BOUJLIFA v. FRANCE - 25404/94 [1997] ECHR 83 (21 October 1997)

judgment [2] . FINAL SUBMISSIONS TO THE COURT 28. In their memorial the Government submitted “that [Mr Boujlifa’s] application should be dismissed”. At the hearing the applicant’s lawyer asked the Court to hold that there had been a breach of Article 8 of the Convention and to award his client just satisfaction. AS TO THE LAW I. SCOPE OF THE CASE 29. At the hearing before the Court the applicant’s lawyer relied on the second sentence of the first paragraph of Article 7 of the Convention, which prohibits the imposition of “a heavier penalty … than the one that was applicable at the time the criminal offence was committed”, arguing that deportation was a criminal penalty. 30. The Court notes that this complaint lies outside the compass of the case as delimited by the Commission’s decision on admissibility, since it was not dealt with either in that decision or in the Commission’s report (see, as the most recent authority, the Kalaç v. Turkey judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, p. 1206, § 20). The scope of the case is therefore limited to the questions raised under Article 8. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 31. Mr Boujlifa submitted that the deportation order made against him interfered in his private and family life and was in breach of Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Neither the Government nor the Commission agreed. A. Paragraph 1 of Article 8 32. The Court must first determine whether the applicant is entitled to claim that he has a “private and family life” in France within the meaning of Article 8 § 1 and whether the measure in issue amounted to an interference therein. 33. The applicant submitted that he had arrived in France in 1967 at the age of 5, that he lived there and that his parents and his eight brothers and sisters were lawfully resident there. He further asserted that he had cohabited with a French national since January 1991, even before the deportation order was made. 34. The Government expressed doubt as to whether Mr Boujlifa had a family life within the meaning of Article 8. His ties with his parents and his brothers and sisters came under private life rather than family life, as he had attained the age of majority. In any event, the strength of the ties concerned had not been clearly established by the documents in the file. Nor could the fact that the applicant lived with Miss V. constitute family life, even if it were taken to be established, given that the couple had begun to live together at a time when Mr Boujlifa was already facing deportation proceedings and when his situation in France was particularly precarious. 35. The Commission expressed the opinion that the deportation order constituted interference with the applicant’s right to respect for his private and family life. 36. The question whether the applicant had a private and family life within the meaning of Article 8 must be determined by the Court in the light of the position at the time when the impugned measure was adopted (see, mutatis mutandis , the Bouchelkia v. France judgment of 29 January 1997, Reports 1997-I, p. 63, § 41). That means on 8 April 1991, but the applicant had been informed on 21 November 1990 that deportation proceedings had been commenced against him (see paragraph 10 above). Mr Boujlifa was not therefore entitled to claim at that time to be involved in a relationship with Miss V. However, the Court observes that he arrived in France in 1967 at the age of 5 and has lived there since then, except while he was imprisoned in Switzerland. He received his schooling there (partly in prison), and his parents and his eight brothers and sisters – with whom he seems to have remained in touch – live there (see paragraph 8 above). Consequently, the Court is in no doubt that the measure complained of amounts to interference with the applicant’s right to respect for his private and family life. B. Paragraph 2 of Article 8 37. The Court must accordingly determine whether the adoption of the measure in issue satisfied the conditions of paragraph 2, namely whether it was “in accordance with the law”, whether it pursued one or more of the legitimate aims listed therein and whether it was “necessary in a democratic society” in order to achieve the aim or aims concerned. 1. “ In accordance with the law ” 38. It has not been contested that the deportation order made against Mr Boujlifa was based on Articles 23 to 25 of the Ordinance of 2 November 1945, as amended, concerning the conditions of entry and residence of aliens in France. 2. Legitimate aim 39. Nor has it been disputed that the interference in question sought to achieve aims which are wholly compatible with the Convention, namely “the prevention of disorder or crime”. 3. “ Necessary in a democratic society ” 40. The applicant pointed out that he had been only 20 years old when he committed the offences on account of which the deportation order had been made. He asked the Court not to make too much of the seriousness of these offences, as he had stolen “through need”. Moreover, he had not been accused of any further criminal act since his return to France after his imprisonment in Switzerland. Lastly, he had no family ties with Morocco, whose language he did not speak. In short, his expulsion was not justified by the need to preserve public order. 41. The Government and the Commission observed that Mr Boujlifa had been sentenced first to six years’ and later to eighteen months’ imprisonment for armed robbery and robbery respectively. They emphasised the seriousness of these offences and the sentences imposed, noted that the applicant had not established that he had lost all links with Morocco other than his nationality and submitted in conclusion that there had been no breach of Article 8. 42. The Court reiterates that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens. To that end they have the power to deport aliens convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, as the most recent authority, the Bouchelkia judgment cited above, p. 65, § 48). 43. The Court’s task accordingly consists in ascertaining whether the measure in issue struck a fair balance between the relevant interests, namely the applicant’s right to respect for his private and family life, on the one hand, and the prevention of disorder or crime, on the other. 44. With regard to Mr Boujlifa’s ties, the Court observes that he arrived in France at the age of 5 and has lived there since 1967, except for the period from 5 May 1987 to 5 August 1988, when he was serving a prison sentence in Switzerland. He received his education in France, he worked there for a short period and his parents and his eight brothers and sisters live there (see paragraph 9 above). On the other hand, it seems that he did not show any desire to acquire French nationality at the time when he was entitled to do so. The Court notes that the offences committed (armed robbery and robbery), by their seriousness and the severity of the penalties they attracted, constituted a particularly serious violation of the security of persons and property and of public order. It considers that in the instant case the requirements of public order outweighed the personal considerations which prompted the application. 45. Having regard to the foregoing, the Court considers that the making of the order for the applicant’s deportation cannot be regarded as disproportionate to the legitimate aims pursued. There has accordingly been no breach of Article 8. FOR THESE REASONS, THE COURT Holds by six votes to three that there has been no breach of Article 8 of the Convention. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 21 October 1997. Signed : Rudolf BERNHARDT President Signed : Herbert PETZOLD Registrar In accordance with Article 51 § 2 of the Convention and Rule 53 § 2 of Rules of Court A, the following separate opinions are annexed to this judgment: (a) dissenting opinion of Mr Morenilla; (b) joint dissenting opinion of Mr Baka and Mr van Dijk. Initialled : R. B. Initialled : H. P. DISSENTING OPINION OF JUDGE MORENILLA ( Translation ) To my regret, I cannot agree with the majority in this case. The considerations I set out in my partly dissenting opinion in the case of Nasri v. France (judgment of 13 July 1995, Series A no. 320-B, pp. 30–33) remain valid in the present case, although the extreme situation of Mr Nasri, a deaf-mute from birth, raised in even more dramatic terms the same question of the compatibility with Articles 3 and 8 of the Convention of the deportation from France to his country of origin of a “second generation” immigrant who had been convicted of serious crimes committed in his youth, a measure adopted by the French authorities after he had served the sentences imposed on him. Mr Boujlifa – like Mr Nasri – is the son of an immigrant and came to France from Morocco in 1967 at the age of 5 under a family-reunion procedure. His whole family lives in France and three of his brothers have French nationality on account of their birth in French territory. He has never returned to Morocco, whose language he says he does not know (see paragraph 40), and he has been living since 1991 with a French national who will not follow him to Morocco. In these circumstances, since the deportation of Mr Boujlifa to his country of origin, where he now has no social ties, tears him away from his French environment, it constitutes an interference on the part of the French authorities with his right to respect for his private and family life, as set forth in Article 8 of the Convention, and has no ethical or legal justification under paragraph 2 of that Article. The pressing social need to preserve public order cannot be invoked, since the measure concerned amounted to an aggravation of the criminal penalty imposed on Mr Boujlifa in relation to those imposed on French nationals, so that it is discriminatory. It is also incompatible with the objective of promoting the social rehabilitation of offenders. Lastly, it is unjust for the country which has to take in the deported alien, which is not responsible for its national’s antisocial behaviour. JOINT DISSENTING OPINION OF JUDGES BAKA AND VAN DIJK We are unable to agree with the majority that Article 8 of the Convention has not been violated. We share the view of those members and former members of the Court who have expressed the opinion that if an immigrant has spent almost his whole life in the host country with all his close relatives and received all his schooling there, retaining no links with his country of origin apart from the formal link of nationality, very serious reasons have to be put forward by the authorities to make the deportation proportionate to the legitimate aim pursued; in principle, such an immigrant should be no more liable to expulsion than the State’s own nationals. In the present case the only such serious reason might possibly be the seriousness of the crimes committed by the applicant. However, in the case of Moustaquim v. Belgium (judgment of 18 February 1991, Series A no. 193), the crimes committed by the applicant were perhaps less serious, but they were more numerous. In the case of Beldjoudi v. France (judgment of 26 March 1992, Series A no. 234-A), the applicant had committed numerous serious offences, while in the case of Nasri v. France (judgment of 13 July 1995, Series A no. 320-B) the list of crimes committed would seem to be more or less comparable to that of those committed by the applicant in the present case. In those three earlier cases the Court reached the conclusion that the applicant’s deportation was disproportionate to the legitimate aim pursued. We are aware that the Court reached a different conclusion in certain other recent cases concerning “second generation” immigrants, where the facts did not, in our opinion, differ to a decisive extent from the cases just mentioned. The Court has been divided on the issue of the deportation of “second generation” immigrants for quite some time. This “reality of life” becomes rather problematical when the application of the proportionality test leads to different outcomes in cases in which the factors to be weighed would not seem to differ in any essential respect. It would therefore seem to be highly desirable that the Court should abandon its casuistic approach to the matter and take a clear position on the question whether and to what extent so-called “second generation” immigrants constitute a special category for whose deportation very serious reasons have to be advanced to make it justifiable under the second paragraph of Article 8. Failing that, the Court should at the very least, in each separate case involving a “second generation” immigrant, indicate in an explicit and well-reasoned way in what respects it is to be distinguished from other cases involving a “second generation” immigrant in which the Court has reached a different conclusion as to the proportionality of the measure. In our opinion, and to our regret, the present judgment does not provide the national authorities and the possible victims of future deportations with the certainty and clarity to which they are entitled. As far as the present case is concerned, we fail to see why there was a pressing social need for Mr Boujlifa’s deportation to prevent disorder or crime. He spent most of his life in France and his only real ties are with that country. As said before, in our opinion, these facts imply that he should enjoy treatment from the French authorities not significantly less favourable than would be accorded to France’s own nationals. When the deportation order was made, Mr Boujlifa had served the terms of imprisonment to which he had been sentenced and which may be assumed to have been proportionate to the seriousness of the crimes committed by him. Moreover, he had given no serious cause to believe that he would commit crimes again. In those circumstances, in our opinion, there was no pressing social need for his deportation, which as a measure to prevent disorder or crime was disproportionate in view of the resulting interference in his private and family life. [1] . This summary by the registry does not bind the Court. Notes by the Registrar 1. The case is numbered 122/1996/741/940. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission. [2] . Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently. 1. Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997), but a copy of the Commission&#8 [2] s report is available from the registry. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII