SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48086/99 by Robertus A.H. BEUMER against the Netherlands

The European Court of Human Rights (Second Section) , sitting on 7 May 2002 as a Chamber composed of

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

Having regard to the above application lodged on 10 March 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Robertus A.H. Beumer, is a Dutch national, who was born in 1958 and lives in Amersfoort. He was represented before the Court by Mr A.C.R. Molenaar, a lawyer practising in Amstelveen.

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

Proceedings on the applicant’s request for incapacity benefits

On 16 August 1994, the applicant applied for social security benefits for an incapacity to work under the General Labour Disability Act ( Algemene Arbeidsongeschiktheidswet ; “AAW”). On 16 February 1995, the New General Occupational Association ( Nieuwe algemene bedrijfsvereniging ; “NAB”) rejected his request. On 17 March 1995, the applicant’s lawyer filed an appeal with the Administrative Law Division of the Utrecht Regional Court ( arrondissementsrechtbank ).

On 27 April 1995, the Registrar to the Utrecht Regional Court informed the applicant’s lawyer that the appeal could only be examined after payment of registration fees amounting to 50 Netherlands Guilders (NLG). On 12 May 1995, the applicant paid these fees, which were received by the Regional Court on 19 May 1995.

On 11 August 1995, the Utrecht Regional Court requested the NAB to submit its response to the applicant’s appeal, as well as documents relating to the case. It sent a reminder to the NAB on 12 September 1995.

On 14 September 1995, as he had not received any news from the Regional Court since 27 April 1995, the applicant’s lawyer requested information from that court about the state of affairs. On the same day, the Regional Court granted a request filed by the NAB to be allowed more time for the submission of the documents which the court had requested.

On 5 October 1995, the applicant submitted to the Regional Court a report from a psychiatrist, Mr M., according to which the applicant was incapacitated for work and that the reasons for his incapacity had existed since birth.

On 13 October 1995, the NAB filed a second request with the Regional Court for a postponement of the submission of the documents requested. The court granted this request. The NAB filed a third request for postponement on 14 November 1995.

As he had still received no reply from the Regional Court, the applicant’s lawyer sent a further request for information on 30 November 1995.

On 15 December 1995, the NAB filed a fourth request for postponement with the Regional Court. On 18 December 1995, the court informed the NAB that a postponement of four weeks had been granted, but that no more would be granted. In the absence of any submissions from the NAB, the Regional Court would proceed with the examination of the applicant’s case.

On 8 January 1996, the NAB submitted its response to the applicant’s appeal as well as a number of documents. The Regional Court transmitted these submissions to the applicant’s lawyer on 11 January 1996.

On 24 January 1996, the Regional Court commenced its examination. On the basis of preliminary conclusions reached, it requested the NAB on 20 June 1996 to provide further information and submissions on the merits of the case. On 16 July 1996, the NAB requested a postponement for these submissions.

On 18 July 1996, the Regional Court transmitted a copy of the report of Mr M. to the NAB. On 12 August 1996, the NAB submitted further documents to the Regional Court as well as a reaction to Mr M.’s report from a social security medical officer. These submissions were transmitted to the applicant on 28 August 1996. The applicant replied to these submissions on 13 September 1996. His response was transmitted to the NAB on 3 October 1996.

On 2 December 1996, the Regional Court requested the NAB to explain why it had considered itself competent to determine the applicant’s request of 7 September 1994 rather than to transmit it to the Occupational Association for the Consumer Meat Industry ( Bedrijfsvereniging voor het Slagers- en Vleeswarenbedrijf, de Groothandel in Vlees en de Pluimveeslachterijen ). The NAB was requested to submit its answer within four weeks. On 20 December 1996, the NAB requested an extension of the time-limit fixed for the submission of its answer.

On 16 January 1997, the applicant filed further documents with the Regional Court. These were transmitted to the NAB on 21 January 1997.

On 30 January 1997, the NAB informed the Regional Court that, although this could not be determined with certainty, it was very likely that the applicant had in fact been insured under the AAW with the Occupational Association for the Consumer Meat Industry and that it could no longer be traced why his request for AAW benefits had not been transmitted to this Occupational Association. The NAB noted in addition that in the decision of 16 February 1995 no adequate reply had been given to the applicant’s request for benefits, in that the applicant claimed to have been incapacitated as from birth, whereas the decision of 16 February 1995 only concerned a period starting on 29 May 1986.

On 4 February 1997, the Regional Court transmitted the further submissions of the NAB to the applicant’s lawyer.

On 24 February 1997, the Regional Court informed the applicant’s lawyer that the preliminary examination had now been completed and that, in the court’s view, the case was now ready for decision. The Regional Court asked whether the parties could agree to a determination of the appeal without a hearing, in accordance with Article 8:57 of the General Administrative Law Act ( Algemene Wet Bestuursrecht ).

On 25 February 1997, the applicant’s lawyer informed the Regional Court that he wished to have a hearing. The applicant’s lawyer further drew the court’s attention to the fact that the case had now been pending for two years before the Regional Court and, referring to the case-law of the Convention organs under Article 6 § 1 of the Convention, argued that it was unlikely that such a duration, for a mere jurisdictional decision, was compatible with the “reasonable time” requirement of that Convention provision.

On 1 March 1997, the National Institute for Social Insurances ( Landelijk Instituut Sociale Verzekeringen ; “LISV”) replaced the NAB.

On 8 April 1997, the Regional Court informed the applicant’s lawyer that a hearing had been scheduled for 6 May 1997 at 11.10 a.m. On 9 April 1997, the applicant’s lawyer requested a postponement of the hearing as he had to appear before a different Regional Court in another case on the same day at around the same time.

Confirming an agreement reached over the telephone on 14 April 1997, the Regional Court informed the applicant’s representative on 25 April 1997 that the hearing scheduled for 6 May 1997 would proceed as planned. On 1 May 1997, the applicant’s lawyer informed the Regional Court of the name of a colleague who would represent the applicant at the hearing. The hearing before the Regional Court in the applicant’s case was held on 6 May 1997.

In its decision of 13 June 1997, the Regional Court held that the decision of 16 February 1995 failed to give an adequate reply to the applicant’s request for AAW benefits on the basis of an incapacity to work from birth, as the decision was based on an incapacity to work as from 29 May 1986. It further held that the NAB had not been competent to determine the applicant’s request. This should have been done by the Occupational Association for the Consumer Meat Industry. Consequently, the Regional Court quashed the decision of 16 February 1995, ordered the LISV to take a new decision and to reimburse the registration fees paid by the applicant to it. Costs were also ordered against the LISV.

On 16 July 1997, the applicant filed an appeal with the Central Appeals Tribunal ( Centrale Raad van Beroep ), requesting the Central Appeals Tribunal to quash the decision of 13 June 1997 and to award the applicant, as from 1 October 1976, social security benefits on the basis of an 80-100% incapacity to work.

On 18 July 1997, the LISV also filed an appeal against the decision of 13 June 1997 with the Central Appeals Tribunal. However, by letter of 27 August 1997, the LISV informed the applicant’s lawyer that it had decided to withdraw its appeal and that the applicant’s case-file had been transmitted to the Occupational Association for the Consumer Meat Industry for a new decision on the applicant’s request for benefits for his incapacity to work.

On 18 September 1997, the Central Appeals Tribunal informed the applicant’s lawyer that, to date, he had not submitted any grounds for the appeal that he had lodged. He was invited to remedy this within four weeks.

On 14 October 1997, the applicant’s lawyer submitted his grounds of appeal to the Central Appeals Tribunal, including a reference to a letter of 26 September 1997 in which the Occupational Association for the Consumer Meat Industry had stated that it could not be excluded that it would conclude that it was not competent to determine the applicant’s request for AAW benefits. These grounds of appeal were transmitted to the LISV on 3 November 1997.

On 24 December 1997, the LISV submitted its response to the applicant’s appeal, which was transmitted to the applicant’s lawyer on 7 January 1998.

On 17 March 1998, the applicant’s lawyer requested information from the administration of the Occupational Association for the Consumer Meat Industry about the applicant’s request for benefits. On 5 May 1998, the administration office informed the applicant’s lawyer that, given the appeal apparently lodged against the decision of 13 June 1997 and pending the outcome of that appeal, it was unable to take a new decision on the applicant’s request. On 13 May 1998, the applicant’s lawyer transmitted a copy of that letter to the Central Appeals Tribunal, requesting that it be included in the case-file.

On 22 September 1998, the Central Appeals Tribunal informed the parties that a hearing had been scheduled for 28 October 1998.

