AS TO THE ADMISSIBILITY OF
Application No. 20028/92
by Paulina Anna Matthea Maria DUPONT and
Anton Cornelis VAN IDSINGA
against the Netherlands
The European Commission of Human Rights sitting in private on 18
October 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
Mr. H.C. KRÜGER, 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 March 1992 by
Paulina Anna Matthea Maria DUPONT and Anton Cornelis VAN IDSINGA
against the Netherlands and registered on 22 May 1992 under file No.
20028/92;
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 first applicant is a Dutch citizen, born in 1945, and
resident in Tilburg. She is a midwife by profession. The second
applicant is a Dutch citizen, born in 1948, and resident in Rotterdam.
He is a physiotherapist by profession. The applicants are represented
before the Commission by Mrs. J. Hermelink-Kramer, a lawyer employed
by the Stichting Rechtsbijstand Gezondheidszorg (Foundation for Legal
Assistance in Health Care) at Utrecht.
The facts as submitted by the parties may be summarised as
follows.
In Dutch social security law, for instance in Section 5 of the
Sickness Benefits Act (Ziektewet), there is a provision according to
which certain work relationships are to be assimilated to employment.
In such cases insurance is compulsory against working disability,
illness and unemployment, and the employer must deduct the insurance
premiums from the employee's salary.
The administration of the insurance system is entrusted to the
Industrial Insurance Board (Bedrijfsvereniging) which determines the
premiums.
For a long time, the Industrial Insurance Board for Health,
Mental and Social Well-Being (Bedrijfsvereniging voor de Gezondheid,
Geestelijke en Maatschappelijke Belangen, abbreviated hereafter
"B.V.G.") considered that certain work relationships such as those
between the applicants and their colleagues did not fall under the
social security law. However, in August 1984 the Board changed its
policy. Consequently, on 23 December 1985 the second applicant, and
on 25 August 1986 the first applicant, were requested to pay social
security premiums.
Under the Social Security Appeals Act (Beroepswet) it is possible
to appeal against such decisions to an Appeals Tribunal (Raad van
Beroep), which is an independent court, but only after the appellant
has obtained a formal decision (voor beroep vatbare beslissing) by the
Industrial Insurance Board. The first applicant requested the B.V.G.
to issue such a decision on 14 September 1986, but it was not issued
until almost two and a half years later, on 3 March 1989. The second
applicant asked for a decision on 27 January 1986, but it was not
issued until almost three years and four months later, on 17 May 1989.
The first applicant's appeal of 22 March 1989 to the Appeals
Tribunal of 's-Hertogenbosch was rejected on 2 August 1990 and her
further appeal was rejected by the Central Appeals Tribunal (Centrale
Raad van Beroep) on 2 October 1991. The second applicant's appeal of
5 June 1989 to the Appeals Tribunal of Rotterdam was rejected on 20
August 1990 and his further appeal was rejected by the Central Appeals
Tribunal on 2 October 1991.
COMPLAINTS
The applicants complain of violations of Article 6 para. 1 of the
Convention in that they did not have a fair hearing before a court
within a reasonable time. They point out that they could not appeal
to the Appeals Tribunal until they had received a formal decision from
the Industrial Insurance Board, and they consider it unreasonable that
the Board should require a period of two and a half years and over
three years respectively to issue such a decision.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 30 March 1992 and registered
on 22 May 1992.
On 6 January 1993 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.
The Government's observations were submitted on 19 March 1993 and
the applicants' observations in reply were submitted on 21 June 1993.
THE LAW
The applicants complain of violations of Article 6 para. 1
(Art. 6-1) of the Convention in that they did not have a fair hearing
before a court within a reasonable time. They submit that they could
not appeal to the Appeals Tribunal until they had received a formal
decision from the Industrial Insurance Board, and they consider it
unreasonable that the Board should require a period of two and a half
years and over three years respectively to issue such a decision.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides as follows:
"1. In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing
within a reasonable time by an independent and impartial
tribunal established by law."
The Government first submit that Article 6 para. 1 (Art. 6-1) of
the Convention was not applicable to the proceedings concerned, since
these proceedings did not involve the determination of a civil right.
They point out that the proceedings concerned the obligation to pay
contributions under the Sickness Benefits Act (Ziektewet), the
Unemployment Insurance Act (Werkloosheidswet), the Health Insurance Act
(Ziekenfondswet) and the Labour Disablement Insurance Act (Wet op de
Arbeidsongeschiktheidsverzekering). In respect of the Sickness Benefits
Act, the Government note that the European Court of Human Rights has
found Article 6 (Art. 6) to be applicable to proceedings concerning the
entitlement to benefits, whereas there is no similar decision in regard
to the benefits under the other Acts. According to the Government,
proceedings regarding the payment of contributions under the said
social security schemes should be excluded, in the same way as taxation
proceedings, from the application of Article 6 (Art. 6) of the
Convention.
In respect of the applicants' suggestion that it would have been
in their interest to have had earlier recourse to the courts, the
Government note that the applicants neither requested the B.V.G. to
expedite the issue of the formal decision, nor complained about this
to the Social Insurance Council (Sociale Verzekeringsraad), which organ
monitors the implementation of social security legislation and rules
on complaints against administering organs, including the B.V.G. The
Government further submit that the applicants could have instituted
summary proceedings (kort geding) before the civil courts in order to
compel the B.V.G. to expedite the issue of the formal decisions
requested.
As regards the question whether the cases were decided within a
reasonable time, the Government state that Article 6 para. 1
(Art. 6-1) of the Convention seems to refer only to the actual court
proceedings and not to administrative matters prior to their
commencement. Concerning the proceedings before the Appeals Tribunal
and the Central Appeals Tribunal, the Government find no indication
that their length was excessive. Even if the time required by the
B.V.G. to issue formal decisions should be taken into account, the
Government are of the opinion that the reasonable time provision of
Article 6 para. 1 (Art. 6-1) has been respected.
The Government refute the applicants' complaint that there is a
deficiency in the legal protection of persons required to pay the
social security contributions in question, in that such persons are
barred from appealing against such a decision as long the B.V.G. has
not issued a formal decision. The Government submit that, apart from
the possibility of summary proceedings before a civil court mentioned
above, the appeal courts in fact assess any delay in giving a formal
decision in the light of the general principles of proper
administration (algemene beginselen van behoorlijk bestuur), notably
the duty of care and the principle of fair play. The Central Appeals
Tribunal has held that long delays in giving formal decisions may
seriously restrict the right of access to the courts. However, if the
person concerned has failed to take sufficient steps to prompt the
administering body to expedite the issue of the formal decision, the
Tribunal would assume that the appellant had no urgent interest in a
prompt conclusion of the matter and would reject an appeal based on an
alleged breach of the duty of care.
The Government conclude that the application is inadmissible as
being incompatible with the provisions of the Convention or,
alternatively, as being manifestly ill-founded.
The applicants submit that Article 6 para. 1 (Art. 6-1) of the
Convention is applicable to proceedings concerning the social security
legislation at issue. They contend that, having regard to the fact
that the payment of social security contributions is a personal
obligation of an economic nature, there is a direct connection between
the assumed or fictitious employment relations and the contributions
to be paid. They also contend that the social security schemes for
employees, for which contributions have to be paid, resemble private
insurance for which premiums must also be paid. Litigation over the
latter would attract the protection of Article 6 para. 1 (Art. 6-1).
This provision is, therefore, equally applicable to proceedings
concerning the payment of contributions to the social security schemes
in question in the present case.
The applicants submit that the reasonable time requirement of
Article 6 para. 1 (Art. 6-1) of the Convention also applies to the
administrative procedure prior to the court proceedings. Thus in the
present case a calculation of the length of the proceedings for the
purposes of this requirement would encompass the undue delay in the
preparation of the B.V.G.'s formal decisions. In this respect the
applicants doubt whether a complaint to the Social Insurance Council
or summary proceedings before the civil courts would have been
effective, since the delay was apparently due to the large number of
pending requests before the B.V.G. to issue formal decisions.
The Commission finds that the present application requires a
determination of whether Article 6 para. 1 (Art. 6-1) of the Convention
is applicable to the proceedings at issue and, if so, whether the
applicants had a fair court hearing within a reasonable time as
required by that provision.
After an examination of these questions in the light of the
parties' submissions, the Commission considers that they raise issues
of fact and law of such complexity that their determination requires
an examination of the merits of the application as a whole. The
Commission concludes, therefore, that the application is not manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other grounds for declaring it inadmissible have been
established.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Secretary to the Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)
Full & Egal Universal Law Academy