EHRM, 11-02-2014, nr. 50494/13

Before the events complained of, the applicants variously held shares or subordinated bonds (the latter under diverse designations) issued by SNS REAAL N.V., a public limited company (naamloze vennootschap, ‘N.V.’) incorporated under Netherlands law, or one or more of its subsidiaries. The events complained of, which concern the expropriation of those shares and subordinated bonds, are set out in Stefania Adorisio and Others against the Netherlands and three other applications (dec), no. 47315/13, 14 January 2014. Appeals against the expropriation decision were dismissed by the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State) on 25 February 2013. Proceedings relating to compensation are currently pending before the Supreme Court (Hoge Raad).

On the Excel table submitted (paragraph 21 above), not all fields were completed as requested. Information required by Rule 47 § 1 to be given — the date of birth, or the nationality, or both — was still lacking in respect of 25 of the 55 persons listed.

A number of letters of authority were photocopies or printouts of faxes or scans which did not bear the original signature of the applicant (or in the case of a legal person, the original signature of a natural person competent to represent that legal person). These included eleven persons, among them Castrifon B.V. and De Turfmij B.V., both mentioned in the e-mail of the applicants' representative of 4 December 2013. Further letters of authority were signed in the original not by the applicant (or in the case of a legal person, a natural person competent to represent that legal person) but by an advocate (from a firm other than Mr Barkhuysen's) on the applicant's behalf. These included eight more of the persons remaining on the table. In respect of these nineteen persons, the application will not be examined because the requirements set out in Rule 45 have not been met (see paragraph 5 of the Practice direction on institution of proceedings, paragraph 4 above).

The Appendix to this decision lists the remaining 36 natural and legal persons listed on the Excel table as applicants.

Article 34 of the Convention provides as follows:

The first applicant, the association VEB NCVB, asked to be admitted as an applicant in three capacities: firstly, as an expropriated shareholder in its own right; secondly, ‘on behalf of’ 7,888 named natural and legal persons who were not themselves applicants; and thirdly, ‘as a promoter of the collective and general interest’ of 60,000 unnamed others (paragraph 19 above).

The Court has held that the concept of ‘victim’ within the meaning of Article 34 of the Convention must be interpreted autonomously and independently of domestic concepts such as those concerning the interest in taking proceedings or the capacity to do so. According to the Court's standing case-law, for an applicant to be able to claim that he or she is the victim of a violation of one or more of the rights and freedoms recognised by the Convention and its Protocols, there must be a sufficiently direct link between the applicant and the damage which he or she claims to have sustained as a result of the alleged violation (see, among other authorities, Association des amis de Saint-Raphaël et de Fréjus v. France (dec.), no. 45053/98, 29 February 2000, in respect of the applicant association; and Uitgeversmaatschappij De Telegraaf B.V. and Others v. the Netherlands (dec.), no. 39315/06, 18 May 2010, in respect of the applicants Nederlandse Vereniging van Journalisten (Netherlands Association of Journalists) and Nederlands Genootschap van Hoofdredacteuren (Netherlands Society of Editors-in-Chief)).

The Court has actually denied standing as applicants to non-governmental bodies set up with no other aim than to vindicate the rights of alleged victims (see Smits, Kleyn, Mettler Toledo B.V. et al., Raymakers, Vereniging Landelijk Overleg Betuweroute and Van Helden v. the Netherlands (dec.), nos. 39032/97, 39343/98, 39651/98, 43147/98, 46664/99 and 61707/00, 3 May 2001, in respect of the applicant Vereniging Landelijk Overleg Betuweroute, and Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), no. 65542/12, § 116, 11 June 2013, in respect of the applicant Stichting Mothers of Srebrenica); and even to non-governmental organisations whose very purpose was to defend human rights (see Van Melle and Others v. the Netherlands (dec.), no. 19221/08, 29 September 2009, in respect of the applicant Liga voor de Rechten van de Mens).

The Court considers, in the light of this case-law, that the first applicant can claim the status of ‘victim’ within the meaning of Article 34 of the Convention only in so far as its own interests are affected, that is, as the former owner of two shares in SNS REAAL N.V. expropriated in the course of the events complained of. For the remainder, the application in so far as brought by the first applicant is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

The applicants complain about the proceedings before the Administrative Jurisdiction Division of the Council of State. They rely on Article 6 § 1 of the Convention, which, in its relevant part, provides as follows:

Article 35 § 1 of the Convention provides as follows:

The final decision relevant to these complaints was that given by the Administrative Jurisdiction Division on 25 February 2013 (see paragraph 2 above). The six-month time-limit laid down in Article 35 § 1 of the Convention therefore came to an end on 25 August 2013.

The Court observes that the applicants' representative was informed by letter and e-mail of 12 August 2013 (see paragraphs 11 and 12 above) that the six-month time-limit laid down in Article 35 § 1 of the Convention, extended by the grace period granted at that time by paragraphs 4 and 5 of the said Practice direction, would end on 8 October 2013. This was confirmed to him by letter and fax of 20 September 2013 (see paragraph 14 above).

The application form was received by fax on 7 October 2013 and by post on 11 October 2013. In the absence of a postmark or other visible indication of a sending date earlier than 9 October 2013 (see paragraph 16 above), the Court cannot verify that the application form was posted on 8 October 2013 at the latest (see, among other authorities, Kemevuako v. the Netherlands (dec.), no. 65938/09, § 22, 1 June 2010, and Abdulrahman v. the Netherlands (dec.), no. 66994/12, 5 February 2013).

However that may be, the Court cannot ignore the fact that the applicants' representative submitted identifying information of the applicants in the required electronic format on 4 December 2013 at the earliest (see paragraph 19 above) — by e-mail, not on a CD-ROM or a memory stick as requested.

It is the duty of applicants, no less than Governments, to co-operate fully in the conduct of the proceedings and, in particular, to take such action within their power as the Court considers necessary for the proper administration of justice (Rule 44A of the Rules of Court). For present purposes, the implication is that it is the responsibility of the individual applicant to submit a properly completed application form and provide the Court with all the information required for processing the application in a timely manner.

In the instant case, the applicants were required to complete a table in a commercially available and extremely common electronic format and submit it on a physical medium, a CD-ROM or a memory stick. The Court takes the view that they could reasonably be expected to comply with the instructions given by its Registry.

The Registry's purpose in requiring the submission of the applicants' identifying information in a prescribed electronic format was to enable the applicants, who were expected — until the application was actually submitted — to be as many as 8,000, to be registered individually in the Court's administrative database. The technical means to simplify this task exist and can be presumed to be at the disposal of the applicants themselves if not their representative.

The time available, which under Article 35 § 1 of the Convention is six months from the date of the final domestic decision, would appear to have been adequate of itself. In addition, at the relevant time the Practice direction on the institution of proceedings vouchsafed a grace period which in the present case extended the time-limit by a further one month and twelve days.

In the circumstances, therefore, the Court finds that there is good cause to hold that the date of introduction of the application is 7 December 2013, the date on which the memory stick with the requested information was finally received at the Registry.

It follows that the complaints here in issue have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

All applicants complain in addition that they have been deprived of their possessions in violation of Article 1 of Protocol No. 1, which provides as follows:

They also complain that they have been denied an effective remedy in this respect, in violation of Article 13 of the Convention, which provides as follows:

The Court notes that proceedings relating to compensation are currently pending before the Supreme Court (see paragraph 2 above and Stefania Adorisio and Others against the Netherlands and three other applications (dec), cited above, § 48).

It follows that the applicants' complaints under this head are premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

Declares the application inadmissible.

Marialena Tsirli

Deputy Registrar

Josep Casadevall

President