FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34986/97

by AyÅŸe AKIN

against the Netherlands

The European Court of Human Rights ( First Section) sitting on 22 June 1999 as a Chamber composed of

Mrs E. Palm, President ,

Mr J. Casadevall ,

Mr Gaukur Jörundsson ,

Mr R. Türmen ,

Mr C. Bîrsan ,

Mrs W. Thomassen ,

Mr R. Maruste , Judges ,

with Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 October 1996 by AyÅŸe AKIN against the Netherlands and registered on 19 February 1997 under file no. 34986/97;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 15 October 1998 and the observations in reply submitted by the applicant on 30 December 1998 as well as the respondent Government’s additional observations of 15 February 1999 and the applicant’s response of 12 March 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1940, and lives in Amsterdam. Until May 1999, the applicant was represented by Ms M.D. van Aller . As from May 1999, the applicant is represented before the Court by Mr R.M. Berendsen , a lawyer practising in Amsterdam.

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

a. Particular circumstances of the present case

The applicant and her husband, who have remained childless, are the foster parents of the applicant's niece Şükran . On 5 September 1982, a son, Bahtiyar , was born to Şükran and her husband in Amsterdam. As from Bahtiyar's birth up to and including the third quarter of 1990, Şükran received childcare benefits ( kinderbijslag ) for Bahtiyar under the General Child Care Benefits Act ( Algemene Kinderbijslagwet - hereinafter referred to as "the Act").

On 18 August 1989 the First Instance Court ( Sulh Hukuk Mahkemesi ) of Ayancık (Turkey) pronounced Bahtiyar's adoption by the applicant and her husband. At some unspecified point in time, the applicant requested childcare benefits under the Act in respect of Bahtiyar as from the second quarter of 1990 up to and including the second quarter of 1991. By letter of 17 July 1991, the Social Insurance Bank ( Social Verzekeringsbank ) informed the applicant that her request was rejected, as she did not meet the conditions for these benefits. This letter ended with the following paragraph:

"We inform you that you may file an appeal against the above decision. To this end you should submit a, preferably reasoned, request for a so-called formal confirmation. Such a request needs to be received by us within a reasonable time (that is to say within two months). Failure to respect this time-limit may result in your request not being dealt with."

On 24 September 1991, the Social Insurance Bank informed the applicant that childcare benefits in respect of Bahtiyar over the second and third quarter of 1990 in a total amount of NLG. 882 had unjustly been paid to the applicant. As the Social Insurance Bank considered that, in all reasonability, it could have been not clear to the applicant that this had been incorrect, the matter would not be further pursued, meaning that no reimbursement of this amount would be sought by the Social Insurance Bank.

By letter of 11 February 1992, the Social Insurance Bank further informed the applicant that her request for childcare benefits for Bahtiyar over the fourth quarter of 1991 was rejected, as she did not meet the conditions for these benefits.

In order to be able to file an administrative appeal, the applicant's lawyer requested the Social Insurance Bank, by letter of 27 February 1992, to issue a formal confirmation ( voor beroep vatbare beschikking ) of the decisions of 17 July 1991 and 11 February 1992.

This formal confirmation was issued on 11 May 1992. According to this confirmation the applicant's request for formal confirmation of the decision of 17 July 1991 was inadmissible for not having been submitted within a reasonable time. In addition it was stated that the applicant did not meet the conditions for childcare benefits for the period as from the second quarter of 1990 up to and including the second quarter of 1991 and for the fourth quarter of 1991.

On 4 June 1992, the applicant filed an administrative appeal with the Appeals Tribunal ( Raad van Beroep ) of Amsterdam.

On 5 June 1992, the Social Insurance Bank informed the applicant that also no reimbursement would be sought of childcare benefits in respect of another child over the second and third quarter of 1990 in a total amount of NLG. 629 which had been unjustly paid to the applicant. Also as regards these benefits, the Social Insurance Bank held that, in all reasonability, it could have been not clear to the applicant that this payment had been incorrect.

On 28 August 1992, the Social Insurance Bank transmitted the applicant's case-file to the Appeals Tribunal. On 30 December 1992, the Social Insurance Bank submitted a written reaction to the applicant's appeal to which the applicant responded by letter of 7 April 1993.

Following a hearing held on 28 January 1994, the Administrative Law Division of the Regional Court ( Sectie Bestuursrecht Arrondissementsrechtbank ; hereinafter “the Regional Court”) of Amsterdam, which had replaced the Appeals Tribunal following statutory changes, rejected the applicant's appeal as ill-founded by judgment of 11 March 1994. The applicant had not raised any complaint of the duration of the proceedings before the Regional Court.

On 25 April 1994 the applicant filed an appeal with the Central Appeals Tribunal ( Centrale Raad van Beroep ). In a letter of 2 December 1994 the Registrar of the Central Appeals Tribunal informed the applicant’s lawyer that, given the large number of appeals filed, considerable time could pass before the applicant’s appeal would be dealt with.

On 23 December 1994 the Social Insurance Bank replied to the applicant's appeal, which was transmitted to the applicant on 2 January 1995.

By letter of 15 February 1995 which contained a reminder of a previous letter of 2 December 1994, the Registrar of the Central Appeals Tribunal urged the Regional Court to transmit the applicant’s case-file by returning mail. On 21 March 1995, the Registrar of the Central Appeals Tribunal sent a second reminder to the Regional Court.

On 29 March 1995, the Regional Court transmitted the case-file to the Central Appeals Tribunal. After having noted that a number of documents transmitted did not relate to the applicant’s case, the Registrar of the Central Appeals Division requested the Regional Court on 3 August 1995 to transmit a number of relevant documents concerning the applicant’s case. On 5 and 27 September 1995 respectively, the Registrar of the Central Appeals Tribunal sent a reminder of the letter of 3 August 1995 to the Regional Court.

On 22 January 1996 the applicant’s lawyer sent a letter to the Central Appeals in which she stated, inter alia , that the applicant considered that the Central Appeals Tribunal had violated Article 6 of the Convention by its failure to schedule a hearing in her case. The applicant’s lawyer urged the Tribunal to examine her case without further delay in order to avoid a further violation of Article 6 of the Convention.

By judgment of 1 May 1996, following a hearing held on 13 March 1996, the Central Appeals Tribunal upheld the Regional Court's decision of 11 March 1994.

As regards the applicant's complaint under Article 6 para. 1 of the Convention that the proceedings had exceeded a reasonable time, the Central Appeals Tribunal stated in its decision that:

… - appellant appears to refer her explicitly to the duration of examination on appeal -, the Tribunal considers that insofar as there has been such an excess - which the Tribunal explicitly offers no opinion on - this cannot result in granting children allowance in contravention of the applicable statutory provisions.”

B. Relevant domestic law and practice

At the relevant time a person wishing to contest a decision of an administrative organ in the field of social security schemes had to request formal confirmation in writing. Such formal confirmation, which included the grounds on which the decision was based, was an admissibility requirement for an administrative appeal.

Although there were no statutory time-limits under the various social security laws for requesting formal confirmation, the Central Appeals Tribunal ruled that this should be done within a "reasonable time", which that tribunal construed to mean generally within two months (cf., Centrale Raad van Beroep judgment of 19 March 1974, Rechtspraak Sociaal Verzekeringsrecht 1974, no. 288). An administrative organ might declare inadmissible such a request if it was filed too late.  A decision of an administrative organ declaring a request for formal confirmation inadmissible was itself a decision of which formal confirmation might be requested with a view to an appeal.

There was no statutory time-limit within which formal confirmation had to be given. When formal confirmation had been issued, an appeal lay to the Appeals Tribunal.  It had to be lodged within one month (Article 83 of the Appeals Act ( Beroepswet )).

From the Appeals Tribunal a further appeal lay to the Central Appeals Tribunal (Article 145 of the Appeals Act); it too had to be lodged within one month.

On 1 January 1994 the Administrative Law Act ( Algemene Wet Bestuursrecht ) entered into force (see the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 15, para. 39).  It lays down new uniform rules of administrative procedure which apply also to cases such as the present one.

Anyone wishing to challenge a decision of an administrative organ may lodge an administrative objection with that body, provided that he or she does so within six weeks (Article 6:7).

If the administrative organ fails to decide within a reasonable time, or refuses to do so, the party seeking review may lodge an appeal with the Regional Court without waiting any longer for a decision (Articles 6:2, 6:12 and 8.1.1).  It is thus no longer necessary to request formal confirmation of a decision of an administrative organ. A further appeal lies to the Central Appeals Tribunal.

COMPLAINT

The applicant complains that the proceedings have exceeded a reasonable time within the meaning of Article 6 para. 1 of the Convention.

PROCEDURE

On 1 July 1998, the Commission decided to give notice of the applicant’s complaint concerning the length of the proceedings to the respondent Government, and invited them to submit their observations on its admissibility and merits. It declared the remainder of the application inadmissible.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

The Government submitted their observations on 15 October 1998 to which the applicant replied on 30 December 1998. On 15 February 1999, the Government submitted additional observations and a number of documents referred to in their observations of 15 October 1998. On 12 March 1999, the applicant responded to the Government’s additional observations.

On 22 March 1999, the Court granted the applicant legal aid.

THE LAW

The applicant complains that the proceedings have exceeded a reasonable time within the meaning of Article 6 para. 1 of the Convention, which, in so far as relevant, reads:

"In the determination of his civil rights and obligations …against him, everyone is entitled to a … hearing within a reasonable time by a … tribunal ….”

The applicant submits that, in general, proceedings concerning social security issues in the Netherlands take a long time. In the instant case, she did complain about the duration of the proceedings once these had exceeded a reasonable time. She further argues that her case-file was not transmitted to the Central Appeals Tribunal with due diligence and that, once it had been transmitted, it took the Central Appeals Tribunal several months to discover that it was incomplete. The applicant further underlines that the long duration of proceedings before the Central Appeals Tribunal appears to be a known fact given the contents of the acknowledgement of receipt sent to her lawyer on 2 December 1994.

The Government submit that the applicant has not exhausted domestic remedies in that she has not raised this complaint in her notice of appeal of 25 April 1994 to the Central Appeals Tribunal, which would have given the Central Appeals Tribunal the opportunity to consider whether her appeal should be expedited. The applicant’s letter of 22 January 1996 can only be interpreted as a complaint about the Central Appeal Tribunal’s delay and dealing with the case. This Tribunal indeed assumed that this complaint did not relate to the preceding proceedings before the Regional Court.

The Government further submit that the child care benefits at stake for the applicant in the proceedings at issue cannot be deemed of such importance as to require the judicial authorities to employ special haste in dealing with the case. The Government also submit that the Central Appeals Tribunal attended to the case without excessive delay, in that it was not inactive at any time and in that, after having received the applicant’s letter of 22 January 1996, it lost no time in setting the date for the hearing on 13 March 1996. Also the total duration of the proceedings cannot be regarded as unreasonably long.

The Court notes that, in the proceedings before the Central Appeals Tribunal, the applicant did complain that this Tribunal’s failure to schedule a hearing was contrary to the reasonable time requirement within the meaning of Article 6 of the Convention and that the Central Appeals Tribunal took this complaint into consideration without, however, expressing any opinion about its substance. In these circumstances, the Court accepts that the applicant has complied with the requirement of exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention.

The Court considers that the proceedings at issue, which began on 27 February 1992 when the applicant requested formal confirmation of the decisions of the Social Insurance Bank (see the Schouten and Meldrum v. the Netherlands judgment of 9 December 1994, Series A no. 304, pp. 24-25, § 61) and ended on 1 May 1996 when the Central Appeals Tribunal rejected the applicant’s appeal, lasted in total slightly more than four years and two months. The Court observes that there has been a delay of nearly two years between the applicant’s appeal to the Central Appeals Tribunal and the first hearing of the applicant’s case before this court.

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.

Michael O’Boyle Elisabeth Palm Registrar President