CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 mars 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  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)