Beldjoudi v. France
| Publisher | Council of Europe: European Court of Human Rights |
| Publication Date | 26 February 1992 |
| Citation / Document Symbol | 55/1990/246/317; 12083/86 |
| Other Languages / Attachments | Greek | Russian |
| Cite as | Beldjoudi v. France, 55/1990/246/317; 12083/86, Council of Europe: European Court of Human Rights, 26 February 1992, available at: https://www.refworld.org/cases,ECHR,4029f4bc4.html [accessed 7 November 2021] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr C. Russo,
Mr A. Spielmann,
Mr J. De Meyer,
Mr N. Valticos,
Mr S.K. Martens,
Mr R. Pekkanen,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 55/1990/246/317. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 12083/86) against the French Republic lodged with the
Commission under Article 25 (art. 25) by Mr Mohand Beldjoudi, an
Algerian citizen, and his wife Mrs Martine Beldjoudi née Teychene, a
French national, on
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby France recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 8 (art. 8), taken either alone or together
with Article 14 (art. 14+8), and Articles 3, 9 and 12 (art. 3, art. 9,
art. 12).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicants stated that
they wished to take part in the proceedings and designated the lawyer
who would represent them (Rule 30).
3. On
of the proper administration of justice, this case should be
considered by the Chamber constituted on
Djeroud case* (Rule 21 para. 6). It included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). The other seven members, whose names had
been drawn by lot, were Mr F. Matscher, Mr J. Pinheiro Farinha,
Sir Vincent Evans, Mr C. Russo, Mr J. De Meyer, Mr N. Valticos and
Mr R. Pekkanen (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43). Subsequently, Mr S.K. Martens and
Mr A. Spielmann, substitute judges, replaced Sir Vincent Evans and
Mr Pinheiro Farinha, who had resigned from the Court and whose
successors had taken up their duties before the hearing (Rules 2
para. 3, 22 para. 1 and 24 para. 1).
_______________
* Note by the Registrar: case no. 34/1990/225/289, struck out of the
list on
no. 191-B).
_______________
4. As President of the Chamber (Rule 21 para. 5) Mr Ryssdal, through
the Registrar, consulted the Agent of the French Government ("the
Government"), the Delegate of the Commission and the lawyer for the
applicants on the organisation of the procedure (Rule 37 para. 1 and
Rule 38). Pursuant to the orders made in consequence, the Registrar
received the applicants' memorial on
Government's memorial on 30 April. On 8 July the Secretary to the
Commission informed him that the Delegate would submit his
observations at the hearing.
5. Counsel for the applicants wrote to the President on
the question whether Mr Beldjoudi would be able to attend the hearing
in person, despite his detention (Article 4 para. 1 (a) of the
European Agreement relating to Persons Participating in Proceedings
before the European Commission and Court of Human Rights).
6. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
There appeared before the Court:
(a) for the Government
Mr J.-P. Puissochet, Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
Mrs E. Florent, Administrative Court Judge,
on secondment to the Department of Legal Affairs,
Ministry of Foreign Affairs,
Mr R. Riera, Head of the Litigation Section,
Department of Civil Liberties and Legal Affairs,
Ministry of the Interior, Counsel;
(b) for the Commission
Mr H. Danelius, Delegate;
(c) for the applicants
Mr B. Donche, avocat, Counsel.
The Court heard addresses by Mr Puissochet for the Government,
Mr Danelius for the Commission and Mr Donche for the applicants, as
well as their replies to its questions.
Mr Beldjoudi was able to attend the hearing in person.
7. At the hearing, the Agent of the Government and the lawyer
representing the applicants produced various documents. On that day
and the following day, the former also provided certain information.
8. On 18 November the Agent supplied further information and
observations, and produced certain documents, as the President had
invited him to do during the hearing.
In a letter received at the registry on 6 December, the lawyer
for the applicants made observations on these documents, and produced
a schedule of costs and fees.
On
AS TO THE FACTS
I. The circumstances of the case
A. Introduction
9. Mr Mohand Beldjoudi, who is a mechanic by profession, is an
Algerian citizen. He was born in France on
(Hauts-de-Seine department). He lived with his parents in the Paris
region until October 1969. His parents were born in Algeria in 1909
and 1926 respectively. That country was a French department at the
time, and became independent on
"Agreements" of
were deemed to have lost French nationality on
a declaration recognising French nationality before
(section 2 of the Order of
Mr Beldjoudi's father arrived in metropolitan France in 1926 and
served in the French army from 1931 to 1955. He subsequently worked
until his retirement in 1970 as an assistant, later a civil servant,
in the Ministry of Public Health and Population Affairs, this being a
post reserved for French nationals. He died in Colombes
(Hauts-de-Seine) in 1986.
Mohand Beldjoudi's mother, who left Algeria in 1948, and four of
his brothers and sisters - all born in metropolitan France prior to
reside in France, where they hold residence permits which are valid
for ten years and are renewable. The youngest sister resumed French
nationality on
10. Mrs Martine Teychene was born in France on
her parents being French. She has French nationality and works as a
secretary.
11. The applicants were married at Colombes on 11 April 1970, after
living together for some time. They live at La Garenne-Colombes
(Hauts-de-Seine); they have no children.
12. Over the years Mr Beldjoudi was convicted and received custodial
sentences as follows:
(a) 27 March 1969, eight months' imprisonment for assault and battery
(Paris Criminal Court);
(b) 29 July 1974, six months' imprisonment for driving a vehicle
without a licence and possession of category one or category four
weapons or ammunition (same court);
(c) 10 January 1976, eighteen months' imprisonment, of which fourteen
months suspended, and four years' probation for theft (Paris Court of
Appeal);
(d) 25 November 1977, eight years' imprisonment for aggravated theft
(Hauts-de-Seine Assize Court);
(e) 28 March 1978, three months' imprisonment for acquisition and
possession of category one or category four weapons or ammunition
(Nanterre Criminal Court);
(f) 4 February 1986, eighteen months' imprisonment, of which ten
months suspended, and five years' probation for assault and battery
and criminal damage (same court).
13. His periods of imprisonment before 1991, pending trial or after
conviction, were as follows:
(a) 20 July - 17 September 1968, one month and twenty-eight days;
(b) 25 August - 8 October 1973, one month and fourteen days;
(c) 3 April - 21 August 1974, four months and eighteen days;
(d) 26 March 1975 - 4 December 1981, six years, eight months and
eight days;
(e) 20 October 1985 - 25 April 1986, six months and five days.
Their total length was almost seven years, ten months and two
weeks.
14. On 17 January 1991 the applicant was detained on remand at
Fleury-Mérogis (Essonne) and his wife was placed under judicial
supervision in Ecos (Eure), both having been charged with aggravated
receiving of stolen property by an investigating judge at the Melun
tribunal de grande instance (Seine-et-Marne).
In a judgment of 23 January 1992 the Indictments Division of the
Paris Court of Appeal ordered Mr Beldjoudi's release subject to
judicial supervision.
B. The deportation proceedings
1. The deportation order
15. The Minister of the Interior had on 2 November 1979 issued a
deportation order against Mr Beldjoudi, on the ground that his
presence on French territory was a threat to public order (ordre
public).
The order, which was in accordance with the opinion of the
Commission on Deportation of Aliens (Commission d'expulsion des
étrangers), was served on the applicant on 14 November 1979 at Melun
Prison.
2. The requests for the order to be withdrawn
16. Mr Beldjoudi requested the Minister of the Interior on five
occasions to withdraw the order. The last request, of 8 August 1984,
was the only one to receive a reply. This was sent to his lawyer
on 4 December 1989 by the Director of the Department of Civil
Liberties and Legal Affairs at the Ministry of the Interior, and read
as follows:
"Following the decision of the European Commission of Human
Rights of 11 July 1989 declaring Mr Beldjoudi's application
admissible [(see paragraph 62 below)], you again drew my
attention to your client's case. You wished in particular to
know whether the Minister might be prepared to consider a
friendly settlement of this matter.
In the light of a careful re-examination of Mr Beldjoudi's case,
the Minister issued a compulsory residence order (arrêté
d'assignation à résidence) on 31 August 1989 for the Hauts-de-
Seine department, where the applicant has his habitual residence.
The residence document issued to him has attached to it
permission to undertake paid work.
This goodwill decision in favour of Mr Beldjoudi, which has been
taken in view of his family ties, may be continued if his conduct
is not in conflict therewith.
I confirm, however, that in view of the seriousness and the
number of the offences committed by Mr Beldjoudi, it has not
appeared possible to revoke the deportation order issued against
him.
..."
17. The compulsory residence order was served in November 1989.
3. The appeal for the order to be set aside
(a) Before the Versailles Administrative Court
18. On 27 December 1979 Mr Beldjoudi appealed to the Paris
Administrative Court for the deportation order to be set aside.
Having been born in France of parents who were themselves French at
the time, he was to be regarded as French and hence not liable to
deportation; further, he had no ties with Algeria and had been married
to a Frenchwoman for nearly ten years.
19. The Conseil d'Etat assigned the case to the Versailles
Administrative Court, within whose local jurisdiction it fell.
20. On 27 November 1980 that court ordered additional investigative
measures: it asked the Minister of the Interior to submit his
observations on the applicant's latest memorial and to produce a copy
of the decree of 16 September 1970 refusing him French nationality
(see paragraph 32 below).
21. In an interlocutory judgment of 14 October 1983 it decided to
adjourn the case until the ordinary courts had decided the question of
Mr Beldjoudi's nationality (see paragraphs 34 and 35 below).
22. On 8 February 1984 Mr Beldjoudi turned down the provisional
residence permit which had been offered to him by the prefecture of
the Hauts-de-Seine department, on the grounds that by accepting it he
would be acknowledging that he was of Algerian nationality.
23. Mr Beldjoudi resumed the proceedings on 20 January 1988,
submitting a supplementary memorial, without waiting for a decision on
his appeal to the Court of Cassation (see paragraph 41 below). He
argued from a law of 9 September 1986, which had amended the second
paragraph of section 25 of the 1945 Order on which the deportation
order was based: having been habitually resident in France from birth,
he could not be the subject of such an order, as he had not been
convicted and sentenced to a term of imprisonment of at least six
months not suspended or one year suspended in respect of offences
committed after the coming into force of that law.
24. On 18 February 1988 Mr Beldjoudi added to his supplementary
memorial. With reference to Article 8 (art. 8) of the Convention, he
maintained that implementation of the said order would be a serious
interference with the respect due to his private and family life; he
pointed out in this connection that he had been married to a
Frenchwoman since 1970, he had been born in France, had lived there
uninterruptedly and had received a French education and upbringing
there.
25. On 21 April 1988 the court dismissed the appeal for the following
reasons:
"Considering that by the order dated 2 November 1979 the Minister
of the Interior, following the opinion of the special commission
set up under section 25 of the Order of 2 November 1945, ordered
the deportation of Mr Beldjoudi, an Algerian citizen, who had
been convicted by a criminal court on 25 November 1977 and
sentenced to eight years' imprisonment for aggravated theft;
Considering that it does not appear from the case-file that the
Minister, in deciding that the presence of Mr Beldjoudi was a
threat to public order and consequently ordering his deportation,
failed to examine all the evidence relating to the applicant's
conduct or assessed that conduct in a manifestly erroneous
manner; and that it is not alleged that this assessment was based
on material errors of fact;
Considering that Mr Beldjoudi is not justified in relying on
provisions emanating from the Declaration of the Rights of Man
and of the Citizen, claiming to this end the benefit of
provisions in section 25 of the Order of 2 November 1945 as
amended in a version subsequent to the decision appealed against;
that having regard to the fact that the measure taken against the
applicant was necessary for public safety, he is not entitled to
take advantage of the provisions of Article 8 (art. 8) of the
European Convention on Human Rights and Fundamental Freedoms;".
(b) Before the Conseil d'Etat
26. Mr Beldjoudi appealed to the Conseil d'Etat on 17 June 1988,
asking it to quash the judgment of 21 April 1988 and set aside the
order of 2 November 1979 as being ultra vires.
27. The Government Commissioner (commissaire du Gouvernement),
Mr Ronny Abraham, made the following submissions:
"The majority of the grounds of appeal should not keep you long.
One of them, however, should induce you to re-examine, and in our
opinion to amend, your case-law on a point which is of
considerable importance.
...
According to the appellant, the deportation order against him is
in breach of Article 8 (art. 8) [of the Convention], as it
constitutes an excessive interference with his family life.
Mr Beldjoudi has been married to a Frenchwoman since
11 April 1970. He had thus been so married for over nine years
at the time of the decision appealed against.
In the current state of your case-law this ground of appeal would
have to be dismissed as ineffective.
Thus in a decision of 25 July 1980, Touami ben Abdeslem, [Recueil
Lebon, tables], p. 820, and JCP [Juris-Classeur périodique]
1981.II.19.613, note Pacteau, your court held that an alien
`cannot to any effect rely on ... the provisions of Article 8
(art. 8) of the Convention for the Protection of Human Rights and
Fundamental Freedoms ... in support of his submissions asking for
the deportation order against him to be set aside'. Making the
same point, but expressed slightly differently, the Chrouki
judgment of 6 December 1985 found that Article 8 (art. 8) of the
European Convention on Human Rights did not prevent exercise of
the power conferred on the Minister of the Interior by section 23
of the Order of 2 November 1945, and dismissed the ground of
appeal without further consideration (appeal no. 55912).
This is the dominant line of your case-law, although there are
also some decisions in which you appear rather to have taken a
position on the merits and circumstances of the case in order to
reject the ground of appeal: the Bahi decision of 6 February
1981, for instance, held that the requirements of Article 8
(art. 8) of the Convention could not in the particular case
prevent a deportation order, but the wording used is too lapidary
to be seen as a real change of direction of your case-law.
Whatever the position may be on these uncertainties, we will
suggest to you today that you definitely abandon the solution
laid down in the Touami ben Abdeslem judgment and adopt an
entirely new approach to the question before us.
There are three principal reasons why we suggest this new
approach to you.
The first reason is a negative one. It is that we do not really
see what can justify the radically unfavourable answer given in
1980.
You surely did not intend to deny Article 8 (art. 8) of the
Convention its character as a provision which is directly
applicable in the domestic legal order. All your case-law is
consistent as to the direct effect of the European Convention on
Human Rights, nor does the actual wording of the Touami judgment
in any way suggest such an interpretation, as Article 8 (art. 8)
was not rejected as such, but only with reference to the removal
of aliens.
Was it your intention rather to apply the technique of the
'screen law', considering that as the law gives a complete and
exclusive definition of the legal conditions for deportation, the
addition of supplementary conditions derived from international
agreements would amount to disregarding the legislature's
intention? If that was the reason for your decision at the time,
it would clearly no longer be applicable today, following your
plenary court decision of 20 October 1989 in the Nicolo case,
according to which treaties take precedence over laws, even if
the laws postdate them. But we doubt whether this was the
explanation of your decision in Touami: the decision related to a
1978 deportation order; but at that time the relevant internal
legislation was not subsequent but prior to France's ratification
of the Convention, and the 'screen law' theory explanation is
thus not tenable.
More simply, it seems probable to us that you considered that a
deportation order was not in itself an interference with the
alien's family life: if the alien has family ties on French
territory, nothing prevents the other members of the family group
leaving France with him. But this is a very theoretical way of
looking at things. It is no doubt correct that in certain cases
there is nothing to prevent the family leaving French territory;
but in other cases, especially if the alien has a spouse or
children of French nationality, it may be difficult on practical
or even legal grounds for the other members of the family to
follow him, with the effect that the expulsion measure
jeopardises the pursuit of an ordinary family life. In any
event, it is in our opinion not possible to state that a
deportation measure can never of itself be capable of interfering
with the family life of the person concerned, and there is no
reason to dismiss a priori as ineffective a ground of appeal
based on Article 8 (art. 8).
There is a second reason which supports us in this view: your
case-law is not at all in harmony with that developed by the
European Court of Human Rights in recent years.
In the Berrehab v. the Netherlands judgment of 21 June 1988 the
Strasbourg Court defined for the first time the possible impact
of Article 8 (art. 8) on expulsion measures against aliens. The
substance of its decision was that where the alien has real
family ties in the territory of the State in which he is resident
and the expulsion measure is such as to jeopardise the
maintenance of those ties, the measure is justified with regard
to Article 8 (art. 8) only if it is proportionate to the
legitimate aim pursued, in other words, if the interference with
family life which follows from it is not excessive with respect
to the public interest to be protected. This balance between the
public and private interests induced the Court to find in the
Berrehab case that there had been a violation of the Convention
by the Netherlands, with respect to an alien who was the father
of a child born of a (dissolved) marriage with a Netherlands
woman and who had been refused renewal of his residence permit
for purely economic reasons, reasons which were indeed
legitimate, but which led in the particular case to consequences
whose seriousness was not proportionate to the public interest
pursued.
Such an intellectual approach ought not to disconcert you, and we
see nothing to prevent you henceforth adopting it as yours with
reference to the deportation of aliens, provided of course that
Article 8 (art. 8) of the Convention is in fact pleaded.
Reviewing proportionality is among your tried and tested
techniques, and the concept of a balance to be struck between
divergent public and private interests is certainly
not unfamiliar to you, since you constantly make use of it in
certain contexts. Admittedly, the field of deportation has until
now been dominated rather by the concept of discretionary power
and its corollary of a limited power of review restricted to
manifest abuse of discretion. But even in this field you carry
out a complete review where the statutory provisions require this
- as in the case of the concepts of 'absolute urgency' and
'compelling necessity for national security' which exceptionally
permit the expulsion of aliens belonging to categories who in
principle are protected against such a measure, under the
legislation in force after 1981 - and in our opinion the same
should apply in the case of the application of Article 8 (art. 8)
of the Convention.
Furthermore - and here we come to our final argument -
maintaining your case-law as in Touami ben Abdeslem would have
the awkward consequence of making appeals to the Strasbourg
institutions directly available to aliens who were the subject of
a deportation order and complained of an interference with their
family life, without their being obliged first to have recourse
to the domestic courts.
For it is a known fact that, according to the consistent case-law
of the European Commission of Human Rights, the rule that
domestic remedies must first be exhausted, which under Article 26
(art. 26) of the Convention is a condition of admissibility of
individual applications submitted to the Commission, must be
understood as imposing on an applicant the obligation only to
have prior recourse to domestic remedies which have a reasonable
chance of success, having regard in particular to the case-law of
the highest courts, with the effect that a definite line of case-
law excluding a priori the taking into account of Article 8
(art. 8) of the Convention would entitle an alien to take his
claims directly to the European institutions.
The present case is a perfect illustration of this. Without
waiting for you to give a decision and hence before having
exhausted all possible domestic remedies, Mr Beldjoudi lodged
with the European Commission of Human Rights an application
complaining of a violation of Article 8 (art. 8) of the
Convention which he claimed to be the victim of. Despite the
proceedings still pending before you, the European Commission of
Human Rights declared the application admissible in a decision of
11 July 1989, referring in particular to your Touami ben Abdeslem
decision.
Further, after adopting its report, the European Commission of
Human Rights referred the application to the European Court of
Human Rights, and the same case is thus simultaneously pending
before you and before the Strasbourg Court, which will no doubt
give a decision this year. This is an exceptional situation,
which cannot be regarded as satisfactory or normal with respect
to the control machinery set up by the European Convention on
Human Rights, which is based on the concept of the subsidiarity
of control by the European institutions to control by the
domestic courts.
The only way to avoid such a situation occurring again, and
indeed to avoid the domestic courts losing jurisdiction
altogether in favour of the European Court, consists in you
yourselves reviewing compliance with Article 8 (art. 8) rather
than leaving this task to the Strasbourg institutions, whom
incidentally you would not be doing a favour by allowing
applicants immediate access to them.
If you agree with us on this question of principle, you will then
have to make a decision on two points in the present case:
firstly, does the deportation of Mr Beldjoudi constitute an
'interference' with his 'right to respect for his family life',
to use the language of Article 8 (art. 8)? Secondly, is this
'interference' necessary and proportionate to the aim pursued, in
the circumstances of the case?
We suggest that you answer both questions in the affirmative.
In our opinion, it cannot be doubted that the deportation of the
applicant jeopardises his family life to a certain extent.
No doubt the possibility cannot be excluded of his French spouse
being able to follow him abroad, which in practice means to
Algeria. But it must be admitted that that would not be easy,
and that legal and practical obstacles could make it difficult
for the couple to restart life abroad.
However, the serious nature of the offences committed by the
applicant appears to us to justify the deportation order issued
against him, and the interference with the applicant's family
life is in the instant case not disproportionate to the threat to
public order which the applicant's presence on French territory
represented on 2 November 1979, the date for you to have
reference to.
We are indeed far removed from the circumstances which gave rise
to the above-mentioned Berrehab judgment.
From 1969, when he was only nineteen years of age, Mr Beldjoudi
committed various offences for which he received various
convictions: assault and battery, driving a vehicle without a
licence, carrying a prohibited weapon.
Above all, on 5 February 1975 he gained entry at night, together
with accomplices, to the residence of two people who were
subjected to violence by the criminals in order to steal their
savings. For these acts the applicant was convicted on 25
November 1977 and sentenced to eight years' imprisonment for
aggravated theft.
In these circumstances, the decision taken with respect to him in
1979 does not appear to us to have been disproportionate to the
aim pursued, or to be excessive even having regard to the family
consequences it has for the applicant.
In one pan of the scales one must place the public interest in
the removal of an individual who is a serious threat to the
safety of persons and property. In the other pan one must bear
in mind the difficulties Mr Beldjoudi and his wife (the couple
have no children) would have in resettling abroad without
damaging their family life. It seems to us that the balance is
tilted towards the public interest.
We would not have any doubt in reaching this conclusion, had not
the European Commission of Human Rights - as it is now necessary
to mention - adopted an opposite position, in the report it drew
up on this case under Article 31 para. 1 (art. 31-1) of the
Convention and which it referred to the Court together with the
application.
The Commission was of the opinion, by twelve votes to five, that
the deportation of Mr Beldjoudi constituted a violation of
Article 8 (art. 8).
The greatest regard must of course be had to such an opinion, but
it must, however, not be forgotten that it is only an opinion,
albeit a highly authoritative one and deserving of respect, as
the Commission in a sense fulfils for the Court the same function
as the Government Commissioner before your court; this is a
sufficient indication of its importance, but the Court is not
obliged to follow it; and in the past the Court has on several
occasions differed from the Commission's opinion.
We for our part are unable to agree with the Commission's
reasoning. It is clear from reading its report that it based
itself not so much on Mr Beldjoudi's matrimonial ties, as on the
fact that the applicant was born in France, has always lived
there, appears not to have personal ties with Algeria, and does
not know the Arabic language and that, in the words of the
Commission, 'the nationality link, though a legal reality, in no
way reflects the real situation in human terms' (see paragraph 64
of the report).
We appreciate the significance in human terms of these facts.
Under the post-1981 legislation they might perhaps have protected
Mr Beldjoudi against deportation, despite the seriousness of the
offences committed by him. But they appear to us to have nothing
to do with the concept of 'family life' protected by Article 8
(art. 8), or with that of 'private life', which two members of
the Commission, in a concurring but separate opinion annexed to
the report, suggested as a better basis for a finding of a
violation of Article 8 (art. 8).
In fact, what the Commission intended to protect was not the
applicant's 'family life' or 'private life' but rather his
personal life and social life. But that seems to us to be
outside the scope of the Article relied on.
We add for the sake of completeness of information that the
deportation of Mr Beldjoudi has not actually been enforced and
that the authorities have, in a spirit of conciliation, assigned
him to compulsory residence in the Hauts-de-Seine department,
where he still is.
For all these reasons, we submit that the appeal should be
dismissed."
28. On 18 January 1991 the Conseil d'Etat ruled in accordance with
the above submissions, and gave the following reasons for its
decision:
"The technical correctness of the judgment appealed against
Considering, firstly, that contrary to what the appellant
maintains, the judgment appealed against did not omit to rule on
the ground of appeal based on the application of section 25 of
the Order of 2 November 1945;
Considering, secondly, that it follows from a judgment of the
Versailles Court of Appeal of 14 October 1987, given prior to the
judgment appealed against, that the appellant is of Algerian
nationality; that the Administrative Court was thus rightly able
to regard the question of nationality, on which it had by an
earlier judgment adjourned a decision, as having been settled and
to give no decision on the ground of appeal based on
Mr Beldjoudi's French nationality, abandoned by him;
The lawfulness of the Minister of the Interior's order
of 2 November 1979
Considering that Mr Beldjoudi, who did not raise any ground of
appeal before the Administrative Court relating to the outward
legality of the order for his deportation, is in any event not
entitled to raise for the first time on appeal arguments based on
the lack of reasons in the opinion of the Commission on
Deportation, the order pronouncing deportation and the letter
notifying it, which are based on legal grounds different from
those on which his application at first instance was based;
Considering that according to section [23] of the Order of
2 November 1945, in the wording in force at the time of the
decision appealed against, prior to the Law of 29 October 1981,
'deportation may be ordered by an order of the Minister of the
Interior if the alien's presence on French territory constitutes
a threat to public order or public finance'; that it can be seen
from the documents in the case-file that the aforesaid measure
was taken by the Minister of the Interior after he had taken into
consideration not only the criminal convictions pronounced
against Mr Beldjoudi but also the totality of Mr Beldjoudi's
conduct; that it is thus not tainted by error of law;
Considering that under Article 8 (art. 8) of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms, '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'; that the measure appealed
against, based on the defence of public order, was necessary for
the defence of that order in view of the applicant's conduct and
the seriousness of the offences committed by him; that in these
circumstances it was not in violation of Article 8 (art. 8) of
the said Convention;
Considering that it follows from the foregoing that Mr Beldjoudi
is not justified in requesting the quashing of the judgment
appealed against, by which the Versailles Administrative Court
dismissed his claim that the order of the Minister of the
Interior of 2 November 1979, requiring him to leave French
territory, be set aside;" (Recueil Lebon 1991, p. 18)
4. The applications for a stay of execution
29. On 27 December 1979 Mr Beldjoudi had lodged with the registry of
the Conseil d'Etat an application for a stay of execution. It was
dismissed by the court on 16 May 1980, on the grounds that "none of
the arguments relied on appear[ed] such as to justify withdrawal of
the deportation order".
30. While his appeal for the order to be set aside was pending before
the Versailles Administrative Court (see paragraphs 18-25 above), the
applicant twice requested a stay of execution. The requests, which
were registered on 26 March 1986 and 22 February 1988, were joined to
the merits of the case and dismissed on 21 April 1988 (see
paragraph 25 above).
C. The applications for resumption or recognition of
French nationality
1. The application for resumption
31. On 1 April 1970, eleven days before his marriage, Mr Beldjoudi
made a declaration before the Colombes tribunal d'instance with a view
to resumption of French nationality. He relied on section 3 of the
Law of 20 December 1966, which allowed such a right to minor children
born before 1 January 1963 whose parents had not made such a
declaration.
32. A prime ministerial Decree, adopted on 16 September 1970 in
accordance with the opinion of the Conseil d'Etat and served on
3 February 1972, refused him recognition of French nationality
(section 4 of the Decree of 27 November 1962).
33. The applicant was at his request registered with the 1973 intake,
and on 7 July 1971 at Blois he was given a certificate of fitness for
national service, issued by the commanding officer of the French Army
selection centre no. 10. He did not do the said military service,
however, as the commanding officer of the Versailles recruitment
office had deleted his name from the register on 25 June 1971.
2. The application for recognition
(a) Before the Colombes tribunal d'instance
34. On 17 June 1983 Mr Beldjoudi submitted a declaration of
nationality to the Colombes tribunal d'instance, accompanying it by
supporting documents. He claimed that he had enjoyed uninterrupted
ostensible possession (possession d'état) of French status.
35. On 15 July the judge sent the file back to the applicant's
lawyer, informing him that the applicant should apply to the
prefecture of the Hauts-de-Seine department with a request for
naturalisation.
36. On 21 December Mr Beldjoudi asked the judge in question to issue
him with a certificate of French nationality. In an opinion of
28 December the judge declined, as the evidence produced was not
sufficient to prove that the applicant enjoyed French nationality.
(b) Before the Nanterre tribunal de grande instance
37. On 17 January 1984 the applicant started proceedings against the
procureur de la République in the Nanterre tribunal de grande
instance, in order to have his French nationality recognised.
38. The court dismissed the claim on 15 December 1985, on the grounds
that the applicant had lost French nationality on 1 January 1963,
pursuant to the second paragraph of section 1 of the Law of
20 December 1966 (see paragraph 58 below).
(c) Before the Versailles Court of Appeal
39. Mr Beldjoudi appealed against the judgment to the Versailles
Court of Appeal on 7 March 1986. He maintained that his father had
not passed on to him anything which would allow him to claim an
Algerian identity as to culture and language, that the Islamic
religion was foreign to him, that he had ostensible possession of
French status, and that the challenge to his French nationality on the
basis of his Islamic status represented a discriminatory interference
with his freedom of conscience and his right to lead a normal family
life, in manifest breach of Articles 3, 8, 9, 12 and 14 (art. 3,
art. 8, art. 9, art. 12, art. 14) of the Convention.
40. The Court of Appeal dismissed his appeal on 14 October 1987. It
gave the following reasons for its decision:
"Considering that civil status is transmitted by descent; that a
child born of two parents with special civil status (statut civil
de droit local) possesses that status; that prior to Algerian
independence Mr Beldjoudi senior did not, as he could have done,
declare that he renounced his personal special civil status in
order to acquire normal civil status (statut civil de droit
commun); that the fact that Mr Mohand Beldjoudi had Islamic
special civil status concerned only the rules applicable to the
exercise of his civil rights and respected his freedom of
religious conviction and did not require him to adhere to the
Islamic religion; that, contrary to his claims, Mr Beldjoudi
cannot claim for himself and his father ostensible possession of
French status when, according to a letter from the Prefect and
Commissioner of the Republic for the Department of Hauts-de-Seine
dated 4 June 1984, his father, brothers and sisters have all for
many years been holders of Algerian national identity cards and
aliens' residence permits, and he himself has never since
Algerian independence held documents such as a French national
identity card or a French passport providing evidence of his
ostensible possession of French status, but was the subject of a
deportation order on 2 November 1979 which has apparently
not prevented him up to now leading a normal family life in
France; that accordingly the final ground of appeal he relies on,
based on ostensible possession of French status and a violation
of the European Convention on Human Rights, which was moreover
not in force when he lost French nationality, must be dismissed;"
The decision was served on the applicant on 20 July 1989.
(d) Before the Court of Cassation
41. Mr Beldjoudi had appealed on 15 February 1989. The appeal was
dismissed by the Court of Cassation (First Civil Division) on
12 March 1991 for the following reasons:
"Whereas according to the recitals of the judgment appealed
against (Versailles, 14 October 1987), Mr Mohand Beldjoudi, born
at Courbevoie on 23 May 1950, the son of Seghir Beldjoudi, born
on 9 April 1909 at Sidi-Moufouk (Algeria), and Hanifa Khalis,
born in 1926 at Elflaya (Algeria), brought proceedings in order
to have his French nationality recognised; and whereas his
application was dismissed on the grounds that, being aged under
eighteen on the coming into force of Order no. 62-825 of
21 July 1962, he had, as regards the effect of the independence
of Algeria on his nationality, followed the status of his
parents, who were natives of that territory and had special civil
status, and, not having benefited from the collective effect of a
declaration recognising French nationality made by his father at
the appropriate time, he was deemed to have lost French
nationality on 1 January 1963, in accordance with paragraph 2 of
section 1 of Law no. 66-945 of 20 December 1966;
Whereas Mr Beldjoudi complains that the judgment appealed against
reached its decision on an invalid ground, namely that review of
the constitutionality of the Law of 20 December 1966 was not a
matter for the ordinary courts, in dismissing his ground of
appeal based on the fact that the said Law was contrary to the
provisions of Article 5 (d) (iii) of the International Convention
of 7 March 1966 on the Elimination of All Forms of Racial
Discrimination, ratified by France and published in the Official
Journal of 10 November 1971, which prohibited all discrimination
based on origin, especially ethnic origin, in the granting or
withdrawing of nationality of the citizens of member States;
But whereas the judgment appealed against held that Law no. 66-
945 of 20 December 1966 based itself, in order to regulate the
consequences for nationality of Algerian independence, on the
civil status of persons originating from that territory and not
on criteria prohibited by the aforesaid convention;
It follows that the judgment does not warrant the criticism made
of it by the ground of appeal, which cannot be upheld;"
II. Relevant domestic law
A. Deportation of aliens
42. Deportation of aliens is governed by the provisions of the Order
of 2 November 1945 relating to the conditions of entry and residence
of aliens in France. The wording of the Order has been amended on
several occasions, including amendments subsequent to 2 November 1979,
the date when the ministerial order relating to the applicant was
issued (see paragraph 15 above). The legislation in question did not
include any transitional provisions.
1. Grounds for deportation
(a) The position in 1979
43. In 1979, section 23 of the 1945 Order read as follows:
"... deportation may be ordered by an order of the Minister of
the Interior if the alien's presence on French territory
constitutes a threat to public order or public finance."
(b) The situation after 1979
44. Section 23 was amended by a Law of 29 October 1981, under which
deportation was now subject to the existence of a "serious threat to
public order".
Section 26 of the new Law, however, provided for a derogation,
except in the case of aliens under eighteen years of age:
"In the event of absolute urgency ..., deportation may be ordered
where it constitutes a compelling necessity for the security of
the State or for public safety.
..."
45. These rules were altered by a Law of 9 September 1986.
Section 23 resumed its original wording, that of 1945. It added,
however, that "the deportation order [could] be revoked at any time by
the Minister of the Interior".
As for section 26, it stated that "a threat [to public order]
having a particularly serious character" could in the event of
absolute urgency justify deportation.
46. A Law of 2 August 1989 reintroduced the 1981 provisions.
47. The Minister of the Interior issued 383 deportation orders in
1990. Of these, 101 were based on section 26 of the 1945 Order,
54 relating to ordinary criminal offences and 47 to offences against
the external or internal security of the State.
2. Persons liable to deportation
(a) The position in 1979
48. The 1945 Order did not define any categories of persons who were
protected against all deportation measures.
(b) The position after 1979
49. By contrast, after being amended by the Law of 29 October 1981,
section 25 of the Order stated:
"The following may not be the subject of a deportation order
under section 23:
1. An alien under eighteen years of age;
2. An alien who proves by any means that he has habitually
resided in France since attaining the age of ten years at the
most;
3. An alien who proves by any means that he has habitually
resided in France for over fifteen years, and also an alien who
has lawfully resided in France for over ten years;
4. An alien who has been married for at least six months and
whose spouse is of French nationality;
5. An alien who is the father or mother of a French child
residing in France, provided that he exercises parental authority
(at least in part) with respect to that child or is actually
meeting his needs;
6. An alien who is the beneficiary of a pension in respect of an
accident in employment or occupational illness paid by a French
organisation, and whose permanent disability percentage is
greater than or equal to 20%;
7. An alien lawfully residing in France under one of the
residence documents provided for by the present Order or
international agreements, and who has not been definitively
convicted and sentenced to a penalty equivalent at least to one
year's non-suspended imprisonment.
However, as a derogation from no. 7 above, any alien who has been
definitively convicted and sentenced to a penalty of non-
suspended imprisonment for any length of time for an offence
under sections 4 and 8 of Law no. 73-548 of 27 June 1973 on
multiple occupation, Article L.364-2-1 of the Code of Employment
or Articles 334, 334-1 and 335 of the Criminal Code, may be
deported.
..."
50. The Law of 9 September 1986 restricted the categories of non-
deportation, but the Law of 2 August 1989 returned to the 1981
legislation.
3. Enforcement of deportation
51. Deportation is regarded in French law as a police measure, not a
criminal sanction. An alien affected does not benefit from the
retrospective effect of the more favourable later provisions. He can
thus not rely on them in support of an application for a decision
concerning him to be set aside.
52. Once a deportation order has been issued by the Minister of the
Interior, it remains in force indefinitely. The alien concerned may
at any time, as often as he wishes, request that it be revoked.
53. If the alien has been absent from French territory for over five
years and wishes to obtain such revocation, his request is considered
by a committee which consists of judges only. If the committee finds
in his favour, its opinion is binding on the Minister.
54. It frequently happens that the Minister of the Interior waives
enforcement of a deportation order while nevertheless declining to
revoke it. In such cases a compulsory residence order is issued in
respect of the alien, in the hope of his reintegration into society.
If he continues to disturb public order, he may be deported. This is
then a fresh decision, separable from the order and itself capable of
being challenged before the administrative court judge.
If the matter is referred to the judge, he considers the
behaviour of the person concerned during the period when his presence
on French territory has been tolerated. In order to assess the
lawfulness of the measure, he thus considers the facts as they are at
the date when he takes his decision.
4. The case-law of the Conseil d'Etat
55. For a period of some ten years the Conseil d'Etat considered
arguments based on Article 8 (art. 8) of the Convention to be of no
effect as against a deportation order (see for example the Touami ben
Abdeslem judgment of 25 July 1980, Recueil Lebon 1980, p. 820, and
Juris-Classeur périodique 1981, jurisprudence, no. 19613, with note by
Mr Bernard Pacteau, and the Chrouki judgment of 6 December 1985).
The Beldjoudi judgment of 18 January 1991 (see paragraph 28
above) marks the abandonment of this line of case-law. Instead of
reviewing whether there has been a manifest error of discretion with
reference only to the threat to public order, the court now carries
out a complete review of proportionality, and this has sometimes led
to the setting aside of deportation orders (see for example the
Belgacem judgment of 19 April 1991 (plenary court), with submissions
by Government Commissioner Mr Ronny Abraham, Revue française de droit
administratif 1991, pp. 497-510, and the Hadad judgment of 26 July
1991 (the President of the Judicial Division), to be reported in the
Recueil Lebon).
B. Acquisition of French nationality
1. Recognition of nationality
(a) The Law of 28 July 1960
56. The Law of 28 July 1960 inserted into the Code of Nationality a
Part VII, "Recognition of French Nationality".
It was limited to overseas territories (TOM), and introduced a
new method for certain categories of "domiciled persons" and their
descendants to have their French nationality recognised, subject to
the two conditions of settling on French territory and making a
declaration.
(b) The Order of 21 July 1962
57. Algeria did not have the status of a TOM when it gained
independence. This induced the French legislature to enact the Order
of 21 July 1962 relating to various provisions on nationality.
Under this Order persons of normal civil status, and persons of
special civil status who had not been granted Algerian nationality
under Algerian law, kept their French nationality as of right.
With respect to other persons of special civil status - the
category to which the applicant's family belonged - section 21
provided that as from 1 January 1963 they and their children would not
be able to establish their French nationality except by showing that
they had made a declaration of "recognition of French nationality".
(c) The Law of 20 December 1966
58. The Law of 20 December 1966 terminated the application of the
1962 Order as from 21 March 1967. It brought about the loss of
French nationality in the absence of a declaration of recognition.
Paragraph 2 (c) of section 1 of the Law stated that:
"Persons of special civil status of Algerian origin who have not
by that date made the declaration provided for in Article 152 of
the Code of Nationality shall be deemed to have lost French
nationality on 1 January 1963. However, persons of special civil
status of Algerian origin shall keep French nationality as of
right if no other nationality has been conferred on them after
3 July 1962."
Section 3 nevertheless offered minor children born before
1 January 1963 - such as the applicant - the possibility of resuming
French nationality where the parent whose nationality they had taken
had not made the declaration of recognition.
(d) The Law of 9 January 1973
59. The Law of 9 January 1973 abolished recognition and deleted this
word from the Code of Nationality. Part VIII of the Code, completely
rewritten, laid down for the future special conditions for resumption
of nationality for certain categories of persons who had lost French
nationality following the gaining of independence by their country.
2. Naturalisation
60. Naturalisation is granted by decree. It may be granted inter
alia to "nationals or former nationals of territories or States over
which France has exercised sovereignty or a protectorate or a mandate
or trusteeship" (paragraph 5 of Article 64 of the Code of
Nationality).
However, "an alien who has been the subject of a deportation
order or a compulsory residence order shall not be eligible for
naturalisation unless such order has been revoked in the form in which
it was issued" (first paragraph of Article 65). In addition, "no one
may be naturalised if he is not of good character and morals or if he
has been convicted of one of the offences mentioned in Article 79 ..."
(Article 68).
PROCEEDINGS BEFORE THE COMMISSION
61. In their application (no. 12083/86) lodged with the Commission on
28 March 1986 Mr and Mrs Beldjoudi alleged that the deportation order
against Mr Beldjoudi violated several provisions of the Convention:
Article 8 (art. 8), by infringing their right to respect for their
private and family life; Article 3 (art. 3), as the probable refusal
of the Algerian authorities to issue Mr Beldjoudi with a passport
allowing him to leave Algeria would constitute inhuman and degrading
treatment; Article 14 in conjunction with Article 8 (art. 14+8), by
discriminating on the grounds of Mr Beldjoudi's religious beliefs or
ethnic origin; Article 9 (art. 9), by interfering with their freedom
of thought, conscience and religion; and Article 12 (art. 12), by
infringing their right to marry and to found a family.
62. The Commission declared the application admissible on
11 July 1989. In its report of 6 September 1990 (Article 31)
(art. 31), it expressed the opinion:
(a) that the deportation of Mr Beldjoudi would violate his and his
spouse's right to respect for their family life within the meaning of
Article 8 (art. 8) (twelve votes to five), but would not violate
Article 3 (art. 3) (unanimously);
(b) that there had not been a failure to comply with the requirements
of Article 14 in conjunction with Article 8 (art. 14+8) (unanimously)
or with those of Articles 9 and 12 (art. 9, art. 12) (unanimously).
The full text of the Commission's opinion and of the two separate
opinions contained in the report is reproduced as an annex to this
judgment*.
_______________
* Note by the Registrar: For practical reasons this annex will appear
only with the printed version of the judgment (volume 234-A of Series
A of the Publications of the Court), but a copy of the Commission's
report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
63. In their memorial the Government asked the Court "to hold that
in the present case there [had] not been a violation of Article 8
(art. 8) of the Convention, or of the other Articles relied on by the
applicants".
64. Counsel for the applicants made the following final submissions:
"Mr and Mrs Beldjoudi ask the Court:
to hold that the deportation order issued against
Mr Mohand Beldjoudi by the French Government on 2 November 1979
constitutes a violation both of Article 8 (art. 8) of the ...
Convention ... and of Article 8 in conjunction with Article 14
(art. 14+8) of the said Convention.
Should the French Government not put an end to this violation
without delay, Mr and Mrs Beldjoudi ask that France be ordered to
pay them, as compensation for the damage resulting from these
violations, the sum of 10,000,000 French francs as damages and
the sum of 100,000 French francs as reimbursement of
irrecoverable costs incurred for the defence of their interests
before the European Commission and Court of Human Rights."
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)
65. The applicants claimed that the decision to deport Mr Beldjoudi
interfered with their private and family life. They relied on
Article 8 (art. 8) of the Convention, which reads 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."
This claim was disputed by the Government, but the Commission
agreed with it, at least with regard to family life.
A. Paragraph 1 of Article 8 (art. 8-1)
66. The Government initially expressed doubt as to the existence of a
real family life linking Mr Beldjoudi on the one hand and his parents,
brothers and sisters and his wife on the other hand. They did not
repeat this point before the Court.
67. The Court merely notes, in agreement with the Commission, that
enforcement of the deportation order would constitute an interference
by a public authority with the exercise of the applicants' right to
respect for their family life, as guaranteed by paragraph 1 of
Article 8 (art. 8-1).
B. Paragraph 2 of Article 8 (art. 8-2)
68. It must therefore be determined whether the expulsion in issue
would comply with the conditions of paragraph 2 (art. 8-2), that is to
say, whether it would be "in accordance with the law", directed
towards one or more of the legitimate aims listed, and "necessary" for
the realisation of those aims "in a democratic society".
1. "In accordance with the law"
69. The Court, in agreement with those appearing before it, takes
note that the ministerial order of 2 November 1979 was based on
section 23 of the Order of 2 November 1945 relating to the conditions
of entry and residence of aliens in France (see paragraph 43 above).
It was also found to be lawful by the Conseil d'Etat in its judgment
of 18 January 1991 (see paragraph 28 above).
2. Legitimate aim
70. The Government and the Commission considered that the
interference in issue was directed at aims which were entirely in
accordance with the Convention, the "prevention of disorder" and the
"prevention of crime". The applicants did not dispute this.
The Court reaches the same conclusion.
3. "Necessary in a democratic society"
71. The applicants argued that the deportation of Mr Beldjoudi could
not be regarded as "necessary in a democratic society".
They relied on a number of circumstances. Thus, Mr Beldjoudi was
born in France of parents who originated from a territory which was
French at the time, namely Algeria; he had always lived in France, as
had his brothers and sisters (see paragraph 9 above); he stated that
he did not know Arabic, and had received a French education and
upbringing; he had married a Frenchwoman in 1970 (see paragraphs 10-11
above), who would be forced to go into exile from her own country in
order not to be separated from her husband; he claimed to have had
ostensible possession of French status until 3 February 1972, when he
was served with the prime ministerial decree refusing to recognise his
French nationality (see paragraph 32 above); the Prefect of Hauts-de-
Seine had early in 1984 offered him a temporary residence permit (see
paragraph 22 above) and the Minister of the Interior had issued a
compulsory residence order in his favour on 31 August 1989 (see
paragraph 16 above); he would not have been liable to deportation if
the Laws of 29 October 1981 and 9 September 1986 had entered into
force earlier (see paragraphs 44 and 45 above).
In short, Mr Beldjoudi - who does not regard himself as a "second
generation immigrant" - and his wife claimed that all their family
ties, social links, cultural connections and linguistic ties were in
France. They claimed that there were no exceptional circumstances
which could justify deportation.
72. The Commission agreed in substance with this argument, but
attached particular weight to two additional factors. Firstly,
Mrs Beldjoudi might have good grounds for not following her husband to
Algeria, especially as she had reason to believe at the time of her
marriage that she would be able to continue living with him in France.
Secondly, the offences committed by Mr Beldjoudi - both before and
after the deportation order - were ultimately not of such a type that
the requirements of public order should outweigh considerations of a
family nature.
73. The Government's first argument was based on the nature of the
facts justifying the deportation. They stressed the large number and
serious nature of the offences committed by Mr Beldjoudi, all of them
during his adult life, over a period of fifteen years (see
paragraph 12 above). They also noted the severity of the sentences
passed by the French courts, in particular by the Hauts-de-Seine
Assize Court for an offence classified as a serious crime (see
paragraph 12 above); they totalled over ten years in prison. Finally,
they pointed out that Mr Beldjoudi had continued with his life of
crime even after being served with the deportation order, and that he
was currently detained on remand, charged with a fresh offence (see
paragraphs 12 and 14 above). In short, the dangerous character of
Mr Beldjoudi meant that his presence on French territory could not be
tolerated by the community.
The Government also considered that the extent of the
interference complained of should not be exaggerated. Only the family
life of the applicants as spouses was relevant, as Mr Beldjoudi had
not lived with his parents since 1969 and did not contribute to the
maintenance of his brothers and sisters; furthermore, the couple had
no children. But the applicants had had to separate for long periods
because of Mr Beldjoudi's terms of imprisonment. Moreover,
Mr Beldjoudi had not shown that his wife would be unable to accompany
him to Algeria (a State which had preserved numerous ties with France)
or a third country, if he were in fact compelled to leave French
territory. In short, the difficulties of resettling outside France
without destroying family life would not be insurmountable.
74. 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, residence and expulsion of
aliens (see the Abdulaziz, Cabales and Balkandali v. the United
Kingdom judgment of 28 May 1985, Series A no. 94, p. 34, para. 67, the
Berrehab v. the Netherlands judgment of 21 June 1988, Series A
no. 138, pp. 15-16, §§ 28-29, and the Moustaquim v. Belgium judgment
of 18 February 1991, Series A no. 193, p. 19, para. 43).
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.
75. In the present case, as was rightly emphasised by the Government,
Mr Beldjoudi's criminal record appears much worse than that of
Mr Moustaquim (see the above-mentioned judgment, Series A no. 193,
p. 19, para. 44). It should therefore be examined whether the other
circumstances of the case, relating to both applicants or to one of
them only, are enough to compensate for this important fact.
76. The applicants lodged a single application and raised the same
complaints. Having regard to their age and the fact that they have no
children, the interference in question primarily affects their family
life as spouses, as the Government rightly pointed out.
They were married in France over twenty years ago and have always
had their matrimonial home there. The periods when Mr Beldjoudi was
in prison undoubtedly prevented them from living together for a
considerable time, but did not terminate their family life, which
remained under the protection of Article 8 (art. 8).
77. Mr Beldjoudi, the person immediately affected by the deportation,
was born in France of parents who were then French. He had French
nationality until 1 January 1963. He was deemed to have lost it on
that date, as his parents had not made a declaration of recognition
before 27 March 1967 (see paragraph 9 above). It should not be
forgotten, however, that he was a minor at the time and unable to make
a declaration personally. Moreover, as early as 1970, a year after
his first conviction but over nine years before the adoption of the
deportation order, he manifested the wish to recover French
nationality; after being registered at his request in 1971, he was
declared by the French military authorities to be fit for national
service (see paragraphs 31 and 33 above).
Furthermore, Mr Beldjoudi married a Frenchwoman. His close
relatives all kept French nationality until 1 January 1963, and have
resided in France for several decades.
Finally, he has spent his whole life - over forty years - in
France, was educated in French and appears not to know Arabic. He
does not seem to have any links with Algeria apart from that of
nationality.
78. Mrs Beldjoudi for her part was born in France of French parents,
has always lived there and has French nationality. Were she to follow
her husband after his deportation, she would have to settle abroad,
presumably in Algeria, a State whose language she probably does not
know. To be uprooted like this could cause her great difficulty in
adapting, and there might be real practical or even legal obstacles,
as was indeed acknowledged by the Government Commissioner before the
Conseil d'Etat (see paragraph 27 above). The interference in question
might therefore imperil the unity or even the very existence of the
marriage.
79. Having regard to these various circumstances, it appears, from
the point of view of respect for the applicants' family life, that the
decision to deport Mr Beldjoudi, if put into effect, would not be
proportionate to the legitimate aim pursued and would therefore
violate Article 8 (art. 8).
80. Having reached this conclusion, the Court need not examine
whether the deportation would also infringe the applicants' right to
respect for their private life.
II. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8
(art. 14+8)
81. In view of the finding in paragraph 79 above, the Court does not
consider it necessary also to examine the complaint that the
applicants would, if Mr Beldjoudi were deported, suffer discrimination
contrary to Article 14 (art. 14) in the enjoyment of their right to
respect for their family life.
III. ALLEGED VIOLATION OF ARTICLES 3, 9 AND 12 (art. 3, art. 9
art. 12)
82. The applicants also relied on Articles 3, 9 and 12 (art. 3,
art. 9, art. 12) before the Commission.
These complaints were not mentioned before the Court, which does
not consider it necessary to examine them of its own motion.
IV. APPLICATION OF ARTICLE 50 (art. 50)
83. Under Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party."
Pursuant to this Article (art. 50), the applicants claimed
compensation for loss and reimbursement of costs.
84. No breach of Article 8 (art. 8) has as yet occurred.
Nevertheless, the Court having found that the Minister's decision to
deport Mr Beldjoudi would, if implemented, give rise to such a breach,
Article 50 (art. 50) must be taken as applying to the facts of the
present case (see, mutatis mutandis, the Soering v. the United Kingdom
judgment of 7 July 1989, Series A no. 161, p. 49, para. 126).
A. Damage
85. Mr and Mrs Beldjoudi alleged that they had suffered damage
because of the failure to comply with the requirements of the
Convention, and claimed 10,000,000 French francs.
The Government considered this figure to be entirely
unprecedented and in any case completely unjustified, as the
deportation order had not been enforced.
The Delegate of the Commission also considered the claim to be
excessive. He suggested, however, that a reasonable sum should be
awarded in respect of non-pecuniary damage; this should be less than
that awarded to Mr Moustaquim, who had been obliged to live outside
Belgium for some years after being deported.
86. The applicants must have suffered non-pecuniary damage, but the
present judgment provides them with sufficient compensation in this
respect.
B. Costs and expenses
87. Mr and Mrs Beldjoudi sought reimbursement of the costs and
expenses allegedly incurred by them during the proceedings before the
Convention institutions, namely 100,000 French francs.
The Government argued that the account submitted by counsel for
the applicants was excessively vague. However, a sum of 40,000 francs
would be acceptable, in the absence of special circumstances duly
proved.
88. Having regard to the detailed information subsequently provided,
the Court considers it reasonable to award 60,000 French francs under
this head.
FOR THESE REASONS THE COURT
1. Holds by seven votes to two that, in the event of the decision to
deport Mr Beldjoudi being implemented, there would be a violation
of Article 8 (art. 8) with respect to both applicants;
2. Holds by eight votes to one that it is not necessary also to
consider the case from the point of view of Article 14 in
conjunction with Article 8 (art. 14+8), or of Articles 3, 9 and
12 (art. 3, art. 9, art. 12);
3. Holds unanimously that with respect to the non-pecuniary damage
suffered by the applicants the present judgment constitutes in
itself sufficient just satisfaction for the purposes of
Article 50 (art. 50);
4. Holds unanimously that the respondent State is to pay to the
applicants within three months 60,000 (sixty thousand) French
francs for costs and expenses;
5. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 26 March 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the following
separate opinions are annexed to this judgment:
(a) dissenting opinion of Mr Pettiti;
(b) separate opinion of Mr De Meyer;
(c) dissenting opinion of Mr Valticos;
(d) concurring opinion of Mr Martens.
Initialled: R.R.
Initialled: M.-A.E.
DISSENTING OPINION OF JUDGE PETTITI
(Translation)
Unlike the majority, I have not voted in favour of a violation of
Article 8 (art. 8).
To be sure, the effect of the judgment is confined to the
particular case and to the special circumstances: Mr Beldjoudi has
spent forty-one years of his life to date in France and has been
married to a Frenchwoman for twenty-two years. But it seems to me
that neither the reasoning on the principle nor the grounds given for
the decision are consistent with a precise construction and evaluation
of Article 8 (art. 8) of the European Convention, with reference to
the deportation of aliens who have committed crimes.
The majority have indeed taken into account the fact that the
deportation order was issued on 2 November 1979, before the
convictions of 28 March 1978 and 4 December 1986; but they also seem
to have accepted as additional criteria or reasons the authorities'
refusal in 1970 to grant Mr Beldjoudi the French nationality sought by
him, and also the absence of links with Algeria. They consider that
deportation would not be proportionate to the legitimate aim, without
giving adequate specifications of the extent of that proportionality
in reply to the distinctions drawn by the Conseil d'Etat.
The Convention does not limit the sovereign right of States to
decide to deport from their territory aliens who have committed
crimes.
The right of an alien to reside on the territory of a High
Contracting Party is not guaranteed as such by the Convention.
Similarly, the right of asylum and the right not to be deported do not
appear as such in the series of rights and freedoms guaranteed by the
Convention (this is stated in several decisions of the Commission).
Only in exceptional circumstances can expulsion mean a violation
of the Convention, for example if there is a very serious risk of
treatment contrary to Article 3 (art. 3) in the destination State,
especially where there is no possibility of deportation to some other
democratic State. The Moustaquim judgment had a different context, as
it concerned a young adolescent who had no roots outside the country
where his family lived, and who had been reintegrated into society.
In the present Beldjoudi case, the circumstances are just the
contrary: as an adult, a persistent offender, a person within the
sphere of attacks on public order, he came within the class of
legitimate deportations.
Moreover, he apparently refused to acquire French nationality by
marriage, and had even turned down a compulsory residence order, and
so forth.
The European Court appears also to have considered as an implicit
reason for its decision the non-attribution of French nationality.
This is to forget that the Evian agreements are an international
treaty. The determination of nationality, including the opportunity
to choose, was defined by France and Algeria. This was therefore not
a unilateral decision by France. Algeria for its part had also
insisted on such choices, and does not refrain from deporting
Frenchmen who have committed crimes, even if they were born in Algeria
and have lived there. Such a bilateral treaty is based on reciprocity
and public international law. France cannot be accused of violating
the European Convention on Human Rights for having applied the
provisions of the Evian agreements and the Code of Nationality to
determine Mr Beldjoudi's nationality. Moreover, like any State,
France is sovereign in granting or refusing naturalisation.
It appears that the majority of the Court also considered
that Mr Beldjoudi was a quasi-Frenchman, a concept which is unknown in
international law.
The fact of having lived continuously in the host country or
country of residence cannot be a complete bar to the exercise of the
right to deport criminals. The special relationship between France
and Algeria cannot in itself be considered as preventing deportation,
as other member States of the Council of Europe also have similar
situations arising from historical relationships between Germans and
Poles, Austrians and Italians, Britons and Commonwealth citizens,
etc., and such relationships do not prevent justified deportations.
Member States expel criminal citizens in the normal course of
events. The only possible general defence should be a reference to
Article 3 (art. 3), otherwise a long period of residence would suffice
for reliance on Article 8 (art. 8). A great many deportations of
aliens from Europe would be affected.
The majority did indeed take note of the significant factor
following from Mr Beldjoudi's criminal record and conduct, even after
the deportation order of 1979; but they balanced this factor against
his personal and family life, on the basis of proportionality. Again,
precise criteria should be defined for this balancing exercise, as the
European Court normally does. In this judgment there is no definition
of the threshold of risks and level of reoffending which should
determine whether or not criminal aliens are to be deported. The
majority also appear to have considered that departure for Algeria
would inevitably have followed in the event of deportation, but this
is not certain.
The serious problem of deportations of aliens who have committed
crimes, which is a very different problem from that of administrative
deportations not brought about by criminal convictions, some of which
have dramatic consequences for families, is the subject of concern by
the European Economic Community, the Council of Europe and the
international organisation Interpol. An overall European policy
should be sought, in the spirit of the Convention for the Protection
of Fundamental Rights.
In my opinion, the decision of the majority carries within it a
source of contradictions, in an exponential interpretation of
Article 8 (art. 8), if an interference with the private or family life
of a persistent offender suffices to prevent deportation, as the
position of a persistent offender would amount to a sort of immunity
for his benefit. In fact, any deportation affects private or family
life, just as any detention does. If a further offence is committed,
there would be a further interference. But in that case private life
is affected by the conduct of the person concerned.
Each member State remains the master of its own criminal policy,
just as it retains the right to define the severity of sentences. In
many States deportation is an exemplary penalty in addition to the
sentence. In countries with a high proportion of aliens in the
population, it is deportation much rather than the threat of prison
which is a safeguard against repeated offending and strengthens the
national consensus in favour of welcoming immigrants of good character
who by their work share in the prosperity of the nation. A
deportation measure, as accepted in criminology and criminal policy,
is also a measure of protection for the potential victims of repeated
offenders, especially in countries with a serious increase in crime
and a high concentration of organised crime.
The Convention on Human Rights cannot ignore the aspect of the
rights of others and their necessary protection. It would no doubt
have been preferable if the French Government, bearing in mind the new
provisions (closer to Article 8 of the Convention) (art. 8) of the Law
of 29 October 1981 (sections 23 and 25) and the Law of 2 August 1989,
had waived deportation in this particular case, in view of the
position of the French spouse. If the European Court intended to move
towards the review of deportations in similar cases for all member
States, it would have to examine matters from the point of view either
of Article 6 (art. 6), if that Article had been violated with
reference to the domestic proceedings seen in the light of the
European Convention on Human Rights, or of Article 3 (art. 3) (inhuman
and degrading treatment). The concept of a balance of interests in
the event of the possible but not certain use of Article 8 (art. 8)
would require a strict application of proportionality, which in my
opinion is lacking in the reasoning of the Beldjoudi judgment. The
State's right to deport aliens who commit crimes is to a certain
extent for the general interest the counterpart of the welcome given
to persons enjoying the right of asylum and migrants, which is a key
element of international solidarity and the protection of human
rights.
SEPARATE OPINION OF JUDGE DE MEYER
(Translation)
Like the majority of my colleagues, I consider that there would
be a violation of the applicants' fundamental rights "in the event of
the decision to deport Mr Beldjoudi being implemented".
But which right or rights are these?
Our colleague Mr Martens was right to wonder whether the case did
not concern their right to respect for their private life just as much
as their right to respect for their family life. I agree to a great
extent with his observations*.
It seems to me, however, that ultimately, bearing in mind the
circumstances mentioned in paragraphs 77 and 78 of the judgment, the
deportation of Mr Beldjoudi, with respect to both applicants, would
not merely constitute an unacceptable interference with their private
and family life, but would actually be inhuman treatment**.
This would be so, not indirectly because of what might await them
in Algeria - that is not the point in issue here*** - but directly, in
that Mr Beldjoudi would be ejected, after over forty years, from a
country which has always in fact been "his" since birth, even though
he does not possess its "nationality".
While it is true, as the documents in the case show, that Mr
Beldjoudi has already been convicted of numerous offences, mostly
comparatively serious ones, and is now once more under suspicion of
having committed others****, he can be sufficiently punished for these
by the criminal law.
_______________
* See pp. 37 to 39 below.
** It is because the case should in my opinion also have been examined
from this point of view that I have been unable to approve of point 2
of the operative provisions of the judgment. I entirely agree with it
in so far as it relates to Articles 9, 12 and 14 (art. 9, art. 12,
art. 14) of the Convention.
*** The present case differs in this respect from the Soering (Series
A no. 161) and Cruz Varas (Series A no. 201) cases.
**** See paragraphs 12, 14, 73 and 75 of the judgment.
_______________
DISSENTING OPINION OF JUDGE VALTICOS
(Translation)
I regret that I must express my dissent from the opinion of the
majority of the Court, who have concluded that there was a violation
of Article 8 (art. 8) of the Convention in the instant case, with
reference in particular to Mr Beldjoudi's family life.
My explanation need not be long, as it is based in essence on the
dissenting opinion I gave in the similar, although not identical, case
of the youth Moustaquim.
The differences between the two cases cut both ways: on the one
hand, the present case concerns the ties between a husband and his
wife, not those between a young man and his family. On the other
hand, young Moustaquim's criminal behaviour consisted of the offences
of an adolescent, very numerous but for the most part comparatively
unimportant, whereas here there were repeated crimes of violence
committed by a person aged about forty, who had been sentenced to
nearly eleven years' imprisonment in less than seventeen years.
Moreover, the Court acknowledged that Mr Beldjoudi's criminal record
was "much worse".
The deportation of aliens - which one can understand being
contemplated in a case as serious as this one - is a prerogative of
States, and its use is restricted by the Convention (Article 5
para. 1 (f) of the Convention and Protocols Nos. 4 and 7) (art. 5-1-f,
P4, P7) only in well-defined cases. This is not one of them.
Admittedly, the Court has in the present case interposed the
concept of family life, which is protected by Article 8 (art. 8) of
the Convention. It considers that there was on the part of the
Government an interference by a public authority with the exercise of
the applicants' right to respect for their family life. One may well
wonder, however, whether Article 8 (art. 8) is really applicable to a
case such as this and whether it was designed to prohibit the
deportation of aliens married to citizens of the host country. Such
an interpretation might open the way to many abuses.
In any event, it does not seem to me to be possible to use
Article 8 (art. 8) of the Convention to restrict the right of States
to take deportation measures, where they have valid reasons for
deciding on them in defence of public safety, and where their effect
on family life is only an indirect consequence.
CONCURRING OPINION OF JUDGE MARTENS
1. I agree with the findings of the Court but, as far as
Mr Beldjoudi is concerned, I would have preferred its decision to have
been based on (a) a less casuistic reasoning and (b) interference with
the right to respect for private life.
2. Paragraph 1 of Article 3 of Protocol No. 4 (P4-3) to the
Convention forbids the expulsion of nationals. In a Europe where a
second generation of immigrants1 is already raising children (and where
violent xenophobia is increasing to an alarming extent) it is high
time to ask ourselves whether this ban should not apply equally to
aliens who were born and bred in a member State or who have otherwise,
by virtue of long residence, become fully integrated there (and,
conversely, become completely segregated from their country of
origin)2.
In my opinion, mere nationality does not constitute an objective
and reasonable justification for the existence of a difference as
regards the admissibility of expelling someone from what, in both
cases, may be called his "own country". I therefore have no
hesitation in answering the above question in the affirmative. I
believe that an increasing number of member States of the Council of
Europe accept the principle that such "integrated aliens" should be no
more liable to expulsion than nationals3, an exception being justified,
if at all, only in very exceptional circumstances. My own country is
one of those States4 and since 1981 - with the exception of the period
1986-1989 so is France5.
I would have preferred the Court's decision in the present case
to have been based on the aforesaid principle, coupled with a finding
that there were no very exceptional circumstances justifying a
departure therefrom. A judgment along those lines would have achieved
what the Moustaquim v. Belgium6 and the present judgment have failed to
do, namely introduce a measure of legal certainty; this seems highly
desirable, especially in this field.
3. The latter consideration also militated, as Mr Schermers rightly
pointed out7, in favour of basing the Court's decision - if possible -
on interference with the right to respect for private life, since,
whilst not all "integrated aliens" threatened with expulsion are
married, they all have a private life.
In my opinion, it is possible to do so. Expulsion severs
irrevocably all social ties between the deportee and the community he
is living in and I think that the totality of those ties may be said
to be part of the concept of private life, within the meaning of
Article 8 (art. 8).
It is true that, at least at first sight, the text of this
provision seems to suggest otherwise. Read as a whole, it apparently
guarantees immunity of an inner circle in which one may live one's
own, one's private, life as one chooses. This "inner
circle" concept presupposes an "outside world" which, logically, is
not encompassed within the concept of private life. Upon further
consideration, however, this "inner circle" concept appears too
restrictive. "Family life" already enlarges the circle, but there are
relatives with whom one has no family life stricto sensu. Yet
the relationship with such persons, for instance one's parents,
undoubtedly falls within the sphere which has to be respected under
Article 8 (art. 8). The same may be said with regard to one's
relationships with lovers and friends. I therefore share the view of
the Commission, which has repeatedly held that "respect for private
life"
"comprises also to a certain degree the right to establish and to
develop relationships with other human beings, especially in the
emotional field, for the development and fulfilment of one's own
personality"8.
I think that the Court's Dudgeon v. the United Kingdom, Rees v.
the United Kingdom, Cossey v. the United Kingdom and B. v. France
judgments9 are also based on the idea that to a certain extent a
person's "external" relations with others (outside the "inner circle")
do fall within the sphere of private life10.
The same idea presumably underlies the aforementioned ban on the
expulsion of nationals: when speaking of nationals, one almost always
thinks primarily of those whose links with a given country are
particularly close and manifold because they have been born and bred
there11, in a family which has lived there for generations12; it was
clearly felt to be unacceptable that, by compelling such persons to
leave, never to return, a State should be entitled to sever those ties
irrevocably.
To sum up: I think that expulsion, especially (as in the present
case) to a country where living conditions are markedly different from
those in the expelling country and where the deportee, as a stranger
to the land, its culture and its inhabitants, runs the risk of having
to live in almost total social isolation, constitutes interference
with his right to respect for his private life.
_______________
NOTES
1. I realise, of course, that the present case may be distinguished
from an ordinary "second-generation immigrant's expulsion case" in
that Mr Beldjoudi's parents, when they took up residence in France,
were not "immigrants" stricto sensu but French citizens coming to live
in their own country. I think, however, that it is legitimate to
ignore this difference for present purposes.
2. This question has, of course, a more limited scope in those
member States where, under the principle of ius soli, second-
generation immigrants acquire citizenship by reason of their birth
within the territory; it is, therefore, probably more exact to refer
to expulsion of "integrated aliens" rather than "second-generation
immigrants' expulsion".
3. This principle has already been accepted in the context of the
International Covenant on Civil and Political Rights: under Article 12
para. 4 of the Covenant "no one shall be arbitrarily deprived of the
right to enter his own country"; this right implies a ban on the
expulsion not only of nationals, but also - as appears from the
drafting history of the words "his own country" - of all "integrated
aliens" (such as second-generation immigrants); see M. Nowak, CCPR-
Kommentar, Art. 12, Randnummern 45-51; Van Dijk & Van Hoof, De
Europese Conventie, 2nd edition, p. 551; Velu and Ergec, La Convention
européenne des Droits de l'Homme, para. 372 (p. 322).
4. See the 1990 version of the "Circular on Aliens": Nederlandse
Staatscourant 12 maart 1990, no. 50; see further on this issue, inter
alia: Groenendijk, Nederlands Juristenblad 1987, pp. 1341 et seq.;
Swart, Preadvies, Nederlandse Juristen-vereniging 1990, para. 35
(pp. 242 et seq.).
5. See paragraphs 42-50 of the Court's judgment.
6. Judgment of 18 February 1991, Series A no. 193.
7. See his concurring opinion appended to the Commission's opinion
in the present case pp. 48 and 49.
8. See, inter alia: Decisions and Reports, no. 5, pp. 86-87, and
no. 10, p. 100; Series B no. 36, pp. 25-26.
If the Commission, in so holding, intended to give a definition
of "private life" within the meaning of Article 8 (art. 8) (as has
been suggested by Doswald-Beck, Human Rights Law Journal 1983, p.288),
I do not agree: it is highly difficult to define the concept and I
submit that the time has not yet come to try to do so.
9. Judgments of 22 October 1981, 17 October 1986, 27 September 1990
and 25 March 1992, Series A nos. 45, 106, 184 and 232-C.
10. See further: Velu and Ergec, La Convention européenne des Droits
de l'Homme, para. 652 (pp. 535 et seq.).
11. See paragraph 88 of the Court's Abdulaziz, Cabales and Balkandali
v. the United Kingdom judgment of 28 May 1985 (Series A
no. 94, p. 41).
12. For the idea that a person's personal history and memories may be
said to fall within the sphere which has to be respected under
Article 8 (art. 8), see the Court's Gaskin v. the United Kingdom
judgment of
