CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 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 }                           AS TO THE ADMISSIBILITY OF                         Application No. 20028/92                       by Paulina Anna Matthea Maria DUPONT and                       Anton Cornelis VAN IDSINGA                       against the Netherlands         The European Commission of Human Rights sitting in private on 18 October 1993, the following members being present:         MM.   C.A. NØRGAARD, President            S. TRECHSEL            A. WEITZEL            F. ERMACORA            E. BUSUTTIL            G. JÖRUNDSSON            A.S. GÖZÜBÜYÜK            J.-C. SOYER            H.G. SCHERMERS            H. DANELIUS       Mrs. G.H. THUNE       MM.   F. MARTINEZ            C.L. ROZAKIS       Mrs. J. LIDDY       MM.   L. LOUCAIDES            J.-C. GEUS            M.P. PELLONPÄÄ            B. MARXER            M.A. NOWICKI            I. CABRAL BARRETO            B. CONFORTI            N. BRATZA         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 30 March 1992 by Paulina Anna Matthea Maria DUPONT and Anton Cornelis VAN IDSINGA against the Netherlands and registered on 22 May 1992 under file No. 20028/92;         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         The first applicant is a Dutch citizen, born in 1945, and resident in Tilburg.   She is a midwife by profession.   The second applicant is a Dutch citizen, born in 1948, and resident in Rotterdam. He is a physiotherapist by profession. The applicants are represented before the Commission by Mrs. J. Hermelink-Kramer, a lawyer employed by the Stichting Rechtsbijstand Gezondheidszorg (Foundation for Legal Assistance in Health Care) at Utrecht.         The facts as submitted by the parties may be summarised as follows.         In Dutch social security law, for instance in Section 5 of the Sickness Benefits Act (Ziektewet), there is a provision according to which certain work relationships are to be assimilated to employment. In such cases insurance is compulsory against working disability, illness and unemployment, and the employer must deduct the insurance premiums from the employee's salary.         The administration of the insurance system is entrusted to the Industrial Insurance Board (Bedrijfsvereniging) which determines the premiums.         For a long time, the Industrial Insurance Board for Health, Mental and Social Well-Being (Bedrijfsvereniging voor de Gezondheid, Geestelijke en Maatschappelijke Belangen, abbreviated hereafter "B.V.G.") considered that certain work relationships such as those between the applicants and their colleagues did not fall under the social security law.   However, in August 1984 the Board changed its policy.   Consequently, on 23 December 1985 the second applicant, and on 25 August 1986 the first applicant, were requested to pay social security premiums.         Under the Social Security Appeals Act (Beroepswet) it is possible to appeal against such decisions to an Appeals Tribunal (Raad van Beroep), which is an independent court, but only after the appellant has obtained a formal decision (voor beroep vatbare beslissing) by the Industrial Insurance Board.   The first applicant requested the B.V.G. to issue such a decision on 14 September 1986, but it was not issued until almost two and a half years later, on 3 March 1989.   The second applicant asked for a decision on 27 January 1986, but it was not issued until almost three years and four months later, on 17 May 1989.         The first applicant's appeal of 22 March 1989 to the Appeals Tribunal of 's-Hertogenbosch was rejected on 2 August 1990 and her further appeal was rejected by the Central Appeals Tribunal (Centrale Raad van Beroep) on 2 October 1991.   The second applicant's appeal of 5 June 1989 to the Appeals Tribunal of Rotterdam was rejected on 20 August 1990 and his further appeal was rejected by the Central Appeals Tribunal on 2 October 1991.   COMPLAINTS         The applicants complain of violations of Article 6 para. 1 of the Convention in that they did not have a fair hearing before a court within a reasonable time.   They point out that they could not appeal to the Appeals Tribunal until they had received a formal decision from the Industrial Insurance Board, and they consider it unreasonable that the Board should require a period of two and a half years and over three years respectively to issue such a decision.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 30 March 1992 and registered on 22 May 1992.         On 6 January 1993 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.         The Government's observations were submitted on 19 March 1993 and the applicants' observations in reply were submitted on 21 June 1993.     THE LAW         The applicants complain of violations of Article 6 para. 1 (Art. 6-1) of the Convention in that they did not have a fair hearing before a court within a reasonable time.   They submit that they could not appeal to the Appeals Tribunal until they had received a formal decision from the Industrial Insurance Board, and they consider it unreasonable that the Board should require a period of two and a half years and over three years respectively to issue such a decision.         Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows:         "1.   In the determination of his civil rights and       obligations ... everyone is entitled to a fair ... hearing       within a reasonable time by an independent and impartial       tribunal established by law."         The Government first submit that Article 6 para. 1 (Art. 6-1) of the Convention was not applicable to the proceedings concerned, since these proceedings did not involve the determination of a civil right. They point out that the proceedings concerned the obligation to pay contributions under the Sickness Benefits Act (Ziektewet), the Unemployment Insurance Act (Werkloosheidswet), the Health Insurance Act (Ziekenfondswet) and the Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheidsverzekering). In respect of the Sickness Benefits Act, the Government note that the European Court of Human Rights has found Article 6 (Art. 6) to be applicable to proceedings concerning the entitlement to benefits, whereas there is no similar decision in regard to the benefits under the other Acts. According to the Government, proceedings regarding the payment of contributions under the said social security schemes should be excluded, in the same way as taxation proceedings, from the application of Article 6 (Art. 6) of the Convention.         In respect of the applicants' suggestion that it would have been in their interest to have had earlier recourse to the courts, the Government note that the applicants neither requested the B.V.G. to expedite the issue of the formal decision, nor complained about this to the Social Insurance Council (Sociale Verzekeringsraad), which organ monitors the implementation of social security legislation and rules on complaints against administering organs, including the B.V.G.   The Government further submit that the applicants could have instituted summary proceedings (kort geding) before the civil courts in order to compel the B.V.G. to expedite the issue of the formal decisions requested.         As regards the question whether the cases were decided within a reasonable time, the Government state that Article 6 para. 1 (Art. 6-1) of the Convention seems to refer only to the actual court proceedings and not to administrative matters prior to their commencement. Concerning the proceedings before the Appeals Tribunal and the Central Appeals Tribunal, the Government find no indication that their length was excessive. Even if the time required by the B.V.G. to issue formal decisions should be taken into account, the Government are of the opinion that the reasonable time provision of Article 6 para. 1 (Art. 6-1) has been respected.         The Government refute the applicants' complaint that there is a deficiency in the legal protection of persons required to pay the social security contributions in question, in that such persons are barred from appealing against such a decision as long the B.V.G. has not issued a formal decision. The Government submit that, apart from the possibility of summary proceedings before a civil court mentioned above, the appeal courts in fact assess any delay in giving a formal decision in the light of the general principles of proper administration (algemene beginselen van behoorlijk bestuur), notably the duty of care and the principle of fair play. The Central Appeals Tribunal has held that long delays in giving formal decisions may seriously restrict the right of access to the courts. However, if the person concerned has failed to take sufficient steps to prompt the administering body to expedite the issue of the formal decision, the Tribunal would assume that the appellant had no urgent interest in a prompt conclusion of the matter and would reject an appeal based on an alleged breach of the duty of care.         The Government conclude that the application is inadmissible as being incompatible with the provisions of the Convention or, alternatively, as being manifestly ill-founded.         The applicants submit that Article 6 para. 1 (Art. 6-1) of the Convention is applicable to proceedings concerning the social security legislation at issue.   They contend that, having regard to the fact that the payment of social security contributions is a personal obligation of an economic nature, there is a direct connection between the assumed or fictitious employment relations and the contributions to be paid.   They also contend that the social security schemes for employees, for which contributions have to be paid, resemble private insurance for which premiums must also be paid.   Litigation over the latter would attract the protection of Article 6 para. 1 (Art. 6-1). This provision is, therefore, equally applicable to proceedings concerning the payment of contributions to the social security schemes in question in the present case.         The applicants submit that the reasonable time requirement of Article 6 para. 1 (Art. 6-1) of the Convention also applies to the administrative procedure prior to the court proceedings.   Thus in the present case a calculation of the length of the proceedings for the purposes of this requirement would encompass the undue delay in the preparation of the B.V.G.'s formal decisions.   In this respect the applicants doubt whether a complaint to the Social Insurance Council or summary proceedings before the civil courts would have been effective, since the delay was apparently due to the large number of pending requests before the B.V.G. to issue formal decisions.         The Commission finds that the present application requires a determination of whether Article 6 para. 1 (Art. 6-1) of the Convention is applicable to the proceedings at issue and, if so, whether the applicants had a fair court hearing within a reasonable time as required by that provision.         After an examination of these questions in the light of the parties' submissions, the Commission considers that they raise issues of fact and law of such complexity that their determination requires an examination of the merits of the application as a whole. The Commission concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.         For these reasons, the Commission, by a majority         DECLARES THE APPLICATION ADMISSIBLE       without prejudging the merits of the case.     Secretary to the Commission                  President of the Commission           (H.C. Krüger)                                 (C.A. Nørgaard)