L.L. S.D. JOINT PARTLY DISSENTING OPINION OF JUDGES COSTA, BRATZA AND GREVE

Unlike the majority of our colleagues, we have not found an infringement by France of Article 2 of Protocol No. 4.

The provisions of that Article appear to us to be clear and, furthermore, supported by the preparatory documents: they allow everyone lawfully within the territory of a State the right to liberty of movement and freedom to choose their residence, and everyone to leave any country, including his own. Restrictions, whether general or limited, may be placed on those rights if they are in accordance with the law, pursue a legitimate aim and are proportionate, but, in our opinion, the issue does not even arise in this case.

The issue of an infringement can arise only in the light of the applicant's arguments and the facts of the case. According to Mr Baumann, the cause of the infringement was the seizure and subsequent confiscation of his passport (see paragraph 57 of the judgment). Those measures must also have actually interfered with his right to liberty of movement in France or his right to choose to reside there or, alternatively, to leave any country including his own.

However, the facts, as related in paragraphs 8 to 14, are as follows: the applicant, of German nationality, had resided in France , in a hotel in Brumath (Bas-Rhin) to be precise, but had been taken into hospital in Germany on 26 November 1993 . It was the following day that, during an on-the-spot investigation, the investigators searched the hotel room of Mr Baumann and his girlfriend and seized a number of objects, including a German passport in the applicant's name, which they placed under seal and deposited with the consignment of exhibits department at the Strasbourg tribunal de grande instance . The applicant's lawyer, in an application registered on 8 December, requested the investigating judge, who had in the meantime charged two other persons, to return the seized objects, including the passport. Before any reply from the judge the applicant was arrested in Germany on 5 January 1994 (four weeks after that application for return of the seized objects), convicted by a German criminal court and imprisoned.

It therefore transpires that the seizure of Mr Baumann's passport did not deprive him of the right to leave France , since his passport was in France at the time of the seizure and he was in Germany . Could the impugned measure have prevented him from leaving Germany ? That has never been alleged and, moreover, the applicant, who had “forgotten” the passport in France could have made a declaration to the German authorities that he had lost it and applied for a new one. Lastly, we fail to see how the seizure of a passport could interfere with a person's freedom of movement in France or prevent them from residing there if they were in Germany and had left the seized document in France !

Indeed, there is no causal link, in our view, between the impugned seizure - wholly unlawful as it may have been, which is an entirely separate matter - and the applicant's freedom of movement. Admittedly, in many cases the withdrawal of a person's passport (which is hardly an anodyne measure) has the effect (and generally the aim) of restricting their freedom of movement. In such cases it has to be determined whether the restriction is compatible with Article 2 of Protocol No. 4.

That was the situation in a case giving rise to a decision of the Commission, to which the majority of the Court refer in paragraph 61 of the judgment (Peltonen v. Finland, application no. 19583/92, Commission decision of 20 February 1995, DR 80-A, p. 38), in which the applicant, who was a Finnish national living in Sweden, was refused a passport by the Finnish authorities on the ground that he had not attended the call-up for military service. The Commission considered that the refusal to issue him with a passport constituted an interference with the right guaranteed by Article 2 of Protocol No. 4 even though the refusal in question had not prevented the applicant from leaving Finland or from leaving one Nordic country for another. However, it is clear from the circumstances of that case that the restriction on the applicant's freedom of movement was intended not only to penalise his refusal to do military service, but also materially and continuously affected his freedom to leave the region for the purposes, among other things, of seeking employment. Nothing of that kind was in issue here, which is why we really do not see any way, other than a contrived one, of linking the seizure with the applicant's actual freedom.