CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1994

.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. 21962/93                       by A.D.                       against the Netherlands         The European Commission of Human Rights (Second Chamber) sitting in private on 11 January 1994, the following members being present:              MM.    S. TRECHSEL, President                  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                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the 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 16 July 1992 by A.D. against the Netherlands and registered on 2 June 1993 under file No. 21962/93;         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 applicant is a Dutch national, born in 1935, and resides at The Hague, the Netherlands. Before the Commission he is represented by Mr. J. Groen, a lawyer practising in The Hague.         The applicant complains of interference with his private life and correspondence.   This complaint was already the subject of an earlier application (No. 11477/85) which was declared inadmissible by the Commission on 11 December 1986 for non-exhaustion of domestic remedies. In the meanwhile the applicant has exhausted those remedies.         The facts of the case, as now submitted by the applicant, may be summarised as follows.         In 1981, the applicant, who was then teaching at a municipal school at The Hague, developed a friendship with one of his former female pupils and her mother. The girl was then 16 years old and still attending the applicant's school. In the course of 1982 he developed an intimate relationship with the girl, which the girl's mother did not approve of.         The girl's mother informally sought advice from an officer of the Municipal Education Inspectorate (Gemeentelijke Inspectie van het Onderwijs) of The Hague, who subsequently informed the authorities of the applicant's school.         It also appears that since 1978 the applicant had introduced several appeals to the Mayor and Aldermen of The Hague against decisions by the school authorities refusing to approve certain penalties ordered by the applicant. After a fourth appeal had been rejected, the applicant had expressed his views on school punishment in a newspaper interview on 5 June 1982. On 7 June 1982 the applicant's action had been censured during a meeting of his colleagues and he had been warned by the Mayor and Aldermen about his refusal to accept their views on school discipline.         On 3 June 1982 the girl came to the applicant's house and stayed with him. The applicant informed the police on 5 June 1982 that he was not hiding the girl and, on 10 June 1982, reported himself sick at his work.         On 4 June 1982 the girl's mother had contacted the Municipal Police of Rijswijk for advice and assistance in order to end the relationship between the applicant and her daughter and to conduct a criminal investigation of the case. For this purpose, she provided the Rijswijk Municipal Police with private correspondence between the applicant and her daughter. This correspondence consisted mainly of letters the applicant had written to the girl.   As the prosecution authorities decided not to bring any charges against the applicant, the police, with the girl's mother's consent, contacted the Education Inspectorate, considering that disciplinary measures, such as a transfer of the applicant, might resolve the situation. In accordance with the mother's wishes the police gave the correspondence to the Education Inspectorate on 10 June 1982.         On 14 June 1982 the applicant was suspended by the school authorities. On 25 June 1982 the Mayor and Aldermen (Burgemeester en Wethouders) of The Hague, referring to Section 249 of the Criminal Code, which - inter alia - deals with abuse of pupils, informed the applicant that they intended to start proceedings for his dismissal for gross failure to respect his duties as a teacher.         This decision was based on the applicant's attitude towards his school and colleagues and the contents of the applicant's correspondence with the girl, from which it appeared that the applicant had pressed the girl to continue their relation, that he had provided her with information of how she could leave her parental home and which social services could help her doing so, that he had offered her financial aid and that he had tried to negatively influence the girl's opinion in respect of professional counsellors her mother had called upon.         The girl stopped attending the applicant's school on 15 June 1982 and was registered at another school as from 1 August 1982.         On 19 June 1982 the applicant filed an appeal against his suspension with the Civil Servants Court (Ambtenarengerecht) of The Hague. In addition he started injunction proceedings (kort geding) before the President of the Regional Court (Arrondissementsrechtbank) of The Hague, requesting that his correspondence be returned and not be used in the proceedings concerning his suspension.         On 30 August 1982 the President of the Regional Court rejected the applicant's claims, considering that the issues raised belonged to the exclusive competence of the Civil Servants Court.         On 6 September 1982 the Civil Servants Court rejected the applicant's appeal concerning his suspension.         By letter of 6 October 1982 the Mayor and Aldermen informed the applicant that he was dismissed as from 1 November 1982. On 2 November 1982 the applicant filed an appeal against this decision with the Civil Servants Court, complaining, inter alia, that the authorities had taken his correspondence, which in his opinion had been unlawfully obtained, into account when deciding on his dismissal.         In its decision of 6 July 1983 the Civil Servants Court quashed the applicant's dismissal, considering it could not be held that the applicant had failed in his duties as a teacher because of his relationship with a pupil.         Following an appeal by the Mayor and Aldermen, the Central Appeals Tribunal (Centrale Raad van Beroep), on 25 October 1984, quashed the decision of 6 July 1983 and rejected the applicant's appeal of 2 November 1982 as ill-founded. Without making a finding on the use of the correspondence by the authorities, the Central Appeals Tribunal held that the applicant had in fact failed to respect his duties as a teacher.         On 27 September 1982 the applicant and the girl had also introduced a complaint to the National Ombudsman about the seizure of their correspondence by the Municipal Police. On 26 November 1984 the Ombudsman concluded that the police, by taking note of the contents of the correspondence and by handing it over to the Education Inspectorate, had unjustly interfered with the rights of both the applicant and the girl under Article 8 of the Convention.         The applicant subsequently filed a civil action on the basis of tort against the municipalities of Rijswijk and The Hague for damages resulting from his dismissal. He alleged, inter alia, a violation of Article 8 of the Convention.         The Regional Court of The Hague rejected his claims on 14 January 1987, considering, inter alia, that the Rijswijk Municipal Police had not acted unlawfully in respect of the applicant. The Regional Court held in this respect that the interference with the applicant's right to respect for his private life and correspondence was justified under para. 2 of Article 8 of the Convention, having regard to the fact that the police acted on the basis of Section 28 of the Police Act (Politiewet) which obliges the police to provide assistance to persons who so require, that the Rijswijk Municipal Police had not overstepped their discretionary powers in that its course of action was not unreasonable in view of, inter alia, the mother's responsibility as guardian of her minor daughter, her anxiety in respect of the   situation and the previous unsuccessful attempts to obtain the applicant's co-operation to resolve it. The Regional Court further found no indication in the Central Appeals Tribunal's decision of 25 October 1984 that the contents of the correspondence had been taken into account.         The Court of Appeal (Gerechtshof) of The Hague rejected the applicant's appeal on 24 April 1990. The Court of Appeal, even assuming that the Rijswijk Municipal Police had acted unlawfully by passing the correspondence on to the Education Inspectorate, found no causal link between the behaviour of the police and the applicant's dismissal, since this dismissal was based on the existence and continuance of the applicant's relation with the girl. The Court of Appeal did not find it established that the contents of the correspondence between the applicant and the girl had been taken into account in the Central Appeals Tribunal's decision of 25 October 1984. It further upheld the Regional Court's finding that the police had not acted unlawfully.         The applicant's subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 14 February 1992. The Supreme Court, recalling the Regional Court's findings that the Rijswijk Municipal Police had not acted unlawfully, found no basis for the applicant's argument that the Court of Appeal should have followed the conclusions of the National Ombudsman. Noting that the applicant had not relied on the Ombudsman's conclusions before the Court of Appeal, it further considered that the Court of Appeal was under no obligation to take the Ombudsman's conclusions into consideration in its decision.   The Supreme Court did not find it necessary to examine the applicant's other arguments.     COMPLAINTS   1.     The applicant complains under Article 8 para. 1 of the Convention that his right to respect for his private life and his correspondence has been violated by the use made by the Municipal Police of Rijswijk of correspondence from the applicant to the girl without his knowledge or consent.   2.     The applicant further complains that his intellectual property rights under Article 1 of Protocol No. 1 have been violated by the use of the letters he had written to the girl.   3.     The applicant finally complains under Article 6 para. 1 of the Convention that under Dutch law it is not possible to reply to the conclusions of the Advocate General (Advocaat-generaal) to the Supreme Court.   THE LAW   1.     The Commission notes that the above complaint under Article 8 (Art. 8) of the Convention was already the subject of Application No. 11477/85, declared inadmissible on 11 December 1986 for non-exhaustion of domestic remedies.   