In the Djeroud case*,
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,
Sir Vincent Evans,
Mr C. Russo,
Mr J. De Meyer,
Mr N. Valticos,
Mr S.K. Martens,
Mr J.M. Morenilla,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 22 January 1991,
Delivers the following judgment, which was adopted on that
date:
______________
Notes by the Registrar
* The case is numbered 34/1990/225/289. 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 corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11) which
came into force on 1 January 1990.
*** The amendments to the Rules of Court which came into force
on 1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 21 May 1990,
within the three-month period laid down by Article 32 § 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 13446/87) against the French Republic
lodged with the Commission under Article 25 (art. 25) by an
Algerian national, Mr Mohamed Djeroud, on 25 September 1987.
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 Articles 8 and 3
(art. 8, art. 3).
2. In response to the enquiry made in accordance with Rule 33
§ 3 (d) of the Rules of Court, the applicant stated that he
wished to take part in the proceedings and designated the lawyer
who would represent him (Rule 30).
3. The Chamber to be constituted 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 § 3 (b)). On 24 May 1990, in the presence
of the Registrar, the President drew by lot the names of the
other seven members, namely 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 § 4) (art. 43). Subsequently Mr S.K. Martens and Mr
J.M. Morenilla, substitute judges, replaced Mr Pinheiro Farinha
and Mr Pekkanen who were unable to take part in the consideration
of the case (Rules 22 § 1 and 24 § 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 § 5) and, on 3 July 1990, gave directions as to the
written procedure, after having, through the Registrar, consulted
the Agent of the French Government ("the Government"), the
Delegate of the Commission and the applicant's lawyer.
5. An attempt to reach a friendly settlement gave rise, between
8 November 1990 and 3 January 1991, to a series of letters and
telephone conversations between the Government, the applicant's
lawyer and the Registrar.
6. On 3 January 1991 the applicant's lawyer communicated to the
Registrar the text of a declaration signed by his client
accepting an offer made by the Government. On 14 January the
Government transmitted a copy of that document to the Court.
The Delegate of the Commission was consulted (Rule 49 § 2)
and submitted his observations on 15 January.
7. On 22 January the Court decided to dispense with a hearing
in the case, having satisfied itself that the conditions for this
derogation from its usual procedure had been met (Rules 26 and
38).
AS TO THE FACTS
8. Mr Mohamed Djeroud, an Algerian national who was born in
Algeria in 1958, arrived in France the following year with his
family, who set up home in Mulhouse. His mother and his six
brothers and sisters, four of whom have French nationality, live
in France.
9. He was convicted on several occasions in 1977 and 1978,
inter alia, on theft charges; the first two sentences were
suspended. In February 1979 the Minister of the Interior ordered
his deportation on the ground that he represented a danger to
public order (section 23 of the Order of 2 November 1945 on the
conditions for the entry and residence of foreign nationals).
The applicant went to Algeria of his own accord in 1980, but in
1982 returned to France where he lived until 1985 under a
provisional residence permit and where he committed further
offences.
He was deported in February 1985 and again in April 1987 in
pursuance of the 1979 order, but each time he returned to France.
In December 1987 he refused to board an aeroplane for Algeria, as
a result of which he served a prison sentence in France.
Since 1988 he has been the subject of a compulsory residence
order confining him to the municipality of
Villeneuve-Saint-Georges (Val-de-Marne), near Paris, until such
time as he complies with the deportation order. Various attempts
to secure the revocation of that order failed, as did an
application for political asylum lodged in 1987.
PROCEEDINGS BEFORE THE COMMISSION
10. In his application (no. 13446/87) lodged with the Commission
on 25 September 1987 Mr Djeroud alleged that his deportation from
France violated two provisions of the Convention: Article 8
(art. 8), by infringing the right to respect for his private and
family life; and Article 3 (art. 3), on account of inhuman and
degrading treatment.
The Commission declared the application admissible on
10 May 1989. In its report of 15 March 1990 (Article 31)
(art. 31), it expressed the opinion, by thirteen votes to one,
that there had been a violation of Article 8 (art. 8). On the
other hand, it considered unanimously that there had been no
violation of Article 3 (art. 3). The full text of the
Commission's opinion and of the dissenting opinion contained in
the report is reproduced as an annex to this judgment*.
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* Note by the Registrar: For practical reasons this annex will
appear only with the printed version of the judgment (volume
191-B of Series A of the Publications of the Court), but a copy
of the Commission's report is obtainable from the registry.
_______________
AS TO THE LAW
11. The Registrar of the Court received copies of a document
signed on 21 December 1990 by Mr Djeroud from the applicant's
lawyer on 3 January 1991 and from the Ministry of Foreign Affairs
of the French Republic on 14 January. The document was worded as
follows:
"I ... declare that I accept the friendly settlement which
has been proposed to me by the French Government in the
proceedings pending against that Government in the European
Court of Human Rights, subject to the following conditions:
- revocation of the deportation order made against me,
- issue of a residence permit valid for ten years,
- payment of compensation of 150,000 French francs.
I acknowledge that the payment of the above-mentioned sum
shall constitute full and final reparation for all the
pecuniary and non-pecuniary damage alleged by me in my
application and shall also cover in their entirety the
lawyer's fees and other expenses incurred by me in the
present case.
I therefore agree to withdraw from these proceedings and
undertake not to institute any subsequent proceedings
against the French State in this matter in national or
international courts.
I note that the French Government are to take the
measures necessary to implement the terms of the friendly
settlement as soon as the Court has decided to strike the
case out of its list.
..."
The Delegate of the Commission was consulted and raised no
objection.
12. The Court takes formal note of the friendly settlement
reached by the Government and the applicant. It discerns no
reason of ordre public militating against striking the case out
of the list (Rule 49 §§ 2 and 4 of the Rules of Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out of the list.
Done in English and in French, and notified in writing under
Rule 55 § 2, second sub-paragraph, of the Rules of Court on
23 January 1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy