European Court of Human Rights - case of Moustaquim v. Belgium (February 1991)

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EUROPEAN COURT OF HUMAN RIGHTS

Case of Moustaquim v Belgium

(Application no. 12313/86).

18 February 1991

[...]

AS TO THE FACTS

I. The circumstances of the case

9. Mr Abderrahman Moustaquim, who is a Moroccan national, was

born in Casablanca on 28 September 1963.He is currently living

in Liège.

He arrived in Belgium with his mother in July 1965 at the

latest, in order to join his father, who had emigrated some time

before and ran a butcher's shop.Until he was deported in June

1984, he lived in Belgium and had a residence permit.Three of

his seven brothers and sisters were born there.One of his elder

brothers already had Belgian nationality at the material time.

A. The custodial measures and criminal proceedings

1. Proceedings in the juvenile courts

(a) Liège Juvenile Court

10.While the applicant was still a minor in criminal law, that

is to say in the period up to 28 September 1981, the Liège

Juvenile Court dealt with 147 charges against him, including 82

of aggravated theft, 39 of attempted aggravated theft and 5 of

robbery.It made various custodial, protective and educative

orders.On ten occasions between January 1980 and May 1981, for

instance, it ordered Mr Moustaquim to be detained in Lantin

Prison for periods not exceeding fifteen days (under section 53

of the Children's and Young Persons' Welfare Act of 8 April 1965

- see paragraph 27 below).

11.On 15 May 1981 the Liège investigating judge issued a

warrant for the applicant's arrest.

(b) Juvenile Division of the Liège Court of Appeal

12.The 147 charges mentioned above subsequently came before the

Juvenile Division of the Liège Court of Appeal, which in a

judgment of 30 June 1981 relinquished jurisdiction.It noted in

particular: "The juvenile was already committing offences before

he was 14; in this regard he already came under the jurisdiction

of the Criminal Court, and during the present proceedings he has

not ceased to commit offences."It accordingly remitted the case

to Crown Counsel's Office for prosecution in the appropriate

court (section 38 of the Act of 8 April 1965 previously cited -

see paragraph 27 below).

2. Proceedings in the ordinary courts

(a) Liège Criminal Court

13.On 2 December 1981 Mr Moustaquim appeared before the Liège

Criminal Court charged with 26 offences that had taken place

between 10 February 1980 and January 1981.

The evidence against the defendant and his six accomplices

included a summary report drawn up on 14 July 1980 by the Liège

gendarmerie.In this it was noted that the persons concerned

"live[d] like drop-outs, only rarely returning to their own homes

or to the home in which they ha[d] been placed"; of the applicant

the report said:

"Moroccan subject, elder brother of the above.Regarded as

one of the leaders of the gang.Currently involved in major

crime.He will stop at nothing and his 'training

placements' in Lantin Prison have no beneficial effect.As

soon as he comes out, he starts stealing again.He leads an

idle life, sleeping by day and going out at night to commit

his offences; and he associates with 'reliable types'.Some

of the thefts he commits are planned and consequently on a

large scale.On other occasions they are despicable and

even sordid.He will stop at nothing and is becoming more

and more steeped in crime.He is a real danger to society."

14.On the same day (2 December 1981) the Criminal Court found

Mr Moustaquim guilty on 20 of the 26 charges and sentenced him to

twenty months' imprisonment, half of which sentence was suspended

for five years subject to a supervision order.He was acquitted

on the other charges.

(b) Liège Court of Appeal

15.The prosecution appealed and the Liège Court of Appeal gave

judgment on 9 November 1982.It set aside the judgment of the

court below and found the applicant guilty on 22 of the 26

charges.It passed prison sentences of two years (for 4 offences

of aggravated theft, 12 offences of attempted aggravated theft, 1

offence of theft and 1 of handling stolen goods), one month

(destroying a vehicle), two periods of eight days (on two counts

of assault) and fifteen days (on a count of threatening

behaviour).It acquitted him on 4 charges (indecent assault with

violence on a minor girl aged over 16; criminal conspiracy;

attempted theft; and criminal damage to fencing).

As none of these sentences was suspended, his immediate

arrest was ordered.

3. The periods of time spent by the applicant in detention

16.Earlier, Mr Moustaquim had been imprisoned on ten occasions

between January 1980 and May 1981 for periods not exceeding

fifteen days (see paragraph 10 above).

On 15 May 1981 the Liège investigating judge had him placed

under arrest until, it would seem, his appearance before the

Juvenile Division of the Liège Court of Appeal on 30 June 1981

(see paragraphs 11-12 above).

Mr Moustaquim was also briefly detained on remand before his

trial on 2 December 1981 at the Liège Criminal Court (see

paragraphs 13-14 above).

He served part - eighteen months out of twenty-six - of the

prison sentences imposed on him by the Liège Court of Appeal on 9

November 1982 (see paragraph 15 above); he was released in April

1984.Between January and August 1983 he was given three days'

prison leave on three occasions.

B. The deportation proceedings

1. The opinion of the Advisory Board on Aliens

17.On 9 September 1983 the Ministry of Justice referred the

case to the Advisory Board on Aliens, which gave its opinion on

24 November 1983.It concluded that deportation would be

justified in law but regarded it as "inappropriate" and gave the

following reasons:

"The very large number of offences committed by Mr

Moustaquim and for which he was sentenced by the Liège Court

of Appeal on 9/11/1982 amounted, for the most part, to

serious prejudice to public order (ordre public) justifying

the proposed measure.They included 26 aggravated thefts in

addition to ordinary thefts, handling stolen goods,

destruction, assault and threatening behaviour.The

sentences passed were: 2 years' imprisonment + 1 month + 8

days + 8 days + 15 days.

The Board excludes from the offences amounting to

prejudice to public order the indecent assault with violence

and threatening behaviour referred to in the account of the

facts drawn up by Crown Counsel's Office (Note P. 2 - File -

Document 27).Counsel for Mr Moustaquim told the Board that

his client had been acquitted on this charge.The Board

finds that in the same Document 27 forwarded by Crown

Counsel's Office to the Aliens Office the section headed

'Nature of the charge' does not include the offence of

indecent assault, whereas all the other offences referred to

in the account of the facts are listed there.It is not

possible to tell from the file whether it is the account of

the facts or the section headed 'Nature of the charge' which

is wrong.

While he was a minor in criminal law, he was placed

several times in homes.The Juvenile Court relinquished

jurisdiction in respect of the offences of which he was

convicted in the Court of Appeal's judgment.

The Board considers, however, that the proposed measure

would be inappropriate for the following reasons:

1. Mr Moustaquim's youth (he was born on 28.9.1963), both at

the time of the offences and now.

2. He arrived in Belgium at the age of one, in July 1965.

3. His whole family lives in Belgium (father, mother and

seven other children, four of whom were born here).

4. Mr Moustaquim is learning a trade - (as a butcher's

apprentice) - and could be helped by his father, who is a

butcher.The father apparently owns the butcher's shop that

he runs.

5. Mr Moustaquim has already had prison leave on at least

two occasions without any untoward incident occurring, and

the granting of this shows some confidence in his

behaviour."

2. The deportation order

18.A royal order of 28 February 1984, which was served on

Mr Moustaquim on 14 March and was to take effect from the moment

of his release, required him to "leave the Kingdom and not return

for ten years, ... except by special leave of the Minister of

Justice".It was based on the following reasons:

"...

Having regard to the fact that [Mr Moustaquim] has

committed a series of 26 offences of aggravated theft,

attempted aggravated theft, theft, handling stolen goods,

destroying a vehicle, assault and threatening behaviour,

offences which were made out and for which on 9 November

1982, in a judgment that has now become final, he was

sentenced by the Liège Court of Appeal to two years'

imprisonment, one month's imprisonment, 8 days' imprisonment

and 100 francs, 8 days' imprisonment and 100 francs, and 15

days' imprisonment and 100 francs;

Having regard to the fact that these were only some of the

147 offences committed by Mr Moustaquim while he was still a

minor in criminal law and for which he was brought before

the Juvenile Court (including 5 robberies, 82 offences of

aggravated theft and 39 offences of attempted aggravated

theft), not counting the 15 offences of theft of jewellery,

weapons and cash committed after the offences which led to

the aforementioned conviction;

Having regard to the opinion of the Advisory Board on

Aliens, which considers that deportation is justified in law

but nonetheless inappropriate;

Having regard to the fact that despite this opinion, the

Board acknowledges that the very large number of offences

committed by Mr Moustaquim amount, for the most part, to

serious prejudice to public order justifying deportation;

Having regard to the fact that Mr Moustaquim has committed

a substantial series of offences and that he is regarded by

the local gendarmerie as one of the leaders of a dangerous

gang of juvenile delinquents and as being a real danger to

society;

Having regard to the fact that by his personal behaviour

Mr Moustaquim has, consequently, seriously prejudiced public

order;

Having regard to the fact that the maintenance of public

order must prevail over the social and family considerations

set out by the Board;

..."

The applicant had to comply with the order within thirty

days of leaving prison.

19.On 17 February 1984 Mr Moustaquim's father had written to

the Queen asking her to intervene on his son's behalf.On 22

March 1984 the Aliens Office informed him that his application

had been rejected and the deportation order signed.

3. The applications to the Conseil d'Etat

20.Acting as the applicant's representative, Mr Moustaquim's

father made two applications to the Conseil d'Etat on 29 April

1984 seeking, firstly, to have execution of the deportation order

stayed and, secondly, to have the order itself quashed.

The Conseil d'Etat rejected the first application on

22 June 1984.Mr Moustaquim left Belgium some days later.

On 16 October 1985 the Conseil d'Etat rejected the

application for judicial review of the order on the following

grounds:

"...

The impugned order is founded mainly on 147 offences

admitted by Moustaquim.Twenty-six of those led to

convictions and heavy sentences and were regarded by the

Advisory Board on Aliens as amounting, for the most part, to

serious prejudice to public order justifying deportation in

law.

The 15 disputed offences appear, by the very terms of the

impugned decision ('not counting the 15 offences'), as a

superfluous ground in relation to the undisputed offences

which were put forward as justifying the deportation.

It does not follow from Moustaquim's acquittal on the

conspiracy charge that the information provided by the local

gendarmerie that is mentioned in the impugned decision was

inaccurate to the point that it was unusable as part of the

basis of the assessment that Moustaquim was a real danger to

society.The ground of appeal is unfounded.

In final pleadings - which were, moreover, out of time -

Moustaquim put forward five further grounds. ...The third

new ground, based on 'the violation of Articles 3 and 8

(art. 3, art. 8) of the European Convention for the

Protection of Human Rights, in that the disputed act was

both inhuman or degrading treatment and an intolerable

infringement of private and family life', is unfounded.

Firstly, deportation ordered in accordance with the law

cannot be equated either with a punishment or with inhuman

or degrading treatment within the meaning of Article 3 (art.

3) of the Convention; and secondly, respect for private and

family life as guaranteed in Article 8

(art. 8) of the Convention is not an obstacle to the taking

of a measure which, in a democratic society, is necessary

for public safety.The fourth new ground, based on the

violation of Article 14 (art. 14) of the said Convention, is

similarly unfounded, as there is no evidence to suggest that

the applicant was a victim, by reason of his nationality, of

discrimination prohibited by that Article (art. 14). ..."

C. Events since the deportation

1. Whereabouts abroad

21.After his departure from Belgium at the end of June 1984,

Mr Moustaquim went not to Morocco but to Spain, where he was

accommodated by friends of his parents.

On being asked to leave Spain, he settled in Stockholm,

where he remained virtually without a break until 20 January

1990.He lived there - at times legally and at other times

illegally - by his wits and by taking the odd undeclared job in

Greek and Italian restaurants; he was put up by his employers and

chance acquaintances.When he managed to save up enough money,

he went to a non-Scandinavian country in order to obtain a

three-month Swedish tourist visa.He also applied for a

long-term residence permit, and on 10 March 1989 the Swedish

embassy in Athens issued him a permit authorising him to live in

Sweden until 27 August of the same year; this permit was

subsequently renewed for six months.

