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 the Rules of Court, as a Chamber composed of the

following judges:

 

      Mr  R. Ryssdal, President,

      Mr  F. Matscher,

      Mr  L.-E. Pettiti,

      Mr  C. Russo,

      Mr  A. Spielmann,

      Mr  J. De Meyer,

      Mr  N. Valticos,

      Mr  S.K. Martens,

      Mr  R. Pekkanen,

 

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

 

      Having deliberated in private on 25 October 1991 and

26 February 1992,

 

      Delivers the following judgment, which was adopted on the

last-mentioned date:

 

_______________

Notes by the Registrar

 

* The case is numbered 55/1990/246/317.  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.

 

** As amended by Article 11 of Protocol No. 8 (P8-11), which came into

force on 1 January 1990.

_______________

 

PROCEDURE

 

1.    The case was referred to the Court by the European Commission of

Human Rights ("the Commission") on 12 November 1990, within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention.  It originated in an

application (no. 12083/86) against the French Republic lodged with the

Commission under Article 25 (art. 25) by Mr Mohand Beldjoudi, an

Algerian citizen, and his wife Mrs Martine Beldjoudi née Teychene, a

French national, on 28 March 1986.

 

      The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby France recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46).  The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Article 8 (art. 8), taken either alone or together

with Article 14 (art. 14+8), and Articles 3, 9 and 12 (art. 3, art. 9,

art. 12).

 

2.    In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicants stated that

they wished to take part in the proceedings and designated the lawyer

who would represent them (Rule 30).

 

3.    On 22 November 1990 the President decided that, in the interests

of the proper administration of justice, this case should be

considered by the Chamber constituted on 24 May 1990 to hear the

Djeroud case* (Rule 21 para. 6).  It included ex officio

Mr L.-E. Pettiti, the elected judge of French nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 3 (b)).  The other seven members, whose names had

been drawn by lot, were Mr F. Matscher, Mr J. Pinheiro Farinha,

Sir Vincent Evans, Mr C. Russo, Mr J. De Meyer, Mr N. Valticos and

Mr R. Pekkanen (Article 43 in fine of the Convention and

Rule 21 para. 4) (art. 43).  Subsequently, Mr S.K. Martens and

Mr A. Spielmann, substitute judges, replaced Sir Vincent Evans and

Mr Pinheiro Farinha, who had resigned from the Court and whose

successors had taken up their duties before the hearing (Rules 2

para. 3, 22 para. 1 and 24 para. 1).

 

_______________

* Note by the Registrar: case no. 34/1990/225/289, struck out of the

list on 23 January 1991 following a friendly settlement (Series A

no. 191-B).

_______________

 

4.    As President of the Chamber (Rule 21 para. 5) Mr Ryssdal, through

the Registrar, consulted the Agent of the French Government ("the

Government"), the Delegate of the Commission and the lawyer for the

applicants on the organisation of the procedure (Rule 37 para. 1 and

Rule 38).  Pursuant to the orders made in consequence, the Registrar

received the applicants' memorial on 29 April 1991 and the

Government's memorial on 30 April.  On 8 July the Secretary to the

Commission informed him that the Delegate would submit his

observations at the hearing.

 

5.    Counsel for the applicants wrote to the President on

14 October 1991, as did the Agent of the Government on 17 October, on

the question whether Mr Beldjoudi would be able to attend the hearing

in person, despite his detention (Article 4 para. 1 (a) of the

European Agreement relating to Persons Participating in Proceedings

before the European Commission and Court of Human Rights).

 

6.    In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

21 October 1991.  The Court had held a preparatory meeting beforehand.

 

      There appeared before the Court:

 

(a) for the Government

 

    Mr  J.-P. Puissochet, Director of Legal Affairs,

        Ministry of Foreign Affairs,                             Agent,

    Mrs E. Florent, Administrative Court Judge,

        on secondment to the Department of Legal Affairs,

        Ministry of Foreign Affairs,

    Mr  R. Riera, Head of the Litigation Section,

        Department of Civil Liberties and Legal Affairs,

        Ministry of the Interior,                              Counsel;

 

(b) for the Commission

 

    Mr  H. Danelius,                                          Delegate;

 

(c) for the applicants

 

    Mr  B. Donche, avocat,                                     Counsel.

 

      The Court heard addresses by Mr Puissochet for the Government,

Mr Danelius for the Commission and Mr Donche for the applicants, as

well as their replies to its questions.

 

      Mr Beldjoudi was able to attend the hearing in person.

 

7.    At the hearing, the Agent of the Government and the lawyer

representing the applicants produced various documents.  On that day

and the following day, the former also provided certain information.

 

8.    On 18 November the Agent supplied further information and

observations, and produced certain documents, as the President had

invited him to do during the hearing.

 

      In a letter received at the registry on 6 December, the lawyer

for the applicants made observations on these documents, and produced

a schedule of costs and fees.

 

      On 21 February 1992, the Government submitted a memorandum.

 

AS TO THE FACTS

 

I.    The circumstances of the case

 

     A.    Introduction

 

9.    Mr Mohand Beldjoudi, who is a mechanic by profession, is an

Algerian citizen.  He was born in France on 23 May 1950, in Courbevoie

(Hauts-de-Seine department).  He lived with his parents in the Paris

region until October 1969.  His parents were born in Algeria in 1909

and 1926 respectively.  That country was a French department at the

time, and became independent on 3 July 1962, following the Evian

"Agreements" of 19 March 1962.  In common with their children, they

were deemed to have lost French nationality on 1 January 1963 (Law of

20 December 1966 - see paragraph 58 below), because they had not made

a declaration recognising French nationality before 27 March 1967

(section 2 of the Order of 21 July 1962 - see paragraph 57 below).

Mr Beldjoudi's father arrived in metropolitan France in 1926 and

served in the French army from 1931 to 1955.  He subsequently worked

until his retirement in 1970 as an assistant, later a civil servant,

in the Ministry of Public Health and Population Affairs, this being a

post reserved for French nationals.  He died in Colombes

(Hauts-de-Seine) in 1986.

 

      Mohand Beldjoudi's mother, who left Algeria in 1948, and four of

his brothers and sisters - all born in metropolitan France prior to

1 January 1963 - each have an Algerian national identity card.  They

reside in France, where they hold residence permits which are valid

for ten years and are renewable.  The youngest sister resumed French

nationality on 20 July 1988.

 

10.   Mrs Martine Teychene was born in France on 8 November 1951, both

her parents being French.  She has French nationality and works as a

secretary.

 

11.   The applicants were married at Colombes on 11 April 1970, after

living together for some time.  They live at La Garenne-Colombes

(Hauts-de-Seine); they have no children.

 

12.   Over the years Mr Beldjoudi was convicted and received custodial

sentences as follows:

 

(a) 27 March 1969, eight months' imprisonment for assault and battery

(Paris Criminal Court);

 

(b) 29 July 1974, six months' imprisonment for driving a vehicle

without a licence and possession of category one or category four

weapons or ammunition (same court);

 

(c) 10 January 1976, eighteen months' imprisonment, of which fourteen

months suspended, and four years' probation for theft (Paris Court of

Appeal);

 

(d) 25 November 1977, eight years' imprisonment for aggravated theft

(Hauts-de-Seine Assize Court);

 

(e) 28 March 1978, three months' imprisonment for acquisition and

possession of category one or category four weapons or ammunition

(Nanterre Criminal Court);

 

(f) 4 February 1986, eighteen months' imprisonment, of which ten

months suspended, and five years' probation for assault and battery

and criminal damage (same court).

 

13.   His periods of imprisonment before 1991, pending trial or after

conviction, were as follows:

 

(a) 20 July - 17 September 1968, one month and twenty-eight days;

 

(b) 25 August - 8 October 1973, one month and fourteen days;

 

(c) 3 April - 21 August 1974, four months and eighteen days;

 

(d) 26 March 1975 - 4 December 1981, six years, eight months and

eight days;

 

(e) 20 October 1985 - 25 April 1986, six months and five days.

 

      Their total length was almost seven years, ten months and two

weeks.

 

14.   On 17 January 1991 the applicant was detained on remand at

Fleury-Mérogis (Essonne) and his wife was placed under judicial

supervision in Ecos (Eure), both having been charged with aggravated

receiving of stolen property by an investigating judge at the Melun

tribunal de grande instance (Seine-et-Marne).

 

      In a judgment of 23 January 1992 the Indictments Division of the

Paris Court of Appeal ordered Mr Beldjoudi's release subject to

judicial supervision.

 

     B.    The deportation proceedings

 

      1. The deportation order

 

15.   The Minister of the Interior had on 2 November 1979 issued a

deportation order against Mr Beldjoudi, on the ground that his

presence on French territory was a threat to public order (ordre

public).

 

      The order, which was in accordance with the opinion of the

Commission on Deportation of Aliens (Commission d'expulsion des

étrangers), was served on the applicant on 14 November 1979 at Melun

Prison.

 

      2. The requests for the order to be withdrawn

 

16.   Mr Beldjoudi requested the Minister of the Interior on five

occasions to withdraw the order.  The last request, of 8 August 1984,

was the only one to receive a reply.  This was sent to his lawyer

on 4 December 1989 by the Director of the Department of Civil

Liberties and Legal Affairs at the Ministry of the Interior, and read

as follows:

 

      "Following the decision of the European Commission of Human

      Rights of 11 July 1989 declaring Mr Beldjoudi's application

      admissible [(see paragraph 62 below)], you again drew my

      attention to your client's case.  You wished in particular to

      know whether the Minister might be prepared to consider a

      friendly settlement of this matter.

 

      In the light of a careful re-examination of Mr Beldjoudi's case,

      the Minister issued a compulsory residence order (arrêté

      d'assignation à résidence) on 31 August 1989 for the Hauts-de-

      Seine department, where the applicant has his habitual residence.

 

      The residence document issued to him has attached to it

      permission to undertake paid work.

 

      This goodwill decision in favour of Mr Beldjoudi, which has been

      taken in view of his family ties, may be continued if his conduct

      is not in conflict therewith.

 

      I confirm, however, that in view of the seriousness and the

      number of the offences committed by Mr Beldjoudi, it has not

      appeared possible to revoke the deportation order issued against

      him.

 

      ..."

 

17.   The compulsory residence order was served in November 1989.

 

      3. The appeal for the order to be set aside

 

         (a) Before the Versailles Administrative Court

 

18.   On 27 December 1979 Mr Beldjoudi appealed to the Paris

Administrative Court for the deportation order to be set aside.

Having been born in France of parents who were themselves French at

the time, he was to be regarded as French and hence not liable to

deportation; further, he had no ties with Algeria and had been married

to a Frenchwoman for nearly ten years.

 

19.   The Conseil d'Etat assigned the case to the Versailles

Administrative Court, within whose local jurisdiction it fell.

 

20.   On 27 November 1980 that court ordered additional investigative

measures: it asked the Minister of the Interior to submit his

observations on the applicant's latest memorial and to produce a copy

of the decree of 16 September 1970 refusing him French nationality

(see paragraph 32 below).

 

21.   In an interlocutory judgment of 14 October 1983 it decided to

adjourn the case until the ordinary courts had decided the question of

Mr Beldjoudi's nationality (see paragraphs 34 and 35 below).

 

22.   On 8 February 1984 Mr Beldjoudi turned down the provisional

residence permit which had been offered to him by the prefecture of

the Hauts-de-Seine department, on the grounds that by accepting it he

would be acknowledging that he was of Algerian nationality.

 

23.   Mr Beldjoudi resumed the proceedings on 20 January 1988,

submitting a supplementary memorial, without waiting for a decision on

his appeal to the Court of Cassation (see paragraph 41 below).  He

argued from a law of 9 September 1986, which had amended the second

paragraph of section 25 of the 1945 Order on which the deportation

order was based: having been habitually resident in France from birth,

he could not be the subject of such an order, as he had not been

convicted and sentenced to a term of imprisonment of at least six

months not suspended or one year suspended in respect of offences

committed after the coming into force of that law.

 

24.   On 18 February 1988 Mr Beldjoudi added to his supplementary

memorial.  With reference to Article 8 (art. 8) of the Convention, he

maintained that implementation of the said order would be a serious

interference with the respect due to his private and family life; he

pointed out in this connection that he had been married to a

Frenchwoman since 1970, he had been born in France, had lived there

uninterruptedly and had received a French education and upbringing

there.

 

25.   On 21 April 1988 the court dismissed the appeal for the following

reasons:

 

      "Considering that by the order dated 2 November 1979 the Minister

      of the Interior, following the opinion of the special commission

      set up under section 25 of the Order of 2 November 1945, ordered

      the deportation of Mr Beldjoudi, an Algerian citizen, who had

      been convicted by a criminal court on 25 November 1977 and

      sentenced to eight years' imprisonment for aggravated theft;

 

      Considering that it does not appear from the case-file that the

      Minister, in deciding that the presence of Mr Beldjoudi was a

      threat to public order and consequently ordering his deportation,

      failed to examine all the evidence relating to the applicant's

      conduct or assessed that conduct in a manifestly erroneous

      manner; and that it is not alleged that this assessment was based

      on material errors of fact;

 

      Considering that Mr Beldjoudi is not justified in relying on

      provisions emanating from the Declaration of the Rights of Man

      and of the Citizen, claiming to this end the benefit of

      provisions in section 25 of the Order of 2 November 1945 as

      amended in a version subsequent to the decision appealed against;

      that having regard to the fact that the measure taken against the

      applicant was necessary for public safety, he is not entitled to

      take advantage of the provisions of Article 8 (art. 8) of the

      European Convention on Human Rights and Fundamental Freedoms;".

 

      (b) Before the Conseil d'Etat

 

26.   Mr Beldjoudi appealed to the Conseil d'Etat on 17 June 1988,

asking it to quash the judgment of 21 April 1988 and set aside the

order of 2 November 1979 as being ultra vires.

 

27.   The Government Commissioner (commissaire du Gouvernement),

Mr Ronny Abraham, made the following submissions:

 

      "The majority of the grounds of appeal should not keep you long.

      One of them, however, should induce you to re-examine, and in our

      opinion to amend, your case-law on a point which is of

      considerable importance.

 

       ...

 

      According to the appellant, the deportation order against him is

      in breach of Article 8 (art. 8) [of the Convention], as it

      constitutes an excessive interference with his family life.

      Mr Beldjoudi has been married to a Frenchwoman since

      11 April 1970.  He had thus been so married for over nine years

      at the time of the decision appealed against.

 

      In the current state of your case-law this ground of appeal would

      have to be dismissed as ineffective.

 

      Thus in a decision of 25 July 1980, Touami ben Abdeslem, [Recueil

      Lebon, tables], p. 820, and JCP [Juris-Classeur périodique]

      1981.II.19.613, note Pacteau, your court held that an alien

      `cannot to any effect rely on ... the provisions of Article 8

      (art. 8) of the Convention for the Protection of Human Rights and

      Fundamental Freedoms ... in support of his submissions asking for

      the deportation order against him to be set aside'.  Making the

      same point, but expressed slightly differently, the Chrouki

      judgment of 6 December 1985 found that Article 8 (art. 8) of the

      European Convention on Human Rights did not prevent exercise of

      the power conferred on the Minister of the Interior by section 23

      of the Order of 2 November 1945, and dismissed the ground of

      appeal without further consideration (appeal no. 55912).

 

      This is the dominant line of your case-law, although there are

      also some decisions in which you appear rather to have taken a

      position on the merits and circumstances of the case in order to

      reject the ground of appeal: the Bahi decision of 6 February

      1981, for instance, held that the requirements of Article 8

      (art. 8) of the Convention could not in the particular case

      prevent a deportation order, but the wording used is too lapidary

      to be seen as a real change of direction of your case-law.

 

      Whatever the position may be on these uncertainties, we will

      suggest to you today that you definitely abandon the solution

      laid down in the Touami ben Abdeslem judgment and adopt an

      entirely new approach to the question before us.

 

      There are three principal reasons why we suggest this new

      approach to you.

 

      The first reason is a negative one.  It is that we do not really

      see what can justify the radically unfavourable answer given in

      1980.

 

      You surely did not intend to deny Article 8 (art. 8) of the

      Convention its character as a provision which is directly

      applicable in the domestic legal order.  All your case-law is

      consistent as to the direct effect of the European Convention on

      Human Rights, nor does the actual wording of the Touami judgment

      in any way suggest such an interpretation, as Article 8 (art. 8)

      was not rejected as such, but only with reference to the removal

      of aliens.

 

      Was it your intention rather to apply the technique of the

      'screen law', considering that as the law gives a complete and

      exclusive definition of the legal conditions for deportation, the

      addition of supplementary conditions derived from international

      agreements would amount to disregarding the legislature's

      intention?  If that was the reason for your decision at the time,

      it would clearly no longer be applicable today, following your

      plenary court decision of 20 October 1989 in the Nicolo case,

      according to which treaties take precedence over laws, even if

      the laws postdate them.  But we doubt whether this was the

      explanation of your decision in Touami: the decision related to a

      1978 deportation order; but at that time the relevant internal

      legislation was not subsequent but prior to France's ratification

      of the Convention, and the 'screen law' theory explanation is

      thus not tenable.

 

      More simply, it seems probable to us that you considered that a

      deportation order was not in itself an interference with the

      alien's family life: if the alien has family ties on French

      territory, nothing prevents the other members of the family group

      leaving France with him.  But this is a very theoretical way of

      looking at things.  It is no doubt correct that in certain cases

      there is nothing to prevent the family leaving French territory;

      but in other cases, especially if the alien has a spouse or

      children of French nationality, it may be difficult on practical

      or even legal grounds for the other members of the family to

      follow him, with the effect that the expulsion measure

      jeopardises the pursuit of an ordinary family life.  In any

      event, it is in our opinion not possible to state that a

      deportation measure can never of itself be capable of interfering

      with the family life of the person concerned, and there is no

      reason to dismiss a priori as ineffective a ground of appeal

      based on Article 8 (art. 8).

 

      There is a second reason which supports us in this view: your

      case-law is not at all in harmony with that developed by the

      European Court of Human Rights in recent years.

 

      In the Berrehab v. the Netherlands judgment of 21 June 1988 the

      Strasbourg Court defined for the first time the possible impact

      of Article 8 (art. 8) on expulsion measures against aliens.  The

      substance of its decision was that where the alien has real

      family ties in the territory of the State in which he is resident

      and the expulsion measure is such as to jeopardise the

      maintenance of those ties, the measure is justified with regard

      to Article 8 (art. 8) only if it is proportionate to the

      legitimate aim pursued, in other words, if the interference with

      family life which follows from it is not excessive with respect

      to the public interest to be protected.  This balance between the

      public and private interests induced the Court to find in the

      Berrehab case that there had been a violation of the Convention

      by the Netherlands, with respect to an alien who was the father

      of a child born of a (dissolved) marriage with a Netherlands

      woman and who had been refused renewal of his residence permit

      for purely economic reasons, reasons which were indeed

      legitimate, but which led in the particular case to consequences

      whose seriousness was not proportionate to the public interest

      pursued.

 

      Such an intellectual approach ought not to disconcert you, and we

      see nothing to prevent you henceforth adopting it as yours with

      reference to the deportation of aliens, provided of course that

      Article 8 (art. 8) of the Convention is in fact pleaded.

 

      Reviewing proportionality is among your tried and tested

      techniques, and the concept of a balance to be struck between

      divergent public and private interests is certainly

      not unfamiliar to you, since you constantly make use of it in

      certain contexts.  Admittedly, the field of deportation has until

      now been dominated rather by the concept of discretionary power

      and its corollary of a limited power of review restricted to

      manifest abuse of discretion.  But even in this field you carry

      out a complete review where the statutory provisions require this

      - as in the case of the concepts of 'absolute urgency' and

      'compelling necessity for national security' which exceptionally

      permit the expulsion of aliens belonging to categories who in

      principle are protected against such a measure, under the

      legislation in force after 1981 - and in our opinion the same

      should apply in the case of the application of Article 8 (art. 8)

      of the Convention.

 

      Furthermore - and here we come to our final argument -

      maintaining your case-law as in Touami ben Abdeslem would have

      the awkward consequence of making appeals to the Strasbourg

      institutions directly available to aliens who were the subject of

      a deportation order and complained of an interference with their

      family life, without their being obliged first to have recourse

      to the domestic courts.

 

      For it is a known fact that, according to the consistent case-law

      of the European Commission of Human Rights, the rule that

      domestic remedies must first be exhausted, which under Article 26

      (art. 26) of the Convention is a condition of admissibility of

      individual applications submitted to the Commission, must be

      understood as imposing on an applicant the obligation only to

      have prior recourse to domestic remedies which have a reasonable

      chance of success, having regard in particular to the case-law of

      the highest courts, with the effect that a definite line of case-

      law excluding a priori the taking into account of Article 8

      (art. 8) of the Convention would entitle an alien to take his

      claims directly to the European institutions.

 

      The present case is a perfect illustration of this.  Without

      waiting for you to give a decision and hence before having

      exhausted all possible domestic remedies, Mr Beldjoudi lodged

      with the European Commission of Human Rights an application

      complaining of a violation of Article 8 (art. 8) of the

      Convention which he claimed to be the victim of.  Despite the

      proceedings still pending before you, the European Commission of

      Human Rights declared the application admissible in a decision of

      11 July 1989, referring in particular to your Touami ben Abdeslem

      decision.

 

      Further, after adopting its report, the European Commission of

      Human Rights referred the application to the European Court of

      Human Rights, and the same case is thus simultaneously pending

      before you and before the Strasbourg Court, which will no doubt

      give a decision this year.  This is an exceptional situation,

      which cannot be regarded as satisfactory or normal with respect

      to the control machinery set up by the European Convention on

      Human Rights, which is based on the concept of the subsidiarity

      of control by the European institutions to control by the

      domestic courts.

 

      The only way to avoid such a situation occurring again, and

      indeed to avoid the domestic courts losing jurisdiction

      altogether in favour of the European Court, consists in you

      yourselves reviewing compliance with Article 8 (art. 8) rather

      than leaving this task to the Strasbourg institutions, whom

      incidentally you would not be doing a favour by allowing

      applicants immediate access to them.

 

      If you agree with us on this question of principle, you will then

      have to make a decision on two points in the present case:

      firstly, does the deportation of Mr Beldjoudi constitute an

      'interference' with his 'right to respect for his family life',

      to use the language of Article 8 (art. 8)?  Secondly, is this

      'interference' necessary and proportionate to the aim pursued, in

      the circumstances of the case?

 

      We suggest that you answer both questions in the affirmative.

 

      In our opinion, it cannot be doubted that the deportation of the

      applicant jeopardises his family life to a certain extent.

 

      No doubt the possibility cannot be excluded of his French spouse

      being able to follow him abroad, which in practice means to

      Algeria.  But it must be admitted that that would not be easy,

      and that legal and practical obstacles could make it difficult

      for the couple to restart life abroad.

 

      However, the serious nature of the offences committed by the

      applicant appears to us to justify the deportation order issued

      against him, and the interference with the applicant's family

      life is in the instant case not disproportionate to the threat to

      public order which the applicant's presence on French territory

      represented on 2 November 1979, the date for you to have

      reference to.

 

      We are indeed far removed from the circumstances which gave rise

      to the above-mentioned Berrehab judgment.

 

      From 1969, when he was only nineteen years of age, Mr Beldjoudi

      committed various offences for which he received various

      convictions: assault and battery, driving a vehicle without a

      licence, carrying a prohibited weapon.

 

      Above all, on 5 February 1975 he gained entry at night, together

      with accomplices, to the residence of two people who were

      subjected to violence by the criminals in order to steal their

      savings.  For these acts the applicant was convicted on 25

      November 1977 and sentenced to eight years' imprisonment for

      aggravated theft.

 

      In these circumstances, the decision taken with respect to him in

      1979 does not appear to us to have been disproportionate to the

      aim pursued, or to be excessive even having regard to the family

      consequences it has for the applicant.

 

      In one pan of the scales one must place the public interest in

      the removal of an individual who is a serious threat to the

      safety of persons and property.  In the other pan one must bear

      in mind the difficulties Mr Beldjoudi and his wife (the couple

      have no children) would have in resettling abroad without

      damaging their family life.  It seems to us that the balance is

      tilted towards the public interest.

 

      We would not have any doubt in reaching this conclusion, had not

      the European Commission of Human Rights - as it is now necessary

      to mention - adopted an opposite position, in the report it drew

      up on this case under Article 31 para. 1 (art. 31-1) of the

      Convention and which it referred to the Court together with the

      application.

 

      The Commission was of the opinion, by twelve votes to five, that

      the deportation of Mr Beldjoudi constituted a violation of

      Article 8 (art. 8).

 

      The greatest regard must of course be had to such an opinion, but

      it must, however, not be forgotten that it is only an opinion,

      albeit a highly authoritative one and deserving of respect, as

      the Commission in a sense fulfils for the Court the same function

      as the Government Commissioner before your court; this is a

      sufficient indication of its importance, but the Court is not

      obliged to follow it; and in the past the Court has on several

      occasions differed from the Commission's opinion.

 

      We for our part are unable to agree with the Commission's

      reasoning.  It is clear from reading its report that it based

      itself not so much on Mr Beldjoudi's matrimonial ties, as on the

      fact that the applicant was born in France, has always lived

      there, appears not to have personal ties with Algeria, and does

      not know the Arabic language and that, in the words of the

      Commission, 'the nationality link, though a legal reality, in no

      way reflects the real situation in human terms' (see paragraph 64

      of the report).

 

      We appreciate the significance in human terms of these facts.

      Under the post-1981 legislation they might perhaps have protected

      Mr Beldjoudi against deportation, despite the seriousness of the

      offences committed by him.  But they appear to us to have nothing

      to do with the concept of 'family life' protected by Article 8

      (art. 8), or with that of 'private life', which two members of

      the Commission, in a concurring but separate opinion annexed to

      the report, suggested as a better basis for a finding of a

      violation of Article 8 (art. 8).

 

      In fact, what the Commission intended to protect was not the

      applicant's 'family life' or 'private life' but rather his

      personal life and social life.  But that seems to us to be

      outside the scope of the Article relied on.

 

      We add for the sake of completeness of information that the

      deportation of Mr Beldjoudi has not actually been enforced and

      that the authorities have, in a spirit of conciliation, assigned

      him to compulsory residence in the Hauts-de-Seine department,

      where he still is.

 

      For all these reasons, we submit that the appeal should be

      dismissed."

 

28.   On 18 January 1991 the Conseil d'Etat ruled in accordance with

the above submissions, and gave the following reasons for its

decision:

 

      "The technical correctness of the judgment appealed against

 

      Considering, firstly, that contrary to what the appellant

      maintains, the judgment appealed against did not omit to rule on

      the ground of appeal based on the application of section 25 of

      the Order of 2 November 1945;

 

      Considering, secondly, that it follows from a judgment of the

      Versailles Court of Appeal of 14 October 1987, given prior to the

      judgment appealed against, that the appellant is of Algerian

      nationality; that the Administrative Court was thus rightly able

      to regard the question of nationality, on which it had by an

      earlier judgment adjourned a decision, as having been settled and

      to give no decision on the ground of appeal based on

      Mr Beldjoudi's French nationality, abandoned by him;

 

      The lawfulness of the Minister of the Interior's order

      of 2 November 1979

 

      Considering that Mr Beldjoudi, who did not raise any ground of

      appeal before the Administrative Court relating to the outward

      legality of the order for his deportation, is in any event not

      entitled to raise for the first time on appeal arguments based on

      the lack of reasons in the opinion of the Commission on

      Deportation, the order pronouncing deportation and the letter

      notifying it, which are based on legal grounds different from

      those on which his application at first instance was based;

 

      Considering that according to section [23] of the Order of

      2 November 1945, in the wording in force at the time of the

      decision appealed against, prior to the Law of 29 October 1981,

      'deportation may be ordered by an order of the Minister of the

      Interior if the alien's presence on French territory constitutes

      a threat to public order or public finance'; that it can be seen

      from the documents in the case-file that the aforesaid measure

      was taken by the Minister of the Interior after he had taken into

      consideration not only the criminal convictions pronounced

      against Mr Beldjoudi but also the totality of Mr Beldjoudi's

      conduct; that it is thus not tainted by error of law;

 

      Considering that under Article 8 (art. 8) of the European

      Convention for the Protection of Human Rights and Fundamental

      Freedoms, '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'; that the measure appealed

      against, based on the defence of public order, was necessary for

      the defence of that order in view of the applicant's conduct and

      the seriousness of the offences committed by him; that in these

      circumstances it was not in violation of Article 8 (art. 8) of

      the said Convention;

 

      Considering that it follows from the foregoing that Mr Beldjoudi

      is not justified in requesting the quashing of the judgment

      appealed against, by which the Versailles Administrative Court

      dismissed his claim that the order of the Minister of the

      Interior of 2 November 1979, requiring him to leave French

      territory, be set aside;" (Recueil Lebon 1991, p. 18)

 

      4. The applications for a stay of execution

 

29.   On 27 December 1979 Mr Beldjoudi had lodged with the registry of

the Conseil d'Etat an application for a stay of execution.  It was

dismissed by the court on 16 May 1980, on the grounds that "none of

the arguments relied on appear[ed] such as to justify withdrawal of

the deportation order".

 

30.   While his appeal for the order to be set aside was pending before

the Versailles Administrative Court (see paragraphs 18-25 above), the

applicant twice requested a stay of execution.  The requests, which

were registered on 26 March 1986 and 22 February 1988, were joined to

the merits of the case and dismissed on 21 April 1988 (see

paragraph 25 above).

 

     C.    The applications for resumption or recognition of

      French nationality

 

      1. The application for resumption

 

31.   On 1 April 1970, eleven days before his marriage, Mr Beldjoudi

made a declaration before the Colombes tribunal d'instance with a view

to resumption of French nationality.  He relied on section 3 of the

Law of 20 December 1966, which allowed such a right to minor children

born before 1 January 1963 whose parents had not made such a

declaration.

 

32.   A prime ministerial Decree, adopted on 16 September 1970 in

accordance with the opinion of the Conseil d'Etat and served on

3 February 1972, refused him recognition of French nationality

(section 4 of the Decree of 27 November 1962).

 

33.   The applicant was at his request registered with the 1973 intake,

and on 7 July 1971 at Blois he was given a certificate of fitness for

national service, issued by the commanding officer of the French Army

selection centre no. 10.  He did not do the said military service,

however, as the commanding officer of the Versailles recruitment

office had deleted his name from the register on 25 June 1971.

 

      2. The application for recognition

 

         (a) Before the Colombes tribunal d'instance

 

34.   On 17 June 1983 Mr Beldjoudi submitted a declaration of

nationality to the Colombes tribunal d'instance, accompanying it by

supporting documents.  He claimed that he had enjoyed uninterrupted

ostensible possession (possession d'état) of French status.

 

35.   On 15 July the judge sent the file back to the applicant's

lawyer, informing him that the applicant should apply to the

prefecture of the Hauts-de-Seine department with a request for

naturalisation.

 

36.   On 21 December Mr Beldjoudi asked the judge in question to issue

him with a certificate of French nationality.  In an opinion of

28 December the judge declined, as the evidence produced was not

sufficient to prove that the applicant enjoyed French nationality.

 

         (b) Before the Nanterre tribunal de grande instance

 

37.   On 17 January 1984 the applicant started proceedings against the

procureur de la République in the Nanterre tribunal de grande

instance, in order to have his French nationality recognised.

 

38.   The court dismissed the claim on 15 December 1985, on the grounds

that the applicant had lost French nationality on 1 January 1963,

pursuant to the second paragraph of section 1 of the Law of

20 December 1966 (see paragraph 58 below).

 

         (c) Before the Versailles Court of Appeal

 

39.   Mr Beldjoudi appealed against the judgment to the Versailles

Court of Appeal on 7 March 1986.  He maintained that his father had

not passed on to him anything which would allow him to claim an

Algerian identity as to culture and language, that the Islamic

religion was foreign to him, that he had ostensible possession of

French status, and that the challenge to his French nationality on the

basis of his Islamic status represented a discriminatory interference

with his freedom of conscience and his right to lead a normal family

life, in manifest breach of Articles 3, 8, 9, 12 and 14 (art. 3,

art. 8, art. 9, art. 12, art. 14) of the Convention.

 

40.   The Court of Appeal dismissed his appeal on 14 October 1987.  It

gave the following reasons for its decision:

 

      "Considering that civil status is transmitted by descent; that a

      child born of two parents with special civil status (statut civil

      de droit local) possesses that status; that prior to Algerian

      independence Mr Beldjoudi senior did not, as he could have done,

      declare that he renounced his personal special civil status in

      order to acquire normal civil status (statut civil de droit

      commun); that the fact that Mr Mohand Beldjoudi had Islamic

      special civil status concerned only the rules applicable to the

      exercise of his civil rights and respected his freedom of

      religious conviction and did not require him to adhere to the

      Islamic religion; that, contrary to his claims, Mr Beldjoudi

      cannot claim for himself and his father ostensible possession of

      French status when, according to a letter from the Prefect and

      Commissioner of the Republic for the Department of Hauts-de-Seine

      dated 4 June 1984, his father, brothers and sisters have all for

      many years been holders of Algerian national identity cards and

      aliens' residence permits, and he himself has never since

      Algerian independence held documents such as a French national

      identity card or a French passport providing evidence of his

      ostensible possession of French status, but was the subject of a

      deportation order on 2 November 1979 which has apparently

      not prevented him up to now leading a normal family life in

      France; that accordingly the final ground of appeal he relies on,

      based on ostensible possession of French status and a violation

      of the European Convention on Human Rights, which was moreover

      not in force when he lost French nationality, must be dismissed;"

 

      The decision was served on the applicant on 20 July 1989.

 

         (d) Before the Court of Cassation

 

41.   Mr Beldjoudi had appealed on 15 February 1989.  The appeal was

dismissed by the Court of Cassation (First Civil Division) on

12 March 1991 for the following reasons:

 

      "Whereas according to the recitals of the judgment appealed

      against (Versailles, 14 October 1987), Mr Mohand Beldjoudi, born

      at Courbevoie on 23 May 1950, the son of Seghir Beldjoudi, born

      on 9 April 1909 at Sidi-Moufouk (Algeria), and Hanifa Khalis,

      born in 1926 at Elflaya (Algeria), brought proceedings in order

      to have his French nationality recognised; and whereas his

      application was dismissed on the grounds that, being aged under

      eighteen on the coming into force of Order no. 62-825 of

      21 July 1962, he had, as regards the effect of the independence

      of Algeria on his nationality, followed the status of his

      parents, who were natives of that territory and had special civil

      status, and, not having benefited from the collective effect of a

      declaration recognising French nationality made by his father at

      the appropriate time, he was deemed to have lost French

      nationality on 1 January 1963, in accordance with paragraph 2 of

      section 1 of Law no. 66-945 of 20 December 1966;

 

      Whereas Mr Beldjoudi complains that the judgment appealed against

      reached its decision on an invalid ground, namely that review of

      the constitutionality of the Law of 20 December 1966 was not a

      matter for the ordinary courts, in dismissing his ground of

      appeal based on the fact that the said Law was contrary to the

      provisions of Article 5 (d) (iii) of the International Convention

      of 7 March 1966 on the Elimination of All Forms of Racial

      Discrimination, ratified by France and published in the Official

      Journal of 10 November 1971, which prohibited all discrimination

      based on origin, especially ethnic origin, in the granting or

      withdrawing of nationality of the citizens of member States;

 

      But whereas the judgment appealed against held that Law no. 66-

      945 of 20 December 1966 based itself, in order to regulate the

      consequences for nationality of Algerian independence, on the

      civil status of persons originating from that territory and not

      on criteria prohibited by the aforesaid convention;

 

      It follows that the judgment does not warrant the criticism made

      of it by the ground of appeal, which cannot be upheld;"

 

II.   Relevant domestic law

 

     A.    Deportation of aliens

 

42.   Deportation of aliens is governed by the provisions of the Order

of 2 November 1945 relating to the conditions of entry and residence

of aliens in France.  The wording of the Order has been amended on

several occasions, including amendments subsequent to 2 November 1979,

the date when the ministerial order relating to the applicant was

issued (see paragraph 15 above).  The legislation in question did not

include any transitional provisions.

 

      1. Grounds for deportation

 

         (a) The position in 1979

 

43.   In 1979, section 23 of the 1945 Order read as follows:

 

      "... deportation may be ordered by an order of the Minister of

      the Interior if the alien's presence on French territory

      constitutes a threat to public order or public finance."

 

         (b) The situation after 1979

 

44.   Section 23 was amended by a Law of 29 October 1981, under which

deportation was now subject to the existence of a "serious threat to

public order".

 

      Section 26 of the new Law, however, provided for a derogation,

except in the case of aliens under eighteen years of age:

 

      "In the event of absolute urgency ..., deportation may be ordered

      where it constitutes a compelling necessity for the security of

      the State or for public safety.

 

      ..."

 

45.   These rules were altered by a Law of 9 September 1986.

 

      Section 23 resumed its original wording, that of 1945.  It added,

however, that "the deportation order [could] be revoked at any time by

the Minister of the Interior".

 

      As for section 26, it stated that "a threat [to public order]

having a particularly serious character" could in the event of

absolute urgency justify deportation.

 

46.   A Law of 2 August 1989 reintroduced the 1981 provisions.

 

47.   The Minister of the Interior issued 383 deportation orders in

1990.  Of these, 101 were based on section 26 of the 1945 Order,

54 relating to ordinary criminal offences and 47 to offences against

the external or internal security of the State.

 

      2. Persons liable to deportation

 

         (a) The position in 1979

 

48.   The 1945 Order did not define any categories of persons who were

protected against all deportation measures.

 

         (b) The position after 1979

 

49.   By contrast, after being amended by the Law of 29 October 1981,

section 25 of the Order stated:

 

      "The following may not be the subject of a deportation order

      under section 23:

 

      1. An alien under eighteen years of age;

 

      2. An alien who proves by any means that he has habitually

      resided in France since attaining the age of ten years at the

      most;

 

      3. An alien who proves by any means that he has habitually

      resided in France for over fifteen years, and also an alien who

      has lawfully resided in France for over ten years;

 

      4. An alien who has been married for at least six months and

      whose spouse is of French nationality;

 

      5. An alien who is the father or mother of a French child

      residing in France, provided that he exercises parental authority

      (at least in part) with respect to that child or is actually

      meeting his needs;

 

      6. An alien who is the beneficiary of a pension in respect of an

      accident in employment or occupational illness paid by a French

      organisation, and whose permanent disability percentage is

      greater than or equal to 20%;

 

      7. An alien lawfully residing in France under one of the

      residence documents provided for by the present Order or

      international agreements, and who has not been definitively

      convicted and sentenced to a penalty equivalent at least to one

      year's non-suspended imprisonment.

 

      However, as a derogation from no. 7 above, any alien who has been

      definitively convicted and sentenced to a penalty of non-

      suspended imprisonment for any length of time for an offence

      under sections 4 and 8 of Law no. 73-548 of 27 June 1973 on

      multiple occupation, Article L.364-2-1 of the Code of Employment

      or Articles 334, 334-1 and 335 of the Criminal Code, may be

      deported.

 

      ..."

 

50.   The Law of 9 September 1986 restricted the categories of non-

deportation, but the Law of 2 August 1989 returned to the 1981

legislation.

 

      3. Enforcement of deportation

 

51.   Deportation is regarded in French law as a police measure, not a

criminal sanction.  An alien affected does not benefit from the

retrospective effect of the more favourable later provisions.  He can

thus not rely on them in support of an application for a decision

concerning him to be set aside.

 

52.   Once a deportation order has been issued by the Minister of the

Interior, it remains in force indefinitely.  The alien concerned may

at any time, as often as he wishes, request that it be revoked.

 

53.   If the alien has been absent from French territory for over five

years and wishes to obtain such revocation, his request is considered

by a committee which consists of judges only.  If the committee finds

in his favour, its opinion is binding on the Minister.

 

54.   It frequently happens that the Minister of the Interior waives

enforcement of a deportation order while nevertheless declining to

revoke it.  In such cases a compulsory residence order is issued in

respect of the alien, in the hope of his reintegration into society.

If he continues to disturb public order, he may be deported.  This is

then a fresh decision, separable from the order and itself capable of

being challenged before the administrative court judge.

 

      If the matter is referred to the judge, he considers the

behaviour of the person concerned during the period when his presence

on French territory has been tolerated.  In order to assess the

lawfulness of the measure, he thus considers the facts as they are at

the date when he takes his decision.

 

      4. The case-law of the Conseil d'Etat

 

55.   For a period of some ten years the Conseil d'Etat considered

arguments based on Article 8 (art. 8) of the Convention to be of no

effect as against a deportation order (see for example the Touami ben

Abdeslem judgment of 25 July 1980, Recueil Lebon 1980, p. 820, and

Juris-Classeur périodique 1981, jurisprudence, no. 19613, with note by

Mr Bernard Pacteau, and the Chrouki judgment of 6 December 1985).

 

      The Beldjoudi judgment of 18 January 1991 (see paragraph 28

above) marks the abandonment of this line of case-law.  Instead of

reviewing whether there has been a manifest error of discretion with

reference only to the threat to public order, the court now carries

out a complete review of proportionality, and this has sometimes led

to the setting aside of deportation orders (see for example the

Belgacem judgment of 19 April 1991 (plenary court), with submissions

by Government Commissioner Mr Ronny Abraham, Revue française de droit

administratif 1991, pp. 497-510, and the Hadad judgment of 26 July

1991 (the President of the Judicial Division), to be reported in the

Recueil Lebon).

 

     B.    Acquisition of French nationality

 

      1. Recognition of nationality

 

        (a) The Law of 28 July 1960

 

56.   The Law of 28 July 1960 inserted into the Code of Nationality a

Part VII, "Recognition of French Nationality".

 

      It was limited to overseas territories (TOM), and introduced a

new method for certain categories of "domiciled persons" and their

descendants to have their French nationality recognised, subject to

the two conditions of settling on French territory and making a

declaration.

 

        (b) The Order of 21 July 1962

 

57.   Algeria did not have the status of a TOM when it gained

independence.  This induced the French legislature to enact the Order

of 21 July 1962 relating to various provisions on nationality.

 

      Under this Order persons of normal civil status, and persons of

special civil status who had not been granted Algerian nationality

under Algerian law, kept their French nationality as of right.

 

      With respect to other persons of special civil status - the

category to which the applicant's family belonged - section 21

provided that as from 1 January 1963 they and their children would not

be able to establish their French nationality except by showing that

they had made a declaration of "recognition of French nationality".

 

        (c) The Law of 20 December 1966

 

58.   The Law of 20 December 1966 terminated the application of the

1962 Order as from 21 March 1967.  It brought about the loss  of

French nationality in the absence of a declaration of recognition.

 

      Paragraph 2 (c) of section 1 of the Law stated that:

 

      "Persons of special civil status of Algerian origin who have not

      by that date made the declaration provided for in Article 152 of

      the Code of Nationality shall be deemed to have lost French

      nationality on 1 January 1963.  However, persons of special civil

      status of Algerian origin shall keep French nationality as of

      right if no other nationality has been conferred on them after

      3 July 1962."

 

      Section 3 nevertheless offered minor children born before

1 January 1963 - such as the applicant - the possibility of resuming

French nationality where the parent whose nationality they had taken

had not made the declaration of recognition.

 

        (d) The Law of 9 January 1973

 

59.   The Law of 9 January 1973 abolished recognition and deleted this

word from the Code of Nationality.  Part VIII of the Code, completely

rewritten, laid down for the future special conditions for resumption

of nationality for certain categories of persons who had lost French

nationality following the gaining of independence by their country.

 

      2. Naturalisation

 

60.   Naturalisation is granted by decree.  It may be granted inter

alia to "nationals or former nationals of territories or States over

which France has exercised sovereignty or a protectorate or a mandate

or trusteeship" (paragraph 5 of Article 64 of the Code of

Nationality).

 

      However, "an alien who has been the subject of a deportation

order or a compulsory residence order shall not be eligible for

naturalisation unless such order has been revoked in the form in which

it was issued" (first paragraph of Article 65).  In addition, "no one

may be naturalised if he is not of good character and morals or if he

has been convicted of one of the offences mentioned in Article 79 ..."

(Article 68).

 

PROCEEDINGS BEFORE THE COMMISSION

 

61.   In their application (no. 12083/86) lodged with the Commission on

28 March 1986 Mr and Mrs Beldjoudi alleged that the deportation order

against Mr Beldjoudi violated several provisions of the Convention:

Article 8 (art. 8), by infringing their right to respect for their

private and family life; Article 3 (art. 3), as the probable refusal

of the Algerian authorities to issue Mr Beldjoudi with a passport

allowing him to leave Algeria would constitute inhuman and degrading

treatment; Article 14 in conjunction with Article 8 (art. 14+8), by

discriminating on the grounds of Mr Beldjoudi's religious beliefs or

ethnic origin; Article 9 (art. 9), by interfering with their freedom

of thought, conscience and religion; and Article 12 (art. 12), by

infringing their right to marry and to found a family.

 

62.   The Commission declared the application admissible on

11 July 1989.  In its report of 6 September 1990 (Article 31)

(art. 31), it expressed the opinion:

 

(a)   that the deportation of Mr Beldjoudi would violate his and his

spouse's right to respect for their family life within the meaning of

Article 8 (art. 8) (twelve votes to five), but would not violate

Article 3 (art. 3) (unanimously);

 

(b)   that there had not been a failure to comply with the requirements

of Article 14 in conjunction with Article 8 (art. 14+8) (unanimously)

or with those of Articles 9 and 12 (art. 9, art. 12) (unanimously).

 

      The full text of the Commission's opinion and of the two separate

opinions contained in the report is reproduced as an annex to this

judgment*.

 

_______________

* Note by the Registrar: For practical reasons this annex will appear

only with the printed version of the judgment (volume 234-A of Series

A of the Publications of the Court), but a copy of the Commission's

report is obtainable from the registry.

_______________

 

FINAL SUBMISSIONS TO THE COURT

 

63.    In their memorial the Government asked the Court "to hold that

in the present case there [had] not been a violation of Article 8

(art. 8) of the Convention, or of the other Articles relied on by the

applicants".

 

64.   Counsel for the applicants made the following final submissions:

 

      "Mr and Mrs Beldjoudi ask the Court:

 

      to hold that the deportation order issued against

      Mr Mohand Beldjoudi by the French Government on 2 November 1979

      constitutes a violation both of Article 8 (art. 8) of the ...

      Convention ... and of Article 8 in conjunction with Article 14

      (art. 14+8) of the said Convention.

 

      Should the French Government not put an end to this violation

      without delay, Mr and Mrs Beldjoudi ask that France be ordered to

      pay them, as compensation for the damage resulting from these

      violations, the sum of 10,000,000 French francs as damages and

      the sum of 100,000 French francs as reimbursement of

      irrecoverable costs incurred for the defence of their interests

      before the European Commission and Court of Human Rights."

 

AS TO THE LAW

 

I.    ALLEGED VIOLATION OF ARTICLE 8 (art. 8)

 

65.   The applicants claimed that the decision to deport Mr Beldjoudi

interfered with their private and family life.  They relied on

Article 8 (art. 8) of the Convention, which reads as follows:

 

      "1.  Everyone has the right to respect for his private and family

      life, his home and his correspondence.

 

      2.   There shall be no interference by a public authority with

      the exercise of this right except such as is in accordance with

      the law and is necessary in a democratic society in the interests

      of national security, public safety or the economic well-being of

      the country, for the prevention of disorder or crime, for the

      protection of health or morals, or for the protection of the

      rights and freedoms of others."

 

      This claim was disputed by the Government, but the Commission

agreed with it, at least with regard to family life.

 

     A.    Paragraph 1 of Article 8 (art. 8-1)

 

66.   The Government initially expressed doubt as to the existence of a

real family life linking Mr Beldjoudi on the one hand and his parents,

brothers and sisters and his wife on the other hand.  They did not

repeat this point before the Court.

 

67.   The Court merely notes, in agreement with the Commission, that

enforcement of the deportation order would constitute an interference

by a public authority with the exercise of the applicants' right to

respect for their family life, as guaranteed by paragraph 1 of

Article 8 (art. 8-1).

 

     B.    Paragraph 2 of Article 8 (art. 8-2)

 

68.   It must therefore be determined whether the expulsion in issue

would comply with the conditions of paragraph 2 (art. 8-2), that is to

say, whether it would be "in accordance with the law", directed

towards one or more of the legitimate aims listed, and "necessary" for

the realisation of those aims "in a democratic society".

 

      1. "In accordance with the law"

 

69.   The Court, in agreement with those appearing before it, takes

note that the ministerial order of 2 November 1979 was based on

section 23 of the Order of 2 November 1945 relating to the conditions

of entry and residence of aliens in France (see paragraph 43 above).

It was also found to be lawful by the Conseil d'Etat in its judgment

of 18 January 1991 (see paragraph 28 above).

 

      2. Legitimate aim

 

70.   The Government and the Commission considered that the

interference in issue was directed at aims which were entirely in

accordance with the Convention, the "prevention of disorder" and the

"prevention of crime".  The applicants did not dispute this.

 

      The Court reaches the same conclusion.

 

      3. "Necessary in a democratic society"

 

71.   The applicants argued that the deportation of Mr Beldjoudi could

not be regarded as "necessary in a democratic society".

 

      They relied on a number of circumstances.  Thus, Mr Beldjoudi was

born in France of parents who originated from a territory which was

French at the time, namely Algeria; he had always lived in France, as

had his brothers and sisters (see paragraph 9 above); he stated that

he did not know Arabic, and had received a French education and

upbringing; he had married a Frenchwoman in 1970 (see paragraphs 10-11

above), who would be forced to go into exile from her own country in

order not to be separated from her husband; he claimed to have had

ostensible possession of French status until 3 February 1972, when he

was served with the prime ministerial decree refusing to recognise his

French nationality (see paragraph 32 above); the Prefect of Hauts-de-

Seine had early in 1984 offered him a temporary residence permit (see

paragraph 22 above) and the Minister of the Interior had issued a

compulsory residence order in his favour on 31 August 1989 (see

paragraph 16 above); he would not have been liable to deportation if

the Laws of 29 October 1981 and 9 September 1986 had entered into

force earlier (see paragraphs 44 and 45 above).

 

      In short, Mr Beldjoudi - who does not regard himself as a "second

generation immigrant" - and his wife claimed that all their family

ties, social links, cultural connections and linguistic ties were in

France.  They claimed that there were no exceptional circumstances

which could justify deportation.

 

72.   The Commission agreed in substance with this argument, but

attached particular weight to two additional factors.  Firstly,

Mrs Beldjoudi might have good grounds for not following her husband to

Algeria, especially as she had reason to believe at the time of her

marriage that she would be able to continue living with him in France.

Secondly, the offences committed by Mr Beldjoudi - both before and

after the deportation order - were ultimately not of such a type that

the requirements of public order should outweigh considerations of a

family nature.

 

73.   The Government's first argument was based on the nature of the

facts justifying the deportation.  They stressed the large number and

serious nature of the offences committed by Mr Beldjoudi, all of them

during his adult life, over a period of fifteen years (see

paragraph 12 above).  They also noted the severity of the sentences

passed by the French courts, in particular by the Hauts-de-Seine

Assize Court for an offence classified as a serious crime (see

paragraph 12 above); they totalled over ten years in prison.  Finally,

they pointed out that Mr Beldjoudi had continued with his life of

crime even after being served with the deportation order, and that he

was currently detained on remand, charged with a fresh offence (see

paragraphs 12 and 14 above).  In short, the dangerous character of

Mr Beldjoudi meant that his presence on French territory could not be

tolerated by the community.

 

      The Government also considered that the extent of the

interference complained of should not be exaggerated.  Only the family

life of the applicants as spouses was relevant, as Mr Beldjoudi had

not lived with his parents since 1969 and did not contribute to the

maintenance of his brothers and sisters; furthermore, the couple had

no children.  But the applicants had had to separate for long periods

because of Mr Beldjoudi's terms of imprisonment.  Moreover,

Mr Beldjoudi had not shown that his wife would be unable to accompany

him to Algeria (a State which had preserved numerous ties with France)

or a third country, if he were in fact compelled to leave French

territory.  In short, the difficulties of resettling outside France

without destroying family life would not be insurmountable.

 

74.   The Court acknowledges that it is for the Contracting States to

maintain public order, in particular by exercising their right, as a

matter of well-established international law and subject to their

treaty obligations, to control the entry, residence and expulsion of

aliens (see the Abdulaziz, Cabales and Balkandali v. the United

Kingdom judgment of 28 May 1985, Series A no. 94, p. 34, para. 67, the

Berrehab v. the Netherlands judgment of 21 June 1988, Series A

no. 138, pp. 15-16, §§ 28-29, and the Moustaquim v. Belgium judgment

of 18 February 1991, Series A no. 193, p. 19, para. 43).

 

      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.

 

75.   In the present case, as was rightly emphasised by the Government,

Mr Beldjoudi's criminal record appears much worse than that of

Mr Moustaquim (see the above-mentioned judgment, Series A no. 193,

p. 19, para. 44).  It should therefore be examined whether the other

circumstances of the case, relating to both applicants or to one of

them only, are enough to compensate for this important fact.

 

76.   The applicants lodged a single application and raised the same

complaints.  Having regard to their age and the fact that they have no

children, the interference in question primarily affects their family

life as spouses, as the Government rightly pointed out.

 

      They were married in France over twenty years ago and have always

had their matrimonial home there.  The periods when Mr Beldjoudi was

in prison undoubtedly prevented them from living together for a

considerable time, but did not terminate their family life, which

remained under the protection of Article 8 (art. 8).

 

77.   Mr Beldjoudi, the person immediately affected by the deportation,

was born in France of parents who were then French.  He had French

nationality until 1 January 1963.  He was deemed to have lost it on

that date, as his parents had not made a declaration of recognition

before 27 March 1967 (see paragraph 9 above).  It should not be

forgotten, however, that he was a minor at the time and unable to make

a declaration personally.  Moreover, as early as 1970, a year after

his first conviction but over nine years before the adoption of the

deportation order, he manifested the wish to recover French

nationality; after being registered at his request in 1971, he was

declared by the French military authorities to be fit for national

service (see paragraphs 31 and 33 above).

 

      Furthermore, Mr Beldjoudi married a Frenchwoman.  His close

relatives all kept French nationality until 1 January 1963, and have

resided in France for several decades.

 

      Finally, he has spent his whole life - over forty years - in

France, was educated in French and appears not to know Arabic.  He

does not seem to have any links with Algeria apart from that of

nationality.

 

78.   Mrs Beldjoudi for her part was born in France of French parents,

has always lived there and has French nationality.  Were she to follow

her husband after his deportation, she would have to settle abroad,

presumably in Algeria, a State whose language she probably does not

know.  To be uprooted like this could cause her great difficulty in

adapting, and there might be real practical or even legal obstacles,

as was indeed acknowledged by the Government Commissioner before the

Conseil d'Etat (see paragraph 27 above).  The interference in question

might therefore imperil the unity or even the very existence of the

marriage.

 

79.   Having regard to these various circumstances, it appears, from

the point of view of respect for the applicants' family life, that the

decision to deport Mr Beldjoudi, if put into effect, would not be

proportionate to the legitimate aim pursued and would therefore

violate Article 8 (art. 8).

 

80.   Having reached this conclusion, the Court need not examine

whether the deportation would also infringe the applicants' right to

respect for their private life.

 

II.   ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8

      (art. 14+8)

 

81.   In view of the finding in paragraph 79 above, the Court does not

consider it necessary also to examine the complaint that the

applicants would, if Mr Beldjoudi were deported, suffer discrimination

contrary to Article 14 (art. 14) in the enjoyment of their right to

respect for their family life.

 

III.  ALLEGED VIOLATION OF ARTICLES 3, 9 AND 12 (art. 3, art. 9

art. 12)

 

82.   The applicants also relied on Articles 3, 9 and 12 (art. 3,

art. 9, art. 12) before the Commission.

 

      These complaints were not mentioned before the Court, which does

not consider it necessary to examine them of its own motion.

 

IV.   APPLICATION OF ARTICLE 50 (art. 50)

 

83.   Under Article 50 (art. 50),

 

      "If the Court finds that a decision or a measure taken by a legal

      authority or any other authority of a High Contracting Party is

      completely or partially in conflict with the obligations arising

      from the ... Convention, and if the internal law of the said

      Party allows only partial reparation to be made for the

      consequences of this decision or measure, the decision of the

      Court shall, if necessary, afford just satisfaction to the

      injured party."

 

      Pursuant to this Article (art. 50), the applicants claimed

compensation for loss and reimbursement of costs.

 

84.   No breach of Article 8 (art. 8) has as yet occurred.

Nevertheless, the Court having found that the Minister's decision to

deport Mr Beldjoudi would, if implemented, give rise to such a breach,

Article 50 (art. 50) must be taken as applying to the facts of the

present case (see, mutatis mutandis, the Soering v. the United Kingdom

judgment of 7 July 1989, Series A no. 161, p. 49, para. 126).

 

     A.    Damage

 

85.   Mr and Mrs Beldjoudi alleged that they had suffered damage

because of the failure to comply with the requirements of the

Convention, and claimed 10,000,000 French francs.

 

      The Government considered this figure to be entirely

unprecedented and in any case completely unjustified, as the

deportation order had not been enforced.

 

      The Delegate of the Commission also considered the claim to be

excessive.  He suggested, however, that a reasonable sum should be

awarded in respect of non-pecuniary damage; this should be less than

that awarded to Mr Moustaquim, who had been obliged to live outside

Belgium for some years after being deported.

 

86.   The applicants must have suffered non-pecuniary damage, but the

present judgment provides them with sufficient compensation in this

respect.

 

     B.    Costs and expenses

 

87.   Mr and Mrs Beldjoudi sought reimbursement of the costs and

expenses allegedly incurred by them during the proceedings before the

Convention institutions, namely 100,000 French francs.

 

      The Government argued that the account submitted by counsel for

the applicants was excessively vague.  However, a sum of 40,000 francs

would be acceptable, in the absence of special circumstances duly

proved.

 

88.   Having regard to the detailed information subsequently provided,

the Court considers it reasonable to award 60,000 French francs under

this head.

 

FOR THESE REASONS THE COURT

 

1.    Holds by seven votes to two that, in the event of the decision to

      deport Mr Beldjoudi being implemented, there would be a violation

      of Article 8 (art. 8) with respect to both applicants;

 

2.    Holds by eight votes to one that it is not necessary also to

      consider the case from the point of view of Article 14 in

      conjunction with Article 8 (art. 14+8), or of Articles 3, 9 and

      12 (art. 3, art. 9, art. 12);

 

3.    Holds unanimously that with respect to the non-pecuniary damage

      suffered by the applicants the present judgment constitutes in

      itself sufficient just satisfaction for the purposes of

      Article 50 (art. 50);

 

4.    Holds unanimously that the respondent State is to pay to the

      applicants within three months 60,000 (sixty thousand) French

      francs for costs and expenses;

 

5.    Dismisses unanimously the remainder of the claim for just

      satisfaction.

 

      Done in English and in French, and delivered at a public hearing

in the Human Rights Building, Strasbourg, on 26 March 1992.

 

Signed: Rolv RYSSDAL

        President

 

Signed: Marc-André EISSEN

        Registrar

 

      In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of the Rules of Court, the following

separate opinions are annexed to this judgment:

 

      (a)  dissenting opinion of Mr Pettiti;

      (b)  separate opinion of Mr De Meyer;

      (c)  dissenting opinion of Mr Valticos;

      (d)  concurring opinion of Mr Martens.

 

Initialled: R.R.

 

Initialled: M.-A.E.

 

                   DISSENTING OPINION OF JUDGE PETTITI

                              (Translation)

 

      Unlike the majority, I have not voted in favour of a violation of

Article 8 (art. 8).

 

      To be sure, the effect of the judgment is confined to the

particular case and to the special circumstances: Mr Beldjoudi has

spent forty-one years of his life to date in France and has been

married to a Frenchwoman for twenty-two years.  But it seems to me

that neither the reasoning on the principle nor the grounds given for

the decision are consistent with a precise construction and evaluation

of Article 8 (art. 8) of the European Convention, with reference to

the deportation of aliens who have committed crimes.

 

      The majority have indeed taken into account the fact that the

deportation order was issued on 2 November 1979, before the

convictions of 28 March 1978 and 4 December 1986; but they also seem

to have accepted as additional criteria or reasons the authorities'

refusal in 1970 to grant Mr Beldjoudi the French nationality sought by

him, and also the absence of links with Algeria.  They consider that

deportation would not be proportionate to the legitimate aim, without

giving adequate specifications of the extent of that proportionality

in reply to the distinctions drawn by the Conseil d'Etat.

 

      The Convention does not limit the sovereign right of States to

decide to deport from their territory aliens who have committed

crimes.

 

      The right of an alien to reside on the territory of a High

Contracting Party is not guaranteed as such by the Convention.

Similarly, the right of asylum and the right not to be deported do not

appear as such in the series of rights and freedoms guaranteed by the

Convention (this is stated in several decisions of the Commission).

 

      Only in exceptional circumstances can expulsion mean a violation

of the Convention, for example if there is a very serious risk of

treatment contrary to Article 3 (art. 3) in the destination State,

especially where there is no possibility of deportation to some other

democratic State.  The Moustaquim judgment had a different context, as

it concerned a young adolescent who had no roots outside the country

where his family lived, and who had been reintegrated into society.

 

      In the present Beldjoudi case, the circumstances are just the

contrary: as an adult, a persistent offender, a person within the

sphere of attacks on public order, he came within the class of

legitimate deportations.

 

      Moreover, he apparently refused to acquire French nationality by

marriage, and had even turned down a compulsory residence order, and

so forth.

 

      The European Court appears also to have considered as an implicit

reason for its decision the non-attribution of French nationality.

This is to forget that the Evian agreements are an international

treaty.  The determination of nationality, including the opportunity

to choose, was defined by France and Algeria.  This was therefore not

a unilateral decision by France.  Algeria for its part had also

insisted on such choices, and does not refrain from deporting

Frenchmen who have committed crimes, even if they were born in Algeria

and have lived there.  Such a bilateral treaty is based on reciprocity

and public international law.  France cannot be accused of violating

the European Convention on Human Rights for having applied the

provisions of the Evian agreements and the Code of Nationality to

determine Mr Beldjoudi's nationality.  Moreover, like any State,

France is sovereign in granting or refusing naturalisation.

 

      It appears that the majority of the Court also considered

that Mr Beldjoudi was a quasi-Frenchman, a concept which is unknown in

international law.

 

      The fact of having lived continuously in the host country or

country of residence cannot be a complete bar to the exercise of the

right to deport criminals.  The special relationship between France

and Algeria cannot in itself be considered as preventing deportation,

as other member States of the Council of Europe also have similar

situations arising from historical relationships between Germans and

Poles, Austrians and Italians, Britons and Commonwealth citizens,

etc., and such relationships do not prevent justified deportations.

 

      Member States expel criminal citizens in the normal course of

events.  The only possible general defence should be a reference to

Article 3 (art. 3), otherwise a long period of residence would suffice

for reliance on Article 8 (art. 8).  A great many deportations of

aliens from Europe would be affected.

 

      The majority did indeed take note of the significant factor

following from Mr Beldjoudi's criminal record and conduct, even after

the deportation order of 1979; but they balanced this factor against

his personal and family life, on the basis of proportionality.  Again,

precise criteria should be defined for this balancing exercise, as the

European Court normally does.  In this judgment there is no definition

of the threshold of risks and level of reoffending which should

determine whether or not criminal aliens are to be deported.  The

majority also appear to have considered that departure for Algeria

would inevitably have followed in the event of deportation, but this

is not certain.

 

      The serious problem of deportations of aliens who have committed

crimes, which is a very different problem from that of administrative

deportations not brought about by criminal convictions, some of which

have dramatic consequences for families, is the subject of concern by

the European Economic Community, the Council of Europe and the

international organisation Interpol.  An overall European policy

should be sought, in the spirit of the Convention for the Protection

of Fundamental Rights.

 

      In my opinion, the decision of the majority carries within it a

source of contradictions, in an exponential interpretation of

Article 8 (art. 8), if an interference with the private or family life

of a persistent offender suffices to prevent deportation, as the

position of a persistent offender would amount to a sort of immunity

for his benefit.  In fact, any deportation affects private or family

life, just as any detention does.  If a further offence is committed,

there would be a further interference.  But in that case private life

is affected by the conduct of the person concerned.

 

      Each member State remains the master of its own criminal policy,

just as it retains the right to define the severity of sentences.  In

many States deportation is an exemplary penalty in addition to the

sentence.  In countries with a high proportion of aliens in the

population, it is deportation much rather than the threat of prison

which is a safeguard against repeated offending and strengthens the

national consensus in favour of welcoming immigrants of good character

who by their work share in the prosperity of the nation.  A

deportation measure, as accepted in criminology and criminal policy,

is also a measure of protection for the potential victims of repeated

offenders, especially in countries with a serious increase in crime

and a high concentration of organised crime.

 

      The Convention on Human Rights cannot ignore the aspect of the

rights of others and their necessary protection.  It would no doubt

have been preferable if the French Government, bearing in mind the new

provisions (closer to Article 8 of the Convention) (art. 8) of the Law

of 29 October 1981 (sections 23 and 25) and the Law of 2 August 1989,

had waived deportation in this particular case, in view of the

position of the French spouse.  If the European Court intended to move

towards the review of deportations in similar cases for all member

States, it would have to examine matters from the point of view either

of Article 6 (art. 6), if that Article had been violated with

reference to the domestic proceedings seen in the light of the

European Convention on Human Rights, or of Article 3 (art. 3) (inhuman

and degrading treatment).  The concept of a balance of interests in

the event of the possible but not certain use of Article 8 (art. 8)

would require a strict application of proportionality, which in my

opinion is lacking in the reasoning of the Beldjoudi judgment.  The

State's right to deport aliens who commit crimes is to a certain

extent for the general interest the counterpart of the welcome given

to persons enjoying the right of asylum and migrants, which is a key

element of international solidarity and the protection of human

rights.

 

                   SEPARATE OPINION OF JUDGE DE MEYER

                              (Translation)

 

      Like the majority of my colleagues, I consider that there would

be a violation of the applicants' fundamental rights "in the event of

the decision to deport Mr Beldjoudi being implemented".

 

      But which right or rights are these?

 

      Our colleague Mr Martens was right to wonder whether the case did

not concern their right to respect for their private life just as much

as their right to respect for their family life.  I agree to a great

extent with his observations*.

 

      It seems to me, however, that ultimately, bearing in mind the

circumstances mentioned in paragraphs 77 and 78 of the judgment, the

deportation of Mr Beldjoudi, with respect to both applicants, would

not merely constitute an unacceptable interference with their private

and family life, but would actually be inhuman treatment**.

 

      This would be so, not indirectly because of what might await them

in Algeria - that is not the point in issue here*** - but directly, in

that Mr Beldjoudi would be ejected, after over forty years, from a

country which has always in fact been "his" since birth, even though

he does not possess its "nationality".

 

      While it is true, as the documents in the case show, that Mr

Beldjoudi has already been convicted of numerous offences, mostly

comparatively serious ones, and is now once more under suspicion of

having committed others****, he can be sufficiently punished for these

by the criminal law.

 

_______________

* See pp. 37 to 39 below.

 

** It is because the case should in my opinion also have been examined

from this point of view that I have been unable to approve of point 2

of the operative provisions of the judgment.  I entirely agree with it

in so far as it relates to Articles 9, 12 and 14 (art. 9, art. 12,

art. 14) of the Convention.

 

*** The present case differs in this respect from the Soering (Series

A no. 161) and Cruz Varas (Series A no. 201) cases.

 

**** See paragraphs 12, 14, 73 and 75 of the judgment.

_______________

 

                  DISSENTING OPINION OF JUDGE VALTICOS

                              (Translation)

 

      I regret that I must express my dissent from the opinion of the

majority of the Court, who have concluded that there was a violation

of Article 8 (art. 8) of the Convention in the instant case, with

reference in particular to Mr Beldjoudi's family life.

 

      My explanation need not be long, as it is based in essence on the

dissenting opinion I gave in the similar, although not identical, case

of the youth Moustaquim.

 

      The differences between the two cases cut both ways: on the one

hand, the present case concerns the ties between a husband and his

wife, not those between a young man and his family.  On the other

hand, young Moustaquim's criminal behaviour consisted of the offences

of an adolescent, very numerous but for the most part comparatively

unimportant, whereas here there were repeated crimes of violence

committed by a person aged about forty, who had been sentenced to

nearly eleven years' imprisonment in less than seventeen years.

Moreover, the Court acknowledged that Mr Beldjoudi's criminal record

was "much worse".

 

      The deportation of aliens - which one can understand being

contemplated in a case as serious as this one - is a prerogative of

States, and its use is restricted by the Convention (Article 5

para. 1 (f) of the Convention and Protocols Nos. 4 and 7) (art. 5-1-f,

P4, P7) only in well-defined cases.  This is not one of them.

 

      Admittedly, the Court has in the present case interposed the

concept of family life, which is protected by Article 8 (art. 8) of

the Convention.  It considers that there was on the part of the

Government an interference by a public authority with the exercise of

the applicants' right to respect for their family life.  One may well

wonder, however, whether Article 8 (art. 8) is really applicable to a

case such as this and whether it was designed to prohibit the

deportation of aliens married to citizens of the host country.  Such

an interpretation might open the way to many abuses.

 

      In any event, it does not seem to me to be possible to use

Article 8 (art. 8) of the Convention to restrict the right of States

to take deportation measures, where they have valid reasons for

deciding on them in defence of public safety, and where their effect

on family life is only an indirect consequence.

 

                   CONCURRING OPINION OF JUDGE MARTENS

 

1.    I agree with the findings of the Court but, as far as

Mr Beldjoudi is concerned, I would have preferred its decision to have

been based on (a) a less casuistic reasoning and (b) interference with

the right to respect for private life.

 

2.    Paragraph 1 of Article 3 of Protocol No. 4 (P4-3) to the

Convention forbids the expulsion of nationals.  In a Europe where a

second generation of immigrants1 is already raising children (and where

violent xenophobia is increasing to an alarming extent) it is high

time to ask ourselves whether this ban should not apply equally to

aliens who were born and bred in a member State or who have otherwise,

by virtue of long residence, become fully integrated there (and,

conversely, become completely segregated from their country of

origin)2.

 

      In my opinion, mere nationality does not constitute an objective

and reasonable justification for the existence of a difference as

regards the admissibility of expelling someone from what, in both

cases, may be called his "own country".  I therefore have no

hesitation in answering the above question in the affirmative.  I

believe that an increasing number of member States of the Council of

Europe accept the principle that such "integrated aliens" should be no

more liable to expulsion than nationals3, an exception being justified,

if at all, only in very exceptional circumstances.  My own country is

one of those States4 and since 1981 - with the exception of the period

1986-1989 so is France5.

 

      I would have preferred the Court's decision in the present case

to have been based on the aforesaid principle, coupled with a finding

that there were no very exceptional circumstances justifying a

departure therefrom.  A judgment along those lines would have achieved

what the Moustaquim v. Belgium6 and the present judgment have failed to

do, namely introduce a measure of legal certainty; this seems highly

desirable, especially in this field.

 

3.    The latter consideration also militated, as Mr Schermers rightly

pointed out7, in favour of basing the Court's decision - if possible -

on interference with the right to respect for private life, since,

whilst not all "integrated aliens" threatened with expulsion are

married, they all have a private life.

 

      In my opinion, it is possible to do so.  Expulsion severs

irrevocably all social ties between the deportee and the community he

is living in and I think that the totality of those ties may be said

to be part of the concept of private life, within the meaning of

Article 8 (art. 8).

 

      It is true that, at least at first sight, the text of this

provision seems to suggest otherwise.  Read as a whole, it apparently

guarantees immunity of an inner circle in which one may live one's

own, one's private, life as one chooses.  This "inner

circle" concept presupposes an "outside world" which, logically, is

not encompassed within the concept of private life.  Upon further

consideration, however, this "inner circle" concept appears too

restrictive.  "Family life" already enlarges the circle, but there are

relatives with whom one has no family life stricto sensu.  Yet

the relationship with such persons, for instance one's parents,

undoubtedly falls within the sphere which has to be respected under

Article 8 (art. 8).  The same may be said with regard to one's

relationships with lovers and friends.  I therefore share the view of

the Commission, which has repeatedly held that "respect for private

life"

 

      "comprises also to a certain degree the right to establish and to

      develop relationships with other human beings, especially in the

      emotional field, for the development and fulfilment of one's own

      personality"8.

 

      I think that the Court's Dudgeon v. the United Kingdom, Rees v.

the United Kingdom, Cossey v. the United Kingdom and B. v. France

judgments9 are also based on the idea that to a certain extent a

person's "external" relations with others (outside the "inner circle")

do fall within the sphere of private life10.

 

      The same idea presumably underlies the aforementioned ban on the

expulsion of nationals: when speaking of nationals, one almost always

thinks primarily of those whose links with a given country are

particularly close and manifold because they have been born and bred

there11, in a family which has lived there for generations12; it was

clearly felt to be unacceptable that, by compelling such persons to

leave, never to return, a State should be entitled to sever those ties

irrevocably.

 

      To sum up: I think that expulsion, especially (as in the present

case) to a country where living conditions are markedly different from

those in the expelling country and where the deportee, as a stranger

to the land, its culture and its inhabitants, runs the risk of having

to live in almost total social isolation, constitutes interference

with his right to respect for his private life.

 

_______________

NOTES

 

1.    I realise, of course, that the present case may be distinguished

from an ordinary "second-generation immigrant's expulsion case" in

that Mr Beldjoudi's parents, when they took up residence in France,

were not "immigrants" stricto sensu but French citizens coming to live

in their own country.  I think, however, that it is legitimate to

ignore this difference for present purposes.

 

2.    This question has, of course, a more limited scope in those

member States where, under the principle of ius soli, second-

generation immigrants acquire citizenship by reason of their birth

within the territory; it is, therefore, probably more exact to refer

to expulsion of "integrated aliens" rather than "second-generation

immigrants' expulsion".

 

3.    This principle has already been accepted in the context of the

International Covenant on Civil and Political Rights: under Article 12

para. 4 of the Covenant "no one shall be arbitrarily deprived of the

right to enter his own country"; this right implies a ban on the

expulsion not only of nationals, but also - as appears from the

drafting history of the words "his own country" - of all "integrated

aliens" (such as second-generation immigrants); see M. Nowak, CCPR-

Kommentar, Art. 12, Randnummern 45-51; Van Dijk & Van Hoof, De

Europese Conventie, 2nd edition, p. 551; Velu and Ergec, La Convention

européenne des Droits de l'Homme, para. 372 (p. 322).

 

4.    See the 1990 version of the "Circular on Aliens": Nederlandse

Staatscourant 12 maart 1990, no. 50; see further on this issue, inter

alia: Groenendijk, Nederlands Juristenblad 1987, pp. 1341 et seq.;

Swart, Preadvies, Nederlandse Juristen-vereniging  1990, para. 35

(pp. 242 et seq.).

 

5.    See paragraphs 42-50 of the Court's judgment.

 

6.    Judgment of 18 February 1991, Series A no. 193.

 

7.    See his concurring opinion appended to the Commission's opinion

in the present case pp. 48 and 49.

 

8.    See, inter alia: Decisions and Reports, no. 5, pp. 86-87, and

no. 10, p. 100; Series B no. 36, pp. 25-26.

 

      If the Commission, in so holding, intended to give a definition

of "private life" within the meaning of Article 8 (art. 8) (as has

been suggested by Doswald-Beck, Human Rights Law Journal 1983, p.288),

I do not agree: it is highly difficult to define the concept and I

submit that the time has not yet come to try to do so.

 

9.    Judgments of 22 October 1981, 17 October 1986, 27 September 1990

and 25 March 1992, Series A nos. 45, 106, 184 and 232-C.

 

10.   See further: Velu and Ergec, La Convention européenne des Droits

de l'Homme, para. 652 (pp. 535 et seq.).

 

11.   See paragraph 88 of the Court's Abdulaziz, Cabales and Balkandali

v. the United Kingdom judgment of 28 May 1985 (Series A

no. 94, p. 41).

 

12.   For the idea that a person's personal history and memories may be

said to fall within the sphere which has to be respected under

Article 8 (art. 8), see the Court's Gaskin v. the United Kingdom

judgment of 7 July 1989 (Series A no. 160).

Дело «Бельджуди против Франции» (извлечение)

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