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THE FACTS

The applicant is a Tunisian national. He was born in 1964 and lives in Tunisia.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant came into France in 1964 when he was four months old and lived there continuously with his family until he was deported to Tunisia in July 1995. He has eight brothers and sisters, five of whom have French nationality. He received all his school education in France. On 30 May 1996 he married a French national. He also has a twelve-year-old daughter of French nationality from a previous relationship.

In a judgment of 15 May 1995 the Carcassonne Criminal Court sentenced the applicant, who had a residence permit valid from 11 April 1983 to 10 April 1986, to three months’ imprisonment for attempted burglary, but did not enforce his previous suspended sentences. The court also dismissed his application for the prison sentence to run concurrently with the sentence imposed by the same court on 17 April 1985 for a handling offence. In a judgment of 21 January 1986 the Montpellier Court of Appeal upheld that judgment after noting, inter alia, that the applicant already had a number of earlier convictions.

The applicant did not apply for renewal of his residence permit when it expired on 10 April 1986.

On 25 September 1986 the Auxerre Criminal Court sentenced the applicant to eight months’ imprisonment, together with a three-year prohibition on residing on French territory, for theft offences and possession of narcotics.

In a judgment of 7 July 1987 the Carcassonne Criminal Court sentenced the applicant to one month’s imprisonment, together with a three-year prohibition on residing on French territory, for unlawfully entering French territory. In a judgment of 13 October 1987 the Montpellier Court of Appeal upheld that judgment. On 21 February 1989 it dismissed an application to have the exclusion order lifted.

On 9 September 1994 the Chalon-sur-Saône Criminal Court sentenced the applicant to fifteen months’ imprisonment, together with a three-year prohibition on residing on French territory, for burglary and illegally staying in France. In a judgment of 3 November 1994 the Dijon Court of Appeal increased the prison sentence to eighteen months. It noted, among other things, that the applicant had entered France illegally in 1992 and had since been staying there without a valid residence permit. The applicant appealed on points of law, but did not lodge any grounds in support of his appeal.

On 9 January 1995 the Court of Cassation dismissed his appeal.

On 22 July 1995 the applicant was deported.

On 31 July 1995 the applicant applied to the Court of Appeal to have the order excluding him from French territory lifted. In a judgment of 14 December 1995 the Dijon Court of Appeal dismissed his application on the following grounds:

“Hamaïdi Rezeck has applied for the additional measure prohibiting him from residing on French territory to be lifted on account of the material and financial difficulties he has encountered in Tunisia since being forcibly repatriated.

Hamaïdi Rezeck left France on 22 July 1995 and wrote to the court on 31 July 1995. The difficulties he has encountered, assuming them to be genuine, are surmountable and do not in any way justify lifting the prohibition order especially as the individual in question has been convicted under different identities, lives by his wits and has no clear profession.

The said application must accordingly be dismissed”.

On 24 April 1996 the applicant got married in Tunis to a French national, S.C. On 30 May 1996 the marriage-certificate details were entered in the Register of Births, Marriages and Deaths at the French Consulate in Tunis. On 18 January 1997 S.C. had a son, A.C.

In November 1997 the applicant lodged a further application for the order excluding him from French territory to be lifted. He stated that he wanted to live in France again with his family and explained that he had had a French girlfriend at the time of his deportation. In a judgment of 5 March 1998 the Dijon Court of Appeal dismissed his application on the ground that the applicant had no official address, no job and no stable home in France.

At the end of 1998 the applicant, for whom the exclusion order had ceased to be effective on 18 July 1998, applied for a short-stay visa for France. He requested leave to stay there in December 1998 in order to comply with a summons from the Niort tribunal de grande instance issued in divorce proceedings filed by his wife. The French Consulate in Tunis requested him to produce the summons in question. The applicant sent the Consulate a summons to a hearing on 15 March 1999. His application for a visa was refused on an unknown date. According to the Government, it was refused because it was inconsistent.

COMPLAINT

Relying on Article 8 of the Convention, the applicant submitted that he had lived in France with his whole family since he was four months old. He also stressed that he was married to a French national and had a son, A.C., and a twelve-year-old daughter of French nationality who were living in France. He complained in substance that the order excluding him from French territory infringed his right to respect for his private and family life, contrary to Article 8 of the Convention.

THE LAW

The applicant submitted that the decision of 5 March 1998 dismissing his application for the exclusion order to be lifted infringed his right to respect for his private and family life. Article 8 of the Convention provides:

“1.  Everyone has the right to respect for his private and family life ...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government raised, as a preliminary issue, two objections to admissibility.

They argued first that the applicant could not now claim to be a “victim” of an interference with his private and family life because the exclusion order had expired on 18 July 1998.

They went on to argue that the applicant had not complied with the exhaustion of domestic remedies rule because he had not appealed on points of law against the decision of 5 March 1998 dismissing his application for the exclusion order to be lifted. Although they were aware that the Court had dismissed that objection in the Dalia case (Dalia v. France judgment of 2 February 1998, Reports of Judgments and Decisions 1998-I, §§ 35-38), they considered, nonetheless, that an appeal on points of law was both sufficient and accessible and that it could not be held in advance that it would have been ineffective. They noted that the Criminal Division of the Court of Cassation had on many occasions, on appeals heard against Court of Appeal judgments imposing exclusion orders from the national territory or dismissing applications for such orders to be lifted or, alternatively, ruling on breaches of deportation orders, examined whether or not those judgments were compatible with the requirements of Article 6 of the Convention (see Cass. crim. 3 May 1990, Bull. crim. 1990, no. 170; 23 October 1991, Bull. crim. 1991, no. 371; 19 December 1995, B; Juris-Data no. 004258; 8 December 1993, appeal no. 93-83.635; 4 January 1995, appeal no. 93-85.081; and 6 May 1997, Bull. crim. 1997, no. 172). In addition to the judgments referred to by the Government in the Dalia case (judgments of 23 October 1991 and 21 November 1991), the Government reiterated that the Criminal Division had been required to exercise its power of review in the following cases:

(i)  in judgments of 27 July 1993 and 4 January 1995 the Court of Cassation had restated the Court of Appeal’s reasoning in detail before dismissing a complaint based on an infringement of Article 8 of the Convention;

(ii)  in a judgment of 6 May 1997 it had considered that “the Court of Appeal, which had found the offence to be a serious one and therefore ordered the defendant’s exclusion from French territory for ten years as a measure necessary for the prevention of disorder or crime and the protection of the rights of others in accordance with Article 8 § 2 of the European Convention on Human Rights” had justified its decision;

(iii)  lastly, on 26 March 1996 the Court of Cassation had quashed a judgment of the Rennes Court of Appeal dismissing, on account of the appellant’s current circumstances, an objection that an expulsion order was unlawful under Article 8 of the European Convention. The Court of Cassation reiterated that the compatibility of such an order with the provisions of Article 8 had to be assessed purely on the basis of points of fact and law prevailing on the date on which the order was made.

In the light of those decisions, the Government concluded that an appeal on points of law to the Court of Cassation was an effective remedy because the Court of Cassation sought to satisfy itself that the courts of appeal had duly addressed the complaint based on an infringement of Article 8 and had adduced adequate grounds in support of their reasoning.

The applicant did not comment on those objections.

The Court reiterates that in order to claim to be a “victim” within the meaning of Article 34 of the Convention an applicant must have been directly affected by the act or omission in question: he must be directly affected by it or run the risk of being directly affected by it (see the Norris v. Ireland judgment of 26 October 1988, Series A no. 142, §§ 30 and 31, and the Otto-Preminger-Institut v. Austria judgment of 20 September 1994, Series A no. 295-A, § 39). The Court notes that the applicant was deported to Tunisia in 1995 and that the exclusion order did not expire until 18 July 1998, which was eight months after the application had been lodged and four months after the decision of 5 March 1998 dismissing his application to the Dijon Court of Appeal for the order to be lifted. Consequently, the Court concludes that the applicant did not lose his “victim” status for the purposes of Article 34 of the Convention on account of the exclusion order expiring on 18 July 1998.

With regard to the objection based on non-exhaustion of domestic remedies, the Court reiterates that in Civet v. France ([GC], no. 29340/95, ECHR 1999-VI), it emphasised the crucial role of cassation proceedings. Although the Court of Cassation does not have jurisdiction to reassess matters of pure fact because its jurisdiction is limited to examining grounds of law, “this does not mean that the ‘facts’ and the ‘law’ can be conceived of as two radically separate fields and that reasoning which effectively denies that the two are interwoven and are complementary is acceptable”. The Court of Cassation “nonetheless has the task of checking that the facts found by the tribunals of fact support the conclusions reached by them on the basis of those findings”. Over and above examining whether a judgment referred to it complies with the formal requirements, the Court of Cassation checks that the decision is justified and that the reasons are adequate.

The Court also reiterates that in the above-mentioned Dalia case (§§ 35 to 38) it dismissed the Government’s objection of inadmissibility for failure to appeal to the Court of Cassation on the ground that they had not produced any case-law to support their arguments as to the adequacy and effectiveness of such an appeal.

The Court has examined the issue in the light of its above-mentioned judgments, the decisions referred to by the Government and other recent judgments of the Court of Cassation.

It finds that with regard to appeals lodged against decisions imposing exclusion orders, the Court of Cassation will examine the compatibility of the exclusion with the guarantees of Article 8 of the Convention where that particular ground of appeal is submitted to it.

Admittedly, with regard to the lifting of exclusion orders the Court of Cassation has often dismissed grounds of appeal relying on the right to private and family life by adopting reasoning that confirmed the finding in the above-mentioned Dalia case that an appeal to the Court of Cassation was inadequate and ineffective. After noting the grounds for dismissing the application for the order to be lifted, the Court of Cassation has dismissed that ground of appeal and held that “the judgment cannot be criticised for the reasons alleged because the lifting of an exclusion order is a matter for the exclusive jurisdiction of the tribunals of fact” (Cass. crim. 4 May 2000, appeal no. 99-84.001; see also Cass. crim. 23 June 1999, appeal no. 98-88.068).

However, an examination of certain other judgments relating to exclusion orders shows that the Court of Cassation does at the very least, within the confines of its powers, “check that the facts found by the tribunals of fact support the conclusions reached by them on the basis of those findings” (see the above-mentioned Civet judgment). It has, moreover, quashed a judgment dismissing an application for an order to be lifted for lack of a legal basis on the ground that the Court of Appeal had reached its decision “without examining the personal and family reasons submitted by the applicant” in support of the application (Cass. crim. 3 March 1999, appeal no. 98-82.007).

On that basis the Court is of the opinion that the Court of Cassation can assess whether an exclusion order or the decision to maintain it are compatible with the requirements of Article 8 of the Convention.

By failing to lodge an appeal on points of law, the applicant did not provide the French courts with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1, namely the opportunity of preventing or putting right the violations alleged against them (see, among other authorities, the above-mentioned Civet judgment and the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 19, § 36). The objection on the ground of non-exhaustion of domestic remedies is therefore founded and the application must accordingly be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé L. Loucaides 
 Registrar President

HAMAÏDI v. FRANCE DECISION


HAMAÏDI v. FRANCE DECISION