VENEMA, VENEMA-HUITING and VENEMA proti Nizozemsku

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35731/97
by Dirk VENEMA, Wubbechien VENEMA-HUITING
and Kimberly VENEMA
against the Netherlands

The European Court of Human Rights, sitting on 29 January 2002 as a Chamber composed of

Mr J.-P. Costa, President,
Mr L. Loucaides,
Mr C. Bîrsan,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs W. Thomassen,
Mrs A. Mularoni, judges,

and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 24 July 1996 and registered on 23 April 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Dirk Venema, Wubbechien Venema-Huiting and Kimberly Venema, are Netherlands nationals, who were born in 1964, 1967 and 1994 respectively and live in Alphen aan den Rijn, the Netherlands. They were represented before the Court by Mr A.W.M. Willems, a lawyer practising in Amsterdam.

The respondent Government was represented by Mr R. Böcker and Ms J. Schukking, Agents for the Government of the Netherlands.

A. The circumstances of the case

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

The first and second applicants, Mr Dirk Venema and Mrs Wubbechien Venema-Huiting, are the parents of the third applicant, Kimberly Venema.

Kimberly was born on 14 February 1994. From May 1994 onwards Mr and Mrs Venema became aware that her breathing sometimes stopped and her heart raced. This led them to seek medical advice from, inter alia, doctors practising at Leiden University Hospital. Kimberly was taken into hospital for two periods, of fourteen days and six days respectively, in the course of July and August 1994.

The doctors found nothing physically wrong with Kimberly. They began to suspect that Kimberly was healthy but that Mrs Venema might be suffering from a psychological disturbance known as the Münchhausen by proxy syndrome.

The Münchhausen by proxy syndrome is a condition in which a parent of a young child, nearly always the mother, driven by a need of her own for attention, seeks superfluous medical assistance for her child. The parent may invent a disease or even cause the symptoms. In certain cases, for example if the child’s breathing is interfered with, the child’s life may be in danger.

At around this time Kimberly was referred to Curium, a children’s psychiatric clinic in Oegstgeest near Leiden.

In August 1994 the Leiden University Hospital doctors made their fears known to the Child Welfare Board (Raad voor de Kinderbescherming), who advised the doctors to provide adequate medical care and discuss their fears with Mr and Mrs Venema. The Venema family was kept under medical observation but the doctors did not discuss their suspicions with Mr and Mrs Venema.

On 1 December 1994 the Child Abuse Counselling Centre (Bureau Vertrouwensarts inzake Kindermishandeling) in The Hague telephoned the Child Welfare Board. A doctor connected to this centre stated that it was suspected that Mrs Venema was suffering from the Münchhausen by proxy syndrome. In spite of the medical care provided, the situation had not improved. The question arose whether to intervene. It was agreed that the Child Abuse Counselling Centre doctor would obtain more information with a view to informing the Child Welfare Board. It is not recorded that the doctor did so.

Kimberly was again taken into hospital on 14 December 1994, following an incident two days earlier.

A meeting took place on 20 December 1994 to discuss the case of Kimberly. Those taking part included the director of Curium, four doctors and two nurses connected to the Leiden University Hospital, the doctor connected to the Child Abuse Counselling Centre, the Venema family’s general practitioner, the deputy unit head of the Child Welfare Board and a specialised family help worker (gezinsverzorger). It was decided that the Leiden University Hospital and Curium would jointly submit a report to the Child Welfare Board. Mr and Mrs Venema were neither involved nor informed.

On 2 January 1995 the Child Welfare Board was provided by Curium with a first version of this report (hereinafter “the Curium/Leiden University Hospital report”). In response to questions received from the Child Welfare Board, the reporting parties made additions to it.

On 3 January 1995 Curium sent the revised version of the report to the Child Welfare Board. The report stated that they believed Kimberly’s life to be in danger and that urgent action was required. They were of the opinion that it was not possible to discuss the matter with Mr and Mrs Venema, there being a danger that they might react unpredictably.

On 4 January 1995 the Child Welfare Board applied by fax to the Juvenile Judge (Kinderrechter) of the Regional Court (Arrondissementsrechtbank) of The Hague for a supervision order (ondertoezichtstelling) and an order for Kimberly to be placed away from her family (uithuisplaatsing). The same day the Juvenile Judge issued a provisional supervision order (voorlopige ondertoezichtstelling), valid until 11 January 1995, pending a decision of a more permanent nature, at the same time ordering Kimberly to be placed away from her family. The Juvenile Judge did not hear Mr and Mrs Venema before coming to this decision. She scheduled a hearing for 10 January 1995.

The Government state that the Child Welfare Board wrote to Mr and Mrs Venema on 5 January 1995, enclosing with their letter the application for a provisional supervision order, the Curium/Leiden University Hospital report and several articles on the Münchhausen by proxy syndrome. The applicants state that they have not at any time received either the letter or any of the other documents mentioned.

On 6 January 1995 Mr and Mrs Venema arrived at Leiden University Hospital intending to pick Kimberly up and take her home with them. It was then that they learnt of the Juvenile Judge’s decisions of 4 January 1995. They were not allowed to see Kimberly.

Also on 6 January 1995 the Juvenile Judge issued an order, again without hearing Mr and Mrs Venema, for Kimberly to be taken to a foster home, the name and address of which was withheld from Mr and Mrs Venema. This order was carried out the same day.

Again on 6 January 1995 two of the doctors from Leiden University Hospital – a paediatrician and a child psychiatrist – and the investigating officer of the Child Welfare Board met with Mr and Mrs Venema to discuss the Curium/Leiden University Hospital report, the implications of a provisional supervision order and Kimberly’s placement in the hospital.

On 10 January 1995 the Juvenile Judge heard Mr and Mrs Venema in camera. Mr and Mrs Venema were assisted by a lawyer. A representative of the Child Welfare Board was also present. At the close of the hearing the Juvenile Judge decided that, given the expert opinions to the effect that Kimberly’s life appeared to be in danger, the provisional supervision order would have to remain in force but that a second opinion would be obtained as soon as possible from a psychiatrist and a child psychiatrist.

It can be inferred from the case-file that Mr and Mrs Venema were allowed to see Kimberly once every two weeks under an access arrangement, but no copy of the access order has been submitted.

The order of 6 January 1995 was transmitted to Mr and Mrs Venema on 20 January 1995.

The psychiatrist’s report was dated 27 January 1995. It concluded that there were no indications that Mr and Mrs Venema posed any danger to Kimberly. However, a paragraph which the psychiatrist added to this report on 3 February 1995, after discussions by telephone with the Child Welfare Board, stated that it “[could] not be entirely ruled out” that Mrs Venema was suffering from the Münchhausen by proxy syndrome, and recommended further examination.

The Child Welfare Board sent the psychiatrist’s report to Curium and Leiden University Hospital. Curium let it be known in response that it saw no reason to reconsider its point of view.

No appeal being possible at that time against a provisional supervision order (Article 940 § 1 of the Code of Civil procedure, as then in force), Mr and Mrs Venema appealed to the Court of Appeal (Gerechtshof) of The Hague on 9 February 1995 against the placement order only.

Mr and Mrs Venema submitted written statements made by their general practitioner (dated 8 February 1995) and Mrs Venema’s gynaecologist (dated 9 February 1995). These criticised the quality of the reporting by Curium and the Leiden University Hospital doctors and expressed doubts as to the validity of their diagnosis. They also noted that Mrs Venema had not shown any tendency to seek superfluous or clearly unnecessary medical attention.

Mr and Mrs Venema also submitted three separate statements (dated 17, 21 and 22 February 1995) of psychiatrists by whom they had had themselves examined, including two university professors. All were extremely critical of the diagnosis made by the Leiden University Hospital doctors. They concluded that Kimberly would be in no apparent danger if she were returned to her parents and recommended that this be done.

The child psychiatrist from whom an opinion was to be obtained pursuant to the order of the Juvenile Judge was approached by the Child Welfare Board on 16 February 1995.

On 25 February 1995 the Leiden University Hospital doctors elaborated the reasons for their suspicions as set out in their report of 3 January to the Child Welfare Board.

A second child, Jonathan, was born to Mr and Mrs Venema on 28 February 1995. The Child Welfare Board, aware that Mrs Venema was due to give birth, had on 14 February 1995 applied for a provisional supervision order aimed at the protection of the second child immediately after the birth, but had withdrawn this application on 16 February 1995.

