Přehled
Rozhodnutí
AS TO THE ADMISSIBILITY OF
Application No. 13628/88
by Koosje VAN DE VIN and four others
against the Netherlands
The European Commission of Human Rights sitting in private on
8 April 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
Mrs. J. LIDDY
MM. J.-C. GEUS
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 December 1987
by Koosje VAN DE VIN and four others against the Netherlands and
registered on 24 February 1988 under file No. 13628/88;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to:
- the Commission's decision of 7 May 1990 to bring the application
to the notice of the respondent Government and invite them to
submit written observations on its admissibility and merits;
- the observations submitted by the respondent Government on
20 July 1990 and the observations in reply submitted by the
applicant on 10 September 1990;
- the submissions made by the parties at the oral hearing on
8 April 1992;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, all having Dutch nationality, are Mrs. K. van de
Vin, born in 1919; Mrs. M.A. van de Bergh, born in 1942; Mr. J. Damen,
born in 1928; Mrs. K. Swinkels, born in 1965; and Mr. J.P. Swinkels,
born in 1947. Mr. J.P. Swinkels died pending the procedure before the
Commission. The Commission decided on 31 March 1992 that his widow,
Mrs. M.P.M. Swinkels-Van de Bergh, could pursue his application.
Before the Commission the applicants are represented by Mr. M.F.J.N.
van Osch, a lawyer practising in Nijmegen, the Netherlands.
The facts, as submitted by the parties, may be summarised as
follows.
The applicants are mobile home dwellers, who until recently
resided in the regional mobile home centre in Heerlen, the Netherlands.
Except Mr. J. Damen, all applicants are related to each other.
Mr. J. Damen has no family ties with the other applicants, but has for
many years formed part of the family group. Mrs. K. van de Vin has
recently moved in with him.
In 1980 and 1984 the municipal authorities of Heerlen informed
the mobile home dwellers concerned that, in the context of a national
decentralisation policy, the regional mobile home centre would be
closed in the future. As from June 1985 the mobile home dwellers
concerned were invited on several occasions to register for new sites.
On 6 January 1987 the Municipal Council (gemeenteraad) of Heerlen
decided that from 1 February 1987, the regional mobile home centre
should be closed. The applicants were offered the possibility to
submit, before a certain date, their wishes for a possible future
location of their respective mobile homes, of which possibility the
applicants chose not to avail themselves. From 1 February 1987, they
stayed in the centre illegally. Between 3 and 8 July 1987 the
Municipal Councils of Kerkrade and Heerlen informed the applicants that
a drawing of lots had determined new sites for their mobile homes. As
a result of this, they were to be separated and placed in several
locations in and about the towns of Heerlen and Kerkrade.
By letter of 27 October 1987 the Provincial Executive
(Gedeputeerde Staten) of Limburg informed the Municipal Executive
(Burgemeester en Wethouders) of Heerlen, that they were granted an
exemption until 31 December 1988 from their obligation to request the
Provincial Executive toi grant its approval within the meaning of
Article 61 paras. 2 and 3 of the Mobile Home Act (Woonwagenwet) of the
removal of mobile homes from the Municipality of Heerlen.
All of the applicants initiated several proceedings in order to
prevent their removal from the centre and thereby the splitting up of
the family group.
On 22 July 1987 Mrs. van de Vin filed an objection with the
Municipal Executive of Kerkrade against the decision to relocate her
to Kerkrade. The Municipal Executive rejected this objection on 20
October 1987 holding, inter alia, that the assignment of her new
location was the result of her own unco-operative attitude.
She appealed against this decision to the Judicial Division of
the Council of State (Afdeling Rechtspraak van de Raad van State). This
appeal was rejected by the President of the Judicial Division of the
Council of State on 1 May 1989 for lack of interest, since the
applicant had, in the meantime, been allotted a different location in
Heerlen and the Municipal Executive of Kerkrade had revoked their
decision.
Since Mrs. van de Vin had to wait for the new site to be prepared
after 1 February 1987, the Municipal Authorities of Heerlen granted her
a temporary exemption until 1 July 1988 from the prohibition, laid down
in Article 10 of the Mobile Home Act, to live outside an officially
recognised mobile home centre. On 21 July 1987, she filed an appeal
against the temporary character of this exemption with the Provincial
Executive of Limburg.
The appeal was rejected in the Provincial Executive's decision
of 20 October 1987, in which it was held, inter alia, that the
interests of the Municipality of Heerlen in executing its tasks under
the Provincial Mobile Home Plan outweighed the applicant's interests.
On 25 November 1987, the applicant appealed against this decision
to the Judicial Division of the Council of State, which appeal was
rejected on 23 March 1990. The Council of State held, inter alia, that
the temporary character of the exemption from the prohibition to live
outside an officially recognised mobile home centre was to be
considered as a restriction imposed in accordance with the law and
necessary for the maintenance of ordre public within the meaning of
Article 2 para. 3 of Protocol No. 4 to the Convention.
Mrs. van de Vin also applied to the Municipal Executive of
Heerlen for an indefinite exemption from the prohibition to live
outside an officially recognised mobile home centre. On 22 December
1987, the Municipal Executive rejected the request. On 19 January
1988, the applicant filed an objection with the Provincial Executive
against the decision, thereby referring to the arguments derived from
the articles of the Convention, as invoked in the procedure concerning
the temporary exemption. However, on 12 April 1989 she withdrew her
objection.
Mrs. van de Bergh requested the Municipal Executive of Heerlen
to issue a temporary exemption, which was rejected on 9 July 1987. In
the view of the Municipal Executive such an exemption was not needed,
since the location which had been assigned to her was ready for use.
On 21 July 1987, she filed an objection against this refusal with the
Provincial Executive of Limburg. The objection was rejected on 20
October 1987, including the argument relating to Article 2 of Protocol
No. 4. On 25 November 1987, she appealed against this decision to the
Judicial Division of the Council of State, again invoking Article 2 of
Protocol No. 4, which appeal was rejected on 28 February 1990 for lack
of interest, as the applicant no longer lived in a mobile home, but had
in the meantime moved into a house.
Mrs. van de Bergh also applied for an indefinite exemption from
the prohibition to live outside an officially recognised mobile home
centre. After a negative decision by the Municipal Authorities on 22
December 1987, the Provincial Authorities declared the objection
unfounded on 12 April 1989, as the applicant in the meantime had moved
into a house in Heerlen. She did not appeal against this decision.
Mr. Damen filed an objection with the Municipal Executive of
Heerlen on 22 July 1987 against the decision to relocate him in
Heerlen. The Municipal Executive rejected the objection on 9 November
1987 on the same grounds as in their decision of 20 October 1987 in the
similar case of Mrs. van de Vin. On 25 November 1987, the applicant
appealed to the Judicial Division of the Council of State, which appeal
was rejected on 28 February 1990 for lack of interest, as on 7 July
1987 he had obtained a temporary exemption from the prohibition to live
outside an officially recognised mobile home centre until 1 July 1988,
pending the preparation of his new allotted site. The Council of State
also considered that the applicant had a right to occupy this new site,
but is not under any obligation to actually do so.
On 21 July 1987 Mr. Damen filed an objection against the
temporary character of the granted exemption with the Provincial
Executive of Limburg, which was rejected on 20 October 1987. His
subsequent appeal to the Judicial Division of the Council of State was
rejected on 23 March 1990 on the same grounds as in the decision of 23
March 1990 in the similar case of Mrs. van de Vin.
Mr. Damen also applied for an indefinite exemption from the
prohibition to live outside an officially recognised mobile home
centre. He was refused an indefinite exemption by the Municipal
Executive on 22 December 1987. The objection, filed on 19 January 1988
with the Provincial Executive, was withdrawn on 12 April 1989.
Mrs. K. Swinkels filed an objection with the Municipal Executive
of Heerlen on 22 July 1987 against its decision to relocate her to
another site in Heerlen. The Municipal Executive rejected her
objection on 9 November 1987. Her subsequent appeal to the Judicial
Division of the Council of State was rejected on 28 February 1990. The
Council of State considered that she has a right to occupy the allotted
site, but was under no obligation to actually do so.
Mrs. Swinkels also requested the Municipal Executive of Heerlen
to grant her an exemption from the prohibition to live outside an
officially recognised mobile home centre, which was rejected on 22
December 1987. The applicant's appeal to the Provincial Executive was
rejected on 12 April 1989, including the argument relating to Article
2 of Protocol No. 4. The applicant's further appeal to the Judicial
Division of the Council of State has also been rejected.
Mr. J.P. Swinkels filed an objection with the Municipal
Authorities of Kerkrade against their decision of 8 July 1987 to
relocate him to Kerkrade, which was rejected on 9 November 1987. His
appeal to the Judicial Division of the Council of State was rejected
as being ill-founded.
Mr. Swinkels also requested the Municipal Authorities of Heerlen
to grant him an exemption from the prohibition to live outside an
officially recognised mobile home centre, which was rejected on 22
December 1987. His appeal to the Provincial Executive was rejected on
12 April 1989. The applicant's further appeal to the Judicial Division
of the Council of State has also been rejected.
By letter of 28 October 1987, the Municipal Executive of Heerlen
informed Mrs. K. Swinkels and Mr. J.P. Swinkels that they had to move
before 9 November 1987 to the new locations which had been assigned to
them. If they refused to do so, the Municipal Authorities intended to
use their competence under the Mobile Home Act to forcibly remove their
mobile homes by applying administrative coercion (bestuursdwang).
On 5 November 1987, the two applicants filed an objection with
the Municipal Executive against this decision. On the same day, they
requested the President of the Judicial Division of the Council of
State to suspend that decision. The two applicants invoked Article 2
of Protocol No. 4, Article 8 of the Convention and Article 14 of the
Convention in conjunction with Article 2 of Protocol No. 4. In his
decision of 9 November 1987, the President of the Judicial Division of
the Council of State rejected the request. The articles invoked were
considered not to be violated, as the measure concerned was necessary
in a democratic society for the maintenance of ordre public, namely,
the regulation of living in mobile homes (het ordenen van het wonen in
woonwagens). Moreover, Article 14 of the Convention was not considered
to be violated as the policy pursued is specifically designed to
improve the well-being of mobile home dwellers.
On 10 November 1987, the mobile homes of Mrs. K. Swinkels and
Mr. J.P. Swinkels were removed by force to the location assigned to
them.
Mrs. K. Swinkels still lives in a mobile home on the site
allotted to her in Heerlen, whereas Mr. J.P. Swinkels moved to a house
in Heerlen on 6 March 1990.
The appeals filed by these two applicants with the Judicial
Division of the Council of State concerning the removal by force of
their mobile homes are still pending.
RELEVANT DOMESTIC LEGISLATION
Section 10 paras. 1 and 2 of the Mobile Home Act (Woonwagenwet)
provide for the possibility to obtain an exemption from the prohibition
to live in a mobile home outside an officially recognised mobile home
centre. It reads as follows:
<Dutch>
"1. Het is verboden met een woonwagen standplaats te hebben
buiten een centrum. Burgemeester en Wethouders kunnen van
dit verbod ambtshalve of op schriftelijke aanvraag
ontheffing verlenen. Een mondelinge aanvraag wordt ten
behoeve van de aanvrager op schrift gesteld. Ondertekent
hij deze aanvraag niet, dan wordt de reden daarvan vermeld.
Burgemeester en Wethouders beslissen op de aanvraag binnen
twee maanden. 2. Bij de beslissing omtrent de ontheffing
wordt door Burgemeester en Wethouders rekening gehouden met
het aantoonbaar belang dat de betrokkene heeft bij
vestiging of voortzetting van zijn verblijf in een gemeente
buiten een centrum, zoals dat belang onder meer kan blijken
uit zijn werkzaamheden, het schoolbezoek van zijn kinderen
of de tijd gedurende welke hij reeds in de gemeente
verblijft of verbleven heeft."
<Translation>
"1. It is illegal to station a mobile home outside a
centre. The Municipal Executive can, either ex officio or
upon a written request, grant an exemption. An oral
request will be written down on behalf of the applicant.
If he does not sign the request, the reason for not doing
so will be indicated. The Municipal Executive decides on
the request within two months. 2. In the decision on the
exemption the Municipal Executive takes into account the
demonstrable interest the applicant has in settling or
continuing his stay outside a centre in a Municipality
which interest can, inter alia, appear from his work, the
school attendance of his children or the period of time he
stays already or has stayed in the Municipality."
Section 61, paras. 1, 2 and 3 of the Mobile Home Act deal with
the possibility to relocate mobile homes by way of administrative
coercion. It reads as follows:
<Dutch>
1. Burgemeester en Wethouders zijn bevoegd woonwagens die
hetzij in strijd met het bepaalde bij of krachtens een
verordening als bedoeld in artikel 9 standplaats hebben op
een centrum, hetzij in strijd met artikel 10, eerste lid,
standplaats hebben buiten een centrum, op kosten en voor
risico van de hoofdbewoner en zo nodig met behulp van de
sterke arm naar een door hen aangewezen plaats op of buiten
een centrum binnen de gemeente te doen overbrengen.
2. In de in het eerste lid bedoelde gevallen zijn
Burgemeester en Wethouders eveneens bevoegd, na daartoe
toestemming te hebben verkregen van Gedeputeerde Staten,
woonwagens uit de gemeente op kosten en voor risico van de
hoofdbewoner en zo nodig met behulp van de sterke arm te
doen verwijderen.
3. Gedeputeerde Staten kunnen Burgemeester en Wethouders
van gemeenten die, naar hun oordeel, voldoen aan de in het
woonwagenplan, bedoeld in artikel 4a, eerste lid, gestelde
eisen, vrijstellen van de in het tweede lid bedoelde
verplichting om toestemming tot verwijdering te
verkrijgen."
<Translation>
"1. The Municipal Executive is competent to have mobile
homes, which occupy a place on a centre in contravention of
a (municipal) regulation within the meaning of Section 9 or
which occupy a place outside a centre in contravention of
Section 10 para. 1, relocated, at the expense and risk of
the main occupier and if need be with the assistance
of(police) force, to a place appointed by it (Municipal
Executive) on or outside a centre within the Municipality.
2. In the cases referred to in the first paragraph, the
Municipal Executive is also competent, after having
obtained permission thereto from the Provincial Executive,
to have mobile homes removed from the Municipality at the
expense and risk of the main occupier, if need be with the
assistance of (police) force.
3. The Provincial Executive can exempt the Municipal
Executive of Municipalities, which in their view satisfy
the requirements set out in the Mobile Home Plan as meant
in Section 4a, first paragraph, from the obligation to
obtain permission for removal as referred to in the second
paragraph."
Section 4a para. 1 of the Mobile Home Act provides:
<Dutch>
"Provinciale Staten kunnen voor een of meer gedeelten of
voor het gehele gebied van de provincie een woonwagenplan
vaststellen, waarin de gemeenten worden aangewezen, die in
elk geval, al dan niet in samenwerking met andere met name
genoemde gemeenten, op haar grondgebied één of meer
openbare centra voor woonwagens in stand moeten houden.
Daarbij wordt ook vastgesteld het aantal woonwagens
waarvoor elk centrum is bestemd."
<Translation>
"Provincial States can establish a Mobile Home Plan for one
of more parts of for the entire area of the province, in
which the Municipalities will be appointed, which in any
event, whether or not in co-operation with other
specifically named Municipalities, will have to maintain
one of more public centres for mobile homes on their
territory. In this (plan), also the number of mobile homes
for which each centre is intended, will be determined."
COMPLAINTS
1. The applicants complain that the imposed obligation to move their
mobile homes against their will to new locations constitutes an
interference with their right to liberty of movement and freedom to
choose a residence, which cannot be justified for the maintenance of
"ordre public", and is not based on any legislative provision. In
particular, they submit that Section 61 of the Mobile Home Act was not
applicable to their situation, because this provision can only be used
in cases where a mobile home has been placed somewhere illegally. In
their situation however the existing location was legal, until after
a change in the national mobile home dwellers policy, their location
was made illegal. The applicants invoke Article 2 of Protocol No. 4.
2. The applicants complain that their right to respect for their
home and their private and family life has been violated. They submit
that, as a result of the forced removals, the family group has been
split up. Given the special living habits of the minority of mobile
home dwellers, such family groups should be considered to be
encompassed by the concept of "family life". They invoke Article 8 of
the Convention.
3. The applicants complain that the authorities have discriminated
against them in comparison with sedentary people by forcibly removing
(bestuursdwang) two of the mobile homes. They submit that the use that
could have been and actually was made of Section 61 of the Mobile Home
Act goes beyond a comparable provision in the Municipality Act
(Gemeentewet) concerning houses. According to the latter provision,
buildings may only be destroyed by the Municipal Authorities if they
have been constructed illegally. On the basis of the former provision,
however, mobile homes can not only be removed from places where they
were placed illegally but also from places where, as in the present
case, they subsequently became illegal following a change in policy.
The applicants submit that the factual difference between a house and
a mobile home does not objectively and reasonably justify the legal
difference. As the status of mobile home dweller is determined by
birth or descent, the applicants submit that Article 14 of the
Convention, in conjunction with Article 2 of Protocol No. 4, has been
violated.
4. The applicants finally complain that the national authorities
have applied the restrictions under this Convention, notably the
maintaining of ordre public, for other purposes than for which they
have been created. They invoke Article 18 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 December 1987 and registered
on 24 February 1988.
On 7 May 1990, the Commission decided to communicate the
application to the respondent Government and to invite them to submit
written observations on the admissibility and the merits of the
application.
The Government's observations were submitted on 20 July 1990 and
the applicant's reply thereto on 10 September 1990.
On 12 October 1990, the Commission granted legal aid to the
applicants.
On 8 January 1992, the Commission decided to hold an oral hearing
on the admissibility and merits of the application.
On 31 March 1992, the Commission decided that Mrs. M.P.M.
Swinkels-van de Bergh could pursue the application of her late husband
Mr. J.P. Swinkels.
At the hearing which was held on 8 April 1992, the parties were
represented as follows:
For the Government
Mr. K. DE VEY MESTDAGH, Agent of the Netherlands Government
Mrs. M.A.G. WELSCHEN, Senior legal assistant, Ministry of
Housing, Planning and Environment
Mr. E.T.A.M. WILLEBRANDS, Co-ordinator Mobile Home Dwellers,
Ministry of Housing, Planning and
Environment
For the applicants
Mr. M.F.J.N. VAN OSCH, Lawyer
Mrs. S.W. VAN OSCH-LEYSMA, Lawyer, assistant to Counsel
Mr. J.C.M. van BERKEL, Legal adviser
Mrs. K. SWINKELS, Applicant
Mrs. M.P.M. SWINKELS-
van de BERGH, Applicant
THE LAW
1. The applicants complain that the imposed obligation to move their
mobile homes, against their will, to new locations unjustly interferes
with their rights under Article 2 of Protocol No. 4 (P4-2).
Article 2 of Protocol No. 4 (P4-2) provides as follows:
"1. Everyone lawfully within the territory of a State shall,
within that territory, have the right to liberty of movement and
freedom to choose his residence.
2. Everyone shall be free to leave any country, including his
own.
3. No restrictions shall be placed on the exercise of these
rights other than such as are in accordance with law and are
necessary in a democratic society in the interests of national
security or public safety, for the maintenance of ordre public,
for the prevention of crime, for the protection of health or
morals, or for the protection of the rights and freedoms of
others.
4. The rights set forth in paragraph 1 may also be
subject, in particular areas, to restrictions imposed in
accordance with law and justified by the public interest in
a democratic society."
The Government are of the opinion that within the restrictions,
which are in accordance with the law and which are necessary in a
democratic society for the maintenance of ordre public, the applicants
retain the right of liberty of movement and their freedom to choose
their residence. The Government submit that from 1980 onwards the
residents of the centre concerned were repeatedly informed of the plans
to close the centre and of the possibility of registering for another
location. The Government state that it was not the closure of the
centre, but the applicants' failure to take advantage of the offered
alternatives which had the effect that the applicants found themselves
in an illegal situation and became eligible for the application of
Section 61 of the Mobile Home Act.
The Government explain that both the population density in the
Netherlands and the necessity of allocating housing in an efficient
manner call for regulatory measures such as the Mobile Home Act, which
Act deals, inter alia, with the admission of mobile home dwellers to
a centre and the prohibition on locating a mobile home anywhere else
than on a designated centre unless an exemption is granted.
The Government state that concentration of mobile homes on large
regional centres often proved to have harmful effects on public health
and subsequently on the environment. The soil on the regional centre
at issue was found to be so seriously polluted that it had to be
cleaned, which operation costed twenty-two million guilders. The
Government further submit that the objective of the decentralisation
policy is to afford mobile home dwellers the opportunity to participate
in the life of the community in the same way as every other member of
society, and that a Contracting State has a wide margin of appreciation
when it comes to implementing social and economic policies.
The applicants submit in reply that their mobile homes stood
legally at the regional centre for years and that in the present
circumstances the right to move home freely and to make a free choice
of residence within the limits laid down in the Mobile Home Act has to
be considered as highly theoretical considering the general shortage
of places at mobile home centres.
The applicants are of the opinion that the action by the Dutch
authorities were disproportionate to the legitimate aim pursued. They
are of the opinion that the margin of appreciation cannot be so wide,
that it should allow the Dutch authorities to implement the
decentralisation policy for mobile homes by way of coercion.
The Commission first notes that the applicants have been informed
by the Dutch authorities as from 1980 onwards that the regional centre
in Heerlen would be closed in the future. The Commission further notes
that the applicants have been invited on several occasions to register
for new sites.
It is true that Article 2 of protocol No. 4 (P4-2) entitles
everyone the right to liberty of movement and freedom to choose his
residence. The Commission, however, considers that this provision does
not guarantee a right to a specific place of residence without a title
to reside on such a specific place. The Commission notes in this
respect that the applicants had no title to reside on the mobile home
site of their choice.
Even assuming that the applicants would have had such a title,
the fact that mobile homes can only be placed on mobile home centres
is in the opinion of the Commission a restriction which is in
accordance with the law, i.e. the Mobile Home Act and, in view of the
necessity to regulate housing in a densely populated country as the
Netherlands, necessary in a democratic society for the maintenance of
ordre public. The Commission recalls that in respect of the
implementation of social and economic policies Contracting States
should enjoy a wide margin of appreciation in the assessment of the
necessity of taking measures to this effect (cf. Eur. Court H.R., James
and Others judgment of 21 February 1986, Series A no. 98, para. 46).
The Commission, therefore, finds that the applicants' rights
under Article 2 of Protocol No. 4 (P4-2) have not been interfered with.
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicants complain that their right to respect for their
home and their private and family life has been violated. They submit
that, as a result of the forced removals, their family group has been
split up. Given the special living habits of the minority of mobile
home dwellers, such a family group should be considered to be
encompassed by the concept of "family life". The applicants invoke
Article 8 (Art. 8) of the Convention which provides as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Government are of the opinion that the applicants' rights
under Article 8 (Art. 8) of the Convention have not been interfered
with. The Government submit that the existence of family life depends,
inter alia, on the individuals' age and degree of independence, the
care they receive and whether the persons concerned all belong to the
same household.
In view of the applicants' situation the Government do not
consider that their living arrangements fall within the scope of family
life within the meaning of Article 8 (Art. 8).
The Commission recalls that for the existence of family life
between related adults there must be, inter alia, elements of
dependency going beyond the normal emotional ties (cf. No. 10375/83,
Dec. 10.12.84, D.R. 40 p. 196). The Commission also recalls that,
under Article 8 (Art. 8) of the Convention, a minority group is, in
principle, entitled to claim the right to respect for the particular
life style it may lead as being "private life", "family life" or "home"
(cf. No.9278/81 & 9415/81, Dec. 3.10.83, D.R. 35 p. 30).
The Commission observes that at the time the regional centre in
Heerlen was closed, the applicants had lived on this centre for many
years in five different mobile homes, placed close to each other.
The Commission notes that the applicants have not been prevented
from living in a mobile home. Following the closure of the Heerlen
regional centre the applicants have been offered an alternative
location for their respective mobile homes on another mobile home
centre, whereas they had failed to avail themselves timely of the
possibility to state their wishes concerning a future site for mobile
homes. In these circumstances, even assuming that mobile home dwellers
can derive rights from Article 8 (Art. 8) of the Convention on the
basis of their particular life style, it cannot be concluded that the
Dutch authorities have not respected these rights.
The Commission is, therefore, of the opinion that the applicants'
right to respect for their family life, home and private life has not
been interfered with.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicants complain that the Netherlands authorities have
discriminated against them in comparison with sedentary people by
forcibly removing two of the mobile homes. The applicants argue that
the difference in treatment between mobile home dwellers and sedentary
people has no objective and reasonable justification. The applicants
rely on Article 14 of the Convention together with Article 2 of
Protocol No. 4 (Art. 14+P4-2).
Article 14 (Art. 14) of the Convention provides as follows:
"The enjoyment of the rights and freedoms set forth in this
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 Government submit that the applicants, like any other
individual in the Netherlands, are eligible for a dwelling in the
municipality of their choice. The applicants prefer to live in mobile
homes, which is subject to certain regulations, as is living in
sedentary accommodation.
The applicants submit in reply that the number of places for
mobile homes was made proportionate to the population figure in a
municipality, whereas sedentary people are, within their financial
limits, in principle entitled to reside in any municipality in the
Netherlands without any restriction as to the number of families in a
certain area or otherwise.
The Commission first recalls that Article 14 (Art. 14) of the
Convention complements the other substantive provisions of the
Convention and Protocols. Although the application of Article 14
(Art. 14) does not presuppose a breach of these provisions, there can
be no room for its application unless the facts at issue fall within
the ambit of one or more of the latter (cf. Eur. Court H.R., Abdulaziz,
Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, para.
71).
The Commission has found the applicants' complaint under Article
2 of Protocol No. 4 and Article 8 (P4-2, Art. 8) of the Convention to
be manifestly ill-founded. The question therefore remains for the
Commission whether the applicants were discriminated against in
comparison with sedentary people.
The Commission notes that the applicants have chosen to live in
a mobile home, which form of habitat in the Netherlands is subject to
certain specific regulations, which only marginally differ from those
for sedentary housing.
The Commission is of the opinion that, in so far as these
regulations differ from each other, this difference has an objective
and reasonable justification, namely the legal and factual difference
between these two forms of housing, the mobility of a home and its
inhabitants being an important distinctive feature.
The Commission, therefore, concludes that the present complaint
does not disclose any appearance of discrimination contrary to Article
14 of the Convention in conjuction with Article 2 of Protocol No. 4 and
Article 8 (Art. 14+P4-2+8) of the Convention.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicants finally complain that contrary to Article 18
(Art. 18) of the Convention the national authorities have applied the
restrictions under this Convention, notably the maintaining of ordre
public, for other purposes than those for which they have been created.
Article 18 (Art. 18) of the Convention provides as follows:
"The restrictions permitted under this Convention to the said
rights and freedoms shall not be applied for any purpose other
than those for which they have been prescribed."
The Commission, however, has found that the applicants' rights
under Article 2 of Protocol No. 4 and Article 8 (P4-2, Art. 8) of the
Convention have not been interfered with. The question concerning the
application of the restrictions on the rights and freedoms under these
provisions does therefore not arise. This complaint must also be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)