AS TO THE ADMISSIBILITY OF
Application No. 11834/85
by Euro Art Centre B.V.
Ronald Keith Piggott
Margaret Ellen Piggott-Hughes
against the Netherlands
The European Commission of Human Rights sitting in private
on 5 October 1987 the following members being present:
MM. C.A. NØRGAARD, President
M.A. TRIANTAFYLLIDES
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 18 June 1985
by Euro Art Centre B.V., Ronald Keith Piggott and Margaret Ellen
Piggott-Hughes against the Netherlands and registered on 31 October 1985
under file N° 11834/85;
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 as they have been submitted by the applicants may be
summarised as follows:
The first applicant, hereinafter called "the Company", is a
corporate body registered in Roermond, the Netherlands. The Company
deals in works of art.
The second and third applicants are both British citizens, at
present living in St. Leonards, United Kingdom, and born respectively
in 1942 and 1943.
They own the Company, which they set up on 24 June 1977.
The Company opened several accounts with a bank in 1977 and
also entered into two credit contracts with this bank in 1977 and 1979.
In 1980, after the Company had overdrawn its credit ceiling,
the bank transferred money from certain accounts held by the Company
to the main account.
The applicants introduced summary proceedings before the
Regional Court (Arrondissements Rechtbank) of Roermond. They claimed,
inter alia, that the accounts from which the money was transferred
were used by clients of the Company and had to be kept seperate from
the Company's main account. Accordingly the bank had acted illegally.
On 5 January 1983 the President of the Court found, however,
that the applicants had failed to object to the transfer in time and,
furthermore, that they had insufficiently substantiated their claim
that some accounts had to be kept separate from others and that this
was clear to the bank.
The applicants appealed against this decision to the Court of
Appeal (Gerechtshof) in 's-Hertogenbosch, which rejected the
applicants' appeal for the same reasons on 30 August 1983.
The applicants' appeal against this decision to the Supreme
Court (Hoge Raad) was rejected on 22 February 1985. The Supreme Court
held, inter alia, that the Court of Appeal had sufficiently
substantiated its grounds for rejection of the appeal.
The applicants alleged that one of the judges participating in
proceedings before the Regional Court of Roermond had also acted
against the Company as a lawyer for two former clients of the Company
and that he was in a partnership with the bank's lawyer.
The applicants complained about this to their lawyer at the
outset of the proceedings. He advised that the judge should have
disqualified himself and that the only remedy left was to start
proceedings against the judge via the Crown and the self-regulating
body of the Judiciary.
The second applicant, being of the opinion that the partiality
of one judge would affect that of the whole tribunal, lodged a
complaint against all the judges of the Regional Court involved in his
case with the Advocate-General (Procureur-Generaal), attached to the
Supreme Court.
He was informed by the Advocate-General that only the
complaint against the judge referred to above would be put before
the Supreme Court. After a letter by the second applicant stating
that he had no personal interest in any disciplinary proceedings
against individual judges, but that he wanted an investigation into
the "prejudice and justice" in proceedings in Roermond, the
Advocate-General replied by letter of 18 March 1986:
"(...) I understand that you do not maintain your complaints
against the individual judges of the Regional Court of
Roermond. Therefore I have withdrawn my request to the
Supreme Court concerning your complaint against Judge X (...)."
Apparently the applicants did not reply to this letter.
COMPLAINTS
1. The applicants have complained, inter alia, that by
denying them restitution of the money to which they were entitled the
Dutch courts have ignored Dutch law and the facts of the case and have
misinterpreted the evidence submitted to them.
They claim that the Dutch courts thus violated Article 1 of
Protocol No. 1 since the proceedings before the courts concerned the
assessment of property.
2. They complain that they did not have a fair hearing by an
independent and impartial tribunal and invoke Article 6 of the
Convention. From, inter alia, the decisions that the different
judges of the Regional Court of Roermond took in their case and from
the evidence used by these judges, the applicants conclude that the
judges were biased in the bank's favour. They furthermore complain
about the lack of independence and impartiality of the Regional Court
and in particular of the judge who was the lawyer of two former
dissatisfied clients of the Company, as well as the partner of the
bank's lawyer.
3. Furthermore, they invoke Article 13 of the Convention, because
one can only complain about judges to the Advocate-General of the
Supreme Court. This remedy, being a matter of internal professional
discipline, is not effective.
4. They also claim that the courts have discriminated against
them, being British, in favour of the defendant in the case, the Dutch
bank, on grounds of their nationality. They invoke Article 14 of the
Convention, stating that discrimination against them is evident from
the documents.
THE LAW
1. The Commission shall first consider whether each applicant
can be regarded as "victim" within the meaning of Article 25 (Art. 25) of the
Convention. In previous cases the Commission has held that majority
shareholders are entitled to claim to be "victims", for the purposes
of this provision, of a decision affecting the Company's property
rights (No. 1706/62, Collection 21, p. 34; Kaplan v. United Kingdom,
Comm. Report 17.7.80, para. 131, D.R. 21, p. 5).
The Commission notes that in the present case in the domestic
proceedings not only the Company but also the second and third
applicants were parties to the litigation. It further notes that the
second and third applicants are the owners and only shareholders of
the Company, who derived their sole income from this Company.
For these reasons the Commission considers that in addition to
the Company the second and third applicants also have a sufficiently
direct interest to claim, under Article 25 (Art. 25) of the Convention, to be
victims insofar as the Company's rights may have been affected in the
present case as well as their own.
The applicants complain that the Dutch courts violated
Article 1 of Protocol No. 1 (P1-1) by judging their case wrongly and denying
them restitution of money to which they were entitled under Dutch
law.
This provision reads as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to
the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with
the general interest or to secure the payment of taxes or
other contributions or penalties."
The Commission notes that the proceedings concerned the
private law relations between the applicants and their bank. The
Commission had held in previous cases that there is no interference
with the right to the peaceful enjoyment of possessions when,
pursuant to legal provisions governing private law relations between
individuals, a court orders one party to a contract to surrender a
possession to another, unless these provisions or court decisions
are arbitrary and unjustly deprive that person of property in favour
of another (No. 8588/79, 8589/79, Dec. 12.10.82, D.R. 29, p. 64;
No. 10000/82, Dec. 4.7.83, D.R. 33, p. 247).
However, after an examination in the present case of the
various complaints and of the decisions taken by the courts, the
Commission finds no evidence that the relevant provisions or decisions
were arbitrary, or that the courts did deprive one party of its
property in an unjustifiable way.
The Commission, accordingly, does not find that there has been
any infringement of the applicants' right to the peaceful enjoyment of
their possessions as guaranteed in the first sentence of the first
paragraph of Article 1 of Protocol No. 1 (P1-1).
This part of the complaint must therefore be rejected as being
manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
2. The applicants have complained that they did not have a fair
hearing by an independent and impartial tribunal and invoked Article 6
(Art. 6) of the Convention.
However, the Commission is not required to decide whether or
not the facts alleged by the applicants disclose any appearance of a violation
of this provision as, under it may only deal with a matter after all domestic
remedies have been exhausted according to the generally recognised rules of
international law.
The Commission notes that the applicants brought their
complaint before the Advocate-General attached to the Supreme Court.
This procedure, however, is of a disciplinary nature and cannot
redress a decision taken by an allegedly partial tribunal.
The Commission also notes that the applicants state that they
were advised by their lawyer that there exists no court remedy against
a failure by a judge to disqualify himself but that the only avenue
open to them was that before the Advocate-General.
However, it is clear that the applicants had a remedy in the
form of a challenge of the judge or judges concerned pursuant to
Section 30 seq. of the Dutch Code of Civil Procedure, in which they
could request the Court that its member or members abstain from
participating in their case, as soon as suspicion of bias had arisen.
An examination of the case does not disclose the
existence of any special circumstances which might have absolved the
applicant, according to the generally recognised rules of
international law, from exhausting the domestic remedies at their
disposal.
It follows that the applicants have not complied with the
condition as to the exhaustion of domestic remedies and their
application must in this respect be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
3. The applicants invoke Article 13 (Art. 13) of the Convention in respect
of their complaint that they had no effective remedy against the judges'
allegedly biased and partial behaviour and decisions.
The Commission, in examining the applicants' complaint under
Article 6 (Art. 6), has already found above that there was a remedy available
of which the applicants did not avail themselves.
Therefore the applicant's complaint that they did not have a
remedy is manifestly ill-founded and must be rejected under Article 27
para. 2 (Art. 27-2) of the Convention.
4. As regards the applicants' various complaints under Article 14
(Art. 14) of the Convention, the Commission recalls that this Article only
prohibits discrimination in the enjoyment of the rights and freedoms
set forth in the Convention (cf. No. 7568/76, Dec. 7.3.77, D.R. 9, p.
117; No. 7742/76, Dec. 4.7.79, D.R. 14/146).
The applicants have not indicated in connection with which
Article of the Convention they invoke Article 14 (Art. 14).
Assuming, however, that this complaint should be considered in
connection either with Article 6 (Art. 6) of the Convention or with Article 1
of Protocol No. 1 (P1-1), the Commission finds no indication whatsoever that
the applicants have been discriminated against by the courts either in
favour of the bank or in any other way.
It follows that this part of the application must also be
rejected as being 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.
Secretary to the Commission President to the Commission
(H.C. KRÜGER) (C. A. NØRGAARD)