Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11775/85

by N.C. VAN BUITENEN

against the Netherlands

The European Commission of Human Rights sitting in private on

2 March 1987, the following members being present:

MM C.A NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mr F. MARTINEZ

Mr H.C. KRÜGER, Secretary to the Commission

Having regard to Art. 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on

27 September 1985 by N.C. van Buitenen against the Netherlands

and registered on 30 September 1985 under file No. 11775/85;

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&S

The facts of the case as they have been submitted by the

applicant may be summarised as follows.

The applicant is a Dutch citizen, born in 1960 and at present

residing at Amersfoort, the Netherlands.

In the proceedings before the Commission he is represented by

Mr. E. Hummels, a lawyer practising at Utrecht, the Netherlands.

The applicant performed national military service from

8 January 1980 until 25 November 1980, when he applied to be

recognised as a conscientious objector under the Conscientious

Objections Act (Wet Gewetensbezwaren Militaire Dienst).

On 19 June 1981, the Minister of Defence recognised the

applicant as a conscientious objector and released him from his

military service obligations. The applicant thereby became obliged,

under Section 9 para. 2 of the Conscientious Objections Act, to perform

substitute civilian service.

The applicant was subsequently informed that he had to perform

this substitute service from 1 February 1982 until 2 October 1982 at

the so-called Mobile Employment Force (Mobiele Werkgroep) of the

Ministry of Social Affairs and Employment at The Hague. Section 12 of

the Conscientious Objections Act stipulates that the duration of

substitute service is one-third longer than military service, but that

it must last a minimum of eighteen months.

The applicant started his work on 1 February 1982 but did not

appear at his work any more after 28 April 1982.

Thereupon, he was sentenced, in absentia, by the Police

Magistrate (Politierechter) in the Regional Court (Arrondissements-

rechtbank) of The Hague to three months' imprisonment, having been

convicted of more than two weeks' unlawful absence from the work

assigned to him under the Conscientious Objections Act.

The applicant appealed against this decision to the Court of

Appeal (Gerechtshof) of The Hague, whilst invoking Article 4 of the

Convention, read in conjunction with Article 14 of the Convention, as

well as Article 9 of the Convention.

On 26 June 1984, the Court of Appeal quashed the decision of

the Police Magistrate for technical reasons but also convicted the

applicant of unlawful absence from work under the Conscientious

Objections Act and sentenced him to two months' imprisonment.

With regard to the applicant's complaints under the

Convention, the Court considered that the difference in the duration

of service between the applicant's remaining military service and the

substitute civilian service was justified, also in the applicant's

case, by the different, and generally less arduous, character of

substitute service, and by the necessity to prevent attempts to avoid

military service for that reason. The Court further considered that

the work the applicant was obliged to carry out as a conscientious

objector did not exceed the limits of substitute service.

The applicant, thereupon, appealed to the Supreme Court (Hoge

Raad), again invoking Articles 4, 9 and 14 of the Convention.

However, on 18 June 1985, the Supreme Court rejected his appeal.

&_COMPLAINTS&S

The applicant complains that although, when he refused to

carry out the remainder of his military service, he had only three

months and fourteen days left to perform, he was obliged to carry out

substitute service for eight months and three days.

The applicant claims that there is no justification for the

extra time of service imposed on him and submits that this constituted

a violation of his rights under Article 4 of the Convention, read in

conjunction with Article 14 of the Convention. In addition, he

complains that his rights under Article 9 of the Convention have been

violated.

&_THE LAW&S

1. The applicant has complained that the duration of the

substitute civilian service he had to perform was more than twice the

duration of the remainder of his military service. He has invoked

Article 4 of the Convention in this aspect, read in conjunction with

Article 14 (Art. 4+14) of the Convention.

Article 4 (Art. 4) of the Convention provides, inter alia:

"1. ...

2. No one shall be required to perform forced or

compulsory labour.

3. For the purpose of this Article the term "forced

or compulsory labour" shall not include:

...

b. any service of a military character or, in case

of conscientious objectors in countries where they are

recognised, service enacted instead of compulsory military

service; ..."

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."

The Commission recalls that Article 14 (Art. 14) of the Convention

complements the other substantive provisions of the Convention and

Protocols. Although the application of Article 14 (Art. 14) of the Convention

does not presuppose a breach of those provisions, there can be no room

for its application unless the facts at issue fall within the ambit of

one or more of the latter (cf. Eur. Court H.R., Abdulaziz, Cabales and

Balkandali judgment of 28 May 1985, Series A no. 94, para. 71, p. 35).

The Commission finds that, although the Netherlands were not

obliged under Article 4 (Art. 4) of the Convention to recognise the applicant

as a conscientious objector, the applicant's complaints nevertheless

fall within the ambit of that Article, and Article 14 (Art. 14) of the

Convention is therefore applicable.

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. the above-mentioned Abdulaziz,

Cabales and Balkandali judgment, para. 72, p. 35).

The Commission considers that, in certain respects, someone

who has opted to do a substitute civilian service is in a comparable

position to someone who has to do military service. To this extent

there was a differential treatment in the present case.

The Commission has had regard to the reasons given for this

differential treatment by the Dutch courts, viz. that substitute

civilian service is generally considered as less arduous and that

there was a need to avoid refusal of military service for that reason.

In addition, the Commission notes the courts' finding that these

criteria also applied to the applicant and that the additional time

the latter had to serve was reasonably proportional to the different

nature of the two different services.

In view of the reasons given by the domestic courts, the

Commission is satisfied that the difference in treatment, consisting

of the longer period of substitute civilian service as compared with

the applicant's remaining ordinary military service, had a legitimate

aim and was proportional to the aim sought to be realised.

This part of the application must therefore be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant has further complained that the additional

period of substitute civilian service imposed on him constituted a

violation of his rights under Article 9 (Art. 9) of the Convention, which

provides:

"1. Everyone has the right to freedom of thought,

conscience and religion; this right includes freedom to

change his religion or belief and freedom, either alone or

in community with others and in public or private, to

manifest his religion or belief, in worship, teaching,

practice and observance.

2. Freedom to manifest one's religion or beliefs shall

be subject only to such limitations as are prescribed by law

and are necessary in a democratic society in the interests

of public safety, for the protection of public order, health

or morals, or for the protection of the rights and freedoms

of others."

The Commission recalls, however, that Article 4 para. 3 b) (Art. 4-3-b)

of the Convention expressly recognises that civilian service may be imposed on

conscientious objectors as a substitute for military service and that

objections of conscience do not entitle a person to exemption from such service

(cf. No. 7705/76, Dec. 5.7.77, D.R. 9 p. 196).

It follows that the remainder 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.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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VAN BUITENEN v. THE NETHERLANDS

VAN BUITENEN v. THE NETHERLANDS

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