Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17175/90

by D.S.

against the Netherlands

The European Commission of Human Rights sitting in private on 12

October 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

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 10 August 1990 by

D.S. against the Netherlands and registered on 19 September 1990 under

file No. 17175/90;

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 Turkish citizen, born in 1952 and residing in

Rotterdam, the Netherlands. She is represented before the Commission

by Mrs. A.C.T. Hommes, a lawyer practising in Rotterdam.

The facts of the case, as submitted by the parties, may be

summarised as follows.

The applicant, who was working as a cleaner, became unfit for

work in 1986 because of backache. She initially received a benefit

under the Sickness Benefits Act (Ziektewet), followed by a benefit

under the General Labour Disablement Benefits Act (Algemene

Arbeidsongeschiktheidswet - hereinafter referred to as "AAW") and the

Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheids-

verzekering - hereinafter referred to as "WAO"). By letter of

21 September 1989 the applicant was informed by the competent

Industrial Insurance Board (Bedrijfsvereniging) that, as from 1 October

1989, the AAW part of her benefit would be withdrawn and the WAO part

would be considerably reduced, because the applicant was no longer

considered as being completely unfit for work.

The applicant wished to appeal against this decision to the

Appeals Tribunal (Raad van Beroep) in Rotterdam. She therefore

requested legal aid which would make it possible for the lawyer she had

chosen to receive remuneration from public funds. This was refused on

24 October 1989 by the Office for Legal Aid (Buro voor Rechtshulp) in

Rotterdam.

She then appealed to the President of the Regional Court of

Rotterdam, who rejected her appeal on 23 February 1990. The President

upheld the decision by the Office for Legal Aid that no legal aid could

be granted as the cumulative income of the applicant and her husband

exceeded the income limits within the meaning of the Legal Aid Act (Wet

Rechtsbijstand aan On- en Minvermogenden). The President rejected the

applicant's argument that the application of this Act discriminates

against women, as women - in general - earn less than men. He

considered that no sexual discrimination issue could arise as the fact

that the cumulation of income is applied makes no difference in

treatment and concerns equally men and women.

On 10 January 1991, the applicant's appeal against the decision

concerning her rights to AAW/WAO benefits was rejected by the President

of the Appeals Tribunal in accelerated proceedings. In these

proceedings the applicant was represented by a lawyer. The applicant

did not avail herself of the possibility to file an objection against

this decision with the plenary Appeals Tribunal.

RELEVANT DOMESTIC LAW AND PRACTICE

Article 18 para. 2 of the Netherlands Constitution (Grondwet)

reads:

[Translation]

"The law sets rules concerning the granting of legal aid to

the financially weak."

These rules are laid down in the Legal Aid Act. Article 9 of

this Act contains income limits below which a litigant can be assigned

a lawyer, whose fees are to be paid by the State. A litigant must,

however, always pay a certain contribution, which depends on earned

income. The minimum contribution is 25 Guilders and the maximum is

560 Guilders.

The word "income" in the Legal Aid Act refers to the family

income of the litigant. This means that not only the litigant's income

is taken into consideration but also that of his or her spouse or

cohabiting partner when answering the question whether their income is

above or below the income limit contained in the Legal Aid Act.

The income of a spouse or partner is not taken into consideration

when there are special circumstances, such as opposed interests of the

spouses or partners (Hoge Raad, judgment of 30 September 1982, N.J.

1983 nr. 665 and Arrondissementsrechtbank Amsterdam, judgment of

11 January 1989, N.J. 1990 nr. 152).

For some years there has been a discussion in the Netherlands

whether the described system is not in reality discriminatory against

women who normally have a lower income than men or no income at all and

who will therefore depend on their husbands or partners for the payment

of legal costs.

For this reason, the Offices of Legal Aid in Utrecht, Amsterdam

and Haarlem have abandoned the system and examine the economic

situation on an individual basis without taking a spouse's situation

into account.

A Government Commission (Commissie Draagkrachtvaststellling

Gefinancierde Rechtshulp), which studied the criteria for granting

legal aid, submitted its report on 23 May 1989. It did not make any

clear statement on the question as to whether the present system has

discriminatory effects but proposed that only the individual's economic

situation should be relevant except in cases where the case only

concerned a matter of common interest to both spouses.

The National Organisation of the Offices for Legal Aid

(Landelijke Organisatie voor Buro's voor Rechtshulp) also set up a

commission which reported in 1988. This commission found the present

system discriminatory and proposed an individual assessment of each

person concerned. A further examination of the effects of the present

system has been undertaken by the Social and Cultural Planning Bureau

(Sociaal en Cultureel Planbureau), which came to the conclusion that

there was no evidence upon which it must be assumed that the present

system indirectly discriminates against financially dependent women.

