Information Note on the Court’s case-law 43

June 2002

Olivieira v. the Netherlands - 33129/96

Judgment 4.6.2002 [Section I]

Article 2 of Protocol No. 4

Article 2 para. 1 of Protocol No. 4

Freedom of movement

Prohibition on entering specified area of city for 14 days: no violation

Facts : In 1983 the Burgomaster of Amsterdam, in response to the level of drugs-related activity in the city centre, authorised the poli ce to order individuals to leave a specified area and not return within eight hours. The instruction was based on legislation which permitted the Burgomaster to issue all orders which he deemed necessary for the maintenance of public order or the limitatio n of general danger. In 1989 he empowered the police to order individuals to leave the area for 14 days. The instructions were subsequently modified so that only the Burgomaster himself could issue a prohibition order. In 1992 the Burgomaster issued such a n order in respect of the applicant, on the basis of a series of police reports that the applicant had used or possessed hard drugs in the specified area and on each occasion had been ordered to leave for eight hours. On the last occasion, the applicant ha d been warned that a request for a 14-day prohibition order would be made if he committed such acts again. The applicant had nevertheless overtly used hard drugs again the same day and had consequently been ordered to leave. In his decision, the Burgomaste r noted that the applicant neither worked nor lived in the area. The applicant lodged an objection, arguing that the Burgomaster ought not to use his emergency powers since the situation could no longer be described as exceptional and there had been suffic ient time to enact a by-law. Following a hearing before an advisory committee, the Burgomaster dismissed the objection. The applicant’s appeal was rejected by the Council of State.

Law : Article 2 of Protocol No. 4 – There had been a restriction on the appl icant’s liberty of movement. The law gave the Burgomaster discretion to issue orders which he deemed necessary in order to prevent serious disturbances of public order and the national courts had considered that this constituted a sufficient legal basis. T he Court accepted this. As to accessibility, the provision was set out in legislation and the case-law concerning its interpretation was published in domestic law reports. As to foreseeability, while the provision was rather general, the circumstances call ing for the Burgomaster to issue orders he deemed necessary for the maintenance of public order were so diverse that it would scarcely be possible to formulate a law to cover every eventuality. The applicant had been ordered to leave the area on several oc casions and had been warned that a 14-day prohibition would be requested. He was thus able to foresee the consequences of his acts and could regulate his conduct before an order was imposed. Moreover, as he could bring objection proceedings and a subsequen t appeal, adequate safeguards were afforded against possible abuse. The measures pursued the legitimate aims of protecting public order and preventing crime. As to their necessity, the Court accepted that special measures might have to be taken to overcome the emergency situation in the area concerned at the relevant time and it could not be said that the national authorities overstepped their margin of appreciation when, in order to put an end to that situation, the Burgomaster issued a prohibition order i n respect of the applicant. Taking into account that the applicant had already received several prohibition orders for eight hours but had nevertheless returned each time to the area to use hard drugs in public, that he was informed that if he committed su ch acts again in the near future a 14-day prohibition order would be requested and that he did not live or work in the area, the restriction on his freedom of movement was not disproportionate.

Conclusion : no violation (4 votes to 3)

Article 8 – The applic ant’s complaints under this provision coincided with those examined above.

Conclusion : no separate issue (unanimously).

(This judgment deals with the same issue as judgment Landvreugd v. the Netherlands , no. 37331/97, 4 June 2002.)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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