Information Note on the Court’s case-law 64
May 2004
Achour v. France (dec.) - 67335/01
Decision 11.3.2004 [Section I]
Article 34
Victim
Annulment of additional penalty of exclusion order, by virtue of a new 2003 law: loss of victim status
Article 7
Article 7-1
Retroactivity
Alleged retroactive application of a law on recidivism: admissible
The applicant is an Algerian citizen who was born in France. In 1997 he was sentenced by a criminal court to eight years' imprisonment and excluded from France for ten years for contravening the drugs legislation in 1995. The court of appeal extended the sentence to twelve years' imprisonment and upheld the exclusion order. The court considered that, having already been sentenced in 1984 to three years in prison for the same offence, the applicant could be classified as a recidivist in law under Article 132-9 of the new Criminal Code, which entered into force on 1 March 1994. The applicant appealed on points of law, arguing in particular that the finding that he was to be classified in law as a recidivist contravened the principle of the application of successive criminal laws, the court of appeal having, in his opinion, retrospectively applied the harsher provisions of the new law. The Court of Cassation dismissed the appeal in February 2000. Subsequently, pursuant to the Immigration Control, Residence of Aliens and Nationality Act (Law no. 2003-1119) of 26 November 2003, which reformed the system of “double punishment”, the additional penalty excluding the applicant from France was lifted as of right.
Admissible under Article 7.
Inadmissible under Article 8: The above-mentioned Act of 26 November 2003 protected four categories of foreigners from expulsion and exclusion from France. The Court considered that, by reforming the system of “double punishment”, regard being had to the categories of persons against whom exclusion orders could no longer be made, this Act necessarily precluded the risk of such orders being incompatible with Article 8 of the Convention for persons belonging to those categories. In the instant case, although an exclusion order had indeed been made against the applicant and had had final effect, no steps had been taken to start enforcing it and the order had been lifted automatically as of right. Accordingly, the domestic authorities had acknowledged, at least in substance, the violation of Article 8 by preventing exclusion orders from being made against persons in the applicant's position, and had afforded redress for the violation by allowing such orders to be lifted as of right where, as in the instant case, they had been made before the relevant law had come into force. Accordingly, the applicant could no longer claim to be the “victim”, within the meaning of Article 34, of the alleged violation of Article 8.
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