NASRI v. FRANCE - 19465/92 [1995] ECHR 24 (13 July 1995)

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Cite as: 21 EHRR 458, (1996) 21 EHRR 458, [1995] ECHR 24, [1996] 21 EHRR 458

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JISCBAILII_CASE_IMMIGRATION

In the case of Nasri v. France (1),

The European Court of Human Rights, sitting, in

accordance with Article 43 (art. 43) of the Convention for the

Protection of Human Rights and Fundamental Freedoms ("the

Convention") and the relevant provisions of Rules of Court A (2),

as a Chamber composed of the following judges:

Mr R. Ryssdal, President,

Mr R. Bernhardt,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr J. De Meyer,

Mr J.M. Morenilla,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

Mr D. Gotchev,

and also of Mr H. Petzold, Registrar,

Having deliberated in private on 25 February and

21 June 1995,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 18/1994/465/546. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of the corresponding originating

applications to the Commission.

2. Rules A apply to all cases referred to the Court before the

entry into force of Protocol No. 9 (P9) and thereafter only to

cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983,

as amended several times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") and by the French

Government ("the Government") on 20 May and 7 July 1994

respectively, within the three-month period laid down by

Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the

Convention. It originated in an application (no. 19465/92)

against the French Republic lodged with the Commission under

Article 25 (art. 25) by an Algerian national, Mr Mohamed Nasri,

on 30 January 1992. Before the Commission the applicant was

designated by the initial N.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby France

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46); the Government's application referred to Article 48

(art. 48). The object of the request and of the application was

to obtain a decision as to whether the facts of the case

disclosed a breach by the respondent State of its obligations

under Articles 3 and 8 (art. 3, art. 8) of the Convention.

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicant indicated

that he wished to take part in the proceedings and designated the

lawyer who would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Mr L.-E. Pettiti, the elected judge of French nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On 28 May 1994,

in the presence of the Registrar, the President drew by lot the

names of the other seven members, namely Mr R. Bernhardt,

Mr F. Matscher, Mr J. De Meyer, Mr J.M. Morenilla,

Mr M.A. Lopes Rocha, Mr L. Wildhaber and Mr D. Gotchev

(Article 43 in fine of the Convention and Rule 21 para. 4)

(art. 43).

4. As President of the Chamber (Rule 21 para. 5),

Mr Ryssdal, acting through the Registrar, consulted the Agent of

the Government, the applicant's lawyer and the Delegate of the

Commission on the organisation of the proceedings (Rules 37

para. 1 and 38). Pursuant to the order made in consequence, the

Registrar received the Government's and the applicant's memorials

on 14 November and 5 December 1994 respectively. On

10 February 1995 the Commission produced various documents, as

requested by the Registrar on the President's instructions.

5. In accordance with the President's decision, the hearing

took place in public in the Human Rights Building, Strasbourg,

on 21 February 1995. The Court had held a preparatory meeting

beforehand.

There appeared before the Court:

(a) for the Government

Mr M. Perrin de Brichambaut, Director of

Legal Affairs, Ministry of Foreign Affairs, Agent,

Mrs M. Merlin-Desmartis, administrative court judge

on secondment to the Legal Affairs Department,

Ministry of Foreign Affairs,

Mrs M. Pauti, Head of the Comparative

and International Law Office,

Department of Civil Liberties and Legal Affairs,

Ministry of the Interior, Advisers;

(b) for the Commission

Mr J.-C. Geus, Delegate;

(c) for the applicant

Mr B. Desclozeaux, avocat, Counsel,

The Court heard addresses by Mr Perrin de Brichambaut,

Mr Geus and Mr Desclozeaux and also their replies to its

questions and to the questions of one of its members.

AS TO THE FACTS

I. Particular circumstances of the case

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).

A. The applicant's schooling

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.

B. The applicant's criminal convictions

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.

C. The applicant's deportation

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.

D. The reports concerning the applicant

1. The medical reports

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.

(a) The reports predating the prosecution for rape

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

language. 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."

(b) The reports drawn up in connection with the

rape prosecution

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."

2. The police report

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

from 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."

II. Relevant domestic law

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.

PROCEEDINGS BEFORE THE COMMISSION

28. Mr Nasri applied to the Commission on 30 January 1992

(application no. 19465/92). He complained that his deportation

to Algeria would entail a violation of Articles 3 and 8 (art. 3,

art. 8) of the Convention; he also alleged a breach of

Article 6 (art. 6).

29. The same day the President of the Commission indicated to

the French Government, pursuant to Rule 36 of the Commission's

Rules of Procedure, that it would be desirable in the interests

of the parties and the proper conduct of the proceedings for the

French authorities to refrain from deporting the applicant until

21 February 1992, the end of the next Commission session. The

Commission extended the application of Rule 36 several times.

30. On 11 May 1993 the Commission declared the application

admissible as regards the complaints concerning Articles 3

and 8 (art. 3, art. 8) of the Convention and inadmissible for the

rest.

In its report of 10 March 1994 (Article 31) (art. 31), it

expressed the opinion that the applicant's deportation to Algeria

would constitute a violation of Articles 3 (art. 3) (nineteen

votes to three) and 8 (art. 8) (twenty votes to two). The full

text of the Commission's opinion and of the two separate opinions

contained in the report is reproduced as an annex to this

judgment (1).

_______________

1. Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment

(volume 320-B of Series A of the Publications of the Court), but

a copy of the Commission's report is obtainable from the

registry.

_______________

FINAL SUBMISSIONS TO THE COURT

31. In their memorial the Government invited "the Court to

dismiss Mr Nasri's application".

32. The applicant asked the Court to hold that the execution

of the order for his deportation to Algeria would constitute a

violation of Articles 3 and 8 (art. 3, art. 8) and "to request

the French authorities purely and simply to annul [that] order

...".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION

33. Mr Nasri maintained that his deportation by the French

authorities would infringe his right to respect for his family

life and would breach Article 8 (art. 8) of the Convention, which

is worded as follows:

"1. Everyone has the right to respect for his private

and family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public

safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

The Commission accepted this contention; the Government

did not.

A. Paragraph 1 of Article 8 (art. 8-1)

34. Like the Commission and the Government, the Court takes

the view that the execution of the impugned measure would amount

to an interference with the exercise by the applicant of his

right to respect for his family life.

B. Paragraph 2 of Article 8 (art. 8-2)

35. It accordingly falls to determine whether the deportation

in question would satisfy the conditions laid down in

paragraph 2, namely whether it would be "in accordance with the

law", whether it would pursue one or more of the legitimate aims

listed in that provision and whether it would be "necessary in

a democratic society" to attain the said aim or aims.

1. "In accordance with the law"

36. Like the participants in the proceedings before it, the

Court notes that the ministerial order of 21 August 1987 is based

on sections 23 and 24 of the Order of 2 November 1945, as

amended, concerning the conditions of entry and residence of

aliens in France (see paragraph 27 above). Mr Nasri did not

contest this and indeed the Conseil d'Etat found in its decision

of 15 February 1991 that the deportation order was lawful (see

paragraph 15 above).

2. Legitimate aim

37. The Government and the Commission considered that the

interference in question would pursue aims fully compatible with

the Convention: the "prevention of disorder" and the "prevention

of crime"; this was not disputed by the applicant.

The Court arrives at the same conclusion.

3. "Necessary in a democratic society"

38. Mr Nasri maintained that his deportation could not be

regarded as necessary in a democratic society. In view of the

fact that he was deaf and dumb, illiterate and with no command

of deaf and dumb sign language, he would have enormous

difficulties in communicating if he were removed from his family

circle, the only persons capable of understanding the signs he

used to express himself. His parents and his brothers and

sisters had not left France since 1965; six of his brothers and

sisters had acquired French nationality. He himself had never

severed links with his family; indeed, apart from certain periods

spent with his sister and his brother-in-law, he had always lived

at his parents' home. It was, moreover, there that he was

required to live under the compulsory residence order to which

he was currently subject.

In addition, the applicant had no knowledge of Arabic.

The little schooling he had been given had been received solely

in France and his contacts with the North African community were

confined to the second generation, the very large majority of

whom did not speak Arabic.

Most of the offences of which he had been convicted, such

as the thefts, had been petty offences. It was true that he had

also been convicted of rape, which conviction moreover lay at the

origin of his deportation. Nevertheless the Assize Court had

sentenced him to a term of imprisonment not exceeding five years

(emprisonnement) - rather than a term exceeding five years

(réclusion) -, part of which was suspended, and probation (see

paragraph 12 above). Since that offence, which was committed

in 1983, there had been no further instances of rape.

39. The Delegate of the Commission essentially subscribed to

the applicant's view. He drew attention to the need to take into

consideration the causes of Mr Nasri's behaviour. He had never

been given the psychiatric supervision that his condition

necessitated, despite the numerous recommendations made by the

experts consulted by the courts. It was therefore important to

qualify considerably the authorities' negative assessment of him.

40. The Government laid stress on the applicant's long

criminal record, which included some thirty arrests and ten or

so convictions over the period from 1981 to 1993. Between

1 January 1981 and 6 July 1993, he had spent one hundred and

three months in prison and each time he had been released he had

used his short periods of liberty to commit new offences; he had

been sentenced for the most recent such offence - theft with

violence - on 31 March 1993.

Nevertheless, the decision to deport the applicant had

been principally based on his conviction for rape. Because of

this crime, Mr Nasri's case was much more serious than that of

Mr Moustaquim or of Mr Beldjoudi (Moustaquim v. Belgium judgment

of 18 February 1991, Series A no. 193, and Beldjoudi v. France

judgment of 26 March 1992, Series A no. 234-A).

Furthermore the applicant had shown himself to be

perfectly capable of making himself understood and establishing

relationships outside his family circle. Several police reports

disclosed in this connection that he spent the majority of his

time with gangs of youths with whom he conducted a social life

that was as active as it was criminal.

In short, the serious and repeated breaches of public

order committed by the applicant outweighed the protection to be

accorded to his family life, the reality of which appeared in any

event disputable.

41. The Court reiterates that it is for the Contracting

States to maintain public order, in particular by exercising

their right, as a matter of well-established international law,

and subject to their treaty obligations, to control the entry and

residence of aliens and notably to order the expulsion of aliens

convicted of criminal offences.

However, their decisions in this field must, in so far as

they may interfere with a right protected under paragraph 1 of

Article 8 (art. 8-1), be necessary in a democratic society, that

is to say, justified by a pressing social need and, in

particular, proportionate to the legitimate aim pursued (see, as

the most recent authority, the Beldjoudi judgment, cited above,

p. 27, para. 74).

42. In this instance the applicant's deportation was decided

following his conviction for gang rape. The perpetrator of such

a serious offence may unquestionably represent a grave threat to

public order. In the present case, however, there are other

aspects to be taken into account. Thus the Hauts-de-Seine Assize

Court accepted that there were extenuating circumstances and

sentenced the applicant to five years' imprisonment, two of which

were suspended, and probation. It also recognised implicitly

that Mr Nasri had not been the instigator of the offence in

question. In addition, as far as rape is concerned, the

applicant has not re-offended since that offence was committed,

in 1983.

43. Above all it is necessary to take account of Mr Nasri's

handicap. He has been deaf and dumb since birth and this

condition has been aggravated by an illiteracy which was the

result in particular of largely inadequate schooling, even though

this was to a certain extent attributable to the applicant since

on account of his bad behaviour he was expelled from the

establishments that he attended. Like the Delegate of the

Commission, who relied on the expert reports concerning the

applicant, the Court is inclined to the view that, for a person

confronted with such obstacles, the family is especially

important, not only in terms of providing a home, but also

because it can help to prevent him from lapsing into a life of

crime, all the more so in this instance inasmuch as Mr Nasri has

received no therapy adapted to his condition.

44. It should also be stressed that the applicant has always

lived with his parents - except for certain periods when he lived

with his sister. He moved with them when they moved house and

never severed his links with them. In this respect the fact that

he spends a lot of time out with "gangs" makes no difference.

The applicant's parents arrived in France with their

children in 1965 and have never left the country since. In the

meantime six of his nine brothers and sisters have acquired

French nationality. As regards the applicant himself, the meagre

schooling that he was given was all received in France.

45. The Court accepts as credible Mr Nasri's affirmation that

he does not understand Arabic, which was not contested.

Admittedly he mixes with the North African community, but it is

a well-known fact that there is an increasing tendency among the

younger members of that community not to speak the language of

their country of origin, and this would be particularly likely

in the case of a deaf-mute.

46. In view of this accumulation of special circumstances,

notably his situation as a deaf and dumb person, capable of

achieving a minimum psychological and social equilibrium only

within his family, the majority of whose members are French

nationals with no close ties with Algeria, the decision to deport

the applicant, if executed, would not be proportionate to the

legitimate aim pursued. It would infringe the right to respect

for family life and therefore constitute a breach of Article 8

(art. 8).

II. ALLEGED VIOLATION OF ARTICLE 3 (art. 3) OF THE CONVENTION

47. Mr Nasri also contended that his deportation to Algeria

would amount to inhuman and degrading treatment in breach of

Article 3 (art. 3) of the Convention.

48. Having regard to its conclusion in paragraph 46 above,

the Court does not consider it necessary to examine this

complaint.

III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

49. Mr Nasri, who received legal aid before the Strasbourg

institutions, did not claim either compensation for damage or the

reimbursement of his costs and expenses under Article 50

(art. 50) of the Convention. The Court sees no ground for

examining this question of its own motion.

50. As regards the applicant's request to have the

deportation order annulled (see paragraph 32 above), the Court

notes that the Convention does not empower it to require the

French State to take such a measure (see, mutatis mutandis, the

Saïdi v. France judgment of 20 September 1993, Series A

no. 261-C, p. 57, para. 47).

FOR THESE REASONS, THE COURT

1. Holds unanimously that there would be a violation of

Article 8 (art. 8) of the Convention if the decision to

deport the applicant were executed;

2. Holds by seven votes to two that it is not necessary also

to examine the case under Article 3 (art. 3) of the

Convention;

3. Holds unanimously that it is not necessary to apply

Article 50 (art. 50) of the Convention in the present

case.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on

13 July 1995.

Signed: Rolv RYSSDAL

President

For the Registrar

Signed: Vincent BERGER

Head of Division

in the registry of the Court

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of Rules of Court A, the following

separate opinions are annexed to this judgment:

(a) concurring opinion of Mr Pettiti;

(b) partly dissenting opinion of Mr De Meyer;

(c) partly dissenting opinion of Mr Morenilla; and

(d) concurring opinion of Mr Wildhaber.

Initialled: R. R.

Initialled: V. B.

CONCURRING OPINION OF JUDGE PETTITI

(Translation)

I voted with my colleagues in the Chamber to find that

there would be a violation of Article 8 (art. 8) in the event of

expulsion because of the accumulation of circumstances (see

paragraph 46 of the judgment).

However, I consider that the reasoning in relation to

that accumulation of circumstances could have included two

additional considerations. In the first place there is the fact

that the conviction for gang rape on which the deportation was

based dated back to 1986 (15 May); this period during which the

applicant remained on French territory altered the consequences

of a deportation which was to be executed at a time when the

circumstances had changed (this is not forgetting the fact that

the French Government agreed to stay the measure at the

Commission's request once an application had been lodged with the

latter). The second consideration which merits attention is the

way in which social conditions in relation to Mr Nasri's physical

handicap and general conditions existing in the two countries

concerned evolved between 1983 and 1995.

The European Court now has pending before it several

cases concerning the deportation of aliens who have been

convicted of offences and who are habitual re-offenders. The

European Convention excluded from its substantive law the

deportation of aliens by States (except collective deportations).

However, when Article 8 (art. 8) and, in circumstances of

exceptional gravity, Article 3 (art. 3) are involved, the Court

may examine individual cases without overstepping the limits of

what is laid down in Article 8 (art. 8) concerning the notion of

private life. But this line of decisions does not provide a

solution to the general problem, which is a matter for the member

States of the Council of Europe, if they have the will to

harmonise their policies in this field and cooperate, so as to

take account of immigration flows and differences in the

conditions applied with regard to integration and family reunion

by certain States with a view to strengthening the protection of

families, rules that have not been adopted by others.

At this stage it is also necessary to harmonise criminal

policy involving questions of deportation and double punishment

on the basis of the different existing judicial traditions.

The European Court will in the future probably have to

specify the criteria which it intends to adopt: the threshold

level of convictions and re-offending, physical and linguistic

handicaps taken into account, the nature of offences, the

substance of family life and definition of the family community

to be protected under Article 8 (art. 8), definition of European

public order in this context. To this end a study of comparative

law should be undertaken by the member States by appointing an

ad hoc committee of experts to examine the legislation and

judicial and administrative practices of the member States in

these areas so as to avoid divergences from country to country,

which would not be compatible with the common undertaking of

member States to guarantee together the protection of the rights

enshrined in the European Convention on Human Rights.

PARTLY DISSENTING OPINION OF JUDGE DE MEYER

(Translation)

I was not able to approve point 2 of the operative

provisions of this judgment for the reasons that I gave in the

case of Beldjoudi v. France (1).

_______________

1. Series A no. 234-A, p. 35.

_______________

In the present case I consider likewise, and in

particular in view of Mr Nasri's disability (2), that his

deportation would not only interfere with his private and family

life but would above all amount to inhuman treatment.

_______________

2. See paragraphs 20 to 25, 43 and 46 of the judgment.

_______________

PARTLY DISSENTING OPINION OF JUDGE MORENILLA

(Translation)

1. In my opinion, the order for Mr Nasri's deportation, in

the circumstances noted by the majority (see paragraph 46),

should above all be classified as inhuman treatment. The Court

ought first to have ruled on the express complaint made by the

applicant under Article 3 (art. 3) of the Convention and should

have followed the approach of the majority of the Commission,

concluding that there had been a violation.

2. The applicant's dramatic personal situation (his

deaf-mutism with no schooling, his inability to adapt to society

and his long criminal record) should not however be allowed to

obscure the more general question which underlies the application

to the instant case of Article 3 (art. 3) of the Convention:

namely as to the limits to be imposed on administrative measures

- or sanctions - of deportation to the country "of origin", on

account of criminal or antisocial behaviour on the part of

"second generation" aliens, including those who, like the

applicant, came as children accompanying their migrant worker

parents.

3. The deportation of such dangerous "non-nationals" may be

expedient for a State which in this way rids itself of persons

regarded as "undesirable", but it is cruel and inhuman and

clearly discriminatory in relation to "nationals" who find

themselves in such circumstances. A State which, for reasons of

convenience, accepts immigrant workers and authorises their

residence becomes responsible for the education and social

integration of the children of such immigrants as it is of the

children of its "citizens". Where such social integration fails,

and the result is antisocial or criminal behaviour, the State is

also under a duty to make provision for their social

rehabilitation instead of sending them back to their country of

origin, which has no responsibility for the behaviour in question

and where the possibilities of rehabilitation in a foreign social

environment are virtually non-existent. The treatment of

offenders whether on the administrative or criminal level should

not therefore differ according to the national origin of the

parents in a way which - through deportation - makes the sanction

more severe in a clearly discriminatory manner.

4. Attention has rightly been drawn (see

Andrew Drzemczewski, "The position of aliens in relation to the

European Convention on Human Rights", Council of Europe,

Strasbourg, 1985, pp. 7-9) to the way in which international law

has changed over the last few years, under the influence of

recent developments in the human rights field, towards according

equal treatment between aliens and nationals. This equality

becomes more and more evident where the aliens are "immigrants

integrated" in the community where they work. In the words of

Article 12 para. 4 of the International Covenant on Civil and

Political Rights, their "own country" is that in which they were

born or in which they grew up and which is theirs despite the

difficulties of integration inherent in being of foreign origin

or belonging to a different family culture. In any event, legal

considerations or reliance on the traditional notion of State

sovereignty cannot today serve as the basis for such treatment.

5. Nevertheless, for the third time in four years (see the

Moustaquim v. Belgium judgment of 18 February 1991, Series A

no. 193, p. 20, para. 50, and the Beldjoudi v. France judgment

of 26 March 1992, Series A no. 234-A, p. 29, para. 82), the Court

has provided further evidence of its traditional "circumspection"

(see Marc-André Eissen, El Tribunal Europeo de Derechos Humanos,

Spanish translation, Civitas, Madrid, 1985, pp. 81 and 95). The

majority "does not consider it necessary to examine this

complaint" (see paragraph 48) and confines itself to finding a

violation of Article 8 (art. 8) of the Convention, regarding the

measures in question as an interference with the family life of

the person concerned. I regret this because the importance and

topicality of the issue requires the Court to give a ruling in

this matter and to express its opinion with clarity, which would

not exclude taking into consideration the specific circumstances

of the case before it.

6. Finally, I voted with the majority for the violation of

Article 8 (art. 8) of the Convention in this case, even though

I do not subscribe to the reasoning based on Mr Nasri's situation

as a non-national and on his responsibility in view of his "bad

behaviour" (see paragraphs 22-25 and 43). Given the applicant's

distressing situation, I nevertheless find the majority's

approach too formalistic (see paragraph 46) in so far as it gives

to Mr Nasri's deportation the legal classification of

interference with his family life rather than his private life,

a more general concept of which family life is one element.

In fact Article 8 (art. 8) of the Convention recognises

the right to respect by the public authorities of the "private

sphere" of the individual (see Stephan Breitenmoser, Der Schutz

der Privatsphäre gemäss Art. 8 (art. 8) EMRK, Juristische

Fakultät der Universität Basel, Basle, 1986), of his personal

life, which, under the terms of the Convention, includes his

private and family life, his home and his correspondence.

Deportation from a country in which the person concerned has

lived from birth or from childhood constitutes an interference

with this private and personal sphere where it entails, as in

this case, the separation of the person concerned from his

essential social environment, his emotional and "social circle",

including his family. This interference by the public

authorities infringes the right that every person has to respect

for his private and family life if it is not justified under

paragraph 2 of the same Article 8 (art. 8-2) of the Convention.

As the majority found, in the present case it was not so

justified.

CONCURRING OPINION OF JUDGE WILDHABER

In my opinion, this is a special case which does not

easily lend itself to generalisation. Like the applicant

himself, our Court, in relying on Article 8 (art. 8), invokes

only the right to respect due to his family life. This approach

is somewhat artificial, because the element of the respect of his

private life is missing. In such cases, it would be more

realistic to look at the whole social fabric which is important

to the applicant, and the family is only part of the entire

context, albeit an essential one.

Like the majority of the Court, I have not found it

necessary to rely on Article 3 (art. 3). Indeed, had we relied

on Article 3 (art. 3), we might have implied that no balancing

of public interests can take place but rather that immigrants of

the "second generation" cannot be expelled at all. It seems to

me that this would go too far and that, exceptionally, the

expulsion of those immigrants of the "second generation" who have

committed very serious crimes (such as murder, rape, massive drug

trade) must continue to be possible in accordance with the

general principles of international law.



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