DISSENTING OPINION OF JUDGE PALM

I have voted for a violation of Article 8 of the Convention (art. 8) on the following grounds.

Like the majority of the Court, I consider that the deportation order in 1990 amounted to an interference with Mr Bouchelkia ' s right to respect for his private and family life. I also share the view that the deportation was in accordance with the law and had the legitimate aim of "prevention of disorder or crime".

However, I cannot agree with the majority ' s finding that the deportation was necessary. I find it in principle difficult to accept that a country can be justified under the Convention in expelling a second-generation migrant to his country of origin because of his behaviour when almost all his ties are with his new homeland. In my opinion there must be much stronger reasons than those advanced in the present case to justify such an action. As a rule, second-generation migrants ought to be treated in the same way as nationals. Only in exceptional circumstances should a deportation of these non-nationals be accepted.

Mr Bouchelkia was only 2 years old when he arrived in France with his mother and an elder brother under the arrangement for family reunion. His mother and nine brothers and sisters live in France . Since 1986 he has had a close relationship with a French woman whom he later married and with whom he now has a child. At the time of the deportation order he was 20 years old and had lived eighteen years in France where he had all his schooling and where he had worked. Since his grandparents ' death in 1985 he has - besides an uncle - no close relatives in Algeria . He neither speaks nor reads Arabic.

Even if the crimes (rape and theft) that Mr Bouchelkia committed were of a serious nature, it must be borne in mind that he, at the time, was only 17 years old and that the Haut- Rhin Juvenile Assize Court found mitigating circumstances and sentenced him to five years ' imprisonment.

Taking all these factors into account, I find it totally out of proportion to deport Mr Bouchelkia to Algeria . He has been convicted for the crimes he committed and he has served his sentence. That should suffice just as it suffices for similar crimes committed by nationals.

[1] The case is numbered 112/1995/618/708. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997-I), but a copy of the Commission's report is obtainable from the registry.