CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 1 décembre 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  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)