Information Note on the Court’s case-law 28
March 2001
Hamaïdi v. France (dec.) - 39291/98
Decision 6.3.2001 [Section III]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effectiveness of cassation appeal in challenging, on the basis of Article 8, the refusal to lift a prohibition on entering France: inadmissible
The applicant entered France in 1964 at the age of four months. He had lived there almost his entire life and his family is resident there. The applicant was sentenced to several terms of imprisonment and an order was made excluding him from French territory for three years. He was deported in July 1995. In December 1995 the Dijon Court of Appeal dismissed an application for rescission of the exclusion order. In November 1997 the applicant lodged a further application for rescission of that order. That application was also dismissed by the court of appeal. The applicant did not appeal to the Court of Cassation against that decision. The exclusion order expired on 18 July 1998. At the end of 1998 the applicant applied for a visa for a short visit to France. His application was refused. The applicant complained that the exclusion order infringed his right to respect for his private and family life.
Inadmissible under Article 8: the applicant was deported to Tunisia in 1995 and the exclusion order did not expire until 18 July 1998, that is to say eight months after he had lodged his application and four months after the court of appeal had dismissed his application for rescission. It was true that the Court of Cassation often rejected grounds of appeal based on the right to private and family life in reasoning that confirmed the Court’s finding in the case of Dalia (Reports of Judgments and Decisions 1998-VI) that an appeal to the Court of Cassation was an inadequate and ineffective remedy. However, a review of other judgments of the Court of Cassation on that subject showed that it did at least carry out, to the extent that it had jurisdiction to do so, “the task of checking that the facts found by the tribunals of fact support[ed] the conclusions reached by them on the basis of those findings” (see the Civet judgment, ECHR 1999-VI). Indeed the Court of Cassation had quashed a judgment dismissing an application for rescission of an exclusion order for want of a statutory basis, on the ground that the court of appeal had reached its decision “without examining the grounds relating to the applicant’s personal and family life”. Consequently, the Court of Cassation was able to determine whether the making or continuation of an exclusion order was consistent with the requirements of Article 8: non exhaustion.
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