AS TO THE ADMISSIBILITY OF
Application No. 30300/96
by Johan Henk TALMON
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 26 February 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, 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 17 October 1995
by Johan Henk TALMON against the Netherlands and registered on
27 February 1996 under file No. 30300/96;
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 in 1955, and residing in
Delft, the Netherlands. Before the Commission he is not represented by
a lawyer.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. The particular circumstances of the case
The applicant is currently unemployed and has been in receipt of
benefits pursuant to the Social Assistance Scheme for the Unemployed
(Rijksgroepregeling Werkloze Werknemers, hereinafter referred to as the
Assistance Scheme) since 1 June 1984. The Assistance Scheme stipulates
that an unemployed person will be eligible for benefits if he attempts
to obtain and is willing to accept employment deemed suitable for him.
The applicant considers that the only employment suitable for him is
that of "independent scientist and social critic" and that he is unable
to find employment as such. He submits that he has serious and
unsurmountable conscientious objections against all other employment.
The competent authorities twice informed the applicant by letter
that if he did not attempt to find other employment which was also
considered suitable for him he risked having his benefits reduced. On
31 December 1990 the Mayor and Aldermen (Burgemeester en Wethouders)
of Delft decided to reduce the applicant's unemployment benefits by 18%
for a period of three months in view of the fact that he had failed to
comply with the obligation to look for suitable employment. The
applicant filed an objection (bezwaarschrift) against this decision on
25 February 1991.
On 24 June 1991 the Mayor and Aldermen rejected the objection and
the applicant filed an appeal with the Provincial Executive
(Provinciale Staten) of Zuid-Holland. This appeal was rejected on
25 February 1992. The applicant then filed an appeal with the
Administrative Law Division (Afdeling Bestuursrechtspraak) of the
Council of State (Raad van State).
Meanwhile, on 13 August 1991, the Mayor and Aldermen of Delft
decided to reduce the applicant's unemployment benefit by 24% for a
period of three months since he still failed to look for suitable work.
The applicant filed an objection against this decision also.
On 29 October 1991 the Mayor and Aldermen rejected the objection.
The applicant's subsequent appeal to the Provincial Executive was
rejected on 2 July 1992 and the applicant filed a second appeal with
the Administrative Law Division of the Council of State.
A hearing before the Administrative Law Division took place in
both cases on 22 September 1994. In two separate decisions of
29 February 1995, communicated to the applicant on 19 April 1995, the
Administrative Law Division rejected the appeals.
The Administrative Law Division held that the Assistance Scheme
was based on the principle that every person is responsible for
providing for his own means of living and that it followed from this
principle that an unemployed person is expected to display active
efforts to obtain employment. As a consequence, a number of conditions
which had to be complied with in order for a person to become eligible
for unemployment benefits had been included in the Assistance Scheme,
such as the requirement that the unemployed person, according to his
ability, attempts to obtain paid employment. The Administrative Law
Division considered that it had appeared that the applicant had not
displayed sufficient effort in this respect.
The applicant's appeals to the Administrative Law Division were
examined by a single judge, Mrs G., who is a former State Secretary for
Social Affairs and Employment (Staatssecretaris voor Sociale Zaken en
Werkgelegenheid). According to the applicant, Mrs G. has been involved
in the introduction into the Assistance Scheme of the possibility to
reduce benefits in cases where recipients fail to accept suitable
employment.
B. Relevant domestic law and practice
The Council of State has a Legislation Division, which provides
the Government with advice on proposed legislation, and an
Administrative Law Division, which acts as an administrative court in
first and final resort and as court of appeal.
Councillors usually take part in the activities of both
divisions.
According to Section 8:15 of the Administrative Law Act (Algemene
Wet Bestuursrecht) a party may challenge a judge on the ground that the
latter appears to lack impartiality.
Pursuant to Section 8:16 para. 1 of the Administrative Law Act
the request to replace a judge should be submitted as soon as the party
concerned became aware of facts or circumstances which led to the
appearance of a lack of impartiality.
COMPLAINTS
1. The applicant complains in the first place that by reducing his
unemployment benefits the authorities are forcing him to accept
employment other than that of independent scientist and social critic.
He submits that he has conscientious objections against all other types
of employment. He invokes Articles 4 para. 2, 9 and 10 of the
Convention.
2. The applicant further complains under Article 6 para. 1 of the
Convention of the length of the proceedings. In this respect he submits
that the authorities had been aware of his refusal to look for and
accept other types of employment and that they did not decide to reduce
his benefits until seven years after he had first been granted them.
3. The applicant also argues that in the light of the former
position of the single judge Mrs G. of the Administrative Law Division
his civil rights have not been determined by an independent and
impartial tribunal within the meaning of Article 6 para. 1 of the
Convention. In this respect he invokes the Court's judgment in the case
of Procola v. Luxembourg (judgment of 29 September 1995, Series A
no. 326).
4. Finally, the applicant complains under Article 13 of the
Convention.
