JOINT DISSENTING OPINION OF JUDGES GAUKUR JÖRUNDSSON, TÜRMEN AND MARUSTE

To our regret we are unable to agree with the conclusion reached by the majority as regards a violation of Article 2 of Protocol No. 4 to the Convention. In particular, we cannot find that the restriction here at issue was “in accordance with law”.

While we concur with the majority opinion that a basis for the restriction in question existed in domestic law, we do not think that the requirements of “accessibility” and “foreseeability” were met.

This restriction was not based directly on section 219 of the former Municipality Act. It was based on delegated legislation – namely, instructions under that provision issued by the Burgomaster to the police.

It is not in dispute that these instructions were neither published nor laid open to public inspection, and that at the relevant time there was no municipal by-law regulating these matters, nor any other text enacted by an elected representative body. It follows that the precise content of the texts on which the fourteen-day prohibition order was based could not be known or studied either by the applicant or by any person advising him – in other words, these texts were not accessible.

It is true, as stated by the Government and noted by the majority, that persons in the applicant's position were warned orally and in writing by a police officer that a fourteen-day prohibition order might be issued against them if they committed any further breach of public order. Although such persons were thus put on notice that they might be made subject to a restriction on their freedom of movement, this cannot in our opinion be considered a proper substitute for public access to the official text of the instructions themselves (see Silver and Others v. the United Kingdom , judgment of 25 March 1983, Series A no. 61, pp. 33 and 35-36, §§ 87 and 93). It should be remembered that such access does not only enable persons affected by them to regulate their conduct. It also places them in a position to verify the use made of the powers they grant, thus constituting an important safeguard against abuse.

It is argued by the majority that the accessibility requirement was satisfied, since the case-law concerning the interpretation of the relevant provision of Municipality Act was published. In common-law countries, of course, judge-made law is generally binding as “law” in its own right. Even in civil-law countries case-law is admittedly an important source of guidance as to the interpretation of prescribed legal norms. However, we do not accept that publishing the interpretation of a legal text can be a substitute for public access to the legal text itself.

We find no precedent for such reasoning in the Court's case-law.

The only accessible legal provision on which the restriction at issue was based was thus Section 219 of the former Municipality Act. As noted, it conferred on the Burgomaster a large measure of discretion to issue orders.

As the Court has stated many times and as the majority state again in this case, the law must be formulated with sufficient precision to enable the persons concerned – if need be, with appropriate legal advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. However, a law which confers a discretion is not in itself inconsistent with this requirement, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference (see, among other authorities, Margareta and Roger Andersson v. Sweden , judgment of 25 February 1992, Series A no. 226-A, p. 25, § 75). Furthermore, to grant broad and unspecified discretionary powers to an executive authority is not compatible with the very idea of the rule of law which is the cornerstone of the Convention and has always been upheld by the Court in its case-law.

In our opinion, section 219 of the Municipality Act, as in force at the time, did not satisfy these requirements in the circumstances of the present case. It was addressed only to the Burgomaster, entitling him 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”, to issue orders, the nature of which was not specified, to persons who were not identified with a view to maintaining public order or limiting general danger. It did not give persons in the applicant's position any guidance as to the possible consequences of their behaviour.

We thus find that the “foreseeability” requirement enshrined in the concept of “law” has not been met. Consequently, we reach the conclusion that there has been a violation of Article 2 of Protocol No. 4 to the Convention.