36335/97

 AS TO THE ADMISSIBILITY OF Application No. 36335/97 by Eyüp KARADENIZ against Switzerland The European Commission of Human Rights (Second Chamber) sitting in private on 10 September 1997, the following members being present: Mrs. G.H. THUNE, President MM. S. TRECHSEL J.-C. GEUS A. GÖZÜBÜYÜK J.-C. SOYER H. DANELIUS F. MARTINEZ M.A. NOWICKI I. CABRAL BARRETO J. MUCHA D. SVÁBY P. LORENZEN E. BIELIUNAS E.A. ALKEMA A. ARABADJIEV 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 30 May 1997 by Eyüp Karadeniz against Switzerland and registered on 5 June 1997 under file No. 36335/97; 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 Turkish citizen born in 1957, is a transport worker (Spediteur) residing in Winterthur in Switzerland. Before the Commission he is represented by Mr P. Stein, a lawyer practising in Zurich. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant entered Switzerland in 1970 where he now possesses the right to domicile (Niederlassungsbewilligung) and where he apparently lives with his mother. He was divorced from his first wife in 1981. The applicant married again in 1994, his second wife, a Turkish citizen apparently living in Yugoslavia. His daughter, born in 1977, has married and lives in Switzerland. In 1984 the applicant was sentenced to 30 days' imprisonment for dealing with stolen goods. On 28 February 1985 he was admonished by the Aliens' Police (Fremdenpolizei) of the Canton of Zurich. On 12 August 1988 the Winterthur District Court (Bezirksgericht) sentenced the applicant to four years' imprisonment for dealing with stolen goods and for breaching the Narcotics Act (Betäubungsmittelgesetz). On 25 August 1993 a Winterthur District judge sentenced the applicant to two months' imprisonment for drunken driving. In connection with both convictions the applicant was admonished by the Aliens' Police of the Canton of Zürich. On 27 September 1994 the Zurich District Court sentenced him to 12 months' imprisonment, inter alia, for having breached the Narcotics Act. On 18 August 1995 the Trogen District Office (Verhöramt) fined the applicant 400 Swiss Francs (CHF) for having breached the Narcotics Act. While serving a prison sentence, the applicant absconded on 3 September 1995, though he was apprehended on 12 September 1995. He was released on 26 February 1996. On 20 November 1996, when questioned by the police, the applicant admitted taking heroine and cocaine. Meanwhile, on 3 July 1996 the Government (Regierungsrat) of the Canton of Zurich ordered the applicant's expulsion from Switzerland for a period of ten years. The applicant filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) with the Federal Court (Bundesgericht), complaining about his expulsion. Together with his appeal the applicant submitted an undated medical report, apparently of 29 July 1996, prepared by a General Practitioner (Allgemeinpraktiker). According to the Report, the applicant's mental health was severely damaged (psychisch schwer angeschlagen). He suffered from depressions and was unable to take on any responsibility. Currently, his mother was taking care of him. His recent visit to Turkey, in particular the interest of his relatives in his person, had brought about a feeling of panic (Panikgefühl) for him. As a result, the applicant's expulsion would be a catastrophe for him (würde sich katastrophal auswirken), and there was a serious threat that he would commit suicide. The Report considered that the chances for the applicant's convalescence, presupposing medical treatment, were higher in Switzerland than in Turkey. The Federal Court dismissed his appeal on 17 February 1997. In its decision, the Federal Court noted that according to S. 10 of the Federal Act on the Domicile and Residence of Aliens (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer) a person could be expelled from Switzerland if he had been convicted for a criminal offence. The Court also recalled that the longer a person had resided in Switzerland, the stricter would be the conditions for his expulsion. The Court considered that in view of the applicant's long stay in Switzerland, it would be disproportionate to base his expulsion merely on the criminal conviction of 1994. However, reference was also made to the conviction of 1988 and the fact that the authorities had previously threatened to expel the applicant. The Court therefore considered that there was a considerable interest of police security (sicherheitspolizeiliches Interesse) in expelling the applicant. The decision continues:

"The applicant has been living in Switzerland since 1970, i.e. since his thirteenth year of age. His mother, his daughter and, with one exception, all his siblings, live in Winterthur and surroundings. The applicant's second wife apparently lives in former Yugoslavia; his relations with her would not be affected by an expulsion. The applicant has relatives in Turkey, though it is not established that he had closer relations with them. A return to Turkey would without doubt seriously affect the applicant (sehr hart treffen), as he would more or less have to start building a social network again from the beginning. It would hardly be easy for him to be separated from his mother, who today apparently takes care of him, and from his daughter, who has meanwhile married and lives in the neighbourhood. On the other hand, when balancing the interests, it must be considered that the separation from a married and adult daughter weighs less heavily than for example the separation from a minor. Furthermore the applicant's psychological problems must be considered. His General Practitioner has described him in his report of 29 July 1996 as being psychologically severely damaged. The doctor assumes that an expulsion would 'without doubt amount to a catastrophe' for his patient's health, and he advises not to disregard (the applicant's) remark that in case of an expulsion he would commit suicide. In the present case the interest of police security in expelling the applicant outweighs any severity resulting therefrom. In particular, it must be considered that the applicant again committed further offences, even after he had been admonished on a number of occasions by the Aliens' Police and even formally threatened with expulsion. This relapse weighs heavily from the point of view of the Aliens' Police and shows that there remains a serious risk of a further relapse ... Whether the relations of the applicant, who is nearly 40 years old, with his mother and his adult daughter amount to family relations protected under Article 8 of the Convention can remain open. In the concrete case, an interference with family life protected by Article 8 para. 1 of the Convention would in any event be justified." COMPLAINTS