AS TO THE ADMISSIBILITY OF
Application No. 12191/86
by Govert van GINSBERGEN
against the Netherlands
The European Commission of Human Rights sitting in private
on 8 September 1988, the following members being present:
MM. C.A. NØRGAARD, President
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy 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 17 April 1986
by Govert van GINSBERGEN against the Netherlands and registered
on 28 May 1986 under file No. 12191/86;
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 applicant is a retired lawyer of Dutch nationality, born
on 4 September 1909. He lives in Brasschaat, Belgium.
On 18 September 1985, the applicant instituted civil
proceedings on behalf of a client before the Regional Court
(Arrondissementsrechtbank) of Breda. The case concerned a tort action
against the secretary of an advisory committee which had declared that
the Collective Agreement for the Cleaning and Window-cleaners Trade
(CAO van het Schoonmaak-en Glazenwassersbedrijf) did not apply to the
contractual relationship between the applicant's client and his
employer.
On 18 March 1986, the Regional Court declared itself
incompetent ratione loci to deal with the case. The Court recalled
that Section 126 para. 1 of the Code of Civil Procedure states that
actions such as the one before it must be introduced with the court of
the place of residence of the summoned party. The case was then
referred to the competent court which was the Regional Court of
Amsterdam. The Regional Court subsequently considered that the
lawyer had made a blatant mistake in bringing the case before the
wrong court and ordered, relying on Section 58 of the Code of Civil
Procedure, that the applicant should bear the costs of the proceedings
in person. These amounted to 520 Dfl.
Section 58 of the Code of Civil Procedure provides, inter
alia, that lawyers who have been negligent in the exercise of their
profession can be ordered to pay the costs in person without
possibility of recovering them from their client. It appears that, in
these cases, the lawyer cannot lodge an appeal against the court
order. According to Section 332 of the Code of Civil Procedure, only
the parties in the civil proceedings can appeal against judgments of a
Regional Court.
COMPLAINTS
The applicant complains that the court order to pay the costs
of the proceedings was issued without a prior hearing of the applicant
concerning his alleged mistake, and that there was no remedy available
for him against the order. He alleges that Section 58 of the Code of
Civil Procedure, in general and as applied in his case, violates
Article 6 of the Convention.
The applicant also alleges that discrimination on the ground
of his age was the basis of the court order complained of.
THE LAW
1. The applicant has first complained that the Regional Court's
decision whereby he was ordered to pay the costs of the proceedings
personally was made without prior hearing and that there existed no
possibility of appeal against the order. In this respect he has
alleged that Section 58 of the Dutch Code of Civil Procedure, both in
general and as applied in his case, violates Article 6 (Art. 6) of the
Convention.
The Commission recalls that, under Article 25 (ARt. 25) of the
Convention, it is not competent to examine in abstracto the conformity
of national legislation with the Convention (see, inter alia,
No. 8307/78, Dec. 11.7.80, D.R. 21, p.116). It can therefore only deal
with the applicant's complaint insofar as it relates to the court
order that the applicant bear the costs of the proceedings personally.
The Commission understands the applicant to be relying on the
right to a fair hearing as guaranteed by Article 6 (Art. 6) of the Convention.
Article 6 para. 1 (Art. 6-1) provides, as far as relevant, as follows:
"In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law..."
The question arises in the present case whether this provision
is applicable to the proceedings which resulted in the order that the
applicant pay the cost of the proceedings.
The fact that the court order against the applicant was made
in the course of civil proceedings cannot, in itself, bring about the
applicability of Article 6 para. 1 (Art. 6-1) of the Convention, since the
applicant was not a party to those proceedings (cf., mutatis mutandis,
No. 10615/83, Dec. 3.7.84, D.R. 38, p. 213). The Commission must next
examine whether these proceedings and the court order involved the
determination of the applicant's civil rights or obligations within
the meaning of Article 6 para. 1 (Art. 6-1).
