Last Updated on December 8, 2020 by LawEuro
Information Note on the Court’s case-law 246
December 2020
M.M. v. Switzerland – 59006/18
Judgment 8.12.2020 [Section III]
Article 8
Expulsion
Article 8-1
Respect for private life
Sound reasons justifying deportation for five years of adult foreign national born in Switzerland, following criminal conviction, under legislation on mandatory expulsion: no violation
Facts – The applicant, a Spanish national who was born in Switzerland in 1980 was deported from Switzerland to Spain and banned for five years, the minimum term under the Criminal Code, following his conviction and suspended twelve-month prison sentence for committing indecent assault on a minor and taking drugs.
Law – Article 8:
The deportation of the applicant, a 40-year-old single man without children, who challenged the measure on grounds of his integration in the host State, had constituted an interference with his right to respect for his private life. The measure had been in accordance with the law and pursued the aims of preventing disorder and crime.
In matters of deportation of foreign criminals, Article 66a of the Criminal Code, enacted to reflect the result of a referendum, had not introduced, in spite of its heading “mandatory expulsion”, an automatic mechanism for the deportation of foreign nationals convicted for offences without any judicial scrutiny of the proportionality of the measure. That would have been incompatible with Article 8 of the Convention. The interpretation by the Federal Court of the “exemption clause” (clause de rigueur) in principle showed that it was applied in compliance with the Convention. Under that clause the court had to take account, in weighing up the interests at stake, of the “specific situation of an alien who was born or raised in Switzerland”. It followed that in such cases it was necessary to carry out an analysis on a case-by-case basis according to the criteria established by the Court’s case-law.
The applicant, who was born in 1980 and committed the relevant offences in 2017, was thus already an adult.
The sentence handed down (prison term of twelve months suspended for three years) was relatively lenient. It was nevertheless harsher, for example, than in the case of Shala v. Switzerland, no. 52873/09, 15 November 2012 (suspended term of five and a half months in total). In that case the Court had taken the view that, in spite of the relative leniency of the sentence, the expulsion from Switzerland for ten years had not entailed a violation of Article 8. The present case concerned the applicant’s expulsion from Switzerland for only five years, which represented the minimum sanction provided for under Article 66a of the Criminal Code.
The applicant had spent his whole life in Switzerland. The Court thus had to make sure that the domestic courts had put forward very sound reasons to justify the expulsion.
The Federal Court had taken into consideration the fact that the offences in question had been serious, that the applicant had caused particularly major legal harm, namely to the sexual well-being of a minor, thus constituting a serious attack on safety and public order. The applicant had shown significant disregard for the Swiss legal system, having been convicted three times. The Federal Court had noted the risk of reoffending, having regard to the applicant’s interest for pre-pubescent girls, as shown by the numerous photos of girls between 10 and 12 found on his telephone, together with the searches for paedophilia he had made on the same device.
In addition, the Police Court had attributed a high level of guilt to the applicant and had renounced any mitigation of his criminal liability as he had consumed alcohol and drugs on the day of the offence. He had not been able to explain the offence committed against the child except by his consumption of drugs and alcohol. Similarly, he did not seem to have had any real inclination to identify the mechanisms which had led him to act as he did, or to have had any strategy for dealing with high-risk situations.
The applicant had been found guilty on two occasions of indecent acts committed against a minor. Thus the offence in question had not merely been a “one-off” act. Whilst the remainder of his criminal record had not been related to paedophilia and had not comprised serious offences, he had certainly shown disregard for the Swiss legal system.
As to the time that had elapsed since the offences and to the applicant’s conduct during that period, there had been no real cause for concern. He had complied with the scheduled meetings, had been assiduous in his occupational activity, had regularly attended the prevention centre and seemed to benefit from a suitable environment which allowed him to develop positively, even though he still had to make efforts.
As to the applicant’s family situation, he was a single adult with no children and living on his own. His father had died. His mother was living in Switzerland but he had no relations with her or other members of her family. Similarly, the applicant could not lay claim to any particular social, cultural, family or professional ties. His prospects of social reintegration did not seem very promising as, at the age of 38 at the time, he had never worked or had any training. His recent activity or the supervision he underwent at the prevention centre could not be regarded as demonstrating any willingness to integrate in Switzerland.
As to the strength of the applicant’s links with Spain, he had a certain knowledge of Spanish and still had some distant relatives there.
Lastly, as to the particular circumstances of the case, the applicant had never invoked in the domestic courts any medical factors which could have been an obstacle to his deportation.
In sum, the Cantonal Courts and the Federal Court had carried out a serious examination of the applicant’s personal situation and the various interests at stake. They had thus given very sound reasons to justify the applicant’s deportation from Switzerland for a limited period. The interference had thus been proportionate to the legitimate aim pursued and necessary in a democratic society within the meaning of Article 8 § 2.
Conclusion: no violation (unanimously).
(See also Üner v. the Netherlands [GC], 46410/99, 18 October 2006, Information Note 90; Maslov v. Austria [GC], 1638/03, 23 June 2008, Information Note 109)
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