Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 20028/92

Paulina A.M.M. Dupont and Anton C. van Idsinga

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 21 February 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 5). . . . . . . . . . . . . . . . . . . . . . . . 1

II. ESTABLISHMENT OF THE FACTS

(paras. 6 - 11) . . . . . . . . . . . . . . . . . . . . . . . 3

III. OPINION OF THE COMMISSION

(paras. 12 - 30). . . . . . . . . . . . . . . . . . . . . . . 4

A. Complaint declared admissible

(para. 12) . . . . . . . . . . . . . . . . . . . . . . . 4

B. Points at issue

(para. 13) . . . . . . . . . . . . . . . . . . . . . . . 4

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

(paras. 14 - 28) . . . . . . . . . . . . . . . . . . . . 4

1. Length of the proceedings

(paras. 16 - 25) . . . . . . . . . . . . . . . . . . . . 4

Conclusion

(para. 26) . . . . . . . . . . . . . . . . . . . . . . . 5

2. Fair hearing

(para. 27) . . . . . . . . . . . . . . . . . . . . . . . 6

Conclusion

(para. 28) . . . . . . . . . . . . . . . . . . . . . . . 6

D. Recapitulation

(paras. 29 - 30) . . . . . . . . . . . . . . . . . . . . 6

APPENDIX : DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY

OF THE APPLICATION . . . . . . . . . . . . . . . . . . . 7

I. INTRODUCTION

1. The present Report concerns Application No. 20028/92 introduced

on 30 March 1992 against the Netherlands and registered on 22 May 1992.

The applicants are both Dutch nationals. The first applicant was

born in 1945 and resides in Tilburg. The second applicant was born in

1948 and resides in Rotterdam. The applicants are represented before

the Commission by Mrs. J. Hermelink-Kramer, a lawyer employed by the

Stichting Rechtsbijstand Gezondheidszorg at Utrecht.

The respondent Government are represented by their Agent,

Mr. Karel de Vey Mestdagh, of the Netherlands Ministry of Foreign

Affairs.

2. The application was communicated to the Government on

6 January 1993. Following an exchange of written observations, the

complaint relating to the length of proceedings (Article 6 para. 1 of

the Convention) was declared admissible on 18 October 1993. The

decision on admissibility is appended to this Report.

3. 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, after deliberating, adopted

this Report on 21 February 1995 in accordance with Article 31 para. 1

of the Convention, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

G. JÖRUNDSSON

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

J. MUCHA

D. SVÁBY

E. KONSTANTINOV

G. RESS

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

the facts found disclose a violation of the Convention by the

Netherlands.

5. 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

6. In their application, in which they rely on Article 6 para. 1 of

the Convention, the applicants complain of the length of the

proceedings concerning their obligation to pay social security

contributions.

7. Following a policy change in the Occupational Association for

Health, Mental and Social Well-being (Bedrijfsvereniging voor de

Gezondheid, Geestelijke en Maatschappelijke Belangen, hereinafter

referred to as "BVG") - which is entrusted with the administration of

the social security system of the sector concerned and, inter alia,

fixes and receives social security contributions - certain work

relations, such as in the case of the applicants, were considered to

fall under the rules on social security.

8. Consequently, on 23 December 1985 the second applicant, and on

25 August 1986 the first applicant, were requested to pay social

security premiums.

9. Pursuant to the appeal procedure under the Appeals Act

(Beroepswet) the applicants requested the BVG to issue a formal

decision (voor beroep vatbare beslissing) which is required for the

lodging of an appeal with the Appeals Tribunal (Raad van Beroep)

against a decision of the BVG. The first applicant requested the BVG

to issue such a decision on 14 September 1986, but it was not issued

until almost two and a half years later, on 3 March 1989. The second

applicant asked for a decision on 27 January 1986, but it was not

issued until almost three years and four months later, on 17 May 1989.

10. The first applicant's appeal of 22 March 1989 to the Appeals

Tribunal of 's-Hertogenbosch was rejected on 2 August 1990 and her

further appeal was rejected by the Central Appeals Tribunal (Centrale

Raad van Beroep) on 2 October 1991.

11. The second applicant's appeal of 5 June 1989 to the Appeals

Tribunal of Rotterdam was rejected on 20 August 1990 and his further

appeal was rejected by the Central Appeals Tribunal on 2 October 1991.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

12. The Commission has declared admissible the applicants' complaint

that they did not receive a fair hearing within a reasonable time.

B. Points at issue

13. Accordingly, the issues to be determined are:

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention as regards the length of the

proceedings; and,

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention as regards the fairness of the

proceedings.

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

14. 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 fair... hearing within a reasonable

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

15. The proceedings in question concerned the applicants' obligation

to pay social security contributions. 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 (see Eur. Court H.R., Schouten and

Meldrum judgment of 9 December 1994, to be published in Series A no.

304, paras. 49-60).

1. Length of the proceedings

16. In respect of the first applicant, these proceedings began on

14 September 1986, when she requested the BVG to issue a formal

decision (see, Eur. Court H.R., Schouten and Meldrum judgment, loc.

cit., para. 62), and ended on 2 October 1991, when the Central Appeals

Tribunal rejected her appeal. They thus lasted five years and eighteen

days.

17. As regards the second applicant, these proceedings began on

27 January 1986, when he requested the BVG to issue a formal decision,

and ended on 2 October 1991, when the Central Appeals Tribunal rejected

his appeal. They thus lasted five years, eight months and five days.

18. The applicants submit that the length of the proceedings exceeded

a reasonable time in view of the period of time which elapsed between

the day on which they requested the BVG to issue a formal decision and

the day on which this formal decision was issued.

19. The Government submit that the respective proceedings before the

Appeals Tribunal and the Central Appeals Tribunal cannot be regarded

as unreasonably long. They further submit that the applicants have

failed to take any steps in order to expedite the issue of the formal

decision by the BVG, such as by requesting the BVG to expedite the

issue of this decision, by complaining about the delay caused by the

BVG to the Social Security Council (Sociale Verzekeringsraad), or by

starting summary proceedings (kort geding) before the civil courts.

20. The Commission recalls that the reasonableness 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).

21. The Commission notes that the applicants could not obtain any

examination by a tribunal until they had obtained a formal decision

from the BVG. It does not find it established that the procedures

suggested by the Government in order to expedite the issue of a formal

decision could have improved their position.

22. The Commission notes the existence of a period of inactivity

imputable to the State between the date on which the applicants

requested the BVG to issue a formal decision and the date on which the

BVG provided the applicants with a formal decision. In the case of the

first applicant, this delay lasted almost two and a half years, i.e.

between 14 September 1986 and 3 March 1989, and, in the case of the

second applicant, this delay lasted almost three years and four months,

i.e. between 27 January 1986 and 17 May 1989.

23. It considers that no convincing explanation for this delay has

been advanced by the respondent Government.

24. 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).

25. 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 at issue was excessive and

failed to meet the "reasonable time" requirement.

Conclusion

26. The Commission concludes, unanimously, that there has been a

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

the length of the proceedings.

Fair hearing

27. As to the question whether or not the applicants were deprived

of a fair hearing as a result of the delay caused by the BVG, the

Commission, noting that it has not appeared that in the proceedings at

issue the applicants were prevented from presenting whatever arguments

they considered relevant, finds that it has not been established that

the delay caused by the BVG affected the fairness of these proceedings

(Eur. Court H.R., Schouten and Meldrum judgment, loc.cit., para. 71).

Conclusion

28. The Commission concludes, unanimously, that there has been no

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

the fairness of the proceedings.

D. Recapitulation

29. The Commission concludes, unanimously, that there has been a

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

the length of the proceedings (para. 26 above).

30. The Commission concludes, unanimously, that there has been no

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

the fairness of the proceedings (para. 28 above).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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DUPONT and VAN IDSINGA v. THE NETHERLANDS

DUPONT and VAN IDSINGA v. THE NETHERLANDS

LEXI