EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 15595/89
Douwe Rozendale
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 19 January 1994)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16). . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-11) . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 12-16) . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-29) . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 17-21) . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 22-29) . . . . . . . . . . . . . . . . . . 4
III. OPINION OF THE COMMISSION
(paras. 30-47) . . . . . . . . . . . . . . . . . . . . . 6
A. Complaint declared admissible
(para. 30) . . . . . . . . . . . . . . . . . . . . 6
B. Point at issue
(para. 31) . . . . . . . . . . . . . . . . . . . . 6
C. Article 6 para. 1 of the Convention
(paras. 32-46) . . . . . . . . . . . . . . . . . . 6
CONCLUSION
(para. 47) . . . . . . . . . . . . . . . . . . . . 8
DISSENTING OPINION OF MRS. G. H. THUNE. . . . . . . . . . . . . . . 9
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .10
APPENDIX II : DECISION ON THE ADMISSIBILITY
OF THE APPLICATION . . . . . . . . . . . . . . .11
I. INTRODUCTION
1 The following is an outline of the case as submitted to the
European Commission of Human Rights and of the procedure before the
Commission.
A. The application
2 The applicant is a Dutch citizen, born in 1908, and residing at
The Hague, the Netherlands. In the proceedings before the Commission
he is represented by Mr. L.A. van der Niet, a lawyer practising at
Leiderdorp.
3 The application is directed against the Netherlands. The
respondent Government are represented by their Agent,
Mr. K. de Vey Mestdagh of the Netherlands Ministry of Foreign Affairs.
4 The application concerns proceedings under the Act on Fees in
Civil Cases (Wet Tarieven in Burgerlijke Zaken). The applicant
complains that he did not have a fair hearing before an independent and
impartial tribunal within the meaning of Article 6 para. 1 of the
Convention.
B. The proceedings
5 The application was introduced on 14 October 1988 and registered
on 10 October 1989.
6 On 12 December 1991 the Commission decided that notice should be
given to the Government of the Netherlands of the application and that
they should be invited to submit written observations on the
admissibility and merits of the application.
7 On 6 January 1992 the Commission referred the application to the
Second Chamber.
8 The Government submitted their observations on 13 March 1992.
The applicant submitted observations in reply on 10 June 1992 after
expiry of the fixed time-limit.
9 On 2 December 1992 the Commission (Second Chamber) declared the
application admissible and decided to request additional information
from the parties.
10 The applicant submitted additional information on
19 January 1993. After an extension of the time-limit, the Government
submitted additional information on 15 February 1993.
11 After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1(b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
12 The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
13 The text of this Report was adopted on 19 January 1994 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
14 The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the Convention.
15 A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
16 The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
17 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.
18 As he persisted in his refusal to pay, 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, hereinafter referred
to as "the Act"), 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 Act, the lawyer was
granted an execution order on 1 July 1988 by the President of the
Regional Court (Arrondissementsrechtbank) of The Hague.
19 On 10 November 1988, the applicant filed an objection (verzet)
within the meaning of Article 40 of the Act against this order with the
Regional Court of The Hague, complaining that the lawyer had
misrepresented him and that the proceedings before the Supervisory
Council had not satisfied the requirements of Article 6 of the
Convention, and to this end summoned the lawyer before the Regional
Court of The Hague. In the course of its examination of the objection,
the Regional Court heard neither of the parties orally. It based its
decision of 12 July 1989, in which it dismissed the objection as being
ill-founded, on the parties' written submissions. The Regional Court
found the applicant's allegation of breach of contract by his lawyer
wholly unsubstantiated and noted that the applicant had not offered to
prove his allegations. Concerning the applicant's complaint that
Article 6 of the Convention had been violated, the Regional Court
observed that Article 40 of the Act enables the applicant to submit all
his complaints to the court which has full jurisdiction to consider
them. Consequently, the Regional Court held that Article 6 of the
Convention had been complied with. It does not appear that the
applicant requested the Regional Court to hold an oral hearing before
deciding the case.
20 The applicant did not institute any proceedings against the
lawyer before the civil courts on the claim of a breach of contract.
It appears from the case-file that the applicant instituted
disciplinary proceedings against the lawyer in accordance with the
Advocates Act (Advocatenwet; see para. 25 below). However, the Vice-
President of the Disciplinary Council (Raad van Discipline) initially
rejected his application, which decision was upheld in the subsequent
proceedings before the Disciplinary Council. An appeal brought before
the Disciplinary Court (Hof van Discipline) was rejected by its Vice-
President. It does not appear that the applicant has challenged the
decision of the Vice-President before the Disciplinary Court.
21 Meanwhile the applicant has paid his lawyer's fees.
B. Relevant domestic law
22 The Act on Fees in Civil Cases of 1843 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 of the Act,
either the lawyer or his client can refer the lawyer's detailed bill
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 Act is not
subject to any procedural rule. In practice the Council meets in
camera and does not hear the persons concerned.
23 If the client does not pay the lawyer after the Supervisory
Council's approval or substituted assessment of the bill, the President
of the Regional Court shall determine the fees (Article 33) and issue
an execution order (Article 39).
24 Article 40 of the Act 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 Act does not contain any
procedural requirements regarding the objection proceedings. The
general notion of a summary case was abolished by the legislator in
1896 but has remained in the Act. Consequently, there is some
uncertainty as to its concrete meaning. Although the objection
proceedings before the Court are adversarial, it appears that normally
neither the client nor the lawyer is heard in person, but that the case
is decided on the basis of the parties' written submissions. The Act
itself does not prescribe or exclude an oral hearing. According to
Dutch case-law, the Regional Court can, following a request thereto,
give the parties the opportunity to address the Court orally, and it
has full jurisdiction to assess all complaints when it verifies the
lawyer's bill (see e.g. Regional Court Haarlem, 3.6.1980, NJ 1981, 408;
Supreme Court 26.2.1988, NJ 1988, 506). The Regional Court is
empowered, in the objection proceedings, to annul and replace the
decision and execution order of the President (Regional Court
Amsterdam, NJ 1914, p. 923).
25 Under the Advocates Act, a practising lawyer (advocaat) is
subjected to the disciplinary jurisdiction of the Disciplinary Council
(Raad van Discipline) and, on appeal, of the Court of Discipline (Hof
van Discipline). Both organs are composed of members of the judiciary
and practising lawyers. The President and the two Vice-Presidents of
each of these organs shall always be members of the judiciary
(Articles 46b and 51 of the Advocates Act). When dealing with a
specific case, the Disciplinary Council is composed of five members,
one of whom must be the President or the Vice-President (Article 47).
The Disciplinary Court shall in each case be composed of five members,
among whom the President or a Vice-President as well as two members
from the judiciary (Article 56).
26 Where a client considers that a lawyer, in representing or
assisting him, has not acted with due care or in conformity with
professional standards, he may lodge a complaint with the President of
the Bar Association (deken van de orde) who, unless the dispute is
settled, will refer the matter to the Disciplinary Council
(Articles 46c, 46d and 46e). The President or Vice-President of the
Disciplinary Council can reject manifestly ill-founded complaints
(Article 49g). The complainant can challenge (verzet) such a decision
before the full Disciplinary Council (Article 46h). Against the
Council's decision an appeal can be filed with the Disciplinary Court
(Article 56). The President or Vice-President of the Disciplinary Court
can reject manifestly ill-founded appeals (Article 56a). Such a
rejection can be challenged before the full Disciplinary Court
(Article 56b).
27 Where a complaint is considered well-founded, a disciplinary
sanction may be imposed. Such a sanction may be a warning, a
reprimand, a measure of suspension or deprivation of the right to
practise law (Article 48). Moreover the lawyer may be ordered to pay
compensation for the damage which he has caused by his behaviour
(Article 48b).
28 The procedure before the Disciplinary Council and the
Disciplinary Court comprises the following elements (Articles 49 and
57). The complainant and the lawyer against whom the case is brought
shall be summoned to appear. They may be assisted by counsel. They
shall also be given access to the documents in the case-file. The
Disciplinary Council and the Disciplinary Court may hear witnesses and
experts. The hearings before both organs shall be held in public
unless, on account of weighty reasons, it is decided to hold a hearing
in camera.
29 Apart from the specific procedures described in the preceding
paragraphs, there is a general possibility to sue before the civil
courts for a breach of contract. A client who considers that his lawyer
has misrepresented him could avail himself of this remedy in order to
obtain compensation for damage suffered.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
30 The Commission has declared admissible the applicant's complaint
that he did not have a fair hearing before an independent and impartial
tribunal in the determination of his civil obligations vis-à-vis his
lawyer.
B. Point at issue
31 Accordingly, the issue to be determined is whether there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
C. Article 6 para. 1 (Art. 6-1) of the Convention
32 Article 6 para. 1 (Art. 6-1) of the Convention provides, insofar
as relevant:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal ..."
33 The Commission recalls that, in its decision on the admissibility
of the application, it found that there was a dispute concerning the
applicant's civil obligations and that Article 6 para. 1 (Art. 6-1) of
the Convention was therefore applicable to the proceedings in the
present case.
34 The Commission must consequently address the question whether the
applicant had a fair hearing by an independent and impartial tribunal.
35 The applicant submits that the Supervisory Council is not an
independent and impartial tribunal as it is composed of lawyers
admitted to the Bar. He was neither heard by the Supervisory Council,
which sits in camera, nor by the President of the Regional Court, when
the execution order was issued, nor by the Regional Court in the
objection proceedings.
36 The Government state that no hearing was required since the sole
purpose of the proceedings under the Act on Fees in Civil Cases is to
verify the amount of the fees charged by the lawyer. Insofar as the
lawyer's alleged breach of contract is concerned, the applicant should
have seized the civil courts.
37 The Commission notes that the Act on Fees in Civil Cases provides
for a summary procedure in determining the level of advocates' fees.
However, the purpose of that procedure is not to determine whether a
lawyer has been negligent in carrying out his functions on behalf of
a client or whether the remuneration for his work should be reduced on
such grounds.
38 In the present case, the applicant considered that his lawyer had
misinformed and misrepresented him to such a degree that he should not
be obliged to pay for his services. The question is whether he could,
under the Dutch legal system, have that question determined in a
procedure satisfying the requirements of Article 6 (Art. 6) of the
Convention.
39 The Government have stated that the applicant could have
instituted civil proceedings before a court in order to have his
obligation to pay his lawyer's fee determined.
40 The Commission notes, however, that the applicant was the person
against whom a claim was brought by his lawyer. He was therefore in
the position of a defendant, and as a rule a defendant cannot be
expected to institute proceedings but can limit himself to resisting
claims brought against him. Even if, under Dutch law, it would have
been possible for the applicant to institute civil proceedings in order
to obtain a determination that he was not under an obligation to pay
any fee to his lawyer, it could not be expected of him that he should
take such an unusual initiative.
41 On the other hand, the Commission notes that the applicant
accused his lawyer of misbehaviour, a matter which it would be
appropriate to have examined in disciplinary proceedings against the
lawyer. It further appears that the applicant did institute
disciplinary proceedings under the Advocates Act but without success.
It should be examined, however, whether these proceedings could, if
successful, have resulted not only in a disciplinary sanction against
the lawyer but also in the determination of the financial relations
between the applicant and his lawyer and, if so, whether the bodies
competent to deal with the disciplinary case could be regarded as
independent and impartial tribunals within the meaning of Article 6
(Art. 6) of the Convention and whether the procedure before those
organs was in conformity with that Article.
42 While the primary purpose of disciplinary proceedings under the
Advocates Act is to examine whether a lawyer, in representing or
assisting his client, has failed to act with due care and in conformity
with professional standards and to impose, where necessary, a
disciplinary sanction upon him, it follows from Article 48b of the
Advocates Act that, where a sanction is imposed, the lawyer can also
be ordered to compensate the damage caused by his acts. The Commission
therefore finds that the disciplinary proceedings which the applicant
instituted could also have involved a determination of the economic
relations between him and his lawyer.
43 The Commission further notes that the Disciplinary Council and
the Disciplinary Court are composed of members of the judiciary and
practising lawyers who, in the exercise of their functions, are
independent of the executive and the parties. Moreover, the procedure
applied by these bodies is of a judicial character (see para. 44
below). The Commission considers that they should be regarded as
independent and impartial tribunals within the meaning of Article 6
(Art. 6) of the Convention.
44 As regards the procedure before the Disciplinary Council and the
Disciplinary Court, the Commission notes that the complainant and the
lawyer against whom a case is brought shall be summoned to attend the
hearing in the case and that they may both be assisted by counsel.
They shall also be given access to the documents in the case-file. The
Disciplinary Council and the Disciplinary Court may hear witnesses and
experts. The hearing shall as a rule be held in public, but where
there are weighty reasons it may be decided to hold the hearing in
camera.
45 Having regard to these various elements, the Commission finds no
reason to doubt that the procedure before the Disciplinary Council and
the Disciplinary Court is, in principle, in conformity with the
requirements of Article 6 (Art. 6) of the Convention. Consequently,
and having regard to the fact that the applicant based his refusal to
pay his lawyer's fee on such alleged behaviour by his lawyer as could
give rise to disciplinary sanctions, the Commission considers that the
applicant had access to independent and impartial tribunals which were
competent to determine the civil rights and obligations at issue in
this case.
46 In these circumstances, the Commission finds that Article 6
(Art. 6) of the Convention has not been violated in the present case.
CONCLUSION
47 The Commission concludes by twelve votes to one that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
(Or. English)
DISSENTING OPINION OF MRS. G.H. THUNE
Unfortunately I am unable to agree with the majority of the
Commission and have voted against the finding of no violation of
Article 6 of the Convention.
It seems to me that the applicant's obligation to pay his
lawyer's fees was finally decided through the decision by the Regional
Court. The applicant accordingly then paid the amount decided by the
Court.
During these proceedings no hearing was held at any stage as
required by Article 6 para. 1. It seems that it is unusual to hear the
parties in such legal fee disputes. I also observe that there is no
evidence in the present case that the applicant unequivocally waived
his right to a hearing. Moreover, despite the apparent equality of
arms in the present case, in that neither party was heard by the court,
the extent of the discretion of the Regional Court in granting a
hearing at the request of one of the parties to the proceedings was
unclear. Given the Regional Court's summary dismissal of the
applicant's case as being wholly unsubstantiated, it cannot be said
with any certainty that the applicant would have been granted a hearing
if he had asked for one.
I do not agree with the majority that the deficiencies in the
proceedings before the Regional Court would be remedied through the
possibility for the applicant of instituting disciplinary proceedings
or proceedings before the ordinary courts.
The aim of disciplinary proceedings is to sanction the particular
lawyer. This is in my opinion a question quite different from what was
at stake for the applicant, namely the amount he was obliged to pay to
his former lawyer with a view to the quality of the particular service
received. The test that would be applied in a disciplinary case is not
in any way identical to the test that would be applied in a civil
conflict concerning possible reduction of the bill presented by a
lawyer.
Here this conflict was in fact settled by the Regional Court in
proceedings which did not seem in compliance with the requirements of
Article 6 as interpreted by the European Court and Commission of Human
Rights.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
______________________________________________________________________
14 October 1988 Introduction of the application
10 October 1989 Registration of the application
Examination of the admissibility
12 December 1991 Commission's decision to
communicate the case and to
invite the parties to submit
their observations on
admissibility and merits
6 January 1992 Commission's decision to refer
the application to the Second
Chamber
13 March 1992 Government's observations
10 June 1992 Applicant's observations in
reply
2 December 1992 Commission's decision to
declare the application
admissible and to request
additional information from the
parties
Examination of the merits
19 January 1993 Submission of additional
information by the applicant
15 February 1993 Submission of additional
information by the Government
6 April 1993 Consideration of the state of
the proceedings
30 June 1993 Commission's deliberation on
the merits and decision to
adjourn its examination.
11 January 1994 Commission's deliberation on the
merits and final vote.
19 January 1994 Commission's adoption of the
Report
Full & Egal Universal Law Academy