CEDH · CASELAW;CLIN;ENG — 11 octobre 2011

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Switzerland (no. 2) - 5056/10 Judgment 11.10.2011 [Section II] Article 8 Article 8-1 Respect for family life Failure to revoke an order for alien’s exclusion from national territory despite Court’s finding a violation of right to respect for private and family life: violation   Article 46 Article 46-2 Execution of judgment Failure to revoke order for alien’s exclusion from national territory despite Court finding a violation of right to respect for private and family life: violation   Facts – The applicant is a Turkish national who arrived in Switzerland with his parents in 1986. In 2003, following his conviction on several occasions for offences committed between 1994 and 2000, the Aliens Office ordered his administrative expulsion and his permanent exclusion from Swiss territory. The decision was upheld by the Federal Court. In 2004 the applicant lodged an application with the European Court which, in a judgment of 22   May 2008 (application no.   42034/04), held that his permanent exclusion from Swiss territory had been in breach of Article   8. The applicant subsequently applied to the Federal Court seeking a review of the administrative order concerning him. The Federal Court granted the application for review and limited the exclusion period to ten years. In September 2009 the applicant married a German national and obtained a German residence permit. He then applied unsuccessfully to have the expulsion order lifted so that he could settle in Switzerland. Law – Article 8 in conjunction with Article   46: The prohibition on re-entering Switzerland for ten years amounted to interference with the applicant’s right to respect for his family life. His expulsion had been in accordance with the law and had pursued a legitimate aim, namely the prevention of disorder and crime. However, it had to be ascertained whether the Federal Court judgment had complied with Switzerland’s obligation to secure effective execution of the final judgments of the Court. In response to the Court’s judgment, it had reduced the period of the applicant’s exclusion from Swiss territory to ten years, taking the view that his personal interest in remaining in Switzerland did not outweigh the public’s interest in his expulsion. In reaching that conclusion, the Federal Court had reweighed the interests at stake, but had arrived at the opposite conclusion to that reached by the Court in its judgment of 22   May 2008. While the Federal Court had enjoyed a certain margin of appreciation in interpreting the Court’s judgment, it had substituted its own interpretation in the instant case for that of the Court. Even assuming that this approach was acceptable and justified from the standpoint of the Convention, the Federal Court’s re-assessment of the arguments advanced by the Court in its first judgment also had to be thorough and persuasive. The Court referred in that regard to its extremely detailed reasoning in its first judgment, in which, among other things, it had weighed up the specific interests at stake. This had entailed examining a series of factors including the nature of the offences committed by the applicant, the severity of the penalties imposed, the length of time for which he had been resident in Switzerland, the time that had elapsed between the commission of the offences and the impugned measure, the applicant’s conduct during that period, the strength of his social, cultural and family ties in the host country and the destination country, the particular features of the case (the applicant’s health problems) and, lastly, the final nature of the expulsion order. However, the Federal Court’s examination had been confined to the last of these factors, whereas, in order to comply with the stringent requirements imposed on States under Article   46, it should have covered all of them. As to the applicant’s exclusion from Swiss territory for ten years, this was a considerable length of time which was out of proportion to the offences committed. With regard to events since the Court’s judgment, these gave a clear indication that the applicant’s offences could be seen as errors of youth which the applicant appeared to have acknowledged. The Court was prepared to accept that he had conducted himself since then in a responsible manner, carrying on a lawful occupation within his capabilities and establishing his own family unit. Hence, the most natural means of executing the Court’s judgment, and the one corresponding most closely to restitutio in integrum , would have been simply to revoke the exclusion order with immediate effect. Even assuming that a different outcome might have been acceptable, the binding nature of the Court’s judgments for the purposes of Article 46 §   1, and the importance of executing them effectively, in good faith and in accordance with the spirit and the letter of the judgment, meant that, in the particular circumstances of this case, a more thorough examination of the Court’s findings in its first judgment had been called for. Accordingly, the applicant’s exclusion from the country for ten years, which was a considerable portion of a person’s life, could not be said to have been necessary in a democratic society. Conclusion : violation (five votes to two). Article 41: EUR 5,000 in respect of non-pecuniary damage. (See also Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland [GC], no.   32772/02, 30   June 2009, Information Note no.   120)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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