CASE OF MAAOUIA v. FRANCE

1. The case originated in an application (no. 39652/98) against the French Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Tunisian national, Mr Nouri Maaouia (“the applicant”), on 30 December 1997.
2. The applicant alleged, in particular, that the length of proceedings he had brought on 12 August 1994 for the rescission of an exclusion order, which proceedings had ended with the judgment of the Aix-en-Provence Court of Appeal of 26 January 1998, had been unreasonable, contrary to Article 6 § 1 of the Convention.
3. The case was referred to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).
4. The case was assigned to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 12 January 1999 the Chamber decided to adjourn the examination of the applicant ’ s complaint concerning the length of the proceedings for rescission of the exclusion order (Article 6 § 1 of the Convention) and to declare the remainder of the application inadmissible [ Note by the Registry. The Court ’ s decision is obtainable from the Registry.].
5. On 1 February 2000 the Chamber, composed of the following judges: Sir Nicolas Bratza, President, Mr J.-P. Costa, Mrs F. Tulkens, Mr W. Fuhrmann, Mr K. Jungwiert, Mr K. Traja and Mr M. Ugrekhelidze, and of Mrs S. Dollé, Section Registrar, decided to relinquish jurisdiction in favour of the Grand Chamber, none of the parties being opposed thereto (Article 30 of the Convention and Rule 72).
6. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. In a decision of 22 March 2000 [ Note by the Registry. The Court ’ s decision is obtainable from the Registry.] the Grand Chamber declared the remainder of the application admissible, while reserving the issue of the applicability of Article 6 § 1 of the Convention.
7. The applicant and the French Government (“the Government”) each filed written observations on the merits of the case.
8. A hearing took place in public in the Human Rights Building, Strasbourg, on 5 July 2000.
There appeared before the Court:
(a) for the GovernmentMr R. Abraham, Director of Legal Affairs, Ministry of Foreign Affairs, Agent, Mrs C. d ’ Urso, Head of the Human Rights Office, Department of European and International Affairs, Ministry of Justice, Mr P. Boussaroque, administrative court judge, on secondment to the Legal Affairs Department, Ministry of Foreign Affairs, Counsel;
(b) for the applicantMr A. Chemama, of the Nice Bar, Counsel.
The Court heard addresses by Mr Chemama and Mr Abraham.
I. THE CIRCUMSTANCES OF THE CASE
9. The applicant, who was born in 1958 in Tunisia, entered France in 1980 at the age of 22. On 14 September 1992 he married a French national, an invalid whose disability had been assessed at 80%, with whom he had been living since 1983.
10. On 1 December 1988 the Alpes-Maritimes Assize Court sentenced the applicant to six years ’ imprisonment for armed robbery and armed assault with intent for offences committed in 1985. He was released on 14 April 1990.
11. On 8 August 1991 the Minister of the Interior made a deportation order against him. The order was served on the applicant, who had been unaware of its existence, on 6 October 1992, when he attended the Nice Centre for Administrative Formalities in order to regularise his status.
12. He refused to travel to Tunisia and was prosecuted for failing to comply with a deportation order. On 19 November 1992 the Nice Criminal Court sentenced him to one year ’ s imprisonment and made an order excluding him from French territory for ten years. That decision was upheld on appeal by the Aix-en-Provence Court of Appeal on 7 June 1993. An appeal on points of law was dismissed by the Court of Cassation on 1 June 1994 on the ground that the applicant had failed to challenge the legality of the deportation order in the courts below.
13. On 22 July 1994 the applicant applied to the Criminal Cases Review Board of the Court of Cassation for a review of the criminal proceedings that had resulted in his being imprisoned for one year and banned from French territory for ten years. In a judgment of 28 April 1997, which was served on 22 September 1997, the Court of Cassation dismissed that application.
A. Proceedings before the administrative courts for an order quashing the deportation order made against the applicant
14. In December 1992 the applicant sought judicial review of the deportation order. In a judgment of 14 February 1994 the Nice Administrative Court quashed the deportation order of 8 August 1991, inter alia, on the ground that no notice had been served on the applicant requiring him to appear before the Deportation Board. That judgment became final on 14 March 1994 after being served on the Minister of the Interior.
B. Application for rescission of the exclusion order
15. On the strength of the administrative court ’ s judgment of 14 February 1994 quashing the deportation order, the applicant applied to the Principal Public Prosecutor ’ s Office at the Aix-en-Provence Court of Appeal on 12 August 1994 for rescission of the ten-year exclusion order made by the Nice Criminal Court on 19 November 1992. He contended that he was married to a French national and held a provisional residence permit.
16. In a letter of 6 July 1995 the applicant reminded the Principal Public Prosecutor ’ s Office of the terms of his application for rescission. Noting that the application had been outstanding for some time, he asked the office to arrange for it to be heard and a ruling given. On 12 July 1995 the Principal Public Prosecutor ’ s Office requested the Public Prosecutor ’ s Office at the Nice tribunal de grande instance for its opinion on the merits of the application and any information that would assist the court in deciding whether the exclusion order should be rescinded. On 19 September 1995 Nice Central Police Station sent the Principal Public Prosecutor ’ s Office the results of an inquiry concerning the applicant.
17. On 3 November 1997 the Principal Public Prosecutor ’ s Office at the Court of Appeal informed the applicant that the case would be heard on 26 January 1998. On that date the Aix-en-Provence Court of Appeal granted the applicant ’ s application and rescinded the exclusion order on the ground that the Nice Administrative Court had quashed the deportation order.
C. Steps taken by the applicant to regularise his immigration status
18. The applicant also sought to regularise his status with the immigration authorities. He initially obtained acknowledgment forms for applications for provisional residence permits (not work permits) for renewable three-month periods. On 4 September 1995, however, he was given a new three-month residence permit incorporating the right to seek employment.
19. On 14 September 1995 the applicant applied to the prefect for the Alpes-Maritimes département for a residence permit allowing him to live and work in France for a prolonged period, as he was married to a French citizen. On 9 April 1996 the applicant received notice of a decision dated 2 April 1996 refusing him a residence permit. He appealed to the Nice Administrative Court, but his appeal was dismissed on 27 September 1996.
20. The applicant appealed on 24 December 1996 to the Lyons Administrative Court of Appeal. On 29 August 1997 the President of that court ordered the transfer of the file to the Marseilles Administrative Court of Appeal – the court with jurisdiction – where the case is currently pending.
21. On 21 July 1998 the applicant obtained a temporary residence permit valid for one year (from 13 July 1998 to 12 July 1999). Recently he obtained a ten-year residence permit with the right to seek employment.
22. Article 27 of the Ordinance of 2 November 1945 as amended, concerning the conditions of entry and residence of aliens in France reads as follows:
“Any alien who has evaded or attempted to evade the execution of an order refusing him leave to enter France, a deportation order or a removal order or who, having been deported or being subject to an exclusion order, re-enters the national territory without authorisation shall be liable to a term of imprisonment of from six months to three years.
The same penalty may be imposed on any alien who fails to present to the relevant administrative authority travel documents enabling any of the measures mentioned in the first sub-paragraph to be executed or who does not have such documents and fails to supply the information necessary to allow such execution.
The court may in addition issue an order banning a person so convicted from re-entering the territory for a period not exceeding ten years.
A ban on re-entering the territory automatically entails the convicted person ’ s removal from French territory, on completion of his prison sentence where appropriate.”
23. Article 702-1 of the Code of Criminal Procedure reads as follows:
“Any person subject to a ban, forfeiture or incapacity or any measure whatsoever by operation of law following a criminal conviction or imposed as an additional penalty on sentencing may request the court which convicted him, or, if more than one, the last court to convict him, to end all or part of it, including provisions relating to the length of such ban, forfeiture or incapacity. ...”
24. Article 703 of the Code of Criminal Procedure reads as follows:
“Applications by convicted persons for the ending of a ban ... shall contain particulars of the date of conviction and the places where the applicant has been living since his conviction or release.
Applications shall be sent to the Public Prosecutor ’ s Office or, as the case may be, the Principal Public Prosecutor ’ s Office, which shall obtain all relevant information and, if appropriate, the opinion of the judge responsible for the execution of sentences, and shall refer the application to the relevant court.
The court shall decide applications in private after considering the submissions of the prosecution. It shall hear the applicant or his or her lawyer, but may decide the application in their absence provided due notice has been served on them to attend ...
A reference to the order ending all or part of a ban, forfeiture or incapacity ... shall be entered on the judgment of the court of trial or retrial and the convicted person ’ s criminal record.”
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
25. The applicant complained in substance that the length of the proceedings which he had brought on 12 August 1994 for rescission of the exclusion order and which had ended with the decision of the Aix-en-Provence Court of Appeal of 26 January 1998 had been unreasonable, contrary to Article 6 § 1 of the Convention. The relevant part of that provision reads as follows :
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
26. The Court must examine, firstly, whether Article 6 § 1 is applicable in the instant case. The Government submitted that it was not; the applicant disagreed.
27. The Government contended that Article 6 of the Convention was not applicable to the proceedings which the applicant had brought for rescission of the temporary exclusion order.
28. The Government argued, firstly, that the proceedings for rescission of the exclusion order did not concern a dispute ( contestation ) over civil rights and obligations. They did not deny the existence of a dispute, but maintained that no civil rights had been at stake. The exclusion order had been made against the applicant as a result of his failure to comply with an order for his deportation from France and the main issue, therefore, had been his right to stay in France. Accordingly, the measure was based on public-order considerations that did not concern civil law. The Government pointed out that the Commission had consistently expressed the view that proceedings relating to the entry, stay and deportation of aliens were outside the scope of that Article in so far as it concerned disputes over civil rights and obligations, the reason being that the acts in issue in such proceedings were governed by public law and represented the exercise of public-authority prerogatives. The fact that deportation orders generally had pecuniary or family implications for those concerned could not suffice to bring them within the civil limb of Article 6 § 1, as that would mean that all measures concerning immigration control were caught by the scope of that provision since they produced similar consequences for those on whom they were imposed. The Government concluded that litigation relating to exclusion orders, like all litigation concerning immigration control, could not be a civil dispute for the purposes of Article 6 § 1 of the Convention.
29. The Government further pointed out that under the Commission ’ s settled case-law, deportation and exclusion orders did not concern criminal charges or amount to punishment for the purposes of Article 6 of the Convention. The Government agreed with that analysis, which was based on the elementary observation that exclusion orders were not penalties, but administrative measures, even if, unusually, the legislature had assigned the task of making such orders to the criminal courts. Indeed, that observation was supported by the fact that under the laws of most States the administrative authorities were also competent to make such orders, the purpose being not to punish a specific act but to deter foreign nationals from further infringing the legislation on the entry and stay of aliens. The aim of exclusion orders was therefore essentially preventive. It was that special characteristic that made it possible to request the rescission of such orders, no equivalent remedy being available for criminal penalties in the strict sense. Referring to the criteria established by the Court ’ s case-law for determining whether a particular penalty was criminal in character, the Government contended that it appeared clear that an exclusion order could not be regarded as a penalty or as criminal in character for the purposes of the Convention. It was a measure peculiar to immigration control and one far removed from the context of ordinary criminal proceedings.
30. The Government observed that in any event, however exclusion orders were classified, and even if they were classified as criminal penalties, it was common ground that proceedings for the rescission of such orders did not entail the court “determining” a criminal charge against the applicant. Such proceedings did not entail any decision by the relevant court on the merits of the charge. The court did not decide whether the applicant was guilty of the offence forming the basis of the exclusion order. Indeed, the arguments generally relied on by applicants when seeking rescission of an exclusion order showed that the debate focused on the applicant ’ s personal circumstances, which, by definition, did not concern the validity of the earlier conviction. The court to which the application for rescission was made merely had to decide whether or not it should remain in effect. Indeed, when applications for rescission were lodged, the applicant was no longer a “person charged” since such applications were precluded unless the conviction had become final. Therefore applications for rescission of exclusion orders did not concern the penalty itself, but its enforcement. That observation had, moreover, led the Commission to express the opinion that the criminal limb of Article 6 § 1 was not applicable to disputes concerning applications for the rescission of such orders.
31. The Government concluded by asking the Court to hold that Article 6 § 1 of the Convention was inapplicable in the instant case.
32. The applicant referred to the facts of the case and the various steps and procedures he had taken before the domestic courts in order to obtain the right to reside in France. He submitted that having regard, in particular, to the effects that the proceedings in issue had had on his family life, Article 6 § 1 of the Convention should be applicable.
33. The Court notes, firstly, that the Government have not denied the existence of a dispute ( contestation ) within the meaning of Article 6 § 1. However, they maintained that the dispute in question did not concern the determination of the applicant ’ s civil rights or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention.
34. The Court points out that, under its case-law, the concepts of “civil rights and obligations” and “criminal charge” cannot be interpreted solely by reference to the domestic law of the respondent State. On several occasions, the Court has affirmed the principle that these concepts are “autonomous”, within the meaning of Article 6 § 1 of the Convention (see, among other authorities, the König v. Germany judgment of 28 June 1978, Series A no. 27, pp. 29-30, §§ 88-89; the Baraona v. Portugal judgment of 8 July 1987, Series A no. 122, pp. 17-18, § 42; and the Malige v. France judgment of 23 September 1998, Reports of Judgments and Decisions 1998 ‑ VII, p. 2935, § 34). The Court confirms those principles in the instant case, as it considers that any other solution might lead to results that are incompatible with the object and purpose of the Convention (see, mutatis mutandis, the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 34, § 81, and the König judgment cited above, pp. 29-30, § 88).
35. The Court has not previously examined the issue of the applicability of Article 6 § 1 to procedures for the expulsion of aliens. The Commission has been called upon to do so, however, and has consistently expressed the opinion that the decision whether or not to authorise an alien to stay in a country of which he is not a national does not entail any determination of his civil rights or obligations or of any criminal charge against him within the meaning of Article 6 § 1 of the Convention (see, for example, Uppal and Singh v. the United Kingdom, application no. 8244/78, Commission decision of 2 May 1979, Decisions and Reports (DR) 17, p. 149; Bozano v. France, application no. 9990/82, Commission decision of 15 May 1984, DR 39, p. 119; Urrutikoetxea v. France, application no. 31113/96, Commission decision of 5 December 1996, DR 87-B, p. 151; and Kareem v. Sweden, application no. 32025/96, Commission decision of 25 October 1996, DR 87-A, p. 173).
36. The Court points out that the provisions of the Convention must be construed in the light of the entire Convention system, including the Protocols. In that connection, the Court notes that Article 1 of Protocol No. 7, an instrument that was adopted on 22 November 1984 and which France has ratified, contains procedural guarantees applicable to the expulsion of aliens. In addition, the Court observes that the preamble to that instrument refers to the need to take “further steps to ensure the collective enforcement of certain rights and freedoms by means of the Convention ...”. Taken together, those provisions show that the States were aware that Article 6 § 1 did not apply to procedures for the expulsion of aliens and wished to take special measures in that sphere. That construction is supported by the explanatory report on Protocol No. 7 in the section dealing with Article 1, the relevant passages of which read as follows:
“6. In line with the general remark made in the introduction ..., it is stressed that an alien lawfully in the territory of a member state of the Council of Europe already benefits from certain guarantees when a measure of expulsion is taken against him, notably those which are afforded by Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life), in connection with Article 13 (right to an effective remedy before a national authority) of the ... Convention ..., as interpreted by the European Commission and Court of Human Rights ...
7. Account being taken of the rights which are thus recognised in favour of aliens, the present article has been added to the ... Convention ... in order to afford minimum guarantees to such persons in the event of expulsion from the territory of a Contracting Party. The addition of this article enables protection to be granted in those cases which are not covered by other international instruments and allows such protection to be brought within the purview of the system of control provided for in the ... Convention ...
16. The European Commission of Human Rights has held in the case of Application No. 7729/76 that a decision to deport a person does ‘ not involve a determination of his civil rights and obligations or of any criminal charge against him ’ within the meaning of Article 6 of the Convention. The present article does not affect this interpretation of Article 6.”
37. The Court therefore considers that by adopting Article 1 of Protocol No. 7 containing guarantees specifically concerning proceedings for the expulsion of aliens the States clearly intimated their intention not to include such proceedings within the scope of Article 6 § 1 of the Convention.
38. In the light of the foregoing, the Court considers that the proceedings for the rescission of the exclusion order, which form the subject matter of the present case, do not concern the determination of a “civil right” for the purposes of Article 6 § 1. The fact that the exclusion order incidentally had major repercussions on the applicant ’ s private and family life or on his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6 § 1 of the Convention (see, mutatis mutandis, the Neigel v. France judgment of 17 March 1997, Reports 1997-II, pp. 410-11, §§ 43-44, and the Maillard v. France judgment of 9 June 1998, Reports 1998-III, pp. 1303-04, §§ 39-41).
39. The Court further considers that orders excluding aliens from French territory do not concern the determination of a criminal charge either. In that connection, it notes that their characterisation within the domestic legal order is open to different interpretations. In any event, the domestic legal order ’ s characterisation of a penalty cannot, by itself, be decisive for determining whether or not the penalty is criminal in nature. Other factors, notably the nature of the penalty concerned, have to be taken into account (see Tyler v. the United Kingdom, application no. 21283/93, Commission decision of 5 April 1994, DR 77, pp. 81-86). On that subject, the Court notes that, in general, exclusion orders are not classified as criminal within the member States of the Council of Europe. Such orders, which in most States may also be made by the administrative authorities, constitute a special preventive measure for the purposes of immigration control and do not concern the determination of a criminal charge against the applicant for the purposes of Article 6 § 1. The fact that they are imposed in the context of criminal proceedings cannot alter their essentially preventive nature. It follows that proceedings for rescission of such measures cannot be regarded as being in the criminal sphere either (see, mutatis mutandis, Renna v. France, application no. 32809/96, Commission ’ s decision of 26 February 1997, unreported).
40. The Court concludes that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant ’ s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention.
41. Consequently, Article 6 § 1 is not applicable in the instant case.
Holds by fifteen votes to two that Article 6 § 1 of the Convention is not applicable.