24080/94

 AS TO THE ADMISSIBILITY OF Application No. 24080/94 by I. P. against Switzerland The European Commission of Human Rights (Second Chamber) sitting in private on 29 June 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 17 March 1994 by I. P. against Switzerland and registered on 3 May 1994 under file No. 24080/94; 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 1961 and of Serb origin, is a national of former Yugoslavia residing at Chur in Switzerland. He is represented by Mr H.-M. Allemann, a lawyer practising in Chur. In 1988 the applicant married M.D., a national of former Yugoslavia of Bosnian origin. M.D. had been granted the right to domicile (Niederlassungsbewilligung) in Switzerland since 1984. In 1988 the applicant joined his wife in Switzerland where he obtained a residence permit (Aufenthaltsbewilligung). On 25 May 1989 the Davos District Court (Kreisgericht) convicted the applicant of attempted compulsion to an indecent act (Nötigung zu einer unzüchtigen Handlung) and sentenced him to three months' conditional imprisonment. The offence had been committed under the influence of alcohol. As a result of the conviction, the Aliens' Police issued a disciplinary admonition (Verwarnung). On 12 March 1990 the Cantonal Court (Kantonsgericht) of the Canton of Graubünden convicted the applicant of rape (Notzucht) and of having committed bodily harm (einfache Körperverletzung) and sentenced him to two and a half years' imprisonment. The offences had been committed under the influence of alcohol. The Court also revoked the suspensive effect of the previous sentence and ordered the applicant's banishment (Landesverweisung) from Switzerland for ten years. On 16 April 1991 the Government (Regierung) of the Canton of Graubünden decided in application of Article 38 of the Swiss Penal Code provisionally to release the applicant from prison. It further suspended the applicant's expulsion from Switzerland for a probationary period of three years and ordered him to submit to an alcohol withdrawal treatment. In its decision the Government referred to the applicant's excellent conduct in prison; it also considered that the case-file did not demonstrate that the applicant's presence constituted a danger to public security. The applicant then applied for a prolongation of his residence permit. This was refused by the Aliens' Police (Fremdenpolizei) of the Canton of Graubünden on 14 May 1991 and, upon appeal, by the Department of Justice, Police and Health (Justiz-, Polizei und Sanitätsdeparte- ment) of the Canton of Graubünden on 16 August 1991. The latter referred inter alia to the fact that both offences had been committed under the influence of alcohol, and that the applicant had already in Yugoslavia unsuccessfully undergone treatment against alcoholism. The applicant's further appeal was dismissed by the Government of the Canton of Graubünden on 4 February 1992. Insofar as the applicant complained of a contradiction in that the Government of the Canton of Graubünden, in its decision of 16 April 1991, had found that the applicant did not constitute a danger to public security, the Government found that those proceedings had concerned the applicant's criminal conviction, whereas in the present proceedings the Aliens' Police was considering a threat to public order and security. The applicant then filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) which the Federal Court (Bundesgericht) dismissed on 24 January 1994. The Federal Court considered that the applicant had been sentenced to altogether two and three quarter years' imprisonment, that his culpability was severe, and that he had clearly contravened public order within the meaning of Section 17 para. 2, last sentence of the Federal Act on Residence and Domicile of Aliens (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer). According to this provision the entitlement of a foreigner to a prolongation of his residence permission will expire if he breaches public order (gegen die öffentliche Ordnung verstösst). The Federal Court noted that the applicant had committed the second offence during the probation period following his first conviction, and in spite of an admonition of the Aliens' Police. The Court found that with his inclination to violence the applicant constituted a continuing danger to public order. The decision states:

"On the other hand, the applicant's wife has already spent nine years in Switzerland. In view of her advanced integration in Switzerland a return would imply much bigger difficulties. The applicant is of Serb origin; the family of his wife apparently lives in Bosnia. Apparently the relations with the family have been broken on account of her marriage with the applicant. The couple are not obliged to travel to Bosnia and furthermore do not depend on these family relations; the family situation is therefore not relevant. The decisive point is rather that the wife also stems from former Yugoslavia, and that the conditions there are not completely alien to her. She can therefore be expected to return. In this connection, the present situation of civil war is not directly pertinent: rather, it will become relevant in case the applicant's removal must be ordered and executed."

"Anderseits weilt seine Ehefrau seit über neun Jahren in der Schweiz. Für sie ist eine Rückkehr angesichts ihrer fortgeschrittenen Integration in der Schweiz mit erheblich grösseren Schwierigkeiten verbunden. Der Beschwerdeführer ist serbischer Herkunft; die Familie seiner Frau soll ... in Bosnien leben. Die Beziehungen zur Familie seien, angeblich wegen ihrer Heirat mit dem Beschwerdeführer, abgebrochen worden. Da die Ehegatten nicht nach Bosnien ausreisen müssen und ausserdem auf diese familiären Beziehungen auch nicht angewiesen sind, ist die familiäre Situation nicht ausschlaggebend. Entscheidend ist vielmehr, dass die Ehefrau ebenfalls aus dem ehemaligen Jugoslawien stammt und ihr die dortigen Verhältnisse nicht völlig fremd sind. Eine Rückkehr ist ihr daher zumutbar. Die aktuelle Bürgerkriegssituation ist in diesem Zusammenhang nicht unmittelbar massgeblich; sie ist vielmehr für die Anordnung oder den Vollzug einer allfälligen Wegweisung des Beschwerdeführers von Belang." The Aliens' Police requested the applicant to leave Switzerland before 31 March 1994. COMPLAINTS The applicant complains under Article 8 of the Convention that his expulsion from Switzerland will separate him from his wife who has the right to domicile in Switzerland. The applicant submits that upon his return he would have to serve in the Serb army and would therefore be prevented from leaving former Yugoslavia for a long period of time. The applicant points out that his good conduct in prison led to his provisional release, and that the Government of the Canton of Graubünden, in its decision of 16 April 1991, found that the applicant did not constitute a danger to public security. Thus, the reasons for expulsion could not be urgent. He also submits that he has overcome his alcohol problems by submitting to treatment against alcoholism (Antabuskur). The applicant further submits that his wife has completely distanced herself from her family in former Yugoslavia, and no ties whatsoever remain. She has integrated in Switzerland, speaks German well and cannot be expected to return. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 17 March 1994. On 23 March 1994 the President of the Commission decided not to apply Rule 36 of the Commission Rule's of Procedure. Following further correspondence with the applicant, the application was registered on 3 May 1994. THE LAW The applicant complains that the refusal to prolong his residence permit will separate him from his wife who has the right to domicile in Switzerland. He relies on Article 8 (Art. 8) of the Convention which 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 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 (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). In the present case, the Commission notes that the applicant's wife has been permitted to establish domicile in Switzerland where she lawfully resides. Thus, 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 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 prolong the applicant's residence permit in Switzerland, relied on Section 17 para. 2, last sentence, of the Federal Act on Residence and Domicile of Aliens. 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 prolong the applicant's residence permit, the Swiss authorities considered that the applicant had been convicted of criminal offences and that his continuing presence in Switzerland constituted a danger to public order. In this respect, the Commission observes in particular that the applicant was convicted of serious offences, namely of attempted compulsion to an indecent act and of rape. The second offence was committed during the probation period following his first conviction and in spite of an admonition of the Aliens' Police. The applicant was sentenced altogether to two and three quarter years' imprisonment. It is true that the applicant submits that he has meanwhile submitted to a treatment against alcoholism. However, in its decision of 16 August 1991 the Department of Justice, Police and Health of the Canton of Graubünden found that the applicant had already in Yugoslavia unsuccessfully undergone treatment against alcoholism. The Commission further notes the Federal Court's decision of 24 January 1994 according to which the applicant's wife is a citizen of former Yugoslavia. As she does not depend on any family relations, she is not obliged to travel to Bosnia. Before the Commission the applicant has furthermore not sufficiently explained in what respect the Federal Court was wrong in finding that the conditions in former Yugoslavia would not be alien to his wife. It is true that the applicant also submits that the Swiss authorities contradicted themselves. Thus, the Government of the Canton of Graubünden in its decision of 16 April 1991 originally found that the applicant did not constitute a danger to public security. The Commission notes that the Federal Court decided on the applicant's case in last resort, after having considered all circumstances. It found that the applicant's inclination to violence constituted a continuing danger to public order and outweighed any difficulties which the applicant's wife would encounter upon her return. 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 achieved an improper balance between the interests involved. The Commission therefore considers that the interference with the applicant's right to respect for family life was justified under this provision 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 Acting President the Second Chamber of the Second Chamber (K. ROGGE) (H. DANELIUS)