CASE OF BOUCHELKIA v. FRANCE
No violation of Art. 8
R. Pekkanen
7. Mr Hadi Bouchelkia was born on 25 February 1970 at Bechloul (Algeria) and came to France in 1972 with his mother and his elder brother under the arrangements for family reunion. His mother and nine brothers and sisters live in France. In 1986 he met a woman of French nationality whom he married on 29 March 1996. They had a daughter born on 22 February 1993, in respect of whom he made a formal declaration of paternity on 3 December 1993. 8. When a minor, the applicant was charged with rape with violence and theft in respect of offences committed on 18 March 1987. He was taken into custody at Colmar Prison on 23 March 1987 but escaped with a fellow prisoner on 14 April 1987, for which he was sentenced to four months' imprisonment. 9. On 31 May 1988 the Haut-Rhin Juvenile Assize Court found him guilty of the offences of which he was accused. Finding that there were mitigating circumstances, it sentenced him to five years' imprisonment. Mr Bouchelkia was released on 2 May 1990 after obtaining remission of sentence. 10. On 11 June 1990 the Minister of the Interior, to whom the matter had been referred by the Prefecture of Meurthe-et-Moselle on 27 April 1990, made the following order against the applicant: "Having regard to section 26 of Ordinance no. 45-2658 of 2 November 1945, as amended, concerning the conditions of entry and residence of aliens in France, Whereas Bouchelkia Hadi or El Hadi born on 25 February 1970 at Bechloul (Algeria) committed a rape on 18 March 1987 while threatening his victim with a weapon, Whereas on account of his conduct his deportation is an absolute necessity for public safety, Whereas he has just been released, Whereas he should, in consequence, be removed from French territory as a matter of extreme urgency, On a proposal by the Prefect of Meurthe-et-Moselle, IT IS HEREBY ORDERED AS FOLLOWS Article 1: the above-named person is enjoined to leave France, Article 2: the Prefect of Police and the Prefects are instructed to serve and execute this order." That order was served on 9 July 1990 and executed on the same day and the applicant, who was then aged twenty, single and had no children, was deported to Algeria. 11. On 17 July 1990 counsel for Mr Bouchelkia applied to the Strasbourg Administrative Court for an order quashing the deportation measure and, on 31 July 1990, for an order staying its execution. It was argued in the applications that it had not been established in Mr Bouchelkia's case that it was a matter of extreme urgency or absolute necessity to deport him for reasons of public safety since the order had been made two months after his release from prison and the offences could not be regarded as being of particular gravity for the purposes of the statutory provision. He also relied on Article 8 of the Convention (art. 8). 12. On 16 October 1990 the Court dismissed the application for a stay of execution in the following terms: "... None of the grounds relied on by Mr Bouchelkia in support of the application for judicial review of the deportation order made by the Minister of the Interior on 11 June 1990 appears, on the basis of the case file before the court, to justify quashing that order; it follows that the applicant's application for a stay of execution of that order is unfounded; ..." 13. On 31 May 1991, the Conseil d'Etat upheld, in the same terms, the decision dismissing the application. 14. In its judgment of 21 October 1990 dismissing the application, the court gave the following grounds for its decision: "The submission based on error of law: Criminal offences committed by an alien cannot, by themselves, justify in law deportation and do not under any circumstances exempt the authority concerned from its obligation to whether the alien's presence in France is liable to constitute a serious threat to public order. The documents on the case file do not reveal any failure by the Minister of the Interior to have regard to all the factors relating to the applicant's conduct and the various aspects of his situation in determining whether or not his presence in France constituted a serious threat to public order. It follows that this first submission, based on an error of law, must be rejected. The submission based on Article 8 of the Convention (art. 8) ...: Under Article 8 (art. 8) of the European Convention referred to above: 'Everyone has the right to respect for his private and family life, his home and his correspondence'. The applicant relies on Article 8 of the Convention (art. 8) in order to argue that the impugned decision does not comply with the aforementioned provisions; the general principles governing the right to a normal family life do not preclude the Minister of the Interior from exercising the power conferred on him by section 26 of the Ordinance of 2 November 1945, as amended. It follows that there is no alternative but to reject this ground. The submission based on manifest error: Section 26 of the Ordinance of 2 November 1945, as amended, provides: 'In cases of extreme urgency and by way of derogation from sections 23 to 25, deportation may be ordered where it constitutes an absolute necessity for the security of the State or public safety.' The documents on the case file show that Mr El Hadi Bouchelkia was sentenced to five years' imprisonment for rape committed while threatening his victim with a weapon; the fact that the order was made two months after the applicant's release from prison does not, in itself, mean that the question of his deportation is not urgent, regard being had to the gravity of the offences. Thus, the Minister of the Interior could have considered, without committing a manifest error, that Mr Bouchelkia's deportation constituted an absolute necessity for public safety and that it was a matter of extreme urgency. It follows that the ground based on manifest error must be rejected. In the light of the foregoing, the application made by Mr Bouchelkia must be rejected." 15. On 23 June 1993 the Conseil d'Etat upheld the judgment in the following terms: "... The documents on the case file show that Mr Bouchelkia committed a rape while threatening his victim with a weapon; for that offence he was sentenced to five years' imprisonment. It follows that the Minister was entitled in law to consider that Mr Bouchelkia's deportation constituted an absolute necessity for public safety. As he had recently been released, it was also a matter of extreme urgency at the date of the impugned order. Regard being had to the seriousness of the offence committed by the applicant, that measure did not amount to an excessive interference in his family life. In these circumstances, the measure was not taken in violation of the aforementioned Article 8 (art. 8). It does not appear from the documents on the case file that the Minister, in making the impugned order for Mr Bouchelkia's deportation (which states the reasons of fact and law relied on), failed to carry out a full review of the circumstances of the case. It follows from all the above that Mr Bouchelkia fails in his claim that in the impugned judgment the Strasbourg Administrative Court had wrongly dismissed his application to have the Minister of the Interior's order of 11 June 1990 requiring him to leave France set aside. ..." 16. The applicant made two applications to the Minister of the Interior to have the deportation order of 11 June 1990 rescinded. 17. On 12 December 1991 the Minister of the Interior dismissed the first application, made on 21 October 1991, in these terms: "... I note that in its judgment of 31 May 1991 the Conseil d'Etat dismissed the application to quash the Strasbourg Administrative Court's judgment dated 16 October 1990 in which [the] application for a stay of execution of the ministerial deportation order made against [Mr Bouchelkia] was dismissed. In addition, taking into account the seriousness of the offences committed by the applicant and his conduct whilst in custody, it is impossible for me to grant [his] request. The deportation order of 11 June 1990 must stand. ..." 18. The second application made on 3 November 1995 is currently pending before a board set up in accordance with section 24, as amended, of the Ordinance of 2 November 1945 (see paragraph 22 below). 19. Mr Bouchelkia, who returned to France illegally in 1992, was arrested at Colmar on 6 April 1993 on charges of insulting a police officer, obstructing a police officer in the execution of his duty and illegally entering and staying in France. On 13 April 1993 the Colmar Criminal Court sentenced him to five months' imprisonment and ordered that he be banned from re-entering France for three years. It ordered that he remain in custody. 20. On appeals by the applicant and the prosecution, the Colmar Court of Appeal allowed the applicant's appeal against sentence. In its judgment delivered on 11 August 1993, it gave the following reasons: "With respect to the sentence The custodial sentence imposed by the court below is a penalty that is proportionate to the seriousness of the offences when the mitigating circumstances are taken into account, adapted to his character and in accordance with the requirements of protecting public order. On the other hand, regard being had to the circumstances in which the offences were committed and to the accused's character, the additional order forbidding him to reenter France is an excessively severe penalty. While this court cannot and does not wish to call into question the appropriateness of the deportation order of 11 June 1990, the accused's application for judicial review of which was dismissed by a judgment of the Conseil d'Etat on 23 June 1993, it observes that the accused arrived in France at the age of 2 and lives here with his mother and nine brothers and sisters, that he attended vocational training courses while imprisoned in connection with the criminal case which ended with the judgment of the Haut-Rhin Juvenile Assize Court, that he spent two years in Algeria where he has no ties or points of reference and that his companion has given birth to a child. As the accused has made an application to have the deportation order rescinded, it would be inappropriate to take the option open to the court of forbidding him to reenter France." 21. Mr Bouchelkia was arrested on 14 December 1996 and detained with a view to his removal to Algeria under the deportation order of 11 June 1990. He refused to leave and a compulsory residence order was issued against him. On 20 December 1996 the Strasbourg Criminal Court convicted him of the offence of refusing to comply with a deportation order, but deferred sentence pending the European Court's judgment. 22. In French law deportation is a public-order measure, not a criminal penalty (Constitutional Court decision no. 79-109, Droit constitutionnel 9 January 1980, Recueil Dalloz Sirey 1980, 249; Conseil d'Etat, 20 January 1988, Elfenzi, Actualité juridique Droit administratif 1989, 223; and Criminal Division of the Court of Cassation, 1 February 1995, JurisClasseur périodique 1995, édition générale, II, 22463). It applies to aliens with a residence permit who live in France, but not to those who have entered illegally and against whom only a removal order may be made. The deportation of aliens is governed by the provisions of the Ordinance of 2 November 1945 concerning the conditions of entry and residence of aliens in France. Section 1 of the Ordinance provides: "all persons who do not have French nationality, whether they have a foreign nationality or are stateless, shall be deemed to be aliens." The basic provisions of the Ordinance have been amended by, inter alia, Law no. 80-9 of 10 January 1980; Law no. 81-82 of 2 February 1981; Law no. 81-973 of 29 October 1981; Law no. 86-1025 of 9 September 1986; Law no. 89-548 of 2 August 1989; Law no. 91-1383 of 31 December 1991; Law no. 93-1027 of 24 August 1993 and Law no. 93-1417 of 30 December 1993. The Law of 10 January 1980 prescribed six grounds for deportation and substantially altered its role; deportation had been intended to guard against threats to public order, but it was now also used as punishment in certain cases where there had been a breach of the immigration rules. That Law was rapidly replaced by Law no. 81-973 of 29 October 1981, in which the following two grounds for deportation were retained: (i) the first, to which the ordinary rules of procedure applied, was where "an alien's presence on French territory constitute[d] a serious threat to public order" (sections 23 to 25); (ii) the second, for which there was a special procedure, concerned "cases of extreme urgency [and] absolute necessity for the security of the State or public safety" (section 26). That Law also prescribed the categories of aliens who could not be deported under the ordinary procedure and who were protected because of their age, the length of time they had spent in France, their family ties there, the services they had rendered and the fact that they had no criminal record. The provisions relating to the definition of the protected categories, the substantive conditions and the safeguards provided under the ordinary procedure were alternately amended and restored by subsequent legislation. In 1990 it was a prerequisite to instituting the ordinary procedure governed by sections 23 to 25 of the Ordinance of 2 November 1945 that "the alien's presence on French territory constitute[d] a serious threat to public order". Recourse to the special procedure used in the instant case required extreme urgency and an "absolute necessity for the security of the State or public safety". 23. This procedure may properly be described as adversarial and applies where "the alien proves that he entered France legally and that he is the lawful holder of a residence permit" (section 24). An aliens deportation board for the département must be consulted. Such boards are composed of the president of the tribunal de grande instance of the administrative capital of the département or a judge delegated by him, who acts as chairman, a judicial officer (magistrat) appointed by the general assembly of the tribunal de grande instance of the administrative capital of the département and an administrative court judge. Its hearings are held in public. In 1990 the Minister of the Interior had less discretion. Since Law no. 93-1027 of 24 August 1993, the board's opinion is no longer binding on the Minister. 24. Deportation orders made to preserve public order are intended to guard against - and not to punish - breaches of public order. With the sole exception of minors, no category of aliens is protected. Under the special procedure none of the safeguards contained in the ordinary procedure are available. Thus, aliens are not informed in advance that their deportation is being considered, do not receive any special notification, are not given an opportunity to make representations and do not appear before the board; the board does not hold a meeting, not even in the alien's absence. No formal steps have to be taken before the deportation order is issued and the order does not have to contain reasons. 25. The condition relating to absolute necessity for the security of the State or public safety was introduced by the Law of 29 October 1981. It was replaced in the Law of 6 September 1986 by a requirement of "a particularly serious threat to public safety", but was reintroduced in the Law of 2 August 1989. According to the Minister of National Solidarity, who was jointly responsible for drafting the bill which became the 1981 Law, this type of deportation was only to apply to three categories of aliens: terrorists, spies and drug traffickers. Neither the Minister of the Interior nor the Conseil d'Etat have adopted that position; they have interpreted the condition much more widely. In practice section 26 also covers cases concerning violent and anti-social behaviour by an alien over a long period since the age of ten (Conseil d'Etat, 23 December 1987, Tahraoui, Recueil des arrêts du Conseil d'Etat ("Rec.") p. 430) and rape and indecent assault with violence or taking the victim by surprise (Conseil d'Etat, 24 May 1993, Igartúa Amondaraín, Rec. p. 163, and Conseil d'Etat, 23 June 1993, Bouchelkia, Droit administratif 1993, no. 412). 26. To the extreme urgency requirement, laid down as from 1945, a requirement of "absolute necessity for the security of the State and public safety" was added in 1981. Extreme urgency is in practice relied on to ensure that aliens who have been convicted by the criminal courts and are serving their sentence can be deported as soon as they are released. Its substance is assessed on a case-by-case basis by the Minister, subject to review by the administrative court. For a long time the Conseil d'Etat ruled that the question whether there was any urgency itself came within the unfettered discretion of the Minister. From 1970 it interpreted the requirement so as to limit its application solely to cases where the deportation was to take place within a very short time (Conseil d'Etat, 16 January 1970, Mihoubi Tayeb, Rec. p. 25). It later found that the urgency requirement had been satisfied where the alien was due to be released shortly (Conseil d'Etat, 13 November 1985, Ministry of the Interior v. Barrutiabengoa Zabarte, Rec. p. 321), then held that it was lawful to use the procedure against an alien who had been released from prison several months before the deportation order was made (Conseil d'Etat, 24 June 1988, Hamade, Rec., tables, p. 933, and 8 April 1994, Zehar, Dalloz 1994), or who had obtained early release seven months before the issue of a deportation order (Conseil d'Etat, 3 February 1995, Kaouche, requête no. 145404, Droit administratif, May 1995, p. 10). It also accepted that the Minister could use the extreme urgency procedure where, in connection with a deportation initially commenced under the ordinary procedure, the board had expressed an opinion against deportation. The Conseil d'Etat held that practice to be lawful "provided that the requirements of section 26 were satisfied at the time the order was made" (Conseil d'Etat, 24 May 1993, Igartúa Amondaraín, Rec. p. 163). 27. A deportation order issued by the Minister of the Interior remains in force indefinitely. Since 1986 such orders embody authority to execute and may be enforced without further order, using force if necessary. 28. In general, deportation is carried out without delay; however, the effects of the deportation order are not exhausted as a result of its execution. Thus, deported aliens are precluded from returning to French territory for so long as the order has not been rescinded. If they do return, they are liable to the penalties applicable to cases of avoiding or attempting to avoid the execution of a deportation order and returning to France without leave to enter. Furthermore, according to a circular issued by the Minister of the Interior on 8 February 1994 concerning the application of the Laws of 24 August and 30 December 1993, although the celebration of the marriage of an alien on French territory is not subject to any condition regarding the lawfulness of his stay, a prefect who is informed that the alien wishing to get married is in breach of the immigration rules may, before the wedding, make an order for his removal under section 22 of the Ordinance of 1945 and, after the ceremony, decide to expel him pursuant to that provision. The Conseil d'Etat has held that an order for removal could lawfully be made against an alien who was about to marry a French national (Conseil d'Etat, Judicial Division, 26 July 1991, Lazaar, requête no. 121849). 29. As deportation orders are not subject to any special regime, an application for judicial review may be made to the administrative court having territorial jurisdiction under the ordinary rules. Such applications have no suspensive effect and may therefore be accompanied by an application for a stay of execution even where the order has been enforced and the alien is outside France. On 31 July 1996 (requête no. 149765), the Conseil d'Etat set aside a deportation order made against an Algerian who was born in France and had always lived there, on the grounds that: "... his close relatives live in France and some of them have French nationality. When the deportation order was made against him, he was the father of a child of French nationality and was married to a French national. In the circumstances of the case, although it has been shown that he has committed offences for which he has been sentenced to several terms of imprisonment (the most recent being a twelve-year sentence for armed robbery, burglary committed at night or with accomplices and theft) the impugned decision has nonetheless, regard being had to the applicant's conduct subsequent to his convictions for those offences and to the fact that he has no ties with any country other than France, interfered with the applicant's rights to respect for his private and family life in a way that was disproportionate to the aims with which it was taken." 30. The alien concerned may, at any time, and as often as he chooses, apply for the deportation order to be rescinded. Where the application is submitted less than five years "after the final execution of the deportation order", the Minister of the Interior is not subject to any specific procedural requirements in reaching his decision. If the application is submitted "after a period of five years ..., it may be rejected only after the opinion of the deportation board for the département has been sought; the alien may be represented before the board". Consultation is required even where the deportation order was made under the procedure for cases of extreme urgency. Since the Law of 24 August 1993 came into force, the board's opinion is no longer binding on the Minister. The Conseil d'Etat had considered that a deportation order was executed on the date the alien left French territory and that, in consequence, even if he subsequently returned to France illegally, the five-year period ran from that date (Conseil d'Etat, 18 November 1988, Higoun, Rec. p. 415). However, section 28 bis, added to the Ordinance of 1945 by the Law of 24 August 1993, now prevents a deportation order being rescinded if the alien has not left France or if he has returned there illegally: "An application ... for the rescission of a deportation order ... submitted after the expiry of the time-limit for making an application for judicial review cannot be granted unless the foreign national resides outside France." An application to which there has been no response within four months is deemed to have been rejected by the Minister of the Interior. Where the Minister of the Interior decides not to enforce a deportation order whilst at the same time refusing to rescind it, a compulsory residence order is made against the alien. If the alien continues to disturb public order, he may be deported. That constitutes a new decision, separable from the deportation order and in respect of which an application for judicial review may be made to the administrative court. In considering the application, the court examines the conduct of the alien during the period when his presence in France was tolerated. In reviewing the lawfulness of the measure the court therefore examines the position at the date of its judgment. However, a ground of appeal on the basis that the alien had mended his ways after the date of the order is ineffective (Conseil d'Etat, 27 November 1985, Hamza, Rec. p. 712). The fact that a deportation order has been rescinded does not constitute leave to enter. If leave is sought, it may lawfully be refused. 31. Article 21-27 of the Civil Code, which is relevant in this case, provides: "Subject to the provisions of Articles 21-7, 21-8 [concerning aliens born in France of foreign parents] and 22-1 [concerning the minor children of parents who have acquired French nationality], no one may acquire French nationality or be restored to that nationality if either (i) he has been convicted of a serious crime [crime] or other major offence [délit] harmful to the fundamental interests of the nation or of an act of terrorism or (ii) whatever the nature of the offence, if he has been sentenced to a term of imprisonment, not suspended, of at least six months. (Law no. 93-1417 of 30 December 1993) The same shall apply to a person who is the subject of a deportation order which has not been expressly set aside or rescinded or to a ban on re-entering French territory that has not expired. (Law no. 93-1027 of 24 August 1993) The same shall apply to persons whose stay in France is unlawful under the laws and treaties relating to the residence of aliens in France."