and Political Rights,
on 16 July 2001,
concluded its consideration of communication No. 855/1999 submitted
to the Human Rights Committee by Ms. M. Schmitz-de-Jong under the
Optional Protocol to the International Covenant on Civil and Political
taken into account all written information made available to
it by the author of the communication, and the State party,
Views under article 5, paragraph 4, of the Optional Protocol
author of the communication is Ms. M. Schmitz-de-Jong, a Dutch citizen,
born on 15 February 1949, and residing in Gulpen, the Netherlands.
She claims to be a victim of a violation of article 26, in conjunction
with articles 3 and 5, of the International Covenant on Civil and
Political Rights. She is represented by counsel.
facts as submitted
Dutch citizen aged 65 years and older has the right to a pensioners'
pass (so-called PAS-65). Partners of pass-holders have a subsidiary
right to the pass, on the condition that they be 60 years or older.
Pass owners pay reduced fees for public transport, social and cultural
activities, library services and museum entries.
author is married to Wilhelm Theodor Schmitz, born on 4 May 1924.
Mr. Schmitz is in possession of a PAS-65. On 26 February 1993, the
author applied for a partner pass. The municipality of Gulpen refused
the pass on 16 March 1993, because the author did not fulfil the
age requirement. The author applied for a review of the decision,
which was rejected on 25 May 1993. The Council of State rejected
her appeal on 15 August 1996. With this, all domestic remedies are
said to have been exhausted.
to the author, the failure to give her a partner pass constitutes
discrimination based on age. She refers to the Government's information
brochure which explains that the pass is meant to promote the active
participation of old age pensioners in society, and that in order
to enhance this, the pass is also given to partners of old age pensioners.
Since the average age difference between old age pensioners and
their partners is between 4 and 5 years, it has been decided that
all partners of 60 years or older are also entitled to the pass.
The author argues that this age limit is arbitrary, and that the
purpose of the partner pass does not justify its limitation to partners
of 60 years and older.
State party's observations
State party, by submissions of 16 August 1999 and 29 February 2000,
informs the Committee that as of 1 September 1999, the partner pass
is abolished, following the finding by the Equal Treatment Commission
that the scheme for partners indirectly discriminated between people
according to marital status. The State party argues that, accordingly,
the basis for the author's application has been removed.
regards the author's complaint that she is a victim of discrimination
on the grounds of age, the State party explains that the lower age
limit for eligibility was expressly set at 60. Lowering this age
limit was held to conflict with the aims of the senior citizen's
pass, to which the aims of the partner's pass are related. According
to the State party persons under the age of 60 are too far away
from the target group for which the senior citizen's pass was created.
The State party recalls that the author was 44 years of age when
she applied for a partner's pass. The State party further invokes
financial reasons for limiting the partner's pass to partners of
60 years and older.
5. In his
comments, counsel points out that the author has been a victim of
discrimination for the past seven years, and that the abolition
of the partner pass as of 1 September 1999 does not affect this.
Moreover, counsel points out that abolishing the partner scheme
has no consequences for the present owners of the partner's pass
since they can keep it and continue using it. According to counsel,
if the author had been granted her pass when she requested it, she
would now be allowed to continue using it. Counsel maintains that
in view of the purpose of the partner's pass - social and cultural
stimulation of the senior citizen to whom the partner is married
- no age limit is permissible.
and proceedings before the Committee
considering any claim contained in a communication, the Human Rights
Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol
to the Covenant.
Committee notes that the author has exhausted all available domestic
remedies and that the State party has not raised any objections
to the admissibility of the claim. The Committee has also verified
that the same matter is not being examined by another procedure
of international investigation or settlement. Accordingly, the Committee
declares the communication admissible and proceeds to the consideration
of the merits.
Human Rights Committee has considered the present communication
in the light of all the written information made available to it
by the parties, as provided in article 5, paragraph 1, of the Optional
author has claimed that she is a victim of discrimination on the
ground of age, because as a 44-year-old (in 1993) she was not entitled
to a senior citizen's partner's pass, which was only provided to
partners of 60 years and older. The Committee recalls that a distinction
does not constitute discrimination if it is based on objective and
reasonable criteria. In the present case, the Committee finds that
the age limitation of allowing only partners who have reached the
age of 60 years to obtain an entitlement to various rate reductions
as a partner to a pensioner above the age of 65 years is
an objective criterion of differentiation and that the application
of this differentiation in the case of the author was not unreasonable.
Human Rights Committee, acting under article 5, paragraph 4, of
the Optional Protocol to the International Covenant on Civil and
Political rights, is of the view that the facts before it do not
reveal a breach of any article of the Covenant.
* The following members of the Committee participated in the examination
of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando,
Mr. Prafullachandra Natwarlal Bhagwati, Mr. Louis Henkin, Mr. Ahmed
Tawfik Khalil, Mr. Eckart Klein, Mr. David Kretzmer, Ms. Cecilia
Medina Quiroga, Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Martin
Scheinin, Mr. Ivan Shearer, Mr. Hipólito Solari Yrigoyen, Mr. Patrick
Vella and Mr. Maxwell Yalden.
in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian
as part of the Committee's annual report to the General Assembly.