In its decision of 25 November 1998, following the hearing held on 28 October 1998, the Central Appeals Tribunal upheld the decision of 13 June 1997. It did, however, partially amend the reasoning to the effect that the LISV should first determine which organ was in fact competent to decide on the applicant’s request. On the basis of the applicant’s case-file, the Central Appeals Tribunal held that, contrary to the finding of the Regional Court, this point remained unclear.

On 26 May 1999, with reference to a previous letter of 21 December 1997, the LISV informed the applicant’s lawyer that, after an investigation, the competent organ to determine the applicant’s request had been identified, namely GAK Nederland BV .

By decision of 21 July 1999, GAK Nederland BV granted the applicant, as from 16 August 1993, benefits on the basis of an 80-100% incapacity to work, the arrears amounting to a net sum of NLG 64,333.47 (€ 29,193.26). On 20 September 1999, the applicant was further awarded NLG 23,484.74 (€ 10,656.91) in statutory interest on the arrears.

Proceedings on the applicant’s request for compensation

On 22 June 2000, the applicant filed a claim for compensation with the Joint Administration Office ( Gemeenschappelijk Administratiekantoor - “GAK”) for damages suffered as a result of an inaccurate medical report of 13 December 1994 provided by the social security medical expert Dr S. The opinion expressed by Dr S. was different from that expressed by Dr H., also a social security medical expert, in a report dated 23 June 1999. The applicant argued that, as a result of the report by Dr S., he had had to wait for four and a half years for the decision awarding him benefits for an incapacity to work. He claimed NLG 26,250 (€ 12,025.18) for non ‑ pecuniary damages, and NLG 2,500 (€ 1,134.45) for material damages as he had had to sell a longcase clock for less than its true value in order to pay some of his debts.

On 7 September 2000, the GAK informed the applicant that he was ineligible for compensation. The applicant’s objection against this decision was rejected by the GAK on 5 January 2001.

The applicant’s subsequent appeal is currently pending before the Groningen Regional Court.

THE LAW

The applicant’s complaint relates to the length of the proceedings, which began on 16 August 1994, when the applicant applied for AAW benefits and ended on 21 July 1999, when he was awarded benefits under the AAW. They therefore lasted slightly more than four years and eleven months.

The Government submit that, as the proceedings on the applicant’s claim for compensation are currently pending before the Groningen Regional Court, domestic remedies have not yet been exhausted, as required by Article 35 § 1 of the Convention, since these proceedings concern the subject matter of the present application. Relying on the Court’s findings in its decision on admissibility of 14 March 2000 in the case of Sassen v. the Netherlands (no. 51013/99), the Government further submit that the applicant failed to exhaust domestic remedies in not seeking a provisional remedy in the form of an advance payment or in the form of expedited proceedings under Article 8:52 of the General Administrative Law Act. Furthermore, although the applicant complained in general terms on a few occasions about the length of time the authorities were taking to deal with his case, it was only once – in a letter of 25 February 1997 – that he relied directly on the reasonable time requirement of Article 6 § 1 of the Convention.

The applicant submits that he has complied with the exhaustion requirement referred to in Article 35 § 1 of the Convention. He points out in the first place that the present application and the domestic proceedings on his claim for compensation are based on completely different grounds. Secondly, even in the absence of any complaints made by him to the domestic authorities on this point, it was incumbent on the authorities dealing with his case to determine the dispute within a reasonable time. He further submits that, given the fact that it was uncertain which Occupational Association was competent to handle the applicant’s request for benefits, attempts aimed at obtaining a provisional decision were bound to fail.

Recalling the relevant principles as to exhaustion of domestic remedies as set out in, inter alia , the Court’s judgment of 28 July 1999 in the case of Selmouni v. France (no. 25803/94, §§ 74-77, ECHR 1999-V), the Court observes that the applicant had complained on several occasions in substance about the length of the proceedings on his request for benefits. The Court further accepts that the subject matter of the present application is based on different facts from those currently at issue in the domestic compensation proceedings. Finally, given the fact that it was uncertain until 26 May 1999 which social security organ was competent to deal with the applicant’s request for benefits, together with the fact that it was apparently difficult to obtain the relevant documents from the social security authorities concerned which were necessary to determine the question of competence, the Court is not convinced by the Government’s argument that it was possible for the applicant to seek a provisional remedy under the General Administrative Law Act.

The Court is therefore satisfied that the applicant has exhausted domestic remedies as required by Article 35 § 1 of the Convention.

As regards the substance of the case, the applicant contends that the length of the proceedings on his request for benefits was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject this contention.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President