DE VRIES v. the NETHERLANDS



                  EUROPEAN COMMISSION OF HUMAN RIGHTS

                            SECOND CHAMBER

                       Application No. 16690/90

                            Watze de Vries

                                against

                            the Netherlands

                       REPORT OF THE COMMISSION

                     (adopted on 13 October 1993)

                           TABLE OF CONTENTS

                                                                 Page

I.    INTRODUCTION

      (paras. 1-19) . . . . . . . . . . . . . . . . . . . . . . . . 1

      A.   The application

           (paras. 2-8) . . . . . . . . . . . . . . . . . . . . . . 1

      B.   The proceedings

           (paras. 9-14). . . . . . . . . . . . . . . . . . . . . . 1

      C.   The present Report

           (paras. 15-19) . . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 20-35). . . . . . . . . . . . . . . . . . . . . . . . 3

      A.   Particular circumstances of the case

           (paras. 20-29) . . . . . . . . . . . . . . . . . . . . . 3

      B.   Relevant domestic law and practice

           (paras. 30-35) . . . . . . . . . . . . . . . . . . . . . 4

III.  OPINION OF THE COMMISSION

      (paras. 36-65). . . . . . . . . . . . . . . . . . . . . . . . 7

      A.   Complaints declared admissible

           (para. 36) . . . . . . . . . . . . . . . . . . . . . . . 7

      B.   Points at issue

           (para. 37) . . . . . . . . . . . . . . . . . . . . . . . 7

      C.   Article 6 para. 1 of the Convention

           (paras. 38-50) . . . . . . . . . . . . . . . . . . . . . 7

      D.   Article 8 of the Convention

           (paras. 51-59) . . . . . . . . . . . . . . . . . . . . . 9

      E.   Article 13 of the Convention

           (paras. 60-62) . . . . . . . . . . . . . . . . . . . . .10

      F.   Recapitulation

           (paras. 63-65) . . . . . . . . . . . . . . . . . . . . .11

APPENDIX I   :  HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . .12

APPENDIX II  :  DECISION ON THE ADMISSIBILITY . . . . . . . . . . .13

I.    INTRODUCTION

1     The following is an outline of the case as submitted to the

European Commission of Human Rights and of the procedure before the

Commission.

A.    The application

2     The applicant is a Dutch citizen, born in 1937 and residing in

Sneek, the Netherlands.  Before the Commission he is represented by

Mrs. G.E.M. Later, a lawyer practising in The Hague, the Netherlands.

3     The application is directed against the Netherlands, whose

Government are represented by their Agent, Mr. Karel de Vey Mestdagh

of the Netherlands Ministry of Foreign Affairs.

4     Following a request from the Child Welfare Council to deprive the

applicant of the guardianship over two of his children, the Regional

Court heard the applicant and the two children on 8 December 1987.

5     By decision of 24 December 1987, which was pronounced in public

in the absence of the applicant, the Regional Court of Leeuwarden

deprived the applicant of the guardianship over his two children. On

29 January 1988 the Registrar to the Regional Court sent a copy of this

decision to the applicant's lawyer.

6     On 19 February 1988 the applicant filed an appeal against the

decision of 24 December 1987. On 11 May 1988 the Court of Appeal

rejected the appeal for being out of time, since it had been lodged

more than three weeks after 24 December 1987.

7     The applicant's appeal in cassation was rejected by the Supreme

Court on 17 November 1989.

8     The applicant complains under Article 6 para. 1 of the Convention

that he did not receive a fair trial, under Article 8 of the Convention

that his right to respect for his family life was unjustly interfered

with, and under Article 13 of the Convention that he was deprived of

an effective remedy against the Regional Court's decision of

24 December 1987.

B.    The proceedings

9     The application was introduced on 12 May 1990 and registered on

11 June 1990.

10    On 8 November 1990 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

11    The Government's observations were submitted on 31 January 1991.

The applicant submitted his observations in reply on 8 April 1991.

12    On 9 April 1991 the Commission referred the application to the

Second Chamber.

13    On 2 December 1992 the Commission (Second Chamber) declared the

application admissible.

14    After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement of the case.  In the light of the parties'

reaction, the Commission now finds that there is no basis on which such

a settlement can be effected.

C.    The present Report

15    The present Report has been drawn up by the Commission (Second

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

           MM.   S. TRECHSEL, President of the Second Chamber

                 H. DANELIUS

                 G. JÖRUNDSSON

                 J. C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           MM.   F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

16    The text of the Report was adopted on 13 October 1993 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 1 of the Convention.

17    The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

      (1)  to establish the facts, and

      (2)  to state an opinion as to whether the facts

           found disclose a breach by the State concerned

           of its obligations under the Convention.

18    A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application forms Appendix II.

19    The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.    Particular circumstances of the case

20    On 20 November 1987 the Child Welfare Council (Raad voor de

Kinderbescherming) of Leeuwarden, basing itself on Section 327

para. 1 (a) and (b) of the Civil Code - book 1 (Burgerlijk Wetboek -

boek 1), requested the Regional Court (Arrondissementsrechtbank) of

Leeuwarden to deprive the applicant of guardianship (ontzetting van de

voogdij) over 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.

21    On 8 December 1987 the Regional Court heard the two children in

the judge's chambers (in raadkamer) and the applicant in the presence

of his lawyer in camera (terechtzitting met gesloten deuren).  At the

end of this hearing, contrary to Section 909 of the Code of Civil

Procedure (Wetboek van Burgerlijke Rechtsvordering), the Court did not

announce when it would pronounce its decision.

22    By decision of 24 December 1987, which was pronounced in public

but in the absence of the applicant, the Regional Court deprived the

applicant of the guardianship over the children. The Court had regard

to reports on the applicant's children by the children's homes where

they resided recommending that they do not return to their father, the

applicant's numerous convictions of, amongst other things, assault,

theft, intentional violation of the Opium Act, the fact that in January

1988 he had to appear before the Magistrate (politierechter) on the

suspicion of again having violated the Opium Act and the statements the

applicant and his two children had made in the course of the hearings

of 8 December 1987,   Pursuant to Section 910 para. 4 of the Code of

Civil Procedure an appeal against this decision could be lodged within

three weeks as from that date.

23    The Registrar to the Regional Court sent a copy of this decision

to the applicant's lawyer on 29 January 1988.

24    On 19 February 1988 the applicant filed an appeal against the

decision of 24 December 1987 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

Section 913 para. 1 (b) of the Code of Civil Procedure, had not been

sent to the applicant's lawyer until 29 January 1988 and that,

therefore, the period for the introduction of an appeal would only run

from the latter date.

25    On 12 April 1988 the Court of Appeal heard the applicant's

children in the judge's chambers and on 13 April 1988 the applicant in

the presence of his lawyer in camera.

26    On 11 May 1988 the Court of Appeal, referring to Section 910

para. 4 of the Code of Civil Procedure, rejected the applicant's appeal

as being out of time, noting that it had not been submitted within

three weeks from the decision of 24 December 1987.

27    On 17 June 1988 the applicant filed an appeal in cassation with

the Supreme Court (Hoge Raad).

28    The Procurator-General (Procureur-Generaal) to the Supreme Court

considered in his opinion of 29 September 1989 that the Court of

Appeal's decision of 11 May 1988 should be quashed given that the

Regional Court had failed to announce the date and hour of its

decision, that the decision of the Regional Court of 24 December 1987

was not pronounced, as prescribed by law, within 14 days after the last

hearing and that due to an oversight by the Regional Court it was not

sent to the applicant's lawyer until 29 January 1988.

29    On 17 November 1989 the Supreme Court rejected the applicant's

appeal in cassation.  It held that it did not follow from Section 910

para. 4 of the Code of Civil Procedure that the period for appeal only

ran from the moment at which a party had or could have become

acquainted with the contents of the judicial decision.  Under

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.

B.    Relevant domestic law and practice

30    Section 327 para. 1 (a) and (b) of the Civil Code - book 1

provides as follows:

      "Indien de rechtbank dit in het belang van die

      minderjarigen noodzakelijk oordeelt, kan zij een voogd of

      toeziend voogd ten aanzien van een of meer tot een zelfde

      voogdij behorende minderjarigen ontzetten op grond van:

      a.   slecht levensgedrag;

      b.   misbruik van zijn bevoegdheid, verwaarlozing van zijn

      verplichtingen, of de omstandigheid dat hij niet in staat

      is tot een behoorlijke uitoefening van zijn voogdij of

      toeziende voogdij;"

      "When the Regional Court considers it necessary in the

      interest of those minors, it can deprive a guardian or co-

      guardian of the guardianship over one or more minors on the

      ground of:

      a.   bad conduct in life;

      b.   abuse of his authority, neglect of his commitments, or

      the circumstance that he is unable to properly exercise his

      guardianship or co-guardianship;"

31    Sections 900 to 968 (d) of the Code of Civil Procedure deal with

proceedings concerning parental authority, guardianship, parental

access and emancipation of minors (ouderlijke macht, voogdij, omgang

en handlichting).

32    Section 909 of the Code of Civil Procedure, in so far as

relevant, provides:

      "1.  De beschikkingen worden gegeven uiterlijk veertien

      dagen na het laatste verhoor. Zij worden op straffe van

      nietigheid met redenen omkleed. (...).

      (...)

      3.   Indien de beschikking in het openbaar moet worden

      uitgesproken, deelt de rechter bij het laatste verhoor dag

      en uur der uitspraak mede."

      "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."

33    Section 910 para. 4 of the Code of Civil Procedure reads:

      "De termijn van beroep loopt gedurende drie weken na de dag

      waarop de griffier de voorgeschreven mededeling van de

      beschikking heeft verzonden, of, indien de beschikking in

      het openbaar wordt uitgesproken, na de dag der uitspraak."

      "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."

34    Section 913 para. 1 (b) of the Code of Civil Procedure reads:

      "Van elke beschikking met betrekking tot het - blijvend of

      tijdelijk - over minderjarigen uit te oefenen gezag,

      daaronder begrepen de toeziende voogdij, doet de griffier

      onverwijld mededeeling:

      (...)

      b.   aan dengene, die dientengevolge het gezag in rechte of

      in feite zal verliezen;

      (...).

      "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;

      (...)."

35    Section 938 para. 2 of the Code of Civil Procedure, which -

according to Section 947 of the Code of Civil Procedure - applies to

proceedings on deprivation of guardianship reads, insofar as relevant:

      "Binnen veertien dagen na het laatste verhoor wordt de met

      redenen omkleede beschikking in het openbaar uitgesproken."

      "Within fourteen days after the last hearing the reasoned

      decision will be pronounced in public."

III.  OPINION OF THE COMMISSION

A.    Complaints declared admissible

36    The Commission has declared admissible the applicant's

complaints:

-     that he did not receive a fair hearing as the judicial

      authorities' failure to respect statutory procedural

      requirements prevented him from appealing in time against

      the Regional Court's decision of 24 December 1987;

-     that the decision to deprive him of the guardianship over

      his two children unjustly interfered with his right to

      respect for his family life;

-     that the judicial authorities' oversights deprived him of

      an effective remedy against the Regional Court's decision

      of 24 December 1987.

B.    Points at issue

37    Accordingly, the issues to be determined are:

-     whether there has been a violation of Article 6 para. 1

      (Art. 6-1) of the Convention;

-     whether there has been a violation of Article 8 (Art. 8) of

      the Convention; and

-     whether there has been a violation of Article 13 (Art. 13)

      of the Convention.

C.    Article 6 para. 1 (Art. 6-1) of the Convention

38    The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that he did not receive a fair hearing as the judicial

authorities' failure to respect statutory procedural requirements

prevented him from appealing in time against the Regional Court's

decision of 24 December 1987.

39    Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads as follows:

      "In the determination of his civil rights and obligations

      (...) everyone is entitled to a fair (...) hearing (...) by

      a (...) tribunal established by law."

40    The applicant, referring in particular to the Procurator-

General's opinion of 29 September 1989 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. He

submits that he did not know, nor could have known, when the time for

appeal began to run because a whole series of rules had been infringed

by the Regional Court and its Registrar.

41    The Government subscribe to the Supreme Court's view that neither

Article 6 para. 1 (Art. 6-1) nor any other provision of the Convention

provides for a right of appeal. They 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).

42    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 and that

Dutch law attaches no consequences to their non-observance.  Referring

to Article 910 of the Code of Civil Procedure, the Government stress

that the non-observance of these guidelines does not affect the time-

limit for an appeal.

43    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 in cases as the present

one know for certain when a decision must be regarded as final.  The

applicable provisions are clear on that point.

44    The Government finally submit that the applicant was not denied

an appeal procedure, but that he or his counsel, in view of the clear

statutory regulations, 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 would expire.

45    The Commission recalls at the outset that Article 6 para. 1

(Art. 6-1) of the Convention 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).

46    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).

47    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).  The "right to a court"

enshrined in Article 6 (Art. 6) may be subject to limitations, but

these must not restrict or reduce the access left to the individual in

such a way or to such an extent that the very essence of the right is

impaired (Eur. Court H.R., De Geouffre de la Pradelle judgment of

16 December 1992, Series A no. 253-B, p. 41, para. 28).

48    The Commission notes the following elements: firstly that,

contrary to the applicable statutory regulations, the Regional Court

failed to announce the date and hour of its decision, secondly that the

decision of the Regional Court was not pronounced within 14 days after

the last hearing and thirdly that, due to an oversight by the Regional

Court, the decision of 24 December 1987 depriving the applicant of the

guardianship over his two children was not sent to the applicant's

lawyer until 29 January 1988.

49    Given that a decision to deprive a parent of the guardianship

over his children substantially changes legal family relations, the

Commission is of the opinion that in situations such as in the present

case a careful balance must be struck between ensuring a proper

administration of justice and the personal interests of the parties

concerned.  The Commission cannot find that the rejection of the

applicant's appeal against the Regional Court's decision of

24 December 1987, as having been submitted out of time, can be

justified by any interest of the proper administration of justice. The

Commission, therefore, finds that the applicant did not effectively

enjoy his right of access to an appeal court.

Conclusion

50    The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

D.    Article 8 (Art. 8) of the Convention

51    The applicant complains under Article 8 (Art. 8) of the

Convention that the decision to deprive him of the guardianship over

his two children unjustly interfered with his right to respect for his

family life.

52    Article 8 (Art. 8) of the Convention reads as follows:

      "1.  Everyone has the right to respect for his private and

      family life, his home and his correspondence.

      2.   There shall be no interference by a public authority

      with the exercise of this right except such as is in

      accordance with the law and is necessary in a democratic

      society in the interests of national security, public

      safety or the economic well-being of the country, for the

      prevention of disorder or crime, for the protection of

      health or morals, or for the protection of the rights and

      freedoms of others."

53    The Commission recalls that Article 8 (Art. 8) applies to

decisions on guardianship over children (cf. Eur. Court H.R., Hoffmann

judgment of 23 June 1993, Series A no. 255-C, para. 29). It follows

that the Regional Court's decision to deprive the applicant of the

guardianship over his two children constituted an interference with the

right to respect for his family life, since this decision substantially

changed the legal relation between him and his two children. Such

interference entails a violation of Article 8 (Art. 8) of the

Convention unless it is "in accordance with the law", has an aim or

aims that is or are legitimate under para. 2 of Article 8 (Art. 8-2)

and is "necessary in a democratic society" for the aforesaid aim or

aims (cf. Eur. Court H.R. Olsson (No. 2) judgment of 27 November 1992,

Series A no. 250, p. 32, para. 77).

54    Concerning the question whether the interference complained of

was "in accordance with the law", the Commission recalls that it is

primarily for the national authorities, notably the courts, to

interpret and apply domestic law (cf. Eur. Court H.R., Olsson (no. 2)

judgment, loc. cit., p. 32, para. 79). However, the words "in

accordance with the law" include two requirements which go beyond

simple compliance with the domestic law. These requirements relate to

the quality of the law and can be summarised under the headings

"accessibility" and "foreseeability". A law which confers a discretion

on the authorities must indicate the scope and manner of exercise of

any such discretion with sufficient clarity to afford the necessary

protection (cf. Eur. Court H.R., Eriksson judgment of 22 June 1989,

Series A no. 156, p. 24, para. 59).

55    The Commission notes that the Regional Court's decision to

deprive the applicant of his guardianship was based on Section 327

para. 1 (a) and (b) of the Civil Code - book 1 (cf. para. 30 above).

56    Having examined the decision of the Regional Court of

24 December 1987, the Commission finds no indication that the decision

to deprive the applicant of his guardianship was contrary to Dutch law.

It is therefore satisfied that the deprivation of the applicant's

guardianship was "in accordance with the law" for the purpose of

Article 8 para. 2 (Art. 8-2) of the Convention. The fact that the

Regional Court failed to respect certain procedural rules and that the

applicant's subsequent appeal was rejected as having been submitted out

of time does not alter this conclusion.

57    The Commission further notes that the decision to deprive the

applicant of the guardianship over his two children was taken on the

basis of, inter alia, the applicant's own conduct and reports on the

children by the children's homes where they resided recommending that

they do not return to their father.

58    The Commission considers that the interference with the

applicant's right to respect for his family life by the decision of the

Regional Court may, in the circumstances of the present case,

reasonably be regarded as being necessary in a democratic society for

the protection of health and morals and the rights and freedoms of

others, i.e the children concerned, which are both legitimate aims

under para. 2 of Article 8 (Art. 8-2). The interference with the

applicant's right to respect for his family life within the meaning of

Article 8 para. 1 (Art. 8-1) of the Convention was thus justified under

para. 2 of this provision.

Conclusion

59    The Commission concludes, unanimously, that there has been no

violation of Article 8 (Art. 8) of the Convention.

E.    Article 13 (Art. 13) of the Convention

60    The applicant complains under Article 13 (Art. 13) of the

Convention that the judicial authorities' conduct of the proceedings

deprived him of an effective remedy against the Regional Court's

decision of 24 December 1987.

61    Having concluded that there has been a violation of Article 6

para. 1 (Art. 6-1) of the Convention (see para. 50), the Commission

finds that it is not necessary to examine the case under Article 13

(Art. 13) of the Convention. The requirements of Article 13 (Art. 13)

are less strict than, and are here absorbed by, those of Article 6

(Art. 6) (cf. Eur. Court H.R., Pudas judgment of 27 October 1987,

Series A no. 125-A, p. 17, para. 43).

Conclusion

62    The Commission concludes, unanimously, that it is not necessary

to examine whether there has been a violation of Article 13 (Art. 13)

of the Convention.

F.    Recapitulation

63    The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 50).

64    The Commission concludes, unanimously, that there has been no

violation of Article 8 (Art. 8) of the Convention (para. 59).

65    The Commission concludes, unanimously, that it is not necessary

to examine whether there has been a violation of Article 13 (Art. 13)

of the Convention (para. 62).

Secretary to the Second Chamber      President of the Second Chamber

          (K. ROGGE)                           (S. TRECHSEL)

                              APPENDIX I

                        HISTORY OF PROCEEDINGS

Date                                   Item

___________________________________________________________________

12 May 1990                            Introduction of application

11 June 1990                           Registration of application

Examination of admissibility

8 November 1990                        Commission's decision to invite

                                       the Government to submit their

                                       observations on the

                                       admissibility and merits of the

                                       application

31 January 1991                        Government's observations

8 April 1991                           Applicant's observations in

                                       reply

9 April 1991                           Commission's decision to refer

                                       the application to the Second

                                       Chamber

17 April 1991                          Commission's decision to grant

                                       the applicant legal aid

2 December 1992                        Commission's decision to declare

                                       the application admissible and

                                       to invite the parties, if they

                                       so wish, to submit further

                                       observations on the merits

Examination of the merits

13 October 1993                        Commission's deliberations on

                                       the merits final vote and

                                       adoption of the Report

 

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