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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> BOUGHANEMI v. FRANCE - 22070/93 [1996] ECHR 19 (24 April 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/19.html
Cite as: (1996) 22 EHRR 228, 22 EHRR 228, [1996] ECHR 19
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JISCBAILII_CASE_IMMIGRATION
In the case of Boughanemi 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 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 24 November 1995 and
27 March 1996,
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) (1 October 1994) 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 1 March and 20 April 1995
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. 22070/93)
against the French Republic lodged with the Commission under
Article 25 (art. 25) by a Tunisian national, Mr Kamel Boughanemi,
on 3 June 1993.
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 object of the request was to obtain a decision
as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 8 (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 stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 30). By a letter of
1 August 1995 the lawyer in question informed the Registrar that
he was no longer acting for Mr Boughanemi.
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 5 May 1995, in
the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr F. Matscher,
Mr A. Spielmann, Mr N. Valticos, Mr S.K. Martens, Mr A.N. Loizou,
Mr A.B. Baka and Mr M.A. Lopes Rocha (Article 43 in fine of the
Convention and Rule 21 para. 5) (art. 43).
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 28 August 1995.
On 30 October 1995 the Secretary to the Commission indicated that
the Delegate did not wish to reply in writing.
5. On 19 June 1995 the Commission had produced various
documents that the Registrar had requested on the President's
instructions.
6. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 21 November 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,
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 23 November 1960 in
Tunisia and has Tunisian nationality. He came to France in 1968
and lived there continuously until his deportation. His parents
and his ten brothers and sisters reside in France. Eight of his
brothers and sisters were born there. He claims that he lived
with a woman of French nationality (Miss S.), whose child, born
on 19 June 1993, he formally recognised on 5 April 1994.
A. The applicant's criminal record
8. The applicant was convicted on a number of occasions. On
21 December 1981 he was sentenced to ten months' imprisonment,
four of which were suspended, for burglary. On 22 September 1983
he was sentenced to two months' imprisonment for an assault
resulting in the victim's not being fit for work for a period
exceeding eight days. On 25 September 1986 he was fined
1,500 francs for driving without a licence and without insurance
and on 24 March 1987 he was sentenced to three years'
imprisonment for living on the earnings of prostitution with
aggravating circumstances.
B. The deportation procedure
1. The deportation order
9. On 8 March 1988 the Minister of the Interior issued an
order for Mr Boughanemi's deportation worded a follows:
"...
Having regard to sections 23 and 24 of
Ordinance no. 45-2658 of 2 November 1945, as amended,
concerning the conditions of entry and residence of
aliens in France;
Having regard to Decree no. 82-440 of 26 May 1982;
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 12 November 1988
but the applicant returned to France and lived there illegally.
11. On 16 March 1989 the Lyons Administrative Court dismissed
the applicant's appeal alleging that the deportation order was
an abuse of authority.
2. The application to have the deportation order
rescinded
12. On 21 March 1990 the applicant applied to the Minister of
the Interior to have the deportation order rescinded. His
application was rejected on 10 August 1990 on the following
grounds:
"...
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 9 September 1986.
In addition, the Lyons [Administrative Court] confirmed
the deportation order on 16 March 1989.
It is accordingly impossible for me to grant your
request. The deportation order of 8 March 1988 must
therefore remain in force.
..."
3. The application for judicial review
(a) In the Lyons Administrative Court
13. On 9 October 1990 Mr Boughanemi lodged with the Lyons
Administrative Court an application for judicial review of the
Minister's decision refusing to rescind the deportation order.
In its judgment of 26 February 1991 dismissing the application,
the Lyons court gave the following grounds:
"...
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 1945, a deportation order
could not be made against him after the coming into
operation of the Law of 2 August 1989 is without force in
regard to the decision refusing to rescind the
deportation order made against him on 8 March 1988. Nor
can he rely on the principle that more lenient criminal
legislation should be applied with retrospective effect.
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 7 December 1992 the Conseil d'Etat dismissed the
applicant's appeal lodged on 23 October 1991. It gave,
inter alia, the following reasons:
"...
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 1990, a serious threat
to public order. He was therefore entitled to refuse to
rescind the order for Mr Boughanemi's deportation.
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 8 March 1988 infringed
the right to respect for family life guaranteed by
Article 8 (art. 8) of the European Convention on Human
Rights must fail.
..."
4. The deportation
15. Mr Boughanemi was arrested on 28 July 1994 for breach of
the deportation order and was sentenced to three months'
imprisonment. On 12 October 1994 he was deported to Tunisia.
C. The statements of Miss S.
16. On 20 June 1994 the Commission received from Miss S. (see
paragraph 7 above) the following letter, dated 15 June 1994:
"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 6 December 1994 Miss S. made the following statement
to an officer of the criminal investigation department (extracts
from the police report):
"...
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 European Court. I
don't intend to live with him if he comes back.
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 29 October 1981; no. 86-1025 of
9 September 1986; no. 89-548 of 2 August 1989; no. 91-1383 of
31 December 1991; and no. 93-1027 of 24 August 1993.
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 9 September 1986, "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 threat to public order".
The Law of 2 August 1989 restored the wording that this
section had contained prior to the Law of 9 September 1986, to
the effect that deportation might only be ordered in the event
of a "serious" threat to public order.
19. Section 24, as amended by the Laws of 29 October 1981 and
9 September 1986, stated:
"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 3 January 1972.
This possibility shall be mentioned in the summons. A
provisional grant of legal aid may be decided by the
chairman of the board.
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 2 August 1989 inserted, inter alia, the
following provision:
"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
24 August 1993.
(b) Protected aliens
20. Section 25 of the Ordinance, as amended by the Law of
29 October 1981, subsequently amended by the Law of
9 September 1986, provided:
"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 France provided that he or she
exercises parental rights, even only on a partial basis,
in respect of the child or actually provides for him or
her;
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 2 August 1989 amended those provisions,
restoring to a large extent the wording in force prior to the Law
of 9 September 1986:
"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 France since the age of 10 or
younger;
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 France provided that he or she
exercises parental rights, even only on a partial basis,
in respect of the child or actually provides for him or
her;
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 31 December 1991 and 24 August 1993:
"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 France since the age of 6 or
younger;
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 France provided that he or she
exercises parental rights, even only on a partial basis,
in respect of the child or actually provides for him or
her;
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
9 September 1986 provided:
"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
2 August 1989 and then by the Law of 24 August 1993 and now reads
as follows:
"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 9 September 1986, provided:
"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
9 September 1986 was restored by the Law of 2 August 1989: the
Minister was required to abide by the opinion expressed by the
board.
However, this provision was again amended by the Law of
24 August 1993 to the effect that the board's opinion must
compulsorily be sought, but it no longer binds the Minister.
C. Sanctions
26. Section 27 of the Ordinance, as amended by the Law of
9 September 1986, provided:
"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 3 June 1993.
He complained of a violation of his right to respect for his
private and family life as guaranteed under Article 8 (art. 8)
of the Convention.
29. The Commission declared the application (no. 22070/93)
admissible on 29 August 1994. In its report of 10 January 1995
(Article 31) (art. 31), it expressed the opinion by twenty-one
votes to five that there had been a violation of Article 8
(art. 8). The full text of the Commission's opinion and of the
two dissenting opinions contained in the report is reproduced as
an annex to this judgment (1).
_______________
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
30. In their memorial the Government
"request the Court to dismiss Mr Boughanemi's
application".
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
31. 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 France a "private and
family life" within the meaning of Article 8 para. 1 (art. 8-1).
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 France, but the
applicant, who was aged 34 at the date of his second deportation,
no longer lived with them. None of the evidence examined by the
administrative courts substantiated the applicant's claim that
he had actually received assistance from his family.
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 recognised
the child after the deportation order had been issued and after
the judgment of the Conseil d'Etat of 7 December 1992. In any
event, these ties, which had been established after the
applicant's illegal return to France, could not constitute family
life. It was clear from the statements made on 6 December 1994
by the applicant's former companion (see paragraph 16 above) that
their life together had ended for good well before 28 July 1994,
the date of the applicant's last arrest and, a fortiori, before
12 October 1994, when the applicant had been deported to Tunisia
a second time. As far as the child was concerned, Mr Boughanemi
had not formally recognised him until 5 April 1994, ten months
after his birth - on 19 June 1993 - although under French law he
could have done so even before the birth and without the mother's
being able to prevent him. Nor had the applicant indicated that
the child's birth was imminent in his application lodged with the
Commission on 3 June 1993; he had mentioned the birth for the
first time in his observations of 5 May 1994. Furthermore no
relationship that could have been compromised by the deportation
had developed between the applicant and his son. Finally,
Mr Boughanemi had not shown that he provided for his son, or that
he contributed to his education or that he enjoyed parental
rights.
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 France.
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 Netherlands, 21 June 1988, Series A no. 138, p. 14,
para. 21, and Gül v. Switzerland, 19 February 1996, Reports of
Judgments and Decisions 1996-I, pp. 173-74, para. 32). Although
that tie may be broken by subsequent events, this can only happen
in exceptional circumstances (see the Gül judgment cited above,
loc. cit.). In the present case neither the belated character
of the formal recognition nor the applicant's alleged conduct in
regard to the child constitutes such a circumstance.
Secondly, Mr Boughanemi's parents and his ten brothers
and sisters are legally resident in France and there is no
evidence that he has no ties with them.
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 November 1945 on the conditions of entry and residence of
aliens in France, as amended (see paragraphs 18 and 19 above).
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 France.
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 France or that he was in any
way integrated in the society of that country, where he had never
really worked. Furthermore, on attaining his majority he had not
sought French nationality. At the same time he had retained ties
with Tunisia that went beyond mere nationality. His parents were
Tunisian; he had spent his infancy there and in France he moved
in Tunisian circles. Mr Boughanemi could speak Arabic or at
least had an adequate command of everyday language. Moreover,
having lived in Tunisia up to the age of 8, the two years of
schooling that he had received there had laid the foundations of
his education. In addition, the applicant did not claim that he
had never returned there or that he had cut all ties with that
country. Finally, he maintained active relations with the
Tunisian community so that his life was not confined to the
French dimension.
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
France aged 8 and had remained there until his first deportation
to Tunisia in 1988, when he was 28, and again until his second
deportation in October 1994, when he was 34. He had all his
family in France and had lived there with a French woman, whose
child he had fathered and, on 5 April 1994, formally recognised.
In this last connection, the Delegate of the Commission noted the
wording of the letter that Miss S. had sent to the Commission on
15 June 1994 (see paragraph 16 above). Although legally an
alien, the applicant therefore had family and social ties in
France and the Government had not shown that he had any link with
Tunisia other than nationality. Thus, despite the serious nature
of the convictions leading to his deportation, a fair balance had
not been struck between the aims pursued, on the one hand, and
the right to respect for private and family life, on the other.
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 France at the age of 8 and was
legally resident there from 1968 to 1988, and then lived there,
after his return as an illegal immigrant, until 12 October 1994.
He had most of his schooling there. His parents and his ten
brothers and sisters live there, five of his siblings are in
school there, eight of them were born there and two have French
nationality. In addition, Mr Boughanemi lived with a French
woman there as man and wife and formally recognised - admittedly
not until 5 April 1994 - her child who was born on
19 June 1993.
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 Tunisia that went beyond the mere fact of his nationality.
Before the Commission he did not claim that he could not speak
Arabic, or that he had cut all his ties with his country of
birth, or that he had not returned there after his deportation.
In addition, in the Court's view, the circumstances of
the present case are different from those in the cases of
Moustaquim v. Belgium (judgment of 18 February 1991, Series A
no. 193), Beldjoudi v. France and Nasri v. France (judgments
cited above), which all concerned the deportation of aliens
convicted of criminal offences and in which the Court found a
violation of Article 8 (art. 8).
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, Strasbourg, on
24 April 1996.
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 France as an illegal immigrant following his deportation.
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. Belgium case (judgment of 18 February 1991,
Series A no. 193), which involved the protection of an
adolescent.
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 France.
DISSENTING OPINION OF JUDGE MARTENS
1. In this case the Court was again confronted with the
issue of the expulsion of an integrated alien, the applicant
having come to France when he was 8 years old and having lived
there since then, like his parents, brothers and sisters, until -
after twenty-two years of residence - he was expelled.
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. Belgium (judgment of 18 February 1991, Series A
no. 193), Beldjoudi v. France (judgment of 26 March 1992,
Series A no. 234-A), Nasri v. France (judgment of 13 July 1995,
Series A no. 320-B) and Boughanemi v. France. Should one just
make a comparison based on the number of convictions and the
severity of sentences or should one also take into account
personal circumstances? The majority has, obviously, opted for
the latter approach and has felt able to make the comparison (1),
but - with due respect - I cannot help feeling that the outcome
is necessarily tainted with arbitrariness.
_______________
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.
_______________
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.
_______________
7. See note 5.
_______________
9. In my opinion the second disadvantage of the traditional
approach - its unpredictability - could be considerably
attenuated if the Court were to accept that expulsion of an
integrated alien as a rule constitutes lack of respect for his
private life, but may exceptionally be justified where the alien
is convicted of very serious crimes, such as serious crimes
against the State, political or religious terrorism or holding
a leading position in a drug-trafficking organisation.
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 France. His parents and his ten brothers and
sisters reside in France and eight members of the family were
born there. He has a child in France, although uncertainty
remains as to the exact nature of the ties between them.
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 France, should enjoy
treatment not significantly less favourable than would be
accorded to a national of the country. He committed crimes and
he has been sentenced for that. If the criminal sentence itself
is adequate and proportionate to the crime committed - as it
should be -, to add an expulsion order as well is, in my view,
to overemphasise heavily the general interest in the prevention
of crime and disorder as against the protection of the
individual's right to private and family life.