CEDH · CASELAW;REPORTS;ENG — 5 avril 1995

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                                SECOND CHAMBER                          Application No. 18266/91                                  Kiymet Düman                                   against                               the Netherlands                          REPORT OF THE COMMISSION                          (adopted on 5 April 1995)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1 - 8). . . . . . . . . . . . . . . . . . . . . . . . 1   II.    ESTABLISHMENT OF THE FACTS       (paras. 9 - 18) . . . . . . . . . . . . . . . . . . . . . . . 2   III.   OPINION OF THE COMMISSION       (paras. 19 - 29). . . . . . . . . . . . . . . . . . . . . . . 4         A.    Complaint declared admissible            (para. 19) . . . . . . . . . . . . . . . . . . . . . . . 4         B.    Point at issue            (para. 20) . . . . . . . . . . . . . . . . . . . . . . . 4         C.    As regards Article 6 para. 1 of the Convention            (paras. 21 - 28) . . . . . . . . . . . . . . . . . . . . 4              CONCLUSION            (para. 29) . . . . . . . . . . . . . . . . . . . . . . . 5   APPENDIX:   DECISION AS TO THE ADMISSIBILITY            OF THE APPLICATION . . . . . . . . . . . . . . . . . . . 6   I.     INTRODUCTION   1.     The present Report concerns Application No. 18266/91 introduced on 22 February 1991 against the Netherlands and registered on 28 May 1991.   2.     The applicant is a Turkish national born in 1951 and resides in Amsterdam.   3.     The applicant is represented before the Commission by Mrs. M.D. van Aller, a lawyer practising in Amsterdam.   4.     The respondent Government are represented by their Agent, Mr. K. de Vey Mestdagh, of the Netherlands Ministry of Foreign Affairs.   5.     The application was communicated to the Government on 24 May 1993. Following an exchange of written observations on the admissibility and merits of the case, the complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 6 April 1994. The decision on admissibility is appended to this Report.   6.     Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (Second Chamber), after deliberating, adopted this Report on 5 April 1995 in accordance with Article 31 para. 1 of the Convention, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  S. TRECHSEL                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY   7.     In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by the Netherlands.   8.     The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   II.    ESTABLISHMENT OF THE FACTS   9.     Until 3 December 1980, when the applicant fell ill, she worked as a kitchen help in a hospital. On the basis of the Sickness Benefits Act (Ziektewet) she received benefits for one year. As from 10 December 1981 these benefits were replaced by combined disability benefits under the General Labour Disablement Benefits Act (Algemene Arbeidsonge-schiktheidswet - "AAW") and the Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheidsverzekering - "WAO"), on the basis of complete incapacity to work.   10.    By letter of 25 April 1985, the Industrial Insurance Board for the Health, Mental and Social Interests Sector (Bedrijfsvereniging voor de Gezondheid, Geestelijke en Maatschappelijke Belangen) informed the applicant of its decision to stop the payment of benefits under the AAW and WAO as from 1 April 1985, as she was considered able to perform adapted work.   11.    The applicant, represented by a lawyer, filed an appeal on 9 May 1985 with the Appeals Tribunal (Raad van Beroep) of Amsterdam. On 27 June 1986 the Acting President of the Appeals Tribunal rejected the applicant's appeal as ill-founded. The applicant subsequently filed an objection (verzet) with the Appeals Tribunal. Following a hearing on 19 December 1986 where only the applicant and her lawyer appeared, and a hearing on 23 September 1987 where both parties appeared, the Appeals Tribunal rejected the applicant's appeal against the decision of the Industrial Insurance Board as ill-founded on 12 October 1987.   12.    The applicant, again represented by a lawyer, filed an appeal against this decision with the Central Appeals Tribunal (Centrale Raad van Beroep) on 19 April 1988. By letter of 13 June 1990 the applicant was invited to attend the hearing of her case by the Central Appeals Tribunal on 12 July 1990. By letter of 21 June 1990 the applicant's lawyer requested the Central Appeals Tribunal to postpone this hearing, stating that she had to attend another hearing at the same time, and informed the Central Appeals Tribunal of other dates on which she would also be unable to attend.   13.    On 12 July 1990 the hearing before the Central Appeals Tribunal took place. Neither the applicant, who was on holiday in Turkey, nor her lawyer or the Industrial Insurance Board appeared at the hearing.   14.    In its decision of 2 August 1990, pronounced in public on the same date, the Central Appeals Tribunal noted that the applicant's lawyer had also submitted a letter of 24 June 1988 by a doctor and a letter of 28 June 1988 by a psychiatrist, on which the Industrial Insurance Board had commented in writing, and that, upon the request of the Acting President of the Central Appeals Tribunal, the psychiatrist Mr. L. was requested to submit his comments on the letter of 28 June 1988, which comments were received on 19 April 1990.   15.    The Central Appeals Tribunal rejected the lawyer's request of 21 June 1990 for a postponement and, after having considered the various reports on the applicant's physical and mental state of health and the applicant's comments on these reports, upheld the decision of the Appeals Tribunal of 12 October 1987.   16.    In respect of the lawyer's request to postpone the hearing of 12 July 1990, the Tribunal found no indication of circumstances preventing the applicant from appearing in person, either alone or assisted by another lawyer, at the hearing of 12 July 1990 in order to exercise her rights under the Appeals Act (Beroepswet). The Central Appeals Tribunal stated that it had not found it necessary to summon the applicant to appear in person in order to provide information and noted that the Industrial Insurance Board was not represented at the hearing before the Tribunal either.   No new facts or other elements on which the applicant should have been able to comment had emerged. The Central Appeals Tribunal took into consideration that the case had already been examined on appeal before the Appeals Tribunal, where the applicant, with legal assistance, had appeared. The Central Appeals Tribunal finally held that in deciding upon requests to postpone a hearing regard must be had to the fact that the granting of postponements generally results in delays in the large number of pending cases.   17.    On 13 September 1990 a certified copy of the decision of 2 August 1990 by the Central Appeals Tribunal was communicated to the applicant.   18.    In a letter of 24 September 1990 to the Central Appeals Tribunal the applicant's lawyer complained that her request to postpone the hearing had been refused. Given that it takes years before a case comes to trial before the Central Appeals Tribunal, that she is an independent lawyer working alone and that other tribunals in such circumstances grant a request to postpone a hearing without problems, this way of administering justice in refusing a reasoned request by a lawyer for a postponement was contrary to the principle of correct legal proceedings and in violation of Article 6 of the Convention. The applicant's lawyer urged the Central Appeals Tribunal, if in the future circumstances would force her to request a postponement of a hearing, to grant such requests.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   19.    The Commission has declared admissible the applicant's complaint that her case was not heard within a reasonable time.   B.     Point at issue   20.    The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   C.     As regards Article 6 para. 1 (Art. 6-1) of the Convention   21.    The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention provides as follows :         "In the determination of his civil rights and obligations (...),       everyone is entitled to a (...) hearing within a reasonable time       by (a) (...) tribunal (...)"   22.    The proceedings in question concerned the applicant's disability benefits. The purpose of the proceedings was to obtain a decision in a dispute over "civil rights and obligations", and they accordingly fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention (cf. the Schouten and Meldrum judgment of 9 December 1994, Eur. Court H.R., Series A no. 304).   23.    These proceedings, which began on 9 May 1985 and ended on 2 August 1990, lasted over 5 years and 2 months.   24.    The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).   25.    According to the Government, the length of the period in question is partly due to the conduct of the applicant, who submitted additional information to the Central Appeals Tribunal which had to be assessed and who did not urge the Central Appeals Tribunal to expedite the proceedings.   26.    The Commission considers that the case does not appear to have been particularly complex and that the applicant's conduct is not in itself sufficient to explain the length of the proceedings. The Commission notes the existence of a period of inactivity imputable to the State of over two years, namely between 19 April 1988, when the applicant appealed to the Central Appeals Tribunal, and 12 July 1990, when the Central Appeals Tribunal held its hearing. It considers that no convincing explanation for this delay has been advanced by the respondent Government.   27.    The Commission reaffirms that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (cf. Eur. Court H.R., Vocaturo judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).   28.    In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.         CONCLUSION   29.    The Commission concludes, by 12 votes to 1, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the Second Chamber      President of the Second Chamber            (K. ROGGE)                          (H. DANELIUS)