DISSENTING OPINION OF JUDGE PETTITI

(Translation)

Unlike the majority, I have not voted in favour of a violation of Article 8 (art. 8).

To be sure, the effect of the judgment is confined to the particular case and to the special circumstances: Mr Beldjoudi has spent forty-one years of his life to date in France and has been married to a Frenchwoman for twenty-two years. But it seems to me that neither the reasoning on the principle nor the grounds given for the decision are consistent with a precise construction and evaluation of Article 8 (art. 8) of the European Convention, with reference to the deportation of aliens who have committed crimes.

The majority have indeed taken into account the fact that the deportation order was issued on 2 November 1979, before the convictions of 28 March 1978 and 4 December 1986; but they also seem to have accepted as additional criteria or reasons the authorities ’ refusal in 1970 to grant Mr Beldjoudi the French nationality sought by him, and also the absence of links with Algeria. They consider that deportation would not be proportionate to the legitimate aim, without giving adequate specifications of the extent of that proportionality in reply to the distinctions drawn by the Conseil d ’ État .

The Convention does not limit the sovereign right of States to decide to deport from their territory aliens who have committed crimes.

The right of an alien to reside on the territory of a High Contracting Party is not guaranteed as such by the Convention. Similarly, the right of asylum and the right not to be deported do not appear as such in the series of rights and freedoms guaranteed by the Convention (this is stated in several decisions of the Commission).

Only in exceptional circumstances can expulsion mean a violation of the Convention, for example if there is a very serious risk of treatment contrary to Article 3 (art. 3) in the destination State , especially where there is no possibility of deportation to some other democratic State. The Moustaquim judgment had a different context, as it concerned a young adolescent who had no roots outside the country where his family lived, and who had been reintegrated into society.

In the present Beldjoudi case, the circumstances are just the contrary: as an adult, a persistent offender, a person within the sphere of attacks on public order, he came within the class of legitimate deportations.

Moreover, he apparently refused to acquire French nationality by marriage, and had even turned down a compulsory residence order, and so forth.

The European Court appears also to have considered as an implicit reason for its decision the non-attribution of French nationality. This is to forget that the Evian agreements are an international treaty. The determination of nationality, including the opportunity to choose, was defined by France and Algeria . This was therefore not a unilateral decision by France . Algeria for its part had also insisted on such choices, and does not refrain from deporting Frenchmen who have committed crimes, even if they were born in Algeria and have lived there. Such a bilateral treaty is based on reciprocity and public international law. France cannot be accused of violating the European Convention on Human Rights for having applied the provisions of the Evian agreements and the Code of Nationality to determine Mr Beldjoudi ’ s nationality. Moreover, like any State, France is sovereign in granting or refusing naturalisation.

It appears that the majority of the Court also considered that Mr Beldjoudi was a quasi-Frenchman, a concept which is unknown in international law.

The fact of having lived continuously in the host country or country of residence cannot be a complete bar to the exercise of the right to deport criminals. The special relationship between France and Algeria cannot in itself be considered as preventing deportation, as other member States of the Council of Europe also have similar situations arising from historical relationships between Germans and Poles, Austrians and Italians, Britons and Commonwealth citizens, etc., and such relationships do not prevent justified deportations.

Member States expel criminal citizens in the normal course of events. The only possible general defence should be a reference to Article 3 (art. 3), otherwise a long period of residence would suffice for reliance on Article 8 (art. 8). A great many deportations of aliens from Europe would be affected.

The majority did indeed take note of the significant factor following from Mr Beldjoudi ’ s criminal record and conduct, even after the deportation order of 1979; but they balanced this factor against his personal and family life, on the basis of proportionality. Again, precise criteria should be defined for this balancing exercise, as the European Court normally does. In this judgment there is no definition of the threshold of risks and level of reoffending which should determine whether or not criminal aliens are to be deported. The majority also appear to have considered that departure for Algeria would inevitably have followed in the event of deportation, but this is not certain.

The serious problem of deportations of aliens who have committed crimes, which is a very different problem from that of administrative deportations not brought about by criminal convictions, some of which have dramatic consequences for families, is the subject of concern by the European Economic Community , the Council of Europe and the international organisation Interpol. An overall European policy should be sought, in the spirit of the Convention for the Protection of Fundamental Rights.

In my opinion, the decision of the majority carries within it a source of contradictions, in an exponential interpr État ion of Article 8 (art. 8), if an interference with the private or family life of a persistent offender suffices to prevent deportation, as the position of a persistent offender would amount to a sort of immunity for his benefit. In fact, any deportation affects private or family life, just as any detention does. If a further offence is committed, there would be a further interference. But in that case private life is affected by the conduct of the person concerned.

Each member State remains the master of its own criminal policy, just as it retains the right to define the severity of sentences. In many States deportation is an exemplary penalty in addition to the sentence. In countries with a high proportion of aliens in the population, it is deportation much rather than the threat of prison which is a safeguard against repeated offending and strengthens the national consensus in favour of welcoming immigrants of good character who by their work share in the prosperity of the nation. A deportation measure, as accepted in criminology and criminal policy, is also a measure of protection for the potential victims of repeated offenders, especially in countries with a serious increase in crime and a high concentration of organised crime.

The Convention on Human Rights cannot ignore the aspect of the rights of others and their necessary protection. It would no doubt have been preferable if the French Government, bearing in mind the new provisions (closer to Article 8 of the Convention) (art. 8) of the Law of 29 October 1981 (sections 23 and 25) and the Law of 2 August 1989, had waived deportation in this particular case, in view of the position of the French spouse. If the European Court intended to move towards the review of deportations in similar cases for all member States, it would have to examine matters from the point of view either of Article 6 (art. 6), if that Article had been violated with reference to the domestic proceedings seen in the light of the European Convention on Human Rights, or of Article 3 (art. 3) (inhuman and degrading treatment). The concept of a balance of interests in the event of the possible but not certain use of Article 8 (art. 8) would require a strict application of proportionality, which in my opinion is lacking in the reasoning of the Beldjoudi judgment. The State ’ s right to deport aliens who commit crimes is to a certain extent for the general interest the counterpart of the welcome given to persons enjoying the right of asylum and migrants, which is a key element of international solidarity and the protection of human rights.