25036/94

 AS TO THE ADMISSIBILITY OF Application No. 25036/94 by Z. A. against Switzerland The European Commission of Human Rights (Second Chamber) sitting in private on 18 October 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 11 July 1994 by Z. A. against Switzerland and registered on 31 August 1994 under file No. 25036/94; 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 1965, is a Slovenian citizen. When filing his application he resided in Berne in Switzerland. Before the Commission he is represented by Ms. Suzanne Lehmann, a lawyer practising in Basel. A. Particular circumstances of the case I. The applicant resided in Switzerland for three months in 1986 and 1987. On 25 February 1988 he married a Swiss citizen as a result of which he obtained a residence permit. On 26 February 1988 a penal order was served on the applicant sentencing him to a fine of 300 SFr for having driven a car without a driving licence and for breach of domicile (Hausfriedensbruch). After quarrels with his wife and a period of detention on remand, the applicant returned to Yugoslavia in 1990. On 21 September 1990 the Federal Office for Aliens' Affairs (Bundesamt für Ausländerfragen) refused the applicant entry into Switzerland. However, it annulled this order on 22 October 1990 when the applicant's wife declared her wish to resume marital life. The applicant then returned to Switzerland. II. On 18 April 1991 the Court of Appeal of the Canton of Berne convicted the applicant inter alia of repeated and qualified theft displaying a particular danger (fortgesetzter, qualifizierter Diebstahl unter Offenbarung besonderer Gefährlichkeit), of repeated and continuing damage to property (wiederholte und fortgesetzte Sachbeschädigung) and of receiving stolen goods (Hehlerei). He was sentenced to six and a half months' imprisonment suspended on probation. On 11 June 1991 the President of a Berne District Court (Gerichtspräsident) sentenced the applicant to 15 days' imprisonment suspended on probation and to a fine of 800 SFr for drunken driving (Fahren in angetrunkenem Zustand). On 27 October 1992 the Berne Criminal District Court (Strafamts- gericht) convicted the applicant inter alia of contraventions of the Narcotics Act (Betäubungsmittelgesetz) and sentenced him to 42 months' imprisonment and expulsion from Switzerland for six years, the latter suspended on probation. On 2 February 1994 the President of the Erlach District Court sentenced the applicant to seven days' imprisonment for a contravention of the Narcotics Act while serving his prison sentence. On 11 March 1994 the applicant was released from prison on probation after having served two thirds of his prison sentence. III. Meanwhile, on 27 November 1992 the Aliens' Police (Fremdenpoli- zei) of the Canton of Berne refused to prolong his residence permit and ordered his expulsion after his release from imprisonment. An appeal against this decision was dismissed on 25 January 1994 by the Police Directorate (Polizeidirektion) of the Canton of Berne which relied on Articles 7 and 10 para. 1 of the Federal Act on the Residence and Domicile of Aliens (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer, see below, Relevant domestic law). The applicant's administrative law appeal (Verwaltungsgerichts- beschwerde) was dismissed by the Administrative Court (Verwaltungs- gericht) of the Canton of Berne on 30 March 1994. On 28 April 1994 the applicant filed a further administrative law appeal which the Federal Court (Bundesgericht) dismissed on 2 June 1994. In its decision the Court found that Article 7 para. 1 of the Federal Act on the Residence and Domicile of Aliens did not grant foreign spouses of Swiss citizens a right to a residence permit in Switzerland if there was a ground for expulsion within the meaning of Article 10 of the Federal Act on the Residence and Domicile of Aliens. The decision noted that the applicant had been convicted of serious offences and then continued:

"In respect of such serious contraventions, from which a ruthless behaviour transpires, the Aliens' Police has a weighty interest, for the protection of Swiss order and security and for the security of others, in keeping the applicant away from Switzerland. This interest must be balanced against the applicant's personal and family interests in staying in Switzerland. When balancing these conflicting interests it must first be considered that the applicant is married to a Swiss citizen. Nevertheless, someone who, like the applicant, has seriously contravened the domestic legal order and thereby has frequently had to be punished, once even with several years' imprisonment, has in principle to accept that he must leave Switzerland and cannot lead his marital life here. This also applies, even in regard to Article 8 para. 2 of the Convention, when the spouse cannot be expected to follow the husband abroad ... The balancing of interests would only lead to another conclusion if there were special circumstances, for instance if the foreigner, after many years of orderly residence, had well established roots in Switzerland and had committed an isolated crime or offence. However, it would have to be a real exception. Such special circumstances do not transpire here ..."

"Bei derart schweren Verfehlungen, die auf eine rücksichtslose Haltung schliessen lassen, besteht ein gewichtiges fremdenpolizeiliches Interesse daran, den Beschwerdeführer zum Schutze der schweizerischen Ordnung und Sicherheit sowie zum Schutze anderer von der Schweiz fernzuhalten. Diesem Interesse sind die persönlichen und familiären Interessen des Beschwerdeführers an einem Ver- bleib in der Schweiz gegenüberzustellen. Bei der Interessenabwägung ist vorab zu berücksichti- gen, dass der Beschwerdeführer mit einer Schweizerin ver- heiratet ist. Wer jedoch, wie er, in schwerer Weise gegen die hiesige Rechtsordnung verstossen hat und deshalb mehr- mals bestraft werden musste, einmal zu einer mehrjährigen Freiheitsstrafe, hat grundsätzlich in Kauf zu nehmen, dass er die Schweiz verlassen muss und die Ehe nicht mehr hier leben kann. Dies gilt, auch unter dem Gesichtspunkt von Art. 8 Ziff. 2 EMRK, selbst dann, wenn der Ehefrau nicht zugemutet werden kann, ihm ins Ausland nachzuziehen ... Zu einem anderen Ergebnis kann die Interessenabwägung höch- stens dann führen, wenn besondere Umstände vorliegen, etwa wenn der Ausländer nach langjähriger ordnungsgemässer Anwe- senheit in der Schweiz fest verwurzelt ist und sich ein vereinzeltes Verbrechen oder Vergehen hat zuschulden kommen lassen. Es muss aber ein eigentlicher Ausnahmefall vorlie- gen. Solche besonderen Umstände sind hier nicht erkennbar ..." The Court then recalled that the applicant had only briefly resided in Switzerland during short periods in 1986 an 1987 whereupon he entered the country in 1988. However, shortly thereafter he commenced committing offences and spent a longer time in prison, and in 1990 he spent some months in Yugoslavia. He could not at all therefore be considered as having been integrated in Switzerland. Finally, insofar as the applicant referred to his problems with alcohol the Federal Court found that it could not consider this point as it had not been raised before the previous instance. IV. The Aliens' Police of the Canton of Berne has ordered the applicant to leave Switzerland before 15 July 1994. It does not appear that the applicant has in the meantime left Switzerland. B. Relevant domestic law Article 7 para. 1 of the Federal Act on the Residence and Domicile of Aliens states:

"The foreign spouse of a Swiss citizen has a right to be granted or have prolonged, a residence permit ... This right ceases to exist if there is a ground for expulsion."

"Der ausländische Ehegatte eines Schweizer Bürgers hat Anspruch auf Erteilung und Verlängerung der Aufenthalts- bewilligung ... Der Anspruch erlischt, wenn ein Auswei- sungsgrund vorliegt." Article 10 para. 1 of this Act states:

"A foreigner may be expelled from Switzerland ... only if:

he has been punished by a court for a criminal offence;"

"Der Ausländer kann aus der Schweiz ... nur ausgewiesen werden:

wenn er wegen eines Verbrechens oder Vergehens gerichtlich bestraft wurde;" COMPLAINTS The applicant complains under Article 8 of the Convention that his residence permit in Switzerland has not been prolonged and that he will therefore be separated from his wife. He submits that she cannot be expected to follow him abroad as she is a Swiss citizen who does not speak his mother tongue. Thus, his personal interest in staying in Switzerland and in leading his marital life outweighs the interests of public order and security. The applicant also submits that he is changing his ways in that he is coming to terms with his alcohol problem. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 11 July 1994. On 19 July 1994 the President of the Commission decided not to apply Rule 36 of the Rules of Procedure. Following further correspondence, the application was registered on 31 August 1994. 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 ... 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 is married to a Swiss citizen living in Switzerland who cannot reasonably be expected to follow her husband to Slovenia. Thus, the refusal to grant him a residence permit interferes with his right to respect for his family life within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention. The Commission has therefore to examine whether such interference is justified under Article 8 para. 2 (Art. 8-2) of the Convention, i.e. whether it was in accordance with the law and necessary in a democratic society for one of the aims mentioned in that provision. The Commission observes that the Swiss authorities, when refusing to prolong the applicant's residence permit, relied on Articles 7 and 10 (Art. 7, 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 convictions for criminal offences 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 prolong the applicant's residence permit, the Swiss authorities considered that the applicant had been convicted several times of serious offences. The Commission notes in particular that he was convicted of contraventions of the Narcotics Act and sentenced altogether to four years' imprisonment. Furthermore, in its decision of 2 June 1994 the Federal Court carefully balanced the various interests. It considered, on the one hand, that the applicant was married to a Swiss citizen who could not be expected to live abroad. On the other hand, it considered that the applicant had committed serious criminal offences, that he constituted a danger to public order and that it could not be said that he had become integrated in Switzerland. The Federal Court also noted the applicant's statement that he was coming to terms with his alcohol problem, but observed that this point could not be considered as it had not previously been raised before the Administrative Court. 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, which refused to prolong his residence permit, acted unreasonably when balancing the various interests involved. 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 "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 Acting President of the Second Chamber Second Chamber (K. ROGGE) (H. DANELIUS)