S.T. v. SWITZERLAND



                      AS TO THE ADMISSIBILITY OF

                      Application No. 24089/94

                      by S. T.

                      against Switzerland

      The European Commission of Human Rights (Second Chamber) sitting

in private on 29 June 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

                 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 14 April 1994 by

S. T. against Switzerland and registered on 5 May 1994 under file

No. 24089/94;

      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 1947 and of Serb origin, is a national of

former Yugoslavia residing at Zurich in Switzerland.  He is represented

by Mr V. Landmann, a lawyer practising in Chur.

      In 1972 the applicant married M.V., a national of former

Yugoslavia who had a residence permit (Aufenthaltsbewilligung) in

Switzerland.  It appears that the applicant then took up residence in

Switzerland.  Two daughters were born in 1972 and 1973.

      In 1978 the applicant was granted a residence permit in

Switzerland, and in 1980 his wife obtained the right to domicile

(Niederlassungsbewilligung).  In 1982 their third daughter was born.

      Between 1980 and 1984 the applicant was convicted of

contraventions of the Road Traffic Act (Strassenverkehrsgesetz) and of

the Gambling Act (Spielbankengesetz).  On 13 July 1982 the Aliens'

Police (Fremdenpolizei) admonished the applicant for having

participated in unlawful gambling.  On 27 August 1987 the Court of

Appeal (Obergericht) of the Canton of Zurich sentenced the applicant

to 14 days' imprisonment on account of contravening the Gambling Act.

On 24 November 1987 the Aliens' Police again admonished the applicant.

      On 27 March 1991 the Zurich District Court (Bezirksgericht)

convicted the applicant of repeated and continuing contraventions

against the Narcotics Act, in particular of having traded in heroin,

and sentenced him to six and a half years' imprisonment.  The applicant

was also sentenced to ten years' banishment from Switzerland which was

suspended on probation for a period of four years.

      The applicant served his prison sentence until 16 June 1993 when

he was released on probation due to his good conduct in prison.

      Before this release from prison, the applicant filed two requests

for a prolongation of his residence permit which the Aliens' Police of

the Canton of Zurich refused on 20 July 1992.

      The applicant's appeal (Rekurs) was dismissed by the Council of

State (Regierungsrat) of the Canton of Zurich on 17 November 1993.  In

its decision, the Council of State found that, even if the applicant

had been released on probation on account of his good conduct, the

Aliens' Police could apply stricter conditions.  The Council of State

considered that in view of the severity of the offences committed by

the applicant the family could be expected to suffer certain

disadvantages if it did not want to follow the applicant.  In this

respect the Council of State also noted that the applicant had his

parents as well as a brother and a sister in Yugoslavia.

      In its decision the Council of State referred inter alia to

Section 17 para. 2, last sentence of the Federal Act on Residence and

Domicile of Aliens (Bundesgesetz über Aufenthalt und Niederlassung der

Ausländer).  According to this provision the entitlement of a foreigner

to a prolongation of his residence permission will expire if he

breaches public order (gegen die öffentliche Ordnung verstösst).

      The applicant then filed an administrative law appeal

(Verwaltungsgerichtsbeschwerde) which the Federal Court (Bundesgericht)

dismissed on 23 February 1994.

      The Federal Court considered that the applicant had repeatedly

been sentenced to imprisonment on account of various offences, that his

culpability was very serious, and that he had clearly contravened

public order.  By trading in drugs, in order to finance his gambling,

he had endangered a considerable part of the population (Gefährdung

eines grösseren Bevölkerungskreises).  The Court further noted that the

applicant had twice been admonished by the Aliens' Police.  The

decision continued:

      "On the other hand, if the residence permit is not prolonged,

      there will be direct consequences for the wife and the youngest

      daughter.  The previous decision-making authority assumed that

      in view of their advanced integration in Switzerland they could

      not at all be expected to return to their home country.   Whether

      this is so may at least be questioned in respect of the wife who

      herself grew up in Yugoslavia.  The daughter, moreover, is of

      quite an adaptable age.  The situation need nevertheless not be

      finally resolved.  The applicant has committed serious and

      repeated offences and was repeatedly admonished by the Aliens'

      Police.  In view thereof, the family members may be expected, and

      it would be possible for them, to maintain their relations by

      mutually visiting each another, if they do not wish to follow the

      applicant abroad.  The applicant should have realised earlier

      that he bears a responsibility towards his family.  As the

      consequences of his offences to him as an alien must have been

      clear to him, he must have taken into account the possibility of

      a local separation from his family.  Finally, given the previous

      experiences the family members must also have been aware for some

      time that future family life in Switzerland would not necessarily

      be assured."

      "Hingegen zeitigt die Nichtverlängerung der Aufenthaltsbewilli-

      gung unmittelbare Folgen für die Gattin und die jüngste Tochter.

      Ob ihnen eine Ausreise ins Heimatland mit Blick auf ihre fortge-

      schrittene Integration in der Schweiz geradezu unzumutbar wäre,

      wie die Vorinstanz annimmt, ist jedenfalls bei der Ehefrau, die

      selbst in Jugoslawien aufgewachsen ist, fraglich.  Auch die

      Tochter befindet sich durchaus noch in einem anpassungsfähigen

      Alter.  Wie es sich damit genau verhält, kann jedoch offenblei-

      ben.  Angesichts der schweren und wiederholten Straffälligkeiten

      des Beschwerdeführers und der mehrfachen fremdenpolizeilichen

      Warnungen ist es der Familie jedenfalls zumutbar und möglich,

      sofern die Angehörigen dem Beschwerdefúhrer nicht ins Ausland

      folgen wollen, ihre Beziehungen mittels gegenseitigen Besuchen

      zu pflegen.  Der Beschwerdeführer hätte sich bereits früher

      darüber klar werden können, dass er eine Verantwortung seiner

      Familie gegenüber trägt.  Da ihm die fremdenpolizeilichen Folgen

      seiner Straftaten bewusst sein mussten, hat er eine örtliche

      Trennung von seiner Familie selbst in Kauf genommen.  Im übrigen

      musste auch den Angehörigen angesichts der früheren Erfahrungen

      schon seit geraumer Zeit bewusst gewesen sein, dass ein künftiges

      Familienleben in der Schweiz nicht ohne weiteres gesichert war."

      The Court concluded that, in view of the risk of further

offences, the public interest in keeping the applicant away from

Switzerland outweighed any private interests of the applicant in

respect of his personal and family situation.

      On 28 March 1994 the Federal Office for Aliens' Affairs

(Bundesamt für Ausländerfragen) decided to prohibit the applicant from

entering Switzerland for ten years as from 18 April 1994.  The decision

stated that he could file an appeal with the Federal Department of

Justice and Police within thirty days.

      On 29 March 1994 the Federal Aliens' Police ordered the applicant

to leave Switzerland before 17 April 1994.

COMPLAINTS

1.    The applicant submits that the political and economic conditions

in Serbia are such that, if he had to return, there would be a very

great danger of a breach of Articles 2 and 3 of the Convention (lassen

die Gefahr ihrer Verletzung als sehr hoch erscheinen).

2.    The applicant also complains under Article 8 of the Convention

that the refusal to prolong his residence permit will separate him from

his family.  He submits that he has close relations with his wife who

now runs a large café in Switzerland and is completely at home there.

He has very close relations with their youngest daughter, and the

contacts with the other two daughters have intensified.  All three

children are closely attached to Switzerland, it only being a question

of time until the youngest daughter obtains Swiss nationality.  The

children cannot be expected to live in former Yugoslavia.

      The applicant himself cannot be expected to return to Serbia

where there is a war, and in other parts of former Yugoslavia there is

clearly no place for the applicant or for his wife and children.

      The applicant points out that the banishment from Switzerland

ordered by the Zurich District Court on 27 March 1991 was suspended on

probation, and that while serving his sentence he never gave rise to

any complaints.  The risk that he will again commit a criminal offence

is minimal, as he has stopped gambling and taking drugs, and has

intensified the contacts with his family.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 14 April 1994.

      On 20 April 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 5 May 1994.

THE LAW

1.    The applicant complains that, if he is obliged to return to

Serbia, the political and economic conditions there would involve a

breach of Articles 2 and 3 (Art. 2, 3) of the Convention.  Under

Article 8 (Art. 8) of the Convention he complains of a separation from

his family.

2.    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, expulsion may in exceptional circumstances involve a

violation, in particular where there is a serious fear of treatment

contrary to Articles 2 or 3 (Art. 2, 3) of the Convention in the

country to which the person is to be expelled (see No. 10564/83,

Dec. 10.12.84, D.R. 40 p. 263; Eur. Court H.R., Soering judgment of

7 July 1989, Series A no. 161, p. 32 et seq., para. 81 et seq.)

Moreover, 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).

3.    Insofar as the applicant complains that, if he is obliged to

return to Serbia, the political and economic conditions there would

involve a breach of Articles 2 and 3 (Art. 2, 3) of the Convention, he

has not shown that he obtained a decision by the Swiss authorities on

these complaints.  He has therefore not complied with the requirements

under Article 26 (Art. 26) of the Convention as to the exhaustion of

domestic remedies, and the application must in this respect be rejected

under Article 27 para. 3 (Art. 27-3) of the Convention.

      This complaint would in any event also be manifestly ill-founded.

Thus, the applicant has not at all shown that upon his return to a part

of former Yugoslavia he would face a real risk of being subjected to

treatment contrary to Article 2 or Article 3 (Art. 2, 3) of the

Convention.

4.    The applicant complains that the refusal to prolong his residence

permit will separate him from his wife and his daughters.  He relies

on Article 8 (Art. 8) of the Convention which 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."

      In examining such cases the Commission must 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, this involves 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.

      The Commission has first examined the situation of the

applicant's daughters born in 1972 and 1973.  The latter are no longer

minors, and the relationships between them and the applicant do not

enjoy the protection of Article 8 (Art. 8) of the Convention without

evidence of further dependency, involving more than the normal,

emotional ties (see No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).

      In the present case, it has not been shown that these daughters

are dependent on the applicant.  Moreover, it is not excluded that they

can visit the applicant after he has left Switzerland.  In respect of

this part of the application there is, therefore, no appearance of an

interference with the applicant's right to respect for family life

within the meaning of Article 8 (Art. 8) of the Convention.

      The Commission has next examined the situation of the applicant's

wife and their daughter born in 1982.  It accepts that sufficient links

exist between these persons and the applicant as to give rise to the

protection of "family life" within the meaning of Article 8 (Art. 8)

of the Convention.  Thus, the refusal of the Swiss authorities to

prolong the applicant's residence permit amounts to 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.  The

Commission must therefore examine whether such interference is

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

      The Commission observes that the Swiss authorities, when refusing

to prolong the applicant's residence permit in Switzerland, relied on

Section 17 para. 2, last sentence, of the Federal Act on Residence and

Domicile of Aliens.  The interference was therefore "in accordance with

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

Convention.

      Moreover, when refusing to prolong the applicant's residence

permit, the Swiss authorities considered that the applicant had been

convicted of criminal offences and that his continuing presence in

Switzerland constituted a danger to public order.

      In this respect, the Commission observes in particular that the

applicant was convicted of serious offences of repeated and continuing

contraventions against the Narcotics Act, and sentenced to six and a

half years' imprisonment.  These offences were committed although the

Aliens' Police had twice admonished the applicant in respect of

previous offences.

      The Commission further notes that the applicant's wife is a

citizen of Yugoslavia.  Before the Commission the applicant has not

sufficiently shown that the conditions in former Yugoslavia would

nevertheless be alien to his wife, or that the daughter could not adapt

thereto.

      It is true that the applicant also appears to refer to a

contradiction between various decisions of Swiss authorities.  Thus,

the banishment from Switzerland originally ordered by the Zurich

District Court on 27 March 1991 was suspended on probation.

      The Commission notes that the Federal Court decided on the

applicant's case in last resort, after having considered all

circumstances.  It found that, in view of the risk of further offences,

the public interest in keeping the applicant away from Switzerland

outweighed any private interests of the applicant in respect of his

personal and family situation.

      Having regard to all the circumstances of the present case the

Commission finds that the Swiss authorities have not exceeded 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 therefore considers that the interference with the

applicant's right to respect for family life was justified under

Article 8 (Art. 8) in that it could reasonably be considered "necessary

in a democratic society ... for the prevention of disorder or crime".

      The remainder of 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                      Acting President

      the Second Chamber                 of the Second Chamber

           (K. ROGGE)                         (H. DANELIUS)

 

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