AS TO THE ADMISSIBILITY OF
Application No. 22130/93
by A.E.N.
against the Netherlands
The European Commission of Human Rights sitting in private on
30 November 1994, the following members being present:
Present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 March 1992 by
A.E.N. against the Netherlands and registered on 29 June 1993 under
file No. 22130/93;
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
1. The particular circumstances of the case
The applicant is a Dutch citizen, born in 1943, and resides at
Hornhuizen, the Netherlands.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Between 1971 and 31 December 1987, a land consolidation project
(ruilverkaveling) was carried out in a region of the Dutch province of
Groningen. The project included the applicant's farmland.
During the project, the Land Planning Service (Landinrichtings-
dienst) of the Ministry of Agriculture, Nature Management and Fisheries
(Ministerie van Landbouw, Natuurbeheer en Visserij) was authorised to
grant subsidies to the farmers involved, for works improving the
quality of the farmlands (kavelverbeteringssubsidie).
On 22 June 1987, the applicant applied for three subsidies for
the costs of earthmoving (grondverzet). On 30 July and 6 August 1987,
the Land Planning Service provisionally agreed to grant the subsidies
(subsidietoezegging) under the condition that the earthmoving be
completed before 31 December 1987.
In August 1987, a Land Planning Service official, Mr. G.,
informed the applicant that, in view of the imminent closure of the
list of financial settlements (lijst der geldelijke regelingen), he
should not further postpone his request for a subsidy for the costs of
the intended draining of his farmland, as these draining works should
be completed before 31 December 1987.
By letter of 16 December 1987, the Land Planning Service informed
the farmers who were involved in the land consolidation project, among
whom the applicant, that in view of the exceptionally bad weather
conditions that year, the deadline before which the projects for which
a subsidy had already been provisionally granted had to be completed,
would, upon request, be extended to 30 June 1988 at the latest.
On 22 December 1987, the Regional Court of Groningen closed the
list of financial settlements. This meant that the land consolidation
project would end on 31 December 1987. In its decision, the Regional
Court stated that it had not yet taken a decision in the last dispute
concerning the list of financial settlements, involving a certain Mr.
R., but that it would nevertheless close the list in view of the fact
that an agreement had been reached between the Land Planning Service
on the one hand, and the Land Planning Commission appointed for this
land consolidation project on the other, and that this agreement did
not affect the interests of either Mr. R. or the other landowners and
landusers involved in the land consolidation project. The Regional
Court gave its final decision in the case of Mr. R. on 14 October 1988.
On 30 December 1987, the applicant applied for a subsidy for the
draining of his farmland. On the same date, he requested that the
deadline for the execution of the earthmoving be extended to 31
December 1988.
On 12 January 1988, the Inspector of the Land Planning Service
extended the deadline for the completion of the earthmoving to 30 June
1988 at the latest. He stated that no further extension would be
possible since the land consolidation project had been closed on 31
December 1987.
Also on 12 January 1988, the Inspector of the Land Planning
Service rejected the applicant's request for a subsidy for the
draining, as the draining should have been completed before 1 January
1988, whereas an extension of the time-limit for these works was not
applicable to this subsidy request since the extension of the time-
limit until 1 July 1988 only applied to projects for which, on
3 November 1987, subsidies had already been provisionally granted.
On 11 February 1988, the applicant filed an appeal against these
two decisions under the Administrative Decisions Appeals Act (Wet
Administratieve Rechtspraak Overheidsbeschikkingen) with the Judicial
Division of the Council of State (Afdeling Rechtspraak van de Raad van
State).
Following a suggestion thereto by the President of the Judicial
Division of the Council of State, the Minister of Agriculture, Nature
Management and Fisheries considered the applicant's appeal as an
objection (bezwaarschrift). On 28 June 1988 the Minister postponed his
decision on the applicant's objections for 30 days.
As the Minister of Agriculture, Nature Management and Fisheries
failed to take a decision on the appeals within the prescribed period
of time, the applicant, on 31 August 1988, lodged an appeal with the
Judicial Division of the Council of State against the presumed
rejections (fictieve weigering) of his objections.
In two decisions, of 7 November 1989 and 5 November 1990
respectively, the Minister of Agriculture, Nature Management and
Fisheries rejected the applicant's objections. The applicant did not
file a separate appeal against these decisions.
In the proceedings before the Judicial Division of the Council
of State, the applicant alleged that the Regional Court's decision of
22 December 1987 to close the list of financial settlements was
contrary to Section 217 of the Land Planning Act (Landinrichtingswet).
He argued that the list could not have been closed before
14 October 1988 due to an unsettled financial dispute concerning the
list, and that, consequently, the land consolidation project had not
ended on 31 December 1987 but only on 31 December 1988. Therefore, the
refusal to grant him a subsidy for the draining of his land was
incorrect. Invoking Article 6 para. 1 of the Convention, the applicant
complained that there was no possibility to appeal against the Regional
Court's decision and he requested the Judicial Division of the Council
of State to examine the legality of that decision. He further
complained in respect of the extension of the deadline until
30 June 1988, that this date had been chosen arbitrarily and was not
logical.
On 30 December 1991, after having considered the written and oral
submissions by the applicant and the Ministry of Agriculture, Nature
Management and Fisheries, the Judicial Division of the Council of State
rejected the appeal.
As regards the rejection of the applicant's request for subsidy
for the drainage works, the Judicial Division noted the Ministry's
constant policy that operations such as the ones at issue, for which
a subsidy has been provisionally granted, must be completed at the
latest on 31 December of the year in which the list of financial
settlements has been closed by the Regional Court, and that in the
present case the Regional Court had closed this list on
22 December 1987. The Judicial Division considered this closure as a
given fact, which could not be challenged in the proceedings before it,
as these proceedings only concerned the applicant's appeal against the
decisions of 12 January 1988. The Judicial Division held that the
Ministry's constant policy, of which the applicant was aware, could not
be regarded as unreasonable and that there was no ground on the basis
of which the Ministry should have made an exception to its constant
policy, given the fact that the applicant had been informed in August
1987 that he should make haste with his request for subsidy, and that
the applicant had had about four years' time to request the subsidy.
As regards the decision to extend the deadline for the execution
of the earthmoving only until 30 June 1988 and not to 31 December 1988,
as requested by the applicant, the Judicial Division of the Council of
State accepted the Ministry's arguments for refusing a further
extension, namely that the extension until 30 June 1988 had been
sufficient for all other persons, among whom 22 farmers, who had been
provisionally granted subsidies to complete their works. The Judicial
Division noted that the applicant had not challenged this fact, and it
found that no facts or circumstances had appeared on the basis of which
the Ministry should have granted the applicant an extra period of six
months.
2. Relevant domestic law
The rules concerning land consolidation projects are laid down
in the Land Planning Act.
During a land consolidation project, the landowners and landusers
involved are represented in a Land Planning Commission (Landinrich-
tingscommissie) which is appointed for a certain project. The
individual landowners and landusers involved have, during the land
consolidation project, the possibility to lodge objections to all kinds
of decisions and plans.
In the course of a land consolidation project, the Land Planning
Service is authorised to grant subsidies for works improving the
quality of the soil. The policy rules regulating the granting of such
subsidies are contained in an explanatory note, which accompanies the
form that has to be filled in when an application for a subsidy is
filed. A provisional subsidy grant has a maximum validity of two years,
within which the work must be completed. However, the work for which
a subsidy has been provisionally granted must, in any case, be
completed by the end of the year in which the Regional Court closes the
list of financial settlements. The persons to whom subsidies have
provisionally been granted are informed of the date before which the
work must be completed.
At an early stage of the land consolidation project, the Land
Planning Service assesses the values of the immovable properties of the
landowners and landusers involved. After the redistribution of the
land, the Land Planning Service assesses the new values of the
immovable properties. The results of the second assessment and the
differences between the two assessments are recorded in the list of
financial settlements. The changes in value are the basis for the
division of the costs of the land consolidation project among the
landowners and landusers involved.
The landowners and landusers involved can lodge objections to the
list with the Land Planning Service, which will try to effect a
settlement. Where a settlement cannot be effected, the case is brought
before a judge of the competent Regional Court. If the judge cannot
effect a settlement either, the Regional Court has to determine the
dispute. An appeal in cassation can be lodged with the Supreme Court
(Hoge Raad) against the Regional Court's decision.
Pursuant to Section 217 of the Land Planning Act, the Regional
Court closes the list of financial settlements after it has dealt with
all disputes concerning the list. No appeal lies against the decision
to close the list.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the Convention
of the impossibility to lodge an appeal against the Regional Court's
decision to close the list of financial settlements.
He further complains under Article 6 para. 1 of the Convention
that the Judicial Division of the Council of State did not examine the
legality of the Regional Court's decision.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that no appeal lies against the Regional Court's decision
to close the list of financial settlements, and that the Judicial
Division of the Council of State did not examine the legality of the
Regional Court's decision.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads as follows:
"In the determination of his civil rights and obligations
(...) everyone is entitled to a fair hearing (...)."
2. As regards the complaint that no appeal lay against the Regional
Court's decision of 22 December 1987 to close the list of financial
settlements, the Commission is not required to decide whether or not
the facts submitted by the applicant disclose any appearance of a
violation of the Convention as, in accordance with Article 26
(Art. 26) of the Convention, the Commission finds that the final
decision in these proceedings was given by the Regional Court on
22 December 1987, which is more than six months before the date on
which the application was submitted to the Commission.
It follows that this part of the application must be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
3. Insofar as the applicant complains that the Judicial Division of
the Council of State did not review the legality of the Regional
Court's decision but accepted it as a given fact, the Commission
recalls in the first place its constant case-law that it is not
competent to examine alleged errors of fact and law committed by
national judicial authorities, except where it considers that such
errors might have involved a possible violation of the rights and
freedoms set forth in the Convention (cf. No. 17722/91, Dec. 8.4.91,
D.R. 69 p. 345).
On the assumption that Article 6 para. 1 (Art. 6-1) of the
Convention applies to proceedings concerning the conditions attached
to the granting of a subsidy, the Commission has to examine whether or
not the applicant received a fair hearing in the proceedings before the
Judicial Division of the Council of State.
The Commission notes that in the administrative proceedings
before it the Judicial Division had to determine the applicant's appeal
against the decisions of the Minister of Agriculture, Nature Management
and Fisheries of 12 January 1988, and that in these proceedings the
applicant has been provided with ample opportunity to state his case
and to challenge the submissions of the opposite party.
In its decision, the Judicial Division had, inter alia, regard
to a final decision by another court, the function and competence of
which are different from that of the Judicial Division and the
independence and impartiality of which are not challenged by the
applicant. The Commission does not find that this affected the fairness
of the administrative proceedings at issue.
In these circumstances the Commission finds no indication that
the administrative proceedings before the Judicial Division were not
in conformity with the requirements of Article 6 para. 1
(Art. 6-1) of the Convention.
It follows that this complaint is manifestly ill-founded and has
to be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy