Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19462/92

by Erik Theodorus HUMMELS

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 27 January 1992

by Erik Theodorus HUMMELS against the Netherlands and registered on 30

January 1992 under file No. 19462/90;

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 1949 and resident at

Utrecht. He is a practising lawyer by profession.

The facts of the case as presented by the applicant may be

summarised as follows.

On 15 November 1990 the applicant was appointed by the Office for

Legal Aid (Buro voor Rechtshulp) of Haarlem as public defence counsel

for a person charged with theft and embezzlement before the Regional

Court (Arrondissementsrechtbank) of Haarlem.

On 2 October 1991 the applicant sent to the Registrar of the

Regional Court a declaration as the basis for calculation of the fee

he would be paid out of public funds for the defence of the accused

person.

On 15 November 1991 the Registrar decided to grant the applicant

an amount of 1.399,15 guilders. In the applicant's opinion, the

Registrar, when determining this amount, had not taken into account

that the hearing of the case had been adjourned on one occasion. He

therefore wrote a letter, on 25 November 1991, to the President of the

Regional Court, asking him to intervene in this matter. By decision,

which the applicant received on 9 January 1992, the President stated

that he would not intervene, since the case had been adjourned at the

applicant's own request and before the substantive examination of the

case had started. The President therefore considered the Registrar's

decision to be correct.

COMPLAINT

The applicant complains of a violation of Article 6 para. 1 of

the Convention. He points out that the President of the Regional Court

based his decision on an examination of the case-file without giving

the applicant the opportunity to react to his findings. In the

applicant's opinion, there was no fair hearing, since the procedure was

neither contradictory nor oral, and the principle of equality of arms

was not respected. The President had apparently received the case-file

from the Registrar, and the applicant could not know if the Registrar

had also provided him with oral or written comments.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 January 1992 and registered

on 30 January 1992.

On 19 May 1992 the Commission (Second Chamber) decided to

communicate the application to the Netherlands Government under Rule

48 para. 2 (b) of the Commission's Rules of Procedure and to ask for

observations on the admissibility and merits of the application.

The Government's observations were submitted on 27 August 1992

and the applicant's observations in reply on 6 October 1992.

THE LAW

The applicant complains of a violation of Article 6 para. 1

(Art. 6-1) of the Convention in that the President of the Regional

Court decided on his fee as defence counsel in a procedure which was

neither contradictory nor oral and in which the principle of equality

of arms was not respected.

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

alia:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled

to a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

The Government consider that the applicant has not exhausted

domestic remedies within the meaning of Article 26 (Art. 26) of the

Convention. Although Section 31 of the Ordinance regarding Fees for

Legal Aid in Criminal Cases (Besluit vergoedingen rechtsbijstand in

strafzaken) provides that on a matter of this kind an appeal is not

possible against the decision of the President of the Regional Court,

the Supreme Court (Hoge Raad) has ruled (Nederlandse jurisprudentie

1986 nr. 242) that an appeal is always possible if it is alleged that

a certain legal provision has been applied with disregard for essential

formal requirements (met verzuim van essentiële vormen). The

Government refer to two judgments of the Court of Appeal (Gerechtshof)

of 's-Hertogenbosch of 1 March and 24 October 1991 in which the Court

of Appeal examined complaints such as that of the applicant despite the

indication in the decision appealed against to the effect that no

appeal was allowed. Being a lawyer, the applicant should, in the

Government's opinion, have known that he could appeal to the Court of

Appeal of Amsterdam.

In case the Commission should not reject the application for

failure to exhaust the domestic remedies, the Government consider that

the application is manifestly ill-founded, since the applicant could

have asked for an oral hearing and the President of the Regional Court

was not obliged, without such a request, to arrange for the applicant

to be heard in person. The Government also point out that the

President's decision was taken exclusively on the basis of the case-

file and that he heard neither the applicant nor the court Registrar.

The applicant points out that there is no case-law of the Supreme

Court which directly concerns the right to appeal against a decision

of the present kind and that the two judgments of the Court of Appeal

of 's-Hertogenbosch are contradictory in that the appeal was admitted

in one case but considered inadmissible in the other.

As regards the substance of the case, the applicant states that

it is impossible to know whether the President of the Regional Court

based his decision exclusively on the case-file.

The Commission considers that a question may arise regarding the

applicability of Article 6 (Art. 6) of the Convention to the

circumstances of the present case. However, this question does not

have to be resolved, since the application is in any case inadmissible

for the following reasons.

The Commission recalls that, in accordance with Article 26

(Art. 26) of the Convention, it may only deal with a matter after the

domestic remedies have been exhausted.

In the present case, the applicant did not appeal against the

decision of the President of the Regional Court. The question

therefore arises whether an appeal was possible under Dutch law.

Although it is indicated in the relevant legal provision that no

appeal is possible, the Government have referred to certain decisions

by the Supreme Court and the Court of Appeal of 's-Hertogenbosch which,

in the Commission's opinion, show that a Court of Appeal might consider

itself competent to examine an appeal in which it is alleged that the

President of the Regional Court has disregarded fundamental procedural

requirements. It is true that, in the two decisions referred to, the

Court of Appeal reached different conclusions, but in both cases the

Court of Appeal examined whether fundamental procedural requirements

had been disregarded.

It follows that the conditions in Article 26 (Art. 26) of the

Convention have not been satisfied and that the application must be

rejected in accordance with Article 27 para. 3 (Art. 27-3) of the

Convention.

For these reasons, the Commission, unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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HUMMELS v. THE NETHERLANDS

HUMMELS v. THE NETHERLANDS

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