COMPLAINT

The applicant alleges that the present system, under which also

the spouse's income is taken into account when deciding whether or not

to grant legal aid, as applied to her case, discriminated against her,

contrary to Article 14 of the Convention, in the enjoyment of her right

under Article 6 para. 1 of the Convention to access to a court.

Because of the refusal of legal aid she must herself pay the lawyer's

fees and in order to do this she is dependent on her husband's

contributions.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 August 1990 and registered

on 19 September 1990.

On 7 January 1991 the Commission decided to bring the application

to the notice of the respondent Government and to invite them to submit

written observations on the admissibility and merits of the

application.

The Government's observations were submitted on 7 May 1991 and

the applicant's observations in reply were submitted on 5 August 1991.

THE LAW

The applicant complains under Article 14 in conjunction with

Article 6 para. 1 (Art. 14+6-1) of the Convention that the legal aid

system in the Netherlands, under which the spouse's income is also

taken into account when deciding whether or not legal aid should be

granted, discriminated against her in the enjoyment of her right of

access to a court enshrined in Article 6 para. 1 (Art. 6-1) of the

Convention. As a result of the refusal of legal aid she has to pay the

lawyer's fees herself and is thus dependent on her husband.

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."

Article 6 para. 1 (Art. 6-1) of the Convention, in so far as

relevant, provides:

"In the determination of his civil rights and obligations

... everyone is entitled to a ... hearing ... by a ...

tribunal ...".

The Government submit that, assuming that the proceedings

concerning the applicant's right to an AAW/WAO benefit can be

considered as determining civil rights and obligations within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention, no

distinction is made between men and women in the determination of the

relevant income level. If a litigant - whether male or female, married

or unmarried -lives with a partner, the income taken into account is

their joint income. In case of conflicting interests between the

litigant and the spouse or partner, only the litigant's income is taken

into account. According to the Government there is no evidence in the

present case that there were conflicting interests between the

applicant and her husband in respect of the AAW/WAO proceedings at

issue.

The applicant is of the opinion that the proceedings involved a

determination of her civil rights and obligations within the meaning

of Article 6 para. 1 (Art. 6-1) of the Convention. In respect of the

discriminatory effects of the Netherlands legal aid system, the

applicant submits, on the basis of statistical material, that in the

Netherlands almost all cohabiting or married women have a partner

earning a higher income than themselves.

The applicant submits that the financial dependence of married

or cohabiting women in the Netherlands on their earning husband or

partner has decreased in the recent years only to a very limited

extent. Cohabiting or married women are therefore mostly dependent on

the co-operation of their partner or spouse when deciding whether or

not to start legal proceedings, if their joint earnings are above the

legal aid income limit, whereas insofar as men are not eligible for

legal aid, it is generally on the basis of their own income.

The Commission does not find it necessary to examine the question

whether Article 6 para. 1 (Art. 6-1) of the Convention is applicable

to the proceedings at issue, as in any event the application is

inadmissible on the following grounds.

The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention does not, as such, guarantee the right to free legal aid in

relation to the right of access to court in the determination of an

individual's civil rights and obligations, but that under certain

circumstances an entitlement to legal aid will be necessary in order

to ensure that an individual should enjoy his effective right of access

to the courts in conditions not at variance with Article 6 para. 1

(Art. 6-1) of the Convention (cf. No. 10594/83, Dec. 14.7.87, D.R. 52

p. 158).

The Commission considers that where legal aid is of relevance to

a person's possibilities to bring his case before a court, it follows

from Article 14 in conjunction with Article 6 para. 1 (Art. 14+6-1) of

the Convention that legal aid must be granted in a non-discriminatory

manner.

In respect of the legal aid system in the Netherlands, the

Commission notes that the practice of calculating a person's income

together with his or her partner's or spouse's income applies for men

and women alike.

The Commission is, however, of the opinion that a rule, which is

formally not discriminatory, can nevertheless be discriminatory in its

practical application.

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. Eur.

Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985,

Series A no. 94, para. 72).

The Commission is of the opinion that, in view of the

desirability of limiting the total costs for legal aid and taking into

account the economic links which usually exist between spouses or

cohabiting partners, it is not unreasonable to add the income of a

spouse or cohabiting partner to the income of a person wishing to start

legal proceedings in order to establish whether that person can be

awarded legal aid.

The Commission also notes that while a special problem arises

where there are opposed views between the spouses or cohabiting

partners as to whether proceedings should be instituted, it has not

been submitted that such a situation existed in the present case.

In these circumstances the Commission considers that the refusal

to award legal aid to the applicant did not constitute discrimination

contrary to Article 14 in conjunction with Article 6 para. 1

(Art. 14+6-1) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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D.S. v. THE NETHERLANDS

D.S. v. THE NETHERLANDS

LEXI