AS TO THE ADMISSIBILITY OF
Application No. 12344/86
by Johannes BECKERS
against the Netherlands
The European Commission of Human Rights sitting in private
on 25 February 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 June 1986 by
Johannes BECKERS against the Netherlands and registered on 25 August
1986 under file No. 12344/86;
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 on 23 November 1952.
He is at present residing in Vlissingen, the Netherlands. In the
proceedings before the Commission he is represented by Mr. C. Kool, a
lawyer practising in Middelburg.
The facts, as submitted by the parties, may be summarised as
follows.
Since 1981 the applicant has lived in a caravan which is
equipped for permanent living accommodation. By definition, such a
caravan comes within the scope of the Mobile Home Act (Woonwagenwet)
of 1968.
In January 1983 the applicant was residing in his mobile home
on a parking place in Vrouwenpolder in the municipality of Veere, the
Netherlands. At the request of the Municipal Authorities of Veere, by
letter dated 21 April 1983, the Provincial Authorities (Gedeputeerde
Staten) of Zeeland advised the applicant and his companion that they
intended to use their powers under Sections 32-34 of the Mobile Home
Act to vacate the applicant's mobile home by force (bestuursdwang).
They pointed out that the applicant and his companion were occupying
the mobile home illegally. Their occupancy could not be legalised
under the Mobile Home Act because neither the applicant nor his
companion fulfilled the conditions of Section 18 (1)(b) of the Mobile
Home Act. This Section provides that a permit to occupy a mobile home
can be granted 1) if the applicant practises one of the trades listed
in a certain Decree and if he can be considered to be dependent on the
occupation of a mobile home for the practice of this trade; or 2) if
the applicant or his spouse or one of the persons under whose
authority they have been, has had a permit to occupy a mobile home
before, or if the applicant can prove that he or one of these other
persons has occupied a mobile home before. In the latter case a
permit granted because of the practice of a trade or occupation cannot
be considered (Section 18 (2) Mobile Home Act).
The Provincial Authorities offered the applicant and his
companion the opportunity to leave the mobile home of their own accord
before 21 May 1983.
As they failed to do so, the Provincial Authorities
communicated a decision to the applicant and his companion on 16 June
1983 to the effect that they would vacate the applicant's mobile home
by force if they had not left it within thirty days.
On 1 July 1983 the applicant appealed against this decision to
the Provincial Authorities. He maintained, inter alia, that the
Mobile Home Act was not in conformity with Article 8 of the Convention,
Article 1 of the First Protocol and Article 2 para. 1 of the Fourth
Protocol and that he was discriminated against.
On the same date the applicant appealed to the President of
the Judicial Division of the Council of State (Voorzitter van de
Afdeling Rechtspraak van de Raad van State), requesting the suspension
of the decision of the Provincial Authorities.
By decision of 22 July 1983 the President of the Judicial
Division of the Council of State refused to suspend the decision of
the Provincial Authorities.
By decision of 30 August 1983, sent to the applicant on
14 October 1983, the Provincial Authorities declared the applicant's
appeal unfounded. They held, inter alia, that, if everyone had
the right permanently to occupy a mobile home, there would be chaos.
They considered, therefore, that Section 18 of the Mobile Home Act was not
in violation of the Convention.
On 9 November 1983 the applicant appealed against this
decision to the Judicial Division of the Council of State (Afdeling
Rechtspraak van de Raad van State) which, by decision of 2 January
1986, dismissed the applicant's appeal. It held, inter alia, that the
licence system which the Mobile Home Act provided for the occupation
of mobile homes was necessary for the purpose of controlling this form
of living and for improving the social welfare of mobile home
dwellers. For that reason, it considered the permit system and the
decision of the Provincial Authorities of 16 June 1983 to be necessary
and appropriate for the protection of public order. Moreover, it held
that the limitation of the applicant's right to respect for his home
was in accordance with Article 8 para. 2 of the Convention and that
the encroachment on the use of property was necessary within the
meaning of Article 1, second sentence, of the First Protocol. As
regards Article 14 of the Convention, the Council held that the
condition embodied in Section 18 (1)(b)(2) could be considered as an
objective and reasonably justifiable means to achieve the aim of
improving the social welfare of mobile home dwellers; such a condition
did not amount to an unjustified distinction in treatment under
Article 14.
