AS TO THE ADMISSIBILITY OF
Application No. 12915/87
by Johannes Karel ZELISSE
against the Netherlands
The European Commission of Human Rights sitting in private
on 13 April 1989, the following members being present:
MM. S. TRECHSEL, Acting President
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 9 March 1987
by Johannes Karel ZELISSE against the Netherlands and registered
on 12 May 1987 under file No. 12915/87;
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
The applicant is a Dutch citizen, born in 1960 in Delft, the
Netherlands and presently residing in Cambridge, the United Kingdom.
In the proceedings before the Commission he is represented by
Mr. J.H.B. Hulshof, a retired naval officer.
Since 31 October 1983 the applicant, an engineer, has lived in
the United Kingdom.
By letter of 10 December 1985 the applicant requested the
Minister of Defence of the Netherlands to grant him exemption from
military service. He submitted that his employer in Cambridge would
dismiss him if he were drafted and that it would be very difficult for
him to find a new job after his period of service, because of the
extremely fast developing technology in his field of work.
By letter of 29 January 1986 the Deputy Minister
(Staatssecretaris) of Defence informed the applicant of his decision
not to grant him an exemption from military service.
By letter of 19 February 1986 the applicant appealed to the
Crown. He submitted, inter alia, that under Dutch law dismissal for
fulfilling compulsory military service was not allowed. English law
did not contain a similar provision.
On 24 November 1986, the Crown, in accordance with the advice
of the Administrative Litigation Division of the Council of State
(Afdeling voor de geschillen van bestuur van de Raad van State),
declared the appeal unfounded.
By letter of 10 March 1987 the applicant requested the
Minister of Defence to grant him a deferment until the Convention
organs would have decided on his application.
By letter of 19 March 1987 the Deputy Minister informed the
applicant of his decision not to grant the deferment.
The applicant appealed to the Crown. He furthermore asked the
Chairman of the Administrative Litigation Division of the Council of
State to take an interim measure.
By decision of 29 June 1987 the Chairman declared the case
inadmissible since no appeal to the Crown was possible on the present
issue. By decision of 13 August 1987 the Crown, in accordance with
the advice of the Chairman of the Administrative Litigation Division
of the Council of State, declared the case inadmissible for the same
reason.
On 4 January 1988 the applicant was drafted as a conscript.
For administrative difficulties, due to the fact that the
applicant still had his permanent address in the United Kingdom, the
army authorities decided that the applicant's service be discontinued,
although he remained obliged to serve in case of war or similar
emergency.
On 19 February 1988 the applicant left the army. He
immediately applied to his former employer for a renewal of his
contract, but was refused.
COMPLAINTS
The applicant complains that the Crown's decision of 24
November 1986 was not reasoned and was, therefore, unfair. He
furthermore complains that the Crown is not an independent and
impartial tribunal. Finally, he complains that he had no access to an
independent and impartial tribunal in relation to the refusal of the
Deputy Minister of Defence to grant him a deferment pending his
application before the Commission. He claims that disputes over his
civil rights and obligations were involved. He invokes Article 6 of
the Convention.
THE LAW
The applicant has complained of the proceedings concerning
exemption from and deferment of military service. He has invoked
Article 6 (Art. 6) of the Convention.
Article 6 (Art. 6), so far as relevant, is in the following terms:
"In the determination of his civil rights and obliga-
tions ..., everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law...."
The Commission must first consider whether the procedure
before the Crown was concerned with "the determination of civil rights
and obligations" within the meaning of the above mentioned provision
of the Convention.
For Article 6 para. 1 (Art. 6-1) to be applicable to a case
it is not necessary for both parties to the proceedings to be private
persons. The wording of this paragraph is far wider; the French
expression "contestations sur (des) droits et obligations de caractère
civil" covers all proceedings, the result of which is decisive for
private rights and obligations. The English text, "determination of
.... civil rights and obligations", confirms this interpretation (Eur.
Court H.R., Ringeisen judgment of 16 July 1971, Series A No. 13, p.
39, para. 94).
The character of the legislation which governs how the matter
is to be determined (civil, commercial, administrative law, etc.) and
that of the authority which is invested with jurisdiction in the
matter (ordinary courts, administrative body, etc.) are therefore of
little consequence (Eur. Court H.R., Ringeisen judgment, loc. cit.).
All that is relevant under Article 6 para. 1 (Art. 6-1) of the
Convention is the fact that the object of the cases in question is the
determination of rights of a private nature (Eur. Court H.R., König
judgment of 28 June 1978, Series A No. 27, p. 32, para. 94).
However, the Commission is of the opinion that a decision not
to grant a person exemption from or deferment of military service does
not as such constitute a determination of his civil rights or
obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention. Such measures relate to the operation of the armed forces
and constitute sovereign acts of the State.
However, the question which arises in the present case is
whether the proceedings concerning the exemption from and deferment of
military service involved a "determination" of the applicant's
existing civil rights and obligations under his contract of
employment.
It is the established case-law of the Convention organs that
"a tenuous connection or remote consequences do not suffice for
Article 6 para. 1 (Art. 6-1) ...: civil rights and obligations must be
the object -or one of the objects- of the "contestation" (dispute);
the result of the proceedings must be directly decisive for such a
right" (Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment
of 23 June 1981, Series A No. 43, p. 21, para. 47).
In the present case the Commission considers that the private
rights and obligations of the applicant are only indirectly affected.
The proceedings concerning the applicant's request to grant him
exemption from and deferment of military service did not, therefore,
involve the "determination" of the applicant's civil rights or
obligations within the meaning of Article 6 (Art. 6) of the Convention.
It follows that the application is incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For this reason, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)