Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33129/96

by Hans Walter OLIVIEIRA

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 July 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 July 1996 by

Hans Walter OLIVIEIRA against the Netherlands and registered on

24 September 1996 under file No. 33129/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1954, and residing in

Amsterdam. Before the Commission he is represented by

Mr Gerard P. Hamer, a lawyer practising in Amsterdam.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

A. The particular circumstances of the case

On 6 November 1992 the Mayor (Burgemeester) of Amsterdam, basing

himself on Section 219 of the former Municipality Act (Gemeentewet),

imposed a prohibition order (verwijderingsbevel) on the applicant to

the effect that the latter would not be allowed to enter a particular

area, the so-called emergency area, of the city centre for fourteen

days. The following events, which were referred to in the Mayor's

decision, led to this decision.

It appeared from police reports that twice on 21 July, on

29 July, 12 August, 26 August and 10 September 1992 the applicant

either had overtly used hard drugs or had had hard drugs in his

possession in streets situated in the emergency area and that on each

of those occasions the applicant had been ordered to leave the area for

eight hours.

On 5 November 1992 the applicant had been heard by the police

about his conduct and he had been told that he would either have to

refrain from such acts which disturbed the public order (openbare orde)

or have to stay away from the area. The applicant had further been

informed that if he committed such acts again in the near future, the

Mayor would be requested to impose a prohibition order for fourteen

days on him. The applicant had told the police that as well as

preparing and using drugs he also met his friends in the area

concerned.

On 5 November 1992 the applicant had nevertheless overtly used

hard drugs on one of the streets in the emergency area. He had once

again been ordered to leave the area for eight hours and the police had

subsequently requested the Mayor to impose a prohibition order for

fourteen days on the applicant.

In the opinion of the Mayor the applicant would again commit acts

disturbing the public order within the near future. In this respect the

Mayor took account of the kind of conduct involved, i.e. acts seriously

disturbing the public order, the repetition and continuity of this

conduct, the statement of the applicant, the short period of time

within which the acts concerned had been observed and the fact that the

applicant had continued his disruptive behaviour despite the eight hour

prohibition orders imposed on him and the warning given by the police.

Finally, the Mayor noted that neither the applicant's home nor his

place of work were situated in the area concerned.

The applicant filed an objection (bezwaarschrift) against the

prohibition order with the Mayor. He submitted, inter alia, that the

Mayor ought only to make use of the emergency powers granted to him

pursuant to Section 219 of the former Municipality Act in exceptional

situations. As the Mayor had been issuing prohibition orders for eight

hours since 1983 and for fourteen days since 1989 it could no longer

be argued that an exceptional situation was still in place. The Mayor

had, moreover, had sufficient time to ensure that the emergency

measures were enacted in a general municipal bye-law (Algemene Politie

Verordening).

The applicant also stated that the prohibition order, which in

his opinion constituted a criminal sanction, interfered with his right

to liberty of movement and violated the principle of proportionality.

In this respect he argued that he had always complied with the

prohibition orders imposed on him for a duration of eight hours and

that he therefore failed to understand why a prohibition order for

fourteen days had suddenly been called for.

On 14 January 1993 a hearing took place before an advisory

committee. During this hearing the representative of the Mayor stated

that in 1992 3,300 prohibition orders for eight hours (compared to

2,130 in 1991) and 204 prohibition orders for fourteen days (111 in

1991) had been issued to people dealing in or using drugs or committing

acts related to those activities. The representative further said that

it was the intention to enact the power to issue prohibition orders in

a general municipal bye-law.

On 8 March 1993 the committee advised the Mayor to reject the

objection and to maintain the prohibition order. It considered, inter

alia, that the disruption of public order in the area concerned was

still such as to constitute an exceptional situation within the meaning

of Section 219 of the former Municipality Act. In view of the

seriousness and scale of the problems involved the committee found it

unlikely that public order could sufficiently be maintained by normal

methods and that for that reason the Mayor was entitled to use the

powers granted to him under Section 219.

Having regard to the fact that the applicant had, within a short

period of time, regularly committed acts which had disturbed the public

order and that the prohibition orders for eight hours which had been

issued had not prevented him from behaving in that manner, the

committee further found that the imposition of a prohibition order for

a duration of fourteen days had not been unreasonable. It did not agree

with the applicant that the impugned measure constituted a penalty as

it had been issued in order to maintain public order. The committee

finally found that the interference with the applicant's right to

liberty of movement had been justified.

By decision of 11 March 1993 the Mayor rejected the applicant's

objection, adopting the reasoning applied by the advisory committee.

The applicant filed an appeal against the Mayor's decision with

the Judicial Division (Afdeling Rechtspraak) of the Council of State

(Raad van State) on 19 March 1993. In his appeal, which he elaborated

by letter of 17 May 1993, he raised the same complaints as he had

before the Mayor. In his written observations of 14 March 1994 the

Mayor referred to the report drawn up by the advisory committee. A

hearing took place before the Administrative Law Division (Afdeling

Bestuursrechtspraak), the successor to the Judicial Division, on

23 January 1996.

On 14 May 1996 the Administrative Law Division rejected the

applicant's appeal. It found that the imposition of orders in the

circumstances enumerated in Section 219 of the former Municipality Act

was not contrary to the Convention right invoked by the applicant since

the restriction of this right for the purpose of maintaining public

order had been provided for by law, and the concept of "law" included

an order given by the Mayor pursuant to a law. The Division further

held that in the instant case normal methods to restore and maintain

public order could not be considered to have sufficed and that at the

time of the impugned measure there had indeed existed an exceptional

situation. Moreover, the Division agreed with the Mayor that there had

been no relevant provision in a municipal bye-law or any other adequate

legal instrument available.

The Division added, however, that it failed to see why, if the

exceptional situation were to continue for some time to come, the

possibility to issue prohibition orders for fourteen days could not be

enacted by the Municipal Council (gemeenteraad) in a general municipal

bye-law. It found that from the point of view of legal certainty and

justification of Government actions it would be more appropriate to

legislate rather than to issue orders based on the Mayor's emergency

powers. Moreover, the fact that the prohibition orders were considered

by the Mayor, the police and the prosecution authorities as an

efficient instrument should not in itself be a reason to decide not to

adopt a municipal regulation. If the possibility to issue prohibition

orders was not now included in a bye-law to be adopted by the Municipal

Council within a reasonable time, the Mayor would no longer be able to

invoke the lack of such provision in a municipal regulation when it

fell to be established whether an exceptional situation within the

meaning of Section 219 of the Municipal Act still existed.

The Division finally held that in view of the facts on which the

Mayor had based his decision, the prohibition order for fourteen days

should be considered as no more than a preventative measure aimed at

avoiding a continuing disturbance of public order. It concluded that

the Mayor had not acted unreasonably in holding that the risk of the

applicant again committing acts which disturbed the public order was

so great that it required the imposition of a prohibition order for

fourteen days.

Apart from the proceedings described above, the applicant was

convicted by the Magistrate (Politierechter) of the Regional Court

(Arrondissementsrechtbank) of Amsterdam on 8 December 1992 of having

intentionally failed to comply with the prohibition order on

20 November 1992 which, pursuant to Section 184 of the Criminal Code

(Wetboek van Strafrecht), constituted a criminal offence. He was

sentenced to four weeks' imprisonment. Following an appeal to the Court

of Appeal (Gerechtshof) of Amsterdam, which also convicted the

applicant, an appeal in cassation was lodged with the Supreme Court

(Hoge Raad). The cassation proceedings are currently still pending.

These proceedings do not form part of the present application.

B. Relevant domestic law and practice

At the relevant time Section 219 of the former Municipality Act

provided as follows:

"1. Ingeval van oproerige beweging, samenscholing of andere

stoornis der openbare orde of van ernstige rampen, dan wel van

ernstige vrees voor het ontstaan daarvan, is de burgemeester

bevoegd alle bevelen, die hij ter handhaving van de openbare orde

of ter beperking van gemeen gevaar nodig acht te geven.

..."

"1. In case of a riotous movement, gathering or other

disturbance of public order or of serious calamities, as well as

in case of a well-founded fear of the development thereof, the

Mayor is empowered to issue all orders which he deems necessary

for the maintenance of public order or the limitation of general

danger.

..."

By letter of 4 July 1983 the Mayor of Amsterdam informed the

Chief Superintendent (hoofdcommissaris) of the Amsterdam police that,

in view of the situation in the city centre, the Chief Superintendent

and police officers acting on the Mayor's behalf would be able to order

people to leave a particular area within the city centre and not to

return to it for eight hours. The Mayor considered that the designated

city centre area continually attracted persons addicted to, and dealers

in, hard drugs. The activities carried out by them, insofar as they

related to drugs, disrupted public order, caused considerable nuisance

and constituted an incessant threat to public life. For this reason the

Mayor found that the situation existing in the area constituted a

exceptional situation within the meaning of Section 219 of the former

Municipality Act.

The Mayor extended the area of the city centre where these orders

could be issued by letter of 25 July 1988. Subsequently, by letter of

8 March 1989, the Mayor also enabled the Chief Superintendent and his

officers to order people to leave the designated city centre area for

fourteen days. The instructions contained in the last letter were

changed by letter of 13 November 1989 according to which prohibition

orders for fourteen days could no longer be issued by the police on

behalf of the Mayor but only by the Mayor himself.

A prohibition order for fourteen days could be imposed on a

person if in the preceding six months five procès-verbaux or other

reports had been drawn up by the police concerning acts committed by

him which had disturbed the public order such as, inter alia:

- the possession and use of addictive substances appearing in Annex 1

to the Opium Act (Opiumwet; i.e. hard drugs) on the public highway;

- dealing in addictive substances appearing in Annex 1 to the Opium Act

on the public highway;

- overt possession of knives or other banned objects insofar as this

constituted a criminal offence pursuant to the general municipal bye-

law or the Arms and Ammunition Act (Wet Wapens en Munitie);

- committing the offence of Section 184 of the Criminal Code (Wetboek

van Strafrecht; i.e. the deliberate failure to comply with an order

given by a police officer) where the order that had not complied with

was a prohibition order for eight hours;

- acts of violence, thefts from cars on or along the public highway,

overt selling on of stolen goods on or along the public highway,

insofar as there was a connection between these offences and hard

drugs.

At the occasion of a fourth procès-verbal being drawn up, the

person concerned would be heard by a police sergeant about his

disruptive behaviour and the reason for his (continued) presence in the

emergency area. The police sergeant would issue a warning to the effect

that if in the near future the person concerned again disrupted public

order, the police would request the Mayor to impose a prohibition order

for fourteen days.

In the Netherlands, a mayor of a town or city is appointed by the

Queen (Section 65 of the former Municipality Act). Municipal

regulations, such as general municipal bye-laws, are adopted by the

Municipal Council (Section 168 former Municipality Act) which is

elected by those inhabitants of the town or city who are eligible to

vote in elections for the Lower House of Parliament (Article 129 of the

Constitution).

COMPLAINTS

The applicant complains under Article 2 of Protocol No. 4 and

Article 8 of the Convention of an unjustified interference with his

rights to liberty of movement and respect for his private life. He

submits in particular that this interference was not in accordance with

the law since, firstly, the letters and instructions from the Mayor to

the Chief Superintendent of police had not been published. Secondly,

by 1992 the situation characterised by the Mayor as exceptional had

become structural. As a result, Section 219 of the former Municipality

Act no longer applied. It could similarly not be said that the

imposition of prohibition orders pursued the aim of the maintenance of

public order.

The applicant further submits that the prohibition order imposed

on him interfered with his rights to freedom of religion and expression

as guaranteed by Articles 9 and 10 of the Convention, in that the

impugned measure prevented him from going to church and from

participating in demonstrations in the designated area.

He finally invokes Article 6 of the Convention, complaining of

the length of the proceedings. Under this provision he also argues that

the prohibition order constituted a criminal sanction which had been

imposed on him without a trial having taken place before a tribunal.

THE LAW

1. The applicant complains of an unjustified interference with his

rights to freedom of movement and respect for his private life. He

invokes Article 2 of Protocol No. 4 and Article 8 (P4-2, 8) of the

Convention which provide, insofar as relevant, as follows:

Article 2 of Protocol No. 4 (P4-2)

"1. Everyone lawfully within the territory of a State shall,

within that territory, have the right to liberty of movement ...

...

3. No restrictions shall be placed on the exercise of these

rights other than such as are in accordance with law and are

necessary in a democratic society in the interests of national

security or public safety, for the maintenance of ordre public,

for the prevention of crime, for the protection of health or

morals, or for the protection of the rights and freedoms of

others.

4. The rights set forth in paragraph 1 may also be subject, in

particular areas, to restrictions imposed in accordance with law

and justified by the public interest in a democratic society."

Article 8 (Art. 8) of the Convention

"1. Everyone has the right to respect for his private ... life

...

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The applicant further complains under Article 6 (Art. 6) of the

Convention of the length of the proceedings. Under the same provision

he also submits that the prohibition order was a criminal sanction

which was imposed on him without any kind of trial before a tribunal

having taken place. Article 6 (Art. 6) of the Convention, insofar as

relevant, reads as follows:

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law. ...

2. Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following

minimum rights:

a. to be informed promptly, ... and in detail, of the

nature and cause of the accusation against him;

b. to have adequate time and facilities for the

preparation of his defence;

c. to defend himself in person or through legal

assistance of his own choosing or, if he has not sufficient means

to pay for legal assistance, to be given it free when the

interests of justice so require;

d. to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him;

..."

The Commission finds that it cannot, on the basis of the file,

determine the admissibility of these complaints at this stage and

considers that it is therefore necessary, in accordance with Rule 48

para. 2 (b) of the Commission's Rules of Procedure, to give notice of

these complaints to the respondent Government.

2. The applicant alleges that the prohibition order imposed on him

infringed his rights to freedom of religion and expression as

guaranteed by Articles 9 and 10 (Art. 9, 10) of the Convention.

The Commission reiterates that according to Article 26 (Art. 26)

of the Convention it may only deal with a complaint after all domestic

remedies have been exhausted. The mere fact that an applicant has

submitted his case to the competent court does not in itself constitute

compliance with this rule. It is also required that the substance of

any complaint made before the Commission should have been raised during

the proceedings concerned. The Commission refers to its established

case-law on this matter (cf. e.g. No. 12717/87, Dec. 8.9.88, D.R. 57,

p. 196).

The Commission observes that in the present case the applicant

did not complain, either formally or in substance, of a breach of

Articles 9 and 10 (Art. 9, 10) of the Convention in the domestic

proceedings. Consequently, the Commission finds that the applicant has

not complied with the requirement of exhaustion of domestic remedies.

It follows that this part of the application is inadmissible

under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicant's

complaint of an unjustified interference with his rights to

freedom of movement and respect for his private life, as

well as his complaints that the proceedings exceeded a

reasonable time and that a criminal charge against him had

been determined without a trial having taken place before

a tribunal;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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OLIVIEIRA v. THE NETHERLANDS

OLIVIEIRA v. THE NETHERLANDS

LEXI