CCPR/C/46/D/406/1990

Communications Nos. 406/1990 and 426/1990, Lahcen B. M. Oulajin

and Mohamed Kaiss v. the Netherlands (views adopted on

23 October 1992, forty-sixth session)

Submitted by:

Lahcen B. M.

Oulajin

and Mohamed Kaiss

(represented by

counsel)

Alleged victims:

The authors

State party:

The Netherlands

Date of communications:24 April 1990

and 22 August 1990,

respectively

Date of decisions on admissibility: 22 March 1991

and 4 July 1991, respectively

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Rights,

Meeting on 23 October 1992,

Having concluded its consideration of communications Nos. 406/1990 and

426/1990, submitted to the Human Rights Committee by

Messrs. Lahcen B. M. Oulajin and Mohamed Kaiss, respectively, under the

Optional Protocol to the International Covenant on Civil and Political

Rights,

Having taken into account all written information made available to it

by the authors of the communications, their counsel and the State party,

Adopts its views under article 5, paragraph 4, of the Optional

Protocol.*

1.

The authors of the communications are Lahcen Oulajin and Mohamed Kaiss,

Moroccan citizens born on 1 July 1942 and 7 July 1950 respectively, at

present residing in Alkmaar, the Netherlands. They claim to be victims of a

violation by the Netherlands of articles 17 and 26 of the International

Covenant on Civil and Political Rights. They are represented by counsel.

Facts as submitted

2.1 Mr. Oulajin's wife and two children live in Morocco. On 19 October

1981, the author's brother died, leaving four children, born in 1970, 1973,

1976 and 1979. Subsequently, the author's wife in Morocco assumed

responsibility for her nephews, with the consent of their mother.

2.2 Mr. Kaiss' wife and child live in Morocco. On 13 July 1979 the author's

father died, leaving two young children, born in 1971 and 1974.

Subsequently, the author assumed responsibility for the upbringing of his

siblings and the children were taken in by the author's family in Morocco.

________________________

*

An individual opinion submitted by Mr. Kurt Herndl,

Mr. Rein Mьllerson, Mr. Birame N'Diaye and Mr. Waleed Sadi is appended.

2.3 The authors, who claim to be the only persons to contribute financially

to the support of said relatives, applied for benefits under the Dutch Child

Benefit Act (Algemene Kinderbijslagwet) claiming their dependents as foster

children. a/ By letters of 7 May 1985 and 2 May 1984 respectively the

Alkmaar Board of Labour (Raad van Arbeid) informed the authors that, while

they were entitled to a benefit for their own children, they could not be

granted a benefit for their siblings and nephews. It held that these

children could not be considered to be foster children within the meaning of

the Child Benefit Act, since the authors reside in the Netherlands and cannot

influence their upbringing, as required under article 7, paragraph 5, of the

Act.

2.4 Both authors appealed the decision to the Board of Appeal (Raad van

Beroep) in Haarlem. On 19 February 1986 and 6 May 1986, the Board of Appeal

rejected the appeals. They then appealed to the Central Board of Appeal

(Centrale Raad van Beroep), arguing, inter alia, that because of lack of

money, it had become impossible for them to support their foster children and

that, as a result, their family life had suffered; they claimed that they

formed a family with their foster children within the meaning of article 8 of

the European Convention for the Protection of Human Rights and Fundamental

Freedoms. They furthermore submitted that it would amount to discrimination

if they were required to participate actively in the upbringing of the

children concerned, as this requirement would be difficult to meet for

migrant workers. They added that the requirement did not exist in respect of

their own children.

2.5 By decisions of 4 March 1987, the Central Board of Appeal dismissed the

appeals. It held, inter alia, that in case of the upbringing of foster

children, it was necessary to prove the existence of close links between the

children and the applicant for purposes of the entitlement to child benefit.

The Central Board of Appeal held that the cases did not raise the question of

two similar situations being treated unequally, so that the issue of

discrimination did not arise. In holding that a close, exclusive

relationship between the children concerned and the individual applying for a

child benefit is necessary, it argued that such a close relationship is

presumed to exist in respect of one's own children, whereas it must be made

plausible in respect of foster children.

2.6 The authors appealed to the European Commission of Human Rights,

invoking articles 8 (cf. article 17 of the Covenant) and 14 (cf. article 26

of the Covenant) of the European Convention for the Protection of Human

Rights and Fundamental Freedoms. By decision of 6 March 1989, the Commission

declared their communications inadmissible ratione materiae, holding that the

Convention does not encompass a right to family allowances. In particular,

article 8 could not be construed as obliging a State to grant such

allowances. The right to family allowances was a social security right that

fell outside the scope of the Convention. With regard to the alleged

discrimination, the Commission reiterated that article 14 of the European

Convention has no independent existence and that it only covers the rights

and obligations recognized in the Convention.

Complaint

3.1 The authors contend that the authorities of the Netherlands have

violated article 26 of the Covenant. They refer to the Human Rights

Committee's General Comment on article 26, which states, inter alia, that the

principle of non-discrimination constitutes a basic and general principle

relating to the protection of human rights. The authors argue that an

inadmissible distinction is made in their case between "own children" and

"foster children", all of which belong to the same family in Morocco.

3.2 The authors point out that the actual situation in which the children

concerned live does not differ, and that, de facto, both have the same

parents. The Dutch authorities do pay child benefits for natural children

separated from their parents and residing abroad, irrespective of whether the

parent residing in the Netherlands is involved in the upbringing. The

authors therefore consider it unjust to deny benefits for their foster

children merely on the basis of the fact that they cannot actively involve

themselves in their upbringing. In their opinion, the "differential

treatment" is not based on "reasonable and objective" criteria.

3.3 The authors argue that not only "Western standards" should be taken into

account in the determination of whether or not to grant child benefits. It

was in conformity with Moroccan tradition that they had taken their relatives

into their family.

3.4 The authors further allege a violation of article 17 of the Covenant.

They state that they are unemployed in the Netherlands and depend on an

allowance in accordance with the General Social Security Act. This allowance

amounts to the social minimum. The child benefits are essential for them in

order to support their family in Morocco. By refusing the child benefits for

their foster children, the authors contend, a "family life with them is de

facto impossible", thus violating their rights under article 17.

The Committee's considerations and decision on admissibility

4.1 At its forty-first and forty-second sessions, respectively, the

Committee considered the admissibility of the communications. It noted that

the State party had raised no objection to admissibility, confirming that the

authors had exhausted all available domestic remedies. It further noted that

the facts as submitted by the authors did not raise issues under article 17

of the Covenant and that this aspect of the communication was therefore

inadmissible ratione materiae under article 3 of the Optional Protocol.

4.2 As to the authors' allegations that they were victims of discrimination,

the Committee took note of their claim that the distinction made in the Child

Benefit Act between natural and foster children is not based on reasonable

and objective criteria, and decided to examine this question in the light of

the State party's submission on the merits.

4.3 By decision of 23 March 1991, the Committee declared Mr. Oulajin's

communication admissible in so far as it might raise issues under article 26

of the Covenant. By decision of 4 July 1991, the Committee similarly

declared Mr. Kaiss' communication admissible. On 4 July 1991 the Committee

decided to join consideration of the two communications.

State party's clarifications and the authors' comments thereon

5.1 By submission of 30 March 1992, the State party explains that, pursuant

to the Child Benefit Act, residents of the Netherlands, regardless of their

nationality, receive benefit payments to help cover the maintenance costs of

their minor children. Provided certain conditions are met, an applicant may

be entitled to a child benefit, not only for his own children, but also for

his foster children. The Act lays down the condition that the foster child

must be (a) maintained and (b) brought up by the applicant as if he or she

were the applicant's own child.

5.2 The State party submits that the authors' allegations of discrimination

raise two issues:

(1) Whether the distinction between an applicant's own children and foster

children constitutes a violation of article 26 of the Covenant;

(2) Whether the regulations governing the entitlement to child benefit for

foster children, as applied in the Netherlands, result in an

unjustifiable disadvantage for non-Dutch nationals, residing in the

Netherlands.

5.3 As to the first issue, the State party submits that to be entitled to

child benefit for foster children, the applicant must raise the children

concerned in a way comparable to that in which parents normally bring up

their own children. This requirement does not apply to the applicant's own

children. The State party argues that this distinction does not violate

article 26 of the Covenant; it submits that the aim of the relevant

regulations is to determine, on the basis of objective criteria, whether the

relationship between the foster parent and the foster child is so close that

it is appropriate to provide child benefit as if the child were the foster

parent's own.

5.4 As to the second issue, the State party submits that no data exist to

show that the regulations affect migrant workers more than Dutch nationals.

It argues that the Act's requirements governing entitlement to child benefit

for foster children are applied strictly, regardless of the nationality of

the applicant or the place of residence of the foster children. It submits

that case law shows that applicants of Dutch nationality, residing in the

Netherlands, are also deemed ineligible for child benefit for their foster

children who are resident abroad. Moreover, if one or both of the parents

are still alive, it is assumed in principle that the natural parent has a

parental link with the child, which as a rule prevents the foster parent from

satisfying the requirements of the Child Benefit Act.

5.5 Furthermore, the State party argues that, even if proportionally fewer

migrant workers than Dutch nationals fulfil the statutory requirements

governing entitlement to child benefit for foster children, this does not

imply discrimination as prohibited by article 26 of the Covenant. In this

connection, it refers to the decision of the Committee in communication No.

212/1986, P. P. C. v. the Netherlands, b/ in which it was held that the scope

of article 26 does not extend to differences of results in the application of

common rules in the allocation of benefits.

5.6 In conclusion, the State party submits that the statutory regulations

concerned are a necessary and appropriate means of achieving the objectives

of the Child Benefit Act, i.e. making a financial contribution to the

maintenance of children with whom the applicant has a close, exclusive,

parental relationship, and do not result in discrimination as prohibited by

article 26 of the Covenant.

6.1 In his comments on the State party's observations, counsel maintains his

allegation that the distinction between own children and foster children in

the Child Benefit Act is discriminatory. He argues that the authors' foster

children live in exactly the same circumstances as their own children. In

this connection, reference is made to article 24 of the Covenant, which

stipulates that a child is entitled to protection on the part of his family,

society and the State without any discrimination as to, inter alia, birth.

According to counsel, no distinction can be made between the authors' own and

foster children regarding the intensity and exclusivity in the relationship

with the authors.

6.2 Counsel further argues that it is evident that this distinction affects

foreign employees working in the Netherlands more than Dutch residents, since

the foreign employees often choose to leave their family in the country of

origin, while there is no such necessity for Dutch residents to leave their

family abroad. In this connection, counsel contends that the State party

ignores that the Netherlands is to be considered an immigration country.

Examination of the merits

7.1 The Human Rights Committee has considered the present communications in

the light of all the information made available to it by the parties, as

provided in article 5, paragraph 1, of the Optional Protocol.

7.2 The question before the Committee is whether the authors are victims of

a violation of article 26 of the Covenant, because the authorities of the

Netherlands denied them a family allowance for certain of their dependants.

7.3 In its constant jurisprudence, the Committee has held that although a

State party is not required by the Covenant on Civil and Political Rights to

adopt social security legislation, if it does, such legislation and the

application thereof must comply with article 26 of the Covenant. The

principle of non-discrimination and equality before the law implies that any

distinctions in the enjoyment of benefits must be based on reasonable and

objective criteria. c/

7.4 With respect to the Child Benefit Act, the State party submits that

there are objective differences between one's own children and foster

children, which justify different treatment under the Act. The Committee

recognizes that the distinction is objective and need only focus on the

reasonableness criterion. Bearing in mind that certain limitations in the

granting of benefits may be inevitable, the Committee has considered whether

the distinction between one's own children and foster children under the

Child Benefit Act, in particular the requirement that a foster parent be

involved in the upbringing of the foster children, as a precondition to the

granting of benefits, is unreasonable. In the light of the explanations

given by the State party, the Committee finds that the distinctions made in

the Child Benefit Act are not incompatible with article 26 of the Covenant.

7.5 The distinction made in the Child Benefit Act between own children and

foster children precludes the granting of benefits for foster children who

are not living with the applicant foster parent. In this connection, the

authors allege that the application of this requirement is, in practice,

discriminatory, since it affects migrant workers more than Dutch nationals.

The Committee notes that the authors have failed to submit substantiation for

this claim and observes, moreover, that the Child Benefit Act makes no

distinction between Dutch nationals and non-nationals, such as migrant

workers. The Committee considers that the scope of article 26 of the

Covenant does not extend to differences resulting from the equal application

of common rules in the allocation of benefits.

8.

The Human Rights Committee, acting under article 5, paragraph 4, of the

Optional Protocol to the International Covenant on Civil and Political

Rights, is of the view that the facts before it do not disclose a violation

of any provision of the Covenant.

Notes

a/

For the purposes of this decision, a foster child is considered to

be a child whose upbringing has been left to persons other than his or her

natural or adoptive parents.

b/

Declared inadmissible on 24 March 1988, para. 6.2.

c/

See Broeks v. the Netherlands, communication No. 172/1984, and

Zwaan-de-Vries v. the Netherlands, communication No. 182/1984, views adopted

on 9 April 1987, para. 12.4; Vos v. the Netherlands, communication No.

218/1986, views adopted on 29 March 1989, para. 11.3; Pauger v. Austria,

communication No. 415/1990, views adopted on 26 March 1992, para. 7.2;

Sprenger v. the Netherlands, communication No. 395/1990, views adopted on

31 March 1992, para. 7.2.

Appendix

Individual opinion submitted by Mr. Kurt Herndl, Mr. Rein Mьllerson,

Mr. Birame N'Diaye and Mr. Waleed Sadi pursuant to rule 94,

paragraph 3, of the Committee's rules of procedure, concerning the

Committee's views on communications Nos. 406/1990 and 426/1990,

L. Oulajin and M. Kaiss v. the Netherlands

We concur in the Committee's finding that the facts before it do not

reveal a violation of article 26 of the Covenant. While referring to the

individual opinion attached to the decision concerning Sprenger v. the

Netherlands (communication No. 395/1990), a/ we consider it proper to briefly

expand on the Committee's rationale, as it appears in these views and in the

Committee's views on communications Nos. 172/1984, Broeks v. the Netherlands

and 182/1984, Zwaan-de-Vries v. the Netherlands. b/

It is obvious that while article 26 of the Covenant postulates an

autonomous right to non-discrimination, the implementation of this right may

take different forms, depending on the nature of the right to which the

principle of non-discrimination is applied.

With regard to the application of article 26 of the Covenant in the

field of economic and social rights, it is evident that social security

legislation, which is intended to achieve aims of social justice, necessarily

must make distinctions. It is for the legislature of each country, which

best knows the socio-economic needs of the society concerned, to try to

achieve social justice in the concrete context. Unless the distinctions made

are manifestly discriminatory or arbitrary, it is not for the Committee to

re-evaluate the complex socio-economic data and substitute its judgement for

that of the legislatures of States parties.

Furthermore it would seem to us that it is essential to keep one's sense

of proportion. With respect to the present cases, we note that the authors

are asking for child benefits not only for their own children - to which they

are entitled under the legislation of the Netherlands - but also for

siblings, nephews and nieces, for whom they claim to have accepted

responsibility and hence consider as dependants. On the basis of the

information before the Committee, such demands appear to run counter to a

general sense of proportion, and their denial by the government concerned

cannot be considered unreasonable in view of the budget limitations which

exist in every social security system. While States parties to the Covenant

may wish to extend benefits to such wide-ranging categories of dependants,

article 26 of the Covenant does not require them to do so.

[Done in English, French, Russian and Spanish, the English text being the

original version.]

Notes

a/

Views adopted on 31 March 1992, forty-fourth session.

b/

Views adopted on 9 April 1987, twenty-ninth session.