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1. The author of the
communication, dated 7 August and 17 October 2003, is Mrs. G. J.
Jongenburger-Veerman, a Dutch national, born on 18 July 1911. She claims to
be a victim of a violation by the Netherlands of article 26 of the
International Covenant on Civil and Political Rights (the Covenant). She is
represented by counsel. The Optional Protocol entered into force for the
Netherlands on 11 March 1979.
FACTUAL BACKGROUND
2.1 In January 1976, the author's 40 year marriage was dissolved by the
court upon request by her husband, from whom she lived separated since 1952.
The husband was a former employee of the Assistance Corps of Netherlands New
Guinea (Bijstandskorps van burgerlijke rijksambtenaren) which was dissolved
on 5 July 1967. Under the Assistance Corps Act (Wet op het Bijstandskorps)
of 25 May 1962, all employees of the Assistance Corps enjoyed the status of
Dutch public servants. The author's ex-husband died on 25 March 1991.
2.2 The issue of pensions for surviving relatives of former employees of the
Assistance Corps of Netherlands New Guinea is not regulated by the Public
Servants Superannuation Act (Algemene Burgerlijke Pensioenwet) but by
special legislation, namely the Pension Scheme Rules and Regulations for
Netherlands New Guinea (Pensioensreglement Nederlands Nieuw-Guinea) (PRNG),
of 29 December 1958. These Rules and Regulations do not provide for pensions
to divorced widows of former public servants. However, under a hardship
clause contained in article 31 of PRNG, a pension can be granted in special
cases for which the Regulations do not provide.
2.3 On 1 January 1966, in light of a change in the divorce legislation, a
new section G 4 was introduced in the Public Servants Superannuation Act,
providing for a special pension for divorced widows of public servants. On 6
February 1973, Article 8 (a) of the Pensions and Savings Fund Act (Pensioen
en Spaarfondsenwet) was adopted, providing that all pension regulations
should provide the possibility of a special pension for divorced widows. The
PRNG was not amended accordingly.
2.4 After the decease of her ex-husband, the author applied to the Minister
of the Interior for a special widow's pension with effect from 26 March
1991. On 12 July 1991, the Minister of the Interior rejected the author's
application, based on his discretionary power under the hardship clause of
Article 31 PRNG. Her objection against that decision was rejected on 16
October 1991. The author's appeal to the Judicial Division of the Council of
State (Afdeling Rechtspraak van de Raad van State) was dismissed on 18 May
1993.
2.5 On 1 March 1999, the author again applied to the Administration of the
Indonesian Pensions Fund (Stichting Administratie Indonesische Pensioenen) (SAIP),
mandated since 1995 to administer the New-Guinea pensions, to grant her a
special widow's pension effective from 26 March 1991, based on an analogous
application of section G 4 of the Public Servants Superannuation Act, as
well as article 8 (a) of the Pensions and Savings Funds Act. On 29 November
1999, following instructions by the Minister of the Interior who considered
that the absence of a right to a special widow's pension was no longer in
keeping with the prevailing attitudes in society, the SAIP granted her a
special widow's pension with effect from 1 January 1999, pursuant to article
31 PRNG. The author challenged this decision, insofar as it denied her a
pension for the period between 26 March 1991 and 31 December 1998. On 2
March 2000, the SAIP rejected her objection.
2.6 The author's appeal to the District Court of The Hague, administrative
law section, (Arrondissementsrechtbank 's-Gravenhage, afdeling bestuursrecht)
in which she also claimed violations of article 1 of the Dutch Constitution
(equality principle) and article 26 of the Covenant, was dismissed on 14
August 2000. On 9 August 2001, the Central Appeals Tribunal (Centrale Raad
van Beroep) in Utrecht dismissed her further appeal, holding that the
author's request in 1999 was substantially the same as her request in 1991,
and that, because the decision in that case had become final and conclusive,
it should be respected unless it was manifestly arbitrary or unless new
developments had occurred that would make it unreasonable not to quash it.
The Tribunal did not find such circumstances and considered that the
difference in treatment was the result of a policy decision of the
legislator to distinguish between the overseas and European territories of
the State, which was based on reasonable and objective criteria. Similarly,
the Court found that the decision to grant the author a special widow's
pension with effect from 1 January 1999 only was within the Minister's
discretion under article 31 PRNG.
THE COMPLAINT
3.1 The author alleges a violation of her rights under article 26 of the
Covenant, arguing that her application for a special widow's pension should
have been determined on the same legal basis as special widow's pensions for
the survivors of all other public servants in the Netherlands. In this
context she refers to declarations made by the State Secretary for Home
Affairs during the public reading in Parliament on 9 May 1962 of the
Assistance Corps Act, to the effect that civil servants of the Assistance
Corps would be treated analogously to their Dutch counterparts. She argues
that following the adoption of section G4 in the Public Servants
Superannuation Act in 1966, the PRNG should have been amended accordingly,
as this showed the acceptance of a divorced survivor's right to a (partial)
widow's pension.
3.2 With reference to the Human Rights Committee's jurisprudence that it is
not for the Committee to review the facts and evidence that were brought
before the courts of the State party, the author argues that this should not
be an obstacle in her case, as the Judicial Division of the Council of State
which decided on her appeal in 1993 is not an independent and impartial
tribunal, since it advised the Minister of the Interior to adopt the
pertinent legislation which distinguishes between widows of former employees
of the Assistance Corps, on one hand, and those of other public servants, on
the other hand. [FN1] The author concludes that the lack of objective
impartiality of the Judicial Council is thus in violation of article 14,
paragraph 1, of the Covenant. Moreover, the author submits that the Judicial
Council was not competent to deal with her appeal against the Minister's
decision of 16 October 1991, as the Council of Appeal (Raad van Beroep)
would have been the competent court to deal with appeals relating to public
servants, including former employees of the Assistance Corps. Instead of
directing her to the competent tribunals, the advice on applicable remedies
in the Minister's decision had falsely indicated the Judicial Council as the
competent appeals tribunal. The decision of the Judicial Council should thus
be considered null and void.
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[FN1] In this context, the author refers to the Procola v. Luxembourg
judgment of the European Court of Human Rights, Series A, vol. 326.
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3.3 The author claims that she has exhausted domestic remedies, as no
further appeal is available from the judgement of the Central Appeals
Tribunal, and that the same matter is not being examined under another
procedure of international investigation or settlement.
STATE PARTY'S SUBMISSIONS
4.1 By submission of 23 March 2004, the State party argues that the claim
under article 14 of the Covenant is inadmissible because the author has not
raised this issue in the domestic proceedings and thus failed to exhaust
domestic remedies in this respect.
4.2 By submission of 24 July 2004, the State party explains that the author
could have challenged the lack of impartiality of the Council of State in
her notice of appeal or in her pleading, but instead she raised the issue
eleven years after her case was heard. The State party further argues that
the author has failed to substantiate her claim that there was a lack of
independence and impartiality. The State party explains that the advisory
and judicial tasks are carried out by different departments within the
Council and that all members of the Council are appointed for life and that
their independence is guaranteed like for members of other judicial bodies.
[FN2] Likewise, the author's argument that the Council of State was not
competent to deal with her claims could have been raised at the time. The
State party concludes that this part of the communication should be declared
inadmissible or alternatively ill-founded.
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[FN2] The State party refers to a recent judgement by the ECHR (Kleyn and
others v. the Netherlands, 6 May 2003) where a complaint about the alleged
lack of impartiality of the Administrative Jurisdiction Division of the
Council was declared manifestly unfounded.
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4.3 With regard to the author's claim that she should be treated equally
with widows of former civil servants in the Netherlands, the State party
explains that, after Dutch divorce law was reformed in 1971, the legislator
purposely made no provision in the PRNG in 1971 for the specific group of
widows to which she belongs. This position was explained in a letter from
the Minister to Parliament on 19 August 1971. The State party states that
upon the transfer of administrative responsibility for the former overseas
territories of the Dutch East Indies and New Guinea, the Netherlands
undertook to award and pay pensions to widows of former civil servants in
these territories. Under the agreement regulating the transfer, the
Netherlands guaranteed entitlements as they existed at the time of the
transfer. Entitlements for a widow's pension at the time were to the woman
to whom the deceased was married before age 65 and to whom he was still
married at the time of his death. The State party thus argues that its
obligations with regard to widow's pensions under these schemes are
therefore limited to rights and entitlements accrued some time ago. An
amendment of the regulations in line with the revised divorce law would have
entailed a departure from the policy followed hitherto and moreover
infringed the rights of the last wife/widow, who no longer would have been
entitled to the full pension. According to the State party, the problem of
sharing entitlements among previous wives was not an issue in the
introduction of divorce law into Dutch pension schemes. The State party thus
argues that in this sense the widows/wives of former civil servants of
overseas territories were not in the same position as the widows/wives of
civil servants covered by a Dutch pension scheme. The State party adds that
it was recognised that the court establishing the financial arrangements in
a divorce case could take this situation into account.
4.4 When considering the author's case, the Judicial Division of the Council
of State accepted the Minister's arguments that the difference in treatment
did not infringe the right to equality since the cases in question were not
the same as they related to different categories of civil servants.
Moreover, it was considered relevant that, when the author's marriage was
dissolved, the loss of entitlement to a widow's pension under the PRNG was
taken into account in that her husband made provision for her, which the
court considered to be reasonable.
4.5 The State party explains that the Minister's decision in 1999 to award
the author a special widow's pension did not stem from the above arguments
ceasing to be valid, but was rather prompted by the fact that the prevailing
attitudes towards married women's pension entitlements had moved on to such
an extent as to be incompatible with the lack of entitlement to special
widow's pension. The basis of the award was not the principle of equal
treatment but the hardship clause in the PRNG.
4.6 The State party therefore concludes that there has been no breach of the
principle of equality contained in article 26 of the Covenant.
AUTHOR'S COMMENTS
5.1 By letter of 14 September 2004, the author comments on the State party's
observations and maintains that article 14 of the Covenant has been violated
because the Judicial Division of the Council of State was not competent to
decide on her appeal in 1993. She moreover maintains that it lacked
objective impartiality.
5.2 As to the State party's arguments why the difference in treatment does
not constitute a violation of the rights to equality, the author takes issue
with the State party's reference to the situation of former civil servants
in the Dutch East Indies. She explains that there is a difference in legal
status between the former civil servants in the East Indies and the members
of the Assistance Corps New Guinea. The former are subject to an agreement
with Indonesia whereas the status of the latter was laid down in the
Assistance Corps Act of 25 May 1962 and regulated by Dutch law. She argues
therefore that the PRNG is a Dutch pension scheme and not, as the State
party suggests an overseas pension scheme.
5.3 The author recalls that the PRNG was drafted in 1957-58 when the concept
of special widow's pension had not yet been introduced into Dutch law. She
states that the PRNG reflects Dutch law, and especially the Public Servants
Superannuation Act, as it was at the time. According to the author, there
was therefore no reason not to amend it accordingly when the special widow's
pension was introduced into the Public Servants Superannuation Act in 1966
or at the latest in 1973 when the special widow's pension was made
obligatory for all pension schemes. She states in this respect that a number
of other amendments have been introduced in the PRNG to adapt it to
developments in Dutch legislation, for instance to expand the notion of
orphans entitled to a pension.
5.4 The author recalls that she was married throughout the period in which
her husband worked in New Guinea and that all premiums were paid for the
widow's pension, to which no one else could have been entitled than she. The
adaptation of the PRNG would have had no international consequences, unlike
the adaptation of the pensions for the former Dutch East Indies civil
servants. She maintains therefore that the failure to grant her a special
widow's pension based on equality with all other divorced widows under Dutch
law constitutes a violation of article 26 of the Covenant.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
6.2 The Committee has ascertained that the same matter is not being examined
under another procedure of international investigation or settlement for the
purposes of article 5 paragraph 2(a) of the Optional Protocol.
6.3 The Committee has taken note of the State party's objection to the
admissibility of the author's claim under article 14 of the Covenant, for
failure to exhaust domestic remedies in this respect. The Committee further
notes that the author in her comments has not raised any arguments to show
that these domestic remedies were not available or not effective. The
information before the Committee shows that the author has not raised the
question of the lack of impartiality or the lack of competence of the
Council of State at the time that her appeal was heard. The Committee finds
therefore that this part of the communication is inadmissible under article
5, paragraph 2(b), of the Optional Protocol.
6.4 In the absence of any further obstacles to the admissibility of the
communication the Committee declares the communication admissible with
regard to the remaining claim under article 26 of the Covenant.
CONSIDERATION OF THE MERITS
7.1 The Committee has considered the present communication in the light of
all the information made available by the parties, as provided in article 5,
paragraph 1, of the Optional Protocol.
7.2 The author has claimed that the failure to grant her a special widow's
pension over the years 1991 - 1998 is in violation of article 26 of the
Covenant by the State party. The State party has argued that the distinction
made in the relevant legal provisions relates to different categories of
civil servants. It has moreover argued that the fact that the author would
lose her entitlement to a widow's pension was taken into account at the time
of her divorce and that arrangements were made to compensate this loss,
which the Court at the time considered reasonable, and the author has not
challenged this part of the State party's observations. The Committee
recalls its jurisprudence that not every differentiation based on the
grounds listed in Article 26 of the Covenant amounts to discrimination, as
long as it is based on reasonable and objective grounds. [FN3] In the
circumstances of the present case, the Committee finds that the distinction
between Dutch widows of former employees of the Assistance Corps of
Netherlands New Guinea and widows of other former Dutch civil servants is
not based on any of the relevant characteristics enumerated in Article 26
nor amounts to other status in the sense of this article. Furthermore, the
material before the Committee, in particular references to the reasons
presented to the legislator in 1971 why the PRNG should not be amended (para
4.3 above), does not disclose a lack of reasonableness and objectivity.
Therefore, the failure to grant the author a pension from 1991 to 1998 does
not constitute a violation of article 26 of the Covenant.
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[FN3] See inter alia the Committee's jurisprudence in Broeks v. the
Netherlands (CCPR/C/29/D/172/1984, para. 13), Zwaan - de Vries v. the
Netherlands (CCPR/C/29/D/182/1984, para.13), H. Vos v. the Netherlands (CCPR/C/35/D/218/1986,
para 11.3), Pauger v, Austria (CCPR/C/44/D/415/1990, para 7.3), Müller and
Engelhard v. Namibia (CCPR/C/74/D/919/2000, para 6.7) and Derksen v. the
Netherlands (CPR/C/80/D/976/2001, para. 9.2).
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8. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol, is of the view that the facts before it do not disclose a
violation of the International Covenant on Civil and Political Rights.
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Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly. |
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