EHRM, 15-03-2016, nr. 39966/09

On 28 January 2004 UWV gave a decision reducing the applicant's WAO benefits with retroactive effect. On 3 March 2004 UWV gave a second decision ordering the applicant to repay the excess.

The applicant lodged objections (bezwaar) against both decisions. As relevant to the case before the Court, the applicant argued that as from 1999 he had kept the competent authorities informed of developments as they occurred, withholding no information, and invoked the arrangement which he had agreed with Mr G. He named Mr S. as a witness.

Having held a hearing on 11 January 2006, UWV gave a decision on 31 January 2006 dismissing the applicant's objections. It found that the applicant could reasonably have been aware that the total of his additional income — the sum of his salary and the profits of the limited liability company — was too high for him to be entitled to the full amount of his social-security benefits. The alleged arrangement to the contrary was not reflected in the case file, and in any case, whatever statements had been made (assuming that any had been made at all) had been made by a person lacking the requisite competence and could not bind UWV.

The applicant lodged an appeal (beroep) with the Roermond Regional Court (rechtbank). As relevant to the case before the Court, he complained about UWV's failure to question Mr G. and Mr S., which in his submission reflected a lack of due care affecting the quality of the investigation. He also submitted that Mr G. had acted within his competence in making the agreement alleged.

Having held a hearing on 30 August 2006, the Regional Court gave judgment on 21 November 2006 dismissing the applicant's appeal. Its reasoning included the following:

The applicant lodged a further appeal (hoger beroep) with the Central Appeals Tribunal (Centrale Raad van Beroep). As relevant to the case before the Court, he again complained in his written submissions about UWV's failure to hear Mr G. and Mr S. as witnesses. He asked for them both to be heard as a witness in order to prove the existence of the agreement. He also prayed in aid his acquittal by the 's‑Hertogenbosch Court of Appeal, which had been given in the meantime (see paragraph 22 below). He did not, however, himself summon Mr G. and Mr S. as witnesses by registered letter or bailiff's writ.

The Central Appeals Tribunal held a hearing on 8 August 2008. The applicant did not bring Mr G. and Mr S. along but restated his request to have them heard as witnesses. The Central Appeals Tribunal decided to reopen its examination of the facts of the case in order to put an additional question to UWV. UWV replied to the Central Appeals Tribunal's question in writing. The applicant and UWV waived the right to a further hearing.

The Central Appeals Tribunal gave judgment on 30 January 2009 dismissing the further appeal without having heard any witnesses. Its reasoning included the following:

In response to a question by the Court, the applicant acknowledged that he had made no attempt to summon Mr G. and Mr S. himself or bring them along to the hearing of either the Regional Court or the Central Appeals Tribunal, as permitted by section 8:60(4) of the General Administrative Law Act (Algemene wet bestuursrecht; see paragraph 25 below).

The Government submitted that the applicant had failed to exhaust the available domestic remedies. They relied on section 8:60 of the General Administrative Law Act, in accordance with which the invitations extended to the applicant to attend the hearings of the Regional Court and the Central Appeals Tribunal had included the notification that he could bring witnesses or summon them by registered letter or bailiff's writ. They drew attention to domestic case-law (see paragraphs 26 and 27 above) from which it followed that the domestic administrative tribunals were not entitled to refuse to hear witnesses summoned or brought along by a party unless persuaded that their evidence was in any case irrelevant, and had to give reasons for any such refusal.

Despite being allowed to do so, the applicant had not himself summoned or brought along any witnesses. In addition, the applicant had had the opportunity to ask for a second hearing to which he could have brought or summoned his witnesses but had not done so.

Moreover, the Central Appeals Tribunal, at its hearing, had asked the applicant why he had not called Mr G. as a witness. The applicant had replied that he had considered doing so but had opted to leave it to the tribunal to decide whether Mr G. should be summoned or not.

The applicant pointed out that, pursuant to section 8:60(1) of the General Administrative Law Act, witnesses were under an actual obligation to appear only if summoned by the administrative tribunal itself. As to his decision not to ask for a second hearing before the Central Appeals Tribunal, the applicant submitted that the examination of the case had been reopened to put a specific question to UWV; this had no bearing on the applicants' offer to prove his allegations by means of the evidence to be given by the witness Mr G., which offer still stood.

The Government restate this objection as part of their argument on the merits of the case. The Court therefore joins it to the merits.

The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible, without prejudice to the decision ultimately to be taken on the Government's preliminary objection of non-exhaustion of domestic remedies.

It is not in dispute that Article 6 of the Convention is applicable under its civil head, and the Court so finds.

The Government asked the Court to dismiss the applicant's complaints as unfounded. They submitted that the applicant had in fact had sufficient opportunity to have the witnesses of his choice heard by the competent domestic tribunals. The applicant disputed this.

The arguments of the parties on this point, as they relate to the merits of the case, are identical in their essentials to their arguments under the head of admissibility of the application.

It is the Court's understanding that the applicant offered to prove the existence of the agreement, should the Central Appeals Tribunal so require, by means of witness evidence.

The Court notes that Netherlands administrative tribunals have a wide discretion in deciding whether to hear witnesses, being empowered but not obliged to order witnesses to appear before them but retaining the freedom not to hear witnesses brought before them on the initiative of a party (sections 8:60(1) and 8:63(2) of the General Administrative Law Act; see paragraph 24 above).

In view of the consistent refusal of the tribunals at both levels of jurisdiction to grant the applicant's urgent and repeated requests to summon Mr G. and Mr S. as witnesses, in the case of the Central Appeals Tribunal despite the acquittal given more than a year before its hearing (see paragraphs 15 and 22 above), the Court cannot find beyond doubt that either the Regional Court or the Central Appeals Tribunal would have agreed to hear them if the applicant had succeeded in obtaining their attendance himself.

It further appears that the Central Appeals Tribunal reopened its examination of the facts of the case in order to put a specific question to UWV. Neither party has suggested that this question was related to the matter now before the Court. The applicant having requested the hearing of witnesses before the Central Appeals Tribunal both in his written submissions and at the hearing, the Court is not persuaded that there would have been any point in his raising the matter afresh at a second hearing organised to discuss a separate factual issue.

In the circumstances thus set out, the Court cannot find that the applicant failed to make use of an opportunity to have a competent tribunal hear the witnesses on whose evidence he wished to rely. It must therefore be found that the applicant has exhausted the available effective domestic remedies as required by Article 35 § 1 of the Convention. The Government's preliminary objection, which the Court had joined to the merits, is therefore dismissed.

The applicant submitted that however unlikely the Government might believe the oral agreement entered into between Mr G. on behalf of the competent social-security authority and himself on the other to be, it would, if proven, have had an ‘undeniably direct bearing’ on his benefits under the Labour Disablement Insurance Act. He based his complaint on the Central Appeals Tribunal's finding of fact that the existence of the agreement ‘[did] not appear from the case file and no other credible case for its existence [had] been made out’. He had actually wished to demonstrate the plausibility of the agreement precisely by hearing Mr G. and Mr S. The refusal of the administrative tribunals to let him do so had placed him at a substantial disadvantage vis-à-vis the social-security authority.

The Government considered it highly unlikely that the applicant was offered an agreement that would allow him to earn unlimited amounts over and above his benefits without his benefits being reduced as a result. In their submission, such agreements were never entered into; nor were they necessary, since sections 39a and 43a of the Labour Disablement Insurance Act already provided for the possibility that the condition of a person enjoying labour disablement benefits might deteriorate. There was thus already a safety net in place.

Moreover, the applicant must in reason have been aware that any income he might generate from his own work was likely to affect his benefits. Regardless of whether the applicant had received letters reminding him of this, which he denied, this followed from section 44 of the Labour Disablement Insurance Act, from which an oral agreement with an official of the competent social-security authority could not detract.

In actual fact, the Regional Court and the Central Appeals Tribunal had found the applicant's allegations of an oral agreement to lack credibility already because there was no documentary evidence to back it up. Nor was the existence of an agreement in the terms suggested by the applicant likely, since his entitlement to disablement benefits were determined solely by the statutory framework in place and therefore not by any agreement.

It could not make any difference that a different conclusion was reached by the criminal court. Criminal proceedings were, by their very nature, different from administrative proceedings: the presumption of innocence applied, and questions like criminal intent took on an importance which in administrative proceedings they had not. In contrast, in administrative proceedings it was for the party who stated a fact to prove it.

The Court has stated the applicable principles as follows:

Turning to the facts of the case, the Court notes that the applicant's case hinged on the factual allegation that an agreement supporting his position and binding on the social-security authority had been reached between him and Mr G.

The Government's argument, as relevant to the question remaining before the Court, is that whether or not such an agreement existed, the substance of the applicant's rights depended entirely on statute, to which an oral agreement could make no difference even if its existence were established.

For its part, the Court notes that the Central Appeals Tribunal did not dismiss the applicant's reliance on the oral agreement between him and Mr G. as irrelevant to its decision. Instead, it held that the existence of the agreement was unsubstantiated (see paragraph 17 above).

Although obviously social security entitlements are determined in accordance with legislation and policy rules, the Court cannot find that the Central Appeals Tribunal would have been prevented from deciding in the applicant's favour had the agreement been found to exist in the terms alleged. It is worth noting in this respect that the Government have not produced any domestic case-law that would support such a position. Already for this reason the Court considers that Article 6 § 1 required the Central Appeals Tribunal not to leave the applicant's offer to produce witness evidence unanswered.

The Court notes in addition that the 's‑Hertogenbosch Court of Appeal acquitted the applicant of fraud, finding that a plausible case for the existence of an agreement negotiated by the applicant with Mr G. had been made out (see paragraph 21 above). The Court, in agreement with the Government, recognises that the test applied to evidence in criminal proceedings may legitimately differ from that applied in administrative proceedings. Nonetheless, the significance of the judgment of acquittal by the 's‑Hertogenbosch Court of Appeal and the reasoning on which it is based is such that the decision of the Central Appeals Tribunal to ignore it called for an explanation.

The Court finds that the failure by the Central Appeals Tribunal to accede to the applicant's request to hear Mr G. and Mr S. as witnesses placed the applicant under a disadvantage vis-à-vis his opponent. There has, for that reason, been a violation of Article 6 § 1 of the Convention.