FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30937/96 by Herman Olivier ZOON against the Netherlands

The European Court of Human Rights (First Section) , sitting on 30 May 2000 as a Chamber composed of

Mr L. Ferrari Bravo, President ,

Mrs W. Thomassen,

Mr Gaukur Jörundsson,

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 26 January 1996 and registered on 2 April 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 Court’s partial decision of 12 January 1999,

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 is a Dutch national, born in 1950, and living in Calpe , Spain. He is represented before the Court by Mr G.H.J. Dolk , a lawyer practising in Rotterdam, the Netherlands.

A. The circumstances of the case

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

The applicant was working as a general practitioner in Dirksland , the Netherlands, when, on 1 February 1994, two Regional Public Health Inspectors ( Geneeskundig Inspecteurs van de Gezondheidszorg ) filed a complaint against him with the Board for the Adjudication in First Instance of Cases concerning the Medical Code of Practice of The Hague ( College voor de beslissing in eerste aanleg in zaken van het Medisch Tuchtrecht - hereinafter referred to as ‘Medical Disciplinary Board’). In the complaint it was alleged that the applicant had reserved for his own use opiates he had prescribed to patients, had administered medication for other than the usual purposes and had carried out surgical operations not customarily performed by general practitioners.

Following two hearings the Medical Disciplinary Board decided on 31 August 1994 that the complaints brought by the Inspectors were well-founded. The applicant was disqualified from practising medicine.

The applicant filed an appeal with the Hague Court of Appeal ( Gerechtshof ) which was rejected on 6 April 1995 after which the applicant lodged an appeal in cassation with the Supreme Court ( Hoge Raad ).

The Supreme Court examined the appeal on 8 September 1995. On 5 December 1995 the Advocate General ( Advocaat-Generaal ) at the Supreme Court submitted his advisory opinion proposing that the appeal in cassation be rejected. This advisory opinion was sent to the applicant’s representative the next day. Counsel for the applicant did not submit comments in reply to the opinion of the Advocate General.

The Supreme Court rejected the appeal in cassation on 19 January 1996.

B. Relevant domestic law and practice

The duties and position of the Procurator General’s department ( openbaar ministerie ) are defined in the Judiciary (Organisation) Act ( Wet op de rechterlijke organisatie ).

The Procurator General’s department consists of the Procurator General and advocates general at the Supreme Court, the procurators general and advocates general at the Courts of Appeal and the public prosecutors at the Regional and District Courts (Article 3 § 1 of the Judiciary (Organisation) Act). The advocates general at the Supreme Court act as deputies of the Procurator General at that court and are subordinate to him (Articles 3 § 2, 5a and 6 § 1).

The Procurator General’s department must be heard by the courts in so far as the law so prescribes (Article 4). In the instant case and at the relevant time, Article 96 § 3 of the Regulations Governing the Medical Code of Practice And The Resolution of Disputes ( Reglement medisch tuchtrecht en oplossing van geschillen ) provided for the hearing of the Procurator General. The advisory opinion of the Procurator General or an advocate general at the Supreme Court takes the form of a learned treatise containing references to relevant case-law and a recommendation, which is not binding on the Supreme Court, to uphold or reject points of appeal.

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. In the case law of the Supreme Court such “simple notes” have been defined as notes limited to the pointing out of obvious errors which should in all reasonableness be considered beyond discussion (see, for example, the Supreme Court decisions of 17 March 1989 and 4 October 1991, in Nederlandse Jurisprudentie (NJ) 1989, no. 475, and 1991, no. 820 respectively).

The Court’s judgment in the case of Borgers v. Belgium (judgment of 30 October 1991, Series A no. 214-B), and in particular its consequences for national practice, received considerable attention in Netherlands legal literature. In an interview published in Nederlands Juristen Blad (NJB) of 19 December 1991 (no. 45/46, pp. 1819-1820) the then Procurator General at the Supreme Court, J. Remmelink , stated that in his opinion the Borgers judgment, which concerned criminal proceedings, did not necessitate any changes to the practice of the civil division of the Supreme Court. In a reaction to this interview, J. de Boer argued that the Court’s reasoning in the Borgers judgment should be equally valid in civil proceedings (NJB 12 March 1992, no. 11, pp. 358-359).

Shortly after the Borgers judgment it became customary, in criminal proceedings, to give the accused the opportunity to respond to the advisory opinion issued by the Procurator General or advocates general at 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 cassation 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 22 September 1995 ( Rechtspraak van de Week 1995, no. 182 and NJ 1997, no. 418) that a second written reply to the Advocate General’s advisory opinion had to be set aside as it was contrary to the principle of due process to react to such an opinion twice.

