Europäischer Gerichtshof für Menschenrechte
Cour européenne des droits de l'homme
Corte europea dei diritti dell'uomo
European Court of Human Rights


AS TO THE ADMISSIBILITY OF

Application No. 25436/94

by H. M. C.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting
in private on 7 December 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

L. LOUCAIDES

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 26 May 1994 by
H. M. C. against Switzerland and registered on 18 October 1994 under
file No. 25436/94;

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 1958, is a Turkish citizen residing in
Kreuzlingen. Before the Commission he is represented by Mr. D. Vischer,
a lawyer practising in Zürich.

A. Particular circumstances of the case

In 1980 the applicant entered Switzerland with a residence permit
for one year (Jahresaufenthaltsbewilligung). On 17 August 1984 the
Aliens' Police (Fremdenpolizei) refused to prolong his residence
permit, as he had obtained it by means of untrue statements and by
concealing important facts. For instance, he had not disclosed that
he had been expelled from Germany and that he had been convicted of
criminal offences by German courts. Furthermore, he had also been
convicted of criminal offences in Switzerland.

Subsequently, in 1984, the applicant married a Swiss citizen.
As a result, the Aliens' Police prolonged his residence permit on 23
January 1985 for the time being and depending on his good conduct.
On 12 March 1985 the Unterrheintal Court Commission (Gerichts-
kommission) sentenced the applicant to a fine of 300 SFr for having
facilitated the illegal entry of foreigners (Erleichterung der
rechtswidrigen Einreise).

On 19 February 1986 the Unterrheintal District Court (Bezirksge-
richt) convicted the applicant of repeated contraventions of the
Narcotics Act (Betäubungsmittelgesetz) and sentenced him to 15 months'
imprisonment and 8 years' expulsion from Switzerland, both suspended
on probation.

On 20 May 1986 the Unterrheintal District Council (Bezirksamt)
sentenced the applicant to a fine of 800 SFr for having disregarded a
speed limit.

On 31 August 1990 the applicant requested the prolongation of his
residence permit which had expired on 15 July 1986. On 10 September
1990 the Aliens' Police of the Canton of St. Gallen granted him a
provisional permit to stay with his wife during pending criminal
proceedings against him.

On 22 October and 6 December 1990 the Cantonal Court (Kantons-
gericht) of St. Gallen convicted the applicant of repeated and
continuing contraventions of the Narcotics Act and sentenced him to
three and a half years' imprisonment. The Court also revoked the
suspension of his earlier sentence of 19 February 1986.

During his detention the applicant filed an application for

a residence permit which the St. Gallen Aliens' Police refused on
6 October 1992.

On 23 October 1992 the applicant was released on probation; his
expulsion was suspended on probation.

On 19 February 1993 the Werdenberg District Council sentenced the
applicant to a fine of 120 SFr for assault (Tätlichkeit).

On 16 March 1993 the Council of State of the Canton of St. Gallen
dismissed the applicant's appeal against the decision of the Aliens'
Police of 6 October 1992. It relied on Section 7 para. 1 and Section
10 para. 1 subpara. (a) of the Federal Act on the Residence and
Domicile of Aliens (Bundesgesetz über Aufenthalt und Niederlassung der
Ausländer; see below, Relevant domestic law).

On 21 April 1993 the applicant filed an administrative law appeal
(Verwaltungsgerichtsbeschwerde) which the Federal Court (Bundesgericht)
dismissed on 11 February 1994.

The Court found that Section 7 para. 1 of the Federal Act on the
Residence and Domicile of Aliens did not grant foreign spouses of Swiss
citizens a right to a residence permit in Switzerland if there was a
ground for expulsion within the meaning of Section 10 of the Federal
Act on the Residence and Domicile of Aliens. The decision further noted
that the applicant had been convicted of various serious offences and
constituted a danger to public order. The decision continued:
Translation

"The applicant's wife, formerly an Austrian citizen,

obtained Swiss citizenship through marriage. As far as it is
known, she has always lived in Central Europe - in particular in
Austria and in Switzerland. It would hardly be possible for her
to come to terms with the applicant's native country. She can
therefore hardly be expected to follow him to Turkey. It is of
no relevance whether or not she still has the Austrian

citizenship today. For, even if this were to be the case, it
would not be certain whether the applicant could live with her
in Austria. On the other hand, it is relevant that the applicant
was refused a prolongation of his residence permit already before
the marriage and that a residence permit was only granted after
the marriage for the time being. Therefore, it also became clear
to the wife that a future life together in Switzerland was

uncertain."

Original

"Die Ehefrau des Beschwerdeführers erhielt als ursprünglich

österreichische Staatsangehörige durch Heirat das Schweizer

Bürgerrecht. Sie hat, soweit bekannt, immer in Mitteleuropa -
namentlich in Österreich und in der Schweiz - gelebt. Es dürfte
ihr kaum möglich sein, sich im Heimatland des Beschwerdeführers
zurechtzufinden, weshalb es ihr auch kaum zuzumuten ist, diesem
in die Türkei zu folgen. Ob sie heute noch über die

österreichische Staatsbürgerschaft verfügt, ist nicht wesentlich,
denn, selbst wenn dies zuträfe, stünde nicht fest, dass der

Beschwerdeführer mit ihr zusammen in Österreich leben könnte.
Hingegen fällt in Betracht, dass ihm bereits vor der Heirat die
Verlängerung der Aufenthaltsbewilligung verweigert und nach der
Heirat nur auf Zusehen hin erteilt worden war. Damit war auch
der Ehefrau erkennbar, dass das künftige Zusammenleben in der
Schweiz nicht gesichert war."

The Court concluded that the refusal to grant the applicant a new
residence permit was proportionate in view of the public interest in
removing the applicant from Switzerland.

B. Relevant domestic law

Article 7 para. 1 of the Federal Act on the Residence and

Domicile of Aliens states:

Translation

"The foreign spouse of a Swiss citizen is entitled to be

granted or have prolonged, a residence permit... This

entitlement ceases when there is a ground for expulsion."

German

"Der ausländische Ehegatte eines Schweizer Bürgers hat

Anspruch auf Erteilung und Verlängerung der Aufenthalts-

bewilligung... Der Anspruch erlischt, wenn ein Ausweisungsgrund
vorliegt."

Article 10 para. 1 a of the Act states:

Translation

"A foreigner may be expelled from Switzerland... only if:

(a) he has been punished by a court for a crime or offence;"
German

"Der Ausländer kann aus der Schweiz... nur ausgewiesen

werden:

(a) wenn er wegen eines Verbrechens oder Vergehens gerichtlich
bestraft wurde;"

COMPLAINTS

The applicant complains under Article 8 of the Convention that
he has been refused a prolongation of his residence permit in
Switzerland and that he will therefore be separated from his wife. He
submits that she cannot be expected to follow him abroad as she is a
Swiss citizen who does not speak his mother tongue. Thus, his personal
interest to stay in Switzerland and live his marital life outweighs the
interests of public order and security. The applicant also submits
that since his release from prison he has behaved well.

THE LAW

The applicant complains under Article 8 (Art. 8) of the

Convention that his residence permit has not been prolonged and that
he will therefore be separated from his wife. Article 8 (Art. 8)
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 and 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 (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).

The present applicant is married to a Swiss citizen residing in
Switzerland. Thus the refusal to prolong his residence permit
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 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 grant the applicant a new residence permit, relied on Sections 7
and 10 of the Federal Act on the Residence and Domicile of Aliens.
According to these provisions, the applicant as the spouse of a Swiss
citizen no longer had a right to a residence permit in view of his
conviction of a criminal offence which constituted a ground for
expulsion. 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 grant the applicant a new residence
permit, the Swiss authorities considered that the applicant had been
convicted of serious offences. The Commission notes in particular that
he was convicted of contraventions under the Narcotics Act and
sentenced to imprisonment of altogether four years and nine months.
Furthermore, in its decision of 11 February 1994 the Federal
Court carefully balanced the various interests involved. It

considered, on the one hand, that the applicant was married to a Swiss
citizen who could not be expected to follow him to Turkey. On the
other hand, it considered that the applicant had committed serious
criminal offences and that he constituted a danger to public order.
It is true that the applicant claims to have behaved well since
his release from prison. However, the Commission notes that the
Federal Court decided on the applicant's case in the last resort, and
after having considered all circumstances of the case. It concluded
that the refusal to grant the applicant a new residence permit was
proportionate in order to maintain public order.

Moreover, the applicant married after he had been refused a

prolongation of his residence permit for the first time. After the
marriage a new residence permit was granted only for the time being.
The applicant and his wife therefore knew that they might not be able
to continue their married life in Switzerland.

Taking into account 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 does not find that the Swiss authorities, when refusing to
grant the applicant a new residence permit, acted unreasonably in
balancing the various interests involved.

The Commission therefore considers that the interference with the
applicant's right to respect for his family life was 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".

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 unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Acting President of the

Second Chamber Second Chamber

(K. ROGGE) (H. DANELIUS)
Entscheidinformationen   •   DEFRITEN
Dokument : 25436/94
Datum : 07. Dezember 1994
Publiziert : 07. Dezember 1994
Quelle : Entscheide EGMR (Schweiz)
Status : 25436/94
Sachgebiet : (Art. 8) Right to respect for private and family life (Art. 8-1) Respect for family life (Art. 8-2) Interference
Gegenstand : H.M.C. v. SWITZERLAND


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