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. 30997/96
by A. H.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 15 May 1996, the following members being present:
MM. H. DANELIUS, President
S. TRECHSEL
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, 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 29 January 1996
by A. H. against Switzerland and registered on 12 April 1996 under file
No. 30997/96;
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, a Lebanese citizen born in 1958, is a painter
residing in Tagelswangen. Before the Commission he is represented by
his wife, Yvonne Hoteit.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1989 the applicant entered Switzerland where under different
names he filed various requests for asylum. In 1991, after the Federal
Office for Refugees (Bundesamt für das Flüchtlingswesen) had dismissed
the requests, the applicant was expelled to Lebanon.
On 12 November 1991 the applicant married his present wife, a
Swiss citizen, in Lebanon. Thereafter, he obtained a residence permit
(Aufenthaltsbewilligung) from the Canton of Zurich. On 2 March 1992
the applicant returned to Switzerland.
On 28 July 1993 the applicant was remanded in custody on
suspicion of having contravened the Narcotics Act
(Betäubungsmittelgesetz). On 15 April 1994 the Zurich District Court
(Bezirksgericht) sentenced the applicant to two and a half years'
imprisonment on account of various contraventions of the Narcotics Act,
in particular of having dealt with heroin and cocaine. On 27 March
1995 he was released on probation.
Meanwhile, on 16 February 1994 the Police Directorate
(Polizeidirektion) of the Canton of Zurich dismissed the applicant's
request for a prolongation of the residence permit.
An appeal against this decision was dismissed by the Government
(Regierungsrat) of the Canton of Zurich on 5 April 1995. In its
decision, the Government found, inter alia, that doubts arose as to the
intensity of the applicant's marriage since he himself had admitted
having had a relationship with another person. Moreover, the
applicant's parents and his seven brothers and sisters lived in
Lebanon. The applicant had married his wife in Lebanon, and she had
visited his family there. His wife could be expected to follow the
applicant, particularly since he had explained that he wished to travel
to a third country.
The applicant and his wife filed an administrative law appeal
(Verwaltungsgerichtsbeschwerde) which the Federal Court (Bundesgericht)
dismissed on 25 July 1995. In its decision, the Court 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). The Court considered that there was a considerable
public interest in removing the applicant from Switzerland as he had
committed serious offences, and as there was a danger that he would
commit new offences. The Court continued:
Translation
"he has not been long in Switzerland. After the applicant was
lawfully permitted to stay here in view of his marriage, he
committed a criminal offence already after eleven months'
residence. Professionally he is not particularly integrated; his
criminal convictions did not facilitate this. Both applicants
have themselves stated that they had hardly any close contacts
in Switzerland with the exception of the wife's family members.
The possibility to be supported by a family is also open to her
in Lebanon, as the applicant's family lives there. Thus, only
the applicant's relationship with his wife is an important
connection with Switzerland. Even if she could support him, it
must nevertheless be considered that his marriage did not stop
him from committing criminal offences. A new element is the fact
that the second applicant is in her late pregnancy, i.e. she
expects a child from her husband in early July 1995. It is
unknown whether the child has meanwhile been born. The personal
relations with Switzerland may thereby have become somewhat more
dense, but on balance it is not decisive....
The pregnancy and the birth of a child, respectively, may
increase the difficulties of a departure, but they do not render
it impossible. For instance, it is not excluded that the second
applicant, before following her husband abroad, waits until she
has recovered from birth. For the rest, the cantonal authorities
can take these circumstances into consideration when determining
the date of departure, which must in any event be newly decided.
Even if the second applicant could not be expected to leave
Switzerland, this would not in the end decisively affect the
balancing of interests. The first applicant should already
earlier on have considered that he bears a responsibility towards
his wife and any - at that time future - children."
Original
"(es handelt) sich nicht um eine lange hiesige Anwesenheit.
Nachdem der Beschwerdeführer sich infolge seiner Heirat
rechtmässig hier aufhalten durfte, wurde er bereits nach nur
elfmonatiger Anwesenheit straffällig. Beruflich scheint er nicht
fest integriert zu sein, wobei er sich dies durch seine
Straffälligkeit auch nicht erleichtert hat. Beide
Beschwerdeführer haben sodann selbst ausgesagt, in der Schweiz
abgesehen von den Familienmitgliedern der Ehefrau kaum enge
Kontakte zu pflegen. Die Möglichkeit zu familiärem Rückhalt
eröffnet sich für sie aber auch im Libanon, lebt dort doch die
Familie des Beschwerdeführers. Somit stellt einzig die Beziehung
zur Ehefrau einen wichtigen Bezugspunkt des Beschwerdeführers zur
Schweiz dar. Selbst wenn sie ihm eine Stütze sein könnte, ist
doch zu beachten, dass ihn auch die Ehe nicht an seiner
Delinquenz gehindert hat. Neu kommt nunmehr dazu, dass die
Beschwerdeführerin hochschwanger ist beziehungsweise auf Anfang
Juli 1995 von ihrem Mann ein Kind erwartet hat. Ob dieses
inzwischen geboren wurde, ist nicht bekannt. Die persönlichen
Beziehungen zur Schweiz mögen sich dadurch etwas verdichtet
haben, entscheidend ins Gewicht fällt dies aber auch nicht...
Die Schwangerschaft beziehungsweise die Geburt eines Kindes
mögen die Schwierigkeiten einer Ausreise vergrössern, sie
verunmöglichen sie aber nicht. So ist nicht ausgeschlossen, dass
die Beschwerdeführerin, bevor sie dem Ehemann ins Ausland
nachfolgt, noch so lange zuwartet, bis sie sich von der Geburt
erholt hat. Im übrigen können die kantonalen Behörden diesen
Umständen allenfalls auch bei der Festlegung der Ausreisefrist,
die gemäss dem angefochtenen Entscheid ohnehin neu zu bestimmen
ist, Rechnung tragen. Selbst wenn eine Ausreise der
Beschwerdeführerin aber unzumutbar wäre, würde dies die
Interessenabwägung im Ergebnis nicht entscheidend beeinflussen.
Der Beschwerdeführer hätte sich bereits früher darüber klar
werden können, dass er seiner Frau und seinen allfälligen - aus
damaliger Sicht künftigen - Kindern gegenüber Verantwortung
trägt."
On 28 July 1995 the applicant's wife gave birth to a child, a
boy, at Winterthur in Switzerland.
The applicant's request for reopening the Federal Court
proceedings was dismissed by the Federal Court on 10 November 1995.
B. Relevant domestic law
Article 7 para. 1 of the Federal Act on 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."
According to Article 5 para. 1 of the Act, the residence permit
is always limited in time (ist stets befristet). 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
the authorities refused to prolong his residence permit. He submits
that they relied solely on the sentence of two and a half years which
he received. His personal circumstances, for instance his reduced
culpability and his integration in Switzerland, were not considered.
After his release he has behaved well.
The applicant points out that he has a child. The matrimonial
relationship continued while he was in prison; his wife visited him
regularly, and after his release, he again lived together with her.
The applicant submits that his wife could not integrate in
Lebanon. She was not responsible for the applicant's conviction, and
residence in Lebanon would be extremely complicated for her. She would
lose her employment in Switzerland. She could not be expected to live
with a baby in a country which has been destroyed by war, the language
of which she does not speak, and to the culture of which she has no
attachment. The applicant's wife only saw his family members once,
i.e. upon marriage. On the other hand she has strong roots in
Switzerland where her brother and parents live who assist her with
their child. In the long run, it would be very painful for the child
to be without the father.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 29 January 1996.
On 6 February 1996 the Acting President decided not to apply Rule
36 of the Commission's Rules of Procedure.
The application was registered on 12 April 1996.
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 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.
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 private and 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. Thus the
refusal to prolong his residence permit interfered with his right to
respect for 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 will thereby take into
account that it would raise difficulties for the applicant's wife to
follow him to Lebanon.
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 two and a half years. The
interference was therefore imposed "for the prevention of crime" within
the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
Furthermore, in its decision of 25 July 1995 the Federal Court
carefully balanced the various interests involved. It considered, on
the one hand, that apart from the applicant's marriage to a Swiss
citizen, he had no contacts with Switzerland. On the other hand, it
considered that the applicant had committed serious criminal offences
and that his departure from Switzerland was in the public interest.
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 served
the purpose of removing him from Switzerland.
Moreover, the present case differs from the Beldjoudi case (Eur.
Court H.R., judgment of 26 March 1993, Series A no. 234-A) in that the
present applicant was not born in Switzerland; that his stay in
Switzerland was comparatively short; and that the period of marriage
spent together with his wife was also comparatively short.
Finally, the domestic authorities considered that the applicant
had a large family in Lebanon - his parents as well as seven brothers
and sisters - who could assist the applicant's wife and their child,
which is still of an adaptable age, if they settled in Lebanon. The
Commission also notes the decision of the Government of the Canton of
Zurich of 5 April 1995 according to which the applicant had stated that
he and his wife wished to travel to a third country, rather than
returning to Lebanon.
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 private and 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, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)