Lexploria

PARTIAL

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 5 May 1993, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

Mr. K. ROGGE, Secretary to the Second 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 deliberated;

Decides as follows:

THE FACTS

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

currently residing in Amsterdam. Before the Commission the applicant

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

Amsterdam.

The facts of the case, as submitted by the applicant, 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 Arbeids-

ongeschiktheidswet - "AAW") and the Labour Disablement Insurance Act

(Wet op de Arbeidongeschiktheidsverzekering - "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 (Bedrijfsvereniging voor

de Gezondheid, Geestelijke en Maatschappelijke Belangen) informed the

applicant of its decision to discontinue 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 with the

Appeals Tribunal (Raad van Beroep) of Amsterdam. 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, having examined the file, rejected the appeal 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). 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 Board 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

the Industrial Insurance Board appeared at the hearing.

In its decision of 2 August 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.

Concerning 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

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 enable 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 to grant 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 sent to the applicant.

COMPLAINTS

The applicant complains that the refusal by the Central Appeals

Tribunal of her lawyer's request to postpone the hearing of 12 July

1990 and 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 of the Convention.

THE LAW

1. The applicant complains that the refusal by the Central Appeals

Tribunal of her lawyer's request to postpone the hearing of 12 July

1990 and the delay between the judgment by 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. This

provision, 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 (...)."

The first question which arises is whether the proceedings at

issue concerned the applicant's "civil rights and obligations".

However, the Commission does not need to resolve this issue as, even

if Article 6 para. 1 (Art. 6-1) applies, the complaint is inadmissible

for the following reasons.

Insofar as the applicant complains that she did not receive a

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

Convention due to the refusal of the Central Appeals Tribunal to

postpone the hearing of 12 July 1990, the Commission recalls that the

right to a fair hearing implies that the interested party must be able

to present his case under conditions which do not place him at a

substantial disadvantage vis-à-vis his opponent (cf. No. 9938/82, Dec.

15.7.86, D.R. 48 p. 21). The Commission further recalls that the

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

to proceedings before courts of appeal depends on the special features

of the proceedings involved; account must be taken of the entirety of

the proceedings in the domestic legal order and of the role of the

appellate court therein (Eur. Court H.R., Helmers judgment of 29

October 1991, Series A no. 212-A, p. 15, para. 31).

The Commission notes that neither the applicant, who was on

holiday in Turkey, nor the Industrial Insurance Board availed

themselves of the possibility to appear before the Central Appeals

Tribunal. The Commission further notes that the applicant with the

assistance of her lawyer had participated in the hearings before the

Appeals Tribunal on 19 December 1986 and 23 September 1987

respectively, and that the Central Appeals Tribunal stated in its

decision of 2 August 1990 that no new facts or other elements had

arisen in the proceedings before it. The Commission finally notes that

both the Appeals Tribunal and the Central Appeals Tribunal took into

account all the elements submitted to them by the parties in the

context of adversarial proceedings. Finally, there is no indication

that the applicant was prevented from submitting further evidence which

could have shown her incapacity to work.

The Commission therefore considers that the Central Appeals

Tribunal's refusal of the applicant's request for an adjournment did

not infringe the principle of a fair hearing within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention. Moreover, there is

nothing in the case-file to support the contention that the proceedings

at issue were otherwise unfair.

It follows that this complaint is manifestly ill-founded within

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

2. Insofar as the applicant complains that her civil rights and

obligations have not been determined within a reasonable time, the

Commission decides to give notice of this complaint to the respondent

Government in accordance with Rule 48 para. 2(b) of its Rules of

Procedure and to invite them to submit their observations in writing

on the admissibility and merits of the application.

For these reasons, the Commission, by a majority,

DECIDES TO ADJOURN the examination of the applicant's complaint

that her civil rights and obligations have not been determined within

a reasonable time;

DECLARES INADMISSIBLE the remainder of the application.

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

LEXI