European Court of Human Rights - case of Djeroud v. France (1991)

EUROPEAN COURT OF HUMAN RIGHTS

In the Djeroud case*,

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention")** and

the relevant provisions of the Rules of Court***, as a Chamber

composed of the following judges:

Mr R. Ryssdal, President,

Mr F. Matscher,

Mr L.-E. Pettiti,

Sir Vincent Evans,

Mr C. Russo,

Mr J. De Meyer,

Mr N. Valticos,

Mr S.K. Martens,

Mr J.M. Morenilla,

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

Registrar,

Having deliberated in private on 22 January 1991,

Delivers the following judgment, which was adopted on that

date:

______________

Notes by the Registrar

* The case is numbered 34/1990/225/289. The first number is

the case's position on the list of cases referred to the Court in

the relevant year (second number). The last two numbers indicate

the case's position on the list of cases referred to the Court

since its creation and on the list of corresponding originating

applications to the Commission.

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

came into force on 1 January 1990.

*** The amendments to the Rules of Court which came into force

on 1 April 1989 are applicable to this case.

_______________

PROCEDURE

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

Commission of Human Rights ("the Commission") on 21 May 1990,

within the three-month period laid down by Article 32 § 1 and

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

in an application (no. 13446/87) against the French Republic

lodged with the Commission under Article 25 (art. 25) by an

Algerian national, Mr Mohamed Djeroud, on 25 September 1987.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby France

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request was to obtain a decision as

to whether the facts of the case disclosed a breach by the

respondent State of its obligations under Articles 8 and 3

(art. 8, art. 3).

2. In response to the enquiry made in accordance with Rule 33

§ 3 (d) of the Rules of Court, the applicant stated that he

wished to take part in the proceedings and designated the lawyer

who would represent him (Rule 30).

3. The Chamber to be constituted included ex officio Mr

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

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

of the Court (Rule 21 § 3 (b)). On 24 May 1990, in the presence

of the Registrar, the President drew by lot the names of the

other seven members, namely Mr F. Matscher, Mr J. Pinheiro

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

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

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

J.M. Morenilla, substitute judges, replaced Mr Pinheiro Farinha

and Mr Pekkanen who were unable to take part in the consideration

of the case (Rules 22 § 1 and 24 § 1).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 § 5) and, on 3 July 1990, gave directions as to the

written procedure, after having, through the Registrar, consulted

the Agent of the French Government ("the Government"), the

Delegate of the Commission and the applicant's lawyer.

5. An attempt to reach a friendly settlement gave rise, between

8 November 1990 and 3 January 1991, to a series of letters and

telephone conversations between the Government, the applicant's

lawyer and the Registrar.

6. On 3 January 1991 the applicant's lawyer communicated to the

Registrar the text of a declaration signed by his client

accepting an offer made by the Government. On 14 January the

Government transmitted a copy of that document to the Court.

The Delegate of the Commission was consulted (Rule 49 § 2)

and submitted his observations on 15 January.

7. On 22 January the Court decided to dispense with a hearing

in the case, having satisfied itself that the conditions for this

derogation from its usual procedure had been met (Rules 26 and

38).

AS TO THE FACTS

8. Mr Mohamed Djeroud, an Algerian national who was born in

Algeria in 1958, arrived in France the following year with his

family, who set up home in Mulhouse. His mother and his six

brothers and sisters, four of whom have French nationality, live

in France.

9. He was convicted on several occasions in 1977 and 1978,

inter alia, on theft charges; the first two sentences were

suspended. In February 1979 the Minister of the Interior ordered

his deportation on the ground that he represented a danger to

public order (section 23 of the Order of 2 November 1945 on the

conditions for the entry and residence of foreign nationals).

The applicant went to Algeria of his own accord in 1980, but in

1982 returned to France where he lived until 1985 under a

provisional residence permit and where he committed further

offences.

He was deported in February 1985 and again in April 1987 in

pursuance of the 1979 order, but each time he returned to France.

In December 1987 he refused to board an aeroplane for Algeria, as

a result of which he served a prison sentence in France.

Since 1988 he has been the subject of a compulsory residence

order confining him to the municipality of

Villeneuve-Saint-Georges (Val-de-Marne), near Paris, until such

time as he complies with the deportation order. Various attempts

to secure the revocation of that order failed, as did an

application for political asylum lodged in 1987.

PROCEEDINGS BEFORE THE COMMISSION

10. In his application (no. 13446/87) lodged with the Commission

on 25 September 1987 Mr Djeroud alleged that his deportation from

France violated two provisions of the Convention: Article 8

(art. 8), by infringing the right to respect for his private and

family life; and Article 3 (art. 3), on account of inhuman and

degrading treatment.

The Commission declared the application admissible on

10 May 1989. In its report of 15 March 1990 (Article 31)

(art. 31), it expressed the opinion, by thirteen votes to one,

that there had been a violation of Article 8 (art. 8). On the

other hand, it considered unanimously that there had been no

violation of Article 3 (art. 3). The full text of the

Commission's opinion and of the dissenting opinion contained in

the report is reproduced as an annex to this judgment*.

_______________

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

appear only with the printed version of the judgment (volume

191-B of Series A of the Publications of the Court), but a copy

of the Commission's report is obtainable from the registry.

_______________

AS TO THE LAW

11. The Registrar of the Court received copies of a document

signed on 21 December 1990 by Mr Djeroud from the applicant's

lawyer on 3 January 1991 and from the Ministry of Foreign Affairs

of the French Republic on 14 January. The document was worded as

follows:

"I ... declare that I accept the friendly settlement which

has been proposed to me by the French Government in the

proceedings pending against that Government in the European

Court of Human Rights, subject to the following conditions:

- revocation of the deportation order made against me,

- issue of a residence permit valid for ten years,

- payment of compensation of 150,000 French francs.

I acknowledge that the payment of the above-mentioned sum

shall constitute full and final reparation for all the

pecuniary and non-pecuniary damage alleged by me in my

application and shall also cover in their entirety the

lawyer's fees and other expenses incurred by me in the

present case.

I therefore agree to withdraw from these proceedings and

undertake not to institute any subsequent proceedings

against the French State in this matter in national or

international courts.

I note that the French Government are to take the

measures necessary to implement the terms of the friendly

settlement as soon as the Court has decided to strike the

case out of its list.

 ..."

The Delegate of the Commission was consulted and raised no

objection.

12. The Court takes formal note of the friendly settlement

reached by the Government and the applicant. It discerns no

reason of ordre public militating against striking the case out

of the list (Rule 49 §§ 2 and 4 of the Rules of Court).

FOR THESE REASONS, THE COURT UNANIMOUSLY

Decides to strike the case out of the list.

Done in English and in French, and notified in writing under

Rule 55 § 2, second sub-paragraph, of the Rules of Court on

23 January 1991.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar