DE VRIES v. the NETHERLANDS
Doc ref: 16690/90 • ECHR ID: 001-45652
Document date: October 13, 1993
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EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 16690/90
Watze de Vries
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 13 October 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-19) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-8) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 9-14). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 15-19) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 20-35). . . . . . . . . . . . . . . . . . . . . . . . 3
A. Particular circumstances of the case
(paras. 20-29) . . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law and practice
(paras. 30-35) . . . . . . . . . . . . . . . . . . . . . 4
III. OPINION OF THE COMMISSION
(paras. 36-65). . . . . . . . . . . . . . . . . . . . . . . . 7
A. Complaints declared admissible
(para. 36) . . . . . . . . . . . . . . . . . . . . . . . 7
B. Points at issue
(para. 37) . . . . . . . . . . . . . . . . . . . . . . . 7
C. Article 6 para. 1 of the Convention
(paras. 38-50) . . . . . . . . . . . . . . . . . . . . . 7
D. Article 8 of the Convention
(paras. 51-59) . . . . . . . . . . . . . . . . . . . . . 9
E. Article 13 of the Convention
(paras. 60-62) . . . . . . . . . . . . . . . . . . . . .10
F. Recapitulation
(paras. 63-65) . . . . . . . . . . . . . . . . . . . . .11
APPENDIX I : HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . .12
APPENDIX II : DECISION ON THE ADMISSIBILITY . . . . . . . . . . .13
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 1937 and residing in
Sneek, the Netherlands. Before the Commission he is represented by
Mrs. G.E.M. Later, a lawyer practising in The Hague, the Netherlands.
3 The application is directed against the Netherlands, whose
Government are represented by their Agent, Mr. Karel de Vey Mestdagh
of the Netherlands Ministry of Foreign Affairs.
4 Following a request from the Child Welfare Council to deprive the
applicant of the guardianship over two of his children, the Regional
Court heard the applicant and the two children on 8 December 1987.
5 By decision of 24 December 1987, which was pronounced in public
in the absence of the applicant, the Regional Court of Leeuwarden
deprived the applicant of the guardianship over his two children. On
29 January 1988 the Registrar to the Regional Court sent a copy of this
decision to the applicant's lawyer.
6 On 19 February 1988 the applicant filed an appeal against the
decision of 24 December 1987. On 11 May 1988 the Court of Appeal
rejected the appeal for being out of time, since it had been lodged
more than three weeks after 24 December 1987.
7 The applicant's appeal in cassation was rejected by the Supreme
Court on 17 November 1989.
8 The applicant complains under Article 6 para. 1 of the Convention
that he did not receive a fair trial, under Article 8 of the Convention
that his right to respect for his family life was unjustly interfered
with, and under Article 13 of the Convention that he was deprived of
an effective remedy against the Regional Court's decision of
24 December 1987.
B. The proceedings
9 The application was introduced on 12 May 1990 and registered on
11 June 1990.
10 On 8 November 1990 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the
application.
11 The Government's observations were submitted on 31 January 1991.
The applicant submitted his observations in reply on 8 April 1991.
12 On 9 April 1991 the Commission referred the application to the
Second Chamber.
13 On 2 December 1992 the Commission (Second Chamber) declared the
application admissible.
14 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 of the case. 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
15 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 of the Second Chamber
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
16 The text of the Report was adopted on 13 October 1993 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 1 of the Convention.
17 The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
(1) to establish the facts, and
(2) to state an opinion as to whether the facts
found disclose a breach by the State concerned
of its obligations under the Convention.
18 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 forms Appendix II.
19 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. Particular circumstances of the case
20 On 20 November 1987 the Child Welfare Council (Raad voor de
Kinderbescherming) of Leeuwarden, basing itself on Section 327
para. 1 (a) and (b) of the Civil Code - book 1 (Burgerlijk Wetboek -
boek 1), requested the Regional Court (Arrondissementsrechtbank) of
Leeuwarden to deprive the applicant of guardianship (ontzetting van de
voogdij) over two of his children, whose mother he had divorced in
1976, the reason for the request being, inter alia, the applicant's
heroin addiction and his serious neglect in the care of the children.
21 On 8 December 1987 the Regional Court heard the two children in
the judge's chambers (in raadkamer) and the applicant in the presence
of his lawyer in camera (terechtzitting met gesloten deuren). At the
end of this hearing, contrary to Section 909 of the Code of Civil
Procedure (Wetboek van Burgerlijke Rechtsvordering), the Court did not
announce when it would pronounce its decision.
22 By decision of 24 December 1987, which was pronounced in public
but in the absence of the applicant, the Regional Court deprived the
applicant of the guardianship over the children. The Court had regard
to reports on the applicant's children by the children's homes where
they resided recommending that they do not return to their father, the
applicant's numerous convictions of, amongst other things, assault,
theft, intentional violation of the Opium Act, the fact that in January
1988 he had to appear before the Magistrate (politierechter) on the
suspicion of again having violated the Opium Act and the statements the
applicant and his two children had made in the course of the hearings
of 8 December 1987, Pursuant to Section 910 para. 4 of the Code of
Civil Procedure an appeal against this decision could be lodged within
three weeks as from that date.
23 The Registrar to the Regional Court sent a copy of this decision
to the applicant's lawyer on 29 January 1988.
24 On 19 February 1988 the applicant filed an appeal against the
decision of 24 December 1987 with the Court of Appeal (Gerechtshof) of
Leeuwarden. By letter of 29 March 1988 the Registrar to the Regional
Court informed the Court of Appeal that, due to an oversight by the
Regional Court, the decision of 24 December 1987, contrary to
Section 913 para. 1 (b) of the Code of Civil Procedure, had not been
sent to the applicant's lawyer until 29 January 1988 and that,
therefore, the period for the introduction of an appeal would only run
from the latter date.
25 On 12 April 1988 the Court of Appeal heard the applicant's
children in the judge's chambers and on 13 April 1988 the applicant in
the presence of his lawyer in camera.
26 On 11 May 1988 the Court of Appeal, referring to Section 910
para. 4 of the Code of Civil Procedure, rejected the applicant's appeal
as being out of time, noting that it had not been submitted within
three weeks from the decision of 24 December 1987.
27 On 17 June 1988 the applicant filed an appeal in cassation with
the Supreme Court (Hoge Raad).
28 The Procurator-General (Procureur-Generaal) to the Supreme Court
considered in his opinion of 29 September 1989 that the Court of
Appeal's decision of 11 May 1988 should be quashed given that the
Regional Court had failed to announce the date and hour of its
decision, that the decision of the Regional Court of 24 December 1987
was not pronounced, as prescribed by law, within 14 days after the last
hearing and that due to an oversight by the Regional Court it was not
sent to the applicant's lawyer until 29 January 1988.
29 On 17 November 1989 the Supreme Court rejected the applicant's
appeal in cassation. It held that it did not follow from Section 910
para. 4 of the Code of Civil Procedure that the period for appeal only
ran from the moment at which a party had or could have become
acquainted with the contents of the judicial decision. Under
Article 6 para. 1 of the Convention the Supreme Court considered that
the Convention contains no right to appeal and that the Court of
Appeal's interpretation of the provisions dealing with access to an
appeal court did not deprive the applicant of a fair hearing within the
meaning of Article 6.
B. Relevant domestic law and practice
30 Section 327 para. 1 (a) and (b) of the Civil Code - book 1
provides as follows:
"Indien de rechtbank dit in het belang van die
minderjarigen noodzakelijk oordeelt, kan zij een voogd of
toeziend voogd ten aanzien van een of meer tot een zelfde
voogdij behorende minderjarigen ontzetten op grond van:
a. slecht levensgedrag;
b. misbruik van zijn bevoegdheid, verwaarlozing van zijn
verplichtingen, of de omstandigheid dat hij niet in staat
is tot een behoorlijke uitoefening van zijn voogdij of
toeziende voogdij;"
"When the Regional Court considers it necessary in the
interest of those minors, it can deprive a guardian or co-
guardian of the guardianship over one or more minors on the
ground of:
a. bad conduct in life;
b. abuse of his authority, neglect of his commitments, or
the circumstance that he is unable to properly exercise his
guardianship or co-guardianship;"
31 Sections 900 to 968 (d) of the Code of Civil Procedure deal with
proceedings concerning parental authority, guardianship, parental
access and emancipation of minors (ouderlijke macht, voogdij, omgang
en handlichting).
32 Section 909 of the Code of Civil Procedure, in so far as
relevant, provides:
"1. De beschikkingen worden gegeven uiterlijk veertien
dagen na het laatste verhoor. Zij worden op straffe van
nietigheid met redenen omkleed. (...).
(...)
3. Indien de beschikking in het openbaar moet worden
uitgesproken, deelt de rechter bij het laatste verhoor dag
en uur der uitspraak mede."
"1. The decisions are given at the latest fourteen days
after the last hearing. Failure to indicate the reasons
for the decision entails nullity. (...).
(...)
3. Where the decision must be pronounced in public, the
judge announces the day and hour of the pronouncement at
the last hearing."
33 Section 910 para. 4 of the Code of Civil Procedure reads:
"De termijn van beroep loopt gedurende drie weken na de dag
waarop de griffier de voorgeschreven mededeling van de
beschikking heeft verzonden, of, indien de beschikking in
het openbaar wordt uitgesproken, na de dag der uitspraak."
"The appeal period is three weeks and starts to run on the
day after which the Registrar has sent the prescribed
notification of the decision, or, when the decision has
been pronounced in public, after the day of the
pronouncement."
34 Section 913 para. 1 (b) of the Code of Civil Procedure reads:
"Van elke beschikking met betrekking tot het - blijvend of
tijdelijk - over minderjarigen uit te oefenen gezag,
daaronder begrepen de toeziende voogdij, doet de griffier
onverwijld mededeeling:
(...)
b. aan dengene, die dientengevolge het gezag in rechte of
in feite zal verliezen;
(...).
"Of every decision concerning the - permanent or temporary
- authority to be exercised over minors, including
co-guardianship, the Registrar will immediately notify:
(...)
b. the person, who as a result thereof will lose the factual
or legal authority;
(...)."
35 Section 938 para. 2 of the Code of Civil Procedure, which -
according to Section 947 of the Code of Civil Procedure - applies to
proceedings on deprivation of guardianship reads, insofar as relevant:
"Binnen veertien dagen na het laatste verhoor wordt de met
redenen omkleede beschikking in het openbaar uitgesproken."
"Within fourteen days after the last hearing the reasoned
decision will be pronounced in public."
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
36 The Commission has declared admissible the applicant's
complaints:
- that he did not receive a fair hearing as the judicial
authorities' failure to respect statutory procedural
requirements prevented him from appealing in time against
the Regional Court's decision of 24 December 1987;
- that the decision to deprive him of the guardianship over
his two children unjustly interfered with his right to
respect for his family life;
- that the judicial authorities' oversights deprived him of
an effective remedy against the Regional Court's decision
of 24 December 1987.
B. Points at issue
37 Accordingly, the issues to be determined are:
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention;
- whether there has been a violation of Article 8 (Art. 8) of
the Convention; and
- whether there has been a violation of Article 13 (Art. 13)
of the Convention.
C. Article 6 para. 1 (Art. 6-1) of the Convention
38 The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that he did not receive a fair hearing as the judicial
authorities' failure to respect statutory procedural requirements
prevented him from appealing in time against the Regional Court's
decision of 24 December 1987.
39 Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads as follows:
"In the determination of his civil rights and obligations
(...) everyone is entitled to a fair (...) hearing (...) by
a (...) tribunal established by law."
40 The applicant, referring in particular to the Procurator-
General's opinion of 29 September 1989 to the Supreme Court, maintains
that the Court of Appeal and the Supreme Court unjustly considered his
appeal of 19 February 1988 to have been submitted out of time. He
submits that he did not know, nor could have known, when the time for
appeal began to run because a whole series of rules had been infringed
by the Regional Court and its Registrar.
41 The Government subscribe to the Supreme Court's view that neither
Article 6 para. 1 (Art. 6-1) nor any other provision of the Convention
provides for a right of appeal. They add that if a possibility of
appeal exists in proceedings concerning the determination of civil
rights, the appeal proceedings must be consistent with the provisions
of Article 6 para. 1 (Art. 6-1).
42 The Government admit that in the present case both the Regional
Court and the Registrar did not respect Article 909 paras. 1 and 3 and
Article 913 of the Code of Civil Procedure but argue that these
provisions only serve as guidelines for correct procedure and that
Dutch law attaches no consequences to their non-observance. Referring
to Article 910 of the Code of Civil Procedure, the Government stress
that the non-observance of these guidelines does not affect the time-
limit for an appeal.
43 The Government consider that the Supreme Court rightly applied
the statutory provisions concerning the time-limit for the introduction
of an appeal in a strict manner, it being in the interest of legal
certainty and the public that parties involved in cases as the present
one know for certain when a decision must be regarded as final. The
applicable provisions are clear on that point.
44 The Government finally submit that the applicant was not denied
an appeal procedure, but that he or his counsel, in view of the clear
statutory regulations, could have applied to the Registrar for
information on the date of the pronouncement of the decision. The
applicant and his counsel should have been aware that, by waiting for
the notification of the decision, the applicant was running the risk
that the time-limit for an appeal would expire.
45 The Commission recalls at the outset that Article 6 para. 1
(Art. 6-1) of the Convention does not as such guarantee the right of
appeal to a higher court (cf. No. 11941/86, Dec. 5.10.88, D.R. 57
p. 100) but that where the opportunity to seek appeal is provided under
domestic law, the guarantees of Article 6 (Art. 6) continue to apply
to the proceedings on appeal (see mutatis mutandis No. 9315/81,
Dec. 15.7.83, D.R. 34 p. 96).
46 The Commission further recalls that Article 6 para. 1 (Art. 6-1)
does not debar Contracting Parties from making regulations governing
the access of litigants to an appellate court, provided that such
regulations serve the purpose of ensuring the proper administration of
justice (No. 6916/75, Dec. 8.10.76, D.R. 6 p. 107; No. 8407/78,
Dec. 6.5.80, D.R. 20 p. 179) and that, in this connection, the
regulations concerning time-limits to be observed when lodging an
appeal undoubtedly serve the purpose of ensuring the proper
administration of justice (cf. No. 11122/84, Dec. 2.12.85, D.R. 45
p. 256 and No. 10857/84, Dec. 15.7.86, D.R. 48 p. 106).
47 Nevertheless, the Convention is intended to guarantee not rights
which are theoretical or illusory but rights that are practical and
effective, in particular as regards the right of access to the court
in view of the prominent place held in a democratic society by the
right to a fair trial (Eur. Court H.R., Airey judgment of
9 October 1979, Series A no. 32, para. 24). The "right to a court"
enshrined in Article 6 (Art. 6) may be subject to limitations, but
these must not restrict or reduce the access left to the individual in
such a way or to such an extent that the very essence of the right is
impaired (Eur. Court H.R., De Geouffre de la Pradelle judgment of
16 December 1992, Series A no. 253-B, p. 41, para. 28).
48 The Commission notes the following elements: firstly that,
contrary to the applicable statutory regulations, the Regional Court
failed to announce the date and hour of its decision, secondly that the
decision of the Regional Court was not pronounced within 14 days after
the last hearing and thirdly that, due to an oversight by the Regional
Court, the decision of 24 December 1987 depriving the applicant of the
guardianship over his two children was not sent to the applicant's
lawyer until 29 January 1988.
49 Given that a decision to deprive a parent of the guardianship
over his children substantially changes legal family relations, the
Commission is of the opinion that in situations such as in the present
case a careful balance must be struck between ensuring a proper
administration of justice and the personal interests of the parties
concerned. The Commission cannot find that the rejection of the
applicant's appeal against the Regional Court's decision of
24 December 1987, as having been submitted out of time, can be
justified by any interest of the proper administration of justice. The
Commission, therefore, finds that the applicant did not effectively
enjoy his right of access to an appeal court.
Conclusion
50 The Commission concludes, unanimously, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
D. Article 8 (Art. 8) of the Convention
51 The applicant complains under Article 8 (Art. 8) of the
Convention that the decision to deprive him of the guardianship over
his two children unjustly interfered with his right to respect for his
family life.
52 Article 8 (Art. 8) of the Convention reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
53 The Commission recalls that Article 8 (Art. 8) applies to
decisions on guardianship over children (cf. Eur. Court H.R., Hoffmann
judgment of 23 June 1993, Series A no. 255-C, para. 29). It follows
that the Regional Court's decision to deprive the applicant of the
guardianship over his two children constituted an interference with the
right to respect for his family life, since this decision substantially
changed the legal relation between him and his two children. Such
interference entails a violation of Article 8 (Art. 8) of the
Convention unless it is "in accordance with the law", has an aim or
aims that is or are legitimate under para. 2 of Article 8 (Art. 8-2)
and is "necessary in a democratic society" for the aforesaid aim or
aims (cf. Eur. Court H.R. Olsson (No. 2) judgment of 27 November 1992,
Series A no. 250, p. 32, para. 77).
54 Concerning the question whether the interference complained of
was "in accordance with the law", the Commission recalls that it is
primarily for the national authorities, notably the courts, to
interpret and apply domestic law (cf. Eur. Court H.R., Olsson (no. 2)
judgment, loc. cit., p. 32, para. 79). However, the words "in
accordance with the law" include two requirements which go beyond
simple compliance with the domestic law. These requirements relate to
the quality of the law and can be summarised under the headings
"accessibility" and "foreseeability". A law which confers a discretion
on the authorities must indicate the scope and manner of exercise of
any such discretion with sufficient clarity to afford the necessary
protection (cf. Eur. Court H.R., Eriksson judgment of 22 June 1989,
Series A no. 156, p. 24, para. 59).
55 The Commission notes that the Regional Court's decision to
deprive the applicant of his guardianship was based on Section 327
para. 1 (a) and (b) of the Civil Code - book 1 (cf. para. 30 above).
56 Having examined the decision of the Regional Court of
24 December 1987, the Commission finds no indication that the decision
to deprive the applicant of his guardianship was contrary to Dutch law.
It is therefore satisfied that the deprivation of the applicant's
guardianship was "in accordance with the law" for the purpose of
Article 8 para. 2 (Art. 8-2) of the Convention. The fact that the
Regional Court failed to respect certain procedural rules and that the
applicant's subsequent appeal was rejected as having been submitted out
of time does not alter this conclusion.
57 The Commission further notes that the decision to deprive the
applicant of the guardianship over his two children was taken on the
basis of, inter alia, the applicant's own conduct and reports on the
children by the children's homes where they resided recommending that
they do not return to their father.
58 The Commission considers that the interference with the
applicant's right to respect for his family life by the decision of the
Regional Court may, in the circumstances of the present case,
reasonably be regarded as being necessary in a democratic society for
the protection of health and morals and the rights and freedoms of
others, i.e the children concerned, which are both legitimate aims
under para. 2 of Article 8 (Art. 8-2). The interference with the
applicant's right to respect for his family life within the meaning of
Article 8 para. 1 (Art. 8-1) of the Convention was thus justified under
para. 2 of this provision.
Conclusion
59 The Commission concludes, unanimously, that there has been no
violation of Article 8 (Art. 8) of the Convention.
E. Article 13 (Art. 13) of the Convention
60 The applicant complains under Article 13 (Art. 13) of the
Convention that the judicial authorities' conduct of the proceedings
deprived him of an effective remedy against the Regional Court's
decision of 24 December 1987.
61 Having concluded that there has been a violation of Article 6
para. 1 (Art. 6-1) of the Convention (see para. 50), the Commission
finds that it is not necessary to examine the case under Article 13
(Art. 13) of the Convention. The requirements of Article 13 (Art. 13)
are less strict than, and are here absorbed by, those of Article 6
(Art. 6) (cf. Eur. Court H.R., Pudas judgment of 27 October 1987,
Series A no. 125-A, p. 17, para. 43).
Conclusion
62 The Commission concludes, unanimously, that it is not necessary
to examine whether there has been a violation of Article 13 (Art. 13)
of the Convention.
F. Recapitulation
63 The Commission concludes, unanimously, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 50).
64 The Commission concludes, unanimously, that there has been no
violation of Article 8 (Art. 8) of the Convention (para. 59).
65 The Commission concludes, unanimously, that it is not necessary
to examine whether there has been a violation of Article 13 (Art. 13)
of the Convention (para. 62).
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
___________________________________________________________________
12 May 1990 Introduction of application
11 June 1990 Registration of application
Examination of admissibility
8 November 1990 Commission's decision to invite
the Government to submit their
observations on the
admissibility and merits of the
application
31 January 1991 Government's observations
8 April 1991 Applicant's observations in
reply
9 April 1991 Commission's decision to refer
the application to the Second
Chamber
17 April 1991 Commission's decision to grant
the applicant legal aid
2 December 1992 Commission's decision to declare
the application admissible and
to invite the parties, if they
so wish, to submit further
observations on the merits
Examination of the merits
13 October 1993 Commission's deliberations on
the merits final vote and
adoption of the Report