Deportation for sexual assault on a minor. A proportional measure according to the ECHR.
JUDGMENT
M.M. v. Switzerland 8.12.2020 (app. no. 59006/18)
SUMMARY
The case concerned the applicant’s expulsion from Switzerland for a period of five years following
the imposition of a 12-month suspended prison sentence for having committed acts of a sexual
nature against a child and consumed narcotics.
The Court recognised that the cantonal courts and the Federal Supreme Court had carried out a
serious assessment of the applicant’s personal situation and the various interests at stake. These
authorities had thus had very solid arguments in favour of the applicant’s expulsion from
Switzerland for a limited duration. In consequence, the Court concluded that the interference had
been proportionate to the legitimate aim pursued and had been necessary in a democratic society,
within the meaning of the Convention
PROVISION
Article 8
PRINCIPAL FACTS
The applicant, M.M., is a Spanish national who was born in 1980 in Switzerland. Until his expulsion
from Switzerland, he was in possession of a settlement permit. He currently lives in Spain.
On 10 January 2018 the X Police Court convicted the applicant of committing acts of a sexual nature
on two occasions against a minor and of having consumed narcotics. The court imposed a fine and a
12-month prison sentence, suspended for three years, conditional on his receiving treatment in a
prevention centre and taking part in an occupational activity. The police court did not order the
applicant’s expulsion or his exclusion from Switzerland.
By a judgment of 12 June 2018, the criminal division of the Y Cantonal Court upheld an appeal by the
prosecution and amended the first-instance judgment, ordering that the applicant be expelled from
Switzerland for a period of five years.
The Federal Supreme Court dismissed an appeal by the applicant against the decision ordering his
expulsion.
By a letter of 14 November 2018, the immigration authority of the Canton of Y set a time-limit for
the applicant to leave Switzerland; it expired on 31 December 2018.
In mid-July 2019, on termination of the supervisory measures (social assistance, professional
insertion, probation assistance and therapy) that had been imposed on him, the applicant left
Switzerland for Spain.
THE DECISION OF THE COURT…
Article 8
The Court reiterated that if an immigrant had spent his entire life in the host country very serious
reasons were required to justify expulsion. The assessment of the relevant facts had to have been
“acceptable”.
The Court noted at the outset that, with regard to the expulsion of foreign criminals, Article 66a of
the Swiss Criminal Code did not impose automatic expulsion on foreign criminals who had been
convicted of offences without judicial review of the proportionality of the measure. It also noted
that the courts had to take account, in weighing up the interests involved, of the “particular situation
of a foreign national who was born or grew up in Switzerland”. In the present case, the Court noted
that the applicant had spent all of his life in Switzerland. It had to ascertain whether the domestic
courts had put forward very serious reasons to justify his expulsion.
The Court noted that the Federal Supreme Court had taken into consideration the fact that the
offences in question were serious ones, that the applicant had committed a sexual assault against a
minor, and that he had thus very seriously breached security and public order in Switzerland. The
Federal Supreme Court had also found that the applicant had shown a certain contempt for the
Swiss legal order, noting that he had been convicted on three previous occasions. The federal judges
had also assessed the risk of reoffending, having regard to the applicant’s interest in prepubescent
girls, as was clear, in particular, from the numerous photographs of girls aged between ten and /found on his telephone, and the searches of a paedophile nature made on it.
The Court further noted that the Federal Supreme Court had found that the applicant had conducted
himself rather well since committing the offence. A report drawn up by the Post-Sentencing Board
indicated that the applicant attended the scheduled interviews, was taking an interest in his
occupational activity, attended the prevention centre regularly and seemed to be benefitting from a
supervisory structure that was enabling him to develop in a positive manner, although further
efforts were still required.
While having regard to these elements, the Court noted that the Federal Supreme Court had
nonetheless found that the prospects for the applicant’s reintegration in society seemed rather
bleak. In this connection, the Court noted the federal judges’ finding that the occupational activity or the treatment followed at the prevention centre could not be regarded as indicating any desire to integrate in Switzerland.
The Court further noted that the applicant had never raised before the domestic courts any medical
issues which could have prevented his expulsion from Switzerland.
To sum up, the Court recognised that the cantonal courts and the Federal Supreme Court had
carried out a serious assessment of the applicant’s personal situation and the various interests at
stake. These authorities had thus had very solid arguments to justify the applicant’s expulsion from
Switzerland for a limited duration. The Court accordingly concluded that the interference had been
proportionate to the legitimate aim pursued and had been necessary in a democratic society within
the meaning of the Convention.
It followed that there had been no violation of Article 8 of the Convention.
