EGMR

[...]

50. Having identified the relevant factors, the domestic courts focused their assessment of the first applicant’s situation on the nature and gravity of the offence committed. In this regard, the Court notes that, although the first applicant’s offence was serious, it was not punished by actual imprisonment but by a suspended conditional sentence (see, by contrast, Veljkovic-Jukic v. Switzerland, no. 59534/14, §§ 6-7, 21 July 2020; K.A. v. Switzerland, no. 62130/15, § 49, 7 July 2020; and Ukaj v. Switzerland, no. 32493/08, § 37, 24 June 2014).

51. However, having established that the degree of culpability was low, the domestic courts merely referred to the fact that the first applicant had confessed from the outset, that he had cooperated with the police and that there was a favourable prognosis as to the risk of recidivism (see, by contrast, Z v. Switzerland, cited above, § 24, where there was a proven risk of recidivism as the applicant had committed an offence of illegal surveillance shortly after completing his probationary period, and Vasquez v. Switzerland, no. 1785/08, § 46, 26 November 2013, where there was a proven risk of recidivism given the applicant’s record of difficulties controlling his sexual instincts after his conviction).

52. Moreover, the domestic courts merely mentioned that shortly after the expulsion decision was issued in July 2018, the first applicant found a fulltime job, which he kept until he was expelled from Switzerland two years later, and that he had shown good behaviour throughout the period (see paragraph 16 above). The Government implied that such behaviour was to be expected from the first applicant, given that he had received a suspended prison sentence (see paragraph 37 above). However, in their assessment, the domestic courts failed to consider that, while the fear of a suspended sentence turning into an actual prison term might have played a role, the first applicant’s overall good behaviour, his ability to secure stable employment shortly after his conviction, and the absence of any subsequent administrative or criminal offenses demonstrated his genuine intention to prove that he was not a danger to public safety. This oversight neglected evidence of the first applicant’s rehabilitation and commitment to lawful conduct.

53. The principle of proportionality requires, inter alia, that account be taken of personal conduct and the impact on family life (see paragraph 28 above). The domestic courts did not question the genuineness of his family life or the negative impact that the five-year expulsion would have on it. They argued that the second applicant could either follow him to Bosnia and Herzegovina, where she had good prospects, or remain in Switzerland, making the separation a matter of choice (see paragraphs 10 and 16 above).

54. As for the applicants’ daughters, the courts concluded that given their age they could adapt to a new environment in Bosnia and Herzegovina and that their relocation would depend on the second applicant’s choice to follow her husband (see Jeunesse v. the Netherlands ([GC], no. 12738/10, § 109, 3 October 2014).

55. In the light of the foregoing, the Court finds that, in imposing and upholding the five-year expulsion, the domestic courts did not satisfactorily apply the Court’s case-law mandating a careful balancing of the individual and public interests. The courts failed to give due weight to certain aspects. These include the first applicant’s low level of culpability, the fact that his sentence was suspended, his lack of a criminal record, the fact that he no longer posed a threat to public safety, his status as a long-term immigrant and the adverse effect of the expulsion on the members of his family.

56. In the light of the above, the Court considers that there has been a violation of Article 8 of the Convention. [...]