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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)

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ZELISSE v. NETHERLANDS

ZELISSE v. NETHERLANDS

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