Lexploria

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)

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SPRINGINTVELD v. THE NETHERLANDS

SPRINGINTVELD v. THE NETHERLANDS

LEXI