COMPLAINTS
1. The applicant complains of a violation of his right to
respect for his private life, his family life and his home, as
guaranteed by Article 8 para. 1 of the Convention.
He submits that this right presupposed that a person may
decide for himself how he wished to arrange his private and family
life, and his living accommodation. He wished to live in a mobile
home, but, because he did not satisfy any of the conditions contained
in the Mobile Home Act, he was not granted a permit to do so. The
permit system was such that, even where none of the restrictions
contained in para. 2 of Article 8 of the Convention applied, a permit
to live in a mobile home could not be granted to persons such as
himself who do not satisfy any of the conditions of Section 18 para.
1(b) of the Mobile Home Act.
2. Invoking Article 1 of Protocol No. 1, the applicant
complains of an interference with his right to peaceful enjoyment of
his possessions, viz. his mobile home.
3. The applicant complains that, because he is not allowed to
live in his mobile home, he is denied the right to liberty of movement
or freedom to choose his residence. He invokes Article 2 of Protocol
No. 4.
4. The applicant complains that under the Mobile Home Act
permission to occupy a mobile home can only be granted where a person
belongs to a certain professional group or where a person, his spouse
or one of the persons under whose authority they have been has had
permission previously to reside in a mobile home or has previously
resided in a mobile home. Restrictions of the right to live in a
mobile home should be applied in a non-discriminatory manner. However,
in the Mobile Home Act a distinction was made on the ground of birth.
The applicant invokes Article 14, taken together with Article 8 of the
Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 30 June 1986 and registered
on 25 August 1986.
On 13 April 1989 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and the merits of the
application.
The Government's observations were received by letter dated 19
July 1989 and the applicant's observations were dated 28 September
1989.
THE LAW
1. The applicant complains that, since he is not eligible
for a permit to occupy a mobile home, his right to respect for his
private life, his family life and his home has been violated. He
invokes Article 8 para. 1 (Art. 8-1) of the Convention.
The applicant submits that the right to respect for his
private life, his family life and his home presupposed the free choice
for every citizen to decide how to lead his private life and how to
organise his family life as well as the right to choose the type of
dwelling he wished. Denying this choice to a citizen amounted to the
most radical form of interference with the exercise of his rights as
guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.
The Government argue that statutory limitations of the rights
set out in Article 8 para. 1 (Art. 8-1) were justified under para. 2
(Art. 8-2) by certain interests, e.g. those of the traditional mobile
home dwellers which were protected by the permit system under the
Mobile Home Act.
The Commission notes that the essence of the applicant's
complaint is directed against the requirements under the Mobile Home
Act. It does not relate to the manner of execution of the law by a
State authority, be it administrative or judicial. The Commission
must therefore direct its attention primarily to the contested
legislation itself, in order to determine whether it is compatible
with Article 8 (Art. 8) of the Convention. This does not mean that it
will examine the legislation in abstracto. The Commission must
confine its attention, as far as possible, to the concrete case before
it.
Article 8 para. 1 (Art. 8-1) of the Convention provides:
"Everyone has the right to respect for his private and
family life, his home and his correspondence."
The scope of the right to respect for private life is such
that it secures to the individual a sphere within which he can freely
pursue the development and fulfilment of his personality. The
Commission accepts that in the present case the applicant's right to
respect for his private life has been interfered with, as he is not
allowed to live in his mobile home.
It is true that a minority's life style may fall under the
protection of private life, family life or the home (cf. No. 9278/81 &
9415/81, Dec. 3.10.83, D.R. 35 p. 30). However, in the present case,
the applicant does not belong to the minority of traditional mobile
home dwellers nor is there any need for him to live in a mobile home.
The Commission recalls that Article 8 para. 2 (Art. 8-2) of the
Convention allows interference by a public authority with the exercise
of the right to respect for private life, provided such interference
is in accordance with the law and is necessary in a democratic society
for the prevention of disorder.
The Commission notes that under Section 14 of the Mobile Home
Act a permit is required if someone wants to live in a mobile home.
Under Section 18 of the Act such a permit can only be granted if the
applicant for a permit practises one of the trades listed in a certain
Decree and if he can be considered to be dependent on the occupation
of a mobile home for the practice of this trade, or if the applicant
for a permit or his spouse or one of the persons under whose authority
they have been, has had a permit to occupy a mobile home before, or if
the applicant for a permit can prove that he or one of these other
persons has occupied a mobile home before. In the present case, as
the applicant did not satisfy any one of the conditions mentioned in
Section 18 of the Mobile Home Act, a permit to occupy a mobile home
could not be granted to him. The interference with the exercise of
the right to respect for private life is, therefore, in accordance
with the law.
The Commission considers that the aim of prevention of
disorder pursued by the authorities in establishing the requirements
for a permit under the Mobile Home Act is a legitimate one.
The question which remains to be answered is whether or not
this restriction was "necessary in a democratic society".
In determining whether an interference was "necessary in a
democratic society" allowance should be made for the margin of
appreciation that is left to the Contracting States (Eur. Court H.R.,
W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121,
p. 27, para. 60 (b) and (d) ; Eur. Court H.R., Olsson judgment of 24
March 1988, Series A no. 130, pp. 31-32, para. 67). In particular, in
implementing social and economic policies the margin of appreciation
is a wide one (Eur. Court H.R., James and Others judgment of 21
February 1986, Series A no. 98, p. 32, para. 46).
In this perspective and having regard to the Commission's
above finding that the applicant cannot claim to belong to a minority
entitled to specific protection under Article 8 (Art. 8) of the
Convention, the Commission is of the opinion that the rules
established by the Mobile Home Act are not disproportionate to the
legitime aim pursued and are therefore necessary in a democratic
society.
The Commisson does not find it necessary separately to examine
whether, in the present case, there was also interference with the
applicant's right to respect for his family life or his home, since
such an interference would in any case be justified under Article 8
para. 2 (Art. 8-2) of the Convention for the same reasons.
In these circumstances the Commission finds that an
examination of this complaint, as it has been submitted, does not
disclose any appearance of a violation of Article 8 (Art. 8).
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant further complains that his right to the peaceful
enjoyment of his possessions is infringed upon, as he is not eligible
under the Mobile Home Act for a permit to occupy his mobile home. He
also contends that his eviction by force from his mobile home by the
authorities amounts to a violation of his right to peaceful enjoyment
of his possessions. He invokes Article 1 of Protocol No. 1 (P1-1) of the
Convention.
Article 1 of Protocol No. 1 (P1-1) provides as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to
the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with
the general interest or to secure the payment of taxes or
other contributions or penalties."
The Government submit that, in view of the shortage of
suitable sites for traditional mobile home dwellers, a permit system
had to be introduced. As the general interest dictated the
restriction on the applicant's use of his property, the Government
consider this measure to be justified under the second paragraph of
Article 1 of Protocol No. 1 (P1-1).
The Commission considers that there has been an interference
with the applicant's peaceful enjoyment of his possessions, within the
meaning of the first sentence of the first paragraph of Article 1 of
Protocol No. 1 (P1-1), since he was not granted a permit to occupy his
mobile home. But the Commission does not find that the present case
discloses any deprivation of the applicant's possessions, within the
meaning of the second sentence of the first paragraph of that
provision: the applicant has the possibility to sell his mobile home
or to use it himself as a holiday caravan, i.e. on a non-permanent
basis.
In examining whether an interference with property rights
falls within the ambit of the second paragraph of Article 1 of
Protocol No. 1 (P1-1), the Commission's task is to review the lawfulness,
purpose and proportionality of the restrictions in question
(Mellacher and others v. Austria, Comm. Report 11.7.88, para. 202).
The principle of proportionality, which is inherent in the Convention,
requires the Commission to determine whether, whilst recognising the
margin of appreciation afforded to the Contracting States, a fair
balance was struck between the general interest of the community and
the protection of the individual's rights (Eur. Court H.R., Sporrong
and Lönnroth judgment of 23 September 1982, Series A no. 52, p. 26,
para. 69).
The Commission notes that the applicant is not eligible for a
permit to occupy his mobile home, because he does not meet the
requirements of the Mobile Home Act. The Commission therefore finds
that the control of the use of property in the present case must be
regarded as lawful.
As for the purpose of the Dutch policy in respect of mobile
homes of which the Mobile Home Act forms a part, the Commission
accepts that this policy is in pursuance of the prevention of
disorder. It is thus, prima facie, in accordance with the general
interest.
Concerning the proportionality of the measure taken against
the applicant, the Commission takes into account the fact that the
applicant had never sought a permit to occupy a mobile home and that
he knew, or could have known, that he was not eligible for such a
permit. Furthermore, the applicant has not submitted that, in his
case, special circumstances existed which would warrant a departure
from the legitimate policy of the Dutch authorities in respect of
mobile homes.
In the light of these considerations, the Commission finds
that a proper balance has been struck between the applicant's personal
interest and the general interest. The control of the applicant's
property, which prevents him from using his mobile home as a permanent
living accommodation, is, therefore, in accordance with the
requirements of Article 1 of Protocol No. 1 (P1-1).
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant complains that he was denied liberty of movement
or freedom to choose his residence. He contends in particular that
the permit system, according to which he has been denied a permit, as
well as his subsequent eviction from his mobile home constitute a
violation of Article 2 of Protocol No. 4 (P4-2) of the Convention.
In the Government's submissions, the limitations of the
applicant's rights as guaranteed by Article 2 of Protocol No. 4 (P4-2)
are in accordance with the law and necessary in a democratic society,
since the population density in the Netherlands as well as the housing
shortage required regulating measures such as the Mobile Home Act with
its permit system. The Government therefore consider the restrictions
of the applicant's rights to be justified under para. 3 of Article 2
of Protocol No. 4 (P4-2-3).
The Commission is of the opinion that there has been no
interference with the applicant's right to move and to take up
residence. The applicant is only restricted from living in a mobile
home, but he is free to buy or rent a house wherever he wants in the
Netherlands.
It follows that this part of the application is 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 respect for his private life, his family life
and his home, his right to peaceful enjoyment of his possessions and
his right to liberty of movement or freedom to choose his residence.
In particular, the applicant observes that the birth criterion set out
in Section 18 of the Mobile Home Act made a discriminatory distinction
between traditional home dwellers and the rest of the population, as
only the former were entitled to a permit to live in a mobile home.
The applicant invokes Article 14 (Art. 14) of the Convention in
conjunction with Article 8 (Art. 8) of the Convention, Article 1 of
Protocol No. 1 (P1-1) and Article 2 of Protocol No. 4 (P4-2).
The applicant argues that the social aim pursued by the Mobile
Home Act, especially the birth criterion set out in Section 18,
provided no objective and reasonable justification, as the Government
could and should adopt another, non discriminatory, response to the
social needs of traditional mobile home dwellers. The applicant
concludes that the invoked violations have no justification.
The Government contend that the distinction drawn between the
group of traditional mobile home dwellers and the rest of the
population had an objective and reasonable justification. As the
traditional mobile home dwellers constituted a socially disadvantaged
group, the Dutch Authorities had pursued a socio-economic policy aimed
at integrating this group into society. The Mobile Home Act with its
permit system implemented this policy by offering them a certain
protection, which takes into consideration the needs of a special
group. Since the applicant does not belong to this group, there was
no discrimination within the meaning of Article 14 (Art. 14) of the
Convention.
The Commission refers to the case-law of the European Court of
Human Rights (Belgian Linguistic cases judgment of 23 July 1968,
Series A no. 6, p. 34, para. 10), according to which a difference of
treatment in respect of the enjoyment of a Convention right
constitutes discrimination contrary to Article 14 (Art. 14) of the
Convention only if it has no objective and reasonable justification,
or if there is no reasonable relationship of proportionality between
the means employed and the aim sought to be realised.
It is true that a difference of treatment exists between
persons who satisfy one of the conditions mentioned in Section 18 of
the Mobile Home Act, on the one hand, and persons who do not, on the
other.
However, the Commission considers that this difference in
treatment has an objective and reasonable justification since it seeks
to protect those who are dependent on a mobile home for the practice of
their trade as well as those who have habitually lived in mobile homes.
There is no indication, in the circumstances of the present case,
of a lack of proportionality between the policy of social integration
and the means employed to implement this policy.
The Commission concludes that the examination of the
applicant's complaint on this point does not reveal any appearance of
discrimination at variance with Article 14 (Art. 14) of the
Convention. This part of the application is consequently 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 Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy