HUMMELS v. THE NETHERLANDS



                      AS TO THE ADMISSIBILITY OF

                      Application No. 23003/93

                      by Erik Theodorus HUMMELS

                      against the Netherlands

      The European Commission of Human Rights (Second Chamber) sitting

in private on 28 February 1996, the following members being present:

           Mr.   H. DANELIUS, President

           Mrs.  G.H. THUNE

           MM.   G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

           Ms.   M.-T. SCHOEPFER, Secretary to the 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 2 November 1993

by Erik Theodorus HUMMELS against the Netherlands and registered on

24 November 1993 under file No. 23003/93;

      Having regard to:

-     the reports provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the observations submitted by the respondent Government on

      28 March 1995 and the observations in reply submitted by the

      applicant on 28 April 1995;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a Dutch citizen, born in 1949, and resides at

Utrecht, the Netherlands. He is a practising lawyer by profession.

      The facts of the case, as submitted by the parties, may be

summarised as follows.

a.    Particular circumstances of the present case

      On 8 April 1992, the Legal Aid Office (Buro voor Rechtshulp) at

the Hague appointed the applicant public defence counsel in cassation

proceedings before the Supreme Court (Hoge Raad) in the case of K., who

had filed an appeal in cassation against his criminal conviction by the

Court of Appeal (Gerechtshof) of 's-Hertogenbosch. The applicant had

not represented K. in the earlier stages of the criminal proceedings

against K. The Supreme Court decided K.'s appeal in cassation on

25 May 1993.

      By letter of 9 June 1993, the applicant submitted the declaration

of his fees in K.'s case to the Registrar (griffier) of the Supreme

Court. Insofar as relevant, this letter reads:

      "    I herewith send you my declaration in the case cited

      above. (...).

           I herewith send you as annexes the specifications of

      the activities. In my opinion it concerns here an extremely

      laborious case. In total, 48 hours and 9 minutes were spent

      on it, of which 18 hours travelling time. (...).

           I request you to apply Section 33 of the Order on Fees

      for Legal Aid in Criminal Cases."

      On 12 October 1993, the Registrar of the Supreme Court decided

to grant the applicant a total fee of 2.900,32 Dutch guilders. This

amount consisted of the standard fee, a travelling allowance, a mileage

allowance and value-added tax. The Registrar had not applied Section

33 of the Order on Fees for Legal Aid in Criminal Cases (Besluit

vergoedingen rechtsbijstand in strafzaken, hereinafter referred to as

"the Order"), as only the standard fee had been granted.

      The Registrar's decision was accompanied by an intervention

decision (tussenkomstbeslissing) within the meaning of Section 29 of

the Order dated 22 June 1993 of Supreme Court judge B., who found no

reason to grant a higher allowance than the standard fee and

consequently rejected the applicant's request to apply Section 33 of

the Order.

      By letter of 15 October 1993, the applicant requested the

President of the Supreme Court to intervene in the matter pursuant to

Section 29 of the Order. He also corrected his initial declaration, in

that the 18 hours travelling time were not included in the 48 hours and

9 minutes spent on the case, but should be added to the 48 hours and

9 minutes.

      This letter, insofar as relevant, reads:

      "    [In his determination of the fees of 12 October 1993]

      the Registrar does not at all deal with the request to

      apply Section 33 of the Order on Fees for Legal Aid in

      Criminal Cases. However, a decision of judge B. dated

      22 June 1993 was enclosed (...). Judge B.'s decision rests,

      I suppose, on an apparent mistake. The Registrar must

      determine a request to apply Section 33 and not you nor a

      judge appointed by you. Only when the counsel involved

      cannot agree with the Registrar's determination, is it for

      the counsel to decide whether or not to request

      intervention within the meaning of Section 29 of the Order

      on Fees for Legal Aid in Criminal Cases.

      (...).

           I explicitly request you to hear me before deciding

      this [intervention] request on the basis of Section 29 of

      the Order on Fees for Legal Aid in Criminal Cases.

           With respect to the present intervention I also

      request you to apply a procedure which is completely in

      accordance with the rules and principles laid down in

      Article 6 of the Convention. Thus, I would like to have at

      my disposal a written report about everything that the

      Registrar and judge B. have discussed with reference to my

      letter of 9 June 1993. I would also like to receive copies

      of the Registrar's recommendations with respect to the said

      letter of 9 June 1993 and with reference to this present

      letter. Insofar as these recommendations were given orally,

      I request you to make a report of them and to give me the

      opportunity to react to them before you reach a decision.

      (...)."

      In his letter of 26 October 1993, the acting President of the

Supreme Court, Judge H., rejected the applicant's request, holding:

      "    Judge B. has apparently and not incomprehensibly read

      in your letter of 9 June 1993 that you requested his

      intervention in case the Registrar did not grant your

      request to apply Section 33 of the Order on Fees for Legal

      Aid in Criminal Cases.

           Since on this basis he has given a decision pursuant

      to Section 29 of said Order, there is no room for a new

      decision."

b. Relevant domestic law

      Pursuant to Section 27 of the Order, the Registrar to the Court

which has dealt with the case, determines (vaststellen) the amount of

the fee that will be paid to the lawyer who has acted as public defence

counsel in that case.

      Section 33 of the Order reads as follows:

      "If the fee to be determined in accordance with this Order

      for legal aid provided in cases referred to in Chapter II

      or in Section 22 is apparently disproportionate to the work

      spent on it, with a minimum of 35 hours, the Registrar may

      determine the fee, upon the request of the lawyer

      concerned, for each 5 hours spent on the case at 40 per

      hundred of the standard fee."

      Section 29 of the Order provides as follows:

      "Against the Registrar's decision concerning the

      determination of the fees within the meaning of this Order,

      the lawyer involved may, within thirty days after the

      determination of the fee, request the intervention of the

      President of the court whose Registrar determined the fee

      (...)."

      According to Section 31 of the Order no appeal lies against the

President's decision on the request for intervention.

      On 1 January 1994 the new Legal Aid Act (Wet op de

Rechtsbijstand) entered into force, replacing the former Legal Aid Act

(Wet Rechtsbijstand aan Min- en Onvermogenden). In the new rules on

legal aid the intervention procedure has disappeared. Against decisions

taken under the new Legal Aid Act the administrative appeal procedure

provided for in the General Administrative Law Act (Algemene Wet

Bestuursrecht) can be applied to legal aid disputes.

COMPLAINT

      The applicant complains that the intervention proceedings were

not in conformity with the requirements of Article 6 para. 1 of the

Convention. He submits that in these proceedings there was no oral and

public hearing, that the proceedings were not adversarial, and that the

principle of equality of arms was not respected.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 2 November 1993 and registered

on 24 November 1993.

      On 11 January 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

      The Government's written observations were submitted on

28 March 1995. The applicant replied on 28 April 1995.

THE LAW

      The applicant complains that the intervention proceedings were

not in conformity with the requirements of Article 6 para. 1 (Art. 6-1)

of the Convention.

      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 and public hearing (...) by a

      (...) tribunal (...)."

      The Government submit that Article 6 para. 1 (Art. 6-1) of the

Convention is not applicable to the proceedings at issue. According to

the Government Section 33 of the Order merely authorises the Registrar

to determine a higher rate of payment, but legal aid lawyers have no

right to the application of Section 33 and, hence, a higher fee.

      The Government further submit that, assuming that the proceedings

at issue would fall within the scope of Article 6 para. 1 (Art. 6-1)

of the Convention, they were in conformity with the requirements of

this provision. According to the Government the applicant's initial

request included a reasoned request for the application of Section 33

of the Order. Therefore, when the Supreme Court took its decision on

22 June 1993, the Supreme Court case-file contained all relevant

information and the applicant's request of 15 October 1993 did not

contain any supplementary information of possible relevance to the

decision-making.

      The applicant refutes the Government's argument that the

proceedings at issue fall outside the scope of Article 6 para. 1

(Art. 6-1) of the Convention. He submits that the Registrar must give

reasons for decisions on requests for a higher fee for legal aid in

extremely complicated cases. If such a request is rejected, the lawyer

concerned may seek the intervention of the judge.

      He submits that in practice the remedy of appeal by intervention

is purely illusory. A request for a higher legal aid fee is apparently

not decided by the Registrar but directly by the "intervening" judge

acting in advance without conducting any proper examination.

      After an examination of the complaint in the light of the

parties' submissions, the Commission considers that it raises complex

issues of fact and law requiring an examination of the merits.

      The application cannot, therefore, be declared manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other grounds for inadmissibility 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 Second Chamber      President of the Second Chamber

      (M.-T. SCHOEPFER)                      (H. DANELIUS)

 

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