AS TO THE ADMISSIBILITY OF
Application No. 15595/89
by Douwe ROZENDALE
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 December 1992, 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
L. LOUCAIDES
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 14 October 1988
by Douwe ROZENDALE against the Netherlands and registered on 10 October
1989 under file No. 15595/89;
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 applicant is a Dutch national born in 1908. He has no
profession and lives in The Hague, the Netherlands. Before the
Commission he is represented by Mr. L. A. van der Niet, a lawyer
practising in Leiderdorp.
The facts as submitted by the parties may be summarised as
follows.
In the context of his divorce, the applicant considered that his
lawyer had misinformed and misrepresented him to such a degree that he
could not be obliged to pay for his lawyer's services. As he persisted
in his refusal, the lawyer referred his breakdown of fees and expenses,
as presented in his bill, to the Supervisory Council of the Bar
Association (Raad van Toezicht van de Orde van Advocaten). In
accordance with Article 32 of the Act on Fees in Civil Cases (Wet
Tarieven in Burgerlijke Zaken), this body verified on 28 October 1987
that the breakdown and the level of the fees complied with the
standards set by the Bar Association. As provided for in the above Act,
the lawyer was granted an execution order on 1 July 1988 by the
President of the Regional Court (Arrondissementsrechtbank) of The
Hague.
Pursuant to Article 40 of the Act, the applicant objected
(verzet) against this order on the ground that the proceedings before
the Supervisory Council did not satisfy the requirements of Article 6
of the Convention. On 10 November 1988 he had the lawyer summoned
before the Regional Court for its session of 22 November 1988. At the
hearing neither of the parties was heard. On 12 July 1989 the Regional
Court dismissed the objection as being ill-founded finding the
applicant's allegation of breach of contract by his lawyer
unsubstantiated.
In the meantime the applicant has paid his lawyer's fees.
B. RELEVANT DOMESTIC LAW AND PRACTICE
The Act on Fees in Civil Cases of 1843 (AFCC) provides for a
specific procedure for disputes arising between a lawyer and his client
as to the level of the fees charged. According to Article 32, either
the lawyer or his client can refer the lawyer's breakdown to the
Supervisory Council of the Bar Association which verifies whether the
level of the fees charged complies with the standards set by the Bar
Association. The Supervisory Council consists of lawyers admitted to
the bar. The fulfilment of its task under the AFCC is not subject to
any procedural rule. In practice the Council meets in camera and does
not hear the persons concerned.
If the client does not pay the lawyer after the Supervisory
Council's approval or estimate of the breakdown, the President of the
Regional Court shall determine the fees (Article 33) and issue an
execution order (Article 39).
Article 40 provides that the client can file an objection against
this order with the full Regional Court who will deal with it as a
summary case (summiere zaak). The Court's decision is not open to
objection, appeal or cassation. The AFCC does not contain any
procedural requirements regarding the objection proceedings. Neither
the client nor the lawyer is heard.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
that he did not have access to an independent and impartial tribunal.
He submits in particular that the Supervisory Council is neither
independent nor impartial as it is composed of lawyers admitted to the
bar. He further complains that he did not have a fair hearing either
before the Supervisory Council, which sits in camera, before the
President of the Regional Court or before the Regional Court because
he was not heard.
2. The applicant finally complains that, pursuant to Dutch law, the
Regional Court dealt summarily with his case in the objection
proceedings and that he could thus not have his lawyer's breach of
contract examined by an independent and impartial tribunal.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 October 1988 and registered
on 10 October 1989.
On 12 December 1991 the Commission decided to communicate the
application to the respondent Government and to invite them to submit
written observations on the admissibility and merits of the
application.
On 6 January 1992 the application was referred to the Second
Chamber.
The Government's observations were submitted on 13 March 1992 and
the applicant's observations in reply on 10 June 1992, after expiry of
the time-limit.
THE LAW
1. The applicant complains that the procedure under the AFCC does
not meet the requirements of Article 6 (Art. 6) of the Convention. He
submits in particular that the Supervisory Council is not an
independent and impartial tribunal as it is composed of lawyers
admitted to the bar. He further complains that he did not have a fair
hearing either before the Supervisory Council, which sits in camera,
before the President of the Regional Court or before the Regional Court
because he was not heard.
Article 6 para. 1 (Art. 6-1) of the Convention insofar as
relevant reads :
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ...
by an independent and impartial tribunal ..."
The question arises whether Article 6 (Art. 6) applies to the
proceedings complained of. The applicant submits that these
proceedings resulted in his obligation to pay his lawyer's fees which
constitutes a determination of his civil obligations. The Government,
on the other hand, argue that since these proceedings merely concern
the level of the fees charged by the lawyer and not the obligation to
pay the fees, they do not determine the applicant's civil rights and
obligations.
The Commission notes that the applicant's refusal to pay his
lawyer's fees constitutes a genuine "dispute". The Commission takes
the view that this dispute concerned the applicant's civil obligations.
It follows that Article 6 para. 1 (Art. 6-1) was applicable to
the proceedings complained of.
As regards the substance of this complaint, the Commission
considers that it raises important issues of fact and law whose
determination should depend on an examination of its merits. It is
therefore not manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains under Article 6 (Art. 6) of the
Convention that he could not have his lawyer's breach of contract
examined by an independent and impartial tribunal.
The Government submit that the proceedings under the Act on Fees
in Civil Cases do not address the question of an alleged breach of
contract which claim can only be submitted to the civil courts.
However, the applicant has failed to seize the civil courts so that he
has not exhausted domestic remedies as required by Article 26 (Art. 26)
of the Convention.
The Commission considers that this complaint canot be separated
from the above complaint under Article 6 (Art. 6), the issues being
closely interrelated.
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
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy