CEDH · CASELAW;REPORTS;ENG — 13 octobre 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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                               SECOND CHAMBER                          Application No. 16690/90                               Watze de Vries                                   against                               the Netherlands                          REPORT OF THE COMMISSION                        (adopted on 13 October 1993)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-19) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-8) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 9-14). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 15-19) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 20-35). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    Particular circumstances of the case            (paras. 20-29) . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law and practice            (paras. 30-35) . . . . . . . . . . . . . . . . . . . . . 4   III.   OPINION OF THE COMMISSION       (paras. 36-65). . . . . . . . . . . . . . . . . . . . . . . . 7         A.    Complaints declared admissible            (para. 36) . . . . . . . . . . . . . . . . . . . . . . . 7         B.    Points at issue            (para. 37) . . . . . . . . . . . . . . . . . . . . . . . 7         C.    Article 6 para. 1 of the Convention            (paras. 38-50) . . . . . . . . . . . . . . . . . . . . . 7         D.    Article 8 of the Convention            (paras. 51-59) . . . . . . . . . . . . . . . . . . . . . 9         E.    Article 13 of the Convention            (paras. 60-62) . . . . . . . . . . . . . . . . . . . . .10         F.    Recapitulation            (paras. 63-65) . . . . . . . . . . . . . . . . . . . . .11   APPENDIX I    :   HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . .12   APPENDIX II   :   DECISION ON THE ADMISSIBILITY . . . . . . . . . . .13   I.     INTRODUCTION   1      The following is an outline of the case as submitted to the European Commission of Human Rights and of the procedure before the Commission.   A.     The application   2      The applicant is a Dutch citizen, born in 1937 and residing in Sneek, the Netherlands.   Before the Commission he is represented by Mrs. G.E.M. Later, a lawyer practising in The Hague, the Netherlands.   3      The application is directed against the Netherlands, whose Government are represented by their Agent, Mr. Karel de Vey Mestdagh of the Netherlands Ministry of Foreign Affairs.   4      Following a request from the Child Welfare Council to deprive the applicant of the guardianship over two of his children, the Regional Court heard the applicant and the two children on 8 December 1987.   5      By decision of 24 December 1987, which was pronounced in public in the absence of the applicant, the Regional Court of Leeuwarden deprived the applicant of the guardianship over his two children. On 29 January 1988 the Registrar to the Regional Court sent a copy of this decision to the applicant's lawyer.   6      On 19 February 1988 the applicant filed an appeal against the decision of 24 December 1987. On 11 May 1988 the Court of Appeal rejected the appeal for being out of time, since it had been lodged more than three weeks after 24 December 1987.   7      The applicant's appeal in cassation was rejected by the Supreme Court on 17 November 1989.   8      The applicant complains under Article 6 para. 1 of the Convention that he did not receive a fair trial, under Article 8 of the Convention that his right to respect for his family life was unjustly interfered with, and under Article 13 of the Convention that he was deprived of an effective remedy against the Regional Court's decision of 24 December 1987.   B.     The proceedings   9      The application was introduced on 12 May 1990 and registered on 11 June 1990.   10     On 8 November 1990 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application.   11     The Government's observations were submitted on 31 January 1991. The applicant submitted his observations in reply on 8 April 1991.   12     On 9 April 1991 the Commission referred the application to the Second Chamber.   13     On 2 December 1992 the Commission (Second Chamber) declared the application admissible.   14     After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   15     The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    S. TRECHSEL, President of the Second Chamber                  H. DANELIUS                  G. JÖRUNDSSON                  J. C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO   16     The text of the Report was adopted on 13 October 1993 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 1 of the Convention.   17     The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         (1)   to establish the facts, and         (2)   to state an opinion as to whether the facts            found disclose a breach by the State concerned            of its obligations under the Convention.   18     A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application forms Appendix II.   19     The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   20     On 20 November 1987 the Child Welfare Council (Raad voor de Kinderbescherming) of Leeuwarden, basing itself on Section 327 para. 1 (a) and (b) of the Civil Code - book 1 (Burgerlijk Wetboek - boek 1), requested the Regional Court (Arrondissementsrechtbank) of Leeuwarden to deprive the applicant of guardianship (ontzetting van de voogdij) over two of his children, whose mother he had divorced in 1976, the reason for the request being, inter alia, the applicant's heroin addiction and his serious neglect in the care of the children.   21     On 8 December 1987 the Regional Court heard the two children in the judge's chambers (in raadkamer) and the applicant in the presence of his lawyer in camera (terechtzitting met gesloten deuren).   At the end of this hearing, contrary to Section 909 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering), the Court did not announce when it would pronounce its decision.   22     By decision of 24 December 1987, which was pronounced in public but in the absence of the applicant, the Regional Court deprived the applicant of the guardianship over the children. The Court had regard to reports on the applicant's children by the children's homes where they resided recommending that they do not return to their father, the applicant's numerous convictions of, amongst other things, assault, theft, intentional violation of the Opium Act, the fact that in January 1988 he had to appear before the Magistrate (politierechter) on the suspicion of again having violated the Opium Act and the statements the applicant and his two children had made in the course of the hearings of 8 December 1987,    Pursuant to Section 910 para. 4 of the Code of Civil Procedure an appeal against this decision could be lodged within three weeks as from that date.   23     The Registrar to the Regional Court sent a copy of this decision to the applicant's lawyer on 29 January 1988.   24     On 19 February 1988 the applicant filed an appeal against the decision of 24 December 1987 with the Court of Appeal (Gerechtshof) of Leeuwarden. By letter of 29 March 1988 the Registrar to the Regional Court informed the Court of Appeal that, due to an oversight by the Regional Court, the decision of 24 December 1987, contrary to Section 913 para. 1 (b) of the Code of Civil Procedure, had not been sent to the applicant's lawyer until 29 January 1988 and that, therefore, the period for the introduction of an appeal would only run from the latter date.   25     On 12 April 1988 the Court of Appeal heard the applicant's children in the judge's chambers and on 13 April 1988 the applicant in the presence of his lawyer in camera.   26     On 11 May 1988 the Court of Appeal, referring to Section 910 para. 4 of the Code of Civil Procedure, rejected the applicant's appeal as being out of time, noting that it had not been submitted within three weeks from the decision of 24 December 1987.   27     On 17 June 1988 the applicant filed an appeal in cassation with the Supreme Court (Hoge Raad).   28     The Procurator-General (Procureur-Generaal) to the Supreme Court considered in his opinion of 29 September 1989 that the Court of Appeal's decision of 11 May 1988 should be quashed given that the Regional Court had failed to announce the date and hour of its decision, that the decision of the Regional Court of 24 December 1987 was not pronounced, as prescribed by law, within 14 days after the last hearing and that due to an oversight by the Regional Court it was not sent to the applicant's lawyer until 29 January 1988.   29     On 17 November 1989 the Supreme Court rejected the applicant's appeal in cassation.   It held that it did not follow from Section 910 para. 4 of the Code of Civil Procedure that the period for appeal only ran from the moment at which a party had or could have become acquainted with the contents of the judicial decision.   Under Article 6 para. 1 of the Convention the Supreme Court considered that the Convention contains no right to appeal and that the Court of Appeal's interpretation of the provisions dealing with access to an appeal court did not deprive the applicant of a fair hearing within the meaning of Article 6.   B.     Relevant domestic law and practice   30     Section 327 para. 1 (a) and (b) of the Civil Code - book 1 provides as follows:         <Dutch>       "Indien de rechtbank dit in het belang van die       minderjarigen noodzakelijk oordeelt, kan zij een voogd of       toeziend voogd ten aanzien van een of meer tot een zelfde       voogdij behorende minderjarigen ontzetten op grond van:       a.    slecht levensgedrag;       b.    misbruik van zijn bevoegdheid, verwaarlozing van zijn       verplichtingen, of de omstandigheid dat hij niet in staat       is tot een behoorlijke uitoefening van zijn voogdij of       toeziende voogdij;"         <Translation>       "When the Regional Court considers it necessary in the       interest of those minors, it can deprive a guardian or co-       guardian of the guardianship over one or more minors on the       ground of:       a.    bad conduct in life;       b.    abuse of his authority, neglect of his commitments, or       the circumstance that he is unable to properly exercise his       guardianship or co-guardianship;"   31     Sections 900 to 968 (d) of the Code of Civil Procedure deal with proceedings concerning parental authority, guardianship, parental access and emancipation of minors (ouderlijke macht, voogdij, omgang en handlichting).   32     Section 909 of the Code of Civil Procedure, in so far as relevant, provides:       <Dutch>       "1.   De beschikkingen worden gegeven uiterlijk veertien       dagen na het laatste verhoor. Zij worden op straffe van       nietigheid met redenen omkleed. (...).       (...)       3.    Indien de beschikking in het openbaar moet worden       uitgesproken, deelt de rechter bij het laatste verhoor dag       en uur der uitspraak mede."         <Translation>       "1.   