CASE OF GILLISSEN v. THE NETHERLANDS

THIRD SECTION

CASE OF GILLISSEN v. THE NETHERLANDS

(Application no. 39966/09)

JUDGMENT

STRASBOURG

15 March 2016

FINAL

15/06/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Gillissen v. the Netherlands,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Luis López Guerra, President,
Helena Jäderblom,
George Nicolaou,
Johannes Silvis,
Branko Lubarda,
Pere Pastor Vilanova,
Alena Poláčková, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 23 February 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 39966/09) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Netherlands national, Mr Jozef Johan Anna Gillissen (“the applicant”), on 27 July 2009.

2. The applicant was represented by Mr F. Sijbers, a lawyer practising in The Hague. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.

3. The applicant alleged a violation of Article 6 § 1 of the Convention in that he had been denied an opportunity to proffer witness evidence.

4. On 16 September 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Factual background

5. From 1996 onwards the applicant, a former police officer discharged for health reasons, enjoyed disability benefits under the Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheidsverzekering – “WAO”). He was allowed to earn by his own means a sum not exceeding 60,000 Netherlands guilders (NLG) without losing his entitlement under the WAO. This he did by running a one-man business as a trainer teaching people how to deal with stress.

6. The applicant states that he entered into an arrangement with an official of the competent social-security authority (at that time called Cadans), one Mr G., which was intended to make possible his transition into independent self-employment without the need for additional social security benefits. He alleges that Mr G. gave him the assurance that he would be permitted for a period of five years to earn income over and above the sum of NLG 60,000, the purpose being to allow him to create cash reserves in case his health should deteriorate further. The agreement had been witnessed by another official, one Mr S.

7. In February 1999 the applicant announced his intention to continue his business in the form of a limited liability company (besloten vennootschap met beperkte aansprakelijkheid). He wrote to the social-security authority (re-named Social Security Implementing Institution for Government and Education (Uitvoeringsinstelling sociale zekerheid voor overheid en onderwijs; “USZO”)) asking it to confirm that this change would not affect the arrangements made during the time when he was self-employed. In the ensuing domestic proceedings the social security authorities submitted one or more letters which they stated had been sent in response, including one dated 12 July 1999 denying the applicant the confirmation sought. The applicant states that he never received any reply.

8. In September 1999 the applicant’s business was transformed into a limited liability company. The shares were held by the applicant’s wife. The applicant was its managing director and its only employee; he entered its employ on 1 October 1999.

B. The fraud investigation

9. On 3 September 2003 Mr D., an official of the social-security authority (by this time re-named Employee Insurances Schemes Implementing Body (Uitvoeringsinstituut werknemersverzekeringen; “UWV”)) submitted an extensive investigation report implicating the applicant and his wife in suspected social-security fraud. According to the report, the applicant had defrauded the social-security system by declaring only his own income as an employee of the limited liability company but not the company’s profits, which were declared as taxable income by his wife. The report included the following passage:

“It was arranged in addition that only what Gillissen earned in self-employment after his discharge would be considered his residual earning capacity (resterende verdiencapaciteit). The labour expert (arbeidsdeskundige) Mr G. has stated that he discussed this extensively with Gillissen, who could agree to that position and who indicated during the conversation that in the coming years more growth was to be expected and that it was his intention to make his own living in self-employment with a corresponding gradual reduction to zero (afbouw) of the WAO benefits.”

C. Administrative proceedings

1. Objection proceedings

10. On 28 January 2004 UWV gave a decision reducing the applicant’s WAO benefits with retroactive effect. On 3 March 2004 UWV gave a second decision ordering the applicant to repay the excess.

11. The applicant lodged objections (bezwaar) against both decisions. As relevant to the case before the Court, the applicant argued that as from 1999 he had kept the competent authorities informed of developments as they occurred, withholding no information, and invoked the arrangement which he had agreed with Mr G. He named Mr S. as a witness.

12. Having held a hearing on 11 January 2006, UWV gave a decision on 31 January 2006 dismissing the applicant’s objections. It found that the applicant could reasonably have been aware that the total of his additional income – the sum of his salary and the profits of the limited liability company – was too high for him to be entitled to the full amount of his social-security benefits. The alleged arrangement to the contrary was not reflected in the case file, and in any case, whatever statements had been made (assuming that any had been made at all) had been made by a person lacking the requisite competence and could not bind UWV.

2. Proceedings before the Regional Court

13. The applicant lodged an appeal (beroep) with the Roermond Regional Court (rechtbank). As relevant to the case before the Court, he complained about UWV’s failure to question Mr G. and Mr S., which in his submission reflected a lack of due care affecting the quality of the investigation. He also submitted that Mr G. had acted within his competence in making the agreement alleged.

14. Having held a hearing on 30 August 2006, the Regional Court gave judgment on 21 November 2006 dismissing the applicant’s appeal. Its reasoning included the following:

“The [applicant] has also stated that [UWV] officials had agreed with him that he would be permitted to earn unlimited income in addition to his WAO benefits for a period of five years. The Regional Court has found no evidence of such an agreement in the documents available, nor is there any other reason to consider it plausible. On the contrary, it appears from the labour expert Mr G.’s report of 26 October 1998 that the [applicant’s] income did in fact have to be taken into account. In addition, [UWV] answered the [applicant]’s questions about the possibilities of obtaining income from work (additional income) in a letter of 12 July 1999, which letter incidentally the [applicant] claims not to have received. This letter states in no uncertain terms that [UWV] must always be informed immediately of any taking up of work and generation of income. But even without this letter it ought in reason to have been clear to the [applicant] that income can have an effect on the benefits. This ground of appeal therefore also fails.”

3. Proceedings before the Central Appeals Tribunal

15. The applicant lodged a further appeal (hoger beroep) with the Central Appeals Tribunal (Centrale Raad van Beroep). As relevant to the case before the Court, he again complained in his written submissions about UWV’s failure to hear Mr G. and Mr S. as witnesses. He asked for them both to be heard as a witness in order to prove the existence of the agreement. He also prayed in aid his acquittal by the ‘s-Hertogenbosch Court of Appeal, which had been given in the meantime (see paragraph 22 below). He did not, however, himself summon Mr G. and Mr S. as witnesses by registered letter or bailiff’s writ.

16. The Central Appeals Tribunal held a hearing on 8 August 2008. The applicant did not bring Mr G. and Mr S. along but restated his request to have them heard as witnesses. The Central Appeals Tribunal decided to reopen its examination of the facts of the case in order to put an additional question to UWV. UWV replied to the Central Appeals Tribunal’s question in writing. The applicant and UWV waived the right to a further hearing.

17. The Central Appeals Tribunal gave judgment on 30 January 2009 dismissing the further appeal without having heard any witnesses. Its reasoning included the following:

“The agreement relied on by the [applicant], which is denied by UWV, does not appear from the case file and no other credible case for its existence has been made out by the [applicant].”

4. Factual information submitted by the applicant

18. In response to a question by the Court, the applicant acknowledged that he had made no attempt to summon Mr G. and Mr S. himself or bring them along to the hearing of either the Regional Court or the Central Appeals Tribunal, as permitted by section 8:60(4) of the General Administrative Law Act (Algemene wet bestuursrecht; see paragraph 25 below).

D. Criminal proceedings

19. In parallel with the administrative proceedings outlined above, the applicant was prosecuted for social security fraud and forgery.

20. On 20 January 2006 the single-judge chamber of the criminal division (politierechter) of the Roermond Regional Court convicted the applicant.

21. The applicant appealed to the ‘s-Hertogenbosch Court of Appeal (gerechtshof).

22. Having held a hearing on 4 May 2007, the Court of Appeal gave judgment on 16 May 2007 acquitting the applicant. Its reasoning included the following:

“The suspect states that he drew up a common plan with Mr G. of USZO in 1998 with a view to the gradual reduction to zero of the WAO benefits over five years. The applicant further states that he made arrangements with that Mr G. concerning the amount of additional income he would be allowed to earn in the said five-year period. The suspect understood these arrangements in the sense that he would in principle be allowed to earn unlimited additional income without losing his benefits.

Prompted by the transformation of the one-man business into one or more limited liability companies the suspect sought confirmation from UWV that it would not matter for the arrangements made whether the provider of the income was the one-man business or the said limited liability companies. To this end he got in touch with USZO on multiple occasions by means of letters. These letters were answered by USZO with automatised standard letters which did not address the specific situation in which the suspect found himself and which the suspect himself had raised with USZO.

By the time this question was put by the suspect to USZO Mr G. had been succeeded by Mr M. The latter found no report in the USZO file of the arrangements mentioned by the suspect. It is not apparent from the file that any attempt was made to hear Mr G. about the said arrangements within the framework of this criminal case.

In view of the facts outlined above, the Court of Appeal considers it plausible (aannemelijk) that the suspect made arrangements with Mr G. of USZO in one form or another concerning the amount of permitted additional income within the framework of the gradual reduction to zero of his WAO benefits. It makes no difference that no report of any arrangements was found in the USZO file because no attempt has been made to verify the existence of these arrangements with Mr G.”

II. RELEVANT DOMESTIC LAW

A. The Labour Disablement Insurance Act

23. Provisions of the Labour Disablement Insurance Act relevant to the case are the following:

Section 18

“1. A person disabled for labour (arbeidsongeschikt), totally or partially, shall be he [or she] who, as a result of a direct consequence, to be medically established, of disease, incapacity, pregnancy or childbirth is totally or partially unable to earn what healthy persons with similar education and experience normally earn from work (arbeid) in the place where he [or she] works or has latterly worked, or the surrounding area.

2. A person who is already partially disabled for labour within the meaning of the first paragraph at and since the time when his [or her] insurance begins, shall be considered, for purposes of claims to be derived from this Act, to be totally or partially disabled for labour if as a result of a direct consequence, to be medically established, of disease or incapacity he [or she] is totally or partially unable to earn what similar persons, who are disabled for labour within the meaning of the first paragraph to the same extent, normally earn from work in the place where he [or she] works or has latterly worked, or the surrounding area. ...

...

5. In the first and second paragraphs, the expression ‘work’ shall be understood to mean all generally accepted work of which the person insured [under this Act] is capable with his [or her] forces and competences. ...”

Section 39a

“1. In relation to an increase in labour disability that manifests itself within five years from the date on which the labour disability benefits were first awarded or reviewed and which arises from the same cause as the labour disability in relation to which the benefits are enjoyed, the disability benefits shall be reviewed in each case as soon as the increased labour disability has lasted for a continuous period of four weeks. ...”

Section 43a

“1. If the person

(a) whose labour disability benefits have been withdrawn because of diminishing labour disability ...

becomes afflicted with labour disability ... within five years of such withdrawal and this labour disability arises from the same cause as the labour disability in relation to which the benefits withdrawn were enjoyed ... then the labour disablement benefits shall be awarded in each case as soon as the labour disablement has lasted for a continuous period of four weeks. ...”

Section 44

“1. If a person who is entitled to labour disablement benefits enjoys income from paid employment (inkomen uit arbeid), then for a continuous period of five years counted from the first day in respect of which the income from work is enjoyed that work shall not be considered as work within the meaning of section 18(5) and the labour disablement benefits shall not be withdrawn or reviewed, but the benefits shall:

(a) not be paid out if the income from work is such that if the work concerned were in fact work within the meaning of section 18(5) labour disablement would no longer be at least 15%, or

(b) if sub-paragraph (a) does not apply, shall be paid to an amount the size of the labour disablement benefit as it would have been fixed had the work concerned been work as referred to in section 18(5).

After the end of the period mentioned in the first sentence the work shall be considered to be work within the meaning of section 18(5). ...”

24. The Government state that the implementation of this Act follows policy rules dating from 2006.

B. The General Administrative Law Act

25. Provisions of the General Administrative Law Act relevant to the case are the following:

Section 8:46

“1. The Regional Court can summon witnesses. ...”

Section 8:56

“After the preliminary investigation has been terminated, the parties shall be invited at no less than three weeks’ notice to appear at a hearing of the Regional Court to be held at a time and place to be specified in the invitation.”

Section 8:60

“1. The Regional Court can summon witnesses and appoint experts and interpreters.

2. A witness who is summoned and an expert or interpreter who has accepted the appointment and is summoned by the Regional Court to appear shall be obliged to answer that summons. Article 178 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) [which empowers the court to order the appearance of a witness who has been summoned by a bailiff’s writ but fails to appear] and Article 78 of the Code of Civil Procedure [which allows the court to give an order for costs against a witness who refuses to give evidence] shall apply.

...

4. The parties may bring witnesses and experts along or summon them by registered letter or bailiff’s writ, provided that the Regional Court and the other parties have been informed accordingly no later than one week before the day of the hearing, including names and places of residence. The parties shall be reminded of this right in the invitation referred to in section 8:56.”

Section 8:63

“...

2. The Regional Court may decide not to hear witnesses or experts summoned or brought along by a party if it judges that hearing them cannot reasonably contribute to the consideration of the case. ...”

26. At the relevant time, these provisions were applicable by analogy to the procedure of the Central Appeals Tribunal by virtue of section 17 of the Appeals Act (Beroepswet).

C. Case-law

27. In a decision of 8 January 2009, ECLI:NL:CRVB:2009:BH1537, the Central Appeals Tribunal overturned a decision of a Regional Court on the ground that that court had failed to give reasons for its refusal to hear a witness brought along to the hearing by one of the parties.

28. In a decision of 9 November 2010, ECLI:NL:CRVB:2010:BO4327, the Central Appeals Tribunal held that a Regional Court could only decide under section 8:63 of the General Administrative Law Act not to hear a witness brought along by a party if it was beyond doubt that there was no need for that witness to be heard.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

29. The applicant complained that since he had been denied the possibility to prove the truth of his allegations by calling witnesses, he had not had a “fair hearing” as provided in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

30. The Government contested that argument.

A. Admissibility

1. The Government’s objection

31. The Government submitted that the applicant had failed to exhaust the available domestic remedies. They relied on section 8:60 of the General Administrative Law Act, in accordance with which the invitations extended to the applicant to attend the hearings of the Regional Court and the Central Appeals Tribunal had included the notification that he could bring witnesses or summon them by registered letter or bailiff’s writ. They drew attention to domestic case-law (see paragraphs 26 and 27 above) from which it followed that the domestic administrative tribunals were not entitled to refuse to hear witnesses summoned or brought along by a party unless persuaded that their evidence was in any case irrelevant, and had to give reasons for any such refusal.

32. Despite being allowed to do so, the applicant had not himself summoned or brought along any witnesses. In addition, the applicant had had the opportunity to ask for a second hearing to which he could have brought or summoned his witnesses but had not done so.

33. Moreover, the Central Appeals Tribunal, at its hearing, had asked the applicant why he had not called Mr G. as a witness. The applicant had replied that he had considered doing so but had opted to leave it to the tribunal to decide whether Mr G. should be summoned or not.

34. The applicant pointed out that, pursuant to section 8:60(1) of the General Administrative Law Act, witnesses were under an actual obligation to appear only if summoned by the administrative tribunal itself. As to his decision not to ask for a second hearing before the Central Appeals Tribunal, the applicant submitted that the examination of the case had been reopened to put a specific question to UWV; this had no bearing on the applicants’ offer to prove his allegations by means of the evidence to be given by the witness Mr G., which offer still stood.

35. The Government restate this objection as part of their argument on the merits of the case. The Court therefore joins it to the merits.

2. The Court’s conclusion on admissibility

36. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible, without prejudice to the decision ultimately to be taken on the Government’s preliminary objection of non-exhaustion of domestic remedies.

B. Merits

1. Applicability of Article 6

37. It is not in dispute that Article 6 of the Convention is applicable under its civil head, and the Court so finds.

2. Whether the applicant had an adequate opportunity to have the witnesses Mr G. and Mr S. heard

38. The Government asked the Court to dismiss the applicant’s complaints as unfounded. They submitted that the applicant had in fact had sufficient opportunity to have the witnesses of his choice heard by the competent domestic tribunals. The applicant disputed this.

39. The arguments of the parties on this point, as they relate to the merits of the case, are identical in their essentials to their arguments under the head of admissibility of the application.

40. It is the Court’s understanding that the applicant offered to prove the existence of the agreement, should the Central Appeals Tribunal so require, by means of witness evidence.

41. The Court notes that Netherlands administrative tribunals have a wide discretion in deciding whether to hear witnesses, being empowered but not obliged to order witnesses to appear before them but retaining the freedom not to hear witnesses brought before them on the initiative of a party (sections 8:60(1) and 8:63(2) of the General Administrative Law Act; see paragraph 24 above).

42. In view of the consistent refusal of the tribunals at both levels of jurisdiction to grant the applicant’s urgent and repeated requests to summon Mr G. and Mr S. as witnesses, in the case of the Central Appeals Tribunal despite the acquittal given more than a year before its hearing (see paragraphs 15 and 22 above), the Court cannot find beyond doubt that either the Regional Court or the Central Appeals Tribunal would have agreed to hear them if the applicant had succeeded in obtaining their attendance himself.

