Revocation of a residence permit of a person convicted of drug trafficking. No violation of family life

JUDGMENT

Veljkovic-Jukic v. Switzerland 21.07.2020  (appl. no. 59534/14)

see here

SUMMARY

The case concerned the withdrawal of the permanent residence permit of a Croatian national who
has lived in Switzerland since the age of 14, because of her criminal conviction for drug trafficking,
and her possible removal from Switzerland.

The Court found that Switzerland had not overstepped the margin of appreciation afforded to it,
particularly given the seriousness of her conviction for a drug-related offence and the fact that the
applicant and her family members could integrate without major difficulties in one of the destination
countries proposed by the Federal Supreme Court: Bosnia and Herzegovina, Croatia or Serbia.

The Court also noted that the applicant had been refused entry to Swiss territory for a period of
seven years (until 30 August 2021), and that the Federal Aliens Act enabled her to request a
temporary suspension of this exclusion order so that she could visit her family members in
Switzerland.

However, the Court considered it desirable that the national authorities reassess the applicant’s
situation in the light of developments since the Federal Supreme Court’s judgment prior to taking a
decision on whether to enforce the measures, especially in view of her conduct throughout the
proceedings and the possibility, open to her, of applying for a new residence permit.

PROVISION

Article 8

PRINCIPAL FACTS

The applicant, Renata Veljkovic-Jukic, is a Croatian national who was born in 1980 and lives in
Gerlafingen, Switzerland, with her husband, a Serbian national, and their three children (born in
2007, 2008 and 2012). Ms Veljkovic-Jukic and her husband were granted leave to remain in
Switzerland at the ages of 14 (in 1995) and 8 (in 1991) respectively.

In June 2012 the Canton of Zurich Higher Court, on appeal, sentenced Ms Veljkovic-Jukic to three
years’ imprisonment, 30 months of which were suspended, for a drugs offence and for driving a
vehicle while incapacitated. In particular, she was found guilty of the trafficking in April 2010 of
approximately 1 kg of heroin and 56 g of cocaine for a sum of 126,000 Swiss francs (CHF), of which
CHF 6,000 was apparently intended for her, and of driving a vehicle after using cocaine. She served
her sentence under a semi-custodial regime and was released in July 2013.

In September 2013, relying on Ms Veljkovic-Jukic’s conviction and long-term custodial sentence, the
Migration Office of the Canton of Solothurn withdrew her permanent residence permit and ordered
her removal from Switzerland. She appealed against this decision, but her appeal was rejected at first instance and on appeal. The Federal Supreme Court held, in particular, that the security interest in the applicant’s removal took precedence over her private interests and that this ground was also valid for persons who, like the applicant, had been residing in Switzerland for more than 15 years
continuously and in a lawful manner. It also held that the applicant’s return to Bosnia and
Herzegovina (where she had spent 14 years as a child) or to Serbia or Croatia did not appear to be
precluded for any reason. It further considered that her husband and children could follow her or
that, if the family were to remain in Switzerland, contact could be maintained through visits and the
use of available means of communication. Furthermore, it indicated that the applicant also had the
possibility of applying for a new residence permit.

In August 2014 the Migration Office of the Canton of Solothurn issued an exclusion order against
Ms Veljkovic-Jukic, banning her from Switzerland for the period from 31 August 2014 to 30 August
2021. However, the deportation order against the applicant was not enforced, pending the outcome
of the proceedings before the European Court of Human Rights.

THE DECISION OF THE COURT…

Article 8 (right to respect for private and family life)

The Court considered that the decision to withdraw Ms Veljkovic-Jukic’s permanent resident permit
and to order her removal from Switzerland amounted to an interference with her right to respect for
her “private” and “family” life, given the very long period that she had been resident in Switzerland
and the fact that she lived there with her husband and children. The interference had been in
accordance with the Federal Aliens Act and pursued a legitimate aim: the prevention of disorder or
crime. As to whether the measure was necessary in a democratic society, the Court noted the
following.

The measure was imposed following Ms Veljkovic-Jukic’s conviction for drug trafficking. The Court
considered that this conviction weighed heavily in its assessment; in view of the destructive effect of
drugs on people’s lives, the Court had always understood why the authorities showed great firmness
with regard to those who actively contributed to the spread of this scourge.

On the date that the Federal Supreme Court’s judgment was adopted, Ms Veljkovic-Jukic had been
resident in Switzerland for 19 years, and her conduct following her release had been irreproachable.
This positive development, particularly the fact that she had been released on probation after
serving part of her sentence, could be taken into consideration in weighing up the interests at stake.

As to her ties with her country of origin, Ms Veljkovic-Jukic had spent some of her youth in Bosnia
and Herzegovina, where her mother still lived. Her husband, who had been resident in Switzerland
since 1991, was a Serb national. Thus, the family’s integration in one of the possible destination
countries, namely Bosnia and Herzegovina, Croatia or Serbia, although it would be difficult, did not
seem impossible. The children (7, 11 and 13 years) were still at an age at which they could adapt to a
new environment.

The national authorities had conducted an adequate and convincing examination of the facts and
relevant considerations, balancing Ms Veljkovic-Jukic’s personal interests against the general
interests of society. The Federal Supreme Court had admittedly attached great significance of the
seriousness of the drug trafficking offence committed by Ms Veljkovic-Jukic, but it had also taken
account of the criteria set out by the Court in the Üner judgment, including, in particular,

Ms Veljkovic-Jukic’s personal situation, the extent to which she was integrated into Swiss life and the
potential difficulties that she and her family would face were they to return to their country of
origin. Thus, the Federal Supreme Court had acknowledged that Ms Veljkovic-Jukic’s removal after
18 years spent in Switzerland was a very harsh measure, which was, however, to be nuanced by her
young age and the fact that she had arrived in Switzerland aged 15, after having spent all of her
childhood and part of her youth in Bosnia and Herzegovina. A return to Bosnia and Herzegovina,
Croatia or Serbia would not therefore be impossible. The Federal Supreme Court had also examined
the situation of the children, finding that separation from their mother would amount to a serious
interference in their family life. However, it considered that Ms Veljkovic-Jukic’s husband, a Serb
national, could follow her to her country of origin, and that the children’s integration ought not to
pose a problem, given that they were still young enough to adapt.

Thus, the Court was satisfied that the national authorities, especially the Federal Supreme Court, had
carried out a sufficient and convincing examination of the facts and relevant considerations and a
thorough weighing up of the competing interests. Moreover, it noted that Ms Veljkovic-Jukic had
been refused entry to Swiss territory for a period of seven years (until 30 August 2021), and that the
Federal Aliens Act enabled her to request a temporary suspension of this exclusion order so that she
could visit her family members in Switzerland.

In consequence, having regard in particular to the seriousness of Ms Veljkovic-Jukic’s conviction for a
drug-related offence, and the fact that she and her family members could integrate without major
difficulties in one of the destination countries proposed by the Federal Supreme Court (Bosnia and
Herzegovina, Croatia or Serbia), the Court considered that Switzerland had not overstepped the
margin of appreciation afforded to it.

There had been no violation of Article 8 of the Convention.

However, the Court considered it desirable that the national authorities reassess Ms Veljkovic-Jukic’s
situation in the light of the developments since the Federal Supreme Court’s judgment prior to
deciding whether to enforce the measure, having regard in particular to her conduct throughout the
proceedings and the possibility, available to her, of applying for a new residence permit (section 43
of the Federal Aliens Act).

Separate opinion

Judges Felici and Guerra Martins expressed a joint dissenting opinion, which is annexed to the
judgment


ECHRCaseLaw

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