Salija v. Switzerland (no. 55470/10)
a revocation of the residence permit bicause of crime and expulsion after 20 years residence, no violation of Article 8
The applicant, Bljerim Salija, is a Macedonian national, who was born in 1980 in the municipality of Tetovo (“the former Yugoslav Republic of Macedonia”). The case concerned the revocation of his permanent residence permit in Switzerland and his expulsion.
Mr Salija arrived in Switzerland in 1989 aged nine to be reunited with his family and was granted a permanent residence permit. In 1999 he married a Macedonian national who also held a permanent residence permit in Switzerland. The couple have two children together.
Following two criminal convictions for embezzlement (in 2003) and for homicide (in 2004), Mr Salija had expulsion proceedings brought against him, the migration authorities revoking his permanent residence permit and ordering his removal. The expulsion order was served in July 2009, shortly before Mr Salija’s release on parole after having served a third of his five-year-and-three-month prison sentence for homicide.
All of his appeals before the domestic courts, ultimately to the Federal Supreme Court in July 2010, were dismissed. The courts notably took into account the gravity of his offences, that he was not well integrated in Switzerland, that he spoke Albanian and that he was familiar with the culture in “the former Yugoslav Republic of Macedonia” where he had spent parts of his childhood and which he had visited since. Moreover, his wife, who was also a national of “the former Yugoslav Republic of Macedonia” and knew Albanian as well the country’s culture, and his children, who were of an adaptable age, could reasonably be expected to relocate.
In October 2010 Mr Salija left Switzerland for “the former Yugoslav Republic of Macedonia” in order to comply with the expulsion order. His family joined him there in December 2010. The family has since returned to Switzerland (in 2015) and live in Zurich.
Relying on Article 8 (right to respect for private and family life), Mr Salija complained about the revocation of his residence permit and his expulsion, arguing that he had had no close ties with “the former Yugoslav Republic of Macedonia” whereas he had arrived in Switzerland as a child, had lived there for more than 20 years, marrying and raising two children.
No violation of Article 8
The non-consensual use of the applicant’s first name for the purposes of a cigarette advertising campaign
The applicant Dieter Bohlen is a German national who was born in 1954 and lives in Rosengarten (Germany). He is a musician and artistic producer. In 2003 Mr Bohlen published a book, some passages of which were removed following court rulings. On 27 October 2003 the company British American Tobacco (Germany) launched an advertising campaign referring to this event, showing some text which included the applicant’s first name and which had been partly crossed out using black ink, above an image of a marker propped up against a cigarette packet.
The applicant Ernst August von Hannover is a German national who was born in 1954 and lives in Monaco. He is particularly well known as the husband of Princess Caroline of Monaco. In 1998 and 2000 he was involved in two violent altercations – one with a cameraman and the other with a discotheque manager – which were reported in the press, and was subsequently convicted of assault. On 27 March 2000 the company British American Tobacco (Germany) used these events in an advertisement which mentioned Mr von Hannover’s first names and showed a picture of a crumpled cigarette packet. Dieter Bohlen and Ernst August von Hannover sought orders prohibiting the distribution of the advertisements in question, and the cigarette manufacturer complied without delay.
However, thecompany refused to pay the applicants the sum of 100,000 euros (EUR) which they claimed by way of a notional licence fee in compensation for the use of their first names. Mr Bohlen and Mr von Hannover then applied to the Hamburg Regional Court seeking payment of a notional licence fee. The court upheld their claims and awarded them EUR 100,000 and EUR 60,000 respectively, finding that respect for their privacy should take precedence over freedom of expression.
The Court of Appeal upheld most of the Regional Court’s findings but reduced the sum awarded to Dieter Bohlen from EUR 100,000 to EUR 35,000, taking into account the fact that the advertisement had not been insulting and that only his first name had been used. However, the Federal Court of Justice, to which the company British American Tobacco appealed on points of law, quashed the Court of Appeal judgments on 5 June 2008.
The Court confirmed at the outset that an individual’s first name is part of his or her private (and family) life. In the instant case, even if the applicant’s first name was not uncommon, the fact that the advertising campaign had linked it to the controversy surrounding the publication of his book made it possible to identify him. On that account, Article 8 was engaged. The Court found no violation of Article 8 of the European Convention on Human Rights, in particular that the German Federal Court of Justice had struck a fair balance between freedom of expression and the right to privacy by taking into account the commercial and humorous nature of the advertisements in question, the context in which they had been published, the absence of any degrading or negative content concerning the applicants and the applicants’ prior public conduct. A thorough balancing exercise had therefore been carried out between the competing interests at stake.
The applicant was born in 1981. The applicant is a transgender person whose gender is recorded in the civil-status register as female. He stated that he had become aware, even as a child, of feeling that he was male, a feeling that was at variance with his anatomical sex.
The applicant applied to the Mersin District Court (“the District Court”) under Article 40 of the Civil Code seeking authorisation to undergo gender reassignment surgery, but this was refused on the ground that she was not deinitively unable to procreate. The applicant was eventually allowed to have surgery in 2013, five years and seven months after the earlier refusal of her application. The domestic court decided the applicant’s request without considering whether she was able to procreate.
The applicant maintained in the Convention proceedings that there had been a breach of her right under Article 8 to respect for her private life.
The case raises a new issue in that, unlike earlier transsexual cases, the Court was called upon to address the compatibility with Article 8 of conditions imposed on an applicant seeking to change sex. In previous cases, the Court’s concern had been to assess the justiication for restrictions imposed on a post-operative transsexual’s enjoyment of their Article 8 rights (see, for example, Christine Goodwin v. the United Kingdom, Van Kück v. Germany, and Hämäläinen v. Finland). The judgment is interesting in that the Court examined the applicant’s case from the standpoint of an interference with her Article 8 rights, rather than ascertaining whether in the circumstances the initial refusal to allow her to undergo gender reassignment surgery amounted to a failure to secure the right guaranteed by that Article. The Court found that the refusal had interfered with the applicant’s right to respect for her private life, in particular her right to her own sexual identity and personal development within the sex of her own choosing.
The Court accepted that gender reassignment surgery could be subject to regulation by the State for reasons related to the protection of health. However, it left open the question as to whether the infertility requirement contained in the domestic law could be said to pursue a similar aim.
The Court observed, among other things, that in many member States of the Council of Europe gender reassignment surgery was available to transsexuals, and the new post-operative gender was recognised in law. Some States made legal recognition of a new gender conditional on the person undergoing surgery and/or on his or her inability to procreate. Certain States had recently abolished the inability-to-procreate requirement as a precondition of legal recognition of a new gender. Moreover, in those countries where the requirement existed, fertility only became an issue after surgery. In the instant case, and having regard to the initial decision of the domestic court, it would appear that this requirement had to be fulfilled before gender reassignment surgery could be authorised. For the Court, even assuming that relevant arguments had been advanced for the refusal of the applicant’s request, they could not be considered sufficient. For that reason there had been a breach of Article 8.