EHRM, 08-07-2008, nr. 554/03

The applicant, Mr Antal Tolgyesi, is a Hungarian national who was born in Hungary and lives in Esztergom. He was represented before the Court by Mr C. Peters, a lawyer practising in Bocholt.

The applicant complained under Article 7 § 1 of the Convention that he should not have been convicted for remaining in the country illegally, as due to his Netherlands employment certificate he was exempted from the requirement to obtain a residence permit. In this respect he relied on section 12, subsection 2(2)(a) of the Order implementing the Aliens Act and the above-mentioned judgment of the ECJ.

The applicant complained under Article 7 § 1 of the Convention that he should not have been convicted. Article 7 § 1 of the Convention, in so far as relevant, provides:

The Court reiterates that Article 7 of the Convention embodies, inter alia, the principle that only the law can define a crime and prescribe a penalty (nullum crimen nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy. From these principles it follows that an offence must be clearly defined in the law. This requirement is satisfied where an individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable (see Streletz, Kessler and Krenz v. Germany[GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001-II).

The Court further observes that it is not its task to rule on the applicant's individual responsibility, that being primarily a matter for the assessment of the domestic courts, but to consider, from the standpoint of Article 7 § 1 of the Convention, whether the applicant's acts, at the time when they were committed, constituted an offence defined with sufficient accessibility and foreseeability (see Streletz, Kessler and Krenz, cited above, § 51).

In the present case, the applicant's conviction was based on the national courts' findings that the exception to the requirement to hold a residence permit provided for in section 12, subsection 2(2)(a) of the

Order implementing the Aliens Act did not apply as, at the time of the events in question, the applicant had not had a work permit, as explicitly required by that provision, and that his employment certificate could not be equated with a formal work permit. They also pointed out that he had been transporting goods exclusively outside the Netherlands and that on this ground also section 12, subsection 2(2)(a) of the Order implementing the Aliens Act could not be applied as it implicitly required a direct connection with the Member State where the company was established. Moreover, the Bavarian Court of Appeal established that the ECJ judgment in the Vander Elst case did not have any bearing on the applicant's case as it presupposed the holding of a work permit in the Community Member State where the employer's undertaking was registered. Finally, the Traunstein Regional Court and the Bavarian Court of Appeal held that the applicant, when he had been checked the second time (which alone is at issue here as it is the only case in which he had been finally convicted), could have known that his stay was illegal.

The question is whether the applicant, if necessary with appropriate advice, could have reasonably foreseen this interpretation and application of the law and hence his conviction.

In this connection it must be noted first that the courts' interpretation of section 12, subsection 2(2)(a) of the Order implementing the Aliens Act and the denial of its application in the applicant's case were based on the wording of that provision and derived from its aim and genesis and therefore neither unforeseeable nor arbitrary. Furthermore, the applicant knew that, at the time of the events in question, he was in possession only of an employment certificate stating that his employer covered the transport risks and expenses and that the applicant was legally employed. It was only afterwards that he obtained a formal work permit also allowing him to load and unload goods in the Netherlands. It is hence at least questionable (in view also of the information circulated by the government) whether he could rely on the employment certificate as constituting a sufficient basis for the application of the exception provided for in section 12, subsection 2(2)(a) of the Order implementing the Aliens Act. In any event, at least after the first check by the police which resulted in the institution of criminal proceedings, he also knew that the German authorities did not recognise the certificate. Finally, he could not rely either on the ECJ judgment in Vander Elst, which was based expressly on the fact that the applicant in the case had been issued with a work permit in the country where the company was established.

It follows that the applicant could have reasonably foreseen his criminal prosecution and conviction — at least with regard to the second conviction, which, after the Traunstein Regional Court had quashed his first conviction, is alone at issue here.

In view of these considerations the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

Declares the application inadmissible.

Stephen Phillips

Deputy Registrar

Peer Lorenzen

President