AS TO THE ADMISSIBILITY OF
Application No. 11850/85
by G.G.
against the Netherlands
The European Commission of Human Rights sitting in private on
2 March 1987, the following members being present:
MM C.A NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mr F. MARTINEZ
Mr H.C. KRÜGER, Secretary to the Commission
Having regard to Art. 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 9 October 1985
by G.G. against the Netherlands and registered on
17 October 1985 under file No. 11850/85;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
&_THE FACTS&S
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant is a Dutch citizen, born on 25 March 1956 and at
present residing at Gouda, the Netherlands.
In the proceedings before the Commission he is represented by
Mr. E. Hummels, a lawyer practising at Utrecht.
The applicant was recognised as a conscientious objector by
Royal Decree of 10 April 1980.
The applicant started performing substitute civilian service
on 7 July 1980. As of 7 September 1981, when he still had to perform
five months and four days of service the applicant did not appear at
his work anymore, and did not react to a registered letter of
22 September 1980 in which he was ordered to report himself and to
continue his duties.
Thereupon, the applicant was convicted of unlawful absence
from work assigned to him under the Conscientious Objections Act
(Wet Gewetensbezwaren Militaire Dienst) and sentenced to seven weeks'
imprisonment by the Police Magistate (Politierechter) of the Regional
Court (Arrondissementsrechtbank) of The Hague.
The applicant appealed against this decision to the Court of
Appeal (Gerechtshof) of The Hague, which quashed the decision of the
Police Magistrate on 8 June 1984. The court, however, also convicted
the applicant of unlawful absence from work assigned to him under the
Conscientious Objections Act and sentenced him to a fine of Dfl. 1,500.-.
Thereupon, the applicant appealed to the Supreme Court (Hoge
Raad) but, on 18 June 1985, his appeal was rejected.
&_COMPLAINTS&S
The applicant complains that, as a conscientious objector, he
had to spend eighteen months and twenty days doing substitute
civilian service whereas the normal duration of military service is
fourteen months. The applicant claims that this amounted to a
violation of Article 4 of the Convention read in conjunction with
Article 14 of the Convention.
In addition, the applicant complains that, contrary to
Article 9 of the Convention, he has been punished for having
certain convictions.
&_THE LAW&S
1. The applicant has complained that substitute civilian service
he had to perform as a conscientious objector was four months and
twenty days longer than ordinary military service. He has invoked
Article 4 of the Convention in this respect, read in conjunction with
Article 14 (Art. 4+14) of the Convention.
Article 4 (Art. 4) of the Convention provides, inter alia:
"1. ...
2. No one shall be required to perform forced or
compulsory labour.
3. For the purpose of this Article the term "forced
or compulsory labour" shall not include:
...
b. any service of a military character or, in case
of conscientious objectors in countries where they are
recognised, service enacted instead of compulsory military
service; ..."
Article 14 (Art. 14) of the Convention reads:
"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
complements the other substantive provisions of the Convention and
Protocols. Although the application of Article 14 (Art. 14) of the Convention
does not presuppose a breach of those provisions, there can be no room
for its application unless the facts at issue fall within the ambit of
one or more of the latter (cf. Eur. Court H.R., Abdulaziz, Cabales and
Balkandali judgment of 28 May 1985, Series A no. 94, para. 71, p. 35).
The Commission finds that, although the Netherlands were not
obliged under Article 4 (Art. 4) of the Convention to recognise the applicant
as a conscientious objector, the applicant's complaints nevertheless
fall within the ambit of that Article, and Article 14 (Art. 14) of the
Convention is therefore applicable.
For the purposes of Article 14 (Art. 14) of the Convention, a
difference in treatment is discriminatory if it "has no objective and
reasonable justification", that is, if it does not pursue a "legitimate aim" or
if there is not a "reasonable relationship of proportionality between the means
employed and the aim sought to be realised" (cf. the above-mentioned Abdulaziz,
Cabales and Balkandali judgment, para. 72, p. 35).
The Commission considers that, in certain respects, someone
who has opted to do a substitute civilian service is in a comparable
position to someone who has to do military service. To this extent
there was a differential treatment in the present case.
The Commission has had regard to the reasons given for this
differential treatment by the Dutch courts, viz. that substitute
civilian service is generally considered as less arduous and that
there was a need to avoid refusal of military service for that reason.
In addition, the Commission notes the courts' finding that these
criteria also applied to the applicant and that the additional time
the latter had to serve was reasonably proportional to the different
nature of the two different services.
In view of the reasons given by the domestic courts, the
Commission is satisfied that the difference in treatment, consisting
of the longer period of substitute civilian service as compared with
ordinary military service, had a legitimate aim and was proportional
to the aim sought to be realised.
This part of the application must therefore be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant has further complained that the additional
period of substitute civilian service imposed on him constituted a
punishment of his convictions, amounting to a violation of his rights
under Article 9 (Art. 9) of the Convention, which provides:
"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.
2. Freedom to manifest one's religion or beliefs shall
be subject only to such limitations as are prescribed by law
and are necessary in a democratic society in the interests
of public safety, for the protection of public order, health
or morals, or for the protection of the rights and freedoms
of others."
The Commission recalls, however, that Article 4 para. 3 b) (Art. 4-3-b)
of the Convention expressly recognises that civilian service may be imposed on
conscientious objectors as a substitute for military service and that
objections of conscience do not entitle a person to exemption from such service
(cf. No. 7705/76, Dec. 5.7.77, D.R. 9 p. 196).
It follows that the remainder of the application must also
be rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)