Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16690/90

by Watze DE VRIES

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 12 May 1990 by

Watze DE VRIES against the Netherlands and registered on 11 June 1990

under file No. 16690/90;

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 citizen, born in 1937 and residing in

Sneek, the Netherlands. Before the Commission the applicant is

represented by Mr. G. E. M. Later, a lawyer practising in The Hague,

the Netherlands.

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

summarised as follows.

On 20 November 1987 the Child Welfare Council (Raad voor de

Kinderbescherming) of Leeuwarden requested the Regional Court

(Arrondissementsrechtbank) of Leeuwarden to deprive the applicant of

custody of two of his children, whose mother he had divorced in 1976,

the reason for the request being, inter alia, the applicant's heroin

addiction and his serious neglect in the care of the children.

On 8 December 1987 the Regional Court heard the two children in

chambers and the applicant in the presence of his lawyer in camera.

At the end of this hearing, contrary to Article 909 of the Code of

Civil Procedure (Wetboek van Burgerlijke Rechtsvordering), it was not

announced when the Regional Court would pronounce its decision.

By decision of 24 December 1987, which was pronounced in public,

the Regional Court deprived the applicant of the custody of his two

children. Pursuant to Article 910 para. 4 of the Code of Civil

Procedure an appeal against this decision could be lodged within three

weeks as from that date.

The Registrar to the Regional Court sent a copy of this decision

to the applicant's lawyer on 29 January 1988.

On 19 February 1988 the applicant filed an appeal against this

decision with the Court of Appeal (Gerechtshof) of Leeuwarden.

By letter of 29 March 1988 the Registrar to the Regional Court

informed the Court of Appeal that, due to an oversight by the Regional

Court, the decision of 24 December 1987, contrary to Article 913 para.

1 (b) of the Code of Civil Procedure, had not been sent to the

applicant's lawyer until 29 January 1988.

On 12 April 1988 the Court of Appeal heard the applicant's

children in chambers and on 13 April 1988 the applicant in the presence

of his lawyer in camera.

On 11 May 1988 the Court of Appeal, referring to Article 910

para. 4 of the Code of Civil Procedure, rejected the applicant's appeal

for being out of time, as it was not submitted within three weeks

following the decision of 24 December 1987.

On 17 June 1988 the applicant filed an appeal in cassation with

the Supreme Court (Hoge Raad).

The Advocate-General (Procureur-Generaal) in his conclusion of

29 September 1989 considered that the decision of 11 May 1988 should

be quashed in view of the combination of the facts that apparently the

Regional Court had failed to announce the date and hour of its

decision, that due to an oversight by the Regional Court the decision

of 24 December 1987 was only sent to the applicant's lawyer on

29 January 1988 and that the decision of the Regional Court was not

pronounced, as prescribed by law, within 14 days after the last

hearing.

On 17 November 1989 the Supreme Court rejected the applicant's

appeal. The Supreme Court held that it did not follow from Article 910

para. 4 of the Code of Civil Procedure that the period for appeal only

started at the moment on which a party has or could have become

acquainted with the contents of a judicial decision. In so far as the

applicant relied on Article 6 para. 1 of the Convention the Supreme

Court considered that the Convention contains no right to appeal and

that the Court of Appeal's interpretation of the provisions dealing

with access to an appeal court did not deprive the applicant of a fair

hearing within the meaning of Article 6 of the Convention.

RELEVANT DOMESTIC LAW

Articles 900 to 968 (d) of the Code of Civil Procedure deal with

the specific proceedings concerning parental authority, custody,

parental access and emancipation of minors.

Article 909 of the Code of Civil Procedure, in so far as

relevant, provides:

[Translation]

"1. The decisions are given at the latest fourteen

days after the last hearing. Failure to

indicate the reasons for the decision entails

nullity [...].

[...]

3. Where the decision must be pronounced in public,

the judge announces the day and hour of the

pronouncement at the last hearing."

Article 910 para. 4 of the Code of Civil Procedure reads:

[Translation]

"The appeal period is three weeks and starts to run on the

day after which the Registrar has sent the prescribed

notification of the decision or, when the decision has been

pronounced in public, after the day of the pronouncement."

Article 913 para. 1 (b) of the Code of Civil Procedure reads:

[Translation]

"Of every decision concerning the permanent or temporary

authority to be exercised over minors, including

co-guardianship, the Registrar will immediately notify:

[...]

b. the person, who as a result thereof will lose the factual or

legal authority;

[...]."

COMPLAINTS

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

that he did not receive a fair trial as the judicial authorities'

failure to respect statutory procedural requirements barred him from

appealing against the Regional Court's decision of 24 December 1987.

2. The applicant also complains under Article 8 of the Convention

that the decision to deprive him of the custody of his two children

unjustly interfered with his right to respect for his family life,

whereas he was barred from challenging this decision before an appeal

court.

3. Finally the applicant complains under Article 13 of the

Convention that the oversights in the proceedings at issue, caused by

the judicial authorities, deprived him of an effective remedy against

the Regional Court's decision of 24 December 1987.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 May 1990 and registered on

11 June 1990.

On 8 November 1990 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on the admissibility and merits of

the application.

The Government submitted their observations on 31 January 1991.

The applicant's observations in reply were submitted on 8 April 1991.

On 9 April 1991 the Commission decided to refer the application

to the Second Chamber.

THE LAW

The applicant complains that the judicial authorities' failure

to respect statutory procedural rules in the proceedings on the custody

of his children barred him from appealing against the Regional Court's

decision of 24 December 1987 and thus deprived him of a fair trial

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

He also invokes Articles 8 and 13 (Art. 8, 13) of the Convention in

this context.

The Government are of the opinion that the Supreme Court has

correctly held that neither Article 6 para. 1 (Art. 6-1) nor any other

provision of the Convention provides for a right of appeal, but add

that if a possibility of appeal exists in proceedings concerning the

determination of civil rights, the appeal proceedings must be

consistent with the provisions of Article 6 para. 1 (Art. 6-1) of the

Convention.

The Government admit that in the present case both the Regional

Court and the Registrar did not respect Article 909 paras. 1 and 3 and

Article 913 of the Code of Civil Procedure but argue that these

provisions only serve as guidelines for correct procedure. Referring

in particular to Article 910 of the Code of Civil Procedure, the

Government argue that Dutch law attaches no consequences to the non-

observance of these guidelines.

The Government consider that the Supreme Court rightly applied

the statutory provisions concerning the time-limit for the introduction

of an appeal in a strict manner, it being in the interest of legal

certainty and the public that parties involved know for certain when

a decision can be regarded as final. The Government consider the

applicable provisions to be quite clear on that point. They are of the

opinion that the applicant was not denied an appeal procedure, but that

the applicant or his counsel, in view of the clear rule that the

decision is to be given no later than fourteen days after the day of

the last hearing, could have applied to the Registrar for information

on the date of the pronouncement of the decision. The applicant and

his counsel should have been aware that, by waiting for the

notification of the decision, the applicant was running the risk that

the time-limit for an appeal had expired.

The applicant, referring in particular to the conclusion of

29 September 1989 by the Advocate-General to the Supreme Court,

maintains that the Court of Appeal and the Supreme Court unjustly

considered his appeal of 19 February 1988 to have been submitted out

of time.

The Commission recalls at the outset that Article 6 para. 1

(Art. 6-1) of the Convention, which provision entitles everyone to a

fair hearing by a tribunal in the determination of his civil rights and

obligations, does not as such guarantee the right of appeal to a higher

court (cf. No. 11941/86, Dec. 5.10.88, D.R. 57 p. 100) but that where

the opportunity to seek appeal is provided under domestic law, the

guarantees of Article 6 (Art. 6) continue to apply to the proceedings

on appeal (see mutatis mutandis No. 9315/81, Dec. 15.7.83, D.R. 34 p.

96).

The Commission further recalls that Article 6 para. 1 (Art. 6-1)

does not debar Contracting Parties from making regulations governing

the access of litigants to an appellate court, provided that such

regulations serve the purpose of ensuring the proper administration of

justice (No. 6916/75, Dec. 8.10.76, D.R. 6 p. 107; No. 8407/78, Dec.

6.5.80, D.R. 20 p. 179) and that, in this connection, the regulations

concerning time-limits to be observed when lodging an appeal

undoubtedly serve the purpose of ensuring the proper administration of

justice (cf. No. 11122/84, Dec. 2.12.85, D.R. 45 p. 256 and No.

10857/84, Dec. 15.7.86, D.R. 48 p. 106).

Nevertheless, the Convention is intended to guarantee not rights

which are theoretical or illusory but rights that are practical and

effective, in particular as regards the right of access to the court

in view of the prominent place held in a democratic society by the

right to a fair trial (Eur. Court H.R., Airey judgment of 9 October

1979, Series A no. 32, para. 24). Therefore an application to an

appeal court cannot be subject to time-limits which, in certain

circumstances, render such an application uncertain or aleatory and,

by that same token, ineffective (De Geouffre de la Pradelle v. France,

Comm. Report 4.9.91, para. 50).

Having regard to the particular circumstances of the present case

and the parties' arguments, the Commission considers that the

application raises issues of fact and law which can only be resolved

by an examination on the 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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DE VRIES v. THE NETHERLANDS

DE VRIES v. THE NETHERLANDS

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