CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 avril 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. 18266/91                     by Kiymet DÜMAN                     against the Netherlands        The European Commission of Human Rights (Second Chamber) sitting in private on 6 April 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 22 February 1991 by Kiymet DÜMAN against the Netherlands and registered on 28 May 1991 under file No. 18266/91;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;          Having regard to :   -     reports provided for in Rule 47 of the Rules of Procedure of the     Commission;   -     the observations submitted by the respondent Government on      14 July 1993 and the observations in reply submitted by the      applicant on   21 October 1993;        Having deliberated;        Decides as follows:       THE FACTS        The applicant is a Turkish national, born in 1951, and currently resides at Amsterdam. Before the Commission she is represented by Mrs. M.D. van Aller, a lawyer practising in Amsterdam.        The facts of the case, as submitted by the parties, may be summarised as follows.        Until 3 December 1980, when the applicant fell ill, she worked as a kitchen help in a hospital. On the basis of the Sickness Benefits Act (Ziektewet) she received benefits for one year. As from 10 December 1981 these benefits were replaced by combined disability benefits under the General Labour Disablement Benefits Act (Algemene Arbeidsonge-schiktheidswet - "AAW") and the Labour Disablement Insurance Act (Wet op de Arbeidongeschikt- heidsverzekering - "WAO"), on the basis of complete incapacity to work.        By letter of 25 April 1985, the Industrial Insurance Board for the Health, Mental and Social Interests Sector (Bedrijfs- vereniging voor de Gezondheid, Geestelijke en Maatschappelijke Belangen) informed the applicant of its decision to stop the payment of benefits under the AAW and WAO as from 1 April 1985, as she was considered able to perform adapted work.        The applicant, represented by a lawyer, filed an appeal on 9 May 1985 with the Appeals Tribunal (Raad van Beroep) of Amsterdam. On 27 June 1986 the Acting President of the Appeals Tribunal rejected the applicant's appeal as ill-founded. The applicant subsequently filed an objection (verzet) with the Appeals Tribunal. Following a hearing on 19 December 1986 where only the applicant and her lawyer appeared, and a hearing on 23 September 1987 where both parties appeared, the Appeals Tribunal rejected the applicant's appeal against the decision of the Industrial Insurance Board as ill-founded on 12 October 1987.        The applicant, again represented by a lawyer, filed an appeal against this decision with the Central Appeals Tribunal (Centrale Raad van Beroep) on 19 April 1988. By letter of 13 June 1990 the applicant was invited to attend the hearing of her case by the Central Appeals Tribunal on 12 July 1990. By letter of 21 June 1990 the applicant's lawyer requested the Central Appeals Tribunal to postpone this hearing, stating that she had to attend another hearing at the same time, and informed the Central Appeals Tribunal of other dates on which she would also be unable to attend.        On 12 July 1990 the hearing before the Central Appeals Tribunal took place. Neither the applicant, who was on holiday in Turkey, nor her lawyer or the Industrial Insurance Board appeared at the hearing.        In its decision of 2 August 1990, pronounced in public on the same date, the Central Appeals Tribunal noted that the applicant's lawyer had also submitted a letter of 24 June 1988 by a doctor and a letter of 28 June 1988 of a psychiatrist, on which the Industrial Insurance Board had commented in writing, and that, upon the request of the Acting President of the Central Appeals Tribunal, the psychiatrist Mr. L. was requested to submit his comments on the letter of 28 June 1988, which comments were received on 19 April 1990.        The Central Appeals Tribunal rejected the lawyer's request of 21 June for a postponement and, after having considered the various reports on the applicant's physical and mental state of health and the applicant's comments on these reports, upheld the decision of the Appeals Tribunal of 12 October 1987.        In respect of the lawyer's request to postpone the hearing of 12 July 1990, the Tribunal found no indication of circumstances preventing the applicant from appearing in person, either alone or assisted by another lawyer, at the hearing of 12 July 1990 in order to exercise her rights under the Appeals Act (Beroepswet). The Central Appeals Tribunal stated that it had not found it necessary to summon the applicant to appear in person in order to provide information and noted that the Industrial Insurance Board was not represented at the hearing before the Tribunal either.   No new facts or other elements on which the applicant should have been able to comment had arisen. The Central Appeals Tribunal took into consideration that the case had already been examined on appeal before the Appeals Tribunal, where the applicant, with legal assistance, had appeared. The Central Appeals Tribunal finally held that in deciding upon requests to postpone a hearing regard must be had to the fact that the granting of postponements generally results in delays in the large number of pending cases.        On 13 September 1990 a certified copy of the decision of 2 August 1990 by the Central Appeals Tribunal was communicated to the applicant.        In a letter of 24 September 1990 to the Central Appeals Tribunal the applicant's lawyer complained that her request to postpone the hearing had been refused. Given that it takes years before a case comes to trial before the Central Appeals Tribunal, that she is an independent lawyer working alone and that other tribunals in such circumstances grant a request to postpone a hearing without problems, this way of administering justice in refusing a reasoned request by a lawyer for a postponement was contrary to the principle of correct legal proceedings and in violation of Article 6 of the Convention. The applicant's lawyer urged the Central Appeals Tribunal, if in the future circumstances would force her to request a postponement of a hearing, to grant such requests.     COMPLAINT        The applicant complains under Article 6 para. 1 of the Convention that her civil rights have not been determined within a reasonable time, in particular in view of the delay between 19 April 1988, when she appealed to the Central Appeals Tribunal, and 12 July 1990, when the Central Appeals Tribunal held its hearing.       PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 22 February 1991 and registered on 28 May 1991.        On 5 May 1993, the Commission decided to communicate the application to the respondent Government and to invite them to submit written observations on the admissibility and merits of the complaint of the length of the proceedings and declared inadmissible the remainder of the application concerning alleged unfairness of the proceedings.        The Government's observations were submitted on 14 July 1993 and the applicant's observations in reply were submitted on 21 October 1993.     THE LAW        The applicant complains that the delay between the judgment of the Appeals Tribunal and the beginning of the examination of the case by the Central Appeals Tribunal violated her right to a fair hearing within a reasonable time as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention, which, insofar as relevant, reads as follows:        "In the determination of his civil rights and      obligations (...) everyone is entitled to a fair and      public hearing within a reasonable time by a (...)      tribunal (...)."   A.    The applicability of Article 6 para. 1 (Art. 6-1) of the Convention        The Commission notes that the complaint at issue concerned proceedings the applicant instituted against the decision to withdraw her AAW/WAO benefits for complete incapacity to work.        The Government submit that, if the entitlement to benefits under the AAW and WAO respectively is examined separately, given the criteria set out in the Feldbrugge and Deumeland judgments of 29 May 1986 (Eur. Court H.R., Series A nos. 99 and 100), the entitlement to AAW benefits cannot be regarded as a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. The AAW carries a number of public law features: there is not necessarily a connection between a contract of employment and entitlement to AAW benefits; a similarity with private insurance agreements is in fact absent on essential points such as in the determination and collection of premiums by the tax authorities, the absence of a relation between the payer of the premiums and the recipient of the benefits and the irrelevance of the question whether or not premiums have been paid by a recipient of benefits; and payment of AAW premiums cannot be regarded as a payment under a contributory pension scheme. Article 6 para. 1 (Art. 6-1) therefore does not apply to proceedings concerning benefits under the AAW.        As to proceedings concerning entitlement to WAO benefits the Government submit that the applicability of Article 6 para. 1 (Art. 6-1) of the Convention depends on the weight attached to the criteria set out in the Feldbrugge and Deumeland judgments (loc. cit.) and that the case-law on this point should be clarified.        The applicant submits that Article 6 para. 1 (Art. 6-1) of the Convention applies to the proceedings concerning the social security schemes at issue.        The Commission recalls that the Court in the case of Schuler-Zgraggen v. Switzerland (Eur. Court H.R., judgment of 24 June 1993, to be published in Series A no. 263) stated in para. 46 of its judgment:        "The Court is here once again confronted with the      issue of the applicability of Article 6 § 1 (Art. 6-1)      to social-security disputes. The question arose      earlier in the cases of Feldbrugge v. the Netherlands      and Deumeland v. Germany, in which it gave judgment on      29 May 1986 (Series A nos. 99 and 100). At that time      the Court noted that there was great diversity in the      legislation and practice of the member States of the      Council of Europe as regards the nature of the      entitlement to insurance benefits under social-      security schemes. Nevertheless, the development in the      law that was initiated by those judgments and the      principle of equality of treatment warrant taking the      view that Article 6 § 1 (Art. 6-1) does apply in the      field of social insurance, including even welfare      assistance (see the Salesi v. Italy judgment of 26      February 1993, Series A no. 257-E, pp. 59-60, § 19).             As in the two cases decided in 1986, State      intervention is not sufficient to establish that      Article 6 § 1 (Art. 6-1) is inapplicable; other      considerations argue in favour of the applicability of      Article 6 § 1 (Art. 6-1) in the instant case. The most      important of these lies in the fact that despite the      public-law features pointed out by the Government, the      applicant was not only affected in her relations with      the administrative authorities as such but also      suffered an interference with her means of      subsistence; she was claiming an individual, economic      right following from specific rules laid down in a      federal statute (...).             In sum, the Court sees no convincing reason for      distinguishing between Mrs Schuler-Zgraggen's right to      an invalidity pension and the rights to social-      insurance benefits asserted by Mrs Feldbrugge and Mr      Deumeland.             Article 6 § 1 (Art. 6-1) therefore applies in the      present case."        Having regard to the Court's above findings, namely that Article 6 para. 1 (Art. 6-1) of the Convention applies in the field of social insurance, including welfare assistance which is a unilateral benefit granted by the State (Eur. Court H.R., Salesi judgment of 26 February 1993,to be published in Series A no. 257-E, para. 19), the Commission considers that no distinction can be made between entitlement to benefits under the AAW and under the WAO in respect of the applicability of Article 6 para. 1 (Art. 6-1).        The Commission further considers that, like Mrs. Schuler- Zgraggen, the applicant was not only affected in her relations with the administrative authorities as such, acting in the exercise of discretionary powers, but she also suffered an interference with her means of subsistence. She did in fact claim an individual, economic right on the basis of specific rules laid down in the AAW and WAO respectively.        The Commission, therefore, finds that the proceedings at issue involved a determination of a civil right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, which is thus applicable to the present case (see also Schouten v. the Netherlands, Comm. Report 12.10.93, para. 47 and Meldrum v. the Netherlands, Comm. Report 12.10.93, para. 47).   B.    Alleged violation of Article 6 para. 1 (Art. 6-1) of the Convention        The applicant claims that her civil rights have not been determined within a reasonable time in that there was unreasonable delay between 19 April 1988, when she appealed to the Central Appeals Tribunal, and 12 July 1990, when the Central Appeals Tribunal started its examination of her appeal.        The Government admit that more time elapsed between the lodging of the appeal and the judgment of the Central Appeals Tribunal than would at first sight appear desirable, but maintain that the time taken in this case was not in excess of a reasonable time. One reason for the delay was that the Acting President of the Central Appeals Tribunal judged that the interests of a well-considered judgment required that the opinion of a second psychiatrist be obtained. Moreover, there is no evidence to suggest that the applicant urged the Central Appeals Tribunal, while her case was pending, to expedite the proceedings. Nor did the applicant raise a complaint about the length of the proceedings pending the proceedings before the Central Appeals Tribunal. It was only after the latter's decision had been pronounced and communicated to the applicant that her lawyer complained to the Central Appeals Tribunal that it takes years before a case comes to trial before this tribunal. The Government conclude that the application is inadmissible, either on the ground that domestic remedies have not been exhausted or on the ground that it is manifestly ill-founded.        With respect to the Government's submission under Article 26 in conjunction with Article 27 para. 3 (Art. 26+27-3) of the Convention that the application should be declared inadmissible for non-exhaustion of domestic remedies, as the applicant failed to urge the Central Appeals Tribunal to expedite the proceedings, the Commission recalls that it is for the State to prove the existence of an available, effective and sufficient remedy capable of affording redress for the violation complained of by the applicant (cf. No. 12869/87, Dec. 3.10.90, D.R. 66 p. 105). The Commission does not find that the Government have established the existence in Dutch law of an effective remedy whereby a litigant can raise a complaint relating to the length of civil proceedings pending before the Central Appeals Tribunal.        Furthermore, the Commission has already held that the question of how an applicant, if necessary, can speed up proceedings is not one of the exhaustion of domestic remedies, but of the substance of the application or, in other words, an element in determining whether the length of the proceedings exceeded a reasonable time (cf. No. 12869/87, ibid.). Therefore the Government's objection relating to domestic remedies must be rejected.        As to the substance of the complaint, the Commission, having regard to the parties' submissions under Article 6 para. 1 (Art. 6-1) of the Convention concerning the length of the proceedings, considers that this complaint must be examined on its merits. The application cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE,      without prejudging the merits of the case.   Secretary to the Second Chamber       President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)