Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12191/86

by Govert van GINSBERGEN

against the Netherlands

The European Commission of Human Rights sitting in private

on 8 September 1988, the following members being present:

MM. C.A. NØRGAARD, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 April 1986

by Govert van GINSBERGEN against the Netherlands and registered

on 28 May 1986 under file No. 12191/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a retired lawyer of Dutch nationality, born

on 4 September 1909. He lives in Brasschaat, Belgium.

On 18 September 1985, the applicant instituted civil

proceedings on behalf of a client before the Regional Court

(Arrondissementsrechtbank) of Breda. The case concerned a tort action

against the secretary of an advisory committee which had declared that

the Collective Agreement for the Cleaning and Window-cleaners Trade

(CAO van het Schoonmaak-en Glazenwassersbedrijf) did not apply to the

contractual relationship between the applicant's client and his

employer.

On 18 March 1986, the Regional Court declared itself

incompetent ratione loci to deal with the case. The Court recalled

that Section 126 para. 1 of the Code of Civil Procedure states that

actions such as the one before it must be introduced with the court of

the place of residence of the summoned party. The case was then

referred to the competent court which was the Regional Court of

Amsterdam. The Regional Court subsequently considered that the

lawyer had made a blatant mistake in bringing the case before the

wrong court and ordered, relying on Section 58 of the Code of Civil

Procedure, that the applicant should bear the costs of the proceedings

in person. These amounted to 520 Dfl.

Section 58 of the Code of Civil Procedure provides, inter

alia, that lawyers who have been negligent in the exercise of their

profession can be ordered to pay the costs in person without

possibility of recovering them from their client. It appears that, in

these cases, the lawyer cannot lodge an appeal against the court

order. According to Section 332 of the Code of Civil Procedure, only

the parties in the civil proceedings can appeal against judgments of a

Regional Court.

COMPLAINTS

The applicant complains that the court order to pay the costs

of the proceedings was issued without a prior hearing of the applicant

concerning his alleged mistake, and that there was no remedy available

for him against the order. He alleges that Section 58 of the Code of

Civil Procedure, in general and as applied in his case, violates

Article 6 of the Convention.

The applicant also alleges that discrimination on the ground

of his age was the basis of the court order complained of.

THE LAW

1. The applicant has first complained that the Regional Court's

decision whereby he was ordered to pay the costs of the proceedings

personally was made without prior hearing and that there existed no

possibility of appeal against the order. In this respect he has

alleged that Section 58 of the Dutch Code of Civil Procedure, both in

general and as applied in his case, violates Article 6 (Art. 6) of the

Convention.

The Commission recalls that, under Article 25 (ARt. 25) of the

Convention, it is not competent to examine in abstracto the conformity

of national legislation with the Convention (see, inter alia,

No. 8307/78, Dec. 11.7.80, D.R. 21, p.116). It can therefore only deal

with the applicant's complaint insofar as it relates to the court

order that the applicant bear the costs of the proceedings personally.

The Commission understands the applicant to be relying on the

right to a fair hearing as guaranteed by Article 6 (Art. 6) of the Convention.

Article 6 para. 1 (Art. 6-1) provides, as far as relevant, as follows:

"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 question arises in the present case whether this provision

is applicable to the proceedings which resulted in the order that the

applicant pay the cost of the proceedings.

The fact that the court order against the applicant was made

in the course of civil proceedings cannot, in itself, bring about the

applicability of Article 6 para. 1 (Art. 6-1) of the Convention, since the

applicant was not a party to those proceedings (cf., mutatis mutandis,

No. 10615/83, Dec. 3.7.84, D.R. 38, p. 213). The Commission must next

examine whether these proceedings and the court order involved the

determination of the applicant's civil rights or obligations within

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

It appears from the facts that the basis for a court order

such as the one issued against the applicant depends, in the first

place, upon an assessment by the court that the lawyer in question has

in fact been negligent. The present applicant disputes that he has

been negligent at all and points out that he has correctly interpreted

the Dutch law concerning the competence of the civil courts.

The Commission recalls its decision in No. 10615/83 (loc.

cit,) which examined a similar complaint where it held as follows:

"The Commission recognises that in imposing the requirements

that the applicant pay the costs "thrown away" on 6 September

1983 it was necessary for the judge to evaluate to some extent

the applicant's conduct of the case which had resulted in the

question of an adjournment. That this evaluation could only

be partial and superficial is well-illustrated by the mere

fact that the applicant was not present to explain matters to

the Court, still less to defend his professional reputation.

Nevertheless, the Commission concludes that the judge's

investigation of this aspect of the applicant's conduct of

proceedings was conducted, not in the context of an evaluation

of his professional capabilities as such, or of his

professional relationship with his client, but as an aspect

of the proper administration of justice, responsibility of

which ultimately lies with the judiciary. The Commission

therefore concludes that the judge's order, and the

12191/86

exceptional proceedings, in the absence of the applicant and

with scant prior notice to him, must properly be regarded as

disciplinary proceedings in the context of the administration

of justice and the proper organisation of the work of the

courts, and hence did not involve a determination of the

applicant's civil rights or obligations."

Likewise in the present case, the Commission considers that

the Regional Court's evaluation of the applicant's professional

conduct of the proceedings was based on the requirement that the

applicable rules on competence ratione loci of the courts are observed

in order to avoid unnecessary proceedings and that the exceptional

court order must properly be regarded as a disciplinary measure in the

context of the administration of justice and the proper organisation

of the work of the courts.

Moreover, the Commission notes that the court order concerning

the costs of the proceedings had no bearing, either directly or

indirectly on the right of the applicant to continue to exercise his

profession, since the applicant had already retired from the

profession before the court's decision (cf, mutatis mutandis, Eur.

Court H.R. Pudas judgment of 27 October 1987, Series A no. 125, p. 16

para. 37).

The Commission therefore concludes that the decision whereby

the applicant was ordered to pay the costs of the proceedings did not

involve a determination of his civil rights or obligations.

The Commission must also consider whether the court order

constituted the determination of a criminal charge against the

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

Convention.

Again, the Commission recalls its decision on the

admissibility of application No. 10615/83, in which it applied the

principles developed by the Court in case of Engel and others

(judgment of 8 June 1976, Series A no. 22, p. 35, para. 82). In that

case the Commission found that the nature of the order to pay costs

involved an investigation of the applicant's conduct of proceedings,

in the exercise of judicial control of the proper administration of

justice, with a view to preventing avoidable delay in the conduct of

proceedings. The Commission further noted that the maximum penalty

which could be imposed by the judge was that the lawyer personally pay

the actual costs "thrown away" as a result of his conduct.

The Commission finds that these considerations also apply in

the present case and therefore arrives at the same conclusion that,

although the court order involved the imposition of a sanction on the

applicant, the nature of the proceedings and the severity of the

penalty are not such as to constitute the "determination of a criminal

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

It follows that the provisions of Article 6 para. 1 (Art. 6-1)

of the Convention are not applicable to the proceedings resulting in

the court order imposed on the applicant, and that the applicant's

complaints under Article 6 para. 1 (Art. 6-1) must be rejected as

incompatible ratione materiae within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. As regards the applicant's complaint that the court order

discriminated against him on grounds of age, the Commission recalls

that it has found that the proceedings complained of fall outside the

ambit of Article 6 para. 1 (Art. 6-1) of the Convention. Nor can it

be said that the facts in the present case fall within the ambit of

other substantive provisions of the Convention and the Protocols. It

follows, therefore, that Article 14 (Art. 14) does not apply in the

present case (cf., for example, Eur. Court H.R., Rasmussen judgment

of 28 November 1984, Series A no. 87, p. 12 para. 29) and that this

part of the application must also be rejected as incompatible ratione

materiae with the provisions of the Convention within the meaning of

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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GINSBERGEN v. the NETHERLANDS

GINSBERGEN v. the NETHERLANDS

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