In the case of Vasquez v. Switzerland,
The European Court of Human
Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Peer Lorenzen,
Dragoljub Popović,
András Sajó,
Nebojša Vučinić,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 22 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
1785/08) against the Swiss Confederation lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Peruvian national, Mr Angel Francisco Vasquez Flores
(“the applicant”), on 4 January 2008.
The applicant was represented by Mr C. Meyer, a
lawyer practising in Strasbourg. The Swiss Government (“the Government”) were
represented by their Deputy Agent, Mr A. Scheidegger, of the Federal Office of
Justice.
The applicant alleged, in particular, that the
Swiss authorities’ refusal to allow him to reside in Switzerland constituted a
breach of his right to respect for family and private life as guaranteed by
Article 8 of the Convention. He also claimed that this decision violated his
right under Article 6 § 2 of the Convention.
On 16 March 2010 the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
The applicant and the Government each submitted
observations on the merits (Rule 59 § 1 of the Rules of Court).
On 1 February 2011 the Court’s Sections were
reorganised. The application was assigned to the Second Section (Rules 25 § 1
and 52 § 1 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1965 in Puno, Peru, and
now lives in Gaillard, France.
The applicant entered Switzerland in 1992. On 21
August 1992 he married a Swiss citizen and obtained a residence permit. The
couple got divorced on 21 March 1999.
In 1995 the applicant was the subject of a
criminal investigation following an accusation against him by two young women (minors)
of indecent assault and rape, offences under Articles 189 and 190 of the Swiss
Criminal Code (see paragraph 24 below). On 1 September 1995 the public
prosecutor discontinued the criminal proceedings for lack of evidence. That
decision was upheld on appeal by the Court of Justice of the Canton of Geneva
on 24 November 1995.
On 24 September 2001 the Criminal Court of
Cassation of the Canton of Vaud (Cour de cassation penale du canton de Vaud)
found the applicant guilty of an offence against the sexual integrity of a
person incapable of resistance and exploitation of a person in a position of
need or dependency under Articles 191 and 193 of the Swiss Criminal Code (see paragraph
24 below). The applicant received a custodial sentence of three years. In
addition, the court ordered the applicant’s expulsion from Swiss territory for
the following ten years, but suspended execution of the order on condition that
his behaviour was irreproachable for the following five years, a penalty provided
for under the former Swiss Criminal Code. The applicant was ordered to pay the
victim compensation in the amount of 10,000 Swiss francs (CHF) (approximately
8,150 euros (EUR)). Subsequently, the applicant served the prison sentence and
was released on parole in December 2002.
On 28 October 2002 the Department of Justice,
Police and Public Security of the Canton of Geneva ordered the applicant’s
expulsion from Swiss territory for an unlimited duration of time. It held that,
independently of the (suspended) expulsion ordered in the criminal proceedings,
it was competent to order the applicant’s expulsion in administrative
proceedings. The applicant appealed against that decision to the Cantonal Appeals
Board of the Geneva Immigration Police (La commission cantonale de recours
de police des étrangers de Genève; hereafter “the Cantonal Appeals Board”).
On 5 April 2003 the applicant remarried. His
second wife had dual citizenship of Germany and Switzerland. On the basis of
this marriage he applied for a residence permit to the Office for Migration of
the Canton of Geneva (L’office cantonal de la population de Genève),
which refused his request on 7 December 2004. The applicant appealed also against
this decision to the Cantonal Appeals Board.
At the beginning of 2005 the applicant’s wife,
who until then had been living and working in Germany, joined her husband in
Geneva.
. The
Cantonal Appeals Board combined the applicant’s two appeals and dismissed them
on 19 May 2005.
On 9 January 2006, following an appeal lodged by
the applicant, the Federal Supreme Court quashed the judgment of the Cantonal
Appeals Board and ordered it to reassess the applicant’s case under Article 5 §
1 of Annex I of the Agreement on the Free Movement of Persons between the
European Community and its Member States, on the one hand, and the Swiss Confederation,
on the other hand, of 30 April 2002 (hereafter “the AFMP”; see paragraph 22 below).
In December 2006 a new criminal charge was
brought against the applicant for sexual acts with persons incapable of
judgment or resistance, an offence under Article 191 of the Swiss Criminal Code
(see paragraph 24 below). On 9 February 2007 the public prosecutor of the
Canton of Geneva, however, ordered the discontinuation of the criminal
proceedings. He ruled that although the applicant’s behaviour towards the woman
who had made the accusation against him had been inappropriate, it had not been
criminal. Although the woman had been inebriated, she had not been in such a
state of intoxication as to be incapable of resistance. Furthermore, the applicant
had immediately stopped touching her when she had expressed her refusal, and he
had left her home.
