KARADENIZ v. SWITZERLAND



                      AS TO THE ADMISSIBILITY OF

                      Application No. 36335/97

                      by Eyüp KARADENIZ

                      against Switzerland

      The European Commission of Human Rights (Second Chamber) sitting

in private on 10 September 1997, the following members being present:

           Mrs.  G.H. THUNE, President

           MM.   S. TRECHSEL

                 J.-C. GEUS

                 A. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

                 A. ARABADJIEV

           Ms.   M.-T. SCHOEPFER, 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 30 May 1997 by

Eyüp Karadeniz against Switzerland and registered on 5 June 1997 under

file No. 36335/97;

      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 applicant, a Turkish citizen born in 1957, is a transport

worker (Spediteur) residing in Winterthur in Switzerland.  Before the

Commission he is represented by Mr P. Stein, a lawyer practising in

Zurich.

      The facts of the case, as submitted by the applicant, may be

summarised as follows.

      The applicant entered Switzerland in 1970 where he now possesses

the right to domicile (Niederlassungsbewilligung) and where he

apparently lives with his mother.  He was divorced from his first wife

in 1981.  The applicant married again in 1994, his second wife, a

Turkish citizen apparently living in Yugoslavia.  His daughter, born

in 1977, has married and lives in Switzerland.

      In 1984 the applicant was sentenced to 30 days' imprisonment for

dealing with stolen goods.  On 28 February 1985 he was admonished by

the Aliens' Police (Fremdenpolizei) of the Canton of Zurich.  On

12 August 1988 the Winterthur District Court (Bezirksgericht) sentenced

the applicant to four years' imprisonment for dealing with stolen goods

and for breaching the Narcotics Act (Betäubungsmittelgesetz).  On

25 August 1993 a Winterthur District judge sentenced the applicant to

two months' imprisonment for drunken driving.  In connection with both

convictions the applicant was admonished by the Aliens' Police of the

Canton of Zürich. On 27 September 1994 the Zurich District Court

sentenced him to 12 months' imprisonment, inter alia, for having

breached the Narcotics Act.  On 18 August 1995 the Trogen District

Office (Verhöramt) fined the applicant 400 Swiss Francs (CHF) for

having breached the Narcotics Act.

      While serving a prison sentence, the applicant absconded on

3 September 1995, though he was apprehended on 12 September 1995.  He

was released on 26 February 1996.

      On 20 November 1996, when questioned by the police, the applicant

admitted taking heroine and cocaine.

      Meanwhile, on 3 July 1996 the Government (Regierungsrat) of the

Canton of Zurich ordered the applicant's expulsion from Switzerland for

a period of ten years.

      The applicant filed an administrative law appeal

(Verwaltungsgerichtsbeschwerde) with the Federal Court (Bundesgericht),

complaining about his expulsion.

      Together with his appeal the applicant submitted an undated

medical report, apparently of 29 July 1996, prepared by a General

Practitioner (Allgemeinpraktiker).  According to the Report, the

applicant's mental health was severely damaged (psychisch schwer

angeschlagen).  He suffered from depressions and was unable to take on

any responsibility.  Currently, his mother was taking care of him.  His

recent visit to Turkey, in particular the interest of his relatives in

his person, had brought about a feeling of panic (Panikgefühl) for him.

As a result, the applicant's expulsion would be a catastrophe for him

(würde sich katastrophal auswirken), and there was a serious threat

that he would commit suicide.  The Report considered that the chances

for the applicant's convalescence, presupposing medical treatment, were

higher in Switzerland than in Turkey.

      The Federal Court dismissed his appeal on 17 February 1997.

      In its decision, the Federal Court noted that according to S. 10

of the Federal Act on the Domicile and Residence of Aliens

(Bundesgesetz über Aufenthalt und Niederlassung der Ausländer) a person

could be expelled from Switzerland if he had been convicted for a

criminal offence.  The Court also recalled that the longer a person had

resided in Switzerland, the stricter would be the conditions for his

expulsion.

      The Court considered that in view of the applicant's long stay

in Switzerland, it would be disproportionate to base his expulsion

merely on the criminal conviction of 1994.  However, reference was also

made to the conviction of 1988 and the fact that the authorities had

previously threatened to expel the applicant.  The Court therefore

considered that there was a considerable interest of police security

(sicherheitspolizeiliches Interesse) in expelling the applicant.  The

decision continues:

      "The applicant has been living in Switzerland since 1970, i.e. since

      his thirteenth year of age.  His mother, his daughter and, with one

      exception, all his siblings, live in Winterthur and surroundings.  The

      applicant's second wife apparently lives in former Yugoslavia; his

      relations with her would not be affected by an expulsion.  The

      applicant has relatives in Turkey, though it is not established that he

      had closer relations with them.  A return to Turkey would without doubt

      seriously affect the applicant (sehr hart treffen), as he would more or

      less have to start building a social network again from the beginning.

      It would hardly be easy for him to be separated from his mother, who

      today apparently takes care of him, and from his daughter, who has

      meanwhile married and lives in the neighbourhood.  On the other hand,

      when balancing the interests, it must be considered that the separation

      from a married and adult daughter weighs less heavily than for example

      the separation from a minor.  Furthermore the applicant's psychological

      problems must be considered.  His General Practitioner has described

      him in his report of 29 July 1996 as being psychologically severely

      damaged.  The doctor assumes that an expulsion would 'without doubt

      amount to a catastrophe' for his patient's health, and he advises not

      to disregard (the applicant's) remark that in case of an expulsion he

      would commit suicide.

      In the present case the interest of police security in expelling the

      applicant outweighs any severity resulting therefrom.  In particular,

      it must be considered that the applicant again committed further

      offences, even after he had been admonished on a number of occasions by

      the Aliens' Police and even formally threatened with expulsion.  This

      relapse weighs heavily from the point of view of the Aliens' Police and

      shows that there remains a serious risk of a further relapse ...

      Whether the relations of the applicant, who is nearly 40 years old,

      with his mother and his adult daughter amount to family relations

      protected under Article 8 of the Convention can remain open.  In the

      concrete case, an interference with family life protected by Article 8

      para. 1 of the Convention would in any event be justified."

COMPLAINTS

      The applicant complains under Articles 3 and 8 of the Convention

of his expulsion to Turkey.  He submits that his psychological health

is severely affected (schwer angeschlagen) and that there is a danger

that he may commit suicide if he is expelled.

      The applicant submits that he has lived in Switzerland since his

childhood.  The mentality in Turkey is alien to him, he no longer has

contact with the distant relatives in Turkey.  His whole family, in

particular his mother, his daughter and sisters, all live in

Switzerland.  He claims that without his mother's care he would be

helpless.  The criminal convictions in the past cannot justify an

expulsion.

THE LAW

1.    The applicant complains under Articles 3 and 8 (Art. 3, 8) of the

Convention of his expulsion to Turkey.

      Article 3 (Art. 3) of the Convention states:

      "No one shall be subjected to torture or to inhuman or degrading

      treatment or punishment."

      Article 8 (Art. 8) of the Convention 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.

Nevertheless, the expulsion of a person may in exceptional

circumstances involve a violation of the Convention, for example where

there is a serious and well-founded fear of treatment contrary to

Article 3 (Art. 3) of the Convention in the country to which the person

is to be expelled (see Eur. Court HR, Chahal v. United Kingdom judgment

of 15 November 1996, Reports 1996-V, No. 22, paras. 72ff).  The

expulsion from a country where close members of a person's family are

living may also 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 HR, Moustaquim v. Belgium judgment of

18 February 1991, Series A no. 193, p. 18, para. 36).

2.    The Commission will first examine the applicant's complaints

under Article 8 (Art. 8) of the Convention according to which his

expulsion to Turkey would separate him from close relatives, in

particular his mother, his daughter and his sisters.

