CEDH · CASELAW;REPORTS;ENG — 19 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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                               SECOND CHAMBER                          Application No. 15595/89                               Douwe Rozendale                                   against                               the Netherlands                          REPORT OF THE COMMISSION                        (adopted on 19 January 1994)                              TABLE OF CONTENTS                                                                    Page   I.          INTRODUCTION            (paras. 1-16). . . . . . . . . . . . . . . . . . . . . . 1              A.     The application                  (paras. 2-4) . . . . . . . . . . . . . . . . . . . 1              B.     The proceedings                  (paras. 5-11)   . . . . . . . . . . . . . . . . . . 1              C.     The present Report                  (paras. 12-16) . . . . . . . . . . . . . . . . . . 2   II.         ESTABLISHMENT OF THE FACTS            (paras. 17-29) . . . . . . . . . . . . . . . . . . . . . 3              A.     The particular circumstances of the case                  (paras. 17-21) . . . . . . . . . . . . . . . . . . 3              B.     Relevant domestic law                  (paras. 22-29) . . . . . . . . . . . . . . . . . . 4   III.        OPINION OF THE COMMISSION            (paras. 30-47) . . . . . . . . . . . . . . . . . . . . . 6              A.     Complaint declared admissible                  (para. 30) . . . . . . . . . . . . . . . . . . . . 6              B.     Point at issue                  (para. 31) . . . . . . . . . . . . . . . . . . . . 6              C.     Article 6 para. 1 of the Convention                  (paras. 32-46) . . . . . . . . . . . . . . . . . . 6                    CONCLUSION                  (para. 47) . . . . . . . . . . . . . . . . . . . . 8   DISSENTING OPINION OF MRS. G. H. THUNE. . . . . . . . . . . . . . . 9   APPENDIX I        : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .10   APPENDIX II       : DECISION ON THE ADMISSIBILITY                    OF THE APPLICATION . . . . . . . . . . . . . . .11   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 1908, and residing at The Hague, the Netherlands.   In the proceedings before the Commission he is represented by Mr. L.A. van der Niet, a lawyer practising at Leiderdorp.   3      The application is directed against the Netherlands.   The respondent Government are represented by their Agent, Mr. K. de Vey Mestdagh of the Netherlands Ministry of Foreign Affairs.   4      The application concerns proceedings under the Act on Fees in Civil Cases (Wet Tarieven in Burgerlijke Zaken).   The applicant complains that he did not have a fair hearing before an independent and impartial tribunal within the meaning of Article 6 para. 1 of the Convention.   B.     The proceedings   5      The application was introduced on 14 October 1988 and registered on 10 October 1989.   6      On 12 December 1991 the Commission decided that notice should be given to the Government of the Netherlands of the application and that they should be invited to submit written observations on the admissibility and merits of the application.   7      On 6 January 1992 the Commission referred the application to the Second Chamber.   8      The Government submitted their observations on 13 March 1992. The applicant submitted observations in reply on 10 June 1992 after expiry of the fixed time-limit.   9      On 2 December 1992 the Commission (Second Chamber) declared the application admissible and decided to request additional information from the parties.   10     The applicant submitted additional information on 19 January 1993.   After an extension of the time-limit, the Government submitted additional information on 15 February 1993.   11     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.   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   12     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                  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   13     The text of this Report was adopted on 19 January 1994 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14     The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)     to establish the facts, and   ii)    to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.   15     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 as Appendix II.   16     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.     The particular circumstances of the case   17     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.   18     As he persisted in his refusal to pay, 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, hereinafter referred to as "the Act"), 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 Act, the lawyer was granted an execution order on 1 July 1988 by the President of the Regional Court (Arrondissementsrechtbank) of The Hague.   19     On 10 November 1988, the applicant filed an objection (verzet) within the meaning of Article 40 of the Act against this order with the Regional Court of The Hague, complaining that the lawyer had misrepresented him and that the proceedings before the Supervisory Council had not satisfied the requirements of Article 6 of the Convention, and to this end summoned the lawyer before the Regional Court of The Hague. In the course of its examination of the objection, the Regional Court heard neither of the parties orally. It based its decision of 12 July 1989, in which it dismissed the objection as being ill-founded, on the parties' written submissions. The Regional Court found the applicant's allegation of breach of contract by his lawyer wholly unsubstantiated and noted that the applicant had not offered to prove his allegations. Concerning the applicant's complaint that Article 6 of the Convention had been violated, the Regional Court observed that Article 40 of the Act enables the applicant to submit all his complaints to the court which has full jurisdiction to consider them. Consequently, the Regional Court held that Article 6 of the Convention had been complied with. It does not appear that the applicant requested the Regional Court to hold an oral hearing before deciding the case.   20     The applicant did not institute any proceedings against the lawyer before the civil courts on the claim of a breach of contract. It appears from the case-file that the applicant instituted disciplinary proceedings against the lawyer in accordance with the Advocates Act (Advocatenwet; see para. 25 below).   However, the Vice- President of the Disciplinary Council (Raad van Discipline) initially rejected his application, which decision was upheld in the subsequent proceedings before the Disciplinary Council.   An appeal brought before the Disciplinary Court (Hof van Discipline) was rejected by its Vice- President. It does not appear that the applicant has challenged the decision of the Vice-President before the Disciplinary Court.   21     Meanwhile the applicant has paid his lawyer's fees.   B.     Relevant domestic law   22     The Act on Fees in Civil Cases of 1843 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 of the Act, either the lawyer or his client can refer the lawyer's detailed bill 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 Act is not subject to any procedural rule.   In practice the Council meets in camera and does not hear the persons concerned.   23     If the client does not pay the lawyer after the Supervisory Council's approval or substituted assessment of the bill, the President of the Regional Court shall determine the fees (Article 33) and issue an execution order (Article 39).   24     Article 40 of the Act 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 Act does not contain any procedural requirements regarding the objection proceedings. The general notion of a summary case was abolished by the legislator in 1896 but has remained in the Act. Consequently, there is some uncertainty as to its concrete meaning. Although the objection proceedings before the Court are adversarial, it appears that normally neither the client nor the lawyer is heard in person, but that the case is decided on the basis of the parties' written submissions. The Act itself does not prescribe or exclude an oral hearing.   According to Dutch case-law, the Regional Court can, following a request thereto, give the parties the opportunity to address the Court orally, and it has full jurisdiction to assess all complaints when it verifies the lawyer's bill (see e.g. Regional Court Haarlem, 3.6.1980, NJ 1981, 408; Supreme Court 26.2.1988, NJ 1988, 506). The Regional Court is empowered, in the objection proceedings, to annul and replace the decision and execution order of the President (Regional Court Amsterdam, NJ 1914, p. 923).   25     Under the Advocates Act, a practising lawyer (advocaat) is subjected to the disciplinary jurisdiction of the Disciplinary Council (Raad van Discipline) and, on appeal, of the Court of Discipline (Hof van Discipline). Both organs are composed of members of the judiciary and practising lawyers.   The President and the two Vice-Presidents of each of these organs shall always be members of the judiciary (Articles 46b and 51 of the Advocates Act).   When dealing with a specific case, the Disciplinary Council is composed of five members, one of whom must be the President or the Vice-President (Article 47). The Disciplinary Court shall in each case be composed of five members, among whom the President or a Vice-President as well as two members from the judiciary (Article 56).   26     Where a client considers that a lawyer, in representing or assisting him, has not acted with due care or in conformity with professional standards, he may lodge a complaint with the President of the Bar Association (deken van de orde) who, unless the dispute is settled, will refer the matter to the Disciplinary Council (Articles 46c, 46d and 46e).   The President or Vice-President of the Disciplinary Council can reject manifestly ill-founded complaints (Article 49g).   The complainant can challenge (verzet) such a decision before the full Disciplinary Council (Article 46h).   Against the Council's decision an appeal can be filed with the Disciplinary Court (Article 56). The President or Vice-President of the Disciplinary Court can reject manifestly ill-founded appeals (Article 56a).   Such a rejection can be challenged before the full Disciplinary Court (Article 56b).   27     Where a complaint is considered well-founded, a disciplinary sanction may be imposed.   Such a sanction may be a warning, a reprimand, a measure of suspension or deprivation of the right to practise law (Article 48).   Moreover the lawyer may be ordered to pay compensation for the damage which he has caused by his behaviour (Article 48b).   28     The procedure before the Disciplinary Council and the Disciplinary Court comprises the following elements (Articles 49 and 57).   The complainant and the lawyer against whom the case is brought shall be summoned to appear.   They may be assisted by counsel.   They shall also be given access to the documents in the case-file.   The Disciplinary Council and the Disciplinary Court may hear witnesses and experts.   The hearings before both organs shall be held in public unless, on account of weighty reasons, it is decided to hold a hearing in camera.   29     Apart from the specific procedures described in the preceding paragraphs, there is a general possibility to sue before the civil courts for a breach of contract. A client who considers that his lawyer has misrepresented him could avail himself of this remedy in order to obtain compensation for damage suffered.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   30     The Commission has declared admissible the applicant's complaint that he did not have a fair hearing before an independent and impartial tribunal in the determination of his civil obligations vis-à-vis his lawyer.   B.     Point at issue   31     Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.     Article 6 para. 1 (Art. 6-1) of the Convention   32     Article 6 para. 1 (Art. 6-1) of the Convention provides, insofar as relevant:         "In the determination of his civil rights and obligations ...,       everyone is entitled to a fair and public hearing ... by an       independent and impartial tribunal ..."   33     The Commission recalls that, in its decision on the admissibility of the application, it found that there was a dispute concerning the applicant's civil obligations and that Article 6 para. 1 (Art. 6-1) of the Convention was therefore applicable to the proceedings in the present case.   34     The Commission must consequently address the question whether the applicant had a fair hearing by an independent and impartial tribunal.   35     The applicant submits that the Supervisory Council is not an independent and impartial tribunal as it is composed of lawyers admitted to the Bar.   He was neither heard by the Supervisory Council, which sits in camera, nor by the President of the Regional Court, when the execution order was issued, nor by the Regional Court in the objection proceedings.   36     The Government state that no hearing was required since the sole purpose of the proceedings under the Act on Fees in Civil Cases is to verify the amount of the fees charged by the lawyer.   Insofar as the lawyer's alleged breach of contract is concerned, the applicant should have seized the civil courts.   37     The Commission notes that the Act on Fees in Civil Cases provides for a summary procedure in determining the level of advocates' fees. However, the purpose of that procedure is not to determine whether a lawyer has been negligent in carrying out his functions on behalf of a client or whether the remuneration for his work should be reduced on such grounds.   38     In the present case, the applicant considered that his lawyer had misinformed and misrepresented him to such a degree that he should not be obliged to pay for his services.   The question is whether he could, under the Dutch legal system, have that question determined in a procedure satisfying the requirements of Article 6 (Art. 6) of the Convention.   39     The Government have stated that the applicant could have instituted civil proceedings before a court in order to have his obligation to pay his lawyer's fee determined.   40     The Commission notes, however, that the applicant was the person against whom a claim was brought by his lawyer.   He was therefore in the position of a defendant, and as a rule a defendant cannot be expected to institute proceedings but can limit himself to resisting claims brought against him.   Even if, under Dutch law, it would have been possible for the applicant to institute civil proceedings in order to obtain a determination that he was not under an obligation to pay any fee to his lawyer, it could not be expected of him that he should take such an unusual initiative.   41     On the other hand, the Commission notes that the applicant accused his lawyer of misbehaviour, a matter which it would be appropriate to have examined in disciplinary proceedings against the lawyer.   It further appears that the applicant did institute disciplinary proceedings under the Advocates Act but without success. It should be examined, however, whether these proceedings could, if successful, have resulted not only in a disciplinary sanction against the lawyer but also in the determination of the financial relations between the applicant and his lawyer and, if so, whether the bodies competent to deal with the disciplinary case could be regarded as independent and impartial tribunals within the meaning of Article 6 (Art. 6) of the Convention and whether the procedure before those organs was in conformity with that Article.   42     While the primary purpose of disciplinary proceedings under the Advocates Act is to examine whether a lawyer, in representing or assisting his client, has failed to act with due care and in conformity with professional standards and to impose, where necessary, a disciplinary sanction upon him, it follows from Article 48b of the Advocates Act that, where a sanction is imposed, the lawyer can also be ordered to compensate the damage caused by his acts.   The Commission therefore finds that the disciplinary proceedings which the applicant instituted could also have involved a determination of the economic relations between him and his lawyer.   43     The Commission further notes that the Disciplinary Council and the Disciplinary Court are composed of members of the judiciary and practising lawyers who, in the exercise of their functions, are independent of the executive and the parties.   Moreover, the procedure applied by these bodies is of a judicial character (see para. 44 below).   The Commission considers that they should be regarded as independent and impartial tribunals within the meaning of Article 6 (Art. 6) of the Convention.   44     As regards the procedure before the Disciplinary Council and the Disciplinary Court, the Commission notes that the complainant and the lawyer against whom a case is brought shall be summoned to attend the hearing in the case and that they may both be assisted by counsel. They shall also be given access to the documents in the case-file.   The Disciplinary Council and the Disciplinary Court may hear witnesses and experts.   The hearing shall as a rule be held in public, but where there are weighty reasons it may be decided to hold the hearing in camera.   45     Having regard to these various elements, the Commission finds no reason to doubt that the procedure before the Disciplinary Council and the Disciplinary Court is, in principle, in conformity with the requirements of Article 6 (Art. 6) of the Convention.   Consequently, and having regard to the fact that the applicant based his refusal to pay his lawyer's fee on such alleged behaviour by his lawyer as could give rise to disciplinary sanctions, the Commission considers that the applicant had access to independent and impartial tribunals which were competent to determine the civil rights and obligations at issue in this case.   46     In these circumstances, the Commission finds that Article 6 (Art. 6) of the Convention has not been violated in the present case.         CONCLUSION   47     The Commission concludes by twelve votes to one that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the Second Chamber         President of the Second Chamber             (K. ROGGE)                            (S. TRECHSEL)                                                           (Or. English)                   DISSENTING OPINION OF MRS. G.H. THUNE         Unfortunately I am unable to agree with the majority of the Commission and have voted against the finding of no violation of Article 6 of the Convention.         It seems to me that the applicant's obligation to pay his lawyer's fees was finally decided through the decision by the Regional Court.   The applicant accordingly then paid the amount decided by the Court.         During these proceedings no hearing was held at any stage as required by Article 6 para. 1.   It seems that it is unusual to hear the parties in such legal fee disputes.   I also observe that there is no evidence in the present case that the applicant unequivocally waived his right to a hearing.   Moreover, despite the apparent equality of arms in the present case, in that neither party was heard by the court, the extent of the discretion of the Regional Court in granting a hearing at the request of one of the parties to the proceedings was unclear.   Given the Regional Court's summary dismissal of the applicant's case as being wholly unsubstantiated, it cannot be said with any certainty that the applicant would have been granted a hearing if he had asked for one.         I do not agree with the majority that the deficiencies in the proceedings before the Regional Court would be remedied through the possibility for the applicant of instituting disciplinary proceedings or proceedings before the ordinary courts.         The aim of disciplinary proceedings is to sanction the particular lawyer.   This is in my opinion a question quite different from what was at stake for the applicant, namely the amount he was obliged to pay to his former lawyer with a view to the quality of the particular service received.   The test that would be applied in a disciplinary case is not in any way identical to the test that would be applied in a civil conflict concerning possible reduction of the bill presented by a lawyer.         Here this conflict was in fact settled by the Regional Court in proceedings which did not seem in compliance with the requirements of Article 6 as interpreted by the European Court and Commission of Human Rights.                                 APPENDIX I                         HISTORY OF THE PROCEEDINGS   Date                                       Item ______________________________________________________________________   14 October 1988                         Introduction of the application   10 October 1989                         Registration of the application   Examination of the admissibility   12 December 1991                        Commission's decision to                                        communicate the case and to                                        invite the parties to submit                                        their observations on                                        admissibility and merits   6 January 1992                          Commission's decision to refer                                        the application to the Second                                        Chamber   13 March 1992                           Government's observations   10 June 1992                            Applicant's observations in                                        reply   2 December 1992                         Commission's decision to                                        declare the application                                        admissible and to request                                        additional information from the                                        parties   Examination of the merits   19 January 1993                         Submission of additional                                        information by the applicant   15 February 1993                        Submission of additional                                        information by the Government   6 April 1993                            Consideration of the state of                                        the proceedings   30 June 1993                            Commission's deliberation on                                        the merits and decision to                                        adjourn its examination.   11 January 1994                         Commission's deliberation on the                                        merits and final vote.   19 January 1994                         Commission's adoption of the                                        Report