Sevgi CUBAN v the Netherlands - 31103/06 [2010] ECHR 917 (18 May 2010)

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The European Court of Human Rights (Third Section), sitting on 18 May 2010 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

Having regard to the unilateral declaration submitted by the respondent Government on 19 May 2009, requesting the Court to strike the application out of the list of cases and the applicant's reply to that declaration,

1. The applicant, Ms Sevgi Çuban, is a Turkish national who was born in 1953 and lives in Mersin, Turkey. The Dutch Government (“the Government”) are represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.

2. The facts of the case, as submitted by the parties, may be summarised as follows.

3. The applicant is the widow of Mr İbrahim Çuban, who died in 1998. By reason of his employment in the Netherlands, the late husband was insured under the General Child Care Benefits Act (Algemene Kinderbijslagwet).

4. After the death of her husband, the Social Insurance Bank (Sociale Verzekeringsbank; hereafter “SVB”) informed the applicant on 7 February 2000 that she no longer qualified for child care benefits from the third quarter of 1998 onwards, due to the fact that she was in receipt of benefits under a Turkish scheme.

5. On 21 March 2000 the applicant filed an objection (bezwaar) against this decision with the SVB. The objection was rejected by the SVB on 13 June 2000. The applicant then filed an appeal with the Amsterdam Regional Court (arrondissementsrechtbank) on 1 August 2000. The Regional Court upheld the appeal on 13 April 2001 and ordered the SVB to take a new decision on the applicant's objection. The SVB's new decision was taken on 14 December 2001; it again found the applicant ineligible for child care benefits. On 7 August 2002 the applicant filed an appeal with the Amsterdam Regional Court against this latest decision.

6. On 23 September 2003 the Regional Court partially allowed the applicant's appeal but upheld the legal effects of the SVB's decision.

7. On 20 October 2003, the applicant filed an appeal against this judgment with the Central Appeals Tribunal (Centrale Raad van Beroep). The Central Appeals Tribunal acknowledged receipt of the appeal on 27 October 2003 and, after receiving a letter from the applicant on 1 June 2004 in which she requested a decision “within the shortest time”, notified the applicant on 2 July 2004 that due to its pending case load, no examination of the appeal was envisaged in the near future. On 10 September 2004 the applicant complained to the Central Appeals Tribunal of the duration of the proceedings, to which the Tribunal replied that no indication could be given as to how long the appeal proceedings would take.

8. The Central Appeals Tribunal rendered its judgment on 8 December 2006, in which it upheld the applicant's appeal and ordered the SVB to take a new decision on the applicant's original objection of 21 March 2000.

9. The applicant complained under Article 6 § 1 of the Convention about the length of the administrative proceedings.

10. The Court notes that, in a letter of 19 May 2009, the Government requested the Court to strike the application out of its list of cases 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:

“... the Government of the Netherlands hereby wishes to express – by way of unilateral declaration – its acknowledgment that the length of the 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. Consequently, the Government is prepared to pay the applicant an amount of € 4,500 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.

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.”

11. In a letter of 26 June 2006 the applicant informed the Court that she did not agree that the Government's unilateral declaration constituted a reason justifying the striking out of the case. She indicated that the Government's offer would not cover her pecuniary and non-pecuniary grievances.

12. 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.”

“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.”

13. In deciding whether or not it should strike 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).

14. 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. 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.

15. 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 4,500 Euros (EUR) in respect of non-pecuniary damage incurred by those excessively lengthy proceedings, as an undertaking to pay that sum to the applicant in the event of the Court's striking the application out of its list. For its part, the Court considers 4,500 EUR in respect of non pecuniary damage to be an acceptable sum in this case (see e.g. Voorhuis v. the Netherlands (dec.), no. 28692/06, 3 March 2009 and Mol v. the Netherlands (dec.), no.10470/07, 16 June 2009).

16. 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 the application.

17. Accordingly, the Court considers that it is no longer justified to continue the examination of the application.

18. The Court observes that the Government, in their letter of 19 May 2009, offered to pay the costs incurred by the applicant for legal representation insofar as they were specified and reasonable as to quantum.

19. It is further noted that the applicant conducted proceedings before the Court on her own behalf and did not obtain legal representation. In any event the Court notes that, despite instructions to do so, the applicant has neglected to submit any specification of the amounts quoted by her as costs incurred in the present proceedings.

20. 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).

21. Accordingly, considering that the claims made by the applicant are not supported by invoices or other documentation, the Court sees no grounds to award the applicant any sum under this head.

1. Takes note of the terms of the respondent Government's declaration, and of the undertakings referred to therein, relating to the complaint under Article 6 § 1 of the Convention about the length of the proceedings;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Sevgi CUBAN v the Netherlands - 31103/06 [2010] ECHR 917 (18 May 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/917.html Cite as: [2010] ECHR 917