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THIRD
SECTION
DECISION
Application no.
49458/06
Ferdinand Jozef COLON
against the Netherlands
The
European Court of Human Rights (Third Section), sitting on
15 May 2012 as a Chamber composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Kristina
Pardalos,
judges,
and Marialena Tsirli, Deputy Section
Registrar,
Having
regard to the above application lodged on 28 November 2006,
Having
regard to the observations submitted by the respondent Government and
the observations submitted in reply by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The applicant, Mr Ferdinand Jozef Colon, is a
Netherlands national born in 1947 who lives in Amsterdam. He was
represented before the Court by Mr H.A. Sarolea, a lawyer practising
in Amsterdam. The Netherlands Government (“the Government”)
were represented by their Deputy Agent, Ms L. Egmond, of the
Netherlands Ministry of Foreign Affairs.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties and as apparent from
documents available to the public, may be summarised as follows.
1. Designation orders and ensuing criminal proceedings
a. The designation orders
- In
response to a rise in violent crime in the city of Amsterdam the
Burgomaster (Burgemeester) of that city gave an order
designating certain areas as security risk areas
(veiligheidsrisicogebieden). Relying on section 151b of the
Municipalities Act (Gemeentewet), the Burgomaster designated
most of the old centre of Amsterdam as a security risk area for a
period of six months on 20 November 2002. By virtue of such a
decision, a public prosecutor (Officier van Justitie) was
empowered, in accordance with section 52(3) of the Arms and
Ammunition Act (Wet Wapens en Munitie), to order that for a
randomly selected period of twelve hours any persons present in the
designated area might be subjected to a search for the presence of
weapons. The process came to be known as “preventive searching”
(preventief fouilleren).
- The
reasoning on which the order was based referred to statistics of
incidents involving the use of weapons (shootings, knifings,
robberies, fatal and non-fatal casualties) in each of the areas
concerned. It was observed that such incidents occurred most often in
the old centre of the city, especially around the Wallen (the
red-light district), the central station and around the
concentrations of restaurants, bars and places of entertainment.
- By
order of 26 June 2003 the Burgomaster designated the same area as a
security risk area for another twelve months based on the fact that
weapons were still being confiscated during searches and there had
been insufficient decrease in the number of violent crimes.
b. The applicant’s arrest
- On
19 February 2004 the applicant, while in the designated security risk
area, was stopped by police acting on orders of the public prosecutor
to conduct searches of every person present in the security risk
area. The applicant refused to submit to a search. He was then
arrested (aangehouden) and taken to a police station, where he
refused to give a statement (verklaring).
c. Proceedings at first instance
- On
27 January 2005 a single-judge chamber (politierechter) of the
Amsterdam Regional Court (rechtbank) convicted the
applicant of failing to obey a lawful order under article 184 of the
Criminal Code (Wetboek van Strafrecht). He was sentenced to a
fine of 150 euros (EUR).
d. Proceedings in appeal
- The
applicant lodged an appeal with the Amsterdam Court of Appeal
(gerechtshof), which acquitted him of all charges on 23
September 2005. The Court of Appeal considered that section 151b of
the Municipalities Act imposed stringent requirements with regard to
the decision to designate an area as a security risk area, especially
in the light of individuals’ freedom of movement and respect
for the right to privacy. The Burgomaster’s decisions
(including the one dated 26 June 2003) did not meet the requirements
of section 151b as the Burgomaster had failed to give any reasons why
the security risk area had to be designated for such lengthy periods
and cover such a large area. Accordingly, the decisions were not in
conformity with Articles 5 and 8 of the Convention either.
e. Proceedings in appeal on points of law
- The
Advocate General (Advocaat-Generaal) at the Amsterdam Court of
Appeal lodged an appeal on points of law (cassatie) with the
Supreme Court (Hoge Raad) against the judgment of the Court of
Appeal.
- After
the applicant submitted his application to the Court, the Supreme
Court, on 20 February 2007, granted the appeal lodged by the Advocate
General. The Supreme Court held that in considering the validity of
the designation order the criminal judge should follow the approach
of administrative courts in the matter. On that basis, and quoting
from a judgment of the Administrative Jurisdiction Division of the
Council of State (Afdeling bestuursrechtspraak van de Raad van
State) of 9 November 2005 (Administrative Law Reports (AB
Rechtspraak Bestuursrecht) 2006, no. 90), it found that the
Burgomaster had a wide margin of appreciation (beoordelingsmarge)
in assessing the need for any such order after consultation with the
public prosecutor. It was for him or her to balance the interests
involved, including public order and individual private life, against
each other. The designation order should be limited in time and in
area to what was necessary (noodzakelijk) to maintain public
order. The Burgomaster’s choices had to be properly reasoned
and proportionate to the interference with the private life of anyone
present in the area concerned. The role of the criminal courts was
limited to assessing the lawfulness and reasonableness of the
Burgomaster’s decision.
- Considering
the case in this light, the Supreme Court held that the Court of
Appeal had correctly considered that the Burgomaster’s decision
of 26 June 2003 had to be read in conjunction with his original
decision of 20 November 2002. Nevertheless, in finding that
insufficient reasons had been given for the decision of 26 June 2003
the Court of Appeal had failed to take into account the extensive
report which had formed the basis for the 20 November 2002 decision.
The Supreme Court therefore quashed the judgment of the Court of
Appeal and remitted the case to the Court of Appeal for re-hearing.
f. Proceedings following remittal
- In
a judgment of 12 December 2007, the Amsterdam Court of Appeal found
that the Burgomaster had given sufficient reasons for his decision of
26 June 2003 by referring to the considerations contained in the
original decision of 20 November 2002. The Court of Appeal further
considered that any interference with the applicant’s rights
under Article 8 of the Convention and Article 2 of Protocol No. 4 had
taken place in the interests of the protection of public order and in
accordance with the margin of appreciation awarded to States. For
those reasons the Court of Appeal found the applicant guilty of
failing to obey a lawful order, but imposed no sentence on him.
- The
applicant did not lodge an appeal on points of law against this
judgment.
2. Further designation orders and ensuing
administrative proceedings
- By
decision of 24 June 2004 the Burgomaster again designated the same
area as a security risk area for the next twelve months as weapons
were still being confiscated even though the number of violent crimes
had decreased significantly.
- On
16 June 2005 the Burgomaster again designated the same area of the
centre of Amsterdam as a security risk area, this time for a period
of twenty-four months.
- On
7 October 2005, the Burgomaster, taking into account the judgment of
the Court of Appeal (see paragraph 8 above), issued a decision
altering the original decision of 16 June 2005 by designating the
same area as a security risk area for twelve months instead of the
original twenty-four. The Burgomaster also set out more extensive
reasons for his decision, including a breakdown of the decrease in
weapon-related crimes following the introduction of preventive
searching in the security risk areas. For Amsterdam city centre
alone, it was noted that numbers of weapons-related incidents had
dropped to 728 between 1 November 2002 and 1 July 2003, down from
773; between 1 July 2003 and 1 July 2004, from 728 to 640; between 1
July 2004 and 1 July 2005, from 640 to 500. In 95% of all preventive
search operations until then at least one weapon had been found.
-
On 2 November 2005 the applicant lodged an objection (bezwaar)
against the decision of the Burgomaster of 7 October 2005. The
applicant submitted that the designated security risk area was too
large and that there were insufficient reasons for including the
different districts, considering the impact on people’s right
to respect for their privacy and freedom of movement. The applicant
further alleged that the percentages used by the Burgomaster to
support his decision had been calculated in such a way as to make his
policy seem more effective than it really was.
- On
1 February 2006, whilst awaiting the outcome of his objection, the
applicant also applied for a provisional measure (voorlopige
voorziening) on the same grounds as his objection.
- On
9 March 2006 the provisional-measures judge (voorzieningenrechter)
of the Amsterdam Regional Court declared the applicant’s
request inadmissible on the ground that the applicant did not appear
to have a direct interest in the decision of the Burgomaster dated
7 October 2005 and that presumably the applicant’s
objection would be declared inadmissible for the same reason.
- On
1 June 2006 the Burgomaster declared the applicant’s objection
inadmissible as the applicant could not be regarded as a person with
a direct interest (belanghebbende) as required by article 1:2
of the General Administrative Law Act (Algemene wet
bestuursrecht). The Burgomaster held that a person could only be
said to have a direct interest if that interest was strictly
personal, real and direct and could be identified objectively.
According to the Burgomaster, the applicant neither lived in the
security risk area nor had a paid job which required him to be in the
area at regular set times. The fact that the applicant claimed to be
engaged in volunteer work and paid social visits to friends in the
designated area did not suffice to give him a direct interest.
- The
applicant did not appeal against this decision to the Regional Court;
the reason he gives is that the designation order of 7 October 2005
was due to expire on 30 June 2006.
3. The evaluation reports of the COT Institute for
Safety and Crisis Management
- The
municipality of Amsterdam commissioned the COT Institute for Safety
and Crisis Management (COT Instituut voor Veiligheids- en
Crisismanagement), a body based in The Hague, to produce a series
of evaluation reports on preventive searches in the security risk
areas. The Court has studied two of these, which contain data
pertaining to the time of the events complained of.
a. The report of May 2006
- On
11 May 2006 the COT Institute for Safety and Crisis Management
published a report entitled “Evaluation of preventive body
searches in Amsterdam: The current situation” (Evaluatie
Preventief Fouilleren in Amsterdam: De stand van zaken). It
covered the period between November 2002 and March 2006.
- In
Amsterdam city centre, between November 2002 and May 2003 one weapon
had been found for every 28 persons searched. Between July 2003
and May 2004 one weapon had been found for every 37 persons searched;
between July 2004 and June 2005, again, one weapon for every 37
persons searched; and between July 2005 and March 2006, one weapon
for every 40 persons searched. In Amsterdam South-East, which has a
far more modern and open layout than the old city centre, there were
generally far fewer weapons found until the search operations were
planned to cover times and places at which the risk of violent
incidents was highest; the number of weapons found then rose to one
per 28 persons searched. The report mentioned that the operations
that had had the greatest effect in relation to the police manpower
invested had lasted for five hours or less, which could be explained
by the loss of the advantage of surprise as an operation dragged on
for longer.
- The
number of incidents involving the use of weapons had dropped during
this period. In Amsterdam city centre, between November 2002 and May
2003 there had been 747 such incidents; between July 2005 and
March 2006, only 488, or 34.7% fewer. The number of muggings in
this area dropped from 254 to 130, a reduction of 48.8%. In Amsterdam
South-East, the number of weapons-related incidents had dropped by
29.4% in comparison of the same periods. Within the area of
jurisdiction of the Amsterdam-Amstelland Police Force as a whole, the
total decrease had been 14.3%; if the security risk areas were
excluded, it had been 6.6%.
- The
evaluation report mentions the applicant’s case, which at the
time the report was published was still pending before the Supreme
Court.
- The
report recommended that random searches be continued in the same two
areas, given their obvious effectiveness. It also made further
proposals aimed at increasing efficiency.
b. The report of May 2007
- In
May 2007 the COT Institute for Safety and Crisis Management published
a report entitled “Evaluation of preventive body searches in
Amsterdam: Gains, incidents involving weapons and hot spots”
(Evaluatie Preventief Fouilleren in Amsterdam: Opbrengsten,
wapenincidenten en hot spots). It was noted that searches had
become more efficient, which had allowed more persons to be searched
within a given time. Between July 2006 and April 2007 one weapon
had been found for every 52 persons searched in Amsterdam city
centre; in Amsterdam South-East, the corresponding figure was one
weapon for every 40 persons searched.
- Numbers
of weapons-related incidents had continued to decline. As compared to
the period from April 2003 until March 2004, between April 2006
and March 2007 there were 35% fewer such incidents (565, down from
864); in Amsterdam South-East, 16.5% fewer (532, down from 591).
- The
frequency of weapons-related incidents had increased by 6.4% in
Amsterdam outside the security risk areas; within the area of
jurisdiction of the Amsterdam-Amstelland Police Force as a whole,
there had been a reduction of 4.4%.
- The
report identified seven “hot spots” outside the existing
security risk areas where incidents involving the use of weapons were
frequent. In two of them the problem was so serious that preventive
searches should be carried out there too.
4. Subsequent designation order
- By
letter dated 27 May 2009 the applicant informed the Court that the
same area had been designated as a security risk area for the seventh
consecutive time.
B. Relevant domestic law
1. Statute
a. The Criminal Code
- Article
184 of the Criminal Code, in its relevant part, provides:
“1. Any person who intentionally fails
to comply with an order or demand made in accordance with a statutory
regulation by an official charged with supervisory powers or by an
official responsible for the detection or investigation of criminal
offences or duly authorised for this purpose, and any person who
intentionally obstructs, hinders or thwarts any act carried out by
such an official in the implementation of any statutory regulation,
shall be liable to a term of imprisonment not exceeding three months
or a second-category fine. ...”
b. The Municipalities Act
- Section
151b of the Municipalities Act provides:
“1. The local council (raad) may
by municipal bye-law authorise the Burgomaster to designate an area,
including buildings open to the public (and their grounds) situated
therein, as a security risk area in the event of a public order
disturbance caused by the presence of weapons, or if there is a
serious fear of such a disturbance occurring. In a security risk area
a public prosecutor may exercise the powers referred to in section
50, subsection 3, section 51, subsection 3 and section 52, subsection
3 of the Arms and Ammunition Act.
2. The Burgomaster shall not designate a
security risk area without first consulting with the public
prosecutor in the consultations referred to in section 14 of the 1993
Police Act (Politiewet 1993).
3. The designation of a security risk area is
of a limited duration and covers a geographical area that is no
greater than strictly necessary for maintaining public order.
4. The decision to designate a security risk
area must be recorded in writing and state both the area to which it
applies and its period of validity. If the situation is so urgent
that the Burgomaster is unable to record the decision in writing in
advance, he or she must both record the decision in writing and make
it public as quickly as possible.
5. The Burgomaster shall notify the local
council and the public prosecutor referred to in subsection 2 of the
designation of a security risk area as quickly as possible.
6. As soon as the public order disturbance
caused by the presence of weapons or the serious fear of such a
disturbance occurring as referred to in subsection 1 has abated, the
Burgomaster shall revoke the designation of the security risk area.
Subsection 5 applies mutatis mutandis.”
- Section
155 of the Municipalities Act, in its relevant part, provides:
“1. Any member of the council may put
questions orally or in writing to the Burgomaster and Aldermen or the
Burgomaster as the case may be (Een lid van de raad kan het
college of de burgemeester mondeling of schriftelijk vragen stellen.)
...”
- Section
155a of the Municipalities Act, in its relevant part, provides:
“1. The council may, at the proposal of
one or more of its members, order an investigation into the
administration carried out by the Burgomaster and Aldermen or the
Burgomaster as the case may be (het door het college of de
burgemeester gevoerde bestuur). ...”
c. The 1993 Police Act
- Section
14 of the 1993 Police Act provides:
“The Burgomaster and the public prosecutor shall
hold regular consultations with the head of the territorial unit of
the regional police force within whose territory the municipality or
part of it is located, and if necessary with the regional police
force commander (korpschef), about the discharge by the police
of their duties.”
d. The Arms and Ammunition Act
- Section
52(3) of the Arms and Ammunition Act provides:
“In areas that have been designated by the
Burgomaster as security risk areas in accordance with section 151b,
subsection 1 of the Municipalities Act, the public prosecutor may
order that any individual can be subjected to a search of his
clothing to establish whether he has firearms, ammunition or
offensive weapons in his possession. The public prosecutor’s
order shall describe the designated area and state the order’s
period of validity, which may not exceed twelve hours.
The order shall also explain the facts and circumstances that
form the basis for concluding that it is necessary to exercise the
power to subject any individual to a search of his clothing to
establish whether he has weapons or ammunition in his possession.”
2. Bye-law
- At
the relevant time, the 1994 general municipal bye-law (Algemene
Plaatselijke Verordening) of Amsterdam applied. Its section 2.5A
provided:
“In the event of a public order disturbance caused
by the presence of weapons, or if there is a serious fear of such a
disturbance occurring, the Burgomaster may designate public highways
and buildings (and their grounds) situated along them as a security
risk area.”
3. Administrative procedure
- According
to section 8:1 of the General Administrative Law Act (Algemene Wet
Bestuursrecht), anyone with a legal interest may challenge an
administrative decision before the Regional Court, provided that he
or she has first lodged an objection with the administrative body
that has taken the decision in issue (section 7:1). A further appeal
lies to the Administrative Jurisdiction Division of the Council of
State (at the relevant time, section 37 of the Council of State Act
(Wet op de Raad van State)).
4. Case-law
a. Supreme Court
- The
Supreme Court has held that a conviction under Article 184 § 1
of the Criminal Code is possible only if the order disobeyed by the
accused was given by an official within the limits of his or her
lawful authority (see its judgment of 11 December 1990, Netherlands
Law Reports (Nederlandse Jurisprudentie) 1990, no. 423). From
this it follows that the criminal court has a responsibility of its
own to determine whether the statutory regulation on which the order
is based is actually binding, and whether the order has been lawfully
given; if the issue is raised by the defence, the criminal court must
answer it, irrespective of whether or not the accused has first
addressed these matters before the competent administrative tribunals
(see the Supreme Court’s judgment of 24 September 2002,
Netherlands Law Reports 2003, no. 80).
b. Administrative Jurisdiction Division of
the Council of State
i. Den Helder
- In
a decision of 9 March 2005, Administrative Law Reports 2005, no. 251,
the Administrative Jurisdiction Division of the Council of State
dismissed an appeal lodged against the designation of much of the
centre of the town of Den Helder as a security risk area on Friday
and Saturday nights. Identifying the designation order as delegated
legislation (besluit van algemene strekking), it held that
persons wishing to contest such an order had to demonstrate an
individual interest which sufficiently distinguished them from
others. It noted that the appellant did not reside, or work, or carry
on a business in that area; was not compelled for any other reason to
remain there for any length of time; and had no rights to immovable
property there either. In view of, in particular, the times at which
the designation order was in force, the stated fact that the
appellant had been a resident of Den Helder for many years; went out
in the area concerned; and was wont to visit friends and family there
was insufficient to distinguish her individual interest from that of
others.
- Moreover,
no violation of Article 8 of the Convention or Article 2 of Protocol
No. 4 to the Convention could be found since there was no certainty
that the appellant would ever actually be searched, and since in any
case there was no particular need for the appellant to be within the
area concerned with any regularity; any interference with her rights
was therefore so uncertain that it could not be considered a
reasonably foreseeable consequence of the designation order. That
being so, there was no “arguable claim” for the purposes
of Article 13 of the Convention either.
ii. Utrecht
- In
its above-mentioned decision of 9 November 2005 (Administrative Law
Reports 2006, no. 90), the Administrative Jurisdiction Division
allowed an appeal brought by the Burgomaster of Utrecht against the
suspension of a designation order by the provisional measures judge
(voorzieningenrechter) pending reconsideration of the order on
its merits. It found that the Burgomaster had a wide margin of
appreciation in assessing the need for any such order after
consultation with the public prosecutor. It was for him or her to
balance the interests involved, including public order against
individual private life, against each other. The designation order
should be limited in time and in area to what was necessary to
maintain public order. The Burgomaster’s choices had to be
properly reasoned and proportionate to the interference with the
private life of anyone present in the area concerned.
- In
the particular case, these requirements had been met, given the
frequency of incidents involving the use of firearms in the area and
the number of weapons found during earlier searches. Although
searches constituted an interference with the right to respect for
“private life” within the meaning of Article 8 of the
Convention, given the margin of appreciation of the domestic
authorities the Burgomaster could reasonably consider such measures
in pursuit of the interests of public safety and the prevention of
disorder or crime to answer a “pressing social need” and
to meet the requirement of proportionality.
COMPLAINTS
- The
applicant complained under Article 8 of the Convention that the
designation of a security risk area by the Burgomaster violated his
right to respect for privacy as it enabled a public prosecutor to
conduct random searches of people over an extensive period in a large
area without this mandate being subject to any judicial review.
- The
applicant further complained of a violation of Article 2 of Protocol
No. 4, alleging that his freedom of movement was unlawfully
restricted by the Burgomaster’s decisions.
- Finally,
the applicant complained under Article 14 that he had been
discriminated against as he was considered not to have a direct
interest in the Burgomaster’s decision because he merely
carried out volunteer work and maintained social contacts in the
security risk area, unlike those who had paid jobs in the area.
THE LAW
A. The Government’s preliminary objections
1. Non-exhaustion
- The
Government pointed to the fact that the applicant had not lodged any
appeal against the Burgomaster’s decision of 1 June 2006
dismissing his objection against the renewal of the designation of
the relevant part of Amsterdam as a security risk area. While
admittedly the designation order there in issue was due to run for
only the rest of the month, until 30 June 2006, so that it
was unlikely that domestic remedies could be pursued to a conclusion
within that time, it followed from the relevant case-law that the
Administrative Jurisdiction Division had not considered itself
prevented from considering the merits of designation orders after
they had lost their validity.
- In
the Government’s view also, established case-law should not
stand in the way of the requirement that domestic remedies be
exhausted. It was right and proper for domestic tribunals to maintain
consistency in their case-law; however, arguments might differ from
case to case, and it did not follow that existing precedent would
have predetermined the outcome of any appeal that the applicant might
have lodged.
- Furthermore,
the applicant had invoked Article 14 for the first time before the
Court; he had not relied on that provision at any time in the
domestic proceedings.
- The
applicant countered that administrative tribunals in the Netherlands
were generally reluctant to make statements of principle on decisions
that had lost their force; in any case, the Administrative
Jurisdiction Division had been dismissive of cases very like his own,
even denying them an effective remedy within the meaning of Article
13 of the Convention. In this connection, the applicant cited the
Administrative Jurisdiction Division’s decision in the Den
Helder case (paragraphs 42 and 43 above).
- The
Court has summed up the applicable principles as follows (Akdivar
and Others v. Turkey [GC], 16 September 1996, §§ 66-69,
Reports of Judgments and Decisions 1996 IV, case-law
references omitted):
“66. Under [former] Article 26 [now
Article 35 § 1] normal recourse should be had by an applicant to
remedies which are available and sufficient to afford redress in
respect of the breaches alleged. The existence of the remedies
in question must be sufficiently certain not only in theory but in
practice, failing which they will lack the requisite accessibility
and effectiveness (...).
Article 26 [now Article 35 § 1] also requires that
the complaints intended to be made subsequently at Strasbourg should
have been made to the appropriate domestic body, at least in
substance and in compliance with the formal requirements and
time-limits laid down in domestic law and, further, that any
procedural means that might prevent a breach of the Convention should
have been used (...).
67. However, there is, as indicated above, no
obligation to have recourse to remedies which are inadequate or
ineffective. In addition, according to the ‘generally
recognised rules of international law’ there may be special
circumstances which absolve the applicant from the obligation to
exhaust the domestic remedies at his disposal (...). The rule
is also inapplicable where an administrative practice consisting of a
repetition of acts incompatible with the Convention and official
tolerance by the State authorities has been shown to exist, and is of
such a nature as to make proceedings futile or ineffective (...).
68. In the area of the exhaustion of domestic
remedies there is a distribution of the burden of proof. It is
incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one available in theory and in
practice at the relevant time, that is to say, that it was
accessible, was one which was capable of providing redress in respect
of the applicant’s complaints and offered reasonable prospects
of success. However, once this burden of proof has been satisfied it
falls to the applicant to establish that the remedy advanced by the
Government was in fact exhausted or was for some reason inadequate
and ineffective in the particular circumstances of the case or that
there existed special circumstances absolving him or her from the
requirement (...). One such reason may be constituted by the national
authorities remaining totally passive in the face of serious
allegations of misconduct or infliction of harm by State agents, for
example where they have failed to undertake investigations or offer
assistance. In such circumstances it can be said that the burden of
proof shifts once again, so that it becomes incumbent on the
respondent Government to show what they have done in response to the
scale and seriousness of the matters complained of.
69. The Court would emphasise that the
application of the rule must make due allowance for the fact that it
is being applied in the context of machinery for the protection of
human rights that the Contracting Parties have agreed to set up.
Accordingly, it has recognised that Article 26 [now Article 35 §
1] must be applied with some degree of flexibility and without
excessive formalism (...). It has further recognised that the rule of
exhaustion is neither absolute nor capable of being applied
automatically; in reviewing whether it has been observed it is
essential to have regard to the particular circumstances of each
individual case (...). This means amongst other things that it must
take realistic account not only of the existence of formal remedies
in the legal system of the Contracting Party concerned but also of
the general legal and political context in which they operate as well
as the personal circumstances of the applicants.”
- It
is worth adding that the European Court of Human Rights is intended
to be subsidiary to the national systems safeguarding human rights
and it is appropriate that the national courts should initially have
the opportunity to determine questions of the compatibility of
domestic law with the Convention and that, if an application is
nonetheless subsequently brought to Strasbourg, the European Court
should have the benefit of the views of the national courts, as being
in direct and continuous contact with the forces of their countries
(see Burden v. the United Kingdom [GC], no. 13378/05, §
42, ECHR 2008).
- Turning
to the present case, the Court first notes that, as the Government
correctly point out, the applicant failed to raise any discrimination
complaint in the domestic proceedings. It follows that in so far as
it is based on Article 14 of the Convention, the application must be
rejected pursuant to Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
- As
to the remaining complaints, the Court accepts that a remedy was
available to the applicant in the sense that he might have appealed
against the Burgomaster’s decision to the Regional Court and
then to the Administrative Jurisdiction Division of the Council of
State. It is not convinced, however, that such proceedings would have
offered him any real prospect of success. The Court cannot ignore
either the similarity between the present applicant’s
complaints under Article 8 of the Convention and Article 2 of
Protocol No. 4, dismissed by the Administrative Jurisdiction Division
in the Den Helder case (paragraphs 42 and 43 above), or the wide
margin of appreciation under Article 8 which the Administrative
Jurisdiction Division leaves to the Burgomaster in the Utrecht case
(paragraphs 44 and 45 above).
- The Court has held many times that an applicant cannot
be regarded as having failed to exhaust domestic remedies if he or
she can show, by providing relevant domestic case-law or any other
suitable evidence, that an available remedy which he or she has not
used was bound to fail (see, among many other authorities, Kleyn
and Others v. the Netherlands [GC], nos. 39343/98,
39651/98, 43147/98 and 46664/99, § 156, ECHR 2003 VI). Such
is the case here; it follows that the Government’s preliminary
objection of non-exhaustion must be dismissed for the remainder.
2. Victim status
- The
Government argued in the alternative that the designation of a
security risk area or the issuing of a stop-and-search order had not
in itself constituted an interference with the applicant’s
private life or liberty of movement. Since the event complained of,
several preventive search operations had been conducted; in none of
them, apparently, had the applicant been subjected to further
attempts to search him. This was enough to show that the likelihood
of an interference with the applicant’s rights was so minimal
as to deprive him of the status of victim.
- The
applicant replied that the designation orders and the preventive
search orders applied to almost the entire old city centre of
Amsterdam, not merely the areas where incidents involving the use of
arms were most to be expected. It remained possible that he might
again walk into “a trap set by the police” and made to
undergo a further attempt to search him.
- The
Court reiterates that Article 34 of the Convention does not institute
for individuals a kind of actio popularis for the
interpretation of the Convention; it does not permit individuals to
complain against legislation in abstracto simply because they
feel that it contravenes the Convention. In principle, it is not
sufficient for individual applicants to claim that the mere existence
of the legislation violates their rights under the Convention; it is
necessary that the law should have been applied to their detriment
(principle stated in Klass and Others v. Germany, 6 September
1978, § 33, Series A no. 28; see as a recent authority and
mutatis mutandis Tănase v. Moldova [GC], no. 7/08,
§ 104, ECHR 2010 (extracts), with further references).
Nevertheless, Article 34 entitles individuals to contend that
legislation violates their rights by itself, in the absence of an
individual measure of implementation, if they run the risk of being
directly affected by it; that is, if they are required either to
modify their conduct or risk being prosecuted, or if they are members
of a class of people who risk being directly affected by the
legislation (see Marckx v. Belgium, 13 June 1979, § 27,
Series A no. 31, and Open Door and Dublin Well Woman v. Ireland,
29 October 1992, § 44, Series A no. 246 A; see as a recent
authority Tănase, cited above, loc. cit.).
- The
Court is not disposed to doubt that the applicant was engaged in
lawful pursuits for which he might reasonably wish to visit the part
of Amsterdam city centre designated as a security risk area. This
made him liable to be subjected to search orders should these happen
to coincide with his visits there. The events of 19 February 2004
(see paragraph 6 above), followed by the criminal prosecution
occasioned by the applicant’s refusal to submit to a search,
leave no room for doubt on this point. It follows that the applicant
can claim to be a “victim” within the meaning of Article
34 of the Convention and the Government’s alternative
preliminary objection must be rejected also.
B. Article 8 of the Convention
- The
applicant complained that the public prosecutor had been given the
power, within the part of Amsterdam city centre designated as a
security risk area and for up to twelve hours at a time, to invade
his privacy without any form of prior judicial control. He argued
that this constituted a violation of Article 8 which, in its relevant
part, provides as follows:
“1. Everyone has the right to respect
for his private ... life ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
1. Existence of an “interference”
- The
Government denied the existence of an “interference” with
the applicant’s right to respect for his private life since he
had never been subjected to a search order issued under the
designation order in issue.
- The
applicant disagreed.
- The
Court again observes that within the security risk area the
applicant, like any member of the public, could be stopped anywhere
and at any time, without notice and without any choice as to whether
or not to submit to a search. It follows that there has been an
“interference” with the applicant’s rights under
Article 8 and that that Article is thus applicable (see Gillan and
Quinton v. the United Kingdom, no. 4158/05, § 64, ECHR 2010
(extracts)).
2. Whether the interference is “in accordance
with the law”
- The
Government stressed the differences between the present case and that
of Gillan and Quinton, in which the Court had found a
violation of Article 8 of the Convention on the ground that the
stop-and-search powers there in issue were not “in accordance
with the law”.
- The
basis in domestic law was constituted by section 151b of the
Municipalities Act, taken together with section 52 of the Arms and
Ammunition Act. Both these texts, as well as the municipality
bye-laws of Amsterdam, were public and therefore sufficiently
accessible. Finally, there were safeguards in place, namely in that a
municipality bye-law, subject to democratic control, was required to
authorise the Burgomaster to give designation orders; in that the
Burgomaster had to consult the public prosecutor and the chief of
police before giving a designation order; and in that the local
council and the public prosecutor must be kept informed of the
issuing and revocation of any designation order.
- As
to its practical implementation, a further order, given by the public
prosecutor, was required for the designation order to be put into
effect; and in that the public prosecutor’s order was limited
in time, to a maximum of twelve hours which could not be extended.
Furthermore, the order of the public prosecutor had to explain the
facts and circumstances on which it was based, making reference to
recent reports. Police officers tasked with stopping and searching
individuals were briefed beforehand and debriefed afterwards; they
were given no latitude in deciding when to exercise their powers,
which ruled out any risk of arbitrariness.
- Legal
protection was available to the individual in the form of an
objection to the Burgomaster, followed if needed by appeals to
administrative tribunals. Furthermore, any person who refused to be
searched might be prosecuted under Article 184 § 1 of the
Criminal Code, but this required the criminal courts to assess the
lawfulness of both the prosecutor’s preventive search order and
the Burgomaster’s designation order.
- Finally,
external evaluations were held – annually, in Amsterdam –
to review the need, application and effects of these instruments.
- The
applicant complained in general terms of the ineffectiveness of the
judicial review available, whether by the administrative tribunals or
the criminal courts.
- The Court reiterates its well-established case-law
that the wording “in accordance with the law” requires
the impugned measure both to have some basis in domestic law and to
be compatible with the rule of law, which is expressly mentioned in
the preamble to the Convention and inherent in the object and purpose
of Article 8. The law must thus be adequately accessible and
foreseeable, that is, formulated with sufficient precision to enable
the individual – if need be with appropriate advice – to
regulate his or her conduct. For domestic law to meet these
requirements, it must afford adequate legal protection against
arbitrariness and accordingly indicate with sufficient clarity the
scope of discretion conferred on the competent authorities and the
manner of its exercise. The level of precision required of domestic
legislation – which cannot in any case provide for every
eventuality – depends to a considerable degree on the content
of the instrument in question, the field it is designed to cover and
the number and status of those to whom it is addressed (see, among
many other authorities, S. and Marper v. the United Kingdom
[GC], nos. 30562/04 and 30566/04, §§ 95-96, ECHR 2008; see
also Gillan and Quinton, cited above, §§ 76-77, with
further references).
- In
Gillan and Quinton, the Court found the applicable law
deficient in several respects. Thus, within all of his jurisdiction
or part of it a senior police officer could authorise stop-and-search
measures for reasons of “expediency” rather than
“necessity”. Such orders, while subject to confirmation
by the Secretary of State, in practice were always confirmed
unaltered. Although the exercise of the powers of authorisation and
confirmation was subject to judicial review, the width of the
statutory powers “[was] such that applicants [faced] formidable
obstacles in showing that any authorisation and confirmation [were]
ultra vires or an abuse of power” (loc. cit., §
80). The validity of an authorisation, while limited in time, was
renewable indefinitely – and at least one authorisation had
been renewed again and again. The temporal and geographical limits
provided by the legislature failed in practice to act as any real
check on the issuing of authorisations by the executive (loc.
cit., § 81). An Independent Reviewer had the power only to
report on the general operation of the statutory provisions but not
the right to cancel or alter authorisations (loc. cit., §
82). Finally, and in the Court’s view most strikingly, it was
left to the discretion of the individual police officer to decide
whether to search any particular person; no reasonable suspicion of
wrongdoing was required. This had made possible the arbitrary use of
the powers in question; statistics showed that there had been cases
of this (loc. cit., §§ 83-86).
- In
so far as the applicant complains that the interference with his
right to respect for his private life was not “in accordance
with the law”, his complaint is limited to what he submits is
the ineffectiveness of the judicial remedies available. In
particular, he argues that an essential guarantee in the form of
prior judicial control was missing.
- The
Court has accepted in past cases that prior judicial control,
although desirable in principle where there is to be interference
with a right guaranteed by Article 8, may not always be feasible in
practice; in such cases, it may be dispensed with provided that
sufficient other safeguards are in place (see, mutatis mutandis,
Klass and Others, cited above, § 56; and Rotaru v.
Romania [GC], no. 28341/95, § 59, ECHR 2000 V). In
certain cases, an aggregate of non-judicial remedies may replace
judicial control (see, mutatis mutandis, Leander v. Sweden,
26 March 1987, §§ 64-65, Series A no. 116).
- In
the Netherlands, all pertinent legal texts are in the public domain
(compare and contrast § 30 of Gillan and Quinton). Before
the public prosecutor can order police to carry out a search
operation, a prior order designating the area concerned must be given
by an administrative authority of the municipality, the Burgomaster.
That order must in turn be based on a bye-law adopted by an elected
representative body, the local council, which has powers to
investigate the use made by the Burgomaster of his or her authority
(see paragraphs 34-36 above).
- Review
of a designation order, once it has been given, is available in the
form of an objection to the Burgomaster, followed if necessary by an
appeal to the Regional Court and a further appeal to the
Administrative Jurisdiction Division of the Council of State (see
paragraph 40 above).
- The
criminal courts have a responsibility of their own to examine the
lawfulness of the order and the scope of the authority of the
official who gave it. It is a defence for anyone charged with failing
to comply with a search order issued by or on behalf of the public
prosecutor to state that the order was not lawfully given; the
criminal court must answer it in its judgment (see paragraph 41
above).
- The
above is sufficient for the Court to conclude that the interference
complained of was “in accordance with the law”.
3. Whether the interference pursued a “legitimate
aim”
- It
is not in dispute that the “legitimate aims” pursued by
the interference found are public safety and the prevention of
disorder or crime.
4. Whether the interference was “necessary in a
democratic society”
- The
Government stated that every year Amsterdam was the scene of large
numbers of crimes involving the use of firearms and other weapons.
These included attempted and actual murder and manslaughter,
robberies and muggings, threats, assault and unlawful possession of
firearms.
- Among
the measures taken to remedy the situation were a general amnesty for
persons who handed in their illegal weapons, the use of surveillance
cameras, and a robust policy to tackle antisocial behaviour by young
people. Borough supervisors worked closely with street coaches,
housing associations’ community representatives and
neighbourhood co-ordinators. All this had helped to reduce crimes
involving firearms and other weapons in Amsterdam, but it had not
been sufficient: the incidence of violent crime remained high. There
was thus a pressing social need for further, more far-reaching
measures.
- The
designation of the most affected parts of Amsterdam as security risk
areas within which, during non-renewable periods of up to twelve
hours, members of the public might be searched for weapons could not
be seen as a disproportionate interference with individual rights.
The Government observed that although the applicant had been ordered
to submit to a search and prosecuted for failing to do so, he had
been spared punishment or a non-punitive order; moreover, he had
never been searched pursuant to the designation order here in issue,
that of 7 October 2005.
- The
applicant countered that the incidence of violent crime was largely
limited to certain areas, such as the red-light district, the central
station and the concentrations of restaurants, pubs and places of
entertainment. He accepted that there might be a need for security
measures in those parts of the city, but he questioned the need to
designate almost all of the old centre of Amsterdam as a security
risk area in which he might be ordered to undergo a search. In
particular, he questioned the accuracy and pertinence of the
statistics on which the designation order was based. He claimed in
addition to suffer from shyness and anxiety, which led him to avoid
public places for fear of running into a police trap a second time.
- The
Court is faced, not for the first time, with the need to balance two
interests protected by Article 8 against each other. The first is the
protection of the individual against arbitrary interference by public
authority, which the Court has consistently held to be the essential
object of Article 8. The second is constituted by the protection of
“private life” in the sense of the physical and moral
integrity of those within the jurisdiction of the Contracting States,
which imposes on the Contracting States not merely the right but the
duty to take positive action (principle stated in X and Y v. the
Netherlands, 26 March 1985, § 23, Series A no. 91; see,
among many other authorities, Murray v. the United Kingdom, 28
October 1994, § 91, Series A no. 300 A; and as a recent
example, Sandra Janković v. Croatia, no. 38478/05, §
44, 5 March 2009). Indeed the very wording of Article 8 recognises
this in that “public safety” and “the prevention of
disorder or crime” are listed in Article 8 § 2 as
“legitimate aims” which, subject to a necessity test,
exceptionally justify interferences with the rights set out in the
first paragraph.
- The Court reiterates the fundamentally subsidiary role
of the Convention. The national authorities have direct democratic
legitimation (see Hatton and Others v. the United Kingdom [GC],
no. 36022/97, § 97, ECHR 2003 VIII); moreover, by
reason of their direct and continuous contact with the vital forces
of their countries, they are in principle better placed than an
international court to evaluate local needs and conditions (see,
mutatis mutandis, Handyside v. the United Kingdom,
7 December 1976, § 48, Series A no. 24; Müller
and Others v. Switzerland, 24 May 1988, § 35, Series A no.
