AS TO THE ADMISSIBILITY OF
Application No. 14443/88
by 46 inhabitants of RUIGOORD
against the Netherlands
The European Commission of Human Rights sitting in private
on 6 September 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
G. SPERDUTI
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 31 August 1988
by 46 inhabitants of RUIGOORD against the Netherlands and registered
on 5 December 1988 under file No. 14443/88;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are 46 inhabitants of Ruigoord, the
Netherlands. The names of the applicants are attached to this
report. Before the Commission, the applicants are represented by Mr.
L.D.H. Hamer, a lawyer practising in Amsterdam.
The facts of the case, as submitted by the applicants, may be
summarised as follows:
The village of Ruigoord forms part of the Municipality of
Haarlemmerliede and Spaarnwoude. In 1969 the Municipal Council
(Gemeenteraad) established a zoning plan (bestemmingsplan) "Landelijk
Gebied 1968" on the basis of which Ruigoord and its surroundings were
no longer zoned for housing but for harbour and harbour related
industry. The zoning plan was finally approved by Royal Decree on 20
June 1974. A transitional provision on minor building activities was
finally approved by the Provincial Executive on 16 March 1976.
On 25 September 1984, the Municipal Council of Haarlemmerliede
and Spaarnwoude drew up a new zoning plan "Ruigoord 1984" intended to
restitute the housing destination to the village Ruigoord and its
surroundings, replacing the harbour and harbour related industry
destination. The village consists of dwellings which remained in 1973
after the partial demolition of dwellings and of wasteland areas,
which were levelled to prepare the construction of a harbour and
related industry in order to extend the western harbour area of
Amsterdam. To this end, the Municipality of Amsterdam has acquired
the land and dwellings thereon with the exception of four pieces of
land, which are presently owned by, respectively, the applicants
numbered 1, 2, 5, 30, 33 and 34 (see Appendix).
The village remained inhabited, partly by people who have not
sold their land and house to the Municipality of Amsterdam, partly by
people who rent their house from the Municipality of Amsterdam and who
have not yet been requested to vacate their homes, partly by people
occupying houses without paying rent, which had been vacated by the
former inhabitants and by one family who bought their land and house
in 1980. The Municipality of Haarlemmerliede and Spaarnwoude
occasionally grants temporary building permits valid for five years
for construction and renovation works.
Following the objection by, inter alia, the Municipal
Authorities of Amsterdam, the Provincial Executive of Noord-Holland on
5 March 1985 refused to approve the new zoning plan. Against this
refusal, the Municipal Authorities of Haarlemmerliede and Spaarnwoude,
the Forestry Board (Bosschap) and a number of applicants (those
numbered to 36 inclusive as appended) appealed to the Crown (de
Kroon) on the basis of the Crown Appeal Act.
Both the Municipal Authorities and the applicants emphasised
the need of reinstating the village of Ruigoord residential zoning
thereby legalising the present situation of the inhabitants and
extending the possibilities of small-scale building activities.
The Crown decided, in conformity with the advice given by the
Litigation Division of the Council of State (Afdeling Geschillen van
Bestuur van de Raad van State), on 3 March 1988, that the Provincial
Executive of Noord-Holland had rightfully refused the approval of the
new zoning plan. It held, inter alia, that under the circumstances,
the interests of the City of Amsterdam in having ample opportunities
to expand its harbour and to locate related industry outweighed
the interests of the Municipality of Haarlemmerliede and Spaarnwoude,
the Forestry Board and the applicants.
In the view of the Crown, under the existing zoning plan,
there were sufficient possibilities for applicants to initiate
small-scale building activities with regard to their houses, even
though the village did not officially have the status of residential
area.
COMPLAINTS
The applicants complain under Article 6 para. 1 of the
Convention that their civil rights as owners, tenants and occupants,
living under a constant threat of expropriation and/or enforced
vacation of their homes and a constant construction prohibition, were
not determined by an independant and impartial tribunal and that they
did therefore not receive a fair hearing.
The applicants further complain under Article 1 of Protocol
No. 1, that the withholding of the approval of the new zoning plan
implies a constant prohibition on minor building activities, thereby
rendering it impossible for house owners to add value to their
property, which considerably limits the possibility to exercise their
ownership rights.
THE LAW
1. The applicants complain that the Crown is not an independent
and impartial tribunal and that they have therefore been denied the
right to a fair hearing. The applicants invoke Article 6 para. 1
(Art. 6-1) of the Convention, the first sentence of which reads as
follows:
"1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by
law."
The Commission notes that the applicants were involved in
proceedings aimed at changing the zoning plan in force. These
proceedings started with the decision of the Municipal Council of
Haarlemmerliede and Spaarnwoude to replace the zoning plan in force by
a new zoning plan. The Provincial Executive of Noord-Holland refused
to approve the proposed new draft plan, whereas the Crown upheld the
decision of the Provincial Executive. The Commission takes the view
that such proceedings cannot be considered to involve a determination
of the applicants' "civil rights" within the meaning of Article 6
(Art. 6) of the Convention (cf. No. 11844/85, Dec. 29.2.88, to be
published in D.R. 55).
It follows that in this respect the application is
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2).
2. The applicants furthermore complain under Article 1 of
Protocol No. 1 (P1-1) that the withholding of the approval of the new
zoning plan implies a constant prohibition on minor building
activities, thereby rendering it impossible for house owners to add
value to their property, which considerably limits the possibility to
exercise their ownership rights.
Article 1 of Protocol No. 1 (P1-1) reads:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to
the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties."
The Commission first observes that only a small number of
applicants can be considered as owners within the meaning of Article 1
of Protocol No. 1 (P1-1).
The Commission notes that under this provision the applicants
cannot claim a right to have a new zoning plan approved by the
Provincial Executive of Noord-Holland.
Insofar the applicants complain on the existing situation, the
Commission is not required to decide whether or not the complaint of
the applicants discloses any appearance of a violation of this
provision, as Article 26 (Art. 26) of the Convention also provides
that the Commission "may only deal with the matter (...) within a
period of six months from the date on which the final decision was
taken".
In the present case the approval of the zoning plan by Royal
Decree of 20 June 1974 and the approval by the Provincial Executive of
16 March 1976 of minor building activities were the final decisions
regarding the subject of this particular complaint, whereas the
application was submitted to the Commission on 31 August 1988, that is
more than six months after the date of these decisions. Furthermore,
an examination of the case does not disclose the existence of any
special circumstances which might have interrupted or suspended the
running of that period.
It is true that the applicants have, within the six months'
period preceding the introduction of this application to the
Commission received a decision from the Crown, in which the Crown held
that the Provincial Executive had rightfully refused the approval of
the new zoning plan. The legal situation of the applicants remained
therefore unaltered. The Commission recalls that a request for
re-opening of a case cannot as a rule be regarded as an effective
remedy within the meaning of Article 26 (Art. 26) of the Convention
(cf. No. 10537/83, Dec. 10.10.85, D.R. 44 p. 98). The decision of
the Crown in that matter cannot therefore be taken into account when
calculating the six months' period.
In this respect the applicants have therefore failed to comply
with the six months' rule laid down in Article 26 (Art. 26) of the
Convention. It follows that this complaint must be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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