Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15416/89

by M.A.B.and

G.A.T.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 10 February 1993, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 21 June 1989 by

M.A.B. and G.A.T. against the Netherlands and registered on 29 August

1989 under file No. 15416/89;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

A. Particular circumstances of the case

The first applicant, a Dutch national born in 1955, is a lawyer

practising in Leeuwarden, the Netherlands. The second applicant is a

Somalian national born in 1969 and residing in Leeuwarden, the

Netherlands. At the time of the introduction of the application, he

was detained on remand on suspicion of rape but it appears that in the

meantime the charges have been dropped.

The first applicant represents the second applicant in the

proceedings before the Commission.

The facts of the case as submitted by the parties may be

summarised as follows.

The second applicant arrived in the Netherlands on

10 December 1988 to seek asylum. He allegedly arrived with his father

although subsequently he claimed to have arrived alone in the

Netherlands. Eventually he was granted a residence permit on

humanitarian grounds (verblijfsvergunning op humanitaire gronden) but

the asylum proceedings are still pending.

On 1 June 1989 the Juvenile Judge (Kinderrechter) of the

Leeuwarden Regional Court (Arrondissementsrechtbank) issued a

provisional supervision order (voorlopige ondertoezichtstelling) and

appointed a family guardian. Pursuant to Article 940 of the Code of

Civil Procedure (Wetboek van Burgerlijke Rechtsvordering), the second

applicant was not heard. The first applicant requested the Legal Aid

Bureau (Buro voor Rechtshulp) to assign him (toevoeging) as legal aid

counsel to the second applicant, as the latter's indigence prevented

him from choosing his own lawyer. This request was immediately granted

but the Juvenile Judge instructed the Bureau by telephone to withdraw

this assignment. Subsequently, he informed the applicants without

giving any reasons that he had decided not to appoint the first

applicant as the second applicant's counsel. No appeal lay against

this decision.

The first applicant's deputy then requested the Juvenile Judge

to be allowed to be present on the former's behalf when the application

for the second applicant's placement under supervision would be

definitely decided upon. This request was rejected and the Juvenile

Judge denied the first applicant's deputy access to the court room

although the first applicant's deputy had stated that he would act in

the capacity of chosen lawyer and not as an official legal aid counsel.

By letter of 6 July 1989 the first applicant requested the

Juvenile Judge to assign him as legal aid counsel to the second

applicant in order to assist the latter at the hearing concerning the

definite placement under supervision. On 24 July 1989 the Juvenile

Judge replied that as long as the European Commission of Human Rights

had not decided the applicant's case he could not determine this

request.

B. Relevant domestic law and practice

Placement under supervision is a civil measure ordered by the

Juvenile Judge to prevent a minor's physical and/or mental perdition.

It entails the appointment of a family guardian who will educate the

minor together with the parents who are bound to follow his indications

and advice. The family guardian reports regularly to the Juvenile

Judge. This measure can be ordered for one year maximum and can be

prolonged until the child's majority.

According to Article 257 of the Civil Code (Burgerlijk Wetboek),

this measure can also be ordered provisionally. The consequences are

the same except for its duration as it is ordered for one year maximum

by the Juvenile Judge and can subsequently be prolonged for one year

maximum until the minor's majority or unless revoked meanwhile by the

Juvenile Judge (Article 258 of the Civil Code). Article 940 of the

Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering)

stipulates that no appeal lies against a provisional order and that,

before imposing it, the Juvenile Judge is not obliged to hear the

interested parties.

COMPLAINTS

The applicants complain about the Juvenile Judge's refusal to

appoint the first applicant as the second applicant's legal

representative. They also complain that, by denying the first

applicant's deputy access to the court room, the Juvenile Judge

hindered the effective exercise of legal assistance and thus denied the

second applicant a fair trial. They invoke Articles 6 and 13 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 June 1989 and registered on

29 August 1989.

On 1 April 1992, the Commission (Second Chamber) decided to

communicate the application to the respondent Government and invite

them to submit written observations on the admissibility and merits of

the application.

The Government's observations were received by letter dated 10

July 1992 and the applicants' observations were dated 8 December 1992.

THE LAW

The applicants complain that the Juvenile Judge refused to

appoint the first applicant as the second applicant's legal

representative. They also complain that by denying the first

applicant's deputy access to the court room, the Juvenile Judge

hindered the effective exercise of legal assistance and thus deprived

the second applicant of a fair trial. They invoke Articles 6 and 13

(Art. 6, 13) of the Convention.

Article 6 (Art. 6) of the Convention reads, insofar as relevant:

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing... by [a]... tribunal...

(...)

3. Everyone charged with a criminal offence has the following

minimum rights:

(...)

c. to defend himself in person or through legal assistance of his

own choosing or, if he has not sufficient means to pay for legal

assistance, to be given it free when the interests of justice so

require.

(...)"

The applicants submit that minors can only be legally represented

by their parents or by their guardian, or by a lawyer at the parents'

or guardian's request. However, the second applicant is an asylum

seeker who arrived in the Netherlands without parents or guardian. At

the hearing before the Juvenile Judge he was therefore alone.

The Government submit primarily that the first applicant cannot

be considered as a victim within the meaning of Article 25 (Art. 25)

of the Convention of the alleged violations of the Convention. The

present application exclusively concerns the second applicant who is

the only one "directly affected by the act or omission at issue" (Eur.

Court H.R., Inze judgment of 28 October 1988, Series A no. 126, para.

32). The application is therefore inadmissible insofar it is brought

by the first applicant.

The Commission has previously held that a defence counsel cannot

in his personal capacity invoke the provisions of Article 6 (Art. 6)

of the Convention as regards the determination of the criminal charge

brought against the defendant (No. 7641/76, Dec. 11.12.76, D.R. 10 p.

224 at p. 229). Applying analogous considerations in the present case

it finds that the first applicant cannot in his personal capacity rely

on Article 6 (Art. 6) in respect of the proceedings concerning the

second applicant's placement under supervision. The first applicant

not being a victim, within the meaning of Article 25 (Art. 25), of the

alleged violations of the Convention, the application is thus

incompatible ratione personae with the provisions of the Convention

within the meaning of Article 27 para. 2 (Art. 27-2), insofar as

introduced by this applicant.

With regard to the second applicant, the Government contend that

the provisional supervision order did not determine his civil rights

and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of

the Convention and that the application is therefore incompatible with

the provisions of the Convention. Should Article 6 (Art. 6) apply, the

application is manifestly ill-founded. Under Dutch law minors are

legally represented by their parents or their guardian. They have no

independent right of access to the courts and therefore no right as

such to the legal assistance of a lawyer. Moreover, a State can

restrict the right of access to court of certain categories of persons,

inter alia minors (European Court of Human Rights, Golder judgment of

21 February 1975, Series A no. 18).

Insofar as the second applicant might derive a right to legal

assistance from the Court's findings in the Airey judgment (judgment

of 9 October 1979, Series A no. 32, para. 26), the Government point out

that in the present case legal representation was not compulsory nor

was the issue so complex that it called for legal assistance. They add

that the costs of legal representation did not play a decisive role.

The Commission has considered the submissions made under Article

6 (Art. 6) of the Convention by the second applicant and the respondent

Government. It finds that the second applicant's complaint under

Article 6 (Art. 6) raises complex issues of fact and law the

determination of which requires an examination of the merits. It

follows that this complaint cannot be regarded as manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other grounds for inadmissibility having been

established, it must accordingly be declared admissible.

The Commission further considers that the second applicant's

complaints under Articles 6 and 13 (Art. 6, 13) of the Convention are

so closely related that they cannot be dissociated at this stage.

For these reasons, the Commission, unanimously

DECLARES THE APPLICATION INADMISSIBLE insofar as brought by

the first applicant;

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case, insofar as brought by the second applicant.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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M.A.B. AND G.A.T. v. THE NETHERLANDS

M.A.B. AND G.A.T. v. THE NETHERLANDS

LEXI