PARTLY DISSENTING OPINION OF JUDGE MORENILLA

(Translation)

1.   In my opinion, the order for Mr Nasri's deportation, in the circumstances noted by the majority (see paragraph 46), should above all be classified as inhuman treatment.  The Court ought first to have ruled on the express complaint made by the applicant under Article 3 (art. 3) of the Convention and should have followed the approach of the majority of the Commission, concluding that there had been a violation.

2.   The applicant's dramatic personal situation (his deaf- mutism with no schooling, his inability to adapt to society and his long criminal record) should not however be allowed to obscure the more general question which underlies the application to the instant case of Article 3 (art. 3) of the Convention: namely as to the limits to be imposed on administrative measures - or sanctions - of deportation to the country "of origin", on account of criminal or antisocial behaviour on the part of "second generation" aliens, including those who, like the applicant, came as children accompanying their migrant worker parents.

3.   The deportation of such dangerous "non-nationals" may be expedient for a State which in this way rids itself of persons regarded as "undesirable", but it is cruel and inhuman and clearly discriminatory in relation to "nationals" who find themselves in such circumstances.  A State which, for reasons of convenience, accepts immigrant workers and authorises their residence becomes responsible for the education and social integration of the children of such immigrants as it is of the children of its "citizens".  Where such social integration fails, and the result is antisocial or criminal behaviour, the State is also under a duty to make provision for their social rehabilitation instead of sending them back to their country of origin, which has no responsibility for the behaviour in question and where the possibilities of rehabilitation in a foreign social environment are virtually non-existent.  The treatment of offenders whether on the administrative or criminal level should not therefore differ according to the national origin of the parents in a way which - through deportation - makes the sanction more severe in a clearly discriminatory manner.

4.   Attention has rightly been drawn (see Andrew Drzemczewski , "The position of aliens in relation to the European Convention on Human Rights", Council of Europe, Strasbourg, 1985, pp. 7-9) to the way in which international law has changed over the last few years, under the influence of recent developments in the human rights field, towards according equal treatment between aliens and nationals.  This equality becomes more and more evident where the aliens are "immigrants integrated" in the community where they work.  In the words of Article 12 para . 4 of the International Covenant on Civil and Political Rights, their "own country" is that in which they were born or in which they grew up and which is theirs despite the difficulties of integration inherent in being of foreign origin or belonging to a different family culture.  In any event, legal considerations or reliance on the traditional notion of State sovereignty cannot today serve as the basis for such treatment.

5.   Nevertheless, for the third time in four years (see the Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193, p. 20, para . 50, and the Beldjoudi v. France judgment of 26 March 1992, Series A no. 234-A, p. 29, para . 82), the Court has provided further evidence of its traditional "circumspection" (see Marc-André Eissen , El Tribunal Europeo de Derechos Humanos , Spanish translation, Civitas , Madrid, 1985, pp. 81 and 95).  The majority "does not consider it necessary to examine this complaint" (see paragraph 48) and confines itself to finding a violation of Article 8 (art. 8) of the Convention, regarding the measures in question as an interference with the family life of the person concerned.  I regret this because the importance and topicality of the issue requires the Court to give a ruling in this matter and to express its opinion with clarity, which would not exclude taking into consideration the specific circumstances of the case before it.

6.   Finally, I voted with the majority for the violation of Article 8 (art. 8) of the Convention in this case, even though I do not subscribe to the reasoning based on Mr Nasri's situation as a non-national and on his responsibility in view of his "bad behaviour" (see paragraphs 22-25 and 43).  Given the applicant's distressing situation, I nevertheless find the majority's approach too formalistic (see paragraph 46) in so far as it gives to Mr Nasri's deportation the legal classification of interference with his family life rather than his private life, a more general concept of which family life is one element.

In fact Article 8 (art. 8) of the Convention recognises the right to respect by the public authorities of the "private sphere" of the individual (see Stephan Breitenmoser , Der Schutz der Privatsphäre gemäss Art. 8 (art. 8) EMRK, Juristische Fakultät der Universität Basel, Basle, 1986), of his personal life, which, under the terms of the Convention, includes his private and family life, his home and his correspondence. Deportation from a country in which the person concerned has lived from birth or from childhood constitutes an interference with this private and personal sphere where it entails, as in this case, the separation of the person concerned from his essential social environment, his emotional and "social circle", including his family.  This interference by the public authorities infringes the right that every person has to respect for his private and family life if it is not justified under paragraph 2 of the same Article 8 (art. 8-2) of the Convention. As the majority found, in the present case it was not so justified.

CONCURRING OPINION OF JUDGE WILDHABER

In my opinion, this is a special case which does not easily lend itself to generalisation.  Like the applicant himself, our Court, in relying on Article 8 (art. 8), invokes only the right to respect due to his family life.  This approach is somewhat artificial, because the element of the respect of his private life is missing.  In such cases, it would be more realistic to look at the whole social fabric which is important to the applicant, and the family is only part of the entire context, albeit an essential one.

Like the majority of the Court, I have not found it necessary to rely on Article 3 (art. 3).  Indeed, had we relied on Article 3 (art. 3), we might have implied that no balancing of public interests can take place but rather that immigrants of the "second generation" cannot be expelled at all.  It seems to me that this would go too far and that, exceptionally, the expulsion of those immigrants of the "second generation" who have committed very serious crimes (such as murder, rape, massive drug trade) must continue to be possible in accordance with the general principles of international law.

[1] The case is numbered 18/1994/465/546.  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.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 320-B of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[4] Series A no. 234-A, p. 35.

[5] See paragraphs 20 to 25, 43 and 46 of the judgment.