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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> BOUCHELKIA v. FRANCE - 23078/93 [1997] ECHR 1 (29 January 1997)
URL: http://www.bailii.org/eu/cases/ECHR/1997/1.html
Cite as: (1998) 25 EHRR 686, [1998] 25 EHRR 686, 25 EHRR 686, [1997] ECHR 1
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In the case of Bouchelkia 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. Gölcüklü,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr A. Spielmann,
Mrs E. Palm,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr B. Repik,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 24 October 1996 and
22 January 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 112/1995/618/708. 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") on 11 December 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 23078/93) against the French Republic lodged with the Commission
under Article 25 (art. 25) by Mr Hadi Bouchelkia, an Algerian national,
on 25 October 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 of the Convention (art. 8).
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). On 8 January 1997 the President granted the
applicant legal aid (Rule 4 of the Addendum to Rules of Court A).
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 8 February 1996, in the presence of
the Registrar, the President drew by lot the names of the other
seven members, namely Mr A. Spielmann, Mrs E. Palm, Mr R. Pekkanen,
Mr F. Bigi, Mr M.A. Lopes Rocha, Mr L. Wildhaber, and Mr B. Repik,
(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).
Subsequently Mr R. Macdonald and Mr F. Gölcüklü, substitute judges,
replaced Mr Bigi, who had died, and Mr Pekkanen, who was unable to take
part in the further consideration of the case (Rules 22 para. 1 and
24 para. 1).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the
French Government ("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 applicant's memorial on 14 June 1996 and the
Government's memorial on 21 June 1996. On 15 July 1996 the Secretary
to the Commission indicated that the Delegate did not wish to reply in
writing.
On 23 September 1996 the Commission produced the file on the
proceedings before it, 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
22 October 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Lapouzade, administrative court judge,
on secondment to the Legal Affairs Department,
Ministry of Foreign Affairs, Agent,
Mrs F. Doublet, Head of the Comparative and
International Law Office, Ministry of the
Interior and of Regional Development, Counsel;
(b) for the Commission
Mr D. Sváby, Delegate;
(c) for the applicant
Mr L. Dörr, of the Strasbourg Bar, Counsel.
The Court heard addresses by Mr Sváby, Mr Dörr and
Mr Lapouzade.
6. On 14 December 1996 Mr Bouchelkia was detained with a view to
his removal to Algeria. Relying on Rule 36 of Rules of Court A, he
made a request for execution of the deportation order to be suspended.
On 18 December 1996 the President decided not to grant that request.
AS TO THE FACTS
I. Circumstances of the case
7. Mr Hadi Bouchelkia was born on 25 February 1970 at Bechloul
(Algeria) and came to France in 1972 with his mother and his
elder brother under the arrangements for family reunion. His mother
and nine brothers and sisters live in France. In 1986 he met a woman
of French nationality whom he married on 29 March 1996. They had a
daughter born on 22 February 1993, in respect of whom he made a formal
declaration of paternity on 3 December 1993.
A. The criminal proceedings (procédure criminelle)
8. When a minor, the applicant was charged with rape with violence
and theft in respect of offences committed on 18 March 1987.
He was taken into custody at Colmar Prison on 23 March 1987 but
escaped with a fellow prisoner on 14 April 1987, for which he was
sentenced to four months' imprisonment.
9. On 31 May 1988 the Haut-Rhin Juvenile Assize Court found him
guilty of the offences of which he was accused. Finding that there
were mitigating circumstances, it sentenced him to five years'
imprisonment. Mr Bouchelkia was released on 2 May 1990 after obtaining
remission of sentence.
B. The deportation proceedings
1. The deportation order
10. On 11 June 1990 the Minister of the Interior, to whom the
matter had been referred by the Prefecture of Meurthe-et-Moselle on
27 April 1990, made the following order against the applicant:
"Having regard to section 26 of Ordinance no. 45-2658 of
2 November 1945, as amended, concerning the conditions of entry
and residence of aliens in France,
Whereas Bouchelkia Hadi or El Hadi born on 25 February 1970 at
Bechloul (Algeria) committed a rape on 18 March 1987 while
threatening his victim with a weapon,
Whereas on account of his conduct his deportation is an
absolute necessity for public safety,
Whereas he has just been released,
Whereas he should, in consequence, be removed from
French territory as a matter of extreme urgency,
On a proposal by the Prefect of Meurthe-et-Moselle,
IT IS HEREBY ORDERED AS FOLLOWS
Article 1: the above-named person is enjoined to leave France,
Article 2: the Prefect of Police and the Prefects are
instructed to serve and execute this order."
That order was served on 9 July 1990 and executed on the same
day and the applicant, who was then aged twenty, single and had no
children, was deported to Algeria.
11. On 17 July 1990 counsel for Mr Bouchelkia applied to the
Strasbourg Administrative Court for an order quashing the deportation
measure and, on 31 July 1990, for an order staying its execution.
It was argued in the applications that it had not been
established in Mr Bouchelkia's case that it was a matter of extreme
urgency or absolute necessity to deport him for reasons of
public safety since the order had been made two months after his
release from prison and the offences could not be regarded as being of
particular gravity for the purposes of the statutory provision. He
also relied on Article 8 of the Convention (art. 8).
2. The application for a stay of execution
12. On 16 October 1990 the Court dismissed the application for a
stay of execution in the following terms:
"...
None of the grounds relied on by Mr Bouchelkia in support of
the application for judicial review of the deportation order
made by the Minister of the Interior on 11 June 1990 appears,
on the basis of the case file before the court, to justify
quashing that order; it follows that the applicant's
application for a stay of execution of that order is unfounded;
..."
13. On 31 May 1991, the Conseil d'Etat upheld, in the same terms,
the decision dismissing the application.
3. Application for judicial review of the deportation order
(a) In the Strasbourg Administrative Court
14. In its judgment of 21 October 1990 dismissing the application,
the court gave the following grounds for its decision:
"The submission based on error of law:
Criminal offences committed by an alien cannot, by themselves,
justify in law deportation and do not under any circumstances
exempt the authority concerned from its obligation to
determine, on the basis of all the circumstances of the case,
whether the alien's presence in France is liable to constitute
a serious threat to public order.
The documents on the case file do not reveal any failure by the
Minister of the Interior to have regard to all the factors
relating to the applicant's conduct and the various aspects of
his situation in determining whether or not his presence in
France constituted a serious threat to public order. It
follows that this first submission, based on an error of law,
must be rejected.
The submission based on Article 8 of the Convention (art. 8)
...:
Under Article 8 (art. 8) of the European Convention referred
to above: 'Everyone has the right to respect for his private
and family life, his home and his correspondence'.
The applicant relies on Article 8 of the Convention (art. 8)
in order to argue that the impugned decision does not comply
with the aforementioned provisions; the general principles
governing the right to a normal family life do not preclude the
Minister of the Interior from exercising the power conferred
on him by section 26 of the Ordinance of 2 November 1945, as
amended. It follows that there is no alternative but to reject
this ground.
The submission based on manifest error:
Section 26 of the Ordinance of 2 November 1945, as amended,
provides: 'In cases of extreme urgency and by way of derogation
from sections 23 to 25, deportation may be ordered where it
constitutes an absolute necessity for the security of the State
or public safety.'
The documents on the case file show that Mr El Hadi Bouchelkia
was sentenced to five years' imprisonment for rape committed
while threatening his victim with a weapon; the fact that the
order was made two months after the applicant's release from
prison does not, in itself, mean that the question of his
deportation is not urgent, regard being had to the gravity of
the offences. Thus, the Minister of the Interior could have
considered, without committing a manifest error, that
Mr Bouchelkia's deportation constituted an absolute necessity
for public safety and that it was a matter of extreme urgency.
It follows that the ground based on manifest error must be
rejected.
In the light of the foregoing, the application made by
Mr Bouchelkia must be rejected."
(b) In the Conseil d'Etat
15. On 23 June 1993 the Conseil d'Etat upheld the judgment in the
following terms:
"...
The documents on the case file show that Mr Bouchelkia
committed a rape while threatening his victim with a weapon;
for that offence he was sentenced to five years' imprisonment.
It follows that the Minister was entitled in law to consider
that Mr Bouchelkia's deportation constituted an absolute
necessity for public safety. As he had recently been released,
it was also a matter of extreme urgency at the date of the
impugned order.
Regard being had to the seriousness of the offence committed
by the applicant, that measure did not amount to an excessive
interference in his family life. In these circumstances, the
measure was not taken in violation of the aforementioned
Article 8 (art. 8).
It does not appear from the documents on the case file that the
Minister, in making the impugned order for Mr Bouchelkia's
deportation (which states the reasons of fact and law relied
on), failed to carry out a full review of the circumstances of
the case.
It follows from all the above that Mr Bouchelkia fails in his
claim that in the impugned judgment the
Strasbourg Administrative Court had wrongly dismissed his
application to have the Minister of the Interior's order of
11 June 1990 requiring him to leave France set aside.
..."
4. The applications to have the deportation order rescinded
16. The applicant made two applications to the
Minister of the Interior to have the deportation order of 11 June 1990
rescinded.
17. On 12 December 1991 the Minister of the Interior dismissed the
first application, made on 21 October 1991, in these terms:
"...
I note that in its judgment of 31 May 1991 the Conseil d'Etat
dismissed the application to quash the Strasbourg
Administrative Court's judgment dated 16 October 1990 in which
[the] application for a stay of execution of the ministerial
deportation order made against [Mr Bouchelkia] was dismissed.
In addition, taking into account the seriousness of the
offences committed by the applicant and his conduct whilst in
custody, it is impossible for me to grant [his] request. The
deportation order of 11 June 1990 must stand.
..."
18. The second application made on 3 November 1995 is currently
pending before a board set up in accordance with section 24, as
amended, of the Ordinance of 2 November 1945 (see paragraph 22 below).
C. Criminal proceedings (procédure correctionnelle) for insulting
a public official and illegally staying in France
19. Mr Bouchelkia, who returned to France illegally in 1992, was
arrested at Colmar on 6 April 1993 on charges of insulting a
police officer, obstructing a police officer in the execution of his
duty and illegally entering and staying in France. On 13 April 1993
the Colmar Criminal Court sentenced him to five months' imprisonment
and ordered that he be banned from re-entering France for three years.
It ordered that he remain in custody.
20. On appeals by the applicant and the prosecution, the
Colmar Court of Appeal allowed the applicant's appeal against sentence.
In its judgment delivered on 11 August 1993, it gave the following
reasons:
"With respect to the sentence
The custodial sentence imposed by the court below is a penalty
that is proportionate to the seriousness of the offences when
the mitigating circumstances are taken into account, adapted
to his character and in accordance with the requirements of
protecting public order.
On the other hand, regard being had to the circumstances in
which the offences were committed and to the accused's
character, the additional order forbidding him to re-enter
France is an excessively severe penalty.
While this court cannot and does not wish to call into question
the appropriateness of the deportation order of 11 June 1990,
the accused's application for judicial review of which was
dismissed by a judgment of the Conseil d'Etat on 23 June 1993,
it observes that the accused arrived in France at the age of
2 and lives here with his mother and nine brothers and sisters,
that he attended vocational training courses while imprisoned
in connection with the criminal case which ended with the
judgment of the Haut-Rhin Juvenile Assize Court, that he spent
two years in Algeria where he has no ties or points of
reference and that his companion has given birth to a child.
As the accused has made an application to have the
deportation order rescinded, it would be inappropriate to take
the option open to the court of forbidding him to re-enter
France."
D. Subsequent changes in the applicant's situation
21. Mr Bouchelkia was arrested on 14 December 1996 and detained
with a view to his removal to Algeria under the deportation order of
11 June 1990. He refused to leave and a compulsory residence order was
issued against him.
On 20 December 1996 the Strasbourg Criminal Court convicted him
of the offence of refusing to comply with a deportation order, but
deferred sentence pending the European Court's judgment.
II. Relevant domestic law and practice
A. Deportation
22. In French law deportation is a public-order measure, not a
criminal penalty (Constitutional Court decision no. 79-109,
Droit constitutionnel 9 January 1980, Recueil Dalloz Sirey 1980, 249;
Conseil d'Etat, 20 January 1988, Elfenzi, Actualité juridique
Droit administratif 1989, 223; and Criminal Division of the
Court of Cassation, 1 February 1995, Juris-Classeur périodique 1995,
édition générale, II, 22463). It applies to aliens with a
residence permit who live in France, but not to those who have entered
illegally and against whom only a removal order may be made.
The deportation of aliens is governed by the provisions of the
Ordinance of 2 November 1945 concerning the conditions of entry and
residence of aliens in France. Section 1 of the Ordinance provides:
"all persons who do not have French nationality, whether they have a
foreign nationality or are stateless, shall be deemed to be aliens."
The basic provisions of the Ordinance have been amended by, inter alia,
Law no. 80-9 of 10 January 1980; Law no. 81-82 of 2 February 1981;
Law no. 81-973 of 29 October 1981; Law no. 86-1025 of 9 September 1986;
Law no. 89-548 of 2 August 1989; Law no. 91-1383 of 31 December 1991;
Law no. 93-1027 of 24 August 1993 and Law no. 93-1417 of
30 December 1993.
The Law of 10 January 1980 prescribed six grounds for
deportation and substantially altered its role; deportation had been
intended to guard against threats to public order, but it was now also
used as punishment in certain cases where there had been a breach of
the immigration rules.
That Law was rapidly replaced by Law no. 81-973 of
29 October 1981, in which the following two grounds for deportation
were retained:
(i) the first, to which the ordinary rules of procedure
applied, was where "an alien's presence on French territory
constitute[d] a serious threat to public order" (sections 23 to 25);
(ii) the second, for which there was a special procedure,
concerned "cases of extreme urgency [and] absolute necessity for the
security of the State or public safety" (section 26).
That Law also prescribed the categories of aliens who could not
be deported under the ordinary procedure and who were protected because
of their age, the length of time they had spent in France, their family
ties there, the services they had rendered and the fact that they had
no criminal record.
The provisions relating to the definition of the protected
categories, the substantive conditions and the safeguards provided
under the ordinary procedure were alternately amended and restored by
subsequent legislation.
In 1990 it was a prerequisite to instituting the ordinary
procedure governed by sections 23 to 25 of the Ordinance of
2 November 1945 that "the alien's presence on French territory
constitute[d] a serious threat to public order". Recourse to the
special procedure used in the instant case required extreme urgency and
an "absolute necessity for the security of the State or public safety".
1. Ordinary procedure
23. This procedure may properly be described as adversarial and
applies where "the alien proves that he entered France legally and that
he is the lawful holder of a residence permit" (section 24).
An aliens deportation board for the département must be
consulted. Such boards are composed of the president of the
tribunal de grande instance of the administrative capital of the
département or a judge delegated by him, who acts as chairman, a
judicial officer (magistrat) appointed by the general assembly of the
tribunal de grande instance of the administrative capital of the
département and an administrative court judge. Its hearings are held
in public. In 1990 the Minister of the Interior had less discretion.
Since Law no. 93-1027 of 24 August 1993, the board's opinion is no
longer binding on the Minister.
2. Special procedure in cases of extreme urgency and
absolute necessity for the security of the State or
public safety
24. Deportation orders made to preserve public order are intended
to guard against - and not to punish - breaches of public order. With
the sole exception of minors, no category of aliens is protected.
Under the special procedure none of the safeguards contained
in the ordinary procedure are available. Thus, aliens are not informed
in advance that their deportation is being considered, do not receive
any special notification, are not given an opportunity to make
representations and do not appear before the board; the board does not
hold a meeting, not even in the alien's absence. No formal steps have
to be taken before the deportation order is issued and the order does
not have to contain reasons.
25. The condition relating to absolute necessity for the security
of the State or public safety was introduced by the Law of
29 October 1981. It was replaced in the Law of 6 September 1986 by a
requirement of "a particularly serious threat to public safety", but
was reintroduced in the Law of 2 August 1989. According to the
Minister of National Solidarity, who was jointly responsible for
drafting the bill which became the 1981 Law, this type of deportation
was only to apply to three categories of aliens: terrorists, spies and
drug traffickers. Neither the Minister of the Interior nor the
Conseil d'Etat have adopted that position; they have interpreted the
condition much more widely. In practice section 26 also covers cases
concerning violent and anti-social behaviour by an alien over a long
period since the age of ten (Conseil d'Etat, 23 December 1987,
Tahraoui, Recueil des arrêts du Conseil d'Etat ("Rec.") p. 430) and
rape and indecent assault with violence or taking the victim by
surprise (Conseil d'Etat, 24 May 1993, Igartúa Amondaraín, Rec. p. 163,
and Conseil d'Etat, 23 June 1993, Bouchelkia, Droit administratif 1993,
no. 412).
26. To the extreme urgency requirement, laid down as from 1945, a
requirement of "absolute necessity for the security of the State and
public safety" was added in 1981. Extreme urgency is in practice
relied on to ensure that aliens who have been convicted by the
criminal courts and are serving their sentence can be deported as soon
as they are released. Its substance is assessed on a case-by-case
basis by the Minister, subject to review by the administrative court.
For a long time the Conseil d'Etat ruled that the question
whether there was any urgency itself came within the unfettered
discretion of the Minister. From 1970 it interpreted the requirement
so as to limit its application solely to cases where the deportation
was to take place within a very short time (Conseil d'Etat,
16 January 1970, Mihoubi Tayeb, Rec. p. 25). It later found that the
urgency requirement had been satisfied where the alien was due to be
released shortly (Conseil d'Etat, 13 November 1985,
Ministry of the Interior v. Barrutiabengoa Zabarte, Rec. p. 321), then
held that it was lawful to use the procedure against an alien who had
been released from prison several months before the deportation order
was made (Conseil d'Etat, 24 June 1988, Hamade, Rec., tables, p. 933,
and 8 April 1994, Zehar, Dalloz 1994), or who had obtained early
release seven months before the issue of a deportation order
(Conseil d'Etat, 3 February 1995, Kaouche, requête no. 145404,
Droit administratif, May 1995, p. 10). It also accepted that the
Minister could use the extreme urgency procedure where, in connection
with a deportation initially commenced under the ordinary procedure,
the board had expressed an opinion against deportation. The
Conseil d'Etat held that practice to be lawful "provided that the
requirements of section 26 were satisfied at the time the order was
made" (Conseil d'Etat, 24 May 1993, Igartúa Amondaraín, Rec. p. 163).
3. Enforcement and effects of a deportation order
27. A deportation order issued by the Minister of the Interior
remains in force indefinitely. Since 1986 such orders embody authority
to execute and may be enforced without further order, using force if
necessary.
28. In general, deportation is carried out without delay; however,
the effects of the deportation order are not exhausted as a result of
its execution.
Thus, deported aliens are precluded from returning to
French territory for so long as the order has not been rescinded. If
they do return, they are liable to the penalties applicable to cases
of avoiding or attempting to avoid the execution of a deportation order
and returning to France without leave to enter.
Furthermore, according to a circular issued by the
Minister of the Interior on 8 February 1994 concerning the application
of the Laws of 24 August and 30 December 1993, although the celebration
of the marriage of an alien on French territory is not subject to any
condition regarding the lawfulness of his stay, a prefect who is
informed that the alien wishing to get married is in breach of the
immigration rules may, before the wedding, make an order for his
removal under section 22 of the Ordinance of 1945 and, after the
ceremony, decide to expel him pursuant to that provision. The
Conseil d'Etat has held that an order for removal could lawfully be
made against an alien who was about to marry a French national
(Conseil d'Etat, Judicial Division, 26 July 1991, Lazaar,
requête no. 121849).
4. Judicial review of a deportation order
29. As deportation orders are not subject to any special regime,
an application for judicial review may be made to the
administrative court having territorial jurisdiction under the ordinary
rules. Such applications have no suspensive effect and may therefore
be accompanied by an application for a stay of execution even where the
order has been enforced and the alien is outside France.
On 31 July 1996 (requête no. 149765), the Conseil d'Etat set
aside a deportation order made against an Algerian who was born in
France and had always lived there, on the grounds that:
"... his close relatives live in France and some of them have
French nationality. When the deportation order was made
against him, he was the father of a child of French nationality
and was married to a French national. In the circumstances of
the case, although it has been shown that he has committed
offences for which he has been sentenced to several terms of
imprisonment (the most recent being a twelve-year sentence for
armed robbery, burglary committed at night or with accomplices
and theft) the impugned decision has nonetheless, regard being
had to the applicant's conduct subsequent to his convictions
for those offences and to the fact that he has no ties with any
country other than France, interfered with the applicant's
rights to respect for his private and family life in a way that
was disproportionate to the aims with which it was taken."
5. Applications to have a deportation order rescinded
30. The alien concerned may, at any time, and as often as he
chooses, apply for the deportation order to be rescinded.
Where the application is submitted less than five years "after
the final execution of the deportation order", the
Minister of the Interior is not subject to any specific procedural
requirements in reaching his decision. If the application is submitted
"after a period of five years ..., it may be rejected only after the
opinion of the deportation board for the département has been sought;
the alien may be represented before the board". Consultation is
required even where the deportation order was made under the procedure
for cases of extreme urgency. Since the Law of 24 August 1993 came
into force, the board's opinion is no longer binding on the Minister.
The Conseil d'Etat had considered that a deportation order was
executed on the date the alien left French territory and that, in
consequence, even if he subsequently returned to France illegally, the
five-year period ran from that date (Conseil d'Etat, 18 November 1988,
Higoun, Rec. p. 415). However, section 28 bis, added to the
Ordinance of 1945 by the Law of 24 August 1993, now prevents a
deportation order being rescinded if the alien has not left France or
if he has returned there illegally: "An application ... for the
rescission of a deportation order ... submitted after the expiry of the
time-limit for making an application for judicial review cannot be
granted unless the foreign national resides outside France."
An application to which there has been no response within
four months is deemed to have been rejected by the
Minister of the Interior. Where the Minister of the Interior decides
not to enforce a deportation order whilst at the same time refusing to
rescind it, a compulsory residence order is made against the alien.
If the alien continues to disturb public order, he may be deported.
That constitutes a new decision, separable from the deportation order
and in respect of which an application for judicial review may be made
to the administrative court. In considering the application, the court
examines the conduct of the alien during the period when his presence
in France was tolerated. In reviewing the lawfulness of the measure
the court therefore examines the position at the date of its judgment.
However, a ground of appeal on the basis that the alien had mended his
ways after the date of the order is ineffective (Conseil d'Etat,
27 November 1985, Hamza, Rec. p. 712).
The fact that a deportation order has been rescinded does not
constitute leave to enter. If leave is sought, it may lawfully be
refused.
B. Acquisition of French nationality
31. Article 21-27 of the Civil Code, which is relevant in this
case, provides:
"Subject to the provisions of Articles 21-7, 21-8 [concerning
aliens born in France of foreign parents] and 22-1 [concerning
the minor children of parents who have acquired
French nationality], no one may acquire French nationality or
be restored to that nationality if either (i) he has been
convicted of a serious crime [crime] or other major offence
[délit] harmful to the fundamental interests of the nation or
of an act of terrorism or (ii) whatever the nature of the
offence, if he has been sentenced to a term of imprisonment,
not suspended, of at least six months.
(Law no. 93-1417 of 30 December 1993) The same shall apply to
a person who is the subject of a deportation order which has
not been expressly set aside or rescinded or to a ban on
re-entering French territory that has not expired.
(Law no. 93-1027 of 24 August 1993) The same shall apply to
persons whose stay in France is unlawful under the laws and
treaties relating to the residence of aliens in France."
PROCEEDINGS BEFORE THE COMMISSION
32. Mr Bouchelkia applied to the Commission on 25 October 1993.
He complained of a violation of his right to respect for his private
and family life as guaranteed under Article 8 of the Convention
(art. 8).
33. The Commission (Second Chamber) declared the application
(no. 23078/93) admissible on 22 February 1995. In its report of
6 September 1995 (Article 31) (art. 31), it expressed the opinion by
nine votes to four that there had not been a violation of Article 8 of
the Convention (art. 8). The full text of the Commission's opinion and
of the separate opinion 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 1997-I),
but a copy of the Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
34. In their memorial, the Government "request[ed] that
Mr Bouchelkia's application be dismissed".
35. The applicant asked the Court to "find a violation of Article 8
of the Convention" (art. 8).
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8)
36. Mr Bouchelkia submitted that the deportation order made against
him on 11 June 1990 infringed his right to respect for his private and
family life. He relied on Article 8 of the Convention (art. 8), which
provides:
"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 and the Commission disputed that contention.
A. Paragraph 1 of Article 8 (art. 8-1)
37. It must first be determined whether the applicant can claim to
have a "private and family life" in France within the meaning of
Article 8 para. 1 (art. 8-1).
38. As before the Commission, it was not contested by the
Government that there had been an interference in the applicant's
private and family life considered as a whole. Nevertheless, they
argued before the Court that at the time the deportation order was
executed, Mr Bouchelkia, a young single adult with no children, did not
have a family life within the meaning of the Convention and only
developed one after his illegal return to France. His companion, who
had become his wife in March 1996, must have been aware that he was in
France unlawfully; the applicant was not entitled now to rely on a
situation created in disregard of the law. At the material time, the
interference in the applicant's private life was therefore minor,
regard being had to the circumstances justifying it.
39. Mr Bouchelkia argued that when considering his family life
account had to be taken of his close relatives as well as of the family
he had established with his wife. He had arrived in France at the age
of 2 and, until his imprisonment, had lived with his mother,
stepfather, four brothers and sisters and five stepbrothers and
stepsisters born of his mother's remarriage. His relationship with his
mother had remained particularly close even during his imprisonment and
forced stay in Algeria. With the exception of his elder brother, all
his brothers and sisters had French nationality. He had returned to
France illegally with the sole objective of being reunited with the
woman who had been his companion since 1986, with whom he had had a
child in 1993 and whom he had married in 1996. His family life had
been established unlawfully - but openly and with the knowledge of the
authorities. In the applicant's submission, respect for private and
family life had to extend also to his wife and daughter, both of whom
had French nationality and could not follow him to Algeria because of
the current situation in that country.
40. The Commission considered that the deportation order would
jeopardise the continuation of Mr Bouchelkia's private and family life.
In the Delegate's submission the family life which he had been able to
build up after the deportation order could only be taken into account
in relation to the proportionality of the interference. Were the
deportation order to be executed again, that would constitute an
interference in the current family life established between the
applicant and his child of French nationality, which would be no
different from that found in the case of Boughanemi v. France (judgment
of 24 April 1996, Reports of Judgments and Decisions 1996-II).
41. The Court notes that the deportation order was made on
11 June 1990 and executed on 9 July 1990. It is with regard to the
position at that time that the question whether the applicant had a
private and family life within the meaning of Article 8 of the
Convention (art. 8) falls to be considered. Mr Bouchelkia was at that
point single and had no children. He only started his own family after
the deportation order was made, thereby consolidating his family ties
in France. At the time, he was still living with his original family
and,since the age of 2, had lived in France where he had his main
private and family ties. Like the Commission, the Court considers that
the applicant's deportation in 1990 amounted to an interference with
his right to respect for his private and family life.
B. Paragraph 2 of Article 8 (art. 8-2)
42. It is therefore necessary to determine whether the deportation
in issue satisfied the conditions of paragraph 2 (art. 8-2), that is
to say whether it was "in accordance with the law", pursued one or more
of the legitimate aims set out in that paragraph (art. 8-2), and was
"necessary in a democratic society" for the achievement of that aim or
aims.
1. "In accordance with the law"
43. It is not contested that the deportation order made against
Mr Bouchelkia was based on section 26 of the Ordinance of
2 November 1945 concerning the conditions of entry and residence of
aliens in France, as amended. The Conseil d'Etat, moreover, ruled that
it was lawful (see paragraph 15 above).
2. Legitimate aim
44. The Government and the Commission considered that the
interference in issue had aims which were entirely compatible with the
Convention, namely "the prevention of disorder or crime".
The Court comes to the same conclusion.
3. "Necessary in a democratic society"
45. The applicant argued that his private and family life, which
henceforth included the family started since his return, could only be
enjoyed in France. Having arrived at the age of 2 under the
arrangements for family reunion, his culture was French as it was in
France that he had received all his education before starting work.
Since 1986 he had only returned to Algeria when forced to do so as a
result of being deported, but did not speak or read Arabic, having
learnt only the rudiments of Kabyle, which he could not write. Since
the death of his grandparents in October 1982 and August 1985, he no
longer had any close relatives apart from his uncle who had been unable
to put him up after he had been deported, whilst his mother had
provided for his needs from France. As for the offences which he had
committed at the age of 17, the psychiatrists had noted his feelings
of guilt and a tendency to depression. He had obtained full remission
of sentence whilst in prison where he had attended vocational-training
courses. There was therefore no risk of his reoffending, especially
as he now had a new family home and a job in spite of the
precariousness of his situation. Lastly, the other
two criminal convictions were directly related to his situation as a
prisoner and to his position as an illegal immigrant respectively.
46. The Commission considered that the seriousness of the offences
committed by Mr Bouchelkia before and after the deportation order was
made and the severity of the sentences passed against him were such
that the needs of public order had to outweigh private and family
considerations. The applicant had maintained fairly significant family
ties in his country of origin and his Algerian nationality therefore
reflected definite emotional and family links.
47. Adopting the Commission's analysis, the Government stressed the
seriousness of the main offence. The subsequent behaviour of the
applicant, who had additional convictions for escaping from prison and
obstructing a police officer in the execution of his duty, was proof
that he was dangerous and held society's laws and codes in contempt.
Mr Bouchelkia had real links with his country of origin, whose
nationality, moreover, he possessed. He understood the language
perfectly well, and had, on his own admission, enormously benefited
from his stay in Algeria.
48. 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. For
that purpose they are entitled to order the expulsion of such persons
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
following judgments: Beldjoudi v. France, 26 March 1992, Series A
no. 234-A, p. 27, para. 74; Nasri v. France, 13 July 1995, Series A
no. 320-B, p. 25, para. 41; Boughanemi judgment previously cited,
pp. 609-610, para. 41; and C. v. Belgium, 7 August 1996,
Reports 1996-III, p. 927, para. 31).
49. The Court's task is to determine 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.
50. Like the Commission, the Court notes that Mr Bouchelkia, who
was 20 years old, single and had no children when the deportation order
was executed, maintained links at the material time with his country
of origin of which he was a national and where close relatives of his
lived. Neither the finding of the Colmar Court of Appeal in 1993
(see paragraph 20 above), nor the fact that the applicant now has a
family life which did not exist in 1990, leads the Court to consider
that the situation obtaining in 1990 should have been assessed
otherwise at the relevant time.
51. Furthermore, the Court attaches great importance to the nature
of the offence which gave rise to the deportation order. While it is
true that the applicant was a minor aged 17 when he committed the
serious crime (crime) of aggravated rape, that fact, the main relevance
of which was to the Juvenile Court's decision as to sentence, does not
in any way detract from the seriousness and gravity of such a crime.
52. The authorities could legitimately consider that the
applicant's deportation was, at that time, necessary for the prevention
of disorder or crime. The fact that, after the deportation order was
made and while he was an illegal immigrant, he built up a new family
life does not justify finding, a posteriori, that the deportation order
made and executed in 1990 was not necessary.
53. Having regard to the above, the Court finds that a fair balance
was struck between the relevant interests and that the decision to
deport the applicant was not disproportionate to the legitimate aims
pursued. There has therefore been no violation of Article 8 (art. 8).
FOR THESE REASONS, THE COURT
Holds by eight votes to one that there has been no violation
of Article 8 of the Convention (art. 8).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 29 January 1997.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the dissenting
opinion of Mrs Palm is annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
DISSENTING OPINION OF JUDGE PALM
I have voted for a violation of Article 8 of the Convention
(art. 8) on the following grounds.
Like the majority of the Court, I consider that the deportation
order in 1990 amounted to an interference with Mr Bouchelkia's right
to respect for his private and family life. I also share the view that
the deportation was in accordance with the law and had the legitimate
aim of "prevention of disorder or crime".
However, I cannot agree with the majority's finding that the
deportation was necessary. I find it in principle difficult to accept
that a country can be justified under the Convention in expelling a
second-generation migrant to his country of origin because of his
behaviour when almost all his ties are with his new homeland. In my
opinion there must be much stronger reasons than those advanced in the
present case to justify such an action. As a rule, second-generation
migrants ought to be treated in the same way as nationals. Only in
exceptional circumstances should a deportation of these non-nationals
be accepted.
Mr Bouchelkia was only 2 years old when he arrived in France
with his mother and an elder brother under the arrangement for family
reunion. His mother and nine brothers and sisters live in France.
Since 1986 he has had a close relationship with a French woman whom he
later married and with whom he now has a child. At the time of the
deportation order he was 20 years old and had lived eighteen years in
France where he had all his schooling and where he had worked. Since
his grandparents' death in 1985 he has - besides an uncle - no close
relatives in Algeria. He neither speaks nor reads Arabic.
Even if the crimes (rape and theft) that Mr Bouchelkia
committed were of a serious nature, it must be borne in mind that he,
at the time, was only 17 years old and that the
Haut-Rhin Juvenile Assize Court found mitigating circumstances and
sentenced him to five years' imprisonment.
Taking all these factors into account, I find it totally out
of proportion to deport Mr Bouchelkia to Algeria. He has been
convicted for the crimes he committed and he has served his sentence.
That should suffice just as it suffices for similar crimes committed
by nationals.