Under Article 27 para. 1 (b) (Art. 27-1-b) of the Convention the Commission shall not deal with any petition under Article 25 (Art. 25) which is substantially the same as a matter which it has already examined, provided it contains no relevant new information.   The Commission finds that the present application contains such information, in that the tort proceedings which were still pending in 1986 have in the meanwhile been terminated by the decision of the Supreme Court of 14 February 1992.   It follows that the present application is not inadmissible under Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.   2.     The applicant complains under Article 8 para. 1 (Art. 8-1) of the Convention that his right to respect for his private life and his correspondence has been violated by the use the Municipal Police of Rijswijk made of correspondence from the applicant to the girl without his knowledge or consent.         Article 8 (Art. 8) of the Convention, insofar as relevant, provides as follows:         "1.   Everyone has the right to respect for his private       (...) life (...) and his correspondence."         The Commission notes that the police initially used the correspondence from the applicant to the girl, which was given to them by the girl's mother, in order to examine whether or not criminal proceedings should be brought against the applicant. Since this was not the case, the police, with the girl's mother's consent, subsequently passed the correspondence on to the Education Inspectorate for possible disciplinary measures.         The Commission first recalls that the right to respect for correspondence does not apply to documents, which have already reached the addressee and are kept by him (No. 9614/81, Dec. 12.10.83, D.R. 34 p. 119). It therefore finds that the applicant cannot invoke the protection of "correspondence" provided by Article 8 para. 1 (Art. 8-1) of the Convention, as the letters he wrote to the girl had already reached her and thus no longer constituted "correspondence" within the technical meaning of the term.         As to the applicant's complaint that others than the addressee took cognizance of the letters at issue, the Commission finds that this does not constitute an interference with the applicant's right to respect for his private life within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.         It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant complains under Article 1 of Protocol No. 1 (P1-1) that the use made of correspondence between the applicant and the girl violated the property rights of the girl as owner of the letters and his intellectual property rights as author of the letters.         Article 1 of Protocol No. 1 (P1-1) reads as follows:         "Every natural or legal person is entitled to the peaceful       enjoyment of his possessions.   No one shall be deprived of       his possessions except in the public interest and subject       to the conditions provided for by law and by the general       principles of international law.         The preceding provisions shall not, however, in any way       impair the right of a State to enforce such laws as it       deems necessary to control the use of property in       accordance with the general interest or to secure the       payment of taxes or other contributions or penalties."         The Commission considers, in the first place, that the applicant cannot be considered as being a victim within the meaning of Article 25 (Art. 25) of the Convention of any infringement of the property rights of the girl and, secondly, that the facts of the case do not disclose any appearance of any interference with the applicant's rights under Article 1 of Protocol No. 1 (P1-1).         It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     The applicant further complains under Article 6 para. 1 (Art. 6-1) of the Convention that under Dutch law it is not possible to reply to the conclusions submitted by the Advocate General (Advocaat-generaal) to the Supreme Court.         Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows:         "In the determination of his civil rights and obligations       (...) everyone is entitled to a fair (...) hearing (...) by       an (...) tribunal established by law. (...)."         The Commission finds no indication that the applicant has in fact requested the Supreme Court's permission to submit any comments on the Advocate General's written conclusions. Even assuming that the Supreme Court had rejected such a request, the Commission finds that the fact that, in civil proceedings, it is not possible to reply, either in writing or orally, to the written conclusions of the Advocate General, who is not a party to the proceedings and does not participate in the deliberations of the Supreme Court on an appeal in cassation, does not imply any breach of the rights guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention. The Commission finds nothing to suggest that the proceedings at issue were not in conformity with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.         It follows that this complaint is also to be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)