CASE OF MEHEMI v. FRANCE
Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
C. Russo;John Freeland
7. Mr Ali Mehemi, who was born in Lyons in 1962, is an Algerian national and is currently living in Algeria. Until 28 February 1995, when he was deported, he lived in France, where his parents – who have lived there for about forty years – still reside, as do his two brothers (one of whom is French and the other the father of two French children) and his two sisters (one of whom is French and the other the wife of a French national). 8. The applicant went to school in France until the age of 17. He apparently worked in the construction industry for three years and thereafter as a self-employed taxi-driver. 9. He is the father of three children of French nationality, born in 1982, 1983 and 1984. On 14 May 1986, in Villeurbanne, he married their mother, an Italian national who has been lawfully resident in France since 1978. 10. On 5 November 1989 officers of the Regional Criminal Investigation Department, assisted by customs officers, seized 142 kilograms of hashish imported from Morocco in a van adapted for the purpose. Nine people, including the applicant, at whose parents’ home seven kilograms of hashish were found, were committed for trial at the Lyons Criminal Court accused of drug offences and illegal importation of prohibited goods. On 22 January 1991 the Criminal Court sentenced Mr Mehemi to six years’ imprisonment, with ineligibility for parole during the first three years, and two customs fines, for possession and illegal importation of dangerous drugs. 11. In a judgment of 4 July 1991 the Lyons Court of Appeal upheld the judgment of 22 January 1991 and ordered Mr Mehemi’s permanent exclusion from French territory on the ground that “public-policy considerations preclude the presence within French territory of an alien engaged as a principal in the offence of drug trafficking ”. 12. On 19 March 1993 Mr Mehemi filed with the Lyons Court of Appeal an application to have the permanent exclusion order rescinded. He relied in particular on Article 8 of the Convention. On 1 June 1993 the Court of Appeal refused the above application on the following grounds: “The defendant has not adduced any new evidence not examined by the Court of Appeal when it decided to uphold Ali Mehemi’s permanent exclusion from French territory. It should be observed that the Court of Appeal expressly mentioned in the reasons for its decision that French public-policy considerations precluded the presence within French territory of an alien engaged as a principal in the offence of drug trafficking. It is untrue that the defendant has maintained no link with his nationality of origin, since he voluntarily opted for that nationality on reaching his majority, despite the fact that the circumstances of his birth would have allowed him, in the absence of any criminal conviction, to acquire French nationality as of right if he had not expressly declined it. His various trips to North Africa over the years preceding his arrest show that he has not severed all physical links with his nationality of origin. Lastly, the order permanently excluding him from French territory is justified by the offence of importing drugs in the manner described in his conviction, now final, and by no means constitutes a disproportionate response to the seriousness of that offence, given that he had remained on French territory in order to facilitate the importation and subsequent distribution among desperate young people – with all the consequences which this type of offence involves – of very substantial quantities of hashish, the first drug turned to by addicts on their downhill slide, more than 140 kilograms of it in this case, purely for financial gain. It cannot seriously be maintained that there has been any violation of the provisions of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. ...” 13. On 7 June 1993 the applicant appealed on points of law. In his statement of the grounds of appeal, dated 2 July 1993, his lawyer argued as follows: “… … Contrary to what is said in the impugned judgment, Mr Ali Mehemi, an Algerian national, was never entitled to claim French nationality as of right ... Contrary to what is asserted there, he did not at any time decline French nationality … Pursuant to the legislation governing the consequences of Algerian independence as regards nationality (Ordinance no. 62-825 of 21 July 1962, Decree no. 62-1475 of 27 November 1962 and Law no. 66-945 of 20 December 1966), Mr Ali Mehemi, who was born before 1 January 1963, was subject to the same rules as his parents, who, not having made the declaration of recognition of French nationality provided for in Article 1 of the Law of 20 December 1966, became, as a result, Algerian. ... Contrary to what the Court of Appeal judges said, there was indeed disproportionality in the instant case between the isolated offence Mr Ali Mehemi was found guilty of and his interests as defined and protected in Article 8 of the Convention ... Mr Ali Mehemi was born in France, is married to a national of a European Community member State and is the father of three French children ... His whole family lives in France and …, contrary to what is stated in the judgment, he has not maintained links with his country of origin, his nationality – which he did not choose – not reflecting his actual position. ... ... Mr Ali Mehemi’s three French children were born in France and have always lived there ... They cannot be uprooted and sent to a country they do not know with the sole aim of being allowed to remain with their father ... In any event, their mother could not follow them if they were, ... nor can Mr Mehemi go to Italy, on account of his exclusion from French territory. ...” 14. In a judgment of 23 February 1994 the Court of Cassation dismissed the appeal in the following terms: “... The Court finds in this case that the measure concerned, which was imposed on the defendant following adversarial proceedings, was by no means a disproportionate response to the seriousness of the crime, and the grounds of appeal therefore contain no new evidence of a kind to warrant rescinding the measure. In the light of the above findings and considerations, the Court of Appeal justified its decision and did not infringe the principles or legislation relied on in the grounds of appeal. It follows that the appeal cannot be allowed. ...” 15. While Mr Mehemi was in prison, on a date which has not been determined, his wife wrote to the French President in the following terms: “... I would not ask you to plead in my favour for a reduction of my husband’s sentence, as I know full well that that is impossible, but I beseech you to help me have his expulsion from French territory quashed. He was sentenced to six years’ imprisonment – so be it. That must be the way of it because he committed a crime and I know perfectly well that he must pay for it ... But I cannot bring myself to accept his expulsion, and for good reason. Please understand me, Mr President, or at least try to: since my husband went to prison my children have not been themselves; they are suffering terribly and are constantly having to be examined by psychologists. But it is not just my children and I who are suffering: there is also the whole of my husband’s family, particularly his mother, who is 67 years of age and a diabetic. She sees her grandchildren all the time and whenever they ask her where “Dad” is and when he will be coming back she cannot help bursting into tears. This situation is having a terrible effect on her physical and mental health. Things cannot go on like this. I do not want my family and the future of my children to be destroyed, because what future can I give them without their father at their side? ...” 16. The permanent exclusion order was enforced on 28 February 1995. 17. 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. The provisions of the eight preceding paragraphs shall not be applicable in the event of a conviction for ... importing or exporting [toxic plants classified as drugs] or for conspiracy to commit those offences. ... 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. 18. 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. …”