Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 15595/89

Douwe Rozendale

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 19 January 1994)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16). . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 12-16) . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-29) . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 17-21) . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 22-29) . . . . . . . . . . . . . . . . . . 4

III. OPINION OF THE COMMISSION

(paras. 30-47) . . . . . . . . . . . . . . . . . . . . . 6

A. Complaint declared admissible

(para. 30) . . . . . . . . . . . . . . . . . . . . 6

B. Point at issue

(para. 31) . . . . . . . . . . . . . . . . . . . . 6

C. Article 6 para. 1 of the Convention

(paras. 32-46) . . . . . . . . . . . . . . . . . . 6

CONCLUSION

(para. 47) . . . . . . . . . . . . . . . . . . . . 8

DISSENTING OPINION OF MRS. G. H. THUNE. . . . . . . . . . . . . . . 9

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .10

APPENDIX II : DECISION ON THE ADMISSIBILITY

OF THE APPLICATION . . . . . . . . . . . . . . .11

I. INTRODUCTION

1 The following is an outline of the case as submitted to the

European Commission of Human Rights and of the procedure before the

Commission.

A. The application

2 The applicant is a Dutch citizen, born in 1908, and residing at

The Hague, the Netherlands. In the proceedings before the Commission

he is represented by Mr. L.A. van der Niet, a lawyer practising at

Leiderdorp.

3 The application is directed against the Netherlands. The

respondent Government are represented by their Agent,

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

4 The application concerns proceedings under the Act on Fees in

Civil Cases (Wet Tarieven in Burgerlijke Zaken). The applicant

complains that he did not have a fair hearing before an independent and

impartial tribunal within the meaning of Article 6 para. 1 of the

Convention.

B. The proceedings

5 The application was introduced on 14 October 1988 and registered

on 10 October 1989.

6 On 12 December 1991 the Commission decided that notice should be

given to the Government of the Netherlands of the application and that

they should be invited to submit written observations on the

admissibility and merits of the application.

7 On 6 January 1992 the Commission referred the application to the

Second Chamber.

8 The Government submitted their observations on 13 March 1992.

The applicant submitted observations in reply on 10 June 1992 after

expiry of the fixed time-limit.

9 On 2 December 1992 the Commission (Second Chamber) declared the

application admissible and decided to request additional information

from the parties.

10 The applicant submitted additional information on

19 January 1993. After an extension of the time-limit, the Government

submitted additional information on 15 February 1993.

11 After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1(b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

12 The present Report has been drawn up by the Commission (Second

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

13 The text of this Report was adopted on 19 January 1994 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

14 The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found disclose a

breach by the State concerned of its obligations under the Convention.

15 A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

16 The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17 In the context of his divorce, the applicant considered that his

lawyer had misinformed and misrepresented him to such a degree that he

could not be obliged to pay for his lawyer's services.

18 As he persisted in his refusal to pay, the lawyer referred his

breakdown of fees and expenses, as presented in his bill, to the

Supervisory Council of the Bar Association (Raad van Toezicht van de

Orde van Advocaten). In accordance with Article 32 of the Act on Fees

in Civil Cases (Wet Tarieven in Burgerlijke Zaken, hereinafter referred

to as "the Act"), this body verified on 28 October 1987 that the

breakdown and the level of the fees complied with the standards set by

the Bar Association. As provided for in the Act, the lawyer was

granted an execution order on 1 July 1988 by the President of the

Regional Court (Arrondissementsrechtbank) of The Hague.

19 On 10 November 1988, the applicant filed an objection (verzet)

within the meaning of Article 40 of the Act against this order with the

Regional Court of The Hague, complaining that the lawyer had

misrepresented him and that the proceedings before the Supervisory

Council had not satisfied the requirements of Article 6 of the

Convention, and to this end summoned the lawyer before the Regional

Court of The Hague. In the course of its examination of the objection,

the Regional Court heard neither of the parties orally. It based its

decision of 12 July 1989, in which it dismissed the objection as being

ill-founded, on the parties' written submissions. The Regional Court

found the applicant's allegation of breach of contract by his lawyer

wholly unsubstantiated and noted that the applicant had not offered to

prove his allegations. Concerning the applicant's complaint that

Article 6 of the Convention had been violated, the Regional Court

observed that Article 40 of the Act enables the applicant to submit all

his complaints to the court which has full jurisdiction to consider

them. Consequently, the Regional Court held that Article 6 of the

Convention had been complied with. It does not appear that the

applicant requested the Regional Court to hold an oral hearing before

deciding the case.

20 The applicant did not institute any proceedings against the

lawyer before the civil courts on the claim of a breach of contract.

It appears from the case-file that the applicant instituted

disciplinary proceedings against the lawyer in accordance with the

Advocates Act (Advocatenwet; see para. 25 below). However, the Vice-

President of the Disciplinary Council (Raad van Discipline) initially

rejected his application, which decision was upheld in the subsequent

proceedings before the Disciplinary Council. An appeal brought before

the Disciplinary Court (Hof van Discipline) was rejected by its Vice-

President. It does not appear that the applicant has challenged the

decision of the Vice-President before the Disciplinary Court.

21 Meanwhile the applicant has paid his lawyer's fees.

B. Relevant domestic law

22 The Act on Fees in Civil Cases of 1843 provides for a specific

procedure for disputes arising between a lawyer and his client as to

the level of the fees charged. According to Article 32 of the Act,

either the lawyer or his client can refer the lawyer's detailed bill

to the Supervisory Council of the Bar Association, which verifies

whether the level of the fees charged complies with the standards set

by the Bar Association. The Supervisory Council consists of lawyers

admitted to the Bar. The fulfilment of its task under the Act is not

subject to any procedural rule. In practice the Council meets in

camera and does not hear the persons concerned.

23 If the client does not pay the lawyer after the Supervisory

Council's approval or substituted assessment of the bill, the President

of the Regional Court shall determine the fees (Article 33) and issue

an execution order (Article 39).

24 Article 40 of the Act provides that the client can file an

objection against this order with the full Regional Court who will deal

with it as a summary case (summiere zaak). The Court's decision is not

open to objection, appeal or cassation. The Act does not contain any

procedural requirements regarding the objection proceedings. The

general notion of a summary case was abolished by the legislator in

1896 but has remained in the Act. Consequently, there is some

uncertainty as to its concrete meaning. Although the objection

proceedings before the Court are adversarial, it appears that normally

neither the client nor the lawyer is heard in person, but that the case

is decided on the basis of the parties' written submissions. The Act

itself does not prescribe or exclude an oral hearing. According to

Dutch case-law, the Regional Court can, following a request thereto,

give the parties the opportunity to address the Court orally, and it

has full jurisdiction to assess all complaints when it verifies the

lawyer's bill (see e.g. Regional Court Haarlem, 3.6.1980, NJ 1981, 408;

Supreme Court 26.2.1988, NJ 1988, 506). The Regional Court is

empowered, in the objection proceedings, to annul and replace the

decision and execution order of the President (Regional Court

Amsterdam, NJ 1914, p. 923).

25 Under the Advocates Act, a practising lawyer (advocaat) is

subjected to the disciplinary jurisdiction of the Disciplinary Council

(Raad van Discipline) and, on appeal, of the Court of Discipline (Hof

van Discipline). Both organs are composed of members of the judiciary

and practising lawyers. The President and the two Vice-Presidents of

each of these organs shall always be members of the judiciary

(Articles 46b and 51 of the Advocates Act). When dealing with a

specific case, the Disciplinary Council is composed of five members,

one of whom must be the President or the Vice-President (Article 47).

The Disciplinary Court shall in each case be composed of five members,

among whom the President or a Vice-President as well as two members

from the judiciary (Article 56).

26 Where a client considers that a lawyer, in representing or

assisting him, has not acted with due care or in conformity with

professional standards, he may lodge a complaint with the President of

the Bar Association (deken van de orde) who, unless the dispute is

settled, will refer the matter to the Disciplinary Council

(Articles 46c, 46d and 46e). The President or Vice-President of the

Disciplinary Council can reject manifestly ill-founded complaints

(Article 49g). The complainant can challenge (verzet) such a decision

before the full Disciplinary Council (Article 46h). Against the

Council's decision an appeal can be filed with the Disciplinary Court

(Article 56). The President or Vice-President of the Disciplinary Court

can reject manifestly ill-founded appeals (Article 56a). Such a

rejection can be challenged before the full Disciplinary Court

(Article 56b).

27 Where a complaint is considered well-founded, a disciplinary

sanction may be imposed. Such a sanction may be a warning, a

reprimand, a measure of suspension or deprivation of the right to

practise law (Article 48). Moreover the lawyer may be ordered to pay

compensation for the damage which he has caused by his behaviour

(Article 48b).

28 The procedure before the Disciplinary Council and the

Disciplinary Court comprises the following elements (Articles 49 and

57). The complainant and the lawyer against whom the case is brought

shall be summoned to appear. They may be assisted by counsel. They

shall also be given access to the documents in the case-file. The

Disciplinary Council and the Disciplinary Court may hear witnesses and

experts. The hearings before both organs shall be held in public

unless, on account of weighty reasons, it is decided to hold a hearing

in camera.

29 Apart from the specific procedures described in the preceding

paragraphs, there is a general possibility to sue before the civil

courts for a breach of contract. A client who considers that his lawyer

has misrepresented him could avail himself of this remedy in order to

obtain compensation for damage suffered.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

30 The Commission has declared admissible the applicant's complaint

that he did not have a fair hearing before an independent and impartial

tribunal in the determination of his civil obligations vis-à-vis his

lawyer.

B. Point at issue

31 Accordingly, the issue to be determined is whether there has been

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

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

32 Article 6 para. 1 (Art. 6-1) of the Convention provides, insofar

as relevant:

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

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal ..."

33 The Commission recalls that, in its decision on the admissibility

of the application, it found that there was a dispute concerning the

applicant's civil obligations and that Article 6 para. 1 (Art. 6-1) of

the Convention was therefore applicable to the proceedings in the

present case.

34 The Commission must consequently address the question whether the

applicant had a fair hearing by an independent and impartial tribunal.

35 The applicant submits that the Supervisory Council is not an

independent and impartial tribunal as it is composed of lawyers

admitted to the Bar. He was neither heard by the Supervisory Council,

which sits in camera, nor by the President of the Regional Court, when

the execution order was issued, nor by the Regional Court in the

objection proceedings.

36 The Government state that no hearing was required since the sole

purpose of the proceedings under the Act on Fees in Civil Cases is to

verify the amount of the fees charged by the lawyer. Insofar as the

lawyer's alleged breach of contract is concerned, the applicant should

have seized the civil courts.

37 The Commission notes that the Act on Fees in Civil Cases provides

for a summary procedure in determining the level of advocates' fees.

However, the purpose of that procedure is not to determine whether a

lawyer has been negligent in carrying out his functions on behalf of

a client or whether the remuneration for his work should be reduced on

such grounds.

38 In the present case, the applicant considered that his lawyer had

misinformed and misrepresented him to such a degree that he should not

be obliged to pay for his services. The question is whether he could,

under the Dutch legal system, have that question determined in a

procedure satisfying the requirements of Article 6 (Art. 6) of the

Convention.

39 The Government have stated that the applicant could have

instituted civil proceedings before a court in order to have his

obligation to pay his lawyer's fee determined.

40 The Commission notes, however, that the applicant was the person

against whom a claim was brought by his lawyer. He was therefore in

the position of a defendant, and as a rule a defendant cannot be

expected to institute proceedings but can limit himself to resisting

claims brought against him. Even if, under Dutch law, it would have

been possible for the applicant to institute civil proceedings in order

to obtain a determination that he was not under an obligation to pay

any fee to his lawyer, it could not be expected of him that he should

take such an unusual initiative.

41 On the other hand, the Commission notes that the applicant

accused his lawyer of misbehaviour, a matter which it would be

appropriate to have examined in disciplinary proceedings against the

lawyer. It further appears that the applicant did institute

disciplinary proceedings under the Advocates Act but without success.

It should be examined, however, whether these proceedings could, if

successful, have resulted not only in a disciplinary sanction against

the lawyer but also in the determination of the financial relations

between the applicant and his lawyer and, if so, whether the bodies

competent to deal with the disciplinary case could be regarded as

independent and impartial tribunals within the meaning of Article 6

(Art. 6) of the Convention and whether the procedure before those

organs was in conformity with that Article.

42 While the primary purpose of disciplinary proceedings under the

Advocates Act is to examine whether a lawyer, in representing or

assisting his client, has failed to act with due care and in conformity

with professional standards and to impose, where necessary, a

disciplinary sanction upon him, it follows from Article 48b of the

Advocates Act that, where a sanction is imposed, the lawyer can also

be ordered to compensate the damage caused by his acts. The Commission

therefore finds that the disciplinary proceedings which the applicant

instituted could also have involved a determination of the economic

relations between him and his lawyer.

43 The Commission further notes that the Disciplinary Council and

the Disciplinary Court are composed of members of the judiciary and

practising lawyers who, in the exercise of their functions, are

independent of the executive and the parties. Moreover, the procedure

applied by these bodies is of a judicial character (see para. 44

below). The Commission considers that they should be regarded as

independent and impartial tribunals within the meaning of Article 6

(Art. 6) of the Convention.

44 As regards the procedure before the Disciplinary Council and the

Disciplinary Court, the Commission notes that the complainant and the

lawyer against whom a case is brought shall be summoned to attend the

hearing in the case and that they may both be assisted by counsel.

They shall also be given access to the documents in the case-file. The

Disciplinary Council and the Disciplinary Court may hear witnesses and

experts. The hearing shall as a rule be held in public, but where

there are weighty reasons it may be decided to hold the hearing in

camera.

45 Having regard to these various elements, the Commission finds no

reason to doubt that the procedure before the Disciplinary Council and

the Disciplinary Court is, in principle, in conformity with the

requirements of Article 6 (Art. 6) of the Convention. Consequently,

and having regard to the fact that the applicant based his refusal to

pay his lawyer's fee on such alleged behaviour by his lawyer as could

give rise to disciplinary sanctions, the Commission considers that the

applicant had access to independent and impartial tribunals which were

competent to determine the civil rights and obligations at issue in

this case.

46 In these circumstances, the Commission finds that Article 6

(Art. 6) of the Convention has not been violated in the present case.

CONCLUSION

47 The Commission concludes by twelve votes to one that there has

been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

(Or. English)

DISSENTING OPINION OF MRS. G.H. THUNE

Unfortunately I am unable to agree with the majority of the

Commission and have voted against the finding of no violation of

Article 6 of the Convention.

It seems to me that the applicant's obligation to pay his

lawyer's fees was finally decided through the decision by the Regional

Court. The applicant accordingly then paid the amount decided by the

Court.

During these proceedings no hearing was held at any stage as

required by Article 6 para. 1. It seems that it is unusual to hear the

parties in such legal fee disputes. I also observe that there is no

evidence in the present case that the applicant unequivocally waived

his right to a hearing. Moreover, despite the apparent equality of

arms in the present case, in that neither party was heard by the court,

the extent of the discretion of the Regional Court in granting a

hearing at the request of one of the parties to the proceedings was

unclear. Given the Regional Court's summary dismissal of the

applicant's case as being wholly unsubstantiated, it cannot be said

with any certainty that the applicant would have been granted a hearing

if he had asked for one.

I do not agree with the majority that the deficiencies in the

proceedings before the Regional Court would be remedied through the

possibility for the applicant of instituting disciplinary proceedings

or proceedings before the ordinary courts.

The aim of disciplinary proceedings is to sanction the particular

lawyer. This is in my opinion a question quite different from what was

at stake for the applicant, namely the amount he was obliged to pay to

his former lawyer with a view to the quality of the particular service

received. The test that would be applied in a disciplinary case is not

in any way identical to the test that would be applied in a civil

conflict concerning possible reduction of the bill presented by a

lawyer.

Here this conflict was in fact settled by the Regional Court in

proceedings which did not seem in compliance with the requirements of

Article 6 as interpreted by the European Court and Commission of Human

Rights.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

______________________________________________________________________

14 October 1988 Introduction of the application

10 October 1989 Registration of the application

Examination of the admissibility

12 December 1991 Commission's decision to

communicate the case and to

invite the parties to submit

their observations on

admissibility and merits

6 January 1992 Commission's decision to refer

the application to the Second

Chamber

13 March 1992 Government's observations

10 June 1992 Applicant's observations in

reply

2 December 1992 Commission's decision to

declare the application

admissible and to request

additional information from the

parties

Examination of the merits

19 January 1993 Submission of additional

information by the applicant

15 February 1993 Submission of additional

information by the Government

6 April 1993 Consideration of the state of

the proceedings

30 June 1993 Commission's deliberation on

the merits and decision to

adjourn its examination.

11 January 1994 Commission's deliberation on the

merits and final vote.

19 January 1994 Commission's adoption of the

Report

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ROZENDALE v. the NETHERLANDS

ROZENDALE v. the NETHERLANDS

LEXI