AS TO THE ADMISSIBILITY OF
Application No. 12087/86
by André KARTING
against the Netherlands
The European Commission of Human Rights sitting in private
on 13 May 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
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 2 October 1985
by André KARTING against the Netherlands and registered
on 7 April 1986 under file No. 12087/86;
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 of German nationality, born on 10 May 1941 in
Rotterdam. He is an engineer, presently residing in Voorburg, the
Netherlands.
The facts of this case, as submitted by the applicant, may be
summarised as follows.
From 1 July 1981, the applicant was employed with a company in
The Hague. On 22 July 1982, the applicant's superior noticed that the
applicant's lunch-break was longer than he had officially indicated on
the time-clock. The superior, who had already suspected the applicant
of misusing the time-clock, ordered the applicant to present himself,
from that day onwards, in person, at the beginning and at the end of
each lunch-break.
On 18 August 1982 the employer dismissed the applicant,
following a conversation between the applicant and his superior
concerning the former's lunch-breaks and his car expenses. During
this conversation the applicant offended his superior. According to
the applicant, this had happened after his superior had made an
anti-semitic remark. The dismissal was based, inter alia, on the
fraudulent behaviour of the applicant and on his insulting remarks
towards his employer.
The applicant's lawyer challenged the lawfulness of the
dismissal before the District Court (Kantongerecht) in The Hague. On
14 February 1983, the Court ordered in an interlocutory judgment the
applicant's former employer to submit evidence of the facts
constituting the grounds for dismissal. On 9 March and 18 April 1983
the District Court heard two witnesses for the employer. According to
the applicant, his lawyer questioned the applicant's former superior,
who was one of the witnesses,about the issue of the anti-semitic
remark. The applicant contends that the witness declared that he did
not even know the applicant was Jewish. The District Court allegedly
instructed the Registrar not to record this issue in the procès-verbal
of the hearing. The applicant's lawyer did not object to this,
apparently because he was of the opinion that it was a trivial issue.
After the hearing, the applicant, who was not satisfied with the way
his lawyer handled the case, consulted his trade union about replacing
his lawyer by another one, but finally decided not to do so. The
other witness for the employer testified that he had partially
overheard the conversation between the applicant and his former
superior, but only the final offending remarks by the applicant,
because they were spoken in a loud voice. On 22 June and 11 July 1983,
two witnesses for the applicant were heard.
On 7 November 1983 the District Court rejected the applicant's
claims, finding that his former employer had proven that the applicant
had fraudulently misused the time-clock and that he had insulted his
superior, either ground being sufficient to justify a dismissal.
The applicant appealed to the Regional Court (Arrondissements-
rechtbank) in The Hague, but his appeal was dismissed on 13 March 1985.
The Court saw no reason to grant the applicant a new hearing of the
witness who had partially overheard the conversation with his former
superior, since the applicant had not demonstrated what evidence could
possibly have come out of a re-hearing of this witness. In particular,
the Court considered it as logical that this witness could not have
overheard the whole conversation, which fact was not contested by the
applicant, since he had indicated that he, from his neighbouring
office, had only overheard the remarks made in a loud voice.
It appears that the applicant was prevented from appealing to
the Supreme Court (Hoge Raad) because further free legal aid was
refused to him on 13 September 1985.
COMPLAINTS
The applicant alleges violations of Articles 6 and 14 of the
Convention with respect to the proceedings before the District Court
and the Regional Court. He complains that the District Court was not
impartial in his case and, by not recording evidence of an
anti-semitic statement made by the applicant's superior, made a
discriminatory distinction on the ground of religion. He also
complains that the Regional Court, by refusing the applicant
permission to recall a witness and to be heard himself, did not give
him a fair hearing.
In addition, the applicant complains that the Dutch courts have
violated Article 8 of the Convention in that they had not had due
regard to the serious implications of their decisions for the private
life of the applicant and his family.
Finally, the applicant alleges that the refusal to give him
free legal aid after the Regional Court's decision prevented him from
appealing to the Supreme Court and thus violated Article 13 of the
Convention.
THE LAW
1. Most of the applicant's complaints relate to the proceedings
before the District Court and the Regional Court concerning his
dismissal. The applicant contends, in particular, that the District
Court was not impartial in its assessment of the evidence, inter alia,
because it deleted from the record of a hearing part of a statement
made by a witness on behalf of the applicant's former employer and
that the Regional Court, by refusing to recall a witness and by not
hearing the applicant in person, did not give him a fair hearing. He
has invoked Articles 6 and 14 (Art. 6, 14) of the Convention in these
respects.
The Commission considers that there is some doubt as to whether
the applicant has exhausted all domestic remedies available to him and
as to whether the application was submitted to the Commission within a
period of six months from the date on which the final decision was
taken (Article 26 of the Convention) (Art. 26). It finds, however,
that it is not necessary to examine these issues, since the facts of
the case, as submitted by the applicant, do not disclose any
appearance of a violation of the rights and freedoms set forth in the
Convention.
The Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties to the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its constant
jurisprudence (see e.g. decisions on the admissibility of Application
Nos. 458/59, Yearbook 3, pp. 22, 236 and 1140/61, Collection of
Decisions 8, pp. 57, 62).
It is true that in this case the applicant also complains that
the District Court was not impartial in the taking of the evidence.
However, the Commission is satisfied that the taking of evidence was
not in effect imbalanced or incomplete. Although the District Court,
according to the applicant, has withheld a statement of a witness from
the record of the hearing, it appears that the applicant made no
objection to this. Furthermore, it seems that nothing would have
prevented the applicant from having this witness heard again before
the District Court or, at a later stage, before the Regional Court.
Instead, the applicant's lawyer decided not to pursue the matter and
brought two other witnesses on his behalf before the District Court.
Under these circumstances, the Commission sees no indication
that the District Court was partial or that the proceedings were
otherwise unfair. Neither is there any question of discrimination,
within the meaning of Article 14 (Art. 14) of the Convention, by the
District Court. The mere fact that the evidence which was allegedly
not recorded related to an anti-semitic remark made by the employer,
does not amount to discriminatory action on the part of the District
Court.
With respect to the refusal of the Regional Court to order a
new hearing of one of the witnesses, the Commission recalls that it
has held that such a refusal might, under certain circumstances, be an
infringement of the right to a fair hearing as secured by Article 6
para. 1 (Art. 6-1) of the Convention (No. 5362/72, Dec. 14.12.72,
Collection 42 p. 145).
The Commission notes, however, that in the present case the
Regional Court carefully considered the applicant's request for a new
hearing but rejected it on the ground that the applicant had neither
duly motivated his request nor indicated what evidence could have
resulted from such a hearing.
The applicant has also alleged that the Regional Court refused
to hear him in person. In this respect, the Commission recalls
that the right to be present in person in civil proceedings is not, as
such, guaranteed by the Convention, but that the right to a fair trial
may sometimes imply the right to be present in person (cf. No. 7370/76,
Dec. 28.2.77, D.R.9, p. 95). It does not appear from the facts of the
case, as submitted by the applicant, that he requested an oral hearing
or that such a request was rejected. In any case, the applicant has
not in any way indicated that he in fact presented his case to
the Regional Court under conditions which placed him under a
substantial disadvantage vis-à-vis his opponent (cf. No. 7450/77,
Dec. 28.2.77, D.R. 9, p. 108) or that his personal presence was
indispensable for the proper conduct of the proceedings (cf. the
above-mentioned decision No. 7370/76). The Commission notes that the
applicant's lawyer presented his arguments for a reversal of the
District Court's decision in writing to the Regional Court. The
Commission has no reason to believe that, under these circumstances,
the applicant was not in a position to properly present his case before
the Regional Court. Neither do the other facts relating to the
proceedings before the Dutch courts alleged by the applicant disclose
any appearance of a violation of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant has also complained that the Dutch courts have
not had regard, in their judgments, to the serious implications of
their decisions for the private life of the applicant and his family.
He alleges a violation of Article 8 (Art. 8) of the Convention in this
respect.
However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a
violation of this provision as, under Article 26 (Art. 26) of the
Convention, it may only deal with a matter after all domestic remedies
have been exhausted according to the generally recognised rules of
international law. The mere fact that the applicant has submitted his
case to the various competent courts does not of itself constitute
compliance with this rule. It is also required that the substance of
any complaint made before the Commission should have been raised
during the proceedings concerned. In this respect the Commission
refers to its constant jurisprudence (see e.g. decisions on the
admissibility of applicants No. 263/57, Yearbook 1, pp. 146, 147 and
No. 1103/61, Yearbook 5, pp. 168, 186).
In the present case the applicant did not raise either in form
or in substance, in the proceedings before the District Court or the
Regional Court, the complaint which he now makes before the
Commission. Moreover, 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 raising his complaint in the proceedings
referred to.
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies and his
application must in this respect be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
3. Finally, the applicant has complained that the refusal to grant
him free legal aid after the Regional Court's decision prevented him
from contesting this decision before the Supreme Court. In this
respect, he has invoked Article 13 (Art. 13) of the Convention.
The Commission recalls that there is, under the Convention, no
obligation on the State to provide free legal aid for every dispute
relating to a civil right and that a refusal of legal aid on the basis
that the claim lacks reasonable prospects of success would not
normally constitute a denial of access to court unless it could be
shown that the decision of the administrative authority was arbitrary
(No. 8158/78,Dec. 10.7.80, D.R. 21, p. 95).
The Commission finds, on the basis of the facts and documents
submitted by the applicant, that the refusal of further legal aid
after the decision of the Regional Court, apparently on the ground
that there was no reasonable prospect of success, cannot be considered
as arbitrary or unreasonable. In this respect, the Commission recalls
that it has rejected the applicant's complaints under Articles 6 and
14 (Art. 6, 14) of the Convention as being manifestly ill-founded.
It follows, therefore, that this part of the application is
also 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 of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)