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1. The author of the
communication is Cecilia Derksen, a Dutch national. She submits the
communication on her own behalf and on behalf of her child Kaya Marcelle
Bakker, born on 21 April 1995, and thus 5 years old at the time of the
initial submission. She claims that she and her child are the victims of a
violation by the Netherlands of article 26 of the International Covenant on
Civil and Political Rights. The author is represented by counsel.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 The author shared a household with her partner Marcel Bakker from August
1991 to 22 February 1995. It is stated that Mr. Bakker was the breadwinner,
whereas Ms. Derksen took care of the household and had a part-time job. They
had signed a cohabitation contract and when Ms. Derksen became pregnant, Mr.
Bakker recognized the child as his. The author states that they intended to
marry. On 22 February 1995, Mr. Bakker died in an accident.
2.2 On 6 July 1995, the author requested benefits under the General Widows
and Orphans Law (AWW, Algemene Weduwen en Wezen Wet). On 1 August 1995, her
request was rejected because she had not been married to Mr. Bakker and
therefore could not be recognized as widow under the AWW. Under the AWW,
benefits for half-orphans were included in the widows' benefits.
2.3 On 1 July 1996, the Surviving Dependants Act (ANW, Algemene Nabestaanden
Wet) replaced the AWW. Under the ANW, unmarried partners are also entitled
to a benefit. On 26 November 1996 Ms. Derksen applied for a benefit under
the ANW. On 9 December 1996, her application was rejected by the Social
Insurance Bank (Sociale Verzekeringsbank) on the grounds that "(�) only
those who were entitled to a benefit under the AWW on 30 June 1996 and those
who became widow on or after 1 July 1996 are entitled to a benefit under the
ANW".
2.4 Ms. Derksen's request for revision of the decision was rejected by the
Board of the Social Insurance Bank on 6 February 1997. Her further appeal
was rejected by the District Court Zutphen (Arrondissementsrechtbank Zutphen)
on 28 November 1997. On 10 March 1999, the Central Council of Appeal (Centrale
Raad van Beroep) declared her appeal unfounded. With this, all domestic
remedies are said to be exhausted.
THE COMPLAINT
3.1 According to the author, it constitutes a violation of article 26 of the
Covenant to distinguish between half-orphans whose parents were married and
those whose parents were not married. It is stated that the distinction
between children born of married parents and children born of non-married
parents cannot be justified on objective and reasonable grounds. With
reference to the Human Rights Committee's decision in Danning v. the
Netherlands, it is argued that the Committee's considerations do not apply
in the present case, as the decision not to marry has no influence on the
rights and duties in the parent-child relationship.
3.2 The author further points out that under the ANW, half-orphans whose
parent died on or after 1 July 1996 do have an entitlement to a benefit,
whether the parents were married or not, thereby eliminating the unequal
treatment complained of above. According to the author it is unacceptable to
maintain the unequal treatment for half-orphans whose parent died before 1
July 1996.
3.3 The author further claims that she herself is also a victim of
discrimination. She accepts, on the basis of the Committee's decision in
Danning v. the Netherlands, the decision not to grant her a benefit under
the AWW, since benefits under that law were limited to married partners.
However, now that the law has changed and allows benefits for unmarried
partners, she cannot accept that she is still being refused a benefit solely
on the basis that her partner died before 1 July 1996. The author argues
that once it is decided to treat married and unmarried partners equally this
should apply to all regardless of the date of the death of the partner and
that the failure to do so constitutes a violation of article 26 of the
Covenant.
STATE PARTY'S OBSERVATIONS
4.1 By submission of 23 November 2001, the State party accepts the facts as
described by the author. It adds that the Central Council of Appeal, in
rejecting the author's appeal, considered that provisions outlawing
discrimination such as article 26 of the Covenant are not designed to offer
protection from disadvantages which may be caused by time restraints
inherent to amendments of legislation. In the opinion of the Council, when
new rights are provided, no obligation exists to extend those rights to
cases predating the change.
4.2 The State party explains that when the AWW was replaced by the ANW, the
transitional regime was based on respect for prior rights, in the sense that
existing rights under the AWW were respected and no new rights could be
claimed resulting from a death prior to the entry into force of the ANW.
4.3 Concerning the admissibility of the communication, the State party
points out that the author has not appealed the decision of 1 August 1995 by
which her application under the AWW was rejected. The State party argues
that to the extent that the communication relates to the distinctions made
in the AWW, it should be declared inadmissible.
4.4 As to the merits, the State party refers to the Committee's prior
jurisprudence in cases concerning social security, and seeks to infer from
these decisions that it is for the State to determine what matters it wishes
to regulate by law and under what conditions entitlement is granted, as long
as the legislation adopted is not discriminatory in nature. From the earlier
decisions in which the Committee has reviewed the Dutch social security
legislation the State party concludes that the distinction between married
and unmarried couples is based on reasonable and objective grounds. The
State party recalls that the Committee has based its view on the fact that
persons are free to choose whether or not to engage in marriage and accept
the responsibilities and rights that go with it.
4.5 The State party rejects the author's opinion that the new legislation
should be applied to old cases as well. It points out that the ANW was
introduced to reflect the changes in the society where living together as
partners otherwise than through marriage has become common. In the State's
party's opinion, it is up to the national legislature to judge the need for
a transitional regime. The State party emphasizes that those persons who are
now entitled to benefits under the ANW are persons with established rights.
This distinguishes them from persons who like the author do not have
established rights. Before 1 July 1996, marriage was a relevant factor for
benefits under the surviving dependants' legislation, and people were free
to marry and thereby safeguard entitlement to the benefits, or not to marry
and thereby choose to be excluded from such entitlement. The fact that the
ANW has now abolished the differential treatment between married and
unmarried cohabitating persons does not alter this pre-existing position.
The State party concludes that the transitional regime does not constitute
discrimination against the author.
4.6 To the extent that the communication relates to Ms. Derksen's daughter,
the State party states that its above observations apply mutatis mutandis
also to the claim of unequal treatment of half-orphans. The State party
explains in this respect that, as was also the case under the old law, it is
not the half-orphan herself who is entitled to the benefit but the surviving
parent. Since neither the old nor the new legislation grants entitlements to
half-orphans, the State party is of the opinion that there can be no
question of discrimination within the meaning of article 26 of the Covenant.
4.7 Concerning the claim that the AWW made a prohibited distinction between
children born out of wedlock and children born of a marriage, the State
party argues first that the author has not exhausted domestic remedies in
this respect. It further argues that the claim is groundless, because the
status of the child was irrelevant to the determination under the AWW
whether or not a surviving spouse was entitled to a benefit as it was the
status of the spouse that determined whether or not a benefit would be
provided for the half-orphan.
THE AUTHOR'S COMMENTS
5.1 By letter dated 25 January 2002, the author notes that the main question
is whether or not equal cases may be treated differently because of the time
factor, i.e. whether equal treatment between married and unmarried
cohabitants may be restricted to those cases in which one of the partners
died after 1 July 1996. The author remarks that the insurance scheme
established by the ANW is a collective national scheme in which all
taxpayers participate. The author refers to the history of other schemes
(such as old age pensions, children's benefits) and states that these
applied to all eligible residents and not just to those who became eligible
only after the date of enactment. The author further argues that social
insurance schemes cannot be compared with commercial insurance schemes and
claims that profit considerations would deny the special character of social
insurance schemes.
5.2 As to the transitional provisions of the ANW, the author points out that
originally the law was enacted in order to provide for equality between men
and women, and that the equality between married and unmarried partners was
only added after debate in Parliament. The reason for the transitional
scheme was that the new law established stricter requirements than the old
law, but that for reasons of legal security all those who had been eligible
under the old law would also be eligible under the new law, whereas the
stricter requirements would apply to newly eligible persons. According to
the author, the question whether surviving dependants of unmarried persons
who had died before 1 July 1996 should be granted benefits was never posed,
and there was thus no conscious decision in this respect. The author further
argues that through changes in the calculation of benefits and earlier
termination of benefits, the ANW was intended to lower the costs, as is
borne out by the statistics over the years 1999, 2000 and 2001 which show
that less people are entitled to benefits under the ANW than under the old
AWW. In the opinion of the author, the extension to 'old' cases of unmarried
dependants could thus be easily financed. Moreover, the author recalls that
like all taxpaying residents she and her partner paid premiums under the AWW.
5.3 The author maintains that the transitional provisions are discriminatory
and points out that if her partner had died 17 months later, she and the
child would have been entitled to a benefit. They face the same
circumstances as dependants whose partner/parent died after 1 July 1996. The
unequal treatment of equally situated persons is clearly in violation of
article 26 of the Covenant.
5.4 As to the author's daughter, the author notes that she is being treated
differently than children whose father was married to their mother or whose
father died after 1 July 1996. In the opinion of the author this amounts to
prohibited discrimination as the child has no influence on the decision
whether her parents marry or not. With reference to the jurisprudence of the
European Court on Human Rights, the author argues that differential
treatment between children born in and children born out of wedlock is not
permissible.
5.5 The author recalls that differential treatment which is not based on
objective and reasonable grounds and which does not have a legitimate aim
constitutes discrimination. She also recalls that in March 1991 the
Government had already introduced legislation abolishing the distinction
between married and unmarried dependants, but that this proposal was
withdrawn at the time. She argues that she and her daughter should not pay
for the slow pace of enactment of these amendments. She submits that
unmarried cohabitation has been accepted practice in the Netherlands for
years before the law was changed. The author concludes that she and her
daughter have been subjected to different treatment for which no objective
and reasonable grounds exist, and which has no legitimate aim.
STATE PARTY'S FURTHER OBSERVATIONS
6.1 By letter of 7 May 2002, the State party states that it does not share
the author's view that article 26 of the Covenant envisages that new
legislation must be applied to pre-existing cases. The State party refers to
its previous observations and concludes that the transitional regime does
not constitute discrimination.
6.2 The State party refers to the Committee's decision in the case of
Hoofdman v. the Netherlands in which the Committee was of the opinion that
the distinction between married and unmarried partners under the AWW did not
constitute discrimination. The State party submits that different legal
regimes applied to married and unmarried couples at the time the author
decided to cohabitate with her partner without marrying him and that the
decision not to marry entailed legal consequences that were known to the
author.
6.3 The State party also argues that the transitional regime cannot be
considered discriminatory in itself, as it distinguishes between two
different groups: surviving dependants who were entitled to a benefit under
the AWW and those who were not. The distinction was made for reasons of
legal security in order to guarantee the rights that people had acquired
under the old legislation.
6.4 Furthermore, the State party argues that the ANW being a national
insurance scheme to which all residents contribute, it obliges the
government to keep the collective costs as low as possible. As to the
author's reference to the introduction of other social security schemes, the
State party points out that a distinction must be made between the
introduction of such a scheme and the alteration of an existing scheme.
6.5 As to the status of half- orphans born outside marriage, the State party
reiterates that the status of the child is not relevant to eligibility for
benefits, under either the new or the old scheme. It is the surviving parent
who cares for the child who is eligible for benefits. Therefore, the status
of the parents was and still is the deciding factor. As long as the
distinction between married and unmarried cohabitating parents was
justified, as it is according to the Committee's Views in Hoofdman v. the
Netherlands, the ANW can not be said to perpetuate discriminatory treatment.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
7.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
7.2 The Committee has noted the State party's objections to the
admissibility of the communication on the grounds that the author has not
exhausted available domestic remedies with regard to the refusal of a
benefit under the AWW. The Committee considers that in so far as the
communication relates to alleged violations resulting from the decision not
to grant her a benefit under the AWW, this part of the communication is
inadmissible under article 5, paragraph 2(a) of the Optional Protocol.
7.3 The Committee has ascertained that the same matter is not being examined
under another procedure of international investigation or settlement for
purposes of article 5, paragraph 2(a) of the Optional Protocol.
8. Accordingly, the Committee decides that the communication in so far as it
relates to the refusal of benefit under the ANW is admissible and should be
considered on its merits.
CONSIDERATION OF THE MERITS
9.1 The Human Rights Committee has examined 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.
9.2 The first question before the Committee is whether the author of the
communication is a victim of a violation of article 26 of the Covenant,
because the new legislation which provides for equal benefits to married and
unmarried dependants whose partner has died is not applied to cases where
the unmarried partner has died before the effective date of the new law. The
Committee recalls its jurisprudence concerning earlier claims of
discrimination against the Netherlands in relation to social security
legislation. The Committee reiterates that not every distinction amounts to
prohibited discrimination under the Covenant, as long as it is based on
reasonable and objective criteria. The Committee recalls that it has earlier
found that a differentiation between married and unmarried couples does not
amount to a violation of article 26 of the Covenant, since married and
unmarried couples are subject to different legal regimes and the decision
whether or not to enter into a legal status by marriage lies entirely with
the cohabitating persons. By enacting the new legislation the State party
has provided equal treatment to both married and unmarried cohabitants for
purposes of surviving dependants' benefits. Taking into account that the
past practice of distinguishing between married and unmarried couples did
not constitute prohibited discrimination, the Committee is of the opinion
that the State party was under no obligation to make the amendment
retroactive. The Committee considers that the application of the legislation
to new cases only does not constitute a violation of article 26 of the
Covenant.
9.3 The second question before the Committee is whether the refusal of
benefits for the author's daughter constitutes prohibited discrimination
under article 26 of the Covenant. The State party has explained that it is
not the status of the child that determines the allowance of benefits, but
the status of the surviving parent of the child, and that the benefits are
not granted to the child but to the parent. The author, however, has argued
that, even if the distinction between married and unmarried couples does not
constitute discrimination because different legal regimes apply and the
choice lies entirely with the partners whether to marry or not, the decision
not to marry cannot affect the parents' obligations towards the child and
the child has no influence on the parents' decision. The Committee recalls
that article 26 prohibits both direct and indirect discrimination, the
latter notion being related to a rule or measure that may be neutral on its
face without any intent to discriminate but which nevertheless results in
discrimination because of its exclusive or disproportionate adverse effect
on a certain category of persons. Yet, a distinction only constitutes
prohibited discrimination in the meaning of article 26 of the Covenant if it
is not based on objective and reasonable criteria. In the circumstances of
the present case, the Committee observes that under the earlier AWW the
children's benefits depended on the status of the parents, so that if the
parents were unmarried, the children were not eligible for the benefits.
However, under the new ANW, benefits are being denied to children born to
unmarried parents before 1 July 1996 while granted in respect of similarly
situated children born after that date. The Committee considers that the
distinction between children born, on the one hand, either in wedlock or
after 1 July 1996 out of wedlock, and, on the other hand, out of wedlock
prior to 1 July 1996, is not based on reasonable grounds. In making this
conclusion the Committee emphasizes that the authorities were well aware of
the discriminatory effect of the AWW when they decided to enact the new law
aimed at remedying the situation, and that they could have easily terminated
the discrimination in respect of children born out of wedlock prior to 1
July 1996 by extending the application of the new law to them. The
termination of ongoing discrimination in respect of children who had had no
say in whether their parents chose to marry or not, could have taken place
with or without retroactive effect. However, as the communication has been
declared admissible only in respect of the period after 1 July 1996, the
Committee merely addresses the failure of the State party to terminate the
discrimination from that day onwards which, in the Committee's view,
constitutes a violation of article 26 in regard of Kaya Marcelle Bakker in
respect of whom half orphan's benefits through her mother was denied under
the ANW.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol, is of the view that the facts before it relating to Kaya
Marcelle Bakker disclose a violation of article 26 of the International
Covenant on Civil and Political Rights.
11. In accordance with article 2, paragraph 3(a), of the Covenant, the State
party is under an obligation to provide half orphans' benefits in respect of
Kaya Marcelle Bakker or an equivalent remedy. The State party is also under
an obligation to prevent similar violations
12. Bearing in mind that, by becoming a party to the Optional Protocol, the
State party has recognized the competence of the Committee to determine
whether there has been a violation of the Covenant or not and that, pursuant
to article 2 of the Covenant, the State party has undertaken to ensure to
all individuals within its territory or subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective and
enforceable remedy in case a violation has been established, the Committee
wishes to receive from the State party, within ninety days, information
about measures taken to give effect to the Committee's Views. The State
party is also requested to publish the Committee's Views.
______________________________________
[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.]
** Two separate individual opinions signed by Mr. Nisuke Ando and Sir Nigel
Rodley are appended to the present document.
APPENDIX
INDIVIDUAL OPINION OF COMMITTEE MEMBER, MR. NISUKE ANDO
Unfortunately I cannot share the Committee's conclusion that the ANW
violates article 26 of the Covenant in denying half orphan benefits to
unmarried partners before 1 July 1996, while granting the same benefits to
children of unmarried partners after that date.
The facts in the present case, as I see them, are the following: On 1 July
1996, the Surviving Dependants Act (ANW) replaced the General Widows and
Orphans Law (AWW). Under the new law, unmarried partners are entitled to a
benefit, to which only married couples were entitled under the old law. The
author applied for the benefit under ANW but was rejected because her
partner died on 22 February 1995, seventeen months before the new law was
enacted, and since the law has no retroactive effect, she is not entitled to
apply for the benefit. The author claims that, once it is decided to treat
married couples and unmarried partners equally, this should apply to all
regardless of the date of the death of their partner and that the failure to
do so constitutes a violation of article 26 to the detriment not only of
herself but also of her daughter. (3.3, 5.3 and 5.4)
It is unfortunate that the new law affects her as well as her daughter
unfavourably in the present case. However, in interpreting and applying
article 26, the Human Rights Committee must take into account the following
three factors: First, the codification history of the Universal Declaration
of Human Rights makes it clear that only those rights contained in the
International Covenant on Civil and Political Rights are justiciable and the
Optional Protocol is attached to that Covenant, while the rights contained
in the International Covenant on Economic, Social and Cultural Rights are
not justiciable. Second, while the principle of non-discrimination enshrined
in article 26 of the former Covenant may be applicable to any field
regulated and protected by public authorities, the latter Covenant obligates
its States parties to realize rights contained therein only progressively.
Third, the right to social security, the very right at issue in the present
case, is provided not in the former Covenant but in the latter Covenant and
the latter Covenant has its own provision on non-discriminatory
implementation of the rights it contains.
Consequently, the Human Rights Committee needs to be especially prudent in
applying its article 26 to cases involving economic and social rights, which
States parties to the International Covenant on Economic, Social and
Cultural Rights are to realize without discrimination but step-by-step
through available means. In my opinion, the State party in the present case
is attempting to treat married couples and unmarried partners equally but
progressively, thus making the application of ANW not retroactive. To tell
the State party that it is violating article 26 unless it treats all married
couples and unmarried partners exactly on the same footing at once sounds
like telling the State party not to start putting water in an empty cup it
if cannot fill the cup all at once!
[Signed] Nisuke Ando
[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.]
INDIVIDUAL OF COMMITTEE MEMBER, SIR NIGEL RODLEY (DISSENTING)
I do not consider that the Committee's finding of a violation in respect of
Kaya Marcelle Bakker, the author's daughter (paragraph 9.3), withstands
analysis. To comply with the Committee's interpretation of the Covenant, the
State Party would have had to make the ANW retroactive. Indeed, it is the
very absence of retroactivity that, according to the Committee, constitutes
the violation. Since most legislation has the effect of varying people's
rights as compared with the situation prior to the adoption of the
legislation, the Committee's logic would imply that all legislation granting
a new benefit must be retroactive if it is to avoid discriminating against
those whose rights fall to be determined under the previous legislation.
Furthermore, I believe the Committee is straining beyond endurance the
notion of victim in the present case. Whether under the AWW or the ANW, no
person born out of wedlock had or has any independent right to a benefit.
The mother, in this case the author, was and is free to dispose of the
benefit without being obliged to apply it to her child's welfare. The
already vulnerable doctrine of indirect discrimination that the Committee is
here applying is being subjected to intolerable pressure in being asked to
sustain the Committee's argument. After all, the asserted indirect
discrimination between children of mothers who bore them before or after the
ANW was adopted does not begin to compare with the direct discrimination
between children born within and those born out of wedlock. Yet the
Committee refrains from finding that discrimination to be incompatible with
the Covenant, simply by deciding that the communication is admissible only
in respect of the applicability of the ANW (paragraph 7.2). (In this
connection I also note that, since the Committee's decision on the merits
concerns a difference between the ANW and the AWW, then the logic of this is
that the inadmissibility decision should have applied to both pieces of
legislation; after all, a successful remedy in respect of the AWW would have
resolved the apparent discrepancy in the application of the ANW.)
Accordingly, while regretting that the State Party could not have arranged
to be more generous in its introduction of the ANW to benefit all those
families in the position of Ms. Baakker and her daughter, I am unable to
find a violation of the Covenant.
[Signed] Sir Nigel Rodley
[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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