Rights of criminals’ free movement under question at Court of Justice

Date: 07/01/1999

By Rencute;e Cordes

THE European Court of Justice is set to rule later this month on a key test case concerning the right of EU citizens convicted of crimes to move freely between member states.

The Court is set to deliver its verdict on 19 January on whether Greece violated Union laws governing the free movement of people when it expelled an Italian national for life after she was found guilty of drug possession while on a Mediterranean holiday.

Under current EU law, national governments can pass rulings that restrict free movement in cases where public security and health are threatened. However, striking a balance “is more a feeling of justice than something you can cast in stone”, according to Brussels-based lawyer Johan Ysewyn, who added that it was “very difficult” to advise clients in this area.

Donatella Calfa, an Italian citizen, was convicted of drug possession while on holiday in Greece and sentenced to three months in prison. In addition, she was expelled for life from Greek territory. While she accepted the prison term, she took the government to court to challenge the expulsion order.

She argued that the punishment unfairly discriminated against foreigners, since Greek citizens found guilty of the same crime could not be expelled from the country. Calfa also claimed that the order violated EU laws on the free movement of people.

The Greek government argued that its decision to ban her from returning to Greece was justified on the grounds that it had a right to take action to combat security problems.

Officials also claimed that it was “incontestable” that EU law entitled member states to impose restrictions on Union citizens on public order grounds.

Legal experts say the Court has in the past generally refrained from intervening in national security issues. “The court is very sensitive about security,” said Ysewyn, who specialises in European constitutional law and the free movement of persons at Belgian law firm Linklaters and Alliance. “Often this issue is so heavily loaded, the court is very reluctant to actually overturn a member state.”

However, he added that if a government imposed stricter punishments on non-nationals found guilty of crimes simply because they were foreign and not for national security reasons, “that is an obvious reason for the Court to overturn the state”.

Legal experts point to one previous case where the ECJ did just that, when it found that Belgium was breaking EU law by having different legislation on its statute book for foreign and domestic convicted criminals.

In that case, the Court rejected the Belgian government's security argument for expelling two French prostitutes from the country. The Luxembourg-based judges ruled that the country was discriminating against foreigners by imposing more stringent measures on them than on its own citizens.