Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19963/92

by Nicolaas Maria Petrus STEIJNEN

against the Netherlands

The European Commission of Human Rights sitting in private on

28 February 1995, 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

Mr. K. ROGGE, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 April 1992 by

Nicolaas Maria Petrus STEIJNEN against the Netherlands and registered

on 11 May 1992 under file No. 19963/92;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

20 June 1994 and the observations in reply submitted by the

applicant on 17 September 1994;

Having deliberated;

Decides as follows:

THE FACTS

1. Particular circumstances of the case

The applicant is a Dutch citizen born in 1946, and resides at

Zeist, the Netherlands, where he is a practising lawyer.

The facts of the case, as submitted by the parties, may be

summarised as follows.

In 1986, the applicant acted as counsel in eight civil cases for

persons, who would normally qualify for legal aid under the Dutch Legal

Aid Act (Wet rechtsbijstand aan on- en minvermogenden). However, on

27 January 1987, the Registrar (Griffier) of the Regional Court

(Arrondissementsrechtbank) of Utrecht refused to determine his fees as

it had appeared in the eight cases that the requests for and the grant

of the applicant's assignment by the Legal Aid Bureau (Bureau voor

Consultatie) to these cases had been made after the conclusion of the

respective proceedings.

As the applicant disagreed with this decision, he requested

intervention (tussenkomst) by the President of the Regional Court

(Arrondissementsrechtbank) of Utrecht pursuant to the Order on Fees for

Legal Aid (Besluit vergoedingen rechtsbijstand - "Moduulbesluit"),

submitting, inter alia, that the harshness of the decisions in respect

of his fees seriously affected his financial situation as a legal aid

lawyer.

On 9 April 1987, the President of the Utrecht Regional Court

rejected the applicant's request, considering that the Legal Aid Act

is based on a system in which an assignment is requested and granted

before the start of the proceedings, a principle which is also

reflected in Section 19 of the Order on Fees for Legal Aid.

The applicant subsequently tried to recover his fees by starting

a civil action for tort (onrechtmatige daad) against the Dutch State,

arguing that the President's decision was incorrect and unlawful as the

intervention procedure under Section 34 of the Order on Fees for Legal

Aid has no basis in the law, and that in respect of the payment of

legal aid fees the intervention procedure is the only remedy available,

whereas this procedure is not in conformity with the requirements of

Article 6 para. 1 of the Convention.

The Regional Court of The Hague declared the applicant's claim

inadmissible on 13 April 1988. It held that the intervention procedure

is based on Section 25 para. 4 of the Legal Aid Act, that there had

been no violation of Article 6 of the Convention, as this provision

does not guarantee an appeal, and as it had not been argued nor

appeared that the President of the Regional Court of Utrecht had

disregarded fundamental legal principles ("fundamentele

rechtsbeginselen heeft veronachtzaamd") resulting in a hearing which

could not be considered fair and impartial.

Having found the applicant's claim inadmissible on these grounds,

the Regional Court did not examine whether or not the intervention

proceedings constituted a specific remedy in respect of the application

of the rules on legal aid and did not examine the alleged incorrectness

and unlawfulness of the decisions of 27 January 1987 and 9 April 1987

on the merits.

On 25 June 1990, the Court of Appeal (Gerechtshof) of The Hague

rejected the applicant's appeal and upheld the Regional Court's

judgment of 13 April 1988. It held that under Section 34 of the Order

on Fees for Legal Aid there is a specific remedy in respect of disputes

concerning the application of the rules on legal aid and that no remedy

lies against the President's decision, which implies that the dispute

at issue cannot be submitted to another civil judge, unless it was

found that the specific remedy lacked sufficient procedural guarantees.

The Court of Appeal found that Section 34 of the Order on Fees

for Legal Aid in conjunction with Section 25 of the Legal Aid Act

indicates to which judge a complainant can address himself. As regards

the complaint that the intervention proceedings violate Article 6 of

the Convention, the Court of Appeal noted that, even without further

legislation, the requirements of Article 6 of the Convention are

incorporated in the Dutch legal system and that Section 34 of the Order

on Fees for Legal Aid contains no rule which is contrary to these

requirements. The Court of Appeal observed in this respect that a

lawyer, who requests the intervention of the President of the Regional

Court, may state his views extensively in writing in these proceedings

and, if he so wishes, orally, whereas the President's decision is

communicated to the person concerned and can be obtained at the

Registry. The Court of Appeal finally held on this point that Article

6 of the Convention does not guarantee a right to an appeal.

On 20 December 1991, the Supreme Court (Hoge Raad) rejected the

applicant's appeal in cassation. It held, inter alia, that Section 34

of the Order on Fees for Legal Aid provides for a specific remedy

implying a full examination by an independent and impartial judge, who

is under the obligation to observe the requirements of Article 6 of the

Convention. The fact that the competent judge is not mentioned in a

formal Act, but in an Order in Council does not mean that the

requirement of Article 6 that the judicial authority must be

"established by law" has not been met.

2. Relevant domestic law

Under the Legal Aid Act in force at the time of the facts of the

present application, persons, whose income is insufficient to pay for

legal assistance, may be granted legal aid. Pursuant to Section 1 of

this Act, there is a Legal Aid Bureau in every judicial district.

According to Section 14 of the Act, the Legal Aid Bureau can decide to

assign a lawyer to a legal aid petitioner, provided the latter meets

the income requirements set out in Section 9 of the Act.

Section 25 of the Act provides that detailed rules with respect

to the determination of fees will be issued by Order in Council

(Algemene maatregel van bestuur). To this end the Order on Fees for

Legal Aid was adopted in 1983.

According to the Netherlands Supreme Court, it is inherent in the

system of the Legal Aid Act and the Order on Fees for Legal Aid that

in general a legal aid lawyer's assignment must precede the latter's

work in a case, since in a decision on an assignment the Legal Aid

Bureau has to verify, inter alia, whether a petitioner's interest

justifies the work of counsel (Hoge Raad, judgment of 4.11.77, NJ 1978,

no. 544).

Depending on their income, petitioners should pay their own

contribution (eigen bijdrage). The rest of the lawyer's fees will be

paid by the State. The lawyer who has been assigned is obliged to

provide legal assistance (Section 15).

Section 31 of the Order provides that the Registrar of the

Regional Court will determine (vaststellen) the counsel's fees. When

a lawyer has been assigned while a case is already pending, Section 19

of the Order provides that the Registrar will lower the counsel's fees

to a corresponding extent.

The lawyer can request the intervention of the President of the

Regional Court in order to challenge the Registrar's decision (Section

34 of the Order).

The Act does not provide for an appeal against the President's

decision in the intervention proceedings. However, according to the

Supreme Court case-law, where it is alleged that a certain legal

provision has been applied with disregard for essential procedural

requirements (verzuim van essentiële vormen), an appeal may be lodged

(Hoge Raad, judgment of 29.3.85, NJ 1986, no. 242).

On 1 January 1994 the Act on Legal Aid (Wet op de Rechts-

bijstand), replacing the Legal Aid Act, entered into force. In the new

Act the intervention procedure has disappeared. Against decisions taken

under the new Act the administrative appeal procedure contained in the

General Act on Administrative Law (Algemene Wet Bestuursrecht) can be

applied to legal aid disputes.

As regards the admissibility of a civil action for tort, it is

an established principle in Dutch case-law that a civil court can

refuse to entertain an action for tort when another specific remedy

exists, which offers sufficient guarantees of fair proceedings (cf.

Hoge Raad, judgment of 12 December 1986, Nederlandse Jurisprudentie

1987, no. 381, see also Eur. Court H.R., Oerlemans judgment of

27 November 1991, Series A no. 219, p. 11, paras. 21-35).

COMPLAINTS

1. The applicant complains that, in the tort proceedings, the

national courts have incorrectly interpreted Section 34 of the Order

on Fees for Legal Aid as a specific remedy, thus denying him the

possibility to challenge the decision which the President of the

Utrecht Regional Court took in the intervention proceedings.

2. The applicant further complains that, in the intervention

proceedings, he did not have a fair and public hearing before an

independent and impartial tribunal in the determination of his civil

rights within the meaning of Article 6 para. 1 of the Convention. In

this respect he refers to a letter of 27 March 1992 from the Utrecht

Regional Court in which his request for a hearing in another

intervention case, where the Legal Aid Bureau had refused his

assignment as a lawyer, was rejected. He also refers to letters of 12

March 1990, 20 March 1990 and 4 april 1990 respectively, in which

different Regional Court Registrars refused his requests to provide him

with copies of decisions in intervention proceedings to which he was

not a party. According to the applicant, these refusals confirm that

the intervention proceedings are not public.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 April 1992 and registered

on 11 May 1992.

On 6 April 1994 the Commission (Second Chamber) decided to

communicate the application to the respondent Government, pursuant to

Rule 48 para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

20 June 1994. The applicant replied on 17 September 1994.

THE LAW

1. The applicant complains that the national courts have incorrectly

interpreted Section 34 of the Order on Fees for Legal Aid as a specific

remedy, thus denying him the possibility to challenge the decision

which the President of the Utrecht Regional Court took in the

intervention proceedings.

