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. 15595/89                       by Douwe ROZENDALE                       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 14 October 1988 by Douwe ROZENDALE against the Netherlands and registered on 10 October 1989 under file No. 15595/89;         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   A. PARTICULAR CIRCUMSTANCES OF THE CASE         The applicant is a Dutch national born in 1908.   He has no profession and lives in The Hague, the Netherlands.   Before the Commission he is represented by Mr. L. A. van der Niet, a lawyer practising in Leiderdorp.         The facts as submitted by the parties may be summarised as follows.         In the context of his divorce, the applicant considered that his lawyer had misinformed and misrepresented him to such a degree that he could not be obliged to pay for his lawyer's services.   As he persisted in his refusal, the lawyer referred his breakdown of fees and expenses, as presented in his bill, to the Supervisory Council of the Bar Association (Raad van Toezicht van de Orde van Advocaten).   In accordance with Article 32 of the Act on Fees in Civil Cases (Wet Tarieven in Burgerlijke Zaken), this body verified on 28 October 1987 that the breakdown and the level of the fees complied with the standards set by the Bar Association. As provided for in the above Act, the lawyer was granted an execution order on 1 July 1988 by the President of the Regional Court (Arrondissementsrechtbank) of The Hague.         Pursuant to Article 40 of the Act, the applicant objected (verzet) against this order on the ground that the proceedings before the Supervisory Council did not satisfy the requirements of Article 6 of the Convention.   On 10 November 1988 he had the lawyer summoned before the Regional Court for its session of 22 November 1988.   At the hearing neither of the parties was heard.   On 12 July 1989 the Regional Court dismissed the objection as being ill-founded finding the applicant's allegation of breach of contract by his lawyer unsubstantiated.         In the meantime the applicant has paid his lawyer's fees.     B. RELEVANT DOMESTIC LAW AND PRACTICE         The Act on Fees in Civil Cases of 1843 (AFCC) provides for a specific procedure for disputes arising between a lawyer and his client as to the level of the fees charged.   According to Article 32, either the lawyer or his client can refer the lawyer's breakdown to the Supervisory Council of the Bar Association which verifies whether the level of the fees charged complies with the standards set by the Bar Association.   The Supervisory Council consists of lawyers admitted to the bar.   The fulfilment of its task under the AFCC is not subject to any procedural rule.   In practice the Council meets in camera and does not hear the persons concerned.           If the client does not pay the lawyer after the Supervisory Council's approval or estimate of the breakdown, the President of the Regional Court shall determine the fees (Article 33) and issue an execution order (Article 39).         Article 40 provides that the client can file an objection against this order with the full Regional Court who will deal with it as a summary case (summiere zaak).   The Court's decision is not open to objection, appeal or cassation.   The AFCC does not contain any procedural requirements regarding the objection proceedings.   Neither the client nor the lawyer is heard.     COMPLAINTS   1.     The applicant complains under Article 6 para. 1 of the Convention that he did not have access to an independent and impartial tribunal. He submits in particular that the Supervisory Council is neither independent nor impartial as it is composed of lawyers admitted to the bar.   He further complains that he did not have a fair hearing either before the Supervisory Council, which sits in camera, before the President of the Regional Court or before the Regional Court because he was not heard.   2.     The applicant finally complains that, pursuant to Dutch law, the Regional Court dealt summarily with his case in the objection proceedings and that he could thus not have his lawyer's breach of contract examined by an independent and impartial tribunal.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 14 October 1988 and registered on 10 October 1989.         On 12 December 1991 the Commission decided to communicate the application to the respondent Government and to invite them to submit written observations on the admissibility and merits of the application.         On 6 January 1992 the application was referred to the Second Chamber.         The Government's observations were submitted on 13 March 1992 and the applicant's observations in reply on 10 June 1992, after expiry of the time-limit.     THE LAW   1.     The applicant complains that the procedure under the AFCC does not meet the requirements of Article 6 (Art. 6) of the Convention.   He submits in particular that the Supervisory Council is not an independent and impartial tribunal as it is composed of lawyers admitted to the bar.   He further complains that he did not have a fair hearing either before the Supervisory Council, which sits in camera, before the President of the Regional Court or before the Regional Court because he was not heard.         Article 6 para. 1 (Art. 6-1) of the Convention insofar as relevant reads :         "In the determination of his civil rights and obligations       ..., everyone is entitled to a fair and public hearing ...       by an independent and impartial tribunal ..."         The question arises whether Article 6 (Art. 6) applies to the proceedings complained of.   The applicant submits that these proceedings resulted in his obligation to pay his lawyer's fees which constitutes a determination of his civil obligations.   The Government, on the other hand, argue that since these proceedings merely concern the level of the fees charged by the lawyer and not the obligation to pay the fees, they do not determine the applicant's civil rights and obligations.         The Commission notes that the applicant's refusal to pay his lawyer's fees constitutes a genuine "dispute".   The Commission takes the view that this dispute concerned the applicant's civil obligations.         It follows that Article 6 para. 1 (Art. 6-1) was applicable to the proceedings complained of.         As regards the substance of this complaint, the Commission considers that it raises important issues of fact and law whose determination should depend on an examination of its merits.   It is therefore not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also complains under Article 6 (Art. 6) of the Convention that he could not have his lawyer's breach of contract examined by an independent and impartial tribunal.         The Government submit that the proceedings under the Act on Fees in Civil Cases do not address the question of an alleged breach of contract which claim can only be submitted to the civil courts. However, the applicant has failed to seize the civil courts so that he has not exhausted domestic remedies as required by Article 26 (Art. 26) of the Convention.         The Commission considers that this complaint canot be separated from the above complaint under Article 6 (Art. 6), the issues being closely interrelated.         For these reasons, the Commission, by a majority         DECLARES THE APPLICATION ADMISSIBLE,       without prejudging the merits of the case.   Secretary to the Second Chamber       President of the Second Chamber             (K. ROGGE)                            (S. TRECHSEL)