SEVINGER v. THE NETHERLANDS
Inadmissible
David Thór Björgvinsson
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: “Article 4 ... 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. Article 15 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. ... Article 16 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. Article 17 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. Article 18 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. Article 41 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. Article 46 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. 2. This exception shall not apply to: (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.”