22.In a notarially certified document of 24 April 1985 Mr

Moustaquim instructed his lawyer to make a "declaration of

election of nationality" under, in particular, Article 13 § 4 of

the new Belgian Nationality Code (see paragraph 29 below).

The Liège Registrar of Births, Deaths and Marriages

considered the declaration to be inadmissible in Liège as the

applicant had not been resident there since his deportation.In

response to a similar application, the Belgian embassy in Sweden

said that it could not take account of unlawful residence.

23.The applicant's lawyers made an urgent application to have

execution of the deportation order stayed on the ground that

Mr Moustaquim's position had worsened - on 24 September 1987 a

Stockholm psychiatrist had diagnosed the applicant as suffering

from a depression brought about by the disruption of his family

ties.

In an order dated 21 March 1988 the Liège judge responsible

for hearing urgent applications refused to order the interim

measure sought.

24.On 1 April 1988 one of the applicant's lawyers requested the

Minister of Justice to "revoke or suspend the deportation order",

but he received no reply to his letter.

2. Return to Belgium

25.On 14 December 1989 a royal order was issued, temporarily

suspending the deportation order:

"...

Having regard to the fact that Mr Moustaquim came to

Belgium at the age of two;

Having regard to the fact that all his family are lawfully

resident in Belgium;

Having regard to the fact that Mr Moustaquim should be

given an opportunity for rehabilitation;

On a proposal by Our Minister of Justice,

We hereby order as follows:

1.The royal deportation order made on 28 February 1984

pursuant to the Act of 15 December 1980 on the entry,

residence, settlement and expulsion of aliens against

Abderrahman Moustaquim, born in Casablanca on 28 September

1963, shall be suspended for a trial period of two years

during which the applicant shall be authorised to reside

within the Kingdom.

2.Continuation of the suspension and of the residence

authorisation provided for in Article 1 shall be subject to

compliance by Mr Moustaquim with the following two

conditions: (a) he must personally have sufficient means of

subsistence; and (b) he must not prejudice public order or

national security.

3.Unless a decision is taken to the contrary, the royal

deportation order of 28 February 1984 shall automatically be

rescinded at the end of the two-year trial period provided

for in Article 1.

..."

The Aliens Office informed the applicant's lawyer on 29

December, stating that the necessary steps had been taken to

ensure that his client had no difficulty when he arrived at

Brussels Airport pending completion of the administrative

formalities.On 29 January 1990 the Aliens Office sent him a

safe-conduct authorising Mr Moustaquim to enter Belgian territory

and remain there for thirty days.

26.The applicant had already returned on 20 January, and on

6 February he reported to the municipal authorities in Liège and

was registered as living there with his parents.On 13 April he

received a residence permit - a certificate of entry in the

Aliens Register - which was valid for one year and was renewable.

He is working in his father's butcher's shop and has

enrolled at the local school for continuing education for small

firms and traders.

II. Relevant domestic law and practice

A. The Children's and Young Persons' Welfare Act of

8 April 1965

27.The Children's and Young Persons' Welfare Act of 8 April

1965 replaced an Act of 15 May 1912; its purpose is to protect

the health, morals and education of young people under the age of

eighteen ("juveniles").Under it, "offending acts" committed by

juveniles can normally be dealt with only by means of custodial,

protective or educative measures and not by means of criminal

sanctions.

The 1965 Act contains provisions relating to "social

welfare" and others relating to "protection by the courts".

Judicial protection of juveniles is provided by specialised

courts: the Juvenile Court, which is a section of the tribunal de

première instance (regional court of first instance) and sits as

one or more single-judge courts, and the juvenile divisions of

the Court of Appeal, which likewise have a single member.

Section 36 of the 1965 Act lays down the cases in which the

juvenile courts may take the various measures set out in the Act

in respect of juveniles.They may make an order on an

application by Crown Counsel in several instances, including the

case of "juveniles ... proceeded against for an act classified as

an offence".

The same courts can also intervene up on a complaint by

"persons having paternal authority or having custody ... of a

juvenile ... who on account of his misconduct or indiscipline

gives serious cause for concern".

The measures they may order are, for the most part, set out

in section 37:

(a)a warning (section 37(1));

(b)placing the juvenile under the supervision of the

Youth Welfare Board or of a Youth Welfare Officer (section

37(2));

(c)keeping the juvenile in his own surroundings,

subject to certain conditions, such as having to attend an

educational establishment, to perform educative or socially

useful tasks or to comply with instructions from an

educational-counselling centre or mental-health centre (section

37(2));

(d)placing the juvenile in the home of any

trustworthy person or in any appropriate institution, under the

supervision of the Youth Welfare Board or of a Youth Welfare

Officer (section 37(3));

(e)placing the juvenile in a State reformatory

(section 37(4)).

Where a juvenile over sixteen has been brought before the

juvenile courts for an "act classified as an offence", they may,

if they consider the measures referred to in section 37 to be

"inadequate", relinquish jurisdiction and remit the case to Crown

Counsel so that proceedings may be taken in the appropriate court

(section 38 of the 1965 Act).

Relinquishment of jurisdiction is regarded as an exceptional

measure, to be applied only as a last resort.The legislature

made provision for it in order to cope with precocious or

depraved juvenile delinquents.

In 1987 the Belgian juvenile courts gave 13,904 decisions;

they relinquished jurisdiction in favour of the Criminal Court in

87 cases.

By section 53 of the 1965 Act, a juvenile may, "if it is

materially impossible to find an individual or an institution

able to accept the juvenile immediately, ... be provisionally

detained in a remand prison for a period not exceeding fifteen

days".

B. Act of 15 December 1980 on the entry, residence,

settlementand expulsion of aliens

28.The Act of 15 December 1980 on the entry, residence,

settlement and expulsion of aliens governs aliens' administrative

status.

Even foreigners with residence permits may be deported under

the Act where they have "seriously prejudiced public order or

national security" (section 20, second paragraph).

Before making such a deportation order, the Minister of

Justice must seek the opinion of the Advisory Board on Aliens,

which consists of a judge, a barrister and a member of an aliens'

welfare association.

Deportation orders are signed by the King.They are subject

to judicial review by the Conseil d'Etat (section 69), which on

an application by the person concerned may grant a stay of

execution until the application for review has been heard

(section 70, first paragraph).The Conseil d'Etat satisfies

itself that the deportation appealed against is based wholly on

the alien's personal behaviour; the mere fact that he has a

criminal conviction does not automatically entail deportation.

C. The new Belgian Nationality Code

29.The new Belgian Nationality Code is contained in an Act of

12 July 1984 and came into force on 1 January 1985 - that is to

say after the material events.Article 13 § 4 of the Code

confers the right to acquire Belgian nationality on "a child who,

for at least one year before the age of six, has had his

principal residence in Belgium with a person to whose authority

he was legally subject".

The Code replaces, in particular, the Act of 25 March 1984,

which required a private naturalisation Act, even for foreigners

born in Belgium.

PROCEEDINGS BEFORE THE COMMISSION

30.In his application of 13 May 1986 to the Commission (no.

12313/86) Mr Moustaquim alleged that his deportation from Belgium

infringed several provisions of the Convention: Article 8 (art.

8), on account of interference with his family and private life;

Article 14 taken together with Article 8 (art. 14+8), on account

of discrimination based on nationality; Article 3 (art. 3), on

account of inhuman and degrading treatment; Article 6 (art. 6),

because the Conseil d'Etat was not in the instant case an

impartial tribunal; and Article 7 (art. 7), because the

deportation was a punishment imposed in respect of acts which did

not all amount to criminal offences at the time they were

committed.

31.On 10 April 1989 the Commission declared the application

admissible as to the consequences of the deportation but rejected

the complaint based on Article 6 (art. 6), which it said was

inapplicable in the instant case.In its report of 12 October

1989 (made under Article 31) (art. 31), it expressed the opinion

that there had been a breach of Article 8 (art. 8) (by ten votes

to three) but not of Article 14 taken together with Article 8

(art. 14+8) or of Articles 3 and 7 (art. 3, art. 7)

(unanimously).The full text of the Commission's opinion and of

the two dissenting opinions contained in the report is reproduced

as an annex to this judgment.

[...]

AS TO THE LAW

I. WHETHER THE CASE HAS BECOME DEVOID OF PURPOSE

33.In their memorial the Government submitted that the

application had become devoid of purpose in that the deportation

order of 28 February 1984 had been suspended for a trial period

of two years by a royal order of 14 December 1989 and the

applicant was thus authorised to reside in Belgium.

Since the order of 28 February 1984 only suspended the

deportation order and did not make reparation for its

consequences, which Mr Moustaquim suffered for more than five

years, the Court considers that the case has not become devoid of

purpose (see, mutatis mutandis, the Eckle judgment of 15 July

1982, Series A no. 51, pp. 30-31, § 66).

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

34.Mr Moustaquim submitted that his deportation by the Belgian

authorities interfered with his family and private life.He

relied on Article 8 (art. 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."

The Government rejected this argument, but the Commission

accepted it.

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

35.The Government expressed doubts as to whether the applicant

and his parents had any real family life at the time he was

deported, as family ties were, at the least, strained in view of

the number of occasions on which the youth had run away and had

been imprisoned.They did not, however, expressly dispute that

Article 8 (art. 8) was applicable.

36.Mr Moustaquim lived in Belgium, where his parents and his

seven brothers and sisters also resided.He had never broken off

relations with them.The measure complained of resulted in his

being separated from them for more than five years, although he

tried to remain in touch by correspondence.There was

accordingly interference by a public authority with the right to

respect for family life guaranteed in paragraph 1 of Article 8

(art. 8-1).

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

37.It must accordingly be determined whether the deportation in

question satisfied the conditions in paragraph 2, that is to say

was "in accordance with the law", in the interests of one or more

of the legitimate aims listed, and "necessary in a democratic

society" for achieving them.

1. "In accordance with the law"

38.Like the Government and the Commission, the Court notes that

the royal deportation order of 28 February 1984 was based on

sections 20 and 21 of the Act of 15 December 1980 on the entry,

residence, settlement and expulsion of aliens (see paragraph 28

above).The applicant did not dispute that, and the Belgian

Conseil d'Etat moreover held in its judgment of 16 October 1985

that the deportation was lawful (see paragraph 20 above).

2. Legitimate aim

39.In Mr Moustaquim's submission, the interference in question

did not pursue any of the legitimate aims set out in Article 8 §

2 (art. 8-2), in particular "the prevention of crime" and, more

broadly, of "disorder".He claimed that it was in reality a

sanction for old offences.

40.Both the Government and the Commission considered, on the

contrary, that it did pursue an aim fully compatible with the

Convention: the prevention of disorder.The Court, like the

Belgian Conseil d'Etat (see paragraph 20 above), reaches the same

conclusion.

3. "Necessary in a democratic society"

41.Mr Moustaquim claimed that his deportation could not be

regarded as "necessary in a democratic society".

The Commission accepted this argument, taking the view that

the measure was disproportionate as the authorities had not

achieved a just balance between the applicant's interest in

maintaining a family life and the public interest in the

prevention of disorder.

42.The Government relied on the large number of offences (147)

of which Mr Moustaquim was accused, the periods of imprisonment

which resulted on several occasions, the exceptional nature of

the Juvenile Division's relinquishment of jurisdiction in favour

of the Criminal Court and the severity of the sentences imposed

by the Liège Court of Appeal (see paragraphs 10, 15, 16 and 27

above).They also pointed out that the youth had continued to

commit offences even while under the supervision of the Juvenile

Court (see paragraph 12 above).Lastly, they emphasised the

serious risk of his reoffending.In short, Mr Moustaquim's

dangerousness had made his presence on Belgian territory

unacceptable to the community.

43.The Court does not in any way underestimate the Contracting

States' concern to maintain public order, in particular in

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 judgment of 28 May 1985, Series

A no. 94, p. 34, § 67, and the Berrehab judgment of 21 June 1988,

Series A no. 138, pp. 15-16, §§ 28-29).

However, in cases where the relevant decisions would

constitute an interference with the rights protected by paragraph

1 of Article 8 (art. 8-1), they must be shown to 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.

44. Mr Moustaquim's alleged offences in Belgium have a number of

special features.They all go back to when the applicant was an

adolescent (see paragraphs 10-15 above).Furthermore,

proceedings were brought in the criminal courts in respect of

only 26 of them, which were spread over a fairly short period -

about eleven months -, and on appeal the Liège Court of Appeal

acquitted Mr Moustaquim on 4 charges and convicted him on the

other 22.The latest offence of which he was convicted dated

from 21 December 1980.There was thus a relatively long interval

between then and the deportation order of 28 February 1984.

During that period the applicant was in detention for some

sixteen months but at liberty for nearly twenty-three months.

45.Moreover, at the time the deportation order was made, all

the applicant's close relatives - his parents and his brothers

and sisters - had been living in Liège for a long while; one of

the older children had acquired Belgian nationality and the three

youngest had been born in Belgium.

Mr Moustaquim himself was less than two years old when he

arrived in Belgium.From that time on he had lived there for

about twenty years with his family or not far away from them.

He had returned to Morocco only twice, for holidays.He had

received all his schooling in French.

His family life was thus seriously disrupted by the measure

taken against him, which the Advisory Board on Aliens had judged

to be "inappropriate".

46.Having regard to these various circumstances, it appears

that, as far as respect for the applicant's family life is

concerned, a proper balance was not achieved between the

interests involved, and that the means employed was therefore

disproportionate to the legitimate aim pursued.Accordingly,

there was a violation of Article 8 (art. 8).

47.This conclusion makes it unnecessary for the Court to

consider whether the deportation was also a breach of the

applicant's right to respect for his private life.

III. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE

8 (art. 14+8)

48.Mr Moustaquim claimed to be the victim of discrimination on

the ground of nationality, contrary to Article 14 taken together

with Article 8 (art. 14+8), vis-à-vis juvenile delinquents of two

categories: those who possessed Belgian nationality, since they

could not be deported; and those who were citizens of another

member State of the European Communities, as a criminal

conviction was not sufficient to render them liable to

deportation.

The Government made no observations on the matter.

49.Like the Commission, the Court would reiterate that

Article 14 (art. 14) safeguards individuals placed in similar

situations from any discriminatory differences of treatment in

the enjoyment of the rights and freedoms recognised in the

Convention and its Protocols (see, among other authorities, the

Marckx judgment of 13 June 1979, Series A no. 31, pp. 15-16, §

32).

In the instant case the applicant cannot be compared to

Belgian juvenile delinquents.The latter have a right of abode

in their own country and cannot be expelled from it; this is

confirmed by Article 3 of Protocol No. 4 (P4-3).

As for the preferential treatment given to nationals of the

other member States of the Communities, there is objective and

reasonable justification for it as Belgium belongs, together with

those States, to a special legal order.

There has accordingly been no breach of Article 14 taken

together with Article 8 (art. 14+8).

[...]

FOR THESE REASONS, THE COURT

1. Holds by seven votes to two that there has been a breach of

Article 8 (art. 8);

2. Holds unanimously that there has been no breach of Article

14 taken together with Article 8 (art. 14+8);

3. Holds unanimously that it is unnecessary to examine the case

also under Articles 3 and 7 (art. 3, art. 7);

4. Holds by seven votes to two that the respondent State is to

pay the applicant 440,000 (four hundred and forty thousand)

Belgian francs, less 10,730 (ten thousand seven hundred and

thirty) French francs, under Article 50 (art. 50);

5. Dismisses unanimously the remainder of the claim for just

satisfaction.

[...]