      In examining such cases the Commission must consider whether a

sufficient link exists between the relatives concerned to give rise to

the protection of "family life" within the meaning of Article 8

(Art. 8) of the Convention.  Generally, this involves married couples,

on the one hand, and, on the other, cohabiting dependents such as

parents, spouses and their dependent, minor children.  Whether it

extends to other relationships depends on the circumstances of the

particular case (Eur. Court HR, Boughanemi v. France judgment of 24

April 1996,

Reports 1996-II, No. 8, p. 608, para. 35; No. 10375/83, Dec. 10.12.84,

D.R. 40, p. 196).

      The Commission has examined the applicant's links with his family

members in Switzerland.  It notes, on the one hand, that the

applicant's daughter, who is now 20 years old, has married.  On the

other hand, the applicant, who is 40 years old, apparently lives with

his mother who is taking care of him.

      In the Commission's opinion, it is doubtful whether the

applicant's relations with either his daughter or his mother are such

as to amount to "family life" within the meaning of the Convention

organs' case-law.

      In any event, even assuming that the applicant has sufficiently

made out an interference with the exercise of his rights under

Article 8 para. 1 (Art. 8-1) of the Convention, the interference is

justified under Article 8 para. 2 (Art. 8-2) of the Convention.

      The Commission notes that the Swiss authorities, in particular

the Federal Court in its decision of 17 February 1997, relied on the

Federal Act on Residence and Domicile of Aliens.  According to S. 10

of the Act, a person may be expelled from Switzerland if he has been

convicted of a criminal offence.

      The interference is, therefore, "in accordance with the law"

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

      Moreover, the Federal Court considered that in view of the

applicant's criminal convictions, there was a considerable interest of

police security in expelling the applicant.  The interference was

therefore imposed "for the prevention of disorder (and) crime" within

the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

      Finally, the Commission has examined whether the measure was

"necessary in a democratic society" within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention, as interpreted in the Convention

organs' case-law (see Eur. Court HR, Bouchelkia v. France judgment of

29 January 1997, Reports 1997-I, No. 28, para. 48).

      The Commission notes that the Swiss authorities, in particular

the Federal Court, considered that the applicant's expulsion was

necessary in view of his various criminal convictions, which in total

resulted in more than five years' imprisonment and which he continued

to commit even after he had been admonished.

      Furthermore, in its decision of 17 February 1997 the Federal

Court carefully balanced the various interests involved.  It considered

on the one hand that in view of his age the links with his mother were

not very close, and that his daughter was already married.  On the

other hand, it noted that the applicant had lived for a long time in

Switzerland, and that integration in Turkey would not be easy.

Nevertheless, in the Federal Court's opinion the interest of police

security in expelling the applicant outweighed any severity resulting

therefrom.

      The Commission furthermore notes that the applicant has not

contended that he cannot speak Turkish.  He has also not broken off

contacts with his home country, which he has visited and where he has

relatives.

      Taking into account the margin of appreciation which is left to

Contracting States in such circumstances (see the Boughanemi v. France

judgment, op. cit., p. 610, para. 41), the Commission does not find

that the Swiss authorities, when deciding to expel the applicant, acted

unreasonably in balancing the various interests involved.

      The Commission considers therefore that any interference with the

applicant's right to respect for his private and family life would be

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" within the meaning of

Article 8 para. 2 (Art. 8-2) 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.

3.    The Commission has next examined the applicant's complaint under

Article 3 (Art. 3) of the Convention according to which an expulsion

would be incompatible with his severely damaged mental health.  The

applicant submits in particular that he may commit suicide.

      The Commission notes the medical report of 29 July 1996 according

to which the applicant's mental health is severely damaged.  The Report

nevertheless considered that the applicant's convalescence was possible

though it presupposed medical treatment.  While the report stated that

chances for the applicant's convalescence were higher in Switzerland

than in Turkey, it has not been shown, or even claimed, that the

applicant could not obtain the required treatment in Turkey.

      The remainder of the application is, therefore, also 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.

   M.-T. SCHOEPFER                              G.H. THUNE

      Secretary                                  President

to the Second Chamber                      of the Second Chamber

 

Full & Egal Universal Law Academy