EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 19964/92
Martinus Beerden
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 24 October 1995)
TABLE OF CONTENTS
Page
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . 1
PART I : STATEMENT OF THE FACTS. . . . . . . . . . . . . . .2
PART II : SOLUTION REACHED. . . . . . . . . . . . . . . . . .3
INTRODUCTION
1. This Report relates to the application introduced under
Article 25 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms by Mr. Martinus Beerden against the
Netherlands on 11 February 1992. It was registered on 11 May 1992
under file No. 19964/92.
The applicant was represented by Mr. H.F.T. Pennarts, a lecturer
at the Erasmus University in Rotterdam.
The Government of the Netherlands were represented by their
Agent, Mr. K. de Vey Mestdagh, of the Ministry of Foreign Affairs.
2. On 22 February 1995 the Commission (Second Chamber) declared the
application admissible. It then proceeded to carry out its task
under Article 28 para. 1 of the Convention which provides as follows:
"In the event of the Commission accepting a petition referred to
it:
a. it shall, with a view to ascertaining the facts, undertake
together with the representatives of the parties an examination
of the petition and, if need be, an investigation, for the
effective conduct of which the States concerned shall furnish all
necessary facilities, after an exchange of views with the
Commission;
b. it shall at the same time place itself at the disposal of
the parties concerned with a view to securing a friendly
settlement of the matter on the basis of respect for Human Rights
as defined in this Convention."
3. The Commission (Second Chamber) found that the parties had
reached a friendly settlement of the case and on 24 October 1995 it
adopted this Report, which, in accordance with Article 28 para. 2 of
the Convention, is confined to a brief statement of the facts and of
the solution reached.
The following members were present when the Report was adopted:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
PART I
STATEMENT OF THE FACTS
4. The applicant is a Dutch citizen, born in 1946 and resident in
Rotterdam.
5. On 7 May 1991 the Bureau for Legal Aid (Bureau voor Rechtshulp)
of Rotterdam assigned a lawyer to the applicant in proceedings
concerning the applicant's dismissal. Even though the assigned lawyer
felt that the applicant did not qualify for legal aid, she agreed to
provide legal assistance under the legal aid scheme unless it would
appear that the assignment had been issued on the basis of incorrect
or incomplete facts concerning the applicant's financial means.
6. Following the conclusion of the dismissal proceedings before the
District Court judge (Kantonrechter) of Rotterdam on 15 July 1991, the
lawyer requested the Legal Aid Bureau to withdraw the assignment on
6 August 1991. By letter of 13 August 1991, the Bureau for Legal Aid
rejected the request, holding that the applicant's income had been
correctly assessed according to established policy in cases of
(imminent) dismissal and that the Legal Aid Act (Wet Rechtsbijstand aan
On- en Minvermogenden) did not provide for a possibility to withdraw
an assignment in cases where proceedings had been decided in favour of
the legal aid beneficiary.
7. On 19 August 1991, the lawyer requested intervention
(tussenkomst) by the President of the Regional Court
(Arrondissementsrechtbank) of Rotterdam, requesting him to withdraw the
assignment. The lawyer sent a copy of this request to the applicant and
the Bureau for Legal Aid.
8. On 29 August 1991, the President decided to withdraw the
assignment of a legal aid lawyer to the applicant, holding that,
notwithstanding the Bureau for Legal Aid's established policy, it had
appeared from the documents submitted that the applicant's monthly
income amply exceeded the income limits of the Legal Aid Act. The
applicant was not heard by the President or given the opportunity to
react to the lawyer's request. As a consequence, the applicant had to
pay 5,092 Dutch guilders to his lawyer. According to the law no appeal
lay against the President's decision.
9. Before the Commission the applicant complained under Article 6
para. 1 of the Convention that he did not have a fair and public
hearing in the proceedings which led to the withdrawal of the
assignment of a legal aid lawyer. The applicant further complained that
the absence of a legal remedy against this decision violated Article
13 of the Convention.
PART II
SOLUTION REACHED
10. Following the decision on the admissibility of the application,
the Commission (Second Chamber) placed itself at the disposal of the
parties with a view to securing a friendly settlement in accordance
with Article 28 para. 1 (b) of the Convention and invited the parties
to submit any proposals they wished to make.
11. In accordance with the usual practice, the Chamber Secretary,
acting on the Commission's instructions, contacted the parties to
explore the possibilities of reaching a friendly settlement.
12. Following an exchange of correspondence, the Commission
considered the question of a settlement on 4 July 1995, and made
specific settlement proposals. By letters of 7 August and
4 October 1995 the Government informed the Commission that they were
willing to accept the terms of the proposal. By letter received on
13 September 1995 the applicant informed the Commission that he also
agreed to a settlement of the case on the proposed terms.
13. The settlement provides as follows:
1) the payment by the Netherlands Government to the applicant
of 5,092 Dutch guilders, minus 60 Dutch guilders which the
applicant would have been liable to pay as his own
contribution in case the assignment of the legal aid lawyer
had not been withdrawn, plus 1,000 Dutch guilders as
compensation for the loss of interest, thus 6,032 Dutch
guilders; and
2) the payment of 1,500 Dutch guilders by the Netherlands
Government to the applicant for costs and expenses incurred
in the proceedings before the Commission.
14. At its session on 24 October 1995, the Commission noted that the
parties had reached an agreement regarding the terms of a settlement.
It further considered, having regard to Article 28 para. 1 (b) of the
Convention, that the friendly settlement of the case had been secured
on the basis of respect for Human Rights as defined in the Convention.
15. For these reasons, the Commission adopted the present Report.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy