Child Rapist Could Get Booted Despite Residency

(CN) - Germany may get to deport a longtime resident to Italy after the man serves his prison sentence for sexually abusing a child, an adviser to Europe's high court said.

Mr. I, whose full name is not revealed in court records, was convicted of the sexual abuse, coercion and rape of his former partner's minor daughter in 2006. The sexual abuse took place over an 11-year period from 1990 to 2001, according to the Court of Justice for the European Union.

With Mr. I's 7 1/2-year prison sentence scheduled to conclude in July 2013, Germany declared that the Italian national has forfeited his residency on the grounds that he might reoffend. If Mr. I does not leave the country's borders, where he has lived since 1987, Germany said it would deport him back to Italy.

European Union laws prohibit the deportation of citizens from a member state who have acquired a permanent right of residence after living in country for five years continuously. Where the EU citizen has resided in a territory for 10 years, deportation may only be ordered on "imperative grounds of public security," according to the court.

A German appeals court asked the Court of Justice whether the sexual abuse of a minor, sexual coercion and rape constitute "imperative grounds of public security" that would justify the expulsion of a citizen who has resided in Germany for more than 10 years.

The recommendation Tuesday from Advocate General Yves Bot spells good news for Italy. Though Mr. I's crimes may not constitute a threat to public security under EU law, he is not immune from expulsion from Germany, Bot said.

"Although it is indisputable that sexual abuse of a 14 year old minor, sexual coercion and rape constitute a particularly serious threat to one of the fundamental interests of society, I do not think that this type of act is covered by the concept of 'public security' within the meaning of Article 28(3) of Directive 2004/38," Bot wrote.

"The purpose of this directive is to facilitate the fundamental right of every citizen of the union to move and reside freely within the territory of the member states," Bot continued. "That fundamental right derives from citizenship of the Union and is exercised subject to the limitations and restrictions laid down by that directive."

Court of Justice case law dictates that offenses that threaten public security are ones that "could 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," Bot noted.

"Are the acts committed by Mr I. covered by the definition thus given by the court?" he asked. "However much we may wish to reply in the affirmative, such is the spontaneous disapproval and repulsion aroused from a moral point of view by the acts committed, the legal analysis seems to me to call for a negative response."

"Indeed, I think it cannot be disputed that, particularly from a criminological point of view, that kind of conduct, which is set in an exclusively family context, cannot be treated in the same way as that of 'sexual predators,'" the opinion states.

"Although Mr I. is undoubtedly a threat in the family sphere, it has not been established, by the nature of the act committed, that he is a threat to the security of the citizens of the union. ... However repellent it may be, the act of incest does not seem to me to involve, as regards public security, the same kind of threat as that defined by the court in that judgment."

But the facts of the case rebut the idea that Mr. I enjoys enhanced protection as an integrated member of German society, the court adviser found.

"I think it is indisputable, in the present case, that if the acts, having regard to their date, had been known about since they began, Mr I. would have been prosecuted, convicted and, possibly, expelled, without, of course, being able to invoke the benefit of Article 28(3) of Directive 2004/38," Bot wrote.

"With effect from his third year of residence on the territory of the host member state - and therefore before the five years of legal residence which govern the right to permanent residence - Mr I. began to abuse his partner's minor child, and continued until 2001, that is, within the 10-year period which preceded the expulsion measure taken against him," Bot continued.

"Although the integration of a union citizen is, in fact, based on territorial and time factors, it is also based on qualitative elements," Bot wrote. "Now, it seems clear to me that Mr I.'s conduct, which constitutes a serious disturbance of public policy, shows a total lack of desire to integrate into the society in which he finds himself and some of whose fundamental values he so conscientiously disregarded for years."

"Today he relies on the consequences of having completed a period of 10 years which was not interrupted because his conduct remained hidden owing to the physical and moral violence horribly exercised on the victim for years."

"An offense of that nature, just because it has lasted a long time, cannot create a right," the opinion states.

Member states can adopt the necessary measures to refuse, terminate, or withdraw any right conferred by the directive in the case of abuse of rights or fraud, Bot said.

"In this case, it should be for the court to draw the appropriate conclusions from such fraud," he concluded.

The advocate general's opinion is not binding on the court, which takes it into consideration before entering a final judgment.

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