Lexploria

The European Commission of Human Rights sitting in private on

6 October 1986, the following members being present:

MM. C. A. NØRGAARD

J. A. FROWEIN

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. H. C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 May 1984 by H.C. B.

against The Netherlands and registered on 14 November 1984 under file

No. 11238/84;

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 may

be summarised as follows:

The applicant is a Dutch citizen, born in 1927 and at present residing

at Groningen, the Netherlands.

It appears that the applicant owns an old farmhouse that was put on

the list of protected monuments by Ministerial Decree of 7 July 1977.

In 1978, the applicant obtained a Government subsidy to restore this

building. The applicant then entered into negotiations with a

building company which, he claims, did not lead to an agreement.

However, it appears that the building company nevertheless started to

carry out restoration works on the applicant's building in

August 1979.

Despite protests by the applicant, the company appears to have

completed the restoration in March 1980. The company subsequently

claimed costs from the applicant, and brought proceedings before the

Arbitration Council for Building Companies (Raad van Arbitrage voor de

Bouwbedrijven).

On 22 May 1980 the Regional Court (Arrondissementsrechtbank) of

Groningen authorised (vanwaardeverklaring) the conservatory seizure

(conservatoir beslag) of certain assets of the applicant, on the

condition that the company's claim should be accepted by the arbitral

decision.

On 17 August 1981, the Arbitration Council in an interlocutory

decision rejected the applicant's claim that it was not competent to

decide on the claim against him and ordered that the applicant pay

certain costs.

The applicant, thereupon, requested the President of the Regional

Court of Amsterdam not to authorise execution of the arbitral

decision.

However, at the request of the building company, the President, on

8 September 1981, did authorise execution of the interlocutory decision.

The applicant, whilst invoking inter alia Article 6 para. 1 (Art. 6-1)

of the Convention, thereupon appealed to the Court of Appeal

(Gerechtshof) of Amsterdam, but his appeal was rejected on

9 March 1982 as having been introduced out of time.

The applicant then appealed to the Supreme Court (Hoge Raad) which, on

10 December 1982, quashed the decision of the Court of Appeal and

ordered that this court should decide on the applicant's original

appeal.

On 15 June 1983, the Court of Appeal of Amsterdam quashed the decision

of the President of the Regional Court of Amsterdam of

8 September 1981 and decided not to authorise execution of the

interlocutory arbitral decision. The Court considered that it had not

been sufficiently demonstrated that the parties had agreed to submit

their dispute to arbitration.

Meanwhile, on 6 October 1982, the Arbitration Council had ordered the

applicant to pay the building company Dfl. 220, 539.98 plus costs and

interest.

Despite a request by the applicant to the contrary, the President of

the Regional Court of Amsterdam decided to authorise execution of the

arbitral judgment on 18 October 1982.

The applicant again appealed to the Court of Appeal of Amsterdam,

which, also on 15 June 1983, quashed this decision of the President

also because it had been insufficiently demonstrated that the parties

had intended to submit their dispute to arbitration. However, since

the Court did not decide on the question raised by the applicant

whether he was either obliged to or entitled to have the dispute with

the building company decided by arbitration, the applicant appealed to

the Supreme Court.

However, on 6 January 1984, the Supreme Court rejected this appeal.

The Court found that the applicant could not be considered to have an

interest, since the required finding would not have resulted in a

different outcome.

Since his lawyer apparently failed to submit certain essential

documents to the Supreme Court, the applicant requested revision, but

this request was declared inadmissible on 30 March 1984.

A request for revision of this decision was declared inadmissible on

15 June 1984.

It appears that on 3 October 1984, the Regional Court of Utrecht

declared that the arbitral decision of 17 August 1981 was null and

void and decided that the applicant's damages resulting from the

arbitration proceedings be compensated by the building company. The

court further decided on the claim by the building company on the

applicant.

Meanwhile, the applicant had introduced summary proceedings before the

President of the Regional Court of Amsterdam requesting reimbursement

from the building company. However, this request was refused on

10 March 1983. An appeal against this decision was rejected by the

Court of Appeal of Amsterdam on 8 December 1983. The applicant then

appealed to the Supreme Court.

On 1 February 1985, the Supreme Court rejected the applicant's

complaint against the decision of the Court of Appeal of Amsterdam of

8 December 1983.

It appears that in the meantime the applicant had also introduced a

complaint with the Supervisory Board of the Bar Association (Raad van

Toezicht der Orde van Advocaten) of Groningen against the lawyer who

had been representing him.

However, on 7 October 1983, the Board rejected the applicant's

complaints and on 12 December 1983 fixed the fees to be paid by the

applicant on the basis of the Decree on Fees in civil matters (Besluit

tarieven in burgerlijke zaken). The President of the Regional Court

of Groningen decided to authorise the execution of the lawyer's claim

for fees on 5 March 1984, despite a request to the contrary by the

applicant, who invoked Article 6, para. 1 (Art. 6-1) of the Convention.

COMPLAINTS

The applicant complains, inter alia, that the Dutch courts did not

decide the question whether he was entitled or obliged to submit his

case to arbitration. He alleges that the courts thus did not

determine his civil rights and obligations, contrary to the

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

The applicant further complains about the proceedings before the

Supervisory Board of the Bar Association, concerning various

complaints about his lawyer. The Board fixed the fees to be paid by

the applicant at a certain amount, and the President of the Regional

Court of Groningen on 5 March 1984 authorised the execution of this

decision. The applicant claims that the proceedings concerned the

determination of his civil rights and obligations and that the

president failed to take his submissions under Article 6 para. 1

(Art. 6-1) of the Convention into account. He claims that the

proceedings before the Supervisory Board of the Bar Association were

not in accordance with the requirements of Article 6 para. 1

(Art. 6-1) of the Convention.

THE LAW

1. The applicant has complained that the Dutch courts did not

decide the question whether he was entitled to or, alternatively,

obliged to submit his case to arbitration. He has invoked Article 6

para. 1 (Art. 6-1) of the Convention, which reads, inter alia,

"In the determination of his civil rights and obligations ...,

everyone is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by law..."

The Commission observes that the Court of Appeal of Amsterdam on

15 June 1983 decided not to authorise the execution of the arbitral

decision in the applicant's case because it had not sufficiently been

demonstrated that the parties had intended to submit their dispute to

arbitration.

The Commission is of the opinion that the Court, by not deciding

whether the applicant could have had his case decided by arbitration,

did not interfere with any right of the applicant under Article 6

para. 1 (Art. 6-1) of the Convention.

It follows that this part of the applicant must be rejected as being

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 proceedings

concerning his complaints about his lawyer and the fees charged by the

latter before the Supervisory Board of the Bar Association did not

meet the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.

Insofar as the applicant's complaint concerns the proceedings against

his lawyer, the Commission recalls that the Convention does not

guarantee the right to institute criminal proceedings against a third

person. Nor does the Convention guarantee a right to institute

disciplinary proceedings against a third person. This aspect of the

complaint is therefore incompatible ratione materiae with the

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

of the Convention.

With regard to the applicant's complaint about the fixing of his

lawyer's fees by the Supervisory Board of the Bar Association, the

Commission notes that the applicant did not introduce an appeal

(verzet) against the decision of the President of the Regional Court

of Groningen to authorise the execution of the decision by the

Supervisory Board. Consequently, the applicant has not, with regard

to this complaint, complied with the condition as to the exhaustion of

domestic remedies and this part of the application must therefore be

rejected under Article 27 para. 3 (Art. 27-3) 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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B. v. THE NETHERLANDS

B. v. THE NETHERLANDS

LEXI