THIRD SECTION

DECISION

Application no. 16593/10 Martinus Gerardus Maria ZWINKELS against the Netherlands

The European Court of Human Rights (Third Section), sitting on 9 October 2012 as a Chamber composed of:

Josep Casadevall, President, Egbert Myjer, Corneliu Bîrsan, Alvina Gyulumyan, Ján Šikuta, Luis López Guerra, Kristina Pardalos, judges, and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 12 March 2010,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Martinus Gerardus Maria Zwinkels, is a Netherlands national, who was born in 1960 and lives in Oterleek.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. On 8 September 2006 two inspectors of the Labour Inspectorate ( Arbeidsinspectie ) inspected the premises of the applicant under the Foreign Nationals (Employment) Act ( Wet arbeid vreemdelingen ). The inspectors found that the applicant’s house was being painted by two persons who did not have either Netherlands nationality or a nationality that allowed them to be equated with Netherlands nationals for employment purposes and that they did not hold a work permit ( tewerkstellingsvergunning ). During the inspection, the two inspectors entered the applicant’s garage, which was not connected to his house, in the applicant’s absence and without his permission, where they questioned the two foreign persons. The applicant alleges that no interpreter was present.

4. On 13 October 2006 the applicant and his wife were questioned by two inspectors of the Labour Inspectorate regarding the alleged infringement of the Foreign Nationals (Employment) Act. During the interview, one of the inspectors stated “whenever there was a foreign smell, I would always ask for [a work permit]”. The applicant expressed his discontent with this behaviour of the inspector but no note was taken of the incident in the report of the interview.

5. On 4 December 2006 the Deputy Minister ( staatssecretaris ) of Social Affairs and Employment ( Sociale Zaken en Werkgelegenheid ) sent copies of the inspectors’ reports to the applicant.

6. In a letter dated 5 February 2007, the Deputy Minister informed the applicant of the intention to fine him 8,000 euros (EUR) in accordance with section 19a in conjunction with section 2 of the Foreign Nationals (Employment) Act.

7. In his written comments ( zienswijze ) the applicant disputed the amount of the fine and he complained that the inspectors had entered his garage without his permission. By decision of 23 March 2007 the Minister of Social Affairs and Employment rejected the applicant’s arguments and imposed the fine of 8,000 EUR.

8. The applicant lodged an objection ( bezwaar ) against this decision, explaining in more detail the arguments stated in his written comments, pleading mitigating circumstances and arguing further that he disagreed with the different interpretations of the word “employer” in the Netherlands legal system. Furthermore, he complained about the behaviour of one of the inspectors of the Labour Inspectorate during the interview of 13 October 2006.

9. During a hearing by telephone ( telefonische hoorzitting ) on 5 December 2007 the applicant was given the chance further to elaborate on these statements.

10. On 11 January 2008 the Minister dismissed the applicant’s objection, stating the legal grounds for the decision and pointing out to the applicant that, in relation to the behaviour of the inspectors during the interview, he could file a formal complaint against these persons with the Labour Inspectorate. The applicant’s complaints regarding the entering of the garage were also rejected as it had appeared that the garage was not in direct connection with his house, which obviated the need for permission to enter it.

11. The applicant appealed against the decision to the Alkmaar Regional Court ( rechtbank ) on 28 January 2008 restating the arguments set out in his objection, including the complaint that the inspectors of the Labour Inspectorate had entered his garage without his permission.

12. On 27 July 2009 the Regional Court held that because the applicant’s garage was not directly connected to his house, the inspectors had not needed permission to enter it. The Regional Court rejected the applicant’s other complaints but decided to reduce the fine to the amount of EUR 7,600 because the proceedings before the court had exceeded a reasonable time.

13. On 17 February 2010 the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State , “the Administrative Jurisdiction Division”) dismissed the applicant’s appeal holding, inter alia , that it had not been properly argued as regards the entering of his garage by the inspectors.

B. Relevant domestic law

1. The Foreign Nationals (Employment) Act

14. The relevant sections of the Foreign Nationals (Employment) Act provide as follows:

“Section 1

1. In this Act and delegated legislation based on it, [the following definitions shall apply]:

a. The Minister: the Minister of Social Affairs and Employment;

b. employer:

1º the person who, in the exercise of an office, profession or business, has someone else perform work ( degene die in de uitoefening van een ambt, beroep of bedrijf een ander arbeid laat verrichten ); ...

Section 2

1. It is forbidden for an employer to employ a foreign national in the Netherlands without a work permit.

Section 18

1. Any failures to comply with sections 2(1) ... shall be deemed administrative offences ( overtredingen ). ...

Section 19a

1. A civil servant appointed by the Minister [i.e. the Minister of Social Affairs and Employment] for that purpose and coming under the Minister’s authority shall, in the Minister’s name, impose an administrative fine on any person to whom the obligations deriving from this Act apply, in so far as the failure to comply with such obligations is deemed an administrative offence.

2. The administrative offences defined for the purpose of this Act ([ d ] e terzake van deze wet gestelde overtredingen ) shall apply with regard to every person with whom or in relation to whom an administrative offence has been committed ( ten opzichte van elk persoon, met of ten aanzien van wie een overtreding is begaan ).”

