AS TO THE ADMISSIBILITY OF
Application No. 22052/93
by Petrus Gijsbertus Johannes TRAKZEL
against the Netherlands
The European Commission of Human Rights sitting in private on
11 January 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 21 July 1992 by
Petrus Gijsbertus Johannes TRAKZEL against the Netherlands and
registered on 11 June 1993 under file No. 22052/93;
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 national, born in 1933, and resides in
Amsterdam. Before the Commission he is represented by Mr. G. Beydals,
a lawyer practising in Amsterdam.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
As from 25 February 1978 the applicant received supplementary
welfare benefits under the General Welfare Act (Algemene Bijstandswet)
in addition to benefits under the Labour Disablement Insurance Act (Wet
op de Arbeidsongeschiktheidsverzekering) for incapacity for work. In
June 1983 the applicant became aware that he was under investigation
for possible social security fraud.
It appears that the social security authorities had received
information that the applicant was gainfully employed. Following an
investigation, during which the applicant was questioned on
28 May 1984, the Special Control Department of the Amsterdam Municipal
Social Service concluded that, between 1 June 1981 and
15 December 1983, the applicant had been gainfully employed as a
driving instructor and that, contrary to his obligations under the
General Welfare Act, he had failed to declare this income to the social
security authorities. According to the fiscal authorities, the
applicant had earned a total amount of 35.000 Dutch guilders between
1981 and 1983. The applicant did not dispute the corresponding income
tax assessments.
On 26 July 1985 the Amsterdam municipal authorities ordered the
applicant to repay the benefits which he had wrongly received.
Moreover, criminal proceedings were instituted against him on charges
of fraud.
On 30 June 1986 the Magistrate (politierechter) acquitted the
applicant of the criminal charges against him. The Magistrate did not
find it established that the amounts paid to his giro-account came from
the driving school concerned.
Following an initial repayment agreement, which, apart from one
payment, had not been respected by the applicant, the municipal
authorities decided on 19 December 1986 to formally reclaim the
remainder. To this end they requested the District Court judge
(kantonrechter) of Amsterdam on 22 December 1986 to order the applicant
to repay to the Municipality 21.503,05 Dutch guilders of the total
amount of 26.712 Dutch guilders which he had wrongly received. An
amount of 366 guilders had already been repaid by the applicant and an
amount of 4.843,25 guilders could no longer be reclaimed as a result
of prescription.
On 8 July 1988 the District Court judge, following written and
oral adversarial proceedings in which the applicant was represented by
a lawyer, rejected the request by the municipal authorities. As they
had not reacted to certain submissions by the applicant, the judge
found that the municipal authorities had failed to substantiate their
request.
On appeal, the Regional Court (Arrondissementsrechtbank) of
Amsterdam, following written and oral adversarial proceedings in which
the applicant was represented by a lawyer, on 17 May 1989 quashed the
decision of 8 July 1988 and ordered the applicant to repay 21.503,05
Dutch guilders to the municipal authorities.
In the determination of the undeclared earnings the Regional
Court had regard to the income tax assessments of these earnings,
against which the applicant had not filed any objection. It rejected
his arguments that these assessments were incorrect and that his income
had in fact been lower than the amount on which these tax assessments
were based. It also rejected his offer to prove this by submitting
daily statements of his giro-account.
Insofar as the applicant had argued that the request of the
municipal authorities should be declared inadmissible since the
proceedings had exceeded a reasonable time within the meaning of
Article 6 para. 1 of the Convention, the Regional Court held that the
applicant bore a responsibility for the period which had elapsed
between the closure of the investigation in October 1985 and the
beginning of the proceedings in December 1986, as during that period
the municipal authorities had tried to obtain repayment by way of a
payment agreement which the applicant had not respected. The Court did
not find that the municipal authorities had waited too long or had
given the impression that they would not pursue the matter. As regards
the length of the judicial proceedings as such, the Regional Court did
not find that the period between 22 December 1986 and 17 May 1989 was
an unreasonable time.
Following the applicant's appeal in cassation, the Supreme Court
(Hoge Raad), in its decision of 29 June 1990, quashed the judgment of
17 May 1989 on the ground that the Regional Court had failed to examine
one of the applicant's submissions, which concerned the question
whether or not the municipal authorities could claim full repayment of
the benefits concerned. However, insofar as the applicant complained
under Article 6 para. 1 of the Convention of the length of the
proceedings, the Supreme Court held that, even if the reasonable time
had been exceeded in the present case, this could not lead to a more
advantageous decision for the applicant, since Article 6 para. 1 of the
Convention only imposes an obligation on States which are Parties to
the Convention. This obligation, however, does not affect legal
relations between parties in proceedings concerning civil rights and
obligations.
On 21 March 1991 the Court of Appeal (Gerechtshof) of Amsterdam,
following written and oral adversarial proceedings in which the
applicant was represented by a lawyer, found in favour of the municipal
authorities and ordered the applicant to repay 21.503,05 Dutch
guilders. It does not appear that the applicant again complained of the
length of the proceedings.
The applicant's subsequent appeal in cassation was rejected by
the Supreme Court on 28 February 1992. No complaint of the length of
the proceedings had been raised by the applicant.
Furthermore, the applicant's lawyer, on 26 March 1991, complained
to the Municipal Ombudsman that the Municipality had failed to respond
in time to his correspondence regarding the repayment claim at issue
and submitted that the Municipality, in view of the length of the
proceedings, should have withdrawn its claim.
In his report of 10 July 1992 on these complaints the Ombudsman
found that the Municipality had acted improperly (onbehoorlijk) in its
correspondence with the applicant's lawyer. He considered that,
pursuant to Section 14 in conjunction with Section 19 of the Municipal
Statute on the Municipal Ombudsman (Verordening op de Gemeentelijke
Ombudsman), he was not obliged to examine the second complaint, as it
had already been examined in judicial proceedings and no new facts had
appeared.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
that in the determination of his civil rights and obligations he did
not have a fair hearing within a reasonable time. He submits that both
the time which elapsed before the case was brought before the District
Court judge and the total length of the proceedings cannot be regarded
as reasonable. He further complains that the Regional Court unjustly
accepted the income tax assessments as correct and did not allow him
to prove that his earnings had in fact been lower than the amounts on
which these assessments were based.
2. The applicant also complains under Article 13 of the Convention
that he had no effective remedy as regards the alleged violation of
Article 6 para. 1 of the Convention in respect of the length of the
proceedings. He refers to the Supreme Court's decision of 29 June 1990.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1)
of the Convention that in the determination of his civil rights and
obligations he did not have a fair hearing within a reasonable time.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides as follows:
"In the determination of his civil rights and obligations [...],
everyone is entitled to a fair [...] hearing within a reasonable
time by a [..] tribunal established by law. [...]."
The Commission notes that the proceedings concerned the question
whether or not the applicant should repay welfare benefits. It finds
that these proceedings concerned a determination of the applicant's
civil rights and obligations within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention. It follows that this provision is
applicable to the proceedings at issue (cf. Eur. Court H.R., Schuler-
Zgraggen judgment of 24 June 1993, Series A no. 263, p. 17, para. 46).
a) As to the applicant's complaint that the Regional Court unjustly
accepted the correctness of the income tax assessments at issue, the
Commission recalls that it is not competent to examine alleged errors
of fact or law committed by domestic 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. 21283/93, Dec. 5.4.94,
D.R. 77-A p. 81). The Commission notes that the applicant had not
disputed the correctness of these assessments before the tax
authorities and cannot find that, in relying upon them, the Regional
Court acted in an arbitrary or unreasonable manner. It must also be
considered to have been the responsibility of the Regional Court to
decide whether, in these circumstances, further evidence was required
in order to establish the facts.
Moreover, the applicant was represented by a lawyer throughout
the proceedings at issue and had the opportunity to present his views
and challenge the submissions of his adversary in the proceedings.
The Commission finds no indication that the proceedings were
unfair and considers, therefore, that this part of the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
b) As regards the applicant's complaint that his civil rights and
obligations were not determined within a reasonable time as required
by Article 6 para. 1 (Art. 6-1) of the Convention, the Commission notes
that these proceedings started on 22 December 1986, when the Amsterdam
municipal authorities instituted civil proceedings before the District
Court judge (cf. Eur. Court H.R., Erkner and Hofauer judgment of
23 April 1987, Series A no. 117-B, p. 61, para. 64), and ended on
28 February 1992, when the Supreme Court rejected the applicant's
second appeal in cassation.
The proceedings thus lasted approximately five years and two
months.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and with the help of the following criteria:
the complexity of the case, the conduct of the parties and the conduct
of the authorities dealing with the case (cf. Eur. Court H.R., Vernillo
judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).
In particular, in cases concerning civil proceedings, it should
be taken into account whether the applicant had shown due diligence by
taking the necessary steps to expedite the proceedings and whether
delays occurred for which the applicant cannot be held responsible.
Only delays attributable to the State may justify a finding of a
failure to comply with the reasonable time requirement (cf. Veit v.
Germany, Comm. Report 12.3.87, para. 114, D.R. 60 p. 78).
The Commission notes that the present case was been dealt with,
first at three levels of jurisdiction and then, again, before the Court
of Appeal and the Supreme Court (cf. as regards a period of nearly five
years involving three levels of jurisdiction, Eur. Court. H.R., Salerno
judgment of 12 October 1992, Series A no. 245-D, p. 55-56, paras. 18-
21).
The applicant has not shown that there were any substantial
delays in the proceedings for which the judicial authorities were
responsible. Nor does it appear that, at any stage of the proceedings,
he requested the courts dealing with his case to expedite the
proceedings. In these circumstances the Commission cannot find that the
total length of the proceedings could be regarded as unreasonable.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant further complains under Article 13 (Art. 13) of the
Convention that he had no effective remedy as regards the alleged
violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect
of the length of the proceedings. He refers to the Supreme Court's
decision of 29 June 1990.
Article 13 (Art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls that it has found the applicant's
complaint regarding the length of the proceedings to be manifestly ill-
founded. It follows that in this respect the applicant has no arguable
claim of a violation of the Convention and that he was not entitled to
a remedy under Article 13 (Art. 13) of the Convention (cf. Eur. Court
H.R., Powell and Rayner judgment of 21 February 1990, Series A no. 172,
p. 14-15, para. 33).
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy