Information Note on the Court’s case-law No. 100
August-September 2007
Yildirim v. Romania - 21186/02
Decision 20.9.2007 [Section III]
Article 1 of Protocol No. 7
Article 1 para. 1 of Protocol No. 7
Lawfully resident
Alleged inability to put case against an exclusion order imposed after refusal of leave to enter the territory: article 1 of Protocol No. 7 inapplicable
The applicant, a Turkish citizen, took up residence by himself in Romania while his family was living in Germany. He was granted a one-year residence permit in order to carry on commercial activities, but did not request its renewal. He set up a limited‑liability trading company in the country, with its registered office in the flat he had bought. The applicant said that on his return from Hungary one night, he had been granted free entry into Romania, an entry visa having been stamped in his passport. The following day, however, officers of the border police went to his flat and accompanied him to the Hungarian border. After questioning him, they cancelled his visa and requested him to leave Romania without giving him any reasons. According to the Government, the applicant had turned up at the border post the same day. The police noted that a restriction had been imposed on his entry into Romania and cancelled the visa in his passport. The applicant did not challenge the measure. From that date on, he was refused leave to enter Romania. The Romanian Interior Ministry declared him an undesirable alien and imposed a five-year exclusion order on him. According to the Ministry, the measure in question amounted to a refusal of leave to enter the country and the law did not require any official documents to be drawn up recording such a refusal. The ministerial order was overturned by the court of appeal. The Ministry lodged an appeal which was upheld by the Supreme Court of Justice. The latter found that the State could refuse the applicant leave to enter the country in the interests of national security. The applicant sold his flat and his company was dissolved.
Inadmissible under Article 1 of Protocol No. 7 – Since the applicant had not been resident in Romania, he had been refused leave to enter the country rather than being deported. He had previously held a valid residence permit which gave him the right to reside in Romania; however, when it expired, he had not taken any steps to have it renewed. Foreign nationals whose visa or residence permit had expired could not, in principle, be regarded as lawfully resident in the country. The short-term entry visas which the applicant had been granted did not allow him to remain in Romania for longer than two months. The word ‘resident’ was intended to exclude application of the Article in question to foreign nationals who had not yet undergone immigration controls or who had been given leave to enter a country in transit or for a short period. At the time the Romanian authorities had imposed the exclusion order on the applicant, he had not been lawfully resident in the country, given that he did not possess a valid residence permit. Consequently, Article 1 of Protocol No. 7 did not apply in the instant case: incompatible ratione materiae.
Inadmissible under Article 8 – The applicant had not had a valid residence permit or a right of residence. In addition, he had not demonstrated the existence of a genuine and effective private life in Romania prior to the refusal to grant him leave to enter. His family had been living in Germany, where he had visited them frequently and where he now lived. The only ties the applicant claimed to have with Romania were of a pecuniary nature, namely the fact that he had set up a company there and bought a flat which he had since sold. These factors alone were not sufficient to enable him to obtain a permanent right of residence and to rely on the guarantees provided by Article 8: manifestly ill-founded.
Inadmissible under Article 2 of Protocol No. 4 – The provision in question was designed solely to secure to persons lawfully resident in a country, whether or not they were nationals, the right to move freely within the country and to choose freely their residence there. Hence, it did not guarantee, as such, the right for a foreign national to enter or reside in a particular country and did not apply to foreign nationals who had no residence permit: incompatible ratione materiae.
Inadmissible under Article 1 of Protocol No. 1 – As to the applicant’s inability to make use of his flat, he had sold it before the exclusion order was imposed on him and before he lodged this complaint with the Court. It followed that he could not claim to be a victim: manifestly ill-founded.
With regard to the applicant’s inability to run his company, the latter was a limited‑liability company. The instruments creating it showed that a third party had been appointed as manager with full powers. The company had continued to operate even after the measure complained of and had been dissolved on the ground that it did not meet the procedural requirements laid down by the law. In any event, Article 1 of Protocol No. 1 did not confer on foreign nationals who possessed property in another country the right to reside there permanently in order to make use of their property. Furthermore, the measure in question had not affected the applicant’s rights over his shares in the company or any profits it might have made: manifestly ill-founded.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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