The decisions are given at the latest fourteen days       after the last hearing.   Failure to indicate the reasons       for the decision entails nullity. (...).       (...)       3.    Where the decision must be pronounced in public, the       judge announces the day and hour of the pronouncement at       the last hearing."   33     Section 910 para. 4 of the Code of Civil Procedure reads:         <Dutch>       "De termijn van beroep loopt gedurende drie weken na de dag       waarop de griffier de voorgeschreven mededeling van de       beschikking heeft verzonden, of, indien de beschikking in       het openbaar wordt uitgesproken, na de dag der uitspraak."         <Translation>       "The appeal period is three weeks and starts to run on the       day after which the Registrar has sent the prescribed       notification of the decision, or, when the decision has       been pronounced in public, after the day of the       pronouncement."   34     Section 913 para. 1 (b) of the Code of Civil Procedure reads:         <Dutch>       "Van elke beschikking met betrekking tot het - blijvend of       tijdelijk - over minderjarigen uit te oefenen gezag,       daaronder begrepen de toeziende voogdij, doet de griffier       onverwijld mededeeling:       (...)       b.    aan dengene, die dientengevolge het gezag in rechte of       in feite zal verliezen;       (...).         <Translation>       "Of every decision concerning the - permanent or temporary       - authority to be exercised over minors, including       co-guardianship, the Registrar will immediately notify:       (...)       b.    the person, who as a result thereof will lose the factual       or legal authority;       (...)."   35     Section 938 para. 2 of the Code of Civil Procedure, which - according to Section 947 of the Code of Civil Procedure - applies to proceedings on deprivation of guardianship reads, insofar as relevant:         <Dutch>       "Binnen veertien dagen na het laatste verhoor wordt de met       redenen omkleede beschikking in het openbaar uitgesproken."         <Translation>       "Within fourteen days after the last hearing the reasoned       decision will be pronounced in public."   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   36     The Commission has declared admissible the applicant's complaints:   -      that he did not receive a fair hearing as the judicial       authorities' failure to respect statutory procedural       requirements prevented him from appealing in time against       the Regional Court's decision of 24 December 1987;   -      that the decision to deprive him of the guardianship over       his two children unjustly interfered with his right to       respect for his family life;   -      that the judicial authorities' oversights deprived him of       an effective remedy against the Regional Court's decision       of 24 December 1987.   B.     Points at issue   37     Accordingly, the issues to be determined are:   -      whether there has been a violation of Article 6 para. 1       (Art. 6-1) of the Convention;   -      whether there has been a violation of Article 8 (Art. 8) of       the Convention; and   -      whether there has been a violation of Article 13 (Art. 13)       of the Convention.   C.     Article 6 para. 1 (Art. 6-1) of the Convention   38     The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that he did not receive a fair hearing as the judicial authorities' failure to respect statutory procedural requirements prevented him from appealing in time against the Regional Court's decision of 24 December 1987.   39     Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads as follows:         "In the determination of his civil rights and obligations       (...) everyone is entitled to a fair (...) hearing (...) by       a (...) tribunal established by law."   40     The applicant, referring in particular to the Procurator- General's opinion of 29 September 1989 to the Supreme Court, maintains that the Court of Appeal and the Supreme Court unjustly considered his appeal of 19 February 1988 to have been submitted out of time. He submits that he did not know, nor could have known, when the time for appeal began to run because a whole series of rules had been infringed by the Regional Court and its Registrar.   41     The Government subscribe to the Supreme Court's view that neither Article 6 para. 1 (Art. 6-1) nor any other provision of the Convention provides for a right of appeal. They add that if a possibility of appeal exists in proceedings concerning the determination of civil rights, the appeal proceedings must be consistent with the provisions of Article 6 para. 1 (Art. 6-1).   42     The Government admit that in the present case both the Regional Court and the Registrar did not respect Article 909 paras. 1 and 3 and Article 913 of the Code of Civil Procedure but argue that these provisions only serve as guidelines for correct procedure and that Dutch law attaches no consequences to their non-observance.   Referring to Article 910 of the Code of Civil Procedure, the Government stress that the non-observance of these guidelines does not affect the time- limit for an appeal.   43     The Government consider that the Supreme Court rightly applied the statutory provisions concerning the time-limit for the introduction of an appeal in a strict manner, it being in the interest of legal certainty and the public that parties involved in cases as the present one know for certain when a decision must be regarded as final.   The applicable provisions are clear on that point.   44     The Government finally submit that the applicant was not denied an appeal procedure, but that he or his counsel, in view of the clear statutory regulations, could have applied to the Registrar for information on the date of the pronouncement of the decision.   The applicant and his counsel should have been aware that, by waiting for the notification of the decision, the applicant was running the risk that the time-limit for an appeal would expire.   45     The Commission recalls at the outset that Article 6 para. 1 (Art. 6-1) of the Convention does not as such guarantee the right of appeal to a higher court (cf. No. 11941/86, Dec. 5.10.88, D.R. 57 p. 100) but that where the opportunity to seek appeal is provided under domestic law, the guarantees of Article 6 (Art. 6) continue to apply to the proceedings on appeal (see mutatis mutandis No. 9315/81, Dec. 15.7.83, D.R. 34 p. 96).   46     The Commission further recalls that Article 6 para. 1 (Art. 6-1) does not debar Contracting Parties from making regulations governing the access of litigants to an appellate court, provided that such regulations serve the purpose of ensuring the proper administration of justice (No. 6916/75, Dec. 8.10.76, D.R. 6 p. 107; No. 8407/78, Dec. 6.5.80, D.R. 20   p. 179) and that, in this connection, the regulations concerning time-limits to be observed when lodging an appeal undoubtedly serve the purpose of ensuring the proper administration of justice (cf. No. 11122/84, Dec. 2.12.85, D.R. 45 p. 256 and No. 10857/84, Dec. 15.7.86, D.R. 48 p. 106).   47     Nevertheless, the Convention is intended to guarantee not rights which are theoretical or illusory but rights that are practical and effective, in particular as regards the right of access to the court in view of the prominent place held in a democratic society by the right to a fair trial (Eur. Court H.R., Airey judgment of 9 October 1979, Series A no. 32, para. 24).   The "right to a court" enshrined in Article 6 (Art. 6) may be subject to limitations, but these must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (Eur. Court H.R., De Geouffre de la Pradelle judgment of 16 December 1992, Series A no. 253-B, p. 41, para. 28).   48     The Commission notes the following elements: firstly that, contrary to the applicable statutory regulations, the Regional Court failed to announce the date and hour of its decision, secondly that the decision of the Regional Court was not pronounced within 14 days after the last hearing and thirdly that, due to an oversight by the Regional Court, the decision of 24 December 1987 depriving the applicant of the guardianship over his two children was not sent to the applicant's lawyer until 29 January 1988.   49     Given that a decision to deprive a parent of the guardianship over his children substantially changes legal family relations, the Commission is of the opinion that in situations such as in the present case a careful balance must be struck between ensuring a proper administration of justice and the personal interests of the parties concerned.   The Commission cannot find that the rejection of the applicant's appeal against the Regional Court's decision of 24 December 1987, as having been submitted out of time, can be justified by any interest of the proper administration of justice. The Commission, therefore, finds that the applicant did not effectively enjoy his right of access to an appeal court.   Conclusion   50     The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   D.     Article 8 (Art. 8) of the Convention   51     The applicant complains under Article 8 (Art. 8) of the Convention that the decision to deprive him of the guardianship over his two children unjustly interfered with his right to respect for his family life.   52     Article 8 (Art. 8) of the Convention reads as follows:         "1.   Everyone has the right to respect for his private and       family life, his home and his correspondence.         2.    There shall be no interference by a public authority       with the exercise of this right except such as is in       accordance with the law and is necessary in a democratic       society in the interests of national security, public       safety or the economic well-being of the country, for the       prevention of disorder or crime, for the protection of       health or morals, or for the protection of the rights and       freedoms of others."   53     The Commission recalls that Article 8 (Art. 8) applies to decisions on guardianship over children (cf. Eur. Court H.R., Hoffmann judgment of 23 June 1993, Series A no. 255-C, para. 29). It follows that the Regional Court's decision to deprive the applicant of the guardianship over his two children constituted an interference with the right to respect for his family life, since this decision substantially changed the legal relation between him and his two children. Such interference entails a violation of Article 8 (Art. 8) of the Convention unless it is "in accordance with the law", has an aim or aims that is or are legitimate under para. 2 of Article 8 (Art. 8-2) and is "necessary in a democratic society" for the aforesaid aim or aims (cf. Eur. Court H.R. Olsson (No. 2) judgment of 27 November 1992, Series A no. 250, p. 32, para. 77).   54     Concerning the question whether the interference complained of was "in accordance with the law", the Commission recalls that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (cf. Eur. Court H.R., Olsson (no. 2) judgment, loc. cit., p. 32, para. 79). However, the words "in accordance with the law" include two requirements which go beyond simple compliance with the domestic law. These requirements relate to the quality of the law and can be summarised under the headings "accessibility" and "foreseeability". A law which confers a discretion on the authorities must indicate the scope and manner of exercise of any such discretion with sufficient clarity to afford the necessary protection (cf. Eur. Court H.R., Eriksson judgment of 22 June 1989, Series A no. 156, p. 24, para. 59).   55     The Commission notes that the Regional Court's decision to deprive the applicant of his guardianship was based on Section 327 para. 1 (a) and (b) of the Civil Code - book 1 (cf. para. 30 above).   56     Having examined the decision of the Regional Court of 24 December 1987, the Commission finds no indication that the decision to deprive the applicant of his guardianship was contrary to Dutch law. It is therefore satisfied that the deprivation of the applicant's guardianship was "in accordance with the law" for the purpose of Article 8 para. 2 (Art. 8-2) of the Convention. The fact that the Regional Court failed to respect certain procedural rules and that the applicant's subsequent appeal was rejected as having been submitted out of time does not alter this conclusion.   57     The Commission further notes that the decision to deprive the applicant of the guardianship over his two children was taken on the basis of, inter alia, the applicant's own conduct and reports on the children by the children's homes where they resided recommending that they do not return to their father.   58     The Commission considers that the interference with the applicant's right to respect for his family life by the decision of the Regional Court may, in the circumstances of the present case, reasonably be regarded as being necessary in a democratic society for the protection of health and morals and the rights and freedoms of others, i.e the children concerned, which are both legitimate aims under para. 2 of Article 8 (Art. 8-2). The interference with the applicant's right to respect for his family life within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention was thus justified under para. 2 of this provision.   Conclusion   59     The Commission concludes, unanimously, that there has been no violation of Article 8 (Art. 8) of the Convention.   E.     Article 13 (Art. 13) of the Convention   60     The applicant complains under Article 13 (Art. 13) of the Convention that the judicial authorities' conduct of the proceedings deprived him of an effective remedy against the Regional Court's decision of 24 December 1987.   61     Having concluded that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention (see para. 50), the Commission finds that it is not necessary to examine the case under Article 13 (Art. 13) of the Convention. The requirements of Article 13 (Art. 13) are less strict than, and are here absorbed by, those of Article 6 (Art. 6) (cf. Eur. Court H.R., Pudas judgment of 27 October 1987, Series A no. 125-A, p. 17, para. 43).   Conclusion   62     The Commission concludes, unanimously, that it is not necessary to examine whether there has been a violation of Article 13 (Art. 13) of the Convention.   F.     Recapitulation   63     The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 50).   64     The Commission concludes, unanimously, that there has been no violation of Article 8 (Art. 8) of the Convention (para. 59).   65     The Commission concludes, unanimously, that it is not necessary to examine whether there has been a violation of Article 13 (Art. 13) of the Convention (para. 62).     Secretary to the Second Chamber       President of the Second Chamber             (K. ROGGE)                            (S. TRECHSEL)                                 APPENDIX I                           HISTORY OF PROCEEDINGS   Date                                    Item   ___________________________________________________________________   12 May 1990                             Introduction of application   11 June 1990                            Registration of application   Examination of admissibility   8 November 1990                         Commission's decision to invite                                        the Government to submit their                                        observations on the                                        admissibility and merits of the                                        application   31 January 1991                         Government's observations   8 April 1991                            Applicant's observations in                                        reply   9 April 1991                            Commission's decision to refer                                        the application to the Second                                        Chamber   17 April 1991                           Commission's decision to grant                                        the applicant legal aid   2 December 1992                         Commission's decision to declare                                        the application admissible and                                        to invite the parties, if they                                        so wish, to submit further                                        observations on the merits   Examination of the merits   13 October 1993                         Commission's deliberations on                                        the merits final vote and                                        adoption of the Report