In the case of C. v. Belgium,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention") and the relevant provisions of Rules of
Court A,
as a Chamber composed of the following judges:
Mr R. Ryssdal,
President,
Mr Thór Vilhjálmsson,
Mr A. Spielmann,
Mr J. De
Meyer,
Mr A.N. Loizou,
Mr A.B. Baka,
Mr M.A. Lopes
Rocha,
Mr L. Wildhaber,
Mr P. Kuris,
and also of Mr H. Petzold, Registrar,
and Mr P.J. Mahoney,
Deputy Registrar,
Having deliberated in private on 24 February and 27 June 1996,
Delivers the following judgment, which was adopted on the last-mentioned
date:
PROCEDURE
The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 12 April 1995,
within the three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application (no.
21794/93) against the Kingdom of Belgium lodged with the Commission under
Article 25 (art. 25) by a Moroccan citizen, Mr C., on 22 March 1993. The
applicant asked the Court not to disclose his identity. The Commission's
request referred to Articles 44 and 48 (art. 44, art. 48) and to the
declaration whereby Belgium recognised the compulsory jurisdiction of the Court
(Article 46) (art. 46). The object of the request was to obtain a decision as
to whether the facts of the case disclosed a breach by the respondent State of
its obligations under Articles 8 and 14 of the Convention (art. 8, art. 14).
In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished to take
part in the proceedings and designated the lawyer who would represent him (Rule
30).
The Chamber to be constituted included ex officio Mr J. De
Meyer, the elected judge of Belgian nationality (Article 43 of the Convention)
(art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 4 (b)).
On 5 May 1995, in the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr Thór Vilhjálmsson, Mr B. Walsh, Mr
A. Spielmann, Mr A.N. Loizou, Mr A.B. Baka, Mr M.A. Lopes Rocha and Mr P. Kuris
(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).
Subsequently Mr L. Wildhaber, substitute judge, replaced Mr Walsh, who was
unable to take part in the further consideration of the case (Rules 22 para. 1
and 24 para. 1).
As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Belgian Government
("the Government"), the applicant's lawyer and the Delegate of the
Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant
to the order made in consequence, the Registrar received the Government's and
the applicant's memorials on 15 September and 9 October 1995 respectively. On
26 October 1995 the Secretary to the Commission informed the registry that the
Delegate did not intend to reply in writing. On 8 February 1996 he supplied the
Registrar with various documents he had requested on the President's
instructions.
In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg, on 20 February
1996. The Court had held a preparatory meeting beforehand. There appeared
before the Court:
(a) for the Government
Mr J. Lathouwers,
Deputy Legal Adviser,
Head of Department, Ministry of
Justice, Agent,
Mr F. Huisman,
avocat, Counsel;
(b) for the Commission
Mr H. Danelius, Delegate;
(c) for the applicant
Mr A. Marx, avocat, Counsel.
The Court heard addresses by Mr Danelius, Mr Marx and Mr Huisman.
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
The applicant, a Moroccan citizen born in 1955, is
currently resident in Morocco.
In 1966 he came to live in Belgium with his parents, his
brother and his three sisters, who were all Moroccan nationals. Between 1988
and 1991 the sisters adopted Belgian nationality. Two of them later left Belgium for Luxembourg. The applicant's father died in Morocco in 1989.
Mr C. lived in Brussels with his family in a house which
they owned. After leaving school he trained as a mechanic. From 1984 onwards he
worked for the family business as a taxi driver.
On 17 October 1985, in Morocco, he married a Moroccan woman
who came to live with him in Belgium. Mrs C. gave birth to a son on 10 August
1986. On an unknown date Mr C. divorced his wife in Morocco. She then went back
to live there. On 10 July 1991 the Kenitra Court of First Instance (Morocco) took formal note of the fact that Mrs C. had waived her right to custody of the child, who
returned to Belgium after his father's release (see paragraph 13 below) and
lived with his paternal grandmother. Since May 1992 he has apparently been
living with one of his aunts in the Grand Duchy of Luxembourg.
On 6 April 1988 the Brussels Criminal Court convicted the
applicant of criminal damage and sentenced him to two months' imprisonment,
suspended for three years, and a fine of sixty times 400 Belgian francs (BEF).
Following the seizure of 17.2 kilograms of cannabis, the
same court sentenced Mr C. on 14 December 1988 to seven years' imprisonment and
a fine of sixty times BEF 1,000 for unlawful possession of drugs and
conspiracy. On 30 June 1989 the Brussels Court of Appeal reduced the term of
imprisonment to five years. On 28 July 1988, in the course of the judicial
investigation, a deputy police superintendent at Ixelles had drawn up the
following report on the applicant:
"[Mr C.] is of good conduct in the district. He has notbrought
himself to his neighbours' attention through anyimmoral behaviour. His main
social contacts are with personsof Moroccan origin. He is known as a taxi
driver and works for ... company, whose registered office is in Ixelles ...His average monthly net salary is BEF 25,000. He apparentlyhas no other source
of income. He lives in the house whichhis parents own. He occupies one room and
pays no rent. Asregards dependants, he was formerly married to [R. S.] andhad a
son from that union. The above persons no longer livein Belgium but in Morocco. He has to pay BEF 2,000 per monthto his wife in maintenance. He is
hard-working and gives hisemployer complete satisfaction."
