DISSENTING OPINION OF JUDGES B INDSCHEDLER-ROBERT AND VALTICOS

(Translation)

We cannot share the view of the majority of the Court that there has been a violation of Article 8 (art. 8) of the Convention in this case or, to be more exact, of the applicant ' s family life.

The "family life" of the applicant, who was an adolescent at the material time, had already ceased to have the closeness and regularity normally associated with the concept. He would disappear when he "ran away" - as it has euphemistically been put, in order not to say committing his offences - and he would return to the fold from time to time, particularly when things were difficult for him. More generally, this was a case of an adolescent who had begun to "live his own life" but without leaving the family home completely. We would not, however, go so far as to deny that he had any family life, but attention must be drawn at the outset to the danger of misusing the concept of interference with "family life" in cases concerning the prosecution and punishment of criminal activities.

Assuming, therefore, that there was an interference with family life, it has to be asked whether the alleged interference, that is to say the applicant ' s deportation, was necessary in a democratic society in the interests of public safety or for the prevention of disorder or crime.

Certainly the factors which might have prompted greater indulgence cannot be disputed: the fact that the applicant came to Belgium when very young; that he apparently had little knowledge of the language of his country of origin; that he had committed offences during his adolescence, which is sometimes a critical period; and so on. That does not, however, justify underestimating the seriousness and continuity of his criminal behaviour: this was not merely occasional, minor crime, petty pilfering, but a systematic campaign by organised gangs, which even had means of transport and of which he was allegedly one of the ringleaders. He was charged with 147 offences, including 87 offences of aggravated theft, 39 offences of attempted aggravated theft and 5 robberies. As a result, he was imprisoned on ten occasions by decision of the Juvenile Court and - quite exceptionally for a youth of his age - was brought before the Criminal Court and then the Court of Appeal in respect of 26 of the offences, which were committed after he had reached the age of sixteen. He was sentenced to twenty-six months ' imprisonment for some of these offences and served the greater part of that sentence. The situation was therefore more serious than the - in our view - emollient wording of paragraph 44 of the judgment suggests.

It is against that background that the Belgian Government took the decision to deport Mr Moustaquim. It should not be forgotten that the Convention (in Article 5 § 1 (f) (art. 5-1-f) and Protocols Nos. 4 and 7 (P4, P7)) expressly provides for the possibility of deporting aliens. No doubt in the present case the measure may be regarded as a harsh one, seeing that the youth had spent practically all his life in Belgium and would certainly have experienced great difficulty in adapting in his country of origin or other countries. Nevertheless, one cannot go so far as to consider that the Belgian State did not act within its right to take a measure that it had valid reasons to deem necessary in the interests of public safety or for the prevention of disorder or crime.

We therefore consider that it cannot be held that there has been a breach of Article 8 (art. 8) of the Convention. The fact that since then the Belgian Government has authorised Mr Moustaquim to return to Belgium is a gesture of goodwill which gives him a further chance; but that is of course a different chapter in his life.

[*]  The case is numbered 26/1989/186/246.  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 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 .

[*]    The amendments to the Rules of Court which came into force on 1 April 1989 are applicable to this case.

[*]  Note by the Registrar.  For practical reasons this annex will only appear with the printed version of the judgment (volume 193 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.