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

in France or that he was in any way integrated in the society of that country, where he had never really worked. Furthermore, on attaining his majority he had not sought French nationality. At the same time he had retained ties with Tunisia that went beyond mere nationality. His parents were Tunisian; he had spent his infancy there and in France he moved in Tunisian circles. Mr Boughanemi could speak Arabic or at least had an adequate command of everyday language. Moreover, having lived in Tunisia up to the age of 8, the two years of schooling that he had received there had laid the foundations of his education. In addition, the applicant did not claim that he had never returned there or that he had cut all ties with that country. Finally, he maintained active relations with the Tunisian community so that his life was not confined to the French dimension.
40. The Commission rejected this line of argument. It observed, as regards the extent of the interference with the applicant"s private and family life, that he had arrived in France aged 8 and had remained there until his first deportation to Tunisia in 1988, when he was 28, and again until his second deportation in October 1994, when he was 34. He had all his family in France and had lived there with a French woman, whose child he had fathered and, on 5 April 1994, formally recognised. In this last connection, the Delegate of the Commission noted the wording of the letter that Miss S. had sent to the Commission on 15 June 1994 (see paragraph 16 above). Although legally an alien, the applicant therefore had family and social ties in France and the Government had not shown that he had any link with Tunisia other than nationality. Thus, despite the serious nature of the convictions leading to his deportation, a fair balance had not been struck between the aims pursued, on the one hand, and the right to respect for private and family life, on the other.
41. The Court acknowledges 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, among other authorities, the judgments of Beldjoudi v. France, 26 March 1992, Series A no. 234-A, p. 27, para. 74, and Nasri v. France, 13 July 1995, Series A no. 320-B, p. 25, para. 41). In determining whether the interference was "necessary", the Court makes allowance for the margin of appreciation that is left to the Contracting States in this field (see, for instance, the Berrehab judgment cited above, p. 15, para. 28).
42. Its task consists of ascertaining whether the deportation in issue struck a fair balance between the relevant interests, namely the applicant"s right to respect for his private and family life, on the one hand, and the prevention of disorder or crime, on the other.
43. The applicant arrived in France at the age of 8 and was legally resident there from 1968 to 1988, and then lived there, after his return as an illegal immigrant, until 12 October 1994. He had most of his schooling there. His parents and his ten brothers and sisters live there, five of his siblings are in school there, eight of them were born there and two have French nationality. In addition, Mr Boughanemi lived with a French woman there as man and wife and formally recognised - admittedly not until 5 April 1994 - her child who was born on 19 June 1993.
44. However, he kept his Tunisian nationality and, so it would seem, never manifested a wish to become French. It is probable, as the Government pointed out, that he retained links with Tunisia that went beyond the mere fact of his nationality. Before the Commission he did not claim that he could not speak Arabic, or that he had cut all his ties with his country of birth, or that he had not returned there after his deportation.
In addition, in the Court"s view, the circumstances of the present case are different from those in the cases of Moustaquim v. Belgium (judgment of 18 February 1991, Series A no. 193), Beldjoudi v. France and Nasri v. France (judgments cited above), which all concerned the deportation of aliens convicted of criminal offences and in which the Court found a violation of Article 8 (art. 8).
Above all the Court attaches particular importance to the fact that Mr Boughanemi"s deportation was decided after he had been sentenced to a total of almost four years" imprisonment, non-suspended, three of which were for living on the earnings of prostitution with aggravating circumstances (see paragraphs 8 and 39 above). The seriousness of that last offence and the applicant"s previous convictions count heavily against him.
45. Having regard to the foregoing, the Court does not find that the applicant"s deportation was disproportionate to the legitimate aims pursued. There has accordingly been no violation of Article 8 (art. 8).
Holds by seven votes to two that there has been no violation of Article 8 (art. 8) of the Convention.
Done i

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