AS TO THE ADMISSIBILITY OF. Application No /93 by Hermanus Joannes VAN DEN DUNGEN against the Netherlands

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1 AS TO THE ADMISSIBILITY OF Application No /93 by Hermanus Joannes VAN DEN DUNGEN against the Netherlands The European Commission of Human Rights sitting in private on 22 February 1995, the following members being present: Mr. H. DANELIUS, President Mrs. G.H. THUNE MM. G. JÖRUNDSSON S. TRECHSEL J.-C. SOYER H.G. SCHERMERS F. MARTINEZ L. LOUCAIDES J.-C. GEUS M.A. NOWICKI I. CABRAL BARRETO J. MUCHA D. SVÁBY Mr. K. ROGGE, 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 12 August 1993 by Hermanus Joannes VAN DEN DUNGEN against the Netherlands and registered on 29 October 1993 under file No /93; 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 national, born in 1943, and resides at Nijmegen, the Netherlands. Before the Commission he is represented by Mr. B.W.M. Zegers, a lawyer practising in Volendam, the Netherlands. The facts of the case, as submitted by the applicant, may be summarised as follows. On 29 January 1990 in summary proceedings before the President of the Regional Court (Arrondissementsrechtbank) of Middelburg the S. Foundation requested an injunction against the applicant, prohibiting him from finding himself within 250 metres of the abortion clinic which is run by the S. Foundation in the town of Groede, the Netherlands. The S. Foundation alleged that the applicant, several times per month, addressed visitors and employees, as they walked from the car park to the clinic, trying to persuade them not to have an abortion by way of showing them enlarged photographs of foetal remains in combination with images of Christ, by calling abortion "child murder" and the employees "murderers", and by handing out leaflets which also contained the said photographs. According to the S. Foundation this led to visitors arriving at the clinic shocked and upset, sometimes to such an extent that treatment had to be postponed.

2 The applicant maintained that he did not hinder the visitors or employees, that he left them alone if they did not accept the leaflets handed out to them, but that in any case he had the right to try and stop women from having an abortion, which he deems a crime against humanity, as part of his right to freedom of expression. The President, holding that the applicant's conduct towards the visitors, who would in any case be in a very vulnerable state of mind already, was impermissible and caused damage to the S. Foundation, as it had to offer extra assistance to its patients, granted the injunction for a period of six months. The applicant appealed against this decision to the Court of Appeal (Gerechtshof) of The Hague, arguing that the injunction violated his rights to freedom of expression, freedom to manifest his religion and freedom to liberty of movement. On 24 October 1991 the Court of Appeal upheld the decision of the President of the Regional Court. Following a hearing on 20 December 1992, the Supreme Court (Hoge Raad) rejected the applicant's appeal in cassation on 26 February In the Netherlands abortion is legal if carried out in accordance with the conditions laid down in the Termination of Pregnancy Act (Wet Afbreking Zwangerschap) and the Royal Decree on Termination of Pregnancy (Besluit Afbreking Zwangerschap) based on this Act. According to Article 1401 of the Netherlands Civil Code (Burgerlijk Wetboek) victims of a tort are entitled to damages, but may also ask for a declaratory judgment or an injunction by which the defendant is either forbidden or ordered to do something. Under Article 289 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) the President of the Regional Court, in cases requiring immediate measures, is competent to grant such injunctions in summary proceedings (kort geding). COMPLAINTS The applicant submits that the injunction prohibiting him from handing out leaflets and showing photographs, which aim at expressing the applicant's religiously inspired opinions about abortion, in the vicinity of an abortion clinic violates his rights to freedom of thought, conscience, religion and expression. He invokes Articles 9 and 10 of the Convention. The applicant further complains of a breach of Article 2 of Protocol No. 4 to the Convention, as he is of the opinion that the restriction upon his right to liberty of movement cannot be justified. The applicant finally maintains that, as it is normal in the Netherlands to be addressed and handed leaflets by all kinds of people without the Dutch authorities acting against this, he is discriminated against contrary to Article 14 of the Convention. THE LAW 1. The applicant complains that the injunction against him prevents him from manifesting his beliefs, invoking Article 9 (Art. 9) of the Convention which reads, so far as relevant: "1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance...." The Commission recalls that Article 9 (Art. 9) of the Convention primarily protects the sphere of personal beliefs and religious creeds,

3 i.e. the area which is sometimes called the forum internum. In addition, it protects acts which are intimately linked to these attitudes, such as acts of worship or devotion which are aspects of the practice of a religion or belief in a generally recognised form (cf. No /84, Dec , D.R. 46 p. 200). However, in protecting this personal sphere, Article 9 (Art. 9) of the Convention does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief. The Commission has constantly held that the term 'practice' in Article 9 para. 1 (Art. 9-1) does not cover each act which is motivated or influenced by a religion or belief (cf. No /84 supra; No /83, Dec , D.R. 37 p. 142). The Commission notes that the applicant's activities were primarily aimed at persuading women not to have an abortion. The Commission considers that the activities at issue do not constitute the expression of a belief within the meaning of Article 9 para. 1 (Art. 9-1) of the Convention. It follows that this part of the application is manifestly illfounded and must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention. 2. The applicant also complains that the injunction against him constitutes an interference with his right to freedom of expression under Article 10 (Art. 10) of the Convention, and that such interference is not justified under Article 10 para. 2 (Art. 10-2) of the Convention. Article 10 (Art. 10) of the Convention, so far as relevant, provides: "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society,... for the protection of the... rights of others..." In the present case the applicant was prohibited from addressing people and handing out leaflets in the direct vicinity of the abortion clinic. The Commission considers that such a measure constitutes an interference with the applicant's right to freedom of expression under Article 10 para. 1 (Art. 10-1). The Commission must next consider whether this interference was justified under Article 10 para. 2 (Art. 10-2) of the Convention. In the first place the Commission considers that the interference was prescribed by law, in particular by Article 289 of the Code of Civil Procedure and Article 1401 of the Civil Code, authorising the President of the Regional Court in summary proceedings to grant injunctions by which the defendant is either forbidden or ordered to do something. The interference was aimed at the protection of the rights of others, namely of the S. Foundation and of the visitors to and the employees of the clinic run by the S. Foundation. The Commission finds therefore that the interference had a legitimate aim under Article 10 para. 2 (Art. 10-2) of the Convention. The Commission must finally examine whether the interference was necessary in a democratic society.

4 The Commission recalls that the word "necessary" in para. 2 of Article 10 (Art. 10) implies the existence of a "pressing social need" and that the Contracting States have a certain margin of appreciation in assessing whether such a need exists (cf. Eur. Court H.R., Lingens judgment of 8 July 1986, Series A no. 103, para. 39). The Commission further recalls that this margin of appreciation is, however, subject to a European supervision embracing both the legislation and the decisions applying it, even those given by an independent court. In particular, it must be determined whether in the light of the case as a whole the interference complained of is "proportionate to the legitimate aim pursued" and whether the reasons adduced by the national authorities to justify it are "relevant and sufficient" (cf. Eur. Court H.R., Sunday Times judgment of 26 November 1991, Series A no. 217, para. 50). The Commission notes that in the present case the injunction against the applicant was granted for a limited duration and a specified, limited area. The Commission notes in particular that the injunction was not aimed at depriving the applicant of his rights under Article 10 (Art. 10) of the Convention but merely at restricting them in order to protect the rights of others. Taking these factors together, the Commission finds that the interference was proportionate to the legitimate aim pursued in that it can reasonably be considered "necessary" for the protection of the rights of others. It follows that this part of the application must also be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 3. The applicant further alleges a violation of his right to liberty of movement within the meaning of Article 2 of Protocol No. 4 (P4-2) to the Convention, which provides, so far as relevant: "1. Everyone lawfully within the territory of a State shall... have the right to liberty of movement No restrictions shall be placed on the exercise of these rights other than such as are in accordance with the law and necessary in a democratic society... for the protection of the rights and freedoms of others...." The Commission finds that the interference with the applicant's right to liberty of movement was justified under para. 3 of this provision on the same grounds as stated in respect of the applicant's complaint under Article 10 (Art. 10) of the Convention. The Commission concludes therefore that this part of the application must likewise be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 4. Finally, the applicant complains of discrimination in respect of his right to freedom of thought, conscience, religion, expression and liberty of movement in that the Dutch authorities do not stop other persons from addressing people in the street and handing out leaflets. He invokes Article 14 of the Convention in conjunction with Articles 9 and 10 and Article 2 of Protocol No. 4 (Art P4-2) to the Convention. Article 14 (Art. 14) of the Convention reads as follows: "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

5 The Commission recalls that Article 14 (Art. 14) of the Convention has no independent existence, but plays an important role by supplementing the other provisions of the Convention and the Protocols. Article 14 (Art. 14) safeguards individuals, placed in similar situations, from discrimination in the enjoyment of the rights set forth in those other provisions. The Commission has found above that there has been no interference with the applicant's right to manifest his belief within the meaning of Article 9 (Art. 9) of the Convention. It considers that no question of discrimination arises in this respect. The Commission furthermore notes that the applicant, when complaining of discrimination as regards his freedom of expression and liberty of movement, does not suggest that activities similar to those carried out by him in the vicinity of the abortion clinic, would not be subject to an injunction if carried out by other people. He only refers to the distribution of leaflets in unspecified circumstances by other kinds of people. He has thus failed to show with sufficient clarity in what respect in his opinion the interference complained of amounted to discrimination contrary to Article 14 (Art. 14). The Commission therefore finds no appearance of a violation of Article 14 of the Convention in conjunction with Article 9 or 10 (Art ) of the Convention or Article 2 of Protocol No. 4 (Art. 14+P4-2). It follows that this part of the application must again be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission by a majority DECLARES THE APPLICATION INADMISSIBLE. Secretary to the Second Chamber (K. ROGGE) President of the Second Chamber (H. DANELIUS)

AS TO THE ADMISSIBILITY OF. Application No /96 by Bruno POLI against Denmark

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