EUROPEAN COURT OF HUMAN RIGHTS
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REF00000576 |
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Document type |
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Judgment (Merits) |
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Title |
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CASE OF BOUGHANEMI v. |
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Application number |
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00022070/93 |
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Date |
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Respondent |
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Conclusion |
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No violation of Art. 8
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Published in |
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Reports 1996-II |
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Keywords |
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RESPECT FOR FAMILY
LIFE ; PREVENTION OF DISORDER ; PREVENTION OF CRIME ; NECESSARY IN A
DEMOCRATIC SOCIETY |
In the case of Boughanemi
v.
The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of Rules of Court A (2), as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr A. Spielmann,
Mr N. Valticos,
Mr S.K. Martens,
Mr A.N. Loizou,
Mr A.B. Baka,
Mr M.A. Lopes Rocha,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,
Having deliberated in private on
Delivers the following judgment, which was adopted on the last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 16/1995/522/608. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
2.
Rules A apply to all cases referred to the Court before the entry into
force of Protocol No. 9 (P9) (
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PROCEDURE
1. The case was referred to the Court by the
European Commission of Human Rights ("the Commission") and by the
French Government ("the Government") on 1 March and
The Commission's request referred to
Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby
2. In response to the enquiry made in
accordance with Rule 33 para. 3 (d) of Rules of Court
A, the applicant stated that he wished to take part in the proceedings and
designated the lawyer who would represent him (Rule 30). By a letter of
3. The Chamber to be constituted included ex
officio Mr L.-E. Pettiti,
the elected judge of French nationality (Article 43 of the Convention) (art.
43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 4 (b)). On
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Government, the
applicant's lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38).
Pursuant to the orders made in consequence, the registry received the
Government's memorial on
On
5. On
6. In accordance with the President's
decision, the hearing took place in public in the
There appeared before the Court:
(a) for the Government
Mr M. Perrin de Brichambaut, Director of Legal Affairs, Ministry of Foreign Affairs, Agent,
Mr J. Cochard, Emeritus President of the Social Division of the Court of Cassation and President of an association for the prevention of procuring,
Mrs M. Pauti, Head of the Comparative and International Law Office, Department of Civil Liberties and Legal Affairs, Ministry of the Interior,
Mrs S. Crouzier, assistant at the Legal Affairs Department, Ministry of Foreign Affairs, Counsel;
(b) for the Commission
Mr J.-C. Geus, Delegate.
The Court heard addresses by Mr Geus, Mr Perrin de Brichambaut and Mr Cochard.
AS TO THE FACTS
I. Particular circumstances of the case
7. Mr Kamel Boughanemi was born on
A. The applicant's criminal record
8. The applicant was convicted on a number
of occasions. On
B. The deportation procedure
1. The deportation order
9. On
"...
Having regard to sections 23 and 24 of
Ordinance no. 45-2658 of
Having regard to Decree no. 82-440 of
Whereas Kamel Boughanemi ... committed the following offences: on 21 August 1981 a burglary; on 21 November 1981 an assault on the person of a representative of the public authority who was performing his duties; on 25 January 1983 an assault; and from 26 September 1986 to 10 October 1986, acts amounting to living on the earnings of prostitution with aggravating circumstances;
Whereas on account of his behaviour the presence of this foreign national on French territory represents a threat to public order;
...
IT IS HEREBY ORDERED AS FOLLOWS
Article 1: the above-mentioned person is enjoined to leave the French territory;
Article 2: the Prefect of Police and the prefects are instructed to serve and execute this order. ..."
10. The deportation order was executed on
11. On
2. The application to have the deportation order rescinded
12. On
"...
I hereby inform you that the
deportation order was made by the competent authorities in view of the nature
and increasing gravity of the offences committed by the applicant. The threat to public order was also assessed
with reference to Mr Boughanemi's
general conduct as was required under the circular on the implementation of the
Law of
In addition, the Lyons [
It is accordingly impossible for me to
grant your request. The deportation
order of
..."
3. The application for judicial review
(a) In the
13. On
In its judgment of
"...
Under section 23 of the Ordinance of 2 November 1945, as amended in particular by the Law of 2 August 1989, 'subject to the provisions of section 25, deportation may be decided by order of the Minister of the Interior if an alien's presence on French territory constitutes a serious threat to public order. The deportation order may be rescinded at any time by the Minister of the Interior ...' Although section 25, as amended by the aforementioned Law, prohibits the Minister, save in cases of extreme urgency as provided for in section 26, from ordering the deportation of certain categories of alien, that provision cannot be usefully invoked to support an application to have a previously issued deportation order rescinded. It is exclusively a matter for the Minister to whom such an application has been made to assess pursuant to section 23 whether the presence of the person concerned on French territory constitutes at the date on which he gives his decision a serious threat to public order.
In the first place, it follows from
the foregoing that the submission based on the fact that Mr
Boughanemi has lived continuously in France since the
age of 8 and that for that reason, in accordance with the new section 25 of the
Ordinance of 2 November
Secondly, an appeal brought against the deportation decision of 8 March 1988 alleging that it was an abuse of authority was dismissed as unfounded by a judgment of this court on 16 March 1989. That decision carries with it the authority of res judicata, which precludes Mr Boughanemi from pleading the unlawfulness of that measure in support of his submissions directed against the refusal to rescind it.
Finally, the documents in the file show that the Minister, who took his decision in the light of all the circumstances of the case, did not make a manifest error of assessment in concluding, on the basis of the acts that gave rise to the applicant's being arrested and prosecuted on several occasions between 1981 and 1988 and aspects of Mr Boughanemi's conduct, that the latter's presence on French territory constituted a serious threat to public order and in refusing on those grounds to rescind the deportation order made against him.
It follows from all the foregoing considerations that the applicant's submission that the impugned decision is vitiated as an abuse of authority is unfounded and his application to have it set aside on that ground must fail."
(b) In the Conseil d'Etat
14. On
"...
Although the wording of section 25 of the above-mentioned Ordinance of 2 November 1945 was amended by the Law of 2 August 1989, Mr Boughanemi cannot usefully rely on this change in the legal position in order to plead that the Minister of the Interior was under a duty to rescind the deportation order issued against him under previous legislation concerning aliens. It was exclusively a matter for the Minister to whom an application for such an order to be rescinded has been made to determine whether, in accordance with section 23 of the Ordinance of 2 November 1945 as in force at the date of the application, the presence of the person concerned on French territory represented a serious threat to public order.
It appears from the documents in the
file that the Minister, who took his decision in the light of all the evidence
in the case, did not make a manifest error of assessment in finding that the
presence in France of the appellant, who had committed repeated and
increasingly serious offences, including that of living on the earnings of
prostitution with aggravating circumstances, still represented, as at 10 August
In the circumstances of this case,
the Minister of the Interior's refusal to rescind the deportation order made against
Mr Boughanemi, who returned
to France and lived there illegally after the execution of that deportation order,
did not interfere with the latter's family life to an extent that exceeded what
was necessary to preserve public order. Thus the submission that the refusal to
rescind the deportation order of
..."
4. The deportation
15. Mr Boughanemi was arrested on
C. The statements of Miss S.
16. On
"As partner (concubine) and mother of the child of Mr Kamel Boughanemi, I wish by this letter to draw your attention to our situation.
The difficulty of getting his identity papers back makes it impossible for us to lead a normal life.
There is also the fact that, as I am myself unemployed, my financial circumstances make it impossible for me to give him either moral or financial support. What is more, I am his partner and, despite all his efforts to be recognised as a normal citizen, it is unfortunately impossible for us to live together. Faced with all the problems raised by his getting administrative recognition, I write to you in the hope that you will take account of the fact that both he and I are acting in good faith.
..."
On
"...
I do know Kameledine Boughanemi. I've known him for about three years. I lived with him from the end of 1992 till Christmas 1993 when we separated because of a disagreement.
