AS TO THE ADMISSIBILITY OF
Application no. 25149/03
by Laurens Josephus VAN HOUTEN
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 24 February 2005 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr L. Caflisch,
Mr C. Bîrsan,
Mrs A. Gyulumyan,
Ms R. Jaeger,
Mr E. Myjer, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 8 November 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Laurens Josephus van Houten, is a Netherlands national, who was born in 1949 and lives in Haarlem. He is represented before the Court by Mr A.C.R. Molenaar, a lawyer practising in Amstelveen.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Proceedings against the New General Occupational Association
The applicant worked as a freelance photographer from the mid-1970s until the early or mid-1980s but developed pulmonary and psychiatric problems. On 15 December 1988 he applied to the New General Occupational Association (Nieuwe algemene bedrijfsvereniging – “NAB”) for a disability pension under the General Labour Disability Act (Algemene Arbeidsongeschiktheidswet – “AAW”).
On 20 November 1989 the NAB gave a decision refusing the applicant such a pension on the ground that he had not at any time been unfit for work for fifty-two consecutive weeks, his disability continuing beyond such period. The decision was signed on behalf of the NAB by the managing director of the Haarlem district branch of the Joint Administration Office (Gemeenschappelijk Administratiekantoor), per procurationem.
The applicant appealed to the Appeals Tribunal (Raad van Beroep), at that time the administrative tribunal competent in social-security cases, on 18 December 1989. In the course of the proceedings before the Appeals Tribunal the applicant was subjected to various medical examinations.
On 12 November 1991 the Appeals Tribunal dismissed the applicant's appeal on the ground that the applicant had been sufficiently fit for alternative work.
On 22 November 1991 the applicant lodged a further appeal with the Central Appeals Tribunal (Centrale Raad van Beroep). He submitted his grounds of appeal on 18 May 1992.
It seems that on 29 July 1993 the President of the Central Appeals Tribunal wrote to the management board of the NAB asking whether the applicant, as a freelance photographer, was properly insured with their occupational association.
On 9 December 1993 the NAB management board replied, acknowledging responsibility for the applicant from 1 November 1983 onwards but suggesting that from 1 September 1982 until 1 November 1983 the competent occupational association might have been the Occupational Association for the Banking and Insurance Sector, Wholesale Trade and Professions (Bedrijfsvereniging voor Bank- en Verzekeringswezen, Groothandel en Vrije Beroepen; “OA Banks and Professions”).
On 1 March 1994 the Central Appeals Tribunal gave a decision quashing the appeal on the ground that, inasmuch as the decision of the NAB had included an assessment of the applicant's fitness for work between 1 September 1982 and 1 November 1983, it had been taken unlawfully; the competent occupational association during this period had been the OA Banks and Professions. The NAB was ordered to take a new decision taking this fact into account. It also indicated that there was a need for further psychiatric examination of the applicant.
The NAB never considered the case again.
2. Proceedings against the Occupational Association for the Banking and Insurance Sector, Wholesale Trade and Professions
Even before the Central Appeals Tribunal's decision on 14 January 1994, the OA Banks and Professions wrote to the applicant informing him that it was assuming responsibility for his social insurance for the period from 1 November 1975 until 1 November 1983. By a decision of the same date it refused the applicant an AAW pension on the ground that he had not been unfit for work for fifty-two consecutive weeks between 1 November 1975 and 1 November 1983. This decision, like the NAB's decision of 20 November 1989, was signed per procurationem by the managing director of the Haarlem district branch of the Joint Administration Office.
The applicant appealed to the Administrative Law Division of the Haarlem Regional Court – the Regional Courts having by then succeeded the Appeals Tribunals as the competent first-instance tribunals in social-security matters – on 14 February 1994.
The OA Banks and Professions lodged a written statement of defence on 26 July 1995, to which was annexed a psychiatric report which had been completed nine days earlier (17 July 1995) by the psychiatrist Dr van Epen. According to this report there was no reason of a psychiatric nature why the applicant could not take up work in his original or a related profession.
The Regional Court held a hearing on 10 April 1997. The applicant's opponent was now the National Social Insurance Institute (Landelijk Instituut Sociale Verzekeringen, “Lisv”), which following a reorganisation of the social security implementing system earlier that year had replaced the multitude of occupational associations.
On 12 May 1997 the Regional Court gave a decision allowing the appeal and quashing the decision of 14 January 1994. It found that the OA Banks and Professions had acted ultra vires in considering the period before 1 September 1982. It ordered the Lisv to decide anew, and enjoined it now to show “some diligence” (thans met enige voortvarendheid).
On 31 July 1997 the Lisv informed the applicant that it would not appeal against the Regional Court's decision. It gave a new decision refusing the applicant an AAW pension on the ground that he had not at any time after 1 September 1982 been unfit for work for a consecutive period of fifty-two weeks and remained unfit for work thereafter. This decision too was signed per procurationem by the managing director of the Haarlem district branch of the Joint Administration Office.
3. Proceedings against the Lisv
In conformity with a new procedure introduced in 1994 by the General Administrative Law Act (Algemene Wet Bestuursrecht), the applicant lodged an objection with Lisv (care of the Haarlem district branch of the Joint Administration Office) on 9 September 1997. The applicant's notice of objection contained the grounds on which it was based.
The Lisv gave a decision dismissing the objection on 30 December 1997. The decision was signed, on behalf of Lisv, by the head of the Objections and Appeals Department of the Haarlem district branch of the Joint Administration Office.
On 29 January 1998 the applicant lodged an appeal with the Administrative Law Division of the Haarlem Regional Court, submitting grounds of appeal at the same time.
The Joint Administration Office lodged a written statement of defence on 9 March 1998.
A hearing was held on 25 March 1999.
On 19 April 1999 the Regional Court gave its decision. Finding that the Lisv had failed to undertake any medical examination of the applicant itself, it quashed the decision of 30 December 1997 and ordered the Lisv to decide anew.
The Lisv, represented by the head of the Objections and Appeals Department of the Haarlem district branch of the Joint Administration Office, appealed to the Central Appeals Tribunal on 4 May 1999. On 11 June 1999 the Lisv submitted its grounds of appeal and on 16 and 25 June it submitted additional documents.
The applicant submitted a written statement of defence on 26 October 1999, which, in so far as relevant, reads as follows:
“As to the most recent situation, the following should be noted.
[The applicant] was hospitalised for observation for four days (in February 1999) on the instructions of the pneumonologist, who thereupon referred him to psychiatrist Van Overloop, by whom [the applicant] is currently being treated. The medical reports which relate to this will all be appended as exhibits 1, 2 and 3.”
The applicant states that the said exhibits were in fact appended to his statement of defence and that these were intended to counter the conclusions of the psychiatric report of Dr van Epen dated 17 July 1995 (see above). According to the Government, the exhibits never came into the possession of either the Lisv or the Central Appeal Tribunal.
On 8 February 2001 the President of the Central Appeals Tribunal wrote to the Lisv asking it to submit all the medical information concerning the applicant, and in particular all other medical information mentioned by the applicant in his statement of defence, which was sent to the Lisv by letter of 28 October 1999.
The Central Appeals Tribunal held a hearing on 24 April 2001. It appeared at that hearing that the Central Appeals Tribunal was unaware of the three medical opinions which the applicant states were appended to his statement of defence of 26 October 1999; however, when he asked for an adjournment of the hearing until later that day or, in the alternative, until another date so that he could submit copies, the Central Appeals Tribunal refused.
On 29 May 2001 the Central Appeals Tribunal gave its decision. It gave a summary of the prior proceedings, going back as far as the applicant's first application for an AWW pension on 15 December 1988 and encompassing the decisions of the NAB, the OA Banks and Professions and the Lisv as well as the legal remedies applied against these. It went on to quash the decision given by the Regional Court on 19 April 1999 and to declare the applicant's appeal against the Lisv's decision of 30 December 1997 unfounded. Its reasoning included the following (p. 5):
“In the present case, the Tribunal attaches relevance to the fact that [this case is about] the applicant's capacity for work in the period until November 1984 or thereabouts. ... In the various proceedings between the parties a great number of medical reports have been submitted which relate to the period at issue. In the Tribunal's view this evidence offers a sufficient basis to answer the relevant question, [i.e.] the extent of the [applicant's] (in)capacity for work in the early 1980s, whereas it cannot be seen what any more recent examination could add to the [already available] information about the period at issue.”
The Central Appeals Tribunal found, in the light of – in particular – the report of the psychiatrist Dr van Epen (17 July 1995), that the Lisv's decision had been sufficiently well-informed.
B. Relevant domestic law and practice
The General Administrative Law Act entered into force on 1 January 1994.
Section 6:2 of the General Administrative Law Act (“refusal and constructive refusal”) reads as follows:
“For the purposes of statutory regulations governing objections and appeals, the following shall be considered equivalent to a decision (besluit):
(a) a written refusal to give a decision, and
(b) a failure to give a decision in due time.”
Section 6:12 (“constructive refusal”) of the General Administrative Law Act reads as follows:
“1. If the objection or the appeal is lodged against a failure to give a decision in due time, it is not subject to a time-limit.
2. The notice of objection or appeal can be lodged as soon as the administrative authority fails to give a decision in due time. ...”
Under Section 8:52 (“urgent case”) of the General Administrative Law Act the court may determine that the proceedings be expedited if the matter is urgent.
According to Section 8:58 of the General Administrative Law Act parties may submit additional documents until ten days before the hearing.
According to Section 17 § 1 of the Social Security Appeals Act (Beroepswet), Chapter 8 of the General Administrative Law Act is, in principle, applicable to an appeal lodged with the Central Appeals Tribunal.
In a decision of 4 July 2003 the Central Appeals Tribunal held that, reversing its previous case-law, it is for the administrative courts to determine whether the allegation that the length of the proceedings before those courts exceeded a “reasonable time” constitutes a violation of Article 6 of the Convention (Nederlands Juristenblad – Netherlands Law Review – 2003, pp. 1519-1520). Its reasoning included the following:
“As regards the applicant's complaint about the length of the proceedings, the Tribunal observes that this complaint is directed exclusively against the administrative court's (or courts') share in [the length of] these proceedings. In the past, the Tribunal held the view that in case of an alleged violated of Article 6 [of the Convention] on this point, the party concerned should apply to the civil court for the determination of that violation and the consequences thereof; ...
Considering also the development of the meaning attached to Article 13 [of the Convention] in the case law of [the European Court of Human Rights] ..., the Tribunal is now of the opinion, departing from its case law mentioned above, that an administrative court should determine whether or not there is a violation of Article 6 [of the Convention] relating to a complaint that proceedings have exceeded a reasonable time. The Tribunal persists in its established case law to the extent that a party concerned should apply to the civil court for the determination of the consequences which should be attached to such a violation. In this way, it is established beyond doubt that Netherlands administrative law provides an effective remedy within the meaning of Article 13 [of the Convention] for the determination whether an administrative court has dealt with a case within a reasonable time. In the absence of any legal provision, however, the Netherlands legal system leaves it to the civil courts to rule on any damage allegedly suffered, compensation for which should be paid by the State.”
1. The applicant complains under Article 6 § 1 of the Convention that the length of the proceedings on his request for AAW benefits exceeded a “reasonable time”.
2. He complains under the same provision that the proceedings before the Central Appeals Tribunal were unfair by reason of the refusal of that body to adjourn its hearing of 24 April 2001 in order to allow him to submit copies of the documents which he had mentioned in, and appended to, his statement of defence of 26 October 1999 but which were missing from the file.
The applicant complained of the duration of the proceedings following on his request for AAW benefits, as well as of a lack of fairness in those proceedings. He invoked Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
“In the determination of his civil rights and obligations..., everyone is entitled to a fair ... hearing within a reasonable time by ... [a] tribunal ... .”
The Court notes at the outset that Article 6 § 1 of the Convention is applicable to proceedings which determine a dispute about a request for AAW benefits (see Beumer v. the Netherlands, no. 48086/99, § 43, 29 July 2003).
A. Length of proceedings
The Government submitted that domestic remedies had not been exhausted, as required by Article 35 § 1 of the Convention, since the applicant had not complained at any time during the extensive domestic proceedings about the length of those proceedings and had failed to take any action to expedite the proceedings by making use of Articles 6:2 and 8:52 of the General Administrative Law Act (see above). In the Government's view the applicant should in any case have raised his complaint before the Central Appeals Tribunal, since this Tribunal examines whether or not the length of proceedings can be considered reasonable. This might have enabled him to claim compensation in the civil courts.
In the alternative, the Government deferred to the Court's judgment on this point, although emphasising that the applicant had only submitted the grounds of his first appeal to the Central Appeals Tribunal six months after he had lodged that appeal and that, moreover, he had failed to take any action in order to expedite the proceedings.
The applicant maintained that the total length of the proceedings, twelve years and six months, had exceeded a “reasonable time”.
The Court is of the opinion that the Government, claiming non-exhaustion, have failed to show that the alleged remedies were “effective” both in theory and in practice in the circumstances of the case and at the relevant time (cf. Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, §§ 65-69).
