AS TO THE ADMISSIBILITY OF
Application No. 11775/85
by N.C. VAN BUITENEN
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
27 September 1985 by N.C. van Buitenen against the Netherlands
and registered on 30 September 1985 under file No. 11775/85;
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 in 1960 and at present
residing at Amersfoort, the Netherlands.
In the proceedings before the Commission he is represented by
Mr. E. Hummels, a lawyer practising at Utrecht, the Netherlands.
The applicant performed national military service from
8 January 1980 until 25 November 1980, when he applied to be
recognised as a conscientious objector under the Conscientious
Objections Act (Wet Gewetensbezwaren Militaire Dienst).
On 19 June 1981, the Minister of Defence recognised the
applicant as a conscientious objector and released him from his
military service obligations. The applicant thereby became obliged,
under Section 9 para. 2 of the Conscientious Objections Act, to perform
substitute civilian service.
The applicant was subsequently informed that he had to perform
this substitute service from 1 February 1982 until 2 October 1982 at
the so-called Mobile Employment Force (Mobiele Werkgroep) of the
Ministry of Social Affairs and Employment at The Hague. Section 12 of
the Conscientious Objections Act stipulates that the duration of
substitute service is one-third longer than military service, but that
it must last a minimum of eighteen months.
The applicant started his work on 1 February 1982 but did not
appear at his work any more after 28 April 1982.
Thereupon, he was sentenced, in absentia, by the Police
Magistrate (Politierechter) in the Regional Court (Arrondissements-
rechtbank) of The Hague to three months' imprisonment, having been
convicted of more than two weeks' unlawful absence from the work
assigned to him under the Conscientious Objections Act.
The applicant appealed against this decision to the Court of
Appeal (Gerechtshof) of The Hague, whilst invoking Article 4 of the
Convention, read in conjunction with Article 14 of the Convention, as
well as Article 9 of the Convention.
On 26 June 1984, the Court of Appeal quashed the decision of
the Police Magistrate for technical reasons but also convicted the
applicant of unlawful absence from work under the Conscientious
Objections Act and sentenced him to two months' imprisonment.
With regard to the applicant's complaints under the
Convention, the Court considered that the difference in the duration
of service between the applicant's remaining military service and the
substitute civilian service was justified, also in the applicant's
case, by the different, and generally less arduous, character of
substitute service, and by the necessity to prevent attempts to avoid
military service for that reason. The Court further considered that
the work the applicant was obliged to carry out as a conscientious
objector did not exceed the limits of substitute service.
The applicant, thereupon, appealed to the Supreme Court (Hoge
Raad), again invoking Articles 4, 9 and 14 of the Convention.
However, on 18 June 1985, the Supreme Court rejected his appeal.
&_COMPLAINTS&S
The applicant complains that although, when he refused to
carry out the remainder of his military service, he had only three
months and fourteen days left to perform, he was obliged to carry out
substitute service for eight months and three days.
The applicant claims that there is no justification for the
extra time of service imposed on him and submits that this constituted
a violation of his rights under Article 4 of the Convention, read in
conjunction with Article 14 of the Convention. In addition, he
complains that his rights under Article 9 of the Convention have been
violated.
&_THE LAW&S
1. The applicant has complained that the duration of the
substitute civilian service he had to perform was more than twice the
duration of the remainder of his military service. He has invoked
Article 4 of the Convention in this aspect, 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
the applicant's remaining 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
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)