Dalia v. France

Application No. 26102/95; (2001) 33 EHRR 26; [1998] ECHR 5
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Aïcha Dalia (“the Applicant”) is an Algerian national who arrived in France when she was approximately 17 years of age, to join her mother and siblings who lawfully resided there. In 1985, she was sentenced to twelve months’ imprisonment for offences against the dangerous drugs legislation, which also made orders for her deportation and permanent exclusion from French territory. The Applicant appealed to the Versailles Court of Appeal but failed to reverse the outcome, and left France for Algeria. In 1989, she returned to France with a visa valid for thirty days and stayed at her mother’s home. In 1990, she gave birth to a boy who has French nationality and for whom she has parental responsibility.

The Applicant applied to lift the order permanently excluding her from French territory by relying on Article L. 630-1, paragraph 2-2, of the Public Health Code, which states that exclusion from French territory shall not be imposed on a convicted alien who is the parent of a French child resident on the condition that she is vested with parental responsibility for the child. She argued that if this were not applied, her deportation would amount to a violation of her right to respect for her private and family life under Article 8 of the European Convention on Human Rights (“the Convention”). The Applicant’s medical reports stated that her mental state required long-term medical treatment and a separation from her family would have disastrous consequences for her as well as her child. Additionally, the Applicant alleged that returning to Algeria would amount to inhuman or degrading treatment contrary to Article 3 of the Convention.

The Applicant subsequently applied to the European Court of Human Rights to lift the order permanently excluding her from French territory. The Applicant alleged that Articles 3 (prohibition of inhuman or degrading treatment) and 8 (respect for private and family life) of the Convention had been breached, and requested compensation and reimbursement of her costs and lawyer’s fees.

The Court held that there had been no violation of Articles 3 or 8 of the Convention.

The Court, in agreement with the Versailles Court of Appeal, held that Article L.630-1 of the Public Health Code did not apply to the Applicant, since an application to have an exclusion order lifted could be made only if the foreign national is living outside of France. Since the Applicant was living in France, this submission was not accepted.

The Court found that the Applicant could rely on the birth of her son to establish an interference with her right to respect for private and family life. However, the Court also found that the exclusion order, as stipulated in Article 8(2), was “in accordance with the law”, had a “legitimate aim” for the prevention of disorder or crime, and was “necessary in a democratic society.” Because her conviction in drug trafficking weighed heavily in the balance, the Court found that the refusal to lift the exclusion order was not disproportionate to the legislation aim pursued. Thus, there was no violation of Article 8.

The Court held that there was no violation of Article 3 of the Convention, in which the exclusion order would subject the Applicant and her child to “torture or to inhuman or degrading treatment or punishment.” Since the Applicant could choose not to return to Algeria if those were the circumstances, the threat of deportation did not reach the threshold of severity that would infringe upon Article 3.

Three judges dissented to the finding that there was no violation of Article 8. They found that the Applicant no longer dealt with drugs, was present in France with her family and child, and was no longer a threat to public order. Therefore, the requirements of Article L.630-1 of the Public Health Code should not be held so strictly against her as the exclusion order was not “necessary in a democratic society.”

“The Court notes, as the Commission did, that the Applicant has been living in France since the age of 17 or 18 (see paragraph 7 above), except for a period of twenty-three months from 14 August 1987 to 15 July 1989. She gave birth in that country to a child who, at birth, had French nationality (see paragraph 15 above). She has parental responsibility for him. The Court consequently has no doubt that the Versailles Court of Appeal’s refusal in 1994 of her application to lift the exclusion order made against her in 1985 amounted to an interference with her right to respect for her private and family life.”(Para 45)

“The Government pointed out that the exclusion order had been made on account of Mrs. Dalia’s involvement in large-scale heroin trafficking. The importance of an offence against the dangerous drugs legislation could not be minimized. The Applicant had taken an active part in spreading the scourge of drugs. Furthermore, she had chosen to lead a marginal existence shortly after settling in France. On the other hand, a temporary residence permit could be issued to her by virtue of section 12 bis of the Ordinance of 1945, as amended by the Law of 24 April 1997 (see paragraph 29 above), as the mother of a French child. Deportation, moreover, would not entail separation from her son, who could accompany her to Algeria.” (Para 50)

“Furthermore, the exclusion order made as a result of her conviction was a penalty for dangerous dealing in heroin. In view of the devastating effects of drugs on people’s lives, the Court understands why the authorities show great firmness with regard to those who actively contribute to the spread of this scourge. Irrespective of the sentence passed on her, the fact that Mrs. Dalia took part in such trafficking still weighs as heavily in the balance.” (Para 54)

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