CEDH · CASELAW;REPORTS;ENG — 11 mai 1988

.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 }    Application No. 10252/83           Antonius VOLLAERS   against     the NETHERLANDS         __________                 REPORT OF THE COMMISSION             (adopted on 11 May 1988)               TABLE OF CONTENTS                                                               Page       INTRODUCTION ......................................          1         Part I :   STATEMENT OF THE FACTS ..................          3         Part II:   SOLUTION REACHED ........................          5           INTRODUCTION     1.       This Report relates to Application No. 10252/83 introduced by Antonius VOLLAERS against the Netherlands on 20 December 1982 under Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms.   The application was registered on 31 January 1983.   2.       The applicant was represented before the Commission by Mr.   L. J. FILLET, a lawyer practising in Tilburg.   3.       The Government were represented before the Commission by their successive Agents, Ms.   F.Y. van der Wal and Ms.   D.S. van Heukelom, Assistant Legal Advisers of the Ministry of Foreign Affairs.   4.       On 4 March 1987 the European Commission of Human Rights declared the application admissible.*   5.       The Commission then proceeded to carry out its task under Article 28 of the Convention, which provides as follows:     "In the event of the Commission accepting a petition referred to it:   (a)      it shall, with a view to ascertaining the facts, undertake together with the representatives of the parties an examination of the petition and, if need be, an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities, after an exchange of views with the Commission;   (b)      it shall place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for Human Rights as defined in this Convention."     6.       The Commission found that the parties had reached a friendly settlement of the case and on 11 May 1988 it adopted this Report which, in accordance with Article 30 of the Convention, is confined to a brief statement of the facts and of the solution reached.         __________     *        This decision is public and can be obtained from the         Commission on request.     7.       The following members of the Commission were present when the Report was adopted:                           MM.   C.A. NØRGAARD, President                              J.A. FROWEIN                              S. TRECHSEL                              G. SPERDUTI                              E. BUSUTTIL                              G. JÖRUNDSSON                              A.S. GÖZÜBÜYÜK                              A. WEITZEL                              J.-C. SOYER                              H.G. SCHERMERS                              H. DANELIUS                              G. BATLINER                              H. VANDENBERGHE                         Mrs.   G.H. THUNE                         Sir   Basil HALL                         Mr.   F. MARTINEZ                         Mrs.   J. LIDDY         Part I     STATEMENT OF THE FACTS       8.       The applicant is a Dutch citizen born in 1925 and residing in Tilburg.   At the time of the introduction of his application, he was employed as a manager in a publishing company.   9.       The application concerns the procedure under Dutch law and in particular the Appeals Act (Beroepswet) to challenge a decision taken on the basis of the Health Insurance Act (Ziektewet) concerning the applicant's fitness to work and hence his entitlement to sickness benefit.   10.      The applicant had challenged a decision by the competent occupational association (bedrijfsvereniging) that he was fit to work in proceedings introduced before the Appeals Board (Raad van Beroep) in 's Hertogenbosch.   In accordance with Article 135 of the Appeals Act, the President of the Appeals Board sought the opinion of one of the permanent medical experts attached to the Board who examined the applicant and consulted a number of other doctors.   In conformity with the conclusions presented by this permanent medical expert, the President of the Appeals Board rejected the applicant's appeal as being unfounded.   The objection (verzet) filed by the applicant against this decision was rejected by the Appeals Board.   11.      The applicant, alleging a breach of Article 6 para. 1 of the Convention, claimed that, in the determination of his entitlement to health insurance allowances, he had not received a fair hearing in the proceedings before the Appeals Board in 's Hertogenbosch.   He complained in particular of the absence of an oral hearing in these proceedings and of the fact that the person concerned has no access to the medical files on which the conclusions of the permanent medical expert are based and which constitute the basis for the decision by the Appeals Board.   12.      On 12 July 1984 the Commission decided to bring the application to the notice of the respondent Government without asking them to submit written observations on the admissibility and merits pending the decision of the European Court of Human Rights in the Feldbrugge case, which was analogous to the present case, and adjourned the examination of the case.   13.      Following the Court's judgment in the Feldbrugge case on 29 May 1986 (Eur.   Court H.R., Series A no. 99), the Commission resumed, on 14 July 1986, consideration of the case and invited the Parties to make submissions if they so wished.     14.      The Government submitted observations on 16 October 1986 and the applicant on 24 November 1986.   The Government informed the Commission in particular that following the Feldbrugge judgment the Presidents of the Appeals Boards had declared that henceforward an individual can file an objection (verzet) against the decision in first instance under all circumstances.   Furthermore it announced that it was preparing new legislation in the light of the Feldbrugge judgment with a view to excluding violation of Article 6 para. 1 of the Convention by the Appeals Boards and the Central Appeals Board at Utrecht in the future.   15.      The Commission declared the application admissible on 4 March 1987.   Part II     SOLUTION REACHED       16.      Following its decision on the admissibility of the application the Commission placed itself at the disposal of the parties with a view to securing a friendly settlement, in accordance with Article 28 (b) of the Convention and invited the parties to submit any proposals they wished to make.   17.      In conformity with its usual practice the Commission's Secretary contacted the parties and, following the Court's judgment on Article 50 in the Feldbrugge case of 27 July 1987 (Eur.   Court H.R. 8/1984/80/127), both parties submitted proposals for such a settlement.   18.      The Secretary, accompanied by a member of the Secretariat, met the Parties separately in the Hague on 26 April 1988.           By telefax dated 28 April 1988, the Agent of the respondent Government made the following declaration:   "The Government of the Netherlands, having regard to the decision of the European Commision of Human Rights of 4 March 1987 declaring the application admissible and willing to reach a friendly settlement of the matter in accordance with Article 28 para. (b) of the European Convention on Human Rights, makes the following declaration:   1.       The Government is prepared, in the light of the judgment in the Feldbrugge Case on Article 50 (8/1984/80/127) dated 27 July 1987, to make an ex gratia payment to the applicant of 10.000 Dutch guilders in respect of non-pecuniary damage.   2.       The Government is further prepared to pay the applicant's legal costs which were actually and necessarily incurred in an amount of 8.100 guilders."   19.      By telefax dated 4 May 1988, applicant's counsel, on behalf of his client,   made the following declaration:           "....   I hereby confirm that my client Mr Vollaers accepts the         offer contained in the the Government's declaration dated         28 April 1988, and declares the Application No. 10252/83         to be settled as per payment of the total amount of 18.100         guilders on my bank account..."   20.      On 11 May 1988 the Commission found from the above that the parties had reached agreement on the terms of a settlement.   The Commission further found, having regard to Article 28 (b) of the Convention, that a friendly settlement of the present application had been secured on the basis of respect for human rights as defined in the Convention.             For these reasons, the Commission adopted this Report.       Secretary to the Commission                 President of the Commission                (H.C. KRÜGER)                                (C.A. NØRGAARD)