CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 décembre 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            AS TO THE ADMISSIBILITY OF                         Application No. 19462/92                       by Erik Theodorus HUMMELS                       against the Netherlands           The European Commission of Human Rights (Second Chamber) sitting in private on 2 December 1992, the following members being present:                MM.   S. TRECHSEL, President of the Second Chamber                   G. JÖRUNDSSON                   A. WEITZEL                   J.-C. SOYER                   H. G. SCHERMERS                   H. DANELIUS              Mrs. G. H. THUNE              MM.   F. MARTINEZ                   L. LOUCAIDES                   J.-C. GEUS                Mr.   K. ROGGE, Secretary to the Second 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 27 January 1992 by Erik Theodorus HUMMELS against the Netherlands and registered on 30 January 1992 under file No. 19462/90;         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 citizen, born in 1949 and resident at Utrecht.   He is a practising lawyer by profession.         The facts of the case as presented by the applicant may be summarised as follows.         On 15 November 1990 the applicant was appointed by the Office for Legal Aid (Buro voor Rechtshulp) of Haarlem as public defence counsel for a person charged with theft and embezzlement before the Regional Court (Arrondissementsrechtbank) of Haarlem.         On 2 October 1991 the applicant sent to the Registrar of the Regional Court a declaration as the basis for calculation of the fee he would be paid out of public funds for the defence of the accused person.         On 15 November 1991 the Registrar decided to grant the applicant an amount of 1.399,15 guilders.   In the applicant's opinion, the Registrar, when determining this amount, had not taken into account that the hearing of the case had been adjourned on one occasion.   He therefore wrote a letter, on 25 November 1991, to the President of the Regional Court, asking him to intervene in this matter.   By decision, which the applicant received on 9 January 1992, the President stated that he would not intervene, since the case had been adjourned at the applicant's own request and before the substantive examination of the case had started.   The President therefore considered the Registrar's decision to be correct.     COMPLAINT         The applicant complains of a violation of Article 6 para. 1 of the Convention.   He points out that the President of the Regional Court based his decision on an examination of the case-file without giving the applicant the opportunity to react to his findings.   In the applicant's opinion, there was no fair hearing, since the procedure was neither contradictory nor oral, and the principle of equality of arms was not respected.   The President had apparently received the case-file from the Registrar, and the applicant could not know if the Registrar had also provided him with oral or written comments.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 27 January 1992 and registered on 30 January 1992.         On 19 May 1992 the Commission (Second Chamber) decided to communicate the application to the Netherlands Government under Rule 48 para. 2 (b) of the Commission's Rules of Procedure and to ask for observations on the admissibility and merits of the application.         The Government's observations were submitted on 27 August 1992 and the applicant's observations in reply on 6 October 1992.     THE LAW         The applicant complains of a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the President of the Regional Court decided on his fee as defence counsel in a procedure which was neither contradictory nor oral and in which the principle of equality of arms was not respected.         Article 6 para. 1 (Art. 6-1) of the Convention provides inter alia:         "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 Government consider that the applicant has not exhausted domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.   Although Section 31 of the Ordinance regarding Fees for Legal Aid in Criminal Cases (Besluit vergoedingen rechtsbijstand in strafzaken) provides that on a matter of this kind an appeal is not possible against the decision of the President of the Regional Court, the Supreme Court (Hoge Raad) has ruled (Nederlandse jurisprudentie 1986 nr. 242) that an appeal is always possible if it is alleged that a certain legal provision has been applied with disregard for essential formal requirements (met verzuim van essentiële vormen).   The Government refer to two judgments of the Court of Appeal (Gerechtshof) of 's-Hertogenbosch of 1 March and 24 October 1991 in which the Court of Appeal examined complaints such as that of the applicant despite the indication in the decision appealed against to the effect that no appeal was allowed.   Being a lawyer, the applicant should, in the Government's opinion, have known that he could appeal to the Court of Appeal of Amsterdam.         In case the Commission should not reject the application for failure to exhaust the domestic remedies, the Government consider that the application is manifestly ill-founded, since the applicant could have asked for an oral hearing and the President of the Regional Court was not obliged, without such a request, to arrange for the applicant to be heard in person.   The Government also point out that the President's decision was taken exclusively on the basis of the case- file and that he heard neither the applicant nor the court Registrar.         The applicant points out that there is no case-law of the Supreme Court which directly concerns the right to appeal against a decision of the present kind and that the two judgments of the Court of Appeal of 's-Hertogenbosch are contradictory in that the appeal was admitted in one case but considered inadmissible in the other.         As regards the substance of the case, the applicant states that it is impossible to know whether the President of the Regional Court based his decision exclusively on the case-file.           The Commission considers that a question may arise regarding the applicability of Article 6 (Art. 6) of the Convention to the circumstances of the present case.   However, this question does not have to be resolved, since the application is in any case inadmissible for the following reasons.         The Commission recalls that, in accordance with Article 26 (Art. 26) of the Convention, it may only deal with a matter after the domestic remedies have been exhausted.         In the present case, the applicant did not appeal against the decision of the President of the Regional Court.   The question therefore arises whether an appeal was possible under Dutch law.         Although it is indicated in the relevant legal provision that no appeal is possible, the Government have referred to certain decisions by the Supreme Court and the Court of Appeal of 's-Hertogenbosch which, in the Commission's opinion, show that a Court of Appeal might consider itself competent to examine an appeal in which it is alleged that the President of the Regional Court has disregarded fundamental procedural requirements.   It is true that, in the two decisions referred to, the Court of Appeal reached different conclusions, but in both cases the Court of Appeal examined whether fundamental procedural requirements had been disregarded.         It follows that the conditions in Article 26 (Art. 26) of the Convention have not been satisfied and that the application must be rejected in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.           For these reasons, the Commission, unanimously         DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Second Chamber        President of the Second Chamber             (K. ROGGE)                            (S. TRECHSEL)