EHRM, 15-05-2012, nr. 49458/06

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 (voorlopigevoorziening) 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.

The municipality of Amsterdam commissioned the COT Institute for Safety and Crisis Management (COT InstituutvoorVeiligheids- 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.

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.

At the relevant time, the 1994 general municipal bye-law (AlgemenePlaatselijkeVerordening) of Amsterdam applied. Its section 2.5A provided:

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)).

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 Heldercase (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):

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.

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 actiopopularisfor 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 mutandisTănase 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.

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)).

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’.

It is not in dispute that the ‘legitimate aims’ pursued by the interference found are public safety and the prevention of disorder or crime.

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 vitalforces 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.