ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 24.04.1996"БУГХАНЕМИ (boughanemi) ПРОТИВ ФРАНЦИИ" [рус. (извлечение), англ.]

a follows:
"... Having regard to sections 23 and 24 of Ordinance no. 45-2658 of 2 November 1945, as amended, concerning the conditions of entry and residence of aliens in France;
Having regard to Decree no. 82-440 of 26 May 1982;
Whereas Kamel Boughanemi ... committed the following offences: on 21 August 1981 a burglary; on 21 November 1981 an assault on the person of a representative of the public authority who was performing his duties; on 25 January 1983 an assault; and from 26 September 1986 to 10 October 1986, acts amounting to living on the earnings of prostitution with aggravating circumstances;
Whereas on account of his behaviour the presence of this foreign national on French territory represents a threat to public order; ...
IT IS HEREBY ORDERED AS FOLLOWS
Article 1: the above-mentioned person is enjoined to leave the French territory;
Article 2: the Prefect of Police and the prefects are instructed to serve and execute this order. ..."
10. The deportation order was executed on 12 November 1988 but the applicant returned to France and lived there illegally.
11. On 16 March 1989 the Lyons Administrative Court dismissed the applicant"s appeal alleging that the deportation order was an abuse of authority.
2. The application to have the deportation
order rescinded
12. On 21 March 1990 the applicant applied to the Minister of the Interior to have the deportation order rescinded. His application was rejected on 10 August 1990 on the following grounds:
"...I hereby inform you that the deportation order was made by the competent authorities in view of the nature and increasing gravity of the offences committed by the applicant. The threat to public order was also assessed with reference to Mr Boughanemi"s general conduct as was required under the circular on the implementation of the Law of 9 September 1986.
In addition, the Lyons [Administrative Court] confirmed the deportation order on 16 March 1989.
It is accordingly impossible for me to grant your request. The deportation order of 8 March 1988 must therefore remain in force. ..."
3. The application for judicial review
(a) In the Lyons Administrative Court
13. On 9 October 1990 Mr Boughanemi lodged with the Lyons Administrative Court an application for judicial review of the Minister"s decision refusing to rescind the deportation order. In its judgment of 26 February 1991 dismissing the application, the Lyons court gave the following grounds:
"...Under section 23 of the Ordinance of 2 November 1945, as amended in particular by the Law of 2 August 1989, "subject to the provisions of section 25, deportation may be decided by order of the Minister of the Interior if an alien"s presence on French territory constitutes a serious threat to public order. The deportation order may be rescinded at any time by the Minister of the Interior..." Although section 25, as amended by the aforementioned Law, prohibits the Minister, save in cases of extreme urgency as provided for in section 26, from ordering the deportation of certain categories of alien, that provision cannot be usefully invoked to support an application to have a previously issued deportation order rescinded. It is exclusively a matter for the Minister to whom such an application has been made to assess pursuant to section 23 whether the presence of the person concerned on French territory constitutes at the date on which he gives his decision a serious threat to public order.
In the first place, it follows from the foregoing that the submission based on the fact that Mr Boughanemi has lived continuously in France since the age of 8 and that for that reason, in accordance with the new section 25 of the Ordinance of 2 November 1945, a deportation order could not be made against him after the coming into operation of the Law of 2 August 1989 is without force in regard to the decision refusing to rescind the deportation order made against him on 8 March 1988. Nor can he rely on the principle that more lenient criminal legislation should be applied with retrospective effect.
Secondly, an appeal brought against the deportation decision of 8 March 1988 alleging that it was an abuse of authority was dismissed as unfounded by a judgment of this court on 16 March 1989. That decision carries with it the authority of res judicata, which precludes Mr Boughanemi from pleading the unlawfulness of that measure in support of his submissions directed against the refusal to rescind it.
Finally, the documents in the file show that the Minister, who took his decision in the light of all the circumstances of the case, did not make a manifest error of assessment in concluding, on the basis of the acts that gave rise to the applicant"s being arrested and prosecuted on several occasions between 1981 and 1988 and aspects of Mr Boughanemi"s conduct, that the latter"s presence on French territory constituted a serious threat to public order and in refusing on those grounds to rescind the deportation order made against him.
It follows from all the foregoing considerations that the applicant"s submission that the impugned decision is vitiated as an abuse of authority is unfounded and his application to have it set aside on that ground must fail."
(b) In the Conseil d"Etat
14. On 7 December 1992 the Conseil d"Etat dismissed the applicant"s appeal lodged on 23 October 1991. It gave, inter alia, the following reasons:
"...Although the wording of section 25 of the above-mentioned Ordinance of 2 November 1945 was amended by the Law of 2 August 1989, Mr Boughanemi cannot usefully rely on this change in the legal position in order to plead that the Minister of the Interior was under a duty to rescind the deportation order issued against him under previous legislation concerning aliens. It was exclusively a matter for the Minister to whom an application for such an order to be rescinded has been made to determine whether, in accordance with section 23 of the Ordinance of 2 November 1945 as in force at the date of the application, the presence of the person concerned on French territory represented a serious threat to public order.
It appears from the documents in the file that the Minister, who took his decision in the light of all the evidence in the case, did not make a manifest error of assessment in finding that the presence in France of the appellant, who had committed repeated and increasingly serious offences, including that of living on the earnings of prostitution with aggravating circumstances, still represented, as at 10 August 1990, a serious threat to public order. He was therefore entitled to refuse to rescind the order for Mr Boughanemi"s deportation.
In the circumstances of this case, the Minister of the Interior"s refusal to rescind the deportation order made against Mr Boughanemi, who returned to France and lived there illegally after the execution of that deportation order, did not interfere with the latter"s family life to an extent that exceeded what was necessary to preserve public order. Thus the submission that the refusal to rescind the deportation order of 8 March 1988 infringed the right to respect for family life guaranteed by Article 8 (art. 8) of the European Convention on Human Rights must fail. ..."
4. The deportation
15. Mr Boughanemi was arrested on 28 July 1994 for breach of the deportation order and was sentenced to three months" imprisonment. On 12 October 1994 he was deported to Tunisia.
C. The statements of Miss S.
16. On 20 June 1994 the Commission received from Miss S. (see paragraph 7 above) the following letter, dated 15 June 1994:
"As partner (concubine) and mother of the child of Mr Kamel Boughanemi, I wish by this letter to draw your attention to our situation.
The difficulty of getting his identity papers back makes it impossible for us to lead a normal life.
There is also the fact that, as I am myself unemployed, my financial circumstances make it impossible for me to give him either moral or financial support. What is more, I am his partner and, despite all his efforts to be recognised as a normal citizen, it is unfortunately impossible for us to live together. Faced with all the problems raised by his getting administrative recognition, I write to you in the hope that you will take account of the fact that both he and I are acting in good faith. ..."
On 6 December 1994 Miss S. made the following statement to an officer of the criminal investigation department (extracts from the police report):
"... I do know Kameledine Boughanemi. I"ve known him for about three years. I lived with him from the end of 1992 till Christmas 1993 when we separated because of a disagreement.
When we lived together he was out of work. He lived at my place ... I paid for his keep.
He never gave me any money because he didn"t have any.
He didn"t recognise my son until April 1994, because to begin with I wasn"t too keen on the idea.
So far he has never sent any money for our child. He calls me from time to time to find out if there is any news about his application to the European Court. I don"t intend to live with him if he comes back.
I have nothing else to say on this matter. ..."
II. Relevant domestic law
17. Deportation is governed by Ordinance no. 45-2658 of 2 November 1945 concerning the conditions of entry and residence of aliens in France, as amended by, inter alia, the following Laws: no. 81-973 of 29 October 1981; no. 86-1025 of 9 September 1986; no. 89-548 of 2 August 1989; no. 91-1383 of 31 December 1991; and no. 93-1027 of 24 August 1993.
A. The rules governing deportation
1. Normal procedure
(a) Principles and procedure
18. According to the first paragraph of section 23 of the Ordinance, as amended by the Law of 9 September 1986, "subject to the provisions of section 25, deportation may be decided by order of the Minister of the Interior if an alien"s presence on French territory constitutes a threat to public order".
The Law of 2 August 1989 restored the wording that this section had contained prior to the Law of 9 September 1986, to the effect that deportation might only be ordered in the event of a "serious" threat to public order.
19. Section 24, as amended by the Laws of 29 October 1981 and 9 September 1986, stated:
"Deportation as provided for in section 23 may be ordered only where the following conditions are satisfied:
1) The alien must be given advance notice in accordance with the conditions laid down in a decree of the Conseil d"Etat;
2) The alien shall be summoned to be interviewed by a board which is convened by the prefect and is composed as follows:
the President of the tribunal de grande instance of the administrative capital of the {departement} <*> or a judge delegated by him, chairman;
-------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
a judicial officer (magistrat) designated by the general assembly of the tribunal de grande instance of the administrative capital of the {departement}; and
an administrative court judge.
The head of the aliens" department at the prefecture shall act as rapporteur; the director of health and social affairs of the {departement} or his representative shall be heard by the board. They shall not attend the board"s deliberations.
The summons, which must be served on the alien at least eight days before the board"s meeting, shall inform him that he has the right to be assisted by a lawyer or by any other person of his choice and to be heard with the help of an interpreter.
The alien may request legal aid in accordance with the conditions laid down in Law no. 72-11 of 3 January 1972. This possibility shall be mentioned in the summons. A provisional grant of legal aid may be decided by the chairman of the board.
The board"s hearing shall be public. The chairman shall ensure the proper conduct of the proceedings. All the orders made by him to that end must be executed immediately. Before the board the alien may put forward all the reasons that militate against his deportation. A report recording the alien"s statements shall be transmitted, together with the board"s opinion, to the Minister of the Interior, who shall give a decision. The board"s opinion shall also be communicated to the person concerned."
The Law of 2 August 1989 inserted, inter alia, the following provision:
"3) If the board issues an opinion opposing deportation, a deportation order may not be made."
The latter provision was however repealed by the Law of 24 August 1993.
(b) Protected aliens
20. Section 25 of the Ordinance, as amended by the Law of 29 October 1981, subsequently amended by the Law of 9 September 1986, provided:
"A deportation order made under section 23 may not be issued against the following persons:
1) A minor alien under 18 years of age, unless a deportation or removal order has been made against the persons who actually provide for his or her maintenance and no other person lawfully residing in France is in a position to so provide for him or her; in the case of a minor alien under 16 years of age, the opinion of the deportation board of the {departement} must be in favour of deportation;
2) An alien, who has been married for at least one year and whose spouse is a French national, provided that the two spouses genuinely live together;
3) An alien who is the father or the mother of a French child residing in France provided that he or she exercises parental rights, even only on a partial basis, in respect of the child or actually provides for him or her;
4) An alien who proves by any means that he has habitually resided in France since the age of 10 or younger or for over ten years and who has not been convicted with final effect of an offence for which he or she has been sentenced to a non-suspended term of imprisonment of at least six months or a suspended term of one year or several terms of imprisonment whose aggregate is at least equal to such periods;
5) An alien who is in receipt of an industrial accident disability pension paid by a French institution where his or her permanent and partial disability is at least 20%."
21. The Law of 2 August 1989 amended those provisions, restoring to a large extent the wording in force prior to the Law of 9 September 1986:
"A deportation order made under section 23 may not be issued against the following persons:
1) A minor alien under 18 years of age;
2) An alien who proves by any

ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 23.04.1996"РЕМЛИ (remli) ПРОТИВ ФРАНЦИИ" [рус. (извлечение), англ.]  »
Международное законодательство »
Читайте также