When we lived together he was out of work. He lived at my place ... I paid for his keep.
He never gave me any money because he didn't have any.
He didn't recognise my son until April 1994, because to begin with I wasn't too keen on the idea.
So far he has never sent any money
for our child. He calls me from time to time to find out if there is any news
about his application to the
I have nothing else to say on this matter.
..."
II. Relevant domestic law
17. Deportation is governed by
Ordinance no. 45-2658 of 2 November 1945 concerning the conditions of entry and
residence of aliens in France, as amended by, inter alia, the following Laws:
no. 81-973 of
A. The rules governing deportation
1. Normal procedure
(a) Principles and procedure
18. According to the first paragraph
of section 23 of the Ordinance, as amended by the Law of
The Law of
19. Section 24, as amended by the
Laws of
"Deportation as provided for in section 23 may be ordered only where the following conditions are satisfied:
1° The alien must be given advance notice in accordance with the conditions laid down in a decree of the Conseil d'Etat;
2° The alien shall be summoned to be interviewed by a board which is convened by the prefect and is composed as follows:
the President of the tribunal de grande instance of the administrative capital of the département or a judge delegated by him, chairman;
a judicial officer (magistrat) designated by the general assembly of the tribunal de grande instance of the administrative capital of the département; and
an administrative court judge.
The head of the aliens' department at the prefecture shall act as rapporteur; the director of health and social affairs of the département or his representative shall be heard by the board. They shall not attend the board's deliberations.
The summons, which must be served on the alien at least eight days before the board's meeting, shall inform him that he has the right to be assisted by a lawyer or by any other person of his choice and to be heard with the help of an interpreter.
The alien may request legal aid in
accordance with the conditions laid down in Law no. 72-11 of
The board's hearing shall be public. The chairman shall ensure the proper conduct of the proceedings. All the orders made by him to that end must be executed immediately. Before the board the alien may put forward all the reasons that militate against his deportation. A report recording the alien's statements shall be transmitted, together with the board's opinion, to the Minister of the Interior, who shall give a decision. The board's opinion shall also be communicated to the person concerned."
The Law of
"3° If the board issues an opinion opposing deportation, a deportation order may not be made."
The latter provision was however
repealed by the Law of
(b) Protected aliens
20. Section 25 of the Ordinance, as
amended by the Law of
"A deportation order made under section 23 may not be issued against the following persons:
1° A minor alien under 18 years of age, unless a deportation or removal order has been made against the persons who actually provide for his or her maintenance and no other person lawfully residing in France is in a position to so provide for him or her; in the case of a minor alien under 16 years of age, the opinion of the deportation board of the département must be in favour of deportation;
2° An alien, who has been married for at least one year and whose spouse is a French national, provided that the two spouses genuinely live together;
3° An alien who is the father or the
mother of a French child residing in
4° An alien who proves by any means that he has habitually resided in France since the age of 10 or younger or for over ten years and who has not been convicted with final effect of an offence for which he or she has been sentenced to a non-suspended term of imprisonment of at least six months or a suspended term of one year or several terms of imprisonment whose aggregate is at least equal to such periods;
5° An alien who is in receipt of an industrial accident disability pension paid by a French institution where his or her permanent and partial disability is at least 20%."
21. The Law of
"A deportation order made under section 23 may not be issued against the following persons:
1° A minor alien under 18 years of age;
2° An alien who proves by any means
that he has habitually resided in
3° An alien who proves by any means that he has habitually resided in France for more than fifteen years or an alien who has lawfully resided in France for more than ten years;
4° An alien, who has been married for at least six months and whose spouse is a French national;
5° An alien who is the father or the
mother of a French child residing in
6° An alien who is in receipt of an industrial accident or occupational disability pension paid by a French institution where his or her permanent disability is at least 20%;
7° An alien residing lawfully in France by virtue of one of the residence permits provided for in this Ordinance or in the international agreements, who has not been sentenced with final effect to a non-suspended term of imprisonment of one year or more.
