SEVINGER v. THE NETHERLANDS - 17173/07 [2007] ECHR 1207 (6 September 2007)

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Applications nos. 17173/07 and 17180/07
by Oslin Benito SEVINGER and Michiel Godfried EMAN
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 6 September 2007 as a Chamber composed of:

Mr B.M. Zupančič, President,
Mr C. Bîrsan,
Mrs E. Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David Thór Björgvinsson,
Mrs I. Ziemele, judges,
and Mr S. Quesada, Section Registrar,

The applicants, Mr M.G. Eman and Mr O.B. Sevinger, are Netherlands nationals, born in 1961 and 1965 respectively, who are both resident in Oranjestad (Aruba). They have resided in the Netherlands (the Realm in Europe) for a number of years, but not for a period of at least ten years. They were represented before the Court by Mr A.G. Croes, a lawyer practising in The Hague.

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 21 September and 5 October 2006 respectively the applicants requested the Municipal Executive of The Hague (College van Burgemeester en wethouders) to include them in the electoral register for the elections of members of the Lower House of the Netherlands Parliament on 22 November 2006.

By decisions of 5 and 20 October 2006 respectively the Municipal Executive rejected their requests, as they had not been residents of the Netherlands for a period of at least ten years. Pursuant to Section B1 § 1 and 2 sub A of the Elections Act (Kieswet) the applicants were thus not entitled to vote.

The applicants filed an appeal against these decisions with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). The applicants alleged that the Municipal Executive’s decisions were in breach of inter alia Article 3 of Protocol No. 1, submitting the following argumentation. The Lower House is a co-legislature in matters concerning the Kingdom of the Netherlands (hereinafter also referred to as: the Kingdom) and exercises political control over the establishment of general orders in council for the Kingdom (algemene maatregelen van rijksbestuur). The Netherlands Parliament, of which the Lower House is a part, in fact also acts as a “Kingdom Parliament”, thus the elections of members of the Lower House of the Netherlands Parliament imply also the elections of members of the “Kingdom Parliament”. In other words, the overlap between members of the Netherlands Parliament and the ones of the “Kingdom Parliament” implies ipso facto an overlap in respect of the elections of members of the Lower House of the Netherlands Parliament and the ones of the Lower House of the “Kingdom Parliament”.

By final judgment of 21 November 2006 the Administrative Jurisdiction Division of the Council of State dismissed the applicants’ appeal, holding inter alia the following:

“2.3.1. The Kingdom of the Netherlands is composed of three autonomous countries, the Netherlands, the Netherlands Antilles and Aruba. The relations within the Kingdom and the duties and responsibilities of the different countries are regulated in the Charter [for the Kingdom of the Netherlands; Statuut voor het Koninkrijk der Nederlanden, hereafter referred to as “the Charter”], which does not provide for a Kingdom Parliament. The three countries each have their own parliamentary representative body. The legislative power concerning Kingdom matters is exercised by the legislature of the Kingdom. Articles 15 to 21 of the Charter lay down the legislative procedure, providing for control over, and influence on, the legislative process for the representative bodies of the Netherlands, the Netherlands Antilles and Aruba.

2.3.2. Bills for Kingdom Acts are forwarded to the representative assemblies of the Netherlands Antilles and Aruba at the same time as they are introduced in Parliament. These [assemblies] are empowered, prior to the Bill being publicly debated in the Lower House, to examine the Bill, to issue a written report thereon and to designate one or more special delegates. Furthermore, the Ministers Plenipotentiary of the country in which the legislation is to apply – whose actions have to be accounted for in the representative assemblies of Aruba and the Netherlands Antilles –, are afforded the opportunity to attend the debate on the Bill in Parliament, to furnish information to the Upper and Lower House, to propose amendments to the Bill and to express their opinion on the Bill before a final vote is taken. If, after the Minister Plenipotentiary has stated his or her opposition to the Bill, the Lower House adopts it with a majority of less than three-fifths of the number of votes cast, the proceedings shall be suspended and further discussions on the Bill will take place in the Council of Ministers of the Kingdom. The same power is conferred on special delegates of the representative assemblies of the Netherlands Antilles and Aruba. Therefore, the Charter provides for a democratically legitimated contribution of the residents of the Netherlands, the Netherlands Antilles and Aruba on Kingdom Act legislation by the representative assemblies of the different countries, albeit that the contribution is not always organised in the same way in the countries. (...)

2.3.2. It has been established that the appellants are eligible to vote in the elections of members of the Parliament of Aruba. Therefore the rejection of their requests for registration does not constitute grounds to find a violation of the right laid down in Article 3 of Protocol No. 1 (...). That argument thus fails.

2.4. The appellants further argue that the rejection of their requests constitutes an unjustified difference in treatment, in breach of Article 14 of the Convention. They are excluded as Netherlands nationals from the right to vote in the Lower House Parliamentary elections, merely because they are residents of Aruba, whereas Netherlands nationals who are also not resident of the Netherlands do have that right.

2.4.1. This argument also fails. The legislature has chosen to grant the right to vote in elections for the Lower House also to Netherlands nationals who are not residents of the Netherlands, in order to guarantee that all Netherlands nationals have the right to vote for a representative assembly. In respect of residents of Aruba it is not in dispute that they have the right to vote for the Parliament of their country. Netherlands nationals who are not, or not any longer, residents of Aruba are ineligible, or lose their eligibility, to vote in elections for the Parliament of Aruba. In that respect the two situations are not the same, so for that reason alone there is no unjustified discrimination, within the meaning of Article 14 of the Convention. The fact that the Elections Act grants the right to vote to Netherlands nationals who are residents of the Netherlands Antilles and Aruba and who have resided in the Netherlands for ten years, thereby enabling them to vote in the election of two representative assemblies, is also not a circumstance which leads to the conclusion that there is an unjustified difference in treatment, within the meaning of the aforementioned provision. From the drafting history of Section B1 of the Elections Act (Parliamentary Documents I, 1984/1985, 18 694, nr. 232b, p. 2) it can be deduced that the legislature is of the opinion that a residence in the Netherlands of ten years or more creates a tie with the Netherlands to such an extent, that it is justified to grant the right to vote in the election of members of the Lower House [to this category of Netherlands nationals]. The residents of the Netherlands Antilles and Aruba who comply with this criterion are therefore clearly distinguishable from those who have never resided in the Netherlands. As regards residents of the Netherlands Antilles and Aruba who have resided in the Netherlands for a period of less than ten years, it cannot be held that the legislature could not reasonably have decided upon that criterion.”

Apart from the proceedings above, the applicants also started proceedings against the Municipal Executive of The Hague concerning the rejection of their application for inclusion in the electoral list for the election of members of the European Parliament on 10 June 2004. In the course of those proceedings, the Administrative Jurisdiction Division of the Council of State made a reference for a preliminary ruling to the Court of Justice of the European Communities. On 12 September 2006 the Court of Justice delivered its judgment (Case C-300/04), which reads inter alia:

“2. While, in the current state of Community law, there is nothing which precludes the Member States from defining, in compliance with Community law, the conditions of the right to vote and to stand as a candidate in elections to the European Parliament by reference to the criterion of residence in the territory in which the elections are held, the principle of equal treatment prevents, however, the criteria chosen from resulting in different treatment of nationals who are in comparable situations, unless that treatment is objectively justified.

§ 58 Here, the relevant comparison is between a Netherlands national resident in the Netherlands Antilles or in Aruba and one residing in a non-member country. They have in common that they are Netherlands nationals who do not reside in the Netherlands. Yet there is a difference in treatment between the two, the latter having the right to vote and to stand as a candidate in elections to the European Parliament held in the Netherlands whereas the former has no such right. Such a difference in treatment must be objectively justified.

§ 59 At the hearing, the Netherlands Government stated that the Electoral Law’s objective was to enable Netherlands nationals from the Netherlands residing abroad to vote, since those nationals are assumed still to have links with Netherlands society. However, it is also apparent from that Government’s explanations at the hearing that a Netherlands national who transfers his residence from Aruba to a non-member country has the right to vote in the same way as a Netherlands national transferring his residence from the Netherlands to a non-member country, while a Netherlands national-resident in Aruba does not have that right.

§ 60 In that regard, the objective pursued by the Netherlands legislature consisting in the conferment of the right to vote and to stand for election on Netherlands nationals who have or have had links with the Netherlands falls within that legislature’s discretion as regards the holding of the elections. However, the Netherlands Government has not sufficiently demonstrated that the difference in treatment observed between Netherlands nationals resident in a non-member country and those resident in the Netherlands Antilles or Aruba is objectively justified and does therefore constitute an infringement of the principle of equal treatment.”

In 1986, Aruba (until then part of the Netherlands Antilles) obtained internal autonomy and became a country (separate from the Netherlands Antilles) within the Kingdom. The status of these countries and the relations between them and the Netherlands and towards the Kingdom as a whole is laid down in the Charter for the Kingdom of the Netherlands. Article 41 of the Charter provides that the three countries shall manage their internal matters independently. Therefore Aruba has its own Constitution (Staatsregeling) and its own Net and parliament, id est the Parliament of Aruba (Staten van Aruba), which body has 21 members, who are elected freely, by secret ballot and by means of proportional representation for a four year term.

The legislature of the Kingdom consists of the Netherlands Parliament and the Kingdom Government (the Monarch and the Council of Ministers of the Kingdom) together.

Relevant (excerpts of) articles of the Charter for the Kingdom of the Netherlands (as amended by Kingdom Act of 15 December 1994) read as follows:

2. Legislative power in Kingdom affairs shall be exercised by the legislature of the Kingdom. Kingdom Bills shall be considered with due observance of the provisions of Articles 15 to 21 inclusive.

1. The King shall forward Bills for Kingdom Acts, at the same time as they are introduced in Parliament, to the representative assemblies of the Netherlands Antilles and Aruba.

The representative assembly of the country in which the legislation is to apply shall be empowered, before the Bill is publicly debated in the Lower House, to examine the Bill and to issue a written report thereon, if necessary within a fixed time-limit.

1. The Minister Plenipotentiary of the country in which the legislation is to apply shall be afforded the opportunity to attend the debate on the Bill in Parliament and to furnish such information to the Upper and Lower House as he considers desirable.

2. The representative assembly of the country in which the legislation is to apply may decide to designate, for the purposes of the debate on a particular Bill in Parliament, one or more special delegates who shall likewise be empowered to attend the debates and furnish information.

4. The Ministers Plenipotentiary and the special delegates shall be empowered to propose amendments to a Bill during the proceedings in the Lower House.

1. Before a final vote is taken on any Kingdom Bill in the Upper and Lower House, the Minister Plenipotentiary of the country in which the legislation is to apply shall have the opportunity to express his opinion on the Bill. If, after the Minister Plenipotentiary has stated his opposition to the Bill, the Lower House adopts it with a majority of less than three-fifths of the number of votes cast, the proceedings shall be suspended and the Council of Ministers shall consider the Bill further.

2. If the meetings of the Upper or Lower House are being attended by special delegates, the power referred to in paragraph 1 shall devolve upon the delegate designated for the purpose by the representative assembly.

1. The Netherlands, the Netherlands Antilles and Aruba shall conduct their internal affairs autonomously.

2. The interest of the Kingdom shall be a matter of common concern to the countries.

1. The representative assemblies shall be elected by Netherlands nationals who are residents of the country concerned and have attained an age to be determined by the countries, which should not exceed 25 years. Each voter shall cast only one vote. Elections shall be free and by secret ballot. In case of necessity the countries may impose restrictions. ...

2. The countries may award to Netherlands nationals who are not residents of the country concerned the right to vote in elections for the representative assemblies ...”

Section B1 of the Elections Act (as amended on 24 December 1998) reads as follows:

“1. Members of the Lower House of Parliament shall be elected by persons who are Netherlands nationals on nomination day and have attained the age of eighteen years on polling day, with the exception of persons who have their lawful place of residence in the Netherlands Antilles or Aruba on nomination day.

(a) Netherlands nationals who have been resident in the Netherlands for at least ten years;

(b) Netherlands nationals who are employed in the Netherlands public service in the Netherlands Antilles or Aruba and their Netherlands spouses or partners and children, in so far as they have joint households.”

The applicants complained under Article 3 of Protocol No. 1 of the Convention about the fact that they were excluded from participation in elections of members of the Lower House of the Netherlands Parliament, although the Lower House is a legislature concerning Kingdom matters, which thus also involves Aruba.

They further complained that exclusion from eligibility to vote in the elections of the Lower House of the Netherlands Parliament as a resident of Aruba, whereas other Netherlands nationals who are also not resident in the Netherlands do have that voting right, constitutes discrimination contrary to Article 14.

The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.

The applicants complained that they were unable to vote in the election of members of the Lower House of the Netherlands Parliament. They invoked Article 3 of Protocol No. 1 to the Convention, which provides:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

The Court re-affirms that Article 3 of Protocol No. 1 implies subjective rights to vote and to stand for election (see Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV). Although those rights are central to democracy and the rule of law, they are not absolute. There is room for “implied limitations” (see Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113, p. 23,, § 52).

While Contracting States have a wide margin of appreciation – given that their legislation on elections varies from place to place and from time to time –, this is not unlimited; it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with (see Py v. France, no. 66289/01, §§ 46-47, ECHR 2005-I (extracts)).

The Court observes that the applicants are Netherlands nationals who are resident in Aruba. As such they are not residents of the Netherlands, since –although it is part of the Kingdom –, Aruba does not form an integral and territorial part of the Netherlands itself. The applicants therefore have the right to vote in elections for members of the Parliament of Aruba, which elections conform to the requirements of Article 3 of Protocol No. 1 in that they provide opportunities for the free expression of the opinion of the people of Aruba concerning their internal affairs at reasonable intervals by secret ballot.

As regards Kingdom matters, the legislative power is exercised by the legislature of the Kingdom, being the Netherlands Parliament and the Kingdom Government. Articles 15 to 21 of the Charter lay down the legislative procedure, ensuring control over, and influence on, the legislative process by the representative bodies of the Netherlands, the Netherlands Antilles and Aruba. The Ministers Plenipotentiary and the special delegates of the representative assemblies of the Netherlands Antilles and Aruba are entitled to attend the debates on Bills for Kingdom Acts in the Netherlands Parliament, to furnish information to the Upper and Lower House, to propose amendments to the Bills and to express their opinion before a final vote is taken.

Although the Charter does thus not confer on Netherlands nationals residing in Aruba (excluding the exceptions made in Section B1 § 2 of the Elections Act) a right to vote for the Lower House, those nationals have the opportunity to vote in the elections for members of the Parliament of Aruba which body is entitled to send special delegates to the Netherlands Parliament, who may express their opinion in respect of Kingdom affairs. In this manner, Netherlands nationals residing in Aruba are able to influence decisions taken by the Lower House of the Netherlands Parliament concerning Kingdom affairs. Having regard to the relatively small amount of Kingdom affairs in comparison with the amount of Netherlands internal affairs, the Court is of the opinion that it cannot reasonably be said that Netherlands nationals residing in Aruba are affected by the acts of the Lower House of the Netherlands Parliament to the same extent as Netherlands nationals residing in the Netherlands.

In light of the above, and taking into account the State’s wide margin of appreciation in these matters, the Court considers that the fact that the applicants are not entitled to vote for members of the Lower House of the Netherlands Parliament cannot be regarded as unreasonable or arbitrary or, therefore, as incompatible with Article 3 of Protocol No. 1.

It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

C. Alleged violation of Article 14 of the Convention taken in conjunction with Article 3 of Protocol No. 1

The applicants further complained that the act of denying them the right to vote in the parliamentary elections of members of the Lower House of the Netherlands Parliament, for the mere reason that they had not been residing in the Netherlands for at least ten years, had subjected them to discrimination prohibited by Article 14 of the Convention in the exercise of their right under Article 3 of Protocol No. 1 to the Convention. They compared their situation to that of other Netherlands nationals who were residing outside the Kingdom and of persons who had been resident in the Netherlands for at least ten years prior to becoming residents of Aruba, who were entitled to vote in these elections.

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court has consistently held that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. There can be no room for its application unless the facts at issue fall within the ambit of one or more of them (see, amongst other authorities, Van Raalte v. the Netherlands judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, p. 184, § 33).

The Court has no difficulty in accepting that the applicants’ complaint under Article 14 the Court falls within the scope of Article 3 of Protocol No. 1. Article 14 accordingly applies.

The Court reiterates that Article 14 affords protection against discrimination, that is treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002 IV). For a claim of violation of this Article to succeed, it has therefore to be established, inter alia, that the situation of the alleged victim can be considered analogous or relevantly similar to that of persons who enjoy preferential treatment (see Stubbings and Others v. the United Kingdom, judgment of 22 October 1996, Reports 1996-IV, p. 1507, § 72).

The Court observes that the legislature granted a right to vote for members of a representative body to all Netherlands nationals regardless of where they reside. From this point of view all Netherlands nationals are thus in a comparable situation. However, it is only Netherlands nationals who are residing in Aruba or the Netherlands Antilles – like the applicants in the present cases –, who are entitled to vote for members of the Parliament of Aruba or the Netherlands Antilles respectively. Therefore, the applicants’ situation is not relevantly similar to that of other Netherlands nationals who are not residing in Aruba or the Netherlands Antilles and who are thus not eligible to vote for either of those Parliaments. In this context the Court notes that if Netherlands nationals residing in Aruba or the Netherlands Antilles move from there, they lose their eligibility to vote for members of the Parliaments of those countries but become entitled to take part in the election of members of the Netherlands Parliament, just like other Netherlands nationals who do not reside in the Netherlands.

The Court further considers that the obligation to satisfy a length of residence requirement in order to have or exercise the right to vote is not, in principle, an arbitrary restriction of the right to vote. Consequently, denying the right to vote in elections for a particular parliament to a person who does not meet that requirement is objectively justified.

Accordingly, to the extent that the applicants are in a relevantly similar situation as the persons with whom they seek to compare themselves, the Court finds that the impugned difference in treatment is justified.

The Court observes, moreover, that the present cases are significantly different from the one concerning the right to vote for the European Parliament, in which the Administrative Jurisdiction Division of the Council of State sought a preliminary ruling from the Court of Justice of the European Communities (see above), as in that case, the applicants were completely denied any opportunity to express their opinion in the election of members of the European Parliament. In the case at issue, however, the applicants do have a say in respect of Kingdom matters, albeit indirectly, in the Netherlands Parliament; namely via special delegates of the Parliament of Aruba, in whose election the applicants were entitled to participate.

It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> SEVINGER v. THE NETHERLANDS - 17173/07 [2007] ECHR 1207 (6 September 2007) URL: http://www.bailii.org/eu/cases/ECHR/2007/1207.html Cite as: [2007] ECHR 1207, (2008) 46 EHRR SE14