THE LAW
1. The applicant complains that as a result of the reduction of his
unemployment benefits he is forced to accept employment to which he has
conscientious objections. He invokes Articles 4 para. 2, 9 and 10
(Art. 4-2, 9, 10) of the Convention which, insofar as relevant, provide
as follows:
Article 4 para. 2 (Art. 4-2)
"2. No one shall be required to perform forced or compulsory
labour."
Article 9 (Art. 9)
"1. Everyone has the right to freedom of thought, conscience
and religion; ..."
Article 10 (Art. 10)
"1. Everyone has the right to freedom of expression."
The Commission notes that in order to qualify for unemployment
benefits pursuant to the Assistance Scheme, the applicant was required
to look for and accept employment which was deemed suitable for him.
Since he refused to comply with this condition, his benefits were
temporarily reduced. It does not appear, however, that the applicant
was in any way forced to perform any kind of labour or that his refusal
to look for other employment than that of independent scientist and
social critic made him liable to any other measures than the reduction
of his unemployment benefits. In these circumstances, the Commission
cannot find that the present complaint raises any issues under
Articles 4 para. 2, 9 and 10 (Art. 4-2, 9, 10) of the Convention.
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 also complains under Article 6 para. 1 (Art. 6-1)
of the Convention of the length of the proceedings. This provision,
insofar as relevant, provides as follows:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law. ..."
The Commission considers, in the first place, that it cannot
accept the applicant's contention that the proceedings at issue started
in 1984 when he was first granted unemployment benefits pursuant to the
Assistance Scheme. The applicant was not affected by the authorities'
opinion that he did not comply with the requirement to look for
suitable employment until they decided, for the first time on
31 December 1990, to reduce his benefits partially and temporarily.
Accordingly, the proceedings started on 25 February 1991 when he filed
an objection against the decision to reduce his benefits and they ended
on 29 February 1995 when the Administrative Law Division rejected the
appeal. The proceedings thus lasted four years and four days.
In the light of the criteria established by case-law (cf. e.g.
Eur. Court HR, Vernillo v. Italy judgment of 20 february 1991, Series
A no. 198, p. 12, para. 30) and having regard to the circumstances of
the present case, the Commission considers that the length of the
proceedings at issue was not excessive and did not fail to meet the
"reasonable time" requirement.
It follows that this part 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.
3. The applicant further complains, also under Article 6 para. 1
(Art. 6-1) of the Convention, that his civil rights were not determined
by an independent and impartial tribunal. In this respect he submits
that the single judge of the Administrative Law Division who dealt with
his appeal had, in her former capacity as State Secretary for Social
Affairs and Employment, been involved in the introduction into the
Assistance Scheme of the possibility to reduce benefits in cases where
recipients fail to accept suitable employment. The applicant invokes
the Court's judgment in the case of Procola v. Luxembourg (op. cit.).
The Commission recalls in the first place that, unlike the
present case, the case of Procola concerned the fact that four members
of the Luxembourg Conseil d'Etat had carried out both advisory and
judicial functions in the same case (op. cit., p. 16, para. 45). The
Commission notes that in the present complaint it has not been alleged
that the single judge Mrs G. of the Administrative Law Division who
decided on the applicant's appeals in the present case had carried out
any function in respect of the subject matter of the appeals in her
capacity of member of the Council of State.
Furthermore, the Commission reiterates that according to Article
26 (Art. 26) of the Convention it may only deal with an application
after all domestic remedies have been exhausted. This rule of
exhaustion of domestic remedies, which dispenses States from answering
before an international body for their acts before they have had an
opportunity to put matters right through their own legal system, is one
of the generally recognised principles of international law (Eur. Court
HR, De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971,
Series A no. 12, p. 29, para. 50).
The mere fact that an applicant has submitted his case to the
competent court does not in itself constitute compliance with this
rule. It is also required that the substance of any complaint made
before the Commission should have been raised during the proceedings
concerned. The Commission refers to its established case-law on this
matter (cf. No. 12717/87, Dec. 8.9.88, D.R. 57, p. 196).
The Commission observes that in the present case the applicant
neither tried to challenge the single judge of the Administrative Law
Division, nor raised his complaint under Article 6 para. 1 (Art. 6-1)
of the Convention in his proceedings before the tribunal. By failing
to do so, he did not provide the Administrative Law Division with the
opportunity to remedy the violation alleged against it. Consequently,
the Commission finds that the applicant has not complied with the
requirement of exhaustion of domestic remedies.
It follows that this part of the application must be rejected
under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.
4. Finally, the applicant invokes Article 13 (Art. 13) of the
Convention which reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls that Article 13 (Art. 13) has been
interpreted by the European Court of Human Rights as requiring a remedy
in domestic law only in respect of grievances which can be regarded as
"arguable" in terms of the Convention (cf., e.g., Boyle and Rice v. the
United Kingdom judgment of 21 June 1988, Series A no. 131, p. 23, para.
52). However, having regard to its above conclusions in respect of the
Convention complaints submitted the Commission finds that the applicant
does not have any arguable claims.
It follows that this part of the application 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.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy