CCPR/C/37/D/297/1988

N. Communication No. 2097/1988, H. A, E. d. J. v. the

Submitted by: H. A. BE. a. J. (name deleted)

Alleged victim: The author

State party concerned: The Netherlands

Date of communication: 29 March 1988

The Human Rights Committee, established under article 28 of the International

Covenant on Civil and Political Rights,

Meating on 30 October 1989,

Adopts the following:

Decision on admissibility

1. ‘The author of the communication (initial letter dated 29 March 1988) is

H. A. E. @. J., a Dutch citizen born on 10 April 1957, residing in Utrecht, the

Netherlands. He claims to be a victim of a violation by the Government of the

Netherlands of article 26 of the International Covenant on Civil end Political

Rights. He is represented by counsel.

2.1 On 20 August 1984, the author filed an application for a supplementary

allowance under the Dutch General Assistance Act of 13 June 1963. At that time, he

was performing civilian service as «% recognised conscientious objector to military

sexvice and received pocket-money and a nunber of unspecified henefits, This

income was allegedly 10 per cent beles the minimum subsistence level applicable

nationwide to persons aged 27 who meintain their own household. The executive body

established under the General Assistanve Act and the appeals board refused to grant

the author supplementary benefits under the Act, arguing that the regulations

applicable to conscientious objectors provided adequate means of subsistence to

individuals in the author's situation.

2.2 In the course of the proceedings, the author challenged the different

treatment provided for by Dutch laws and regulations which fix different minimum

figures for necessary subsistence costs. Many conscientious objectors are said to

live in poor conditions, at about 10 per cent below the minimum subsistence level

(in 1984), as formulated in the National Assistance Standardisation Act of

3 July 1974. ‘Those conscientious objectors aged 23 and above who, while carrying

out their civilian service, seek to maintain their own household, are said to be

most seriously affected. Thus, tha amount of assistance for an individual aged 23

or over, at the time of the author's request for assistance, wae Dutch

Guilders 1012.85 per month. The sum che author was entitled to as a conscientious

objector was Dutch Guilders 901.76 per month.

2.3 The author submits that he should have received supplementary assistance so as

to obtain an income equal to the minimum level referred to in the General

Assistance Act, read in conjunction with the National Assistance Standardization

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Act. With reference cto article 26 of the Covenant the author argues that the mere

fact that a person performs alternative national service can be no reason for

discriminating against him. If the authorities set standard minimum figures, they

may not, without well-founded reasons, apjly lower minima to certain groups.

3. By its decision of 8 July 1988 the Working Group requested the author, under

rule 91 of the rules of procedurs, to forward to the Committee a copy of the

relevant documents and to clarify whether he claimed that persons performing

civilian service enjoy less benefits than those performing military service.

4. Ou 15 September 1988, author's counsel submitted the desired documonts, and

argued "that a conscientious objector fulfilling alternative military service who

is aged 23 or over and maintains an independent household, is discriminated against

in comparison to other civilians who maintain an independent household. In this

case, there is no issue of discrimination between conscientious objectors on the

one hand and conscripts on the other hand. Usually conscripts do not keep an

independent household, although under certain circumstances a conscript aged 23 or

over might be in the same position as a conscientious objector."

5. By its decision of 10 November 1988, the Working Group transmitted the

communication under rule 91 of the rules of procedure to the State party,

requesting infoimation and observatione relevant to the question of the

admissibility of the communication.

6.1 In its submission dated 6 February 19488 the State party notes preliminarily,

that “(t]he issue of non-discrimination provisions in international law and the

Dutch social security system will be discussed in Parliament shortly. In these

circumstances, the Government will not address this aspect to the scope of

article 26 in the present memorandum, and it reserves the right to turn to this

issue, if necessary, in the event that the merits of the complaint in question come

under review. In view of the sbove, there is no impediment to the Dutch

Government's responding to the otker aspects of the applicant's complaint as it

does below with respect to the issue of admissibility."

6.2 The State party further submits that "(tJhe legal basis for compulsory

military service is provided by article 98 of the Constitution and the National

Service Act of 4 February 1922 (published in the Bulletin of Acts, Orders and

Decrees, 1922, 24). Military service is compulsory. Article 99 of the

Constitution lays down that the conditions subject to which those who have serious

conscientious objections may be exempted from military service shall be laid down

in the Military Service (Conscientious Objection) Act of 27 September 1962

(Bulletin of Acts, Orders and Decrees 1962, 370).

Broadly speaking, the provisions of the Military Service Act are as follows. Any

person who has been found fit for military service, and any member of the armed

forces, whether or not on active duty may ask the Minister of Defence to recognise

his objections as serious conscientious objections. If, after an investigation has

been carried out, those objections are recognised, the person concerned is exempted

from military service. The Minister of Social Affairs and Employment is

responnible for finding work for conscientious objectors. Alternative service is

performed either with government bodies or with suitable organisations, as

designated by the Minister of Social Affairs and Employment, which serve the public

interest. Conscientious objectors receive the same pay as conscripts, namely

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pocket money; certain allowances and fringe benefits are available. As far as

possible, the legal position of conscientious objectors is the same as that of

conscripte.

Ae regards the possible payment of general assistance, the Government would make

the following observations. The General Assistance Act, in conjunction with which

the National Assistance Standardisation Decree sets levels of benefits, is based on

the premise that assistance will be granted to those who are unable to support

themselves. The purpose of this benefit is to cover the costs of subsistence if

normal sources of income fail to meet these minimum costs. The General Assistance

Act thus. provides a safety net for cases in which all other sources of income have

failed. Conscripts and those performing alternative service are deemed to be

adequately provided for already, as their position is fully regulated by the

National Service Act, the Military Service Act and associated regulations. Under

the established case law of the Crown, the statutory arrangements for payments to

conscientious objectors are regarded as adequate and they do not require benefit

payments. The Royal Decree of 21 January 1988 which was submitted by the applicant

is entirely in accordance with this case law. In reply to the Committee's

question, it may be observed that neither the General Assistance Act nor the

National Standardisation Decree was applicable to the applicant when he was

performing his alternative service as a conscientious objector."

6.3 With regard to the Committee's prior jurisprudence, the State party refers to

ite decisions on admissibility of 5 November 1987 (communication No. 245/1987,

R. T. 2. vw. the Netherlands) and 24 March 1988 (communication No. 267/1987,

M. J. G. v. the Netherlands) and argues that the applicant's case should likawise

be ruled inadmissible ... “The applications in question related to conscripts. In

paragraph 3.2 of the decisions cited, the Committee observed that the Covenant does

not preclude the institution of compulsory military service by State parties, even

though this means that some rights of individuals may be restricted during military

service, within the exigences of such service.” The State party also takes the

view that the institution of a compulsory alternative service for conscientious

objectors is equally endorsed by the Covenant and refers to article 8,

paragraph 3c (ii).

6.4 It is submitted that in cases where conscientious objections have been

recognised, alternative service functions as a substitute for military service.

"It appears from the applicant's communication that he considers that, as a

conscientious objector, he has suffered discrimination in comparison with members

of the public. The Government, in this phase of the procedure, will not deal with

the factual question whether the non-applicability of the General Assistance Act

does result in differences of income as claimed by the applicant. However,

referring to the two above-mentioned decisions of the Committee it can be contended

that in the present case a comparison of the position of the author with the

position of members of the public vis-a-vis the General Assistance Act is not

called for. Furthermore the applicant has not claimed that the rules applicable to

him were applied to him differently than to other conscientious objectors. The

Government concludes that the author has no claim under article 2 of the Optional

Protocol."

7. In letter dated 29 June 1989, counsel comments on the State party's submission

under rule 91, underlining that the decisive question is whether the difference of

treatment between a recognized conscientious objector, above 23 years of age,

fulfilling alternative military service and a civilian of the same age constitutes

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discrimination within the meaning of article 26 of the International Covenant on

Civil and Political Rights. Counsel asserts that a difference of treatment can

only be justified insofar as the exclusion of his client's eligibility for a

supplementary payment under the General Assistance Act is necessary in order to

maintain the character of the alternative military service. The author contests,

however, that such a necessity has been proven by the State party and, furthermore,

he states that there is no provision under Dutch law to support the discrimination

against his client.

8.1 Before considering any claims contained in a communication, the Committee

shall, in accordance with rule 87 of the rules of procedure, decide whether or not

it ie admissible under the Optional Protocol to the Covenant.

8.2 The Committee notes that the author claims that he is a victim of

discrimination on the ground of "other status" (article 26 of the Covenant

in fine), because, as a conscientious objector to military service and during the

period that he performed alternative service, he was not treated as a civilian but

rather as a conscript and was thus ineligible for supplementazy allowances under

the General Assistance Act. The Committee observes, as it did with respect to

communications Nos. 245/1987 (R. T. Z. v. the Netherlands) and 267/1987

(M. J. G. v. the Netherlands), that the Covenant does not preclude the institution

by States parties of compulsory national service, which entails certain modest

pecuniary payments. But whether that compulsory national service is performed by

way of military service or by permitted alternative service, there is no

entitlement to be paid as if one were still in private civilian life. The

Committee observes in this connection, as it did with respect to communication

No. 218/1986 (Vos v. the Netherlands) that the scope of article 26 does not extend

to differences in result of the uniform application of lawe in the allocation of

social security benefits. In the pres nt case, there is no indication that the

General Assistance Act is not applied equally to all citisens performing

alternative service. Thus the Committee concludes that the communication is

incompatible with the provisions of the Covenant and inadmissible under article 3

of the Optional Protocol.

9. The Human Rights Committee therefore decides:

(a) That the communication is inadmissible;

(b) That this decision shall be communicated to the State party and to the

author. ‘

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