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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> NASRI v. FRANCE - 19465/92 [1995] ECHR 24 (13 July 1995)
URL: http://www.bailii.org/eu/cases/ECHR/1995/24.html
Cite as: [1996] 21 EHRR 458, 21 EHRR 458, [1995] ECHR 24, (1996) 21 EHRR 458
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JISCBAILII_CASE_IMMIGRATION
In the case of Nasri v. France (1),
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 R. Bernhardt,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr J. De Meyer,
Mr J.M. Morenilla,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr D. Gotchev,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 25 February and
21 June 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 18/1994/465/546. 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) and thereafter only to
cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983,
as amended several times subsequently.
_______________
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 20 May and 7 July 1994
respectively, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 19465/92)
against the French Republic lodged with the Commission under
Article 25 (art. 25) by an Algerian national, Mr Mohamed Nasri,
on 30 January 1992. Before the Commission the applicant was
designated by the initial N.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby France
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46); the Government's application referred to Article 48
(art. 48). The object of the request and of the application was
to obtain a decision as to whether the facts of the case
disclosed a breach by the respondent State of its obligations
under Articles 3 and 8 (art. 3, art. 8) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant indicated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 30).
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. 3 (b)). On 28 May 1994,
in the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr R. Bernhardt,
Mr F. Matscher, Mr J. De Meyer, Mr J.M. Morenilla,
Mr M.A. Lopes Rocha, Mr L. Wildhaber and Mr D. Gotchev
(Article 43 in fine of the Convention and Rule 21 para. 4)
(art. 43).
4. As President of the Chamber (Rule 21 para. 5),
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 order made in consequence, the
Registrar received the Government's and the applicant's memorials
on 14 November and 5 December 1994 respectively. On
10 February 1995 the Commission produced various documents, as
requested by the Registrar on the President's instructions.
5. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 21 February 1995. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr M. Perrin de Brichambaut, Director of
Legal Affairs, Ministry of Foreign Affairs, Agent,
Mrs M. Merlin-Desmartis, administrative court judge
on secondment to the Legal Affairs Department,
Ministry of Foreign Affairs,
Mrs M. Pauti, Head of the Comparative
and International Law Office,
Department of Civil Liberties and Legal Affairs,
Ministry of the Interior, Advisers;
(b) for the Commission
Mr J.-C. Geus, Delegate;
(c) for the applicant
Mr B. Desclozeaux, avocat, Counsel,
The Court heard addresses by Mr Perrin de Brichambaut,
Mr Geus and Mr Desclozeaux and also their replies to its
questions and to the questions of one of its members.
AS TO THE FACTS
I. Particular circumstances of the case
6. Mr Nasri, an Algerian national, was born deaf and dumb in
June 1960, in Algeria. He is the fourth of ten children, one of
whom is deceased and six of whom are French nationals. He came
to France with his family in February 1965. He is currently
subject to a compulsory residence order pursuant to which he is
required to live with his parents, at Nanterre (Hauts-de-Seine).
A. The applicant's schooling
7. According to the information provided to the Court, the
applicant's schooling may be summarised as follows.
8. On their arrival in France in 1965 Mr and Mrs Nasri
wanted to enrol their son in kindergarten, but he was refused
admittance on account of his handicap. They then sought to have
him admitted to the Institut Saint-Jacques in Paris, a specialist
establishment for the deaf and dumb. The institute could not
however take him because of a lack of places and because his
intellectual level was not regarded as sufficient. As a result
Mr Nasri was not able to attend a school until 1968.
In that year, after a social worker had intervened, he
was admitted to the Centre audiométrique médico-psychopédagogique
at Boulogne (Hauts-de-Seine) (a school specialising in hearing
and speech difficulties). There he underwent therapy for his
condition and received training adapted to his needs. On
11 December 1971 he was expelled for violent behaviour.
9. He then spent a further period with no schooling or
training, which lasted until 1974, when he entered a training
centre for the deaf and dumb at Tours (Indre-et-Loire). However,
as his parents were unable to pay the boarding fees, he was
returned to them after seven months.
On 20 September 1976 he began training as a house
painter. On 20 October 1977, following various incidents, he was
obliged to quit.
10. The applicant has indicated that he has no proficiency in
deaf and dumb sign language, can neither read nor write and
expresses himself in elementary fashion through signs that are
intelligible only to his immediate circle of family and friends.
B. The applicant's criminal convictions
11. As early as 1977 the applicant came to the notice of the
police as a result of a number of thefts. He appeared in court
on several occasions.
12. At 10 March 1992 his police file recorded the following
convictions:
(a) on 3 November 1981, 2 February 1982 and 21 January 1983 he
was sentenced by the Paris Criminal Court to terms of
imprisonment ranging from six months to one year for theft and
attempted theft;
(b) on 15 May 1986 he was sentenced to five years' imprisonment,
two of which were suspended, and five years' probation by the
Hauts-de-Seine Assize Court for gang rape;
(c) on 17 September 1987 he was sentenced to one year and three
months' imprisonment by the Nanterre Criminal Court for theft
with violence;
(d) on 10 November 1988 he was sentenced to ten months'
imprisonment by the Paris Court of Appeal for theft with
violence;
(e) on 7 September 1989 he was fined two thousand francs by the
Paris Criminal Court for assaulting a public official;
(f) on 10 December 1990 he was sentenced to six months'
imprisonment by the Versailles Court of Appeal for theft with
violence and receiving stolen goods.
In addition, on 21 May 1982 he had been given a suspended
sentence of eight days' imprisonment for criminal damage and on
13 May 1992 he was sentenced to eight months' imprisonment for
theft. On 31 March 1993 he was convicted of theft with violence,
but the Court does not have any further details.
C. The applicant's deportation
13. On 21 August 1987 the Minister of the Interior ordered
the applicant's deportation on the ground that his presence on
French territory represented a threat to public order. The
order, which was issued pursuant to sections 23 and 24 of the
Order of 2 November 1945 as amended (see paragraph 27 below),
cited the applicant's five recent convictions, including that of
15 May 1986 (see paragraph 12 above).
14. On 10 March 1988 the Versailles Administrative Court
quashed the above-mentioned order. It found that the Minister
had not been entitled to rely on the 1945 Order as amended by the
Act of 9 September 1986, because the provisions of that Act were
stricter than those that had previously been in force. To rely
on them in the applicant's case, in respect of criminal
convictions which all preceded that date, amounted to wrongfully
modifying established situations.
15. On 15 February 1991 the Conseil d'Etat overturned the
Administrative Court's judgment and dismissed Mr Nasri's
applications for the quashing of the order or for a stay of
execution. It took the view that the deportation of an alien was
not a sanction, but an administrative measure exclusively
designed to prevent disorder and to preserve public safety.
Accordingly, the provisions of the Act of 9 September 1986 could
be applied as soon as they entered into force to aliens
satisfying the conditions laid down therein, whatever the date
of the convictions on which the measure was based.
16. On 30 January 1992 the applicant complied with a summons
requiring him to report to the Hauts-de-Seine Prefecture at
Nanterre, where he was first taken into police custody and then
placed in administrative detention by order of the Prefect, for
a period of twenty-four hours, with a view to his deportation to
Algeria. As it proved impossible to deport him within that
period, the Nanterre tribunal de grande instance issued a
compulsory residence order dated 31 January requiring Mr Nasri
to live with his parents.
17. On 31 January 1992, relying on Articles 3, 6, and 8
(art. 3, art. 6, art. 8) of the Convention, Mr Nasri lodged an
application with the Paris Administrative Court challenging,
inter alia, the deportation order and the detention order.
On 28 October 1992 his application was dismissed.
According to the Administrative Court, the applicant's presence
on French territory represented a serious threat to public safety
in view of his numerous previous convictions, the gravity of the
offences committed and his persistent re-offending. The impugned
decision had not therefore constituted an infringement of his
right to a family life that was "disproportionate to the aims
pursued by the measure in question".
18. The deportation order has so far not been enforced, in
compliance with the request for a stay of execution made by the
President of the European Commission of Human Rights (see
paragraph 29 below).
On 4 February 1992 the Minister of the Interior issued a
compulsory residence order requiring Mr Nasri to live with his
parents "until such time as he is in a position to comply with
the deportation order concerning him". That measure has since
been renewed.
D. The reports concerning the applicant
1. The medical reports
19. In connection with the criminal proceedings brought
against the applicant, several expert reports were ordered with
a view to studying his personality, his behaviour and his social
environment.
(a) The reports predating the prosecution for rape
20. A report of a psychiatric examination effected in
October 1977 at the request of the investigating judge of the
Nanterre tribunal de grande instance presented the following
conclusions:
"The accused is an adolescent aged 17; he is deaf and
dumb and has not yet acquired the skills needed to cope
with his handicap; he is not mentally retarded or
mentally ill. He is, however, very easily influenced.
He is not insane within the meaning of Article 64 of the
Criminal Code, but his emotional immaturity and
intermittent personality disorders, combined with the
fact that he is deaf and dumb, mean that his criminal
responsibility is diminished to a considerable extent.
He is by no means an insane person. He is not dangerous
in a psychiatric sense. He can be restored to his
family. He is unlikely to respond to a criminal penalty
..."
21. A medico-psychological report drawn up on
26 November 1982 at the request of the investigating judge of the
Paris tribunal de grande instance, stated as follows:
"The subject's personal history is very sketchy, for the
very reason that he mimes more than he uses sign
language. None the less, we learn that he was born in
Algeria some twenty-two years ago; he is unable to
provide us with his precise date of birth. He indicates
that he came from Algeria to France while still a very
young child. Both parents are living. His father still
works. His mother stays at home and is described as an
invalid.
...
As regards his schooling, [he] indicates that he attended
a special school for the deaf and dumb, where he learnt
the trade of house painter. He further indicates that he
is unable to write and has to ask another deaf and dumb
person to assist him in that task. He does not know his
parents' address in Paris.
...
His intellectual level is very low. He is incapable of
accurately identifying significant dates in his life. He
indicates that he can neither write nor read. The
interpreter for the deaf and dumb tells us that he has a
very poor knowledge of sign language and that he uses
mime more than an appropriate language.
...
He should receive socio-professional supervision and be
helped to find employment genuinely compatible with his
condition."
(b) The reports drawn up in connection with the
rape prosecution
22. A report of a medico-psychological examination submitted
on 21 November 1983 notes:
"Mohamed Nasri appears to us to have only very limited
means of communication and of understanding of the world.
In his family and in society he has been in a situation
apart where he has built up a closed universe for
himself. As his communication with the outside world
remains rudimentary, it is often expressed in aggressive
terms, especially since he is only able to identify with
individuals who embody a certain aggressiveness towards
a social environment that has not provided him with the
means of communication he could expect. He thus appears
to have taken refuge in the North African community, the
only one to confer any status on him, but one which
places him in a situation where he manifests this status
by means of criminal or aggressive acts. That is what
makes any intervention or assistance difficult.
Mohamed Nasri has the level of understanding and
communication of a child. His perception of the world
remains rudimentary; his expression and comprehension are
poor. The therapy he has received has been unable to
equip him with proper and adequate means of communication
and he has had to revert, in a way that is regressive, to
his milieu of origin, with which he has to identify in
order to have a status and an identity. In his milieu of
origin, where he is integrated under the nickname which
establishes his difference, 'the mute', it is inevitable
that [he] should adopt attitudes of criminality and
aggression, which in view of his condition are the only
means he has of maintaining his status and identity."
23. A psychiatric report of the same date concluded as
follows:
"We know very little of a personal history that has been
marked by deaf-mutism and attempts at therapy which have
achieved very moderate results ... [He] spent his
childhood and his entire adolescence in France and has
never returned to Algeria, although he has kept his
Algerian nationality ... He lives with his parents, goes
out, hangs around, uses the pocket money that his mother
gives him; they now live in publicly subsidised housing
at Nanterre.
He was sent to prison a year or two ago for picking
pockets; while in prison he presented signs of acute
anxiety that made it necessary for him to be transferred
to a psychiatric ward, where he spent three months.
...
[His] intelligence, which was no doubt normal at the
outset, is now to be assessed in terms of intellectual
efficiency, namely he uses a limited number of signs and
his technique is rudimentary; his comprehension is
inadequate. He therefore has very little understanding
of abstract concepts of time, place, etc. ... His
scholastic accomplishments are limited: he cannot read,
or only titles, street names; he writes his name but
nothing else; and he has not mastered the mechanism of
addition involving the carrying-over of numbers. Our
interpreter sees him as a young deaf and dumb boy aged 7
or 8 who has never had the benefit of specialist
attention ..."
