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1. The author of the
communication is H.J. Pepels, a Netherlands citizen, residing in Stein, the
Netherlands. He claims to be a victim of a violation by the Netherlands of
article 26 juncto articles 3 and 5 of the Covenant. He is represented by
counsel.
THE FACTS AS PRESENTED:
2.1 The author became a widower on 12 July 1978 and had to assume sole
responsibility for the upbringing of his four young children. The Algemene
Weduwen- en Wezenwet (AWW) (General Widows' and Orphans' Act) only provided
for benefits to widows who fulfilled certain requirements. Widows with
unmarried children living at home would qualify for the benefits, which were
not dependent on income. Widowers, however, were not entitled to benefits
under the AWW. Faced with this situation, the author did not apply for
benefits.
2.2 Ten years later, on 7 December 1988, the Centrale Raad van Beroep (CRvB)
(Central Board of Appeal), the highest court in social security cases,
decided that, despite the text of the law, widowers were also entitled to
AWW-benefits, since the legal provisions were considered to be in violation
of the principle of non-discrimination.
2.3 The author then applied for AWW-benefits. On 14 March 1989, he was
informed that an AWW-benefit would be granted to him as of 1 December 1987,
pursuant to article 25(3) of the law, which provides for the retroactive
grant of benefits for a period of up to one year preceding the date of
application. The author appealed the decision to grant him benefits as of 1
December 1987, claiming that special circumstances existed within the
meaning of article 25(5) of the AWW. Article 25(5) of the AWW provides that
if special circumstances exist, retroactive benefits can be granted for a
longer period. The Raad van Beroep (Board of Appeal), on 30 March 1990,
agreed that special circumstances should be taken into account and that the
author should be granted retroactive benefits. The Sociale Verzekeringsbank
(SVB), the body responsible for implementing the AWW, then appealed this
decision to the CRvB.
2.4 On 31 January 1991, the CRvB decided that, although the AWW was
inconsistent with article 26 of the Covenant (which entered into force for
the Netherlands on 11 March 1979), benefits could be granted to widowers
only as of 23 December 1984, the ultimate date established by the Third
Directive of the European Community (EC) for the elimination of
discrimination between men and women within the community. As regards the
retroactivity of benefits, the CRvB considered that unfamiliarity with
rights could be a factor in deciding whether special circumstances existed
to extend the retroactivity for a period longer than a year. It added,
however, that it could agree to a policy that would restrict the extra
retroactivity to cases of a specifically serious character.
2.5 On the basis of the CRvB's decision, the SVB decided not to change the
date (1 December 1987) as of which AWW benefits would be granted to the
author. The author's further appeal against this decision was dismissed by
the Maastricht District Court.
THE COMPLAINT:
3.1 The author claims that the decision not to grant him full retroactive
benefits violates article 26 juncto articles 3 and 5 of the Covenant.
3.2 It is submitted that the date of 23 December 1984 is arbitrary, since
only chosen for practical reasons. AWW-benefits are not covered by the Third
EC Directive, which prescribes the abolition of all discrimination between
men and women as of 23 December 1984. The author further submits that there
is no legal ground for a transitional period in the direct applicability of
article 26 of the Covenant. He states that the thirteen years between 1966
(when the State party signed the Covenant) and 1979 (when the Covenant
entered into force for the State party) should have been sufficient for the
government to adjust its legislation. He submits that a gradual
implementation of treaty regulations on non-discrimination is only relevant
as far as article 2(2) of the International Covenant on Economic, Social and
Cultural Rights is concerned, but that the application of article 26 of the
International Covenant on Civil and Political Rights is not similarly
restricted. He notes moreover that already in 1973, the Nederlandse
Gezinsraad (Dutch Family Council), an official advisory body to the
Government, recommended the granting of benefits under the AWW to widowers.
3.3 In this context, the author refers to the Views of the Human Rights
Committee in case No. 172/1984 (Broeks v. The Netherlands) FN1. He also
refers to a Government memorandum regarding the entry into force of the
Covenant, in which the Government stated unequivocally that there was no
reason to deny direct applicability of part III of the Covenant.
Furthermore, the author states that article 26 of the Covenant is reflected
in the Netherlands constitution, which prohibits discrimination on the
ground of, inter alia, gender.
-------------------------------------------------------------------------------------------------------------------------------[FN1]
Views adopted on 9 April 1987.
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3.4 The author states that article 26 of the Covenant is directly applicable
in the Netherlands as of 11 march 1979, and that the refusal of AWW benefits
to widowers violates this article as of that date.
THE COMMITTEE'S ADMISSIBILITY DECISION:
4. At its forty-seventh session, the Committee considered the admissibility
of the communication. It noted that the State party had confirmed that all
domestic remedies had been exhausted and that it had raised no other
objections to admissibility. On 19 March 1993, the Committee declared the
communication admissible in so far as it might raise issues under article 26
of the Covenant.
THE STATE PARTY'S OBSERVATIONS ON THE MERITS AND THE AUTHOR'S COMMENTS
THEREON:
5.1 By submission, dated 24 February 1994, the State party explains that the
award of pensions to widows alone and not to widowers derived from the fact
that, in 1959, when the AWW was enacted, the prevailing norm in society at
large was that the husband was the breadwinner while the wife was
responsible for running the household and taking care of the children.
According to the State party, there was therefore no reason for the scheme
to cover widowers too, as it was assumed that a widower would be able to
earn his own living. In theopinion of the State party, the principle of
equality embodied in article 26 of the Covenant was therefore not being
violated, because the different treatment could be justified on objective
and reasonable grounds.
5.2 The State party acknowledges that social realities have changed and that
the different treatment between widows and widowers can no longer be
justified in present-day society. It submits that it has decided to
introduce new legislation to replace the existing AWW, regulating pension
entitlements for both widows and widowers. The State party, however,
contends that one cannot apply the present standards with respect to article
26 of the Covenant to past facts and circumstances, when other social
realities were relevant. It argues that past facts and events should be
judged in the light of the social reality at that time.
5.3 The State party submits that the CRvB's decision that article 26 of the
Covenant had to be complied with as from 23 December 1984, and that benefits
could not be granted retroactively for a period prior to that date, is
reasonable. It argues that social security legislation makes distinctions
between different categories of persons in order to achieve social justice.
Since social trends develop gradually, the realisation that pension
entitlements can no longer be restricted to widows also took place
gradually. Since the legislation necessarily lags behind social developments
in society, the State party argues that it is reasonable to allow for a
certain amount of time to adjust legislation and practice before concluding
that they are in violation of the Covenant. In this context, the State party
refers to the Committee's decision in communication No. 501/1992 [FN2] and
to the individual opinion of three members of the Committee in the
Committee's Views with regard to communication No. 395/1990 [FN3].
-------------------------------------------------------------------------------------------------------------------------------[FN2]
J.H.W. v. The Netherlands , declared inadmissible on 16 July 1993.
[FN3] M.T. Sprenger v. The Netherlands , Views adopted on 31 March 1992.
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5.4 The State party submits that it regularly reviews its social security
legislation in the light of changes in social attitudes and structures. It
refers to its decision to introduce new legislation abolishing the legal
distinction between widows and widowers with regard to pensions, and states
that pending enactment of the bill, equal treatment is at present accorded
to widows and widowers on the basis of case law.
6.1 In his comments, dated 12 April 1994, the author argues that, even if in
1959 social reality was such that there was no reason to apply the AWW to
widowers, in 1979 this situation had already changed. The author refers to
his initial communication and quotes from a 1973 report of the Family
Council, where the extension of the applicability of the AWW to widowers was
recommended on an urgent basis. According to the author, there was therefore
no longer a valid reason in 1979, when the Covenant entered into force for
the Netherlands, to distinguish between widows and widowers in violation of
article 26 of the Covenant. In this context, the author refers to the prior
jurisprudence of the Committee FN4, in which the Committee held that
equality before the law implies that any distinctions in the enjoyment of
benefits must be based on reasonable and objective criteria. He argues that,
with regard to pensions for widows and widowers, the distinction between men
and women in 1979 was no longer based on reasonable and objective criteria.
-------------------------------------------------------------------------------------------------------------------------------[FN4]
See inter alia the Committee's Views with regard to communication No.
395/1990 ( M.T. Sprenger v. The Netherlands ), Views adopted on 31 March
1992, paragraph 7.2.
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6.2 The author further argues that, during the process of ratification of
the Covenant, the Government informed Parliament that the rights protected
in the Covenant would have directapplicability in the Netherlands, in the
sense that they could directly be invoked before the courts. The author
further notes that the Government explained that the long period between
signing the Covenant and ratifying it, had been necessary to bring the
legislation and existing practice in conformity with the provisions of the
Covenant. On this basis, the author argues that the State party now is
estopped from claiming that it needed an additional period of time to adjust
its social security legislation in order to bring it in line with the
Covenant. In this context, the author reiterates that the date of 23
December 1984 is irrelevant for the determination of direct applicability of
Covenant rights in the Netherlands.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE:
7.1 The Human Rights Committee has considered the present communication 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 Committee refers to its earlier jurisprudence and recalls that,
while article 26 requires that discrimination be prohibited by law and that
all persons be guaranteed equal protection against discrimination, it does
not concern itself with which matters may be regulated by law. Thus, article
26 does not of itself require States parties either to provide social
security benefits or to provide them retroactively in respect of the date of
application. However, when such benefits are regulated by law, then such law
must comply with article 26 of the Covenant.
7.3 The Committee notes that, while the law in question makes a distinction
between widows and widowers, this distinction has been inoperative since 7
December 1988, when the CRvB found it unreasonable and in violation of the
principle of equality. In other words, the distinction no longer applied
when Mr. Pepels requested benefits under the AWW on 14 December 1988 and was
granted benefits, retroactively, as from 1 December 1987.
7.4 Mr. Pepels claims that the law in question, as applied prior to the
decision of the CRvB, was inconsistent with article 26 of the Covenant.
However, he did not attempt to challenge the law at the material time by
claiming AWW benefits, as he now indicates would have been open to him,
inter alia by virtue of article 26 of the Covenant. Thus, the contested
provisions of the law were never applied in his particular case. In the
circumstances, the Committee has no grounds to pronounce itself on the
author's retroactive claim for the period between 11 March 1979 and 1
December 1987.7.5 The Committee observes that since December 1988 AWW
benefits are granted to widows and widowers alike. The Act provides for the
grant of retroactive benefits for up to one year preceding the date of
application; only in exceptional circumstances can benefits be granted as
from an earlier date. This provision is being applied to men and women
alike, and the information before the Committee does not show that Mr.
Pepels was treated differently than others. The Committee, therefore,
concludes that the way in which the law is applied since 1988 does not
reveal a violation of article 26 of the Covenant.
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 reveal a violation by
the State party of any of the articles of the Covenant. |
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