The Committee of Ministers, under the terms of Article 54
(art. 54) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"),
Having regard to the judgment of the European Court of Human Rights in the Nasri case delivered on 13 July 1995 and transmitted the same day to the Committee of Ministers;
Recalling that the case originated in an application
(No. 19465/92) against France, lodged with the European Commission of Human Rights on 30 January 1992 under Article 25 (art. 25) of the Convention by Mr Nasri, an Algerian national, and that the Commission declared admissible the complaints according to which the expulsion of the applicant would constitute inhuman and degrading treatment, having regard to his handicap and his state of dependence on his family, within the meaning of Article 3 (art. 3) of the Convention, as well as a breach of the right to respect for his family life, within the meaning of Article 8 (art. 8);
Recalling that the case was brought before the Court by the Commission on 20 May 1994 and by the Government of France on
7 July 1994;
Whereas in its judgment of 13 July 1995 the Court:
- held, unanimously, that there would be a violation of Article 8 (art. 8) of the Convention if the decision to deport the applicant were executed;
- held, by seven votes to two, that it was not necessary also to examine the case under Article 3 (art. 3) of the Convention;
- held, unanimously, that it was not necessary to apply Article 50 (art. 50) of the Convention in the present case;
Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 (art. 54) of the Convention;
Having invited the Government of France to inform it of the measures which had been taken in consequence of the judgment of
13 July 1995, having regard to France's obligation under Article 53 (art. 53) of the Convention to abide by it;
Whereas, during the examination of the case by the Committee of Ministers, the Government of France gave the Committee information about the measures taken in consequence of the judgment, which information appears in the appendix to this resolution;
Declares, after having taken note of the information supplied by the Government of France, in particular the information on the non-execution of the deportation order, that it has exercised its functions under Article 54 (art. 54) of the Convention in this case.
Appendix to Resolution DH (96) 86
Information provided by the Government of France
during the examination of the Nasri case
by the Committee of Ministers
The Order of 2 November 1945 concerning the conditions of entry and residence of aliens in France, as last amended by the Acts of 24 August 1993 and 30 December 1993 (for the previous amendments see paragraphs 43 to 50 of the Court's judgment), establishes in Section 25 a distinct category of aliens, which enjoy special protection against expulsion measures:
"The following persons cannot be subjected to an expulsion 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 six 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, except where he has had, during this whole period, a temporary residence permit containing the indication "student";
4. An alien who has been married for at least one year with a spouse of French nationality on condition that there has been no separation and that the spouse has kept French nationality;
5. An alien who is the father or the mother of a French child residing in France, provided that he exercises parental authority, at least in part, with respect to the 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 residing in France in non-irregular fashion 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 to 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 mentioned in or punished by Section 21 of the present order, Sections 4 and 8 of Law No. 73-548 of 27 June 1973 on multiple occupation, Sections L.362-3, L.364-2-1, L.364-3 and L.364-5 of the Code of Employment or Sections 334, 334-1 and 335 of the Criminal Code, may be
deported.
In derogation to the provisions of this section, an expulsion order may be issued under Sections 23 and 24 against an alien who comes in one of the categories mentioned under Nos. 3, 4, 5 and 6, provided that he or she has been definitively convicted and sentenced to a penalty of non-suspended imprisonment of at least five years ..."
Section 26 of the said order provides, however, that an expulsion is possible in the following cases:
"Expulsion may be ordered:
a. In derogation to Section 24, in the event of absolute urgency, [this section deals with the procedure to be followed in case of expulsion];
b. In derogation to Section 25, where it constitutes a compelling necessity for the security of the state or for public safety.
In derogation to Sections 24 and 25, in the event of absolute urgency and where it constitutes a compelling necessity for the security of the state or for public safety, the expulsion may be ordered (...)"
It follows from these amendments to the Order of 1945, which confirm for the largest part those already made since 1981, as described in the judgment, that an alien in Mr Nasri's situation, who has habitually resided in France ever since the age of six but who has not been able to acquire the French nationality, can no longer be expelled except where it constitutes a compelling necessity for the security of the state or for public safety.
Moreover, Section 23 of the Order of 1945 specifies that:
"(...) The expulsion order can be revoked at any time by the Minister of the Interior. Where a request for such a revocation is made more than five years after the effective implementation of the expulsion order, it may only be refused after the commission provided for under Section 24, before which the interested party may be represented, will have given its position (...)"
Moreover, an appeal may be lodged against a negative decision of the minister before the administrative judge who will consider it, in particular in the light of Article 8 (art. 8) of the Convention (see C.E. Sect., judgment Minin No. 76945 of 10 April 1995).
The French authorities have undertaken not to implement the expulsion order.
The French Government considers that in view of these various measures, it has fulfilled its obligations under Article 53
(art. 53) of the Convention.
Full & Egal Universal Law Academy