Firstly, as regards the alleged remedy under Section 6:2 taken together with Section 6:12 of the General Administrative Law Act, the Court finds that the Government have not substantiated that as from 1 January 1994 (the date of that Act's entry into force) the applicant still had proceedings pending before the administrative bodies; nor is it apparent that such was the case.
Secondly, as regards the alleged remedy under Section 8:52 of the General Administrative Law Act taken together with Article 17 of the Social Security Appeals Act, the Court notes that the Government have not demonstrated – for example, by submitting decisions of administrative courts applying that provision in similar cases – that that remedy, which equally became accessible to the applicant on 1 January 1994 only, would have offered him a reasonable prospect of success.
Finally, the Court observes that the applicant's complaint addresses mainly the administrative courts' share in the length of the proceedings. It follows from the Central Appeals Tribunal's decision of 4 July 2003 that the applicant could not have obtained a ruling from that Tribunal on the question whether the trial courts had fallen short of their obligations under Article 6 of the Convention; in the present case, the proceedings before the Central Appeals Tribunal had been already brought to an end before the date on which that Tribunal changed its case-law and accepted that the administrative courts should determine themselves whether they had dealt with a case within a reasonable time (cf. Broca and Texier-Micault v. France, nos. 27928/02 and 31694/02, §§ 18-24, 21 October 2003).
The Court therefore dismisses the Government's objection.
The Court further considers, in the light of the criteria established by its case law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required. No other grounds for declaring it inadmissible have been established.
B. Fair hearing
The Government, who took the view that the applicant had not been deprived of a “fair hearing” within the meaning of Article 6 § 1, emphasised in the first place that the responsibility for submitting evidence lay with the party submitting it; in the present case, the applicant must bear the risks of sending documents to the Central Appeals Tribunal.
Furthermore, the Government contended, citing Komanický v. Slovakia (no. 32106/96, §§ 45-47, 4 June 2002), that it was for the national authorities to decide on the admissibility of evidence.
Finally, the Government argued that the object of the parties' dispute before the domestic courts, i.e. whether the applicant was capable for work in the early 1980s, had been dealt with in detail in the various domestic proceedings and that several medical opinions had been drawn up for that purpose. The documents which the applicant was not allowed to submit to the Central Appeals Tribunal were medical reports of February and March 1999. According to the applicant's own statements, these reports described the situation at that time and did not concern the period under the Tribunal's examination.
The applicant, in reply to the Government's observations, again stated that on 26 October 1999 he had submitted the documents at issue as appendices to his statement of defence to the Central Appeals Tribunal. He argued that it followed from the Central Appeals Tribunal's letter of 8 February 2001 and the Tribunal's judgment of 29 May 2001 respectively that these documents must have come into the possession of the Lisv and the Central Appeals Tribunal.
Furthermore, in the applicant's contention, the medical documents appended to his statement of defence elaborated on the medical reports which he had submitted to the Haarlem Regional Court in 1990 and qualified the report of the psychiatrist Dr van Epen dated 17 July 1995.
The Court reiterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as it may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, §§ 45 and 46). As a general rule it is for the national courts to assess the evidence before them as well as the relevance of the evidence which the parties seek to adduce. The Court's task is to ascertain whether the proceedings as a whole were fair (see, among many authorities, Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, § 31).
In the light of the above considerations, the Court must decline ruling on the question of fact whether or not, in the present case, the Central Appeals Tribunal was – or could reasonably have been – cognizant of the medical documents which the applicant allegedly appended to his statement of defence. The question to be answered by the Court is whether the Tribunal's refusal to allow the applicant to submit anew the medical documents at issue deprived him of a fair hearing within the meaning of Article 6 of the Convention. This question is to be answered in the negative. Given that in his statement of defence the applicant had announced the exhibits at issue as describing “the most recent situation” (as of February/March 1999), the Court cannot consider that the Central Appeals Tribunal acted unreasonably by refusing the applicant a chance to re-submit them on the ground that they were irrelevant to the assessment of the applicant's state of health many years earlier.
It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 § 1 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant's complaint that the length of the proceedings on his request for AAW benefits exceeded a “reasonable time”;
Declares inadmissible the remainder of the application.
Vincent Berger Boštjan
VAN HOUTEN v. THE NETHERLANDS DECISION
VAN HOUTEN v. THE NETHERLANDS DECISION