THIRD SECTION
DECISION
Application no. 54749/13
Annie ANEMA-KWINKELENBERG and others
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 27 May 2014 as a Chamber composed of:
Alvina Gyulumyan, President,
Ján Šikuta,
Dragoljub Popović,
Luis López Guerra,
Kristina Pardalos,
Johannes Silvis,
Valeriu Griţco, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application,
Having deliberated, decides as follows:
THE FACTS
1. A list of applicants is set out in the appendix. The applicants were represented by Mr G.J.H. van Hoof, a lawyer practising in IJsselstein (hereafter also: the applicants’ representative).
A. The circumstances of the case
2. Before the events complained of, the applicants variously held shares or subordinated bonds (the latter under diverse designations) issued by SNS REAAL N.V., a public limited company (naamloze vennootschap, “N.V.”) incorporated under Netherlands law, or one or more of its subsidiaries. The events complained of, which concern the expropriation of those shares and subordinated bonds, are set out in Stefania Adorisio and Others against the Netherlands and three other applications (dec), no. 47315/13, 14 January 2014. Appeals against the expropriation decision were dismissed by the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State) on 25 February 2013. Proceedings relating to compensation are currently pending before the Supreme Court (Hoge Raad).
B. Relevant Court procedure
1. The Rules of Court
3. At the time of the proceedings in issue, the Rules of Court, as pertinent, provided as follows (footnotes omitted):
Rule 36 – Representation of applicants
“1. Persons, non-governmental organisations or groups of individuals may initially present applications under Article 34 of the Convention themselves or through a representative. ...”
Rule 44A – Duty to cooperate with the Court
“The parties have a duty to cooperate fully in the conduct of the proceedings and, in particular, to take such action within their power as the Court considers necessary for the proper administration of justice. This duty shall also apply to a Contracting Party not party to the proceedings where such cooperation is necessary.”
Rule 45 – Signatures
“1. Any application made under Articles 33 or 34 of the Convention shall be submitted in writing and shall be signed by the applicant or by the applicants’ representative.
2. Where an application is made by a non-governmental organisation or by a group of individuals, it shall be signed by those persons competent to represent that organisation or group. The Chamber or Committee concerned shall determine any question as to whether the persons who have signed an application are competent to do so.
3. Where applicants are represented in accordance with Rule 36, a power of attorney or written authority to act shall be supplied by their representative or representatives.”
Rule 47 – Contents of an individual application
“1. Any application under Article 34 of the Convention shall be made on the application form provided by the Registry, unless the President of the Section concerned decides otherwise. It shall set out
(a) the name, date of birth, nationality, sex, occupation and address of the applicant;
...
and be accompanied by
(h) copies of any relevant documents and in particular the decisions, whether judicial or not, relating to the object of the application.
...
4. Failure to comply with the requirements set out in paragraphs 1 and 2 of this Rule may result in the application not being examined by the Court.
5. The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application, provided that a duly completed application form has been submitted within the time-limits laid down by the Court. The Court may for good cause nevertheless decide that a different date shall be considered to be the date of introduction. ...”
2. The Practice direction on the institution of proceedings
4. Clarification of the above Rules, among others, was provided by a Practice direction on the institution of proceedings issued by the President of the Court under Rule 32 of the Rules of Court. At the time of the proceedings here in issue, it read as follows, in its relevant parts and in the redaction in force since 24 June 2009 (footnote omitted):
“4. If an application has not been submitted on the official form or an introductory letter does not contain all the information referred to in Rule 47, the applicant may be required to submit a duly completed form. It must be despatched within eight weeks from the date of the Registry’s letter requesting the applicant to complete and return the form.
Failure to comply with this time-limit will have implications for the date of introduction of the application and may therefore affect the applicant’s compliance with the six-month rule contained in Article 35 § 1 of the Convention.
5. Applicants may file an application by sending it by fax. However, they must despatch the signed original by post within eight weeks from the date of the Registry’s letter referred to in paragraph 4 above.
...
7. On receipt of the first communication setting out the subject-matter of the case, the Registry will open a file, whose number must be mentioned in all subsequent correspondence. Applicants will be informed thereof by letter. They may also be asked for further information or documents.
...
9. Failure to provide further information or documents at the Registry’s request (see paragraph 7) may result in the application not being examined by the Court or being declared inadmissible or struck out of the Court’s list of cases.”
COMPLAINTS
5. The applicants complained under Article 6 of the Convention about the procedure followed in connection with the expropriation of their shares or subordinated bonds and under Article 1 of Protocol No. 1 about the failure to award them any compensation. They restated the substance of these complaints under Article 13 of the Convention taken together with Article 1 of Protocol No. 1.
PROCEEDINGS BEFORE THE COURT
6. On 21 August 2013 the applicants’ representative contacted the Court’s Registry by fax announcing his intention to lodge an application on behalf of the applicants.
7. On 28 August 2013 the Court’s Registry acknowledged the receipt of this fax by post. The letter included, inter alia, the following paragraphs (emphasis in the original):
“I note that you have not submitted all the information required by Rule 47 §§ 1 and 2 of the Rules of Court. In particular you have not submitted a copy of the original judgment of 25 February 2013 given by the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) including the annex that is mentioned in the judgment. Moreover, you have not submitted any document from which it is clear on behalf of whom the grounds of appeal were lodged. Finally, you have also not submitted the grounds of appeal for each applicant who was not represented by you in the domestic proceedings.
That being so, the case cannot be examined by the Court. You are therefore requested to supplement the application by submitting the missing information and documents before 23 October 2013. ...
I further note that the authority forms submitted by you are copies of the original forms. You are requested to submit for each individual applicant an original authority for representation bearing the applicant’s original signature (i.e. no copy or scan). I would draw to your attention that the Court may decide, in the absence of a valid power of attorney, to declare the application inadmissible on the ground that there is no valid application (see Post v. the Netherlands (dec.), 21727/08, 20 January 2009; Kemevuako v. the Netherlands (dec.), no. 65938/09, § 22, 1 June 2010; Çetin v. Turkey (dec.), no. 10449/08, 13 September 2011; Kaur v. the Netherlands (dec.), no. 35864/11, §§ 17-19, 14 May 2012; and Ngendakumana v. the Netherlands (dec.), no. 16380/11, 5 February 2013).
I should emphasise that you must send the necessary supplementary documents to the Court within the above period. No extension of this period is possible.
Considering the large number of applicants you represent you are further requested to send us as soon as possible and no later than two weeks from the date of the present letter, i.e. 11 September 2013, an e-mail address to which the Registry can send you an excel table for you to complete with your clients’ information.”
8. On 9 September 2013 the Court’s Registry received a fax message from the applicants’ representative, stating, inter alia, the following:
“Although I made sure that that I included the required information in the three files I did send you by DHL, I will check the entire file again and will get back to you on this soon.
For now I comply with the request at the end of your above-mentioned letter and provide you with the e-mail address to which you can send us an excel-table for the completion of the client information.”
9. On 11 September 2013 the Court’s Registry acknowledged the receipt of this fax by e-mail and post to the applicants’ representative. The letter included, inter alia, the following paragraphs (emphasis in the original):
“You are requested to complete the attached table with information regarding all the applicants and send back the completed table on a CD-ROM or a memory stick before the date indicated in the Court’s previous letter, i.e. 23 October 2013.
Please follow the instructions below:
- do not modify the table’s formatting;
- complete all fields;
- stick a bar code provided by the Court on the CD-ROM/memory stick and the cover page.”
10. On 15 October 2013 the applicants’ representative submitted a letter enclosing a copy of the original decision of 25 February 2013 given by the Administrative Jurisdiction Division of the Council of State including the annex that was mentioned in that decision, updated lists and sets of authority forms and the grounds of appeal.
11. On 21 October 2013 the applicants’ representative sent a number of additional authority forms to the Court’s Registry and asked to be contacted by telephone to discuss and clarify the status of one of the applicants, Stichting Obligatiehouders SNS, a foundation (stichting) under Netherlands law.
12. On 25 October 2013 the Court’s Registry called the applicants’ representative by telephone. The applicants’ representative stated that Stichting Obligatiehouders SNS had represented all individual applicants before the Administrative Jurisdiction Division of the Council of State, so that their individual names did not appear on the list annexed to the decision of 25 February 2013. The Court’s Registry again requested the applicants’ representative to submit a list of the individual applicants in the prescribed form of an Excel worksheet.
13. On 30 October 2013 the Court’s Registry sent a letter to the applicants’ representative which included, inter alia, the following paragraphs (emphasis in the original):
“I write to remind you of the request made in our letter of 11 September 2013.
The information requested has not yet been received in electronic from. You were requested to submit it by 23 October 2013.
Without prejudice to any decision the Court may have to take in the case, I would ask you now to treat this as an urgent matter.
I enclose a copy of our letter of 11 September 2013 for your convenience.”
14. On 17 December 2013 the Court’s Registry acknowledged the receipt of an e-mail of 21 November 2013 and accompanying Excel table. The letter included, inter alia, the following paragraphs:
“On 11 September 2013 and 30 October 2013 we wrote to you requesting you, with reference to Rule 47 § 1 of the Rules of Court, to send us full details of the applicants in electronic form. You were sent an empty Excel table which you were instructed to return completed and unmodified, on a psychical medium (i.e. a CD-ROM or a memory stick) marked with one of the identifying stickers sent to you.
It is noted that these instructions have not been complied with.
I should point out that the purpose in requiring the submission of the applicants’ identifying information in a strictly prescribed electronic format was to enable the applicants to be registered individually in the Court’s administrative database.”
15. On 3 March 2014 the Court’s Registry received, by registered mail, a memory stick with the table as had been sent to the applicants on 11 September 2013. The number of persons listed as applicants, after correction for 21 persons who would appear to have been named twice, was 143.
THE LAW
A. Applicants
16. In the case of three applicants (one legal person and two natural persons) the letters of authority were photocopies or printouts of faxes or scans which did not bear the original signature of the applicant (or in the case of the legal person, the original signature of a natural person competent to represent it). In respect of these three applicants, the application will not be examined because the requirements set out in Rule 45 have not been met (see paragraph 5 of the Practice direction on institution of proceedings, paragraph 4 above).
17. The Appendix to this decision lists the remaining 140 natural persons listed on the Excel table as applicants.
B. Complaints under Article 6 § 1 of the Convention
18. The applicants complain about the proceedings before the Administrative Jurisdiction Division of the Council of State. They rely on Article 6 § 1 of the Convention, which, in its relevant part, provides as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
19. Article 35 § 1 of the Convention provides as follows:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
20. The final decision relevant to these complaints was that given by the Administrative Jurisdiction Division on 25 February 2013 (see paragraph 2 above). The six-month time-limit laid down in Article 35 § 1 of the Convention therefore came to an end on 25 August 2013.
21. The Court observes that the applicants’ representative was informed by letter of 11 September 2013 (see paragraph 9 above) that the six-month time-limit laid down in Article 35 § 1 of the Convention, extended by the grace period granted at that time by paragraphs 4 and 5 of the said Practice direction, would end on 23 October 2013 and that the completed table with information regarding all applicants had to be sent back on a CD-ROM or a memory stick before this date. Furthermore, the applicants’ representative was reminded of this requirement on 25 and 30 October 2013 (see paragraphs 12 and 13 above). However, only on 3 March 2014 (see paragraph 15 above) did the Court receive a memory stick with the requested table.
22. It is the duty of applicants, no less than Governments, to cooperate fully in the conduct of the proceedings and, in particular, to take such action within their power as the Court considers necessary for the proper administration of justice (Rule 44A of the Rules of Court). For present purposes, the implication is that it is the responsibility of the individual applicant to submit a properly completed application form and provide the Court with all the information required for processing the application in a timely manner.
23. In the instant case, the applicants were required to complete a table in a commercially available and extremely common electronic format and submit it on a physical medium, a CD-ROM or a memory stick. The Court takes the view that they could reasonably be expected to comply with the instructions given by its Registry.
24. The Registry’s purpose in requiring the submission of the applicants’ identifying information in a prescribed electronic format was to enable a considerable number of applicants to be registered individually in the Court’s administrative database. The technical means to simplify this task exist and can be presumed to be at the disposal of the applicants themselves if not their representative.
25. The time available, which under Article 35 § 1 of the Convention is six months from the date of the final domestic decision, would appear to have been adequate of itself. In addition, at the relevant time the Practice direction on the institution of proceedings vouchsafed a grace period which in the present case extended the time-limit by a further one month and twenty-eight days.
26. In the circumstances, therefore, the Court finds that there is good cause to hold that the date of introduction of the application is 3 March 2014, the date on which the memory stick with the requested information was finally received at the Registry.
27. It follows that the complaints here in issue have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
C. Complaints under Article 1 of Protocol No. 1 taken alone and together with Article 13 of the Convention
28. All applicants complain in addition that they have been deprived of their possessions in violation of Article 1 of Protocol No. 1, which provides 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 preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
29. They also complain that they have been denied an effective remedy in this respect, in violation of Article 13 of the Convention, which provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
30. The Court notes that proceedings relating to compensation are currently pending before the Supreme Court (see paragraph 2 above and Stefania Adorisio and Others against the Netherlands and three other applications (dec.), cited above, § 48).
31. It follows that the applicants’ complaints under this head are premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Marialena TsirliAlvina Gyulumyan
Deputy RegistrarPresident
Appendix
No.
First name
Last name
Birth date
Nationality
Place of residence
Annie ANEMA-KWINKELENBERG
22/06/1949
Dutch
Alkmaar
Michiel ARENDSE
11/05/1981
Dutch
Rotterdam
Robert AUDENAERDE
16/07/1980
Dutch
Utrecht
Cornelis AVEZAAT
14/04/1946
Dutch
Hoek van Holland
Ramón BARBERO GARCIA
18/11/1957
Spanish
Segovia
Steven BERBIERS
03/12/1982
Belgian
Moortsele
Bob BERMOND
01/03/1944
Dutch
Amsterdam
Haiko BOSSCHER
20/03/1959
Dutch
Enschede
Gerardus BOUMA
24/03/1959
Dutch
Amersfoort
Evangelos
BOURBOULIS
26/09/1932
Greek
Athens
Peter BOUTER
22/02/1971
Dutch
Streefkerk
Heinrich BRAUNER
04/05/1947
German
Lugano
Michael CALLUS
19/01/1958
Maltese
Rabat
Nicotra CALOGERA
22/01/1943
Italian
Naro
Pierre CAMILLERI
02/11/1977
Maltese
Mosta
Theresa CAMILLERI
20/02/1951
Maltese
Mosta
Ginés Almazán CAMPOS
03/04/1962
Spanish
Madrid
Yiu Keung CHAN
10/01/1946
Chinese
CHN
Eleni CHEILA
03/06/1958
Greek
Athens
Marina CHEILA
29/11/1968
Greek
Athens
Evangelos CHEILAS
23/03/1929
Greek
Athens
Jonker CORNELIS
10/09/1980
Dutch
Amsterdam
Alfred CUSCHIERI
01/06/1939
Maltese
Hamrun
Carmen CUSCHIERI
27/11/1940
Maltese
Hamrun
Graziella CUTAJAR
15/02/1975
Maltese
Birkirkara
Richard DE GROOT
11/02/1973
Dutch
Venlo
Bernardina DE JONG OTTEN
10/09/1954
Dutch
Zoetermeer
Michael DE MAN
10/05/1983
Belgian
De-Pinte
Meindert DE VRIES
21/04/1957
Dutch
Rotterdam
Joost DOP
09/02/1966
Dutch
London
Jan ESLHOF
13/10/1951
Dutch
Beekbergen
Angela FARRUGIA
10/03/1968
Maltese
Birkirkara
Rosina FENECH
01/08/1967
Maltese
Rabat
Elise FRATERMAN
31/12/1946
Dutch
Amsterdam
Alfred FRITZ
11/03/1945
Dutch
Amsterdam
Andrew GARNISI
27/04/1959
Maltese
Luqa
Simeon GATT
14/02/1970
Maltese
Mosta
Groen
GEERTRUIDA
20/06/1951
Dutch
Avenhorn
Maijke GERRITS
11/12/1984
Dutch
Wamel
Patrick GHIGO
07/06/1974
Maltese
Birkirkara
Patrizia GHOULFERRETTI
22/11/1966
Panamanian
Panama City
Aristeidis GRIGORIOU
06/10/1976
Greek
Athens
Carmelo GRIMA
18/01/1944
Maltese
Burmarrad
Daniel GRIMA
31/08/1974
Maltese
St. Paul’s Bay
Fritz HALBGEWACHS
09/05/1948
German
Hassloch
Achim HASENMÜLLER
21/02/1978
German
Weinstadt
Alexis HATZOPOULOS
28/03/1965
Greek
Kifisia
Willem HEIJBOER
11/10/1946
Dutch
Sint Annaland
Irmgard HELMSTRIJD
27/03/1969
Dutch
Enschede
Erik HENNY
18/12/1948
Dutch
Luxembourg
Alcanne HOUTZAAGER
24/04/1964
Dutch
Bussum
Wendelgelst JEROEN
17/12/1971
Dutch
Amstelveen
Alexander KERKVLIET
01/08/1951
Dutch
Leiden
Evangelos KIARAS
27/04/1949
Greek
Athens
Evangelos KLEIDARIS
04/01/1954
Greek
Athens
Vasileos KOLIOPOULOS
11/12/1985
Greek
Athens
Wilhelmus KOP
03/01/1953
Dutch
Leiden
Evangelos KORASIDIS
Greek
Athens
Georgios KOROMPELIS
17/05/1961
Greek
Athens
Neeltje KROONDER
HUNDERSMARCK
26/07/1938
Dutch
Zeist
Johannes KUIJPERS
Dutch
Zoetermeer
Jan LAENENS
18/03/1957
Belgian
Aarschot
Ivan LAMBRECHT
24/09/1956
Belgian
Wetteren
Elisabeth LEËN
11/02/1957
Dutch
Baarn
Emaliese LOFARO
15/06/1985
Maltese
Balzan
Kevin MAMO
02/03/1973
Maltese
Swieqi
Susan MANGION CORTIS
22/01/1975
Maltese
Marsascala
Janssens MARGRIET
05/05/1945
Dutch
Amstelveen
Adam MARKOU
05/01/1969
Greek
Piraeus
Arthur MARX
29/03/1944
Dutch
Laren
Daniel MEIRSMAN
24/05/1952
Belgian
Retie
Leonidas MELETO-POULOS
01/01/1952
Greek
Glyfada
Grazio MICALLEF
23/04/1950
Maltese
Bahrija
Jacobus MOLENAAR
09/12/1952
Dutch
Zoetermeer
Monique MOLENDIJK
04/08/1960
Dutch
Den Haag
Nikolaos NIKOLOPOULOS
13/04/1966
Greek
Athens
Pedro NUNES
13/09/1980
Portuguese
Moscavide
Garyfalia OIKONOMAKOU
27/01/1943
Greek
Athens
Sijbrand OPGELDER
07/09/1949
Dutch
Beverwijk
Elisabeth OPGELDER-WENTINK
31/10/1955
Dutch
Beverwijk
Bernardus PARENGKUAN
24/10/1964
Dutch
Den Haag
Massimiliano PERO
17/05/1972
Italian
London
Tom PESSERS
30/11/1958
Dutch
Tilburg
Erdbrink PETER
13/03/1948
Dutch
Abcoude
Huub PETERS
24/06/1964
Dutch
Uithoorn
Cornelis PON
18/12/1935
Dutch
Putten
Jan POOL
04/04/1950
Dutch
Amsterdam
Jos REIJERS
08/01/1947
Dutch
Brasschaat
Vincentius REIJERS
02/09/1949
Dutch
Waalre
Cornelis RIETBROEK
18/03/1945
Dutch
Almere
Robin RIETVELD
08/08/1970
Dutch
Goirle
Eddy RIJNTJES
25/11/1977
Dutch
Berlin
Casper RONDELTAP
22/02/1956
Dutch
Amsterdam
Vasileios SAKELLARIOU
06/01/1966
Greek
Athens
Tristan SANDERS
23/08/1982
Dutch
Den Bosch
Ivan SANT
21/06/1949
Maltese
Kappara
Martinus SCHOENAKER
11/11/1962
Dutch
Malden
Gerda SCHOPF
19/03/1933
German
Achen
Rolf SCHOPF
08/04/1928
German
Achen
Sietse SIERSEMA
28/04/1976
Dutch
Leidschen-dam
Saicheung SIN
08/04/1983
Dutch
Amsterdam
Michael SLUYDTS
18/10/1989
Belgian
Antwerpen
Arend SMIT
20/08/1955
Dutch
Sneek
Oi Mui Amy TAM
10/01/1946
Chinese
Tai Po Hongkong
Antony TEN HAVE
24/10/1949
Dutch
Doetinchem
Constantijn TER HAAR
12/05/1974
Dutch
Aboude
Fred TOREN
02/03/1970
Dutch
Den Bosch
Nikolaos TOTSIOS
17/02/1966
Greek
Athens
Bart VAN ABBE
04/07/1954
Dutch
Amstelveen
Erik VAN AMSTERDAM
Dutch
Castricum
Willem VAN DALEN
30/03/1946
Dutch
Schaijk
Adrianus VAN DER AREND
25/11/1956
Dutch
Monster
René VAN DER LINDEN
Dutch
Drachten
Leornardus VAN DER LUBBE
18/12/1958
Dutch
Hoevelaken
Arie VAN DER PADT
14/03/1932
Dutch
Nuenen
Daniel VAN DER SPREE
22/01/1947
Belgian
Overijse
Jan VAN DER TORRE
19/10/1946
Dutch
Wilnis
Jacobus VAN DER VLEUTEN
19/09/1954
Dutch
Asten-Heusden
Vincent VAN DER VLIST
13/12/1987
Dutch
Wageningen
Patrick VAN EESBEECK
22/06/1961
Indonesian
Jakarta
Antonius VAN EIJDEN
19/05/1963
Dutch
Naarden
Rudi VAN EIJK
03/12/1962
Dutch
Amere
Sander VAN LEEUWEN
10/10/1973
German
Waiblingen
Marco VAN VEELEN
22/08/1967
Dutch
De Meern
Jeroen VAN VELDHUIZEN
17/10/1973
Dutch
Apeldoorn
Nicolaas VAN VELZEN
13/09/1984
Dutch
Groningen
Petrus VAN VELZEN
31/10/1953
Dutch
Wierden
Adeline VELLA
01/10/1947
Maltese
Zebbug
Carmelo VELLA
12/12/1962
Maltese
Fgura
Joseph VELLA
30/03/1948
Maltese
Zebbug
Patrick VELLA
22/06/1964
Maltese
zurrieq
Simona VELLA
02/07/1966
Maltese
zurrieq
Cassandra VERSPEEK
09/03/1971
Dutch
Molenhoek
Carlo VERSTEEG
06/12/1973
Dutch
Beverwijk
Cornelis VISSER
25/06/1934
Mone-gasque
Monaco
Albert VREDEVELD
12/02/1940
Dutch
Meppel
Hendrik WALHOF
18/01/1963
Dutch
Enschede
Freerk WALRAVENS
28/04/1960
Dutch
Hulst
Johannes WETSELS
02/10/1945
Dutch
Sittard
Leonardus WOLF
29/03/1968
Dutch
Amsterdam
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