JOINT PARTLY DISSENTING OPINION OF JUDGES RYSSDAL, MATSCHER, SIR JOHN FREELAND AND JUNGWIERT

I.   Article 10 (art. 10)

1.   We are unable to agree with the conclusions of the majority as regards the compatibility of the treatment of Mrs Piermont in Polynesia and New Caledonia with Article 10 (art. 10) of the Convention.

A. French Polynesia

2.   We accept that the expulsion measure, coupled with the ban on re-entering French Polynesia , amounted to an "interference by public authority" with the exercise of her right of freedom of expression. Where we differ from the majority is on the question whether the interference was justified.

Justification under Article 63 (art. 63)

3.   Even if, as the judgment concludes, the factors adduced by the Government fell short of establishing that the situation in French Polynesia necessitated the interference in question, we take the view that circumstances in a territory such as this one, at the distance it is from metropolitan France and in the political atmosphere which existed at the time, may because of potential consequences for public order or territorial integrity amount to "local requirements" within the meaning of Article 63 (art. 63) to which "due regard" should be paid. We would not, however, go so far as to conclude that the paying of "due regard" to such circumstances should of itself lead inescapably to a finding that the interference was justified in this case. What it would do is more to condition the approach to be adopted in considering the question of possible justification under paragraph 2 of Article 10 (art. 10-2).

Justification under Article 16 (art. 16)

4.   The judgment asserts, without supporting reasoning, that Mrs Piermont ’ s "possession of the nationality of a member State of the European Union and, in addition to that, her status as a member of the European Parliament do not allow Article 16 (art. 16) of the Convention to be raised against her, especially as the people of the OTs take part in the European Parliament elections" (paragraph 64). It thus, in effect, adds by judicial action a new immunity to those which the member States saw fit to provide for members of the European Parliament by the terms of the Protocol of 8 April 1965 on the privileges and immunities of the European Communities (paragraph 35). We cannot subscribe to this approach. Mrs Piermont, a German national, was at the relevant time (before, as the judgment acknowledges, a European citizenship was recognised by the Community treaties) indubitably an alien in the eyes of French law, notwithstanding her status as a member of the European Parliament (and the elections for which campaigning was in progress were not elections to the European Parliament). We consider, therefore, that Article 16 (art. 16) has to be regarded as at least of some relevance: its reference to "aliens" is unambiguous and without express exception; and convincing grounds would be required for an exception to be inferred. We are not satisfied that such grounds exist.

5.   It does not, however, follow that, even if Article 16 (art. 16) is relevant, any restriction at all, at the unfettered discretion of the host State, may justifiably be imposed on the political activity of an alien without contravention of Article 10 (art. 10). Account must be taken of the increased internationalisation of politics in modern circumstances, and, so far as the present case in particular is concerned, of the interest which nowadays an MEP may legitimately have in the affairs of a Community territory. In the light of these developments, limits may have to be admitted to the restrictions on the political activity of aliens permissible under Article 16 (art. 16). With this in mind, and having regard to the approach adopted by the Court in its Groppera Radio AG and Others v. Switzerland judgment of 28 March 1990 (Series A no. 173) to the interpretation of the third sentence of paragraph 1 of Article 10 (art. 10-1), we would accept that the object and purpose of Article 16 (art. 16) should, like that sentence, be examined in the context of paragraph 2 of Article 10 (art. 10-2). In particular, when the proportionality of the interference with Mrs Piermont ’ s freedom of expression is under consideration, account should be taken of the principle embodied in Article 16 (art. 16).

Justification under paragraph 2 of Article 10 (art. 10-2)

6.   We agree that, for the reasons given in the judgment, the interference was prescribed by law and pursued a legitimate aim.

7.   As to whether the interference was "necessary in a democratic society", our conclusion on the issue of proportionality differs from that of the majority. Taking into account, to the extent to which, for the reasons indicated above, we consider it right to do so, the prevailing local circumstances, in the light of Article 63 (art. 63), and Mrs Piermont ’ s status as an alien, in the light of Article 16 (art. 16), we do not regard the interference as disproportionate to the aim pursued. There was an atmosphere of considerable tension in French Polynesia at the time and the intervention of the applicant in the election campaign could reasonably be regarded as liable to provoke disorder. For this reason she had been asked by the authorities, on her arrival in the territory, to be discreet in her public statements. She nevertheless proceeded to express opinions publicly, in by no means temperate terms, on sensitive issues such as independence for the territory and nuclear testing in the Pacific.

8.   The interference was, in any event, of very limited practical consequence for the applicant. Throughout her visit she expressed her views freely. The expulsion and exclusion order was not served on her until she was on the aircraft awaiting departure. She has not established that, in the circumstances, either the expulsion or the exclusion involved any substantial detriment for her.

9.   For these reasons, we are satisfied that the interference can, allowing for the margin of appreciation to be afforded to the authorities, reasonably be accepted as being proportionate to the aim pursued. We therefore conclude that the treatment of Mrs Piermont in French Polynesia involved no violation of Article 10 (art. 10).

B. New Caledonia

10. The Court has concluded that, in the light of the exclusion order which was served on Mrs Piermont after she had been held at Nouméa Airport for some hours under police guard, she was never lawfully within the territory of New Caledonia , with the result that there was no breach of Article 2 of Protocol No. 4 (P4-2). Since her detention at the airport prior to the making of the order and thereafter until the departure of her flight for Tokyo was a necessary part of the process of denying her, legitimately in terms of Convention obligations (as the Court has found), entry into the territory, it did not amount to an interference with rights under Article 10 (art. 10): she had not, because of the exclusion, become entitled to exercise such rights there. On this ground we would conclude that the treatment of her in New Caledonia involved no violation of Article 10 (art. 10).

11. Even if, however, the exclusion order and her detention at the airport should be regarded as having amounted, as the majority conclude, to an interference with her rights under Article 10 (art. 10), we would consider that the interference was justified. The political atmosphere in New Caledonia was even more tense than in French Polynesia and Mrs Piermont ’ s arrival had led to a demonstration of hostility by some forty activists. By parity of reasoning with that which we have indicated in relation to her treatment in French Polynesia , our conclusion would be that the measure was proportionate to the aim pursued.

12. We therefore find no violation of Article 10 (art. 10) in relation to Mrs Piermont ’ s treatment in New Caledonia .

II. Article 14, taken together with Article 10 (art. 14+10)

13. When the Court voted on this issue, we took the view that it was not necessary to examine the case under Article 14 of the Convention taken in conjunction with Article 10 (art. 14+10). However, if the Court had examined this complaint, we would not have found a violation. There is no evidence that the treatment accorded to the applicant differed from that which would have been accorded to another person in a similar situation. If only on this ground, we conclude that the complaint under Article 14 in conjunction with Article 10 (art. 14+10) has not been established.

[1] The case is numbered 5/1994/452/531-532.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The third number indicates the case's position on the list of cases referred to the Court since its creation and the last two numbers indicate its position on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 314 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.