Written assignment: analysing a judgement of the Court of Justice
“Case C-348/09 P.I. v. Oberbürgemeisterin der Stadt Remscheid, 22 May 2012” is a judgement of the Court of Justice about a dispute between the mayor of Remscheid and mister P.I.. Because of the sexual assaults that Mr I. has committed, the mayor wants him to lose his right residence and his right of entry in Germany. If Mr I. won’t leave voluntary the mayor says he will be deported to Italy.
Italy is the birth country of Mr I. but he’s staying in Germany with a residence permit since 1987. On the 16th of May 2006, he was sent to prison for seven-and-a-half year. He had been sexually assaulting the daughter of his girlfriend for 10 years, and he also threatened to kill her brother and mother.
The mayor, therefor decided on the 6th of May 2006 that P.I. lost his right of residence and his right to enter Germany. This measure would take effect immediately, so Mr I. had to leave the country right away. If he refuses he would be relegated to Italy.
Mr I., didn’t agree and wanted the measure to be suspended so he turned to the Administrative Court in Düsseldorf to contest this decision. But the court rejected his claim.
So Mr I. went to the High Administrative Court in Nordrhein-Westfalen. The court decided to investigate the accurate meaning of “imperative grounds of public security” before taking any further decisions.
Several provisions in the EU legislation are relevant in this particular case.
To start with, there is “article 33 of directive 2004/38”. This directive states that an individual cannot just be expelled; Articles 27, 28 and 29 of the same directive have to be taken into account to take such a measure of expulsion. The court had to take these directives in account in order to expel Mr I. from Germany.
This is because a measure of expulsion can harm citizens heavily, and therefore these measures can only be taken in exceptional circumstances. That is what recitals 23 and 24 of Directive 2004/38 say.
So article 33 mentions article 27, 28 and 29 of directive 2004/38. Article 27 protects the citizens. There has to be a threat to society, caused by the personal behaviour of Mr I., according to article 27 of Directive 2004/38. But article 28 of Directive 2004/38 is also of importance, Mr I. cannot just be expelled, several factors have to be taken into account, and it is important that the expulsion is based on imperative grounds of public security. These conditions have to be fulfilled.
The German court asked the court of justice for an elaboration of the exact meaning of the term “imperative grounds of public security”.
The expulsion of a person is a measure that can seriously harm him or her. A state can therefore not just expel anybody. An expulsion measure can only be taken in exceptional circumstances. There have to be imperative grounds of public security, as determined by the state (Art. 28, 3) So Germany had to understand the exact meaning of these “imperative grounds of public security” to know whether paedophilia belongs to this category or not. If so, Germany could take a measurement of expulsion against Mr I.
This was also necessary because it was unclear for the German court what these “imperative grounds of public security” entailed.
First it was unclear if these imperative grounds of public security of article 28 only cover “threats posed to the internal and external security of the State in terms of the continued existence of the State with its institutions and important public services, the survival of the population, foreign relations and the peaceful co-existence of nations.” So it was not clear if the threat to an individual could also be an imperative ground of public security.
In the “Case Tsakouridis” the court had already ruled that dealing drugs in an organised group could be covered by imperative grounds of public security of “article 28(3) of directive 2004/38”. But there was still doubt if other acts apart from dealing drugs as part of organised groups could be covered by imperative ground of public security. So they wanted to know under what conditions other facts than dealing drugs as a group could be covered by “article 28(3) of directive 2004/38”.
They especially wanted to know whether it is possible to expel someone who has committed a serious criminal offence that affects the general interest of the society, without being part of a criminal organisation. In this case there is a possibility that he will commit similar crimes in the future.
Article 28(3) of Directive 2004/38 says that states can define for themselves what these imperative grounds of public security entail in order to expel someone.
However, there are some restrictions. The national needs of these imperative grounds of public security can vary from one country to another, but they cannot just be determined separately for each country without the control of the institutions of the EU. This article is a derogation of the principle of free movement of persons. Article 28 therefor has to be strictly interpreted. There has to be a certain “agreement” between member states about what is covered exactly in these imperative grounds of public security, and article 28(3) of Directive 2004/38 in general.
The court says, in order to determine whether the offences that Mr I. has committed are covered by the principle of imperative grounds of public security, they have to take into account several factors.
First of al there are articles that describe the seriousness of the facts, committed by Mr I..
Article 83(1) TFEU) stipulates that the sexual abuse of children is such a serious crime that the European Union legislature can intervene.
The abuse of children is a violation of the human rights, more specific, “the rights of children to the protection and care necessary for their well-being”.
“Directive 2011/93, article 3” is an other indication that the sexual abuse of a minor is a serious offence. He further threatened to kill the child’s family members.
It is up to the state to decide whether the criminal offences committed by Mr I are covered by imperative grounds of public security. There has to be an individual examination by the referring court to decide whether the way the crime is committed has really serious characteristics. But even if the court agrees that this is the case, and the crimes committed by Mr I. form a threat to the population, there is no certitude that he will be expelled. There also has to be a serious threat that Mr I will commit similar crimes in a near or further future.
Further it is also important to take several other factors into account, such as the age of the person they want to expel, how long Mr I has stayed in Germany, his economic situation. It is also important to look at his state of health, and his familial situation. And at last it is important to take into consideration how well Mr I. is integrated in Germany, both socially and economically, and the extent of Mr I.’s links with Italy.
Ultimately the European Court of Justice rules that the German court can decide that the criminal offences committed by Mr I. can be covered by imperative grounds of public security. So the German court can expel Mr I.. I personally think the court has made the right decision. In my opinion sexual abuse in general is a serious offence, the age of the victim doesn’t matter. Raping a person or sexually abusing a person is a crime that destroys a human life. This does affect the general interest of society, and justifies the expulsion Mr I.. I personally think that Mr I. should be expelled.
However, expelling him will not prevent him from committing similar crimes in Italy. So therapy might be a better solution before sending him anywhere.