Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12087/86

by André KARTING

against the Netherlands

The European Commission of Human Rights sitting in private

on 13 May 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER 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 2 October 1985

by André KARTING against the Netherlands and registered

on 7 April 1986 under file No. 12087/86;

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 of German nationality, born on 10 May 1941 in

Rotterdam. He is an engineer, presently residing in Voorburg, the

Netherlands.

The facts of this case, as submitted by the applicant, may be

summarised as follows.

From 1 July 1981, the applicant was employed with a company in

The Hague. On 22 July 1982, the applicant's superior noticed that the

applicant's lunch-break was longer than he had officially indicated on

the time-clock. The superior, who had already suspected the applicant

of misusing the time-clock, ordered the applicant to present himself,

from that day onwards, in person, at the beginning and at the end of

each lunch-break.

On 18 August 1982 the employer dismissed the applicant,

following a conversation between the applicant and his superior

concerning the former's lunch-breaks and his car expenses. During

this conversation the applicant offended his superior. According to

the applicant, this had happened after his superior had made an

anti-semitic remark. The dismissal was based, inter alia, on the

fraudulent behaviour of the applicant and on his insulting remarks

towards his employer.

The applicant's lawyer challenged the lawfulness of the

dismissal before the District Court (Kantongerecht) in The Hague. On

14 February 1983, the Court ordered in an interlocutory judgment the

applicant's former employer to submit evidence of the facts

constituting the grounds for dismissal. On 9 March and 18 April 1983

the District Court heard two witnesses for the employer. According to

the applicant, his lawyer questioned the applicant's former superior,

who was one of the witnesses,about the issue of the anti-semitic

remark. The applicant contends that the witness declared that he did

not even know the applicant was Jewish. The District Court allegedly

instructed the Registrar not to record this issue in the procès-verbal

of the hearing. The applicant's lawyer did not object to this,

apparently because he was of the opinion that it was a trivial issue.

After the hearing, the applicant, who was not satisfied with the way

his lawyer handled the case, consulted his trade union about replacing

his lawyer by another one, but finally decided not to do so. The

other witness for the employer testified that he had partially

overheard the conversation between the applicant and his former

superior, but only the final offending remarks by the applicant,

because they were spoken in a loud voice. On 22 June and 11 July 1983,

two witnesses for the applicant were heard.

On 7 November 1983 the District Court rejected the applicant's

claims, finding that his former employer had proven that the applicant

had fraudulently misused the time-clock and that he had insulted his

superior, either ground being sufficient to justify a dismissal.

The applicant appealed to the Regional Court (Arrondissements-

rechtbank) in The Hague, but his appeal was dismissed on 13 March 1985.

The Court saw no reason to grant the applicant a new hearing of the

witness who had partially overheard the conversation with his former

superior, since the applicant had not demonstrated what evidence could

possibly have come out of a re-hearing of this witness. In particular,

the Court considered it as logical that this witness could not have

overheard the whole conversation, which fact was not contested by the

applicant, since he had indicated that he, from his neighbouring

office, had only overheard the remarks made in a loud voice.

It appears that the applicant was prevented from appealing to

the Supreme Court (Hoge Raad) because further free legal aid was

refused to him on 13 September 1985.

COMPLAINTS

The applicant alleges violations of Articles 6 and 14 of the

Convention with respect to the proceedings before the District Court

and the Regional Court. He complains that the District Court was not

impartial in his case and, by not recording evidence of an

anti-semitic statement made by the applicant's superior, made a

discriminatory distinction on the ground of religion. He also

complains that the Regional Court, by refusing the applicant

permission to recall a witness and to be heard himself, did not give

him a fair hearing.

In addition, the applicant complains that the Dutch courts have

violated Article 8 of the Convention in that they had not had due

regard to the serious implications of their decisions for the private

life of the applicant and his family.

Finally, the applicant alleges that the refusal to give him

free legal aid after the Regional Court's decision prevented him from

appealing to the Supreme Court and thus violated Article 13 of the

Convention.

THE LAW

1. Most of the applicant's complaints relate to the proceedings

before the District Court and the Regional Court concerning his

dismissal. The applicant contends, in particular, that the District

Court was not impartial in its assessment of the evidence, inter alia,

because it deleted from the record of a hearing part of a statement

made by a witness on behalf of the applicant's former employer and

that the Regional Court, by refusing to recall a witness and by not

hearing the applicant in person, did not give him a fair hearing. He

has invoked Articles 6 and 14 (Art. 6, 14) of the Convention in these

respects.

The Commission considers that there is some doubt as to whether

the applicant has exhausted all domestic remedies available to him and

as to whether the application was submitted to the Commission within a

period of six months from the date on which the final decision was

taken (Article 26 of the Convention) (Art. 26). It finds, however,

that it is not necessary to examine these issues, since the facts of

the case, as submitted by the applicant, do not disclose any

appearance of a violation of the rights and freedoms set forth in the

Convention.

The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties to the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its constant

jurisprudence (see e.g. decisions on the admissibility of Application

Nos. 458/59, Yearbook 3, pp. 22, 236 and 1140/61, Collection of

Decisions 8, pp. 57, 62).

It is true that in this case the applicant also complains that

the District Court was not impartial in the taking of the evidence.

However, the Commission is satisfied that the taking of evidence was

not in effect imbalanced or incomplete. Although the District Court,

according to the applicant, has withheld a statement of a witness from

the record of the hearing, it appears that the applicant made no

objection to this. Furthermore, it seems that nothing would have

prevented the applicant from having this witness heard again before

the District Court or, at a later stage, before the Regional Court.

Instead, the applicant's lawyer decided not to pursue the matter and

brought two other witnesses on his behalf before the District Court.

Under these circumstances, the Commission sees no indication

that the District Court was partial or that the proceedings were

otherwise unfair. Neither is there any question of discrimination,

within the meaning of Article 14 (Art. 14) of the Convention, by the

District Court. The mere fact that the evidence which was allegedly

not recorded related to an anti-semitic remark made by the employer,

does not amount to discriminatory action on the part of the District

Court.

With respect to the refusal of the Regional Court to order a

new hearing of one of the witnesses, the Commission recalls that it

has held that such a refusal might, under certain circumstances, be an

infringement of the right to a fair hearing as secured by Article 6

para. 1 (Art. 6-1) of the Convention (No. 5362/72, Dec. 14.12.72,

Collection 42 p. 145).

The Commission notes, however, that in the present case the

Regional Court carefully considered the applicant's request for a new

hearing but rejected it on the ground that the applicant had neither

duly motivated his request nor indicated what evidence could have

resulted from such a hearing.

The applicant has also alleged that the Regional Court refused

to hear him in person. In this respect, the Commission recalls

that the right to be present in person in civil proceedings is not, as

such, guaranteed by the Convention, but that the right to a fair trial

may sometimes imply the right to be present in person (cf. No. 7370/76,

Dec. 28.2.77, D.R.9, p. 95). It does not appear from the facts of the

case, as submitted by the applicant, that he requested an oral hearing

or that such a request was rejected. In any case, the applicant has

not in any way indicated that he in fact presented his case to

the Regional Court under conditions which placed him under a

substantial disadvantage vis-à-vis his opponent (cf. No. 7450/77,

Dec. 28.2.77, D.R. 9, p. 108) or that his personal presence was

indispensable for the proper conduct of the proceedings (cf. the

above-mentioned decision No. 7370/76). The Commission notes that the

applicant's lawyer presented his arguments for a reversal of the

District Court's decision in writing to the Regional Court. The

Commission has no reason to believe that, under these circumstances,

the applicant was not in a position to properly present his case before

the Regional Court. Neither do the other facts relating to the

proceedings before the Dutch courts alleged by the applicant disclose

any appearance of a violation of the Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant has also complained that the Dutch courts have

not had regard, in their judgments, to the serious implications of

their decisions for the private life of the applicant and his family.

He alleges a violation of Article 8 (Art. 8) of the Convention in this

respect.

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law. The mere fact that the applicant has submitted his

case to the various competent courts does not of itself constitute

compliance with this rule. It is also required that the substance of

any complaint made before the Commission should have been raised

during the proceedings concerned. In this respect the Commission

refers to its constant jurisprudence (see e.g. decisions on the

admissibility of applicants No. 263/57, Yearbook 1, pp. 146, 147 and

No. 1103/61, Yearbook 5, pp. 168, 186).

In the present case the applicant did not raise either in form

or in substance, in the proceedings before the District Court or the

Regional Court, the complaint which he now makes before the

Commission. Moreover, an examination of the case does not disclose

the existence of any special circumstances, which might have absolved

the applicant, according to the generally recognised rules of

international law, from raising his complaint in the proceedings

referred to.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and his

application must in this respect be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

3. Finally, the applicant has complained that the refusal to grant

him free legal aid after the Regional Court's decision prevented him

from contesting this decision before the Supreme Court. In this

respect, he has invoked Article 13 (Art. 13) of the Convention.

The Commission recalls that there is, under the Convention, no

obligation on the State to provide free legal aid for every dispute

relating to a civil right and that a refusal of legal aid on the basis

that the claim lacks reasonable prospects of success would not

normally constitute a denial of access to court unless it could be

shown that the decision of the administrative authority was arbitrary

(No. 8158/78,Dec. 10.7.80, D.R. 21, p. 95).

The Commission finds, on the basis of the facts and documents

submitted by the applicant, that the refusal of further legal aid

after the decision of the Regional Court, apparently on the ground

that there was no reasonable prospect of success, cannot be considered

as arbitrary or unreasonable. In this respect, the Commission recalls

that it has rejected the applicant's complaints under Articles 6 and

14 (Art. 6, 14) of the Convention as being manifestly ill-founded.

It follows, therefore, that this part of the application is

also manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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KARTING v. THE NETHERLANDS

KARTING v. THE NETHERLANDS