AS TO THE ADMISSIBILITY OF
Application No. 15416/89
by M.A.B.and
G.A.T.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 February 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ
J.-C. GEUS
Mr. K. ROGGE, Secretary to the Second 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 21 June 1989 by
M.A.B. and G.A.T. against the Netherlands and registered on 29 August
1989 under file No. 15416/89;
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
A. Particular circumstances of the case
The first applicant, a Dutch national born in 1955, is a lawyer
practising in Leeuwarden, the Netherlands. The second applicant is a
Somalian national born in 1969 and residing in Leeuwarden, the
Netherlands. At the time of the introduction of the application, he
was detained on remand on suspicion of rape but it appears that in the
meantime the charges have been dropped.
The first applicant represents the second applicant in the
proceedings before the Commission.
The facts of the case as submitted by the parties may be
summarised as follows.
The second applicant arrived in the Netherlands on
10 December 1988 to seek asylum. He allegedly arrived with his father
although subsequently he claimed to have arrived alone in the
Netherlands. Eventually he was granted a residence permit on
humanitarian grounds (verblijfsvergunning op humanitaire gronden) but
the asylum proceedings are still pending.
On 1 June 1989 the Juvenile Judge (Kinderrechter) of the
Leeuwarden Regional Court (Arrondissementsrechtbank) issued a
provisional supervision order (voorlopige ondertoezichtstelling) and
appointed a family guardian. Pursuant to Article 940 of the Code of
Civil Procedure (Wetboek van Burgerlijke Rechtsvordering), the second
applicant was not heard. The first applicant requested the Legal Aid
Bureau (Buro voor Rechtshulp) to assign him (toevoeging) as legal aid
counsel to the second applicant, as the latter's indigence prevented
him from choosing his own lawyer. This request was immediately granted
but the Juvenile Judge instructed the Bureau by telephone to withdraw
this assignment. Subsequently, he informed the applicants without
giving any reasons that he had decided not to appoint the first
applicant as the second applicant's counsel. No appeal lay against
this decision.
The first applicant's deputy then requested the Juvenile Judge
to be allowed to be present on the former's behalf when the application
for the second applicant's placement under supervision would be
definitely decided upon. This request was rejected and the Juvenile
Judge denied the first applicant's deputy access to the court room
although the first applicant's deputy had stated that he would act in
the capacity of chosen lawyer and not as an official legal aid counsel.
By letter of 6 July 1989 the first applicant requested the
Juvenile Judge to assign him as legal aid counsel to the second
applicant in order to assist the latter at the hearing concerning the
definite placement under supervision. On 24 July 1989 the Juvenile
Judge replied that as long as the European Commission of Human Rights
had not decided the applicant's case he could not determine this
request.
B. Relevant domestic law and practice
Placement under supervision is a civil measure ordered by the
Juvenile Judge to prevent a minor's physical and/or mental perdition.
It entails the appointment of a family guardian who will educate the
minor together with the parents who are bound to follow his indications
and advice. The family guardian reports regularly to the Juvenile
Judge. This measure can be ordered for one year maximum and can be
prolonged until the child's majority.
According to Article 257 of the Civil Code (Burgerlijk Wetboek),
this measure can also be ordered provisionally. The consequences are
the same except for its duration as it is ordered for one year maximum
by the Juvenile Judge and can subsequently be prolonged for one year
maximum until the minor's majority or unless revoked meanwhile by the
Juvenile Judge (Article 258 of the Civil Code). Article 940 of the
Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering)
stipulates that no appeal lies against a provisional order and that,
before imposing it, the Juvenile Judge is not obliged to hear the
interested parties.
COMPLAINTS
The applicants complain about the Juvenile Judge's refusal to
appoint the first applicant as the second applicant's legal
representative. They also complain that, by denying the first
applicant's deputy access to the court room, the Juvenile Judge
hindered the effective exercise of legal assistance and thus denied the
second applicant a fair trial. They invoke Articles 6 and 13 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 June 1989 and registered on
29 August 1989.
On 1 April 1992, the Commission (Second Chamber) 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 received by letter dated 10
July 1992 and the applicants' observations were dated 8 December 1992.
THE LAW
The applicants complain that the Juvenile Judge refused to
appoint the first applicant as the second applicant's legal
representative. They also complain that by denying the first
applicant's deputy access to the court room, the Juvenile Judge
hindered the effective exercise of legal assistance and thus deprived
the second applicant of a fair trial. They invoke Articles 6 and 13
(Art. 6, 13) of the Convention.
Article 6 (Art. 6) of the Convention reads, insofar as relevant:
"1. 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... by [a]... tribunal...
(...)
3. Everyone charged with a criminal offence has the following
minimum rights:
(...)
c. to defend himself in person or through legal assistance of his
own choosing or, if he has not sufficient means to pay for legal
assistance, to be given it free when the interests of justice so
require.
(...)"
The applicants submit that minors can only be legally represented
by their parents or by their guardian, or by a lawyer at the parents'
or guardian's request. However, the second applicant is an asylum
seeker who arrived in the Netherlands without parents or guardian. At
the hearing before the Juvenile Judge he was therefore alone.
The Government submit primarily that the first applicant cannot
be considered as a victim within the meaning of Article 25 (Art. 25)
of the Convention of the alleged violations of the Convention. The
present application exclusively concerns the second applicant who is
the only one "directly affected by the act or omission at issue" (Eur.
Court H.R., Inze judgment of 28 October 1988, Series A no. 126, para.
32). The application is therefore inadmissible insofar it is brought
by the first applicant.
The Commission has previously held that a defence counsel cannot
in his personal capacity invoke the provisions of Article 6 (Art. 6)
of the Convention as regards the determination of the criminal charge
brought against the defendant (No. 7641/76, Dec. 11.12.76, D.R. 10 p.
224 at p. 229). Applying analogous considerations in the present case
it finds that the first applicant cannot in his personal capacity rely
on Article 6 (Art. 6) in respect of the proceedings concerning the
second applicant's placement under supervision. The first applicant
not being a victim, within the meaning of Article 25 (Art. 25), of the
alleged violations of the Convention, the application is thus
incompatible ratione personae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2), insofar as
introduced by this applicant.
With regard to the second applicant, the Government contend that
the provisional supervision order did not determine his civil rights
and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention and that the application is therefore incompatible with
the provisions of the Convention. Should Article 6 (Art. 6) apply, the
application is manifestly ill-founded. Under Dutch law minors are
legally represented by their parents or their guardian. They have no
independent right of access to the courts and therefore no right as
such to the legal assistance of a lawyer. Moreover, a State can
restrict the right of access to court of certain categories of persons,
inter alia minors (European Court of Human Rights, Golder judgment of
21 February 1975, Series A no. 18).
Insofar as the second applicant might derive a right to legal
assistance from the Court's findings in the Airey judgment (judgment
of 9 October 1979, Series A no. 32, para. 26), the Government point out
that in the present case legal representation was not compulsory nor
was the issue so complex that it called for legal assistance. They add
that the costs of legal representation did not play a decisive role.
The Commission has considered the submissions made under Article
6 (Art. 6) of the Convention by the second applicant and the respondent
Government. It finds that the second applicant's complaint under
Article 6 (Art. 6) raises complex issues of fact and law the
determination of which requires an examination of the merits. It
follows that this complaint cannot be regarded as manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other grounds for inadmissibility having been
established, it must accordingly be declared admissible.
The Commission further considers that the second applicant's
complaints under Articles 6 and 13 (Art. 6, 13) of the Convention are
so closely related that they cannot be dissociated at this stage.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE insofar as brought by
the first applicant;
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case, insofar as brought by the second applicant.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy