Lexploria

Application No. 10252/83

Antonius VOLLAERS

against

the NETHERLANDS

__________

REPORT OF THE COMMISSION

(adopted on 11 May 1988)

TABLE OF CONTENTS

Page

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

Part I : STATEMENT OF THE FACTS .................. 3

Part II: SOLUTION REACHED ........................ 5

INTRODUCTION

1. This Report relates to Application No. 10252/83 introduced by

Antonius VOLLAERS against the Netherlands on 20 December 1982 under

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

Fundamental Freedoms. The application was registered on 31 January 1983.

2. The applicant was represented before the Commission by

Mr. L. J. FILLET, a lawyer practising in Tilburg.

3. The Government were represented before the Commission by

their successive Agents, Ms. F.Y. van der Wal and Ms. D.S. van Heukelom,

Assistant Legal Advisers of the Ministry of Foreign Affairs.

4. On 4 March 1987 the European Commission of Human Rights

declared the application admissible.*

5. The Commission then proceeded to carry out its task under

Article 28 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 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."

6. The Commission found that the parties had reached a friendly

settlement of the case and on 11 May 1988 it adopted this Report

which, in accordance with Article 30 of the Convention, is confined to

a brief statement of the facts and of the solution reached.

__________

* This decision is public and can be obtained from the

Commission on request.

7. The following members of the Commission were present when the

Report was adopted:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

Part I

STATEMENT OF THE FACTS

8. The applicant is a Dutch citizen born in 1925 and residing in

Tilburg. At the time of the introduction of his application, he was

employed as a manager in a publishing company.

9. The application concerns the procedure under Dutch law and in

particular the Appeals Act (Beroepswet) to challenge a decision taken

on the basis of the Health Insurance Act (Ziektewet) concerning the

applicant's fitness to work and hence his entitlement to sickness

benefit.

10. The applicant had challenged a decision by the competent

occupational association (bedrijfsvereniging) that he was fit to work

in proceedings introduced before the Appeals Board (Raad van Beroep) in

's Hertogenbosch. In accordance with Article 135 of the Appeals Act,

the President of the Appeals Board sought the opinion of one of the

permanent medical experts attached to the Board who examined the

applicant and consulted a number of other doctors. In conformity with

the conclusions presented by this permanent medical expert, the

President of the Appeals Board rejected the applicant's appeal as

being unfounded. The objection (verzet) filed by the applicant

against this decision was rejected by the Appeals Board.

11. The applicant, alleging a breach of Article 6 para. 1 of the

Convention, claimed that, in the determination of his entitlement to

health insurance allowances, he had not received a fair hearing in the

proceedings before the Appeals Board in 's Hertogenbosch. He

complained in particular of the absence of an oral hearing in these

proceedings and of the fact that the person concerned has no access to

the medical files on which the conclusions of the permanent medical

expert are based and which constitute the basis for the decision by

the Appeals Board.

12. On 12 July 1984 the Commission decided to bring the

application to the notice of the respondent Government without asking

them to submit written observations on the admissibility and merits

pending the decision of the European Court of Human Rights in the

Feldbrugge case, which was analogous to the present case, and adjourned

the examination of the case.

13. Following the Court's judgment in the Feldbrugge case on

29 May 1986 (Eur. Court H.R., Series A no. 99), the Commission resumed,

on 14 July 1986, consideration of the case and invited the Parties to

make submissions if they so wished.

14. The Government submitted observations on 16 October 1986 and

the applicant on 24 November 1986. The Government informed the

Commission in particular that following the Feldbrugge judgment the

Presidents of the Appeals Boards had declared that henceforward an

individual can file an objection (verzet) against the decision in

first instance under all circumstances. Furthermore it announced that

it was preparing new legislation in the light of the Feldbrugge

judgment with a view to excluding violation of Article 6 para. 1 of

the Convention by the Appeals Boards and the Central Appeals Board at

Utrecht in the future.

15. The Commission declared the application admissible on

4 March 1987.

Part II

SOLUTION REACHED

16. Following its decision on the admissibility of the application

the Commission placed itself at the disposal of the parties with a

view to securing a friendly settlement, in accordance with Article 28

(b) of the Convention and invited the parties to submit any proposals

they wished to make.

17. In conformity with its usual practice the Commission's

Secretary contacted the parties and, following the Court's judgment on

Article 50 in the Feldbrugge case of 27 July 1987 (Eur. Court H.R.

8/1984/80/127), both parties submitted proposals for such a

settlement.

18. The Secretary, accompanied by a member of the Secretariat,

met the Parties separately in the Hague on 26 April 1988.

By telefax dated 28 April 1988, the Agent of the respondent

Government made the following declaration:

"The Government of the Netherlands, having regard to the

decision of the European Commision of Human Rights of

4 March 1987 declaring the application admissible and

willing to reach a friendly settlement of the matter in

accordance with Article 28 para. (b) of the European

Convention on Human Rights, makes the following declaration:

1. The Government is prepared, in the light of the

judgment in the Feldbrugge Case on Article 50

(8/1984/80/127) dated 27 July 1987, to make an ex gratia

payment to the applicant of 10.000 Dutch guilders in respect

of non-pecuniary damage.

2. The Government is further prepared to pay the

applicant's legal costs which were actually and necessarily

incurred in an amount of 8.100 guilders."

19. By telefax dated 4 May 1988, applicant's counsel, on behalf

of his client, made the following declaration:

".... I hereby confirm that my client Mr Vollaers accepts the

offer contained in the the Government's declaration dated

28 April 1988, and declares the Application No. 10252/83

to be settled as per payment of the total amount of 18.100

guilders on my bank account..."

20. On 11 May 1988 the Commission found from the above that the parties

had reached agreement on the terms of a settlement. The Commission

further found, having regard to Article 28 (b) of the Convention, that

a friendly settlement of the present application had been secured on

the basis of respect for human rights as defined in the Convention.

For these reasons, the Commission adopted this Report.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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VOLLAERS v. the NETHERLANDS

VOLLAERS v. the NETHERLANDS

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