SECOND SECTION

PARTIAL 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 9 July 2002 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mrs A. Mularoni , judges , and Mrs S. Dollé , Section Registrar ,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Machiel J. Polman, is a Dutch 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 applicant , 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, the advocate-general 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.

The Supreme Court (First Chamber) rejected the appeal on 4 September 1998. The judgment 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 judgment 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 judgment 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

According to Article 328 § 1 of the Code of Civil Procedure ( Wetboek van Burgerlijke Rechtsvordering ) neither the parties nor their representatives are allowed to address the court after the Procurator-General’s department has presented its opinion (Article 328 § 1 in conjunction with Article 326 of the Code of Civil Procedure). However, pursuant to Article 328 § 2, simple notes ( eenvoudige aantekeningen ) contesting facts which they believe have been presented incorrectly by the Procurator-General’s department may be submitted to the President of the court by the parties or their representatives.

Shortly after the Court’s judgment in the case of Borgers v. Belgium ( judgment of 30 October 1991, Series A no. 214-B) it became customary, in criminal proceedings, to give the accused the opportunity to respond to the advisory opinion issued by the Procurator-General or one of the advocates-general of the Supreme Court. Following an amendment to the Code of Criminal Procedure ( Wetboek van Strafvordering ), this practice is now set out in Article 439 of the Code of Criminal Procedure. According to Article 439 § 4, an appellant in an appeal on points of law in criminal proceedings may submit written comments in reply within two weeks after the transmission of the advisory opinion to him or her.

In respect of civil proceedings, the Supreme Court held in a judgment of 28 March 1997 that it was free to take cognisance of comments submitted in response to the opinion issued by the Procurator-General’s department by one of the parties unless this ran counter to the requirements of due process, seen also in 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 Procurator-General’s department 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 Prosecutor-General’s department].”

In order to observe the principle of due process, the Supreme Court allows a period of two weeks for the submission of the response to the advisory opinion of the Procurator-General’s department.

COMPLAINTS

1. The applicant complains 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.

2. Invoking the same provision, he also complains of a lack of reasoning in the Supreme Court’s judgment .

3. Finally, the applicant argues that, contrary to Article 13 and/or Article 6 of the Convention, he did not enjoy effective legal protection.

THE LAW

1. The applicant complains that the principle of equality of arms has been breached in that it did not appear from the judgment 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. In the opinion of the applicant, it was inherent in Article 6 that the text of a judicial decision should reflect that the proceedings which led to it had complied with the requirements of Article 6.

Article 6 § 1 of the Convention, in so far as relevant, reads as follows:

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

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant also complains that Article 6 § 1 of the Convention has been breached because the Supreme Court, applying Article 101a of the Judiciary (Organisation) Act, dismissed his appeal on points of law with summary reasoning, even though this appeal included the essential argument that the judgment of the Court of Appeal was fundamentally flawed in so far as it concerned the calculation of the applicant’s financial resources.

It is true that Article 6 requires a tribunal to state adequately the reasons on which its judgments are based. However, this requirement does not go so far as to require a detailed answer to every argument put forward; nor is the Court called upon to examine whether arguments are adequately met (see, for example, the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 20, § 61). The Court has even accepted that in dismissing an appeal an appellate court may, in principle, simply endorse the reasons in the lower court’s decision (see, among other authorities, García Ruiz v. Spain [GC], no. 30544/96, ECHR 1999-I; Kok v. the Netherlands (dec.), no. 43149/98, ECHR 2000-VI which concerns the application of Article 101a of the Judiciary (Organisation) Act).

The Court perceives no reason to reach a different conclusion in the circumstances of the present case. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant finally argues that he has been denied effective legal protection in breach of Article 13 and/or Article 6 of the Convention since the Court of Appeal based itself on incorrect premises and the Supreme Court dismissed his appeal on points of law in an unreasoned decision.

The Court reiterates that Article 13 of the Convention applies only in respect of grievances under the Convention which are arguable (see, for instance, the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52). In view of the fact that the Court has already declared inadmissible as being manifestly ill-founded the applicant’s same complaint under Article 6, it finds that he had no arguable claim of a violation of the Convention.

It follows that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the question whether the Supreme Court had regard to his response to the advisory opinion of the advocate-general to that court;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President