THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39652/98

by Nouri MAAOUIA

against France

The European Court of Human Rights (Third Section) sitting on 12 January 1999 as a Chamber composed of

Sir Nicolas Bratza, President,

Mr J.-P. Costa,

Mr L. Loucaides

Mrs F. Tulkens,

Mr W. Fuhrmann,

Mr K. Jungwiert,

Mr K. Traja, Judges,

with Mrs S. Dollé, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 December 1997 by Nouri Maaouia against France and registered on 4 February 1998 under file no. 39652/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

 

THE FACTS

The applicant is a Tunisian national, born in Tunisia in 1958. He lives in Nice. He was represented before the Court by Mr Alain Chemama, of the Nice Bar.

The facts, as submitted by the applicant, may be summarised as follows.

The applicant came to France in 1980 when he was 22 years old. On 14 September 1992 he married a French national with whom he had been living since 1983.

In a judgment of 1 December 1988 the Alpes-Maritimes Assize Court sentenced the applicant to six years’ imprisonment for assaults committed in 1985. The applicant was released on 14 April 1990.

On 8 August 1991 the Minister of the Interior made an order for the applicant’s deportation. He was informed of that order (of which he had previously been unaware) on 6 October 1992 when he went to Nice Administrative Centre to regularise his situation.

When the applicant refused to board an aeroplane for Tunisia, criminal proceedings were instituted against him for failing to comply with a deportation order. In a judgment of 19 November 1992 the Nice Criminal Court sentenced him to one year’s imprisonment and ten years’ exclusion from French territory. That judgment was upheld on appeal by the Aix-en-Provence Court of Appeal on 7 June 1993. An appeal by the applicant on points of law to the Court of Cassation was dismissed on 1 June 1994 on the ground that he had not argued in the lower courts that the order for his deportation was unlawful.

In December 1992 the applicant applied to quash the deportation order. In a judgment of 14 February 1994 the Nice Administrative Court quashed the deportation order of 8 August 1991 on the ground, inter alia, that the applicant had never been summoned before the Commission on Deportation of Aliens. That judgment became final on 14 March 1994 after it had been served on the Minister of the Interior.

In an application of 2 August 1994, which he renewed on 6 July 1995 and 9 October 1997, the applicant sought to have the exclusion order of 19 November 1992 lifted on the ground that the deportation order had been quashed. In a judgment of 26 January 1998 the Aix-en-Provence Court of Appeal allowed the application and ordered that the exclusion measure should be lifted.

The applicant also applied to regularise his administrative position. He was initially issued with receipts valid as temporary residence permits, as opposed to work permits, for renewable three-month periods. On 4 September 1995, however, he was given a new residence permit, valid for three months and authorising him to look for work.

 

On 14 September 1995 the applicant applied to the prefect of Alpes-Maritimes for a residence permit allowing him to remain and work in France permanently, regard being had to his marriage to a French citizen. On 9 April 1996 the applicant was informed that his application had been refused on 2 April 1996. The applicant appealed to the Nice Administrative Court, which in a judgment of 27 September 1996 dismissed his appeal on the following grounds:

“ ... The documents in the case file do not show that Mr Maaouia provides for his child, who is supported by his French wife. Nor is the appellant’s presence at the home absolutely necessary on grounds of his wife’s ill-health; regard being had to all the circumstances of the case, and particularly to Mr Maaouia’s sentence by the Assize Court to six months’ imprisonment for having on 28 December 1985 obtained items by false pretences and with the use of violence, the offenders being armed, the prefect of Alpes-Maritimes did not, in refusing to issue the appellant with a residence permit, interfere with his right to respect for his family life in a way which was disproportionate to the aims in pursuit of which that decision was taken; the ground of appeal based on an infringement of the provisions of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms cannot therefore be allowed.

It has not, moreover, been established that the decisions in question were vitiated by a manifestly erroneous assessment of Mr Maaouia’s personal situation, an assessment which was made by the prefect of Alpes-Maritimes.

Lastly, in limiting his grounds of appeal to reference to the judgment of 14 February 1994 in which the court had quashed the deportation order against him of 8 August 1991 because of a procedural defect, Mr Maaouia has failed to make out an abuse of authority rendering unlawful the decisions not to grant him a residence permit.”

On 24 December 1996 the applicant lodged an appeal against that judgment with the Lyons Administrative Court of Appeal. In an order of 29 August 1997 the President of the Lyons Administrative Court of Appeal sent the case file to the Marseilles Administrative Court of Appeal, which had jurisdiction to hear the appeal. The case is still pending there.

Lastly, on 22 July 1994 the applicant applied to the Criminal Cases Review Board of the Court of Cassation to re-open the criminal proceedings in which he had been sentenced to one year’s imprisonment and ten years’ exclusion from France. In a judgment of 28 April 1997, served on him on 22 September 1997, the Court of Cassation dismissed his appeal on the following grounds:

“In a judgment of 7 June 1993 the Aix-en-Provence Court of Appeal ... sentenced Nouri Maaouia to one year’s imprisonment and ten years’ exclusion from French territory for failing to comply with a deportation order made by the Minister of the Interior on 8 August 1991.

In a judgment of the Nice Administrative Court of 14 February 1994, which  subsequently became final, that order was quashed;

As matters stand, and since the sentence handed down on 7 June 1993 was based on an enforceable deportation order of the Minister of the Interior in respect of which no plea of unlawfulness was raised in the lower courts, the quashing of that order does not constitute a new fact such as to put in doubt the applicant’s guilt within the meaning of Article 622-4 of the Code of Criminal Procedure.

For these reasons,

The Board dismisses the application for a retrial.”

On 21 July 1998 the applicant obtained a temporary residence permit valid for one year (from 13 July 1998 to 12 July 1999).

COMPLAINTS

The applicant submitted that, despite the fact that the deportation order against him had been quashed on 14 February 1994 and he had been issued with temporary residence permits, he was still in a highly precarious position in France more than five years after his marriage and more than five years after he had gone to the Prefecture to regularise his position. He alleged that there had been a violation of Article 6 § 1 of the Convention.

The applicant maintained that he was entitled to compensation for being convicted by the Nice Criminal Court despite the fact that the deportation order was subsequently quashed. He relied on Article 3 of Protocol No. 7 to the Convention.

The applicant stated that he had been married to a French national since 1992. He complained that the French authorities’ refusal to issue him a permanent residence permit infringed his right to respect for his private and family life as guaranteed under Article 8 of the Convention.

THE LAW

1.      The applicant submitted that the French courts had failed to examine his case within a reasonable time. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“1.  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. ...”

The Court considers that in the current state of the case file it is not in a position to rule on the admissibility of this complaint and that notice of this part of the application should be given to the respondent Government under Rule 54 § 3 (b) of its Rules.

 

2. The applicant submitted that he was entitled to compensation for being convicted by the Nice Criminal Court despite the fact that the deportation order had subsequently been quashed. He relies on Article 3 of Protocol No. 7 to the Convention, which reads as follows:

“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”

The Court observes, however, that the application for a retrial lodged by the applicant after the order for his deportation had been quashed was dismissed by a judgment of the Court of Cassation dated 28 April 1997 on the ground that the applicant had not argued in the lower courts, namely the Nice Criminal Court and the Aix-en-Provence Court of Appeal, that the deportation order was unlawful. Under the circumstances, the Court considers that the applicant did not effectively exhaust domestic remedies, so that this part of this application must be declared inadmissible pursuant to Article 35 § 1 of the Convention.

3. The applicant complained that the French authorities’ refusal to issue him a permanent residence permit had infringed his right to respect for his private and family life as guaranteed under Article 8 of the Convention.

Article 8 of the Convention provides:

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

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 Court observes that the applicant lives in France and that, after the deportation order against him had been quashed, he was issued with temporary residence permits allowing him to reside legally in France. On 21 July 1998 the prefect of Alpes-Maritime issued the applicant with a temporary residence permit valid for one year authorising him to carry on an occupation in France.

Having regard to that fact, the Court considers that the applicant cannot any longer argue that he is a “victim” within the meaning of Article 34 of the Convention as regards his private and family life (No. 9097/80, Dec. 13.10.82, DR 30, p. 119; mutatis mutandis, Eur. Court HR, the B.B. v. France judgment of 7 September 1998, Reports of Judgments and Decisions 1998).

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention.

For these reasons, the Court unanimously,

ADJOURNS its examination of the applicant’s complaint regarding the length of the proceedings to have lifted the order permanently excluding him from French territory lodged by the applicant on 2 August 1994, which was the subject of a judgment of the Aix-en-Provence Court of Appeal on 26 January 1998 (Article 6 § 1 of the Convention);

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

S. Dollé N. Bratza

Registrar President

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