..."
The same law added a paragraph, which was worded as follows:
"The aliens referred to in sub-paragraphs 1° to 6° may not be the subject of a removal order made under section 22 of this Ordinance or of an exclusion order made by a court under section 19 of this Ordinance prohibiting them from entering the territory."
22. Section 25 was further amended
and supplemented by the Laws of
"A deportation order made under section 23 may not be issued against the following persons:
1° A minor alien under 18 years of age;
2° An alien who proves by any means
that he has habitually resided in
3° An alien who proves by any means that he has habitually resided in France for more than fifteen years or an alien who has lawfully resided in France for more than ten years, unless for the whole of this period he has been in possession of a temporary residence permit bearing the word 'student';
4° An alien, who has been married for at least one year and whose spouse is a French national provided that they have not ceased to live together and that the spouse has kept his or her French nationality;
5° An alien who is the father or the
mother of a French child residing in
6° An alien who is in receipt of an industrial accident or occupational disability pension paid by a French institution where his or her permanent disability is at least 20%;
7° An alien residing lawfully in France by virtue of one of the residence permits provided for in this Ordinance or in the international agreements, who has not been sentenced with final effect to a non-suspended term of imprisonment of one year or more.
...
The aliens referred to in sub-paragraphs 1° to 6° may not be the subject of a removal order made under section 22 of this Ordinance.
By way of derogation from the provisions of this section, a deportation order under sections 23 and 24 may be made against an alien falling within one of the categories listed in sub-paragraphs 3°, 4°, 5° and 6° if he or she has been sentenced with final effect to a non-suspended term of imprisonment of at least five years."
2. Procedure for urgent cases
23. Section 26 of the Ordinance, as
amended by the Law of
"In cases of extreme urgency and by way of derogation from sections 23 to 25, deportation may be ordered where the alien's presence on French territory constitutes a particularly serious threat to public order.
This procedure may not however be applied in respect of minors under the age of 18."
24. Section 26 was subsequently
amended by the Law of
"Deportation may be ordered:
(a) in cases of extreme urgency, by way of derogation from section 24 (2°);
(b) where such a measure constitutes an absolute necessity for the security of the State and public safety, by way of derogation from section 25.
In cases of extreme urgency and where the measure is an absolute necessity for the security of the State and public safety, deportation may be ordered by way of derogation from sections 24 (2°) and 25.
The procedures provided for in this section may not be applied in respect of a minor alien under 18."
B. Applications to have a deportation order rescinded
25. The second paragraph of section
23 of the Ordinance, as amended by the Law of
"The deportation order may at any time be rescinded by the Minister of the Interior. Where the application for an order to be rescinded is submitted on the expiry of a period of five years from the actual execution of the order, it may be rejected only after the opinion of the board provided for in section 24 has been sought. The person concerned may be represented before the board."
The wording that applied prior to the
Law of
However, this provision was again
amended by the Law of
C. Sanctions
26. Section 27 of the Ordinance, as
amended by the Law of
"Any alien who has evaded or attempted to evade the execution of a deportation order or a removal order or who, having been deported or being subject to a prohibition on entering the territory, re-enters the national territory without an authorisation shall be liable to a term of imprisonment of from six months to three years.
The court may in addition issue an order banning a person so convicted from re-entering the territory for a period not exceeding ten years.
The ban on re-entering the territory automatically entails the convicted person's removal from French territory, on completion of his prison sentence where appropriate."
27. The Law of 31 December 1991 states that the same penalty applies to "any alien who has evaded or attempted to evade the execution of a measure refusing him or her entry into France" (the first paragraph as supplemented) or "who has not submitted to the relevant administrative authority the travel documents making possible the execution of one of the measures referred to in the first paragraph or who, where he or she has no such documents, has failed to communicate the information making it possible to execute such measures" (new paragraph inserted between the first and second paragraphs).
PROCEEDINGS BEFORE THE COMMISSION
28. Mr Boughanemi applied to the Commission on
29. The Commission declared the
application (no. 22070/93) admissible on
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-II), but a copy of the Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
"request the Court to dismiss Mr Boughanemi's application".
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
In Mr Boughanemi's submission, his deportation by the French authorities interfered with his private and family life and breached Article 8 (art. 8) of the Convention, which is worded as follows:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The Government contested this contention, whereas the Commission accepted it.
A. Paragraph 1 of Article 8 (art. 8-1)
32. It is necessary in the first
place to determine whether the applicant can claim to have had in
33. According to the Government, the
applicant has failed to show that he had close and real ties with his parents
and his brothers and sisters. Admittedly they lived in
In addition, the applicant's
relationship with a woman and the fact that he had fathered a child,
circumstances to which he had referred before the Commission, could not be
taken into account. He had begun to live with the woman and had recognized the
child after the deportation order had been issued and after the judgment of the
Conseil d'Etat of
34. The Commission took the view that the execution of the deportation order amounted to an interference with the applicant's right to respect for his private and family life.
35. The Court considers that the Government's doubts as to the reality of family ties between Mr Boughanemi and Miss S. are not wholly unfounded. It would appear that their life together did not begin until after the applicant's return as an illegal immigrant and only lasted one year. When he was deported for the second time the couple had already separated; this separation occurred several months before the child's birth.
However, these observations do not
justify finding that the applicant had no private and family life in
In the first place, Mr Boughanemi recognised,
admittedly somewhat belatedly, the child born to Miss S. The concept of family
life on which Article 8 (art. 8) is based embraces, even where there is no
cohabitation, the tie between a parent and his or her child, regardless of
whether or not the latter is legitimate (see, mutatis mutandis, the judgments
of Berrehab v. the
Secondly, Mr
Boughanemi's parents and his ten brothers and sisters
are legally resident in
Mr Boughanemi's deportation had the effect of separating him from them and from the child. It can therefore be regarded as an interference with the exercise of the right guaranteed under Article 8 (art. 8).
B. Paragraph 2 of Article 8 (art. 8-2)
36. It is accordingly necessary to determine whether the deportation in issue satisfied the conditions laid down in paragraph 2 (art. 8-2), namely whether it was "in accordance with the law", whether it pursued one or more of the legitimate aims listed in that paragraph (art. 8-2) and whether it was "necessary in a democratic society" to attain such aim or aims.
1. "In accordance with the law"
37. It is not in dispute that the
order for Mr Boughanemi's deportation
was based on sections 23 and 24 of the Ordinance of
2. Legitimate aim
38. The Government and the Commission considered that the interference in question pursued aims that were fully consistent with the Convention, namely "the prevention of disorder" and the prevention of "crime". The Court arrives at the same conclusion.
3. "Necessary in a democratic society"
39. The Government maintained that
the interference was proportionate to the aims pursued. They drew attention to
the number of offences committed by Mr Boughanemi and the seriousness of the last offence which
had led to his conviction for living on the earnings of prostitution with
aggravating circumstances. They pointed to those aggravating circumstances,
namely violence, the fact that there were several perpetrators and the pressure
brought to bear on the victim to prostitute herself outside the territory of
mainland
In addition, the prejudice to the
applicant's private and family life caused by the interference should not be
exaggerated. The applicant had failed to show either that he had particularly close
ties with his family living in
40. The Commission rejected this line
of argument. It observed, as regards the extent of the interference with the applicant's
private and family life, that he had arrived in
41. The Court acknowledges that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens and notably to order the expulsion of aliens convicted of criminal offences.
However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8 (art. 8-1), be necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, among other authorities, the judgments of Beldjoudi v. France, 26 March 1992, Series A no. 234-A, p. 27, para. 74, and Nasri v. France, 13 July 1995, Series A no. 320-B, p. 25, para. 41). In determining whether the interference was "necessary", the Court makes allowance for the margin of appreciation that is left to the Contracting States in this field (see, for instance, the Berrehab judgment cited above, p. 15, para. 28).
42. Its task consists of ascertaining whether the deportation in issue struck a fair balance between the relevant interests, namely the applicant's right to respect for his private and family life, on the one hand, and the prevention of disorder or crime, on the other.
43. The applicant arrived in
44. However, he kept his Tunisian
nationality and, so it would seem, never manifested a wish to become French. It
is probable, as the Government pointed out, that he retained links with
In addition, in the Court's view, the
circumstances of the present case are different from those in the cases of Moustaquim v.
no. 193), Beldjoudi
v. France and Nasri v.
Above all the Court attaches particular importance to the fact that Mr Boughanemi's deportation was decided after he had been sentenced to a total of almost four years' imprisonment, non-suspended, three of which were for living on the earnings of prostitution with aggravating circumstances (see paragraphs 8 and 39 above). The seriousness of that last offence and the applicant's previous convictions count heavily against him.
45. Having regard to the foregoing, the Court does not find that the applicant's deportation was disproportionate to the legitimate aims pursued. There has accordingly been no violation of Article 8 (art. 8).
FOR THESE REASONS, THE COURT
Holds by seven votes to two that there has been no violation of Article 8 (art. 8) of the Convention.
Done in English and in French, and
delivered at a public hearing in the Human Rights Building,
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of Rules of Court A, the following separate opinions are annexed to this judgment:
(a) concurring opinion of Mr Pettiti;
(b) dissenting opinion of Mr Martens;
(c) dissenting opinion of Mr Baka.
Initialled: R. R.
Initialled: H. P.
CONCURRING OPINION OF JUDGE PETTITI
(Translation)
I voted with the majority to find no violation of Article 8 (art. 8) of the Convention. However, I consider that a different reasoning could have been adopted.
In view of the particular circumstances of the case (the applicant being a habitual offender and convicted of living on the earnings of prostitution), it would have been preferable to take as the starting-point for the Court's decision Article 1 (art. 1) of the Convention, which does not require States to refrain from deporting aliens who have repeatedly committed criminal offences, and then to find that there had been no violation of the right to respect for family life. Family life implies a degree of cohesion on the part of its members incompatible with conduct of such a kind as living on the earnings of prostitution with aggravating circumstances.
It would thus no longer have been
necessary to examine the question whether or not there had been an interference.
The fact that a person has brothers and sisters is not sufficient to constitute
family life (see paragraph 43 of the judgment). Moreover, the majority did not
make clear what the Court's approach was to an application seeking to rely on
Article 8 (art. 8) but brought by an alien who had returned unlawfully to live
in
Once again cases of deportation brought before the Court highlight the need for the States to adopt a European policy clarifying the extent of their commitments in this field. It is not necessary in a case such as the present one to examine whether a fair balance has been struck between the general interest and the applicant's individual interest.
The general interest of society and the family cannot be compared with and set against that of living on the earnings of prostitution. The member States of the Council of Europe must also take into account the protection of women who are the victims of prostitution forced on them by pimps.
The proper reasoning in cases
concerning deportation should, in my view, be different from that adopted in
the Moustaquim v.
It should also be noted that few
member States of the Council of Europe follow a policy of family reunion of the
sort adopted by
DISSENTING OPINION OF JUDGE MARTENS
2. There are several ways of dealing with this issue.
3. Firstly, of course, there is the approach which the majority of the Court has followed up to now. Its starting-point is that the Convention does not protect aliens from expulsion, not even when they are integrated. They may, however, rely on the Convention to the extent that expulsion constitutes interference with their right to respect for their family life. If they do so, it is for the Court to assess whether the interference is justified under Article 8 para. 2 (art. 8-2).
4. This traditional approach has two obvious disadvantages.
Firstly, not every integrated alien has a family life.
Secondly, it leads to a lack of legal
certainty. National administrations and national courts are unable to predict
whether expulsion of an integrated alien will be found acceptable or not. The
majority's case-by-case approach is a lottery for national authorities and a
source of embarrassment for the Court. A source of embarrassment since it
obliges the Court to make well-nigh impossible comparisons between the merits of
the case before it and those which it has already decided. It is - to say the
least - far from easy to compare the cases of Moustaquim
v.
_______________
1. See paragraph 44 of the Court's judgment.
_______________
5. The first disadvantage of the majority approach is easily mended by accepting that expulsion of integrated aliens at any rate constitutes interference with their private life. I argued in favour of that approach in my concurring opinion in Beldjoudi (2). This approach has, moreover, been advocated by Judges De Meyer (3), Morenilla (4) and Wildhaber (5). In my opinion the Court would already considerably improve its doctrine if it accepted this approach. I very much hope that the wording of paragraph 42 of the Court's judgment - where it refers to "the applicant's right to respect for his private and family life" - shows the Court's willingness to do so.
_______________
2. Series A no. 234-A, pp. 37 et seq.
3. Series A no. 234-A, p. 35.
4. Series A no. 320-B, p. 31.
5. Series A no. 320-B, p. 32.
_______________
6. However, accepting the private-life approach does not, of course, in itself remove the second disadvantage of the traditional approach, since under the private-life approach it will likewise be necessary to assess whether the interference was justified.
7. There is only one way to remove all uncertainty and that is to accept the thesis advocated first by Judge De Meyer and recently also by Judge Morenilla (6). Judges De Meyer and Morenilla start from the idea that integrated aliens - that is, aliens who have lived all, or practically all, their lives within a State - should no more be expelled than nationals. Expulsion of nationals is forbidden by Article 3 para. 1 of Protocol No. 4 (P4-3-1), and Judges De Meyer and Morenilla assert that expulsion of integrated aliens is forbidden under Article 3 (art. 3) of the Convention. Accepting this thesis would, obviously, remove all uncertainty since Article 3 (art. 3) does not allow exceptions. Under this approach expulsion of an integrated alien per se constitutes a violation, whatever the crimes committed.
_______________
6. See notes 3 and 4.
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8. Although I share the idea that integrated aliens should no more be expelled than nationals, I find it difficult to accept that there cannot be exceptions. I therefore hold that although as a rule expelling integrated aliens should constitute a violation of their right to respect for their private life, under very exceptional circumstances such expulsion should be held justified. I have the feeling that Judge Wildhaber's concurring opinion in the Nasri case (7) goes in the same direction, although he would probably be inclined to be less severe as to what comes within the scope of the exception.
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7. See note 5.
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10. I agree that living on the earnings of prostitution with aggravating circumstances is a serious and, moreover, a contemptible crime, but I find, nevertheless, that for present purposes it falls within the category of "normal crimes" which are not serious enough to qualify as exceptional circumstances justifying expulsion of an integrated alien, since for normal crimes normal criminal sanctions and measures should suffice, as they have to suffice for crimes of nationals.
11. On these grounds I voted for a violation.
DISSENTING OPINION OF JUDGE BAKA
Like the majority I am of the view that the deportation order amounted to an interference with the applicant's private and family life. I also share the view that the deportation was in accordance with the law and served a legitimate aim.
On the other hand, unlike the majority, I consider that the deportation order was not necessary in a democratic society, because it was disproportionate to the legitimate aim pursued, and consequently that there has been a violation of Article 8 (art. 8) of the Convention in the present case.
In my assessment the applicant has
most of his family and social ties in
Taking into account all these factors and also that the applicant left Tunisia at the age of 8 with a knowledge of Arabic which definitely does not amount to an adequate command of everyday language for a grown-up and that he "had most of his schooling" in France, I have come to the conclusion that a fair balance has not been struck between the protected interests. Under these circumstances, the expulsion could completely ruin private and family life while giving very little protection to the prevention of crime and disorder.
I am also not persuaded by the argument of the Court that the applicant's "deportation was decided after he had been sentenced" and that the "seriousness of that last offence and the applicant's previous convictions count heavily against him".
In this respect, I believe that the
applicant, who has spent most of his life (twenty-two years) in
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