7289/75 7349/76

Applicant name X. and Y.
Applicant type Immigrant
Country Switzerland
Decision no.7289/75 7349/76
Institution Commission
Type Decision
Outcome Art. 8 Inadmissible
Reason Ratione personae; no interference
Type of privacy Family privacy
Keywords Ratione loci; ratione personae; family ties
Facts of the case German man (applicant) has two legitimate children in Germany. In addition, he has two illegitimate children with Austrian women. The women lives in Lichtenstein. The man wants to regularly visit his illegitimate children and his lover, but the law of Lichenstein limit the number of days foreigners can stay in its country without a residence permit. When he violates this restriction, inter alia because he is seriously ill and is taken care of by his lover, the Swiss government, which has authority over its own and Lichtenstein’s territory when it concerns immigration, issues a prohibition for the man to enter the territory of Switzerland and Lichtenstein for 2 years.
Analysis The first question that arises is whether the Commission has competence ratione loci and ratione personae, because Lichtenstein is not a member to the Convention. It has, the Commission finds, because the Swiss law and actions of Swiss authorities, had an impact on the applicant’s life, and because its competence extended to the territory of Lichtenstein, due to treaties signed between the two countries. Consequently, Switzerland can also be held accountable for actions and regulations that have extra-territorial effect.

Interestingly, the government submits that the applicant is abusing his right to petition, as it is frivolous. Even if the Court would find a violation against Switzerland, nothing would stand in the way for Lichtenstein to adopt a similar approach and reinstate the prohibition, as it is not bound by the judgements of the Court. The Commission rejects this argument, as a judgement would at least have an effect on the applicants ability to travel to Switzerland.

Then, the Commission turns to the question of family ties, which is interesting for three reasons. First, it stresses that ‘the relationship between a father and his illegitimate children is always included in the concept of family life’, apparently finding that a biological tie per sé constitutes family life. This seems to contrast with other jurisprudence, in which it was found that the absence of factual ties can lead to the conclusion that no family life exists. Second, it takes a rather conservative approach to family life between the two lovers. The Commission finds that because the man is married and has a household in Germany, and because the two lovers do not share a household, there exist between them no family tie. Apparently, a person can only have a family tie with one (sexual) partner. Third, the Commission stresses that ‘the relationship between the first and second applicants only amounts to “private life” within the meaning of Article 8 of the Convention.’ The word ‘only’ is noteworthy, because it implies a lower status of private life than family life. This should not be treated as a general statement – meaning that rights related to a person’s family life are always stronger than those related to her private life – but such is a general principle when it comes to immigration matters and issues concerning residence permits. In these types of cases, the Commission and the Court have found that family rights are more important than matters concerning private life. Inter alia, only very late in its jurisprudence, and only in a small number of cases, has the Court found that a denial of a residence permit or eviction of a foreigner violated Article 8 ECHR, when the applicant had no family life in that country, but ‘only’ an established private life (e.g. having worked and lived in that country for more than 10 years).

The decision by the Commission gets even more remarkable, because if anything, it appears that the man and his lover want to establish close ties and have a strong family life together with their children. They are, however, hindered from doing so by the authorities. The Commission finds that their ties are relatively loose. ‘. Having regard to this special character of the applicants’ private and family life, having further regard to the possibility for the applicants and their children to meet at a reasonable distance from the second applicant’s residence in either Austria or the Federal Republic of Germany, and having finally regard to the suspensions from prohibition of entry which the first applicant was on numerous occasions (nine times in two years) granted for the very purpose of visiting his children, the Commission considers that there has been no interference with the applicants’ private and family life within the meaning of Article 8 of the Convention.’

As to the claim that the first applicant was hindered in visiting his Parkinson specialist in Zurich, the Commission declares the claim inadmissible ratione personae, because no right to chose medical assistance is covered by the Convention.

Documents Decision