AS TO THE ADMISSIBILITY OF
Application No. 12229/86
by De Geillustreerde Pers
against the Netherlands
The European Commission of Human Rights sitting in private
on 9 November 1987, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 May 1986
by De Geillustreerde Pers against the Netherlands and registered
on 20 June 1986 under file N° 12229/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
applicant company, may be summarised as follows:
The applicant company, a publishing firm, is a corporate body
registered in Amsterdam.
In the proceedings before the Commission it is represented by
Mr. A.H. Vermeulen, a lawyer practising in The Hague.
A magazine published by the applicant company investigated
whether banks were prepared to accept illegally obtained money. The
reporters carrying out the investigation did not reveal their identity
to the bank managers. The investigation revealed that most of the
bank managers interviewed did not object to handling such money.
The banks were later informed of these findings by another
reporter. One of the banks started proceedings against the applicant
company and requested the Regional Court (Arrondissementsrechtbank) of
Amsterdam to hold preliminary proceedings in order to have their
informant heard as a witness about, inter alia, the identity of
their bank manager.
After this witness had denied that he knew the bank manager's
identity the general editor was heard as a witness.
He claimed that, being a reporter, he had the right to refuse
to disclose such information. He was supported by the applicant
company.
On 14 March 1985 the judge (Rechter-Commissaris) in the case
rejected the general editor's claim.
Both the applicant company and the general editor appealed
against this decision to the Court of Appeal (Gerechtshof) of
Amsterdam.
On 13 June 1985 the Court declared the applicant company's
appeal inadmissible because only the witness had the right to appeal
against a decision of this kind.
The general editor's appeal was also declared inadmissible
because he no longer had any interest in the appeal since the bank had
already discovered the bank manager's identity.
The applicant company and the general editor appealed against
these decisions to the Supreme Court (Hoge Raad), which declared the
applicant company's appeal admissible.
It considered, however, that it follows from the nature of the
right to refuse to testify that it is personal to the witness and
cannot be claimed by other parties. Accordingly, it is only open to
the witness to appeal against a decision failing to uphold this right
and not other parties to the litigation.
On the other hand, if at first instance the refusal to testify
is acknowledged, then the parties involved do have the possibility to
appeal when they are of the opinion that it is in their interest to
have the witness heard. In the Supreme Court's opinion this rule does
not raise an issue under Article 6 of the Convention.
Therefore the Supreme Court rejected the applicant company's
appeal. The general editor's appeal was also rejected because the
Supreme Court did not find the Court of Appeal's considerations to be
at fault.
COMPLAINTS
The applicant company states that the Supreme Court's
opinion implies a right of appeal for the party who objects to the
granting of the right not to testify, whereas there is no right of
appeal for the party who objects to the refusal to grant this right to
the witness concerned. The applicant company complains that this
difference in appeal rights contravenes the principle of "equality of
arms" in breach of Article 6 of the Convention.
THE LAW
The applicant company complains that the decision of the
Supreme Court constitutes a breach of the principle of equality of
arms in breach of Article 6 para. 1 (Art. 6-1) of the Convention, the
relevant part of which provides as follows: "In the determination of
his civil rights and obligations ... everyone is entitled to a fair
... hearing." The Commission notes that this is the sole issue raised
by the applicant company. The Commission also notes that the present
case involves preliminary proceedings concerning the examination of a
witness.
It may be asked whether the above proceedings can be
considered to determine a civil right or obligation.
The Commission, however, does not find it necessary to decide
this issue because, even assuming that Article 6 para. 1 (Art. 6-1) was
applicable, the complaints of the applicant company are inadmissibile
as being manifestly ill-founded for the following reasons:
According to the Commission's case-law Article 6 para. 1
(Art. 6-1) guarantees, inter alia, the principle of equality of arms,
i.e. that anyone who is a party to civil proceedings shall have a
reasonable opportunity of presenting his case to the Court under
conditions which do not place him at a substantial disadvantage
vis-à-vis his opponent (No. 7450/76, Dec. 28.2.77, D.R. 9 p. 108).
The Commission considers that the absence of a right of appeal
for the applicant company against a preliminary court decision
ordering a witness to disclose information about a particular person
does not contravene this principle. In fact, exemptions from the
general obligation to give evidence before the court are closely
related to the special situation of the witness concerned, and they
are not aimed at giving a procedural advantage to one of the parties
to the proceedings. Consequently, it is normal that only the witness
is competent to decide both whether to claim a right to exemption and
whether to appeal against a decision by which such exemption has been
refused.
The Commission therefore concludes that the complaint of
the applicant company is manifestly ill-founded, within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)