133; Wingrove v. the United Kingdom, 25 November 1996, §
58, Reports of Judgments and Decisions 1996 V; Fretté
v. France, no. 36515/97, § 41, ECHR 2002 I; A, B and
C v. Ireland [GC], no. 25579/05, § 223, ECHR 2010-...).
- It
is therefore primarily the responsibility of the national authorities
to make the initial assessment as to where the fair balance lies in
assessing the need for an interference in the public interest with
individuals’ rights under Article 8 of the Convention.
Accordingly, in adopting legislation intended to strike a balance
between competing interests, States must in principle be allowed to
determine the means which they consider to be best suited to achieve
the aim of reconciling those interests (see Odièvre
v. France [GC], no. 42326/98, § 49, ECHR
2003 III).
- An interference will be considered “necessary in
a democratic society” for a legitimate aim if it answers a
“pressing social need” and, in particular, if it is
proportionate to the legitimate aim pursued and if the reasons
adduced by the national authorities to justify it are “relevant
and sufficient”. While it is for the national authorities to
make the initial assessment in all these respects, the final
evaluation of whether the interference is necessary remains subject
to review by the Court for conformity with the requirements of the
Convention (see, among other authorities, Chapman v. the United
Kingdom [GC], no. 27238/95, § 90, ECHR 2001 I; and S.
and Marper, cited above, § 101).
- A margin of appreciation must be left to the
competent national authorities in this assessment. The breadth of
this margin varies and depends on a number of factors including the
nature of the Convention right in issue, its importance for the
individual, the nature of the interference and the object pursued by
the interference.
- The
Court will consider firstly the factual and legal framework within
which the preventive search system operates.
- The
Court accepts, as the Government have stated and the applicant has
not denied, that the designation of security risk areas within which
preventive searches are possible is complementary to other measures
aimed at forestalling violent crime, including a general amnesty for
persons who handed in their illegal weapons, the use of surveillance
cameras, and a robust policy to tackle antisocial behaviour by young
people.
- Section
151b of the Municipalities Act (see paragraph 34 above) makes the
powers of the Burgomaster to designate a security risk area dependent
on the prior adoption of a bye-law by the local council. It further
provides that such an area shall be no greater than strictly
necessary and that the order shall be revoked when it is no longer
needed. The use which the Burgomaster makes of his or her powers
remains subject to review and control by the local council, an
elected representative body (sections 155 and 155a of the
Municipalities Act; see paragraphs 35 and 36 above).
- Before
a designation order is given, the Burgomaster must consult with the
public prosecutor and the local police commander. Preventive search
operations must be ordered by the public prosecutor, whose powers are
defined by section 52(3) of the Arms and Ammunition Act. The public
prosecutor must issue an order defining the area within which
preventive searching is to be carried out. No single executive
authority can therefore alone order a preventive search operation.
Furthermore, the public prosecutor’s order may be valid for no
more than twelve hours, and is not renewable (see paragraph 38
above).
- Finally,
the Court cannot but have regard to the level of crime in the area
concerned. The Court is not disposed to doubt the numbers of
weapons-related incidents stated by the Burgomaster in the
designation order of 7 October 2005 (see paragraph 16 above). It is
apparent from the figures given by the Burgomaster, and also from the
information contained in the evaluation reports of the COT Institute
for Safety and Crisis Management (see paragraphs 22-31 above), that
preventive searches are having their intended effect of helping to
reduce violent crime in Amsterdam.
- For
the applicant there was always a possibility that, whenever he
ventured into the part of the city centre of Amsterdam designated as
a security risk area, he could, while the designation order remained
in force, be subjected to a preventive search which he might well
have found unpleasant and inconvenient at the very least. However,
given the legal framework surrounding such searches and above all the
fact, as apparent, that they were effective for their intended
purpose, the Court finds that the reasons given by the Government are
“relevant” and “sufficient”. The domestic
authorities were entitled to consider that the public interest
outweighed the subjective disadvantage which the interference with
his private life caused to the applicant.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
C. Article 2 of Protocol No. 4
- The
applicant alleged a violation of his freedom of movement within the
part of Amsterdam city centre subject to the designation order. He
submitted that, after the events of 19 February 2004 (see paragraph 6
above), he felt inhibited by his fear of being again forced to
undergo the same humiliating treatment. He relied on Article 2 of
Protocol No. 4 to the Convention, which, in its relevant part,
provides as follows:
“1. Everyone lawfully within the
territory of a State shall, within that territory, 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
law and are necessary in a democratic society in the interests of
national security or public safety, for the maintenance of ordre
public, for the prevention of crime, for the protection of health
or morals, or for the protection of the rights and freedoms of
others.
4. The rights set forth in paragraph 1 may
also be subject, in particular areas, to restrictions imposed in
accordance with law and justified by the public interest in a
democratic society.”
- The
Government argued that there had been no restriction placed on the
applicant’s liberty of movement in the area concerned. The
applicant’s complaint stemmed solely from his fear that he
might be stopped and searched by the police if he entered the
security risk area; he was however free to come and go as he pleased.
- The
applicant did not respond to this argument.
- The
Court agrees with the Government that while there was a chance that
the applicant might be put to the inconvenience of being ordered to
undergo a search by the police within the security risk area, he was
in no way prevented from entering that area, moving within it and
leaving it again. His liberty of movement was therefore not affected.
- It
follows that this complaint too is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Marialena Tsirli Josep Casadevall
Deputy Registrar President
