Free Movement

Movement

The fourth and seventh Protocol to the European Convention on Human Rights deal with freedom of movement and the right to choose a residence in the broadest sense. Article 3 of the Protocol prohibits the deportation of nationals and confirms the right of nationals to enter their own country. Article 4 prohibits the collective expulsion of non-nationals. An alien may not be deported without due process of law. The rights are based on the Universal Declaration of Human Rights.

Protocol 4, not been ratified by all states and is controversial, given its impact on immigration policy.  States may declare separate territories to be treated separately when ratifying the Protocol. Accordingly, when a state extends the Protocol to dependent territories, it may (choose only to) guarantee freedom of movement within those territories without guaranteeing freedom of movement from one territory to the other.

Nationals

Persons who have a common nationality from a connection with one territory do not necessarily have the right to enter or immunity from deportation from another territory. This would apply where each territory has its own laws regarding admission and expulsion such as in the case of UK overseas territories, notwithstanding the commonality of nationality.

Article 2 of Protocol 4 provides 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. Everyone shall be free to leave any country, including his own.

No restriction shall be placed on the exercise of these rights other than such as or in accordance with law and as are necessary in a democratic society, in the interest of national security or public safety for the maintenance of “ordre public”  or the prevention of crime or the prevention, protection of health or morals or for the protection of rights and their rights and freedom of others.

The above rights above may also be subject in particular areas to restrictions imposed in accordance with law and justified by the public interest in a democratic society.

Non-Nationals

Everyone lawfully within a territory includes the state’s nationals. Others may be lawfully present, provided that they comply with their conditions of entry. This may include limitations on the duration of their rights. Arguments have been made that such persons may not be subject to restrictions on their freedom of movement or freedom to choose a place of residence, notwithstanding the above broader conditions.

The position of asylum seekers is limited depending on the decision on their status. They enjoy such rights under a provisional authorisation, and their presence in the territory is subject to compliance with those terms. This may require him to reside in a particular place or may restrict his freedom of movement through the territory.

The maintenance of “ordre public” is broader than the concept of public order in English. It includes, for example, persons in lawful detention and person the subject of extradition.

In Baumann, the court reiterated that the right of freedom of movement, as guaranteed by paragraphs 1 and 2 of Article 2, Protocol 4,  is intended to secure to any person a right of liberty of movement within a territory and to leave that territory. It implies the right to leave for such country of the person’s choice to which he may be admitted.

Restrictions

It follows that freedom of movement prohibits any measure liable to infringe that right or restrict the exercise thereof which does not satisfy the requirement of a measure  which can be considered necessary in a democratic society in the pursuit of the legitimate aims referred to in the Article.

Any measure restricting the rights

• must be lawful,
• pursue one of the legitimate aims referred to . . .
• and strike a fair balance between the public’s interest and individual rights.

It was held that a restriction on residence in the course of a criminal investigation was a breach of the provision but was subject in principle to being justified as necessary in a democratic order for the prevention of crime and maintenance of the ordre public, provided the measure is proportionate to a legitimate aim.

Similarly, provisions as to house arrest in the context of the investigation of serious crime was capable of being justified, provided it is proportionate. However, it was held in the case of Raimondo v. Italy that an unnecessary delay before notification of revocation of this provision was not necessary.

In Labita v. Italy, person who had been acquitted of mafia-type offences continued to be placed under special supervision on the alleged basis of possible future offences. The court considered “that it is the judgement for preventative measures including special supervision to be taken against persons suspected of being members of the mafia even prior to conviction as they are intended to prevent crimes being committed.

Preventative Measures

Furthermore, an acquittal does not necessarily deprive such measures of all foundation as concrete evidence gathered at trial, although insufficient to secure a conviction, may nonetheless justify reasonable fears that the person concerned and may in the future commit criminal offences.” In this particular case, the court concluded there was insufficient basis, and they were accordingly in breach.

In a number of cases involving Bulgaria, the proportionality of travel restriction were considered in relation to convicted prisoners subject to rehabilitation orders after leaving prison. It was accepted that they may be necessary in principle to maintain order. However, where they are automatically applied and the individual circumstances were not considered and were not reviewable, it was disproportionate.

Passport Retention

In Baumann v. France, a German national’s passport was seized by French police from a hotel room and was retained for a considerable time. The individual was later arrested in Germany,  tried and convicted and imprisoned. Although the passport was not necessary for free movement within Europe and did not, in fact  interfere with his free movement, the court considered that there had been an interference with free movement. There was no justification for continuing to hold the passport, although justified at first.

In Napijalo v. Croatia, border customs authorities confiscated a passport. The applicant had allegedly failed to clear goods subject to customs, he could not pay an “on the spot” fine and his passport was taken for three years as security for the fine. It was held that this was an unjustified violation of his rights. It must be in accordance with the law, be necessary in a democratic society and be necessary for securing a legitimate aim. No proceedings were initiated pursuant to the customs infringements.

Civil Detention

In Riener v. Bulgaria, it was held that a restriction on leaving Bulgaria as a result of tax debt was disproportionate as there was a lengthy restriction, it applied automatically, was not systematically reviewed and there was little evidence of attempts to recover the tax. The measure could in principle, be justified provided it served the aim of recovery of tax, but it could not be a punishment in effect.

Chlyustov v. Russia involved a travel ban for non-payment of a debt. There was a violation as it was disproportionate by reason of the absence of a review during its duration.

In Stamose v. Bulgaria, a measure applying penalties for breach of other states\’ immigration laws which involved a two-year travel ban. It could in principle, be justified as supporting immigration confidence of other states in immigration services. However, in this case, it was found disproportionate as it was blanket in nature.

In Luordo v. Italy, the restriction on the movement of a bankrupt person beyond the period necessary to secure his assets was a violation of the guarantee.

Pre-Trial

In Fedorov and Fedorova, the case involved an alleged fraud which had taken many years to go through the criminal justice system, during which the applicant\’s freedom of movement was restricted.

They were given freedom and special permission to travel on two occasions. The court held the actions of the Russian Government not to be disproportionate. It may be disproportionate if the travel ban is not reassessed from time to time.

In Haibeyli v Azerbaijan, the court indicated that the restrictions on movement need to be considered in context and not just in terms of duration. The comparative duration of restrictions cannot be taken as a sole base for determining whether a fair balance has been struck in the general interest in the proper conduct of criminal proceedings and the interest in personal freedom of movement.

The issue must be assessed in all the special features of the case. A restriction may be justified in a given case only if there are clear indications of a genuine public interest which outweighs the individual’s right to freedom of movement.

National Security Justification

A proportionate restriction on leaving the country may be justified for national security reasons. In Bartik v. Russia, a five-year travel ban on a person travelling abroad following research and development work in the rocket and space area, there was held to a violation in the circumstances.

The applicant sought to travel abroad to visit his ill father. He had surrendered classified material and the visit was for private purposes. The review available did not look at the merits of the case and it was not shown how the restrictions served national security. In Soltysyak v. Russia, a travel ban on an ex-soldier who worked on rocket launch tests was held to be disproportionate.

Civil Restrictions

In Landvreugd v. Netherlands, a restriction applied by civil authorities on a person’s presence in a particular area as part of anti-drug policy measures was held in the circumstances not to violate rights. The fact that orders of this type were long-standing was not a relevant consideration in itself.

Unjustified monitoring of persons and confinement to a part of the territory may be a violation. In Denizci v. Cyprus, the confinement of a person to a particular area without a lawful basis was neither provided by law nor necessary.

In Tatishvili v. Russia, a requirement for registration of residence changes every time a person changes residence or visits family or friends away from home constitutes an interference with the right of movement.

In Timishev v. Russia, a refusal of entry of a Chechen to another part of Russia requiring him to make a 300 km detour was argued to be part of a policy of refusing entry to Chechens by car. This was denied. The court held the restriction on movement was not in accordance with the law and that there was a violation. It was also held to be ethnically based and discriminatory.

Expulsions

Article 3 provides that no one shall be expelled by means of either an individual or a collective measure from the territory of a state of which he is a national. There are no limitations in the Article itself. Certain provisions, such as extradition, are presumed not to be subject to this principle, although, under the European Convention on Extradition, contracting parties may refuse the extradition of nationals.

An expulsion is a requirement to leave the state permanently without the possibility of returning. In X. v. Germany, it was held that a refusal to grant a person entitled to nationality, or citizenship may breach the provision if the purpose is to expel the person.

There must, however, be a causal connection between the expulsion and the determination of nationality, such as to lead to a presumption that the object was expulsion. This was not the case in particular circumstances.

The Protocol provides that the collective expulsion of aliens is prohibited. The provision is not applicable to individual deportations/expulsions. There may be collective expulsions where a group of aliens or non-nationals are expelled together without individual treatment.

In Conka v. Belgium the court  “court reiterates its caselaw whereby collective expulsions . . . is to be understood as any measure compelling aliens as a group to leave a country except where such measure is taken on the basis of a reasonable and objective examination of the particular case of each alien of that group. This does not mean that where the latter condition is satisfied, that there cannot necessarily be a breach of the provision.

Deportation

In this case, a group of Slovaks of Roma origin, a family of four who had claimed asylum were deported on identical terms without completion of the asylum procedure. Although there was some individual consideration of circumstances, arrangements had been made for the collective repatriation of a number of Slovak nationals.

Others of the same nationality were required to attend a police station at the same time and orders in similar terms were made against them. In this case, the expulsions were found to be collective.

In M v. Cyprus. The applicant was detained with 75 other Syrian asylum seekers. The Syrian nationals were removed in groups under deportation orders in similar terms. The court did not find a violation. The procedures had been completed in respect of those subject to deportation orders with an individual assessment of the circumstances.

In Hirsi Jaama and Others v. Italy, Italian authorities intercepted Eritrean and Somali asylum seekers at sea heading from Libya. They were taken aboard Italian naval ships which took returned them to Libya. The court held that they were under the jurisdiction of Italy and accordingly, the Convention applied in principle.

Expulsion Procedure

Article 1 of the Protocol 7 provides an alien lawfully resident in the territory of a state shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed.

• to submit reasons against his expulsion.
• to have his case reviewed and represented for those purposes before the competent authority or a person designated by that authority.

The deportation must be in accordance with law. If it is in accordance with law, it must be justified in accordance with the criteria set out.

An alien may be expelled before the exercise of his rights above when such expulsion is necessary in the public interest or is grounded in reasons of national security.

The applicant must be lawfully resident to come within this provision. This would appear to require more than temporary residence. There is some support for a broader view that there may be lawful presence where a person is complying with the terms of his entry.

In Lupsa v Romania, a Serbian national was summarily deported after living for 14 years in Romania running a business. In these particular circumstances, it was held there was insufficient protection against arbitrary actions.

The state claimed that he was an undesirable person engaged in activities endangering national security. He had not been given the slightest details of a national security basis on which the claim was purported to be made. There was no opportunity for a lawyer to study his case, or otherwise consider a proper review of the decision.