Application No. 10252/83
Antonius VOLLAERS
against
the NETHERLANDS
__________
REPORT OF THE COMMISSION
(adopted on 11 May 1988)
TABLE OF CONTENTS
Page
INTRODUCTION ...................................... 1
Part I : STATEMENT OF THE FACTS .................. 3
Part II: SOLUTION REACHED ........................ 5
INTRODUCTION
1. This Report relates to Application No. 10252/83 introduced by
Antonius VOLLAERS against the Netherlands on 20 December 1982 under
Article 25 of the Convention for the Protection of Human Rights and
Fundamental Freedoms. The application was registered on 31 January 1983.
2. The applicant was represented before the Commission by
Mr. L. J. FILLET, a lawyer practising in Tilburg.
3. The Government were represented before the Commission by
their successive Agents, Ms. F.Y. van der Wal and Ms. D.S. van Heukelom,
Assistant Legal Advisers of the Ministry of Foreign Affairs.
4. On 4 March 1987 the European Commission of Human Rights
declared the application admissible.*
5. The Commission then proceeded to carry out its task under
Article 28 of the Convention, which provides as follows:
"In the event of the Commission accepting a petition
referred to it:
(a) it shall, with a view to ascertaining the facts,
undertake together with the representatives of the parties
an examination of the petition and, if need be, an
investigation, for the effective conduct of which the States
concerned shall furnish all necessary facilities, after an
exchange of views with the Commission;
(b) it shall place itself at the disposal of the parties
concerned with a view to securing a friendly settlement of
the matter on the basis of respect for Human Rights as
defined in this Convention."
6. The Commission found that the parties had reached a friendly
settlement of the case and on 11 May 1988 it adopted this Report
which, in accordance with Article 30 of the Convention, is confined to
a brief statement of the facts and of the solution reached.
__________
* This decision is public and can be obtained from the
Commission on request.
7. The following members of the Commission were present when the
Report was adopted:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
Part I
STATEMENT OF THE FACTS
8. The applicant is a Dutch citizen born in 1925 and residing in
Tilburg. At the time of the introduction of his application, he was
employed as a manager in a publishing company.
9. The application concerns the procedure under Dutch law and in
particular the Appeals Act (Beroepswet) to challenge a decision taken
on the basis of the Health Insurance Act (Ziektewet) concerning the
applicant's fitness to work and hence his entitlement to sickness
benefit.
10. The applicant had challenged a decision by the competent
occupational association (bedrijfsvereniging) that he was fit to work
in proceedings introduced before the Appeals Board (Raad van Beroep) in
's Hertogenbosch. In accordance with Article 135 of the Appeals Act,
the President of the Appeals Board sought the opinion of one of the
permanent medical experts attached to the Board who examined the
applicant and consulted a number of other doctors. In conformity with
the conclusions presented by this permanent medical expert, the
President of the Appeals Board rejected the applicant's appeal as
being unfounded. The objection (verzet) filed by the applicant
against this decision was rejected by the Appeals Board.
11. The applicant, alleging a breach of Article 6 para. 1 of the
Convention, claimed that, in the determination of his entitlement to
health insurance allowances, he had not received a fair hearing in the
proceedings before the Appeals Board in 's Hertogenbosch. He
complained in particular of the absence of an oral hearing in these
proceedings and of the fact that the person concerned has no access to
the medical files on which the conclusions of the permanent medical
expert are based and which constitute the basis for the decision by
the Appeals Board.
12. On 12 July 1984 the Commission decided to bring the
application to the notice of the respondent Government without asking
them to submit written observations on the admissibility and merits
pending the decision of the European Court of Human Rights in the
Feldbrugge case, which was analogous to the present case, and adjourned
the examination of the case.
13. Following the Court's judgment in the Feldbrugge case on
29 May 1986 (Eur. Court H.R., Series A no. 99), the Commission resumed,
on 14 July 1986, consideration of the case and invited the Parties to
make submissions if they so wished.
14. The Government submitted observations on 16 October 1986 and
the applicant on 24 November 1986. The Government informed the
Commission in particular that following the Feldbrugge judgment the
Presidents of the Appeals Boards had declared that henceforward an
individual can file an objection (verzet) against the decision in
first instance under all circumstances. Furthermore it announced that
it was preparing new legislation in the light of the Feldbrugge
judgment with a view to excluding violation of Article 6 para. 1 of
the Convention by the Appeals Boards and the Central Appeals Board at
Utrecht in the future.
15. The Commission declared the application admissible on
4 March 1987.
Part II
SOLUTION REACHED
16. Following its decision on the admissibility of the application
the Commission placed itself at the disposal of the parties with a
view to securing a friendly settlement, in accordance with Article 28
(b) of the Convention and invited the parties to submit any proposals
they wished to make.
17. In conformity with its usual practice the Commission's
Secretary contacted the parties and, following the Court's judgment on
Article 50 in the Feldbrugge case of 27 July 1987 (Eur. Court H.R.
8/1984/80/127), both parties submitted proposals for such a
settlement.
18. The Secretary, accompanied by a member of the Secretariat,
met the Parties separately in the Hague on 26 April 1988.
By telefax dated 28 April 1988, the Agent of the respondent
Government made the following declaration:
"The Government of the Netherlands, having regard to the
decision of the European Commision of Human Rights of
4 March 1987 declaring the application admissible and
willing to reach a friendly settlement of the matter in
accordance with Article 28 para. (b) of the European
Convention on Human Rights, makes the following declaration:
1. The Government is prepared, in the light of the
judgment in the Feldbrugge Case on Article 50
(8/1984/80/127) dated 27 July 1987, to make an ex gratia
payment to the applicant of 10.000 Dutch guilders in respect
of non-pecuniary damage.
2. The Government is further prepared to pay the
applicant's legal costs which were actually and necessarily
incurred in an amount of 8.100 guilders."
19. By telefax dated 4 May 1988, applicant's counsel, on behalf
of his client, made the following declaration:
".... I hereby confirm that my client Mr Vollaers accepts the
offer contained in the the Government's declaration dated
28 April 1988, and declares the Application No. 10252/83
to be settled as per payment of the total amount of 18.100
guilders on my bank account..."
20. On 11 May 1988 the Commission found from the above that the parties
had reached agreement on the terms of a settlement. The Commission
further found, having regard to Article 28 (b) of the Convention, that
a friendly settlement of the present application had been secured on
the basis of respect for human rights as defined in the Convention.
For these reasons, the Commission adopted this Report.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)