CASE OF NASRI v. FRANCE
Violation of Art. 8 (if deportation order executed);Not necessary to examine Art. 3;Lack of jurisdiction (injunction to State)
6. Mr Nasri, an Algerian national, was born deaf and dumb in June 1960, in Algeria. He is the fourth of ten children, one of whom is deceased and six of whom are French nationals. He came to France with his family in February 1965. He is currently subject to a compulsory residence order pursuant to which he is required to live with his parents, at Nanterre (Hauts-de-Seine). 7. According to the information provided to the Court, the applicant's schooling may be summarised as follows. 8. On their arrival in France in 1965 Mr and Mrs Nasri wanted to enrol their son in kindergarten, but he was refused admittance on account of his handicap. They then sought to have him admitted to the Institut Saint-Jacques in Paris, a specialist establishment for the deaf and dumb. The institute could not however take him because of a lack of places and because his intellectual level was not regarded as sufficient. As a result Mr Nasri was not able to attend a school until 1968. In that year, after a social worker had intervened, he was admitted to the Centre audiométrique médico-psychopédagogique at Boulogne (Hauts-de-Seine) (a school specialising in hearing and speech difficulties). There he underwent therapy for his condition and received training adapted to his needs. On 11 December 1971 he was expelled for violent behaviour. 9. He then spent a further period with no schooling or training, which lasted until 1974, when he entered a training centre for the deaf and dumb at Tours (Indre-et-Loire). However, as his parents were unable to pay the boarding fees, he was returned to them after seven months. On 20 September 1976 he began training as a house painter. On 20 October 1977, following various incidents, he was obliged to quit. 10. The applicant has indicated that he has no proficiency in deaf and dumb sign language, can neither read nor write and expresses himself in elementary fashion through signs that are intelligible only to his immediate circle of family and friends. 11. As early as 1977 the applicant came to the notice of the police as a result of a number of thefts. He appeared in court on several occasions. 12. At 10 March 1992 his police file recorded the following convictions: (a) on 3 November 1981, 2 February 1982 and 21 January 1983 he was sentenced by the Paris Criminal Court to terms of imprisonment ranging from six months to one year for theft and attempted theft; (b) on 15 May 1986 he was sentenced to five years' imprisonment, two of which were suspended, and five years' probation by the Hauts-de-Seine Assize Court for gang rape; (c) on 17 September 1987 he was sentenced to one year and three months' imprisonment by the Nanterre Criminal Court for theft with violence; (d) on 10 November 1988 he was sentenced to ten months' imprisonment by the Paris Court of Appeal for theft with violence; (e) on 7 September 1989 he was fined two thousand francs by the Paris Criminal Court for assaulting a public official; (f) on 10 December 1990 he was sentenced to six months' imprisonment by the Versailles Court of Appeal for theft with violence and receiving stolen goods. In addition, on 21 May 1982 he had been given a suspended sentence of eight days' imprisonment for criminal damage and on 13 May 1992 he was sentenced to eight months' imprisonment for theft. On 31 March 1993 he was convicted of theft with violence, but the Court does not have any further details. 13. On 21 August 1987 the Minister of the Interior ordered the applicant's deportation on the ground that his presence on French territory represented a threat to public order. The order, which was issued pursuant to sections 23 and 24 of the Order of 2 November 1945 as amended (see paragraph 27 below), cited the applicant's five recent convictions, including that of 15 May 1986 (see paragraph 12 above). 14. On 10 March 1988 the Versailles Administrative Court quashed the above-mentioned order. It found that the Minister had not been entitled to rely on the 1945 Order as amended by the Act of 9 September 1986, because the provisions of that Act were stricter than those that had previously been in force. To rely on them in the applicant's case, in respect of criminal convictions which all preceded that date, amounted to wrongfully modifying established situations. 15. On 15 February 1991 the Conseil d'Etat overturned the Administrative Court's judgment and dismissed Mr Nasri's applications for the quashing of the order or for a stay of execution. It took the view that the deportation of an alien was not a sanction, but an administrative measure exclusively designed to prevent disorder and to preserve public safety. Accordingly, the provisions of the Act of 9 September 1986 could be applied as soon as they entered into force to aliens satisfying the conditions laid down therein, whatever the date of the convictions on which the measure was based. 16. On 30 January 1992 the applicant complied with a summons requiring him to report to the Hauts-de-Seine Prefecture at Nanterre, where he was first taken into police custody and then placed in administrative detention by order of the Prefect, for a period of twenty-four hours, with a view to his deportation to Algeria. As it proved impossible to deport him within that period, the Nanterre tribunal de grande instance issued a compulsory residence order dated 31 January requiring Mr Nasri to live with his parents. 17. On 31 January 1992, relying on Articles 3, 6, and 8 (art. 3, art. 6, art. 8) of the Convention, Mr Nasri lodged an application with the Paris Administrative Court challenging, inter alia, the deportation order and the detention order. On 28 October 1992 his application was dismissed. According to the Administrative Court, the applicant's presence on French territory represented a serious threat to public safety in view of his numerous previous convictions, the gravity of the offences committed and his persistent re-offending. The impugned decision had not therefore constituted an infringement of his right to a family life that was "disproportionate to the aims pursued by the measure in question". 18. The deportation order has so far not been enforced, in compliance with the request for a stay of execution made by the President of the European Commission of Human Rights (see paragraph 29 below). On 4 February 1992 the Minister of the Interior issued a compulsory residence order requiring Mr Nasri to live with his parents "until such time as he is in a position to comply with the deportation order concerning him". That measure has since been renewed. 19. In connection with the criminal proceedings brought against the applicant, several expert reports were ordered with a view to studying his personality, his behaviour and his social environment. 20. A report of a psychiatric examination effected in October 1977 at the request of the investigating judge of the Nanterre tribunal de grande instance presented the following conclusions: "The accused is an adolescent aged 17; he is deaf and dumb and has not yet acquired the skills needed to cope with his handicap; he is not mentally retarded or mentally ill. He is, however, very easily influenced. He is not insane within the meaning of Article 64 of the Criminal Code, but his emotional immaturity and intermittent personality disorders, combined with the fact that he is deaf and dumb, mean that his criminal responsibility is diminished to a considerable extent. He is by no means an insane person. He is not dangerous in a psychiatric sense. He can be restored to his family. He is unlikely to respond to a criminal penalty ..." 21. A medico-psychological report drawn up on 26 November 1982 at the request of the investigating judge of the Paris tribunal de grande instance, stated as follows: "The subject's personal history is very sketchy, for the very reason that he mimes more than he uses sign anguage. None the less, we learn that he was born in Algeria some twenty-two years ago; he is unable to provide us with his precise date of birth. He indicates that he came from Algeria to France while still a very young child. Both parents are living. His father still works. His mother stays at home and is described as an invalid. ... As regards his schooling, [he] indicates that he attended a special school for the deaf and dumb, where he learnt the trade of house painter. He further indicates that he is unable to write and has to ask another deaf and dumb person to assist him in that task. He does not know his parents' address in Paris. ... His intellectual level is very low. He is incapable of accurately identifying significant dates in his life. He indicates that he can neither write nor read. The interpreter for the deaf and dumb tells us that he has a very poor knowledge of sign language and that he uses mime more than an appropriate language. ... He should receive socio-professional supervision and be helped to find employment genuinely compatible with his condition." 22. A report of a medico-psychological examination submitted on 21 November 1983 notes: "Mohamed Nasri appears to us to have only very limited means of communication and of understanding of the world. In his family and in society he has been in a situation apart where he has built up a closed universe for himself. As his communication with the outside world remains rudimentary, it is often expressed in aggressive terms, especially since he is only able to identify with individuals who embody a certain aggressiveness towards a social environment that has not provided him with the means of communication he could expect. He thus appears to have taken refuge in the North African community, the only one to confer any status on him, but one which places him in a situation where he manifests this status by means of criminal or aggressive acts. That is what makes any intervention or assistance difficult. Mohamed Nasri has the level of understanding and communication of a child. His perception of the world remains rudimentary; his expression and comprehension are poor. The therapy he has received has been unable to equip him with proper and adequate means of communication and he has had to revert, in a way that is regressive, to his milieu of origin, with which he has to identify in order to have a status and an identity. In his milieu of origin, where he is integrated under the nickname which establishes his difference, 'the mute', it is inevitable that [he] should adopt attitudes of criminality and aggression, which in view of his condition are the only means he has of maintaining his status and identity." 23. A psychiatric report of the same date concluded as follows: "We know very little of a personal history that has been marked by deaf-mutism and attempts at therapy which have achieved very moderate results ... [He] spent his childhood and his entire adolescence in France and has never returned to Algeria, although he has kept his Algerian nationality ... He lives with his parents, goes out, hangs around, uses the pocket money that his mother gives him; they now live in publicly subsidised housing at Nanterre. He was sent to prison a year or two ago for picking pockets; while in prison he presented signs of acute anxiety that made it necessary for him to be transferred to a psychiatric ward, where he spent three months. ... [His] intelligence, which was no doubt normal at the outset, is now to be assessed in terms of intellectual efficiency, namely he uses a limited number of signs and his technique is rudimentary; his comprehension is inadequate. He therefore has very little understanding of abstract concepts of time, place, etc. ... His scholastic accomplishments are limited: he cannot read, or only titles, street names; he writes his name but nothing else; and he has not mastered the mechanism of addition involving the carrying-over of numbers. Our interpreter sees him as a young deaf and dumb boy aged 7 or 8 who has never had the benefit of specialist attention ..." 24. According to the findings of a psychiatric report of 31 July 1984: "He is deaf and dumb and has received practically no therapy. It is well known that such deficiencies, over and above the mere physical defect, affect in a much more general way the whole process of conceptualisation and in particular the acquisition of moral values; it may therefore be concluded that he does not obey the same scales of values as a person who is normally integrated in society and who hears normally; these psychological factors should be taken into account when assessing the offence that he has committed. ... An examination of Mr Mohamed Nasri does not disclose any major mental, psychological or behavioral anomalies amounting to insanity; he is nevertheless a person who has been uprooted, who is badly integrated, desocialised and handicapped by his deaf-mutism with the implications that that has for his process of conceptualisation and his understanding of moral rules. He was not insane within the meaning of Article 64 of the Criminal Code at the material time. From a strictly psychiatric point of view, the anomalies found are not such as to diminish his responsibility. He is susceptible to the imposition of a criminal sanction. He does not need special treatment, but would benefit from specialised supervision for his deaf-mutism, which might improve the prognosis for his rehabilitation. Placing him in a psychiatric hospital does not appear desirable either in his interests or in those of the community." 25. According to a medico-psychological report submitted on 18 June 1985: "The examination reveals nothing to justify the conclusion that [Mr Nasri] is not in a position to understand normally social rules and prohibitions, or that his capacity for self-control has been diminished by a clear pathological process. It is, on the other hand, evident that the frustration that he feels, the difficulty of communicating, the impossibility of expressing his wishes by word combine to create the psychological conditions in which there is very low resistance to acting out his desires." 26. A police report of 13 April 1992 concerning the applicant states as follows: "His handicap, deaf-mutism, is real and does not prevent him from wandering the streets of Villeneuve-la-Garenne and other villages at all hours of the day and night and rom assiduously frequenting the bars where he drinks alcohol, which makes him aggressive or even violent. ... He inspires terror in many inhabitants of Villeneuve and also in his accomplices. He has been involved in numerous incidents of theft or violence. This violent and antisocial individual makes no effort whatsoever to be integrated in our society and takes advantage of his handicap and of the favourable provisions of the administrative and justice systems. He is a real danger to public order, especially since he appears to be the leader of the young delinquents of Villeneuve owing to the fear he inspires." 27. Deportation of aliens is governed by the Order of 2 November 1945 concerning the conditions of entry and residence of aliens in France. Section 23, as amended on 29 October 1981, provides: "Deportation may be ordered by an order of the Minister of the Interior if the alien's presence on French territory constitutes a serious threat to public order." An Act of 9 September 1986 had deleted the word "serious" from the above provision, but on 2 August 1990 the wording adopted in 1981 was reinstated.