CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1995

.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. 22052/93                       by Petrus Gijsbertus Johannes TRAKZEL                       against the Netherlands        The European Commission of Human Rights sitting in private on 11 January 1995, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  S. TRECHSEL                  J.-C. SOYER                  H.G. SCHERMERS                  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 21 July 1992 by Petrus Gijsbertus Johannes TRAKZEL against the Netherlands and registered on 11 June 1993 under file No. 22052/93;        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 1933, and resides in Amsterdam. Before the Commission he is represented by Mr. G. Beydals, a lawyer practising in Amsterdam.        The facts of the case, as submitted by the applicant, may be summarised as follows.        As from 25 February 1978 the applicant received supplementary welfare benefits under the General Welfare Act (Algemene Bijstandswet) in addition to benefits under the Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheidsverzekering) for incapacity for work. In June 1983 the applicant became aware that he was under investigation for possible social security fraud.        It appears that the social security authorities had received information that the applicant was gainfully employed. Following an investigation, during which the applicant was questioned on 28 May 1984, the Special Control Department of the Amsterdam Municipal Social Service concluded that, between 1 June 1981 and 15 December 1983, the applicant had been gainfully employed as a driving instructor and that, contrary to his obligations under the General Welfare Act, he had failed to declare this income to the social security authorities. According to the fiscal authorities, the applicant had earned a total amount of 35.000 Dutch guilders between 1981 and 1983. The applicant did not dispute the corresponding income tax assessments.        On 26 July 1985 the Amsterdam municipal authorities ordered the applicant to repay the benefits which he had wrongly received. Moreover, criminal proceedings were instituted against him on charges of fraud.        On 30 June 1986 the Magistrate (politierechter) acquitted the applicant of the criminal charges against him. The Magistrate did not find it established that the amounts paid to his giro-account came from the driving school concerned.        Following an initial repayment agreement, which, apart from one payment, had not been respected by the applicant, the municipal authorities decided on 19 December 1986 to formally reclaim the remainder. To this end they requested the District Court judge (kantonrechter) of Amsterdam on 22 December 1986 to order the applicant to repay to the Municipality 21.503,05 Dutch guilders of the total amount of 26.712 Dutch guilders which he had wrongly received. An amount of 366 guilders had already been repaid by the applicant and an amount of 4.843,25 guilders could no longer be reclaimed as a result of prescription.        On 8 July 1988 the District Court judge, following written and oral adversarial proceedings in which the applicant was represented by a lawyer, rejected the request by the municipal authorities. As they had not reacted to certain submissions by the applicant, the judge found that the municipal authorities had failed to substantiate their request.        On appeal, the Regional Court (Arrondissementsrechtbank) of Amsterdam, following written and oral adversarial proceedings in which the applicant was represented by a lawyer, on 17 May 1989 quashed the decision of 8 July 1988 and ordered the applicant to repay 21.503,05 Dutch guilders to the municipal authorities.        In the determination of the undeclared earnings the Regional Court had regard to the income tax assessments of these earnings, against which the applicant had not filed any objection. It rejected his arguments that these assessments were incorrect and that his income had in fact been lower than the amount on which these tax assessments were based. It also rejected his offer to prove this by submitting daily statements of his giro-account.        Insofar as the applicant had argued that the request of the municipal authorities should be declared inadmissible since the proceedings had exceeded a reasonable time within the meaning of Article 6 para. 1 of the Convention, the Regional Court held that the applicant bore a responsibility for the period which had elapsed between the closure of the investigation in October 1985 and the beginning of the proceedings in December 1986, as during that period the municipal authorities had tried to obtain repayment by way of a payment agreement which the applicant had not respected. The Court did not find that the municipal authorities had waited too long or had given the impression that they would not pursue the matter. As regards the length of the judicial proceedings as such, the Regional Court did not find that the period between 22 December 1986 and 17 May 1989 was an unreasonable time.        Following the applicant's appeal in cassation, the Supreme Court (Hoge Raad), in its decision of 29 June 1990, quashed the judgment of 17 May 1989 on the ground that the Regional Court had failed to examine one of the applicant's submissions, which concerned the question whether or not the municipal authorities could claim full repayment of the benefits concerned. However, insofar as the applicant complained under Article 6 para. 1 of the Convention of the length of the proceedings, the Supreme Court held that, even if the reasonable time had been exceeded in the present case, this could not lead to a more advantageous decision for the applicant, since Article 6 para. 1 of the Convention only imposes an obligation on States which are Parties to the Convention. This obligation, however, does not affect legal relations between parties in proceedings concerning civil rights and obligations.        On 21 March 1991 the Court of Appeal (Gerechtshof) of Amsterdam, following written and oral adversarial proceedings in which the applicant was represented by a lawyer, found in favour of the municipal authorities and ordered the applicant to repay 21.503,05 Dutch guilders. It does not appear that the applicant again complained of the length of the proceedings.        The applicant's subsequent appeal in cassation was rejected by the Supreme Court on 28 February 1992. No complaint of the length of the proceedings had been raised by the applicant.        Furthermore, the applicant's lawyer, on 26 March 1991, complained to the Municipal Ombudsman that the Municipality had failed to respond in time to his correspondence regarding the repayment claim at issue and submitted that the Municipality, in view of the length of the proceedings, should have withdrawn its claim.        In his report of 10 July 1992 on these complaints the Ombudsman found that the Municipality had acted improperly (onbehoorlijk) in its correspondence with the applicant's lawyer. He considered that, pursuant to Section 14 in conjunction with Section 19 of the Municipal Statute on the Municipal Ombudsman (Verordening op de Gemeentelijke Ombudsman), he was not obliged to examine the second complaint, as it had already been examined in judicial proceedings and no new facts had appeared.   COMPLAINTS   1.    The applicant complains under Article 6 para. 1 of the Convention that in the determination of his civil rights and obligations he did not have a fair hearing within a reasonable time. He submits that   both the time which elapsed before the case was brought before the District Court judge and the total length of the proceedings cannot be regarded as reasonable. He further complains that the Regional Court unjustly accepted the income tax assessments as correct and did not allow him to prove that his earnings had in fact been lower than the amounts on which these assessments were based.   2.    The applicant also complains under Article 13 of the Convention that he had no effective remedy as regards the alleged violation of Article 6 para. 1 of the Convention in respect of the length of the proceedings. He refers to the Supreme Court's decision of 29 June 1990.   THE LAW   1.    The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that in the determination of his civil rights and obligations he did not have a fair hearing within a reasonable time.        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 within a reasonable      time by a [..] tribunal established by law. [...]."        The Commission notes that the proceedings concerned the question whether or not the applicant should repay welfare benefits. It finds that these proceedings concerned a determination of the applicant's civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. It follows that this provision is applicable to the proceedings at issue (cf. Eur. Court H.R., Schuler- Zgraggen judgment of 24 June 1993, Series A no. 263, p. 17, para. 46).   a)    As to the applicant's complaint that the Regional Court unjustly accepted the correctness of the income tax assessments at issue, the Commission recalls that it is not competent to examine alleged errors of fact or law committed by domestic courts, except where it considers that such errors might have involved a possible violation of the rights and freedoms set out in the Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77-A p. 81). The Commission notes that the applicant had not disputed the correctness of these assessments before the tax authorities and cannot find that, in relying upon them, the Regional Court acted in an arbitrary or unreasonable manner. It must also be considered to have been the responsibility of the Regional Court to decide whether, in these circumstances, further evidence was required in order to establish the facts.        Moreover, the applicant was represented by a lawyer throughout the proceedings at issue and had the opportunity to present his views and challenge the submissions of his adversary in the proceedings.        The Commission finds no indication that the proceedings were unfair and considers, therefore, that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   b)    As regards the applicant's complaint that his civil rights and obligations were not determined within a reasonable time as required by Article 6 para. 1 (Art. 6-1) of the Convention, the Commission notes that these proceedings started on 22 December 1986, when the Amsterdam municipal authorities instituted civil proceedings before the District Court judge (cf. Eur. Court H.R., Erkner and Hofauer judgment of 23 April 1987, Series A no. 117-B, p. 61, para. 64), and ended on 28 February 1992, when the Supreme Court rejected the applicant's second appeal in cassation.        The proceedings thus lasted approximately five years and two months.        The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (cf. Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).        In particular, in cases concerning civil proceedings, it should be taken into account whether the applicant had shown due diligence by taking the necessary steps to expedite the proceedings and whether delays occurred for which the applicant cannot be held responsible. Only delays attributable to the State may justify a finding of a failure to comply with the reasonable time requirement (cf. Veit v. Germany, Comm. Report 12.3.87, para. 114, D.R. 60 p. 78).        The Commission notes that the present case was been dealt with, first at three levels of jurisdiction and then, again, before the Court of Appeal and the Supreme Court (cf. as regards a period of nearly five years involving three levels of jurisdiction, Eur. Court. H.R., Salerno judgment of 12 October 1992, Series A no. 245-D, p. 55-56, paras. 18- 21).        The applicant has not shown that there were any substantial delays in the proceedings for which the judicial authorities were responsible. Nor does it appear that, at any stage of the proceedings, he requested the courts dealing with his case to expedite the proceedings. In these circumstances the Commission cannot find that the total length of the proceedings could be regarded as unreasonable.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further complains under Article 13 (Art. 13) of the Convention that he had no effective remedy as regards the alleged violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect of the length of the proceedings. He refers to the Supreme Court's decision of 29 June 1990.        Article 13 (Art. 13) of the Convention provides as follows:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        The Commission recalls that it has found the applicant's complaint regarding the length of the proceedings to be manifestly ill- founded. It follows that in this respect the applicant has no arguable claim of a violation of the Convention and that he was not entitled to a remedy under Article 13 (Art. 13) of the Convention (cf. Eur. Court H.R., Powell and Rayner judgment of 21 February 1990, Series A no. 172, p. 14-15, para. 33).        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber          (K. ROGGE)                                (H. DANELIUS)