Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12344/86

by Johannes BECKERS

against the Netherlands

The European Commission of Human Rights sitting in private

on 25 February 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

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 30 June 1986 by

Johannes BECKERS against the Netherlands and registered on 25 August

1986 under file No. 12344/86;

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 on 23 November 1952.

He is at present residing in Vlissingen, the Netherlands. In the

proceedings before the Commission he is represented by Mr. C. Kool, a

lawyer practising in Middelburg.

The facts, as submitted by the parties, may be summarised as

follows.

Since 1981 the applicant has lived in a caravan which is

equipped for permanent living accommodation. By definition, such a

caravan comes within the scope of the Mobile Home Act (Woonwagenwet)

of 1968.

In January 1983 the applicant was residing in his mobile home

on a parking place in Vrouwenpolder in the municipality of Veere, the

Netherlands. At the request of the Municipal Authorities of Veere, by

letter dated 21 April 1983, the Provincial Authorities (Gedeputeerde

Staten) of Zeeland advised the applicant and his companion that they

intended to use their powers under Sections 32-34 of the Mobile Home

Act to vacate the applicant's mobile home by force (bestuursdwang).

They pointed out that the applicant and his companion were occupying

the mobile home illegally. Their occupancy could not be legalised

under the Mobile Home Act because neither the applicant nor his

companion fulfilled the conditions of Section 18 (1)(b) of the Mobile

Home Act. This Section provides that a permit to occupy a mobile home

can be granted 1) if the applicant practises one of the trades listed

in a certain Decree and if he can be considered to be dependent on the

occupation of a mobile home for the practice of this trade; or 2) if

the applicant or his spouse or one of the persons under whose

authority they have been, has had a permit to occupy a mobile home

before, or if the applicant can prove that he or one of these other

persons has occupied a mobile home before. In the latter case a

permit granted because of the practice of a trade or occupation cannot

be considered (Section 18 (2) Mobile Home Act).

The Provincial Authorities offered the applicant and his

companion the opportunity to leave the mobile home of their own accord

before 21 May 1983.

As they failed to do so, the Provincial Authorities

communicated a decision to the applicant and his companion on 16 June

1983 to the effect that they would vacate the applicant's mobile home

by force if they had not left it within thirty days.

On 1 July 1983 the applicant appealed against this decision to

the Provincial Authorities. He maintained, inter alia, that the

Mobile Home Act was not in conformity with Article 8 of the Convention,

Article 1 of the First Protocol and Article 2 para. 1 of the Fourth

Protocol and that he was discriminated against.

On the same date the applicant appealed to the President of

the Judicial Division of the Council of State (Voorzitter van de

Afdeling Rechtspraak van de Raad van State), requesting the suspension

of the decision of the Provincial Authorities.

By decision of 22 July 1983 the President of the Judicial

Division of the Council of State refused to suspend the decision of

the Provincial Authorities.

By decision of 30 August 1983, sent to the applicant on

14 October 1983, the Provincial Authorities declared the applicant's

appeal unfounded. They held, inter alia, that, if everyone had

the right permanently to occupy a mobile home, there would be chaos.

They considered, therefore, that Section 18 of the Mobile Home Act was not

in violation of the Convention.

On 9 November 1983 the applicant appealed against this

decision to the Judicial Division of the Council of State (Afdeling

Rechtspraak van de Raad van State) which, by decision of 2 January

1986, dismissed the applicant's appeal. It held, inter alia, that the

licence system which the Mobile Home Act provided for the occupation

of mobile homes was necessary for the purpose of controlling this form

of living and for improving the social welfare of mobile home

dwellers. For that reason, it considered the permit system and the

decision of the Provincial Authorities of 16 June 1983 to be necessary

and appropriate for the protection of public order. Moreover, it held

that the limitation of the applicant's right to respect for his home

was in accordance with Article 8 para. 2 of the Convention and that

the encroachment on the use of property was necessary within the

meaning of Article 1, second sentence, of the First Protocol. As

regards Article 14 of the Convention, the Council held that the

condition embodied in Section 18 (1)(b)(2) could be considered as an

objective and reasonably justifiable means to achieve the aim of

improving the social welfare of mobile home dwellers; such a condition

did not amount to an unjustified distinction in treatment under

Article 14.

COMPLAINTS

1. The applicant complains of a violation of his right to

respect for his private life, his family life and his home, as

guaranteed by Article 8 para. 1 of the Convention.

He submits that this right presupposed that a person may

decide for himself how he wished to arrange his private and family

life, and his living accommodation. He wished to live in a mobile

home, but, because he did not satisfy any of the conditions contained

in the Mobile Home Act, he was not granted a permit to do so. The

permit system was such that, even where none of the restrictions

contained in para. 2 of Article 8 of the Convention applied, a permit

to live in a mobile home could not be granted to persons such as

himself who do not satisfy any of the conditions of Section 18 para.

1(b) of the Mobile Home Act.

2. Invoking Article 1 of Protocol No. 1, the applicant

complains of an interference with his right to peaceful enjoyment of

his possessions, viz. his mobile home.

3. The applicant complains that, because he is not allowed to

live in his mobile home, he is denied the right to liberty of movement

or freedom to choose his residence. He invokes Article 2 of Protocol

No. 4.

4. The applicant complains that under the Mobile Home Act

permission to occupy a mobile home can only be granted where a person

belongs to a certain professional group or where a person, his spouse

or one of the persons under whose authority they have been has had

permission previously to reside in a mobile home or has previously

resided in a mobile home. Restrictions of the right to live in a

mobile home should be applied in a non-discriminatory manner. However,

in the Mobile Home Act a distinction was made on the ground of birth.

The applicant invokes Article 14, taken together with Article 8 of the

Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 30 June 1986 and registered

on 25 August 1986.

On 13 April 1989 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and the merits of the

application.

The Government's observations were received by letter dated 19

July 1989 and the applicant's observations were dated 28 September

1989.THE LAW

1. The applicant complains that, since he is not eligible

for a permit to occupy a mobile home, his right to respect for his

private life, his family life and his home has been violated. He

invokes Article 8 para. 1 (Art. 8-1) of the Convention.

The applicant submits that the right to respect for his

private life, his family life and his home presupposed the free choice

for every citizen to decide how to lead his private life and how to

organise his family life as well as the right to choose the type of

dwelling he wished. Denying this choice to a citizen amounted to the

most radical form of interference with the exercise of his rights as

guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.

The Government argue that statutory limitations of the rights

set out in Article 8 para. 1 (Art. 8-1) were justified under para. 2

(Art. 8-2) by certain interests, e.g. those of the traditional mobile

home dwellers which were protected by the permit system under the

Mobile Home Act.

The Commission notes that the essence of the applicant's

complaint is directed against the requirements under the Mobile Home

Act. It does not relate to the manner of execution of the law by a

State authority, be it administrative or judicial. The Commission

must therefore direct its attention primarily to the contested

legislation itself, in order to determine whether it is compatible

with Article 8 (Art. 8) of the Convention. This does not mean that it

will examine the legislation in abstracto. The Commission must

confine its attention, as far as possible, to the concrete case before

it.

Article 8 para. 1 (Art. 8-1) of the Convention provides:

"Everyone has the right to respect for his private and

family life, his home and his correspondence."

The scope of the right to respect for private life is such

that it secures to the individual a sphere within which he can freely

pursue the development and fulfilment of his personality. The

Commission accepts that in the present case the applicant's right to

respect for his private life has been interfered with, as he is not

allowed to live in his mobile home.

It is true that a minority's life style may fall under the

protection of private life, family life or the home (cf. No. 9278/81 &

9415/81, Dec. 3.10.83, D.R. 35 p. 30). However, in the present case,

the applicant does not belong to the minority of traditional mobile

home dwellers nor is there any need for him to live in a mobile home.

The Commission recalls that Article 8 para. 2 (Art. 8-2) of the

Convention allows interference by a public authority with the exercise

of the right to respect for private life, provided such interference

is in accordance with the law and is necessary in a democratic society

for the prevention of disorder.

The Commission notes that under Section 14 of the Mobile Home

Act a permit is required if someone wants to live in a mobile home.

Under Section 18 of the Act such a permit can only be granted if the

applicant for a permit practises one of the trades listed in a certain

Decree and if he can be considered to be dependent on the occupation

of a mobile home for the practice of this trade, or if the applicant

for a permit or his spouse or one of the persons under whose authority

they have been, has had a permit to occupy a mobile home before, or if

the applicant for a permit can prove that he or one of these other

persons has occupied a mobile home before. In the present case, as

the applicant did not satisfy any one of the conditions mentioned in

Section 18 of the Mobile Home Act, a permit to occupy a mobile home

could not be granted to him. The interference with the exercise of

the right to respect for private life is, therefore, in accordance

with the law.

The Commission considers that the aim of prevention of

disorder pursued by the authorities in establishing the requirements

for a permit under the Mobile Home Act is a legitimate one.

The question which remains to be answered is whether or not

this restriction was "necessary in a democratic society".

In determining whether an interference was "necessary in a

democratic society" allowance should be made for the margin of

appreciation that is left to the Contracting States (Eur. Court H.R.,

W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121,

p. 27, para. 60 (b) and (d) ; Eur. Court H.R., Olsson judgment of 24

March 1988, Series A no. 130, pp. 31-32, para. 67). In particular, in

implementing social and economic policies the margin of appreciation

is a wide one (Eur. Court H.R., James and Others judgment of 21

February 1986, Series A no. 98, p. 32, para. 46).

In this perspective and having regard to the Commission's

above finding that the applicant cannot claim to belong to a minority

entitled to specific protection under Article 8 (Art. 8) of the

Convention, the Commission is of the opinion that the rules

established by the Mobile Home Act are not disproportionate to the

legitime aim pursued and are therefore necessary in a democratic

society.

The Commisson does not find it necessary separately to examine

whether, in the present case, there was also interference with the

applicant's right to respect for his family life or his home, since

such an interference would in any case be justified under Article 8

para. 2 (Art. 8-2) of the Convention for the same reasons.

In these circumstances the Commission finds that an

examination of this complaint, as it has been submitted, does not

disclose any appearance of a violation of Article 8 (Art. 8).

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 further complains that his right to the peaceful

enjoyment of his possessions is infringed upon, as he is not eligible

under the Mobile Home Act for a permit to occupy his mobile home. He

also contends that his eviction by force from his mobile home by the

authorities amounts to a violation of his right to peaceful enjoyment

of his possessions. He invokes Article 1 of Protocol No. 1 (P1-1) of the

Convention.

Article 1 of Protocol No. 1 (P1-1) provides as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of

his possessions except in the public interest and subject to

the conditions provided for by law and by the general

principles of international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it deems

necessary to control the use of property in accordance with

the general interest or to secure the payment of taxes or

other contributions or penalties."

The Government submit that, in view of the shortage of

suitable sites for traditional mobile home dwellers, a permit system

had to be introduced. As the general interest dictated the

restriction on the applicant's use of his property, the Government

consider this measure to be justified under the second paragraph of

Article 1 of Protocol No. 1 (P1-1).

The Commission considers that there has been an interference

with the applicant's peaceful enjoyment of his possessions, within the

meaning of the first sentence of the first paragraph of Article 1 of

Protocol No. 1 (P1-1), since he was not granted a permit to occupy his

mobile home. But the Commission does not find that the present case

discloses any deprivation of the applicant's possessions, within the

meaning of the second sentence of the first paragraph of that

provision: the applicant has the possibility to sell his mobile home

or to use it himself as a holiday caravan, i.e. on a non-permanent

basis.

In examining whether an interference with property rights

falls within the ambit of the second paragraph of Article 1 of

Protocol No. 1 (P1-1), the Commission's task is to review the lawfulness,

purpose and proportionality of the restrictions in question

(Mellacher and others v. Austria, Comm. Report 11.7.88, para. 202).

The principle of proportionality, which is inherent in the Convention,

requires the Commission to determine whether, whilst recognising the

margin of appreciation afforded to the Contracting States, a fair

balance was struck between the general interest of the community and

the protection of the individual's rights (Eur. Court H.R., Sporrong

and Lönnroth judgment of 23 September 1982, Series A no. 52, p. 26,

para. 69).

The Commission notes that the applicant is not eligible for a

permit to occupy his mobile home, because he does not meet the

requirements of the Mobile Home Act. The Commission therefore finds

that the control of the use of property in the present case must be

regarded as lawful.

As for the purpose of the Dutch policy in respect of mobile

homes of which the Mobile Home Act forms a part, the Commission

accepts that this policy is in pursuance of the prevention of

disorder. It is thus, prima facie, in accordance with the general

interest.

Concerning the proportionality of the measure taken against

the applicant, the Commission takes into account the fact that the

applicant had never sought a permit to occupy a mobile home and that

he knew, or could have known, that he was not eligible for such a

permit. Furthermore, the applicant has not submitted that, in his

case, special circumstances existed which would warrant a departure

from the legitimate policy of the Dutch authorities in respect of

mobile homes.

In the light of these considerations, the Commission finds

that a proper balance has been struck between the applicant's personal

interest and the general interest. The control of the applicant's

property, which prevents him from using his mobile home as a permanent

living accommodation, is, therefore, in accordance with the

requirements of Article 1 of Protocol No. 1 (P1-1).

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.

3. The applicant complains that he was denied liberty of movement

or freedom to choose his residence. He contends in particular that

the permit system, according to which he has been denied a permit, as

well as his subsequent eviction from his mobile home constitute a

violation of Article 2 of Protocol No. 4 (P4-2) of the Convention.

In the Government's submissions, the limitations of the

applicant's rights as guaranteed by Article 2 of Protocol No. 4 (P4-2)

are in accordance with the law and necessary in a democratic society,

since the population density in the Netherlands as well as the housing

shortage required regulating measures such as the Mobile Home Act with

its permit system. The Government therefore consider the restrictions

of the applicant's rights to be justified under para. 3 of Article 2

of Protocol No. 4 (P4-2-3).

The Commission is of the opinion that there has been no

interference with the applicant's right to move and to take up

residence. The applicant is only restricted from living in a mobile

home, but he is free to buy or rent a house wherever he wants in the

Netherlands.

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.

4. Finally, the applicant complains of discrimination in

respect of his right to respect for his private life, his family life

and his home, his right to peaceful enjoyment of his possessions and

his right to liberty of movement or freedom to choose his residence.

In particular, the applicant observes that the birth criterion set out

in Section 18 of the Mobile Home Act made a discriminatory distinction

between traditional home dwellers and the rest of the population, as

only the former were entitled to a permit to live in a mobile home.

The applicant invokes Article 14 (Art. 14) of the Convention in

conjunction with Article 8 (Art. 8) of the Convention, Article 1 of

Protocol No. 1 (P1-1) and Article 2 of Protocol No. 4 (P4-2).

The applicant argues that the social aim pursued by the Mobile

Home Act, especially the birth criterion set out in Section 18,

provided no objective and reasonable justification, as the Government

could and should adopt another, non discriminatory, response to the

social needs of traditional mobile home dwellers. The applicant

concludes that the invoked violations have no justification.

The Government contend that the distinction drawn between the

group of traditional mobile home dwellers and the rest of the

population had an objective and reasonable justification. As the

traditional mobile home dwellers constituted a socially disadvantaged

group, the Dutch Authorities had pursued a socio-economic policy aimed

at integrating this group into society. The Mobile Home Act with its

permit system implemented this policy by offering them a certain

protection, which takes into consideration the needs of a special

group. Since the applicant does not belong to this group, there was

no discrimination within the meaning of Article 14 (Art. 14) of the

Convention.

The Commission refers to the case-law of the European Court of

Human Rights (Belgian Linguistic cases judgment of 23 July 1968,

Series A no. 6, p. 34, para. 10), according to which a difference of

treatment in respect of the enjoyment of a Convention right

constitutes discrimination contrary to Article 14 (Art. 14) of the

Convention only if it has no objective and reasonable justification,

or if there is no reasonable relationship of proportionality between

the means employed and the aim sought to be realised.

It is true that a difference of treatment exists between

persons who satisfy one of the conditions mentioned in Section 18 of

the Mobile Home Act, on the one hand, and persons who do not, on the

other.

However, the Commission considers that this difference in

treatment has an objective and reasonable justification since it seeks

to protect those who are dependent on a mobile home for the practice of

their trade as well as those who have habitually lived in mobile homes.

There is no indication, in the circumstances of the present case,

of a lack of proportionality between the policy of social integration

and the means employed to implement this policy.

The Commission concludes that the examination of the

applicant's complaint on this point does not reveal any appearance of

discrimination at variance with Article 14 (Art. 14) of the

Convention. This part of the application is consequently manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) 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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BECKERS v. THE NETHERLANDS

BECKERS v. THE NETHERLANDS

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