further complain that the measure lacked a legal basis. Thus, the Administrative Court quashed the second applicant's expulsion; as a result, the first applicant has a right to a residence permit within the meaning of Section 7 of the Federal Act on the Residence and Domicile of Aliens. Finally, the applicants point out that the second applicant has changed his ways for which reason the measure is not "necessary" within the meaning of Article 8 para. 2 of the Convention. THE LAW The applicants complain that the refusal to grant the second applicant a residence permit will separate him from his wife, the first applicant. They rely on Article 8 (Art. 8) of the Convention which 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 applicants are a married couple, and that the first applicant is a Swiss citizen. Thus, the second applicant's expulsion from Switzerland interfered with the applicants' right to respect for 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. The Commission observes that the Swiss authorities, when refusing to prolong the applicant's residence permit in Switzerland, relied on Section 7 para. 1 of the Federal Act on the Residence and Domicile of Aliens. According to this provision, the second applicant no longer had a right to a residence permit in view of his conviction of a criminal offence, the latter constituting a ground for expulsion within the meaning of Section 10 para. 1 (a) of the Federal Act. 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 second applicant had been convicted of serious criminal offences. The Commission notes in particular that he was convicted of contraventions of the Narcotics Act, in particular dealing with cocaine, and sentenced to five years' imprisonment. Furthermore, the applicants married after the second applicant's conviction, and while he was in prison. They had therefore to expect that, upon his release from prison, they would have to continue their married life outside Switzerland. The Federal Court found in its decision of 28 February 1994 that the social, cultural and economic living conditions in Argentina are not so different from those in Switzerland that life for a Swiss woman in that country would as a matter of course have to be described as unacceptable. The first applicant has also not shown in what respect her mother, her two adult children, or her grandchild, are dependent on her. It is true that in the applicants' submissions the second applicant has meanwhile changed his ways. Reference has also been made to the Administrative Court's decision of 18 January 1993 which quashed the decision regarding the second applicant's expulsion. However, the Commission notes that the Federal Court decided on the applicants' case in the last resort, after having considered all circumstances of the case. It found that the more serious the nature of the offences committed, the less acceptable was the risk of a new offence, and that the interests of public order and security prevailed over the interest of the applicants in a residence permit for the second applicant in Switzerland. 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 a residence permit, acted unreasonably when balancing the interests involved. The Commission therefore considers that the interference with the applicants' 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. 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)
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