It appears from the facts that the basis for a court order
such as the one issued against the applicant depends, in the first
place, upon an assessment by the court that the lawyer in question has
in fact been negligent. The present applicant disputes that he has
been negligent at all and points out that he has correctly interpreted
the Dutch law concerning the competence of the civil courts.
The Commission recalls its decision in No. 10615/83 (loc.
cit,) which examined a similar complaint where it held as follows:
"The Commission recognises that in imposing the requirements
that the applicant pay the costs "thrown away" on 6 September
1983 it was necessary for the judge to evaluate to some extent
the applicant's conduct of the case which had resulted in the
question of an adjournment. That this evaluation could only
be partial and superficial is well-illustrated by the mere
fact that the applicant was not present to explain matters to
the Court, still less to defend his professional reputation.
Nevertheless, the Commission concludes that the judge's
investigation of this aspect of the applicant's conduct of
proceedings was conducted, not in the context of an evaluation
of his professional capabilities as such, or of his
professional relationship with his client, but as an aspect
of the proper administration of justice, responsibility of
which ultimately lies with the judiciary. The Commission
therefore concludes that the judge's order, and the
12191/86
exceptional proceedings, in the absence of the applicant and
with scant prior notice to him, must properly be regarded as
disciplinary proceedings in the context of the administration
of justice and the proper organisation of the work of the
courts, and hence did not involve a determination of the
applicant's civil rights or obligations."
Likewise in the present case, the Commission considers that
the Regional Court's evaluation of the applicant's professional
conduct of the proceedings was based on the requirement that the
applicable rules on competence ratione loci of the courts are observed
in order to avoid unnecessary proceedings and that the exceptional
court order must properly be regarded as a disciplinary measure in the
context of the administration of justice and the proper organisation
of the work of the courts.
Moreover, the Commission notes that the court order concerning
the costs of the proceedings had no bearing, either directly or
indirectly on the right of the applicant to continue to exercise his
profession, since the applicant had already retired from the
profession before the court's decision (cf, mutatis mutandis, Eur.
Court H.R. Pudas judgment of 27 October 1987, Series A no. 125, p. 16
para. 37).
The Commission therefore concludes that the decision whereby
the applicant was ordered to pay the costs of the proceedings did not
involve a determination of his civil rights or obligations.
The Commission must also consider whether the court order
constituted the determination of a criminal charge against the
applicant within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
Again, the Commission recalls its decision on the
admissibility of application No. 10615/83, in which it applied the
principles developed by the Court in case of Engel and others
(judgment of 8 June 1976, Series A no. 22, p. 35, para. 82). In that
case the Commission found that the nature of the order to pay costs
involved an investigation of the applicant's conduct of proceedings,
in the exercise of judicial control of the proper administration of
justice, with a view to preventing avoidable delay in the conduct of
proceedings. The Commission further noted that the maximum penalty
which could be imposed by the judge was that the lawyer personally pay
the actual costs "thrown away" as a result of his conduct.
The Commission finds that these considerations also apply in
the present case and therefore arrives at the same conclusion that,
although the court order involved the imposition of a sanction on the
applicant, the nature of the proceedings and the severity of the
penalty are not such as to constitute the "determination of a criminal
charge" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that the provisions of Article 6 para. 1 (Art. 6-1)
of the Convention are not applicable to the proceedings resulting in
the court order imposed on the applicant, and that the applicant's
complaints under Article 6 para. 1 (Art. 6-1) must be rejected as
incompatible ratione materiae within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. As regards the applicant's complaint that the court order
discriminated against him on grounds of age, the Commission recalls
that it has found that the proceedings complained of fall outside the
ambit of Article 6 para. 1 (Art. 6-1) of the Convention. Nor can it
be said that the facts in the present case fall within the ambit of
other substantive provisions of the Convention and the Protocols. It
follows, therefore, that Article 14 (Art. 14) does not apply in the
present case (cf., for example, Eur. Court H.R., Rasmussen judgment
of 28 November 1984, Series A no. 87, p. 12 para. 29) and that this
part of the application must also be rejected as incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)