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EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 18266/91

Kiymet Düman

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 5 April 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 8). . . . . . . . . . . . . . . . . . . . . . . . 1

II. ESTABLISHMENT OF THE FACTS

(paras. 9 - 18) . . . . . . . . . . . . . . . . . . . . . . . 2

III. OPINION OF THE COMMISSION

(paras. 19 - 29). . . . . . . . . . . . . . . . . . . . . . . 4

A. Complaint declared admissible

(para. 19) . . . . . . . . . . . . . . . . . . . . . . . 4

B. Point at issue

(para. 20) . . . . . . . . . . . . . . . . . . . . . . . 4

C. As regards Article 6 para. 1 of the Convention

(paras. 21 - 28) . . . . . . . . . . . . . . . . . . . . 4

CONCLUSION

(para. 29) . . . . . . . . . . . . . . . . . . . . . . . 5

APPENDIX: DECISION AS TO THE ADMISSIBILITY

OF THE APPLICATION . . . . . . . . . . . . . . . . . . . 6

I. INTRODUCTION

1. The present Report concerns Application No. 18266/91 introduced

on 22 February 1991 against the Netherlands and registered on

28 May 1991.

2. The applicant is a Turkish national born in 1951 and resides in

Amsterdam.

3. The applicant is represented before the Commission by

Mrs. M.D. van Aller, a lawyer practising in Amsterdam.

4. The respondent Government are represented by their Agent,

Mr. K. de Vey Mestdagh, of the Netherlands Ministry of Foreign Affairs.

5. The application was communicated to the Government on

24 May 1993. Following an exchange of written observations on the

admissibility and merits of the case, the complaint relating to the

length of proceedings (Article 6 para. 1 of the Convention) was

declared admissible on 6 April 1994. The decision on admissibility is

appended to this Report.

6. Having noted that there is no basis upon which a friendly

settlement within the meaning of Article 28 para. 1 (b) of the

Convention can be secured, the Commission (Second Chamber), after

deliberating, adopted this Report on 5 April 1995 in accordance with

Article 31 para. 1 of the Convention, the following members being

present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

7. In this Report the Commission states its opinion as to whether

the facts found disclose a violation of the Convention by the

Netherlands.

8. The text of the Report is now transmitted to the Committee of

Ministers of the Council of Europe, in accordance with Article 31

para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

9. Until 3 December 1980, when the applicant fell ill, she worked

as a kitchen help in a hospital. On the basis of the Sickness Benefits

Act (Ziektewet) she received benefits for one year. As from

10 December 1981 these benefits were replaced by combined disability

benefits under the General Labour Disablement Benefits Act (Algemene

Arbeidsonge-schiktheidswet - "AAW") and the Labour Disablement

Insurance Act (Wet op de Arbeidsongeschiktheidsverzekering - "WAO"),

on the basis of complete incapacity to work.

10. By letter of 25 April 1985, the Industrial Insurance Board for

the Health, Mental and Social Interests Sector (Bedrijfsvereniging voor

de Gezondheid, Geestelijke en Maatschappelijke Belangen) informed the

applicant of its decision to stop the payment of benefits under the AAW

and WAO as from 1 April 1985, as she was considered able to perform

adapted work.

11. The applicant, represented by a lawyer, filed an appeal on

9 May 1985 with the Appeals Tribunal (Raad van Beroep) of Amsterdam.

On 27 June 1986 the Acting President of the Appeals Tribunal rejected

the applicant's appeal as ill-founded. The applicant subsequently filed

an objection (verzet) with the Appeals Tribunal. Following a hearing

on 19 December 1986 where only the applicant and her lawyer appeared,

and a hearing on 23 September 1987 where both parties appeared, the

Appeals Tribunal rejected the applicant's appeal against the decision

of the Industrial Insurance Board as ill-founded on 12 October 1987.

12. The applicant, again represented by a lawyer, filed an appeal

against this decision with the Central Appeals Tribunal (Centrale Raad

van Beroep) on 19 April 1988. By letter of 13 June 1990 the applicant

was invited to attend the hearing of her case by the Central Appeals

Tribunal on 12 July 1990. By letter of 21 June 1990 the applicant's

lawyer requested the Central Appeals Tribunal to postpone this hearing,

stating that she had to attend another hearing at the same time, and

informed the Central Appeals Tribunal of other dates on which she would

also be unable to attend.

13. On 12 July 1990 the hearing before the Central Appeals Tribunal

took place. Neither the applicant, who was on holiday in Turkey, nor

her lawyer or the Industrial Insurance Board appeared at the hearing.

14. In its decision of 2 August 1990, pronounced in public on the

same date, the Central Appeals Tribunal noted that the applicant's

lawyer had also submitted a letter of 24 June 1988 by a doctor and a

letter of 28 June 1988 by a psychiatrist, on which the Industrial

Insurance Board had commented in writing, and that, upon the request

of the Acting President of the Central Appeals Tribunal, the

psychiatrist Mr. L. was requested to submit his comments on the letter

of 28 June 1988, which comments were received on 19 April 1990.

15. The Central Appeals Tribunal rejected the lawyer's request of

21 June 1990 for a postponement and, after having considered the

various reports on the applicant's physical and mental state of health

and the applicant's comments on these reports, upheld the decision of

the Appeals Tribunal of 12 October 1987.

16. In respect of the lawyer's request to postpone the hearing of

12 July 1990, the Tribunal found no indication of circumstances

preventing the applicant from appearing in person, either alone or

assisted by another lawyer, at the hearing of 12 July 1990 in order to

exercise her rights under the Appeals Act (Beroepswet). The Central

Appeals Tribunal stated that it had not found it necessary to summon

the applicant to appear in person in order to provide information and

noted that the Industrial Insurance Board was not represented at the

hearing before the Tribunal either. No new facts or other elements on

which the applicant should have been able to comment had emerged. The

Central Appeals Tribunal took into consideration that the case had

already been examined on appeal before the Appeals Tribunal, where the

applicant, with legal assistance, had appeared. The Central Appeals

Tribunal finally held that in deciding upon requests to postpone a

hearing regard must be had to the fact that the granting of

postponements generally results in delays in the large number of

pending cases.

17. On 13 September 1990 a certified copy of the decision of

2 August 1990 by the Central Appeals Tribunal was communicated to the

applicant.

18. In a letter of 24 September 1990 to the Central Appeals Tribunal

the applicant's lawyer complained that her request to postpone the

hearing had been refused. Given that it takes years before a case comes

to trial before the Central Appeals Tribunal, that she is an

independent lawyer working alone and that other tribunals in such

circumstances grant a request to postpone a hearing without problems,

this way of administering justice in refusing a reasoned request by a

lawyer for a postponement was contrary to the principle of correct

legal proceedings and in violation of Article 6 of the Convention. The

applicant's lawyer urged the Central Appeals Tribunal, if in the future

circumstances would force her to request a postponement of a hearing,

to grant such requests.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

19. The Commission has declared admissible the applicant's complaint

that her case was not heard within a reasonable time.

B. Point at issue

20. The only point at issue is whether the length of the proceedings

complained of exceeded the "reasonable time" referred to in Article 6

para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

21. The relevant part of Article 6 para. 1 (Art. 6-1) of the

Convention provides as follows :

"In the determination of his civil rights and obligations (...),

everyone is entitled to a (...) hearing within a reasonable time

by (a) (...) tribunal (...)"

22. The proceedings in question concerned the applicant's disability

benefits. The purpose of the proceedings was to obtain a decision in

a dispute over "civil rights and obligations", and they accordingly

fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention

(cf. the Schouten and Meldrum judgment of 9 December 1994, Eur. Court

H.R., Series A no. 304).

23. These proceedings, which began on 9 May 1985 and ended on 2

August 1990, lasted over 5 years and 2 months.

24. The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the particular

circumstances of the case and with the help of the following criteria:

the complexity of the case, the conduct of the parties and the conduct

of the authorities dealing with the case (see Eur. Court H.R., Vernillo

judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

25. According to the Government, the length of the period in question

is partly due to the conduct of the applicant, who submitted additional

information to the Central Appeals Tribunal which had to be assessed

and who did not urge the Central Appeals Tribunal to expedite the

proceedings.

26. The Commission considers that the case does not appear to have

been particularly complex and that the applicant's conduct is not in

itself sufficient to explain the length of the proceedings. The

Commission notes the existence of a period of inactivity imputable to

the State of over two years, namely between 19 April 1988, when the

applicant appealed to the Central Appeals Tribunal, and 12 July 1990,

when the Central Appeals Tribunal held its hearing. It considers that

no convincing explanation for this delay has been advanced by the

respondent Government.

27. The Commission reaffirms that it is for Contracting States to

organise their legal systems in such a way that their courts can

guarantee the right of everyone to obtain a final decision on disputes

relating to civil rights and obligations within a reasonable time

(cf. Eur. Court H.R., Vocaturo judgment of 24 May 1991, Series A

no. 206-C, p. 32, para. 17).

28. In the light of the criteria established by case-law and having

regard to the circumstances of the present case, the Commission

considers that the length of the proceedings was excessive and failed

to meet the "reasonable time" requirement.

CONCLUSION

29. The Commission concludes, by 12 votes to 1, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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DUMAN v. THE NETHERLANDS

DUMAN v. THE NETHERLANDS

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