In the case of Boultif v. Switzerland,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr A.B. Baka,
Mr L. Wildhaber,
Mr G. Bonello,
Mrs V. Stránická,
Mr P. Lorenzen,
Mr M. Fischbach, judges,
and Mr E. Fribergh, Section Registrar,
Having deliberated in private on 5 October 2000, and on 28 June and 10 July 2001,
Delivers the following judgment, which was adopted on the last-mentioned date:
I. THE CIRCUMSTANCES OF THE CASE
A. Proceedings in Switzerland
B. The applicant's professional training, employment and conduct in prison
C. The applicant's status in Italy
II. RELEVANT DOMESTIC LAW
"The foreign spouse of a Swiss citizen is entitled to be granted a residence permit, or to have it prolonged. After a regular and uninterrupted residence of five years the spouse shall be entitled to the right to domicile. The right expires if there is a ground for expulsion."
"the foreigner can be expelled from Switzerland or from a Canton if ...
(a) he has been punished by a court for having committed a criminal offence or misdemeanour ...".
"In order to establish the appropriateness (section 11(3) of the Act), the following elements are important: the severity of the offence committed by the foreigner; the duration of his stay in Switzerland; and the damage which he and his family would suffer if he were to be expelled. If there appears to be legal justification according to section 10(1)(a), even though it may be inappropriate under the circumstances, the foreigner shall be threatened with expulsion. The threat of expulsion must be issued as a written and justified decision and shall clearly state what is expected of the foreigner."
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
"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."
A. The parties' submissions
B. The Court's assessment
1. Whether there was an interference with the applicant's right under Article 8 of the Convention
2. Whether the interference was "in accordance with the law"
3. Whether the interference pursued a legitimate aim
4. Whether the interference was "necessary in a democratic society"
In assessing the relevant criteria in such a case, the Court will consider the nature and seriousness of the offence committed by the applicant; the duration of the applicant's stay in the country from which he is going to be expelled; the time which has elapsed since the commission of the offence 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; other factors revealing whether the couple lead a real and genuine family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage and, if so, their age. Not least, the Court will also consider the seriousness of the difficulties which the spouse would be likely to encounter in the applicant's country of origin, although the mere fact that a person might face certain difficulties in accompanying her or his spouse cannot in itself preclude expulsion.
As a result, whilst the offence which the applicant committed may give rise to certain fears that he constitutes a danger to public order and security for the future, in the Court's opinion such fears are mitigated by the particular circumstances of the present case (see, mutatis mutandis, Ezzouhdi v. France, no. 47160/99, § 34, 13 February 2001, unreported, and Baghli v. France, no. 34374/97, § 48, ECHR 1999-VIII).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, CHF 5,346.70 (five thousand three hundred and forty-six Swiss francs seventy centimes) for costs and expenses;
(b) that simple interest at an annual rate of 5 % shall be payable from the expiry of the above-mentioned three months until settlement;
Done in English, and notified in writing on 2 August 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Erik Fribergh Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Mr Baka, Mr Wildhaber and Mr Lorenzen is annexed to this judgment.
We agree with the majority that the refusal to renew the applicant's residence permit interfered with the applicant's right to respect for his private and family life within the meaning of Article 8 § 1 of the Convention and that the interference was "in accordance with the law" and pursued a legitimate aim. As to whether the interference was "necessary in a democratic society", we would like to make the following observations.
The majority has rightly stressed that according to the constant case-law of the Court, it is for the Contracting States to maintain public order, and to that end they have the power to deport aliens convicted of criminal offences. However, their decisions comply with the requirements of Article 8 only if they are justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued. Accordingly, there must be a fair balance between the relevant interests, namely the applicant's right to respect for his private and family life, on the one hand, and the prevention of disorder and crime, on the other.
A considerable proportion of the Court's judgments on expulsion of aliens relates to the problems of "second generation" immigrants, that is persons who were born or have lived most of their life in the country from which they are going to be expelled. The main obstacle to expulsion in such cases is the length of the applicant's stay in, combined with his family ties to, that country. In a considerable proportion of the cases the Court has not found a violation of Article 8 even where the applicant has lived all or most of his life in the country and has fairly close family ties there: see Boughanemi v. France, judgment of 24 April 1996, Reports of Judgments and Decisions 1996-II; C. v. Belgium, judgment of 7 August 1996, Reports 1996-III; Bouchelkia v. France, judgment of 29 January 1997, Reports 1997-I; El Boujaïdi v. France, judgment of 26 September 1997, Reports 1997-VI; Boujlifa v. France, judgment of 21 October 1997, Reports 1997-VI; Dalia v. France, judgment of 19 February 1998, Reports 1998-I; Benrachid v. France (dec.), no. 39518/98, ECHR 1999-II; Farah v. Sweden (dec.), no. 43218/98, 24 August 1999, unreported; Djaid v. France (dec.), no. 38687/97, 9 March 1999, unreported; Baghli v. France, no. 34374/97, ECHR 1999-VIII; and Öztürk v. Norway (dec.), no. 32797/96, 21 March 2000, unreported. By contrast, the Court has found a violation of Article 8 in the following cases: Moustaquim v. Belgium, judgment of 18 February 1991, Series A no. 193; Beldjoudi v. France, judgment of 26 March 1992, Series A no. 234-A; Nasri v. France, judgment of 13 July 1995, Series A no. 320-B; Mehemi v. France, judgment of 26 September 1997, Reports 1997-VI; Ezzouhdi v. France, no. 47160/99, 13 February 2001, unreported.
As regards the relevant criteria in cases where there are difficulties for the spouses to stay together and, in particular, for one of them to live in the other's country of origin, we agree with the guiding principles which have been correctly set out in paragraph 48 of the Court's judgment.
Basing ourselves on an assessment of all the relevant facts of the present case, we agree with the majority that there has been a breach of Article 8 of the Convention. We attach particular importance to the facts that the offence was committed in April 1994 and that, according to the information available, the applicant has not committed further offences since then and now seems to be rehabilitated. Even if we are not fully convinced that it would be impossible for his spouse to live in Algeria, we accept that it would cause her obvious and considerable difficulties. That being the case, we do not find the seriousness of the offence committed to be sufficient to make the expulsion proportionate.