AS TO THE ADMISSIBILITY OF
Application No. 19963/92
by Nicolaas Maria Petrus STEIJNEN
against the Netherlands
The European Commission of Human Rights sitting in private on
28 February 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the 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 27 April 1992 by
Nicolaas Maria Petrus STEIJNEN against the Netherlands and registered
on 11 May 1992 under file No. 19963/92;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
20 June 1994 and the observations in reply submitted by the
applicant on 17 September 1994;
Having deliberated;
Decides as follows:
THE FACTS
1. Particular circumstances of the case
The applicant is a Dutch citizen born in 1946, and resides at
Zeist, the Netherlands, where he is a practising lawyer.
The facts of the case, as submitted by the parties, may be
summarised as follows.
In 1986, the applicant acted as counsel in eight civil cases for
persons, who would normally qualify for legal aid under the Dutch Legal
Aid Act (Wet rechtsbijstand aan on- en minvermogenden). However, on
27 January 1987, the Registrar (Griffier) of the Regional Court
(Arrondissementsrechtbank) of Utrecht refused to determine his fees as
it had appeared in the eight cases that the requests for and the grant
of the applicant's assignment by the Legal Aid Bureau (Bureau voor
Consultatie) to these cases had been made after the conclusion of the
respective proceedings.
As the applicant disagreed with this decision, he requested
intervention (tussenkomst) by the President of the Regional Court
(Arrondissementsrechtbank) of Utrecht pursuant to the Order on Fees for
Legal Aid (Besluit vergoedingen rechtsbijstand - "Moduulbesluit"),
submitting, inter alia, that the harshness of the decisions in respect
of his fees seriously affected his financial situation as a legal aid
lawyer.
On 9 April 1987, the President of the Utrecht Regional Court
rejected the applicant's request, considering that the Legal Aid Act
is based on a system in which an assignment is requested and granted
before the start of the proceedings, a principle which is also
reflected in Section 19 of the Order on Fees for Legal Aid.
The applicant subsequently tried to recover his fees by starting
a civil action for tort (onrechtmatige daad) against the Dutch State,
arguing that the President's decision was incorrect and unlawful as the
intervention procedure under Section 34 of the Order on Fees for Legal
Aid has no basis in the law, and that in respect of the payment of
legal aid fees the intervention procedure is the only remedy available,
whereas this procedure is not in conformity with the requirements of
Article 6 para. 1 of the Convention.
The Regional Court of The Hague declared the applicant's claim
inadmissible on 13 April 1988. It held that the intervention procedure
is based on Section 25 para. 4 of the Legal Aid Act, that there had
been no violation of Article 6 of the Convention, as this provision
does not guarantee an appeal, and as it had not been argued nor
appeared that the President of the Regional Court of Utrecht had
disregarded fundamental legal principles ("fundamentele
rechtsbeginselen heeft veronachtzaamd") resulting in a hearing which
could not be considered fair and impartial.
Having found the applicant's claim inadmissible on these grounds,
the Regional Court did not examine whether or not the intervention
proceedings constituted a specific remedy in respect of the application
of the rules on legal aid and did not examine the alleged incorrectness
and unlawfulness of the decisions of 27 January 1987 and 9 April 1987
on the merits.
On 25 June 1990, the Court of Appeal (Gerechtshof) of The Hague
rejected the applicant's appeal and upheld the Regional Court's
judgment of 13 April 1988. It held that under Section 34 of the Order
on Fees for Legal Aid there is a specific remedy in respect of disputes
concerning the application of the rules on legal aid and that no remedy
lies against the President's decision, which implies that the dispute
at issue cannot be submitted to another civil judge, unless it was
found that the specific remedy lacked sufficient procedural guarantees.
The Court of Appeal found that Section 34 of the Order on Fees
for Legal Aid in conjunction with Section 25 of the Legal Aid Act
indicates to which judge a complainant can address himself. As regards
the complaint that the intervention proceedings violate Article 6 of
the Convention, the Court of Appeal noted that, even without further
legislation, the requirements of Article 6 of the Convention are
incorporated in the Dutch legal system and that Section 34 of the Order
on Fees for Legal Aid contains no rule which is contrary to these
requirements. The Court of Appeal observed in this respect that a
lawyer, who requests the intervention of the President of the Regional
Court, may state his views extensively in writing in these proceedings
and, if he so wishes, orally, whereas the President's decision is
communicated to the person concerned and can be obtained at the
Registry. The Court of Appeal finally held on this point that Article
6 of the Convention does not guarantee a right to an appeal.
On 20 December 1991, the Supreme Court (Hoge Raad) rejected the
applicant's appeal in cassation. It held, inter alia, that Section 34
of the Order on Fees for Legal Aid provides for a specific remedy
implying a full examination by an independent and impartial judge, who
is under the obligation to observe the requirements of Article 6 of the
Convention. The fact that the competent judge is not mentioned in a
formal Act, but in an Order in Council does not mean that the
requirement of Article 6 that the judicial authority must be
"established by law" has not been met.
2. Relevant domestic law
Under the Legal Aid Act in force at the time of the facts of the
present application, persons, whose income is insufficient to pay for
legal assistance, may be granted legal aid. Pursuant to Section 1 of
this Act, there is a Legal Aid Bureau in every judicial district.
According to Section 14 of the Act, the Legal Aid Bureau can decide to
assign a lawyer to a legal aid petitioner, provided the latter meets
the income requirements set out in Section 9 of the Act.
Section 25 of the Act provides that detailed rules with respect
to the determination of fees will be issued by Order in Council
(Algemene maatregel van bestuur). To this end the Order on Fees for
Legal Aid was adopted in 1983.
According to the Netherlands Supreme Court, it is inherent in the
system of the Legal Aid Act and the Order on Fees for Legal Aid that
in general a legal aid lawyer's assignment must precede the latter's
work in a case, since in a decision on an assignment the Legal Aid
Bureau has to verify, inter alia, whether a petitioner's interest
justifies the work of counsel (Hoge Raad, judgment of 4.11.77, NJ 1978,
no. 544).
Depending on their income, petitioners should pay their own
contribution (eigen bijdrage). The rest of the lawyer's fees will be
paid by the State. The lawyer who has been assigned is obliged to
provide legal assistance (Section 15).
Section 31 of the Order provides that the Registrar of the
Regional Court will determine (vaststellen) the counsel's fees. When
a lawyer has been assigned while a case is already pending, Section 19
of the Order provides that the Registrar will lower the counsel's fees
to a corresponding extent.
The lawyer can request the intervention of the President of the
Regional Court in order to challenge the Registrar's decision (Section
34 of the Order).
The Act does not provide for an appeal against the President's
decision in the intervention proceedings. However, according to the
Supreme Court case-law, where it is alleged that a certain legal
provision has been applied with disregard for essential procedural
requirements (verzuim van essentiële vormen), an appeal may be lodged
(Hoge Raad, judgment of 29.3.85, NJ 1986, no. 242).
On 1 January 1994 the Act on Legal Aid (Wet op de Rechts-
bijstand), replacing the Legal Aid Act, entered into force. In the new
Act the intervention procedure has disappeared. Against decisions taken
under the new Act the administrative appeal procedure contained in the
General Act on Administrative Law (Algemene Wet Bestuursrecht) can be
applied to legal aid disputes.
As regards the admissibility of a civil action for tort, it is
an established principle in Dutch case-law that a civil court can
refuse to entertain an action for tort when another specific remedy
exists, which offers sufficient guarantees of fair proceedings (cf.
Hoge Raad, judgment of 12 December 1986, Nederlandse Jurisprudentie
1987, no. 381, see also Eur. Court H.R., Oerlemans judgment of
27 November 1991, Series A no. 219, p. 11, paras. 21-35).
COMPLAINTS
1. The applicant complains that, in the tort proceedings, the
national courts have incorrectly interpreted Section 34 of the Order
on Fees for Legal Aid as a specific remedy, thus denying him the
possibility to challenge the decision which the President of the
Utrecht Regional Court took in the intervention proceedings.
2. The applicant further complains that, in the intervention
proceedings, he did not have a fair and public hearing before an
independent and impartial tribunal in the determination of his civil
rights within the meaning of Article 6 para. 1 of the Convention. In
this respect he refers to a letter of 27 March 1992 from the Utrecht
Regional Court in which his request for a hearing in another
intervention case, where the Legal Aid Bureau had refused his
assignment as a lawyer, was rejected. He also refers to letters of 12
March 1990, 20 March 1990 and 4 april 1990 respectively, in which
different Regional Court Registrars refused his requests to provide him
with copies of decisions in intervention proceedings to which he was
not a party. According to the applicant, these refusals confirm that
the intervention proceedings are not public.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 27 April 1992 and registered
on 11 May 1992.
On 6 April 1994 the Commission (Second Chamber) decided to
communicate the application to the respondent Government, pursuant to
Rule 48 para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
20 June 1994. The applicant replied on 17 September 1994.
THE LAW
1. The applicant complains that the national courts have incorrectly
interpreted Section 34 of the Order on Fees for Legal Aid as a specific
remedy, thus denying him the possibility to challenge the decision
which the President of the Utrecht Regional Court took in the
intervention proceedings.
The Commission recalls that it is not competent to examine
alleged errors of fact or law committed by national courts, except
where it considers that such errors might have involved a possible
violation of the rights and freedoms set out in the Convention (cf.
No. 12013/86, Dec. 10.3.89, D.R. 59 p. 100). It cannot, therefore,
examine the correctness under Dutch law of the decision by the domestic
courts to declare the applicant's action for tort inadmissible.
Recalling that Article 6 para. 1 (Art. 6-1) of the Convention does not
guarantee a right to an appeal and that the Convention does not, as
such, guarantee a right to review (cf. No. 14739/89, Dec. 9.5.89,
D.R. 60 p. 296), the Commission finds no indication that the domestic
courts' interpretation of Section 34 of the Order on Fees for Legal Aid
was contrary to Article 6 para. 1 (Art. 6-1) or any other provision of
the Convention.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant further complains that the intervention proceedings
were not in conformity with the requirements of Article 6 para. 1
(Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides:
"In the determination of his civil rights and obligations ... ,
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law. Judgment shall be pronounced publicly (...)."
The Government submit in the first place that, although the
applicant could have lodged an appeal with the Court of Appeal against
the decision of the President of the Regional Court in the intervention
proceedings on the basis of alleged disregard for essential procedural
requirements, they do not wish to invoke non-exhaustion of domestic
remedies as a reason for inadmissibility, given the civil tort
proceedings which the applicant instituted.
As regards the substance of the application, the Government
submit that the principles of Article 6 para. 1 (Art. 6-1) of the
Convention apply to the intervention proceedings at issue and that
these proceedings were in accordance with the requirements of this
provision of the Convention. The lawyer, who requested the
intervention, was able to submit extensive written observations and,
if necessary, to give a further explanation orally. In general the
intervention proceedings were in writing, as the disputes at issue were
not complicated and were of a relatively practical character. The
Government contend that the applicant cannot rely on the letter of
27 March 1992 from the Regional Court of Utrecht in which a request to
have a hearing was refused, as this letter does not concern the
intervention proceedings at issue.
As regards the public nature of the judgment, the Government
observe that the judgment in intervention proceedings was sent to the
party concerned and that it was available to third parties from the
Registry of the Regional Court. For the sake of the protection of
privacy, this availability was limited in that a request to obtain a
copy had to be well-founded. The applicant's requests for copies of
decisions in intervention proceedings were apparently refused by four
different Regional Court Registrars for not, or inadequately, having
been justified.
The applicant submits that the possibility to have a hearing in
intervention proceedings was neither laid down in the Order on Fees for
Legal Aid nor in the Legal Aid Act or any other regulation. Whether a
hearing was held depended therefore on the discretion of the judge.
The applicant maintains that the availability of decisions in
intervention proceedings was not guaranteed. He considers that the
availability of these decisions depended on the reasons given for the
request to obtain a copy and that this was also not laid down in any
rule or regulation. Furthermore, in the intervention proceedings at
issue the decision was not pronounced in public as, according to the
applicant, such decisions never were.
The applicant finally submits that he has not been given the
opportunity to react to the findings of the President of the Regional
Court after the latter had taken notice of the case-file. He also does
not know whether or not the President received further information from
the Legal Aid Bureau or the Registrar. In any case, should such
information have been submitted, he would not have been given the
opportunity to react to this.
The Commission recalls that the civil guarantees of Article 6
(Art. 6) of the Convention only apply to proceedings in which there is
a "dispute" over a "right". There must be a right which can be said,
at least on arguable grounds, to be recognised in domestic law, the
dispute must be genuine and serious, and the result of the proceedings
must be directly decisive for the right in question (cf. Eur. Court
H.R., Mats Jacobsson judgment of 29 June 1990, Series A no. 180, p. 29,
paras. 30, 31 with further references).
In the present case the applicant applied to the Legal Aid Bureau
to be assigned as a legal aid lawyer in eight cases which had at that
time already been concluded. Although the Legal Aid Bureau granted the
applicant the assignment requested, this was in contravention of the
Netherlands Supreme Court case-law which holds that it is inherent in
the system of the Legal Aid Act and the Order on Fees for Legal Aid
that a legal aid lawyer's assignment must precede his work in a case.
Accordingly, the Commission finds that there was no genuine and
serious dispute over a right recognised in domestic law and that
Article 6 (Art. 6) of the Convention is therefore not applicable to the
proceedings at issue.
It follows that this part of the application must also be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy