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

means that he has habitually resided in France since the age of 10 or younger;
3) An alien who proves by any means that he has habitually resided in France for more than fifteen years or an alien who has lawfully resided in France for more than ten years;
4) An alien, who has been married for at least six months and whose spouse is a French national;
5) 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;
6) An alien who is in receipt of an industrial accident or occupational disability pension paid by a French institution where his or her permanent disability is at least 20%;
7) An alien residing lawfully in France by virtue of one of the residence permits provided for in this Ordinance or in the international agreements, who has not been sentenced with final effect to a non-suspended term of imprisonment of one year or more. ..."
The same law added a paragraph, which was worded as follows:
"The aliens referred to in sub-paragraphs (1) to (6) may not be the subject of a removal order made under section 22 of this Ordinance or of an exclusion order made by a court under section 19 of this Ordinance prohibiting them from entering the territory."
22. Section 25 was further amended and supplemented by the Laws of 31 December 1991 and 24 August 1993:
"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 means that he has habitually resided in France since the age of 6 or younger;
3) An alien who proves by any means that he has habitually resided in France for more than fifteen years or an alien who has lawfully resided in France for more than ten years, unless for the whole of this period he has been in possession of a temporary residence permit bearing the word "student";
4) An alien, who has been married for at least one year and whose spouse is a French national provided that they have not ceased to live together and that the spouse has kept his or her French nationality;
5) 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;
6) An alien who is in receipt of an industrial accident or occupational disability pension paid by a French institution where his or her permanent disability is at least 20%;
7) An alien residing lawfully in France by virtue of one of the residence permits provided for in this Ordinance or in the international agreements, who has not been sentenced with final effect to a non-suspended term of imprisonment of one year or more. ...
The aliens referred to in sub-paragraphs (1) to (6) may not be the subject of a removal order made under section 22 of this Ordinance.
By way of derogation from the provisions of this section, a deportation order under sections 23 and 24 may be made against an alien falling within one of the categories listed in sub-paragraphs (3), (4), (5) and (6) if he or she has been sentenced with final effect to a non-suspended term of imprisonment of at least five years."
2. Procedure for urgent cases
23. Section 26 of the Ordinance, as amended by the Law of 9 September 1986 provided:
"In cases of extreme urgency and by way of derogation from sections 23 to 25, deportation may be ordered where the alien"s presence on French territory constitutes a particularly serious threat to public order.
This procedure may not however be applied in respect of minors under the age of 18."
24. Section 26 was subsequently amended by the Law of 2 August 1989 and then by the Law of 24 August 1993 and now reads as follows:
"Deportation may be ordered:
(a) in cases of extreme urgency, by way of derogation from section 24 (2);
(b) where such a measure constitutes an absolute necessity for the security of the State and public safety, by way of derogation from section 25.
In cases of extreme urgency and where the measure is an absolute necessity for the security of the State and public safety, deportation may be ordered by way of derogation from sections 24 (2) and 25.
The procedures provided for in this section may not be applied in respect of a minor alien under 18."
B. Applications to have a deportation order rescinded
25. The second paragraph of section 23 of the Ordinance, as amended by the Law of 9 September 1986, provided:
"The deportation order may at any time be rescinded by the Minister of the Interior. Where the application for an order to be rescinded is submitted on the expiry of a period of five years from the actual execution of the order, it may be rejected only after the opinion of the board provided for in section 24 has been sought. The person concerned may be represented before the board."
The wording that applied prior to the Law of 9 September 1986 was restored by the Law of 2 August 1989: the Minister was required to abide by the opinion expressed by the board.
However, this provision was again amended by the Law of 24 August 1993 to the effect that the board"s opinion must compulsorily be sought, but it no longer binds the Minister.
C. Sanctions
26. Section 27 of the Ordinance, as amended by the Law of 9 September 1986, provided:
"Any alien who has evaded or attempted to evade the execution of a deportation order or a removal order or who, having been deported or being subject to a prohibition on entering the territory, re-enters the national territory without an authorisation shall be liable to a term of imprisonment of from six months to three years.
The court may in addition issue an order banning a person so convicted from re-entering the territory for a period not exceeding ten years.
The ban on re-entering the territory automatically entails the convicted person"s removal from French territory, on completion of his prison sentence where appropriate."
27. The Law of 31 December 1991 states that the same penalty applies to "any alien who has evaded or attempted to evade the execution of a measure refusing him or her entry into France" (the first paragraph as supplemented) or "who has not submitted to the relevant administrative authority the travel documents making possible the execution of one of the measures referred to in the first paragraph or who, where he or she has no such documents, has failed to communicate the information making it possible to execute such measures" (new paragraph inserted between the first and second paragraphs).
PROCEEDINGS BEFORE THE COMMISSION
28. Mr Boughanemi applied to the Commission on 3 June 1993. He complained of a violation of his right to respect for his private and family life as guaranteed under Article 8 (art. 8) of the Convention.
29. The Commission declared the application (no. 22070/93) admissible on 29 August 1994. In its report of 10 January 1995 (Article 31) (art. 31), it expressed the opinion by twenty-one votes to five that there had been a violation of Article 8 (art. 8). The full text of the Commission"s opinion and of the two dissenting opinions contained in the report is reproduced as an annex to this judgment <3>.
--------------------------------
Note by the Registrar
<3> For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-II), but a copy of the Commission"s report is obtainable from the registry.
FINAL SUBMISSIONS TO THE COURT
30. In their memorial the Government
"request the Court to dismiss Mr Boughanemi"s application".
AS TO THE LAW
Alleged violation of Article 8 (art. 8)
of the Convention
31. In Mr Boughanemi"s submission, his deportation by the French authorities interfered with his private and family life and breached 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 Government contested this contention, whereas the Commission accepted it.
A. Paragraph 1 of Article 8 (art. 8-1)
32. It is necessary in the first place to determine whether the applicant can claim to have had in France a "private and family life" within the meaning of Article 8 para. 1 (art. 8-1).
33. According to the Government, the applicant has failed to show that he had close and real ties with his parents and his brothers and sisters. Admittedly they lived in France, but the applicant, who was aged 34 at the date of his second deportation, no longer lived with them. None of the evidence examined by the administrative courts substantiated the applicant"s claim that he had actually received assistance from his family.
In addition, the applicant"s relationship with a woman and the fact that he had fathered a child, circumstances to which he had referred before the Commission, could not be taken into account. He had begun to live with the woman and had recognised the child after the deportation order had been issued and after the judgment of the Conseil d"Etat of 7 December 1992. In any event, these ties, which had been established after the applicant"s illegal return to France, could not constitute family life. It was clear from the statements made on 6 December 1994 by the applicant"s former companion (see paragraph 16 above) that their life together had ended for good well before 28 July 1994, the date of the applicant"s last arrest and, a fortiori, before 12 October 1994, when the applicant had been deported to Tunisia a second time. As far as the child was concerned, Mr Boughanemi had not formally recognised him until 5 April 1994, ten months after his birth - on 19 June 1993 - although under French law he could have done so even before the birth and without the mother"s being able to prevent him. Nor had the applicant indicated that the child"s birth was imminent in his application lodged with the Commission on 3 June 1993; he had mentioned the birth for the first time in his observations of 5 May 1994. Furthermore no relationship that could have been compromised by the deportation had developed between the applicant and his son. Finally, Mr Boughanemi had not shown that he provided for his son, or that he contributed to his education or that he enjoyed parental rights.
34. The Commission took the view that the execution of the deportation order amounted to an interference with the applicant"s right to respect for his private and family life.
35. The Court considers that the Government"s doubts as to the reality of family ties between Mr Boughanemi and Miss S. are not wholly unfounded. It would appear that their life together did not begin until after the applicant"s return as an illegal immigrant and only lasted one year. When he was deported for the second time the couple had already separated; this separation occurred several months before the child"s birth.
However, these observations do not justify finding that the applicant had no private and family life in France.
In the first place, Mr Boughanemi recognised, admittedly somewhat belatedly, the child born to Miss S. The concept of family life on which Article 8 (art. 8) is based embraces, even where there is no cohabitation, the tie between a parent and his or her child, regardless of whether or not the latter is legitimate (see, mutatis mutandis, the judgments of Berrehab v. the Netherlands, 21 June 1988, Series A no. 138, p. 14, para. 21, and {Gul} v. Switzerland, 19 February 1996, Reports of Judgments and Decisions 1996-I, pp. 173-74, para. 32). Although that tie may be broken by subsequent events, this can only happen in exceptional circumstances (see the {Gul} judgment cited above, loc. cit.). In the present case neither the belated character of the formal recognition nor the applicant"s alleged conduct in regard to the child constitutes such a circumstance.
Secondly, Mr Boughanemi"s parents and his ten brothers and sisters are legally resident in France and there is no evidence that he has no ties with them.
Mr Boughanemi"s deportation had the effect of separating him from them and from the child. It can therefore be regarded as an interference with the exercise of the right guaranteed under Article 8 (art. 8).
B. Paragraph 2 of Article 8 (art. 8-2)
36. It is accordingly necessary to determine whether the deportation in issue satisfied the conditions laid down in paragraph 2 (art. 8-2), namely whether it was "in accordance with the law", whether it pursued one or more of the legitimate aims listed in that paragraph (art. 8-2) and whether it was "necessary in a democratic society" to attain such aim or aims.
1. "In accordance with the law"
37. It is not in dispute that the order for Mr Boughanemi"s deportation was based on sections 23 and 24 of the Ordinance of 2 November 1945 on the conditions of entry and residence of aliens in France, as amended (see paragraphs 18 and 19 above).
2. Legitimate aim
38. The Government and the Commission considered that the interference in question pursued aims that were fully consistent with the Convention, namely "the prevention of disorder" and the prevention of "crime". The Court arrives at the same conclusion.
3. "Necessary in a democratic society"
39. The Government maintained that the interference was proportionate to the aims pursued. They drew attention to the number of offences committed by Mr Boughanemi and the seriousness of the last offence which had led to his conviction for living on the earnings of prostitution with aggravating circumstances. They pointed to those aggravating circumstances, namely violence, the fact that there were several perpetrators and the pressure brought to bear on the victim to prostitute herself outside the territory of mainland France.
In addition, the prejudice to the applicant"s private and family life caused by the interference should not be exaggerated. The applicant had failed to show either that he had particularly close ties with his family living

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