Lexploria

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

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TALMON v. THE NETHERLANDS

TALMON v. THE NETHERLANDS

LEXI