FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 51392/99 by İlyas and Gülşen GÖÇER against the Netherlands

The European Court of Human Rights (First Section) , sitting on 12 April 2001 as a Chamber composed of

Mr L. Ferrari Bravo , President , Mrs W. Thomassen , Mr Gaukur Jörundsson , Mr R. Türmen , Mr C. Bîrsan , Mr J. Casadevall , Mr R. Maruste ,, judges ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced on 25 March 1999 and registered on 29 September 1999,

Having deliberated, decides as follows:

THE FACTS

The applicants are Turkish national s. They are a married couple and live in Karaman (Turkey).

A. The circumstances of the case

In 1974, the first applicant moved from Turkey to the Netherlands where he was employed as a dock worker until 24 September 1984, when he stopped working for reasons of certain mental problems apparently related to his difficulties in coping with the death of his first wife in 1981.

After having received sickness benefits for the maximum period, he was granted combined disability benefits as from 21 September 1985 under the General Labour Disablement Benefits Act ( Algemene Arbeidsongeschiktheidswet ; “AAW”) and the Labour Disablement Insurance Act ( Wet op de Arbeidsongeschiktheidsverzekering ; “WAO”) on 23 September 1985 on the basis of a finding of being incapacitated for work for 80–100%.

At some unspecified point in time in 1986, the applicant and his family returned permanently to Turkey, retaining his right to benefits under the AAW and WAO.

Proceedings on the applicant’s benefits under the AAW and WAO

On 3 November 1993, on the basis of medical examinations of the first applicant that had been carried out on 3 August 1993 by an orthopaedic surgeon, and on 4 August 1993 by a social insurance medical specialist and a psychiatrist, the National Institute for Social Insurances ( Landelijk instituut sociale verzekeringen ; “LISV”) withdrew the first applicant’s benefits under the AAW and WAO as from 14 April 1994, on the basis of a finding that his incapacity for work had diminished to less than 25% for the purposes of the AAW and to less than 15% for the purposes of the WAO. On 30 November 1993, the first applicant filed an appeal against this decision with the Hague Regional Court ( Arrondissementsrechtbank ).

Following a hearing held on 12 July 1995, the Hague Regional Court rejected this appeal on 16 August 1995. The first applicant filed a further appeal with the Central Appeal Tribunal ( Centrale Raad van Beroep ).

The first applicant submitted his written grounds for appeal to the Central Appeals Tribunal on 22 September 1995, to which the LISV responded in writing on 13 December 1995.

On 26 November 1997, a hearing was held before the Central Appeals Tribunal. As it considered that the investigation into the first applicant’s capacity for work had been incomplete, it decided to seek further information.

By letters of 10 and 17 February 1998, the President of the Central Appeals Tribunal put a number of questions to the psychiatrist Dr. A.K. who had examined the first applicant on 4 August 1993 upon the request of the former General Medical Service ( Gemeenschappelijke Medische Dienst ). Dr. A.K. submitted his reply in the form of a report on 5 March 1998. Both the LISV and the first applicant availed themselves of the opportunity to submit comments on this report.

By letter of 13 May 1998, the Central Appeals Tribunal put a number of additional questions to Dr. A.K., who replied on 7 July 1998. The first applicant filed further written submissions to the Central Appeals Tribunal on 4 November 1998. On 18 November 1998, a second hearing was held before the Central Appeals Tribunal in the course of which the applicant complained that, given the duration of the proceedings, the reasonable time requirement under Article 6 § 1 of the Convention had been disrespected.

In its decision of 16 December 1998, the Central Appeals Tribunal rejected the first applicant’s appeal and upheld the decision of 16 August 1995. It agreed with the LISV and the Regional Court that, as regards the first applicant, there were no somatic limitations of such a nature that on that ground he should be considered as being unfit to resume his work of dock worker, i.e. the work that he had done before he was declared incapacitated. As to the question whether there were limitations of a psychiatric nature, the Central Appeals Tribunal accepted that the applicant was suffering from a psychiatric disorder entailing mainly minor limitations in his social functioning. However, given the nature of the applicant’s work, it held that this disorder was not of such nature or gravity that, on that ground, he should be regarded as being unfit for that kind of work.

Insofar as the applicant had complained that his rights under Article 6 § 1 of the Convention had been disrespected in that the proceedings before the Central Appeals Tribunal had exceeded a reasonable time, the Central Appeals Tribunal held that a failure to respect the reasonable time requirement under this provision could not result in granting social security claims that are not in accordance with the applicable statutory rules and that a claim for compensation for alleged damages suffered as a result of a failure to respect this requirement under Article 6 § 1 of the Convention should be filed with the civil judge.

Proceedings on the first applicant’s Netherlands residence title

On 19 June 1989, the first applicant applied for a prolongation of his residence permit, which was rejected on 6 July 1989 by the Head of the local police in Rotterdam. The applicant’s request for revision ( herziening ) was rejected by the State Secretary of Justice ( Staatssecretaris van Justitie ) on 24 January 1991.

The first applicant’s subsequent appeal was rejected by the then Judicial Division of the Council of State ( Afdeling Rechtspraak van de Raad van State ) on 19 August 1992. The Judicial Division noted that, pursuant to Article 14 § 2 of the Aliens Act ( Vreemdelingenwet ), a residence permit becomes void where the holder takes up permanent residence abroad. It found it established that the first applicant had resided more than three years in Turkey and considered that he had not submitted any facts or circumstances on the basis of which it should be held that, notwithstanding his lengthy stay in Turkey, he had maintained his main residence in the Netherlands.

COMPLAINTS

The applicants complain under Article 6 § 1 of the Convention that the proceedings concerning the withdrawal of the first applicant’s social security benefits exceeded a reasonable time.

The applicants complain that the withdrawal of the first applicant’s social security benefits is contrary to their rights under Article 1 of Protocol No. 1.

The applicants complain under Article 14 in conjunction with Article 6 of the Convention that they have been discriminated against by the Netherlands authorities on the basis of their nationality.

The first applicant also complains that the refusal to prolong his residence permit is contrary to his rights under Article 1 of Protocol No. 7.

THE LAW

1. The applicants complain under Article 6 § 1 of the Convention that the proceedings concerning the withdrawal of the first applicant’s social security benefits exceeded a reasonable time.

Article 6 § 1 of the Convention, insofar as relevant, reads:

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

The Court considers that this complaint must be brought to the notice of the Netherlands Government in accordance with Rule 54 § 3(b) of the Rules of Court, inviting the Government to submit written observations on the admissibility and merits of this complaint.

2. The applicants further complain that the withdrawal of the first applicant’s social security benefits is contrary to their rights under Article 1 of Protocol No. 1, which provision, insofar as relevant 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 Court recalls that the right to emergency assistance, insofar as provided for in the applicable domestic legislation, is a pecuniary right falling within the scope of Article 1 of Protocol No. 1 (cf. Gaygusuz v. Austria judgment of 16 September 1996, Reports of Judgments and Decisions 1996 IV, p. 1142, § 41) and considers that, therefore, the applicant’s right to benefits for incapacity for work can be regarded as falling within the scope of this provision.

However, where it has been found established, on the basis of and in conformity with the applicable domestic rules, that the causes of an incapacity for work, on which ground social security benefits were granted, no longer exist, the Court cannot find it to be contrary to Article 1 of Protocol No. 1 that such benefits are consequently withdrawn; this being in the public interest.

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

3. The applicants complain under Article 14 in conjunction with Article 6 of the Convention that they have been discriminated against by the Netherlands authorities on the basis of their nationality.

The Court notes that this complaint has remained fully unsubstantiated and has found no indication in the case-file that the applicants, in the proceedings concerned, have been discriminated against by the Netherlands authorities in respect of their rights guaranteed by Article 6 of the Convention.

It follows that this complaint must also be rejected for being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4. The first applicant complains that the refusal to prolong his residence permit is contrary to his rights under Article 1 of Protocol No. 7.

The Court notes that Protocol No. 7 to the Convention has not been ratified by the Netherlands. This part of the application is therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaint that the proceedings on the withdrawal of the first applicant’s benefits for incapacity for work exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention; and

Declares inadmissible the remainder of the application.

Michael O’Boyle Luigi Ferrari Bravo Registrar President