CASE OF EL BOUJAÏDI v. FRANCE
No violation of Art. 8
C. Russo;John Freeland
7. Mr El Boujaïdi was born in Morocco in 1967 and is a Moroccan national. In 1974 he went with his mother, his three sisters and his brother to join his father in France. He has been living in Morocco since enforcement on 26 August 1993 of an order for his permanent exclusion from French territory. 8. The applicant went to school in France, where he also worked for several years. 9. In October 1986 a network of traffickers in heroin imported from the Netherlands was discovered in the Saint-Etienne area (Loire). Eight people, including the applicant, were committed for trial at Saint-Etienne Criminal Court charged with consumption of and trafficking in prohibited drugs. 10. On 24 March 1988 the Saint-Etienne Criminal Court sentenced Mr El Boujaïdi to three years’ imprisonment, to run concurrently with another sentence of thirty months’ imprisonment imposed by the Annecy Criminal Court on 25 September 1987 for dealing in heroin, and ordered him to pay customs fines. Applying Article L. 630-1 of the Public Health Code, it further imposed permanent exclusion orders on Mr El Boujaïdi and three of his co-defendants and a three-year exclusion order on a fourth. 11. On appeal by the prosecution, the Lyons Court of Appeal, in a judgment of 12 January 1989, increased the applicant’s sentence to six years’ imprisonment, with ineligibility for parole during the first two-thirds thereof, and confirmed the permanent exclusion order. The reasons for the judgment were set out as follows: “In April 1987, in the course of an inquiry aimed at breaking up a heroin-trafficking network operating in Saint-Etienne, the police arrested [the applicant], who had been named as a supplier by various users. During questioning by the police and the investigating judge El Boujaïdi admitted that he had been using heroin for several months and that he injected himself with up to 1.5 grams per day. According to his statements, he obtained his supplies from [K., A. and I.], who obtained their supplies in Holland. Again according to his own statements, El Boujaïdi had been peddling heroin since November 1986 to finance his own consumption. He even stated at one interview that each time he bought five grams he sold on three. The various users named in the charge as buyers from El Boujaïdi confirmed during the course of the inquiry that they had obtained varying quantities of heroin from him throughout the relevant period, namely from September 1986 to April 1987. According to the statements made by a number of these buyers, El Boujaïdi was known to drug addicts in Saint-Etienne as a supplier and users could meet him in a bar in Place Chavanelle, where the transactions took place. El Boujaïdi was found guilty of selling heroin to [B.] in a judgment of Annecy [Criminal] Court of 25 September 1987, which has become final. There is therefore no need to rule on that offence. As regards the remaining charges, and in view of the extreme seriousness of the accused’s conduct, the Court upholds the guilty verdict referred from the court below and sentences El Boujaïdi to six years’ imprisonment, to run concurrently with the thirty-month sentence passed on 25 September 1987 by Annecy Criminal Court ... The Court orders [the applicant’s] permanent exclusion from French territory. ...” 12. On 25 March 1991, pleading his family ties in France, Mr El Boujaïdi lodged a first application to have the order permanently excluding him from French territory rescinded. In a judgment of 14 May 1991 the Lyons Court of Appeal declared the application inadmissible on the ground that under Article L. 630-1 of the Public Health Code an alien permanently excluded from French territory could not apply for the relevant order to be rescinded. 13. Following an attempted robbery, the applicant – who had been released on 19 June 1991 – was arrested and, on 6 December 1992, detained under a committal warrant. For this offence and the fact that he had stayed in France in spite of the permanent exclusion order imposed on him, on 11 January 1993 the Saint-Etienne Criminal Court sentenced him to one year’s imprisonment. 14. On 25 May 1992 Mr El Boujaïdi again applied to have the exclusion order rescinded. He submitted that the length of time he had been living in France brought him into a category of convicted aliens on whom, under Article L. 630-1 of the Public Health Code, in its new version as amended by the Law of 31 December 1991, an exclusion order could not be imposed. He also argued that on account of his family ties in France the exclusion order was in breach of Article 8 of the Convention. 15. The Lyons Court of Appeal refused this application on 26 November 1992 in a judgment containing the following reasons: “The applicant has submitted not only that the order permanently excluding him from French territory should be rescinded in the light of Article 8 of the ... Convention ... but also that, as a matter of fact, he has lived in France since 1974 and the whole of his family lives here too. … While Mr El Boujaïdi’s application has become admissible since the repeal by the Law of 31 December 1991 ... of the last paragraph of Article L. 630-1 of the Public Health Code, the applicant cannot rely on the substantive provisions of that legislation, which are not retrospectively applicable to convictions that became final, as in this case, before its entry into force. His application must accordingly be dealt with on its own merits, on the basis of Article 55-1 of the Criminal Code. Mr El Boujaïdi has adduced no new evidence since his conviction on 12 January 1989. He cannot argue, as an unmarried man, that his exclusion from French territory is an intolerable interference in his family life within the meaning of Article 8 of the Convention ... The offences he has committed, after two previous convictions for drug offences, make his presence on French territory dangerous for public health and public order. ...” 16. On 15 March 1994 the Court of Cassation (Criminal Division) dismissed an appeal on points of law lodged by the applicant on 30 November 1992 against the judgment of the Lyons Court of Appeal on the ground that Mr El Boujaïdi’s statement of the grounds of appeal did not bear his signature. 17. On 22 July 1993 Mr El Boujaïdi made a third application requesting the Lyons Court of Appeal to rescind the exclusion order. In support of his appeal – which was based on Article 8 of the Convention – he pleaded changes in his personal circumstances, namely the fact that he was living with a Frenchwoman, Mrs M., and was the father of the child she had given birth to on 6 July. On 5 August 1993 the social worker at the prison where Mr El Boujaïdi was detained wrote to his lawyer in the following terms: “... In reply to your letter of 28 July 1993 concerning the steps taken over the last few months regarding recognition of the child of Mr El Boujaïdi, currently imprisoned, for whose social welfare I am responsible, I can inform you that, at the request of Mr El Boujaïdi and [Mrs M.], his cohabitant: 1. In April I prepared the paperwork for a prenatal recognition of paternity and sent the file both to the town hall of La Talandière and to Assistant State Counsel so that the appropriate submissions could be made to the Registrar of Births, Marriages and Deaths. 2. As this application had been unsuccessful and the child had been born – on 6 July 1993 – I compiled a new recognition of paternity file and sent it on 3 August 1993 to State Counsel’s Office at the Saint-Etienne tribunal de grande instance. ...” 18. On 26 August 1993 the exclusion order was enforced. 19. On 20 October 1993, at the French Consulate in Fez, Mr El Boujaïdi recognised paternity of Mrs M.’s child. 20. In a judgment of 16 December 1993 the Lyons Court of Appeal refused the application to have the exclusion order rescinded on the following grounds: “Mr El Boujaïdi’s lawyer has produced various documents showing that Mr El Boujaïdi met Mrs M. in January 1992, that is at a date when he should not have been present on French territory. Their child was born on 6 July 1993. The circumstances he relies on therefore came into being at a time when he was permanently excluded from French territory. The exclusion order was imposed to penalise a dangerous trade in heroin. That being so, the Court does not see fit to allow the present application. ...” 21. Relying mainly on Article 8 of the Convention and the European Court’s case-law, the applicant appealed on points of law. In a judgment of 25 October 1994 the Court of Cassation dismissed the appeal on the following grounds: “The judgment under appeal shows that Abderrahim El Boujaïdi, who is a Moroccan national, was sentenced, inter alia, to be permanently excluded from French territory for an offence against the dangerous drugs legislation, in a judgment of the Lyons Court of Appeal of 12 January 1989, which has become final, and that by an application dated 22 July 1993 he sought to have that exclusion order rescinded. In rejecting that application the Court of Appeal observed that the family circumstances on which the appellant relies came into being while he was permanently excluded from French territory. It further stated that the purpose of the additional penalty imposed on the appellant was to ‘penalise a dangerous trade in heroin’. … Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms does not prohibit limitations prescribed by law on the right to respect for family life, provided that they are necessary for, among other things, public safety, the prevention of disorder and the protection of health. That is the position in the present case. It follows that the appeal, which amounts to a challenge to the courts’ discretionary power under Article 55-1 of the Criminal Code, then in force, cannot be allowed. ...” 22. Article L. 630-1 of the Public Health Code formerly provided: “... the courts ... may order an alien convicted of an offence under Article L. 627 to be permanently excluded from French territory. Exclusion from French territory shall of itself entail the deportation of the convicted person at the end of his sentence. ... Where a person, on conviction, is permanently excluded from French territory, he may not request the benefit of the provisions of Article 55-1 of the Criminal Code.” Law no. 91-1383 of 31 December 1991 replaced the last three paragraphs by the following provisions: “However, exclusion from French territory shall not be imposed on: ... 2. a convicted alien who is the father or mother of a French child resident in France, provided that he or she is vested with or shares parental authority over that child or provides for its needs; ... Nor shall exclusion from French territory be imposed on a convicted alien who can prove either: 1. that he has been normally resident in France since reaching the age of 10 at the most or for more than fifteen years; or 2. that he has been lawfully resident in France for more than ten years. ... Exclusion from French territory shall of itself entail the convicted person’s deportation, where necessary after the end of his prison sentence.” Article L. 630-1 was repealed by Law no. 92-1336 of 16 December 1992. 23. Article 55-1 of the Criminal Code provides: “... Any person who has incurred a disability ... as an automatic consequence of a criminal conviction or on whom such disability ... has been imposed by the convicting court in its judgment ... may request the court which convicted him ... to rescind the disability ..., in whole or in part, or vary its duration. …”