FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46689/99 by Mario CORETTI against Germany

The European Court of Human Rights (Fourth Section) , sitting on 3 May 2001 as a Chamber composed of

Mr A. Pastor Ridruejo , President , Mr G. Ress , Mr L. Caflisch , Mr J. Makarczyk , Mr V. Butkevych , Mr J. Hedigan , Mrs S. Botoucharova , judges , and  Mr V. Berger , Section Registrar ,

Having regard to the above application introduced on 26 November 1998 and registered on 10 March 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mario Coretti, is a n Italian national , born in Germany in 1968. When lodging his application he was living in Ravensburg (Germany). He is represented before the Court by Mr A. Koschorreck, a lawyer practisi g in Stockach (Germany).

T he members of the applicant’s family, i.e. his parents and five brothers and sisters, are living in Germany. The applicant has lived together with a German national for several years and a child was born out of wedlock in 1996.

The facts of the case, as submitted by the applicant , may be summarised as follows.

On 20 October 1997 the Tübingen Regional Government ( Regierungspräsiduum ) ordered the applicant’s expulsion. It noted the applicant’s repeated criminal convictions since 1986, in particular his conviction of drug trafficking in 1997 when he had been sentenced to three years and nine months’ imprisonment. The Regional Government found that this serious criminal conduct reached the level of severity justifying the expulsion of a foreigner born Germany and in possession of a residence permit. In this context, the Regional Government considered his personal and family situation, in particular that he was the father of a German child, born two days before he had been taken into detention in October 1996, but also the fact that he had twice been warned about the consequences of criminal conduct. Referring to Article 8 of the Convention, the Regional Government argued that the applicant, on account of his age, would manage his integration in Italy. Moreover, the public interest in his expulsion, given the seriousness of his criminal conduct, outweighed his own and his child’s and friend’s family interests. The Regional Government ordered that the applicant be expelled after having served his prison sentence.

The applicant appealed against this expulsion order and the decision dismissing his administrative appeal to the competent administrative courts. At the same time he applied for an interim measure to stop his expulsion.

On 6 August 1998 the Sigmaringen Administrative Court ( Verwaltungsgericht ) refused his request for an interim measure. His appeal ( Beschwerde ) was dismissed by the Baden Wurttemberg Administrative Appeals Court ( Verwaltungsgerichtshof ) on 12 October 1998.

On 23 November 1998 the Federal Constitutional Court ( Bundesverfassungsgericht ) refused to entertain the applicant’s complaint. It found that the refusal of an interim measure did not violate his basic rights and that the proceedings on the merits ( Hauptsacheverfahren ) were still pending.

The applicant was expelled to Italy in March 1999.

The applicant’s appeals in the main proceedings remained unsuccessful.

COMPLAINT

The applicant complains under Article 8 of the Convention that his expulsion to Italy would interfere with his family life. The applicant states that he was born in Germany and received a German upbringing and education. His parents and siblings live in Germany. He has a German girlfriend and his son was born in Germany and has German nationality. He has no link with Italy other than his nationality.

THE LAW

The applicant complains about his expulsion to Italy. He relies on Article 8 of the Convention which provides as follows:

“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 is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime, ...”

The Court recalls that Contracting States have the right, as a matter of well-established international law and subject to their obligations under international treaties including the Convention, to control the entry, residence and expulsion of aliens (see the Vilvarajah and others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, § 102). However, the expulsion of a person from a country where his or her close relatives reside or have the right to reside may amount to an infringement of the right to respect for family life guaranteed in Article 8 § 1 (see the Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193, p. 18, § 36). On the other hand, Article 8 does not guarantee a right to choose the most suitable place to develop family life (see the Ahmut v. the Netherlands judgment of 28 November 1996, Reports 1996-VI, p. 2033, §§ 67 and 71).

In examining cases of the present kind, the Court’s first task is to consider whether a sufficient link exists between the relatives concerned as to give rise to the protection of Article 8 of the Convention. In immigration cases, relationships between a parent and an adult child would not necessarily attract the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal, emotional ties (see no. 31519/96, Dec. 7.11.2000, and no. 53491/99, Dec. 6.4.2000; Eur. Commission HR, no.10375/83, decision of 10 December 1984, D.R. 40, p. 196).

The Court considers that the question whether the relationship between the applicant and his parents and other members of his parental family is protected under Article 8 § 1 is of minor importance. The applicant has been living together with a German national for several years and a child was born out of wedlock in 1996. His expulsion therefore amounted to an interference with his private and family life which is in breach of Article 8 unless if it is justified under its paragraph 2.

The Court finds that the expulsion order is based on German law and pursued a legitimate aim, namely the prevention of disorder and crime.

As to the test of necessity, the Court notes that the applicant was born and brought up in Germany and that his family, especially his girlfriend and his son, live in Germany. Nevertheless, it is decisive that the applicant’s expulsion was decided after he had been sentenced to a total of almost four years’ imprisonment, non-suspended, for drug trafficking. The applicant had been informed on earlier occasions about possible consequences of further criminal convictions.

In these circumstances, the Court finds that the expulsion order is proportionate to the legitimate aim pursued. Accordingly, there is no appearance of a violation of Article 8 of the Convention.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

      Vincent Berger                       Antonio Pastor Ridruejo Registrar   President