Judgement 21768/19

Applicant nameGHADAMIAN
Applicant type Natural person (immigrant)
Number of applicants 1
Application no. 21768/19 
Date 09/05/2023
Judges ere Pastor Vilanova, président,
 Georgios A. Serghides,
 Carlo Ranzoni,
 Jolien Schukking,
 Darian Pavli,
 Peeter Roosma,
 Ioannis Ktistakis
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Positive obligation
Type of privacy Relational privacy
Keywords Positive obligation; residence permit;
Facts of the caseApplicant was born in 1940 in Iran and has lived in Switzerland for more than 50 years. He entered Switzerland legally in 1969 and has two sons with a women he married in 1971 and divorced in 1989. Late 1979, he obtained a settlement permit, but between November 1988 and January 2004, he was sentenced for a cumulative period of approximately five years for various criminal offences. In 1999, a court sentenced him to about two and half years of imprisonment and expulsion from Switzerland for a period of five years. The authorities unsuccessfully invited the applicant to leave Switzerland in 2000, 2003 and 2011, searched his home in 2004 and 2019 to seize his passport, but to no avail. Legal troubles continued for applicant, while is appeals to courts to revoke his expulsion order were dismissed.
AnalysisThe ECtHR finds that the applicant cannot rely on the protection of family life, as his children are adults, and he is living independently, meaning that he does not need to be taken care of by family members for financial, medical or other reasons. This is important because immigrants that can rely on family ties have a stronger position against expulsion orders or in favour of obtaining a temporary or permanent residence permit. Only later in its jurisprudence did the Court also accept such claims by immigrants relying solely on their private life; the right to private life, still as today, is less frequently invoked, is less easily acknowledged by the Court and if it is recognised, leads it to find a violation of Article 8 ECHR less quickly than if the expulsion of an immigrant would, for example, leave his children, who have been born and raised in the country expulsing the immigrant, without a father figure in their life.  
In this case, however, the ECtHR does find that the applicant’s private life, in particular given the length of his stay, was in Switzerland and not in his country of birth. Also, the first and major part of his stay in Switzerland had been legal. He was close to his children and had friends at a volleyball club where he served as coach. In particular, he had always worked in Switzerland (when he was not imprisoned), earning himself a pension, which was another sign of how much he was integrated in society. The other way around, given his considerable age, he would have difficulties integrating back in Iranian society. This means that the state was under a positive obligation to give applicant a resident permit, even despite his criminal activities and the fact that he had not complied with formal court orders to leave Swiss territory for years. Finding a violation of Article 8 ECHR. The Court does not find it necessary to consider applicant’s complaint under Article 13 ECHR.
In a partly dissenting opinion, judge Serghides, who voted with the majority on the substantial findings of the case, disagrees with the majority’s conclusion that the finding of a violation itself constitutes sufficient satisfaction. He bases his point on both a theoretical and a practical argument. First, that a finding of a violation per sé cannot amount to just satisfaction, because the two matters are clearly distinct. If the Court establishes a violation, the subsequent question is what type of remedy should be offered to the party injured. Simply conflating the two questions is not doing justice to the second question. Second, that in this case specifically, the applicant should have been awarded damages for immaterial harm.
Other Article violation?No violation 13 ECHR
Damage awarded
Documents Judgment