The applicant complains under Articles 3 and 8 of the Convention of his expulsion to Turkey. He submits that his psychological health is severely affected (schwer angeschlagen) and that there is a danger that he may commit suicide if he is expelled. The applicant submits that he has lived in Switzerland since his childhood. The mentality in Turkey is alien to him, he no longer has contact with the distant relatives in Turkey. His whole family, in particular his mother, his daughter and sisters, all live in Switzerland. He claims that without his mother's care he would be helpless. The criminal convictions in the past cannot justify an expulsion. THE LAW 1. The applicant complains under Articles 3 and 8 (Art. 3, 8) of the Convention of his expulsion to Turkey. Article 3 (Art. 3) of the Convention states: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Article 8 (Art. 8) of the Convention 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. Nevertheless, the expulsion of a person may in exceptional circumstances involve a violation of the Convention, for example where there is a serious and well-founded fear of treatment contrary to Article 3 (Art. 3) of the Convention in the country to which the person is to be expelled (see Eur. Court HR, Chahal v. United Kingdom judgment of 15 November 1996, Reports 1996-V, No. 22, paras. 72ff). The expulsion from a country where close members of a person's family are living may also 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 HR, Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193, p. 18, para. 36). 2. The Commission will first examine the applicant's complaints under Article 8 (Art. 8) of the Convention according to which his expulsion to Turkey would separate him from close relatives, in particular his mother, his daughter and his sisters. In examining such cases the Commission must consider whether a sufficient link exists between the relatives concerned to give rise to the protection of "family life" within the meaning of Article 8 (Art. 8) of the Convention. Generally, this involves married couples, on the one hand, and, on the other, cohabiting dependents such as parents, spouses and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case (Eur. Court HR, Boughanemi v. France judgment of 24 April 1996, Reports 1996-II, No. 8, p. 608, para. 35; No. 10375/83, Dec. 10.12.84, D.R. 40, p. 196). The Commission has examined the applicant's links with his family members in Switzerland. It notes, on the one hand, that the applicant's daughter, who is now 20 years old, has married. On the other hand, the applicant, who is 40 years old, apparently lives with his mother who is taking care of him. In the Commission's opinion, it is doubtful whether the applicant's relations with either his daughter or his mother are such as to amount to "family life" within the meaning of the Convention organs' case-law. In any event, even assuming that the applicant has sufficiently made out an interference with the exercise of his rights under Article 8 para. 1 (Art. 8-1) of the Convention, the interference is justified under Article 8 para. 2 (Art. 8-2) of the Convention. The Commission notes that the Swiss authorities, in particular the Federal Court in its decision of 17 February 1997, relied on the Federal Act on Residence and Domicile of Aliens. According to S. 10 of the Act, a person may be expelled from Switzerland if he has been convicted of a criminal offence. The interference is, therefore, "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. Moreover, the Federal Court considered that in view of the applicant's criminal convictions, there was a considerable interest of police security in expelling the applicant. The interference was therefore imposed "for the prevention of disorder (and) crime" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. Finally, the Commission has examined whether the measure was "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention, as interpreted in the Convention organs' case-law (see Eur. Court HR, Bouchelkia v. France judgment of 29 January 1997, Reports 1997-I, No. 28, para. 48). The Commission notes that the Swiss authorities, in particular the Federal Court, considered that the applicant's expulsion was necessary in view of his various criminal convictions, which in total resulted in more than five years' imprisonment and which he continued to commit even after he had been admonished. Furthermore, in its decision of 17 February 1997 the Federal Court carefully balanced the various interests involved. It considered on the one hand that in view of his age the links with his mother were not very close, and that his daughter was already married. On the other hand, it noted that the applicant had lived for a long time in Switzerland, and that integration in Turkey would not be easy. Nevertheless, in the Federal Court's opinion the interest of police security in expelling the applicant outweighed any severity resulting therefrom. The Commission furthermore notes that the applicant has not contended that he cannot speak Turkish. He has also not broken off contacts with his home country, which he has visited and where he has relatives. Taking into account the margin of appreciation which is left to Contracting States in such circumstances (see the Boughanemi v. France judgment, op. cit., p. 610, para. 41), the Commission does not find that the Swiss authorities, when deciding to expel the applicant, acted unreasonably in balancing the various interests involved. The Commission considers therefore that any interference with the applicant's right to respect for his private and family life would be 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" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. This part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 3. The Commission has next examined the applicant's complaint under Article 3 (Art. 3) of the Convention according to which an expulsion would be incompatible with his severely damaged mental health. The applicant submits in particular that he may commit suicide. The Commission notes the medical report of 29 July 1996 according to which the applicant's mental health is severely damaged. The Report nevertheless considered that the applicant's convalescence was possible though it presupposed medical treatment. While the report stated that chances for the applicant's convalescence were higher in Switzerland than in Turkey, it has not been shown, or even claimed, that the applicant could not obtain the required treatment in Turkey. The remainder of the application is, therefore, also 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. M.-T. SCHOEPFER G.H. THUNE Secretary President to the Second Chamber of the Second Chamber