AS TO THE ADMISSIBILITY OF
Application No. 20301/92
by M.B. and F.B.
against Switzerland
The European Commission of Human Rights sitting in private on
7 May 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 21 May 1992 by
M.B. and F.B. against Switzerland and registered on 16 July 1992 under
file No. 20301/92;
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 parties, may be
summarised as follows.
The first applicant is a Turkish citizen born in 1968, currently
without a profession. The second applicant, a Turkish citizen born in
1968, is a housewife. The applicants are a married couple. It appears
that they are currently residing in Germany. Before the Commission the
applicants are represented by Mr. Jürg Walker, a lawyer practising at
Pratteln in Switzerland.
Asylum proceedings concerning the first applicant
The first applicant entered Switzerland on 22 April 1987
whereupon he filed a request for asylum, claiming that he was a Kurd
and had been beaten by the Turkish police. Later he claimed that in
Turkey he had had to flee from the authorities as he had been active
for the PKK political party.
On 8 September 1987 the Delegate for Refugees (Delegierter für
das Flüchtlingswesen) refused the first applicant's request for asylum
and ordered his expulsion.
The first applicant's appeal against this decision was dismissed
on 25 September 1991 by the Federal Department of Justice and Police
(Eidgenössisches Justiz- und Polizeidepartement) which found that the
first applicant's statements were contradictory and therefore not
credible.
On 6 January 1992 the first applicant married the second
applicant. On 31 January 1992 their daughter, H., was born.
Asylum proceedings concerning the second applicant and her family
Mr. Z.A. and Mrs. Y.A. are the second applicant's parents. They
have several children, among them Musa, Ayse, Deniz, Elif and the
second applicant.
Mr. Z.A. has resided since 1987 in Switzerland, where he filed
a request for asylum; Mrs. Y.A. entered Switzerland together with her
child Elif in 1988 and applied for asylum. Mr. Z.A.'s request for
asylum was eventually refused, though on 26 October 1988 the
authorities decided provisionally not to expel him in view of the
pending proceedings concerning his wife, Mrs. Y.A.
In 1989 Musa, Ayse and Deniz entered Switzerland.
The second applicant entered Switzerland in 1990. On 5 June 1990
she applied for asylum. When questioned by the Swiss authorities she
explained inter alia that after her parents and brothers and sisters
had left, she had lived alone in the village in Turkey. At night,
soldiers had frightened her by knocking at the window. There had also
been a search of the neighbours' house at night. She claimed that she
had travelled to Switzerland as she was afraid to live in her village
and wanted to be with her family.
Mr. Z.A and Mrs. Y.A. were eventually granted the right to stay
in Switzerland on humanitarian grounds. Mr. Z.A. and Mrs. Y.A. then
withdrew their applications for asylum.
Asylum proceedings after the applicants' marriage
On 7 and 15 January 1992 the applicants informed the Federal
Office for Refugees (Bundesamt für Flüchtlinge) that they were now
married. With reference to Article 8 of the Convention they requested
the Office not to expel the first applicant in view of the second
applicant's pending asylum proceedings.
On 10 February 1992 the Federal Office for Refugees refused the
applicants' request. The Office found that the first applicant had
married the second applicant after the decision to expel him had been
taken.
On 13 February 1992 the applicants informed the Federal Office
for Refugees that the second applicant could not withdraw her request
for asylum as she was persecuted in Turkey.
On 26 February 1992 the second applicant informed the Federal
Office that her request for asylum was dependent on the request of her
mother, Mrs. Y.A., who was seriously ill and that her younger brother
and sister were both invalids.
On 4 May 1992 the Swiss Commission for Appeals in Matters of
Asylum (Schweizerische Asylrekurskommission) dismissed the first
applicant's request for reconsideration of his expulsion. In its
decision the Commission found that the legal situation concerning the
first applicant had not changed on account of his marriage with an
asylum seeker, i.e. the second applicant. The second applicant who was
in Switzerland on account of her request for asylum did not possess a
right to residence. Article 8 of the Convention and the rights derived
therefrom could only be invoked by a person who had a secure right to
residence.
By letter of 27 May 1992 the Federal Office granted the
applicants' lawyer insight into the case-file inter alia by informing
him of the results of the Swiss authorities' investigations. Thus, the
Office stated that in respect of Mrs. Y.A. there existed a political
file (politisches Datenblatt) in which she was listed as a sympathiser
of the PKK, though she was not prohibited from being issued a passport.
In respect of Mr. Z.A. there was no such political file, and also no
prohibition from being provided with a passport. In fact, both Mrs.
Y.A. and Mr. Z.A. as well as the second applicant had received
passports in 1986, 1988 and 1989 respectively.
The Federal Office further found that no right to reside in
Switzerland could be granted to the second applicant simply because she
had married the first applicant and had now founded a "small family"
("Kleinfamilie") with him.
On 19 May 1992 the first applicant was ordered to leave
Switzerland by 31 May 1992. He left the country on a date not
specified by the parties.
On 6 August 1992 the Federal Office for Refugees dismissed the
second applicant's request for asylum and ordered her to leave
Switzerland before 15 December 1992. The decision stated that an
appeal could be filed with the Swiss Commission for Appeals in Matters
of Asylum.
In its decision the Federal Office considered inter alia that the
second applicant had never alleged that she had been persecuted in her
home country on political grounds. In fact, she had the possibility
of residing in Turkey outside her village or her province. Thus, she
could be expected to return to Turkey to continue common matrimonial
life with the first applicant.
It transpires that the second applicant has meanwhile also left
Switzerland and that the applicants are now residing in Germany.
COMPLAINTS
1. The applicants complain under Article 8 of the Convention that
the expulsion of the first applicant separated him from the second
applicant and their child. This separation of the family also amounted
to inhuman treatment contrary to Article 3 of the Convention.
2. The applicants further complain under Article 13 of the
Convention that they had no effective remedy at their disposal to raise
their complaint under Article 8 of the Convention before the Swiss
authorities. After the marriage and the birth of the child, the first
applicant never received a decision which he could duly challenge.
3. The applicants also complain that the procedure chosen by the
Swiss authorities breached Article 1 of Protocol No. 7.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 May 1992 and registered on
16 July 1992.
On 25 May 1992 the President decided not to apply Rule 36 of the
Commission's Rules of Procedure.
On 10 September 1992 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the
application.
The Government's observations were submitted on 3 December 1992
and the applicants' observations in reply on 8 January 1993.
THE LAW
1. a) The applicants complain under Article 8 (Art. 8) of the
Convention that the expulsion of the first applicant separated him from
the second applicant and their child.
The applicants point out that after the first applicant was
ordered to leave Switzerland, the second applicant could not be
expected to follow him until her mother withdrew her application for
asylum. There had always been a connection between the second
applicant's request for asylum and that of her mother, since both
requested asylum on the ground of persecution (Anschlussverfolgung).
The applicants submit that they continue to have an interest in their
application since they were not able to lead a family life for many
months.
The Government submit that the applicants are now living together
in a third country and can no longer claim to be a victim within the
meaning of Article 25 (Art. 25) of the Convention. Moreover, while
residing in Switzerland the applicants and their child were not
separated from each other. After the first applicant's request for
asylum was rejected he was no longer entitled to reside in Switzerland.
He might have enjoyed such a right if his wife, the second applicant,
had been granted the right to stay in Switzerland. However, the second
applicant's request for asylum has also been rejected, and she did not
appeal against this decision.
The Government further recall that the second applicant's parents
have a right to stay in Switzerland. However, there is no dependency
existing between the second applicant and her parents which would
warrant the conclusion that family life exists between them within the
meaning of Article 8 (Art. 8) of the Convention.
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. This situation may arise when a married person is
obliged to leave a State in which his spouse and his children are
living (see No. 9203/80, Dec. 5.5.81, D.R. 24 p. 239).
In the present case the Commission notes that when filing the
application the first applicant had been ordered to leave Switzerland
by 31 May 1992. The second applicant who had applied for asylum
claimed that she could not be expected to follow him to Turkey, inter
alia as she had herself fled from that country. Eventually, the first
applicant left Switzerland at a date not specified by the parties.
After filing the application, the second applicant's request for
asylum was rejected on 6 August 1992. It transpires that the second
applicant has meanwhile also left Switzerland and that the applicants
are now residing in Germany.
Thus, the applicants are presently living together as a family.
In this respect, therefore, they are not subjected to a breach of their
right to respect for their family life within the meaning of Article 8
(Art. 8) of the Convention. It follows that they can no longer claim
to be victims within the meaning of Article 25 (Art. 25) of the
Convention and that this part of the application is inadmissible under
Article 27 para. 2 (Art. 27-2) of the Convention.
b) The applicants may be understood as complaining that the Swiss
authorities' refusal to grant asylum to the second applicant separated
her from her sick mother, and that this breached her right to respect
for family life within the meaning of Article 8 (Art. 8) of the
Convention.
However, the Commission notes that the applicants have not
referred to any bonds, for instance dependency, which would indicate
the existence of family life among the applicants and the second
applicant's parents as would be required by Article 8 (Art. 8) of the
Convention. In this respect, the Commission notes, for instance, that
the second applicant's mother was not accompanied by the second
applicant when she entered Switzerland in 1989. Other children
followed her in the same year, though the second applicant entered
Switzerland in 1990.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicants complain that the separation of their family,
resulting from the authorities' refusal to grant asylum to the first
applicant, amounted to inhuman treatment contrary to Article 3
(Art. 3) of the Convention. However, in view of its consideration of
the applicants' complaints under Article 8 (Art. 8) of the Convention,
the Commission considers that no separate issue arises under Article
3 (Art. 3). This part of the Convention is therefore also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicants complain under Article 13 (Art. 13) of the
Convention that they had no effective remedy at their disposal to raise
their complaint under Article 8 (Art. 8) of the Convention before the
Swiss authorities. Under Article 1 of Protocol No. 7 (P7-1) they
complain that the procedure chosen by the Swiss authorities breached
that Article.
The Commission notes that before the Swiss authorities the
applicants complained under Article 8 (Art. 8) of the Convention that
their marriage had changed the situation regarding their right to
reside in Switzerland. In its decision of 4 May 1992 the Swiss
Commission for Appeals in Matters of Asylum effectively dealt with, and
then dismissed, this complaint.
The applicants therefore had an "effective remedy" at their
disposal within the meaning of Article 13 (Art. 13) of the Convention.
Moreover, they have not shown in which respect these proceedings
did not comply with the requirements of Article 1 of Protocol No. 7
(P7-1).
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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy