CASE OF BAGHLI v. FRANCE
Preliminary objection rejected (six month period);No violation of Art. 8
Nicolas Bratza
8. The applicant, an Algerian national, was born in 1964 in Algeria and lives at Tlemcen (Algeria). 9. He entered France in 1967 at the age of two. He has lived there ever since, as have all the members of his family. He has seven brothers and sisters, all French nationals. He did the whole of his schooling in France where he obtained a professional diploma (certificat d’aptitude professionnelle) as a fitter in 1982. Between 1982 and 1992 he did various jobs and attended a number of professional training courses. In 1987 he met a French national, Miss L., with whom he had a steady relationship. 10. Between January 1984 and December 1985 the applicant performed his military service in Algeria. 11. In July 1990 gendarmes from the Belley investigation squad were informed of the plight of an 11-year-old girl whose father had just died of Aids and whose mother, Mrs C., was also suffering from the same disease, taking drugs and keeping company with several addicts. After an investigation had been opened on a complaint against a person or persons unknown for drug-related offences, the gendarmerie discovered in the course of their inquiries in the autumn of 1990 a drug-trafficking syndicate in which more than twenty people were implicated to differing degrees. The applicant was arrested and charged in the course of that investigation. He was accused by a number of co-defendants of being a dealer in drugs. It was established in the inquiry that he had been cohabiting with Mrs C. since July. He had been supplying her with hashish and heroin and together they had engaged in illegal trade in heroin. 12. On 10 September 1991 the Belley Criminal Court convicted the applicant of drug trafficking, sentenced him to fifteen months’ imprisonment, twelve of which were suspended, and made an order excluding him from French territory for a period of ten years. 13. The applicant appealed. On 23 January 1992 the Lyons Court of Appeal increased the term of imprisonment to three years, two suspended, and upheld the exclusion order. 14. In its judgment, the Court the Appeal stated, inter alia: “Mohamed Baghli, who became R.C.’s companion in the summer of 1990, acknowledges that he has taken hashish for many years and began taking heroin in June 1990. He admits that between the end of June and the end of July he made two trips a week to Lyons to obtain drugs from one A., ... who supplied him with the drugs, in particular, one gram or half a gram doses of heroin for 1,600 French Francs (FRF) or FRF 800. He shared the drugs with his companion ... but also sold a part ... Ultimately the heroin-trafficking offence of which Baghli stands accused, which the investigating judge’s investigations fully establish, concerned about ten grams of heroin, some being for his own and his companion’s use and some being sold on to finance further purchases after being adulterated in a way that made it particularly hazardous for the buyers’ health ...” 15. The applicant lodged an appeal on points of law, which was dismissed by the Court of Cassation on 6 September 1993. 16. Mrs C. died in October 1992. 17. In December 1992 the applicant began a relationship with Miss I., a French national, whom he had known for several years. 18. After serving his sentence, the applicant was deported to Algeria on 14 May 1994, where he would appear still to be at the date of this judgment. 19. On 11 January 1994, while still in Villefranche-sur-Saône Prison, the applicant applied to the Lyons Court of Appeal for rescission of the exclusion order. He relied on Article 8 of the Convention. 20. In a judgment delivered on 30 June 1994, the Court of Appeal dismissed his application. The applicant lodged an appeal on points of law through his counsel against that decision relying, inter alia, on Article 8 of the Convention. 21. On 19 December 1995 the Court of Cassation dismissed the appeal, holding: “... after noting that Mohamed Baghli had been convicted for his part in a heroin-trafficking syndicate, the Court of Appeal said that while it was true that his family lived in France and most of its members were French nationals, he had not lost all contact with Algeria, having often spent his holidays there and done military service there in 1984 and 1985. The mere fact that he was planning to set up home with a French woman was not decisive as, at the material time, he was living with another woman whom he had involved in his drug trafficking. The Court of Appeal concluded from that that the exclusion order had not disproportionately interfered with the right to family life guaranteed by Article 8 of the Convention ... It added that although Article 14 of that Convention prohibited any discrimination on grounds of national origin, paragraph 3 of Article 2 of Protocol No. 4, an additional protocol, allowed aliens to be denied access to the territory if the measure was necessary in the interests of national security or public safety, for the maintenance of ordre public, and for the prevention of crime; that paragraph applied in the instant case, which concerned trafficking in narcotics, particularly heroin ...” 22. That judgment was not served on the applicant. His representative says that he (the representative) received a copy of the judgment in September 1996. 23. Article L. 630-1, sub-paragraph 1, of the Public Health Code, as worded at the material time, provided: “Without prejudice to the application of Articles 23 et seq. of Ordinance no. 452658 of 2 November 1945, the courts may make an order excluding an alien convicted of an offence under Articles L. 626, L. 627-2, L. 628, L. 628-4 or L. 630 from French territory for between two and five years. They may make an order permanently excluding an alien convicted of an offence under Article L. 627. An exclusion order shall automatically entail deportation of the convicted person at the end of his sentence ...” 24. Former Article L. 627 of the Public Health Code provided: “Anyone who shall have contravened the provisions of the public-administration regulations laid down in the preceding Article concerning toxic plants or substances classified under the regulations as narcotics shall be liable on conviction to between two and ten years’ imprisonment and a fine of between FRF 5,000 and FRF 50,000,000, or one only of those penalties. The sentence for offences of importing, producing, manufacturing or unlawfully exporting the said substances or plants shall be between ten and twenty years’ imprisonment ... Penalties for attempts to commit any of the offences referred to in the preceding paragraph shall be the same as for the substantive offence. A like rule shall apply to criminal association or conspiracy to commit such offences ... The following persons also shall be liable to imprisonment of between two and ten years and a fine of between FRF 5,000 and FRF 50,000,000, or to one only of those penalties: (1) Anyone who shall have facilitated the use by another of the said substances or plants by procuring premises or by any other means, and whether or not for consideration ... Where the person whose use of the said substances has been facilitated is a minor under 21 ... the term of imprisonment shall be between five and ten years ...” 25. Article 55-1 of the Criminal Code provides: “... anyone who shall have 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 to vary its duration.” 26. Mr Baghli applied to the Commission on 26 December 1996. He alleged that the exclusion order imposed on him violated his right to respect for his private and family life guaranteed by Article 8 of the Convention. 27. On 4 March 1998 the Commission declared the application (no. 34374/97) admissible. In its report of 9 September 1998 (former Article 31 of the Convention), it expressed the opinion (by eleven votes to three) that there had been a violation of Article 8.