by M.C.E.A. VOORHUIS
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 3 March 2009 as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra, judges,
and Stanley Naismith, Deputy Section Registrar,
Having regard to the above application lodged on 2 July 2006,
Having regard to the unilateral declaration submitted by the respondent Government on 18 September 2008 requesting the Court to strike the application out of the list of cases and the applicant's reply to that declaration,
Having deliberated, decides as follows:
1. The applicant, Ms M.C.E.A. Voorhuis, is a Dutch national who was born in 1961 and lives in Bangkok, the Kingdom of Thailand. After notice of the present application was given to the respondent Government on 23 May 2008 (Rule 54 § 2 b of the Rules of Court), she has been represented before the Court by Mr A. ten Veen, a lawyer practising in Amsterdam. The Dutch Government (“the Government”) are represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant's divorce was pronounced on 12 February 1997. Proceedings also took place concerning the division of the matrimonial property. The property comprised a number of valuable assets, such as the matrimonial home, bank accounts, a sports car, jewellery and, most contentiously, the former husband's life insurance. The applicant and her former husband differed in their opinion as to the percentage of deferred tax receivable (latente belastingvordering) that was to be deducted from the value of the life insurance before it could be divided equally between the spouses.
4. On 19 December 1996 the applicant had already summoned her husband before a Regional Court (arrondissementsrechtbank) in the Netherlands to claim her share of the matrimonial property.
5. In a first interlocutory judgment (tussenvonnis) of 4 March 1998, the Amsterdam Regional Court ordered the parties' appearance in person (comparitie van partijen) at a hearing scheduled for 27 April 1998. After the parties' appearance in person, the court adjourned the hearing until 27 May 1998.
6. On 13 October 1999, by means of a second interlocutory judgment, the Regional Court ordered the parties to submit further documents and adduce further evidence. The hearing was adjourned until 1 December 1999.
7. On 1 November 2000 the Regional Court, in its third interlocutory judgment, allowed the applicant's former husband to provide further evidence and accordingly set a peremptory date, 29 November 2000, for witness examination.
8. The witness examination was held on 26 February 2001 before the Regional Court and the hearing was then adjourned until 7 March 2001, the peremptory date set for rendering judgment.
9. On 12 September 2001 the Regional Court rendered its fourth interlocutory judgment and set 10 October 2001 as a new peremptory date by which the parties should have submitted further documents.
10. On 17 January 2002 the applicant's lawyer contacted a judge of the Regional Court by e-mail, with a request that a final judgment be rendered. The date for final judgment had, at that moment, just been postponed from 9 January 2002 to 6 February 2002. The lawyer stated in her e-mail that the initial request for a final judgment to be rendered had already been made by the parties on 10 October 2001 and that the rendering of a final judgment had already been stayed several times since the initial request. The judge allegedly did not reply to the lawyer's e-mail. Instead, the date for final judgment was postponed once again until 6 March 2002. The applicant's lawyer therefore contacted the court anew on 20 February 2002, with the same request to expedite the proceedings.
11. On 6 March 2002 the Regional Court rendered its final judgment, finding against the applicant.
12. On 3 June 2002 the applicant lodged an appeal with the Amsterdam Court of Appeal (gerechtshof), which, on 19 February 2004, quashed the decision of the Regional Court and found in favour of the applicant.
13. On 10 March 2004 the applicant requested the Court of Appeal to render a correcting judgment (herstelarrest), as the original judgment appeared to contain errors in the calculation of certain figures.
14. On 29 April 2004 the Court of Appeal rendered a correcting judgment.
15. On 19 May 2004 an appeal in cassation was lodged before the Supreme Court (Hoge Raad) by the applicant's former husband. Since the applicant did not believe her husband stood any chance of success in the cassation proceedings, she did not submit anything in writing to set out her position, nor did she attend the hearing.
16. On 24 February 2006 the Supreme Court quashed the Court of Appeal's judgment, deciding to settle the matter itself rather than referring the case back to another Court of Appeal, and found in favour of the applicant's former husband.
17. On 4 May 2006 the applicant's lawyer requested a correcting judgment from the Supreme Court, since it had failed to incorporate in its judgment the correcting judgment of the Court of Appeal dated 29 April 2004.
18. On 1 September 2006 the Supreme Court rendered a correcting judgment.
19. The applicant complained under Articles 6 § 1, 8 and 13 of the Convention about the length of the proceedings, about their unfairness, about the suffering the length of the proceedings had caused to her private and family life, and about the lack of an effective remedy under Dutch civil law in this respect.
20. As regards the alleged unfairness of the proceedings, the applicant complained that the Supreme Court had departed from its previous case law, that it had dealt with the matter itself rather than remitting the case to a Court of Appeal, that the domestic courts had misapplied Dutch law and that the composition of the domestic courts had changed during the proceedings.
A. Alleged violations of Article 6 § 1 (length of proceedings) and Article 13 of the Convention
1. Article 37 § 1 (c) of the Convention
21. As regards the complaints under Article 6 § 1 of the Convention as regards the excessive length of the proceedings as a whole and Article 13 of the Convention as regards the lack of an effective remedy under Dutch law in this respect, the Court notes that, in a letter of 18 September 2008, the Government requested the Court to strike out this part of the application in accordance with Article 37 of the Convention on the basis of a unilateral declaration by the Government. In its relevant part, this letter reads:
“Direct contacts between the parties in the past weeks with a view to securing a friendly settlement of the matter have remained unsuccessful. That being the case, the Government hereby wishes to express – by way of unilateral declaration – its acknowledgment that the length of the civil proceedings in which the applicant was involved was not in conformity with the reasonable time requirement set out in Article 6, paragraph 1, of the Convention. Also, the Government acknowledges that the applicant did not have at her disposal an effective remedy as required by Article 13 of the Convention.
Consequently, the Government is prepared to pay the applicant an amount of € 5,000 for any immaterial damage incurred. The Government is furthermore prepared to pay the costs for legal representation insofar as they are specified and reasonable as to quantum.
Finally, I wish to inform the Court that draft legislation instituting an effective remedy against unreasonable length of proceedings is currently being prepared under the responsibility of the Minister of Justice.
The Government would suggest that the above information might be accepted by the Court as 'any other reason' justifying the striking out of the case of the Court's list of cases, as referred to in Article 37 § 1c of the Convention.”
22. The Court further notes that, in her letter of 17 November 2008, the applicant informed the Court that she wished the examination of the case to be continued, from which the Court understands that she opposes the Government's request.
23. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application.”
Article 37 § 1 in fine states :
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols thereto so requires.”
24. In deciding whether or not it should strike this part of the application out of its list, the Court will have regard to the criteria emerging from its case-law (see Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, §§ 75 77, ECHR 2003-VI; and also Haran v. Turkey (striking out), no. 25754/94, 26 March 2002; Akman v. Turkey (striking out), no. 37453/97, ECHR 2001-VI; Meriakri v. Moldova (striking out), no. 53487/99, 1 March 2005; Van Houten v. the Netherlands (striking out), no. 25149/03, 29 September 2005; and WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007).
25. The Court observes that the Government's declaration contains an acknowledgement that the length of the domestic proceedings in the applicant's case exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention and that Dutch law did not provide the applicant with an effective remedy as required by Article 13. The Court has specified in a large number of judgments and decisions the nature and extent of the obligations which arise for the respondent State as regards the determination of “civil rights and obligations” within a “reasonable time”, and finds the Government's admission to be in keeping with the applicable jurisprudential standards. Furthermore, the Court notes that the Government have expressly stated that they are in the process of drafting legislation which is aimed at providing an effective remedy for the litigious complaint.
26. The Court interprets the Government's acknowledgement of the excessive length of the proceedings in which the applicant was involved and, consequently, their expressed willingness to pay to the applicant a sum of 5,000 Euros (EUR) in respect of non-pecuniary damage incurred by those excessively lengthy proceedings, as an undertaking to pay those sums to the applicant in the event of the Court's striking this part of the application out of its list. For its part, the Court considers EUR 5,000 in respect of non pecuniary damage to be an acceptable sum in this case (see Scordino v. Italy [GC], no. 36813/97, 29 March 2006; Riccardi Pizzati v. Italy [GC], no. 62361/00, 29 March 2006; Musci v. Italy [GC], no. 64699/01, 29 March 2006; Giuseppe Mostacciuolo v. Italy (nos. 1 and 2) [GC], nos. 64705/01 and 65102/01, 29 March 2006; Cocchiarella v. Italy [GC], no. 64886/01, 29 March 2006; Apicella v. Italy [GC], no. 64890/01, 29 March 2006; Ernestina Zullo v. Italy [GC], no. 64897/01, 29 March 2006; and Guiseppina and Orestina Procaccini v. Italy [GC], no. 65075/01, 29 March 2006).
27. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of this part of the application.
28. Accordingly, the Court considers that it is no longer justified to continue the examination of this part of the application.
29. The applicant submitted that the legal costs incurred by her in the proceedings before the Court amounted to EUR 2,120. An invoice from the applicant's lawyer, annexed to her letter to the Court, requested payment in an amount of EUR 2,000 for legal representation and of EUR 120 for administrative costs.
30. The Government did not wish to make any comments with regard to the applicant's claim for reimbursement of the costs for representation and referred to the Court's decision in this respect.
31. The Court reiterates that the general principles governing reimbursement of costs under Rule 43 § 4 are essentially the same as under Article 41 of the Convention (see Pisano v. Italy (striking out) [GC], no. 36732/97, §§ 53-54, 24 October 2002). In other words, in order to be reimbursed, the costs must relate to the alleged violation or violations, have been actually and necessarily incurred and be reasonable as to quantum. Furthermore, itemised particulars of any claim must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part (see, as a recent authority, Kovačić and Others v. Slovenia (striking out) [GC], nos. 44574/98, 45133/98 and 48316/99, § 276, 3 October 2008).
32. The Court notes, firstly, that the applicant was not represented at the initial stages of the Strasbourg proceedings (see paragraph 1 above). Secondly, it also notes the lack of complexity of these proceedings and in particular the fact that it has decided to strike the case out of its list at a relatively early stage. Although it accepts that costs to a certain amount will have been actually and necessarily incurred, the Court further observes that the invoice submitted by the applicant sets out neither the hourly rate charged by her lawyer nor the number of hours of work done by him. In these circumstances, the Court considers it reasonable to award the applicant EUR 800 for costs and expenses. To this amount is to be added any tax that may be chargeable to the applicant. As to default interest, the Court considers it appropriate that it should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
B. Alleged violations of Article 6 § 1 (fairness) and Article 8 of the Convention
33. The applicant complained under Article 6 § 1 and Article 8 of the Convention that the proceedings were unfair and that their length caused suffering to her private and family life. These provisions, in so far as relevant, provide as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 8 § 1
“1. Everyone has the right to respect for his private and family life ...
34. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
35. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
(a) that the respondent State is to pay the applicant EUR 800 (eight hundred euros), plus any tax that may be chargeable, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Stanley Naismith Josep Casadevall
Deputy Registrar President