AS TO THE ADMISSIBILITY OF
Application No. 20791/92
by Wijnanda Johanna SPRINGINTVELD
against the Netherlands
The European Commission of Human Rights sitting in private on
2 September 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. 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 24 September 1992
by Wijnanda Johanna SPRINGINTVELD against the Netherlands and
registered on 9 October 1992 under file No. 20791/92;
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
1. Particular circumstances of the case
The applicant is a Dutch citizen, born in 1948, and resides at
Amsterdam. Before the Commission she is represented by Mr. D.J. van der
Kuyp, a lawyer practising at Amsterdam.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1978 the applicant was granted benefits for a one parent
family (één-oudergezin) under the General Welfare Act (Algemene
Bijstandswet).
After having been informed by an anonymous person in November
1987 and January 1988 respectively that the applicant was gainfully
employed by the company X. while receiving welfare benefits, the
Special Control Department (Afdeling Bijzondere Controle) of the
Municipal Social Service (Gemeentelijke Sociale Dienst) of Amsterdam
decided to open an investigation. Following a verification of the
information through contact with the applicant's alleged employer, it
appeared that the applicant had in fact been paid commissions by this
company between 1985 and 1988.
On 21 April 1988 the applicant was questioned by an officer of
the Special Control Department on the suspicion of having committed
forgery within the meaning of Section 225 of the Criminal Code (Wetboek
van Strafrecht) by not declaring the above earnings in her statements
of income to the welfare authorities.
The applicant, after having been confronted with the results of
the investigation, admitted having received commissions from that
company and having failed knowingly and deliberately to declare these
earnings to the welfare authorities, but stated that she also had
incurred substantial expenses, inter alia, for that work. It was agreed
that she would return on 25 April 1988 in order to submit relevant
invoices.
On the basis of subsequent information the welfare authorities
obtained from the tax authorities, it also appeared that the applicant
had received undeclared income in 1984 from another company Y., which
company was dissolved in March 1985. It further appears that the
welfare authorities received information that she cohabited with her
- gainfully employed - friend.
When the applicant returned on 25 April 1988, she submitted
certain invoices and was questioned in respect of the undeclared income
in 1984 and was asked whether or not she cohabited with a gainfully
employed person. She admitted also having had certain earnings in 1984
which she had not declared to the welfare authorities and having a
friend, but denied cohabiting and sharing her household with him. The
officer questioning her then requested the applicant to co-operate in
an inspection visit to her house immediately after the interview.
Although the applicant was informed that, given her obligations under
Section 30 para. 2 of the General Welfare Act, a refusal might have
consequences for the continuance of her welfare benefits, she refused
to co-operate during this visit.
On 10 May 1988 the Special Control Department drew up a formal
report on the two interviews held on 21 and 25 April 1988.
Pursuant to Section 3 para. 4 of the General Welfare Act the
Welfare Department decided on 28 April 1988 to withdraw the applicant's
welfare benefits as from 1 May 1988, considering that, since she had
refused to co-operate in an investigation by the Special Control
Department, it could not be examined whether or not, and if so to which
extent, welfare benefits should be granted.
The applicant's objection (bezwaarschrift) against this decision
was rejected on 2 December 1988 by the Mayor and Aldermen (Burgemeester
en Wethouders) of Amsterdam.
The applicant's appeal of 12 December 1988 to the Provincial
Executive (Gedeputeerde Staten) of Noord-Holland was declared ill-
founded by the Appeals Commission for administrative disputes
(Commissie beroepszaken administratieve geschillen) of Noord-Holland
on 21 August 1989.
The applicant's subsequent appeal to the Administrative
Litigation Division of the Council of State (Afdeling voor de
Geschillen van Bestuur van de Raad van State) was rejected on
5 February 1992.
The Administrative Litigation Division noted that, under Section
30 para. 2 of the General Welfare Act, a person who has requested or
receives welfare benefits is obliged to submit all information relevant
for the granting or continuance of welfare benefits, and that, under
Article 3 para. 4 of the General Welfare Act, the Mayor and Aldermen
can terminate or reduce welfare benefits when a condition attached to
such benefits is not met.
Noting that the applicant's benefits had not been withdrawn on
the basis of information from an anonymous source, but following the
applicant's refusal to co-operate in an investigation into her personal
situation, the Litigation Division held that it was not contrary to
Section 30 of the General Welfare Act to investigate the personal
situation of a welfare beneficiary. It further found that, given the
nature of such an investigation and the applicant's failure to inform
the Welfare Department at her own initiative about relevant
circumstances, the Special Control Department could inspect the
applicant's home in order to examine her personal situation immediately
after the interview on 25 April 1988. Since the applicant had acted
contrary to her obligation under Section 30 para. 2 of the General
Welfare Act by refusing to co-operate in this inspection, it could not
be determined whether or not she qualified for welfare benefits. The
Litigation Division, therefore, concluded that her welfare benefits had
been lawfully withdrawn.
Insofar as the applicant alleged a violation of Article 8 of the
Convention, the Litigation Division considered that Section 30 of the
General Welfare Act was compatible with Article 8 of the Convention.
Having regard to Article 8 para. 2 of the Convention, it found that the
competence of the welfare authorities to investigate and the obligation
of welfare beneficiaries to provide information for welfare purposes
constituted justified interferences with the right to respect for
private and family life.
The applicant also relied on Article 6 of the Convention. She
argued that the evidence could not be founded only on the basis of
anonymous information and that she should have been given adequate time
and facilities for the preparation of her defence at the time the
interview had been held. With regard to this argument the Litigation
Division considered that, as the procedure only concerned the
assessment of the applicant's entitlement to welfare benefits and did
not concern a criminal charge, Article 6 paras. 2 and 3 of the
Convention were not applicable.
It further appears that the applicant was also charged by the
public prosecutor with a criminal offence and was convicted following
criminal proceedings.
2. Relevant domestic law
Section 3 para. 4 of the General Welfare Act, insofar as
relevant, provides:
[Dutch]
"Indien een voorwaarde niet is nagekomen, kunnen burgemeester en
wethouders de bijstand beëindigen of in afwijking van artikel 1
vaststellen. (...)."
[Translation]
"When a condition is not respected, the mayor and aldermen may
discontinue the welfare benefits or determine them in deviation
from section 1. (...)."
Section 5 para. 1 of the General Welfare Act reads:
[Dutch]
"Aan echtelieden, aan echtelieden met hun minderjarige kinderen,
aan een man met zijn minderjarige kinderen of aan een vrouw met
haar minderjarige kinderen, wordt de bijstand als gezinsbijstand
verleend."
[Translation]
"To spouses, to spouses with their minor children, to a man with
his minor children or to a woman with her minor children, welfare
benefits will be granted as benefits for a family."
Section 5a of the General Welfare Act, insofar as relevant,
reads:
[Dutch]
"1. De bijstand aan niet met elkaar gehuwde personen van
verschillend of gelijk geslacht die duurzaam een gezamenlijke
huishouding voeren, wordt vastgesteld op een overeenkomstige
wijze als bedoeld in artikel 5 tenzij het betreft bloedverwanten
in de eerste of tweede graad. Daarbij wordt rekening gehouden met
de middelen van deze personen tezamen.
2. Van een gezamenlijke huishouding, bedoeld in het eerste
lid, kan slechts sprake zijn indien twee ongehuwde personen
gezamenlijk voorzien in huisvesting dan wel op andere wijze in
elkaars verzorging voorzien.
(...)
4. Waar in deze wet overigens sprake is van gezin,
gezinsbijstand of artikel 5, wordt daaronder mede verstaan de in
het eerste lid van dit artikel bedoelde situatie."
[Translation]
"1. Welfare benefits for unmarried persons of different sexes
or the same sex, who have a permanent joint household, will be
determined as provided for in Section 5 unless it concerns
relatives in the first or second degree. The means of these
persons together will be taken into account in this respect.
2. A joint household within the meaning of para. 1 exists
where two unmarried persons jointly provide for housing
accommodation or in another way provide for each other's care.
(...)
4. Where elsewhere in this Act family, benefits for a family
or section 5 is mentioned, this will include the situation
referred to in the first paragraph of this section."
Section 30 of the General Welfare Act reads:
[Dutch]
"1. Het onderzoek dat aan een beslissing inzake de verlening
van bijstand voorafgaat, strekt zich niet verder uit dan tot
datgene, wat van belang is voor de verlening van bijstand.
2. De persoon ten wiens behoeve bijstand is gevraagd of wordt
verleend is verplicht om van al datgene wat van belang is voor
de verlening van bijstand of de voortzetting van verleende
bijstand mededeling te doen, zo mogelijk onder overlegging van
bewijsstukken."
[Translation]
"1. The investigation preceding a decision on the granting of
welfare benefits shall be limited to matters which are relevant
for the granting of welfare benefits.
2. The person for whom welfare benefits are requested or
granted is obliged to provide information, if possible under
submission of elements of proof, about all matters relevant for
the granting or continuation of benefits."
Section 47 of the General Welfare Act reads:
[Dutch]
"De bijstand wordt verleend ten laste van de gemeente, welker
burgemeester en wethouders hem hebben toegekend."
[Translation]
"Welfare benefits are granted at the expense of the municipality,
whose mayor and aldermen have granted them."
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
that she did not receive a fair hearing in that both the Provincial
Executive and the Administrative Litigation Division relied on
information, i.e. the anonymous information alleging that she cohabited
with a gainfully employed person, which is not mentioned in the report
of 10 May 1988.
2. The applicant further complains that the Administrative
Litigation Division unjustly found Article 6 paras. 2 and 3 of the
Convention inapplicable to the proceedings at issue. She submits that
her case resulted in both administrative and criminal proceedings. She
complains that there are no rules governing, and thus no judicial
control over, investigations at the homes of welfare beneficiaries,
although they are comparable to house search under criminal law.
3. The applicant finally complains under Article 8 of the Convention
that her obligation to allow the welfare authorities to visit her home
in order to investigate her personal situation on the penalty of losing
her welfare benefits constituted an unjustified interference with her
right to respect for her private and family life. She submits that the
welfare authorities had no ground for the suspicion that she cohabited
with a gainfully employed person and thus no legal basis for imposing
an inspection of her house. She further submits that there are no clear
legal rules on the alleged competence of the welfare authorities as
regards visits to the homes of welfare beneficiaries and the procedure
to be followed, and thus no judicial control over these visits. She
finally submits that during such visits the responsible welfare
officers investigate whether or not there are clothes or toilet
articles of possible cohabiting partners, sleeping-places and that they
question the children of the family concerned.
THE LAW
1. The applicant complains that she did not receive a "fair hearing"
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
She submits that the judicial authorities relied on certain information
which was not mentioned in the report of 10 May 1988.
Article 6 para. 1 (Art. 6-1) of the Convention reads:
"In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair (...) hearing (...) by a (...)
tribunal (...)".
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention is applicable to proceedings on entitlement to welfare
benefits, as such proceedings concern a determination of a civil right
within the meaning of that provision (cf. Eur. Court H.R., Salesi
judgment of 26 February 1993, Series A no 257-E, p. 59, para. 19).
The Commission observes that the applicant's welfare benefits
were not withdrawn on the basis of the information on her personal
situation, but following her refusal to allow the welfare authorities
to inspect her home in order to clarify her personal situation. The
Commission notes that in the proceedings on the lawfulness of the
decision to withdraw her welfare benefits the applicant was provided
with ample opportunity to state her case and finds no indication that
these proceedings were unfair.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant further complains that the Administrative
Litigation Division unjustly found Article 6 paras. 2 and 3
(Art. 6-2, 6-3) of the Convention inapplicable to the proceedings at
issue.
Article 6 paras. 2 and 3 (Art. 6-2, 6-3) of the Convention
provides:
"2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following
minimum rights:
a. to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him;
b. to have adequate time and facilities for the
preparation of his defence;
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means
to pay for legal assistance, to be given it free when the
interests of justice so require;
d. to examine or have examined witnesses against him
and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;
e. to have the free assistance of an interpreter if he
cannot understand or speak the language used in court."
The Commission observes that the administrative proceedings at
issue concerned the lawfulness of the withdrawal of the applicant's
welfare benefits for non-compliance with the General Welfare Act.
The Commission considers that such administrative proceedings
cannot be regarded as criminal proceedings following criminal charge.
The aim of these administrative proceedings was not to determine
whether or not the applicant was guilty of a criminal offence, but to
determine whether or not she qualified for welfare benefits. Moreover,
in separate criminal proceedings, the applicant was in fact charged and
convicted in connection with the facts at issue. It has, however, not
been argued that the latter proceedings were not in conformity with the
requirements of Article 6 (Art. 6) of the Convention.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant complains under Article 8 (Art. 8) of the
Convention that there has been an unjustified interference with her
right to respect for her family and private life, as regards the
proposed visit to her home.
Article 8 (Art. 8) of the Convention, insofar as relevant, reads
as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of (...) the economic well-being of the country, for the
prevention of (...) crime, for the protection of (...) the rights
and freedoms of others."
The Commission can only examine the personal situation of the
applicant and not the general scope of the laws applied in her case
(cf. No. 10491/83, Dec. 3.12.86, D.R. 51 p. 41).
The Commission observes that the welfare authorities requested
the applicant's permission for an inspection visit to her house in
order to verify whether or not she cohabited with a gainfully employed
person. Since the applicant refused to give her permission, her home
was not inspected and her statement as to her personal situation could
thus not be verified. Her welfare benefits were subsequently withdrawn
since the information the welfare authorities had at their disposal at
that moment was considered insufficient for continuing the payment of
welfare benefits to the applicant.
The Commission is of the opinion that the applicant's obligation
to permit an inspection of her home by the welfare authorities
constituted an interference with her rights under Article 8 para. 1
(Art. 8-1) of the Convention, as non-compliance with such an inspection
can - and in fact did - entail the loss of welfare benefits.
The question therefore arises whether this interference was
justified under para. 2 of this provision, namely whether it was "in
accordance with the law" and necessary in a democratic society for one
or more of the legitimate aims referred to in this provision.
As regards the question whether the interference was "in
accordance with the law", the Commission recalls that the law in
question should be accessible to the person concerned, who must be able
to foresee its consequences (cf. Eur. Court H.R., Kruslin judgment of
24 April 1990, Series A No. 176-A, p. 20, para. 26).
The Commission observes that the interference complained of was
based on Section 30 para. 2 of the General Welfare Act, which contains
a general obligation for welfare beneficiaries to disclose all
information relevant for entitlement to welfare benefits or the
continuance of such benefits.
The Commission notes that the Litigation Division held that it
was not contrary to Section 30 of the General Welfare Act to
investigate the personal situation of a welfare beneficiary. It further
found that, given the nature of such an investigation and the
applicant's failure to inform the Welfare Department at her own
initiative about relevant circumstances, the Special Control Department
could request the applicant to permit a visit to her home in order to
examine her personal situation immediately after the interview on
25 April 1988.
The Commission recalls that it is primarily the task of national
authorities to apply and interpret domestic law, but that the
Convention organs have a limited jurisdiction to control the manner in
which it is done (cf. No. 10689/83, Dec. 14.5.84, D.R. 37 p. 225). The
Commission does not consider the findings by the Litigation Division
in the present case to be arbitrary or unreasonable. The Commission,
therefore, accepts that the interference at issue was "in accordance
with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention.
As to the "necessity" of the interference at issue, the
Commission finds that, given the limited financial resources of welfare
or other social security schemes, it is not unreasonable for welfare
authorities to verify whether or not a petitioner or beneficiary
fulfils all requirements for entitlement to such benefits, or the
continuance thereof.
The Commission is therefore satisfied that the interference
complained of can reasonably be considered as being necessary in a
democratic society in the interests of the economic well-being of the
country, for the prevention of crime or for the protection of the
rights of others.
It follows that this complaint is also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy