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AS TO THE ADMISSIBILITY OF

Application No. 11834/85

by Euro Art Centre B.V.

Ronald Keith Piggott

Margaret Ellen Piggott-Hughes

against the Netherlands

The European Commission of Human Rights sitting in private

on 5 October 1987 the following members being present:

MM. C.A. NØRGAARD, President

M.A. TRIANTAFYLLIDES

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

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 18 June 1985

by Euro Art Centre B.V., Ronald Keith Piggott and Margaret Ellen

Piggott-Hughes against the Netherlands and registered on 31 October 1985

under file N° 11834/85;

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 as they have been submitted by the applicants may be

summarised as follows:

The first applicant, hereinafter called "the Company", is a

corporate body registered in Roermond, the Netherlands. The Company

deals in works of art.

The second and third applicants are both British citizens, at

present living in St. Leonards, United Kingdom, and born respectively

in 1942 and 1943.

They own the Company, which they set up on 24 June 1977.

The Company opened several accounts with a bank in 1977 and

also entered into two credit contracts with this bank in 1977 and 1979.

In 1980, after the Company had overdrawn its credit ceiling,

the bank transferred money from certain accounts held by the Company

to the main account.

The applicants introduced summary proceedings before the

Regional Court (Arrondissements Rechtbank) of Roermond. They claimed,

inter alia, that the accounts from which the money was transferred

were used by clients of the Company and had to be kept seperate from

the Company's main account. Accordingly the bank had acted illegally.

On 5 January 1983 the President of the Court found, however,

that the applicants had failed to object to the transfer in time and,

furthermore, that they had insufficiently substantiated their claim

that some accounts had to be kept separate from others and that this

was clear to the bank.

The applicants appealed against this decision to the Court of

Appeal (Gerechtshof) in 's-Hertogenbosch, which rejected the

applicants' appeal for the same reasons on 30 August 1983.

The applicants' appeal against this decision to the Supreme

Court (Hoge Raad) was rejected on 22 February 1985. The Supreme Court

held, inter alia, that the Court of Appeal had sufficiently

substantiated its grounds for rejection of the appeal.

The applicants alleged that one of the judges participating in

proceedings before the Regional Court of Roermond had also acted

against the Company as a lawyer for two former clients of the Company

and that he was in a partnership with the bank's lawyer.

The applicants complained about this to their lawyer at the

outset of the proceedings. He advised that the judge should have

disqualified himself and that the only remedy left was to start

proceedings against the judge via the Crown and the self-regulating

body of the Judiciary.

The second applicant, being of the opinion that the partiality

of one judge would affect that of the whole tribunal, lodged a

complaint against all the judges of the Regional Court involved in his

case with the Advocate-General (Procureur-Generaal), attached to the

Supreme Court.

He was informed by the Advocate-General that only the

complaint against the judge referred to above would be put before

the Supreme Court. After a letter by the second applicant stating

that he had no personal interest in any disciplinary proceedings

against individual judges, but that he wanted an investigation into

the "prejudice and justice" in proceedings in Roermond, the

Advocate-General replied by letter of 18 March 1986:

"(...) I understand that you do not maintain your complaints

against the individual judges of the Regional Court of

Roermond. Therefore I have withdrawn my request to the

Supreme Court concerning your complaint against Judge X (...)."

Apparently the applicants did not reply to this letter.

COMPLAINTS

1. The applicants have complained, inter alia, that by

denying them restitution of the money to which they were entitled the

Dutch courts have ignored Dutch law and the facts of the case and have

misinterpreted the evidence submitted to them.

They claim that the Dutch courts thus violated Article 1 of

Protocol No. 1 since the proceedings before the courts concerned the

assessment of property.

2. They complain that they did not have a fair hearing by an

independent and impartial tribunal and invoke Article 6 of the

Convention. From, inter alia, the decisions that the different

judges of the Regional Court of Roermond took in their case and from

the evidence used by these judges, the applicants conclude that the

judges were biased in the bank's favour. They furthermore complain

about the lack of independence and impartiality of the Regional Court

and in particular of the judge who was the lawyer of two former

dissatisfied clients of the Company, as well as the partner of the

bank's lawyer.

3. Furthermore, they invoke Article 13 of the Convention, because

one can only complain about judges to the Advocate-General of the

Supreme Court. This remedy, being a matter of internal professional

discipline, is not effective.

4. They also claim that the courts have discriminated against

them, being British, in favour of the defendant in the case, the Dutch

bank, on grounds of their nationality. They invoke Article 14 of the

Convention, stating that discrimination against them is evident from

the documents.

THE LAW

1. The Commission shall first consider whether each applicant

can be regarded as "victim" within the meaning of Article 25 (Art. 25) of the

Convention. In previous cases the Commission has held that majority

shareholders are entitled to claim to be "victims", for the purposes

of this provision, of a decision affecting the Company's property

rights (No. 1706/62, Collection 21, p. 34; Kaplan v. United Kingdom,

Comm. Report 17.7.80, para. 131, D.R. 21, p. 5).

The Commission notes that in the present case in the domestic

proceedings not only the Company but also the second and third

applicants were parties to the litigation. It further notes that the

second and third applicants are the owners and only shareholders of

the Company, who derived their sole income from this Company.

For these reasons the Commission considers that in addition to

the Company the second and third applicants also have a sufficiently

direct interest to claim, under Article 25 (Art. 25) of the Convention, to be

victims insofar as the Company's rights may have been affected in the

present case as well as their own.

The applicants complain that the Dutch courts violated

Article 1 of Protocol No. 1 (P1-1) by judging their case wrongly and denying

them restitution of money to which they were entitled under Dutch

law.

This provision reads as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of

his possessions except in the public interest and subject to

the conditions provided for by law and by the general

principles of international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it deems

necessary to control the use of property in accordance with

the general interest or to secure the payment of taxes or

other contributions or penalties."

The Commission notes that the proceedings concerned the

private law relations between the applicants and their bank. The

Commission had held in previous cases that there is no interference

with the right to the peaceful enjoyment of possessions when,

pursuant to legal provisions governing private law relations between

individuals, a court orders one party to a contract to surrender a

possession to another, unless these provisions or court decisions

are arbitrary and unjustly deprive that person of property in favour

of another (No. 8588/79, 8589/79, Dec. 12.10.82, D.R. 29, p. 64;

No. 10000/82, Dec. 4.7.83, D.R. 33, p. 247).

However, after an examination in the present case of the

various complaints and of the decisions taken by the courts, the

Commission finds no evidence that the relevant provisions or decisions

were arbitrary, or that the courts did deprive one party of its

property in an unjustifiable way.

The Commission, accordingly, does not find that there has been

any infringement of the applicants' right to the peaceful enjoyment of

their possessions as guaranteed in the first sentence of the first

paragraph of Article 1 of Protocol No. 1 (P1-1).

This part of the complaint must therefore be rejected as being

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

the Convention.

2. The applicants have complained that they did not have a fair

hearing by an independent and impartial tribunal and invoked Article 6

(Art. 6) of the Convention.

However, the Commission is not required to decide whether or

not the facts alleged by the applicants disclose any appearance of a violation

of this provision as, under it may only deal with a matter after all domestic

remedies have been exhausted according to the generally recognised rules of

international law.

The Commission notes that the applicants brought their

complaint before the Advocate-General attached to the Supreme Court.

This procedure, however, is of a disciplinary nature and cannot

redress a decision taken by an allegedly partial tribunal.

The Commission also notes that the applicants state that they

were advised by their lawyer that there exists no court remedy against

a failure by a judge to disqualify himself but that the only avenue

open to them was that before the Advocate-General.

However, it is clear that the applicants had a remedy in the

form of a challenge of the judge or judges concerned pursuant to

Section 30 seq. of the Dutch Code of Civil Procedure, in which they

could request the Court that its member or members abstain from

participating in their case, as soon as suspicion of bias had arisen.

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 exhausting the domestic remedies at their

disposal.

It follows that the applicants have not complied with the

condition as to the exhaustion of domestic remedies and their

application must in this respect be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

3. The applicants invoke Article 13 (Art. 13) of the Convention in respect

of their complaint that they had no effective remedy against the judges'

allegedly biased and partial behaviour and decisions.

The Commission, in examining the applicants' complaint under

Article 6 (Art. 6), has already found above that there was a remedy available

of which the applicants did not avail themselves.

Therefore the applicant's complaint that they did not have a

remedy is manifestly ill-founded and must be rejected under Article 27

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

4. As regards the applicants' various complaints under Article 14

(Art. 14) of the Convention, the Commission recalls that this Article only

prohibits discrimination in the enjoyment of the rights and freedoms

set forth in the Convention (cf. No. 7568/76, Dec. 7.3.77, D.R. 9, p.

117; No. 7742/76, Dec. 4.7.79, D.R. 14/146).

The applicants have not indicated in connection with which

Article of the Convention they invoke Article 14 (Art. 14).

Assuming, however, that this complaint should be considered in

connection either with Article 6 (Art. 6) of the Convention or with Article 1

of Protocol No. 1 (P1-1), the Commission finds no indication whatsoever that

the applicants have been discriminated against by the courts either in

favour of the bank or in any other way.

It follows that this part of the application must also be

rejected as being 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 to the Commission

(H.C. KRÜGER) (C. A. NØRGAARD)

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EURO ART CENTRE B.V., PIGGOTT, PIGGOT-HUGHES v. THE NETHERLANDS

EURO ART CENTRE B.V., PIGGOTT, PIGGOT-HUGHES v. THE NETHERLANDS