18017/91

 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)