Lexploria

The European Commission of Human Rights sitting in private on

1 December 1986, the following members being present:

MM. C.A. NØRGAARD, President

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 24 March 1986 by K.P.

against the Federal Republic of Germany and registered on 26 March

1986 under file No. 12068/86;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Tamil, is a citizen of Sri Lanka. He was born in

1954 and is presently living at Bonn. In the proceedings before the

Commission he is represented by Mr. N. Wingerter and others, lawyers

in Heilbronn.

On 6 August 1984 the applicant was convicted by the Heilbronn District

Court (Amtsgericht) of having violated the Act on Asylum Proceedings

(Asylverfahrensgesetz). He was fined 50.- DM.

According to the findings of the court the applicant entered the

Federal Republic of Germany in 1979 and made a request to be granted

asylum. The proceedings concerning this request were still pending

and the applicant was granted a provisional residence permit

(Aufenthaltsgestattung und Aufenthaltserlaubnis) limited to the

district (Stadt- und Landkreis) of Heilbronn. On 30 November 1982 the

competent authorities at Heilbronn issued a document (Ausweis) to the

applicant called "residence permit for the Federal Republic of Germany

including the Land Berlin" for the purpose of the asylum proceedings.

On page 3 of the document the following restriction is indicated:

"Residence is limited to the district of Heilbronn. Leaving this

district requires special authorisation by the Office for Foreigners

(Ausländerbehörde)".

On page 2 a bold faced typed warning states that violations of

conditions or restrictions are punishable. Receipt of the document

has to be signed by the bearer.

In December 1982 the applicant was fined for a traffic offence

committed outside the district of Heilbronn. He was therefore warned

by an officer of the Office for Foreigners when his residence permit

was prolonged in May 1983 that he was not allowed to leave the

district of Heilbronn. Nevertheless on 23 September 1983 he travelled

to Stuttgart in order to fetch someone at the railway station. He was

intercepted by a police control.

The court concluded that the applicant had thus violated Sections 35

(1) and 20 (2) of the Act on Asylum Proceedings and that he was

punishable as he must have been aware that he did not have the right

to leave the district of Heilbronn. The Court moreover considered the

applicant's submissions that the restriction in question would violate

the freedom of movement as guaranteed by the German Basic Law

(Grundgesetz). It found, however, that the restriction did not

violate the freedom of movement because the person concerned was free

to move within the district he was allowed to reside in. The

legitimate purpose of the restriction was to enable the authorities to

supervise the activities of persons requesting asylum and to avoid

their going underground.

On 7 February 1985 the Heilbronn Regional Court (Landgericht)

dismissed both the applicant's and the Public Prosecutor's appeal

(Berufung).

The applicant's appeal was declared inadmissible because neither the

applicant himself nor his defence counsel attended the hearing on the

appeal.

With regard to the appeal lodged by the Public Prosecutor the Court

stated that the restriction in question did not violate constitutional

rights because the residence permit was only granted to the extent

necessary to enable the applicant to pursue his request for asylum.

There was neither necessity nor a constitutional requirement to allow

a person requesting asylum a more extensive right to travel in the

Federal Republic before asylum was in effect granted. Insofar as the

Public Prosecution had argued that the incriminated act should be

considered as a misdemeanour (Vergehen) and not just as a regulatory

offence (Ordnungswidrigkeit) the appeal was considered to be

unfounded.

The applicant lodged a further appeal which was, on 10 October 1985,

declared inadmissible by the Stuttgart Court of Appeal

(Oberlandesgericht). This Court likewise dismissed on

27 November 1985 an appeal (Revision) lodged by the Public Prosecutor.

In rejecting the Prosecutor's appeal the Appellate Court also examined

in accordance with S. 301 of the Code on Criminal Procedure

(Strafprozessordnung) whether the judgment of 7 February 1985

contained errors of material law (sachlichrechtliche Mängel) to the

applicant's disadvantage. Referring to a decision of the Federal

Constitutional Court (Bundesverfassungsgericht) of 7 July 1983 it

stated in this context that it was compatible both with constitutional

and Convention rights to limit to certain districts residence permits

for persons requesting asylum.

The applicant submits that he did not lodge a constitutional complaint

as such remedy would have been ineffective in the light of the

existing case law.

COMPLAINTS

The applicant considers that he was wrongly convicted and fined

because the limitation of his residence permit violates his freedom of

movement as guaranteed by Article 2 of Protocol No. 4 (P4-2). He also

invokes Articles 5, 8, 11 (art. 5), (art. 8), (art. 11) and 14

(art. 14) of the Convention and submits that limitations of the kind

in question are unnecessary in a democratic society and therefore

arbitrary.

THE LAW

1. The applicant complains under Article 2 of Protocol No. 4

(P4-2) that he was fined in criminal proceedings for having violated

the obligation imposed on him in connection with a provisional

residence permit to remain within the district of the city of

Heilbronn pending the proceedings concerning his request to be granted

asylum. Article 2 of Protocol No. 4 (P4-2) provides:

"Everyone lawfully within the territory of a State shall, within that

territory have the right to freedom of movement and freedom to choose

his residence."

The Commission notes at the outset that before the respective German

Courts the applicant did not invoke Article 2 of Protocol No. 4

(P4-2). He rather referred to provisions of the German Basic Law. An

issue therefore arises as to whether the applicant has properly

exhausted the domestic remedies within the meaning of Article 26

(art. 26) of the Convention. The Commission nevertheless leaves this

question open since the above complaint is in any event manifestly

ill-founded for the following reasons.

The Commission notes that, in accordance with S. 17 para. 1 and S. 7

para. 1 of the German Aliens' Act, the applicant was only

provisionally permitted to stay in the district of the city of

Heilbronn pending the proceedings concerning his renewed requests for

asylum.

The Commission observes that Article 2 para. 1 of Protocol No. 4

(P4-2-1) secures the freedom of movement to persons "lawfully within the

territory of a State". This condition refers to the domestic law of

the State concerned. It is for the domestic law and organs to lay

down the conditions which must be fulfilled for a person's presence in

the territory to be considered "lawful". The Commission, in this

respect, recalls its constant case-law according to which there is no

right of an alien to enter, reside or remain in a particular country,

as such, guaranteed by the Convention (cf. No. 9285/81, Dec. 6.7.82,

D.R. 29 p. 205). The Commission is of the opinion that aliens

provisionally admitted to a certain district of the territory of a

State, pending proceedings to determine whether or not they are

entitled to a residence permit under the relevant provisions of

domestic law, can only be regarded as "lawfully" in the territory as

long as they comply with the conditions to which their admission and

stay are subjected.

In the present case the applicant's provisional admission to the

territory of the Federal Republic of Germany is subject to the

condition that it extends only to the district of the city of

Heilbronn. His "lawful" stay within the territory is, therefore,

geographically limited. Article 2 of Protocol No. 4 (P4-2) does not

extend that right.

Consequently, the applicant's complaint that he is not granted

geographically unlimited permissions to stay within the territory of

the Federal Republic of Germany is manifestly ill-founded within the

meaning of Article 27 para. 2 (art. 27-2) of the Convention.

2. The applicant has also invoked Articles 5, 8, 11 (art. 5),

(art. 8), (art. 11) and 14 (art. 14) of the Convention in respect of

his complaint concerning the restriction of his freedom of movement.

However, the Commission finds that there is no appearance of a

violation of the rights and freedoms set out in Articles 5, 8, 11

(art. 5), (art. 8), (art. 11) or 14 (art. 14) of the Convention. It

follows that this part of the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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