CASE OF C. v. BELGIUM

1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 12 April 1995, within the three-month period laid down by Article 32 para. 1 and Article 47 of the Convention (art. 32-1, art. 47). It originated in an application (no. 21794/93) against the Kingdom of Belgium lodged with the Commission under Article 25 (art. 25) by a Moroccan citizen, Mr C., on 22 March 1993. The applicant asked the Court not to disclose his identity. The Commission's request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Belgium 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 14 of the Convention (art. 8, art. 14).
2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, 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 J. De Meyer, the elected judge of Belgian nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 4 (b)). On 5 May 1995, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mr B. Walsh, Mr A. Spielmann, Mr A.N. Loizou, Mr A.B. Baka, Mr M.A. Lopes Rocha and Mr P. Kuris (Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43). Subsequently Mr L. Wildhaber, substitute judge, replaced Mr Walsh, who was unable to take part in the further consideration of the case (Rules 22 para. 1 and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Belgian Government ("the Government"), the applicant's lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received the Government's and the applicant's memorials on 15 September and 9 October 1995 respectively. On 26 October 1995 the Secretary to the Commission informed the registry that the Delegate did not intend to reply in writing. On 8 February 1996 he supplied the Registrar with various documents he had requested on the President's instructions.
5. In accordance with the President's decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 20 February 1996. The Court had held a preparatory meeting beforehand. There appeared before the Court:
Mr J. Lathouwers, Deputy Legal Adviser,
Head of Department, Ministry of Justice, Agent,
Mr F. Huisman, avocat, Counsel;
The Court heard addresses by Mr Danelius, Mr Marx and Mr Huisman.
I. PARTICULAR CIRCUMSTANCES OF THE CASE
6. The applicant, a Moroccan citizen born in 1955, is currently resident in Morocco.
7. In 1966 he came to live in Belgium with his parents, his brother and his three sisters, who were all Moroccan nationals. Between 1988 and 1991 the sisters adopted Belgian nationality. Two of them later left Belgium for Luxembourg. The applicant's father died in Morocco in 1989.
8. Mr C. lived in Brussels with his family in a house which they owned. After leaving school he trained as a mechanic. From 1984 onwards he worked for the family business as a taxi driver.
9. On 17 October 1985, in Morocco, he married a Moroccan woman who came to live with him in Belgium. Mrs C. gave birth to a son on 10 August 1986. On an unknown date Mr C. divorced his wife in Morocco. She then went back to live there. On 10 July 1991 the Kenitra Court of First Instance ( Morocco ) took formal note of the fact that Mrs C. had waived her right to custody of the child, who returned to Belgium after his father's release (see paragraph 13 below) and lived with his paternal grandmother. Since May 1992 he has apparently been living with one of his aunts in the Grand Duchy of Luxembourg.
10. On 6 April 1988 the Brussels Criminal Court convicted the applicant of criminal damage and sentenced him to two months'imprisonment, suspended for three years, and a fine of sixty times 400 Belgian francs (BEF).
11. Following the seizure of 17.2 kilograms of cannabis, the same court sentenced Mr C. on 14 December 1988 to seven years'imprisonment and a fine of sixty times BEF 1,000 for unlawful possession of drugs and conspiracy. On 30 June 1989 the Brussels Court of Appeal reduced the term of imprisonment to five years. On 28 July 1988, in the course of the judicial investigation, a deputy police superintendent at Ixelles had drawn up the following report on the applicant:
"[Mr C.] is of good conduct in the district. He has notbrought himself to his neighbours'attention through anyimmoral behaviour. His main social contacts are with personsof Moroccan origin. He is known as a taxi driver and works for ... company, whose registered office is in Ixelles ...His average monthly net salary is BEF 25,000. He apparentlyhas no other source of income. He lives in the house whichhis parents own. He occupies one room and pays no rent. Asregards dependants, he was formerly married to [R. S.] andhad a son from that union. The above persons no longer livein Belgium but in Morocco. He has to pay BEF 2,000 per monthto his wife in maintenance. He is hard-working and gives hisemployer complete satisfaction."
12. According to a questionnaire filled in by the authorities at Forest Prison on 24 June 1988, the applicant is said to have claimed to be able to speak Arabic, French and Spanish.
13. Mr C. was released on parole on 23 May 1991. His son, who had been living with his mother while Mr C. was in prison, joined him in Belgium in July 1991 (see paragraph 9 above).
14. A royal order of 25 February 1991, which was served in March 1991, required the applicant to leave Belgium, on the following grounds:
" Whereas [Mr C.] has been found guilty of causing criminaldamage, for which he was sentenced on 6 April 1988, in ajudgment which has become final, to 2 months'imprisonmentand a fine of 400 francs, the term of imprisonment beingsuspended for 3 years; Whereas he has been found guilty, as principal or jointprincipal, of possessing and dealing in prohibited drugs,namely 17.2 kilos of cannabis, aggravated by the fact thatthis offence also constituted participation in the principalor secondary activities of a criminal organisation, for whichoffences he was sentenced on 30 June 1989, in a judgmentwhich has become final, to 5 years'imprisonment and a fineof 1,000 francs; Whereas, accordingly, by his personal conduct, he hasseriously prejudiced public order;"
In reaching the above decision the Minister of Justice had declined to follow the advice of the Aliens'Office, which had suggested that Mr C. should not be deported but served with a warning.
15. On 13 September 1990 the Advisory Board on Aliens had expressed the opinion that deportation was warranted, on the following grounds in particular:
"[Mr C.] was married to a compatriot but is now divorced. Achild was born of this marriage in 1986 and lived for a timewith his mother in Morocco. He is apparently now with her inthe Netherlands ... There is nothing to suggest that the serious threat posed byMr C.'s behaviour has been removed. Were the deportation of an alien to be held to constituteinterference with the exercise of his right to respect forhis private and family life, within the meaning of Article 8of the European Convention for the Protection of Human Rightsand Fundamental Freedoms (art. 8), such interference would belegitimate in the present case, being in accordance with thelaw and, in the applicant's case, in view of the seriousnessof the threat posed by his presence in Belgium, necessary inthe interests of public safety and the prevention of disorderand crime."
16. On 21 May 1991 the applicant asked the Conseil d'Etat to quash the deportation order, but on 7 October 1992 the Conseil d'Etat dismissed this application on the following grounds:
"The applicant's first ground of appeal is that there hasbeen a breach of the Minister of Justice's circular of8 October 1990 and Article 8 of the Convention for theProtection of Human Rights and Fundamental Freedoms (art. 8),in that the Minister and the Advisory Board on Aliens failedto take account of the fact that he had been living inBelgium since 1966, that his mother and sisters also livedthere, and that he no longer had any links with Morocco,whose language he did not speak.
The Minister undertook in his circular not to deport an alienwho had been settled in the country for more than ten yearsunless he had been sentenced to a term of imprisonment offive years or more. He reserved the power to deport thealien in certain circumstances. The Minister examined thecircumstances in this case and had valid grounds to concludethat, in view of the seriousness of the facts, the applicantshould be deported, particularly in the light of the familycircumstances described by the Advisory Board on Aliens. Inso doing, he was not in breach of either his own circular orArticle 8 of the Convention (art. 8).
In his second ground of appeal, the applicant alleges thebreach of Article 6 of the Constitution, of the Minister ofJustice's circular of 8 October 1990, of section 62 of theAct of 15 December 1980 on the entry, residence, settlementand expulsion of aliens and of Articles 8 and 14 of theConvention for the Protection of Human Rights and FundamentalFreedoms (art. 8, art. 14), in that the Minister unreasonablydeclined to follow the advice of his department not to deportthe applicant.
The Minister's attention was drawn to the arguments of theAliens Office and the Advisory Board on Aliens. He did notexceed his powers in deciding that, in view of theseriousness of the facts, the applicant should be deported onthe ground that the protection of public order had to prevailover his personal and family interests."
On 11 September 1991 the Conseil d'Etat had declared inadmissible an application by the applicant for a stay of execution, on the ground that he had failed to appear in court.
17. After his release on parole on 23 May 1991 (see paragraph 13 above) Mr C. had thirty days in which to leave Belgium; this time-limit was later extended to 25 September 1991. He complied with the order on an unknown date.
18. The Act of 15 December 1980 "on the entry, residence, settlement and expulsion of aliens", which has since been amended several times, governs the administrative status of aliens. Under section 20, second paragraph, an alien who has been granted a settlement permit may be deported "where he has seriously prejudiced public order or national security". Before such a deportation the Minister of Justice must seek the opinion of the Advisory Board on Aliens, which is composed of a judge, a lawyer and a member of an association for the protection of aliens'interests. Deportation orders are signed by the King and are subject to judicial review by the Conseil d'Etat (section 69).
PROCEEDINGS BEFORE THE COMMISSION
19. In his application to the Commission of 22 March 1993 (no. 21794/93) Mr C. complained of an infringement of his right to respect for his private and family life (Article 8 of the Convention (art. 8), taken separately and in conjunction with Article 14 (art. 14+8)).
20. The Commission declared the application admissible on 27 June 1994. In its report of 21 February 1995 (Article 31) (art. 31), it expressed the opinion that there had been no violation of Article 8 (art. 8) either taken separately (nineteen votes to three) or in conjunction with Article 14 (art. 14+8) (twenty-one votes to one). The full text of the Commission's opinion and of the two dissenting opinions contained in the report is reproduced as an annex to this judgment [3].
I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
21. According to the applicant, his deportation by the Belgian authorities infringed his right to respect for his private and family life and violated Article 8 of the Convention (art. 8), which provides:
"1. Everyone has the right to respect for his private andfamily life, his home and his correspondence. 2. There shall be no interference by a public authority withthe exercise of this right except such as is in accordancewith the law and is necessary in a democratic society in theinterests of national security, public safety or the economicwell-being of the country, for the prevention of disorder orcrime, for the protection of health or morals, or for theprotection of the rights and freedoms of others."
The Government and the Commission rejected this argument.
A. Paragraph 1 of Article 8 (art. 8-1)
22. It must first be ascertained whether Mr C. can rely on a "private and family life" within the meaning of Article 8 para. 1 (art. 8-1).
23. The Government answered this question in the negative. They maintained that the applicant no longer had any particular links with Belgium, as the family nucleus which had settled there in 1966 had subsequently broken up. The applicant's father had died in Morocco and two of his sisters had gone to live in the Grand Duchy of Luxembourg. Unlike his sisters, Mr C. had not applied for Belgian nationality, although he could have done so on reaching the age of 18. The applicant no longer belonged to the family taxi business, had ceased to work for it at the time of his arrest and had not worked for it subsequently. On the other hand, the applicant had preserved strong links with his country of origin, as was shown by his marriage in Morocco to a Moroccan woman and then his divorce there in accordance with the local rite. It was also in accordance with Moroccan custom that the applicant and the mother of his son had agreed that he should have custody of the child. In addition, a 1988 police report had stated that Mr C.'s main social contacts were with people of Moroccan origin, and in the same year he had stated at Forest Prison that he spoke Arabic and Spanish (see paragraphs 11 and 12 above).
24. According to the Commission, the fact that the applicant's son had lived in Belgium with his paternal grandmother and that Mr C. had worked for the family business revealed the existence of some kind of family life within the meaning of Article 8 (art. 8).
25. The Court reiterates that the concept of family on which Article 8 (art. 8) is based embraces, even where there is no cohabitation, the tie between a parent and his or her child, regardless of whether or not the latter is legitimate. Although that tie may be broken by subsequent events, this can only happen in exceptional circumstances (see, among other authorities, the Gül v. Switzerland judgment of 19 February 1996, Reports of Judgments and Decisions 1996-I, pp. 173-74, para. 32, and the Boughanemi v. France judgment of 24 April 1996, Reports 1996-II, pp. 607-08, para. 35). In the present case the mere fact that the applicant was imprisoned and subsequently deported or that his son was then taken in by Mr C.'s sister in the Grand Duchy of Luxembourg, which borders on Belgium, do not constitute such circumstances. In addition, Mr C. established real social ties in Belgium. He lived there from the age of 11, went to school there, underwent vocational training there and worked there for a number of years. He accordingly also established a private life there within the meaning of Article 8 (art. 8), which encompasses the right for an individual to form and develop relationships with other human beings, including relationships of a professional or business nature (see, mutatis mutandis, the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, p. 33, para. 29). It follows that the applicant's deportation amounted to interference with his right to respect for his private and family life.
B. Paragraph 2 of Article 8 (art. 8-2)
26. It is therefore necessary to ascertain whether the deportation in issue satisfied the conditions of paragraph 2 (art. 8-2), that is to say whether it was "in accordance with the law", pursued one or more of the legitimate aims set out in that paragraph, and was "necessary in a democratic society" for the achievement of that aim or aims. 1. "In accordance with the law"
27. It is not contested that the royal order of 25 February 1991 (see paragraph 14 above) was based on sections 20 and 21 of the Act of 15 December 1980 on the entry, residence, settlement and expulsion of aliens (see paragraph 18 above). The Conseil d'Etat, moreover, ruled that it was lawful (see paragraph 16 above). 2. Legitimate aim
28. Those appearing before the Court agreed that the interference in issue had aims which were compatible with the Convention, namely "the prevention of disorder or crime". 3. "Necessary in a democratic society"
29. The Government argued that the deportation in issue was justified by Mr C.'s delinquent conduct. The particular seriousness of the facts which had led to his conviction for unlawful possession of drugs and conspiracy gave reason to fear the greatest risks to public order, since the applicant had not shown any intention of mending his ways. It was further asserted that his attachment to his family and to the host country was not so strong as that of Mr Moustaquim and Mr Beldjoudi (see the Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193, and the Beldjoudi v. France judgment of 26 March 1992, Series A no. 234-A). The consequences of his deportation for his private and family life could not therefore be regarded as disproportionate.
30. The Commission agreed with the above argument in substance.