Bouchelkia v. France (112/1995/618/708) 27 January 1997: deportation, following criminal conviction for rape, of an Algerian who came to France at age of two and whose mother and nine brothers and sisters were lawfully resident in France
France - deportation, following criminal conviction for rape, of an Algerian who came to France at age of two and whose mother and nine brothers and sisters were lawfully resident in France; illegal return to France, formal declaration of paternity of child of a Frenchwoman whom he married
Article 8 of the Convention
A. Paragraph 1
Question whether applicant had a private and family life within the meaning of Article 8 of the Convention to be considered at time deportation order was made - he was at that point single and had no children as he had only started his own family after the deportation order was made - he was still living with his original family in France where he had lived since the age of two and where he had his main private and family ties.Applicant's deportation in 1990 amounted to an interference in his right to respect for his private and family life.
B. Paragraph 2
1. "In accordance with law"
Not disputed.2. Legitimate aim
Prevention of disorder or crime.3. "Necessary in a democratic society"
Duty of Contracting States to maintain public order, in particular by exercising their right to control entry and residence of aliens and the situation of second generation immigrants - for that purpose entitled to order expulsion of such persons convicted of criminal offences.Applicant, who was twenty years old, single and had no children when the deportation order was executed, had maintained links at material time with his country of origin of which he was a national and where close relations of his lived.
Great importance attached to nature of offence which had given rise to deportation order - authorities could legitimately have considered that applicant's deportation was necessary for prevention of disorder or crime - fact that, after the deportation order was made and while he was still an illegal immigrant, he had built up a new family life did not justify finding, a posteriori, that deportation order made and executed in 1990 had not been necessary.
Conclusion: no violation (eight votes to one).
. "Necessary in a democratic society"
45. The applicant argued that his private and family life, which henceforth included the family started since his return, could only be enjoyed in France. Having arrived at the age of two under the arrangements for family reunion, his culture was French as it was in France that he had received all his education before starting work. Since 1986 he had only returned to Algeria when forced to do so as a result of being deported, but did not speak or read Arabic, having learnt only the rudiments of Kabyle, which he could not write. Since the death of his grandparents in October 1982 and August 1985, he no longer had any close relatives apart from his uncle who had been unable to put him up after he had been deported, whilst his mother had provided for his needs from France. As for the offences which he had committed at the age of seventeen, the psychiatrists had noted his feelings of guilt and a tendency to depression. He had obtained full remission of sentence whilst in prison where he had attended vocational training courses. There was therefore no risk of his re-offending, especially as he now had a new family home and a job in spite of the precariousness of his situation. Lastly, the other two criminal convictions were directly related to his situation as a prisoner and to his position as an illegal immigrant respectively.
46. The Commission considered that the seriousness of the offences committed by Mr Bouchelkia before and after the deportation order was made and the severity of the sentences passed against him were such that the needs of public order had to outweigh private and family considerations. The applicant had maintained fairly significant family ties in his country of origin and his Algerian nationality therefore reflected definite emotional and family links.
47. Adopting the Commission's analysis, the Government stressed the seriousness of the main offence. The subsequent behaviour of the applicant, who had additional convictions for escaping from prison and obstructing a police officer in the execution of his duty, was proof that he was dangerous and held society's laws and codes in contempt. Mr Bouchelkia had real links with his country of origin, whose nationality, moreover, he possessed. He understood the language perfectly well, and had, on his own admission, enormously benefited from his stay in Algeria.
48. 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. For that purpose they are entitled to order the expulsion of such persons 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, 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 following judgments: Beldjoudi v. France, 26 March 1992, Series A no. 234-A, p. 27, § 74; Nasri v. France, 13 July 1995, Series A no. 320-B, p. 25, § 41; Boughanemi v. France, 24 April 1996, Reports of Judgments and Decisions 1996-..., p. ..., § 41; and C. v. Belgium, 7 August 1996, Reports 1996-..., p. ..., § 31).
49. The Court's task is to determine 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.
50. Like the Commission, the Court notes that Mr Bouchelkia, who was twenty years old, single and had no children when the deportation order was executed, maintained links at the material time with his country of origin of which he was a national and where close relatives of his lived. Neither the finding of the Colmar Court of Appeal in 1993 (see paragraph 20 above), nor the fact that the applicant now has a family life which did not exist in 1990, leads the Court to consider that the situation obtaining in 1990 should have been assessed otherwise at the relevant time.
51. Furthermore, the Court attaches great importance to the nature of the offence which gave rise to the deportation order. While it is true that the applicant was a minor aged seventeen when he committed the serious crime (crime) of aggravated rape, that fact, the main relevance of which was to the Juvenile Court's decision as to sentence, does not in any way detract from the seriousness and gravity of such a crime.
52. The authorities could legitimately consider that the applicant's deportation was, at that time, necessary for the prevention of disorder or crime. The fact that, after the deportation order was made and while he was an illegal immigrant, he built up a new family life does not justify finding, a posteriori, that the deportation order made and executed in 1990 was not necessary.
53. Having regard to the above, the Court finds that a fair balance was struck between the relevant interests and that the decision to deport the applicant was not disproportionate to the legitimate aims pursued. There has therefore been no violation of Article 8.