CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 juillet 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 33129/96                       by Hans Walter OLIVIEIRA                       against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 1 July 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 9 July 1996 by Hans Walter OLIVIEIRA against the Netherlands and registered on 24 September 1996 under file No. 33129/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:     THE FACTS        The applicant is a Dutch citizen, born in 1954, and residing in Amsterdam. Before the Commission he is represented by Mr Gerard P. Hamer, a lawyer practising in Amsterdam.        The facts of the case, as submitted by the applicant, may be summarised as follows.   A.    The particular circumstances of the case        On 6 November 1992 the Mayor (Burgemeester) of Amsterdam, basing himself on Section 219 of the former Municipality Act (Gemeentewet), imposed a prohibition order (verwijderingsbevel) on the applicant to the effect that the latter would not be allowed to enter a particular area, the so-called emergency area, of the city centre for fourteen days. The following events, which were referred to in the Mayor's decision, led to this decision.        It appeared from police reports that twice on 21 July, on 29 July, 12 August, 26 August and 10 September 1992 the applicant either had overtly used hard drugs or had had hard drugs in his possession in streets situated in the emergency area and that on each of those occasions the applicant had been ordered to leave the area for eight hours.        On 5 November 1992 the applicant had been heard by the police about his conduct and he had been told that he would either have to refrain from such acts which disturbed the public order (openbare orde) or have to stay away from the area. The applicant had further been informed that if he committed such acts again in the near future, the Mayor would be requested to impose a prohibition order for fourteen days on him. The applicant had told the police that as well as preparing and using drugs he also met his friends in the area concerned.        On 5 November 1992 the applicant had nevertheless overtly used hard drugs on one of the streets in the emergency area. He had once again been ordered to leave the area for eight hours and the police had subsequently requested the Mayor to impose a prohibition order for fourteen days on the applicant.        In the opinion of the Mayor the applicant would again commit acts disturbing the public order within the near future. In this respect the Mayor took account of the kind of conduct involved, i.e. acts seriously disturbing the public order, the repetition and continuity of this conduct, the statement of the applicant, the short period of time within which the acts concerned had been observed and the fact that the applicant had continued his disruptive behaviour despite the eight hour prohibition orders imposed on him and the warning given by the police. Finally, the Mayor noted that neither the applicant's home nor his place of work were situated in the area concerned.        The applicant filed an objection (bezwaarschrift) against the prohibition order with the Mayor. He submitted, inter alia, that the Mayor ought only to make use of the emergency powers granted to him pursuant to Section 219 of the former Municipality Act in exceptional situations. As the Mayor had been issuing prohibition orders for eight hours since 1983 and for fourteen days since 1989 it could no longer be argued that an exceptional situation was still in place. The Mayor had, moreover, had sufficient time to ensure that the emergency measures were enacted in a general municipal bye-law (Algemene Politie Verordening).        The applicant also stated that the prohibition order, which in his opinion constituted a criminal sanction, interfered with his right to liberty of movement and violated the principle of proportionality. In this respect he argued that he had always complied with the prohibition orders imposed on him for a duration of eight hours and that he therefore failed to understand why a prohibition order for fourteen days had suddenly been called for.        On 14 January 1993 a hearing took place before an advisory committee. During this hearing the representative of the Mayor stated that in 1992 3,300 prohibition orders for eight hours (compared to 2,130 in 1991) and 204 prohibition orders for fourteen days (111 in 1991) had been issued to people dealing in or using drugs or committing acts related to those activities. The representative further said that it was the intention to enact the power to issue prohibition orders in a general municipal bye-law.        On 8 March 1993 the committee advised the Mayor to reject the objection and to maintain the prohibition order. It considered, inter alia, that the disruption of public order in the area concerned was still such as to constitute an exceptional situation within the meaning of Section 219 of the former Municipality Act. In view of the seriousness and scale of the problems involved the committee found it unlikely that public order could sufficiently be maintained by normal methods and that for that reason the Mayor was entitled to use the powers granted to him under Section 219.        Having regard to the fact that the applicant had, within a short period of time, regularly committed acts which had disturbed the public order and that the prohibition orders for eight hours which had been issued had not prevented him from behaving in that manner, the committee further found that the imposition of a prohibition order for a duration of fourteen days had not been unreasonable. It did not agree with the applicant that the impugned measure constituted a penalty as it had been issued in order to maintain public order. The committee finally found that the interference with the applicant's right to liberty of movement had been justified.        By decision of 11 March 1993 the Mayor rejected the applicant's objection, adopting the reasoning applied by the advisory committee.        The applicant filed an appeal against the Mayor's decision with the Judicial Division (Afdeling Rechtspraak) of the Council of State (Raad van State) on 19 March 1993. In his appeal, which he elaborated by letter of 17 May 1993, he raised the same complaints as he had before the Mayor. In his written observations of 14 March 1994 the Mayor referred to the report drawn up by the advisory committee. A hearing took place before the Administrative Law Division (Afdeling Bestuursrechtspraak), the successor to the Judicial Division, on 23 January 1996.        On 14 May 1996 the Administrative Law Division rejected the applicant's appeal. It found that the imposition of orders in the circumstances enumerated in Section 219 of the former Municipality Act was not contrary to the Convention right invoked by the applicant since the restriction of this right for the purpose of maintaining public order had been provided for by law, and the concept of "law" included an order given by the Mayor pursuant to a law. The Division further held that in the instant case normal methods to restore and maintain public order could not be considered to have sufficed and that at the time of the impugned measure there had indeed existed an exceptional situation. Moreover, the Division agreed with the Mayor that there had been no relevant provision in a municipal bye-law or any other adequate legal instrument available.        The Division added, however, that it failed to see why, if the exceptional situation were to continue for some time to come, the possibility to issue prohibition orders for fourteen days could not be enacted by the Municipal Council (gemeenteraad) in a general municipal bye-law. It found that from the point of view of legal certainty and justification of Government actions it would be more appropriate to legislate rather than to issue orders based on the Mayor's emergency powers. Moreover, the fact that the prohibition orders were considered by the Mayor, the police and the prosecution authorities as an efficient instrument should not in itself be a reason to decide not to adopt a municipal regulation. If the possibility to issue prohibition orders was not now included in a bye-law to be adopted by the Municipal Council within a reasonable time, the Mayor would no longer be able to invoke the lack of such provision in a municipal regulation when it fell to be established whether an exceptional situation within the meaning of Section 219 of the Municipal Act still existed.        The Division finally held that in view of the facts on which the Mayor had based his decision, the prohibition order for fourteen days should be considered as no more than a preventative measure aimed at avoiding a continuing disturbance of public order. It concluded that the Mayor had not acted unreasonably in holding that the risk of the applicant again committing acts which disturbed the public order was so great that it required the imposition of a prohibition order for fourteen days.        Apart from the proceedings described above, the applicant was convicted by the Magistrate (Politierechter) of the Regional Court (Arrondissementsrechtbank) of Amsterdam on 8 December 1992 of having intentionally failed to comply with the prohibition order on 20 November 1992 which, pursuant to Section 184 of the Criminal Code (Wetboek van Strafrecht), constituted a criminal offence. He was sentenced to four weeks' imprisonment. Following an appeal to the Court of Appeal (Gerechtshof) of Amsterdam, which also convicted the applicant, an appeal in cassation was lodged with the Supreme Court (Hoge Raad). The cassation proceedings are currently still pending. These proceedings do not form part of the present application.   B.    Relevant domestic law and practice        At the relevant time Section 219 of the former Municipality Act provided as follows:   <Original>        "1. Ingeval van oproerige beweging, samenscholing of andere      stoornis der openbare orde of van ernstige rampen, dan wel van      ernstige vrees voor het ontstaan daarvan, is de burgemeester      bevoegd alle bevelen, die hij ter handhaving van de openbare orde      of ter beperking van gemeen gevaar nodig acht te geven.        ..."   <Translation>        "1.    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, the      Mayor is empowered to issue all orders which he deems necessary      for the maintenance of public order or the limitation of general      danger.        ..."        By letter of 4 July 1983 the Mayor of Amsterdam informed the Chief Superintendent (hoofdcommissaris) of the Amsterdam police that, in view of the situation in the city centre, the Chief Superintendent and police officers acting on the Mayor's behalf would be able to order people to leave a particular area within the city centre and not to return to it for eight hours. The Mayor considered that the designated city centre area continually attracted persons addicted to, and dealers in, hard drugs. The activities carried out by them, insofar as they related to drugs, disrupted public order, caused considerable nuisance and constituted an incessant threat to public life. For this reason the Mayor found that the situation existing in the area constituted a exceptional situation within the meaning of Section 219 of the former Municipality Act.        The Mayor extended the area of the city centre where these orders could be issued by letter of 25 July 1988. Subsequently, by letter of 8 March 1989, the Mayor also enabled the Chief Superintendent and his officers to order people to leave the designated city centre area for fourteen days. The instructions contained in the last letter were changed by letter of 13 November 1989 according to which prohibition orders for fourteen days could no longer be issued by the police on behalf of the Mayor but only by the Mayor himself.        A prohibition order for fourteen days could be imposed on a person if in the preceding six months five procès-verbaux or other reports had been drawn up by the police concerning acts committed by him which had disturbed the public order such as, inter alia:   - the possession and use of addictive substances appearing in Annex 1 to the Opium Act (Opiumwet; i.e. hard drugs) on the public highway; - dealing in addictive substances appearing in Annex 1 to the Opium Act on the public highway; - overt possession of knives or other banned objects insofar as this constituted a criminal offence pursuant to the general municipal bye- law or the Arms and Ammunition Act (Wet Wapens en Munitie); - committing the offence of Section 184 of the Criminal Code (Wetboek van Strafrecht; i.e. the deliberate failure to comply with an order given by a police officer) where the order that had not complied with was a prohibition order for eight hours; - acts of violence, thefts from cars on or along the public highway, overt selling on of stolen goods on or along the public highway, insofar as there was a connection between these offences and hard drugs.        At the occasion of a fourth procès-verbal being drawn up, the person concerned would be heard by a police sergeant about his disruptive behaviour and the reason for his (continued) presence in the emergency area. The police sergeant would issue a warning to the effect that if in the near future the person concerned again disrupted public order, the police would request the Mayor to impose a prohibition order for fourteen days.        In the Netherlands, a mayor of a town or city is appointed by the Queen (Section 65 of the former Municipality Act). Municipal regulations, such as general municipal bye-laws, are adopted by the Municipal Council (Section 168 former Municipality Act) which is elected by those inhabitants of the town or city who are eligible to vote in elections for the Lower House of Parliament (Article 129 of the Constitution).     COMPLAINTS        The applicant complains under Article 2 of Protocol No. 4 and Article 8 of the Convention of an unjustified interference with his rights to liberty of movement and respect for his private life. He submits in particular that this interference was not in accordance with the law since, firstly, the letters and instructions from the Mayor to the Chief Superintendent of police had not been published. Secondly, by 1992 the situation characterised by the Mayor as exceptional had become structural. As a result, Section 219 of the former Municipality Act no longer applied. It could similarly not be said that the imposition of prohibition orders pursued the aim of the maintenance of public order.        The applicant further submits that the prohibition order imposed on him interfered with his rights to freedom of religion and expression as guaranteed by Articles 9 and 10 of the Convention, in that the impugned measure prevented him from going to church and from participating in demonstrations in the designated area.        He finally invokes Article 6 of the Convention, complaining of the length of the proceedings. Under this provision he also argues that the prohibition order constituted a criminal sanction which had been imposed on him without a trial having taken place before a tribunal.     THE LAW   1.    The applicant complains of an unjustified interference with his rights to freedom of movement and respect for his private life. He invokes Article 2 of Protocol No. 4 and Article 8 (P4-2, 8) of the Convention which provide, insofar as relevant, as follows:   Article 2 of Protocol No. 4 (P4-2)        "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."   Article 8 (Art. 8) of the Convention        "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."        The applicant further complains under Article 6 (Art. 6) of the Convention of the length of the proceedings. Under the same provision he also submits that the prohibition order was a criminal sanction which was imposed on him without any kind of trial before a tribunal having taken place. Article 6 (Art. 6) of the Convention, insofar as relevant, reads as follows:        "1.    In the determination of his civil rights and obligations or      of any criminal charge against him, everyone is entitled to a      fair and public hearing within a reasonable time by an      independent and impartial tribunal established by law.   ...        2.     Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law.        3.     Everyone charged with a criminal offence has the following      minimum rights:              a.     to be informed promptly, ... and in detail, of the      nature and cause of the accusation against him;              b.     to have adequate time and facilities for the      preparation of his defence;              c.     to defend himself in person or through legal      assistance of his own choosing or, if he has not sufficient means      to pay for legal assistance, to be given it free when the      interests of justice so require;              d.     to examine or have examined witnesses against him and      to obtain the attendance and examination of witnesses on his      behalf under the same conditions as witnesses against him;              ..."        The Commission finds that it cannot, on the basis of the file, determine the admissibility of these complaints at this stage and considers that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Commission's Rules of Procedure, to give notice of these complaints to the respondent Government.   2.    The applicant alleges that the prohibition order imposed on him infringed his rights to freedom of religion and expression as guaranteed by Articles 9 and 10 (Art. 9, 10) of the Convention.        The Commission reiterates that according to Article 26 (Art. 26) of the Convention it may only deal with a complaint after all domestic remedies have been exhausted. The mere fact that an applicant has submitted his case to the competent court does not in itself constitute compliance with this rule. It is also required that the substance of any complaint made before the Commission should have been raised during the proceedings concerned. The Commission refers to its established case-law on this matter (cf. e.g. No. 12717/87, Dec. 8.9.88, D.R. 57, p. 196).        The Commission observes that in the present case the applicant did not complain, either formally or in substance, of a breach of Articles 9 and 10 (Art. 9, 10) of the Convention in the domestic proceedings. Consequently, the Commission finds that the applicant has not complied with the requirement of exhaustion of domestic remedies.        It follows that this part of the application is inadmissible under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.        For these reasons, the Commission,        DECIDES TO ADJOURN the examination of the applicant's      complaint of an unjustified interference with his rights to      freedom of movement and respect for his private life, as      well as his complaints that the proceedings exceeded a      reasonable time and that a criminal charge against him had      been determined without a trial having taken place before      a tribunal;        unanimously,      DECLARES INADMISSIBLE the remainder of the application.      M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber