FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33719/96 by HENKEL NEDERLAND B.V. against the Netherlands

The European Court of Human Rights (First Section) , sitting on 16 January 2001 as a Chamber composed of

Mrs E. Palm , President , Mrs W. Thomassen , Mr L. Ferrari Bravo , Mr C. Bîrsan , Mr J. Casadevall , Mr B. Zupančič , Mr T. Panţîru , judges ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 14 June 1996 and registered on 8 November 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Commission’s decision of 1 July 1998 to communicate the application to the respondent Government,

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

Having deliberated, decides as follows:

THE FACTS

The applicant is a limited liability company ( besloten vennootschap met beperkte aansprakelijkheid , “B.V.”) having its registered seat in Nieuwegein, the Netherlands. It is represented before the Court by Mr G.J.H. van Hoof, a lawyer and professor of International Law. The respondent Government are represented by their Agent, Mr R. Böcker, of the Netherlands Ministry of Foreign Affairs.

A. The circumstances of the case

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

On 26 February 1986, the limited liability company Viho B.V. instituted civil proceedings before the Regional Court ( Arrondissementsrechtbank ) of Amsterdam against the applicant company for alleged breach of contract ( wanprestatie ) claiming, inter alia , damages to an amount of 60,504.60 NLG (Netherlands guilders).

On 12 March 1986, Viho B.V. submitted its statement of claim ( conclusie van eis ). In its statement of defence ( conclusie van antwoord ), submitted on 2 July 1986, the applicant company contested Viho B.V.’s claim.

By interim judgment of 20 August 1986, the Regional Court ordered the parties’ appearance ( comparitie van partijen ) at a hearing scheduled for 13 October 1986 in order to clarify certain issues and to examine the possibilities for a settlement ( minnelijke schikking ).

In its interlocutory judgment of 13 October 1986, following a hearing held on the same day, the Regional Court invited the applicant company to prove allegations made. Pursuant to this invitation, two witnesses for the applicant company were heard ( enquête ) before the Regional Court on 8 December 1986. After this taking of evidence the Regional Court scheduled the case for 7 January 1987 to allow Viho B.V. to state whether it wished to submit evidence to the contrary ( uitlating contra-enquête ). This time-limit was prolonged several times.

By letter of 3 December 1987, Viho B.V.’s lawyer informed the Regional Court that Viho B.V. did not wish to submit evidence to the contrary and requested the court to proceed with the case.

The applicant company submitted its further conclusions as to these points of evidence ( conclusie na enquête ) on 30 March 1988, to which Viho B.V. responded on 31 August 1988. In its submissions of 31 August 1988, Viho B.V. further sought to amend its initial claim for damages by increasing it to NLG 160,504.60.

In its interlocutory judgment of 1 March 1989, the Regional Court noted that Viho B.V. had failed to submit two of the three exhibits it had announced in connection with the amendment of its claim. After having considered the parties’ written submissions after the taking of evidence on 8 December 1986, the Regional Court further held that the applicant company had failed to prove that it had been discharged by Viho B.V. of its contractual obligations and invited Viho B.V. to substantiate certain claims and scheduled the case for 29 March 1989.

Viho B.V. submitted the substantiation requested on 23 May 1990, in which it argued that the breach of contract had caused direct damages amounting to NLG 170,386 and additional consequential damages ( gevolgschade ) amounting to NLG 12,210,000.

In its written reply submitted to the Regional Court on 20 February 1991, the applicant company objected to the increase of the claim. In its interim decision of 20 March 1991, the Regional Court accepted an increase of the initial claim up to an amount of NLG 170,386 but refused to take into consideration Viho B.V.’s additional claim for consequential damages.

The applicant company made further written submissions to the Regional Court on 24 April 1991, as did Viho B.V. on 18 December 1991.

In its judgment of 22 July 1992, the Regional Court found against Viho B.V. On 20 October 1992, Viho B.V. filed an appeal with the Court of Appeal ( Gerechtshof ) of Amsterdam. It was not before 9 February 1995 that Viho B.V. submitted its objections against the judgment of 22 July 1992. The applicant company’s reply was submitted to the Court of Appeal on 4 May 1995.

In its judgment of 21 December 1995, the Court of Appeal quashed the judgment of 22 July 1992 and found against the applicant company.

In the applicant company’s reply of 4 May 1995 to Viho B.V.’s objections to the judgment of 22 July 1992, the applicant company had argued that Viho B.V. had violated principles flowing from rules of proper procedure by its failure to comply with the obligation of substantiation and had caused the proceedings to exceed the reasonable time requirement of Article 6 of the Convention, inter alia , by having submitted its objections against the judgment of 22 July 1992 more than two years after having issued the appeal summons.

In its judgment of 21 December 1995, the Court of Appeal construed the applicant company’s submissions as meaning that Viho B.V.’s appeal should be declared inadmissible on the ground that it had unduly prolonged the proceedings.  It then rejected this argument. It held that Viho B.V.’s appeal had been lodged within the applicable time-limit.  Moreover, the applicant company could have itself limited the delay by asking the Court to set Viho B.V. a peremptory time-limit ( peremptoirstelling ), of which possibility it had apparently not availed itself.

The applicant company subsequently sought legal advice as to the chances of success of an appeal on points of law to the Supreme Court ( Hoge Raad ). By letter of 7 March 1996, Mr H., a lawyer practising in The Hague, advised that such an appeal was likely to fail.

Insofar as the applicant company considered raising a complaint in respect of the length of the proceedings, Mr H. considered that it was doubtful that the Supreme Court would accept such a complaint under Article 6 § 1 of the Convention. He noted that the Court of Appeal had rejected the argument that Viho B.V.’s appeal should be declared inadmissible on grounds of a finding that it had unduly prolonged the proceedings, pointing out that the applicant company could have sought a peremptory time-limit. Mr H. further referred to the Supreme Court’s case-law according to which this provision of the Convention only created obligations for Contracting States and had no horizontal application between private parties.

B. Relevant domestic law and practice

Pursuant to Article 134 of the Code of Civil Procedure ( Wetboek van Burgerlijke Rechtsvordering ) a claimant may amend the claim submitted to the civil courts throughout the proceedings. The adversary party may, however, object to such an amendment if, inter alia , this would cause an undue delay in the proceedings.

Article 143 of the Code of Civil Procedure states that the judge shall determine time-limits for written submissions and that, where the parties agree on this point, the judge shall respect their wishes unless this would lead to an unreasonable delay. Where one of the parties seeks an extension of a given time-limit, which is considered unacceptable by the court or the opposing party, the court may decide to set a peremptory time-limit, i.e. a final time-limit.

COMPLAINT

The applicant company complains under Article 6 § 1 of the Convention that it did not receive a fair hearing within a reasonable time in that the Court of Appeal condoned the lack of diligence on the part of Viho B.V. in the proceedings at issue and, moreover, held that the applicant company bore a certain responsibility in this respect.

THE LAW

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

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

The Government submit that the applicant company has not exhausted the available effective domestic remedies. Although the applicant company complained about Viho B.V.’s tardiness in submitting to the Court of Appeal its objections against the judgment of the Regional Court, it failed to indicate to the Court of Appeal the consequence which it considered followed from Viho B.V.’s behaviour.

The Government further submit that the applicant company never lodged an appeal on points of law to the Supreme Court. Although admittedly the lawyer who advised the applicant company stated that the question of whether any blame attached to the Court of Appeal could not be raised in proceedings against Viho B.V., the Government failed to see why that should be the case.

In the alternative, the Government argue that the application was manifestly ill ‑ founded since the applicant company had failed to request the Court of Appeal to set Viho B.V. a peremptory time-limit for the submission of its objections to the first-instance judgment.

In the submission of the applicant company, its argument before the Court of Appeal that Viho B.V.’s conduct was incompatible with Netherlands procedural law and with the requirements which flowed from the principle of a fair trial within a reasonable time, as enshrined in Article 6 of the Convention, could not in reason be construed otherwise as an argument to the effect that Viho’s appeal should be dismissed as inadmissible.

The Court recalls that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity –, that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (cf., Selmouni v. France [GC], no. 25803/94, 28.7.99, § 74, to be reported in ECHR-V).

Apart from the failure on the part of the applicant company itself to ask that Viho B.V. be given a peremptory time-limit in order to expedite the proceedings at issue, the Court observes that the applicant company failed to lodge an appeal on points of law with the Supreme Court. Yet as a matter of Netherlands law, it would have been possible for the applicant company to invoke Article 6 of the Convention before the Supreme Court and thus to obtain a ruling whether or not the trial courts had fallen short of its obligations under Article 6 of the Convention. The Court therefore finds that the applicant company did have an effective domestic remedy at its disposal of which it did not avail itself.

It is true that there may be special circumstances which absolve applicants from the obligation to exhaust the domestic remedies at their disposal (cf. Selmouni v. France , loc. cit., § 75). However, the mere fact that the applicant company was persuaded by a lawyer that an appeal on points of law was likely to fail does not constitute such “special circumstances”. In

this respect, the Court recalls that the effectiveness of a remedy does not depend on the certainty of a favourable outcome and that, even if prospects of success appear remote, this does not detract from a remedy’s effectiveness (see, mutatis mutandis , the Murray v. the United Kingdom judgment of 28 October 1998, Series A no. 300-A, § 100).

In these circumstances, the Court finds that domestic remedies have not been exhausted, as required by Article 35 § 1 of the Convention and that the application must therefore be declared inadmissible in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Elisabeth Palm Registrar President