24. According to the findings of a psychiatric report of
31 July 1984:
"He is deaf and dumb and has received practically no
therapy. It is well known that such deficiencies, over
and above the mere physical defect, affect in a much more
general way the whole process of conceptualisation and in
particular the acquisition of moral values; it may
therefore be concluded that he does not obey the same
scales of values as a person who is normally integrated
in society and who hears normally; these psychological
factors should be taken into account when assessing the
offence that he has committed.
...
An examination of Mr Mohamed Nasri does not disclose any
major mental, psychological or behavioral anomalies
amounting to insanity; he is nevertheless a person who
has been uprooted, who is badly integrated, desocialised
and handicapped by his deaf-mutism with the implications
that that has for his process of conceptualisation and
his understanding of moral rules.
He was not insane within the meaning of Article 64 of the
Criminal Code at the material time. From a strictly
psychiatric point of view, the anomalies found are not
such as to diminish his responsibility.
He is susceptible to the imposition of a criminal
sanction. He does not need special treatment, but would
benefit from specialised supervision for his deaf-mutism,
which might improve the prognosis for his rehabilitation.
Placing him in a psychiatric hospital does not appear
desirable either in his interests or in those of the
community."
25. According to a medico-psychological report submitted on
18 June 1985:
"The examination reveals nothing to justify the
conclusion that [Mr Nasri] is not in a position to
understand normally social rules and prohibitions, or
that his capacity for self-control has been diminished by
a clear pathological process.
It is, on the other hand, evident that the frustration
that he feels, the difficulty of communicating, the
impossibility of expressing his wishes by word combine to
create the psychological conditions in which there is
very low resistance to acting out his desires."
2. The police report
26. A police report of 13 April 1992 concerning the applicant
states as follows:
"His handicap, deaf-mutism, is real and does not prevent
him from wandering the streets of Villeneuve-la-Garenne
and other villages at all hours of the day and night and
from assiduously frequenting the bars where he drinks
alcohol, which makes him aggressive or even violent.
...
He inspires terror in many inhabitants of Villeneuve and
also in his accomplices. He has been involved in
numerous incidents of theft or violence. This violent
and antisocial individual makes no effort whatsoever to
be integrated in our society and takes advantage of his
handicap and of the favourable provisions of the
administrative and justice systems. He is a real danger
to public order, especially since he appears to be the
leader of the young delinquents of Villeneuve owing to
the fear he inspires."
II. Relevant domestic law
27. Deportation of aliens is governed by the Order of
2 November 1945 concerning the conditions of entry and residence
of aliens in France. Section 23, as amended on 29 October 1981,
provides:
"Deportation may be ordered by an order of the Minister
of the Interior if the alien's presence on French
territory constitutes a serious threat to public order."
An Act of 9 September 1986 had deleted the word "serious"
from the above provision, but on 2 August 1990 the wording
adopted in 1981 was reinstated.
PROCEEDINGS BEFORE THE COMMISSION
28. Mr Nasri applied to the Commission on 30 January 1992
(application no. 19465/92). He complained that his deportation
to Algeria would entail a violation of Articles 3 and 8 (art. 3,
art. 8) of the Convention; he also alleged a breach of
Article 6 (art. 6).
29. The same day the President of the Commission indicated to
the French Government, pursuant to Rule 36 of the Commission's
Rules of Procedure, that it would be desirable in the interests
of the parties and the proper conduct of the proceedings for the
French authorities to refrain from deporting the applicant until
21 February 1992, the end of the next Commission session. The
Commission extended the application of Rule 36 several times.
30. On 11 May 1993 the Commission declared the application
admissible as regards the complaints concerning Articles 3
and 8 (art. 3, art. 8) of the Convention and inadmissible for the
rest.
In its report of 10 March 1994 (Article 31) (art. 31), it
expressed the opinion that the applicant's deportation to Algeria
would constitute a violation of Articles 3 (art. 3) (nineteen
votes to three) and 8 (art. 8) (twenty votes to two). The full
text of the Commission's opinion and of the two separate opinions
contained in the report is reproduced as an annex to this
judgment (1).
_______________
1. Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment
(volume 320-B of Series A of the Publications of the Court), but
a copy of the Commission's report is obtainable from the
registry.
_______________
FINAL SUBMISSIONS TO THE COURT
31. In their memorial the Government invited "the Court to
dismiss Mr Nasri's application".
32. The applicant asked the Court to hold that the execution
of the order for his deportation to Algeria would constitute a
violation of Articles 3 and 8 (art. 3, art. 8) and "to request
the French authorities purely and simply to annul [that] order
...".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
33. Mr Nasri maintained that his deportation by the French
authorities would infringe his right to respect for his family
life and would breach 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 Commission accepted this contention; the Government
did not.
A. Paragraph 1 of Article 8 (art. 8-1)
34. Like the Commission and the Government, the Court takes
the view that the execution of the impugned measure would amount
to an interference with the exercise by the applicant of his
right to respect for his family life.
B. Paragraph 2 of Article 8 (art. 8-2)
35. It accordingly falls to determine whether the deportation
in question would satisfy the conditions laid down in
paragraph 2, namely whether it would be "in accordance with the
law", whether it would pursue one or more of the legitimate aims
listed in that provision and whether it would be "necessary in
a democratic society" to attain the said aim or aims.
1. "In accordance with the law"
36. Like the participants in the proceedings before it, the
Court notes that the ministerial order of 21 August 1987 is based
on sections 23 and 24 of the Order of 2 November 1945, as
amended, concerning the conditions of entry and residence of
aliens in France (see paragraph 27 above). Mr Nasri did not
contest this and indeed the Conseil d'Etat found in its decision
of 15 February 1991 that the deportation order was lawful (see
paragraph 15 above).
2. Legitimate aim
37. The Government and the Commission considered that the
interference in question would pursue aims fully compatible with
the Convention: the "prevention of disorder" and the "prevention
of crime"; this was not disputed by the applicant.
The Court arrives at the same conclusion.
3. "Necessary in a democratic society"
38. Mr Nasri maintained that his deportation could not be
regarded as necessary in a democratic society. In view of the
fact that he was deaf and dumb, illiterate and with no command
of deaf and dumb sign language, he would have enormous
difficulties in communicating if he were removed from his family
circle, the only persons capable of understanding the signs he
used to express himself. His parents and his brothers and
sisters had not left France since 1965; six of his brothers and
sisters had acquired French nationality. He himself had never
severed links with his family; indeed, apart from certain periods
spent with his sister and his brother-in-law, he had always lived
at his parents' home. It was, moreover, there that he was
required to live under the compulsory residence order to which
he was currently subject.
In addition, the applicant had no knowledge of Arabic.
The little schooling he had been given had been received solely
in France and his contacts with the North African community were
confined to the second generation, the very large majority of
whom did not speak Arabic.
Most of the offences of which he had been convicted, such
as the thefts, had been petty offences. It was true that he had
also been convicted of rape, which conviction moreover lay at the
origin of his deportation. Nevertheless the Assize Court had
sentenced him to a term of imprisonment not exceeding five years
(emprisonnement) - rather than a term exceeding five years
(réclusion) -, part of which was suspended, and probation (see
paragraph 12 above). Since that offence, which was committed
in 1983, there had been no further instances of rape.
39. The Delegate of the Commission essentially subscribed to
the applicant's view. He drew attention to the need to take into
consideration the causes of Mr Nasri's behaviour. He had never
been given the psychiatric supervision that his condition
necessitated, despite the numerous recommendations made by the
experts consulted by the courts. It was therefore important to
qualify considerably the authorities' negative assessment of him.
40. The Government laid stress on the applicant's long
criminal record, which included some thirty arrests and ten or
so convictions over the period from 1981 to 1993. Between
1 January 1981 and 6 July 1993, he had spent one hundred and
three months in prison and each time he had been released he had
used his short periods of liberty to commit new offences; he had
been sentenced for the most recent such offence - theft with
violence - on 31 March 1993.
Nevertheless, the decision to deport the applicant had
been principally based on his conviction for rape. Because of
this crime, Mr Nasri's case was much more serious than that of
Mr Moustaquim or of Mr Beldjoudi (Moustaquim v. Belgium judgment
of 18 February 1991, Series A no. 193, and Beldjoudi v. France
judgment of 26 March 1992, Series A no. 234-A).
Furthermore the applicant had shown himself to be
perfectly capable of making himself understood and establishing
relationships outside his family circle. Several police reports
disclosed in this connection that he spent the majority of his
time with gangs of youths with whom he conducted a social life
that was as active as it was criminal.
In short, the serious and repeated breaches of public
order committed by the applicant outweighed the protection to be
accorded to his family life, the reality of which appeared in any
event disputable.
41. The Court reiterates 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, as
the most recent authority, the Beldjoudi judgment, cited above,
p. 27, para. 74).
42. In this instance the applicant's deportation was decided
following his conviction for gang rape. The perpetrator of such
a serious offence may unquestionably represent a grave threat to
public order. In the present case, however, there are other
aspects to be taken into account. Thus the Hauts-de-Seine Assize
Court accepted that there were extenuating circumstances and
sentenced the applicant to five years' imprisonment, two of which
were suspended, and probation. It also recognised implicitly
that Mr Nasri had not been the instigator of the offence in
question. In addition, as far as rape is concerned, the
applicant has not re-offended since that offence was committed,
in 1983.
43. Above all it is necessary to take account of Mr Nasri's
handicap. He has been deaf and dumb since birth and this
condition has been aggravated by an illiteracy which was the
result in particular of largely inadequate schooling, even though
this was to a certain extent attributable to the applicant since
on account of his bad behaviour he was expelled from the
establishments that he attended. Like the Delegate of the
Commission, who relied on the expert reports concerning the
applicant, the Court is inclined to the view that, for a person
confronted with such obstacles, the family is especially
important, not only in terms of providing a home, but also
because it can help to prevent him from lapsing into a life of
crime, all the more so in this instance inasmuch as Mr Nasri has
received no therapy adapted to his condition.
44. It should also be stressed that the applicant has always
lived with his parents - except for certain periods when he lived
with his sister. He moved with them when they moved house and
never severed his links with them. In this respect the fact that
he spends a lot of time out with "gangs" makes no difference.
The applicant's parents arrived in France with their
children in 1965 and have never left the country since. In the
meantime six of his nine brothers and sisters have acquired
French nationality. As regards the applicant himself, the meagre
schooling that he was given was all received in France.
45. The Court accepts as credible Mr Nasri's affirmation that
he does not understand Arabic, which was not contested.
Admittedly he mixes with the North African community, but it is
a well-known fact that there is an increasing tendency among the
younger members of that community not to speak the language of
their country of origin, and this would be particularly likely
in the case of a deaf-mute.
46. In view of this accumulation of special circumstances,
notably his situation as a deaf and dumb person, capable of
achieving a minimum psychological and social equilibrium only
within his family, the majority of whose members are French
nationals with no close ties with Algeria, the decision to deport
the applicant, if executed, would not be proportionate to the
legitimate aim pursued. It would infringe the right to respect
for family life and therefore constitute a breach of Article 8
(art. 8).
II. ALLEGED VIOLATION OF ARTICLE 3 (art. 3) OF THE CONVENTION
47. Mr Nasri also contended that his deportation to Algeria
would amount to inhuman and degrading treatment in breach of
Article 3 (art. 3) of the Convention.
48. Having regard to its conclusion in paragraph 46 above,
the Court does not consider it necessary to examine this
complaint.
III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
49. Mr Nasri, who received legal aid before the Strasbourg
institutions, did not claim either compensation for damage or the
reimbursement of his costs and expenses under Article 50
(art. 50) of the Convention. The Court sees no ground for
examining this question of its own motion.
50. As regards the applicant's request to have the
deportation order annulled (see paragraph 32 above), the Court
notes that the Convention does not empower it to require the
French State to take such a measure (see, mutatis mutandis, the
Saïdi v. France judgment of 20 September 1993, Series A
no. 261-C, p. 57, para. 47).
FOR THESE REASONS, THE COURT
1. Holds unanimously that there would be a violation of
Article 8 (art. 8) of the Convention if the decision to
deport the applicant were executed;
2. Holds by seven votes to two that it is not necessary also
to examine the case under Article 3 (art. 3) of the
Convention;
3. Holds unanimously that it is not necessary to apply
Article 50 (art. 50) of the Convention in the present
case.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
13 July 1995.
Signed: Rolv RYSSDAL
President
For the Registrar
Signed: Vincent BERGER
Head of Division
in the registry of the Court
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) partly dissenting opinion of Mr De Meyer;
(c) partly dissenting opinion of Mr Morenilla; and
(d) concurring opinion of Mr Wildhaber.
Initialled: R. R.
Initialled: V. B.
CONCURRING OPINION OF JUDGE PETTITI
(Translation)
I voted with my colleagues in the Chamber to find that
there would be a violation of Article 8 (art. 8) in the event of
expulsion because of the accumulation of circumstances (see
paragraph 46 of the judgment).
However, I consider that the reasoning in relation to
that accumulation of circumstances could have included two
additional considerations. In the first place there is the fact
that the conviction for gang rape on which the deportation was
based dated back to 1986 (15 May); this period during which the
applicant remained on French territory altered the consequences
of a deportation which was to be executed at a time when the
circumstances had changed (this is not forgetting the fact that
the French Government agreed to stay the measure at the
Commission's request once an application had been lodged with the
latter). The second consideration which merits attention is the
way in which social conditions in relation to Mr Nasri's physical
handicap and general conditions existing in the two countries
concerned evolved between 1983 and 1995.
The European Court now has pending before it several
cases concerning the deportation of aliens who have been
convicted of offences and who are habitual re-offenders. The
European Convention excluded from its substantive law the
deportation of aliens by States (except collective deportations).
However, when Article 8 (art. 8) and, in circumstances of
exceptional gravity, Article 3 (art. 3) are involved, the Court
may examine individual cases without overstepping the limits of
what is laid down in Article 8 (art. 8) concerning the notion of
private life. But this line of decisions does not provide a
solution to the general problem, which is a matter for the member
States of the Council of Europe, if they have the will to
harmonise their policies in this field and cooperate, so as to
take account of immigration flows and differences in the
conditions applied with regard to integration and family reunion
by certain States with a view to strengthening the protection of
families, rules that have not been adopted by others.
At this stage it is also necessary to harmonise criminal
policy involving questions of deportation and double punishment
on the basis of the different existing judicial traditions.
The European Court will in the future probably have to
specify the criteria which it intends to adopt: the threshold
level of convictions and re-offending, physical and linguistic
handicaps taken into account, the nature of offences, the
substance of family life and definition of the family community
to be protected under Article 8 (art. 8), definition of European
public order in this context. To this end a study of comparative
law should be undertaken by the member States by appointing an
ad hoc committee of experts to examine the legislation and
judicial and administrative practices of the member States in
these areas so as to avoid divergences from country to country,
which would not be compatible with the common undertaking of
member States to guarantee together the protection of the rights
enshrined in the European Convention on Human Rights.
PARTLY DISSENTING OPINION OF JUDGE DE MEYER
(Translation)
I was not able to approve point 2 of the operative
provisions of this judgment for the reasons that I gave in the
case of Beldjoudi v. France (1).
_______________
1. Series A no. 234-A, p. 35.
_______________
In the present case I consider likewise, and in
particular in view of Mr Nasri's disability (2), that his
deportation would not only interfere with his private and family
life but would above all amount to inhuman treatment.
_______________
2. See paragraphs 20 to 25, 43 and 46 of the judgment.
_______________
PARTLY DISSENTING OPINION OF JUDGE MORENILLA
(Translation)
1. In my opinion, the order for Mr Nasri's deportation, in
the circumstances noted by the majority (see paragraph 46),
should above all be classified as inhuman treatment. The Court
ought first to have ruled on the express complaint made by the
applicant under Article 3 (art. 3) of the Convention and should
have followed the approach of the majority of the Commission,
concluding that there had been a violation.
2. The applicant's dramatic personal situation (his
deaf-mutism with no schooling, his inability to adapt to society
and his long criminal record) should not however be allowed to
obscure the more general question which underlies the application
to the instant case of Article 3 (art. 3) of the Convention:
namely as to the limits to be imposed on administrative measures
- or sanctions - of deportation to the country "of origin", on
account of criminal or antisocial behaviour on the part of
"second generation" aliens, including those who, like the
applicant, came as children accompanying their migrant worker
parents.
3. The deportation of such dangerous "non-nationals" may be
expedient for a State which in this way rids itself of persons
regarded as "undesirable", but it is cruel and inhuman and
clearly discriminatory in relation to "nationals" who find
themselves in such circumstances. A State which, for reasons of
convenience, accepts immigrant workers and authorises their
residence becomes responsible for the education and social
integration of the children of such immigrants as it is of the
children of its "citizens". Where such social integration fails,
and the result is antisocial or criminal behaviour, the State is
also under a duty to make provision for their social
rehabilitation instead of sending them back to their country of
origin, which has no responsibility for the behaviour in question
and where the possibilities of rehabilitation in a foreign social
environment are virtually non-existent. The treatment of
offenders whether on the administrative or criminal level should
not therefore differ according to the national origin of the
parents in a way which - through deportation - makes the sanction
more severe in a clearly discriminatory manner.
4. Attention has rightly been drawn (see
Andrew Drzemczewski, "The position of aliens in relation to the
European Convention on Human Rights", Council of Europe,
Strasbourg, 1985, pp. 7-9) to the way in which international law
has changed over the last few years, under the influence of
recent developments in the human rights field, towards according
equal treatment between aliens and nationals. This equality
becomes more and more evident where the aliens are "immigrants
integrated" in the community where they work. In the words of
Article 12 para. 4 of the International Covenant on Civil and
Political Rights, their "own country" is that in which they were
born or in which they grew up and which is theirs despite the
difficulties of integration inherent in being of foreign origin
or belonging to a different family culture. In any event, legal
considerations or reliance on the traditional notion of State
sovereignty cannot today serve as the basis for such treatment.
5. Nevertheless, for the third time in four years (see the
Moustaquim v. Belgium judgment of 18 February 1991, Series A
no. 193, p. 20, para. 50, and the Beldjoudi v. France judgment
of 26 March 1992, Series A no. 234-A, p. 29, para. 82), the Court
has provided further evidence of its traditional "circumspection"
(see Marc-André Eissen, El Tribunal Europeo de Derechos Humanos,
Spanish translation, Civitas, Madrid, 1985, pp. 81 and 95). The
majority "does not consider it necessary to examine this
complaint" (see paragraph 48) and confines itself to finding a
violation of Article 8 (art. 8) of the Convention, regarding the
measures in question as an interference with the family life of
the person concerned. I regret this because the importance and
topicality of the issue requires the Court to give a ruling in
this matter and to express its opinion with clarity, which would
not exclude taking into consideration the specific circumstances
of the case before it.
6. Finally, I voted with the majority for the violation of
Article 8 (art. 8) of the Convention in this case, even though
I do not subscribe to the reasoning based on Mr Nasri's situation
as a non-national and on his responsibility in view of his "bad
behaviour" (see paragraphs 22-25 and 43). Given the applicant's
distressing situation, I nevertheless find the majority's
approach too formalistic (see paragraph 46) in so far as it gives
to Mr Nasri's deportation the legal classification of
interference with his family life rather than his private life,
a more general concept of which family life is one element.
In fact Article 8 (art. 8) of the Convention recognises
the right to respect by the public authorities of the "private
sphere" of the individual (see Stephan Breitenmoser, Der Schutz
der Privatsphäre gemäss Art. 8 (art. 8) EMRK, Juristische
Fakultät der Universität Basel, Basle, 1986), of his personal
life, which, under the terms of the Convention, includes his
private and family life, his home and his correspondence.
Deportation from a country in which the person concerned has
lived from birth or from childhood constitutes an interference
with this private and personal sphere where it entails, as in
this case, the separation of the person concerned from his
essential social environment, his emotional and "social circle",
including his family. This interference by the public
authorities infringes the right that every person has to respect
for his private and family life if it is not justified under
paragraph 2 of the same Article 8 (art. 8-2) of the Convention.
As the majority found, in the present case it was not so
justified.
CONCURRING OPINION OF JUDGE WILDHABER
In my opinion, this is a special case which does not
easily lend itself to generalisation. Like the applicant
himself, our Court, in relying on Article 8 (art. 8), invokes
only the right to respect due to his family life. This approach
is somewhat artificial, because the element of the respect of his
private life is missing. In such cases, it would be more
realistic to look at the whole social fabric which is important
to the applicant, and the family is only part of the entire
context, albeit an essential one.
Like the majority of the Court, I have not found it
necessary to rely on Article 3 (art. 3). Indeed, had we relied
on Article 3 (art. 3), we might have implied that no balancing
of public interests can take place but rather that immigrants of
the "second generation" cannot be expelled at all. It seems to
me that this would go too far and that, exceptionally, the
expulsion of those immigrants of the "second generation" who have
committed very serious crimes (such as murder, rape, massive drug
trade) must continue to be possible in accordance with the
general principles of international law.