2. The Foreign Nationals (Employment) Act Fining Policy Rules (Beleidsregels boeteoplegging Wet arbeid vreemdelingen)

15. The Foreign Nationals (Employment) Act Fining Policy Rules, first published in the Official Gazette ( Staatscourant ) 2004, no. 249 and renewed every year since then (as relevant to the case before the Court, Official Gazette 2006, no. 250), set out a tariff to be applied in imposing administrative fines. A legal body which employs a foreign national without a work permit will be fined EUR 8,000. If the employer is a natural person not a legal entity, the fines are reduced by half.

COMPLAINTS

16. Invoking Article 5 § 2 of the Convention, the applicant complained that the persons working for him had been questioned by the inspectors of the Labour Inspectorate without an interpreter.

17. The applicant complained under Article 6 of the Convention, firstly, that the decisions made by the Deputy Minister and the Minister had not been taken by independent and impartial judicial bodies, and secondly, that no account had been taken of “particular circumstances” which he did not specify but which, so he claimed, would have been taken into account in proceedings under different domestic legislation.

18. Under Article 8 of the Convention, the applicant complained that during the inspection the inspectors of the Labour Inspectorate had entered his garage without his permission.

19. Under Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, the applicant complained that the inspectors of the Labour Inspectorate had expressed discriminatory opinions.

20. Finally, the applicant invoked provisions of the Netherlands Constitution and the Universal Declaration of Human Rights.

THE LAW

A. Complaint under Article 8 of the Convention

21. Invoking Article 8 the applicant complained that the Labour Inspectorate inspectors had entered his garage without his permission. This Article, as relevant, provides as follows:

“1. Everyone has the right to respect for his ... home ...”

22. Before the Court can consider whether, in the present case, Article 8 is applicable and has been violated it must first determine whether the applicant’s complaint meets the preliminary requirements set out in Article 35 of the Convention, as amended by Protocol No. 14 which entered into force on 1 June 2010.

23. The Protocol added a new admissibility requirement to Article 35 which, as relevant, reads as follows:

“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

...

(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

1. Whether the applicant has suffered a significant disadvantage

26. The Court considers that the interference alleged by the applicant can have had no more than a minimal impact, if at all, on the applicant’s “home” or “private life”. Indeed, the applicant did not suggest that it caused him any actual inconvenience whatsoever, nor even that he personally was in any way affected by the inspectors’ ingress (compare and contrast Giuran v. Romania , no. 24360/04, § 22, ECHR 2011 (extracts)). The applicant’s subjective perception that he had not been treated fairly and disagrees with the outcome of the case at the domestic level, although relevant, does not suffice for the Court to conclude that the applicant has suffered a significant disadvantage by the alleged violation of Article 8 (see, mutatis mutandis , Ladygin , cited above).

27. In view of the foregoing, the Court concludes that the applicant has not suffered a significant disadvantage as a result of the inspectors entering his garage without his permission.

2. Whether respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits

29. Turning to the present case, the Court does not see any compelling reason to warrant its examination on the merits. Thus, the Court concludes that respect for human rights does not require an examination of this case (see Ladygin, cited above).

3. Whether the case was duly considered by a domestic tribunal

30. Article 35 § 3 (b) does not allow the rejection of an application on the ground of “no significant disadvantage” if the case has not been duly considered by a domestic tribunal. Its purpose is to ensure that every case receives a judicial examination whether at national level or at the European level (see Korolev , cited above).

31. In the Court’s view, the facts of the present case taken as a whole disclose no denial of justice at the domestic level. The applicant’s grievances against the domestic authorities were first considered by the Regional Court and then by the Administrative Jurisdiction Division.

32. The fact that the applicant’s complaint under Article 8 was not subject to a decision on the merits before the highest national judicial body does not constitute an obstacle to the application of the requirement under Article 35 § 3 (b). It is further noted that in this case, a full consideration of the merits of the Article 8 complaint was conducted by the Regional Court. To construe the contrary would prevent the Court from rejecting any claim, however insignificant, where an appeal has been dismissed by the highest domestic authority in accordance with national provisions, as in this case. The Court finds that such an approach would be neither appropriate nor consistent with the object and purpose of the new provision, which is “to provide the Court with an additional tool which should assist it in concentrating on cases which warrant an examination on the merits” (see Explanatory Report to Protocol No. 14, Council of Europe Treaty Series No. 194, § 39).

33. The Court concludes that the applicant’s case was duly considered by a domestic tribunal within the meaning of Article 35 § 3 (b).

4. Conclusion

34. It follows that the applicant’s complaint under Article 8 must be declared inadmissible in accordance with Article 35 §§ 3 (b) and 4 of the Convention, as amended by Protocol No. 14.

B. Other complaints made by the applicant

35. Invoking Article 5 § 2 of the Convention, the applicant complained that the two foreign persons who were painting his house had been questioned without an interpreter. Under Article 6 of the Convention he complained that the Deputy Minister’s initial decision and the Minister’s decision on his objection had not been taken by independent and impartial judicial bodies and secondly, that no account had been taken of particular circumstances which would have been taken into account in proceedings pursuant to other domestic laws. Under Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, he complained that the inspectors of the Labour Inspectorate had expressed discriminatory opinions during the interview with the applicant. Finally, the applicant invoked provisions of the Netherlands Constitution and the Universal Declaration of Human Rights.

36. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

37. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President