VAN GIESSEN v. THE NETHERLANDS



                      AS TO THE ADMISSIBILITY OF

                      Application No. 27084/95

                      by Marinus VAN GIESSEN

                      against the Netherlands

     The European Commission of Human Rights (Second Chamber) sitting

in private on 15 May 1996, the following members being present:

           Mr.   H. DANELIUS, President

           Mrs.  G.H. THUNE

           MM.   G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

           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 2 February 1995

by Marinus VAN GIESSEN against the Netherlands and registered on

24 April 1995 under file No. 27084/95;

     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 1922, and resides in

Poederoyen, the Netherlands. Before the Commission he is represented

by Mr M.A. Smals, a lawyer practising in Rotterdam.

     The facts, as submitted by the applicant, may be summarised as

follows.

a.   Particular circumstances of the case

     As from 1985 the municipal authorities of Brakel negotiated with

the applicant seeking to buy land from him for the extension of a

cemetery. Several times the applicant withdrew at the last moment from

an agreement reached.

     Since the negotiations did not lead to the desired result, the

Municipal Council (Gemeenteraad) of Brakel adopted on 20 January 1992

the zoning plan "Buitengebied - herziening 1988-5" aimed at obtaining

the plot by way of an administrative procedure. On 13 April 1992 the

Provincial Executive (Gedeputeerde Staten) of the province of

Gelderland approved the zoning plan.

     Following an appeal against the decision of 13 April 1992, filed

by the applicant's lawyer Mr Smals, the Administrative Litigation

Division of the Council of State (Afdeling Geschillen van Bestuur van

de Raad van State) decided on 22 April 1993 to quash the decision of

13 April 1992 and ordered the provincial authorities to reimburse the

applicant the appeal registration fee of 150 Dutch guilders he had paid

in connection with his appeal to the Council of State.

     On 25 October 1993 the Provincial Executive of the province of

Gelderland took a new decision in respect of the zoning plan. It

approved the zoning plan. Having regard, inter alia, to the location

of the plot, the nature and scope of the agricultural activities

involved, the applicant's age, and the fact that he did not have a

successor for his agricultural activities, it held that to reduce the

plot by 0.31 hectares would have no consequences for the development

of activities which could not be met by compensation. It further noted

that, given the fact that between 1989 and 1991 the applicant had sold

a total of 11.13 hectares of the original 14.84 hectares owned by him,

the applicant had apparently opted to gradually reduce his agricultural

enterprise.

     On the same day the Provincial Executive informed the applicant

of this new decision in writing. In this letter the applicant was also

informed that he could file an appeal with the Administrative

Litigation Division within a time-limit of one month and that, before

his appeal would be taken into consideration, he should pay a

registration fee of 170 Dutch guilders and that this amount would be

repaid if the Administrative Litigation Division would order this. The

letter further mentioned the address of the Administrative Litigation

Division and the details of the account on which the registration fee

should be paid.

     On 3 December 1993 the applicant's lawyer filed an appeal with

the Administrative Litigation Division against the decision of 25

October 1993. Neither the applicant nor his lawyer paid the

registration fee as provided for, at the relevant time, by Section 32

para. 5 of the Act on the Council of State (Wet op de Raad van State)

of 170 Dutch guilders when filing this appeal.

     On 11 January 1994 the applicant's lawyer contacted the

Secretariat of the Administrative Litigation Division as so far he had

not received an acknowledgement of receipt of the appeal. The

Secretariat informed him that this acknowledgement had been sent to him

on 9 December 1993 and sent the lawyer a copy of this letter by telefax

the same day.

     In the letter of 9 December 1993 it was stated, inter alia, that

when the appeal was introduced the applicant had not complied with the

requirement to pay the registration fee of 170 Dutch guilders, that he

had the opportunity to do so within 30 days after the date of the

letter, i.e. the fee should be received on the account of the Council

of State on 10 January 1994 at the latest. The letter further contained

the details of two accounts on which this amount could be paid. One of

these accounts was the account mentioned in the letter of 25 October

1993.

     By letter of 11 January 1994 the applicant's lawyer informed the

President that he had not received the letter of 9 December 1993 and

that, therefore, he had not been able to pay the required fee in time.

The lawyer further stated that he had given a payment order by

telephone and requested, inter alia, that this payment be considered

as having been made on time.

     By decision of 21 February 1994, the Acting President of the

Administrative Law Division (Afdeling Bestuursrechtspraak) of the

Council of State, which had replaced the Administrative Litigation

Division following the entry into force on 1 January 1994 of new rules

on administrative proceedings, rejected the applicant's appeal as

inadmissible on the ground that the applicant had not paid the

registration fee in time. The Acting President held, inter alia:

     "     Pursuant to Section 32 paras. 5 and 8 of the Act on

     the Council of State an appeal is not examined until the

     appellant has paid the (registration) fee due ("het

     verschuldigde recht") of 170 Dutch guilders at the

     Secretariat of the Council of State.

           In case of payment via bank or giro the date of

     payment ... is to be understood the date on which the

     amount is credited to the Council of State's bank or giro

     account.

           Pursuant to the second sentence of Section 32 para. 8

     of the above-mentioned Act the appellant is declared

     inadmissible when the fee due has not been paid within

     thirty days after the day on which a notification was sent

     in which the Secretary (of the Council of State) informed

     him that a fee was due.

           By letter of 9 December 1993 the appellant has been

     informed of, inter alia, the failure to respect the rule

     regarding the payment of the fee of 170 Dutch guilders.

           The amount mentioned has not been received within the

     time-limit mentioned in Section 32 para. 8 of the Act on

     the Council of State, but has only been paid at the

     Secretariat of the Council of State on 13 January 1994.

           The appellant cannot, therefore, be admitted in his

     appeal.

           The appellant's arguments submitted by letter of 11

     January 1994 cannot lead to a different finding in view of

     the imperative character ("dwingende karakter") of Section

     32 para. 8 of the Act on the Council of State."

     The applicant's lawyer filed an objection (verzet) against the

decision of 21 February 1994 with the full bench of the Administrative

Law Division. Following a hearing held on 21 July 1994, the

Administrative Law Division rejected the objection as ill-founded in

its decision of 2 August 1994. It held, inter alia, that:

     "     The requirement of Section 32 para. 8, second

     sentence, of the (former) Act on the Council of State is,

     in view of its wording, a rule of imperative law

     ("voorschrift van dwingend recht").

           Pursuant to this rule the mere failure to pay the fee

     in the course of the period of thirty days, which an

     appellant is offered to redress his failure to pay, must

     lead to a finding of inadmissibility. ...

           ... it appears from the documents and the

     administration that it is certain that the letter of 9

     December 1993 has been sent on the same day to the address

     of the (applicant's) representative.

           This letter has not been returned by the P.T.T. as

     undeliverable. It is further rule that a letter sent in the

     Netherlands by regular mail reaches the addressee.

           The Division accepts that the letter of 9 December has

     been delivered.

           Nevertheless it remains possible that in exceptional

     cases letters sent via the P.T.T. are not delivered. This

     risk, however, should remain with the appellant, as the

     opposite conclusion would lead to socially undesirable

     consequences.

           Moreover, in this case it concerns a statutory

     obligation which exists also in the absence of the separate

     notification by the Secretary to the Council of State.

           In this regard the Division also notes that the

     Provincial Executive of Gelderland, in its letter of 25

     October 1993 .... , has explicitly drawn the applicant's

     attention to this obligation."

     The applicant was represented by the same lawyer throughout the

entire proceedings.

b. Relevant domestic law and practice

     In the amendment of 18 December 1986 to the Act on the Council

of State the requirement to pay a limited amount as appeal registration

fees in proceedings before the Council of State was introduced (Section

32 of the Act on the Council of State).

     For natural persons with limited financial resources, an

exemption or reduction of this fee may be obtained (Section 32 paras.

6 and 7 of the Act on the Council of State).

COMPLAINT

     The applicant complains under Article 6 para. 1 of the Convention

that he did not receive a fair trial in the determination of his civil

rights and obligations in that as a result of an administrative problem

his appeal to the Council of State was not examined on the merits. He

states that no evidence has been submitted from which it can be

established that the letter dated 9 December 1993 was sent before 11

January 1994.

THE LAW

     The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that in the administrative proceedings at issue he did not

receive a fair trial.

     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 ... hearing ... by a ...

     tribunal established by law..."

     The Commission recalls that the obligation under Article 26

(Art. 26) of the Convention to exhaust domestic remedies also requires

an applicant to respect the procedural rules attached to a remedy.

Domestic remedies have not been exhausted when an appeal is not

admitted because of a procedural mistake or omission by an appellant

(cf. No. 21782/93, Dec. 26.6.95, D.R. 82 p. 5).

     However, the Commission does not find it necessary to determine

whether the domestic remedies have been exhausted as the application

is in any event inadmissible for the reasons set out below.

     The Commission notes that the proceedings at issue concerned the

adoption of a zoning plan envisaging an extension of a cemetery on land

belonging to the applicant and consequently changing the land use

destination of part of the plot at issue. The Commission finds that

these proceedings involved a determination of the applicant's civil

rights within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention (cf. Eur. Court H.R., Oerlemans judgment of 27 November

1991, Series A no. 219, pp. 20-21, paras. 45-49).

     As regards the question whether or not the Acting President of

the Administrative Law Division correctly declared the applicant's

appeal inadmissible and the Administrative Law Division correctly

rejected the applicant's objection, the Commission recalls its constant

case-law that it is not competent to examine alleged errors of fact or

law committed by national courts, except where such errors might have

involved a possible violation of the rights and freedoms set forth in

the Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77-A, p. 81, 88).

     The Commission notes that the applicant's first appeal to the

Council of State was successful and that, in the Council of State's

decision of 22 April 1993, the reimbursement was ordered of the appeal

registration fee the applicant had apparently paid in connection with

his first appeal to the Council of State.

     The Commission further notes that the Provincial Executive, in

its letter of 25 October 1993 in which the applicant was informed of

the new decision, explicitly drew the applicant's attention to the

requirement to pay an appeal fee in case he would wish to file an

appeal and provided him with the necessary information to comply with

this requirement.

     Noting that in the course of the adversarial proceedings on his

objection to the full bench of the Administrative Law Division, in

which he was represented by a lawyer, the applicant was provided with

ample opportunity, to state his case, the Commission cannot find that

in this respect the proceedings at issue were unfair. Moreover, given

the first appeal proceedings before the Council of State and the

outcome thereof, and the contents of the letter of 25 October 1993, the

applicant and his lawyer must be considered as having been aware of the

formal statutory requirement to pay an appeal fee. In these

circumstances, the Commission cannot find the respective decisions of

the Acting President and the Administrative Law Division of the Council

of State on the applicant's second appeal to be unreasonable or

arbitrary.

     As regards the requirement to pay an appeal fee as such, the

Commission recalls that one of the elements of the right to a fair

trial within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention is the right to a court. One of the aspects of the right to

a court is the right of access to a court (cf. Eur. Court H.R., Deweer

judgment of 27 February 1980, Series A no. 35, p. 25, para. 49; and

Ashingdane judgment of 28 May 1985, Series A no. 93, p. 24, para. 55).

     The right of access to court is, however, not absolute but may

be subject to limitations. The Contracting Parties are not debarred

from making regulations governing the access of litigants to an

appellate court (cf. No. 8407/78, Dec. 6.5.80, D.R. 20, p. 179; and No.

11122/84, Dec. 2.12.85, D.R. 45, p. 246) and regulations concerning

court registration fees undoubtedly serve the purpose of assuring a

proper administration of justice (No. 14592/89, Dec. 13.12.89,

unpublished).

     Given the limited amount of the fee, and the possibilities of

exemption or reduction and the fact that the fee may be reimbursed if

so ordered, the Commission finds that the levying of the appeal fee at

issue was in conformity with the criteria formulated in the Convention

organs' case-law, and cannot be regarded as constituting an

unacceptable obstacle to the lodging of an appeal with the Council of

State.

     It follows that the application is 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

      (M.-T. SCHOEPFER)                       (H. DANELIUS)

 

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