FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 554/03 by Antal TOLGYESI against Germany

The European Court of Human Rights (Fifth Section), sitting on 8 July 2008 as a Chamber composed of:

Peer Lorenzen , President,

Rait Maruste,

Karel Jungwiert,

Renate Jaeger,

Mark Villiger,

Isabelle Berro-Lefèvre ,

Zdravka Kalaydjieva , judges,

and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 23 December 2002,

Having deliberated, decides as follows:

THE FACTS

The applica nt, Mr Antal Tolgyesi, is a Hungarian national who was born in Hungary and lives in Esztergom. He was represented before the Court by Mr C. Peters, a lawyer practising in Bocholt .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In June 1999 the applicant , a Hungarian national and therefore, at the time of the events in question, a national of a State outside the European Community, commenced employment with a Netherlands company as a lorry driver. The contract was governed by Netherlands law and the lorry was registered in the Netherlands . The applicant was in possession of an employment certificate ( Dienstbetrekkingsverklaring ) issued by the Netherlands National Traffic Inspectorate ( Rijksve rkeers inspectie ) which stated that his employer covered the transport risks and expenses and that the applicant was legally employed. He did not reside in the Netherlands , worked exclusively outside the Netherlands and, at the relevant time, had not (yet) been issued with a Netherlands work permit.

On 29 January 2001 and 28 February 2001, on his way from Spain to Austria and Germany to Austria , he was subjected to checks by the German police. After both events criminal proceedings were instituted against the applicant.

On 10 September 2001 the Rosenheim District Court convicted him of remaining in the country illegally in both cases and sentenced him to an overall fine of 3,300 German marks ( equivalent to 1,687.26 euros (EUR)). The decision was based on sections 3(1) and 92(1) of the Aliens Act ( Au s l ä ndergesetz , see “Relevant domestic law” below ). The court found that the exception to the requirement to hold a residence permit provided for in section 12, subsection 2(2)(a) of the Order implementing the Aliens Act ( Durchfü hrungsverordnung zum Aus lä ndergesetz , see “Relevant domestic law” below ) did not apply as the applicant ’ s journeys from Spain and Germany to Austria did not have a direct connection with the Netherlands, the Community Member State where the company was established. That, however, the court pointed out, was an implicit condition of the provision in question, as demonstrated by its genesis and its aim of preventing bogus companies being set up and as further confirmed in a statement by the Ministry of the Interior addressed to the applicant ’ s legal counsel on 26 October 2000 . On that ground the court found that the question whether the applicant was legally employed in the Netherlands was not decisive. It further established – referring also to the fact that information to that effect had been circulated by the authorities – that the applicant at least could have known that his actions were illegal.

On 17 December 2001 the Netherlands employment agency ( Arbei d svoorziening ) issued the applicant with a work permit ( Tewerkstellingsvergun n ing ) allowing him to load and unload goods in the Netherlands . Thereafter t he applicant also transported goods from and to the Netherlands .

On 20 March 2002 the Traunstein Regional Court, after hearing evidence from the executive director of the company which employed the applicant and obtaining a translation of the documents in Dutch, quashed his conviction as regards the first offence on the ground that the applicant could not have known that his stay was illegal given that he had been subjected to checks before without any consequences. However, it upheld his conviction as regards the second offence and reduced the fine to EUR 1,000. As regards the second conviction it found that the exception to the requirement to hold a residence permit, provided for in section 12, subsection 2(2)(a) of the Order implementing the Aliens Act, did not apply as at the time of the events in question the applicant had not been in possession of a Netherlands work permit (it found that the employment certificate could not be equated with a work permit, as it merely stated that the applicant ’ s employer covered the transport risks and expenses and that the applicant was legally employed) and had been working exclusively outside the Netherlands. In this latter respect it pointed out, referring also to a statement by the Ministry of the Interior, that section 12, subsection 2(2)(a) of the Order implementing the Aliens Act was clearly aimed at benefiting only those employees whose (legal) residence and employment were actually in the Community Member State where the company was established and not those who, like the applicant, worked exclusively outside that Member State.

On 20 June 2002 the Bavarian Court of Appeal rejected the applicant ’ s appeal on points of law. It upheld the finding that, at the relevant time, the applicant had not been in possession of a Netherlands work permit. In this respect it also pointed out that only from December 2001 onwards had he been entitled to work as a lorry driver in the Netherlands . Furthermore, it found that the applicant ’ s case could not be compared to the case of Vander Elst (ECJ, see below) as, unlike Mr Vander Elst, the applicant was not in possession of a work permit issued by the State where the company was established.

On 30 September 2002 the Federal Constitutional Court refused to admit the constitutional complaint, without indicating any reasons.

B. Relevant domestic law and case-law of the ECJ

1. Relevant domestic law

Section 3 ( 1 ) of the Aliens Act provides:

“Any person entering or remaining in Germany must have a residence permit. In order to facilitate the residence of non-nationals in Germany the Ministry of the Interior , with the consent of the Bundesrat , shall issue an order providing for exemptions.”

Section 92 ( 1 ) of the Aliens Act reads as follows:

“Any person who , contrary to section 3 ( 1 ) , remains in Germany without a residence permit ... shall be liable to imprisonment for not more than one year or to payment of a fine. ”

Section 12 , subsection 2 (2)(a) of the Order implementing the Aliens Act provides for an exception to the requirement to hold a residence permit if a person employed by a company from another State and resident in that State does not remain in Germany for more than 3 months in the year, if he or she:

“works in cross-border passenger or goods traffic, if the company employing him or her is established in a Member State of the Community, if the vehicle is registered in that country and if the employee has the residence and work permits required in that country.”

2. Judgment of the ECJ of 9 August 1994, Raymond Vander Elst v. Office des Migrations internationales , Case C-43/93

In this judgment the ECJ ruled that under the European Economic Community Treaty a Member State was precluded from requiring undertakings established in another Member State, and entering the first Member State in order to provide services , to obtain further work permits in the S tate where the services were to be carried out for those employees who were nationals of a non- member country but who had been issued with work permits in the Member State where the undertaking was established.

COMPLAINT

The applicant complained under Article 7 § 1 of the Convention that he should not have been convicted for remaining in the country illegally, as due to his Netherlands employment certificate he was exempted from the requirement to obtain a residence permit. In this respect he relied on section 12, subsection 2(2)(a) of the Order implementing the Aliens Act and the above-mentioned judgment of the ECJ.

THE LAW

The applicant complained under Article 7 § 1 of the Convention that he should not have been convicted. Article 7 § 1 of the Convention, in so far as relevant, provides:

“ No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed .”

The Court reiterates that Article 7 of the Convention embodies, inter alia , the principle that only the law can define a crime and prescribe a penalty ( nullum crimen nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused ’ s detriment, for instance by analogy. From these principles it follows that an offence must be clearly defined in the law. This requirement is satisfied where an individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts ’ interpretation of it, what acts and omissions will make him criminally liable (see Streletz , Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50 , ECHR 2001 ‑ II ) .

The Court further observes that it is not its task to rule on the applicant ’ s individual responsibility, that being primarily a matter for the assessment of the domestic courts, but to consider, from the standpoint of Article 7 § 1 of the Convention, whether the applicant ’ s acts, at the time when they were committed, constituted an offence defined with sufficient accessibility and foreseeability (see Streletz, Kessler and Krenz , cited above, § 51).

In the present case, the applicant ’ s conviction was based on the national courts ’ findings that the exception to the requirement to hold a residence permit provided for in section 12, subsection 2(2)(a) of the Order implementing the Aliens Act did not apply as, at the time of the events in question, the applicant had not had a work permit, as explicitly required by that provision, and that his employment certificate could not be equated with a formal work permit. They also pointed out that he had been transporting goods exclusively outside the Netherlands and that on this ground also section 12, subsection 2(2)(a) of the Order implementing the Aliens Act could not be applied as it implicitly required a direct connection with the Member State where the company was established. Moreover, the Bavarian Court of Appeal established that the ECJ judgment in the Vander Elst case did not have any bearing on the applicant ’ s case as it presupposed the holding of a work permit in the Community Member State where the employer ’ s undertaking was registered. Finally, the Traunstein Regional Court and the Bavarian Court of Appeal held that the applicant, when he had been checked the second time (which alone is at issue here as it is the only case in which he had been finally convicted), could have known that his stay was illegal.

The question is whether the applicant , if necessary with appropriate advice, could have reasonably foreseen this interpretation and application of the law and hence his conviction.

In this connection it must be noted first that the courts ’ interpretation of section 12, subsection 2(2)(a) of the Order implementing the Aliens Act and the denial of its application in the applicant ’ s case were based on the wording of that provision and derived from its aim and genesis and therefore neither unforeseeable nor arbitrary. Furthermore, the applicant knew that, at the time of the events in question, he was in possession only of an employment certificate stating that his employer covered the transport risks and expenses and that the applicant was legally employed. It was only afterwards that he obtained a formal work permit also allowing him to load and unload goods in the Netherlands . It is hence at least questionable (in view also of the information circulated by the government) whether he could rely on the employment certificate as constituting a sufficient basis for the application of the exception provided for in section 12, subsection 2(2)(a) of the Order implementing the Aliens Act. In any event, at least after the first check by the police which resulted in the institution of criminal proceedings, he also knew that the German authorities did not recognise the certificate. Finally, he could not rely either on the ECJ judgment in Vander Elst , which was based expressly on the fact that the applicant in the case had been issued with a work permit in the country where the company was established.

It follows that the applicant could have reasonably foreseen his criminal prosecution and conviction – at least with regard to the second conviction, which, after the Traunstein Regional Court had quashed his first conviction, is alone at issue here.

In view of these considerations the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court by a majority

Declares the application inadmissible.

             Stephen Phillips Peer Lorenzen Deputy Registrar President