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AS TO THE ADMISSIBILITY OF

Application No. 11850/85

by G.G.

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 9 October 1985

by G.G. against the Netherlands and registered on

17 October 1985 under file No. 11850/85;

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 on 25 March 1956 and at

present residing at Gouda, the Netherlands.

In the proceedings before the Commission he is represented by

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

The applicant was recognised as a conscientious objector by

Royal Decree of 10 April 1980.

The applicant started performing substitute civilian service

on 7 July 1980. As of 7 September 1981, when he still had to perform

five months and four days of service the applicant did not appear at

his work anymore, and did not react to a registered letter of

22 September 1980 in which he was ordered to report himself and to

continue his duties.

Thereupon, the applicant was convicted of unlawful absence

from work assigned to him under the Conscientious Objections Act

(Wet Gewetensbezwaren Militaire Dienst) and sentenced to seven weeks'

imprisonment by the Police Magistate (Politierechter) of the Regional

Court (Arrondissementsrechtbank) of The Hague.

The applicant appealed against this decision to the Court of

Appeal (Gerechtshof) of The Hague, which quashed the decision of the

Police Magistrate on 8 June 1984. The court, however, also convicted

the applicant of unlawful absence from work assigned to him under the

Conscientious Objections Act and sentenced him to a fine of Dfl. 1,500.-.

Thereupon, the applicant appealed to the Supreme Court (Hoge

Raad) but, on 18 June 1985, his appeal was rejected.

&_COMPLAINTS&S

The applicant complains that, as a conscientious objector, he

had to spend eighteen months and twenty days doing substitute

civilian service whereas the normal duration of military service is

fourteen months. The applicant claims that this amounted to a

violation of Article 4 of the Convention read in conjunction with

Article 14 of the Convention.

In addition, the applicant complains that, contrary to

Article 9 of the Convention, he has been punished for having

certain convictions.

&_THE LAW&S

1. The applicant has complained that substitute civilian service

he had to perform as a conscientious objector was four months and

twenty days longer than ordinary military service. He has invoked

Article 4 of the Convention in this respect, 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

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

punishment of his convictions, amounting to 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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G. v. THE NETHERLANDS

G. v. THE NETHERLANDS

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