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. 40080/98

by Ylber REDZEPI

against Switzerland

The European Commission of Human Rights sitting in private on
12 March 1998, the following members being present:

MM J.-C. GEUS, Acting President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, 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 23 December 1997
by Ylber Redzepi against Switzerland and registered on 3 March 1998
under file No. 40080/98;

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 applicant, of Kosovo origin, is a citizen of Yugoslavia born
in 1973. According to his submissions, he and his family reside in
Dietikon in Switzerland. Before the Commission he is represented by
Mr R. Ilg, a lawyer practising in Zürich.

The facts of the case, as submitted by the applicant, may be
summarised as follows.

The applicant entered Switzerland together with his parents on
8 May 1989, and has meanwhile obtained the authorisation to establish
domicile (Niederlassungsbewilligung).

On 3 July 1992 the applicant married V. M., a Yugoslav citizen
of Kosovo origin, in Yugoslavia. His wife entered Switzerland on
23 August 1992. Their daughter G. was born on 18 June 1993.

On 17 August 1994 the applicant was remanded in custody, and on
9 November 1995 the Zürich District Court (Bezirksgericht) sentenced
him to three years' imprisonment for having contravened the Narcotics
Act (Betäubungsmittelgesetz).

On 29 January 1997 the Government (Regierungsrat) of the Canton
of Zürich ordered the applicant's expulsion from Switzerland for a
period of ten years.

The applicant filed an administrative law appeal (Verwaltungs-
gerichtsbeschwerde) which the Federal Court (Bundesgericht) dismissed
on 7 July 1997.

In its decision, the Court noted at the outset that the contested
measure was based on S. 10 para. 1 (a) of the Aliens' Residence and
Domicile Act (Bundesgesetz über Aufenthalt und Niederlassung der
Ausländer), according to which a foreigner may be expelled if he has
been convicted by a court.

The Court further considered in the light of the sentence imposed
on the applicant that his culpability was severe (das strafrechtliche
Verschulden wiegt schwer) and that the Aliens' Police (Fremdenpolizei)
had a considerable interest in expelling him.

The Court also noted that the applicant had only lived in

Switzerland for eight years, of which two years had been spent in
detention. He continued to have relations with his home country. The
decision continued:

Translation

"The disadvantages are somewhat more serious for his wife and
their common child, who are not responsible for the faults

committed by the applicant. However, both the wife's mother and
her siblings live in Kosovo. She herself has only lived five
years in Switzerland. She regularly spent her holidays in her
home country. The child is only four years old and does not

therefore have any difficulties to adapt to the new circumstances
of life. The family can therefore be expected to follow the

applicant upon his return to Kosovo. As a result, the possible
disadvantages for the family... do not seriously militate

against the expulsion. As the family members, who are entitled
to reside in Switzerland, can be expected to travel with the
expelled foreigner, the right to respect for family life within
the meaning of Article 8 of the Convention has a priori not been
breached."

According to a statement of the Zürich Aliens' Police

(Fremdenpolizei) of 1 October 1997, there was no need to order the
applicant's expulsion as he was then serving a prison sentence in
Yugoslavia.

COMPLAINTS

The applicant complains under Article 8 of the Convention of his
expulsion from Switzerland, resulting in the separation from his wife
and his daughter. The latter was born in Switzerland and only knows
the home country from holidays. The applicant's wife cannot be
expected to return to the Kosovo region which is insecure and where
there is unemployment. There is furthermore no public interest in the
expulsion as the Zürich District Court only imposed a prison sentence
on the applicant and did not order his expulsion.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 December 1997.

On 9 January 1998 the Acting President decided not to apply

Rule 36 of the Commission's Rules of Procedure.

The application was registered on 3 March 1998.

THE LAW

The applicant complains of his expulsion to Yugoslavia, alleging
that neither his wife nor his daughter can be expected to follow him.
He relies on Article 8 (Art. 8) of the Convention which states, insofar
as relevant:

"1. Everyone has the right to respect for his private and

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."

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.
Nevertheless, 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 HR, Moustaquim v. Belgium
judgment of 18 February 1991, Series A no. 193, p. 18, para. 36).
In the present case, the Commission finds that the applicant's
expulsion would interfere with his right to respect for his private and
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 notes that the Swiss authorities, in particular
the Federal Court in its decision of 7 July 1997, relied on S. 10
para. 1 (a) of the Federal Act on Residence and Domicile of Aliens.
According to this provision, a foreigner may be expelled if he has been
punished by a court.

The interference is, therefore, "in accordance with the law"
within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
Moreover, when deciding to expel the applicant, the Swiss

authorities considered that he had been convicted of contravening the
Narcotics Act. The measure was therefore imposed "for the prevention
of... crime" within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention.

Finally, the Commission has examined whether the measure is

"necessary in a democratic society" within the meaning of Article 8
para. 2 (Art. 8-2) of the Convention, as interpreted in the Convention
organs' case-law (see Eur. Court HR, Bouchelkia v. France judgment of
29 January 1997, Reports 1997-I, No. 28, para. 48).

In the present case, the Commission considers, on the one hand,
that the applicant has been convicted for contravening the Narcotics
Act. In its decision of 7 July 1997 the Federal Court found that the
applicant's culpability was severe.

On the other hand, the Commission notes that the applicant's
wife, who is a Yugoslav citizen of Kosovo origin, has only lived in
Switzerland for five years and remains familiar with the circumstances
in her home country where her mother and her siblings live. The
applicant's daughter, born in 1993, is still of an adaptable age.
Thus, both the applicant's wife and his daughter can be expected to
follow the applicant upon his return to Yugoslavia.

Taking into account the margin of appreciation which is left to
Contracting States in such circumstances (see Eur. Court HR, Boughanemi
v. France judgment of 24 April 1996, Reports 1996-II, No. 8, p. 610,
para. 41), the Commission considers that the interference with the
applicant's right to respect for his private and family life is
justified under Article 8 para. 2 (Art. 8-2) of the Convention in that
it can reasonably be considered "necessary in a democratic society...
for the prevention of... 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.

M. de SALVIA J.-C. GEUS

Secretary Acting President

to the Commission of the Commission