According to a questionnaire filled in by the authorities
at Forest Prison on 24 June 1988, the applicant is said to have claimed to be
able to speak Arabic, French and Spanish.
Mr C. was released on parole on 23 May 1991. His son, who
had been living with his mother while Mr C. was in prison, joined him in Belgium in July 1991 (see paragraph 9 above).
A royal order of 25 February 1991, which was served in
March 1991, required the applicant to leave Belgium, on the following grounds:
" Whereas [Mr C.] has been found guilty of causing
criminaldamage, for which he was sentenced on 6 April 1988, in ajudgment which
has become final, to 2 months' imprisonmentand a fine of 400 francs, the term
of imprisonment beingsuspended for 3 years; Whereas he has been found guilty,
as principal or jointprincipal, of possessing and dealing in prohibited
drugs,namely 17.2 kilos of cannabis, aggravated by the fact thatthis offence
also constituted participation in the principalor secondary activities of a
criminal organisation, for whichoffences he was sentenced on 30 June 1989, in a
judgmentwhich has become final, to 5 years' imprisonment and a fineof 1,000
francs; Whereas, accordingly, by his personal conduct, he hasseriously
prejudiced public order;"
In reaching the above decision the Minister of Justice had
declined to follow the advice of the Aliens' Office, which had suggested that
Mr C. should not be deported but served with a warning.
On 13 September 1990 the Advisory Board on Aliens had
expressed the opinion that deportation was warranted, on the following grounds
in particular:
"[Mr C.] was married to a compatriot but is now divorced. Achild
was born of this marriage in 1986 and lived for a timewith his mother in Morocco. He is apparently now with her inthe Netherlands ... There is nothing to suggest
that the serious threat posed byMr C.'s behaviour has been removed. Were the
deportation of an alien to be held to constituteinterference with the exercise
of his right to respect forhis private and family life, within the meaning of
Article 8of the European Convention for the Protection of Human Rightsand
Fundamental Freedoms (art. 8), such interference would belegitimate in the
present case, being in accordance with thelaw and, in the applicant's case, in
view of the seriousnessof the threat posed by his presence in Belgium,
necessary inthe interests of public safety and the prevention of disorderand
crime."
On 21 May 1991 the applicant asked the Conseil d'Etat to
quash the deportation order, but on 7 October 1992 the Conseil d'Etat dismissed
this application on the following grounds:
"The applicant's first ground of appeal is that there
hasbeen a breach of the Minister of Justice's circular of8 October 1990 and
Article 8 of the Convention for theProtection of Human Rights and Fundamental
Freedoms (art. 8),in that the Minister and the Advisory Board on Aliens
failedto take account of the fact that he had been living inBelgium since 1966,
that his mother and sisters also livedthere, and that he no longer had any
links with Morocco,whose language he did not speak.
The Minister undertook in his circular not to deport an
alienwho had been settled in the country for more than ten yearsunless he had
been sentenced to a term of imprisonment offive years or more. He reserved the
power to deport thealien in certain circumstances. The Minister examined
thecircumstances in this case and had valid grounds to concludethat, in view of
the seriousness of the facts, the applicantshould be deported, particularly in
the light of the familycircumstances described by the Advisory Board on Aliens.
Inso doing, he was not in breach of either his own circular orArticle 8 of the
Convention (art. 8).
In his second ground of appeal, the applicant alleges thebreach
of Article 6 of the Constitution, of the Minister ofJustice's circular of 8
October 1990, of section 62 of theAct of 15 December 1980 on the entry,
residence, settlementand expulsion of aliens and of Articles 8 and 14 of
theConvention for the Protection of Human Rights and FundamentalFreedoms (art.
8, art. 14), in that the Minister unreasonablydeclined to follow the advice of
his department not to deportthe applicant.
The Minister's attention was drawn to the arguments of
theAliens Office and the Advisory Board on Aliens. He did notexceed his powers
in deciding that, in view of theseriousness of the facts, the applicant should
be deported onthe ground that the protection of public order had to prevailover
his personal and family interests."
On 11 September 1991 the Conseil d'Etat had declared
inadmissible an application by the applicant for a stay of execution, on the
ground that he had failed to appear in court.
After his release on parole on 23 May 1991 (see paragraph
13 above) Mr C. had thirty days in which to leave Belgium; this time-limit was
later extended to 25 September 1991. He complied with the order on an unknown
date.
II. RELEVANT DOMESTIC LAW
The Act of 15 December 1980 "on the entry, residence,
settlement and expulsion of aliens", which has since been amended several
times, governs the administrative status of aliens. Under section 20, second
paragraph, an alien who has been granted a settlement permit may be deported
"where he has seriously prejudiced public order or national
security". Before such a deportation the Minister of Justice must seek the
opinion of the Advisory Board on Aliens, which is composed of a judge, a lawyer
and a member of an association for the protection of aliens' interests.
Deportation orders are signed by the King and are subject to judicial review by
the Conseil d'Etat (section 69).
PROCEEDINGS BEFORE THE COMMISSION
In his application to the Commission of 22 March 1993 (no.
21794/93) Mr C. complained of an infringement of his right to respect for his
private and family life (Article 8 of the Convention (art. 8), taken separately
and in conjunction with Article 14 (art. 14+8)).
The Commission declared the application admissible on 27
June 1994. In its report of 21 February 1995 (Article 31) (art. 31), it
expressed the opinion that there had been no violation of Article 8 (art. 8)
either taken separately (nineteen votes to three) or in conjunction with
Article 14 (art. 14+8) (twenty-one votes to one). The full text of the
Commission's opinion and of the two dissenting opinions contained in the report
is reproduced as an annex to this judgment.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE
CONVENTION
According to the applicant, his deportation by the Belgian
authorities infringed his right to respect for his private and family life and
violated Article 8 of the Convention (art. 8), which provides:
"1. Everyone has the right to respect for his private
andfamily life, his home and his correspondence. 2. There shall be no
interference by a public authority withthe exercise of this right except such
as is in accordancewith the law and is necessary in a democratic society in
theinterests of national security, public safety or the economicwell-being of
the country, for the prevention of disorder orcrime, for the protection of
health or morals, or for theprotection of the rights and freedoms of
others."
The Government and the Commission rejected this argument.
A. Paragraph 1 of Article 8 (art. 8-1)
It must first be ascertained whether Mr C. can rely on a
"private and family life" within the meaning of Article 8 para. 1
(art. 8-1).
The Government answered this question in the negative. They
maintained that the applicant no longer had any particular links with Belgium, as the family nucleus which had settled there in 1966 had subsequently broken up. The
applicant's father had died in Morocco and two of his sisters had gone to live
in the Grand Duchy of Luxembourg. Unlike his sisters, Mr C. had not applied for
Belgian nationality, although he could have done so on reaching the age of 18. The
applicant no longer belonged to the family taxi business, had ceased to work
for it at the time of his arrest and had not worked for it subsequently. On the
other hand, the applicant had preserved strong links with his country of
origin, as was shown by his marriage in Morocco to a Moroccan woman and then
his divorce there in accordance with the local rite. It was also in accordance
with Moroccan custom that the applicant and the mother of his son had agreed
that he should have custody of the child. In addition, a 1988 police report had
stated that Mr C.'s main social contacts were with people of Moroccan origin,
and in the same year he had stated at Forest Prison that he spoke Arabic and
Spanish (see paragraphs 11 and 12 above).
According to the Commission, the fact that the applicant's
son had lived in Belgium with his paternal grandmother and that Mr C. had
worked for the family business revealed the existence of some kind of family
life within the meaning of Article 8 (art. 8).
The Court reiterates that the concept of family on which
Article 8 (art. 8) is based embraces, even where there is no cohabitation, the
tie between a parent and his or her child, regardless of whether or not the
latter is legitimate. Although that tie may be broken by subsequent events,
this can only happen in exceptional circumstances (see, among other
authorities, the Gül v. Switzerland judgment of 19 February 1996, Reports of
Judgments and Decisions 1996-I, pp. 173-74, para. 32, and the Boughanemi v. France judgment of 24 April 1996, Reports 1996-II, pp. 607-08, para. 35). In the present
case the mere fact that the applicant was imprisoned and subsequently deported
or that his son was then taken in by Mr C.'s sister in the Grand Duchy of
Luxembourg, which borders on Belgium, do not constitute such circumstances. In
addition, Mr C. established real social ties in Belgium. He lived there from
the age of 11, went to school there, underwent vocational training there and
worked there for a number of years. He accordingly also established a private
life there within the meaning of Article 8 (art. 8), which encompasses the
right for an individual to form and develop relationships with other human
beings, including relationships of a professional or business nature (see,
mutatis mutandis, the Niemietz v. Germany judgment of 16 December 1992, Series
A no. 251-B, p. 33, para. 29). It follows that the applicant's deportation
amounted to interference with his right to respect for his private and family
life.
B. Paragraph 2 of Article 8 (art. 8-2)
It is therefore necessary to ascertain whether the
deportation in issue satisfied the conditions of paragraph 2 (art. 8-2), that
is to say whether it was "in accordance with the law", pursued one or
more of the legitimate aims set out in that paragraph, and was "necessary
in a democratic society" for the achievement of that aim or aims. 1.
"In accordance with the law"
It is not contested that the royal order of 25 February
1991 (see paragraph 14 above) was based on sections 20 and 21 of the Act of 15
December 1980 on the entry, residence, settlement and expulsion of aliens (see
paragraph 18 above). The Conseil d'Etat, moreover, ruled that it was lawful
(see paragraph 16 above). 2. Legitimate aim
Those appearing before the Court agreed that the
interference in issue had aims which were compatible with the Convention,
namely "the prevention of disorder or crime". 3. "Necessary in a
democratic society"
The Government argued that the deportation in issue was
justified by Mr C.'s delinquent conduct. The particular seriousness of the
facts which had led to his conviction for unlawful possession of drugs and
conspiracy gave reason to fear the greatest risks to public order, since the
applicant had not shown any intention of mending his ways. It was further
asserted that his attachment to his family and to the host country was not so
strong as that of Mr Moustaquim and Mr Beldjoudi (see the Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193, and the Beldjoudi v. France judgment of 26 March 1992, Series A no. 234-A). The consequences of his deportation for his
private and family life could not therefore be regarded as disproportionate.
The Commission agreed with the above argument in
substance.
The Court reiterates that it is for the Contracting States
to maintain public order, in particular by exercising their right, as a matter
of well-established international law and subject to their treaty obligations,
to control the entry and residence of aliens and notably to order the expulsion
of aliens convicted of criminal offences. However, their decisions in this
field must, in so far as they may interfere with a right protected under
paragraph 1 of Article 8 (art. 8-1), be necessary in a democratic society, that
is to say, justified by a pressing social need and proportionate to the
legitimate aim pursued.
The Court's task is to determine whether the deportation
in issue struck a fair balance between the relevant interests, namely the
applicant's right to respect for his private and family life, on the one hand,
and the prevention of disorder or crime, on the other.
The Court notes that the applicant had real links with Belgium, where he lived from the age of 11 with his parents, his brother and his sisters in
a house belonging to his family. He received part of his schooling there,
underwent vocational training and worked as a taxi driver in the family
business. Later, he lived there with his wife and son, who was himself born in Belgium and went to school there. Unlike his sisters, however, the applicant did not apply
for naturalisation.
However, Mr C. also appears to have preserved important
links with Morocco. As he did not leave Morocco before the age of 11, he must
have learnt the language and established his first social and school relationships
there. It was also in Morocco that he married a Moroccan woman. It was there
that he divorced her and concluded an agreement with her giving him custody of
their child. Lastly, it was in Morocco too that the applicant's father died. In
short, the interference in issue was not so drastic as that which may result
from the expulsion of applicants who were born in the host country or first
went there as young children.
Furthermore, the Court attaches great importance to the
seriousness of the offences which gave rise to Mr C.'s long term of
imprisonment and his deportation, namely unlawful possession of drugs and
conspiracy. The applicant had assisted in the sale of more than 17 kilograms of
cannabis. In the light of the ravages of drugs among the population, and
especially among young people, it is not surprising that the authorities show
great firmness with regard to those who actively contribute to the spread of
this scourge.
Having regard to the nature of the applicant's links with
Belgium and Morocco and to the seriousness of the offences which gave rise to
his deportation, it has not been shown and there is nothing to indicate that in
the circumstances of the case the Belgian authorities acted in an arbitrary or
unreasonable manner, or failed to fulfil their obligation to strike a fair
balance between the relevant interests. The applicant's expulsion cannot
therefore be regarded as disproportionate to the legitimate aims pursued. There
has accordingly been no violation of Article 8 (art. 8).
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
INCONJUNCTION WITH ARTICLE 8 (art. 14+8)
As a Moroccan national Mr C. claimed to be a victim of
discrimination on the grounds of nationality and race. He maintained that, in
breach of Article 14 of the Convention taken in conjunction with Article 8
(art. 14+8), his deportation amounted to less favourable treatment than was
accorded to criminals who, as nationals of a member State of the European
Union, were protected against such a measure in Belgium.
Like the Government and the Commission, the Court
considers that such preferential treatment is based on an objective and
reasonable justification, given that the member States of the European Union
form a special legal order, which has, in addition, established its own
citizenship (see the previously cited Moustaquim judgment, p. 20, para. 49). There
has accordingly been no violation of Article 14 taken in conjunction with
Article 8 (art. 14+8).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been no violation of Article 8 of
theConvention (art. 8);
2. Holds that there has been no violation of Article 14 of
theConvention taken in conjunction with Article 8 (art. 14+8).
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 7 August 1996.
Rolv RYSSDAL
President
Herbert PETZOLD
Registrar
