The case Gillissen v. the Netherlands, decided on March 15, 2016, deals with the complaint about the failure to hear witnesses in proceedings before the social security courts with regard to the applicant's invalidity pension.

The applicant, Jozef Gillissen, had been a police officer for 30 years when, in 1996, he was discharged for occupational disability and was granted disability benefits under the Labor Disablement Insurance Act (known in Dutch as WAO).

He was allowed to acquire additional income as an independent stress management trainer, but when it was determined that he had earned more than is normally permitted, administrative proceedings were brought against him and he was ordered to repay the amount of the overpay on his invalidity pension.

Agreements with public official

During the administrative proceedings, in the stages of objections with the Employee Insurances Schemes Implementing Body (known in Dutch as the UWV), the applicant alleged in an appeal with the Roermond Regional Court and a further appeal with the Central Appeals Tribunal that in 1998, a public official had given him permission to earn additional income beyond the usual limit.

This agreement had apparently been witnessed by another officer. The idea was to build up financial reserves that would allow him to make his own living and gradually reduce his dependence on social security. No written record of such an agreement was ever found in the official files, however.

Given this fact, the UWV and the administrative courts decided that no agreement had been made. On November 21, 2006, the applicant's appeal was dismissed by the Regional Court. On January 30, 2009, this decision was affirmed in the appeal with the Central Appeals Tribunal.

Acquittal

In parallel with the administrative proceedings, the applicant was prosecuted for social security fraud and forgery. On May 16, 2007, the ‘s-Hertogenbosch Court of Appeal acquitted him, and here the court ruled that an existing agreement between the applicant and the social security official was plausible.

On July 27, 2009, Gillissen lodged a complaint with the European Court of Human Rights. He referred to Article 6 § 1 of the Convention (right to a fair hearing). He argued he hadn't been given any opportunity to call for witnesses in the administrative proceedings.

In its decision, the court put first that under Article 6 § 1 of the Convention, a court has the obligation to investigate the allegations, arguments and evidence adduced by the parties.

The court considered that courts may not be obliged to give reasons for rejecting each argument of a party but they do have the obligation to examine the key points of a party and respond.

The court remarked that Article 6 § 1 of the Convention does not explicitly guarantee the right to call witnesses or bring in other evidence in civil proceedings. But a restriction to call a witness, or to bring in other evidence, has to be consistent with the requirements of a "fair hearing," within the meaning of Article 6 § 1 of the Convention, including "the principle of equality of arms."

Fair proceedings

The European Court of Human Rights ruled that the requirements inherent in the concept of "fair hearing" are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge.

This is the result of the absence of detailed provisions such as Article 6 paragraphs 2 and 3 of the Convention, which do not apply to civil proceedings but do apply to criminal proceedings. The court pointed out that some principles in relation to the notion of "fair hearing" came forth from the court’s case law. The court considered that for the present case, it is important that the requirement of "equality of arms", in the sense of a "fair balance" between the parties, applies in principle in civil proceedings as much as it is in criminal proceedings.

Regarding this present case, the court remarked that the Central Appeals Tribunal didn't dismiss the verbal agreement between the applicant and the officer as irrelevant, but held that the existence of the agreement unsubstantiated.

The court also held that, even though social security rights are determined by legislation and policy, it can't imagine that the Central Appeals Tribunal would be restrained from a decision in favor of the applicant, as claimed by the applicant, after determining that the agreement did exist.

Hear them out

The court remarked that the Dutch government did not produce any national case law that would support such a position. The court considered that only for this reason already, Article 6 paragraph 1 of the ECHR required that the Central Appeals Tribunal wouldn't leave the applicant offer to bring in witnesses unanswered.

In addition, the court noted that the ‘s-Hertogenbosch Court of Appeal acquitted the applicant of fraud, considering that it was plausible that an agreement had been made out between the applicant and the public official.

The court acknowledged that, as stated by the Dutch government, the assessment of evidence in criminal proceedings is different from the assessment in administrative proceedings. Yet the significance of the judgment of the ‘s-Hertogenbosch Court of Appeal and the grounds on which the judgment is based is such that the decision of the Central Appeals Tribunal to ignore it required an explanation.

The court held that not agreeing with the applicant's request to hear the two public officials as witnesses put the applicant in a disadvantageous position compared to the other party. In view of this, the court found that there had been a violation of Article 6 § 1 of the Convention.