(Application no. 39652/98)
5 October 2000
THE FOLLOWING CORRESPOND TO EXTRACTS FROM THE DECISION OF THE COURT. THE ORIGINAL PARAGRAPH NUMBERS HAVE BEEN LEFT INTACT TO FACILITATE CROSS REFERENCING WITH THE FULL JUDGMENT.
1. The case originated in an application (no. 39652/98) against the French Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Tunisian national, Mr Nouri Maaouia (“the applicant”), on 30 December 1997.
2. The applicant alleged, in particular, that the length of proceedings he had brought on 12 August 1994 for the rescission of an exclusion order, which proceedings had ended with the judgment of the Aix-en-Provence Court of Appeal of 26 January 1998, had been unreasonable, contrary to Article 6 § 1 of the Convention.
I. THE CIRCUMSTANCES OF THE CASE
9. The applicant, who was born in 1958 in Tunisia, entered France in 1980 at the age of 22. On 14 September 1992 he married a French national, an invalid whose disability had been assessed at 80%, with
whom he had been living since 1983.
10. On 1 December 1988 the Alpes-Maritimes Assize Court sentenced the applicant to six years' imprisonment for armed robbery and armed assault with intent for offences committed in 1985. He was
released on 14 April 1990.
11. On 8 August 1991 the Minister of the Interior made a deportation order against him. The order was served on the applicant, who had been unaware of its existence, on 6 October 1992, when he attended the Nice Centre for Administrative Formalities in order to regularise his status.
12. He refused to travel to Tunisia and was prosecuted for failing to comply with a deportation order. On 19 November 1992 the Nice Criminal Court sentenced him to one year's imprisonment and made an order excluding him from French territory for ten years. That decision was upheld on appeal by the Aix-en-Provence
Court of Appeal on 7 June 1993. An appeal on points of law was dismissed by the Court of Cassation on 1 June 1994 on the ground that the applicant had failed to challenge the legality of the deportation order in the courts below.
13. On 22 July 1994 the applicant applied to the Criminal Cases Review Board of the Court of Cassation for a review of the criminal proceedings that had resulted in his being imprisoned for one year and banned from French territory for ten years. In a judgment of 28 April 1997, which was served on 22 September 1997, the
Court of Cassation dismissed that application.
A. Proceedings before the administrative courts for an order quashing the deportation order made against the applicant
14. In December 1992 the applicant sought judicial review of the deportation order. In a judgment of 14 February 1994 the Nice Administrative Court quashed the deportation order of 8 August 1991, inter alia, on the ground that no notice had been served on the applicant requiring him to appear before the Deportation
Board. That judgment became final on 14 March 1994 after being served on the Minister of the Interior.
B. Application for rescission of the exclusion order
15. On the strength of the administrative court's judgment of
14 February 1994 quashing the deportation order, the applicant applied to the Principal Public Prosecutor's Office at the Aix-en-Provence Court of Appeal on 12 August 1994 for rescission of the ten-year exclusion order made by the Nice Criminal Court on 19 November 1992. He contended that he was married to a French
national and held a provisional residence permit.
16. In a letter of 6 July 1995 the applicant reminded the Principal Public Prosecutor's Office of the terms of his application for rescission.
17. On 3 November 1997 the Principal Public Prosecutor's Office at the Court of Appeal informed the applicant that the case would be heard on 26 January 1998. On that date the Aix-en-Provence Court of Appeal granted the applicant's application and rescinded the exclusion order on the ground that the Nice Administrative Court had quashed the deportation order.
C. Steps taken by the applicant to regularise his immigration status
18. The applicant also sought to regularise his status with the immigration authorities. He initially obtained acknowledgment forms for applications for provisional residence permits (not work permits) for renewable three-month periods. On 4 September 1995, however, he was given a new three-month residence permit
incorporating the right to seek employment.
19. On 14 September 1995 the applicant applied to the prefect for the Alpes-Maritimes département for a residence permit allowing him to live and work in France for a prolonged period, as he was married to a French citizen. On 9 April 1996 the applicant received notice of a decision dated 2 April 1996 refusing him a residence permit. He appealed to the Nice Administrative Court, but his appeal
was dismissed on 27 September 1996.
20. The applicant appealed on 24 December 1996 to the Lyons Administrative Court of Appeal. On 29 August 1997 the President of that court ordered the transfer of the file to the Marseilles Administrative Court of Appeal – the court with jurisdiction – where the case is currently pending.
21. On 21 July 1998 the applicant obtained a temporary residence permit valid for one year (from 13 July 1998 to 12 July 1999). Recently he obtained a ten-year residence permit with the right to seek employment.
II. RELEVANT DOMESTIC LAW
22. Article 27 of the Ordinance of 2 November 1945 as amended, concerning the conditions of entry and
residence of aliens in France reads as follows:
“Any alien who has evaded or attempted to evade the execution of an order refusing him leave to enter France, a deportation order or a
removal order or who, having been deported or being subject to an exclusion order, re-enters the national territory without autorisation shall be liable to a term of imprisonment of from six months to three years.
The same penalty may be imposed on any alien who fails to present to the relevant administrative authority travel documents enabling
any of the measures mentioned in the first sub-paragraph to be executed or who does not have such documents and fails to supply the
information necessary to allow such execution.
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.
A ban on re-entering the territory automatically entails the convicted person's removal from French territory, on completion of his prison sentence where appropriate.”
23. Article 702-1 of the Code of Criminal Procedure reads as follows:
“Any person subject to a ban, forfeiture or incapacity or any measure whatsoever by operation of law following a criminal conviction or imposed as an additional penalty on sentencing may request the court which convicted him, or, if more than one, the last court to convict him, to end all or part of it, including provisions relating to the length of such ban, forfeiture or incapacity. ...”
24. Article 703 of the Code of Criminal Procedure reads as follows:
“Applications by convicted persons for the ending of a ban ... shall contain particulars of the date of conviction and the places where the applicant has been living since his conviction or release.
Applications shall be sent to the Public Prosecutor's Office or, as the case may be, the Principal Public Prosecutor's Office, which shall obtain all relevant information and, if appropriate, the opinion of the judge responsible for the execution of sentences, and shall refer the application to the relevant court.
The court shall decide applications in private after considering the submissions of the prosecution. It shall hear the applicant or his or her lawyer, but may decide the application in their absence provided due notice has been served on them to attend ...
A reference to the order ending all or part of a ban, forfeiture or incapacity ... shall be entered on the judgment of the court of trial or retrial and the convicted person's criminal record.”
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
25. The applicant complained in substance that the length of the proceedings which he had brought on 12 August 1994 for rescission of the exclusion order and which had ended with the decision of the
Aix-en-Provence Court of Appeal of 26 January 1998 had been unreasonable, contrary to Article 6 § 1 of the Convention. The relevant part of that provision reads as follows :
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
Applicability of Article 6 § 1
26. The Court must examine, firstly, whether Article 6 § 1 is applicable in the instant case. The Government submitted that it was not; the applicant disagreed.
33. The Court notes, firstly, that the Government have not denied the existence of a dispute (contestation) within the meaning of Article 6 § 1. However, they maintained that the dispute in question did not concern the determination of the applicant's civil rights or of a criminal charge against him, within the meaning of Article
6 § 1 of the Convention.
34. The Court points out that, under its case-law, the concepts of “civil rights and obligations” and “criminal charge” cannot be interpreted solely by reference to the domestic law of the respondent State. On several occasions, the Court has affirmed the principle that these concepts are “autonomous”, within the meaning of Article 6 § 1 of the Convention (see, among other authorities, the König v. Germany judgment of 28 June 1978, Series A no. 27, pp. 29-30, §§ 88-89; the Baraona v. Portugal judgment of 8 July 1987, Series A no. 122, pp. 17-18, § 42; and the Malige v. France judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, p. 2935, § 34). The Court confirms those principles in the instant case, as it considers that any othersolution might lead to results that are incompatible with the object and purpose of the Convention (see, mutatis mutandis, the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 34, § 81, and the König judgment cited above, pp. 29-30, § 88).
35. The Court has not previously examined the issue of the applicability of Article 6 § 1 to procedures for the expulsion of aliens. The Commission has been called upon to do so, however, and has consistently expressed the opinion that the decision whether or not to authorise an alien to stay in a country of which he is
not a national does not entail any determination of his civil rights or obligations or of any criminal charge against him within the meaning of Article 6 § 1 of the Convention (see, for example, Uppal and Singh v. the United Kingdom, application no. 8244/78, Commission decision of 2 May 1979, Decisions and Reports (DR) 17, p. 149; Bozano v. France, application no. 9990/82, Commission decision of 15 May 1984, DR 39, p. 119; Urrutikoetxea v. France, application no. 31113/96, Commission decision of 5 December 1996, DR 87-B, p. 151; and Kareem v. Sweden, application no. 32025/96, Commission decision of 25 October 1996, DR 87-A, p. 173).
36. The Court points out that the provisions of the Convention must be construed in the light of the entire Convention system, including the Protocols. In that connection, the Court notes that Article 1 of Protocol No. 7, an instrument that was adopted on 22 November 1984 and which France has ratified, contains procedural guarantees applicable to the expulsion of aliens. In addition, the Court observes that the preamble to that instrument refers to the need to take “further steps to ensure the collective enforcement of certain rights and freedoms by means of the Convention ...”. Taken together, those provisions show that the States were aware that Article 6 § 1 did not apply to procedures for the expulsion of aliens and wished to take special measures in that sphere. That construction is supported by the explanatory report on Protocol No. 7 in the section dealing with Article 1, the relevant passages of which read as follows:
“6. In line with the general remark made in the introduction ..., it is stressed that an alien lawfully in the territory of a member state of the Council of Europe already benefits from certain guarantees when a measure of expulsion is taken against him, notably those which are afforded by Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life), in connection with Article 13 (right to an effective remedy before a national authority) of the ... Convention ..., as interpreted by the European Commission and Court of Human Rights ...
7. Account being taken of the rights which are thus recognised in favour of aliens, the present article has been added to the ...
Convention ... in order to afford minimum guarantees to such persons in the event of expulsion from the territory of a Contracting
Party. The addition of this article enables protection to be granted in those cases which are not covered by other international
instruments and allows such protection to be brought within the purview of the system of control provided for in the ... Convention ...
16. The European Commission of Human Rights has held in the case of Application No. 7729/76 that a decision to deport a person
does 'not involve a determination of his civil rights and obligations or of any criminal charge against him' within the meaning of Article
6 of the Convention. The present article does not affect this interpretation of Article 6.”
37. The Court therefore considers that by adopting Article 1 of Protocol No. 7 containing guarantees specifically concerning proceedings for the expulsion of aliens the States clearly intimated their intention not to include such proceedings within the scope of Article 6 § 1 of the Convention.
38. In the light of the foregoing, the Court considers that the proceedings for the rescission of the exclusion order, which form the subject matter of the present case, do not concern the determination of a “civil right” for the purposes of Article 6 § 1. The fact that the exclusion order incidentally had major repercussions on the applicant's private and family life or on his prospects of employment cannot suffice to bring those proceedings
within the scope of civil rights protected by Article 6 § 1 of the Convention (see, mutatis mutandis, the Neigel v. France judgment of 17 March 1997, Reports 1997-II, pp. 410-11, §§ 43-44, and the Maillard v. France judgment of 9 June 1998, Reports 1998-III, pp. 1303-04, §§ 39-41).
39. The Court further considers that orders excluding aliens from French territory do not concern the determination of a criminal charge either. In that connection, it notes that their characterisation within the domestic legal order is open to different interpretations. In any event, the domestic legal order's
characterisation of a penalty cannot, by itself, be decisive for determining whether or not the penalty is criminal in nature. Other factors, notably the nature of the penalty concerned, have to be taken into account (see Tyler v. the United Kingdom, application no. 21283/93, Commission decision of 5 April 1994, DR 77, pp. 81-86). On that subject, the Court notes that, in general, exclusion orders are not classified as criminal within the member States of the Council of Europe. Such orders, which in most States may also be made by
the administrative authorities, constitute a special preventive measure for the purposes of immigration control and do not concern the determination of a criminal charge against the applicant for the purposes of Article 6 § 1. The fact that they are imposed in the context of criminal proceedings cannot alter their essentially preventive nature. It follows that proceedings for rescission of such measures cannot be regarded as being in the criminal
sphere either (see, mutatis mutandis, Renna v. France, application no. 32809/96, Commission's decision of 26 February 1997, unreported).
40. The Court concludes that decisions regarding the entry, stay and deportation of aliens do not concern the
determination of an applicant's civil rights or obligations or of a criminal charge against him, within the
meaning of Article 6 § 1 of the Convention.
41. Consequently, Article 6 § 1 is not applicable in the instant case.