Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 23003/93

Erik Theodorus HUMMELS

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 26 June 1996)

TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PART I : STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . 2

PART II : SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . 4

INTRODUCTION

1. This Report relates to the application introduced under Article

25 of the European Convention for the Protection of Human Rights and

Fundamental Freedoms by Erik Theodorus Hummels against the Netherlands

on 2 November 1993. It was registered on 24 November 1993 under file

No. 23003/93.

The Government of the Netherlands were represented by their

Agent, Mr. H. von Hebel, of the Ministry of Foreign Affairs.

2. On 28 February 1996 the Commission (Second Chamber) declared the

application admissible. It then proceeded to carry out its task

under Article 28 para. 1 of the Convention which provides as follows:

"In the event of the Commission accepting a petition referred to

it:

a. it shall, with a view to ascertaining the facts, undertake

together with the representatives of the parties an examination

of the petition and, if need be, an investigation, for the

effective conduct of which the States concerned shall furnish all

necessary facilities, after an exchange of views with the

Commission;

b. it shall at the same time place itself at the disposal of

the parties concerned with a view to securing a friendly

settlement of the matter on the basis of respect for Human Rights

as defined in this Convention."

3. The Commission (Second Chamber) found that the parties had

reached a friendly settlement of the case and on 26 June 1996 it

adopted this Report, which, in accordance with Article 28 para. 2 of

the Convention, is confined to a brief statement of the facts and of

the solution reached.

The following members were present when the Report was adopted:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

PART I

STATEMENT OF THE FACTS

4. The applicant is a Dutch citizen, born in 1949 and resident in

Utrecht, the Netherlands. He is a practising lawyer by profession.

5. On 8 April 1992, the Legal Aid Office (Buro voor Rechtshulp) at

the Hague appointed the applicant public defence counsel in cassation

proceedings before the Supreme Court (Hoge Raad) in the case of K., who

had filed an appeal in cassation against his criminal conviction by the

Court of Appeal (Gerechtshof) of 's-Hertogenbosch. The Supreme Court

decided K.'s appeal in cassation on 25 May 1993.

6. By letter of 9 June 1993, the applicant submitted the declaration

of his fees in K.'s case to the Registrar of the Supreme Court. As he

was of the opinion that this case had been an extremely laborious one,

he requested that Section 33 or the Order on Fees for Legal Aid in

Criminal Cases (Besluit Vergoedingen Rechtsbijstand in Strafzaken,

hereinafter referred to as "the Order") be applied, which provides for

a higher fee to be determined by the Registrar in cases where the

standard fee is apparently disproportionate to the work spent on the

case.

7. On 12 October 1993, the Registrar of the Supreme Court decided

to grant the applicant an amount consisting of the standard fee, a

travelling allowance, a mileage allowance and value-added tax. The

Registrar had not applied Section 33 of the Order.

8. The Registrar's decision was accompanied by an intervention

decision (tussenkomstbeslissing) dated 22 June 1993 of Supreme Court

judge B. This decision had been taken pursuant to Section 29 of the

Order according to which the lawyer involved, who does not agree with

the Registrar's decision concerning the determination of the fee, may

request the intervention of the President of the court whose Registrar

determined the fee.

9. By letter of 15 October 1993, the applicant requested the

President of the Supreme Court to intervene in the matter pursuant to

Section 29 of the Order. The applicant submitted that it had been for

the Registrar to decide on a request for the application of Section 33

of the Order and that the President of the court or a judge appointed

by him could only become involved if the counsel concerned decided to

request an intervention. The applicant also requested that he be heard

by the President of the Supreme Court and that the procedure to be

applied was completely in accordance with the rules and principles laid

down in Article 6 of the Convention.

10. In his letter of 26 October 1993, the acting President of the

Supreme Court, judge H., rejected the applicant's request. He

considered that judge B. had apparently and not unreasonably

interpreted the applicant's letter of 9 June 1993 as a request for

intervention in case the Registrar decided not to apply Section 33 of

the Order. In view of the fact that judge B. had already given an

opinion pursuant to Section 29 of the Order, judge H. found there was

no room for a new intervention decision.

11. Before the Commission the applicant complained that the

intervention proceedings were not in conformity with the requirements

of Article 6 para. 1 of the Convention. He submitted that in these

proceedings there had been no oral and public hearing, that the

proceedings had not been adversarial, and that the principle of

equality of arms had not been respected.

PART II

SOLUTION REACHED

12. Following the decision on the admissibility of the application,

the Commission (Second Chamber) placed itself at the disposal of the

parties with a view to securing a friendly settlement in accordance

with Article 28 para. 1 (b) of the Convention and invited the parties

to submit any proposals they wished to make.

13. In accordance with the usual practice, the Chamber Secretary,

acting on the Commission's instructions, contacted the parties to

explore the possibilities of reaching a friendly settlement.

14. By letter of 7 May 1996, the Government notified the Commission

that they had agreed to pay the applicant 1,800 Dutch guilders in full

and final settlement of the matter, this amount making up the

difference between the fee the applicant would have received in case

all the hours spent by him on the case before the Supreme Court could

have been declared and the standard fee the applicant did receive for

this case.

15. On 8 May 1996, the applicant confirmed to the Commission that

he accepted the Government's offer.

16. At its session on 26 June 1996, the Commission noted that the

parties had reached an agreement regarding the terms of a settlement.

It further considered, having regard to Article 28 para. 1 (b) of the

Convention, that the friendly settlement of the case had been secured

on the basis of respect for Human Rights as defined in the Convention.

17. For these reasons, the Commission adopted the present Report.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

Menu

HUMMELS v. THE NETHERLANDS

HUMMELS v. THE NETHERLANDS

LEXI