AS TO THE ADMISSIBILITY OF
Application No. 15271/89
by Filippo BRIGHINA
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 2 July 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 December 1988
by Filippo Brighina against the Federal Republic of Germany and registered
on 20 July 1989 under file No. 15271/89;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Italian citizen, born in 1958 and living
in Düren. He is represented by Mr. W.Th. Nelles, a lawyer in Düren.
The applicant complains that, having lived in the Federal
Republic of Germany for twenty-five years, he is now threatened with
expulsion which would disrupt all his family ties.
On 15 September 1986 the applicant was convicted by the
Konstanz District Court (Amtsgericht) of illegal importation of drugs
and drug trafficking and sentenced to two years and three months'
imprisonment. An Italian accomplice was sentenced to two years and
ten months' imprisonment. The applicant lodged an appeal (Berufung).
On 15 December 1986 the Konstanz Regional Court (Landgericht) reduced
the sentence to two years and one month's imprisonment.
On 30 July 1987 the authorities in Ludwigsburg ordered the
applicant's expulsion.
On 4 August 1987 the applicant was provisionally released,
after having served two thirds of his sentence.
The applicant appealed (Widerspruch) against the expulsion
order and requested the Stuttgart Administrative Court (Verwaltungs-
gericht) to grant suspensive effect (aufschiebende Wirkung). This
request was rejected on 5 February 1988. An appeal (Beschwerde) was
rejected by the Baden-Württemberg Administrative Court of Appeal
(Verwaltungsgerichtshof) on 25 April 1988. The applicant's subsequent
constitutional complaint was rejected by a group of three judges of
the Federal Constitutional Court (Bundesverfassungsgericht) on
11 July 1988 as offering no prospects of success.
On 1 February 1989 the Stuttgart Administrative Court rejected
the applicant's action seeking the repeal of the expulsion order. On
appeal, this judgment was confirmed by the Administrative Court of
Appeal (Verwaltungsgerichtshof) of Baden-Württemberg on 12 February 1990.
Leave to appeal on points of law (Revision) was refused by the appellate
court.
The Administrative Court of Appeal found that the intended
expulsion was compatible with European Community law. There was
therefore no reason to submit the case to the European Court of
Justice. An expulsion was justified when there was danger that a
foreigner would again disturb public order or security. In accordance
with the jurisprudence of the European Court of Justice the principle
of proportionality had to be taken into account when deciding on this
question. In this context the appellate court considered that the
quantity of haschisch which the applicant had tried to deal with was
sufficient for more than 5000 doses. The Court also pointed out that
it was principally the applicant who had planned and financed the
importation of the drugs from India. Although a social report
attested a continuing stabilisation in the applicant's personal and
professional situation, this did not, in the Court's opinion, yet
warrant to exclude a danger of repetition. Even applying the
criteria valid in the case of expulsion of foreigners married to
German citizens the appellate court found the expulsion to be
justified. Although this group of persons enjoys more protection than
other foreigners its members can, so the appellate court stated, be
expelled in case of drug offences for reasons of general prevention.
The Court added that an expulsion would not constitute undue hardship
for the applicant who was an adult and no longer dependent on his
family members living in the Federal Republic of Germany. Also, he
had lived in Italy in 1982 and 1983. The fact that after the
issuing of the expulsion order he had taken over a barber shop could
not be considered in his favour as at that moment he no longer had
reason to trust that his resident's permit would be prolonged.
Finally the Court gave to understand that as a European who enjoyed
the right of freedom of movement he could later make a new request for
a residence permit invoking personal and professional reasons.
COMPLAINTS
The applicant submits that his parents, his brothers and
further relatives all live in the Federal Republic of Germany while in
Italy he has no close relatives at all. He has taken over his
brother's barber shop. He considers that, in these circumstances, the
German authorities wrongly concluded that there was still a danger
that he would commit similar offences. He argues that his expulsion
would violate Article 8 para. 1 of the Convention. He also invokes
Article 6 para. 1 of the Convention which he considers violated
because his case was not referred to the European Court of Justice.
THE LAW
1. Insofar as the applicant complains of his intended expulsion,
the Commission first observes that a right not to be expelled from a
State of which the person concerned is not a national cannot, as such,
be derived from the Convention (see mutatis mutandis, Eur. Court H.R.,
Soering judgment of 7 July 1989, Series A no. 161, para. 85).
The Commission has next examined the applicant's complaint
that this expulsion would violate Article 8 (Art. 8) of the
Convention, which provides:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is 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."
The Commission, even assuming that the applicant's deportation
to Italy would interfere with his family life in the Federal Republic
of Germany, in that it would disrupt his alleged close relationship
with his brothers and other relatives, notes that the applicant was
convicted of a serious drug offence. His expulsion therefore serves
the prevention of disorder and crime, the protection of health and
morals, and the protection of other persons (No. 8041/77, Dec.
15.12.77, D.R. 12 p.197 at p. 199). The Commission further notes that
the German court carefully examined whether there was danger of
repetition and whether in view of the applicant's personal and
professional situation his expulsion was proportionate to the aim
pursued. This question was decided in the affirmative, inter alia on
the ground that the applicant is an adult person who is no longer
living with or dependent on his parents. The Commission observes in
addition that the applicant is unmarried and has no children. He can
maintain contact with other family members who continue to live in the
Federal Republic either by being visited in Italy or by letter or
telecommunication. The Commission therefore agrees with the
Administrative Court of Appeal that the measure complained of is not
disproportionate and is justified under Article 8 para. 2 (Art. 8-2)
of the Convention insofar as it interferes with the right, under
paragraph 1 of this Article, to respect for the applicant's private
and family life. In this context it has to be noted that, as was
pointed out by the appellate court, the applicant may seek a
limitation in time of his expulsion from the Federal Republic of
Germany.
This part of the application is therefore manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
2. As regards the alleged violation of Article 6 (Art. 6) of the
Convention and even supposing that this provision is applicable in the
applicant's case, the Commission notes that no right to have a case
referred by national authorities or courts to the European Court of
Justice can be inferred from the provisions of the Convention.
Furthermore the applicant has not shown that under European Community
law he had a right to have an issue raised in his case decided by the
European Court of Justice and that this right was arbitrarily denied
to him in a manner constituting a possible violation or Article 6
(Art. 6) of the Convention. The Commission further observes that the
domestic courts took account of the jurisprudence of the European
Court of Justice.
It follows that, even assuming that the applicant has
exhausted the domestic remedies at his disposal, this part of the
application is also manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy