CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.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. 27084/95                       by Marinus VAN GIESSEN                       against the Netherlands        The European Commission of Human Rights (Second Chamber) sitting in private on 15 May 1996, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, 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 2 February 1995 by Marinus VAN GIESSEN against the Netherlands and registered on 24 April 1995 under file No. 27084/95;        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 1922, and resides in Poederoyen, the Netherlands. Before the Commission he is represented by Mr M.A. Smals, a lawyer practising in Rotterdam.        The facts, as submitted by the applicant, may be summarised as follows.   a.    Particular circumstances of the case        As from 1985 the municipal authorities of Brakel negotiated with the applicant seeking to buy land from him for the extension of a cemetery. Several times the applicant withdrew at the last moment from an agreement reached.        Since the negotiations did not lead to the desired result, the Municipal Council (Gemeenteraad) of Brakel adopted on 20 January 1992 the zoning plan "Buitengebied - herziening 1988-5" aimed at obtaining the plot by way of an administrative procedure. On 13 April 1992 the Provincial Executive (Gedeputeerde Staten) of the province of Gelderland approved the zoning plan.        Following an appeal against the decision of 13 April 1992, filed by the applicant's lawyer Mr Smals, the Administrative Litigation Division of the Council of State (Afdeling Geschillen van Bestuur van de Raad van State) decided on 22 April 1993 to quash the decision of 13 April 1992 and ordered the provincial authorities to reimburse the applicant the appeal registration fee of 150 Dutch guilders he had paid in connection with his appeal to the Council of State.        On 25 October 1993 the Provincial Executive of the province of Gelderland took a new decision in respect of the zoning plan. It approved the zoning plan. Having regard, inter alia, to the location of the plot, the nature and scope of the agricultural activities involved, the applicant's age, and the fact that he did not have a successor for his agricultural activities, it held that to reduce the plot by 0.31 hectares would have no consequences for the development of activities which could not be met by compensation. It further noted that, given the fact that between 1989 and 1991 the applicant had sold a total of 11.13 hectares of the original 14.84 hectares owned by him, the applicant had apparently opted to gradually reduce his agricultural enterprise.        On the same day the Provincial Executive informed the applicant of this new decision in writing. In this letter the applicant was also informed that he could file an appeal with the Administrative Litigation Division within a time-limit of one month and that, before his appeal would be taken into consideration, he should pay a registration fee of 170 Dutch guilders and that this amount would be repaid if the Administrative Litigation Division would order this. The letter further mentioned the address of the Administrative Litigation Division and the details of the account on which the registration fee should be paid.        On 3 December 1993 the applicant's lawyer filed an appeal with the Administrative Litigation Division against the decision of 25 October 1993. Neither the applicant nor his lawyer paid the registration fee as provided for, at the relevant time, by Section 32 para. 5 of the Act on the Council of State (Wet op de Raad van State) of 170 Dutch guilders when filing this appeal.        On 11 January 1994 the applicant's lawyer contacted the Secretariat of the Administrative Litigation Division as so far he had not received an acknowledgement of receipt of the appeal. The Secretariat informed him that this acknowledgement had been sent to him on 9 December 1993 and sent the lawyer a copy of this letter by telefax the same day.        In the letter of 9 December 1993 it was stated, inter alia, that when the appeal was introduced the applicant had not complied with the requirement to pay the registration fee of 170 Dutch guilders, that he had the opportunity to do so within 30 days after the date of the letter, i.e. the fee should be received on the account of the Council of State on 10 January 1994 at the latest. The letter further contained the details of two accounts on which this amount could be paid. One of these accounts was the account mentioned in the letter of 25 October 1993.        By letter of 11 January 1994 the applicant's lawyer informed the President that he had not received the letter of 9 December 1993 and that, therefore, he had not been able to pay the required fee in time. The lawyer further stated that he had given a payment order by telephone and requested, inter alia, that this payment be considered as having been made on time.        By decision of 21 February 1994, the Acting President of the Administrative Law Division (Afdeling Bestuursrechtspraak) of the Council of State, which had replaced the Administrative Litigation Division following the entry into force on 1 January 1994 of new rules on administrative proceedings, rejected the applicant's appeal as inadmissible on the ground that the applicant had not paid the registration fee in time. The Acting President held, inter alia:   <Translation>      "      Pursuant to Section 32 paras. 5 and 8 of the Act on      the Council of State an appeal is not examined until the      appellant has paid the (registration) fee due ("het      verschuldigde recht") of 170 Dutch guilders at the      Secretariat of the Council of State.              In case of payment via bank or giro the date of      payment ... is to be understood the date on which the      amount is credited to the Council of State's bank or giro      account.              Pursuant to the second sentence of Section 32 para. 8      of the above-mentioned Act the appellant is declared      inadmissible when the fee due has not been paid within      thirty days after the day on which a notification was sent      in which the Secretary (of the Council of State) informed      him that a fee was due.              By letter of 9 December 1993 the appellant has been      informed of, inter alia, the failure to respect the rule      regarding the payment of the fee of 170 Dutch guilders.              The amount mentioned has not been received within the      time-limit mentioned in Section 32 para. 8 of the Act on      the Council of State, but has only been paid at the      Secretariat of the Council of State on 13 January 1994.              The appellant cannot, therefore, be admitted in his      appeal.              The appellant's arguments submitted by letter of 11      January 1994 cannot lead to a different finding in view of      the imperative character ("dwingende karakter") of Section      32 para. 8 of the Act on the Council of State."        The applicant's lawyer filed an objection (verzet) against the decision of 21 February 1994 with the full bench of the Administrative Law Division. Following a hearing held on 21 July 1994, the Administrative Law Division rejected the objection as ill-founded in its decision of 2 August 1994. It held, inter alia, that:   <Translation>      "      The requirement of Section 32 para. 8, second      sentence, of the (former) Act on the Council of State is,      in view of its wording, a rule of imperative law      ("voorschrift van dwingend recht").              Pursuant to this rule the mere failure to pay the fee      in the course of the period of thirty days, which an      appellant is offered to redress his failure to pay, must      lead to a finding of inadmissibility. ...              ... it appears from the documents and the      administration that it is certain that the letter of 9      December 1993 has been sent on the same day to the address      of the (applicant's) representative.              This letter has not been returned by the P.T.T. as      undeliverable. It is further rule that a letter sent in the      Netherlands by regular mail reaches the addressee.              The Division accepts that the letter of 9 December has      been delivered.              Nevertheless it remains possible that in exceptional      cases letters sent via the P.T.T. are not delivered. This      risk, however, should remain with the appellant, as the      opposite conclusion would lead to socially undesirable      consequences.              Moreover, in this case it concerns a statutory      obligation which exists also in the absence of the separate      notification by the Secretary to the Council of State.              In this regard the Division also notes that the      Provincial Executive of Gelderland, in its letter of 25      October 1993 .... , has explicitly drawn the applicant's      attention to this obligation."        The applicant was represented by the same lawyer throughout the entire proceedings.   b. Relevant domestic law and practice        In the amendment of 18 December 1986 to the Act on the Council of State the requirement to pay a limited amount as appeal registration fees in proceedings before the Council of State was introduced (Section 32 of the Act on the Council of State).        For natural persons with limited financial resources, an exemption or reduction of this fee may be obtained (Section 32 paras. 6 and 7 of the Act on the Council of State).   COMPLAINT        The applicant complains under Article 6 para. 1 of the Convention that he did not receive a fair trial in the determination of his civil rights and obligations in that as a result of an administrative problem his appeal to the Council of State was not examined on the merits. He states that no evidence has been submitted from which it can be established that the letter dated 9 December 1993 was sent before 11 January 1994.   THE LAW        The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that in the administrative proceedings at issue he did not receive a fair trial.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads:        "In the determination of his civil rights and obligations      ... everyone is entitled to a fair ... hearing ... by a ...      tribunal established by law..."        The Commission recalls that the obligation under Article 26 (Art. 26) of the Convention to exhaust domestic remedies also requires an applicant to respect the procedural rules attached to a remedy. Domestic remedies have not been exhausted when an appeal is not admitted because of a procedural mistake or omission by an appellant (cf. No. 21782/93, Dec. 26.6.95, D.R. 82 p. 5).        However, the Commission does not find it necessary to determine whether the domestic remedies have been exhausted as the application is in any event inadmissible for the reasons set out below.        The Commission notes that the proceedings at issue concerned the adoption of a zoning plan envisaging an extension of a cemetery on land belonging to the applicant and consequently changing the land use destination of part of the plot at issue. The Commission finds that these proceedings involved a determination of the applicant's civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court H.R., Oerlemans judgment of 27 November 1991, Series A no. 219, pp. 20-21, paras. 45-49).        As regards the question whether or not the Acting President of the Administrative Law Division correctly declared the applicant's appeal inadmissible and the Administrative Law Division correctly rejected the applicant's objection, the Commission recalls its constant case-law that it is not competent to examine alleged errors of fact or law committed by national courts, except where such errors might have involved a possible violation of the rights and freedoms set forth in the Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77-A, p. 81, 88).        The Commission notes that the applicant's first appeal to the Council of State was successful and that, in the Council of State's decision of 22 April 1993, the reimbursement was ordered of the appeal registration fee the applicant had apparently paid in connection with his first appeal to the Council of State.        The Commission further notes that the Provincial Executive, in its letter of 25 October 1993 in which the applicant was informed of the new decision, explicitly drew the applicant's attention to the requirement to pay an appeal fee in case he would wish to file an appeal and provided him with the necessary information to comply with this requirement.        Noting that in the course of the adversarial proceedings on his objection to the full bench of the Administrative Law Division, in which he was represented by a lawyer, the applicant was provided with ample opportunity, to state his case, the Commission cannot find that in this respect the proceedings at issue were unfair. Moreover, given the first appeal proceedings before the Council of State and the outcome thereof, and the contents of the letter of 25 October 1993, the applicant and his lawyer must be considered as having been aware of the formal statutory requirement to pay an appeal fee. In these circumstances, the Commission cannot find the respective decisions of the Acting President and the Administrative Law Division of the Council of State on the applicant's second appeal to be unreasonable or arbitrary.        As regards the requirement to pay an appeal fee as such, the Commission recalls that one of the elements of the right to a fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention is the right to a court. One of the aspects of the right to a court is the right of access to a court (cf. Eur. Court H.R., Deweer judgment of 27 February 1980, Series A no. 35, p. 25, para. 49; and Ashingdane judgment of 28 May 1985, Series A no. 93, p. 24, para. 55).        The right of access to court is, however, not absolute but may be subject to limitations. The Contracting Parties are not debarred from making regulations governing the access of litigants to an appellate court (cf. No. 8407/78, Dec. 6.5.80, D.R. 20, p. 179; and No. 11122/84, Dec. 2.12.85, D.R. 45, p. 246) and regulations concerning court registration fees undoubtedly serve the purpose of assuring a proper administration of justice (No. 14592/89, Dec. 13.12.89, unpublished).        Given the limited amount of the fee, and the possibilities of exemption or reduction and the fact that the fee may be reimbursed if so ordered, the Commission finds that the levying of the appeal fee at issue was in conformity with the criteria formulated in the Convention organs' case-law, and cannot be regarded as constituting an unacceptable obstacle to the lodging of an appeal with the Council of State.        It follows that the application is 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         (M.-T. SCHOEPFER)                        (H. DANELIUS)