CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)