Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18266/91

by Kiymet DÜMAN

against the Netherlands

The European Commission of Human Rights (Second Chamber)

sitting in private on 6 April 1994, the following members being

present:

MM. S. TRECHSEL, President

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

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 22 February

1991 by Kiymet DÃœMAN against the Netherlands and registered on

28 May 1991 under file No. 18266/91;

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

Rules of Procedure of the Commission;

Having regard to :

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

of the Commission;

- the observations submitted by the respondent Government on

14 July 1993 and the observations in reply submitted by the

applicant on 21 October 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1951, and

currently resides at Amsterdam. Before the Commission she is

represented by Mrs. M.D. van Aller, a lawyer practising in

Amsterdam.

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

summarised as follows.

Until 3 December 1980, when the applicant fell ill, she

worked as a kitchen help in a hospital. On the basis of the

Sickness Benefits Act (Ziektewet) she received benefits for one

year. As from 10 December 1981 these benefits were replaced by

combined disability benefits under the General Labour Disablement

Benefits Act (Algemene Arbeidsonge-schiktheidswet - "AAW") and

the Labour Disablement Insurance Act (Wet op de Arbeidongeschikt-

heidsverzekering - "WAO"), on the basis of complete incapacity

to work.

By letter of 25 April 1985, the Industrial Insurance Board

for the Health, Mental and Social Interests Sector (Bedrijfs-

vereniging voor de Gezondheid, Geestelijke en Maatschappelijke

Belangen) informed the applicant of its decision to stop the

payment of benefits under the AAW and WAO as from 1 April 1985,

as she was considered able to perform adapted work.

The applicant, represented by a lawyer, filed an appeal on

9 May 1985 with the Appeals Tribunal (Raad van Beroep) of

Amsterdam. On 27 June 1986 the Acting President of the Appeals

Tribunal rejected the applicant's appeal as ill-founded. The

applicant subsequently filed an objection (verzet) with the

Appeals Tribunal. Following a hearing on 19 December 1986 where

only the applicant and her lawyer appeared, and a hearing on 23

September 1987 where both parties appeared, the Appeals Tribunal

rejected the applicant's appeal against the decision of the

Industrial Insurance Board as ill-founded on 12 October 1987.

The applicant, again represented by a lawyer, filed an

appeal against this decision with the Central Appeals Tribunal

(Centrale Raad van Beroep) on 19 April 1988. By letter of 13 June

1990 the applicant was invited to attend the hearing of her case

by the Central Appeals Tribunal on 12 July 1990. By letter of 21

June 1990 the applicant's lawyer requested the Central Appeals

Tribunal to postpone this hearing, stating that she had to attend

another hearing at the same time, and informed the Central

Appeals Tribunal of other dates on which she would also be unable

to attend.

On 12 July 1990 the hearing before the Central Appeals

Tribunal took place. Neither the applicant, who was on holiday

in Turkey, nor her lawyer or the Industrial Insurance Board

appeared at the hearing.

In its decision of 2 August 1990, pronounced in public on

the same date, the Central Appeals Tribunal noted that the

applicant's lawyer had also submitted a letter of 24 June 1988

by a doctor and a letter of 28 June 1988 of a psychiatrist, on

which the Industrial Insurance Board had commented in writing,

and that, upon the request

of the Acting President of the Central Appeals Tribunal, the

psychiatrist Mr. L. was requested to submit his comments on the

letter of 28 June 1988, which comments were received on 19 April

1990. The Central Appeals Tribunal rejected the lawyer's request

of 21 June for a postponement and, after having considered the

various reports on the applicant's physical and mental state of

health and the applicant's comments on these reports, upheld the

decision of the Appeals Tribunal of 12 October 1987.

In respect of the lawyer's request to postpone the hearing

of 12 July 1990, the Tribunal found no indication of

circumstances preventing the applicant from appearing in person,

either alone or assisted by another lawyer, at the hearing of 12

July 1990 in order to exercise her rights under the Appeals Act

(Beroepswet). The Central Appeals Tribunal stated that it had not

found it necessary to summon the applicant to appear in person

in order to provide information and noted that the Industrial

Insurance Board was not represented at the hearing before the

Tribunal either. No new facts or other elements on which the

applicant should have been able to comment had arisen. The

Central Appeals Tribunal took into consideration that the case

had already been examined on appeal before the Appeals Tribunal,

where the applicant, with legal assistance, had appeared. The

Central Appeals Tribunal finally held that in deciding upon

requests to postpone a hearing regard must be had to the fact

that the granting of postponements generally results in delays

in the large number of pending cases.

On 13 September 1990 a certified copy of the decision of 2

August 1990 by the Central Appeals Tribunal was communicated to

the applicant.

In a letter of 24 September 1990 to the Central Appeals

Tribunal the applicant's lawyer complained that her request to

postpone the hearing had been refused. Given that it takes years

before a case comes to trial before the Central Appeals Tribunal,

that she is an independent lawyer working alone and that other

tribunals in such circumstances grant a request to postpone a

hearing without problems, this way of administering justice in

refusing a reasoned request by a lawyer for a postponement was

contrary to the principle of correct legal proceedings and in

violation of Article 6 of the Convention. The applicant's lawyer

urged the Central Appeals Tribunal, if in the future

circumstances would force her to request a postponement of a

hearing, to grant such requests.

COMPLAINT

The applicant complains under Article 6 para. 1 of the

Convention that her civil rights have not been determined within

a reasonable time, in particular in view of the delay between 19

April 1988, when she appealed to the Central Appeals Tribunal,

and 12 July 1990, when the Central Appeals Tribunal held its

hearing.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 February 1991 and

registered on 28 May 1991.

On 5 May 1993, the Commission decided to communicate the

application to the respondent Government and to invite them to

submit written observations on the admissibility and merits of

the complaint of the length of the proceedings and declared

inadmissible the remainder of the application concerning alleged

unfairness of the proceedings.

The Government's observations were submitted on 14 July 1993

and the applicant's observations in reply were submitted on 21

October 1993.

THE LAW

The applicant complains that the delay between the judgment

of the Appeals Tribunal and the beginning of the examination of

the case by the Central Appeals Tribunal violated her right to

a fair hearing within a reasonable time as guaranteed by Article

6 para. 1

(Art. 6-1) of the Convention, which, insofar as relevant, reads

as follows:

"In the determination of his civil rights and

obligations (...) everyone is entitled to a fair and

public hearing within a reasonable time by a (...)

tribunal (...)."

A. The applicability of Article 6 para. 1 (Art. 6-1) of the

Convention

The Commission notes that the complaint at issue concerned

proceedings the applicant instituted against the decision to

withdraw her AAW/WAO benefits for complete incapacity to work.

The Government submit that, if the entitlement to benefits

under the AAW and WAO respectively is examined separately, given

the criteria set out in the Feldbrugge and Deumeland judgments

of 29 May 1986 (Eur. Court H.R., Series A nos. 99 and 100), the

entitlement to AAW benefits cannot be regarded as a "civil right"

within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention. The AAW carries a number of public law features:

there is not necessarily a connection between a contract of

employment and entitlement to AAW benefits; a similarity with

private insurance agreements is in fact absent on essential

points such as in the determination and collection of premiums

by the tax authorities, the absence of a relation between the

payer of the premiums and the recipient of the benefits and the

irrelevance of the question whether or not premiums have been

paid by a recipient of benefits; and payment of AAW premiums

cannot be regarded as a payment under a contributory pension

scheme. Article 6 para. 1 (Art. 6-1) therefore does not apply to

proceedings concerning benefits under the AAW.

As to proceedings concerning entitlement to WAO benefits the

Government submit that the applicability of Article 6 para. 1

(Art. 6-1) of the Convention depends on the weight attached to

the criteria set out in the Feldbrugge and Deumeland judgments

(loc. cit.) and that the case-law on this point should be

clarified.

The applicant submits that Article 6 para. 1 (Art. 6-1) of

the Convention applies to the proceedings concerning the social

security schemes at issue.

The Commission recalls that the Court in the case of

Schuler-Zgraggen v. Switzerland (Eur. Court H.R., judgment of 24

June 1993, to be published in Series A no. 263) stated in para.

46 of its judgment:

"The Court is here once again confronted with the

issue of the applicability of Article 6 § 1 (Art. 6-1)

to social-security disputes. The question arose

earlier in the cases of Feldbrugge v. the Netherlands

and Deumeland v. Germany, in which it gave judgment on

29 May 1986 (Series A nos. 99 and 100). At that time

the Court noted that there was great diversity in the

legislation and practice of the member States of the

Council of Europe as regards the nature of the

entitlement to insurance benefits under social-

security schemes. Nevertheless, the development in the

law that was initiated by those judgments and the

principle of equality of treatment warrant taking the

view that Article 6 § 1 (Art. 6-1) does apply in the

field of social insurance, including even welfare

assistance (see the Salesi v. Italy judgment of 26

February 1993, Series A no. 257-E, pp. 59-60, § 19).

As in the two cases decided in 1986, State

intervention is not sufficient to establish that

Article 6 § 1 (Art. 6-1) is inapplicable; other

considerations argue in favour of the applicability of

Article 6 § 1 (Art. 6-1) in the instant case. The most

important of these lies in the fact that despite the

public-law features pointed out by the Government, the

applicant was not only affected in her relations with

the administrative authorities as such but also

suffered an interference with her means of

subsistence; she was claiming an individual, economic

right following from specific rules laid down in a

federal statute (...).

In sum, the Court sees no convincing reason for

distinguishing between Mrs Schuler-Zgraggen's right to

an invalidity pension and the rights to social-

insurance benefits asserted by Mrs Feldbrugge and Mr

Deumeland.

Article 6 § 1 (Art. 6-1) therefore applies in the

present case."

Having regard to the Court's above findings, namely that

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

field of social insurance, including welfare assistance which is

a unilateral benefit granted by the State (Eur. Court H.R.,

Salesi judgment of 26 February 1993,to be published in Series A

no. 257-E, para. 19), the Commission considers that no

distinction can be made between entitlement to benefits under the

AAW and under the WAO in respect of the applicability of Article

6 para. 1 (Art. 6-1).

The Commission further considers that, like Mrs. Schuler-

Zgraggen, the applicant was not only affected in her relations

with the administrative authorities as such, acting in the

exercise of discretionary powers, but she also suffered an

interference with her means of subsistence. She did in fact claim

an individual, economic right on the basis of specific rules laid

down in the AAW and WAO respectively.

The Commission, therefore, finds that the proceedings at

issue involved a determination of a civil right within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention, which

is thus applicable to the present case (see also Schouten v. the

Netherlands, Comm. Report 12.10.93, para. 47 and Meldrum v. the

Netherlands, Comm. Report 12.10.93, para. 47).

B. Alleged violation of Article 6 para. 1 (Art. 6-1) of the

Convention

The applicant claims that her civil rights have not been

determined within a reasonable time in that there was

unreasonable delay between 19 April 1988, when she appealed to

the Central Appeals Tribunal, and 12 July 1990, when the Central

Appeals Tribunal started its examination of her appeal.

The Government admit that more time elapsed between the

lodging of the appeal and the judgment of the Central Appeals

Tribunal than would at first sight appear desirable, but maintain

that the time taken in this case was not in excess of a

reasonable time. One reason for the delay was that the Acting

President of the Central Appeals Tribunal judged that the

interests of a well-considered judgment required that the opinion

of a second psychiatrist be obtained. Moreover, there is no

evidence to suggest that the applicant urged the Central Appeals

Tribunal, while her case was pending, to expedite the

proceedings. Nor did the applicant raise a complaint about the

length of the proceedings pending the proceedings before the

Central Appeals Tribunal. It was only after the latter's decision

had been pronounced and communicated to the applicant that her

lawyer complained to the Central Appeals Tribunal that it takes

years before a case comes to trial before this tribunal. The

Government conclude that the application is inadmissible, either

on the ground that domestic remedies have not been exhausted or

on the ground that it is manifestly ill-founded.

With respect to the Government's submission under Article

26in conjunction with Article 27 para. 3 (Art. 26+27-3) of the

Convention that the application should be declared inadmissible

for non-exhaustion of domestic remedies, as the applicant failed

to urge the Central Appeals Tribunal to expedite the proceedings,

the Commission recalls that it is for the State to prove the

existence of an available, effective and sufficient remedy

capable of affording redress for the violation complained of by

the applicant (cf. No. 12869/87, Dec. 3.10.90, D.R. 66 p. 105).

The Commission does not find that the Government have established

the existence in Dutch law of an effective remedy whereby a

litigant can raise a complaint relating to the length of civil

proceedings pending before the Central Appeals Tribunal.

Furthermore, the Commission has already held that the

question of how an applicant, if necessary, can speed up

proceedings is not one of the exhaustion of domestic remedies,

but of the substance of the application or, in other words, an

element in determining whether the length of the proceedings

exceeded a reasonable time (cf. No. 12869/87, ibid.). Therefore

the Government's objection relating to domestic remedies must be

rejected.

As to the substance of the complaint, the Commission, having

regard to the parties' submissions under Article 6 para. 1

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

proceedings, considers that this complaint must be examined on

its merits. The application cannot, therefore, be declared

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.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Second Chamber President of the Second

Chamber

(K. ROGGE) (S. TRECHSEL)

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DÜMAN v. THE NETHERLANDS

DÜMAN v. THE NETHERLANDS

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