CONCURRING OPINION OF JUDGE MARTENS

1. I agree with the findings of the Court but, as far as Mr Beldjoudi is concerned, I would have preferred its decision to have been based on (a) a less casuistic reasoning and (b) interference with the right to respect for private life.

2. Paragraph 1 of Article 3 of Protocol No. 4 (P4-3) to the Convention forbids the expulsion of nationals. In a Europe where a second generation of immigrants [1] is already raising children (and where violent xenophobia is increasing to an alarming extent) it is high time to ask ourselves whether this ban should not apply equally to aliens who were born and bred in a member State or who have otherwise, by virtue of long residence, become fully integrated there (and, conversely, become completely segregate d from their country of origin) [2] .

In my opinion, mere nationality does not constitute an objective and reasonable justification for the existence of a difference as regards the admissibility of expelling someone from what, in both cases, may be called his "own country". I therefore have no hesitation in answering the above question in the affirmative. I believe that an increasing number of member States of the Council of Europe accept the principle that such "integrated aliens" should be no more lia ble to expulsion than nationals [3] , an exception being justified, if at all, only in very exceptional circumstances. My own country is one of those States [4] and since 1981 - with the exception of th e period 1986-1989 so is France [5] .

I would have preferred the Court ’ s decision in the present case to have been based on the aforesaid principle, coupled with a finding that there were no very exceptional circumstances justifying a departure therefrom. A judgment along those lines would have achieved what the Moustaquim v. Belgium [6] and the present judgment have failed to do, namely introduce a measure of legal certainty; this seems highly desirable, especially in this field.

3. The latter consideration also militated, as M r Schermers rightly pointed out [7] , in favour of basing the Court ’ s decision - if possible - on interference with the right to respect for private life, since, whilst not all "integrated aliens" threatened with expulsion are married, they all have a private life.

In my opinion, it is possible to do so. Expulsion severs irrevocably all social ties between the deportee and the community he is living in and I think that the totality of those ties may be said to be part of the concept of private life, within the meaning of Article 8 (art. 8).

It is true that, at least at first sight, the text of this provision seems to suggest otherwise. Read as a whole, it apparently guarantees immunity of an inner circle in which one may live one ’ s own, one ’ s private, life as one chooses. This "inner circle" concept presupposes an "outside world" which, logically, is not encompassed within the concept of private life. Upon further consideration, however, this "inner circle" concept appears too restrictive. "Family life" already enlarges the circle, but there are relatives with whom one has no family life stricto sensu. Yet the relationship with such persons, for instance one ’ s parents, undoubtedly falls within the sphere which has to be respected under Article 8 (art. 8). The same may be said with regard to one ’ s relationships with lovers and friends. I therefore share the view of the Commission, which has repeatedly held that "respect for private life"

"comprises also to a certain degree the right to establish and to develop relationships with other human beings, especially in the emotional field, for the development and fulfi lment of one ’ s own personality" [8] .

I think that the Court ’ s Dudgeon v. the United Kingdom, Rees v. the United Kingdom, Cossey v. the United Kin gdom and B. v. France judgments [9] are also based on the idea that to a certain extent a person ’ s "external" relations with others (outside the "inner circle") do fall wit hin the sphere of private life [10] .

The same idea presumably underlies the aforementioned ban on the expulsion of nationals: when speaking of nationals, one almost always thinks primarily of those whose links with a given country are particularly close and manifold because they have been born and bred there [11] , in a family which h as lived there for generations [12] ; it was clearly felt to be unacceptable that, by compelling such persons to leave, never to return, a State should be entitled to sever those ties irrevocably.

To sum up: I think that expulsion, especially (as in the present case) to a country where living conditions are markedly different from those in the expelling country and where the deportee, as a stranger to the land, its culture and its inhabitants, runs the risk of having to live in almost total social isolation, constitutes interference with his right to respect for his private life.

[*]  The case is numbered 55/1990/246/317.  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.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: case no. 34/1990/225/289, struck out of the list on 23 January 1991 following a friendly settlement (Series A no. 191-B).

[*]  Note by the Registrar: For practical reasons this annex will appear only with the printed version of the judgment (volume 234-A of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[*]  See pp. 37 to 39 below.

[*]   It is because the case should in my opinion also have been examined from this point of view that I have been unable to approve of point 2 of the operative provisions of the judgment.  I entirely agree with it in so far as it relates to Articles 9, 12 and 14 (art. 9, art. 12, art. 14) of the Convention.

[*]    The present case differs in this respect from the Soering (Series A no. 161) and Cruz Varas (Series A no. 201) cases.

[*]     See paragraphs 12, 14, 73 and 75 of the judgment.

[1] I realise, of course, that the present case may be distinguished from an ordinary "second-generation immigrant's expulsion case" in that Mr Beldjoudi's parents, when they took up residence in France, were not "immigrants" stricto sensu but French citizens coming to live in their own country.  I think, however, that it is legitimate to ignore this difference for present purposes.

[2] This question has, of course, a more limited scope in those member States where, under the principle of ius soli, second- generation immigrants acquire citizenship by reason of their birth within the territory; it is, therefore, probably more exact to refer to expulsion of "integrated aliens" rather than "second-generation immigrants' expulsion".

[3] This principle has already been accepted in the context of the International Covenant on Civil and Political Rights: under Article 12 para. 4 of the Covenant "no one shall be arbitrarily deprived of the right to enter his own country"; this right implies a ban on the expulsion not only of nationals, but also - as appears from the drafting history of the words "his own country" - of all "integrated aliens" (such as second-generation immigrants); see M. Nowak, CCPR- Kommentar, Art. 12, Randnummern 45-51; Van Dijk & Van Hoof, De Europese Conventie, 2nd edition, p. 551; Velu and Ergec, La Convention européenne des Droits de l'Homme, para. 372 (p. 322).

[4] See the 1990 version of the "Circular on Aliens": Nederlandse Staatscourant 12 maart 1990, no. 50; see further on this issue, inter alia: Groenendijk, Nederlands Juristenblad 1987, pp. 1341 et seq.; Swart, Preadvies, Nederlandse Juristen-vereniging  1990, para. 35 (pp. 242 et seq.).

[5] See paragraphs 42-50 of the Court's judgment.

[6] Judgment of 18 February 1991 , Series A no. 193.

[7] See his concurring opinion appended to the Commission's opinion in the present case pp. 48 and 49.

[8] See, inter alia: Decisions and Reports, no. 5, pp. 86-87, and no. 10, p. 100; Series B no. 36, pp. 25-26.

If the Commission, in so holding, intended to give a definition of "private life" within the meaning of Article 8 (art. 8) (as has been suggested by Doswald-Beck, Human Rights Law Journal 1983, p.288), I do not agree: it is highly difficult to define the concept and I submit that the time has not yet come to try to do so.

[9] Judgments of 22 October 1981 , 17 October 1986 , 27 September 1990 and 25 March 1992 , Series A nos. 45, 106, 184 and 232-C.

[10] See further: Velu and Ergec, La Convention européenne des Droits de l'Homme, para. 652 (pp. 535 et seq.).

[11] See paragraph 88 of the Court's Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985 (Series A no. 94, p. 41).

[12] For the idea that a person's personal history and memories may be said to fall within the sphere which has to be respected under Article 8 (art. 8), see the Court's Gaskin v. the United Kingdom judgment of 7 July 1989 (Series A no. 160).