ECHR judgment of April 9, 2019 in the case of “I.M. (I.M.) v. Switzerland” (application No. 23887/16).
In 2016, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Switzerland.
The case has successfully examined an application about a superficial check of proportionality when expelling a person convicted of a crime who has become disabled and dependent on the help of his children. Expulsion would violate the requirements of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicant is a citizen of the Republic of Kosovo. He was born in 1964 and has been living in Switzerland since 1993. In 2003, the applicant committed a rape and was sentenced to two years and three months in prison. As soon as the verdict entered into force, the authorities decided to expel the applicant (from the canton in 2006, then from Switzerland in 2010).
Over time, the applicant’s state of health worsened: since 2012, he lost his ability to work by 80%. In 2015, the applicant’s latest complaint about the decision to expel was rejected: the Swiss Federal Administrative Court held that the principle of subsidiarity requires substantial discretion. As a result, the applicant lost his disability pension and is forced to depend on his children.
QUESTIONS OF LAW
Regarding compliance with article 8 of the Convention. (a) Intervention. In addition to his private life (since the applicant had lived in Switzerland for a long time), Article 8 of the Convention also enters into force in the present case from the point of view of family life: as a disabled person, the applicant is assisted daily (in housework, personal care, and grooming) himself in order, in dressing) his adult children, and he is financially dependent on them. The applicant is also the father of two minor children born in Switzerland. In this case, the potential possibility of the applicant’s adult children to continue to provide him with financial assistance remotely in the event of expulsion to Kosovo, or that the applicant indicated to the authorities his paternity with respect to two minor children (born in 2006) only after a decision was made in 2015, does not matter against him.
(b) The need for a democratic society. If the Swiss authorities had carefully compared the interests involved in the case, taking into account the various criteria established in the case-law of the European Court of Justice, and also if they indicated appropriate and sufficient grounds for making its decision, then the Court could, in accordance with the principle of subsidiarity, depending on the circumstances of the case, conclude that the decision of the Swiss authorities was covered by the discretion recognized by the respondent Government in the field of immigration.
In the present case, this did not happen. The proportionality of the expulsion measure has been studied only superficially. The Swiss Federal Administrative Court paid great attention to the gravity of the crime, briefly addressing the risk of relapse and mentioning the difficulties that the applicant would encounter upon returning to Kosovo. His analysis was limited to these factors.
Other aspects were not analyzed or were considered too superficially, although the question was about criteria to be applied in terms of the case-law of the European Court, in particular, about the strength of the applicant's social, cultural and family ties with the host country and with the country of destination, about medical issues, the dependence of the applicant on his adult children, on a change in the behavior of the applicant 12 years after the commission of the crime, the impact of a significant deterioration in his state of health on the likelihood of recidivism and with his hand.
These shortcomings do not allow the Court to make an unambiguous conclusion as to whether the interests relied on by the applicant prevailed over the advisability of expelling him to maintain public order. On the whole, the Swiss authorities failed to convincingly demonstrate that the chosen expulsion measure was proportionate to the legitimate goals pursued.
The expulsion of the applicant would constitute a violation of Article 8 of the Convention (accepted unanimously).
In application of Article 41 of the Convention. The Court has found that a finding of a violation of the Convention would in itself constitute sufficient just satisfaction in respect of non-pecuniary damage.