On 14 February 2007 the Cantonal Appeal
Commission reassessed the applicant’s appeal under the AFMP and again dismissed
it. It ruled that the refusal of the residence permit and the applicant’s
expulsion from Swiss territory had been justified on the ground of public
safety, in accordance with Article 5 § 1 of Annex I of the AFMP, and were proportionate
to the aim pursued. It held, in particular, that the fact that a criminal
charge had been brought against the applicant in 2006 proved that he posed a risk
of recidivism and was therefore still a threat to public safety. The applicant
appealed against this decision to the Federal Supreme Court.
On 25 June 2007 the Federal Supreme Court upheld
the decision of the Cantonal Appeal Commission. It ruled that the applicant’s
behaviour in 2006 had called into question whether he was fully aware of
the severity of the acts he had been sentenced for in 2001 and the effectiveness
of the psychiatric treatment that he had received until the end of 2006. It
held that the writ of nolle prosequi did not provide a basis for
concluding that the applicant was no longer a threat to public safety. By
contrast, the events in 2006 showed that the applicant still had difficulties
controlling his sexual instincts in the presence of women who were in a
situation in which they were not able to defend themselves, and that there was therefore
a risk of recidivism. The Federal Supreme Court further held that his expulsion
was proportionate under Article 8 of the Convention. It established that after
his release from prison in December 2002, the applicant had been able to stay
in Switzerland only because he had married a Swiss citizen in April 2003. It
had learned from the hearings before the cantonal authorities that his wife,
who had been informed about the applicant’s situation since the beginning of
their relationship, had hesitated to settle in Switzerland. Only two years
after their wedding, had she left her job in Germany and come to live with the
applicant. Furthermore, there was no indication that she wanted to stay in
Switzerland in the long term. With regard to the applicant’s personal life, the
Federal Supreme Court noted that having arrived in Switzerland at the age of twenty-seven,
he had always worked as a chauffeur but was neither professionally nor socially
particularly well integrated. In the light of the seriousness of the crimes
committed and the established risk of recidivism, the applicant’s interest in
remaining in Switzerland did not outweigh the State’s interest in expelling him.
On 8 February 2008 the applicant left Swiss
territory.
Upon request, the applicant informed this Court by
letters of 17 June and 8 July 2013 that he was living with his second wife in
Gaillard, France, where he had been granted a residence permit. Despite his requests,
the Swiss authorities had refused to allow him to re-enter Switzerland.
On 14 August 2013 the Government made the following
observations on the above-mentioned letters. The entry ban was still in force
and the applicant could therefore not freely return to Switzerland. However, he
retained the possibility to apply for permission to enter Switzerland as a
tourist or even to request reconsideration of the entry ban. In July 2007, one
month after the final decision of the Federal Supreme Court, the applicant -
who at that time was probably still living in Switzerland - had unsuccessfully applied
to the authorities of the Canton of Geneva for permission to return to
Switzerland. In 2008 he had further applied for a Swiss work permit. The
cantonal authorities in Geneva had however dismissed his request because of the
entry ban in force. The applicant had not submitted any further requests to the
Swiss authorities. The Government also informed the Court that on 10 January
2012 the applicant had received a new sentence in Switzerland for entering Swiss
territory without the necessary authorisation and without a valid passport, and
for riding a motorbike under the influence of alcohol without having his
driving licence with him. From those proceedings it transpired that the
applicant had already been sentenced for illegally entering and working in
Switzerland on 5 May 2009, and that he had an adult son living in Peru.
II. RELEVANT DOMESTIC AND
INTERNATIONAL LAW
. Articles
3 and 5 of Annex I of the AFMP (see paragraph 15 above) read as follows:
Article
3 - Members of the family
“1. A person who has the right of residence
and is a national of a Contracting Party is entitled to be joined by the
members of his family. An employed person must possess housing for his family
which is regarded as of normal standard for national employed persons in the region
where he is employed, but this provision may not lead to discrimination between
national employed persons and employed persons from the other Contracting Party.
2. The following shall be regarded as members
of the family, whatever their nationality:
a. his spouse and their relatives in the
descending line who are under the age of 21 or are dependent;
...”
Article
5 - Public order
“1. The rights granted under the provisions of this Agreement
may be restricted only by means of measures which are justified on grounds of
public order, public security or public health.
...”
. The Foreign
Nationals Act of 16 March 1931, as in force at the relevant time, reads as
follows:
Section
10
“1. A foreign national cannot be expelled from
Switzerland or from a Canton except for one of the following reasons:
a.
he or she has been convicted by a judicial authority for a crime or felony;
b. his or her behaviour,
in its entirety, or his acts show an unwillingness to adapt to the order
established in the country that offers him hospitality or if he is not capable
of so adapting;
...
4. The present law does not concern the
expulsion, as provided by the Constitution, of a foreign national who represents
a threat to public security and order in Switzerland or expulsion ordered by a
criminal court.”
. The Swiss
Criminal Code of 21 December 1937, as in force at the relevant time, reads as follows:
Article
189
Offences against sexual liberty and honour /Indecent assault
“1. Any person who uses threats, force or
psychological pressure on another person or makes that other person incapable
of resistance in order to compel him or her to tolerate a sexual act similar to
intercourse or any other sexual act is liable to a custodial sentence not
exceeding ten years or to a monetary penalty.
...”
Article
190 - Rape
“1. Any person who forces a person of the
female sex by threats or violence, psychological pressure or by being made
incapable of resistance to submit to sexual intercourse is liable to a
custodial sentence of from one to ten years.
...”
Article
191
Sexual acts with persons incapable of judgment or resistance
“Any person who, in the knowledge that another
person is incapable of judgment or resistance, has sexual intercourse with, or
commits an act similar to sexual intercourse or any other sexual act on that
person is liable to a custodial sentence not exceeding ten years or to a
monetary penalty.”
Article
193
Exploitation of a person in a position of need or dependency
“1. Any person who induces another to commit
or submit to a sexual act by exploiting a position of need or a dependent
relationship based on employment or another dependent relationship is liable to
a custodial sentence not exceeding three years or to a monetary penalty.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained that the refusal of the
Swiss authorities to grant him a residence permit and the decision to expel him
were in breach of Article 8 of the Convention, which reads as follows:
“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 Government contested that argument.
A. Admissibility
The Court notes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
a) The applicant
The applicant claimed that the Swiss authorities
had not complied with their obligations, inherent in Article 8 of the
Convention, to allow him to reside in Switzerland, thereby enabling him to
enjoy family and private life in that country. He submitted that his personal
interests in remaining in Switzerland outweighed the State’s interest in securing
public order and safety, and that his expulsion for an undetermined period of
time was a disproportionate measure under Article 8 of the Convention. He
alleged that the facts of his case were comparable to those in Emre v.
Switzerland (no. 42034/04, 22 May 2008) because he too had been living
in Switzerland for a long time, had established strong social and professional
ties to that country and no longer had ties with his home country, Peru. In
addition, he was enjoying family life in Switzerland since he had been residing
there with his second wife between 2005 and 2008, and several of his brothers
and sisters were living in the respondent State. Furthermore, by contrast to Emre
(cited above), he had been sentenced only once.
The applicant expressed the view that the
criminal charge brought against him in 2006 should not have been taken into account
by the Swiss authorities when assessing whether he constituted a risk to public
safety because the criminal proceedings had ended in a nolle prosequi and
he had been declared innocent. He added that the domestic authorities and the
Government had given too much weight to his conviction and the criminal charges
brought against him, while disregarding all other elements. He maintained that
his expulsion from Switzerland had not been necessary in a democratic society
under Article 8 § 2 of the Convention.
Lastly, he claimed that the Government’s
argument - that the immigration measures taken did not have a great impact on his
family and private life because he was able, owing to the German citizenship of
his wife, to resettle in a country of the European Union close to the Swiss border
(see paragraph 34 below) - was not relevant when assessing whether the interference
with his rights protected under Article 8 of the Convention was proportionate. In
this regard, the only relevant questions were the strength of his ties to
Switzerland and whether he still maintained social, professional and family
ties with his country of origin, Peru.
b) The Government
The Government reiterated that the refusal of
the residence permit and the expulsion order against the applicant were
justified measures under Article 8 of the Convention. They submitted that the circumstances
which had led to the applicant’s conviction in 2001 were so serious that the
immigration measures had been necessary in a democratic society in order to
preserve public order and safety. They also considered that the applicant had
shown neither remorse nor the necessary respect towards the victim during the
criminal proceedings.
The Government acknowledged that after his
release on parole, the applicant had made efforts to reintegrate into society
and to take control of his life. He had regularly attended interviews with the cantonal
authorities, which attested to his willingness to collaborate, he had continued
his psychiatric treatment and had paid the victim compensation as ordered in
the criminal judgment, and he had found a job as a chauffeur. However, he had
not proven that his behaviour had changed in the long term. In the Government’s
view, the new charge brought against him in 2006 weighed heavily, especially as
it related again to offences against the sexual integrity of persons incapable
of resistance and showed that, despite his psychiatric treatment, the applicant
still had difficulties in controlling his sexual behaviour towards women in
vulnerable situations. Although the public prosecutor had discontinued the
criminal investigations, those facts could be taken into account as they had
either been recognised by the applicant himself or established by evidence. In the
light of those circumstances, the Government concluded that the applicant was
still a threat to public safety in Switzerland.
The Government further submitted that after the
divorce from his first wife in 1999, the applicant had only been able to stay in
Switzerland until 2002 because of his imprisonment, and subsequently owing to
his second marriage to a Swiss citizen and the interim relief granted during
the domestic proceedings. Therefore, also given the applicant’s unsettled
residence status in Switzerland for many years, the refusal of the residence
permit and the expulsion order were proportionate.
Concerning the applicant’s family life, the Government
maintained that his wife had been informed about the applicant’s conviction and
uncertain residence status in Switzerland since the beginning of their relationship.
Therefore, the couple had always been aware that the authorities might impede their
ability to establish family life on Swiss territory. Nonetheless, in 2005 the
applicant’s wife had left her job in Germany and moved to Geneva. Furthermore, the
refusal of the applicant’s residence permit for Switzerland had little impact on
his relationship with his brothers and sisters or his social life. Owing to his
wife’s German nationality, the couple could resettle in any country of the
European Union close to the Swiss border, where they could maintain contact
with persons in Switzerland. In addition, there was nothing to prevent the
applicant from applying for a tourist visa, for example, in order to travel to
Switzerland. Lastly, the Government considered that the applicant could also easily
establish a life in his home country, Peru, where he had grown up and where his
mother was living.
In view of all the interests at stake, the
Government were of the view that the State’s interests in safeguarding public
order and safety clearly outweighed the applicant’s personal interests in
remaining in Switzerland. Therefore, the expulsion order and the refusal of the
residence permit were proportionate measures under Article 8 of the Convention
and necessary in a democratic society.
2. The Court’s assessment
a) General principles
The Court reaffirms at the outset that a State
is entitled, as a matter of international law and subject to its treaty
obligations, to control the entry of aliens into its territory and their
residence there (see, among many other authorities, Abdulaziz, Cabales and
Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94,
and Boujlifa v. France, 21 October 1997, § 42, Reports of
Judgments and Decisions 1997-VI). The Convention does not guarantee the
right of an alien to enter or to reside in a particular country and, in
pursuance of their task of maintaining public order, Contracting States have
the power to expel an alien convicted of criminal offences. However, their
decisions in this field must, in so far as they may interfere with a right protected
under paragraph 1 of Article 8, be in accordance with the law and necessary in
a democratic society, that is to say, justified by a pressing social need and,
in particular, proportionate to the legitimate aim pursued (see Dalia v.
France, 19 February 1998, § 52, Reports 1998-I; Mehemi v. France,
26 September 1997, § 34, Reports 1997-VI; Boultif v. Switzerland,
no. 54273/00, § 46, ECHR 2001-IX; and Slivenko v. Latvia [GC], no.
48321/99, § 113, ECHR 2003-X).
The Court observes in this context that not all
migrants, no matter how long they have been residing in the country from which
they are to be expelled, necessarily enjoy “family life” there within the
meaning of Article 8. However, Article 8 also protects the right to establish
and develop relationships with other human beings and the outside world (see Pretty v. the
United Kingdom, no. 2346/02, § 61, ECHR 2002-III) and can sometimes embrace
aspects of an individual’s social identity (see Mikulić v. Croatia,
no. 53176/99, § 53, ECHR 2002-I). It must therefore be accepted that the
totality of social ties between settled migrants and the community in which
they are living constitute part of the concept of “private life” within the
meaning of Article 8. An expulsion of a settled migrant can therefore
constitute an interference with his or her right to respect for private life.
It will depend on the circumstances of the particular case whether it is
appropriate for the Court to focus on the “family life” rather than the “private
life” aspect (see Üner v. the Netherlands, no. 46410/99, § 59, 5
July 2005).
In order to assess whether an expulsion order
and the refusal of a residence permit were necessary in a democratic society
and proportionate to the legitimate aim pursued under Article 8 of the
Convention, the Court has set out the relevant criteria in its case-law (see Üner,
cited above, § 56; Maslov v. Austria [GC], no. 1638/03, §§ 68-76, ECHR
2008; and Emre v. Switzerland, no. 42034/04, §§ 65-71, 22 May
2008). In Üner, the Court has summarised those criteria as follows:
- the nature and seriousness of the offence committed by the
applicant;
- the length of the applicant’s stay in the country from which
he or she is to be expelled;
- the time elapsed since the offence was committed and the
applicant’s conduct during that period;
- the nationalities of the various persons concerned;
- the applicant’s family situation, such as the length of the
marriage, and other factors expressing the effectiveness of a couple’s family
life;
- whether the spouse knew about the offence at the time when he
or she entered into a family relationship;
- whether there are children from the marriage, and if so,
their age;
- the seriousness of the difficulties which the spouse is
likely to encounter in the country to which the applicant is to be expelled;
- the best interests and well-being of the children, in
particular the seriousness of the difficulties which any children of the
applicant are likely to encounter in the country to which the applicant is to
be expelled; and
- the solidity of social, cultural and family ties with the
host country and with the country of destination.
The Court has further consistently held that the
Contracting States have a certain margin of appreciation in assessing the need
for interference, but it goes hand in hand with European supervision. The Court’s
task consists in ascertaining whether the impugned measures struck a fair
balance between the relevant interests, namely the individual’s rights
protected by the Convention on the one hand and the community’s interests on
the other (see Slivenko and Others, cited above, § 113, and Boultif cited
above). The exceptions provided for in paragraph 2 of Article 8 are to be
interpreted narrowly and the need for them in a given case must be convincingly
established (see Société Colas Est and Others v. France, no. 37971/97,
§ 47, ECHR 2002-III).
b) Application of the above principles in the
instant case
i. Interference with the rights established in
Article 8 of the onvention
. Between
1992 and 2008 - for more than fifteen years - the applicant resided in Switzerland,
where he worked and lived with his first and, for the past three years, his
second wife, both of whom are Swiss citizens. He also has brothers and sisters
who live there. The Court has therefore no reason to doubt that the applicant has
established social, professional and family ties in the respondent State. The immigration
measures taken by the domestic authorities therefore clearly interfered with
his rights under Article 8 of the Convention. This has also been acknowledged
by the Swiss Government.
ii. Justification of the interference
. The
Court has no difficulty in accepting that the interference with the applicant’s
right to respect for private and family life was based on domestic law. The
immigration measures taken by the Swiss authorities were based on the relevant provisions
of the Foreign Nationals Act as well as the AFMP (see paragraphs 22 and 23 above).
. The
Court also considers that the interference with the applicant’s right to respect
for his private and family life was in pursuit of legitimate aims provided for in
Article 8 § 2 of the Convention, that is to say, in the
interest of public safety and the prevention of disorder or crime.
. The
current case therefore hinges on the question whether the expulsion order
against the applicant and the refusal of his residence permit were necessary in
a democratic society and proportionate to the legitimate aim pursued. In order
to assess whether the respondent State has struck a fair balance between the
applicant’s interests and its own interests in safeguarding public safety, the
Court will apply the criteria established in its case-law (see paragraph 38
above).
In this regard, the Court considers that the
applicant’s conviction in 2001 for offences against the sexual integrity of
persons incapable of resistance was of a serious nature. In its judgment the
Criminal Court of Cassation held that the applicant was guilty of gross sexual
misconduct and that his behaviour towards the victim during the criminal
proceedings had been appalling. The punishment was accordingly severe.
. With
regard to the duration of the applicant’s stay in Switzerland, the Court holds
that fifteen years was certainly a long enough period to enable the applicant
to establish strong ties with Switzerland, especially because he was working there
and lived with his first and subsequently second wife of Swiss nationality.
However, the Court cannot overlook the fact that the applicant spent some of
those years in prison and that his residence status had remained unsettled since
October 2002. The Court is therefore not willing to attribute the same weight
to the applicant’s duration of stay in Switzerland as it would had he lived
there with a valid residence permit throughout that period. In the light of his
conviction for a serious crime, the applicant should not have been entirely
unprepared for the final endorsement of the expulsion order and the refusal of his
residence permit by the Federal Supreme Court in 2007.
Regarding the assessment of the applicant’s
conduct after the commission of the offence, the Court holds that all the relevant
facts at stake have to be taken into account. On the one hand, the applicant
generally made considerable efforts to improve his behaviour after his release
on parole in December 2002. He collaborated with the domestic authorities,
received psychiatric treatment and continued working. On the other hand, although
the criminal proceedings in 2006 were discontinued by order of the public prosecutor,
the facts that led to those criminal proceedings are nevertheless a matter of
concern to the Court. The charges were of a similar nature to those for which the
applicant had been convicted in 2001 and the criminal charge against him in
1995. Furthermore, the public prosecutor described the applicant’s behaviour
towards the inebriated woman as not criminal but certainly inappropriate. In
addition, information received from the Government this year further revealed
that the applicant had been sentenced twice for illegal entry into Switzerland
since his expulsion in 2008. The Court therefore concludes that although the
applicant has shown willingness to improve his behaviour, there is still a certain
risk of recidivism.
. With
regard to the nationalities of the persons involved and the applicant’s family
life, the Court notes that the applicant’s wife, who has dual citizenship of
Germany and Switzerland, had been informed about his criminal record and impending
expulsion from the respondent State since the beginning of their relationship. Moreover, until she moved
to Switzerland in 2005, she had been living and working in Germany. The Court therefore
considers that the couple took a conscious decision to settle in Switzerland
rather than in Germany, despite the risk that they might not be able to remain
there. Furthermore, after the final domestic decision in 2007, the couple, who
had no children, were able to resettle together in France, close to the Swiss
border. Owing to the German nationality of the applicant’s wife and the AFMP (see
paragraph 22 above), they never faced the risk of being separated from each
other. In that respect, the fact that the applicant’s wife had a nationality
other than that of the respondent State distinguishes this case from others
where the spouse of the person to be expelled had only the nationality of the
expelling State (see, for example, Boultif, cited above, § 53). For the same reasons, the
couple did not have to consider the difficulties the wife would encounter if
they had to establish a family life in the applicant’s home country, Peru. Their
family life has therefore not been directly affected by the expulsion order.
. Regarding
the relationship between the applicant and his brothers and sisters in
Switzerland, the Court notes that the central relationships of family life under
Article 8 are those of husband and wife, and parent and child. Under certain
circumstances the relationship between siblings also falls under the concept of
family life, depending on the existence of close personal ties (see Moustaquim
v. Belgium, 18 February 1991, § 36, Series A no. 193; Marckx
v. Belgium, judgment of 13 June 1979, § 31, series
A no. 31; and K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR
2001-VII). In the present case, however, the Court is of the view that the
applicant has not demonstrated that especially close ties with his brothers and
sisters existed. The Court therefore considers that although the applicant’s relationships
with his siblings are covered by the private life aspect of Article 8 of the
Convention, they can be maintained from a distance, particularly given that he was
able to settle close to the Swiss border in France where his brothers and
sisters could easily visit him (see, mutatis mutandis, Shala v.
Switzerland, no. 52873/09, § 54, 15
November 2012).
. The
Court points out that the applicant arrived in Switzerland as an adult aged
twenty-seven. Unlike in Emre (cited above), he spent his childhood in
his home country, Peru, where he received school education. Furthermore, his
mother still lives there and apparently also his adult son from a former
relationship. While the Court is prepared to accept that the applicant’s ties
to his country of origin might have weakened after all the years spent in
Switzerland, it is of the view that the applicant would have retained some social
and cultural, including linguistic, ties as well as family ties.
. Lastly,
in order to assess the proportionality of the impugned measures the Court must
also take into account that the expulsion order against the applicant was pronounced
by the domestic authorities for an indefinite duration. In its case-law the
Court has repeatedly held that the permanent nature of an exclusion order was a
very intrusive measure in a person’s rights under Article 8 of the Convention
and that, based on the particular facts of each case, a limited duration of
such a measure was usually more proportionate (see Emre, cited above, §
85, and the case-law referred to therein). The Court however also notes that
the Government have emphasised that the applicant could always apply for
authorisation to enter Switzerland as a tourist or request the domestic
authorities to reconsider the decision regarding the entry ban. The applicant
has not made use of those possibilities. He only applied for permission to
return to Switzerland in 2007, a month after the entry ban had entered into
force, and for a work permit in 2008-2009, which the cantonal authorities refused
on account of the expulsion order. The Court therefore observes that although
the entry ban was for an unlimited period of time, the applicant was not completely
prevented from entering Switzerland with the relevant authorisation. Furthermore,
the entry ban might eventually be lifted entirely if the applicant so requests (see,
mutatis mutandis, Kissiwa Koffi v. Switzerland, no.
38005/07, § 70, 15 November 2012). The applicant now lives close to the Swiss border and his social
ties with Switzerland are therefore not seriously disrupted by distance.
In view of the foregoing considerations, the
Court finds that the domestic authorities have not overstepped their margin of
appreciation when deciding in the applicant’s case. The Court therefore holds
that a fair balance was struck in that the refusal of the applicant’s residence
permit and his expulsion from Switzerland were proportionate to the aims
pursued and could therefore be regarded as necessary in a democratic society. There
has accordingly been no violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant further complained of a violation of
the presumption of innocence, as provided for in Article 6 § 2 of the
Convention. He claimed that the domestic authorities, when deciding on the immigration
measures against him, had considered that his behaviour after his conviction in
2001 had not been irreproachable even though the criminal charge brought
against him in 2006 had been withdrawn and he had been declared innocent. Therefore,
the refusal of the residence permit and the expulsion from Swiss territory had
breached his rights not only under Article 8 but also under Article 6 § 2
of the Convention.
The Court reiterates in this regard that
decisions regarding the entry, stay and deportation of aliens do in principle not
concern the determination of an applicant’s civil rights or obligations or of a
criminal charge against him, within the meaning of Article 6 § 1 of the
Convention (see Maaouia v. France [GC], no. 39652/98, § 40, ECHR
2000-X).
With regard to the presumption of innocence as
provided in Article 6 § 2 of the Convention, the
Court has nevertheless also repeatedly held that the general aim is to protect individuals who have been acquitted of a criminal
charge, or in respect of whom criminal proceedings have been discontinued, from
being treated by public officials and authorities as though they are in fact
guilty of the offence charged (see Allen v. the
United Kingdom [GC], no.
25424/09 [GC], § 94, 12 July 2013). In the present case, however, nothing
indicates that the domestic authorities regarded the applicant as guilty of the
offence. As established by the Government (see paragraph 32 above), the facts that
led to the charge against the applicant in 2006 were taken into account by the
domestic authorities only in so far as they had either been recognised by the
applicant himself or established by evidence. In this regard, the Court
reiterates that to rely on elements from other proceedings is as such not contrary
to Article 6 § 2 of the Convention (see Matos
Dinis, no. 61213/08 [dec.], §§ 37-39; Jakumas v. Lithuania, no. 6924/02,
§§ 56-57, 18 July 2006 et al.).
Consequently, it follows that this complaint is
manifestly ill-founded with the provisions of the Convention within the meaning
of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 of
the Convention.
FOR THESE REASONS, THE COURT,
1. Declares, unanimously, the complaint
concerning Article 8 admissible and the remainder of the application
inadmissible;
2. Holds, by six votes to one, that there has not been a violation of Article 8 of
the Convention.
Done in English, and notified in writing on 26 November
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Pinto de
Albuquerque is annexed to this judgment.
G.R.A.
S.H.N.
PARTLY DISSENTING OPINION OF JUDGE
PINTO DE ALBUQUERQUE
I respectfully dissent with regard to the finding of no violation of
Article 8 for the following reasons.
Firstly, the Criminal Court for the district of Rolle, by a judgment
of 5 July 2000, found the applicant guilty of a serious offence of a
sexual nature, sentenced him to twenty months’ imprisonment and ordered his
expulsion from Swiss territory for ten years subject to a five-year suspension
(sursis). The court did not mince its words when referring to the
applicant as an “animal on heat” (“animal en rut”), using language that
one would expect to hear in the street rather than in a reasoned act of
adjudication. But when it came to justifying the expulsion order, the sole
argument given was as follows: “The need for an expulsion measure is
self-evident. The clemency shown in such matters in the case-law requires that
[the expulsion] be suspended” (“Une mesure d’expulsion s’impose à l’evidence.
La clémence de la jurisprudence en la matière
impose le sursis”). The Court
of Cassation of the Canton of Vaud confirmed, by a judgment of 15 August 2000,
the conviction and sentence, but on an appeal on grounds of nullity (pourvoi
en nullité) by the public prosecutor, the Court of Cassation of the Federal
Supreme Court annulled, by a judgment of 14 June 2001, the impugned
judgment of the Court of Cassation of the Canton of Vaud and remitted the case
for a new judgment. By a new judgment of the Cantonal Court of Vaud of 24
September 2001, the applicant was found guilty of the same offence and
sentenced to three years’ imprisonment. The expulsion order banning him from
Swiss territory for the subsequent period of ten years was maintained, subject
to a suspension on condition that his behaviour remained irreproachable for
five years. By so finding, the first Criminal Court judgment did not provide
any plausible legal ground for the expulsion order other than that it was
“self-evident”! A single word, “clemency”, was invoked to determine the
suspension of the expulsion. No reference whatsoever was made to the factual
and legal requirements for the imposition of such a measure.
Secondly, the Department of Justice, Police and Public Security of the
Canton of Geneva ordered the applicant’s expulsion for an unlimited period of
time on 28 October 2002 and he was denied a residence permit by the Office for
Migration of the Canton of Geneva on 7 December 2004. Both decisions were
confirmed by a decision of the Cantonal Appeals Board of 19 May 2005, which was
quashed by the Federal Supreme Court’s judgment of 9 January 2006. After
reassessing the situation, the same Cantonal Appeals Board reaffirmed, by a
decision of 14 February 2007, its previous decision dismissing the applicant’s
appeal, with the argument that the applicant had in the meantime been charged
with another criminal offence of a sexual nature, thus proving the existence of
a threat to public safety. The Federal Supreme Court explicitly upheld this
understanding by a judgment of 25 June 2007. Yet the public prosecutor of
Geneva had, on 9 February 2007, decided to discontinue the criminal
proceedings for lack of evidence of any criminal conduct. In other words, the
Federal Supreme Court based a presumption of a threat to public safety on a
decision to discontinue criminal proceedings. In fact, the Federal Supreme
Court invoked not one, but two decisions discontinuing criminal proceedings
against the applicant, one referring to a complaint of 2006 and another
referring to a much older complaint dating back to 1995. In both cases, the
applicant was not even formally accused of any criminal offence, but that was
enough for the Federal Supreme Court to ground a presumption of risk to public
safety.
Thirdly, the sole sexual offence for which the applicant has ever
been convicted and sentenced was committed on 21 November 1997 and after that
he was never again convicted, either in Switzerland or in France, of any
similar criminal offence. Almost 16 years have passed since those facts and the
European Court of Human Rights (“the Court”) has not been presented with any
evidence of a threat of reoffending. The applicant had no criminal record when
he committed the above-mentioned offence.
Fourthly, the applicant entered Switzerland in 1992 and was obliged
to leave Switzerland on 8 February 2008. As the Federal Supreme Court
acknowledged, the applicant fully complied with the conditions of parole after
having served his prison sentence in December 2002. He followed psychiatric
treatment and continued working as a chauffeur.
Fifthly, in spite of two denials of permission to return to
Switzerland in 2007 and 2008, the applicant returned unlawfully, as on 5 May
2009 and 10 January 2012 he was convicted for illegal entry, among other
minor offences. On the first date, he was found to be working illegally in
Switzerland. It is clear that the applicant does maintain an interest in
returning to Switzerland and, if possible, working there.
Finally, all the applicant’s brothers and sisters, with whom he used
to have regular contact, live in different Swiss cantons (see the testimony of
the applicant’s wife of 12 April 2005, attached to the file). His wife is a
Swiss citizen and had lived in Switzerland with the applicant prior to February
2008.
In view of these facts, the expulsion order imposed on the applicant
is disproportionate. The administrative order of expulsion for an unlimited
period of time superseded a criminal expulsion order which was limited in time
and had been suspended. In practical terms, the administrative authorities
“punished” the applicant with a penalty that the criminal courts saw no need to
apply. Moreover, it is to be stressed that the Federal Supreme Court inferred a
threat to public safety from legally irrelevant facts. The discontinuance of
the criminal proceedings initiated in 1995 and 2006 was not based on a
procedural ground, but on the substantive ground of a lack of criminal
characterisation of the facts imputed to the applicant. A threat to public
safety was ascertained on the basis of two decisions dismissing criminal
charges for a lack of criminal characterisation of the facts. The arbitrariness
of this presumption of risk or threat to public safety is patent.
With the benefit of hindsight, the arbitrariness of the presumption
becomes even clearer. The best evidence of a lack of any threat to public
safety is the fact that the applicant has not been convicted of any similar
criminal offences for the last 16 years. But even without the benefit of
hindsight, the plain fact that the only criminal offence for which the
applicant had been convicted occurred in 1997 should have been enough for the
Federal Supreme Court to find ten years later, in 2007, that there was no
“current threat” (“menace actuelle”) to public safety. On the contrary,
the Federal Supreme Court attached extremely severe legal consequences, namely
the applicant’s expulsion, and not temporarily but for an unlimited period of
time, to facts that had been considered legally irrelevant by the competent
public prosecutors.
Furthermore, the “unlimited” nature of the administrative expulsion
order aggravates the misapplication of national law. The Court has held in
clear terms that unlimited expulsion orders, such as that in the present case,
breach Article 8 of the European Convention on Human Rights (see Emre
v. Switzerland, no. 42034/04, § 85, 22 May 2008). The same principle
should have been applied in this case. If not for any other reason, this alone
would suffice to find a breach of Article 8 in the applicant’s case.
