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DE GEILLUSTREERDE PERS v. NETHERLANDS

Doc ref: 12229/86 • ECHR ID: 001-447

Document date: November 9, 1987

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Cited paragraphs: 0
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DE GEILLUSTREERDE PERS v. NETHERLANDS

Doc ref: 12229/86 • ECHR ID: 001-447

Document date: November 9, 1987

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 12229/86

by De Geillustreerde Pers

against the Netherlands

The European Commission of Human Rights sitting in private

on 9 November 1987, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

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 30 May 1986

by De Geillustreerde Pers against the Netherlands and registered

on 20 June 1986 under file N° 12229/86;

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 facts of the case, as they have been submitted by the

applicant company, may be summarised as follows:

The applicant company, a publishing firm, is a corporate body

registered in Amsterdam.

In the proceedings before the Commission it is represented by

Mr. A.H. Vermeulen, a lawyer practising in The Hague.

A magazine published by the applicant company investigated

whether banks were prepared to accept illegally obtained money. The

reporters carrying out the investigation did not reveal their identity

to the bank managers. The investigation revealed that most of the

bank managers interviewed did not object to handling such money.

The banks were later informed of these findings by another

reporter. One of the banks started proceedings against the applicant

company and requested the Regional Court (Arrondissementsrechtbank) of

Amsterdam to hold preliminary proceedings in order to have their

informant heard as a witness about, inter alia, the identity of

their bank manager.

After this witness had denied that he knew the bank manager's

identity the general editor was heard as a witness.

He claimed that, being a reporter, he had the right to refuse

to disclose such information. He was supported by the applicant

company.

On 14 March 1985 the judge (Rechter-Commissaris) in the case

rejected the general editor's claim.

Both the applicant company and the general editor appealed

against this decision to the Court of Appeal (Gerechtshof) of

Amsterdam.

On 13 June 1985 the Court declared the applicant company's

appeal inadmissible because only the witness had the right to appeal

against a decision of this kind.

The general editor's appeal was also declared inadmissible

because he no longer had any interest in the appeal since the bank had

already discovered the bank manager's identity.

The applicant company and the general editor appealed against

these decisions to the Supreme Court (Hoge Raad), which declared the

applicant company's appeal admissible.

It considered, however, that it follows from the nature of the

right to refuse to testify that it is personal to the witness and

cannot be claimed by other parties. Accordingly, it is only open to

the witness to appeal against a decision failing to uphold this right

and not other parties to the litigation.

On the other hand, if at first instance the refusal to testify

is acknowledged, then the parties involved do have the possibility to

appeal when they are of the opinion that it is in their interest to

have the witness heard. In the Supreme Court's opinion this rule does

not raise an issue under Article 6 of the Convention.

Therefore the Supreme Court rejected the applicant company's

appeal. The general editor's appeal was also rejected because the

Supreme Court did not find the Court of Appeal's considerations to be

at fault.

COMPLAINTS

The applicant company states that the Supreme Court's

opinion implies a right of appeal for the party who objects to the

granting of the right not to testify, whereas there is no right of

appeal for the party who objects to the refusal to grant this right to

the witness concerned. The applicant company complains that this

difference in appeal rights contravenes the principle of "equality of

arms" in breach of Article 6 of the Convention.

THE LAW

The applicant company complains that the decision of the

Supreme Court constitutes a breach of the principle of equality of

arms in breach of Article 6 para. 1 (Art. 6-1) of the Convention, the

relevant part of which provides as follows: "In the determination of

his civil rights and obligations ... everyone is entitled to a fair

... hearing." The Commission notes that this is the sole issue raised

by the applicant company. The Commission also notes that the present

case involves preliminary proceedings concerning the examination of a

witness.

It may be asked whether the above proceedings can be

considered to determine a civil right or obligation.

The Commission, however, does not find it necessary to decide

this issue because, even assuming that Article 6 para. 1 (Art. 6-1) was

applicable, the complaints of the applicant company are inadmissibile

as being manifestly ill-founded for the following reasons:

According to the Commission's case-law Article 6 para. 1

(Art. 6-1) guarantees, inter alia, the principle of equality of arms,

i.e. that anyone who is a party to civil proceedings shall have a

reasonable opportunity of presenting his case to the Court under

conditions which do not place him at a substantial disadvantage

vis-à-vis his opponent (No. 7450/76, Dec. 28.2.77, D.R. 9 p. 108).

The Commission considers that the absence of a right of appeal

for the applicant company against a preliminary court decision

ordering a witness to disclose information about a particular person

does not contravene this principle. In fact, exemptions from the

general obligation to give evidence before the court are closely

related to the special situation of the witness concerned, and they

are not aimed at giving a procedural advantage to one of the parties

to the proceedings. Consequently, it is normal that only the witness

is competent to decide both whether to claim a right to exemption and

whether to appeal against a decision by which such exemption has been

refused.

The Commission therefore concludes that the complaint of

the applicant company is 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.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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