Lexploria

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)

Menu

BRIGHINA v. THE FEDERAL REPUBLIC OF GERMANY

BRIGHINA v. THE FEDERAL REPUBLIC OF GERMANY

LEXI