[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	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

[New search] [Contents list] [Help]

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.