The Commission recalls that it is not competent to examine

alleged errors of fact or law committed by national courts, except

where it considers that such errors might have involved a possible

violation of the rights and freedoms set out in the Convention (cf.

No. 12013/86, Dec. 10.3.89, D.R. 59 p. 100). It cannot, therefore,

examine the correctness under Dutch law of the decision by the domestic

courts to declare the applicant's action for tort inadmissible.

Recalling that Article 6 para. 1 (Art. 6-1) of the Convention does not

guarantee a right to an appeal and that the Convention does not, as

such, guarantee a right to review (cf. No. 14739/89, Dec. 9.5.89,

D.R. 60 p. 296), the Commission finds no indication that the domestic

courts' interpretation of Section 34 of the Order on Fees for Legal Aid

was contrary to Article 6 para. 1 (Art. 6-1) or any other provision of

the Convention.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant further complains that the intervention proceedings

were not in conformity with the requirements of Article 6 para. 1

(Art. 6-1) of the Convention.

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

relevant, provides:

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

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law. Judgment shall be pronounced publicly (...)."

The Government submit in the first place that, although the

applicant could have lodged an appeal with the Court of Appeal against

the decision of the President of the Regional Court in the intervention

proceedings on the basis of alleged disregard for essential procedural

requirements, they do not wish to invoke non-exhaustion of domestic

remedies as a reason for inadmissibility, given the civil tort

proceedings which the applicant instituted.

As regards the substance of the application, the Government

submit that the principles of Article 6 para. 1 (Art. 6-1) of the

Convention apply to the intervention proceedings at issue and that

these proceedings were in accordance with the requirements of this

provision of the Convention. The lawyer, who requested the

intervention, was able to submit extensive written observations and,

if necessary, to give a further explanation orally. In general the

intervention proceedings were in writing, as the disputes at issue were

not complicated and were of a relatively practical character. The

Government contend that the applicant cannot rely on the letter of

27 March 1992 from the Regional Court of Utrecht in which a request to

have a hearing was refused, as this letter does not concern the

intervention proceedings at issue.

As regards the public nature of the judgment, the Government

observe that the judgment in intervention proceedings was sent to the

party concerned and that it was available to third parties from the

Registry of the Regional Court. For the sake of the protection of

privacy, this availability was limited in that a request to obtain a

copy had to be well-founded. The applicant's requests for copies of

decisions in intervention proceedings were apparently refused by four

different Regional Court Registrars for not, or inadequately, having

been justified.

The applicant submits that the possibility to have a hearing in

intervention proceedings was neither laid down in the Order on Fees for

Legal Aid nor in the Legal Aid Act or any other regulation. Whether a

hearing was held depended therefore on the discretion of the judge.

The applicant maintains that the availability of decisions in

intervention proceedings was not guaranteed. He considers that the

availability of these decisions depended on the reasons given for the

request to obtain a copy and that this was also not laid down in any

rule or regulation. Furthermore, in the intervention proceedings at

issue the decision was not pronounced in public as, according to the

applicant, such decisions never were.

The applicant finally submits that he has not been given the

opportunity to react to the findings of the President of the Regional

Court after the latter had taken notice of the case-file. He also does

not know whether or not the President received further information from

the Legal Aid Bureau or the Registrar. In any case, should such

information have been submitted, he would not have been given the

opportunity to react to this.

The Commission recalls that the civil guarantees of Article 6

(Art. 6) of the Convention only apply to proceedings in which there is

a "dispute" over a "right". There must be a right which can be said,

at least on arguable grounds, to be recognised in domestic law, the

dispute must be genuine and serious, and the result of the proceedings

must be directly decisive for the right in question (cf. Eur. Court

H.R., Mats Jacobsson judgment of 29 June 1990, Series A no. 180, p. 29,

paras. 30, 31 with further references).

In the present case the applicant applied to the Legal Aid Bureau

to be assigned as a legal aid lawyer in eight cases which had at that

time already been concluded. Although the Legal Aid Bureau granted the

applicant the assignment requested, this was in contravention of the

Netherlands Supreme Court case-law which holds that it is inherent in

the system of the Legal Aid Act and the Order on Fees for Legal Aid

that a legal aid lawyer's assignment must precede his work in a case.

Accordingly, the Commission finds that there was no genuine and

serious dispute over a right recognised in domestic law and that

Article 6 (Art. 6) of the Convention is therefore not applicable to the

proceedings at issue.

It follows that this part of the application must also be

rejected as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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STEIJNEN v. THE NETHERLANDS

STEIJNEN v. THE NETHERLANDS

LEXI