AS TO THE ADMISSIBILITY OF
Application No. 25436/94
by H. M. C.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 7 December 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 26 May 1994 by
H. M. C. against Switzerland and registered on 18 October 1994 under
file No. 25436/94;
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, born in 1958, is a Turkish citizen residing in
Kreuzlingen. Before the Commission he is represented by Mr. D. Vischer,
a lawyer practising in Zürich.
A. Particular circumstances of the case
In 1980 the applicant entered Switzerland with a residence permit
for one year (Jahresaufenthaltsbewilligung). On 17 August 1984 the
Aliens' Police (Fremdenpolizei) refused to prolong his residence
permit, as he had obtained it by means of untrue statements and by
concealing important facts. For instance, he had not disclosed that
he had been expelled from Germany and that he had been convicted of
criminal offences by German courts. Furthermore, he had also been
convicted of criminal offences in Switzerland.
Subsequently, in 1984, the applicant married a Swiss citizen.
As a result, the Aliens' Police prolonged his residence permit on 23
January 1985 for the time being and depending on his good conduct.
On 12 March 1985 the Unterrheintal Court Commission (Gerichts-
kommission) sentenced the applicant to a fine of 300 SFr for having
facilitated the illegal entry of foreigners (Erleichterung der
rechtswidrigen Einreise).
On 19 February 1986 the Unterrheintal District Court (Bezirksge-
richt) convicted the applicant of repeated contraventions of the
Narcotics Act (Betäubungsmittelgesetz) and sentenced him to 15 months'
imprisonment and 8 years' expulsion from Switzerland, both suspended
on probation.
On 20 May 1986 the Unterrheintal District Council (Bezirksamt)
sentenced the applicant to a fine of 800 SFr for having disregarded a
speed limit.
On 31 August 1990 the applicant requested the prolongation of his
residence permit which had expired on 15 July 1986. On 10 September
1990 the Aliens' Police of the Canton of St. Gallen granted him a
provisional permit to stay with his wife during pending criminal
proceedings against him.
On 22 October and 6 December 1990 the Cantonal Court (Kantons-
gericht) of St. Gallen convicted the applicant of repeated and
continuing contraventions of the Narcotics Act and sentenced him to
three and a half years' imprisonment. The Court also revoked the
suspension of his earlier sentence of 19 February 1986.
During his detention the applicant filed an application for
a residence permit which the St. Gallen Aliens' Police refused on
6 October 1992.
On 23 October 1992 the applicant was released on probation; his
expulsion was suspended on probation.
On 19 February 1993 the Werdenberg District Council sentenced the
applicant to a fine of 120 SFr for assault (Tätlichkeit).
On 16 March 1993 the Council of State of the Canton of St. Gallen
dismissed the applicant's appeal against the decision of the Aliens'
Police of 6 October 1992. It relied on Section 7 para. 1 and Section
10 para. 1 subpara. (a) of the Federal Act on the Residence and
Domicile of Aliens (Bundesgesetz über Aufenthalt und Niederlassung der
Ausländer; see below, Relevant domestic law).
On 21 April 1993 the applicant filed an administrative law appeal
(Verwaltungsgerichtsbeschwerde) which the Federal Court (Bundesgericht)
dismissed on 11 February 1994.
The Court found that Section 7 para. 1 of the Federal Act on the
Residence and Domicile of Aliens did not grant foreign spouses of Swiss
citizens 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. The decision further noted
that the applicant had been convicted of various serious offences and
constituted a danger to public order. The decision continued:
"The applicant's wife, formerly an Austrian citizen, obtained Swiss citizenship through marriage. As far as it is known, she has always lived in Central Europe - in particular in Austria and in Switzerland. It would hardly be possible for her to come to terms with the applicant's native country. She can therefore hardly be expected to follow him to Turkey. It is of no relevance whether or not she still has the Austrian citizenship today. For, even if this were to be the case, it would not be certain whether the applicant could live with her in Austria. On the other hand, it is relevant that the applicant was refused a prolongation of his residence permit already before the marriage and that a residence permit was only granted after the marriage for the time being. Therefore, it also became clear to the wife that a future life together in Switzerland was uncertain." "Die Ehefrau des Beschwerdeführers erhielt als ursprünglich österreichische Staatsangehörige durch Heirat das Schweizer Bürgerrecht. Sie hat, soweit bekannt, immer in Mitteleuropa - namentlich in Österreich und in der Schweiz - gelebt. Es dürfte ihr kaum möglich sein, sich im Heimatland des Beschwerdeführers zurechtzufinden, weshalb es ihr auch kaum zuzumuten ist, diesem in die Türkei zu folgen. Ob sie heute noch über die österreichische Staatsbürgerschaft verfügt, ist nicht wesentlich, denn, selbst wenn dies zuträfe, stünde nicht fest, dass der Beschwerdeführer mit ihr zusammen in Österreich leben könnte. Hingegen fällt in Betracht, dass ihm bereits vor der Heirat die Verlängerung der Aufenthaltsbewilligung verweigert und nach der Heirat nur auf Zusehen hin erteilt worden war. Damit war auch der Ehefrau erkennbar, dass das künftige Zusammenleben in der Schweiz nicht gesichert war." The Court concluded that the refusal to grant the applicant a new residence permit was proportionate in view of the public interest in removing the applicant from Switzerland. B. Relevant domestic law Article 7 para. 1 of the Federal Act on the Residence and Domicile of Aliens states: