Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21962/93

by A.D.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 11 January 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 16 July 1992 by

A.D. against the Netherlands and registered on 2 June 1993 under file

No. 21962/93;

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 1935, and resides at

The Hague, the Netherlands. Before the Commission he is represented by

Mr. J. Groen, a lawyer practising in The Hague.

The applicant complains of interference with his private life and

correspondence. This complaint was already the subject of an earlier

application (No. 11477/85) which was declared inadmissible by the

Commission on 11 December 1986 for non-exhaustion of domestic remedies.

In the meanwhile the applicant has exhausted those remedies.

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

summarised as follows.

In 1981, the applicant, who was then teaching at a municipal

school at The Hague, developed a friendship with one of his former

female pupils and her mother. The girl was then 16 years old and still

attending the applicant's school. In the course of 1982 he developed

an intimate relationship with the girl, which the girl's mother did not

approve of.

The girl's mother informally sought advice from an officer of the

Municipal Education Inspectorate (Gemeentelijke Inspectie van het

Onderwijs) of The Hague, who subsequently informed the authorities of

the applicant's school.

It also appears that since 1978 the applicant had introduced

several appeals to the Mayor and Aldermen of The Hague against

decisions by the school authorities refusing to approve certain

penalties ordered by the applicant. After a fourth appeal had been

rejected, the applicant had expressed his views on school punishment

in a newspaper interview on 5 June 1982. On 7 June 1982 the applicant's

action had been censured during a meeting of his colleagues and he had

been warned by the Mayor and Aldermen about his refusal to accept their

views on school discipline.

On 3 June 1982 the girl came to the applicant's house and stayed

with him. The applicant informed the police on 5 June 1982 that he was

not hiding the girl and, on 10 June 1982, reported himself sick at his

work.

On 4 June 1982 the girl's mother had contacted the Municipal

Police of Rijswijk for advice and assistance in order to end the

relationship between the applicant and her daughter and to conduct a

criminal investigation of the case. For this purpose, she provided the

Rijswijk Municipal Police with private correspondence between the

applicant and her daughter. This correspondence consisted mainly of

letters the applicant had written to the girl. As the prosecution

authorities decided not to bring any charges against the applicant, the

police, with the girl's mother's consent, contacted the Education

Inspectorate, considering that disciplinary measures, such as a

transfer of the applicant, might resolve the situation. In accordance

with the mother's wishes the police gave the correspondence to the

Education Inspectorate on 10 June 1982.

On 14 June 1982 the applicant was suspended by the school

authorities. On 25 June 1982 the Mayor and Aldermen (Burgemeester en

Wethouders) of The Hague, referring to Section 249 of the Criminal

Code, which - inter alia - deals with abuse of pupils, informed the

applicant that they intended to start proceedings for his dismissal for

gross failure to respect his duties as a teacher.

This decision was based on the applicant's attitude towards his

school and colleagues and the contents of the applicant's

correspondence with the girl, from which it appeared that the applicant

had pressed the girl to continue their relation, that he had provided

her with information of how she could leave her parental home and which

social services could help her doing so, that he had offered her

financial aid and that he had tried to negatively influence the girl's

opinion in respect of professional counsellors her mother had called

upon.

The girl stopped attending the applicant's school on 15 June 1982

and was registered at another school as from 1 August 1982.

On 19 June 1982 the applicant filed an appeal against his

suspension with the Civil Servants Court (Ambtenarengerecht) of The

Hague. In addition he started injunction proceedings (kort geding)

before the President of the Regional Court (Arrondissementsrechtbank)

of The Hague, requesting that his correspondence be returned and not

be used in the proceedings concerning his suspension.

On 30 August 1982 the President of the Regional Court rejected

the applicant's claims, considering that the issues raised belonged to

the exclusive competence of the Civil Servants Court.

On 6 September 1982 the Civil Servants Court rejected the

applicant's appeal concerning his suspension.

By letter of 6 October 1982 the Mayor and Aldermen informed the

applicant that he was dismissed as from 1 November 1982. On

2 November 1982 the applicant filed an appeal against this decision

with the Civil Servants Court, complaining, inter alia, that the

authorities had taken his correspondence, which in his opinion had been

unlawfully obtained, into account when deciding on his dismissal.

In its decision of 6 July 1983 the Civil Servants Court quashed

the applicant's dismissal, considering it could not be held that the

applicant had failed in his duties as a teacher because of his

relationship with a pupil.

Following an appeal by the Mayor and Aldermen, the Central

Appeals Tribunal (Centrale Raad van Beroep), on 25 October 1984,

quashed the decision of 6 July 1983 and rejected the applicant's appeal

of 2 November 1982 as ill-founded. Without making a finding on the use

of the correspondence by the authorities, the Central Appeals Tribunal

held that the applicant had in fact failed to respect his duties as a

teacher.

On 27 September 1982 the applicant and the girl had also

introduced a complaint to the National Ombudsman about the seizure of

their correspondence by the Municipal Police. On 26 November 1984 the

Ombudsman concluded that the police, by taking note of the contents of

the correspondence and by handing it over to the Education

Inspectorate, had unjustly interfered with the rights of both the

applicant and the girl under Article 8 of the Convention.

The applicant subsequently filed a civil action on the basis of

tort against the municipalities of Rijswijk and The Hague for damages

resulting from his dismissal. He alleged, inter alia, a violation of

Article 8 of the Convention.

The Regional Court of The Hague rejected his claims on

14 January 1987, considering, inter alia, that the Rijswijk Municipal

Police had not acted unlawfully in respect of the applicant. The

Regional Court held in this respect that the interference with the

applicant's right to respect for his private life and correspondence

was justified under para. 2 of Article 8 of the Convention, having

regard to the fact that the police acted on the basis of Section 28 of

the Police Act (Politiewet) which obliges the police to provide

assistance to persons who so require, that the Rijswijk Municipal

Police had not overstepped their discretionary powers in that its

course of action was not unreasonable in view of, inter alia, the

mother's responsibility as guardian of her minor daughter, her anxiety

in respect of the situation and the previous unsuccessful attempts to

obtain the applicant's co-operation to resolve it. The Regional Court

further found no indication in the Central Appeals Tribunal's decision

of 25 October 1984 that the contents of the correspondence had been

taken into account.

The Court of Appeal (Gerechtshof) of The Hague rejected the

applicant's appeal on 24 April 1990. The Court of Appeal, even assuming

that the Rijswijk Municipal Police had acted unlawfully by passing the

correspondence on to the Education Inspectorate, found no causal link

between the behaviour of the police and the applicant's dismissal,

since this dismissal was based on the existence and continuance of the

applicant's relation with the girl. The Court of Appeal did not find

it established that the contents of the correspondence between the

applicant and the girl had been taken into account in the Central

Appeals Tribunal's decision of 25 October 1984. It further upheld the

Regional Court's finding that the police had not acted unlawfully.

The applicant's subsequent appeal in cassation was rejected by

the Supreme Court (Hoge Raad) on 14 February 1992. The Supreme Court,

recalling the Regional Court's findings that the Rijswijk Municipal

Police had not acted unlawfully, found no basis for the applicant's

argument that the Court of Appeal should have followed the conclusions

of the National Ombudsman. Noting that the applicant had not relied on

the Ombudsman's conclusions before the Court of Appeal, it further

considered that the Court of Appeal was under no obligation to take the

Ombudsman's conclusions into consideration in its decision. The

Supreme Court did not find it necessary to examine the applicant's

other arguments.

COMPLAINTS

1. The applicant complains under Article 8 para. 1 of the Convention

that his right to respect for his private life and his correspondence

has been violated by the use made by the Municipal Police of Rijswijk

of correspondence from the applicant to the girl without his knowledge

or consent.

2. The applicant further complains that his intellectual property

rights under Article 1 of Protocol No. 1 have been violated by the use

of the letters he had written to the girl.

3. The applicant finally complains under Article 6 para. 1 of the

Convention that under Dutch law it is not possible to reply to the

conclusions of the Advocate General (Advocaat-generaal) to the Supreme

Court.

THE LAW

1. The Commission notes that the above complaint under Article 8

(Art. 8) of the Convention was already the subject of Application No.

11477/85, declared inadmissible on 11 December 1986 for non-exhaustion

of domestic remedies. Under Article 27 para. 1 (b) (Art. 27-1-b) of

the Convention the Commission shall not deal with any petition under

Article 25 (Art. 25) which is substantially the same as a matter which

it has already examined, provided it contains no relevant new

information. The Commission finds that the present application

contains such information, in that the tort proceedings which were

still pending in 1986 have in the meanwhile been terminated by the

decision of the Supreme Court of 14 February 1992. It follows that the

present application is not inadmissible under Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention.

2. The applicant complains under Article 8 para. 1 (Art. 8-1) of the

Convention that his right to respect for his private life and his

correspondence has been violated by the use the Municipal Police of

Rijswijk made of correspondence from the applicant to the girl without

his knowledge or consent.

Article 8 (Art. 8) of the Convention, insofar as relevant,

provides as follows:

"1. Everyone has the right to respect for his private

(...) life (...) and his correspondence."

The Commission notes that the police initially used the

correspondence from the applicant to the girl, which was given to them

by the girl's mother, in order to examine whether or not criminal

proceedings should be brought against the applicant. Since this was not

the case, the police, with the girl's mother's consent, subsequently

passed the correspondence on to the Education Inspectorate for possible

disciplinary measures.

The Commission first recalls that the right to respect for

correspondence does not apply to documents, which have already reached

the addressee and are kept by him (No. 9614/81, Dec. 12.10.83, D.R. 34

p. 119). It therefore finds that the applicant cannot invoke the

protection of "correspondence" provided by Article 8 para. 1 (Art. 8-1)

of the Convention, as the letters he wrote to the girl had already

reached her and thus no longer constituted "correspondence" within the

technical meaning of the term.

As to the applicant's complaint that others than the addressee

took cognizance of the letters at issue, the Commission finds that this

does not constitute an interference with the applicant's right to

respect for his private life within the meaning of Article 8 para. 1

(Art. 8-1) 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.

3. The applicant complains under Article 1 of Protocol No. 1

(P1-1) that the use made of correspondence between the applicant and

the girl violated the property rights of the girl as owner of the

letters and his intellectual property rights as author of the letters.

Article 1 of Protocol No. 1 (P1-1) reads as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of

his possessions except in the public interest and subject

to the conditions provided for by law and by the general

principles of international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it

deems necessary to control the use of property in

accordance with the general interest or to secure the

payment of taxes or other contributions or penalties."

The Commission considers, in the first place, that the applicant

cannot be considered as being a victim within the meaning of Article

25 (Art. 25) of the Convention of any infringement of the property

rights of the girl and, secondly, that the facts of the case do not

disclose any appearance of any interference with the applicant's rights

under Article 1 of Protocol No. 1 (P1-1).

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.

4. The applicant further complains under Article 6 para. 1

(Art. 6-1) of the Convention that under Dutch law it is not possible

to reply to the conclusions submitted by the Advocate General

(Advocaat-generaal) to the Supreme Court.

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 (...) by

an (...) tribunal established by law. (...)."

The Commission finds no indication that the applicant has in fact

requested the Supreme Court's permission to submit any comments on the

Advocate General's written conclusions. Even assuming that the Supreme

Court had rejected such a request, the Commission finds that the fact

that, in civil proceedings, it is not possible to reply, either in

writing or orally, to the written conclusions of the Advocate General,

who is not a party to the proceedings and does not participate in the

deliberations of the Supreme Court on an appeal in cassation, does not

imply any breach of the rights guaranteed by Article 6 para. 1

(Art. 6-1) of the Convention. The Commission finds nothing to suggest

that the proceedings at issue were not in conformity with the

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

It follows that this complaint is also to be rejected as

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) (S. TRECHSEL)

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A.D. v. THE NETHERLANDS

A.D. v. THE NETHERLANDS