European Court of Human Rights - case of Beldjoudi v. France (March 1992)

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EUROPEAN COURT OF HUMAN RIGHTS

Case of Beldjoudi v. France

(Application no. 12083/86)

26 March 1992

[...]

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.

[...]

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).

[...]

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.

[...]

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.

[...]