Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22838/93

by Hermanus Joannes VAN DEN DUNGEN

against the Netherlands

The European Commission of Human Rights sitting in private on

22 February 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 12 August 1993 by

Hermanus Joannes VAN DEN DUNGEN against the Netherlands and registered

on 29 October 1993 under file No. 22838/93;

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 national, born in 1943, and resides at

Nijmegen, the Netherlands. Before the Commission he is represented by

Mr. B.W.M. Zegers, a lawyer practising in Volendam, the Netherlands.

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

summarised as follows.

On 29 January 1990 in summary proceedings before the President

of the Regional Court (Arrondissementsrechtbank) of Middelburg the S.

Foundation requested an injunction against the applicant, prohibiting

him from finding himself within 250 metres of the abortion clinic which

is run by the S. Foundation in the town of Groede, the Netherlands.

The S. Foundation alleged that the applicant, several times per

month, addressed visitors and employees, as they walked from the car

park to the clinic, trying to persuade them not to have an abortion by

way of showing them enlarged photographs of foetal remains in

combination with images of Christ, by calling abortion "child murder"

and the employees "murderers", and by handing out leaflets which also

contained the said photographs. According to the S. Foundation this led

to visitors arriving at the clinic shocked and upset, sometimes to such

an extent that treatment had to be postponed.

The applicant maintained that he did not hinder the visitors or

employees, that he left them alone if they did not accept the leaflets

handed out to them, but that in any case he had the right to try and

stop women from having an abortion, which he deems a crime against

humanity, as part of his right to freedom of expression.

The President, holding that the applicant's conduct towards the

visitors, who would in any case be in a very vulnerable state of mind

already, was impermissible and caused damage to the S. Foundation, as

it had to offer extra assistance to its patients, granted the

injunction for a period of six months.

The applicant appealed against this decision to the Court of

Appeal (Gerechtshof) of The Hague, arguing that the injunction violated

his rights to freedom of expression, freedom to manifest his religion

and freedom to liberty of movement. On 24 October 1991 the Court of

Appeal upheld the decision of the President of the Regional Court.

Following a hearing on 20 December 1992, the Supreme Court (Hoge

Raad) rejected the applicant's appeal in cassation on 26 February 1993.

In the Netherlands abortion is legal if carried out in accordance

with the conditions laid down in the Termination of Pregnancy Act (Wet

Afbreking Zwangerschap) and the Royal Decree on Termination of

Pregnancy (Besluit Afbreking Zwangerschap) based on this Act.

According to Article 1401 of the Netherlands Civil Code

(Burgerlijk Wetboek) victims of a tort are entitled to damages, but may

also ask for a declaratory judgment or an injunction by which the

defendant is either forbidden or ordered to do something. Under Article

289 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechts-

vordering) the President of the Regional Court, in cases requiring

immediate measures, is competent to grant such injunctions in summary

proceedings (kort geding).

COMPLAINTS

The applicant submits that the injunction prohibiting him from

handing out leaflets and showing photographs, which aim at expressing

the applicant's religiously inspired opinions about abortion, in the

vicinity of an abortion clinic violates his rights to freedom of

thought, conscience, religion and expression. He invokes Articles 9 and

10 of the Convention.

The applicant further complains of a breach of Article 2 of

Protocol No. 4 to the Convention, as he is of the opinion that the

restriction upon his right to liberty of movement cannot be justified.

The applicant finally maintains that, as it is normal in the

Netherlands to be addressed and handed leaflets by all kinds of people

without the Dutch authorities acting against this, he is discriminated

against contrary to Article 14 of the Convention.

THE LAW

1. The applicant complains that the injunction against him prevents

him from manifesting his beliefs, invoking Article 9 (Art. 9) of the

Convention which reads, so far as relevant:

"1. Everyone has the right to freedom of thought, conscience and

religion; this right includes freedom to change his religion or

belief and freedom, either alone or in community with others and

in public or private, to manifest his religion or belief, in

worship, teaching, practice and observance. ..."

The Commission recalls that Article 9 (Art. 9) of the Convention

primarily protects the sphere of personal beliefs and religious creeds,

i.e. the area which is sometimes called the forum internum. In

addition, it protects acts which are intimately linked to these

attitudes, such as acts of worship or devotion which are aspects of the

practice of a religion or belief in a generally recognised form (cf.

No. 11308/84, Dec. 13.4.86, D.R. 46 p. 200).

However, in protecting this personal sphere, Article 9

(Art. 9) of the Convention does not always guarantee the right to

behave in the public sphere in a way which is dictated by such a

belief. The Commission has constantly held that the term 'practice' in

Article 9 para. 1 (Art. 9-1) does not cover each act which is motivated

or influenced by a religion or belief (cf. No. 11308/84 supra; No.

10358/83, Dec. 15.12.83, D.R. 37 p. 142).

The Commission notes that the applicant's activities were

primarily aimed at persuading women not to have an abortion. The

Commission considers that the activities at issue do not constitute the

expression of a belief within the meaning of Article 9 para. 1

(Art. 9-1) of the Convention.

It follows that this part of the application is manifestly ill-

founded and must be rejected in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant also complains that the injunction against him

constitutes an interference with his right to freedom of expression

under Article 10 (Art. 10) of the Convention, and that such

interference is not justified under Article 10 para. 2 (Art. 10-2) of

the Convention. Article 10 (Art. 10) of the Convention, so far as

relevant, provides:

"1. Everyone has the right to freedom of expression. This right

shall include freedom to hold opinions and to receive and impart

information and ideas without interference by public authority.

...

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, ... for the protection

of the ... rights of others ..."

In the present case the applicant was prohibited from addressing

people and handing out leaflets in the direct vicinity of the abortion

clinic. The Commission considers that such a measure constitutes an

interference with the applicant's right to freedom of expression under

Article 10 para. 1 (Art. 10-1).

The Commission must next consider whether this interference was

justified under Article 10 para. 2 (Art. 10-2) of the Convention.

In the first place the Commission considers that the interference

was prescribed by law, in particular by Article 289 of the Code of

Civil Procedure and Article 1401 of the Civil Code, authorising the

President of the Regional Court in summary proceedings to grant

injunctions by which the defendant is either forbidden or ordered to

do something.

The interference was aimed at the protection of the rights of

others, namely of the S. Foundation and of the visitors to and the

employees of the clinic run by the S. Foundation. The Commission finds

therefore that the interference had a legitimate aim under Article 10

para. 2 (Art. 10-2) of the Convention.

The Commission must finally examine whether the interference was

necessary in a democratic society.

The Commission recalls that the word "necessary" in para. 2 of

Article 10 (Art. 10) implies the existence of a "pressing social need"

and that the Contracting States have a certain margin of appreciation

in assessing whether such a need exists (cf. Eur. Court H.R., Lingens

judgment of 8 July 1986, Series A no. 103, para. 39).

The Commission further recalls that this margin of appreciation

is, however, subject to a European supervision embracing both the

legislation and the decisions applying it, even those given by an

independent court. In particular, it must be determined whether in the

light of the case as a whole the interference complained of is

"proportionate to the legitimate aim pursued" and whether the reasons

adduced by the national authorities to justify it are "relevant and

sufficient" (cf. Eur. Court H.R., Sunday Times judgment of 26 November

1991, Series A no. 217, para. 50).

The Commission notes that in the present case the injunction

against the applicant was granted for a limited duration and a

specified, limited area. The Commission notes in particular that the

injunction was not aimed at depriving the applicant of his rights under

Article 10 (Art. 10) of the Convention but merely at restricting them

in order to protect the rights of others. Taking these factors

together, the Commission finds that the interference was proportionate

to the legitimate aim pursued in that it can reasonably be considered

"necessary" for the protection of the rights of others.

It follows that this part of the application must also be

rejected as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

3. The applicant further alleges a violation of his right to liberty

of movement within the meaning of Article 2 of Protocol No. 4 (P4-2)

to the Convention, which provides, so far as relevant:

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

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 the law and

necessary in a democratic society ... for the protection of the

rights and freedoms of others. ..."

The Commission finds that the interference with the applicant's

right to liberty of movement was justified under para. 3 of this

provision on the same grounds as stated in respect of the applicant's

complaint under Article 10 (Art. 10) of the Convention.

The Commission concludes therefore that this part of the

application must likewise be rejected as manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

4. Finally, the applicant complains of discrimination in respect of

his right to freedom of thought, conscience, religion, expression and

liberty of movement in that the Dutch authorities do not stop other

persons from addressing people in the street and handing out leaflets.

He invokes Article 14 of the Convention in conjunction with Articles

9 and 10 and Article 2 of Protocol No. 4 (Art. 14+9+10+P4-2) to the

Convention.

Article 14 (Art. 14) of the Convention reads as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The Commission recalls that Article 14 (Art. 14) of the

Convention has no independent existence, but plays an important role

by supplementing the other provisions of the Convention and the

Protocols. Article 14 (Art. 14) safeguards individuals, placed in

similar situations, from discrimination in the enjoyment of the rights

set forth in those other provisions.

The Commission has found above that there has been no

interference with the applicant's right to manifest his belief within

the meaning of Article 9 (Art. 9) of the Convention. It considers that

no question of discrimination arises in this respect.

The Commission furthermore notes that the applicant, when

complaining of discrimination as regards his freedom of expression and

liberty of movement, does not suggest that activities similar to those

carried out by him in the vicinity of the abortion clinic, would not

be subject to an injunction if carried out by other people. He only

refers to the distribution of leaflets in unspecified circumstances by

other kinds of people. He has thus failed to show with sufficient

clarity in what respect in his opinion the interference complained of

amounted to discrimination contrary to Article 14 (Art. 14).

The Commission therefore finds no appearance of a violation of

Article 14 of the Convention in conjunction with Article 9 or 10

(Art. 14+9+10) of the Convention or Article 2 of Protocol No. 4

(Art. 14+P4-2). It follows that this part of the application must again

be rejected as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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VAN DEN DUNGEN v. THE NETHERLANDS

VAN DEN DUNGEN v. THE NETHERLANDS

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