AS TO THE ADMISSIBILITY OF
Application No. 24545/94
by D. O.
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
D. O. against Switzerland and registered on 6 July 1994 under file
No. 24545/94;
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 applicant, may be
summarised as follows.
The applicant, an Italian citizen born in 1966 in Italy, is a
labourer residing at Feuerthalen in Switzerland. Before the Commission
he is represented by Mr. H.R. Gantenbein, a lawyer practising at Buchs
in Switzerland.
I.
The applicant passed his early childhood in Switzerland with his
parents. From 1972 until 1980 he lived with his grandparents in Italy
where he went to school.
In 1980 he went to Switzerland where he went to school in
Feuerthalen and visited German language courses. From 1983 until 1985
he visited a vocational school for immigrants. From 1985 until 1990
he undertook various jobs. The applicant has the right to domicile
(Niederlassungsbewilligung) in Switzerland.
II.
The applicant has been convicted of various criminal offences and
has been sentenced to altogether 46 months' imprisonment.
On 4 May 1987 the applicant was convicted by the Zurich Court of
Appeal (Obergericht) inter alia of repeated theft and fraud and
sentenced to 14 days' imprisonment on probation.
On 3 June 1987 the Andelfingen District Prosecutor's Office
(Bezirksanwaltschaft) issued a penal order (Strafbefehl), sentencing
the applicant to 30 days' imprisonment on probation for dealing with
impounded goods.
On 12 November 1987 the Police Directorate (Polizeidirektion) of
the Canton of Zurich issued a warning, threatening the applicant with
expulsion.
On 18 February 1988 the Cantonal Court (Kantonsgericht) of the
Canton of Schaffhausen sentenced the applicant to six months'
imprisonment inter alia on account of repeated theft.
On 3 March 1988 the Cantonal Court repealed the probation granted
in respect of the sentence of 3 June 1987, and prolonged the probation
period by one year in respect of the sentence of 4 May 1987.
On 17 November 1988 the Aliens' Police (Fremdenpolizei) again
issued a warning to the applicant.
On 7 May 1992 the Cantonal Court of the Canton of Schaffhausen
sentenced the applicant to two years' imprisonment inter alia on
account of professional theft and repeated and attempted fraud. It
also repealed the probation granted in respect of the sentence of
4 May 1987.
On 10 July 1992, the St. Gallen police, upon instruction of the
Aliens' Police, questioned the applicant in view of his possible
expulsion from Switzerland.
On 27 August 1992 the Office of the Investigating Judge (Unter-
suchungsrichteramt) of the Canton of Schaffhausen issued a penal order,
sentencing the applicant to 21 days' imprisonment on account of theft.
III.
On 7 July 1993 the Council of State (Regierungsrat) of the Canton
of Zurich ordered the applicant's expulsion from Switzerland for a
period of 10 years. Reference was made in particular to Section 10
para. 1 of the Federal Act on the Residence and Domicile of Aliens
(Bundesgesetz über Aufenthalt und Niederlassung der Ausländer).
According to this provision, a foreigner may be expelled from
Switzerland if a court has convicted him of an offence, or if his
conduct permits the conclusion that he is not willing, or able, to
adhere to the Swiss legal order.
In its decision the Council of State noted that the applicant's
criminal culpability (strafrechtliches Verschulden) was serious. There
was a considerable public interest in his expulsion as he had committed
new offences while on probation. The applicant's offences had become
more serious with his age. According to his own submissions, the
relationship with his parents was not particularly good, and he was not
allowed to live in their flat. He also had no friends. On the other
hand, he had stated that he had relatives in Italy. The Council of
State concluded that the prospects for him to start an orderly life
were not worse in Italy than in Switzerland.
The applicant's administrative law appeal (Verwaltungsgerichts-
beschwerde) was dismissed by the Federal Court (Bundesgericht) on
18 April 1994.
In its decision the Court noted that the applicant had been
sentenced to imprisonment of altogether 46 months, and that he had
twice been warned by the Aliens' Police. He had nevertheless continued
to commit criminal offences. Reference was made in particular to the
last offence which was committed while he was on leave from prison.
The Court further considered that the measure was proportionate as the
applicant could be expected to return to Italy where he had spent a
considerable part of his youth.
On 20 June 1994 the Aliens' Police ordered the applicant to leave
Switzerland before 30 June 1994.
COMPLAINTS
Under Article 8 of the Convention the applicant complains of his
expulsion to Italy. He submits that he has served his prison sentence
and there is no longer a public interest which outweighs his private
interests in family life. The applicant's relatives, i.e. his parents,
three uncles and an aunt, all live in Switzerland; no relatives live
in Italy, his grandparents having died. He speaks Swiss dialect, and
nothing indicates that he is Italian. The applicant considers himself
a "second generation immigrant". He finds his situation similar to
that in the Moustaquim case (Eur. Court H.R, judgment of
18 February 1991, Series A no. 193) in that he committed most of his
offences between 18 and 25 years of age.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 6 June 1994.
On 14 June 1994 the President of the Commission decided not to
apply Rule 36 of the Commission Rule's of Procedure.
Following further correspondence with the applicant, the
application was registered on 6 July 1994.
THE LAW
The applicant complains that in view of his family ties his
expulsion from Switzerland to Italy would breach his rights under
Article 8 (Art. 8) of the Convention. This provision 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 examining such cases the Commission must first consider
whether a sufficient link exists between the relatives concerned as to
give rise to the protection of "family life" within the meaning of
Article 8 (Art. 8) of the Convention. Generally, family life exists
when there are cohabiting dependents such as parents, spouses and their
dependent, minor children. Whether family life extends to other
relationships depends on the circumstances of the particular case (see
No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).
In the present case, it is true that the applicant's parents,
three uncles and an aunt, reside in Switzerland. On the other hand,
the Commission notes that the applicant is meanwhile 28 years old, and
there is no evidence of any dependence, involving more than the normal,
emotional ties.
The Commission need nevertheless not determine this issue since,
even if there was an interference with the applicant's right to respect
for family life within the meaning of Article 8 para. 1 (Art. 8-1) of
the Convention, it would be justified under Article 8 para. 2
(Art. 8-2) of the Convention.
The Commission observes that the Swiss authorities, when deciding
to expel the applicant, relied on Section 10 para. 1 of the Federal Act
on the Residence and Domicile of Aliens (Bundesgesetz über Aufenthalt
und Niederlassung der Ausländer). According to this provision, a
foreigner may be expelled from Switzerland if a court has convicted him
of an offence, or if his conduct permits the conclusion that he is not
willing, or able, to adhere to the Swiss legal order. The interference
complained of was 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 there was a considerable public interest
in his expulsion. He had been convicted of various criminal offences
and sentenced to altogether 46 months' imprisonment.
Furthermore, the Swiss authorities found that the applicant could
be expected to return to Italy where he had spent a considerable part
of his youth. The Commission notes in this respect that the applicant
speaks Italian and that he lived from 1972 until 1980 in Italy where
he went to school.
In this respect the present case differs from the Moustaquim
case, invoked by the applicant. The applicant in that case could not
be expected to return to Morocco inter alia as he had received all his
schooling in Belgium (Eur. Court H.R., loc. cit., p. 19, para. 45).
The present case also differs in that Moustaquim committed the offences
at issue as an adolescent, whereas the present applicant committed most
of the offences between 18 and 25 years, and some even thereafter.
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, when deciding to
expel the applicant, acted unreasonably in balancing the 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.
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)
Full & Egal Universal Law Academy