DISSENTING OPINION OF JUDGE BAKA

It is not the task of an international judge to defend a national institution which clearly shows certain shortcomings. The magistrates’ power to bind over – as the Law Commission’s report on the subject explains – is based on “conduct which … is too vaguely defined; … binding-over orders when made are in terms which are too vague and are therefore potentially oppressive; … the power to imprison someone if he or she refuses to consent to be bound over is anomalous ...”. For these and other reasons the Law Commission even recommended abolition of the power to bind over.

On the other hand, it is not easy to destroy old, established institutions which are deeply rooted in a country’s legal system and have proved their usefulness over the centuries for protecting the rights of the public, as in the present case. If we look at the concrete circumstances of the case, what the applicants did according to the national courts’ finding was “a deliberate attempt to interfere with the Portman Hunt and to take the hounds out of … control ...”. They were avowed hunt saboteurs and as such they deliberately tried seriously to disturb other people’s lawfully organised pleasure and leisure activity or even make it impossible. Their action, according to the Crown Court’s findings, had not resulted in “violence or threats of violence on this occasion, so that it could not be said that any breach of the peace had been committed or threatened”. On the other hand, their action, in my opinion, definitely required an adequate and proportionate legal response in order to protect others.

I agree with the Court that this case is different from the case of Steel and Others v. the United Kingdom (judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII), in which the binding-over decision was based on breaches of the peace, while in the present case the findings against the applicants were based on behaviour contra bonos mores . In the Steel and Others case the Court was satisfied that binding-over orders had been imposed after a finding that the applicants had committed a breach of the peace, the elements of which – according to the Court’s findings – “were adequately defined by English law” (see the Steel and Others judgment, p. 2739, § 75). What I do not agree with is that “the order by which the applicants were bound over to keep the peace and not to behave contra bonos mores did not comply with the requirement of Article 10 § 2 of the Convention that it be prescribed by law” (see paragraph 41 of the judgment).

The Court, when analysing the “prescribed by law” requirement of Article 10 § 2, has always reiterated that “the level of precision required of the domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument considered, the field it is designed to cover and the number and status of those to whom it is addressed”. It has pointed out also that “it is primarily for the national authorities to interpret and apply domestic law” (see the Chorherr v. Austria judgment of 25 August 1993, Series A no. 266 ‑ B, pp. 35-36, § 25).

On the basis of these elements of foreseeability, I am of the opinion that in the concrete circumstances of the case, the applicants should have known what kind of behaviour was contra bonos mores . It is true that the requirement is broadly defined, but taking into account the nature of the disturbance and the limited number of offenders, the institution of binding over to be of good behaviour imposed an unmistakable obligation on the applicants, namely to refrain from any offensive and deliberate action which could disturb the lawfully organised activity of others engaged in fox hunting. In my view, the “keep the peace or be of good behaviour” obligation has to be interpreted in the light of the specific anti-social behaviour committed by the applicants. In this context, I think that the binding-over requirement was foreseeable and enabled the applicants to a reasonable extent to behave accordingly.

On this basis, I think that the interference with the applicants’ rights under Article 10 § 2 not only served a legitimate aim but was also prescribed by law and necessary in a democratic society. Consequently, I find no breach of Article 10 of the Convention.

[1]

1-2. Note by the Registry. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[2]

[3] 1. Note by the Registry . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.