The European Commission of Human Rights sitting in private on
1 December 1986, the following members being present:
MM. E. BUSUTTIL, Acting President
C. A. NØRGAARD
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. J. RAYMOND, Deputy Secretary to the
Commission
Having regard to Article 25 (art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 9 August 1985 by K.R-J.
against Denmark and registered on 22 November 1985 under file No.
11846/85;
Having regard to the report provided for in Rule 40 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 is a Polish citizen, born in 1959. He is an electrician
by profession and resides in Copenhagen. When introducing his
application the applicant was serving a three year prison sentence at
Vestre fængsel (prison), Copenhagen.
The applicant came to Denmark in 1977 and he has lived there since.
In 1981 he married a Polish citizen and his wife came to Denmark in
1982. They do not have any children. The applicant's mother,
stepfather, sister and grandmother also live in Denmark.
On 18 August 1983 the applicant was arrested by the Danish police and
detained on remand. By indictment of 27 February 1984 he was charged
with a number of violations of the Danish Penal Code, including
11 counts of fraud. It appears that the applicant's wife was also
involved in the criminal activity and she was also arrested and
detained on remand.
By judgment of 15 June 1984 the City Court of Copenhagen (Københavns
byret) found the applicant and his wife guilty of the charges brought
against them and sentenced them to three years' and one year's
imprisonment respectively. During the court proceedings it was
established that the applicant could not expect political persecution
in Poland but that he still had to do his military service.
Therefore, in addition to the sentence imposed the Court ordered that
the applicant and his wife be expelled from Denmark when released and
furthermore the Court imposed re-entry bans, of indefinite duration in
the applicant's case and for a period of ten years in the case of his
wife.
The applicant and his wife appealed against the judgment to the Court
of Appeal (Østre Landsret) insofar as it concerned the expulsions and
the entry bans. On 23 November 1984 the Court of Appeal upheld the
lower court's judgment in this respect, insofar as it concerned the
applicant, whereas it quashed the judgment in this respect in regard
to the applicant's wife. The applicant subsequently applied to the
Ministry of Justice for leave to appeal to the Supreme Court in regard
to the expulsion and the entry ban. However, on 13 August 1985 the
Ministry refused to grant leave to appeal.
COMPLAINTS
The applicant invokes Articles 3 and 8 (art. 3, art. 8) of the
Convention maintaining that the decisions to expel him, and to refuse
him entry to Denmark, amount to inhuman treatment and disrespect for
his private and family life since his wife, mother, sister, stepfather
and grandmother all live in Denmark whereas he no longer has any
relatives or other connections in Poland.
THE LAW
1. The applicant has complained that his expulsion, which is to
follow the prison sentence imposed, and the prohibition of entry
amount to an unjustified interference with his right to respect for
his private and family life.
Article 8 (art. 8) of the Convention ensures inter alia everyone's
right to respect for his private and family life and forbids any
interference by a public authority with the exercise of this right
except under certain conditions.
The Commission has constantly held that the right of an alien to
reside in a particular country is not as such guaranteed by the
Convention (cf. eg. No. 9492/81, Dec. 14.7.82, D.R. 30, p. 232 with
further references). However, regarding the notion of "family life"
it is true that the Commission has previously held that the expulsion
of a person from a country where close relatives reside can in certain
situations amount to an infringement of Article 8 (art. 8) of the
Convention (cf. e.g. No. 7816/77, Dec. 19.5.77, D.R. 9, p. 219). In
such circumstances the Commission first examines whether such a link
exists between the applicant and the relatives as can be considered to
establish a family life within the meaning of Article 8 (art. 8).
The Commission finds that this requirement is fulfilled in regard to
the relations between the applicant and his wife. However, the
applicant and his wife, who have been married since 1981, are both
aliens of the same nationality and it has not been established that
they will be unable to make reasonable arrangements to live together
outside Denmark, even though they would prefer to live there. Where
the circumstances are such that the wife has a reasonable possibility
of following her husband out of the country, there is not in the
Commission's opinion any interference with family life contrary to
Article 8 para. 1 (art. 8-1) of the Convention (cf. No. 7729/76,
Dec. 17.12.76, D.R. 7, p. 164).
Regarding the remainder of the relatives mentioned by the applicant
the Commission observes that scarce information has been given about
these relatives and the closeness of the relationship involved. In
particular no claim of any dependence between the applicant and the
other relatives has been made. In these circumstances, therefore, the
Commission considers that it has not been shown that there exists a
sufficiently close link between the applicant and his relatives in
Denmark which could be deemed to have established the family life
which is protected by Article 8 (art. 8).
Accordingly, whilst some disturbance in the applicant's family life,
between the applicant and his wife, will inevitably result from a
refusal to permit him to reside in Denmark, the Commission considers
that it has not been shown that these disturbances are of such a
nature as to amount to a violation of the Convention and in particular
of Article 8 (art. 8).
The Commission has also considered the applicant's complaint regarding
interference with his "private life" also protected by Article 8
(art. 8) of the Convention. However, the Commission finds that the
expulsion necessarily implies a disruption of private life but this
inevitable consequence of any expulsion cannot in principle be
regarded as an interference with the right to respect for private life
protected by Article 8 (art. 8) of the Convention (cf. No. 10427/83,
Dec. 12.5.86, unpublished). Furthermore, the applicant has not
submitted any evidence which would suggest that this principle should
be departed from in the present case. The Commission therefore finds
that there has been no interference with the applicant's right to
respect for his private life.
It follows that the applicant's complaints under Article 8 (art. 8)
of the Convention, are, as a whole, manifestly ill-founded within the
meaning of Article 27 para. 2 (art. 27-2) of the Convention.
2. The applicant has finally complained that his expulsion from
Denmark and the prohibition of entry amount to inhuman treatment
within the meaning of Article 3 (art. 3) of the Convention. However,
the Commission finds that an examination of this complaint, as
submitted by the applicant, does not disclose any appearance of a
violation of this provision and it follows that this part of the
application is also manifestly ill-founded within the meaning of
Article 27 para. 2 (art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (E. BUSUTTIL)