Information Note on the Court’s case-law 39
February 2002
Mehemi v. France (no. 2) (dec.) - 53470/99
Decision 28.2.2002 [Section III]
Article 34
Victim
Permanent exclusion order changed into ten-year exclusion order following Court’s judgment and leave to remain granted on the basis of six-monthly residence permits prior to expiry of the order: admissible
The applicant is an Algerian national born in France, where he lived, with all the rest of his family, from his birth in 1962 until the enforcement in February 1995 of an order excluding him from French territory. In 1986 he married an Italian national, who has apparently since acquired French nationality, with whom he had three children who are French nationals. In 1991 he was sentenced to six years’ imprisonment for drug trafficking. The Court of Appeal upheld that sentence and in addition ordered his permanent exclusion from French territory. A request by the applicant for that order to be rescinded was dismissed by the Court of Appeal and the Court of Cassation. The exclusion order was enforced in February 1995. Following an application by the applicant to the Strasbourg institutions, the Court held in a judgment of 26 September 1997 that there had been a violation of Article 8 in that the permanent exclusion order constituted a disproportionate measure in relation to the aims sought to be achieved. In October 1997 the applicant lodged a request for the exclusion order to be rescinded, relying on the Court’s judgment. In March 1998 the Court of Appeal commuted the permanent exclusion order to a 10-year exclusion order. The applicant appealed on points of law, without receiving legal aid. In May 1999 the Court of Cassation dismissed his appeal. Both parties agreed that the exclusion order, thus limited, had expired in July 2001. In the meantime, in October 1997, the applicant sought a pardon, which was in the end refused. His lawyer then wrote to the Minister of Foreign Affairs asking him what action he intended to take in response to the Court’s judgment of 26 September 1997. In November 1997 the Minister replied that the Government were prepared to allow the applicant to return to France immediately. He further informed the applicant that he would be subject to a compulsory residence order until he obtained either the lifting of the exclusion order or a pardon. The applicant received a special visa in February 1998 and returned to France. He was required to reside within the administrative district of Lyon and ordered to report twice a month to the police station at Villeurbanne, where he lived. In April 1998 he was issued with a temporary residence permit valid for six months. This permit mentioned that he was authorised to carry on an occupation and required to reside in the département of Rhône. Since then it has been renewed each time it has expired.
Admissible under Article 8 and Article 2 of Protocol No. 4: The Government had submitted that the residence permits awarded since the beginning of 1998 had made the 10-year exclusion order inoperative, so that the applicant could no longer claim to be a victim within the meaning of Article 34. His situation could not be compared to the normal situation of an alien in his host country in view of the specific links which bound him to France and which had justified the Court’s finding of a violation of Article 8 in its judgment of 26 September 1997. However, the applicant had not been able to return to France until five months after delivery of the above judgment, during which time he had continued to suffer the interferences in his private and family life found by the Court in its judgment. He had not been able to re-establish his family life in France except on the basis of residence permits valid for only six months accompanied by compulsory residence orders. With regard to his right to respect for his private life, his situation was therefore markedly different from that which he had enjoyed before the first exclusion order, which had brought about the situation criticised by the Court in the judgment of 26 September 1997, was imposed. Whereas all the evidence showed that before 1991 the applicant had had a long-term residence permit, not restricted in any way, from February 1998 to July 2001 he had had only short-term residence permits, accompanied by measures restricting his freedom of movement. Consequently, the Government’s submissions could not be accepted and the applicant could claim to be a victim within the meaning of Article 34. Moreover, the facts of the case could not be likened to those of the Benamar v. France case, as the Government had submitted, not only because of the facts noted above but also because the decision given in that case on 14 November 2000 had concerned a deportation order made by the executive branch, the effects of which had been nullified by a compulsory residence order, not an exclusion order imposed by a criminal court. In the light of the applicant’s arguments, his complaint required to be examined under Article 2 of Protocol No. 4 also.
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