AS TO THE ADMISSIBILITY
of Application No. 10252/83
by A.M.T.M.C. VOLLAERS
against the Netherlands
The European Commission of Human Rights sitting in private on
4 March 1987, the following members being present:
MM. C. A. NØRGAARD, President
G. SPERDUTI
J. A. FROWEIN
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mr. F. MARTINEZ
Mr. H. C. KRÜGER, Secretary to the Commission
Having regard to Art. 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 December 1982
by A.M.T.M.C. Vollaers against the Netherlands and registered on
31 January 1983 under file No. 10252/83;
Having regard to:
- the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
- the Commission's decision of 12 July 1984 to bring the
application to the notice of the respondent Government and
to adjourn consideration of the application pending the
outcome of the proceedings in the Feldbrugge case;
- the Commission's decision of 14 July 1986 to resume
consideration of the case and to invite the respondent
Government to submit written observations on its
admissibility and merits;
- the observations submitted by the respondent Government on
16 October 1986 and the observations in reply submitted
by the applicant on 24 November 1986;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the applicant may be
summarised as follows:
The applicant is a Dutch citizen born in 1925 and residing in
Tilburg. He is represented by Mr. L.J. Fillet, a lawyer practising in
Tilburg.
The applicant is employed as a manager in a small publishing
company.
He reported himself as being ill with his employer on 5 February
1981 and claimed sickness allowances on the basis of the Health Act
(Ziektewet) as from that date.
On 8 0ctober 1981 the occupational association concerned
(Bedrijfsvereniging voor de Gezondheid, Geestelijke en
Maatschappelijke Belangen) in Zeist decided that as from 30 September
1981 the applicant could no longer be considered as unfit to work.
The applicant appealed on 14 October 1981 against that decision
to the Appeals Board (Raad van Beroep) in 's Hertogenbosch, submitting
that he was still unfit to work as from 30 September 1981. He claimed
that he suffered from back trouble and pain in his left leg which made
it impossible for him to work in a standing or sitting position, as
his function required.
The President of the Appeals Board charged the permanent medical
expert with an enquiry in conformity with Art. 135 of the Appeals Act.
This expert, a neurologist, examined the applicant on 24 November
1981. He equally consulted the industrial doctor as well as a general
practitioner and four specialist doctors.
In his conclusions of 30 March 1982 the permanent medical expert
concluded that the applicant had been fit to work as a manager as
from 30 September 1981.
On 14 April 1982 the President of the Appeals Board, in
conformity with the conclusions presented by the permanent medical
expert, rejected the appeal by the applicant as being unfounded
in application of Art. 141 para. 1 of the Appeals Act.
The applicant filed an objection (verzet) against this
decision on 11 May 1982.
He complained in the first place that the permanent medical
expert had not given his own medical practitioner, who was treating
him at the time, an opportunity to express an opinion. The latter
would undoubtedly have been more competent than the four other
specialists who had suggested that his physical troubles had a
psychological cause, namely a conflict situation in his work
environment.
The applicant further submitted that the proceedings
which were followed in his case were in breach of Art. 6 of the
Convention, since these proceedings do not provide for an
opportunity for the person concerned to express himself on the
dispute before the court. He also considered that the denial
of access to the medical opinions of the medical specialists
who had been consulted by the permanent medical expert was in
breach of the principle of fair hearing.
As regards the first complaint, the President of the Appeals
Board was of the opinion that the law does not require the permanent
medical expert to consult all doctors, by whom the employee has
been examined. Moreover, the doctor indicated by the applicant had
only started treating him after the permanent medical expert had
examined him. In this respect the appeal was therefore ill-founded.
As regards the applicant's second complaint, the President of
the Appeals Board first pointed out that an alleged breach of Art. 6
of the Convention was not one of the grounds set out exhaustively in
the law (Art. 142, para. 2 of the Appeals Act) on which an appeal
(verzet) could be based. However, in view of the fundamental nature
of the complaint, this part of the appeal was answered in the
following obiter dictum: The proceedings in question did not
concern a civil right as they concerned payment of a public character
(publiekrechtelijke uitkering) and hence fell outside the scope of
Art. 6.
In any event the objections raised against the proceedings
were not of such a nature that the proceedings as a whole could be
qualified as being unfair.
The main aim of the legislator had been to speed up the
proceedings in the interest of the individual concerned. Furthermore,
the proceedings contained a number of safeguards of fairness, such as
the independence of the medical expert and his obligation to report
independently following his oath; the legal obligation for the medical
expert to consult the doctor in charge of the case of the individual
concerned; the legal obligation to examine the individual concerned
and to offer him/her the opportunity to present his/her objections.
The fact that the proceedings did not provide for an oral debate in
court or access to the medical files did not outweigh these
advantages.
On these grounds, the Appeals Board declared the appeal
inadmissible insofar as the applicant had submitted that Art. 141
et seq. of the Appeals Act should not have been applied for being
contrary to the Convention and unfounded insofar as the applicant
had complained about the failure to consult his own practitioner.
This decision (beschikking) of 22 June 1982, communicated to
the applicant on 28 June 1982, is not subject to appeal (Art. 142
para. 7 of the Appeals Act).
Complaints
The applicant considers that Art. 6 of the Convention is
applicable to the "permanent medical expert procedure" and has been
breached.
As regards the applicability of Art. 6, the applicant refers
to the case-law of the European Court of Human Rights in which
the latter emphasised the autonomous character of the concept of
civil rights and obligations (judgments in the cases of Ringeisen,
König and Le Compte).
In support of his view, the applicant invokes a decision of the
Appeals Board of Zwolle of 23 November 1981 in which that Appeals
Board held that the permanent medical expert proceedings are in breach
of Art. 6, basing itself as regards the applicability of Art. 6 on the
jurisprudence of the European Court of Human Rights in the cases of
Ringeisen and König. In this respect the Appeals Board of Zwolle
considered that the outcome of the proceedings can be decisive for the
civil rights and obligations of the individual concerned to the
extent, for example, that a civil court, called upon to pronounce
itself on the lawfulness of a dismissal, will automatically decide
that the dismissal was not arbitrary, if the Appeals Board had in the
meantime ruled that the dismissed person was fit to work. The Appeals
Board in question quotes in this respect a decision of a civil court
in Apeldoorn of 18 May 1977.
The applicant further refers to a series of legal opinions
expressed by experts in various legal journals in the Netherlands
as regards the implication of the Court's case-law for the
proceedings in point.
Lastly he argues that Art. 6 is applicable since the
entitlement to sickness benefits is an enforceable private right.
As regards the compliance with Art. 6, the applicant
emphasises that in these proceedings there is no oral hearing
before the Appeals Board and that the person concerned has no
access to the medical files on which the opinion of the permanent
medical expert is based.
PROCEEDINGS
The application was introduced on 20 December 1982 and
registered on 31 January 1983.
On 15 November 1983 the Commission decided in accordance with
Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the
application to the respondent Government without, however, inviting
them to present any written observations, pending the outcome of
another application declared admissible on the same day after an oral
hearing (Application No. 8562/79, Feldbrugge against the Netherlands)
and raising the same issues.
On 29 May 1986 the European Court of Human Rights delivered
judgment in the case of Feldbrugge. On 14 July 1986 the Commission
resumed consideration of the application in the light of this
judgment. Having enquired whether the applicant wished to maintain
his application in the light of the Feldbrugge judgment and having
received an affirmative answer in this respect on 5 August 1986, the
Commission invited the respondent Government on 26 August 1986 to
submit observations on the admissibility and merits of the application
before 7 November 1986.
On 16 October 1986 the Government informed the Commission that
in the light of the Feldbrugge judgment it had no other observations
on the admissibility and merits of the application "than that the
Presidents of the Appeals Boards have declared that henceforward
an individual can file an objection (verzet) against the decision in
first instance under all circumstances ... ". The Government further
announced that it was preparing new legislation in the light of the
Feldbrugge judgment "with a view to exclude violation of Article 6
para. 1 of the Convention by the Appeals Boards and the Central
Appeals Board at Utrecht in the future".
The applicant replied on 24 November 1986 that he had no
further comments to add.
THE LAW
The applicant complains that he has been denied a fair and
public hearing within the meaning of Art. 6 (Art. 6) of the Convention in the
proceedings based on the Appeals Act in which he challenged before the
Appeals Board (Raad van Beroep) a decision taken by the occupational
association which had declared him fit to resume work as from a
particular date and which resulted in the denial of sickness
allowances by virtue of the Health Act (Ziektewet) as from the same
date.
Art. 6 para. 1 (Art. 6-1), first sentence, of the Convention is worded
as follows:
"In the determination of his civil rights and obligations or of any
criminal charge against him, 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 this application raises similar
issues to the case of Feldbrugge (Eur. Court H.R., Feldbrugge
judgment of 29 May 1986, Series A, No. 99), in which the Court found a
violation of Article 6, para. 1 (Art. 6-1), and that the Government have not
raised any specific points concerning the admissibility of the present
application.
It follows that the application must be declared admissible,
no grounds for declaring it inadmissible having been established.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)