AS TO THE ADMISSIBILITY OF
Application No. 18017/91
by Hidir YALCINKAYA
against Switzerland
The European Commission of Human Rights sitting in private
on 3 September 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
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
16 January 1991 by Hidir YALCINKAYA against Switzerland and
registered on 22 March 1991 under file No. 18017/91;
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, a Turkish citizen born in 1952, is an employee
who until January 1991 resided at Reinach in Switzerland. He
apparently now resides in Turkey. Before the Commission he is
represented by Mr. A. Flachsmann, a lawyer practising in Zurich.
In 1978 the applicant was permitted to reside in Switzerland
(Aufenthaltsbewilligung). In 1979 his wife, who is also a Turkish
citizen, joined him. Their son was born in 1980. In January 1991 the
applicant left Switzerland.
I.
In 1987 the applicant, after heavy alcohol consumption, fired
various shots with a revolver and thereby accidentally injured his
sister-in-law who eventually died.
On 8 January 1988 the Criminal Court (Strafgericht) of the
Canton of Basel-Landschaft convicted the applicant of committing in
1987 inter alia the offence of a multiple threat to life (mehrfache
Lebensgefährdung), in one case with the result of death, and of
attempted compulsion (versuchte Nötigung), and sentenced him to three
and a half years' imprisonment. The applicant was also ordered to
undergo a medical treatment of his alcoholism. In view of the
applicant's wife and son the Court refrained from expelling him from
Switzerland.
On 26 February 1988 the Aliens' Police (Fremdenpolizei) of the
Canton of Basel-Landschaft decided not to renew the residence permit
of the applicant and his family after his release from prison. His
appeal against this decision was dismissed by the Council of State
(Regierungsrat) of the Canton of Basel-Landschaft on 6 September 1988
which nevertheless decided to exclude the applicant's wife and child
from the decision.
On 29 March 1988 the Federal Aliens Office (Bundesamt für
Ausländerfragen) issued two decisions ordering the applicant's
expulsion from, and a prohibition to enter, Switzerland.
On 9 August 1989 the applicant's wife and son were permitted
to establish their domicile in Switzerland (Niederlassungsbewilligung)
on account of their ten years' residence.
On 16 October 1989 the Aliens Police dismissed the applicant's
request to reconsider its previous decision in the light of the
changed circumstances. The applicant's appeal was dismissed by the
Council of State of the Canton of Basel-Landschaft on 12 December
1989.
II.
Meanwhile, the applicant appealed against the decisions of the
Federal Aliens Office of 29 March 1988 to the Federal Department of
Justice and Police (Eidgenössisches Justiz- und Polizeidepartement).
On 1 December 1989 the Department dismissed the appeal.
In its decision the Department considered with regard to
Article 8 of the Convention that there was nothing to show that the
applicant's marriage was disrupted. On the other hand, the
applicant's wife was a Turkish citizen who had grown up in Turkey and
hardly spoke German. Thus, she could be expected to follow the
applicant to Turkey, particularly as they had spent longer periods of
time living together with the now deceased sister-in-law. The
Department further found that for this reason the nine-year old child
was acquainted with the Turkish language and customs.
The Department further considered that, given the serious
offences of which the applicant was convicted, the interest of the
general public in his expulsion outweighed his interest in family
life. It also considered that the legal basis for the expulsion lay
in Articles 4, 12 and 13 of the Federal Act on Aliens' Residence and
Domicile (Bundesgesetz über Aufenthalt und Niederlassung der
Ausländer). Article 4 states that the competent authority may, within
the framework of the law, freely decide on the permission to grant
residence and domicile in Switzerland. Article 12 provides that the
alien who has no such permission may at any time be requested to leave
Switzerland. Article 13 states that an unwanted alien can be
prohibited from entering Switzerland.
The Department finally considered that other measures were not
proportionate to the aim concerned. It noted that the applicant's
attempt to have his alcoholism cured remained unsuccessful. While he
had not given any grounds for complaint in prison, it could not be
assumed with sufficient certainty that in daily life outside he would
not return to his old habits.
III.
Against the decision of the Council of State of 12 December
1989 the applicant filed an administrative law appeal
(Verwaltungsgerichtsbeschwerde) which the Federal Court
(Bundesgericht) dismissed on 24 September 1990.
The Court considered in particular that, although the applicant
and his family had a close relationship with Switzerland, they had not
broken off contacts with Turkey. His wife had bonds with her home
country. Moreover, the applicant's culpability was considerable. He
had contravened substantially the Swiss legal order and abused his
right as a guest. In the Court's view he had to be considered an
alcoholic and a criminal. Insofar as he complained of the strained
relationship with his wife's family in Turkey, the Court found that he
was himself responsible for it as he had brought about his
sister-in-law's death.
COMPLAINTS
The applicant complains under Article 8 of the Convention that
his expulsion from Switzerland has resulted in a separation from his
family. His son would have difficulties adapting to Turkish schools.
Moreover, if he returns to his home village his brother-in-law may
take revenge for his sister-in-law's death.
The applicant claims that his alcoholism results largely from
unfortunate circumstances. He points out that all these authorities
with whom he had personal contact issued a favourable prognosis for
his future conduct. After his release from prison in Switzerland he
had integrated well and was cured from alcoholism.
THE LAW
The applicant complains under Article 8 (Art. 8) of the
Convention that as a result of his expulsion to Turkey he has been
separated from his family. Article 8 (Art. 8) provides:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
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. 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, as in
the present case, a married person is obliged to leave a State in
which his spouse and his children are living (cf. No. 9203/80, Dec.
5.5.81, D.R. 24 p. 239).
In the present case, the Commission notes that the applicant's
wife and son, who on account of their ten years' residence have been
permitted to establish their domicile in Switzerland, have been
lawfully residing in that country. Thus, the Commission considers
that the applicant's expulsion from Switzerland interfered with his
right to respect for family life within the meaning of Article 8 para.
1 (Art. 8-1) of the Convention. The Commission's task is now to
examine whether such interference was justified under Article 8 para.
2 (Art. 8-2).
The Commission observes that the Swiss authorities based their
expulsion order on Articles 4, 12 and 13 (Art. 4, 12, 13) of the
Federal Act on Aliens' Residence and Domicile. The interference was
therefore "in accordance with Convention.
Moreover, when deciding to expel the applicant, the Swiss
authorities considered that the applicant had been convicted of
criminal offences, and that, in view of the applicant's alcoholism,
his continuing presence in Switzerland constituted a danger to the
public.
In this respect, the Commission observes in particular that
the applicant was convicted of serious criminal offences, namely the
offence of a multiple threat to life, in one case with the result of
death, and of attempted compulsion. Moreover, the Commission notes
that the applicant was 35 years old when he committed these offences.
The Commission further notes that the applicant's wife is of
Turkish origin and has bonds with Turkey and that the child is of an
adaptable age. In these circumstances it would not be unreasonable to
expect the applicant's wife and child to follow him to Turkey.
Taken into account the margin of appreciation which is left to
Contracting States in such circumstances, the Commission therefore
considers that the interference with the applicant's right to respect
for family life was justified under Article 8 para. 2 (Art. 8-2) of
the Convention in that it could reasonably be considered as "necessary
in a democratic society ... for the prevention of disorder or crime".
It follows that the application is 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 the Commission President of the Commission
( H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy