Feldbrugge v. The Netherlands

The applicant (Mrs. Feldbrugge), a Netherlands citizen, was removed from sickness benefits she had been receiving through health insurance because a medical examination had shown that she was again fit to work. Upon taking her case to the Appeals Board, the President ruled against her based on the medical testimony of the Board’s medical staff. The applicant filed an objection alleging she had not been given a fair hearing. The Appeals Board declared her objection inadmissible by virtue of the limitations imposed by sections 141 and 142 of the Appeals Act and maintained (in obiter dictum) that the examination by two permanent medical experts and the opportunity she was given to state her objections orally amounted to a fair hearing. Her following appeal to the Central Appeals Board in which she claimed that sections 141 and 142 of the Appeals Act infringed her right to a fair trial under Article 6 para. 1 (Article 6-1) of the Convention was declared inadmissible by virtue of section 75 (2) of the Health Insurance Act.

The Court ruled that Article 6-1 was indeed applicable to the case at hand as the applicant’s "contestation" was genuine and serious, concerning the existence of the right to continue receiving a sickness allowance. The outcome of the relevant proceedings was directly decisive for the right in issue. Furthermore, the applicant had a civil rights claim within the meaning of Article 6-1 of the Convention.

The Court found that the proceedings before the bodies responsible for determining Mrs. Feldbrugge’s asserted right were in breach of the requirements laid down in Article 6-1 of the Convention.

The Court noted that the proceedings conducted before the President of the Appeals Board were not attended by one of the principal guarantees of a judicial procedure, namely the applicant’s proper participation in the procedure, particularly during the final and decisive stages as the President neither heard the applicant nor asked her to file written pleadings. Neither the applicant nor her representative had the opportunity to consult the evidence in the case-file (medical reports) and formulate objections. The opportunity given by experts to the applicant to comment was not sufficient. These procedural shortcomings were not capable of being cured at a later stage as Mrs. Feldbrugge was restricted from successfully appealing before the Appeals Board and the Central Appeals Board.

"44. It is not within the province of the Court to review in isolation the Netherlands institution of the permanent medical expert … The Court confines itself to noting that the permanent medical expert cannot himself determine a dispute (contestation) over a civil right. The sole responsibility for taking the decision falls to the President of the Appeals Board, even when - as in the instant case - he does no more than ratify the opinion of the expert. Secondly, there has been no breach of the principle of equality of arms inherent in the concept of a fair trial … The Occupational Association did not enjoy a procedural position any more advantageous than Mrs. Feldbrugge’s, in that had the experts expressed an opinion unfavourable to its standpoint, the Association would likewise have been unable to present oral or written arguments or to challenge the validity of the unfavourable opinion. No lack of fair balance thus obtained between the parties in this respect.

On the other hand, the procedure followed before the President of the Appeals Board by virtue of the Netherlands legislation was clearly not such as to allow proper participation of the contending parties, at any rate during the final and decisive stage of that procedure. To begin with, the President neither heard the applicant nor asked her to file written pleadings. Secondly, he did not afford her or her representative the opportunity to consult the evidence in the case-file, in particular the two reports - which were the basis of the decision - drawn up by the permanent experts, and to formulate her objections thereto. Whilst the experts admittedly examined Mrs. Feldbrugge and gave her the opportunity to formulate any comments she might have had, the resultant failing was not thereby cured. In short, the proceedings conducted before the President of the Appeals Board were not attended, to a sufficient degree, by one of the principal guarantees of a judicial procedure." Page 13-14.

"45. Mrs. Feldbrugge attempted, unsuccessfully, to take her case to the full Appeals Board and subsequently to the Central Appeals Board, her action being declared inadmissible on both occasions (see paragraphs 13 and 14 above). Under the so-called permanent-medical-expert procedure, an objection may only be lodged with an Appeals Board against the decision of the President of the Board on one of the following four grounds: that the expert knew the patient in another capacity or failed to comply with certain procedural requirements; that the President’s decision does not bear upon the dispute or has not followed the expert’s advice (see paragraph 19 above). Decisions of an Appeals Board in the context of this kind of procedure are not subject to appeal before the Central Appeals Board save, as has been held in the case-law of the latter Board, in the event of non-observance of rules of a formal nature (see paragraph 20 above)." Page 14.