CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 avril 1995

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margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       COURT (CHAMBER)             CASE OF PIERMONT v. FRANCE   (Application no. 15773/89; 15774/89)             JUDGMENT       STRASBOURG   27 April 1995 In the case of Piermont v. France [1] , The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of Rules of Court A [2] , as a Chamber composed of the following judges:   Mr   R. Ryssdal , President,   Mr   F. Matscher ,   Mr   L.-E. Pettiti ,   Mrs   E. Palm ,   Mr   A.N. Loizou ,   Mr   J.M. Morenilla ,   Sir   John Freeland ,   Mr   J. Makarczyk ,   Mr   K. Jungwiert , and also of Mr H. Petzold , Registrar, Having deliberated in private on 24 November 1994 and 20 March 1995, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.    The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 11 March 1994, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in two applications (nos. 15773/89 and 15774/89) against the French Republic lodged with the Commission under Article 25 (art. 25) by a German national, Mrs Dorothée Piermont, on 6 and 8 November 1989. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby France recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 2 of Protocol No. 4 (P4-2) and Articles 10 and 14 (art. 10, art. 14) of the Convention. 2.    In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that she wished to take part in the proceedings and designated the lawyers who would represent her (Rule 30). The German Government, having been informed by the Registrar of their right to intervene in the proceedings (Article 48, sub-paragraph (b) (art. 48-b), of the Convention and Rule 33 para. 3 (b)), did not indicate any intention of so doing. 3.    The Chamber to be constituted included ex officio Mr L.-E. Pettiti, the elected judge of French nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 24 March 1994, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Matscher, Mrs E. Palm, Mr A.N. Loizou, Mr J.M. Morenilla, Sir John Freeland, Mr J. Makarczyk and Mr K. Jungwiert (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). 4.    As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the French Government ("the Government"), the applicant’s lawyers and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant’s memorial on 11 August 1994 and the Government’s memorial on 12 August. On 1 September the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing. 5.    On 21 September 1994 the Chamber, having consulted the Agent of the Government and the Delegate of the Commission, decided not to hear a witness from French Polynesia as the applicant had requested. 6.    On 13 October 1994 the Commission produced the file on the proceedings before it, as requested by the Registrar on the President’s instructions. 7.    In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 21 November 1994. The Court had held a preparatory meeting beforehand. There appeared before the Court: - for the Government     Mr M. Perrin de Brichambaut , Head of the Legal Affairs         Department, Ministry of Foreign Affairs,   Agent ,     Mr Y. Charpentier , Head of the Human Rights Section,       Legal Affairs Department, Ministry of Foreign Affairs,     Mrs M. Merlin-Desmartis , administrative court judge,       on secondment to the Legal Affairs Department, Ministry       of Foreign Affairs,     Mr L. Rinuy , Head of the Legal Affairs and Civil States Office,       Political Affairs Section, Ministry of Overseas         Departments and Territories,     Mrs M. Pauti , Head of the Comparative and International Law       Office, Department of Civil Liberties and Legal Affairs,       Ministry of the Interior,   Counsel ; - for the Commission     Mr A. Weitzel ,   Delegate ; - for the applicant     Mr F. Roux , avocat,   Counsel ,     Ms G. Lang-Chemol , avocate,     Ms M.P. Canizares , avocate,   Advisers . The Court heard addresses by Mr Weitzel, Mr Roux, Ms Lang-Chemol, Ms Canizares and Mr Perrin de Brichambaut and also replies by Mr Perrin de Brichambaut and Mr Roux to a question put by one of its members. AS TO THE FACTS I.    CIRCUMSTANCES OF THE CASE 8.    Mrs Dorothée Piermont, a German citizen living at Remagen, has long been an environmentalist and a pacifist. At the material time she was a member of the European Parliament (MEP). A. The measure taken in French Polynesia 1. The expulsion and exclusion (interdiction d’entrée) order 9.    At the invitation of Mr Oscar Temaru, the President of the French Polynesian Liberation Front, the applicant stayed on Polynesian territory from 24 February to 3 March 1986, during the election campaign preceding the territorial assembly and parliamentary elections that were due to take place on 16 March. 10.    As soon as she alighted from the aircraft, the airport and border police, acting on the orders of the High Commissioner of the French Republic in French Polynesia, requested her to show some discretion in any comments she made on French internal matters, failing which she risked being expelled. 11.    On 28 February 1986 Mrs Piermont took part in a public meeting and on 1 March joined about 900 other people in the traditional march organised by the independence and anti-nuclear movements. This demonstration, which attracted fewer people than in the previous year, took place without incident on the streets of Faaa, a town just outside Papeete, where it had been banned by order of the High Commissioner because of the risk of "serious public disorder". During the demonstration the applicant denounced the continuation of nuclear testing and the French presence in the Pacific. Her words were reported as follows in the newspapers: "Mrs Piermont spoke in French and mentioned, in particular, the circumstances in which, on her arrival at Tahiti Airport, she had been warned by the ‘chief copper’ in charge of the airport and border police against taking part in a public demonstration, as doing so during an election campaign would amount to interference. Mrs Piermont had replied that she would demonstrate if invited to do so, and she told the demonstrators gathered round her on Saturday that when it came to interference, the French presence was an interference in the affairs of the Polynesians, and this interference was, in her view, manifested in the nuclear tests at Mururoa. Mrs Piermont announced that, being of the view that the whole of the press in French Polynesia was opposed to the trend towards independence and supported the continuation of nuclear testing, the German ‘Greens’ had decided to donate one million CFP francs to the Polynesian Liberation Front to set up ‘a newspaper that will tell the truth’." 12.    On the next day, 2 March 1986, the High Commissioner made an order expelling the applicant and prohibiting her from re-entering the territory. The following reasons were given for the order: "All foreign nationals have a duty to maintain a degree of neutrality towards any French territory in which they are staying. Despite an oral warning about the duty of discretion, particularly during an election campaign, given to her on her arrival on 24 February 1986, Mrs Piermont stated, during a public demonstration in favour of the territory’s independence and against nuclear testing, that France was interfering in Polynesian affairs. These statements are an attack on French policy." 13.    This order was served on the applicant on 3 March 1986 when she was already on board the aircraft that was to take her to New Caledonia. 2. The application for judicial review (a) In the Papeete Administrative Court 14.    On 15 April 1986 Mrs Piermont made two applications to the Papeete Administrative Court seeking, firstly, to have execution of the decision stayed and, secondly, to have the decision quashed. 15.    The court dismissed the first application on 8 July 1986, but in a judgment of 23 December 1986 it allowed the second application for the following reasons: "Under the provisions of section 7 of the Act ... of 3 December 1849 ..., the representative of the State may ‘as a public-order measure’ require any alien to leave French territory immediately. While the State’s representative in the territory is vested, not only under these provisions ..., with a wide discretion to enable him to maintain order effectively, he must in all circumstances exercise the power thus conferred on him in a manner that respects freedom of movement and freedom of expression, which are secured not only by European Community law but in the first place by the Constitution and the general principles of law which the Republic applies both to its own nationals and to aliens whose presence and attitude on French territory do not constitute a threat to public order. This entails an obligation to ensure that the proposed public-order measure scrupulously conforms to what is strictly needed in order to maintain or re-establish public order. Firstly, the applicant’s utterances ... were not in any way seditious and could not in themselves constitute a serious threat to public order. They were accordingly not such as to justify the impugned measure. Secondly, it furthermore appears from the evidence that the measure was decided on just as the person concerned was about to leave the territory of her own accord. That being so, it could no longer be regarded as essential for maintaining order there. It follows, without there being any need to rely on international or Community law, that the general principles of domestic law are sufficient to establish that the impugned decision was a misuse of authority and must therefore be quashed." (b) In the Conseil d’Etat 16.    The Minister for Overseas Departments and Territories applied to the Conseil d’Etat on 16 March 1987 to have the Administrative Court’s judgment set aside. 17.    On 12 May 1989 the Conseil d’Etat allowed the application on the following grounds: "It appears from the evidence that during her visit to French Polynesia Mrs Piermont made utterances violently hostile to France’s defence policy and the integrity of French territory in the course of public demonstrations held during the campaign for the elections to the French National Assembly and to the local assembly. In considering, in the circumstances of the case, that Mrs Piermont’s actions constituted a threat to public order and in deciding on those grounds to require her to leave the territory, the High Commissioner did not commit a manifest error of assessment. That being so, the Minister for Overseas Departments and Territories rightly submitted that the Papeete Administrative Court, in quashing the order of 2 March 1986, wrongly based its decision on the lack of grounds warranting Mrs Piermont’s expulsion. ... In the absence of provisions making it applicable to the territory of Polynesia and Dependencies, the Act of 11 July 1979 on the giving of reasons for administrative decisions and the improvement of relations between administrative authorities and the public does not apply there, and no other provision of a statute or of regulations requires reasons to be given for a public-order measure. Although Mrs Piermont relies on the provisions of the Treaty of Rome concerning freedom of movement within the territory of the member States, Articles 135 and 227 of the Treaty make implementation of such freedom of movement in the associated countries, which include France’s overseas territories, subject to agreements to be concluded subsequently, which require the member States’ unanimous approval. In the absence of such agreements, this ground of appeal must in any event fail. The privileges and immunities conferred on members of the European Parliament by Articles 6 to 11 of the Protocol of 8 April 1965 guarantee them free movement for the purpose of travelling to the Parliament and protect them from any prosecution or detention during its sessions but cannot prevent a public-order measure being taken such as the one against Mrs Piermont. Lastly, the impugned measure did not infringe freedom of expression as laid down in Articles 10 and 14 (art. 10, art. 14) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and came within the ambit of Article 2, paragraph 3, of Protocol No. 4 (P4-2-3) to the Convention, which allows restrictions on freedom of movement that are based on the requirements of national security, public safety or the maintenance of ordre public." B. The measure taken in New Caledonia 1. The exclusion (interdiction d’entrée) order 18.    After leaving Polynesia on 3 March 1986 (see paragraph 13 above), Mrs Piermont travelled to New Caledonia at the invitation of local elected representatives, including the President of the Socialist Kanak National Liberation Front. On 4 March, at 1.55 p.m., she arrived at Nouméa Airport. After she had gone with the other passengers through immigration control, where the airport and border police stamped her passport, a police officer stopped her and took her into an airport office, where she was held until her departure. 19.    Some forty activists known as loyalists had been warned that the applicant was coming and were waiting for her in order to express their hostility to her presence in the territory. They made it known that so long as the MEP was on Caledonian soil they would not leave unless removed by force. 20.    Given the risk of confrontation and after unsuccessful attempts at conciliation, the High Commissioner issued an order excluding Mrs Piermont from the territory of New Caledonia. It contained the following reasons: "Having regard to the expulsion and exclusion order of 2 March 1986 issued by the High Commissioner in French Polynesia in respect of Mrs Piermont ...; Being of the view that the presence of Mrs Dorothée Piermont, of German nationality (FRG), on the territory of New Caledonia and Dependencies, in particular during an election campaign, is causing and is likely to cause public disorder ..." A police superintendent served this order on her whilst she was still within the airport perimeter, at about 6.30 p.m. At about midnight the applicant was put on an aircraft bound for Tokyo, her passport having again been duly stamped. 2. The application for judicial review (a) In the Nouméa Administrative Court 21.    On 23 April 1986 Mrs Piermont applied to the Nouméa Administrative Court to have the order excluding her from New Caledonia quashed. 22.    In a judgment of 24 December 1986 which upheld the submissions of the Government Commissioner (commissaire du gouvernement), the court quashed the impugned decision on the ground that no reasons had been given for it. It held: "Under section 1 of the Act of 11 July 1979 on the giving of reasons for administrative decisions, ‘... reasons must be given for decisions which ... restrict the exercise of public freedoms or generally constitute public-order measures’. Under section 3 of the same Act, ‘the statement of reasons required by this Act must be in writing and set out the considerations of law and fact on which the decision is based’. Although the impugned order referred to the order of 2 March 1986 issued by the High Commissioner in French Polynesia expelling Mrs Piermont and excluding her from that territory, the High Commissioner in New Caledonia and Dependencies did not state that he was adopting the terms of that order, whose text is neither incorporated in nor appended to his decision. That recital accordingly could not take the place of the statement of reasons required by the Act. Moreover, by merely stating ‘the presence of Mrs Dorothée Piermont, of German nationality (FRG), on the territory of New Caledonia and Dependencies, in particular during an election campaign, is causing and is likely to cause public disorder’ without specifying the facts on which this public-order measure was based, the High Commissioner in New Caledonia and Dependencies did not satisfy the requirements of section 3 of the aforementioned Act. That being so and without there being any need to consider the other grounds put forward in her application, Mrs Piermont is entitled to have that order quashed." (b) In the Conseil d’Etat 23.    On 16 March 1987 the Minister for Overseas Departments and Territories appealed to the Conseil d’Etat. 24.    In a judgment of 12 May 1989 the Conseil d’Etat set aside the judgment of the court below. After noting that the aforementioned Act of 11 July 1979 did not apply to the territory of New Caledonia and Dependencies, it gave the following reasons for its decision: "Under section 7 of the Act of 3 December 1849 on the naturalisation and residence of aliens in France, which is still in force in the overseas territories and applies in the territory of New Caledonia and Dependencies, ‘the Minister of the Interior may, as a public-order measure, require any alien travelling or resident in France to leave French territory immediately and have him escorted to the frontier’ ... Regard being had both to Mrs Piermont’s actions during the preceding days and to the unrest caused by the announcement of her arrival in the territory, the High Commissioner, in considering that Mrs Piermont’s presence would constitute a threat to public order and in ordering her exclusion from the territory of New Caledonia on that account, did not commit any manifest error of assessment. Although Mrs Piermont relies on the provisions of the Treaty of Rome concerning freedom of movement within the territory of the member States, Articles 135 and 227 of the Treaty make implementation of such freedom of movement in the associated countries, which include France’s overseas territories, subject to agreements to be concluded subsequently, which require the member States’ unanimous approval. In the absence of such agreements, this ground of appeal must in any event fail. The privileges and immunities conferred on members of the European Parliament by Articles 6 to 11 of the Protocol of 8 April 1965 guarantee them freedom of movement for the purpose of travelling to the Parliament and protect them from any prosecution or detention during its sessions but cannot prevent a public-order measure being taken such as the one against Mrs Piermont. Lastly, the impugned measure did not infringe freedom of expression as laid down in Articles 10 and 14 (art. 10, art. 14) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and came within the ambit of Article 2, paragraph 3, of Protocol No. 4 (P4-2-3) to the Convention, which allows restrictions on freedom of movement that are based on the requirements of national security, public safety or the maintenance of ordre public." 3. The revocation of the order 25.    On 23 November 1994 the High Commissioner of the Republic, of his motion, revoked the order of 4 March 1986 on the ground that there was no longer "any reason, having regard to present circumstances, to oppose Mrs Piermont’s entering the territory of New Caledonia". II.    RELEVANT LAW AND PRACTICE A. French law 1. General aspects 26.    France’s overseas territories ("the OTs") are an integral part of the territory of the Republic. 27.    However, by virtue of the "specificity of legislation" principle (Articles 74 and 76 of the Constitution), an enactment applies in the OTs only if such application is expressly provided for or if the enactment has been promulgated there. 28.    When depositing the instruments of ratification of the Convention and of Protocol No. 4 (P4) on 3 May 1974, France declared that these would apply to "the whole territory of the Republic, having due regard, where the overseas territories are concerned, to local requirements, as mentioned in Article 63 (art. 63) of the Convention". 2. Entry and residence of aliens (a) Legislation 29.    The Aliens (Conditions of Entry and Residence) Ordinance of 2 November 1945 in force in metropolitan France was not promulgated in the OTs and accordingly does not apply in them. The applicable provisions are contained in the Aliens (Naturalisation and Residence) Act of 3 December 1849, section 7 of which provides in its first subsection: "The Minister of the Interior may, as a public-order measure, require any alien travelling or resident in France to leave French territory immediately and have him escorted to the frontier." This Act was made applicable to the colonies by an Act of 29 May 1874. An Act of 6 September 1984 vests the powers of the Minister of the Interior in the High Commissioner of the Republic in the OTs. (b) The Conseil d’Etat’s case-law 30.    At the material time the Conseil d’Etat’s power of review in matters of expulsion or exclusion from French territory was limited to ascertaining whether there had been any manifest error of assessment (see, for example, the National Immigration Office judgment of 22 October 1975, Recueil Lebon 1975, p. 520, and, in relation to an expulsion from New Caledonia, the Julbe-Saez judgment of 6 October 1978, Recueil Lebon 1978, p. 900). With more particular reference to the political activities of aliens, the Conseil d’Etat held in the Perregaux judgment of 13 May 1977 (Recueil Lebon 1977, p. 216) that political activity did not in itself justify in law the expulsion of an alien whose presence on French territory did not constitute a threat to public order. B. Community law 1. Scope of the treaty establishing the European Economic Community 31.    At the material time Article 227 of the treaty establishing the European Economic Community ("the EEC Treaty") provided: "1. This Treaty shall apply to the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Portuguese Republic and the United Kingdom of Great Britain and Northern Ireland. 2. With regard to Algeria and the French overseas departments, the general and particular provisions of this Treaty relating to: - the free movement of goods; - agriculture, save for Article 40 (4); - the liberalization of services; - the rules on competition; - the protective measures provided for in Articles 108, 109 and 226; - the institutions, shall apply as soon as this Treaty enters into force. The conditions under which the other provisions of this Treaty are to apply shall be determined, within two years of the entry into force of this Treaty, by decisions of the Council, acting unanimously on a proposal from the Commission. The institutions of the Community will, within the framework of the procedures provided for in this Treaty, in particular Article 226, take care that the economic and social development of these areas is made possible. 3. The special arrangements for association set out in Part Four of this Treaty shall apply to the overseas countries and territories listed in Annex IV to this Treaty. This Treaty shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list." 32.    The OTs, including French Polynesia and New Caledonia, are among the territories listed in Annex IV to the EEC Treaty. Their special arrangements for association are laid down in Articles 131 to 136 bis of the treaty. 33.    With reference to workers’ freedom of movement, Articles 48 and 135 provide: Article 48 "1. Freedom of movement for workers shall be secured within the Community by the end of the transitional period at the latest. 2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission. ..." Article 135 "Subject to the provisions relating to public health, public security or public policy, freedom of movement within Member States for workers from the [OTs], and within the [OTs] for workers from Member States, shall be governed by agreements to be concluded subsequently with the unanimous approval of Member States." 34.    The details of and procedure for the association of the overseas countries and territories with the EEC are set out in an implementing convention of 16 December 1980, which was renewed on 30 June 1986. The arrangements are designed to further the economic and social development of the territories concerned but do not include freedom of movement. 2. Protocol on the privileges and immunities of the European Communities 35.    The Protocol on the privileges and immunities of the European Communities, signed on 8 April 1965, contains a chapter III on members of the European Parliament which provides: Article 8 "No administrative or other restriction shall be imposed on the free movement of members of the European Parliament travelling to or from the place of meeting of the European Parliament. Members of the European Parliament shall, in respect of customs and exchange control, be accorded: (a) by their own Government, the same facilities as those accorded to senior officials travelling abroad on temporary official missions; (b) by the Governments of other Member States, the same facilities as those accorded to representatives of foreign Governments on temporary official missions." Article 9 "Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties." Article 10 "During the sessions of the European Parliament, its members shall enjoy: (a) in the territory of their own State, the immunities accorded to members of their Parliament; (b) in the territory of any other Member State, immunity from any measure of detention and from legal proceedings. Immunity shall likewise apply to members while they are travelling to and from the place of meeting of the European Parliament. Immunity cannot be claimed when a member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its members." PROCEEDINGS BEFORE THE COMMISSION 36.    Mrs Piermont applied to the Commission on 6 and 8 November 1989. She alleged that the administrative measures taken against her in French Polynesia and New Caledonia had infringed several provisions of the Convention: Article 2 of Protocol No. 4 (P4-2) on account of failure to respect her right to liberty of movement on French territory; Article 10 (art. 10) of the Convention because her freedom of expression had been hindered; and Article 14 of the Convention taken together with Article 10 (art. 14+10) on account of discrimination on the ground of national origin. 37.    The Commission, having ordered the joinder of the applications (nos. 15773/89 and 15774/89), declared them admissible on 3 December 1992. In its report of 20 January 1994 (Article 31) (art. 31), it expressed the opinion that (a) the expulsion and exclusion from French Polynesia had not infringed Article 2 of Protocol No. 4 (P4-2) (unanimously) but had infringed Article 10 (art. 10) of the Convention (eight votes to six); (b) the exclusion from New Caledonia had not contravened Article 2 of Protocol No. 4 (P4-2) (thirteen votes to one) or Article 10 (art. 10) of the Convention taken either alone (twelve votes to two) or together with Article 14 (art. 10+ 14) (unanimously). The full text of the Commission’s opinion and of the five separate opinions contained in the report is reproduced as an annex to this judgment [3] . FINAL SUBMISSIONS TO THE COURT 38.    In their memorial the Government asked the Court "to dismiss Mrs Piermont’s application". 39.    Counsel for the applicant requested the Court to hold "(a) that there has been a violation in French Polynesia of Article 10 (art. 10), taken both alone and together with Article 14 (art. 10+14); (b) that there has been a violation in French Polynesia of Article 2 of Protocol No. 4 (P4-2); (c) that there has been a violation in New Caledonia of Article 10 (art. 10), taken both alone and together with Article 14 (art. 10+14); (d) that there has been a violation in New Caledonia of Article 2 of Protocol No. 4 (P4-2); ..." AS TO THE LAW I.    ALLEGED VIOLATIONS OF ARTICLE 2 OF PROTOCOL No. 4 (P4-2) 40.    The applicant complained of the measures taken against her in French Polynesia and New Caledonia. In her submission, they infringed her right to liberty of movement secured by Article 2 of Protocol No. 4 (P4-2), which provides: "1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. ... 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ..." A. The measure taken in French Polynesia 41.    Mrs Piermont maintained that, having entered French Polynesia lawfully, she had had the right to liberty of movement there. The expulsion order, which had been held to be unlawful by the Papeete Administrative Court, could not have had the least effect on the lawfulness of her position in the archipelago. Even though it had been served on her as she was leaving Polynesian territory, she had suffered an interference which did not satisfy the requirements of paragraph 3 of Article 2 of Protocol No. 4 (P4-2-3). In March 1986 an election campaign had been in progress in Polynesia as throughout metropolitan France, but there had not been any particular tensions there. Furthermore, the words spoken had not in any way been of a seditious nature such as to be a threat to public order. 42.    In the Government’s submission, Polynesia was a territory separate from metropolitan France for the purposes of Article 2 of Protocol No. 4 (P4-2), for two reasons. Firstly, in virtue of the "specificity of legislation" principle, the OTs had a legal system distinct from that of metropolitan France (see paragraph 27 above). Secondly and above all, Article 5 para. 4 of Protocol No. 4 (P4-5-4) provided: "The territory of any State to which this Protocol (P4) applies ..., and each territory to which this Protocol (P4) is applied by virtue of a declaration by that State under this Article (P4-5), shall be treated as separate territories for the purpose of the references in Articles 2 and 3 (P4-2, P4-3) to the territory of a State." Once the expulsion order had been served on her, the applicant was accordingly no longer lawfully in Polynesia. In the alternative, if Article 2 (P4-2) was regarded as being applicable, the Government maintained that at all events there had been no breach of the right to liberty of movement. Mrs Piermont was travelling neither to nor from the European Parliament’s place of meeting, so that she could not rely on the immunities attaching to her status as a member of that parliament (see paragraph 35 above). As for Community law, it did not guarantee any right to liberty of movement in the OTs for workers (assuming that the applicant fell within that category) who were nationals of Community States (see paragraphs 33-34 above). Lastly, the interference was justified by the local authorities’ legitimate concern to maintain public order and safety in Tahiti. 43.    The Commission, having regard to the special legal status of Polynesia and the fact that the territory had to be treated as distinct from metropolitan France, took the view that the applicant, once expelled from Polynesia, was no longer there lawfully and consequently could no longer claim to enjoy the right to liberty of movement. 44.    The Court notes that the expulsion order of 2 March 1986 was served on Mrs Piermont next day when she had already taken her seat in the aircraft (see paragraph 13 above). The applicant, who was not travelling on business for the European Parliament, had been able to move around Polynesia as she wished from 24 February to 3 March 1986 and during that period had suffered no interference with the exercise of her right to liberty of movement within the meaning of Article 2 of Protocol No. 4 (P4-2). It also points out that when depositing their instrument of ratification, the French Government had declared that Protocol No. 4 (P4) would apply to "the whole territory of the Republic, having due regard, where the overseas territories [were] concerned, to local requirements, as mentioned in Article 63 (art. 63) of the Convention" (see paragraph 28 above). Article 5 para. 4 of the Protocol (P4-5-4) (see paragraph 42 above) requires that Polynesia should be regarded as a separate territory for the purposes of the references in Article 2 (P4-2) to the territory of a State. At all events, the Aliens (Conditions of Entry and Residence) Ordinance 1945 had not been promulgated there (see paragraph 29 above). As a result, once the expulsion order had been served, the applicant was no longer lawfully on Polynesian territory and in those circumstances did not suffer any interference with the exercise of her right to liberty of movement, as secured by the provision in question, at that point either. 45.    In conclusion, there has been no breach of Article 2 of Protocol No. 4 (P4-2). B. The measure taken in New Caledonia 46.    Mrs Piermont submitted that, having entered New Caledonia lawfully, she should have been able to move there freely. An expulsion measure had been taken against her that had incorrectly been described as an exclusion (interdiction d’entrée) and had been quashed by the Nouméa Administrative Court. That it was in reality an expulsion was beyond doubt, since she had gone through immigration control without incident, as was duly proved by the stamping of her diplomatic passport. The impugned measure, she argued, had not been in accordance with law since the law made no mention of the possibility of excluding an alien from the territory. Nor was it justified, as her participation in a peaceful anti-nuclear demonstration in French Polynesia had not been such as to warrant her expulsion from New Caledonia, where France was not conducting any atomic experiments. The same was true of the pro-independence beliefs that she had expressed in Polynesia. As to the demonstrators opposed to her staying in Nouméa, it was the duty of the police to disperse them. 47.    The Government maintained that Article 2 of Protocol No. 4 (P4-2) did not apply to the case. In making the order, described by the Conseil d’Etat as a decision "excluding Mrs Piermont from the territory of New Caledonia", the High Commissioner had clearly meant to prohibit her from entering the territory and not to expel her from it. The stamping of her passport by the airport and border police was merely an administrative formality recording that the applicant had arrived at the frontier and that it had been checked that her papers were in order. This check did not preclude the High Commissioner from exercising the special powers he held in virtue of the territory’s legal status or the ordinary police powers, inherent in his office, for keeping public order. The applicant had accordingly never been legally authorised by the administrative authorities to enter the territory. Even supposing that she had been there lawfully, the considerations of public order which had warranted restrictions on her liberty of movement in Polynesia had also, the Government submitted, justified the ones imposed in New Caledonia. 48.    The Commission accepted the Government’s main argument in substance. 49.    In the instant case the Court considers that the applicant’s argument that the mere fact of going through immigration control regularises a person’s position in a territory is too formalistic. At an airport such as Nouméa’s a passenger remains liable to checks for as long as he remains within the perimeter. In this instance Mrs Piermont was stopped just after her passport had been stamped and the impugned order was served on her before she had left the airport, since she was still held in an office under police guard. The order made by the High Commissioner of the Republic is headed "Order prohibiting an alien from entering the territory" and Article 1 of it embodies that prohibition. The Conseil d’Etat, in its decision of 12 May 1989, did not question the nature of the order. That being so, the applicant was never lawfully within the territory, a requirement if Article 2 of Protocol No. 4 (P4-2) is to apply. There has therefore been no breach of that provision (P4-2). II.    ALLEGED VIOLATIONS OF ARTICLE 10 (art. 10) OF THE CONVENTION 50.    The applicant alleged that the administrative measures taken against her also infringed her right to freedom of expression. She relied on Article 10 (art. 10) of the Convention, which provides: "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article (art. 10) shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." A. The measure taken in French Polynesia 1. Whether there was an interference 51.    In Mrs Piermont’s submission, the expulsion measure coupled with the ban on re-entering French Polynesia was intended to censor her political opinions and the expression of them on Polynesian soil - this notwithstanding her position as a member of the European Parliament, which entitled her to take an interest in the territory. It therefore amounted to an "interference by public authority" with the exercise of her right to freedom of expression. 52.    The Government admitted that there had been an interference but characterised it as minimal. 53.    Like the Commission, the Court considers that there was indeed an interference. 2. Whether the interference was justified 54.    The Government maintained that the interference in question had not breached Article 10 (art. 10) of the Convention, for three reasons: it was in accordance with "local requirements" within the meaning of Article 63 (art. 63)