Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15595/89

by Douwe ROZENDALE

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 December 1992, 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

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 14 October 1988

by Douwe ROZENDALE against the Netherlands and registered on 10 October

1989 under file No. 15595/89;

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

A. PARTICULAR CIRCUMSTANCES OF THE CASE

The applicant is a Dutch national born in 1908. He has no

profession and lives in The Hague, the Netherlands. Before the

Commission he is represented by Mr. L. A. van der Niet, a lawyer

practising in Leiderdorp.

The facts as submitted by the parties may be summarised as

follows.

In the context of his divorce, the applicant considered that his

lawyer had misinformed and misrepresented him to such a degree that he

could not be obliged to pay for his lawyer's services. As he persisted

in his refusal, the lawyer referred his breakdown of fees and expenses,

as presented in his bill, to the Supervisory Council of the Bar

Association (Raad van Toezicht van de Orde van Advocaten). In

accordance with Article 32 of the Act on Fees in Civil Cases (Wet

Tarieven in Burgerlijke Zaken), this body verified on 28 October 1987

that the breakdown and the level of the fees complied with the

standards set by the Bar Association. As provided for in the above Act,

the lawyer was granted an execution order on 1 July 1988 by the

President of the Regional Court (Arrondissementsrechtbank) of The

Hague.

Pursuant to Article 40 of the Act, the applicant objected

(verzet) against this order on the ground that the proceedings before

the Supervisory Council did not satisfy the requirements of Article 6

of the Convention. On 10 November 1988 he had the lawyer summoned

before the Regional Court for its session of 22 November 1988. At the

hearing neither of the parties was heard. On 12 July 1989 the Regional

Court dismissed the objection as being ill-founded finding the

applicant's allegation of breach of contract by his lawyer

unsubstantiated.

In the meantime the applicant has paid his lawyer's fees.

B. RELEVANT DOMESTIC LAW AND PRACTICE

The Act on Fees in Civil Cases of 1843 (AFCC) provides for a

specific procedure for disputes arising between a lawyer and his client

as to the level of the fees charged. According to Article 32, either

the lawyer or his client can refer the lawyer's breakdown to the

Supervisory Council of the Bar Association which verifies whether the

level of the fees charged complies with the standards set by the Bar

Association. The Supervisory Council consists of lawyers admitted to

the bar. The fulfilment of its task under the AFCC is not subject to

any procedural rule. In practice the Council meets in camera and does

not hear the persons concerned.

If the client does not pay the lawyer after the Supervisory

Council's approval or estimate of the breakdown, the President of the

Regional Court shall determine the fees (Article 33) and issue an

execution order (Article 39).

Article 40 provides that the client can file an objection against

this order with the full Regional Court who will deal with it as a

summary case (summiere zaak). The Court's decision is not open to

objection, appeal or cassation. The AFCC does not contain any

procedural requirements regarding the objection proceedings. Neither

the client nor the lawyer is heard.

COMPLAINTS

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

that he did not have access to an independent and impartial tribunal.

He submits in particular that the Supervisory Council is neither

independent nor impartial as it is composed of lawyers admitted to the

bar. He further complains that he did not have a fair hearing either

before the Supervisory Council, which sits in camera, before the

President of the Regional Court or before the Regional Court because

he was not heard.

2. The applicant finally complains that, pursuant to Dutch law, the

Regional Court dealt summarily with his case in the objection

proceedings and that he could thus not have his lawyer's breach of

contract examined by an independent and impartial tribunal.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 October 1988 and registered

on 10 October 1989.

On 12 December 1991 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

application.

On 6 January 1992 the application was referred to the Second

Chamber.

The Government's observations were submitted on 13 March 1992 and

the applicant's observations in reply on 10 June 1992, after expiry of

the time-limit.

THE LAW

1. The applicant complains that the procedure under the AFCC does

not meet the requirements of Article 6 (Art. 6) of the Convention. He

submits in particular that the Supervisory Council is not an

independent and impartial tribunal as it is composed of lawyers

admitted to the bar. He further complains that he did not have a fair

hearing either before the Supervisory Council, which sits in camera,

before the President of the Regional Court or before the Regional Court

because he was not heard.

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

relevant reads :

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing ...

by an independent and impartial tribunal ..."

The question arises whether Article 6 (Art. 6) applies to the

proceedings complained of. The applicant submits that these

proceedings resulted in his obligation to pay his lawyer's fees which

constitutes a determination of his civil obligations. The Government,

on the other hand, argue that since these proceedings merely concern

the level of the fees charged by the lawyer and not the obligation to

pay the fees, they do not determine the applicant's civil rights and

obligations.

The Commission notes that the applicant's refusal to pay his

lawyer's fees constitutes a genuine "dispute". The Commission takes

the view that this dispute concerned the applicant's civil obligations.

It follows that Article 6 para. 1 (Art. 6-1) was applicable to

the proceedings complained of.

As regards the substance of this complaint, the Commission

considers that it raises important issues of fact and law whose

determination should depend on an examination of its merits. It is

therefore not manifestly ill-founded within the meaning of Article 27

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

2. The applicant also complains under Article 6 (Art. 6) of the

Convention that he could not have his lawyer's breach of contract

examined by an independent and impartial tribunal.

The Government submit that the proceedings under the Act on Fees

in Civil Cases do not address the question of an alleged breach of

contract which claim can only be submitted to the civil courts.

However, the applicant has failed to seize the civil courts so that he

has not exhausted domestic remedies as required by Article 26 (Art. 26)

of the Convention.

The Commission considers that this complaint canot be separated

from the above complaint under Article 6 (Art. 6), the issues being

closely interrelated.

For these reasons, the Commission, by a majority

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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ROZENDALE v. THE NETHERLANDS

ROZENDALE v. THE NETHERLANDS

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