POLMAN v. THE NETHERLANDS
Inadmissible
Gaukur Jörundsson
The applicant, Mr Machiel J. Polman, is a Netherlands national, who was born in 1958 and lives in Arnhem. He is represented before the Court by Mr J.H. Sassen, a lawyer practising in Arnhem. The facts of the case, as submitted by the parties, may be summarised as follows. On 21 December 1995 the applicant’s ex-wife requested the Regional Court (arrondissementsrechtbank) of Arnhem to establish a maintenance arrangement (alimentatievoorziening) for herself and the two children born of their marriage. The Regional Court acceded to this request and ordered the applicant to pay monthly amounts of maintenance both to his children and his ex-wife. The applicant lodged an appeal with the Court of Appeal (gerechtshof) of Arnhem, which quashed the decision of the Regional Court and reduced the amount of the applicant’s maintenance obligations. As the applicant considered that the reasoning and calculations applied by the Court of Appeal were both incorrect and incomprehensible, he lodged an appeal on points of law (beroep in cassatie) with the Supreme Court (Hoge Raad). In his advisory opinion of 15 May 1998, one of the advocates-general (advocaten-generaal) of the Supreme Court recommended that the appeal be dismissed. A reply to this opinion was sent to the Supreme Court by counsel for the applicant on 28 May 1998. According to a stamp placed on the reply, it was received on the same day. The Supreme Court (civil-law division, Civiele Kamer) rejected the appeal on 4 September 1998. The decision (beschikking) stated that the applicant’s ex-wife had requested the Supreme Court to reject the appeal and that the advisory opinion of the advocate-general had also proposed that the appeal be dismissed. The decision did not mention that the applicant, or counsel on his behalf, had replied to that opinion or that account had been taken of that reply. In dismissing the appeal, the Supreme Court referred to Article 101a of the Judiciary (Organisation) Act (Wet op de Rechterlijke Organisatie) according to which the Supreme Court, if it considered that a complaint did not provide grounds for overturning the impugned decision and did not require answers to questions of law in the interests of the unity or development of the law, could, when giving reasons for its decision, limit itself to that finding. At the time relevant to the present case, Article 328 § 1 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, “CCP”) provided that neither the parties nor their representatives were allowed to address the court after the public prosecution service had presented its opinion (Article 328 § 1 in conjunction with Article 326 CCP). However, pursuant to Article 328 § 2, simple notes (eenvoudige aantekeningen) contesting facts, which the parties believed had been presented incorrectly by the public prosecution service, could be submitted to the President of the court by the parties or their representatives. In a judgment of 28 March 1997, the Supreme Court held that it was free to take cognisance of comments submitted in response to the opinion issued by the public prosecution service by one of the parties unless this ran counter to the requirements of due process, seen also in the light of the interests of the other party (Nederlandse Jurisprudentie (NJ) 1997, no. 581). A similar reasoning was adopted by the Supreme Court in a judgment of 12 September 1997 (NJ 1998, no. 687), in which it held, with reference to the Court’s judgment in the case of Vermeulen v. Belgium (judgment of 20 February 1996, Reports of Judgments and Decisions 1996-I), as follows: “... where Article 328 [of the Code of Civil Procedure] prevents parties from responding to the advisory opinion of the public prosecution service as they see fit, [this provision] should be deemed inapplicable as being incompatible with the provisions of Article 6 of the Convention, as interpreted in the case-law of the European Court of Human Rights (...). No restrictions other than those arising from due process, for instance in connection with the interests of the other party, apply to this document [i.e. the reply to the advisory opinion of the public prosecution service].” In order to observe the principle of due process, the Supreme Court allowed a period of two weeks for the submission of the response to the advisory opinion of the public prosecution service. On 1 January 2002 an amended Article 44 CCP entered into force, paragraph 3 of which gives parties the right to submit written comments in reply to the advisory opinion issued by the Procurator-General of the Supreme Court within two weeks of the transmission of the advisory opinion to them. At the time of the decision in the present case, September 1998, the general practice of the Supreme Court was to mention in its judgment or decision that a reply to the advisory opinion had been submitted. This was established as general practice in an internal decision (intern besluit) of the civil-law division of the Supreme Court of 25 June 1992, but the practice existed even before that time. The internal decision was not published.