CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 10 février 1993

.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. 15416/89                       by M.A.B.and                       G.A.T.                       against the Netherlands           The European Commission of Human Rights (Second Chamber) sitting in private on 10 February 1993, 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                   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 21 June 1989 by M.A.B. and G.A.T. against the Netherlands and registered on 29 August 1989 under file No. 15416/89;         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 first applicant, a Dutch national born in 1955, is a lawyer practising in Leeuwarden, the Netherlands.   The second applicant is a Somalian national born in 1969 and residing in Leeuwarden, the Netherlands.   At the time of the introduction of the application, he was detained on remand on suspicion of rape but it appears that in the meantime the charges have been dropped.         The first applicant represents the second applicant in the proceedings before the Commission.         The facts of the case as submitted by the parties may be summarised as follows.         The second applicant arrived in the Netherlands on 10 December 1988 to seek asylum.   He allegedly arrived with his father although subsequently he claimed to have arrived alone in the Netherlands.   Eventually he was granted a residence permit on humanitarian grounds (verblijfsvergunning op humanitaire gronden) but the asylum proceedings are still pending.         On 1 June 1989 the Juvenile Judge (Kinderrechter) of the Leeuwarden Regional Court (Arrondissementsrechtbank) issued a provisional supervision order (voorlopige ondertoezichtstelling) and appointed a family guardian.   Pursuant to Article 940 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering), the second applicant was not heard.   The first applicant requested the Legal Aid Bureau (Buro voor Rechtshulp) to assign him (toevoeging) as legal aid counsel to the second applicant, as the latter's indigence prevented him from choosing his own lawyer.   This request was immediately granted but the Juvenile Judge instructed the Bureau by telephone to withdraw this assignment.   Subsequently, he informed the applicants without giving any reasons that he had decided not to appoint the first applicant as the second applicant's counsel.   No appeal lay against this decision.         The first applicant's deputy then requested the Juvenile Judge to be allowed to be present on the former's behalf when the application for the second applicant's placement under supervision would be definitely decided upon.   This request was rejected and the Juvenile Judge denied the first applicant's deputy access to the court room although the first applicant's deputy had stated that he would act in the capacity of chosen lawyer and not as an official legal aid counsel.         By letter of 6 July 1989 the first applicant requested the Juvenile Judge to assign him as legal aid counsel to the second applicant in order to assist the latter at the hearing concerning the definite placement under supervision.   On 24 July 1989 the Juvenile Judge replied that as long as the European Commission of Human Rights had not decided the applicant's case he could not determine this request.     B. Relevant domestic law and practice         Placement under supervision is a civil measure ordered by the Juvenile Judge to prevent a minor's physical and/or mental perdition. It entails the appointment of a family guardian who will educate the minor together with the parents who are bound to follow his indications and advice.   The family guardian reports regularly to the Juvenile Judge.   This measure can be ordered for one year maximum and can be prolonged until the child's majority.         According to Article 257 of the Civil Code (Burgerlijk Wetboek), this measure can also be ordered provisionally.   The consequences are the same except for its duration as it is ordered for one year maximum by the Juvenile Judge and can subsequently be prolonged for one year maximum until the minor's majority or unless revoked meanwhile by the Juvenile Judge (Article 258 of the Civil Code).   Article 940 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) stipulates that no appeal lies against a provisional order and that, before imposing it, the Juvenile Judge is not obliged to hear the interested parties.     COMPLAINTS         The applicants complain about the Juvenile Judge's refusal to appoint the first applicant as the second applicant's legal representative.   They also complain that, by denying the first applicant's deputy access to the court room, the Juvenile Judge hindered the effective exercise of legal assistance and thus denied the second applicant a fair trial.   They invoke Articles 6 and 13 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 21 June 1989 and registered on 29 August 1989.         On 1 April 1992, the Commission (Second Chamber) decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application.         The Government's observations were received by letter dated 10 July 1992 and the applicants' observations were dated 8 December 1992.     THE LAW         The applicants complain that the Juvenile Judge refused to appoint the first applicant as the second applicant's legal representative.   They also complain that by denying the first applicant's deputy access to the court room, the Juvenile Judge hindered the effective exercise of legal assistance and thus deprived the second applicant of a fair trial.   They invoke Articles 6 and 13 (Art. 6, 13) of the Convention.       Article 6 (Art. 6) of the Convention reads, insofar as relevant:         "1. 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... by [a]... tribunal...       (...)         3. Everyone charged with a criminal offence has the following       minimum rights:       (...)       c. to defend himself in person or through legal assistance of his       own choosing or, if he has not sufficient means to pay for legal       assistance, to be given it free when the interests of justice so       require.       (...)"         The applicants submit that minors can only be legally represented by their parents or by their guardian, or by a lawyer at the parents' or guardian's request.   However, the second applicant is an asylum seeker who arrived in the Netherlands without parents or guardian.   At the hearing before the Juvenile Judge he was therefore alone.         The Government submit primarily that the first applicant cannot be considered as a victim within the meaning of Article 25 (Art. 25) of the Convention of the alleged violations of the Convention.   The present application exclusively concerns the second applicant who is the only one "directly affected by the act or omission at issue" (Eur. Court H.R., Inze judgment of 28 October 1988, Series A no. 126, para. 32).   The application is therefore inadmissible insofar it is brought by the first applicant.         The Commission has previously held that a defence counsel cannot in his personal capacity invoke the provisions of Article 6 (Art. 6) of the Convention as regards the determination of the criminal charge brought against the defendant (No. 7641/76, Dec. 11.12.76, D.R. 10 p. 224 at p. 229).   Applying analogous considerations in the present case it finds that the first applicant cannot in his personal capacity rely on Article 6 (Art. 6) in respect of the proceedings concerning the second applicant's placement under supervision.   The first applicant not being a victim, within the meaning of Article 25 (Art. 25), of the alleged violations of the Convention, the application is thus incompatible ratione personae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2), insofar as introduced by this applicant.         With regard to the second applicant, the Government contend that the   provisional supervision order did not determine his civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention and that the application is therefore incompatible with the provisions of the Convention.   Should Article 6 (Art. 6) apply, the application is manifestly ill-founded.   Under Dutch law minors are legally represented by their parents or their guardian.   They have no independent right of access to the courts and therefore no right as such to the legal assistance of a lawyer.   Moreover, a State can restrict the right of access to court of certain categories of persons, inter alia minors (European Court of Human Rights, Golder judgment of 21 February 1975, Series A no. 18).         Insofar as the second applicant might derive a right to legal assistance from the Court's findings in the Airey judgment (judgment of 9 October 1979, Series A no. 32, para. 26), the Government point out that in the present case legal representation was not compulsory nor was the issue so complex that it called for legal assistance.   They add that the costs of legal representation did not play a decisive role.         The Commission has considered the submissions made under Article 6 (Art. 6) of the Convention by the second applicant and the respondent Government.   It finds that the second applicant's complaint under Article 6 (Art. 6) raises complex issues of fact and law the determination of which requires an examination of the merits.   It follows that this complaint cannot be regarded as manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for inadmissibility having been established, it must accordingly be declared admissible.         The Commission further considers that the second applicant's complaints under Articles 6 and 13 (Art. 6, 13) of the Convention are so closely related that they cannot be dissociated at this stage.           For these reasons, the Commission, unanimously         DECLARES THE APPLICATION INADMISSIBLE insofar as brought by       the first applicant;         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case, insofar as brought by the second applicant.   Secretary to the Second Chamber       President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)