40080/98

 AS TO THE ADMISSIBILITY OF Application No. 40080/98 by Ylber REDZEPI against Switzerland The European Commission of Human Rights sitting in private on 12 March 1998, the following members being present: MM J.-C. GEUS, Acting President S. TRECHSEL E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H. DANELIUS Mrs G.H. THUNE MM F. MARTINEZ C.L. ROZAKIS L. LOUCAIDES M.A. NOWICKI I. CABRAL BARRETO B. CONFORTI N. BRATZA I. BÉKÉS J. MUCHA D. SVÁBY G. RESS A. PERENIC C. BÎRSAN K. HERNDL E. BIELIUNAS E.A. ALKEMA M. VILA AMIGÓ Mrs M. HION MM R. NICOLINI A. ARABADJIEV Mr M. de SALVIA, 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 23 December 1997 by Ylber Redzepi against Switzerland and registered on 3 March 1998 under file No. 40080/98; 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, of Kosovo origin, is a citizen of Yugoslavia born in 1973. According to his submissions, he and his family reside in Dietikon in Switzerland. Before the Commission he is represented by Mr R. Ilg, a lawyer practising in Zürich. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant entered Switzerland together with his parents on 8 May 1989, and has meanwhile obtained the authorisation to establish domicile (Niederlassungsbewilligung). On 3 July 1992 the applicant married V. M., a Yugoslav citizen of Kosovo origin, in Yugoslavia. His wife entered Switzerland on 23 August 1992. Their daughter G. was born on 18 June 1993. On 17 August 1994 the applicant was remanded in custody, and on 9 November 1995 the Zürich District Court (Bezirksgericht) sentenced him to three years' imprisonment for having contravened the Narcotics Act (Betäubungsmittelgesetz). On 29 January 1997 the Government (Regierungsrat) of the Canton of Zürich ordered the applicant's expulsion from Switzerland for a period of ten years. The applicant filed an administrative law appeal (Verwaltungs- gerichtsbeschwerde) which the Federal Court (Bundesgericht) dismissed on 7 July 1997. In its decision, the Court noted at the outset that the contested measure was based on S. 10 para. 1 (a) of the Aliens' Residence and Domicile Act (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer), according to which a foreigner may be expelled if he has been convicted by a court. The Court further considered in the light of the sentence imposed on the applicant that his culpability was severe (das strafrechtliche Verschulden wiegt schwer) and that the Aliens' Police (Fremdenpolizei) had a considerable interest in expelling him. The Court also noted that the applicant had only lived in Switzerland for eight years, of which two years had been spent in detention. He continued to have relations with his home country. The decision continued:

"The disadvantages are somewhat more serious for his wife and their common child, who are not responsible for the faults committed by the applicant. However, both the wife's mother and her siblings live in Kosovo. She herself has only lived five years in Switzerland. She regularly spent her holidays in her home country. The child is only four years old and does not therefore have any difficulties to adapt to the new circumstances of life. The family can therefore be expected to follow the applicant upon his return to Kosovo. As a result, the possible disadvantages for the family ... do not seriously militate against the expulsion. As the family members, who are entitled to reside in Switzerland, can be expected to travel with the expelled foreigner, the right to respect for family life within the meaning of Article 8 of the Convention has a priori not been breached." According to a statement of the Zürich Aliens' Police (Fremdenpolizei) of 1 October 1997, there was no need to order the applicant's expulsion as he was then serving a prison sentence in Yugoslavia. COMPLAINTS The applicant complains under Article 8 of the Convention of his expulsion from Switzerland, resulting in the separation from his wife and his daughter. The latter was born in Switzerland and only knows the home country from holidays. The applicant's wife cannot be expected to return to the Kosovo region which is insecure and where there is unemployment. There is furthermore no public interest in the expulsion as the Zürich District Court only imposed a prison sentence on the applicant and did not order his expulsion. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 23 December 1997. On 9 January 1998 the Acting President decided not to apply Rule 36 of the Commission's Rules of Procedure. The application was registered on 3 March 1998. THE LAW The applicant complains of his expulsion to Yugoslavia, alleging that neither his wife nor his daughter can be expected to follow him. He relies on Article 8 (Art. 8) of the Convention which states, insofar as relevant: "1. Everyone has the right to respect for his private and 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 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 HR, Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193, p. 18, para. 36). In the present case, the Commission finds that the applicant's expulsion would interfere with his right to respect for his private and 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 notes that the Swiss authorities, in particular the Federal Court in its decision of 7 July 1997, relied on S. 10 para. 1 (a) of the Federal Act on Residence and Domicile of Aliens. According to this provision, a foreigner may be expelled if he has been punished by a court. 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 he had been convicted of contravening the Narcotics Act. The measure was therefore imposed "for the prevention of ... crime" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. Finally, the Commission has examined whether the measure is "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). In the present case, the Commission considers, on the one hand, that the applicant has been convicted for contravening the Narcotics Act. In its decision of 7 July 1997 the Federal Court found that the applicant's culpability was severe. On the other hand, the Commission notes that the applicant's wife, who is a Yugoslav citizen of Kosovo origin, has only lived in Switzerland for five years and remains familiar with the circumstances in her home country where her mother and her siblings live. The applicant's daughter, born in 1993, is still of an adaptable age. Thus, both the applicant's wife and his daughter can be expected to follow the applicant upon his return to Yugoslavia. Taking into account the margin of appreciation which is left to Contracting States in such circumstances (see Eur. Court HR, Boughanemi

v. France judgment of 24 April 1996, Reports 1996-II, No. 8, p. 610, para. 41), the Commission considers that the interference with the applicant's right to respect for his private and family life is justified under Article 8 para. 2 (Art. 8-2) of the Convention in that it can reasonably be considered "necessary in a democratic society ... for the prevention of ... 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, unanimously, DECLARES THE APPLICATION INADMISSIBLE. M. de SALVIA J.-C. GEUS Secretary Acting President to the Commission of the Commission