DISSENTING OPINION OF JUDGE FOIGHEL

1. Mr El Boujaïdi was born in Morocco in 1967. When he was 7 years old, together with his three sisters and his brother, he was brought by his mother to join his father in France. He stayed in France until 26 August 1993 when the order for his permanent exclusion from French territory was enforced. At that time he was 26 years old and had lived in France for nearly twenty years. The whole of his family, his child and the child’s mother live in France.

2. Mr El Boujaïdi belongs to the category of “integrated aliens” or “second-generation immigrants”. As such he did not choose his country of residence of his own free will and he went through his entire upbringing, schooling, etc,. under the same conditions as French nationals.

3. I share the opinion expressed by Judge Martens in the case of Boughanemi v. France [5] that integrated aliens – i.e. aliens who have spent all or practically all their lives in a State – should in principle be treated in the same way as nationals as regards the question of their expulsion. As mentioned by Judge Martens, the expulsion of nationals is forbidden by Article 3 § 1 of Protocol No. 4. An effective consequence of this principle would be that – with the possible exception of absolutely extraordinary cases – integrated aliens would not be subject to expulsion.

This view, which has also been advocated by Judges De Meyer [6] , Morenilla [7] , Baka [8] and Palm [9] , is also consistent with the fact that nationality is not a condition for the exercise of the rights guaranteed by the Convention, unless the Convention expressly states as much in relation to a specific right.

4. The criminal law of the country of residence should normally be sufficient to punish criminal acts committed by an integrated alien, in the same way as it is deemed sufficient to punish criminal acts committed by a national.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

. The case is numbered 123/1996/742/941. 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.

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

[4] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997), but a copy of the Commission’s report is available from the registry.

[5] 1. J udgment of 24 April 1996, Reports of Judgments and Decisions 1996-II.

[6] 2. See notably his separate opinion in the Beldjoudi v. France judgment (26 March 1992,

Series A no. 234-A, p. 35).

[7] 3. See his partly dissenting opinion in the Nasri v. France judgment (13 July 1995,

Series A no. 320-B, p. 31).

[8] 4. See his dissenting opinion in the above-mentioned Boughanemi judgment.

[9] 5. See her dissenting opinion in the Bouchelkia v. France judgment (29 January 1997,

Reports of Judgments and Decisions 1997-I ).