CEDH · CASELAW;CLIN;ENG — 8 juillet 2008

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 110 July 2008 Tolgyesi v. Germany - 554/03 Decision 8.7.2008 [Section V] Article 7 Article 7-1 Nullum crimen sine lege Employee working for a   company based in the Netherlands convicted for lacking a residence permit in Germany: inadmissible   In 1999 the applicant, a Hungarian national and therefore, at the time of the events in question, a national of a State outside the European Community, commenced employment with a Netherlands company as a lorry driver. He was in possession of an employment certificate issued in the Netherlands. He did not reside in the Netherlands, worked exclusively outside the Netherlands and had not yet   been issued with a Netherlands work permit. In 2001 he was twice subjected to checks by the German police. After each check, criminal proceedings were instituted against him under the German Aliens Act. Subsequently, a district court convicted him of remaining in the country illegally and sentenced him to a fine. A regional court quashed his conviction as regards the first offence on the ground that he could not have known that his stay was illegal given that he had been subjected to checks before without any consequences. However, it upheld his conviction as regards the second offence   but reduced the fine. The applicant appealed unsuccessfully. The German courts found that   at the relevant time he had not   possessed a work permit issued by the State where the company employing him was established, that his employment certificate could not be equated with such a permit and that he was not exempt from   possessing such a permit   on the grounds that he   had been transporting goods exclusively outside the Netherlands. The exception to the requirement to hold a residence permit, provided for in   an Order implementing the German Aliens Act, was clearly aimed at benefiting only those employees whose   legal residence and employment were actually in the Community Member State where the company was established and not those who, like the applicant, worked exclusively outside that Member State. For the same reasons, the judgment of the European Court of Justice in Vander Elst relied on by the applicant did not have any bearing on his case. Inadmissible : The domestic courts’ interpretation of the relevant legal provision was based on its wording, aim and genesis and was therefore neither unforeseeable nor arbitrary. It was at least questionable whether the applicant could rely on the employment certificate   as constituting a sufficient basis for the application of the exception provided for in the Order implementing the Aliens Act. In any event, after the first check by the police which had resulted in the institution of criminal proceedings, he had been made aware that the German authorities did not recognise   that certificate. Therefore, he could reasonably have foreseen his criminal prosecution and conviction – at least with regard to the second conviction, which was the only conviction at issue in his case: manifestly ill-founded .   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes