AS TO THE ADMISSIBILITY OF
Application No. 33838/96
by M.A.M VAN DEN MAAGDENBERG
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 20 May 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, 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 20 May 1996 by
M.A.M VAN DEN MAAGDENBERG against the Netherlands and registered on
15 November 1996 under file No. 33838/96;
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 1940, and resides in
Breda, the Netherlands.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Pursuant to a Royal Decree (Koninklijk Besluit) of 2 April 1982,
the Decree on Podotherapists (Podotherapeutenbesluit) entered into
force on 6 May 1982. As from 6 May 1982, it was only possible to
exercise as a podotherapist when holding the required qualifications
or on the basis of a permission granted under Article 39 of the Act on
Paramedical Professions (Wet op de paramedische beroepen). Pursuant to
Article 39 of that Act, the Deputy Minister of Welfare, Health and
Cultural Affairs (Staatssecretaris van Welzijn, Volksgezondheid en
Cultuur; hereinafter referred to as "the Deputy Minister") could grant
persons, who had been practising as podotherapists before 6 May 1982,
permission to continue to practise as such where there were sufficient
guarantees that this would not damage public health.
As, at the relevant time, the applicant was in fact working as
a podotherapist, but without holding the qualifications required under
the Decree on Podotherapists, he filed a request to the Deputy Minister
to be allowed to practise as a podotherapist.
By letter of 19 April 1983, the Deputy Minister rejected the
applicant's request to be granted permission to exercise the profession
of podotherapist. The Deputy Minister considered that the applicant did
not hold the required professional qualifications. The applicant and
a number of other persons concerned filed an appeal with the Crown
(Kroonberoep).
By Royal Decree of 23 June 1986, concerning an appeal filed by
another person in a similar situation, the Crown quashed the Ministry's
refusal to grant this person permission to practise as a podotherapist,
holding that the Ministry should allow the appellant to take an
appropriate test for the purposes of Article 39 of the Act on
Paramedical Professions.
On 30 March 1987, the applicant and a number of other persons
concerned were tested on the authority and under responsibility of the
Deputy Minister. On 21 May 1987, the Deputy Minister informed the
applicant and a number of others that they had failed their test and
that their requests for permission to practise as podotherapists were
rejected. The applicant and a number of others lodged an administrative
appeal raising complaints in respect of their test results.
In a final decision of 22 January 1992, the Administrative
Disputes Division of the Council of State (Afdeling Geschillen van
Bestuur van de Raad van State) held that the Deputy Minister had failed
to set the test in a careful manner and ordered that the appellants be
given the chance to take a new test.
The applicant took his new test on 24 March 1993. As the
competent Examination Commission considered that the applicant's
results in one subject area were insufficient, he was given the
opportunity to take a further test as regards that particular subject
area on 17 April 1993.
As the applicant's test results of 17 April 1993 were also found
unsatisfactory, the Deputy Minister rejected his request to be allowed
to practise as a podotherapist by decision of 19 November 1993.
The applicant filed an appeal with the Administrative Law
Division of the Council of State (Afdeling Bestuursrechtspraak van de
Raad van State), complaining that the professional profile of a
podotherapist between May and November 1982 was not clear, that the
Deputy Minister had failed to clarify the interpretation given to
Article 39 of the Act on Paramedical Professions; that he was ill when
he took the test on 17 April 1993; that there was confusion during that
test in that the test patient was not a real patient but a student in
podotherapy; that the test results had been unjustly assessed; that
members of the Examination Commission only qualified as podotherapists
after 1982 and that the President of the test Commission was biased.
After having considered the parties' written submissions and the
oral submissions made in the course of a hearing held on
28 September 1995, the Administrative Law Division rejected the
applicant's appeal on 21 November 1995. It noted, inter alia, that the
test at issue had been prepared in the course of extensive oral and
written consultations with a representative of a group of interested
persons, which group included the applicant, and held, inter alia, that
the way in which the applicant had been tested was in conformity with
the relevant rules and that there was no indication that the findings
of the test Commission could be regarded as unreasonable.
COMPLAINT
The applicant complains that the refusal of his request for
permission to practise as a podotherapist is contrary to Article 6 of
the Convention in that it took an unacceptable long time before the
Deputy Minister provided him with a proper opportunity to be tested.
THE LAW
The applicant complains that the refusal of his request for
permission to practise as a podotherapist is contrary to Article 6
(Art. 6) of the Convention in that it was not before 23 March 1993 that
the Deputy Minister provided him with a proper opportunity to be
tested.
Article 6 (Art. 6) 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 within a
reasonable time by an independent and impartial tribunal
established by law."
The Commission notes that the proceedings at issue, which ended
with the decision of 21 November 1995 by the Administrative Law
Division of the Council of State, basically concerned the question
whether or not the applicant complied with the professional
requirements under Article 39 of the Act on Paramedical Professions for
practising as a podotherapist and whether or not the finding that he
did not comply with these requirements after having failed his test had
been duly reached.
The Commission recalls that for Article 6 para. 1 (Art. 6-1) of
the Convention under its "civil" head to be applicable, there must be
a "dispute" (contestation in the French text) over a "right" which can
be said, at least on arguable grounds, to be recognised under domestic
law. The "dispute" must be genuine and serious; it may relate not only
to the actual existence of a right, but also to its scope and the
manner of its exercise. The outcome of the proceedings must be directly
decisive for the right in question, mere tenuous connections or remote
consequences not being sufficient to bring it within the scope of
Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur Court HR,
Masson and Van Zon v. the Netherlands judgment of 28 September 1995,
Series A no. 327-A, p. 17, para. 44).
The Commission further recalls that an assessment of professional
qualifications, evaluating knowledge and experience for exercising a
profession under a particular title, is akin to a school or university
examination and is so far removed from the exercise of the normal
judicial function that the safeguards in Article 6 (Art. 6) cannot be
taken as covering resultant disagreements (cf. Eur. Court HR, Van Marle
and Others v. the Netherlands judgment of 26 June 1986, Series A no.
101, p. 12, para. 36).
The Commission notes in the first place that the applicant's
right to a test was determined by the Royal Decree of 23 June 1986 and
that there is no dispute as to the existence of this right. The
Commission further notes that the applicant does not dispute that the
professional qualifications of podotherapists, working as such before
the entry into force of the Decree on Podotherapists and wishing to
continue to practise as such after the entry into force of this Decree,
were to be assessed on the basis of a test. The Commission finally
notes that his present complaint concerns, in essence, the way in which
this test was organised.
The Commission considers that the determination of modalities of
the test at issue did not, as such, constitute a determination of the
applicant's civil rights and obligations within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention and that, consequently,
this determination falls outside the scope of Article 6 (Art. 6) of the
Convention.
Insofar as the outcome of the proceedings before the
Administrative Law Division may be regarded as decisive for the
applicant's civil rights and obligations within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention, the Commission finds
no indication that these proceedings fell short of the requirements of
this provision.
It follows that the application must be rejected as 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.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy