Instantie
VN Comite rechten van de mens
Samenvatting
Klaagster was werkloos van 1 augustus 1983 tot 18 augustus 1985. Zij vroeg
op 1 april 1985 een WWV-uitkering aan en die werd haar alsnog toegekend
vanaf 23 december 1984. Klaagster eist ook een WWV-uitkering voor de
periode 1 februari 1984 tot 23 december 1984. Zij heeft echter niet kunnen
aantonen dat de WWV-regeling niet gelijkelijk op haar is toegepast.
Bovendien heeft zij voor 23 december 1984 geen WWV aangevraagd en kan zij
dus geen slachtoffer zijn van een schending van art. 26 BuPo-verdrag. De
klacht is daarom niet- ontvankelijk. De rechtstreekse werking van het
BuPo-verdrag is een zaak van nationaal recht.
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Decision on admissiblility
1. The author of the communication is Mrs. R., a citizen of the
Netherlands, residing in De lier, the Netherlands. She claims to be a
victim of a violation by the Netherlands of article 26 of the
International Covenant on Civil and Political Rights. She is represented
by counsil.
The facts as submitted by the author:
2.1. The author, who is married, was employed as a schoolteacher from
August 1982 to August 1983. As of 1 August 1983, she was unemployed. She
claimed, and received, unemployment benefits by virtue of the WWV
(Unemployment Act). Pursuant to the provisions of that Act, the benefits
were granted for a maximum period of six months, i.e. until 1 February
1984. The author subsequently found new employment as of 18 August 1985.
2.2. Having received WW benefits for the maximum period ending on 1
February 1984, the author contends, that she was entitled, thereafter, to
a benefit under the then WWV (Unemployment Provision Act), for a period
of up two years. Those benefits would have amount to 75 per cent of the
last salary, whereas the WW benefits amounted to 80 per cent of the last
salary.
2.3. In 1 April 1985, the author applied for WWV benefits; her application
was, however, rejected by the Municipality of De Lier on 23 May 1985, on
the grounds that, as a married woman who did not qualify as a breadwinner,
she did not meet the requirements of the Act. The rejection was based on
article 13, paragraph 1, subsection 1, of WWV, which did not apply to
married man.
2.4. On 26 February 1987, the municipality confirmed its earlier decision.
On 26 April 1989, however, it partly revoked its decision and granted the
author WWV benefits for the period of 23 December 1984 to 18 August 1985.
It still refused benefits for the period of 1 February to 23 December 1984
(see paragraph 2.5. below). The author appealed the decision to the Board
of Appeal in The Hague which, on 15 November 19890, declared her appeal
unfounded. The author subsequently appealed to the Central Board of Appeal
which, by judgment of 5 July 1991, confirmed the Board of Appeal’s
decision.
2.5. In its judgment of 5 July 1991, the Central Board of Appeal refers
to its judgment of 10 May 1989 in the case of Mrs. R in which it noted
that article 26 in conjunction with article 2 of the International
Covenant on Civil and Political Rights applies also to the granting of
social security benefits and similar entitlements. The Central Board
further observed that the explicit exclusion of married women unless they
met specific requirements that are not applicable to married men, implied
direct discrimination on the ground of sex in relation to marital status.
The Central Board, having made reference to article 26 of the Covenant,
indicated that it was to have direct applicability as of 23 December 1984.
2.6. On 24 April 1985, the State party abolished the requirement of
article 13, paragraph 1, subsection 1, limiting the retroactive effect,
however, to persons who had become unemployed on or after 23 December
1984. In 1991, further amendments to the WWV resulted in the abolition of
this limitation as a consequence of which women can claim benefits also
when they became unemployed before 23 December 1984, provided they satisfy
the other requrements of the Act. One of the other requirements is that
the applicant must be unemployed on the date of application.
The complaint:
3.1. In the author’s opinion, the denial of WWV benefits amounts to
discrimination within the meaning of article 26 of the Covenant. In this
context, she refers tot the Committee’s Views in respect of communications
No. 172/1984 (Broeks v. the Netherlands) and No. 182/1984 (Zwaan-de Vries
v. the Netherlands).
3.2. The author notes that the Covenant entered into force for the
Netherlands on 11 March 1979, and that, accordingly, article 26 was
directly applicable as of that date. She contends that the date of 23
December 1984 was chosen arbitrarly, as there is no formal link between
the Covenant and the Third EEC Directive. The Central Board had not, in
earlier, judgments, taken a consistent view with regard to the direct
applicability of article 26. In a case relating to the General Disablement
Act (AAW), for instance, the Central Board decided that article 26 could
not be denied direct applicability after 1 January 1980.
3.3. The author submits that the Netherlands had, upon ratifying the
Covenant, accepted the direct applicability of its provisions, in
accordance with articles 93 and 94 of the Constitution. She further argues
that, even if the possiblility of gradual elimination of discrimination
were permissible under the Covenant, the transitional period of almost 13
years between the adoption of the Covenant in 1966 and its entry into
force for the Netherlands in 1979 was sufficient to enable it to adapt
its legislation accordingly.
3.4. The author contends that the changes recently introduced in the
legislation do not provide her with a remedy for the discrimination
suffered under article 13, paragraph 1, subsection 1, of the old law. In
this contect, she points out that, although she applied for benefits while
she was still unemployed, the new law still does not entitle her to
benefits for the period of 1 February to 23 December 1984. According to
the current interpretation of the law, based on the jurisprudence of the
Central Board of Appeal, WWV benefits can be granted to women who had a
claim originating in unemployment that began before 23 December 1984, but
these benefits can only be granted as from 23 December 1984. For the
unemployment period before that date, benefits are still not being
granted. In a memorandum from the Deputy Minister of Social Affairs, dated
14 May 11990, in which the proposed amendments to the WWV were explained,
it is clearly stated that the starting dat of the benefits is either 23
December 1984 of a later date.
3.5. The author claims that she suffered financial damage as a result of
the application of the discriminatory WWV provisions, in the sense that
benefits were denied to her for the period of 1 February tot 23 December
1984. She requests the Human Rights Committee to find that article 26
acquired direct effect as from the date on which the Covenant entered into
force for the Netherlands, i.e., 11 March 1979, and that the denial of
benefits on the basis of article 13, paragraph 1, subsection 1, of WWV is
discriminatory within the meaning of article 26 of the Covenant. She
claims that WWV benefits should be granted to women on an equal footing
with men as of 11 March 1979, and in her case as of 1 February 1984.
The State party’s aobservations:
4. By submission of 18 February 1993, the State party confirms that the
author has exhausted domestic remedies and states that it is no aware of
any other abstacles to admissibility of the communication.
Issues and proceedings before the Committee:
5.1. Before considering any claim contained in a communication, the Human
Rights Committee must decide, in accordance with rule 87 of its rules of
procedure, whether of nor it is admissible under the Optional Protocol to
the Covenant.
5.2. The Committee notes that the State party does not object to the
admissibility of the communication. Nevertheless, it is in the Committee’s
duty to ascertain whether all the admissibility criteria laid down in the
Optional Protocol have been met.
5.3. The Committee notes that the author contends that she is entitled
without discrimination to benefits for the period of 1 February to 23
December 1984 and that the amendments in the law do not provide her with
a remedy. The Committee notes that the author applied for benefits under
the WWV on 1 April 1985, and that benefits were granted retroactively as
from 23 December 1984. With reference to its constant jurisprudence( See
inter alia the Committee’s Views with regard to communications No.
172/1984 (Broeks v. the Netherlands) and No. 182/1984 (Zwaan-de Vries v.
the Netherlands), adopted on 9 April 1987, and No. 415/1990 (Pauger v.
Austria), adopted on 26 March 1992). , the Committee 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 mat 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 a law must comply with article 26 of the Covenant.
5.4. The Committee notes that the law in question grants to men and women
alike benefits ad from the day of application, unless there are sufficient
reasons to grant benefits as from an earlier date. The Committee also
notes the view expressed by the Central Board of Appeal that benefits for
those women who did not qualify for benefits under the old law should be
granted retroactively as from 23 December 1984 but not earlier. The author
has failed to substantiate, for purposes of admissibility, that these
provisions were not equally applied to her, in particular that men who
belatedly apply are granted wider retroactive benefits, as from the date
in which they have become eligible for benefits, whereas she, as a woman,
was denied such benefits. Accordingly, the Committee finds that the author
has failed to substantiate her claim under article 2 of the Optional
Protocol in this regard.
5.5. As regards the author’s claim that the discriminatory nature of the
law from 1 February to 23 december 1984, and the application of the law
at that time, made her a victim of a violation of the right to equality
before the law, the Committee notes that the author, in the period between
1 February and 23 December 1984, did not apply for benefits under the WWV.
Therefore, she cannot claim to be a victim of a violation of article 26
by the application of the law in force during that period, even if the law
in question were found to be discriminatory in respect of some of those
applying under it. This aspect of the communication is thus inadmissible
under article 1 of the Optional Protocol.
5.6. As to the issue raised by the author whether article 26 of the
Covenant acquired direct effect in the Netherlands as from 11 March 1979,
the date on which the Covenant entered into force for the State party, or
in any event as from 1 February 1984, the Committee notes that the
Covenant applies for the Netherlands as from its date of entry into force.
The question of whether the Covenant can be invoked directly before the
Courts of the Netherlands is however a matter of domestic law. This part
of the communication is therefore inadmissible under article 3 of the
Optional Protocol.
6. The Human Rights Committee therefore decides: (a) That the
communication is inadmissible under articles 1, 2 and 3 of the Optional
Protocol; (b) That this decision shall be communicated to the State party,
to the author and to her counsel.