AS TO THE ADMISSIBILITY OF
Application No. 19006/91
by Hendrik Alexander MELDRUM
against the Netherlands
The European Commission of Human Rights sitting in private on 9
December 1992, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
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 4 September 1991
by Hendrik Alexander MELDRUM against the Netherlands and registered on
29 October 1991 under file No. 19006/91;
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
The applicant is a Dutch citizen, born in 1947 and resident at
Dordrecht, the Netherlands. He is represented before the Commission
by Mr. P.J.A. Høvig, a lawyer practising at Zwijndrecht, the
Netherlands.
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is active as an independent physiotherapist and
runs a practice at Dordrecht. He also used to put his equipment at the
disposal of other psysiotherapists who could make use of it against
payment of part of their turnover. The conditions were laid down in
a standard contract between him and the other physiotherapists, and the
latter were originally regarded by the taxation and social security
authorities as independent professionals.
The implementation of the social insurance schemes for employed
physiotherapists is entrusted to the Industrial Insurance Board for
Health, Mental and Social Well-Being (Bedrijfsvereniging voor de
Gezondheid, Geestelijke en Maatschappelijke Belangen, abbreviated
"B.V.G."). Until August 1984, the B.V.G. considered that, where there
was a contract of the kind the applicant had concluded with the other
physiotherapists, there was no obligation to insure the latter under
the various social insurance schemes applicable to employees. However,
in August 1984 the B.V.G. changed its view and considered that the said
physiotherapists should be compulsorily insured retroactively from 1
January 1984.
In accordance with its new practice, the B.V.G. requested the
applicant to pay social security contributions for the years 1984, 1985
and 1986. By letter of 4 December 1987, the applicant objected to the
payment of contributions and asked for a formal decision against which
he could lodge an appeal. The B.V.G. issued such a decision on 1 May
1989.
The applicant then appealed to the Appeals Board (Raad van
Beroep) in Rotterdam which, on 2 July 1990, rejected the appeal. A
further appeal lodged by the applicant was rejected on 13 March 1991
by the Central Appeals Board (Centrale Raad van Beroep) in Utrecht.
COMPLAINTS
1. The applicant first alleges a violation of Article 6 para. 1 of
the Convention in that he did not have a fair hearing. The B.V.G.,
which is a party in the appeal proceedings, has the possibility to
prevent a complainant from appealing for a long time by not issuing a
formal decision. In the present case, the applicant asked for a formal
decision by letter of 4 December 1987, but the B.V.G. did not comply
with this request until one year and five months later, i.e. on 1 May
1989. This violates the principle of the equality of the parties,
since the B.V.G. had possibilities which the applicant did not have.
It is theoretically possible that the B.V.G. pursues a policy of first
issuing formal decisions in those cases in which it can expect the
Appeals Board to develop a case-law favourable to the B.V.G. If the
applicant had been allowed to appeal at an earlier stage, before the
case-law had been well established, he would have stood a better chance
of success, but he was deprived of this chance by the failure of the
B.V.G. to provide him with the decision without which he could not
lodge any appeal.
2. The applicant alleges a further violation of Article 6 para. 1
of the Convention in that he did not have a hearing within a reasonable
time. His appeal was delayed during a period of one year and five
months due to the failure of the B.V.G. to issue a formal decision,
which was a violation of the reasonable time requirement.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 September 1991 and registered
on 29 October 1991.
On 2 April 1992 the Commission decided to communicate the
application to the Netherlands Government and to request the
Government's observations on the admissibility and merits of the
application.
The Government submitted their observations on 26 June 1992 and
the applicant his observations in reply on 17 September 1992.
THE LAW
The applicant alleges violations of Article 6 para. 1 (Art. 6-1)
of the Convention in that he did not have a fair hearing and in that
he did not have a hearing within a reasonable time. He points out, in
particular, that the B.V.G., which was a party to the proceedings,
prevented him for a long time from appealing by not issuing a formal
decision, which made the proceedings unfair and made it impossible for
him to be heard by a court within a reasonable time.
The Government first submit that Article 6 para. 1 (Art. 6-1) was
not applicable to the proceedings concerned, since these proceedings
did not concern the determination of a civil right. They point out
that the proceedings concerned the obligation to pay contributions
under the Sickness Benefits Act (Ziektewet), the Unemployment Insurance
Act (Werkloosheidswet), the Health Insurance Act (Ziekenfondswet) and
the Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheids-
verzekering). As regards the Sickness Benefits Act, the Government
note that the European Court of Human Rights has found Article 6
(Art. 6) to be applicable to proceedings regarding the entitlement to
benefits, whereas there is no similar decision in regard to the
benefits under the other Acts. In the Government's opinion,
proceedings regarding the payment of contributions under the said
social security schemes should be considered to be excluded, in the
same way as taxation proceedings, from the application of
Article 6 (Art. 6).
The Government further maintain that the applicant did not suffer
any prejudice as a result of the fact that the formal decision was
rendered late and note that the applicant could have instituted summary
proceedings (kort geding) before the civil judge in order to force the
B.V.G. to render its decision at an earlier stage.
As regards the question whether the case was decided within a
reasonable time, the Government state that Article 6 (Art. 6) seems to
refer only to the actual court proceedings and not to the time before
these proceedings started. In the proceedings before the Appeals Board
and the Central Appeals Board, the Government find no indication that
the reasonable time was exceeded. Even if the time it took the B.V.G.
to deliver a formal decision should be taken into account, the
Government are of the opinion that the reasonable time rule has not
been violated.
Consequently, the Government conclude that the application is
inadmissible as being incompatible with the provisions of the
Convention or, alternatively, as being manifestly ill-founded.
The applicant submits that Article 6 (Art. 6) of the Convention
is applicable not only to proceedings relating to the Sickness Benefits
Act but also to proceedings regarding the other Dutch social security
schemes at issue in this case. He notes that the payment of
contributions is closely connected with the right to receive benefits
and considers that both these aspects of the schemes fall under the
provisions of Article 6 (Art. 6). The reasonable time rule in Article
6 also applies to an administrative procedure preceding the court
proceedings and during such a period there was in the present case
undue delay in the preparation by the B.G.V. of a formal decision. The
applicant makes no complaint as to delays in the proceedings before the
Appeals Board and the Central Appeals Board.
The Commission finds that the present application requires a
determination of whether Article 6 para. 1 (Art. 6-1) of the Convention
is applicable to the proceedings at issue and, if so, whether the
applicant had a fair court hearing within a reasonable time as required
by that provision.
After examination of these issues in the light of the parties'
submissions, the Commission considers that they raise questions of fact
and law of such complexity that their determination requires an
examination of the merits. The application cannot, therefore, be
declared inadmissible as being manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other
grounds of inadmissibility have been established.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION ADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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