AS TO THE ADMISSIBILITY OF

Application No. 20353/92

by Mohammed FAIZ

against the Netherlands

The European Commission of Human Rights sitting in private on

6 July 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 July 1992 by Mohammed FAIZ against the Netherlands and registered on 23 July 1992 under file No. 20353/92;

Having regard to :

-   the Commission’s decision of 30 November 1992 to communicate the application;

-   the observations submitted by the respondent Government on      25 February 1993 and the observations in reply submitted by the applicant on 24 March 1993;

- the Commission’s decision of 28 June 1993 not to declare the case  admissible and to adjourn its examination,

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 Moroccan citizen, born in 1934 and resident in Utrecht, the Netherlands.  He is represented before the Commission by Mr. E.Th. Hummels, a lawyer practising in Utrecht.

The facts of the case, as presented by the applicant, may be summarised as follows.

The applicant received from 21 July 1988 benefits under the General Labour Disablement Benefits Act (Algemene Arbeidsongeschiktheidswet, hereinafter "AAW") and the Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheidsverzekering, hereinafter "WAO") on the ground that his capacity for work was reduced (80-100% incapacity).

On 23 September 1988 the Industrial Insurance Board for the Chemical Industry (Bedrijfsvereniging voor de Chemische Industrie) decided to withdraw the benefits under the AAW and to reduce the benefits under the WAO as from 1 November 1988.  The decision was based on the evaluation of the applicant’s incapacity for work as being 15-25%.  The applicant appealed against this decision to the Appeals Tribunal (Raad van Beroep) at Utrecht.  On 3 November 1989 the Appeals Tribunal decided to quash the decision of the Industrial Insurance Board on the ground that certain relevant facts had not been taken into account.  If these facts were taken into the result would be, in the Appeals Tribunal’s opinion, a loss of earning capacity of 32%.  The Appeals Tribunal pointed out that the Industrial Insurance Board was entitled to take a new decision according to which the benefits granted to the applicant would, as from 1 November 1988, be based on a lower incapacity for work than 80-100%.

Subsequently, the Industrial Insurance Board, took a new decision according to which the applicant’s incapacity for work was declared to be 32% and he was assigned to the disability class of 25-35%.

The applicant appealed against the judgment of the Appeals Tribunal of 3 November 1989.  On 10 October 1991 a hearing before the Central Appeals Tribunal (Centrale Raad van Beroep) took place where both parties were represented. On 8 November 1991 the Central Appeals Tribunal confirmed the Appeals Tribunal’s judgment.  In its reasons the Central Appeals Tribunal stated that the applicant’s incapacity for work was higher than the Industrial Insurance Board originally had assumed and that it should, "as (the Industrial Insurance Board) had decided in the meanwhile", result in the applicant being referred, as from 1 November 1988, to the disability class of 35-45%.

It appears that the New Industrial Insurance Board (Nieuwe Industriële Bedrijfsvereniging), which had succeeded the Industrial Insurance Board for the Chemical Industry, contacted the Central Appeals Tribunal by telephone on 14 January 1992, drawing the Tribunal’s attention to the fact that there was a mistake in the Tribunal’s judgment of 8 November 1991 insofar as it was stated that the applicant should be referred to the disability class of 35-45%, the correct class being 25-35%.

Following this contact, the Registrar of the Central Appeals Tribunal, on 24 January 1992, sent to the applicant’s lawyer a letter in which he informed the lawyer that there had been a mistake in the judgment of 8 November 1991.  He further asked the lawyer to destroy the copy of the judgment he had previously received and to replace it by a new copy which he enclosed with the letter.  In the new version of the judgment the applicant’s disability class had been changed from 35-45% to 25-35%.

COMPLAINT

The applicant complains of a violation of Article 6 of the Convention in that the Central Appeals Tribunal amended its judgment without hearing the applicant.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 13 July 1992 and registered on 23 July 1992.

On 30 November 1992 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application.

The Government’s observations were submitted on 25 February 1993 and the applicant’s observations in reply on 24 March 1993.

THE LAW

The applicant complains of a violation of Article 6 of the Convention in that the Central Appeals Tribunal amended its judgment without hearing the applicant.

The relevant part of Article 6 para. 1 of the Convention reads as follows:

"1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ..."

The first question which arises is whether the proceedings concerned the determination of the applicant’s civil rights.  The Government have not expressed any opinion on this point.

The Commission has already, without taking any position on the applicability of Article 6, declared admissible certain previous cases regarding complaints about benefits and contributions under the Dutch social security system (Nos. 17112/90, 19005/91 and 19006/91).  It therefore finds that the present application should not be declared inadmissible on the ground that Article 6 was not applicable.

The Government have argued that the application is manifestly ill-founded, that the Central Appeals Tribunal’s judgment of 8 November 1991 contained an error which was clearly recognisable to everyone and that the fact that the Tribunal rectified that error without hearing the applicant again could not constitute a violation of the principles enshrined in Article 6 of the Convention.

The applicant is of the opinion that it was improper for the Central Appeals Tribunal to issue a second, amended, version of its judgment of 8 November 1991 a few months later, at the request of one of the parties and without hearing the other party, stating that the first version had been retracted.

The Commission notes that on 8 November 1991 the Central Appeals Tribunal, after hearing the parties, rejected the applicant’s appeal and upheld the Appeals Tribunal’s judgment of 3 November 1989, in which the applicant’s loss of earning capacity had been considered to be 32%.

The Commission further notes, on the one hand, the Central Appeals Tribunal’s statement in its judgment that the disability class to which it had referred the applicant was in conformity with a recent decision by the Industrial Insurance Board and, on the other hand, the fact that the Board had assigned the applicant to the disability class of 25-35%.

These various elements make it clear that the mentioning in the Central Appeals Tribunal’s judgment of the disability class of 35-45% was a simple mistake and that the class to which the Tribunal had intended to refer the applicant was that of 25-35%.

In these circumstances, the Commission cannot find that the rectification of the judgment violated the applicant’s right under Article 6 of the Convention to a fair hearing.

It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission            President of the Commission

    (H.C. KRÜGER)                           (C.A. NØRGAARD)