43. It further appears that the Central Appeals Tribunal reopened its examination of the facts of the case in order to put a specific question to UWV. Neither party has suggested that this question was related to the matter now before the Court. The applicant having requested the hearing of witnesses before the Central Appeals Tribunal both in his written submissions and at the hearing, the Court is not persuaded that there would have been any point in his raising the matter afresh at a second hearing organised to discuss a separate factual issue.

44. In the circumstances thus set out, the Court cannot find that the applicant failed to make use of an opportunity to have a competent tribunal hear the witnesses on whose evidence he wished to rely. It must therefore be found that the applicant has exhausted the available effective domestic remedies as required by Article 35 § 1 of the Convention. The Government’s preliminary objection, which the Court had joined to the merits, is therefore dismissed.

3. The refusal of the Regional Court and the Central Appeals Tribunal to hear Mr G. and Mr S. as witnesses

45. The applicant submitted that however unlikely the Government might believe the oral agreement entered into between Mr G. on behalf of the competent social-security authority and himself on the other to be, it would, if proven, have had an “undeniably direct bearing” on his benefits under the Labour Disablement Insurance Act. He based his complaint on the Central Appeals Tribunal’s finding of fact that the existence of the agreement “[did] not appear from the case file and no other credible case for its existence [had] been made out”. He had actually wished to demonstrate the plausibility of the agreement precisely by hearing Mr G. and Mr S. The refusal of the administrative tribunals to let him do so had placed him at a substantial disadvantage vis-à-vis the social-security authority.

46. The Government considered it highly unlikely that the applicant was offered an agreement that would allow him to earn unlimited amounts over and above his benefits without his benefits being reduced as a result. In their submission, such agreements were never entered into; nor were they necessary, since sections 39a and 43a of the Labour Disablement Insurance Act already provided for the possibility that the condition of a person enjoying labour disablement benefits might deteriorate. There was thus already a safety net in place.

47. Moreover, the applicant must in reason have been aware that any income he might generate from his own work was likely to affect his benefits. Regardless of whether the applicant had received letters reminding him of this, which he denied, this followed from section 44 of the Labour Disablement Insurance Act, from which an oral agreement with an official of the competent social-security authority could not detract.

48. In actual fact, the Regional Court and the Central Appeals Tribunal had found the applicant’s allegations of an oral agreement to lack credibility already because there was no documentary evidence to back it up. Nor was the existence of an agreement in the terms suggested by the applicant likely, since his entitlement to disablement benefits were determined solely by the statutory framework in place and therefore not by any agreement.

49. It could not make any difference that a different conclusion was reached by the criminal court. Criminal proceedings were, by their very nature, different from administrative proceedings: the presumption of innocence applied, and questions like criminal intent took on an importance which in administrative proceedings they had not. In contrast, in administrative proceedings it was for the party who stated a fact to prove it.

50. The Court has stated the applicable principles as follows:

(a) Article 6 § 1 places the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision (see, among many other authorities, Van de Hurk v. the Netherlands, 19 April 1994, § 59, Series A no. 288; Wierzbicki v. Poland, no. 24541/94, § 39, 18 June 2002; Van Kück v. Germany, no. 35968/97, § 48, ECHR 2003‑VII; Perez v. France [GC], no. 47287/99, § 80, ECHR 2004‑I; and Grădinar v. Moldova, no. 7170/02, § 107, 8 April 2008; as a more recent authority, see Ternovskis v. Latvia, no. 33637/02, § 66, 29 April 2014).

(b) Even though the courts cannot be required to state the reasons for rejecting each argument of a party, they are nonetheless not relieved of the obligation to undertake a proper examination of and respond to the main pleas put forward by that party (see Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 96, 28 June 2007).

(c) Article 6 of the Convention does not explicitly guarantee the right to have witnesses called or other evidence admitted by a court in civil proceedings. Nevertheless, any restriction imposed on the right of a party to civil proceedings to call witnesses and to adduce other evidence in support of his or her case must be consistent with the requirements of a “fair hearing” within the meaning of paragraph 1 of that Article, including the principle of equality of arms (see, among other authorities, Wierzbicki, ibid., and Gryaznov v. Russia, no. 19673/03, § 57, 12 June 2012).

(d) The requirements inherent in the concept of “fair hearing” are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law, the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases. Nevertheless, certain principles concerning the notion of a “fair hearing” in cases concerning civil rights and obligations emerge from the Court’s case-law. Most significantly for the present case, it is clear that the requirement of “equality of arms”, in the sense of a “fair balance” between the parties, applies in principle to such cases as well as to criminal cases (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, §§ 32-33, Series A no. 274).

(e) As a general rule, the assessment of the facts is within the province of the national courts (see Dombo Beheer B.V., cited above, § 31and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I); it is the domestic courts which are best placed for assessing the relevance of evidence to the issues in the case (see, amongst many authorities, Vidal v. Belgium, 22 April 1992, § 32, Series A no. 235‑B; Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247‑B; and Wierzbicki, cited above, § 45).

(f) Finally, the Court also notes that it is not its function to deal with errors of fact or law allegedly made by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, inter alia, García Ruiz, ibid.).

51. Turning to the facts of the case, the Court notes that the applicant’s case hinged on the factual allegation that an agreement supporting his position and binding on the social-security authority had been reached between him and Mr G.

52. The Government’s argument, as relevant to the question remaining before the Court, is that whether or not such an agreement existed, the substance of the applicant’s rights depended entirely on statute, to which an oral agreement could make no difference even if its existence were established.

53. For its part, the Court notes that the Central Appeals Tribunal did not dismiss the applicant’s reliance on the oral agreement between him and Mr G. as irrelevant to its decision. Instead, it held that the existence of the agreement was unsubstantiated (see paragraph 17 above).

54. Although obviously social security entitlements are determined in accordance with legislation and policy rules, the Court cannot find that the Central Appeals Tribunal would have been prevented from deciding in the applicant’s favour had the agreement been found to exist in the terms alleged. It is worth noting in this respect that the Government have not produced any domestic case-law that would support such a position. Already for this reason the Court considers that Article 6 § 1 required the Central Appeals Tribunal not to leave the applicant’s offer to produce witness evidence unanswered.

55. The Court notes in addition that the ‘s‑Hertogenbosch Court of Appeal acquitted the applicant of fraud, finding that a plausible case for the existence of an agreement negotiated by the applicant with Mr G. had been made out (see paragraph 21 above). The Court, in agreement with the Government, recognises that the test applied to evidence in criminal proceedings may legitimately differ from that applied in administrative proceedings. Nonetheless, the significance of the judgment of acquittal by the ‘s-Hertogenbosch Court of Appeal and the reasoning on which it is based is such that the decision of the Central Appeals Tribunal to ignore it called for an explanation.

56. The Court finds that the failure by the Central Appeals Tribunal to accede to the applicant’s request to hear Mr G. and Mr S. as witnesses placed the applicant under a disadvantage vis-à-vis his opponent. There has, for that reason, been a violation of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION

57. The applicant alleged a violation of Article 6 § 2 of the Convention in that the decision of the Central Appeals Tribunal called into question the acquittal given by the ‘s-Hertogenbosch Court of Appeal.

58. This complaint does not appear in the original application. It was made for the first time in the applicant’s observations on the merits, which were submitted on 24 February 2015. The Central Appeals Tribunal’s decision was given already on 30 January 2009.

59. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

60. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

61. The applicant submitted no claim in respect of non-pecuniary damage. He claimed 81,932.03 euros (EUR), the amount he had been ordered to repay, in respect of pecuniary damage. He submitted that if the two witnesses had been heard, the agreement reached between him and
Mr G. could have been proved and the decisions reducing the benefits could have been reversed.

62. The Government pointed out that even if it could have been proved that an agreement had been reached in the terms alleged, the applicant’s actual entitlement would still have been governed by the statutory framework in place.

63. The Court cannot find it established that the outcome of the proceedings would have been more favourable to the applicant had the violation of Article 6 § 1 not taken place. Being unable to find a definite causal link between the violation found and the pecuniary damage alleged, it therefore rejects this claim.

B. Costs and expenses

64. The applicant also claimed EUR 5,356.90 including value-added tax for the costs and expenses incurred in the domestic proceedings.

65. The Government argued that only costs incurred in the proceedings before the Court should be awarded.

66. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these relate to the violation or violations found, have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum claimed in full.

C. Default interest

67. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Joins to the merits the Government’s objection and dismisses it after considering the merits;

2. Declares the applicant’s complaint under Article 6 § 1 admissible and the remainder of the application inadmissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,356.90 (five thousand three hundred and fifty-six euros and ninety cents), including value-added tax, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsLuis López Guerra
RegistrarPresident

 

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