1. Procedure to date
1. On 20 November 2009, the Parliamentary
Assembly decided to refer to the Committee on Legal Affairs and
Human Rights, for report, the motion for a resolution on “The inadmissibility
of restrictions on freedom of movement as punishment for political
positions” (
Doc. 11903). At its meeting of 26 January 2010, the committee appointed
me as rapporteur.
2. On 4 October 2011, in order to gain an overview of some aspects
of the legal issues of the topic, the committee held an exchange
of views with Ms Nuala Mole, founder and Director of the AIRE
Centre (London). Ms Mole explained
to the committee the legal framework of the Schengen area and the
European Union rules on free movement of persons. The rapporteur
also received a written contribution by Professor Matthew Happold
of the University of Luxembourg on “Article 96 alerts ('unwanted
aliens') and the Schengen Information System”, which was very helpful
for the preparation of this report.
2. The
issue at stake
3. Questions of freedom of movement
are not new to the Assembly or to our committee. On the eve of the last
wave of European Union enlargement, in January 2004, the Assembly
adopted
Recommendation
1648 (2004) on the consequences of European Union enlargement for
freedom of movement between Council of Europe member States.
The corresponding report of
the Committee on Legal Affairs and Human Rights contains an overview
of the work of the Assembly concerning free movement of persons
prior to 2004.
The specific issue of restricting
movement as punishment for the expression of political or ideological
views, however, has not previously been dealt with by the Assembly.
4. According to the motion, some Council of Europe member States
misuse their right to ban nationals of other States from entering
their respective territory by “blacklisting” these persons, as “punishment”
for the expression of political opinions. It is claimed that in,
some cases, those persons had never visited the States “blacklisting”
them, which is why they could not have broken their laws. It was
only in their own countries that they actively participated in political
actions criticising the policies of other States’ authorities. According
to the motion, their freedom of movement was therefore restricted
as a punishment for political criticism, which contradicts the values
advocated by the Council of Europe. When the State banning those
persons was Party to the Schengen Agreement, the bans were automatically
extended to all other Schengen Agreement member States. The motion
contends that all Council of Europe member States should protect
the right of citizens to freedom of movement as foreseen in the
European Agreement on Regulations governing the Movement of Persons
between Member States of the Council of Europe (ETS No. 25).
5. While restrictions are usually imposed for reasons which are
less innocuous than holding or expressing certain political views,
there are cases in which movement has been restricted for this very
reason. A few examples will illustrate such practice.
6. In the spring of 2007, Estonia decided to remove from the
centre of Tallinn a Soviet-era bronze statue depicting a heroic
soldier. This triggered protests by ethnic Russians in Estonia,
including members of the pro-Kremlin group “Nashi”. The protests
resulted in violent clashes in Estonia, during which more than 40
people were injured and 300 arrested.
Estonia then imposed
travel bans on some “Nashi” members from Russia for reasons of national
security.
When
Estonia acceded to the Schengen Agreement in December 2007, the travel
bans were transferred to the Schengen databases, which henceforth
prevented those activists from travelling to any Schengen member
State. In December 2008, 488 Russian citizens remained on this “blacklist”.
7. In October, 2007, a German expert was refused entry into Russia,
allegedly for security reasons, even though he was in possession
of a visa.
The issue was subsequently resolved
and the analyst was allowed entry a month later.
His freedom of movement had nevertheless
been temporarily restricted.
8. Another example is that of a Greenpeace activist from New
Zealand against whom France issued an alert in the Schengen Information
System on the ground that she represented a threat to national security because
she had demonstrated in the South Pacific against French nuclear
testing.
And
Mr and Mrs Moon, the leaders of the “Unification Church”, were the
subjects of alerts issued by the German authorities which considered
that their visit to Germany would constitute a danger to German
youth and thus pose a threat to public order and security.
3. Main
legal and human rights concerns
9. The legal assessment of such
actions depends on the geographic context in which they take place. Different
sets of rules apply in different situations. Depending on these
situations, European Union rules or conventions of the Council of
Europe may apply and interact with classical norms of public international
law.
10. Under the general rules of public international law, notwithstanding
norms on asylum, States can determine the terms and conditions under
which non-nationals (“aliens”) are admitted to their territory.
As a consequence, general public international law does not entail
a right to enter and to remain in a State of which the individual
is not a national.
11. In public international law, the term freedom of movement
refers to movements of individuals within a State and from one State
to another. This report deals with the latter aspect.
12. This report will not attempt to establish a difference between
States not issuing visas and States refusing entry by other means.
Nor will it be for this report to
deal with the specific issue of United Nations Security Council
and European Union anti-terrorism blacklists. Human rights concerns
raised by “targeted sanctions” were the subject of a separate report
by our former colleague Mr Dick Marty.
3.1. The
framework of the Council of Europe
13. The Council of Europe has,
since the early years of its existence, been active in the domain
of free movement of persons. In this respect, I recall in particular
the 1955 European Convention on Establishment
(ETS No. 19) and the 1957 European
Agreement on Regulations governing the Movement of Persons between Member
States of the Council of Europe (ETS No. 25), along with the European
Convention on the Legal Status of Migrant Workers (ETS No. 93) and
the European Outline Convention on Transfrontier Co-operation between
Territorial Communities or Authorities (ETS No. 106).
14. In particular, the European Agreement on Regulations governing
the Movement of Persons between Member States of the Council of
Europe, referred to in the motion, which is intended to facilitate
personal travel, was signed in Paris on 13 December 1957 and came
into force on 1 January 1958. To this day, 16 member States of the
Council of Europe have ratified the agreement.
The
aim of the agreement was to enable the nationals of States parties
to enter or leave the territory of another party by all frontiers
on presentation of one of the documents listed in the appendix to
the agreement. The facilities accorded applied only to visits of
not more than three months' duration. The implementation of the
agreement was monitored by three successive committees of experts
and subsequently abandoned in 1991, due to difficulties with regard
to the functioning of the agreement.
We can therefore safely
assume that the agreement is
de facto no
longer applicable.
15. Article 2 of Protocol No. 4 to the European Convention on
Human Rights (ETS No. 46), entitled “Freedom of movement”, provides
for a right to freely move within a country once lawfully there
and for the right to leave any country. It does not, however, deal
with the right of entry into a country, which is at issue in this report.
Besides, this protocol has not been acceded to by all member States
of the Council of Europe.
16. Otherwise, the rights enshrined in the European Convention
on Human Rights (ETS No. 5, “the Convention”) do not in themselves
give a general right to enter a specific member State of the Council
of Europe. Indeed, the European Court of Human Rights (“the Court”)
has held that decisions regarding the entry, residence and expulsion
of aliens do not fall within the scope of the “fair trial” guarantee
of Article 6.1, as they do not concern civil rights or obligations
or a criminal charge.
17. Nor, according to the Court, does the respect for private
and family life under Article 8 of the Convention guarantee, in
general, the right of an alien to enter or to reside in a particular
country.
However,
the Court has held that, in specific situations, a person could
rely on Article 8 of the Convention in order to enter and reside
in a member State for the purposes of joining their family.
This clearly indicates that
member States’ right to determine aliens’ entry into their territory
can be limited in certain circumstances.
18. So far, there seems to be no case founding a right of entry
on freedom of expression under Article 10 of the Convention.
19. That said, a denial of entry based solely on a person’s political
positions could possibly constitute an abuse of the right to determine
entry and discrimination within the meaning of Article 14 of the
Convention.
3.2. The
EU legal framework
3.2.1. Intra-EU
situations
20. Insofar as actions referred
to in the motion take place within the European Union, that is to
say that an EU member State refuses entry into its territory to
the national of another member State or of a third-State national
falling under EU law, the EU rules on free movement apply. Here,
Article 3(2) of the Treaty on European Union (TEU) provides for
an area of freedom, security and justice without internal frontiers,
in which the free movement of persons is ensured in conjunction
with appropriate measures with respect to external border controls,
asylum, immigration and the prevention and combating of crime. Furthermore,
Article 26(2) of the Treaty on the Functioning of the European Union
(TFEU) states that the internal market comprises an area without
internal frontiers in which the free movement of goods, persons,
services and capital is ensured.
21. More specifically, the Treaty on the Functioning of the European
Union provides, in its Articles 18 (non-discrimination), 20 (Union
citizenship), 45 (free movement of workers), 49 (freedom of establishment)
and 56 (freedom to provide services), for a set of legally enforceable
rules which allow Union citizens to move and reside freely within
the Union. Mainly as a result of the case law of the Court of Justice
of the European Union, these rights have been gradually decoupled
from the context of economic activity.
Directive 2004/38/EC
fleshes these issues out in more
detail.
22. Obviously, there may be exceptions to this rule of free movement
of persons. Member States can invoke grounds of public policy, public
security and public health. Such restrictions must, however, be
interpreted narrowly. They must be based exclusively on the personal
conduct of the individual concerned. They must also comply with
fundamental rights. Even previous criminal convictions are not in
themselves sufficient grounds for such measures. The Court of Justice
has thus held that the public policy reservation constitutes a derogation from
the rule of free movement, which as such shall be interpreted strictly,
and that its scope cannot be determined unilaterally by each EU
member State.
Consequently, measures taken on
grounds of public policy and public security can justify a restriction
of freedom of movement only if there is a genuine and sufficiently
serious threat affecting one of the fundamental interests of society.
European Union member States may refuse entry into their territory
only to those citizens of other EU countries (and third-country
nationals lawfully resident in other EU countries) whose presence
would, in itself, constitute a danger for public policy, public
security or public health.
23. As regards restrictions of movement that could be seen as
punishment for political positions, there is one case currently
pending before the Court of Justice of the European Union: on 8
July 2010, Hungary brought an action against the Slovak Republic.
Hungary is asking the Court of Justice to declare that the Slovak
Republic has failed in its obligations under EU law by not allowing
the Hungarian President to enter the Slovak Republic.
I shall refrain from commenting
on this specific situation given that proceedings are ongoing before the
Court. I should like to point out, however, that the European Commission,
which is entrusted with the role of impartial guardian of the treaties,
has intervened in this case in favour of the Slovak Republic.
I should also like
to underline that cases such as the one at issue, in which States
rather than the European Commission initiate infringement proceedings
against other States, are extremely rare before the Court of Justice.
This is only the fourth such case in the history of the European
Union.
24. It emerges that, as far as intra-EU situations are concerned,
member States cannot restrict movement on the sole basis of a person’s
political positions. As has been shown, the threshold under EU law
for restricting free movement is very high. Such a practice would
directly infringe primary and secondary EU law and could lead to
proceedings before the Court of Justice. It can also trigger a claim
to State liability to pay damages to those concerned. According
to established European Union Court of Justice case law, individuals
suffering loss or injury may collect damages whenever the particular
rule of EU law violated was intended to confer rights upon them,
the breach was sufficiently serious and there was a direct causal
link between the breach and the damage sustained by the individual
concerned, regardless of whether the treaties themselves or secondary law
were breached.
3.2.2. Schengen
area
25. Regarding movements of persons
between an EU member State and a third country not falling under the
jurisdiction of EU law, the so-called Schengen regime applies. This
regime does not provide for the right of a third-country national
to enter the European Union, but it sets out the technical framework
in which member States police their external borders (that is to
say borders with countries outside the Schengen area) and alert each
other in order to prevent access of unwanted persons to the Schengen
area.
3.2.2.1. The
Schengen system
26. The first Schengen Agreement
was concluded on 14 June 1985 by France,
Germany and the three Benelux States with the aim of gradually abolishing
controls at the common borders, in order to promote the free movement
of goods and persons. This initial agreement provided for the replacement
of passport controls with visual checks of vehicles, which would
be able to cross borders without stopping by travelling at reduced speed
through border posts.
27. The abolition of border controls among the countries in the
Schengen area necessarily implied the creation and protection of
a common external border. It is for this reason that, on 19 June
1990, the same States also adopted the Convention implementing the
Schengen Agreement (“the Schengen Convention”).
In view of the possible security
deficit resulting from the abolition of border controls, this convention,
which came into force on 26 March 1995 for the original signatory
countries, plus Spain and Portugal, introduced compensatory measures
with regard to asylum and co-operation between police, judicial
and customs authorities. It therefore largely consisted of measures
regarding rules on external border controls, harmonised rules for
visas, and police co-operation. It also provided for the creation
of the Schengen Information System (SIS), which allows the competent
national authorities of all participating States to access data
on individuals who are not entitled to enter the Schengen area.
This system will be examined in more detail below.
28. Although ultimately serving the EEC Treaty goal of free movement
of goods and persons, the Schengen area first developed in a purely
intergovernmental form, outside the legal framework of the European Community.
This changed when the Schengen Agreement was incorporated into the
EU legal order by the Treaty of Amsterdam,
as an aspect of the
“Area of freedom, security and justice”. Henceforth, the provisions were
split between the EU’s supranational “first pillar” and the largely
intergovernmental “third pillar”. Aspects relating to the free movement
of persons such as visa and immigration policy were placed within
the first pillar, in the chapter following the corresponding internal
market provisions, while security measures found their way into
the third pillar.
29. In addition to this, a protocol to the Treaty of Amsterdam
provided
for a legal basis to incorporate the Schengen treaties and implementing
measures (the so-called Schengen
Acquis)
into the law of the European Union.
The protocol still exists today.
The three-pillar structure was subsequently
abolished by the Treaty of Lisbon. This has had important consequences
as regards decision-making procedures and judicial review.
30. The Schengen area now encompasses 22 EU member States
and
four non-member States.
Cyprus, Ireland
and the United Kingdom remain outside, as presently do Bulgaria
and Romania, the applications of the latter two having been postponed
in September 2011.
3.2.2.2. “Blacklisting”
in the Schengen Information System
31. The motion for a resolution
refers to “blacklisting” in the context of the Schengen Agreement.
I would like to clarify this term.
32. The abolition of controls on internal borders between Schengen
States is compensated for by stricter controls on the external borders
and by the imposition of various preventive measures. In addition
to the traditional visa procedure, an electronic database, the Schengen
Information System (SIS), was established under Article 92 of the
Schengen Convention to assist border controls. This database, which
constitutes the centrepiece of the Schengen regime, contains details
of persons who have committed serious crimes, as well as those who
have been denied entry to the Schengen area before.
It is used by member States’ national authorities
to exchange data on various categories of persons and property.
Its purpose is to uphold public policy and public security, including
national security, in the territories of the contracting parties
and to apply the provisions of this convention relating to the movement
of persons in those territories, using information communicated
via this system.
33. “Schengen blacklisting” is a colloquial expression for referring
to an alert in the Schengen Information System for refusal of entry
into the Schengen area. Such alerts are known as “Article 96 alerts”,
due to the article numbering in the Schengen Convention. Alerts
in the SIS on refusal of entry for non-EU nationals are a matter
for the competent administrative authorities or courts of the Schengen
member States, using rules of procedure set down by national law.
34. Any Schengen member State may issue such alerts, which other
member States are obliged to respect.
The
grounds on which a member State may issue an alert for the purposes
of refusing entry are set out in Article 96 of the Schengen Convention.
In particular, Article 96(2) provides that decisions by the competent
national authorities may be based on a threat to public policy or
public security or to national security which the presence of an
alien may pose. The article goes on to give examples,
such
as persons convicted or suspected of (on “serious grounds”) having
committed, or considered likely (on the basis of “clear evidence”) to
commit, criminal offences. The wording of the provisions (“This
situation may arise in particular …”) indicates that the list of
examples is illustrative, not exhaustive.
The grounds for issuing alerts are
thus very broad.
35. Refusals of entry may also be entered in the SIS due to the
fact that the third-country national has been subject to earlier
measures such as deportation, refusal of entry or removal which
have not been rescinded or suspended, accompanied by a prohibition
on entry.
36. The member State that has entered the alert has full responsibility
for the continuing relevance and lawfulness of the alert and its
ultimate deletion once it no longer fulfils a lawful purpose.
37. Member States are furthermore bound by the Schengen Border
Code.
Article
5 of this regulation sets out the entry conditions for third-country
nationals, which include being in possession of a valid visa and
not being subject of an alert in the Schengen Information System
for refusal of entry. This means, in particular, that member States
are under an obligation to implement a refusal of entry which has
been entered in the SIS by another member State. Article 13 of the
Schengen Border Code sets out the conditions for refusal of entry
and the substantiated decision stating the precise reasons for the
refusal given by means of a standard form, filled in by the authority
empowered by national law to refuse entry. The completed standard
form shall be handed to the third-country national concerned, who
shall acknowledge receipt of the decision to refuse entry by means of
that form.
38. Going beyond such situations, a member State may only exceptionally
permit such a person to enter on humanitarian grounds, on grounds
of national interest, or because of international obligations.
It
is obvious, however, that, in many cases, these exceptions are likely
to be inoperative. If a person does not need a visa to travel into
the Schengen area, or has had a visa issued prior to an alert being
issued, he or she will first find out about the listing when entry
is refused at the border post, where an exception is most unlikely
to be made. The consequences may be even more serious when a person
is already in the Schengen area, resulting in his or her detention
and/or removal.
39. In practice, member States vary considerably in their use
of Article 96 alerts. According to the most recent statistics, as
of 1 January 2011, a total of 716 767 “unwanted alien” alerts were
recorded on the SIS database under Article 96.
No
breakdown by member State is provided, but it is believed that the
majority of those alerts were issued by only a small number of States.
In its 2005 report, the Schengen
Joint Supervisory Committee called for harmonising the reasons for
creating Article 96 alerts in the different member States,
and its most recent report indicates
that only limited progress has been made in this and other respects.
40. It is also clear that at least some member States interpret
their powers under Article 96 widely. Both Germany and Italy have
adopted a practice of issuing Article 96 alerts in relation to all
failed asylum seekers.
41. This situation is somewhat attenuated for third-country nationals
who are spouses of EU member State nationals. Here, the Court of
Justice of the European Union has held that they cannot be refused
entry into the territory of a Schengen State nor be refused to be
issued a visa on the sole ground that they are persons for whom
alerts have been entered into the SIS. In such a situation, EU member
States are under an obligation to verify “whether the presence of
those persons constituted a genuine, present and sufficiently serious
threat to one of the fundamental interests of society”.
In other words, placing persons
in the SIS cannot eclipse their rights as the spouses of EU nationals
under free movement rules.
42. In general, however, listing persons in the SIS system is
problematic. It is one thing for a State to deny a person a visa
and thus to prevent that person from entering its own territory.
It is quite another for that State to enter the person into the
SIS, thereby preventing him or her from entering the whole Schengen
area. This may well interfere with that person’s rights, for example
the right to respect for private life under Article 8 of the European
Convention on Human Rights by recording personal data and using
such data to prevent the person concerned from entering other countries.
Such interference must always be justified under Article 8.2 of
the Convention, which may not always be the case in view of the
broadly worded grounds for entering an SIS alert. In particular,
Schengen member States (all of which are parties to the European
Convention on Human Rights) should not be permitted to enter a person
into the SIS merely because that person holds political views which are
uncomfortable for that member State’s authorities. In my view, States
which resort to such practices contravene both Article 96 of the
Schengen Convention and Article 10 of the European Convention on
Human Rights.
3.2.2.3. Legal
challenges to “blacklisting” in the Schengen Information System
43. But matters do not end there.
Given that being listed as an “unwanted alien” in the SIS database
can have serious consequences for an individual, possibly resulting
in the denial of a visa, refusal of entry, detention and/or removal,
possibilities do exist for a person to challenge his or her listing.
Article 109 of the Schengen Convention provides that individuals
have the right to access data relating to them entered into the SIS.
They have the right to have factually inaccurate data corrected
and unlawfully stored data deleted.
To that end, any person
may, in the territory of each Schengen Contracting Party, bring
before the courts or the authority competent under national law
an action to correct, delete or obtain information or to obtain compensation
in connection with an alert involving him or her.
The
right “shall be exercised in accordance with the law of the Contracting
Party before which they invoke that right” and, “communication of
information... shall be refused if this is indispensable for the
performance of a lawful task in connection with the alert”.
44. The wording of the provisions strongly suggests that a person
has the right to bring such an action in the courts or before the
national data protection authority (if that is the body competent
under that State’s national law) of any Schengen member State, not
just the one which has issued the alert. Moreover, member States undertake
“mutually” to enforce “final decisions” in such cases, which would
require that the relevant national authority of the State issuing
an alert is bound to comply with a decision concerning the alert
taken by the courts or national data protection authority of another
member State.
Indeed,
this appears to have been the view of the Court of Justice in
Van Strateen v. the Netherlands.
45. In addition, individuals frequently bring administrative law
appeals seeking to challenge decisions to deny them visas or refuse
them entry on the ground that they have been wrongly entered into
the SIS, that the details entered are incorrect, or that they are
not the person listed. Such proceedings consequently amount to collateral
challenges to the original listing decisions.
46. In practice, however, matters are less clear-cut. Firstly,
authorities of one member State are often reluctant to review the
decisions of the authorities of another. Secondly, when they do
so, the latter authorities may be unwilling to enforce the former’s
decisions. It can also be difficult to determine the extent to which decisions
have been complied with. Even when proceedings are brought in the
member State which issued the alert, difficulties can arise, with
access to information being refused, for example, on national security
grounds (under Article 109(2) of the Schengen Convention: “Communication
of information … shall be refused if this is indispensable for the
performance of a lawful task in connection with the alert”).
Challenges to listings (or against
administrative decisions based on an individual having been listed)
are consequently likely to be time-consuming and of dubious efficacy.
47. I would like to illustrate this by way of some examples.
48. In the Mr and Ms Forabosco case, the French Conseil d’Etat
quashed decisions denying Ms Forabosco a visa due to her being listed
in the SIS by the German authorities on the sole basis that her
application for asylum in German had been rejected. The Conseil
d’Etat held that this fact was not a reason for refusal of entry under
Article 96 of the Schengen Convention.
49. The case of the Moons (Sun Myung X (Moon)), however, was more
complicated. Here, the Conseil d’Etat held that, on the basis of
the information provided by the German authorities as to why they
had listed the Moons in the SIS, the French authorities were justified
“without committing a manifest error of appreciation” in concluding
that the Article 96 alerts were not marred by any error of law or
fact.
The Moons were similarly unsuccessful
before the Dutch courts, although they did persuade the Belgian
courts that they should be allowed into Belgium to attend a Unification
Church conference. However, they were only able to regularise their
situation in Belgium when they were able to persuade the German
courts that their listing was unlawful, and consequently to require
the German authorities to delete the alerts from the SIS database.
50. It appears that the European Court of Human Rights is taking
a rather cautious approach with respect to challenging an SIS listing
and does not appear to see an infringement of rights under the Convention.
This became apparent in
Dalea v. France,
where the Court held that the application was inadmissible.
3.2.3. Outlook
51. We have seen that Schengen
member States have quite a wide discretion as to who they list as “unwanted
aliens” in the SIS database, and the methods by which that discretion
can be controlled are, in practice, rather limited. This is not
satisfactory. It has become apparent that once entered into the
SIS, being “delisted” is a rather burdensome process, and I submit
that the currently available legal remedies are far from satisfactory.
In particular, when a person is entered into the system exclusively
because of his or her political views and therefore for reasons
not covered by Article 96 of the Schengen Convention, States are
duty-bound to provide for an effective and efficient remedy, in
line with Article 109 of the Schengen Convention.
52. Two developments may, however, contribute to improving the
situation in the future.
53. The first arises from the replacement of the SIS by a new
database, SIS II. Although SIS II was scheduled to be launched in
2006, the project has been dogged by delays, cost overruns and political controversy.
It presently appears
that SIS II will not be operational until 2013 at the earliest.
However, Regulation 1987/2006, which will control the operation
of the new database, does make some changes to the system of listing
established under the Schengen Convention. The criteria for listing
remain essentially the same.
However,
an alert can only be issued “on the basis of an individual assessment”
(which
means that national authorities cannot automatically issue an alert
against a person on the basis that that person has been the subject
of another decision) and “before issuing an alert, member States
shall determine whether the case is adequate, relevant and important
enough to warrant entry of the alert in SIS II”.
54. Secondly, as from 2014, the Treaty of Lisbon places former
“third pillar” activities under the supervision of the Court of
Justice of the European Union. The impact of this development is
difficult to foresee at this stage. Denials of visas or refusals
of entry have generally not been considered by the European Court
of Human Rights to infringe individual rights protected under the
European Convention on Human Rights, with the exception of family
reunification under Article 8 of the Convention, as mentioned above.
It remains to be seen whether the Court of Justice, in applying
the Charter of Fundamental Rights, is prepared to go further than
the European Court of Human Rights. In any event, the Lisbon Treaty
may lead to further harmonisation of national rules and procedures
as regards access to data, as the Charter of Fundamental Rights
provides that “[e]veryone has the right of access to data which
has been collected concerning him or her, and the right to have
it rectified”.
4. Conclusion
55. Freedom of movement should
not be restricted as punishment for expressing political views which
do not incite violence. The member States of the Council of Europe,
having signed up to the European Convention on Human Rights, which
provides for freedom of expression in its Article 10, should give
full effectiveness to this right by not indirectly restricting freedom
of expression through denial of entry to their territories. In addition, freedom
of movement is a prerequisite for the enjoyment of many rights,
as well as an important condition for the free development of a
person.
56. As regards the legal order of the European Union, free movement
constitutes a fundamental freedom which can only be restricted in
rare and clearly defined circumstances. A restriction of freedom
of movement from one member State to another as a punishment for
a political position which is held and expressed peacefully does
not constitute a serious threat to a fundamental interest of society
and is thus illegal in the EU legal order. Member States that practice
such restrictions risk being taken to Court by those affected and having
to pay damages.
57. With respect to the Schengen regime, I would like to recall
that entries into the SIS must under no circumstances be misused
in order to deny persons who are not nationals of an EU member State
access to the Schengen area on grounds that violate the rights protected
by the European Convention on Human Rights and the principles upheld
by the Council of Europe. Furthermore, Schengen member States are
under a duty to genuinely provide for swift judicial review of any
entry into the database.