Salija Bljerim gegen Schweiz

Urteil no. 55470/10, 10 janvier 2017

 

THIRD SECTION

 

CASE OF SALIJA v. SWITZERLAND

 

(Application no. 55470/10)

 

JUDGMENT

 

STRASBOURG

 

10 January 2017

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

 

In the case of Salija v. Switzerland,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

    Luis López Guerra, President,

    Helena Jäderblom,

    Helen Keller,

    Branko Lubarda,

    Pere Pastor Vilanova,

    Alena Poláčková,

    Georgios A. Serghides, judges,

and Stephen Phillips, Section Registrar,

Having deliberated in private on 6 December 2016,

Delivers the following judgment, which was adopted on that date:

 

1.  The case originated in an application (no. 55470/10) 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 national of "the former Yugoslav Republic of Macedonia", Mr Bljerim Salija ("the applicant"), on 20 September 2010.

2.  The applicant, who had been granted legal aid, was represented by Ms B. Thambiah, a lawyer practising in Zurich. The Swiss Government ("the Government") were represented by their Agent, Mr F. Schürmann, of the Federal Office of Justice.

3.  The applicant alleged that the revocation of his residence permit and the order of his expulsion to "the former Yugoslav Republic of Macedonia" violated his right to respect for family life, as provided in Article 8 of the Convention, with his wife and children.

4.  On 26 January 2011 the application was communicated to the Government.

5.  The Government of "the former Yugoslav Republic of Macedonia", having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right.

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicant was born in 1980 in Tetovo and lives in Golema Rečica in the municipality of Tetovo in "the former Yugoslav Republic of Macedonia". He arrived in Switzerland in 1989 via family reunification and was granted a permanent residence permit.

7.  On 1 July 1999 the applicant married a national of "the former Yugoslav Republic of Macedonia", born in 1978, who arrived in Switzerland in 1990 and who also held a permanent residence permit. The couple has two children, born in 2001 and 2005, who are likewise nationals of "the former Yugoslav Republic of Macedonia".

8.  After leaving school, the applicant did not undergo professional training, but worked in a variety of jobs, namely as a postman, mailman, plasterer and construction worker, with brief periods of unemployment.

A.  The applicant's criminal convictions

9.  On 13 March 2003 the Zurich District Court convicted the applicant of embezzlement for having sold a rental car to a third person in September 2000 and gave him a suspended sentence of three months' imprisonment.

10.  On 16 December 2004 the Supreme Court of the Canton of Zurich convicted the applicant of homicide with indirect intent (Eventualvorsatz) and serious violations of the rules of road traffic. On 4 October 2000, while he was engaged in a car race on a public road with an acquaintance, the applicant, driving at a speed of at least 170 kilometres per hour, lost control of his car and crashed into a lamppost, which caused the death of his passenger. That court took the view that the applicant, by agreeing to engage in the race, had deliberately taken the risk of killing him. It found that the applicant had acted with a high degree of recklessness and sentenced him to five years and three months' imprisonment.

11.  The applicant's appeals against this conviction were dismissed by the Cantonal Court of Cassation on 10 December 2005 and by the Federal Supreme Court on 28 March 2006.

12.  On 25 April 2006 the applicant started serving his sentence.

13.  On 30 September 2007 the Hinwil District Office (Statthalteramt) sentenced the applicant to a fine of 120 Swiss Francs (CHF) for the purchase and consumption of marihuana.

14.  On 28 October 2009 the applicant was released on parole after having served two thirds of his sentence.

B.  The expulsion proceedings

15.  On 27 July 2009, after having heard the applicant, the Migration Office of the Canton of Zurich revoked the applicant's permanent residence permit. It found that the conditions for revocation pursuant to, inter alia, Article 63 § 1 lit. a in conjunction with Article 62 lit. b of the Federal Act on Foreign Nationals (Ausländergesetz, AuG, see relevant domestic law and practice paragraph 27 below) were met. After considering the circumstances of the case, it concluded that the public interest in the applicant's removal outweighed his interest in enjoying his family life with his wife and children in Switzerland. It ordered his expulsion pursuant to Article 66 § 1 of the Federal Act on Foreign Nationals.

16.  On 30 September 2009 the government (Regierungsrat) of the Canton of Zurich dismissed the applicant's appeal lodged on 27 August 2009.

17.  On 10 February 2010 the Administrative Court of the Canton of Zurich dismissed the applicant's appeal lodged on 20 October 2009. It considered that the applicant had committed a serious criminal offence, that he was not well integrated in Switzerland despite the length of his stay, that expert prognosis regarding the likelihood that he would reoffend was positive but did not rule out any such risk, that he spoke Albanian and was familiar with the culture in "the former Yugoslav Republic of Macedonia", where he spent parts of his childhood and which he had visited since. It concluded that the decision to revoke his permanent residence permit was proportionate. Moreover, the court noted that the applicant's wife was a national of "the former Yugoslav Republic of Macedonia" as well, knew Albanian and the country's culture, and was not well integrated in Switzerland either. Observing that the couple's children were five and nine years old and thus of an adaptable age, it concluded that the applicant's wife and children could reasonably be expected to relocate to "the former Yugoslav Republic of Macedonia" with him.

18.  On 9 March 2010 the applicant appealed that decision, arguing that the decision to revoke his permanent residence permit was disproportionate.

19.  On 27 July 2010 the Federal Supreme Court dismissed the appeal. It considered that the main criminal offence, of which the applicant was convicted, intentional homicide, was a particularly serious one. While it acknowledged that he had lived in Switzerland for over twenty years, which had thus become the centre of his life, it found that he was neither professionally nor socially integrated. It considered that he had no stable employment, but considerable debts. Both he and his wife and children had benefitted significantly from social welfare. Moreover, the court considered that the applicant could reasonably (re-)integrate in "the former Yugoslav Republic of Macedonia", considering that he spoke Albanian, was born there and had spent a part of his childhood there and had visited the country since. It observed that the same was true for his wife, who likewise originated from "the former Yugoslav Republic of Macedonia", where she spent the first twelve years of her life and still had relatives. She knew Albanian and visited the country annually on holiday. At the same time, she was not well integrated in Switzerland as she did not undergo any professional training after leaving school, had received social welfare as from 2005 and only started to work in 2010. As far as their children were concerned, the court considered that they attended primary school and kindergarten, respectively, and were still of an adaptable age. The Federal Supreme Court concluded that the public interest in the applicant's removal outweighed the applicant's interest in remaining in Switzerland and enjoying respect for his family life there, also noting that his wife and children had a choice between either following him to "the former Yugoslav Republic of Macedonia" or remaining in Switzerland and maintaining contact through short but regular visits.

C.  Subsequent developments

20.  On 16 October 2010 the applicant left Switzerland in compliance with the expulsion order.

21.  On 10 December 2010 the Federal Office for Migration issued an entry ban against the applicant for a period of nine years.

22.  In late 2011 the applicant's wife and children relocated to "the former Yugoslav Republic of Macedonia" to live with him.

23.  On 14 May 2013 the Federal Administrative Court, on the applicant's appeal, reduced the duration of the re-entry ban to seven years due to proportionality considerations. It found that the conditions in Article 67 §§ 2 lit. a and 3 of the Federal Act on Foreign Nationals for the issuance of an entry ban for a period of more than five years were met (see relevant domestic law and practice paragraph 26). It considered that the offence committed by the applicant was particularly serious and that he continued to be a serious threat to public order, notwithstanding his mostly good behaviour since the commission of the offence and positive personality development. It noted that the applicant could ask for a temporary suspension of the entry ban for humanitarian or other important reasons (Article 67 § 5 of the Federal Act on Foreign Nationals) and that the applicant's wife, who originated from "the former Yugoslav Republic of Macedonia" herself, could visit him there together with their children and also maintain contact by various means of communication.

24.  In August 2015, i.e. after almost four years, the applicant's wife and children returned to Switzerland to avoid the expiry of their permanent residence permit pursuant to Article 61 § 2 of the Federal Act on Foreign Nationals (see relevant domestic law and practice paragraph 27) and because their socioeconomic living conditions in "the former Yugoslav Republic of Macedonia" were difficult. They live in Zurich.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Expulsion

25.   Prior to legislative changes which entered into force on 1 January 2011, and at the time material for the present application, Article 66 § 1 of the Federal Act on Foreign Nationals of 16 December 2005 provided that the competent authorities ordered the removal of a foreign national if his or her residence permit had been revoked.

B.  Entry ban

26.  Article 67 of the Federal Act on Foreign Nationals of 16 December 2005, which governed entry bans imposed on foreign nationals whose expulsion had been ordered, provided, in so far as relevant:

C.  Expiry and revocation of permanent residence permits

27.  The expiry and revocation of permanent residence is governed by Articles 61 to 63 of the Federal Act on Foreign Nationals, which provided, in so far as relevant:

 

I.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

28.  The applicant complained that the revocation of his permanent residence permit and his expulsion violated his right to respect for family life with his wife and children as provided in Article 8 of the Convention, which reads as follows:

29.  The Government contested that argument.

A.  Admissibility

30.  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

31.  The applicant argued that the decision to revoke his permanent residence permit and to order his expulsion constituted a disproportionate interference with his right to respect for family life. He submitted that the criminal courts were of the opinion that the homicide he committed and his guilt were not serious as they sentenced him to five years and three months' imprisonment while the maximum penalty possible was twenty years' imprisonment. Moreover, he was twenty years old at the time he committed that offence on which the expulsion order was mainly based. The circumstances of the offence, a car race, were typical of an offence committed by adolescents. He claimed that he had matured since, also due to a therapy he underwent and relied on expert reports stating that there was a low risk that he would reoffend. The applicant emphasised that he had not offended in the years between the commission of the offence in 2000 and the commencement of his prison sentence in 2006 and that he served his sentence in a semi-custodial regime (offener Vollzug). All of these factors bore testimony to the fact that he did not constitute a threat to public safety. He also argued that the length of time between the commission of the offences in 2000 and the first service of the expulsion order in 2009 had to be taken into account.

32.  The applicant further submitted that he had arrived in Switzerland as a child and lived there for more than twenty years. He last visited "the former Yugoslav Republic of Macedonia" in 2004 and had no close family members there. Both his parents and siblings and those of his wife were all in Switzerland. The couple's children were born and raised in Switzerland, relocating to "the former Yugoslav Republic of Macedonia" was not in their best interests. He submitted that he was well integrated in Switzerland. He knew the German language and had, with a few exceptions, always had employment. Neither he nor his family had to rely on social welfare prior to his imprisonment.

(b)  The Government

33.  The Government acknowledged that the applicant was enjoying family life with his wife and children in Switzerland. Arguing that the decision to revoke his permanent residence permit and order his expulsion constituted a justified interference with his family life, they submitted that the applicant was convicted of criminal offences several times, including in 2007 while serving his prison sentence. They emphasised that the homicide committed by the applicant was characterised by a high degree of recklessness, as he engaged in a car race and drove his car at a speed of at least 170 kilometres per hour, posing a threat to public safety. They argued that the domestic courts had thoroughly assessed expert reports on the risk of the applicant's reoffending and submitted that these reports did not entirely exclude the possibility that he would engage in a car race again and commit similar offences, despite his maturation process.

34.  Arguing that none of the family members had particularly strong ties to Switzerland, the Government submitted that neither the applicant nor his wife were well integrated, despite the considerable length of their stay in the country. The applicant had no stable employment, relied on social welfare, had considerable debts and was not actively participating in the community. His wife did not undergo any professional training after leaving school, received social welfare from 2005 and only started to work in 2010.

35.  The Government further submitted that the applicant and his family could reasonably (re-)integrate in "the former Yugoslav Republic of Macedonia". Both the applicant and his wife were born there and lived there until the age of nine and twelve, respectively. In respect to the applicant's wife, they submitted that Albanian was her mother tongue, that she had relatives there and that she visited the country annually on holiday. With regard to the children, they submitted that they were of an adaptable age and had visited the country from which both their parents originated and where they had relatives from their mother's side on an annual basis for holidays with their mother. They could, therefore, be assumed to be familiar, at least to a certain extent, with the culture and life in "the former Yugoslav Republic of Macedonia" and the Albanian language. In relation to socioeconomic living conditions, the Government submitted that the family had benefitted from financial support from the applicant's family, which could be continued after the family relocated to "the former Yugoslav Republic of Macedonia". What was more, the applicant's wife and children were free to remain in Switzerland due to their permanent residence permits and to maintain contact with the applicant through visits and means of telecommunication.

2.  The Court's assessment

(a)  Interference with a right protected by Article 8

36.  It is not contested that the applicant had a family life with his wife and children in Switzerland and that the revocation of his permanent residence permit and his expulsion to "the former Yugoslav Republic of Macedonia" interfered with his right to family life.

(b)  Whether the interference was justified

37.  This interference will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 8. It is therefore necessary to determine whether it was "in accordance with the law", justified by one or more of the legitimate aims set out in that paragraph, and "necessary in a democratic society".

(i)  "In accordance with the law"

38.  It is not in dispute that the decision to revoke the applicant's permanent residence permit and to order his expulsion from Switzerland was based on the relevant provisions of the Federal Act on Foreign Nationals (see relevant domestic law and practice paragraphs 25 and 27 above).

(ii)  Legitimate aim

39.  Nor is it a matter of dispute that the interference at issue pursued aims that were fully compatible with the Convention, namely the interest of public safety and the prevention of disorder or crime.

(iii)  Necessary in a democratic society

40.  It thus remains to be ascertained whether the revocation of the residence permit and expulsion were "necessary in a democratic society", that is to say, if these measures were justified by a pressing social need and proportionate to the legitimate aims pursued.

(α)  General principles

41.  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 pursuit 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).

42.  In the case of Üner v. the Netherlands [GC], no. 46410/99, §§ 57-58, ECHR 2006-XII, the Court has summarised the relevant criteria to be applied in determining whether interference, in the form of expulsion, is necessary in a democratic society:

- 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 of 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.

43.  Lastly, the Court has also 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 Boultif, cited above, § 47, and Slivenko, cited above, § 113).

(β)  Application of these principles to the present case

44.  The Court observes that the applicant was, in 2003, convicted for embezzlement, committed in September 2000, and given a suspended sentence of three months' imprisonment. More importantly, he was convicted, in 2004, for homicide with indirect intent and serious violations of the rules of road traffic, committed while he was engaged in a car race with an acquaintance. The Court considers that the offence was characterised by a high degree of recklessness and that expert reports could not entirely exclude the possibility that the applicant would engage in a car race again, despite his maturation process. The Court takes into account that the prison sentence of five years and three months bears testimony to the severity of the offence. It is not convinced by the applicant's submission that the domestic courts were of the opinion that the offence and his guilt were not severe by sentencing him to five years and three months' imprisonment while the maximum penalty possible for homicide was twenty years' imprisonment, noting that the range of penalties for homicide also applied to homicide committed with direct intent.

45.  As regards the length of the applicant's stay in Switzerland, the Court observes that he arrived in Switzerland in 1989 at the age of nine and lived in Switzerland for more than twenty years. His stay in Switzerland was, thus, of a considerable length of time.

46.  With regard to the time elapsed since the offence was committed and the applicant's conduct during that period, the Court notes that he committed both the embezzlement and the homicide in 2000, even though he was only convicted for those offences in 2003 and 2004, respectively. Noting that the applicant commenced the service of his prison sentence only in 2006, six years after the commission of the offence and that he was released on parole in October 2009 after having served two thirds of his sentence, the Court observes that he has, apart from a fine in the amount of 120 CHF for the purchase and consumption of marihuana in 2007, not reoffended after his criminal conviction.

47.  The Court notes that the expulsion order was served in July 2009, shortly before the applicant's release on parole. It became final in July 2010, following the exhaustion of remedies against it. Observing that roughly ten years passed between the commission of the offence and the conclusion of the court proceedings concerning the applicant's expulsion, the Court considers that this considerable length of time cannot be imputed to the respondent State, for the applicant commenced serving his prison sentence only in 2006, following the exhaustion of remedies against his criminal conviction, and his expulsion was not possible before he had served at least two thirds of his sentence, in 2009. Therefore, the Court finds that the proceedings were conducted with reasonable expedition.

48.  As regards the applicant's family situation, he has been married to his wife since 1999 and it has, explicitly, not been contested by the respondent Government that real and effective family existed between the applicant, his wife and their two children. It has to be noted that the applicant's wife could not know about the offences at issue at the time when she entered into a family relationship with the applicant, as the couple married in 1999 and thus prior to the commission of the offences in 2000. It has to be noted that the applicant, with the exception of the purchase and consumption of marihuana, for which he was fined in 2007, committed the criminal offences prior to the birth of his children.

49.  The Court observes that the applicant's wife is a national of "the former Yugoslav Republic of Macedonia", i.e. of the country to which the applicant was expelled. The applicant's wife, who was born in 1978, lived there until 1990 and knows Albanian and the country's culture. She has relatives there and visits the country every year. The domestic courts considered that she could reintegrate in "the former Yugoslav Republic of Macedonia" without encountering serious difficulties, despite having lived in Switzerland for the past twenty years. The Court notes that the applicant's wife chose to follow him to Macedonia in 2011 and lived with him there until 2015, despite the fact that she could have remained in Switzerland as a holder of a permanent residence permit and maintained contact with the applicant through visits and means of telecommunication.

50.  The Court observes that the couple's children, born in 2001 and in 2005, are likewise the nationals of "the former Yugoslav Republic of Macedonia". At the time the expulsion order became binding, the elder child was in primary school, whereas the younger one was in kindergarten. They were, thus, still of an adaptable age. While the Court accepts that the economic living conditions in "the former Yugoslav Republic of Macedonia" are less favourable than in Switzerland, it also notes that the former is a Contracting State of the Council of Europe. It further accepts that the children knew the country's culture to a certain extent due to visits they had made together with their mother. While it is not clear to what extent the children knew Albanian, it does not appear arbitrary to accept that the presence of their parents, who both originate from the country, as well as further relatives from their mother's side, would alleviate their difficulties in integrating in "the former Yugoslav Republic of Macedonia". Moreover, it has to be noted that the children were not forced to move there, but could have remained in Switzerland with their mother as holders of permanent residence permits and maintained contact with the applicant through visits and means of telecommunication.

51.  As to the solidity of the applicant's social, cultural and family ties with the host country, the Court notes that the applicant had lived in Switzerland for over twenty years, which had thus become the centre of his life. His parents and siblings live there. While the level of the applicant's social and cultural integration is in in dispute, it has to be noted that he worked in different jobs, with only brief periods of unemployment, prior to and following his imprisonment, and that he speaks German.

52.  As to the applicant's ties to the country of destination, the Court notes that the applicant was born in "the former Yugoslav Republic of Macedonia" and spent the first nine years of his life there. While he does not have any relatives of his own there, his wife does. Likewise, even though he claims that he could not write well in Albanian and last visited the country in 2004, he still had considerable cultural and social ties to "the former Yugoslav Republic of Macedonia".

53.  Moreover, the Court notes that the applicant's expulsion from Swiss territory is not permanent, as the entry ban against him is limited to seven years. While the entry ban is thus, without any doubt, of a long duration, it should be noted that the applicant could ask for its temporary suspension for short periods of time in order to visit his wife and children in Switzerland (see relevant domestic law and practice paragraph 26 above). What is more, the applicant's wife and the couple's children relocated to "the former Yugoslav Republic of Macedonia" in late 2011 and enjoyed their family life with the applicant there until returning to Switzerland in August 2015 to avoid the expiry of their permanent residence permit (see paragraphs 22 and 24 above). In other words, the applicant's expulsion and the entry ban against him did not preclude him from enjoying family life with his wife and children for seven years, but rather shifted the family's country of residence to "the former Yugoslav Republic of Macedonia" for almost four years. Hence, the applicant and his wife and children were, respectively are, geographically separated for a period of a little over three years in total, during which the applicant could ask for a permission to visit his wife and children in Switzerland for short periods of time.

54.  The foregoing considerations are sufficient to enable the Court to conclude that the domestic authorities reviewed all factors mentioned above in detail. Against the background of the gravity of the applicant's offence, the ties both the applicant and his wife have to "the former Yugoslav Republic of Macedonia" as well as the adaptable age of their children, and considering the sovereignty of member States to control and regulate the residence of aliens on their territory, the Court accepts that the domestic authorities balanced the applicant's right to respect for his family life reasonably against the State's interests in public safety and in preventing disorder and crime. It cannot find that in the present case the respondent State attributed too much weight to its own interests when it decided to revoke the applicant's permanent residence permit and order his expulsion to "the former Yugoslav Republic of Macedonia". The Court finds, therefore, that the respondent State has not overstepped the margin of appreciation afforded to it in the present case.

55.  There has accordingly been no violation of Article 8 of the Convention.

 

1.  Declares the application admissible;

 

2.  Holds that there has been no violation of Article 8 of the Convention.

 

Done in English, and notified in writing on 10 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Stephen Phillips    Registrar

    Luis López Guerra    President