CONCURR ING OPINION OF JUDGE PETTITI

(Translation)

I voted with the majority to find no violation of Article 8 (art. 8) of the Convention. However, I consider that a different rea soning could have been adopted.

In view of the particular circumstances of the case (the applicant being a habitual offender and convicted of living on the earnings of prostitution), it would have been preferable to take as the starting-point for the Court ’ s decision Article 1 (art. 1) of the Convention, which does not require States to refrain from deporting aliens who have repeatedly committed criminal offences, and then to find that there had been no violation of the right to respect for family life. Family life implies a degree of cohesion on the part of its members incompatible with conduct of such a kind as living on the earnings of prostitution with aggravating circumstances.

It would thus no longer have been necessary to examine the question whether or not t here had been an interference. The fact that a person has brothers and sisters is not sufficient to constitute family life (see paragraph 43 of the judgment). Moreover, the majority did not make clear what the Court ’ s approach was to an application seeking to rely on Article 8 (art. 8) but brought by an alien who had returned unlawfully to live in France as an illegal immig rant following his deportation.

Once again cases of deportation brought before the Court highlight the need for the States to adopt a European policy clarifying the extent of their commitments in this field. It is not necessary in a case such as the present one to examine whether a fair balance has been struck between the general interest and the a pplicant ’ s individual interest.

The general interest of society and the family cannot be compared with and set against that of living on the earnings of prostitution.  The member States of the Council of Europe must also take into account the protection of women who are the victims of prostitution forced on them by pimps.

The proper reasoning in cases concerning deportation should, in my view, be different from that adopted in the Moustaquim v. Belgium case (judgment of 18 February 1991, Series A no. 193), which involved t he protection of an adolescent.

It should also be noted that few member States of the Council of Europe follow a policy of family reunion of the sort adopted by France .

DISS ENTING OPINION OF JUDGE MARTENS

1.   In this case the Court was again confronted with the issue of the expulsion of an integrated alien, the applicant having come to France when he was 8 years old and having lived there since then, like his parents, brothers and sisters, until -  after twenty-two years of residence - he was expelled.

2.   There are several w ays of dealing with this issue.

3.   Firstly, of course, there is the approach which the majority of the Court has followed up to now.  Its starting-point is that the Convention does not protect aliens from expulsion, not even when they are integrated.  They may, however, rely on the Convention to the extent that expulsion constitutes interference with their right to respect for their family life. If they do so, it is for the Court to assess whether the interference is justified unde r Article 8 para . 2 (art. 8-2).

4.   This traditional approach has two obvious disadvantages.

Firstly, not every inte grated alien has a family life.

Secondly, it leads to a lack of legal certainty. National administrations and national courts are unable to predict whether expulsion of an integrated alien will be found acceptable or not.  The majority ’ s case-by-case approach is a lottery for national authorities and a source of embarrassment for the Court.  A source of embarrassment since it obliges the Court to make well-nigh impossible comparisons between the merits of the case before it and those which it has already decided. It is - to say the least - far from easy to compare the cases of Moustaquim v. Belgium (judgment of 18 February 1991, Series A no. 193), Beldjoudi v. France (judgment of 26 March 1992, Series A no. 234-A), Nasri v. France (judgment of 13 July 1995, Series A no. 320-B) and Boughanemi v. France.  Should one just make a comparison based on the number of convictions and the severity of sentences or should one also take into account personal circumstances ? The majority has, obviously, opted for the latter approach and has felt able to make the comparison [4] , but - with due respect - I cannot help feeling that the outcome is necessarily tainted with arbitrariness .

5.   The first disadvantage of the majority approach is easily mended by accepting that expulsion of integrated aliens at any rate constitutes interference with their private life.  I argued in favour of that approach in my con curring opinion in Beldjoudi [5] .  This approach has, moreover, been advocated by Judges De Meyer [6] , Morenilla [7] and Wildhaber [8] .  In my opinion the Court would already considerably improve its doctrine if it accepted this approach. I very much hope that the wording of paragraph 42 of the Court ’ s judgment - where it refers to "the applicant ’ s right to respect for his private and family life" - shows th e Court ’ s willingness to do so.

6.   However, accepting the private-life approach does not, of course, in itself remove the second disadvantage of the traditional approach, since under the private-life approach it will likewise be necessary to assess whether t he interference was justified.

7.   There is only one way to remove all uncertainty and that is to accept the thesis advocated first by Judge De Meyer and rece ntly also by Judge Morenilla [9] . Judges De Meyer and Morenilla start from the idea that integrated aliens - that is, aliens who have lived all, or practically all, their lives within a State - should no more be expelled than nationals.  Expulsion of nationals is forbidden by Article 3 para . 1 of Protocol No. 4 (P4-3-1), and Judges De Meyer and Morenilla assert that expulsion of integrated aliens is forbidden under Article 3 (art. 3) of the Convention.  Accepting this thesis would, obviously, remove all uncertainty since Article 3 (art. 3) does not allow exceptions. Under this approach expulsion of an integrated alien per se constitutes a violation, whatever the crimes commi tted.

8.   Although I share the idea that integrated aliens should no more be expelled than nationals, I find it difficult to accept that there cannot be exceptions.  I therefore hold that although as a rule expelling integrated aliens should constitute a violation of their right to respect for their private life, under very exceptional circumstances such expulsion should be held justified.  I have the feeling that Judge Wildhaber ’ s concurring opinion in the Nasri case [10] goes in the same direction, although he would probably be inclined to be less severe as to what comes wit hin the scope of the exception.

9.   In my opinion the second disadvantage of the traditional approach - its unpredictability - could be considerably attenuated if the Court were to accept that expulsion of an integrated alien as a rule constitutes lack of respect for his private life, but may exceptionally be justified where the alien is convicted of very serious crimes, such as serious crimes against the State, political or religious terrorism or holding a leading position in a drug-trafficking organisation.

10.   I agree that living on the earnings of prostitution with aggravating circumstances is a serious and, moreover, a contemptible crime, but I find, nevertheless, that for present purposes it falls within the category of "normal crimes" which are not serious enough to qualify as exceptional circumstances justifying expulsion of an integrated alien, since for normal crimes normal criminal sanctions and measures should suffice, as they have to su ffice for crimes of nationals.

11. On these gro unds I voted for a violation.