AS TO THE ADMISSIBILITY OF
Application No. 22838/93
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. 22838/93;
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.
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 1993.
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 Rechts-
vordering) 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,
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. 11308/84, Dec. 13.4.86, 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. 11308/84 supra; No.
10358/83, Dec. 15.12.83, 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 ill-
founded 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.
...
2. 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.
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 ...
3. 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. 14+9+10+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."
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. 14+9+10) 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 President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy