EHRM, 05-10-2000, nr. 39652/98

The applicant, who was born in 1958 in Tunisia, entered France in 1980 at the age of 22. On 14 September 1992 he married a French national, an invalid whose disability had been assessed at 80%, with whom he had been living since 1983.

On 1 December 1988 the Alpes-Maritimes Assize Court sentenced the applicant to six years' imprisonment for armed robbery and armed assault with intent for offences committed in 1985. He was released on 14 April 1990.

On 8 August 1991 the Minister of the Interior made a deportation order against him. The order was served on the applicant, who had been unaware of its existence, on 6 October 1992, when he attended the Nice Centre for Administrative Formalities in order to regularise his status.

He refused to travel to Tunisia and was prosecuted for failing to comply with a deportation order. On 19 November 1992 the Nice Criminal Court sentenced him to one year's imprisonment and made an order excluding him from French territory for ten years. That decision was upheld on appeal by the Aix-en-Provence Court of Appeal on 7 June 1993. An appeal on points of law was dismissed by the Court of Cassation on 1 June 1994 on the ground that the applicant had failed to challenge the legality of the deportation order in the courts below.

On 22 July 1994 the applicant applied to the Criminal Cases Review Board of the Court of Cassation for a review of the criminal proceedings that had resulted in his being imprisoned for one year and banned from French territory for ten years. In a judgment of 28 April 1997, which was served on 22 September 1997, the Court of Cassation dismissed that application.

Article 27 of the Ordinance of 2 November 1945 as amended, concerning the conditions of entry and residence of aliens in France reads as follows:

Article 702-1 of the Code of Criminal Procedure reads as follows:

Article 703 of the Code of Criminal Procedure reads as follows:

The applicant complained in substance that the length of the proceedings which he had brought on 12 August 1994 for rescission of the exclusion order and which had ended with the decision of the Aix-en-Provence Court of Appeal of 26 January 1998 had been unreasonable, contrary to Article 6 § 1 of the Convention. The relevant part of that provision reads as follows :

I voted in favour of the operative provision of the judgment. I wish, however, to express my disagreement with the reasoning (on two counts) and a regret of a more general nature.

The basis for the judgment (contained in paragraphs 36 and 37) is Article 1 of Protocol No. 7, which was adopted on 22 November 1984. Considering that provision as expressing the States' intention to exclude expulsion proceedings from the scope of Article 6 § 1 of the Convention, as borne out by the explanatory report, the Court inferred that Article 6 § 1 was not applicable in the instant case, at least not in its ‘civil’ branch.

I do not find that reasoning persuasive. The provision relied on affords aliens affected by expulsion measures a substantive guarantee (expulsion orders must be made in accordance with the law), and three procedural guarantees: the right to put forward the reasons why they should not be expelled, the right to have their case examined and, lastly, the right to representation to that end before the relevant authority. However, those guarantees concern expulsion, and then only of aliens who are lawfully resident in the territory. Yet, here, the measure in respect of which Mr Maaouia prays in aid Article 6 § 1 is not the expulsion of a lawfully resident alien but, as indicated in paragraph 25 of the judgment, an application for the rescission of an exclusion order made against him by the criminal courts because he had failed to comply with a deportation order and was, on the contrary, unlawfully present in France. In other words, even supposing that Article 1 of Protocol No. 7 constitutes the lex specialis that, in principle, operates as an exception to the lex generalis constituted by Article 6 of the Convention, it still has to be shown that the lex specialis was applicable in the present case. I do not consider that it was, as the applicant did not seek to rely before the Court on the guarantees to which he should have been entitled on deportation.

In paragraph 39 of the judgment, the Court examines the nature of exclusion orders in law. It concludes that, since their role is essentially a preventive one, they are not penal in character such that neither they, nor applications for their rescission, may relate to the determination of a criminal charge.

I find that analysis surprising, too. To my mind, exclusion orders, which the criminal courts may (without obligation) add to a term of imprisonment for a criminal offence, constitute an ancillary penalty and thus come within the criminal law. Admittedly, they are both preventive and punitive in character, but do not criminal penalties always have that dual purpose: to punish the offender and to deter him from reoffending? Moreover, I have some difficulty in detecting any consistency between the reasoning followed here and the main body of the Court's case-law. I fail to see how it is possible to reconcile classifying exclusion orders as administrative with the Court's decisions that the following are penal in nature: tax surcharges for bad faith (see the Bendenoun v. France judgment of 24 February 1994, Series A no. 284), a confiscation order made on imposing a term of imprisonment (see the Welch v. the United Kingdom judgment of 9 February 1995, Series A no. 307-A), an order for imprisonment in default of payment of a fine (see the Jamil v. France judgment of 8 June 1995, Series A no. 317-B), or the deduction of points from a driver's driving licence (see the Malige v. France judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII). I conclude from the above that exclusion orders should, in principle, be classified as part of the criminal law and thus come within the scope of Article 6 § 1.

I agree, however, that that provision was not applicable in the instant case. For what reason? The answer is that Article 6 § 1 is applicable when a court determines ‘any criminal charge’ against a person who relies on that provision. Is it possible to maintain that a person who seeks rescission of an exclusion order is asking the Court to hold that the charge forming the basis of the order was unfounded? That seems to me to be a very wide, indeed artificial, interpretation. The aim of proceedings for the rescission of exclusion orders is not to have the penalties imposed by the criminal courts quashed. Such proceedings do not take the form of an appeal, an appeal on points of law or even an application for judicial review. Their aim is to persuade the trial court (in this case the court of appeal) to discontinue, for reasons of humanity, the effects of the exclusion order, but not to call into question either the operative provision or the reasoning contained in the judgment. This is illustrated in the instant case by the fact that Mr Maaouia had unsuccessfully challenged the exclusion order imposed by the court of appeal both on appeal to the Court of Cassation and by an application for judicial review. The exclusion order was therefore irrevocable and its validity was not called into question by the judgment of the same court which, ultimately, granted the applicant's request for rescission. It is for that reason that I was bound, not without regret, to vote in favour of the operative provision and to hold that, as Article 6 § 1 was inapplicable, it could not have been infringed.

I would like, in finishing, to express a regret, namely that exclusion orders exist. In my opinion, they constitute double punishment, not of course within the meaning of the non bis in idem rule, reflected in Article 4 of Protocol No. 7 cited above, as there is nothing in the Convention to prevent a court imposing both a substantive and an ancillary penalty for the same offence. It is nonetheless double punishment in the humane sense of the term. Although already deprived in general of all the guarantees afforded nationals (see also paragraph 38 of the judgment), aliens who seek to avoid the consequences of deportation orders are liable by statute to a term of up to three years' imprisonment. Is it also necessary to impose statutory banishment on them? I should like to repeat what Mrs Tulkens and I said in our joint dissenting opinion in Baghli v. France (no. 34374/97, ECHR 1999-VIII), which concerned Article 8 of the Convention: this statutory increase in the debt which aliens owe to society does not appear necessary, to me, in a democratic society.

I agree that Article 6 § 1 of the Convention was not applicable in the present case but cannot fully share the reasoning in the judgment of the Court or in Judge Costa's concurring opinion.

In general, I can agree that proceedings which exclusively concern decisions of administrative authorities to refuse leave to an alien to enter, to impose conditions on an alien's leave to stay or to deport or expel an alien, do not involve the determination of the ‘civil rights and obligations’ of the alien. In this regard, I see no reason to depart from the constant case-law of the Commission that, because of the substantial discretionary and public-order element in such decisions, proceedings relating to them are not to be seen as determining the civil rights of the person concerned, even if they inevitably but incidentally have major repercussions on his private and family life, prospects of employment, financial position and the like. Some support for this view is, as the Court points out, to be found in the Article 1 of Protocol No. 7. While I agree with Judge Costa that justification for the non-applicability of Article 6 cannot be found in the Protocol alone, I consider that the provisions of Article 1 of the Protocol at least serve to confirm the understanding of the Contracting Parties, based on the Commission's case-law, that decisions to deport a person do not in general involve a ‘determination of civil rights and obligations’ so as to attract the procedural guarantees provided by Article 6.

It is true that, as emphasised by Judge Costa, the proceedings in question in the present case concerned not a deportation order as such but an exclusion order. It is also true that the proceedings concerned not the making of the exclusion order but an application to rescind an order which had already been made not by an administrative authority but by a court. However, neither point leads me to conclude that the Commission's constant case-law should not be applied or to find that there the proceedings involved a determination of the applicant's ‘civil rights and obligations’. There was in my view a close relationship between the deportation order made by the Minister of the Interior and the exclusion order, the latter being dependent on the refusal of the applicant to comply with the former. Moreover, the proceedings to rescind the order and thereby regularise the applicant's immigration status in France must be seen as related to the ‘stay’ of an alien and as falling within the established case-law, notwithstanding the fact that the decision to rescind can only be taken by a court.

I can further accept that an administrative decision to deport an alien, even if taken on the grounds that the continued presence of the alien was undesirable because of his suspected involvement in criminal activities, would not in general involve ‘the determination of a criminal charge’ for the purposes of Article 6.

However, the situation would be different if the order for deportation were made by a court following a conviction for a criminal offence and formed an integral part of the proceedings resulting in the conviction. In such a case, the procedural guarantees of Article 6 would clearly apply to the criminal proceedings as a whole, whether or not the deportation order which resulted was to be regarded as a penalty or as having an exclusively preventative function. The same is true of the making of an exclusion order following the applicant's conviction for refusing to comply with the deportation order made against him: the proceedings leading to imposition of the order were required to comply with Article 6 of the Convention, whether the order is to be regarded as a penalty or as essentially a preventive measure.

However, as correctly pointed out by Judge Costa, in the present case the impugned proceedings were not the proceedings which resulted in the applicant's conviction and the making of the order — these concluded when the applicant's appeal was dismissed by the Court of Cassation on 22 September 1997 — but separate proceedings for the rescission of the order. Although these proceedings took place in accordance with Article 702-1 of the Code of Criminal Procedure before the court which had convicted the applicant, they did not entail a re-examination of the merits of the charge that led to the exclusion order being imposed; nor can they be seen as an appeal against the making of the exclusion order. In these circumstances, they did not in my view involve a ‘determination of … any criminal charge’ against the applicant.

Consequently, Article 6 of the Convention is not applicable in the present case.

The present case concerns a complaint that the length of the proceedings brought by the applicant for rescission of an exclusion order excluding him from French territory for ten years as a result of a criminal conviction had been unreasonable contrary to Article 6 § 1 of the Convention. The Court had to decide as a preliminary issue the question whether the proceedings under examination concerned the determination of a ‘civil right’ for the purposes of Article 6 § 1.

It is common ground that the proceedings for rescission of the exclusion order concern a dispute (contestation). However, it was argued by the Government and accepted by the Court that the proceedings in question did not fall within the ambit of Article 6 § 1 of the Convention because they did not concern any ‘civil rights’ as envisaged by that Article. I disagree with this finding.

In the past, the case-law of the Commission and the Court followed a restrictive approach regarding the concept of ‘civil rights and obligations’. There never was any definition of these terms, with the result that the case-law led to uncertainty as to their meaning and the solutions given were not based on common and consistent criteria. This was due to the assumption that the word ‘civil’ restricted the scope of the rights and obligations intended to be covered by the judicial guarantees of Article 6 § 1. No attempt was made to pay sufficient attention to the legal history which led to the drafting of Article 6. Moreover, although the Court has adopted an extensive and dynamic interpretation of many provisions of the Convention, even going so far as to extend by implication the scope of a right (a method applied in respect of Article 6 itself leading to the finding that the right of access to a Court is inherent in the rights stated by this Article1.), both the Court and the Commission have shown great reluctance to interpret in a liberal way the concept of ‘civil rights and obligations’.

According to Article 31 of the Vienna Convention on the Law of Treaties,

What gives rise to a problem of interpretation in this case is the use of the word ‘civil’ in describing the ‘rights and obligations’ covered by the guarantees of Article 6 § 1. It was assumed that by the use of that word the drafters of the Article intended to confine the rights and obligations in question only to those falling within the domain of private law. I do not agree with this approach, which I believe is incompatible with the wording of Article 6 § 1 when examined in its context and in the light of the object and purpose of the Article.

I believe that the word ‘civil’ when examined in the context in which it appears, has the meaning of ‘non-criminal’. Once the term ‘criminal charge’ was used — inevitably for technical reasons — another term intended to cover the rest of the adjudicative procedures distinguishing them at the same time from the criminal procedures would also have to be used. The word ‘civil’ seems appropriate to achieve this purpose.

However, even if there are doubts about this conceptual approach, I think that it could reasonably be said that the word ‘civil’ is at least capable of having the meaning just pointed out, in which case it should not be limited only to private-law disputes2.. I believe that if a term allows more than one interpretation, the one which enhances individual rights is more in line with the object and purpose of the Convention and should always be preferred. Even the Court in following its restrictive approach has felt the need to extend the application of the terms ‘civil rights and obligations’ to matters that do not ordinarily belong to the sphere of private law. For instance, the Court held that a dispute between an applicant and a public authority concerning the grant of a licence to which the applicant claimed to be entitled was a determination of a civil right in spite of the applicability of rules of public law in such cases3.. One could add here the examples of claims for social security and social assistance4., for a judge's pension5., etc. Generally, the trend of the Court has been to include more and more situations within the terms ‘civil rights and obligations’, even though such situations cannot be explained by reference to the criterion of private law. In fact, the Court's reasoning and the distinctions adopted in such cases appear artificial.

At any rate, taking into account the object and purpose of Article 6 § 1, combined with the context of the words under consideration, as dictated by the primary rule of interpretation of treaties mentioned above, it becomes quite clear that the term ‘civil’ should be interpreted as covering all other legal rights which are not of a criminal nature. If this teleological interpretation is not adopted, then the object and purpose of Article 6 § 1 would be frustrated6.. It is, I believe, evident that the object and purpose of Article 6 was to ensure, through judicial guarantees, a fair administration of justice to any person in the assertion or determination of his legal rights or obligations. It would be absurd to accept that the judicial safeguards were intended only for certain rights, particularly those between individuals, and not for all legal rights and obligations, including those vis à vis the administration, where an independent judicial control is especially required for the protection of individuals against the powerful authorities of the State. In other words, it is inconceivable for a Convention which, according to its Preamble, was intended to safeguard ‘those fundamental freedoms which are the foundation of justice … in the world’ and implement the principle of ‘the rule of law’7. to provide for a fair administration of justice only in respect of certain legal rights and obligations, but not in respect of rights concerning relations between the individual and the State. It is, I think, pertinent in this respect to quote the following passage from the judgment of the Court in the case of Klass and Others v. Germany (judgment of 6 September 1978, Series A no. 28, pp. 25–26, § 55).

On the basis of the above, I find that the words ‘civil rights and obligations’ should be given the broadest possible meaning which, in accordance with their context and in the light of the object and purpose of the Convention, should extend to all legal rights and obligations of the individual whether vis à vis other individuals or vis à vis the State. Good faith, another factor relevant to interpretation under the Vienna Convention on the Law of Treaties, also supports this approach, which is also consistent with European law generally.

Having reached a conclusion regarding the meaning of the words in issue on the basis of the considerations set out above, it is not necessary to resort to supplementary means of interpretation such as the travaux préparatoires on the Convention, etc. However, even if one had to have recourse to the legal history of Article 6 § 1, it seems that such history points in the direction of the above interpretation8..

The applicant in the present case sought rescission of the temporary exclusion order affecting him on the basis of the relevant provisions of French legislation and relying on the fact that he was married to a French national and that he held a provisional residence permit. Rescission of an exclusion order as claimed by the applicant is an available legal remedy in France. Therefore, the applicant's claim concerned the determination of a ‘civil’ right.

The majority, in support of their position that the present case did not concern the determination of a ‘civil right’ for the purposes of Article 6 § 1, referred to the fact that the European Commission of Human Rights ‘has consistently expressed the opinion that the decision whether or not to authorise an alien to stay in a country of which he is not a national does not entail any determination of his civil rights or obligations or of any criminal charge against him within the meaning of Article 6 § 1 of the Convention’. To my mind, the reference by the Court to the Commission's jurisprudence without any analysis of the reasoning of such jurisprudence and the grounds for its adoption by the Court itself on a question on which the Court was expected to indicate its own legal approach is not by itself convincing.

The Court however proceeded further and relied decisively on the fact that Article 1 of Protocol No. 7 contains procedural guarantees applicable to the expulsion of aliens. According to the majority, these guarantees taken together with the reference, in the preamble to this Protocol, to the decision to take ‘further steps to ensure the collective enforcement of certain rights and freedoms by means of the Convention …’ show ‘that the States were aware that Article 6 § 1 did not apply to procedures for the expulsion of aliens and wished to take special measures in that sphere’. In support of that construction, the majority quoted passages from the explanatory report on Protocol No. 7 including the following:

The majority then concluded that ‘by adopting Article 1 of Protocol No. 7 containing guarantees specifically concerning proceedings for the expulsion of aliens the States clearly intimated their intention not to include those procedures within the scope of Article 6 § 1 of the Convention’ (emphasis added).

In response to the above position of the majority, I state the following:

For all the above reasons, I find that Article 6 § 1 is applicable in the instant case.