PARTIAL
AS TO THE ADMISSIBILITY OF
Application No. 18266/91
by Kiymet DÜMAN
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 May 1993, 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
M.A. NOWICKI
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 22 February 1991
by Kiymet DÜMAN against the Netherlands and registered on 28 May 1991
under file No. 18266/91;
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 Turkish national, born in 1951, and is
currently residing in Amsterdam. Before the Commission the applicant
is represented by Mrs. M.D. van Aller, a lawyer practising in
Amsterdam.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Until 3 December 1980, when the applicant fell ill, she worked
as a kitchen help in a hospital. On the basis of the Sickness Benefits
Act (Ziektewet) she received benefits for one year. As from 10 December
1981 these benefits were replaced by combined disability benefits under
the General Labour Disablement Benefits Act (Algemene Arbeids-
ongeschiktheidswet - "AAW") and the Labour Disablement Insurance Act
(Wet op de Arbeidongeschiktheidsverzekering - "WAO"), on the basis of
complete incapacity to work.
By letter of 25 April 1985, the Industrial Insurance Board for
the Health, Mental and Social Interests Sector (Bedrijfsvereniging voor
de Gezondheid, Geestelijke en Maatschappelijke Belangen) informed the
applicant of its decision to discontinue the payment of benefits under
the AAW and WAO as from 1 April 1985, as she was considered able to
perform adapted work.
The applicant, represented by a lawyer, filed an appeal with the
Appeals Tribunal (Raad van Beroep) of Amsterdam. Following a hearing
on 19 December 1986 where only the applicant and her lawyer appeared,
and a hearing on 23 September 1987 where both parties appeared, the
Appeals Tribunal, having examined the file, rejected the appeal as ill-
founded on 12 October 1987.
The applicant, again represented by a lawyer, filed an appeal
against this decision with the Central Appeals Tribunal (Centrale Raad
van Beroep). By letter of 13 June 1990 the applicant was invited to
attend the hearing of her case by the Central Appeals Tribunal on 12
July 1990. By letter of 21 June 1990 the applicant's lawyer requested
the Central Appeals Board to postpone this hearing, stating that she
had to attend another hearing at the same time, and informed the
Central Appeals Tribunal of other dates on which she would also be
unable to attend.
On 12 July 1990 the hearing before the Central Appeals Tribunal
took place. Neither the applicant, who was on holiday in Turkey, nor
the Industrial Insurance Board appeared at the hearing.
In its decision of 2 August 1990 the Central Appeals Tribunal
rejected the lawyer's request of 21 June for a postponement and, after
having considered the various reports on the applicant's physical and
mental state of health and the applicant's comments on these reports,
upheld the decision of the Appeals Tribunal of 12 October 1987.
Concerning the lawyer's request to postpone the hearing of 12 July
1990, the Tribunal found no indication of circumstances preventing the
applicant from appearing in person, either alone or assisted by another
lawyer, at the hearing of 12 July 1990 in order to exercise her rights
under the Appeals Act (Beroepswet). The Central Appeals Tribunal stated
it had not found it necessary to summon the applicant to appear in
person in order to provide information and noted that the Industrial
Insurance Board was not represented at the hearing before the Tribunal
either. No new facts or other elements on which the applicant should
have been enable to comment had arisen. The Central Appeals Tribunal
took into consideration that the case had already been examined on
appeal before the Appeals Tribunal, where the applicant, with legal
assistance, had appeared. The Central Appeals Tribunal finally held
that in deciding upon requests to postpone a hearing regard must be had
to the fact that to grant postponements generally results in delays in
the large number of pending cases.
On 13 September 1990 a certified copy of the decision of 2 August
1990 by the Central Appeals Tribunal was sent to the applicant.
COMPLAINTS
The applicant complains that the refusal by the Central Appeals
Tribunal of her lawyer's request to postpone the hearing of 12 July
1990 and the delay between the judgment of the Appeals Tribunal and the
beginning of the examination of the case by the Central Appeals
Tribunal violated her right to a fair hearing within a reasonable time
as guaranteed by Article 6 para. 1 of the Convention.
THE LAW
1. The applicant complains that the refusal by the Central Appeals
Tribunal of her lawyer's request to postpone the hearing of 12 July
1990 and the delay between the judgment by the Appeals Tribunal and the
beginning of the examination of the case by the Central Appeals
Tribunal violated her right to a fair hearing within a reasonable time
as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention. This
provision, insofar as relevant, reads as follows:
"In the determination of his civil rights and obligations
(...) everyone is entitled to a fair and public hearing
within a reasonable time by a (...) tribunal (...)."
The first question which arises is whether the proceedings at
issue concerned the applicant's "civil rights and obligations".
However, the Commission does not need to resolve this issue as, even
if Article 6 para. 1 (Art. 6-1) applies, the complaint is inadmissible
for the following reasons.
Insofar as the applicant complains that she did not receive a
fair hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention due to the refusal of the Central Appeals Tribunal to
postpone the hearing of 12 July 1990, the Commission recalls that the
right to a fair hearing implies that the interested party must be able
to present his case under conditions which do not place him at a
substantial disadvantage vis-à-vis his opponent (cf. No. 9938/82, Dec.
15.7.86, D.R. 48 p. 21). The Commission further recalls that the
manner of application of Article 6 para. 1 (Art. 6-1) of the Convention
to proceedings before courts of appeal depends on the special features
of the proceedings involved; account must be taken of the entirety of
the proceedings in the domestic legal order and of the role of the
appellate court therein (Eur. Court H.R., Helmers judgment of 29
October 1991, Series A no. 212-A, p. 15, para. 31).
The Commission notes that neither the applicant, who was on
holiday in Turkey, nor the Industrial Insurance Board availed
themselves of the possibility to appear before the Central Appeals
Tribunal. The Commission further notes that the applicant with the
assistance of her lawyer had participated in the hearings before the
Appeals Tribunal on 19 December 1986 and 23 September 1987
respectively, and that the Central Appeals Tribunal stated in its
decision of 2 August 1990 that no new facts or other elements had
arisen in the proceedings before it. The Commission finally notes that
both the Appeals Tribunal and the Central Appeals Tribunal took into
account all the elements submitted to them by the parties in the
context of adversarial proceedings. Finally, there is no indication
that the applicant was prevented from submitting further evidence which
could have shown her incapacity to work.
The Commission therefore considers that the Central Appeals
Tribunal's refusal of the applicant's request for an adjournment did
not infringe the principle of a fair hearing within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention. Moreover, there is
nothing in the case-file to support the contention that the proceedings
at issue were otherwise unfair.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. Insofar as the applicant complains that her civil rights and
obligations have not been determined within a reasonable time, the
Commission decides to give notice of this complaint to the respondent
Government in accordance with Rule 48 para. 2(b) of its Rules of
Procedure and to invite them to submit their observations in writing
on the admissibility and merits of the application.
For these reasons, the Commission, by a majority,
DECIDES TO ADJOURN the examination of the applicant's complaint
that her civil rights and obligations have not been determined within
a reasonable time;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy