The High Court of Cassation and Justice has ruled that, in accordance with Article 27 (2) of Directive 2004/38/EC of 29 April 2004 on the right of free movement and residence in Member States for Union citizens and their family members, measures restricting freedom of movement and residence of Union citizens taken on grounds of public policy or public security that respect the principle of proportionality and shall be based exclusively on the conduct of the person concerned, previous criminal convictions do not in themselves constitute grounds for taking such measures, and the conduct of the person concerned must represent a genuine threat present and sufficiently serious to a fundamental interest of society, reasoning  cannot be accepted that is not directly related to the case or that rely on considerations of general prevention.

According to the jurisprudence of the Court of Justice of the European Union, reflected, in particular, Case C-348/96 Calfa, expulsion may be enforced against a Community national only if, besides the fact that he has committed a crime, his personal conduct created a genuine and sufficiently serious threat affecting one of the fundamental interests of society.

In the light of Directive 2004/38/EC and the Court of Justice of the European Union, the security measure of expulsion, provided for in art. 117 of the Penal Code against a Community national, is unlawfully taken if exclusively issued based on a conviction to a penalty of two years imprisonment, without taking into account his personal conduct – the primary offender who previously had a job – or danger to the requirements of public order. (Decision no. 2764 of 11 September 2012, issued by the Criminal Division of the High Court of Cassation and Justice covering the security measure of expulsion)

Under the provisions of art. 66 letter (c) of the New Criminal Code, expulsion is provided as an additional penalty.

:: The source: JURIDICE.ro

Dan Alexandru NEGRU

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