SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48334/99 by Machiel J. POLMAN against the Netherlands

The European Court of Human Rights (Second Section), sitting on 24 June 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 16 February 1999,

Having regard to the partial decision of 9 July 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Machiel J. Polman, is a Netherlands national, who was born in 1958 and lives in Arnhem. He is represented before the Court by Mr J.H. Sassen, a lawyer practising in Arnhem.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 21 December 1995 the applicant’s ex-wife requested the Regional Court ( arrondissementsrechtbank ) of Arnhem to establish a maintenance arrangement ( alimentatievoorziening ) for herself and the two children born of their marriage. The Regional Court acceded to this request and ordered the applicant to pay monthly amounts of maintenance both to his children and his ex-wife. The applicant lodged an appeal with the Court of Appeal ( gerechtshof ) of Arnhem , which quashed the decision of the Regional Court and reduced the amount of the applicant’s maintenance obligations. As the applicant considered that the reasoning and calculations applied by the Court of Appeal were both incorrect and incomprehensible, he lodged an appeal on points of law ( beroep in cassatie ) with the Supreme Court ( Hoge Raad ).

In his advisory opinion of 15 May 1998, one of the advocates-general ( advocaten-generaal ) of the Supreme Court recommended that the appeal be dismissed. A reply to this opinion was sent to the Supreme Court by counsel for the applicant on 28 May 1998. According to a stamp placed on the reply, it was received on the same day.

The Supreme Court (civil-law division, Civiele Kamer ) rejected the appeal on 4 September 1998. The decision ( beschikking ) stated that the applicant’s ex-wife had requested the Supreme Court to reject the appeal and that the advisory opinion of the advocate-general had also proposed that the appeal be dismissed. The decision did not mention that the applicant, or counsel on his behalf, had replied to that opinion or that account had been taken of that reply. In dismissing the appeal, the Supreme Court referred to Article 101a of the Judiciary (Organisation) Act ( Wet op de Rechterlijke Organisatie ) according to which the Supreme Court, if it considered that a complaint did not provide grounds for overturning the impugned decision and did not require answers to questions of law in the interests of the unity or development of the law, could, when giving reasons for its decision, limit itself to that finding.

B. Relevant domestic law and practice

1. The possibility to submit a reply to the advisory opinion of the Procurator-General in civil proceedings

At the time relevant to the present case, Article 328 § 1 of the Code of Civil Procedure ( Wetboek van Burgerlijke Rechtsvordering , “CCP”) provided that neither the parties nor their representatives were allowed to address the court after the public prosecution service had presented its opinion (Article 328 § 1 in conjunction with Article 326 CCP). However, pursuant to Article 328 § 2, simple notes ( eenvoudige aantekeningen ) contesting facts, which the parties believed had been presented incorrectly by the public prosecution service, could be submitted to the President of the court by the parties or their representatives.

In a judgment of 28 March 1997, the Supreme Court held that it was free to take cognisance of comments submitted in response to the opinion issued by the public prosecution service by one of the parties unless this ran counter to the requirements of due process, seen also in the light of the interests of the other party ( Nederlandse Jurisprudentie (NJ) 1997, no. 581).

A similar reasoning was adopted by the Supreme Court in a judgment of 12 September 1997 (NJ 1998, no. 687), in which it held, with reference to the Court’s judgment in the case of Vermeulen v. Belgium (judgment of 20 February 1996, Reports of Judgments and Decisions 1996-I), as follows:

“... where Article 328 [of the Code of Civil Procedure] prevents parties from responding to the advisory opinion of the public prosecution service as they see fit, [this provision] should be deemed inapplicable as being incompatible with the provisions of Article 6 of the Convention, as interpreted in the case-law of the European Court of Human Rights (...). No restrictions other than those arising from due process, for instance in connection with the interests of the other party, apply to this document [i.e. the reply to the advisory opinion of the public prosecution service].”

In order to observe the principle of due process, the Supreme Court allowed a period of two weeks for the submission of the response to the advisory opinion of the public prosecution service.

On 1 January 2002 an amended Article 44 CCP entered into force, paragraph 3 of which gives parties the right to submit written comments in reply to the advisory opinion issued by the Procurator-General of the Supreme Court within two weeks of the transmission of the advisory opinion to them.

2. References in judgments and decisions of the Supreme Court to written comments submitted in reply to the advisory opinion of the Procurator-General

At the time of the decision in the present case, September 1998, the general practice of the Supreme Court was to mention in its judgment or decision that a reply to the advisory opinion had been submitted. This was established as general practice in an internal decision ( intern besluit ) of the civil-law division of the Supreme Court of 25 June 1992, but the practice existed even before that time. The internal decision was not published.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that the Supreme Court failed to indicate whether or not it had taken account of his response to the advisory opinion of the advocate-general.

THE LAW

The applicant complained that the principle of equality of arms had been breached in that it did not appear from the decision of the Supreme Court that that court had taken into account his response to the advocate-general’s advisory opinion in its determination of his appeal on points of law. Indeed, the judgment did not even mention that his response had been received. According to the applicant, this constituted a breach of Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

The Government submitted a letter received from the Registrar of the Supreme Court, according to which the applicant’s reply had been received by that court – as could be seen from the stamp placed on it –, it had been included in the case file and the Supreme Court had taken cognisance of it. It was due to an oversight that, contrary to the standard practice as set out in the internal decision of the Supreme Court’s civil-law division of 25 June 1992, no mention of the reply had been made in the decision of 4 September 1998.

The Government argued that, despite this oversight, the applicant’s right to a fair hearing had not been infringed. In this connection they referred to the Court’s case-law according to which, firstly, the obligation under Article 6 § 1 of the Convention for courts to give reasons for their decisions cannot be understood as requiring a detailed answer to every argument and, secondly, in dismissing an appeal an appellate court may, in principle, simply endorse the reasons in the lower court’s decision (see Van de Hurk v. the Netherlands , judgment of 19 April 1994, Series A no. 288, p. 20, § 61, García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999-I). The applicant could have inferred from the decision of the Supreme Court the considerations that had led that court to reject his appeal, even though no mention was made of his reply to the advisory opinion.

The applicant called into question whether the internal decision of 25 June 1992, of which he had been unaware, applied to decisions in maintenance disputes. Not only had no mention of the reply to the advisory opinion been made in the present case, this had also not been done in a Supreme Court decision of 28 May 1999 in which the applicant’s representative had acted as counsel [1] . In fact, from the period prior to and including 1999, no decisions in maintenance disputes were known to contain the mention that a reply to the advisory opinion had been submitted.  It thus appeared that at least in maintenance cases coming before the Supreme Court, the general practice was not to make any mention of the receipt of a reply to the advisory opinion.

In any event, it did not automatically follow from the mere presence in the case file of the reply to the advisory opinion that the Supreme Court had taken cognisance of it. If such cognisance had indeed been taken, this fact might be expected to appear from the decision. Since the appeal in the present case had been rejected as ill-founded pursuant to Section 101a of the Judiciary (Organisation) Act, it was impossible to identify the substantive considerations that had led the Supreme Court to reach its decision.

The Court reiterates that the right to adversarial proceedings entails the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision. It is for this reason that the lack of opportunity for an applicant to reply to the advisory opinion of an independent member of the national legal service has been held to infringe the right to adversarial proceedings and thus Article 6 § 1 of the Convention (see, among other authorities, Vermeulen v. Belgium , cited above, p. 234, § 33; J.J. v. the Netherlands , judgment of 27 March 1998, Reports of Judgments and Decisions 1998-II, p. 613, § 43; and Göç v. Turkey [GC], no. 36590/97, § 55, ECHR 2002-V).

The Court notes that, although domestic law was at odds with the above-mentioned case-law, in practice the Supreme Court allowed appellants to submit a reply to the advisory opinion issued by a member of the public prosecution service. It is thus not in dispute that in the present case the applicant was provided with a copy of the advisory opinion and that written comments in reply were duly submitted on his behalf. From the stamp placed on the document containing the applicant’s reply, it is clear that it was received by the Supreme Court. Whilst it is true that the Supreme Court’s decision did not contain a mention to the effect that a reply had been submitted, this was, according to the letter of the Supreme Court’s Registrar to the Government, due to an oversight: the Registrar stated that the reply had been included in the case file and that the Supreme Court had taken cognisance of it.

The Court sees no reason to doubt this course of events and considers that this clerical error was not such as to affect the fairness of the proceedings at issue. The fact that the decision of the Supreme Court did not contain any reasoning expressly related to the issues raised in the reply to the advisory opinion cannot alter this finding since, as was also pointed out by the Government, Article 6 § 1 of the Convention does not require courts to give a detailed answer to every argument. Moreover, the right to a fair hearing cannot be considered as laying down formal requirements for the contents of the judgments and decisions issued of national courts.

In the light of the foregoing, the Court is satisfied that the civil proceedings at issue were fair.

It follows that this complaint must be rejected as being manifestly ill ‑ founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa Registrar President

[1] This case is currently pending before the Court ( Van Gemert v. the Netherlands , no. 54718/00).