ECHR in Emre 2: Swiss Courts' Reduction of Immigration Ban from Indefinite to 10 Years Still Not in Compliance with Convention

In 2008, the European Court of Human Rights held that Switzerland’s decision to ban an  immigrant from the country indefinitely violated his right to protection of private and family life (Article 8), when that decision was based on his criminal convictions (some committed as a juvenile), and did not take into account his health problem, personal and family ties in Switzerland, and lack of ties in his native Turkey. Emre v. Switzerland, App. No. 42034/04, Judgment of 22 August 2008 (in French only) (English press release here).  In accord with that decision, the Swiss Federal Court agreed to review its original judgment, and fixed the length of the ban at ten years.  Emre again took his case to the Strasbourg Court, which this week held that the Swiss court had failed to properly balance the factors identified by the ECHR in its earlier decision and that a ten-year ban could not be considered “necessary in a democratic society”. [Courthouse News Service] Emre v. Switzerland (No. 2), App. No. 5056/10, Judgment of 11 October 2011 (in French only) (English press release here).  The ECHR held that the Swiss court should have immediately lifted the deportation order against Emre. [ECHR]

As summarized in the ECHR press release on its 2008 decision:

The Court observed in particular that at least some of the offences committed by the applicant came under the heading of juvenile delinquency. It also noted that his health problems were liable to further complicate matters if he were to return to his country of origin, where he had few social ties. Furthermore, given the degree of seriousness of the offences of which the applicant had been convicted, his weak ties with his country of origin and the final nature of the deportation order, the Court took the view that the Swiss authorities could not be said to have struck a fair balance between the interests of the applicant and his family on the one hand and their own interest in controlling immigration on the other. It held unanimously that there had been a violation of Article 8 [private and family life]…

In its 2011 decision, the Court:

took the view that the Federal Court should have taken into consideration all the relevant factors in the case, as the Court had done in its first judgment (including the nature of the offences committed, some of which had come under the heading of juvenile delinquency, the severity of the penalties imposed, the length of time for which Mr Emre had been resident in Switzerland, the strength of his social, cultural and family ties with the host country and the destination country, his health problems, the fact that his conduct had changed for the better and, lastly, the final nature of the deportation order).

[ECHR] Thus, the State had failed to strike a fair balance between the private and public interests.  As pointed out in an article titled “Trying It Twice” on the ECHR Blog, it is rare for applicants to get a second audience before the ECHR when they are dissatisfied with domestic implementation of the ECHR’s adjudication of their application.



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