16563/90

 AS TO THE ADMISSIBILITY OF Application No. 16563/90 by B.I. against Switzerland The European Commission of Human Rights sitting in private on 13 July 1990, the following members being present: MM. J.A. FROWEIN, Acting President S. TRECHSEL F. ERMACORA G. SPERDUTI A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H.G. SCHERMERS H. DANELIUS Mrs. G. H. THUNE Sir Basil HALL MM. F. MARTINEZ RUIZ Mrs. J. LIDDY MM. L. LOUCAIDES J.-C. GEUS A.V. ALMEIDA RIBEIRO Mr. J. RAYMOND, Deputy 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 22 March 1990 by B.I. against Switzerland and registered on 4 May 1990 under file No. 16563/90; Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission; Having deliberated; Decides as follows: THE FACTS The facts submitted by the applicant may be summarised as follows. The applicant, a Turkish citizen born in 1963, is a labourer currently detained at Witzwil prison in Switzerland. Before the Commission he is represented by Mr. P. Nüspliger, a lawyer practising at Berne in Switzerland. In 1977 the applicant left Turkey and moved to Switzerland where he has since been living. In 1980 he had a car accident as a result of which he lost one eye. In 1983 he received permission to reside in Switzerland (Niederlassungsbewilligung). In 1980 the applicant married in Turkey. His wife joined him in 1981 in Switzerland where she received permission to reside. Their two children were born in Switzerland in 1983 and 1987, respectively. In 1986 the Aliens' Police (Fremdenpolizei) of the Canton of Berne admonished the applicant on account of three convictions concerning inter alia driving a car despite withdrawal of a learner's driving licence. On 15 January 1988 the Mendrisio Jury Court convicted the applicant of various drug offences and sentenced him to four and a half years' imprisonment as well as to expulsion from Switzerland, though the latter was suspended for a probation period of five years. On 7 March 1988 the Police Direction (Polizeidirektion) of the Canton of Berne decided definitely to expel the applicant as from the date of his release from detention, which was envisaged for 7 May 1990. The Police Direction considered in particular that the applicant's drug dealing had caused a danger for numerous persons. The applicant's appeal was dismissed by the Council of State (Regierungsrat) of the Canton of Berne on 22 February 1989. On 15 December 1989 the Federal Court (Bundesgericht) dismissed his administrative law appeal (Verwaltungsgerichtsbeschwerde). The Court relied on Articles 10 and 11 of the Federal Act on the Residence of Aliens (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer) according to which foreigners may be expelled, inter alia, if they have been convicted of a criminal offence, and if the expulsion is proportionate. The Court found that the applicant's culpability (Verschulden) with regard to the convictions concerned was serious. Moreover, he still had ties with Turkey; thus before the Mendrisio Jury Court the applicant himself had referred to an apartment of his in Turkey where he eventually intended to return. The Court further found that the applicant's wife, who had grown up in Turkey, could be expected to follow her husband. The same applied to their children who were still young and therefore adaptable. COMPLAINTS The applicant now complains under Article 8 of the Convention of the decision to expel him to Turkey which he submits is disproportionate as he never constituted a danger to the public. The conviction resulted from an "accident" ("Ausrutscher") rather than premeditation. The family is acclimatised in Switzerland and the children are now expected to return to a country which is entirely foreign to them. His apartment in Turkey was bought as an investment object and is used by relatives. The applicant also submits that he is disabled and awaiting an operation in Switzerland which cannot be undertaken in Turkey. THE LAW 1. The applicant complains under Article 8 (Art. 8) of the Convention that as a result of his expulsion to Turkey he will be separated from his family which cannot be expected to follow him. 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 considers that the applicant's expulsion from Switzerland would interfere 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 10 and 11 of the Federal Act on the Residence of Aliens. 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 the applicant had been convicted of drug offences and that his continuing presence in Switzerland constituted a danger to public safety. The Commission further notes that the applicant's wife is of Turkish origin and that the children are of an adaptable age. Moreover, the applicant owns a flat in Turkey. In these circumstances it would not be unreasonable to expect the applicant's wife and children to follow him to Turkey. The Commission therefore considers that the interference with the applicant's right to respect for family life is justified under Article 8 para. 2 (Art. 8-2) of the Convention in that it is "necessary in a democratic society ... for the prevention of disorder or crime" as well as "for the protection of health". It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. The applicant has further complained that the expulsion would render impossible an important operation in Switzerland. The Commission, which has examined this complaint under Article 3 (Art. 3) of the Convention, finds that the applicant has insufficiently substantiated that the operation would not be possible elsewhere, for instance in Turkey. It follows that the remainder of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission DECLARES THE APPLICATION INADMISSIBLE. Deputy Secretary to the Commission Acting President of the Commission (J. RAYMOND) (J. A. FROWEIN)