AS TO THE ADMISSIBILITY OF
Application No. 16690/90
by Watze DE VRIES
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 December 1992, 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
L. LOUCAIDES
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 12 May 1990 by
Watze DE VRIES against the Netherlands and registered on 11 June 1990
under file No. 16690/90;
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
The applicant is a Dutch citizen, born in 1937 and residing in
Sneek, the Netherlands. Before the Commission the applicant is
represented by Mr. G. E. M. Later, a lawyer practising in The Hague,
the Netherlands.
The facts of the case, as submitted by the parties, may be
summarised as follows.
On 20 November 1987 the Child Welfare Council (Raad voor de
Kinderbescherming) of Leeuwarden requested the Regional Court
(Arrondissementsrechtbank) of Leeuwarden to deprive the applicant of
custody of two of his children, whose mother he had divorced in 1976,
the reason for the request being, inter alia, the applicant's heroin
addiction and his serious neglect in the care of the children.
On 8 December 1987 the Regional Court heard the two children in
chambers and the applicant in the presence of his lawyer in camera.
At the end of this hearing, contrary to Article 909 of the Code of
Civil Procedure (Wetboek van Burgerlijke Rechtsvordering), it was not
announced when the Regional Court would pronounce its decision.
By decision of 24 December 1987, which was pronounced in public,
the Regional Court deprived the applicant of the custody of his two
children. Pursuant to Article 910 para. 4 of the Code of Civil
Procedure an appeal against this decision could be lodged within three
weeks as from that date.
The Registrar to the Regional Court sent a copy of this decision
to the applicant's lawyer on 29 January 1988.
On 19 February 1988 the applicant filed an appeal against this
decision with the Court of Appeal (Gerechtshof) of Leeuwarden.
By letter of 29 March 1988 the Registrar to the Regional Court
informed the Court of Appeal that, due to an oversight by the Regional
Court, the decision of 24 December 1987, contrary to Article 913 para.
1 (b) of the Code of Civil Procedure, had not been sent to the
applicant's lawyer until 29 January 1988.
On 12 April 1988 the Court of Appeal heard the applicant's
children in chambers and on 13 April 1988 the applicant in the presence
of his lawyer in camera.
On 11 May 1988 the Court of Appeal, referring to Article 910
para. 4 of the Code of Civil Procedure, rejected the applicant's appeal
for being out of time, as it was not submitted within three weeks
following the decision of 24 December 1987.
On 17 June 1988 the applicant filed an appeal in cassation with
the Supreme Court (Hoge Raad).
The Advocate-General (Procureur-Generaal) in his conclusion of
29 September 1989 considered that the decision of 11 May 1988 should
be quashed in view of the combination of the facts that apparently the
Regional Court had failed to announce the date and hour of its
decision, that due to an oversight by the Regional Court the decision
of 24 December 1987 was only sent to the applicant's lawyer on
29 January 1988 and that the decision of the Regional Court was not
pronounced, as prescribed by law, within 14 days after the last
hearing.
On 17 November 1989 the Supreme Court rejected the applicant's
appeal. The Supreme Court held that it did not follow from Article 910
para. 4 of the Code of Civil Procedure that the period for appeal only
started at the moment on which a party has or could have become
acquainted with the contents of a judicial decision. In so far as the
applicant relied on Article 6 para. 1 of the Convention the Supreme
Court considered that the Convention contains no right to appeal and
that the Court of Appeal's interpretation of the provisions dealing
with access to an appeal court did not deprive the applicant of a fair
hearing within the meaning of Article 6 of the Convention.
RELEVANT DOMESTIC LAW
Articles 900 to 968 (d) of the Code of Civil Procedure deal with
the specific proceedings concerning parental authority, custody,
parental access and emancipation of minors.
Article 909 of the Code of Civil Procedure, in so far as
relevant, provides:
[Translation]
"1. The decisions are given at the latest fourteen
days after the last hearing. Failure to
indicate the reasons for the decision entails
nullity [...].
[...]
3. Where the decision must be pronounced in public,
the judge announces the day and hour of the
pronouncement at the last hearing."
Article 910 para. 4 of the Code of Civil Procedure reads:
[Translation]
"The appeal period is three weeks and starts to run on the
day after which the Registrar has sent the prescribed
notification of the decision or, when the decision has been
pronounced in public, after the day of the pronouncement."
Article 913 para. 1 (b) of the Code of Civil Procedure reads:
[Translation]
"Of every decision concerning the permanent or temporary
authority to be exercised over minors, including
co-guardianship, the Registrar will immediately notify:
[...]
b. the person, who as a result thereof will lose the factual or
legal authority;
[...]."
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
that he did not receive a fair trial as the judicial authorities'
failure to respect statutory procedural requirements barred him from
appealing against the Regional Court's decision of 24 December 1987.
2. The applicant also complains under Article 8 of the Convention
that the decision to deprive him of the custody of his two children
unjustly interfered with his right to respect for his family life,
whereas he was barred from challenging this decision before an appeal
court.
3. Finally the applicant complains under Article 13 of the
Convention that the oversights in the proceedings at issue, caused by
the judicial authorities, deprived him of an effective remedy against
the Regional Court's decision of 24 December 1987.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 12 May 1990 and registered on
11 June 1990.
On 8 November 1990 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on the admissibility and merits of
the application.
The Government submitted their observations on 31 January 1991.
The applicant's observations in reply were submitted on 8 April 1991.
On 9 April 1991 the Commission decided to refer the application
to the Second Chamber.
THE LAW
The applicant complains that the judicial authorities' failure
to respect statutory procedural rules in the proceedings on the custody
of his children barred him from appealing against the Regional Court's
decision of 24 December 1987 and thus deprived him of a fair trial
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
He also invokes Articles 8 and 13 (Art. 8, 13) of the Convention in
this context.
The Government are of the opinion that the Supreme Court has
correctly held that neither Article 6 para. 1 (Art. 6-1) nor any other
provision of the Convention provides for a right of appeal, but add
that if a possibility of appeal exists in proceedings concerning the
determination of civil rights, the appeal proceedings must be
consistent with the provisions of Article 6 para. 1 (Art. 6-1) of the
Convention.
The Government admit that in the present case both the Regional
Court and the Registrar did not respect Article 909 paras. 1 and 3 and
Article 913 of the Code of Civil Procedure but argue that these
provisions only serve as guidelines for correct procedure. Referring
in particular to Article 910 of the Code of Civil Procedure, the
Government argue that Dutch law attaches no consequences to the non-
observance of these guidelines.
The Government consider that the Supreme Court rightly applied
the statutory provisions concerning the time-limit for the introduction
of an appeal in a strict manner, it being in the interest of legal
certainty and the public that parties involved know for certain when
a decision can be regarded as final. The Government consider the
applicable provisions to be quite clear on that point. They are of the
opinion that the applicant was not denied an appeal procedure, but that
the applicant or his counsel, in view of the clear rule that the
decision is to be given no later than fourteen days after the day of
the last hearing, could have applied to the Registrar for information
on the date of the pronouncement of the decision. The applicant and
his counsel should have been aware that, by waiting for the
notification of the decision, the applicant was running the risk that
the time-limit for an appeal had expired.
The applicant, referring in particular to the conclusion of
29 September 1989 by the Advocate-General to the Supreme Court,
maintains that the Court of Appeal and the Supreme Court unjustly
considered his appeal of 19 February 1988 to have been submitted out
of time.
The Commission recalls at the outset that Article 6 para. 1
(Art. 6-1) of the Convention, which provision entitles everyone to a
fair hearing by a tribunal in the determination of his civil rights and
obligations, does not as such guarantee the right of appeal to a higher
court (cf. No. 11941/86, Dec. 5.10.88, D.R. 57 p. 100) but that where
the opportunity to seek appeal is provided under domestic law, the
guarantees of Article 6 (Art. 6) continue to apply to the proceedings
on appeal (see mutatis mutandis No. 9315/81, Dec. 15.7.83, D.R. 34 p.
96).
The Commission further recalls that Article 6 para. 1 (Art. 6-1)
does not debar Contracting Parties from making regulations governing
the access of litigants to an appellate court, provided that such
regulations serve the purpose of ensuring the proper administration of
justice (No. 6916/75, Dec. 8.10.76, D.R. 6 p. 107; No. 8407/78, Dec.
6.5.80, D.R. 20 p. 179) and that, in this connection, the regulations
concerning time-limits to be observed when lodging an appeal
undoubtedly serve the purpose of ensuring the proper administration of
justice (cf. No. 11122/84, Dec. 2.12.85, D.R. 45 p. 256 and No.
10857/84, Dec. 15.7.86, D.R. 48 p. 106).
Nevertheless, the Convention is intended to guarantee not rights
which are theoretical or illusory but rights that are practical and
effective, in particular as regards the right of access to the court
in view of the prominent place held in a democratic society by the
right to a fair trial (Eur. Court H.R., Airey judgment of 9 October
1979, Series A no. 32, para. 24). Therefore an application to an
appeal court cannot be subject to time-limits which, in certain
circumstances, render such an application uncertain or aleatory and,
by that same token, ineffective (De Geouffre de la Pradelle v. France,
Comm. Report 4.9.91, para. 50).
Having regard to the particular circumstances of the present case
and the parties' arguments, the Commission considers that the
application raises issues of fact and law which can only be resolved
by an examination on the merits. The application cannot, therefore,
be declared manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention. No other grounds for
inadmissibility have been established.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy