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Case:
A.J.D.A. 1999, 789 Case Ministre de l’intérieur c. M. El Mouhaden
Date:
11 June 1999
Translated by:
Tony Weir
Copyright:
Professor Sir B. S. Markesinis

A.J.D.A. 1999, 789
Case Ministre de l’intérieur c. M. El Mouhaden

11 June 1999

Given that on 31 December 1996 the administrative court of appeal of Lyons annulled, on the ground of violation of article 8 of the European Convention for the Protection of Human Rights and Fundamental Liberties, the order of the Minister of the Interior of 26 June 1995, based on article 26 of the Ordinance of 2 November 1945 (no. 45-2658) as amended, that M. El Mouhaden be expelled from France;

Given that article 8 of the Convention provides that : “1. Everyone has the right to respect for his private and family life….2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Given that while it appears from the dossier submitted at first instance that the decision to expel M. El Mouhaden was largely based on the seriousness of the rapes and other acts of violence committed by him in 1989, the court of appeal based its holding that the decision infringed the applicant’s right to respect for his family life in a manner disproportionate to the needs of public safety on the mere fact that while he was in detention he married a French woman and had good links with her relatives; given that in so holding the court misconstrued the facts in relation to the provisions of article 8 of the European Convention for the Protection of Human Rights and Fundamental Liberties, so that the Minister of the Interior is entitled to demand the annulment of the decision under attack;

Given that under article 11 of the Law of 31 December 1987 the Conseil d’État which annuls a decision of an administrative court of final resort may “deal with the substance of the matter if this is justified in the interests of good administration”, and that that is the case here;

Given that in the light of what has been said above, the decision to expel M. El Mouhaden from France was not in violation of article 8 of the European Convention for the Protection of Human Rights and Fundamental Liberties, and that in view of the conduct of the applicant as a whole the decision was imperatively necessary for the safety of the public in the sense of article 26 of the Ordinance of 2 November 1945;

Given that it follows that M. El Mouhaden cannot maintain that the judgment of the administrative tribunal, rejecting his request, was wrong;


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