Information Note on the Court’s case-law 23

October 2000

Maaouia v. France [GC] - 39652/98

Judgment 5.10.2000 [GC]

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Proceedings concerning a request to lift an exclusion order in respect of a foreign national: Article 6 inapplicable

Facts : The applicant, a Tunisian national, entered France in 1980 at the age of twenty-two and in 1992 married a Fr ench national there with whom he had been living for nine years. In 1988 Alpes-Maritimes Assize Court sentenced him to six years’ imprisonment for offences committed in 1985. He was released in April 1990. In August 1991 a deportation order was made agains t him, but he did not become aware of its existence until it was served on him on 6 October 1992 when he attempted to regularise his immigration status at a centre for administrative formalities. The applicant refused to leave France and was prosecuted for failing to comply with a deportation order. In November 1992 Nice Criminal Court sentenced him to one year’s imprisonment and made an order excluding him from French territory for ten years. That decision became final in April 1997. Meanwhile, in December 1992 the applicant had sought judicial review of the deportation order before the administrative courts. In a judgment which became final in March 1994, Nice Administrative Court quashed the deportation order, inter alia , on the ground that no notice had been served on the applicant requiring him to appear before the Deportation Board. On the strength of the Administrative Court’s judgment, the applicant applied to the Principal Public Prosecutor’s Office at Aix-en Provence Court of Appeal on 12 August 199 4 for rescission of the exclusion order. In July 1995 the applicant renewed that application and requested a date for hearing as it had been outstanding for some time. After an inquiry concerning the applicant had been carried out the principal public pros ecutor’s office informed the applicant in November 1997 that the case would be heard on 26 January 1998. On that date the Court of Appeal granted the applicant’s application and rescinded the exclusion order on the ground that the deportation order had bee n quashed. The applicant also made various attempts to regularise his status with the immigration authorities and recently obtained a ten-year residence permit with the right to seek employment. The applicant complained of the unreasonable length of the pr oceedings to obtain rescission of the exclusion order.

Law : Article 6 § 1 – Although the Court had not previously examined the issue of the applicability of Article 6 § 1 to procedures for the expulsion of aliens, the Commission had consistently expressed the opinion that the decision whether or not to authorise an alien to stay in a country of which he was not a national did not come within the scope of Article 6 § 1 of the Convention. The provisions of the Convention had to be construed in the light of th e entire Convention system and, in the case before the Court, it had to be noted that Article 1 of Protocol No. 7, which France had ratified, contained procedural guarantees applicable to the expulsion of aliens. In addition, the preamble to that instrumen t referred 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 showed that the States were aware that Article 6 § 1 did not apply to procedur es for the expulsion of aliens and wished to take special measures in that sphere. That construction was supported by the explanatory report. By adopting Article 1 of Protocol No. 7 the States had clearly intimated their intention not to include such proce edings within the scope of Article 6 § 1 of the Convention. In the light of the foregoing, the proceedings for the rescission of the exclusion order did not concern the determination of a “civil right” for the purposes of Article 6 § 1 and the fact that th e exclusion order had had major repercussions on the applicant’s private and family life or on his prospects of employment could not suffice to bring those proceedings within the scope of civil rights protected by Article 6 § 1. Exclusion orders did not co ncern the determination of a criminal charge either. In that connection, the Court noted that their characterisation within the domestic legal order was open to different interpretations. However, that point could not, by itself, be decisive and other fact ors, notably the nature of the penalty concerned, had to be taken into account. On that subject, the Court noted that, in general, exclusion orders were not characterised as criminal within the member States of the Council of Europe. Such orders, which in most States could also be made by the administrative authorities, constituted a special preventive measure for the purposes of immigration control and did not concern the determination of a criminal charge for the purposes of Article 6 § 1. The fact that t hey were imposed in the context of criminal proceedings could not alter their essentially preventive nature. It followed that proceedings for rescission of such measures could not be regarded as being in the criminal sphere either. The Court therefore conc luded that decisions regarding the entry, stay and deportation of aliens did not concern the determination of civil rights or obligations or of a criminal charge, within the meaning of Article 6 § 1.

Conclusion : Article 6 inapplicable (fifteen votes to two ).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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