In a case leading to a judgment of 28 March 1997 the Supreme Court considered 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 (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 the Supreme Court, referring to the Court’s judgment in the case of Vermeulen v. Belgium (judgment of 20 February 1996, Reports of Judgments and Decisions 1996-I), held that:

“… where Article 328 [of the Code of Civil Procedure] prevents parties from responding to the advisory opinion of the public prosecution department as they see fit, it 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 (cf. European Court, 20 February 1996, European Court Reports 1996-I, p. 224 ff ). 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 department].”

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

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that he was unable to respond to the advisory opinion of the Advocate General at the Supreme Court.

THE LAW

The applicant complains that in the proceedings before the Supreme Court he was unable to respond to the advisory opinion of the Advocate General. He invokes Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

“1. In the determination of his civil rights and obligations (…), everyone is entitled to a fair and public hearing (…) by [a] tribunal established by law. (…)”

The Government submit that no response to the Advocate General’s advisory opinion was in fact submitted to the Supreme Court on behalf of the applicant who had not, however, lacked any real opportunity to do so given that the advisory opinion had been sent to him on 6 December 1995 and the Supreme Court did not give judgment until 19 January 1996. The Government are of the opinion that in view of the Borgers judgment, the discussion of the consequences of this judgment in legal literature (including a defence of the position that the Borgers case should also apply in civil proceedings) as well as the developments in legal practice, the Supreme Court would indeed have taken any such response into account. If the Supreme Court had nevertheless set aside his response, the applicant could have complained to the Supreme Court that he had not had the opportunity to respond to the advisory opinion of the Advocate General. The applicant’s course of action therefore deprived the Supreme Court of addressing the issue which has now been brought before the Court, and to this extent the applicant cannot be said to have complied with the requirement of exhaustion of domestic remedies.

The applicant maintains that neither the legislation in force nor the Supreme Court’s case law permitted him to submit a response to the Advocate General’s advisory opinion at the relevant time. It was not until 1997 that the Supreme Court accepted that Article 6 § 1 of the Convention required that parties to civil proceedings should have the opportunity to respond to an advisory opinion issued by the Procurator General’s department. Moreover, in cassation proceedings before the Supreme Court an appellant may raise questions of law in respect of which, in his opinion, the lower courts have erred; any lack of fairness in the proceedings before the Supreme Court cannot be raised with that court itself.

The Court notes that, at the material time, the question whether or not the Supreme Court would accept a reply to the adversory opinion of the Advocate General in cases like the present one, was open to doubt.

Nevertheless, after the Court’s judgment in the case of Borgers v. Belgium, the Supreme Court did not wait for a change of legislation in order to comply with the Court’s case-law, but changed its practice in criminal cases by sending the advisory opinion issued by the Advocate General to the accused and giving the latter the opportunity to respond to it.

In the instant case, aware of the changed practice of the Supreme Court in criminal cases, the applicant could have submitted a reaction to the advisory opinion of the Advocate General in order to give the Supreme Court the possibility to decide whether it would adapt this practice also in civil cases.

In this respect the Court notes that Article 328 § 2 of the Code of Civil Procedure already provided the applicant with an opportunity to react. Although it is true that this provision limited such a reaction to simple notes contesting facts, the applicant, aware of the practical solution the Supreme Court had already adopted in criminal cases, could reasonably have been expected to submit his full reaction.

The Court notes that the Supreme Court did in fact take the position that also in civil cases a reaction to the advisory opinion of the Advocate General should be admitted. In a judgment of 12 September 1997, the Supreme Court held that  “ … where Article 328 [of the Code of Civil Procedure] prevents parties from responding to the advisory opinion of the public prosecution department as they see fit, it 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 ”.

It is true that this decision was taken after the decision in the applicant’s case. However, it cannot be excluded at all that the Supreme Court would in fact have admitted submissions of the applicant in response to the advisory opinion of the Advocate General, in view of the adopted practice in criminal cases and the fact that the consequences of the Court’s case- law for civil cases had already been discussed in legal literature. Although different opinions had been expressed, the argument that the Court’s case-law allowed for a reaction to the advisory opinion of the Advocate General to be submitted in civil cases as well had also been put forward.

Insofar as the applicant submits that it was not at all sure that the Supreme Court would have accepted his submissions, the Court considers that mere doubts as to the prospects of success of a remedy does not absolve an applicant from the obligation to exhaust such a remedy.

As the Court does not find it established that, in the present case, the Supreme Court would have disregarded the applicant’s reply to the advisory opinion of the Advocate General to the Supreme Court, it is of the opinion that the applicant, by having failed to submit such a reply to the Supreme Court, has not complied with the requirement of exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention.

It follows that the application must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Luigi Ferrari Bravo Registrar President