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 29 July 1985 by S.U.
and S.S. against the Federal Republic of Germany and registered on 29
October 1985 under file No. 11825/85;
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 facts of the case, as they have been submitted by the applicants,
may be summarised as follows:
The applicants, Tamils, are citizens of Sri Lanka presently living at
Neuss. The first applicant, born in 1947, is a public health officer
by profession. The second applicant, born in 1949, is a glass
technician. Before the Commission, they are represented by
Dr. U. Busch, a lawyer practising at Ratingen.
I.
The applicants entered the Federal Republic of Germany in 1979 and
1980, respectively. Their first requests to be admitted as political
refugees and granted asylum remained unsuccessful. After riots in
Sri Lanka in summer 1983 the applicants renewed their requests.
Pending the respective proceedings before the German authorities, the
Neuss Aliens' Office (Ausländeramt) issued provisional permissions to
stay (Duldungen) which were limited to the Neuss City District in
accordance with S. 17 para. 1 and S. 7 para. 1 of the German
Aliens' Act (Ausländergesetz).
S. 17 para. 1 states:
"The deportation of an alien may be temporarily suspended (provisional
permission to stay). The provisions of S. 7 paras. 1, 3 and 4 shall
apply mutatis mutandis. The provisional permission to stay has to be
renounced as soon as the reasons hindering the deportation are
removed."
S. 7 para. 1 provides, inter alia, that the residence permit of an
alien may be locally limited.
II.
On 26 July 1984 the Neuss District Court (Amtsgericht) fined the first
applicant for violation of the Act on Asylum Proceedings
(Asylverfahrensgesetz). The Court found that the first applicant had
travelled to Belgium in January 1984 and, thereby, violated his
obligation to stay within the Neuss City District according to his
limited permission to stay. The first applicant's appeal was
dismissed by the Düsseldorf Court of Appeal (Oberlandesgericht) on
8 March 1985. However, the Court corrected the previous instance's
findings as to the provisions applicable in the instant case and found
that the first applicant had violated his duty to stay within the
Neuss City District under the applicable provisions of the
Aliens' Act. On 7 May 1985 the Federal Constitutional Court
(Bundesverfassungs- gericht) rejected the first applicant's
constitutional complaint as offering no prospect of success.
III.
Meanwhile, on 18 October 1984 the Düsseldorf Administrative Court
(Verwaltungsgericht) dismissed the applicants' requests for an
injunction that they be allowed to leave the Neuss City District at
any time. The Court found that the applicants had not demonstrated
the extent to which they were entitled to be granted a provisional
permission to stay without any local limitations. It considered in
particular that the local limitations were imposed in accordance with
S. 17 para. 1 and S. 7 para. 1 of the Aliens' Act. Undue hardships
could be avoided by means of temporary permits to leave the district.
The applicants' respective appeals were dismissed by the North-Rhine
Westphalia Administrative Court of Appeal (Oberverwal- tungsgericht)
on 20 December 1984.
On 7 May 1985 the Federal Constitutional Court rejected the
applicants' constitutional complaints as offering no prospect of
success.
COMPLAINTS
1. The applicants complain under Article 2 of Protocol No. 4
(P4-2) that their provisional permissions to stay are limited to a
certain city district and thus violate their freedom of movement.
They submit in particular that these limitations are unreasonable in
view of the length of the asylum proceedings.
2. The applicants also invoke Articles 8, 11 (art. 8),
(art. 11), and 14 (art. 14) of the Convention in respect of their
complaint concerning the restriction of their freedom of movement.
They allege that they are no longer able to keep contact with family
members and friends.
THE LAW
1. The applicants complain that their provisional permissions to
stay are limited to the Neuss City District and thus violate their
freedom of movement as guaranteed by Article 2 of Protocol No. 4
(P4-2) which 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 has first considered whether or not Article 2 para. 1
of Protocol No. 4 (P4-2-1) applies in the circumstances of the present
case.
The Commission notes that, in accordance with S. 17 para. 1 and S. 7
para. 1 of the German Aliens' Act, the applicants were only
provisionally permitted to stay in the Neuss City District pending the
proceedings concerning their renewed requests for asylum.
The Commission observes that Article 2 para. 1 of Protocol No. 4
(P4-2) 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 applicants' provisional admission to the
territory of the Federal Republic of Germany is subject to the
condition that it extends only to the Neuss City District. Their
"lawful" stay within the territory is, therefore, geographically
limited. Article 2 of Protocol No. 4 (P4-2) does not extend that
right.
Consequently, the applicants' complaint that they are 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 applicants have also invoked Articles 8, 11 (art. 8),
(art. 11) and 14 (art. 14) of the Convention in respect of their
complaint concerning the restriction of their freedom of movement.
However, the Commission notes that the applicants have not
demonstrated that the local limitation of their provisional
permissions to stay in fact restricts contacts with family members or
friends. The Commission finds that there is no appearance of a
violation of Articles 8, 11, or 14 (art. 8, 11, 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)