Brussels, 07/03/2012 (Agence Europe) - An EU citizen who has lived more than ten years in a member state other than his own can be subject to an expulsion process where his/her criminal conduct endangers public security. The person in question cannot be protected against expulsion if he/she has “concealed, by threats or duress, criminal conduct constituting a serious disturbance of public policy (…) in the host member state”
This was the interpretation proposed by Advocate General Yves Bot (conclusions of Case C-348/09, delivered on Tuesday 6 March) at the EU Court of Justice. The Higher Administrative Court for the Land of North Rhine-Westphalia, Germany, asks the Court of Justice to interpret Directive 2004/38/EC (on the rights of EU citizens and their families to travel and stay freely on the territory of member states), which protects EU citizens from expulsion from the host state: - if a permanent right of stay has been acquired (after an unbroken stay of five years minimum), unless that person is a serious threat to public order or public safety; - and if that person has stayed for the last ten years on the territory of the host member state (enhanced protection), unless “an expulsion decision” is taken “on imperative grounds of public security”.
The case in question concerns Mr I, an Italian national living in Germany since 1987, who was sentenced in 2006 to a term of imprisonment of a total of seven years and six months for sexual abuse, coercion and rape of a minor between 1990 and 2001. The German court ruled that, pursuant to German law by the decision of 6 May 2008, Mr I would have to forfeit his right to enter and reside on the grounds, inter alia, that he might re-offend, and ordered him to leave Germany, failing which he would be deported to Italy. Hearing the case on appeal, the German court is asking the Court of Justice of the EU whether the sexual abuse of a minor, sexual coercion and rape constitute “imperative grounds of public security” which may justify a measure expelling an EU citizen who has resided in the host member state (in this case, Germany) for more than ten years.
Advocate General Yves Bot firstly draws attention to the case-law of the Court, according to which “actions which reach a level of intensity that might directly threaten the calm and physical security of the population as a whole or a large part of it are capable of being covered by the concept of 'imperative grounds of public security'”. In the present case, although the acts imputed to Mr I are particularly serious, they are not covered by the concept of “public security” within the meaning of the directive, which establishes a clear distinction between the concept of public policy and that of public security, the second having a higher degree of seriousness than the first, as regards preventing the enhanced protection granted to a Union citizen. An infringement of the rules of criminal law causes a disturbance to the public policy established by the member state, more or less serious depending on the act committed, whereas the reference to the concept of public security does not automatically arise from the fact of having committed an offence but from “criminal conduct which is particularly serious in principle and also in its effects, which go beyond the individual harm caused to the victim or victims”. Thus, although any conduct which creates a threat to public security by definition contravenes public policy, the opposite is not true, even if an act committed may give rise in public opinion to feelings of considerable emotion.
On this basis, the question of whether an offender, through his/her behaviour, is a danger for public security depends therefore not only on the gravity of the offence committed but also on its nature. In the case in hand, the person concerned is undoubtedly a threat in the family sphere, but it was not established - due to the nature of the act committed - that he is a threat to the security of the citizens of the Union as, for example, characterised by conduct such as that in the Dutroux and Fourniret cases.
Nonetheless, even though “imperative grounds of public security” are the only grounds that can justify expulsion of a citizen who has lived in the host country for ten years prior to the expulsion measure, Mr I is not protected from an expulsion measure. Advocate General Yves Bot states that the directive contains a simple presumption of integration, which is rebutted in the present case by the acts committed by Mr I, which show that he was not actually integrated and cannot, therefore, benefit from that enhanced protection. If the acts had been known at the time they were committed, then Mr I would have been prosecuted and expelled without being able to benefit from the protection provided by the directive. He cannot therefore rely on the protection granted after a stay of ten years, which was not interrupted because his conduct remained hidden. Advocate General Bot therefore takes the view that an offence of that nature, likely to be detrimental to public order, cannot create a right just because it has lasted a long time. Also, the directive itself provides that member states may adopt the necessary measures to “refuse, terminate or withdraw any right conferred by the directive in the case of abuse of rights or fraud”. It will therefore be up to the Court to draw the appropriate conclusions from such fraud. (FG/transl.jl)