CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 octobre 1992

.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. 17175/90                       by D.S.                       against the Netherlands         The European Commission of Human Rights sitting in private on 12 October 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                    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 10 August 1990 by D.S. against the Netherlands and registered on 19 September 1990 under file No. 17175/90;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:         THE FACTS         The applicant is a Turkish citizen, born in 1952 and residing in Rotterdam, the Netherlands.   She is represented before the Commission by Mrs. A.C.T. Hommes, a lawyer practising in Rotterdam.         The facts of the case, as submitted by the parties, may be summarised as follows.         The applicant, who was working as a cleaner, became unfit for work in 1986 because of backache.   She initially received a benefit under the Sickness Benefits Act (Ziektewet), followed by a benefit under the General Labour Disablement Benefits Act (Algemene Arbeidsongeschiktheidswet - hereinafter referred to as "AAW") and the Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheids- verzekering - hereinafter referred to as "WAO").   By letter of 21 September 1989 the applicant was informed by the competent Industrial Insurance Board (Bedrijfsvereniging) that, as from 1 October 1989, the AAW part of her benefit would be withdrawn and the WAO part would be considerably reduced, because the applicant was no longer considered as being completely unfit for work.         The applicant wished to appeal against this decision to the Appeals Tribunal (Raad van Beroep) in Rotterdam.   She therefore requested legal aid which would make it possible for the lawyer she had chosen to receive remuneration from public funds.   This was refused on 24 October 1989 by the Office for Legal Aid (Buro voor Rechtshulp) in Rotterdam.         She then appealed to the President of the Regional Court of Rotterdam, who rejected her appeal on 23 February 1990.   The President upheld the decision by the Office for Legal Aid that no legal aid could be granted as the cumulative income of the applicant and her husband exceeded the income limits within the meaning of the Legal Aid Act (Wet Rechtsbijstand aan On- en Minvermogenden).   The President rejected the applicant's argument that the application of this Act discriminates against women, as women - in general - earn less than men.   He considered that no sexual discrimination issue could arise as the fact that the cumulation of income is applied makes no difference in treatment and concerns equally men and women.         On 10 January 1991, the applicant's appeal against the decision concerning her rights to AAW/WAO benefits was rejected by the President of the Appeals Tribunal in accelerated proceedings.   In these proceedings the applicant was represented by a lawyer.   The applicant did not avail herself of the possibility to file an objection against this decision with the plenary Appeals Tribunal.     RELEVANT DOMESTIC LAW AND PRACTICE         Article 18 para. 2 of the Netherlands Constitution (Grondwet) reads:         [Translation]         "The law sets rules concerning the granting of legal aid to       the financially weak."         These rules are laid down in the Legal Aid Act.   Article 9 of this Act contains income limits below which a litigant can be assigned a lawyer, whose fees are to be paid by the State.   A litigant must, however, always pay a certain contribution, which depends on earned income.   The minimum contribution is 25 Guilders and the maximum is 560 Guilders.         The word "income" in the Legal Aid Act refers to the family income of the litigant.   This means that not only the litigant's income is taken into consideration but also that of his or her spouse or cohabiting partner when answering the question whether their income is above or below the income limit contained in the Legal Aid Act.         The income of a spouse or partner is not taken into consideration when there are special circumstances, such as opposed interests of the spouses or partners (Hoge Raad, judgment of 30 September 1982, N.J. 1983 nr. 665 and Arrondissementsrechtbank Amsterdam, judgment of 11 January 1989, N.J. 1990 nr. 152).         For some years there has been a discussion in the Netherlands whether the described system is not in reality discriminatory against women who normally have a lower income than men or no income at all and who will therefore depend on their husbands or partners for the payment of legal costs.         For this reason, the Offices of Legal Aid in Utrecht, Amsterdam and Haarlem have abandoned the system and examine the economic situation on an individual basis without taking a spouse's situation into account.         A Government Commission (Commissie Draagkrachtvaststellling Gefinancierde Rechtshulp), which studied the criteria for granting legal aid, submitted its report on 23 May 1989.   It did not make any clear statement on the question as to whether the present system has discriminatory effects but proposed that only the individual's economic situation should be relevant except in cases where the case only concerned a matter of common interest to both spouses.         The National Organisation of the Offices for Legal Aid (Landelijke Organisatie voor Buro's voor Rechtshulp) also set up a commission which reported in 1988.   This commission found the present system discriminatory and proposed an individual assessment of each person concerned.   A further examination of the effects of the present system has been undertaken by the Social and Cultural Planning Bureau (Sociaal en Cultureel Planbureau), which came to the conclusion that there was no evidence upon which it must be assumed that the present system indirectly discriminates against financially dependent women.     COMPLAINT         The applicant alleges that the present system, under which also the spouse's income is taken into account when deciding whether or not to grant legal aid, as applied to her case, discriminated against her, contrary to Article 14 of the Convention, in the enjoyment of her right under Article 6 para. 1 of the Convention to access to a court. Because of the refusal of legal aid she must herself pay the lawyer's fees and in order to do this she is dependent on her husband's contributions.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 10 August 1990 and registered on 19 September 1990.         On 7 January 1991 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on the admissibility and merits of the application.         The Government's observations were submitted on 7 May 1991 and the applicant's observations in reply were submitted on 5 August 1991.     THE LAW         The applicant complains under Article 14 in conjunction with Article 6 para. 1 (Art. 14+6-1) of the Convention that the legal aid system in the Netherlands, under which the spouse's income is also taken into account when deciding whether or not legal aid should be granted, discriminated against her in the enjoyment of her right of access to a court enshrined in Article 6 para. 1 (Art. 6-1) of the Convention.   As a result of the refusal of legal aid she has to pay the lawyer's fees herself and is thus dependent on her husband.         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."         Article 6 para. 1 (Art. 6-1) of the Convention, in so far as relevant, provides:         "In the determination of his civil rights and obligations       ... everyone is entitled to a ... hearing ... by a ...       tribunal ...".         The Government submit that, assuming that the proceedings concerning the applicant's right to an AAW/WAO benefit can be considered as determining civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention,   no distinction is made between men and women in the determination of the relevant income level.   If a litigant - whether male or female, married or unmarried -lives with a partner, the income taken into account is their joint income.   In case of conflicting interests between the litigant and the spouse or partner, only the litigant's income is taken into account.   According to the Government there is no evidence in the present case that there were conflicting interests between the applicant and her husband in respect of the AAW/WAO proceedings at issue.           The applicant is of the opinion that the proceedings involved a determination of her civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   In respect of the discriminatory effects of the Netherlands legal aid system, the applicant submits, on the basis of statistical material, that in the Netherlands almost all cohabiting or married women have a partner earning a higher income than themselves.         The applicant submits that the financial dependence of married or cohabiting women in the Netherlands on their earning husband or partner has decreased in the recent years only to a very limited extent.   Cohabiting or married women are therefore mostly dependent on the co-operation of their partner or spouse when deciding whether or not to start legal proceedings, if their joint earnings are above the legal aid income limit, whereas insofar as men are not eligible for legal aid, it is generally on the basis of their own income.         The Commission does not find it necessary to examine the question whether Article 6 para. 1 (Art. 6-1) of the Convention is applicable to the proceedings at issue, as in any event the application is inadmissible on the following grounds.         The Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention does not, as such, guarantee the right to free legal aid in relation to the right of access to court in the determination of an individual's civil rights and obligations, but that under certain circumstances an entitlement to legal aid will be necessary in order to ensure that an individual should enjoy his effective right of access to the courts in conditions not at variance with Article 6 para. 1 (Art. 6-1) of the Convention (cf. No. 10594/83, Dec. 14.7.87, D.R. 52 p. 158).         The Commission considers that where legal aid is of relevance to a person's possibilities to bring his case before a court, it follows from Article 14 in conjunction with Article 6 para. 1 (Art. 14+6-1) of the Convention that legal aid must be granted in a non-discriminatory manner.         In respect of the legal aid system in the Netherlands, the Commission notes that the practice of calculating a person's income together with his or her partner's or spouse's income applies for men and women alike.         The Commission is, however, of the opinion that a rule, which is formally not discriminatory, can nevertheless be discriminatory in its practical application.         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. Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, para. 72).           The Commission is of the opinion that, in view of the desirability of limiting the total costs for legal aid and taking into account the economic links which usually exist between spouses or cohabiting partners, it is not unreasonable to add the income of a spouse or cohabiting partner to the income of a person wishing to start legal proceedings in order to establish whether that person can be awarded legal aid.         The Commission also notes that while a special problem arises where there are opposed views between the spouses or cohabiting partners as to whether proceedings should be instituted, it has not been submitted that such a situation existed in the present case.         In these circumstances the Commission considers that the refusal to award legal aid to the applicant did not constitute discrimination contrary to Article 14 in conjunction with Article 6 para. 1 (Art. 14+6-1) of the Convention.           For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission               President of the Commission         (H.C. KRÜGER)                                (C.A. NØRGAARD)