CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 octobre 1987

.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. 11834/85                       by Euro Art Centre B.V.                          Ronald Keith Piggott                          Margaret Ellen Piggott-Hughes                       against the Netherlands             The European Commission of Human Rights sitting in private on 5 October 1987 the following members being present:                 MM. C.A. NØRGAARD, President                   M.A. TRIANTAFYLLIDES                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                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 18 June 1985 by Euro Art Centre B.V., Ronald Keith Piggott and Margaret Ellen Piggott-Hughes against the Netherlands and registered on 31 October 1985 under file N° 11834/85;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts as they have been submitted by the applicants may be summarised as follows:           The first applicant, hereinafter called "the Company", is a corporate body registered in Roermond, the Netherlands.   The Company deals in works of art.           The second and third applicants are both British citizens, at present living in St.   Leonards, United Kingdom, and born respectively in 1942 and 1943.           They own the Company, which they set up on 24 June 1977.           The Company opened several accounts with a bank in 1977 and also entered into two credit contracts with this bank in 1977 and 1979.           In 1980, after the Company had overdrawn its credit ceiling, the bank transferred money from certain accounts held by the Company to the main account.           The applicants introduced summary proceedings before the Regional Court (Arrondissements Rechtbank) of Roermond.   They claimed, inter alia, that the accounts from which the money was transferred were used by clients of the Company and had to be kept seperate from the Company's main account.   Accordingly the bank had acted illegally.           On 5 January 1983 the President of the Court found, however, that the applicants had failed to object to the transfer in time and, furthermore, that they had insufficiently substantiated their claim that some accounts had to be kept separate from others and that this was clear to the bank.           The applicants appealed against this decision to the Court of Appeal (Gerechtshof) in 's-Hertogenbosch, which rejected the applicants' appeal for the same reasons on 30 August 1983.           The applicants' appeal against this decision to the Supreme Court (Hoge Raad) was rejected on 22 February 1985.   The Supreme Court held, inter alia, that the Court of Appeal had sufficiently substantiated its grounds for rejection of the appeal.           The applicants alleged that one of the judges participating in proceedings before the Regional Court of Roermond had also acted against the Company as a lawyer for two former clients of the Company and that he was in a partnership with the bank's lawyer.           The applicants complained about this to their lawyer at the outset of the proceedings.   He advised that the judge should have disqualified himself and that the only remedy left was to start proceedings against the judge via the Crown and the self-regulating body of the Judiciary.           The second applicant, being of the opinion that the partiality of one judge would affect that of the whole tribunal, lodged a complaint against all the judges of the Regional Court involved in his case with the Advocate-General (Procureur-Generaal), attached to the Supreme Court.           He was informed by the Advocate-General that only the complaint against the judge referred to above would be put before the Supreme Court.   After a letter by the second applicant stating that he had no personal interest in any disciplinary proceedings against individual judges, but that he wanted an investigation into the "prejudice and justice" in proceedings in Roermond, the Advocate-General replied by letter of 18 March 1986:     "(...) I understand that you do not maintain your complaints against the individual judges of the Regional Court of Roermond.    Therefore I have withdrawn my request to the Supreme Court concerning your complaint against Judge X (...)."   Apparently the applicants did not reply to this letter.     COMPLAINTS   1.       The applicants have complained, inter alia, that by denying them restitution of the money to which they were entitled the Dutch courts have ignored Dutch law and the facts of the case and have misinterpreted the evidence submitted to them.           They claim that the Dutch courts thus violated Article 1 of Protocol No. 1 since the proceedings before the courts concerned the assessment of property.   2.       They complain that they did not have a fair hearing by an independent and impartial tribunal and invoke Article 6 of the Convention.   From, inter alia, the decisions that the different judges of the Regional Court of Roermond took in their case and from the evidence used by these judges, the applicants conclude that the judges were biased in the bank's favour.   They furthermore complain about the lack of independence and impartiality of the Regional Court and in particular of the judge who was the lawyer of two former dissatisfied clients of the Company, as well as the partner of the bank's lawyer.   3.       Furthermore, they invoke Article 13 of the Convention, because one can only complain about judges to the Advocate-General of the Supreme Court.   This remedy, being a matter of internal professional discipline, is not effective.   4.       They also claim that the courts have discriminated against them, being British, in favour of the defendant in the case, the Dutch bank, on grounds of their nationality.   They invoke Article 14 of the Convention, stating that discrimination against them is evident from the documents.   THE LAW   1.       The Commission shall first consider whether each applicant can be regarded as "victim" within the meaning of Article 25 (Art. 25) of the Convention.   In previous cases the Commission has held that majority shareholders are entitled to claim to be "victims", for the purposes of this provision, of a decision affecting the Company's property rights (No. 1706/62, Collection 21, p. 34; Kaplan v.   United Kingdom, Comm.   Report 17.7.80, para. 131, D.R. 21, p. 5).           The Commission notes that in the present case in the domestic proceedings not only the Company but also the second and third applicants were parties to the litigation.   It further notes that the second and third applicants are the owners and only shareholders of the Company, who derived their sole income from this Company.           For these reasons the Commission considers that in addition to the Company the second and third applicants also have a sufficiently direct interest to claim, under Article 25 (Art. 25) of the Convention, to be victims insofar as the Company's rights may have been affected in the present case as well as their own.           The applicants complain that the Dutch courts violated Article 1 of Protocol No. 1 (P1-1) by judging their case wrongly and denying them restitution of money to which they were entitled under Dutch law.           This provision reads as follows:   "Every natural or legal person is entitled to the peaceful enjoyment of his possessions.   No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.   The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."           The Commission notes that the proceedings concerned the private law relations between the applicants and their bank.   The Commission had held in previous cases that there is no interference with the right to the peaceful enjoyment of possessions when, pursuant to legal provisions governing private law relations between individuals, a court orders one party to a contract to surrender a possession to another, unless these provisions or court decisions are arbitrary and unjustly deprive that person of property in favour of another (No. 8588/79, 8589/79, Dec. 12.10.82, D.R. 29, p. 64; No. 10000/82, Dec. 4.7.83, D.R. 33, p. 247).           However, after an examination in the present case of the various complaints and of the decisions taken by the courts, the Commission finds no evidence that the relevant provisions or decisions were arbitrary, or that the courts did deprive one party of its property in an unjustifiable way.           The Commission, accordingly, does not find that there has been any infringement of the applicants' right to the peaceful enjoyment of their possessions as guaranteed in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (P1-1).           This part of the complaint must therefore be rejected as being manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicants have complained that they did not have a fair hearing by an independent and impartial tribunal and invoked Article 6 (Art. 6) of the Convention.           However, the Commission is not required to decide whether or not the facts alleged by the applicants disclose any appearance of a violation of this provision as, under it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           The Commission notes that the applicants brought their complaint before the Advocate-General attached to the Supreme Court. This procedure, however, is of a disciplinary nature and cannot redress a decision taken by an allegedly partial tribunal.           The Commission also notes that the applicants state that they were advised by their lawyer that there exists no court remedy against a failure by a judge to disqualify himself but that the only avenue open to them was that before the Advocate-General.           However, it is clear that the applicants had a remedy in the form of a challenge of the judge or judges concerned pursuant to Section 30 seq. of the Dutch Code of Civil Procedure, in which they could request the Court that its member or members abstain from participating in their case, as soon as suspicion of bias had arisen.           An examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at their disposal.           It follows that the applicants have not complied with the condition as to the exhaustion of domestic remedies and their application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.       The applicants invoke Article 13 (Art. 13) of the Convention in respect of their complaint that they had no effective remedy against the judges' allegedly biased and partial behaviour and   decisions.           The Commission, in examining the applicants' complaint under Article 6 (Art. 6), has already found above that there was a remedy available of which the applicants did not avail themselves.           Therefore the applicant's complaint that they did not have a remedy is manifestly ill-founded and must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.   4.       As regards the applicants' various complaints under Article 14 (Art. 14) of the Convention, the Commission recalls that this Article only prohibits discrimination in the enjoyment of the rights and freedoms set forth in the Convention (cf.   No. 7568/76, Dec. 7.3.77, D.R. 9, p. 117; No. 7742/76, Dec. 4.7.79, D.R. 14/146).           The applicants have not indicated in connection with which Article of the Convention they invoke Article 14 (Art. 14).           Assuming, however, that this complaint should be considered in connection either with Article 6 (Art. 6) of the Convention or with Article 1 of Protocol No. 1 (P1-1), the Commission finds no indication whatsoever that the applicants have been discriminated against by the courts either in favour of the bank or in any other way.           It follows that this part of the application must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission             DECLARES THE APPLICATION INADMISSIBLE.        Secretary to the Commission          President to the Commission                  (H.C. KRÜGER)                        (C. A. NØRGAARD)