CONCURRING OPINION OF JUDGE PETTITI

(Translation)

I voted with my colleagues in the Chamber to find that there would be a violation of Article 8 (art. 8) in the event of expulsion because of the accumulation of circumstances (see paragraph 46 of the judgment).

However, I consider that the reasoning in relation to that accumulation of circumstances could have included two additional considerations.  In the first place there is the fact that the conviction for gang rape on which the deportation was based dated back to 1986 (15 May); this period during which the applicant remained on French territory altered the consequences of a deportation which was to be executed at a time when the circumstances had changed (this is not forgetting the fact that the French Government agreed to stay the measure at the Commission's request once an application had been lodged with the latter).  The second consideration which merits attention is the way in which social conditions in relation to Mr Nasri's physical handicap and general conditions existing in the two countries concerned evolved between 1983 and 1995.

The European Court now has pending before it several cases concerning the deportation of aliens who have been convicted of offences and who are habitual re-offenders.  The European Convention excluded from its substantive law the deportation of aliens by States (except collective deportations). However, when Article 8 (art. 8) and, in circumstances of exceptional gravity, Article 3 (art. 3) are involved, the Court may examine individual cases without overstepping the limits of what is laid down in Article 8 (art. 8) concerning the notion of private life.  But this line of decisions does not provide a solution to the general problem, which is a matter for the member States of the Council of Europe, if they have the will to harmonise their policies in this field and cooperate, so as to take account of immigration flows and differences in the conditions applied with regard to integration and family reunion by certain States with a view to strengthening the protection of families, rules that have not been adopted by others.

At this stage it is also necessary to harmonise criminal policy involving questions of deportation and double punishment on the basis of the different existing judicial traditions.

The European Court will in the future probably have to specify the criteria which it intends to adopt: the threshold level of convictions and re-offending, physical and linguistic handicaps taken into account, the nature of offences, the substance of family life and definition of the family community to be protected under Article 8 (art. 8), definition of European public order in this context.  To this end a study of comparative law should be undertaken by the member States by appointing an ad hoc committee of experts to examine the legislation and judicial and administrative practices of the member States in these areas so as to avoid divergences from country to country, which would not be compatible with the common undertaking of member States to guarantee together the protection of the rights enshrined in the European Convention on Human Rights.

PARTLY DISSENTING OPINION OF JUDGE DE MEYER

(Translation)

I was not able to approve point 2 of the operative provisions of this judgment for the reasons that I gave in the case of Beldjoudi v. France [4] .

In the present case I consider likewise, and in particular in view of Mr Nasri's disability [5] , that his deportation would not only interfere with his private and family life but would above all amount to inhuman treatment.