The Court of Appeal held a hearing on 1 March 1995.

On 15 March 1995 the Court of Appeal dismissed the appeal. It found that the Child Welfare Board had had sufficient reason to approach the Juvenile Judge as it had done, and that the Juvenile Judge had had sufficient reason to give the orders in question. It would have been preferable, even so, to have involved the parents in the decision-making process beforehand, or at least at an earlier stage. As matters stood, the experts disagreed amongst themselves. Given the likelihood that the examinations ordered by the Juvenile Judge would be brought to a conclusion shortly and that the Juvenile Judge would rescind the placement order immediately if the outcome was favourable to Mr and Mrs Venema, the Court of Appeal decided to confirm the decision of the Juvenile Judge.

It appears that around 10 April 1995 the access arrangement was modified in that Mr and Mrs Venema were then allowed to see Kimberly once every week instead of once a fortnight. The Government state that the initiative for this change was taken by the Juvenile Judge.

Mr and Mrs Venema lodged an appeal on points of law (cassatieberoep) against the decision of the Court of Appeal to the Supreme Court (Hoge Raad) on 24 April 1995.

The child psychiatrist appointed as an expert pursuant to the order of the Juvenile Judge submitted his opinion on 19 May 1995. It contained extensive reports of medical and other examinations and discussions with the applicants, character witnesses and doctors who had treated Kimberly on several occasions after she had stopped breathing. Appended to the opinion were psychiatric reports in standard form on Mr and Mrs Venema, finding no sign of any psychiatric disorder, and a report by two Rotterdam University Hospital paediatricians finding a physical explanation for Kimberly’s arrested breathing but no sign of maltreatment. The opinion noted that Kimberly’s normal development had been impaired by the proceedings and that Mr and Mrs Venema had found the entire episode profoundly distressing. It concluded without reservation that Kimberly should be handed back to her parents.

On 22 May 1995, following a hearing in camera, the Juvenile Judge rescinded the provisional supervision order and the placement order, at the same time refusing to replace the provisional supervision order with a permanent one. Kimberly was handed back to Mr and Mrs Venema.

The Supreme Court not yet having given judgment, Mr and Mrs Venema submitted on 29 August 1995 that they nonetheless had a continued interest in obtaining a decision of that court as to the legality of the measures in question. They stated, in particular, that a finding in their favour would provide them with some form of moral satisfaction; would enable them to take action in tort for damages against the State, Leiden University Hospital and Curium; would prevent further interference with their family life, and would obviate the need for the applicants to take further civil proceedings.

The Advocate General (advocaat-generaal) to the Supreme Court submitted an advisory opinion on 20 December 1995. He expressed the view that the appeal was inadmissible as Mr and Mrs Venema no longer had any legal interest in the outcome of the proceedings. The possible satisfaction of being found in the right was not in itself a sufficient interest. Nor was the possibility of a further civil action for damages, it being by no means obvious that such an action would in fact be made possible by a decision of the Supreme Court. The possibility of further interference with the applicants’ family life in the future was not relevant to the case before the Supreme Court. The question whether the State, Leiden University Hospital or Curium had committed a tort against the applicants was outside the scope of the case before the Supreme Court, so that the need, if any, for further civil proceedings could not be considered relevant either. Turning to the merits of the case, the Advocate General expressed the opinion that the decision of the Court of Appeal was based on adequate legal grounds and sufficiently reasoned.

On 26 January 1996 the Supreme Court gave judgment declaring Mr and Mrs Venema’s appeal on points of law inadmissible for lack of interest. It was held that the interests stated were insufficient.

The case received a certain measure of publicity. Questions in Parliament and a complaint to the Deputy Minister of Justice (Staatssecretaris van Justitie), lodged on behalf of Mr and Mrs Venema by the Legal Proceedings Monitoring Group (Vereniging Voor Nader Onderzoek Rechtspleging, “VVNOR”), led the Deputy Minister to order an official inquiry into the way the Child Welfare Board had handled the affair.

The report of the official inquiry was published on 25 July 1996. Its conclusions, in so far as relevant, may be summarised as follows:

• In deciding to intervene without the prior involvement of Mr and Mrs Venema, the Child Welfare Board had no doubt sought in good faith to protect Kimberly’s interests, but it might with advantage “have displayed more creativity in seeking a solution that did more justice to the parents’ interests”.
• Given the Child Welfare Board’s own lack of psychiatric expertise and the fact that the Münchhausen by proxy syndrome is difficult to diagnose, the use which the Child Welfare Board made of a variety of contradictory reports had not been “unacceptable” although it might have assessed them in a more critical fashion.
• A lack of co-ordination within the Child Welfare Board had delayed the involvement of the child psychiatrist, who was only approached on 16 February 1995. This was regrettable because otherwise the reports might have been complete by the time of the birth of Jonathan.
• The Child Welfare Board’s advice to the Juvenile Judge might have been more complete. As a minimum, the Child Welfare Board could reasonably have been expected to justify the absence of any inquiry of its own and to give more extensive reasons for the choices it made.

• The Child Welfare Board’s case-file management and internal reporting were deficient: documents explaining the background of its decisions were not contained in the file.

• The transmission of the report of the psychiatrist to the Leiden University Hospital doctors and Curium had constituted a breach of confidence vis-à-vis Mr and Mrs Venema since, after they had first reported Kimberly’s case to the Child Welfare Board, their involvement had ended. Curium in particular had been treated virtually as an external expert body.
• It appeared that Mr and Mrs Venema had not been summoned in writing to the hearing of the Juvenile Judge on 10 January 1995, notwithstanding the Child Welfare Board’s statement to the contrary, but that this was due to a misunderstanding between the Registry of the Regional Court and the Board and could not be blamed on the latter.

The report went on to formulate recommendations aimed at preventing the recurrence of cases such as the present.

According to the Government, the report led the Deputy Minister to conclude that the Child Welfare Board had “acted lawfully and fulfilled its statutory responsibility”, although its internal working procedures deserved some criticism. It had been right for the Board to take firm action and, in view of the nature and seriousness of the complaint, to rely on the expertise of third parties.

B. Relevant domestic law

1. Supervision orders and provisional supervision orders

At the relevant time, Article 1:254 of the Civil Code (Burgerlijk Wetboek, hereinafter the “CC”) provided as follows:

“1. If a child is growing up under such conditions that it is threatened with moral or physical destruction (zedelijke of lichamelijke ondergang), the Juvenile Judge may order it to be placed under supervision.

2. He may do so on the application of one of the parents, one of the relatives by marriage or blood up to and including the fourth degree of consanguinity, the Child Welfare Board or the public prosecution service (openbaar ministerie).”

Article 1:257 of the CC provided as follows:

“The Juvenile Judge may place the child under supervision provisionally pending an investigation. A provisional supervision order shall remain in force until a final and binding decision (gewijsde) on supervision is made.”

Article 258 of the CC, in relevant part, provided as follows:

“2. The Juvenile Judge may lift the supervision order at any time. ...”

2. Placement of a child away from its family

At the relevant time, Article 1:260 of the CC provided, in relevant part, as follows:

“4. A child shall only be placed away from its family under ... [Article] 1:263 [of this Code] ...”

Article 1:263 of the CC provided, in relevant part:

“1. If necessary in the interests of the child’s care and upbringing, the Juvenile Judge shall order the child to be taken into an institution that qualifies for funding under the Juveniles (Assistance) Act (Wet op de Jeugdhulpverlening) or elsewhere. ...”

3. Procedure as regards supervision orders, provisional supervision orders and the placement of a child away from its family

At the relevant time, Article 940 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, hereinafter the “CCP”) provided as follows:

“1. No appeal or objection (geenerlei voorziening) is allowed against a provisional supervision order under Article 1:257 of the CC.

2. Such a decision can be given without any prior hearing.”

Article 945 of the CCP, in relevant part, provided as follows:

“3. Each of the parents may appeal against the decisions referred to in this Article [sc. decisions under Article 1:263 of the CC].”

COMPLAINTS

The applicants allege a violation of Article 8 of the Convention in that the separation of Kimberly from her parents was not justified on medical grounds and was not discontinued as soon as this became apparent, and in that Kimberly’s parents were not involved in the decision-making process that led to the separation.

They allege a violation of Article 6 § 1 of the Convention in that Kimberly’s parents were not heard before the decision was taken, and in that the Supreme Court failed to rule on their appeal on points of law.

THE LAW

Article 8 of the Convention provides insofar as relevant:

“1. Everyone has the right to respect for his private and family life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”

1. The applicability of Article 8 has not been called into question. Nor is it disputed that there has been “interference” with the applicants’ rights guaranteed under it, that this interference was “in accordance with the law” and that it pursued a “legitimate aim”.

The applicants’ first complaint is that the competent authorities took insufficient care to ensure that the information which led them to remove Kimberly from her parents was correct and complete, that they failed to discontinue the measure as soon as it became apparent that the measure ordered was uncalled for, and that they did not involve the parents before arriving at a decision.

The Government argued that the initial report came from medical institutions of repute, which were eminently qualified to deal with the kind of problem that prompted the report. The Child Welfare Board had therefore been right to take the warning it contained very seriously indeed. This was all the more so since, already on 1 December 1994, the doctor at the Child Abuse Center had telephoned the Child Welfare Board about the matter.

In addition, the Child Welfare Board had not acted in haste: it had discussed the case on various occasions, and had in fact sought further information from the drafters of the report before taking action.

The application submitted by the Child Welfare Board to the Juvenile Judge had contained a detailed statement of reasons.

The Juvenile Judge had taken great care in dealing with the case. She had scheduled a hearing at short notice immediately upon ordering the emergency measure. Moreover, the Juvenile Judge was a specialist in the field of child care and protection and was frequently confronted with situations of this kind.

More generally, the Child Welfare Board and the Juvenile Judge had had to consider the interests of the parents against those of the child, and had rightly considered the latter to be of greater importance.

As to the failure to involve Kimberly’s parents in the decision-making process before action was taken, the Government argued that the authorities had considered, on reasonable grounds, that Kimberly’s life was in danger and that an immediate interim measure was justified; the situation had not admitted of any delay. Moreover, the experts had been of the opinion that the problem could not be discussed with the parents, since their reaction could not be predicted.

In any event, the authorities had sought to minimise the harm done by the measure by ensuring that the parents might have access to Kimberly; the Juvenile Judge had actually taken steps to increase the frequency of access.

The applicants argued that the case had been known to the Child Welfare Board since early August 1994. The telephone conversation of 1 December 1994 between the Child Welfare Board and the doctor at the Child Abuse Centre had not led to any further investigation. In these circumstances it was clear that the Child Welfare Board had long been aware of the need for a second opinion, and that the fact that the Child Welfare Board had found itself forced to act under pressure of time was entirely the Board’s own fault.

There had been no immediate danger to Kimberly’s life at the time the Board applied to the Juvenile Judge, for the simple reason that Kimberly was in hospital and thus out of her parents’ immediate reach. In these circumstances it would have been quite possible for the Board itself and the Juvenile Judge to hear Kimberly’s parents before any decision, even of a provisional nature, was reached.

Echoing the report of the official investigation ordered by the Deputy Minister of Justice, the applicants pointed to the Child Welfare Board’s excessive reliance on information received from others – in particular, the Curium/Leiden University Hospital report – and its failure to make any investigations of its own. Such investigations would have clarified errors and inconsistencies in the Curium/Leiden University Hospital report. Instead, the Child Welfare Board had given incomplete information to the Juvenile Judge.

The failings in the file management and internal reporting practices of the Child Welfare Board, noted in the report of the official investigation, also contributed to the lack of sufficient information and had thus prolonged Kimberly’s placement away from her parental home.

The Child Welfare Board had improperly influenced the psychiatrist by inducing him, in a discussion by telephone, to add a caveat damaging to the applicants’ interests to his report of 27 January 1995.

Finally, the retraction of the request for a similar measure in respect of Kimberly’s sibling Jonathan, who was born on 28 February 1995, showed that already at that time the Child Welfare Board had realised that there was no danger to either child from the parents. Yet the Board had not sought to have the measure in respect of Kimberly terminated.

Having regard to the parties’ submissions and to its case-law, the Court considers that the applicant’s complaints under Article 8 of the Convention raise complex questions of fact and law which require an examination on the merits. They cannot, therefore, be declared inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. Article 6 § 1 of the Convention, in relevant part, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The applicants complained of the failure of the Juvenile Judge to hear Mr and Mrs Venema before giving orders separating Kimberly from them, and of the decision of the Supreme court dismissing their appeal on points of law for lack of any legal interest.

The Government did not dispute that Article 6 § 1 was applicable.

They argued that the Juvenile Judge had had to choose between her obligation to protect the life of Kimberly on the one hand, and Mr and Mrs Venema’s right to a “fair hearing” on the other. The judge had given priority to the child’s interests. A hearing satisfying the requirements of Article 6 was held as soon as was possible thereafter, within the legal time-limits. The first head of the applicants’ complaint under Article 6 could not therefore give rise to a finding of a violation.

The applicants were of the opinion that at the time of the Juvenile Judge’s decision there were still so many unanswered questions that a hearing was clearly called for before any decision was arrived at. In the circumstances it could not reasonably be said that Kimberly’s life would thereby have been jeopardised. In fact, the failure to hear Mr and Mrs Venema had led to a fait accompli that could not be reversed by a subsequent hearing of the parents, not even when it emerged, from the psychiatrist’s report, that the Juvenile Judge’s original decision had been based on flawed information.

Having regard to the parties’ submissions and to its case-law, the Court considers that the applicants’ first complaint under Article 6 of the Convention raises complex questions of fact and law which require an examination on the merits. It cannot, therefore, be declared inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. As to the failure of the Supreme Court to decide on the legality of Kimberly’s placement away from her home, the Government noted that by the time the Supreme Court got round to considering the case the Juvenile Judge’s order had long been rescinded. The interests advanced by Mr and Mrs Venema, namely that a decision in their favour by the Supreme Court would pave the way for them to claim damages and prevent any further violation of their right to respect for their private and family life, were held to be insufficient to justify proceeding to a decision. This was in itself reasonable, it being a principle of Netherlands law that judgment should not be given in cases where there was no point in determining the rights and duties of parties.

The Supreme Court had nonetheless considered their appeal on points of law before declaring it inadmissible. In these circumstances it could not be said that the applicants had not had “access to a court” or a “fair hearing”.

In any event, it was open to the applicants to sue the respondent party in tort.

The applicants argued that the mere fact that the interference with their Article 8 rights had come to an end did not deprive them of the right to have the legality of the interference considered afterwards by the Supreme Court. This followed from Article 13 of the Convention. They further denied that the Supreme Court had considered their appeal on points of law: it had merely declared it inadmissible.

The applicants finally argued that an action in tort would have had little prospect of success. The civil courts would have been bound by the decision of the Court of Appeal of 15 March 1995 finding the placement order to be legitimate, which had become final and binding by the failure of the Supreme Court to overturn it.

In the Court’s view, the mere fact that the applicants’ appeal on points of law was declared inadmissible on the ground that they lacked a legal interest does not mean that they were denied access to a court or, more generally, the protection of Article 6 § 1. It should be noted in this respect that the applicants had the benefit of proceedings before the Court of Appeal, which they did not allege to be in violation of Article 6 § 1 of the Convention (see, mutatis mutandis and a contrario, the Obermeier v. Austria judgment of 28 June 1990, Series A no. 179, pp. 21 – 23, §§ 68 and 70).

The Court is likewise unable to accept the applicants’ argument that the decision of the Court of Appeal, having been effectively ratified by the Supreme Court, prejudged any subsequent proceedings they might take in tort. In the light of the advisory opinion of the Advocate General, it cannot be taken as established that the Supreme Court would have held in the applicants’ favour had it considered the merits of the applicants’ appeal on points of law. Moreover, this argument is incompatible with the position taken by Mr and Mrs Venema themselves on 29 August 1995 when stating their interest in a decision on the merits to the Supreme Court, namely that they would be compelled to bring a further civil action if the Supreme Court declared their appeal inadmissible.

It follows that the applicants’ complaint about the failure of the Supreme Court to decide on their appeal on points of law does not disclose any appearance of a violation of Article 6 § 1 of the Convention, and that consequently it is manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court by a majority

Declares inadmissible the applicants’ complaint that the Supreme Court failed to determine the merits of their appeal on points of law;

Declares admissible the remainder of the application, without prejudging the merits of the case.

S. Dollé J.-P. Costa
Registrar President