Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19964/92

by Martinus BEERDEN

against the Netherlands

The European Commission of Human Rights sitting in private on

22 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 11 February 1992

by Martinus BEERDEN against the Netherlands and registered on

11 May 1992 under file No. 19964/92;

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

18 July 1994 and the observations in reply submitted by the

applicant which were received on 29 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

Rotterdam. Before the Commission he is represented by Mr. H. Pennarts,

a lecturer at the Erasmus University in Rotterdam.

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

summarised as follows.

In 1991 the applicant's employer informed him that he was going

to be dismissed. At that moment the applicant had worked for more than

20 years for that employer and his monthly income amounted to 2.982,08

Dutch guilders. The applicant thereupon contacted the Bureau for Legal

Aid (Bureau voor Rechtshulp) of Rotterdam for advice. On 7 May 1991 the

Bureau for Legal Aid decided to assign a lawyer to him. Following

established policy in cases of (imminent) dismissal, the Bureau for

Legal Aid had put the applicant's income at 70% of his actual income

when deciding his eligibility for legal aid.

It appears from the file that the applicant's lawyer, when

looking at the applicant's actual income and at the fact that he could

reasonably expect to be granted a sizeable amount of money as

compensation for his dismissal, felt that he did not qualify for legal

aid. Directly after the lawyer's first meeting with the applicant, the

lawyer contacted the Bureau for Legal Aid in order to withdraw the

assignment or to change the assignment into a provisional one. However,

the lawyer was informed that this could not be done, as in this case

a final assignment had already been issued.

The lawyer then informed the applicant that she would provide

legal assistance under the legal aid scheme, unless it would appear

that the assignment had been issued on the basis of incorrect or

incomplete facts concerning the applicant's financial means.

On 7 June 1991 the applicant's employer started dismissal

proceedings before the District Court judge (kantonrechter) of

Rotterdam, who in his decision of 15 July 1991 awarded the applicant

90.000 Dutch guilders in damages for his dismissal.

On 6 August 1991 the lawyer requested the Bureau for Legal Aid

to withdraw the assignment. By letter of 13 August 1991, the Bureau for

Legal Aid rejected the request, holding that the application of the 70%

norm in the applicant's case had been correct and that the Legal Aid

Act (Wet rechtsbijstand aan on- en minvermogenden) does not provide for

a possibility to withdraw a final assignment in cases where proceedings

have been terminated in favour of the legal aid beneficiary.

On 19 August 1991 the lawyer requested intervention (tussenkomst)

by the President of the Regional Court (Arrondissementsrechtbank) of

Rotterdam pursuant to Article 22 of the Legal Aid Act. She argued that

the Bureau for Legal Aid had incorrectly refused to withdraw the

assignment, had incorrectly applied the 70% norm and requested the

President to quash to decision of the Bureau for Legal Aid and to

withdraw the assignment. The lawyer sent a copy of this request to the

applicant and the Bureau for Legal Aid.

The applicant was not heard by the President or given the

opportunity to react to the lawyer's request. Neither he nor the Bureau

for Legal Aid was in any way involved in the intervention proceedings,

although the Bureau, by letter of 28 August 1991, requested to be

provided with an opportunity to explain its position.

On 29 August 1991 the President decided to withdraw the decision

of 7 May 1991 in which a legal aid lawyer had been assigned to the

applicant. The President concluded that it had appeared from the

documents submitted that the applicant's monthly income amply exceeded

the income limits of the Legal Aid Act. The President had not heard the

Bureau for Legal Aid or the applicant. As a consequence of the

President's decision, the applicant had to pay about 5,000 Dutch

guilders to his lawyer.

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 (Bureau voor Consultatie) in

every judicial district. In the present case, the Bureau for Legal Aid

acted on behalf of the Legal Aid Bureau.

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.

The lawyer who has been assigned is obliged to provide legal assistance

(Section 15 para. 2).

Depending on his income, the petitioner should pay a contribution

of his own (eigen bijdrage). The lawyer will be further compensated by

the State on the basis of tariffs fixed by the State.

The income limits and the petitioner's own contributions provided

for in Section 9 of the Act are regularly reviewed and, if need be,

changed by the Minister of Justice by Order in Council (Algemene

Maatregel van Bestuur). Between 1 January 1991 and 31 December 1991

legal aid could be granted to married persons whose monthly income was

less than 2.700 Dutch guilders. Unmarried persons could be granted

legal aid when their income was less than 2.525 Dutch guilders per

month (Staatscourant 6 December 1990, no. 243).

The Legal Aid Bureau can grant legal aid provisionally in urgent

cases (Section 15b), or conditionally in cases where the proceedings

concern a considerable financial interest other than compensation for

damage. In the latter case the Legal Aid Bureau can withdraw the

assignment of a legal aid lawyer when it appears that the petitioner's

income exceeds the limits provided for in Section 9 of the Act (Section

15c para. 2).

Section 21 of the Legal Aid Act empowers the Legal Aid Bureau to

change or withdraw the assignment of a lawyer, inter alia, when the

assignment was granted on the basis of incorrect information concerning

the financial position of the petitioner. A decision to withdraw the

assignment can only be taken after the petitioner has been heard. The

decision should contain reasons and must be in writing. In cases where

the applicant's income no longer meets the income requirements of

Section 9 after legal assistance has been provided, an assignment of

a lawyer can only be withdrawn if the assignment was conditional.

The interested party (belanghebbende) can request the

intervention of the President of the Regional Court in order to

challenge a decision of the Legal Aid Bureau within 30 days of this

decision (Section 22). This procedure is not subject to any procedural

rule.

According to the law no appeal lies against the President's

decision. However, where it is alleged that a certain legal provision

has been applied with disregard for essential procedural requirements

(verzuim van essentiële vormen), it is possible to file an appeal with

the Court of Appeal (Hoge Raad, judgment of 29.3.85, NJ 1986, no. 242;

and Gerechtshof 's-Hertogenbosch, decisions of 1 March 1991 and 24

October 1991).

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

stand), 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 provided for in

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

be applied to legal aid disputes.

COMPLAINTS

1. The applicant complains that the President of the Regional Court

decided, in proceedings in which he was not represented, to withdraw

the assignment of a legal aid lawyer to his case, as a consequence of

which he had to pay his lawyer a substantial amount. The applicant

submits that he did not have a fair and public hearing before an

independent and impartial tribunal in the determination of his civil

obligations within the meaning of Article 6 para. 1 of the Convention.

2. The applicant further submits that the absence of a legal remedy

against the President's decision constitutes a violation of Article 13

of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 February 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

18 July 1994, after an extension of the time-limit fixed for that

purpose. The applicant's observations in reply were received on

29 September 1994.

THE LAW

1. The applicant complains that the proceedings, whereby an

assignment of a lawyer under the legal aid scheme was withdrawn, were

not in conformity with the requirements laid down in Article 6 para.

1 (Art. 6-1) of the Convention.

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

relevant, provides as follows:

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

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

independent and impartial tribunal established by law.

The Government submit that, although the Legal Aid Act excluded

an appeal against the decision of the President of the Regional Court

in the intervention proceedings, it is uncertain whether the applicant

could not have seized the Court of Appeal, claiming disregard for

essential procedural requirements. Moreover, according to the

Government the applicant could have started civil proceedings for tort,

claiming a failure to observe essential procedural formalities.

However, although the applicant did not avail himself of the above

appeal possibilities, the Government do not wish to invoke non-

exhaustion of domestic remedies as a reason for inadmissibility.

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

Convention was applicable to the intervention procedure under Section

22 of the Legal Aid Act and that this procedure was in conformity with

the requirements of Article 6 para. 1 (Art. 6-1). They submit, however,

that this is not relevant in the present case as the applicant was not

a party to the intervention proceedings in question and he can

therefore not allege a violation of this provision in the present

proceedings before the Commission.

In spite of this, the Government admit, although maintaining that

the applicant had no right to legal aid on the basis of the Legal Aid

Act, that the way in which legal aid was withdrawn from the applicant

was less than satisfactory. They do not dispute that the applicant's

interests were not sufficiently taken into account in the intervention

proceedings which, in the present case, were used by an interested

party not envisaged by the legislator.

The applicant submits that the subject of the intervention

proceedings was the right to legal aid which he had been granted and

which he lost as a result of these proceedings. He maintains that there

were no procedural rules for the intervention proceedings and that he

had not in any way been involved in these proceedings and had not

therefore been able to plead his interests in the matter.

The Commission notes that the parties do not dispute the

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

proceedings at issue.

The Commission notes that the applicant had been granted legal

aid. The withdrawal of the legal aid already granted imposed on the

applicant the obligation to pay the lawyer's fees in full. In these

circumstances the Commission finds that the outcome of the intervention

proceedings under Section 22 of the Legal Aid Act, despite the fact

that the applicant was not a party to these proceedings, was directly

decisive for this obligation. The Commission finds therefore that

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

proceedings at issue.

As regards compliance with Article 6 (Art. 6), the Commission,

after a preliminary examination of the substance of the present

complaint in the light of the parties' submissions, considers that it

raises questions of fact and law which require an examination of the

merits. This complaint cannot, therefore, be declared inadmissible as

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

(Art. 27-2) of the Convention. No other grounds for inadmissibility

have been established.

2. The applicant further contends that the absence of a legal remedy

against the President's decision constitutes a violation of Article 13

(Art. 13) of the Convention.

Article 13 (Art. 13) of the Convention provides:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission considers that this complaint cannot at this stage

be separated from the main complaint under Article 6 (Art. 6) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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BEERDEN v. THE NETHERLANDS

BEERDEN v. THE NETHERLANDS

LEXI