Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22052/93

by Petrus Gijsbertus Johannes TRAKZEL

against the Netherlands

The European Commission of Human Rights sitting in private on

11 January 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 21 July 1992 by

Petrus Gijsbertus Johannes TRAKZEL against the Netherlands and

registered on 11 June 1993 under file No. 22052/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1933, and resides in

Amsterdam. Before the Commission he is represented by Mr. G. Beydals,

a lawyer practising in Amsterdam.

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

summarised as follows.

As from 25 February 1978 the applicant received supplementary

welfare benefits under the General Welfare Act (Algemene Bijstandswet)

in addition to benefits under the Labour Disablement Insurance Act (Wet

op de Arbeidsongeschiktheidsverzekering) for incapacity for work. In

June 1983 the applicant became aware that he was under investigation

for possible social security fraud.

It appears that the social security authorities had received

information that the applicant was gainfully employed. Following an

investigation, during which the applicant was questioned on

28 May 1984, the Special Control Department of the Amsterdam Municipal

Social Service concluded that, between 1 June 1981 and

15 December 1983, the applicant had been gainfully employed as a

driving instructor and that, contrary to his obligations under the

General Welfare Act, he had failed to declare this income to the social

security authorities. According to the fiscal authorities, the

applicant had earned a total amount of 35.000 Dutch guilders between

1981 and 1983. The applicant did not dispute the corresponding income

tax assessments.

On 26 July 1985 the Amsterdam municipal authorities ordered the

applicant to repay the benefits which he had wrongly received.

Moreover, criminal proceedings were instituted against him on charges

of fraud.

On 30 June 1986 the Magistrate (politierechter) acquitted the

applicant of the criminal charges against him. The Magistrate did not

find it established that the amounts paid to his giro-account came from

the driving school concerned.

Following an initial repayment agreement, which, apart from one

payment, had not been respected by the applicant, the municipal

authorities decided on 19 December 1986 to formally reclaim the

remainder. To this end they requested the District Court judge

(kantonrechter) of Amsterdam on 22 December 1986 to order the applicant

to repay to the Municipality 21.503,05 Dutch guilders of the total

amount of 26.712 Dutch guilders which he had wrongly received. An

amount of 366 guilders had already been repaid by the applicant and an

amount of 4.843,25 guilders could no longer be reclaimed as a result

of prescription.

On 8 July 1988 the District Court judge, following written and

oral adversarial proceedings in which the applicant was represented by

a lawyer, rejected the request by the municipal authorities. As they

had not reacted to certain submissions by the applicant, the judge

found that the municipal authorities had failed to substantiate their

request.

On appeal, the Regional Court (Arrondissementsrechtbank) of

Amsterdam, following written and oral adversarial proceedings in which

the applicant was represented by a lawyer, on 17 May 1989 quashed the

decision of 8 July 1988 and ordered the applicant to repay 21.503,05

Dutch guilders to the municipal authorities.

In the determination of the undeclared earnings the Regional

Court had regard to the income tax assessments of these earnings,

against which the applicant had not filed any objection. It rejected

his arguments that these assessments were incorrect and that his income

had in fact been lower than the amount on which these tax assessments

were based. It also rejected his offer to prove this by submitting

daily statements of his giro-account.

Insofar as the applicant had argued that the request of the

municipal authorities should be declared inadmissible since the

proceedings had exceeded a reasonable time within the meaning of

Article 6 para. 1 of the Convention, the Regional Court held that the

applicant bore a responsibility for the period which had elapsed

between the closure of the investigation in October 1985 and the

beginning of the proceedings in December 1986, as during that period

the municipal authorities had tried to obtain repayment by way of a

payment agreement which the applicant had not respected. The Court did

not find that the municipal authorities had waited too long or had

given the impression that they would not pursue the matter. As regards

the length of the judicial proceedings as such, the Regional Court did

not find that the period between 22 December 1986 and 17 May 1989 was

an unreasonable time.

Following the applicant's appeal in cassation, the Supreme Court

(Hoge Raad), in its decision of 29 June 1990, quashed the judgment of

17 May 1989 on the ground that the Regional Court had failed to examine

one of the applicant's submissions, which concerned the question

whether or not the municipal authorities could claim full repayment of

the benefits concerned. However, insofar as the applicant complained

under Article 6 para. 1 of the Convention of the length of the

proceedings, the Supreme Court held that, even if the reasonable time

had been exceeded in the present case, this could not lead to a more

advantageous decision for the applicant, since Article 6 para. 1 of the

Convention only imposes an obligation on States which are Parties to

the Convention. This obligation, however, does not affect legal

relations between parties in proceedings concerning civil rights and

obligations.

On 21 March 1991 the Court of Appeal (Gerechtshof) of Amsterdam,

following written and oral adversarial proceedings in which the

applicant was represented by a lawyer, found in favour of the municipal

authorities and ordered the applicant to repay 21.503,05 Dutch

guilders. It does not appear that the applicant again complained of the

length of the proceedings.

The applicant's subsequent appeal in cassation was rejected by

the Supreme Court on 28 February 1992. No complaint of the length of

the proceedings had been raised by the applicant.

Furthermore, the applicant's lawyer, on 26 March 1991, complained

to the Municipal Ombudsman that the Municipality had failed to respond

in time to his correspondence regarding the repayment claim at issue

and submitted that the Municipality, in view of the length of the

proceedings, should have withdrawn its claim.

In his report of 10 July 1992 on these complaints the Ombudsman

found that the Municipality had acted improperly (onbehoorlijk) in its

correspondence with the applicant's lawyer. He considered that,

pursuant to Section 14 in conjunction with Section 19 of the Municipal

Statute on the Municipal Ombudsman (Verordening op de Gemeentelijke

Ombudsman), he was not obliged to examine the second complaint, as it

had already been examined in judicial proceedings and no new facts had

appeared.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

that in the determination of his civil rights and obligations he did

not have a fair hearing within a reasonable time. He submits that both

the time which elapsed before the case was brought before the District

Court judge and the total length of the proceedings cannot be regarded

as reasonable. He further complains that the Regional Court unjustly

accepted the income tax assessments as correct and did not allow him

to prove that his earnings had in fact been lower than the amounts on

which these assessments were based.

2. The applicant also complains under Article 13 of the Convention

that he had no effective remedy as regards the alleged violation of

Article 6 para. 1 of the Convention in respect of the length of the

proceedings. He refers to the Supreme Court's decision of 29 June 1990.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1)

of the Convention that in the determination of his civil rights and

obligations he did not have a fair hearing within a reasonable time.

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 [...] hearing within a reasonable

time by a [..] tribunal established by law. [...]."

The Commission notes that the proceedings concerned the question

whether or not the applicant should repay welfare benefits. It finds

that these proceedings concerned a determination of the applicant's

civil rights and obligations within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention. It follows that this provision is

applicable to the proceedings at issue (cf. Eur. Court H.R., Schuler-

Zgraggen judgment of 24 June 1993, Series A no. 263, p. 17, para. 46).

a) As to the applicant's complaint that the Regional Court unjustly

accepted the correctness of the income tax assessments at issue, the

Commission recalls that it is not competent to examine alleged errors

of fact or law committed by domestic 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. 21283/93, Dec. 5.4.94,

D.R. 77-A p. 81). The Commission notes that the applicant had not

disputed the correctness of these assessments before the tax

authorities and cannot find that, in relying upon them, the Regional

Court acted in an arbitrary or unreasonable manner. It must also be

considered to have been the responsibility of the Regional Court to

decide whether, in these circumstances, further evidence was required

in order to establish the facts.

Moreover, the applicant was represented by a lawyer throughout

the proceedings at issue and had the opportunity to present his views

and challenge the submissions of his adversary in the proceedings.

The Commission finds no indication that the proceedings were

unfair and considers, therefore, that this part of the application is

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

(Art. 27-2) of the Convention.

b) As regards the applicant's complaint that his civil rights and

obligations were not determined within a reasonable time as required

by Article 6 para. 1 (Art. 6-1) of the Convention, the Commission notes

that these proceedings started on 22 December 1986, when the Amsterdam

municipal authorities instituted civil proceedings before the District

Court judge (cf. Eur. Court H.R., Erkner and Hofauer judgment of

23 April 1987, Series A no. 117-B, p. 61, para. 64), and ended on

28 February 1992, when the Supreme Court rejected the applicant's

second appeal in cassation.

The proceedings thus lasted approximately five years and two

months.

The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the particular

circumstances of the case and with the help of the following criteria:

the complexity of the case, the conduct of the parties and the conduct

of the authorities dealing with the case (cf. Eur. Court H.R., Vernillo

judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

In particular, in cases concerning civil proceedings, it should

be taken into account whether the applicant had shown due diligence by

taking the necessary steps to expedite the proceedings and whether

delays occurred for which the applicant cannot be held responsible.

Only delays attributable to the State may justify a finding of a

failure to comply with the reasonable time requirement (cf. Veit v.

Germany, Comm. Report 12.3.87, para. 114, D.R. 60 p. 78).

The Commission notes that the present case was been dealt with,

first at three levels of jurisdiction and then, again, before the Court

of Appeal and the Supreme Court (cf. as regards a period of nearly five

years involving three levels of jurisdiction, Eur. Court. H.R., Salerno

judgment of 12 October 1992, Series A no. 245-D, p. 55-56, paras. 18-

21).

The applicant has not shown that there were any substantial

delays in the proceedings for which the judicial authorities were

responsible. Nor does it appear that, at any stage of the proceedings,

he requested the courts dealing with his case to expedite the

proceedings. In these circumstances the Commission cannot find that the

total length of the proceedings could be regarded as unreasonable.

It follows that this part of the application is also manifestly

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

(Art. 27-2) of the Convention.

2. The applicant further complains under Article 13 (Art. 13) of the

Convention that he had no effective remedy as regards the alleged

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

of the length of the proceedings. He refers to the Supreme Court's

decision of 29 June 1990.

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

"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 recalls that it has found the applicant's

complaint regarding the length of the proceedings to be manifestly ill-

founded. It follows that in this respect the applicant has no arguable

claim of a violation of the Convention and that he was not entitled to

a remedy under Article 13 (Art. 13) of the Convention (cf. Eur. Court

H.R., Powell and Rayner judgment of 21 February 1990, Series A no. 172,

p. 14-15, para. 33).

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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TRAKZEL v. THE NETHERLANDS

TRAKZEL v. THE NETHERLANDS

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