AS TO THE ADMISSIBILITY
Application No. 19138/91
by A.v.P.
against the Netherlands
The European Commission of Human Rights (Second Chamber)
sitting in private on 6 April 1994, the following members being
present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
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 25 September
1991 by A.v.P. against the Netherlands and registered on 20
November 1991 under file No. 19138/91;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to:
- reports provided for in Rule 47 of the Rules of Procedure
of the Commission;
- the observations submitted by the respondent Government on
28 September 1993 and the observations in reply submitted
by the applicant on 13 December 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen, born in 1938, and resides
at De Lutte, the Netherlands. Before the Commission he is
represented by Mr. G.W.H.J. de Koning, a lawyer practising in
Apeldoorn.
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant used to run, in the form of a firm
(vennootschap onder firma), a café alongside a busy road. The
clients were mainly truck-drivers. In July 1985 a new highway was
opened, which had a negative effect on the café's turnover.
Already on 26 August 1983 a meeting had taken place between
the Public Works and Water Management Department (Rijkswaterstaat
- hereinafter referred to as "the Department"), the applicant and
the Municipality of Losser. All agreed that the Municipal
Executive (Burgemeester en Wethouders) of Losser would contact
the Director of the Department in order to examine whether or not
"administrative compensation" (bestuurscompensatie) on the basis
of equity could be awarded to the applicant for the negative
effects of the highway on his income, so that the applicant's
compensation would be covered "otherwise" within the meaning of
Section 49 of the Town and Country Planning Act (Wet op de
Ruimtelijke Ordening - hereinafter referred to as "the Act").
On 25 May 1984 the applicant filed a request for
compensation under Section 49 of the Act to the Municipal Council
(Gemeenteraad) of Losser. As agreed between the parties on 26
August 1983, the Municipal Council forwarded this request to the
Department, who decided to seek an expert opinion assessing the
applicant's damages. The applicant's lawyer agreed in writing to
the deviation from the normally applicable time-limits in respect
of the application of Section 49 of the Act in view of the
procedure agreed upon on 26 August 1983.
Following an initial report assessing the damage at 318.500
Dutch guilders and a counter expert opinion obtained by the
applicant, an expert opinion was submitted to the Department on
3 April 1987 assessing the compensation to be awarded to the
applicant at 864.500 Dutch guilders, i.e. 70% of the total
damages assessed at 1.235.000 Dutch guilders.
By letter of 18 April 1988 the Department offered the
applicant compensation in the amount of 341.950 Dutch guilders
plus statutory interests and possible tax damages. By letter of
11 May 1988 the applicant rejected the offer and requested to be
paid the amount arrived at in the final expert opinion pending
a final decision on his claim for compensation. By letter of 9
June 1988, referring to the procedure agreed upon on 26 August
1983, the Department refused the applicant's request and informed
him that he would be paid as soon as a final decision on his
compensation request of 25 May 1984 had been taken.
The applicant's appeal to the Judicial Division of the
Council of State (Afdeling Rechtspraak van de Raad van State) was
rejected on 25 August 1988, on the ground that the offer of 18
April 1988 did not constitute a decision within the meaning of
the Administrative Decisions Appeals Act (Wet Administratieve
Rechtspraak Overheidsbeschikkingen).
The applicant subsequently started summary proceedings
before the President of the Regional Court
(Arrondissementsrechtbank) of The Hague claiming an amount of
864.500 Dutch guilders for damages.
By judgment of 18 April 1989 the President of the Regional
Court ordered the Department to pay 341.950 Dutch guilders to the
applicant. The President rejected the applicant's argument that
his full claim should be paid as he did not find it established
that the parties had agreed on 26 August 1983 that the Department
would pay the compensation amount as assessed by experts.
By decision of 29 June 1989 the Municipal Council rejected
the applicant's request for compensation under Section 49 of the
Act. The Council noted that the applicant's lawyer had agreed in
writing to the deviation from the normally applicable time-limits
in respect of the application of Section 49 of the Act in view
of the procedure agreed upon on 26 August 1983. The Municipal
Council did not find it necessary to seek the advice of a Damage
Assessment Commission within the meaning of Section 4 of the
Procedure Ordinance on Compensation of Damage Caused by Planning
(Procedure-verordening Planschadevergoeding), considering that
the applicant's damage was covered "otherwise" within the meaning
of Section 49 of the Act, as the Department was under an
obligation to apply the system of administrative compensation.
On 20 September 1989 the applicant filed an appeal against
this decision with the Administrative Litigation Division of the
Council of State (Afdeling voor de Geschillen van Bestuur van de
Raad van State) in accordance with the Interim Act on Crown
Appeals (Tijdelijke Wet Kroongeschillen). He requested the
Administrative Litigation Division to decide the matter itself,
as already five years had elapsed since the opening of the new
highway, and submitted that it was therefore of the utmost
importance that a final decision on his claim would be given
soon.
By decision of 15 February 1990 the President of the
Administrative Litigation Division rejected the applicant's
request for an interim measure under Section 107 of the Act on
the Council of State (Wet op de Raad van State).
In its decision of 26 March 1991 the Administrative
Litigation Division quashed the decision of the Municipal Council
of 29 June 1989. It found that the Municipality had unjustly
considered that it was not necessary to apply Section 4 of the
Procedure Ordinance on Compensation of Damage Caused by Planning
by seeking the advice of a Damage Assessment Commission and had
therefore failed to make its own assessment of the alleged
damage, as required by the procedural rules on the application
of Section 49 of the Act, and ordered the Municipal Council to
take a new decision within a maximum period of six months.
On 30 May 1991 the Municipal Council decided to seek the
advice of a Damage Assessment Commission. This Commission advised
in its report of 26 September 1991 that the applicant be paid an
amount which was considerably higher than the amount already paid
by the Department.
In its decision of 31 October 1991 the Municipal Council,
after having considered the advice by the Damage Assessment
Commission, again rejected the applicant's request for
compensation under Section 49 of the Act, considering that an
alternative exploitation of the applicant's business was possible
in the form of a hotel and that his damage was already covered
by the amount paid by the Department.
On 5 December 1991 the applicant filed an appeal against the
decision of 31 October 1991 with the Administrative Litigation
Division.
By decision of 13 February 1992 the President of the
Administrative Litigation Division rejected the applicant's
request for an interim measure under Section 107 of the Act on
the Council of State.
In its decision of 3 February 1993 the Administrative
Litigation Division quashed the decision of 31 October 1991,
considering that the Municipal Council had failed to make its own
assessment of the applicant's claim for damages but conformed
itself to the opinion of the Department. Following the
applicant's request the Administrative Litigation Division
decided the matter itself and awarded the applicant further
compensation for damage of assets of 200.000 Dutch guilders with
statutory interest as from 3 December 1982, compensation for loss
of income of 498.050 Dutch guilders with statutory interest as
from 13 June 1985, and, in view of the Municipal Council's
failure to comply with the Administrative Litigation Division's
clear directives as contained in its decision of 26 March 1991,
ordered the Municipality to pay the applicant an additional
amount of 5.000 Dutch guilders for the disadvantage suffered by
him as a result of this failure.
Following this decision the amount of 1.263.515,90 Dutch
guilders has been paid to the applicant on 22 March 1993.
COMPLAINT
The applicant complains under Article 6 para. 1 of the
Convention that his civil rights and obligations have not been
determined within a reasonable time. He complains in particular
that the Administrative Litigation Division in its decision of
26 March 1991 failed to decide the case itself.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 25 September 1991 and
registered on 20 November 1991.
On 30 June 1993 the Commission decided to communicate the
application to the respondent Government and invite them to
submit written observations on the admissibility and merits of
the application.
The Government's observations were submitted on 28 September
1993 and the applicant's observations in reply were submitted on
13 December 1993.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1)
of the Convention that his civil rights and obligations have not
been determined within a reasonable time.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"In the determination of his civil rights and
obligations (...) everyone is entitled to a (...) hearing
within a reasonable time by a (...) tribunal (...)."
The Government submit that the application has been deprived
of any material basis. The award of the additional amount of
5.000 Dutch guilders by the Administrative Litigation Division
is not based on Section 49 of the Town and Country Planning Act,
but on the general powers of the Division under Section 5 para.
4 of the Interim Act on Crown Appeals to award compensation in
cases where a decision is quashed. According to the Government
it appears from the considerations in the decision of 3 February
1993 of the Administrative Litigation Division that the award of
the additional amount of 5.000 Dutch guilders relates to the
delay caused by the Municipal Council in that the latter, in its
second decision of 31 October 1991, took insufficient account of
the Administrative Litigation Division's decision of 26 March
1991, whereas the application is primarily motivated by the
applicant's dissatisfaction with the fact that the Administrative
Litigation Division did not itself decide the substantive aspects
of the case in its first decision of 26 March 1991.
In this respect the Government submit that, insofar as an
administrative court has discretionary powers to decide the
substance of an administrative matter itself after having quashed
an administrative decision for being unlawful, these powers can
be used only if the administrative body has no room left to
exercise its discretionary powers in respect of the substance of
the matter and if the court has sufficient information to reach
a decision itself. According to the Government this was not the
case at the time the Administrative Litigation Division took its
first decision on 26 March 1991, as becomes clear from the
Division's second decision of 3 February 1993, which is based to
a significant degree on the report of 26 September 1991 of the
Damage Assessment Commission.
The Government further submit that the period between the
first refusal by the Municipal Council on 29 June 1989 of the
applicant's request for compensation under Section 49 of the Act
and the final decision of 3 February 1993 of the Administrative
Litigation Division cannot be regarded as exceeding a reasonable
time within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention. As regards the period before 29 June 1989 the
Government submit that the applicant, or his counsel, had clearly
agreed in writing to proceedings lasting longer than normal. It
was not until 1988, when the Department departed from the
experts' report drawn up in that connection, that the applicant
took various kinds of action relating to that offer, as well as
appealing against the decision of 29 June 1989.
The applicant refutes the Government's argument that the
application has been deprived of any material basis. He submits
that so far a part of the interests awarded has not been paid and
that, due to the length of the proceedings, his possibilities to
start a new business have been considerably diminished in view
of his age.
Referring to the Explanatory Memorandum (Memorie van
Toelichting) to the Interim Act on Crown Appeals, the applicant
submits that it is incorrect to say that the Administrative
Litigation Division can only decide a matter when an
administrative body has no room left to exercise its
discretionary powers in respect of the substance of the matter.
According to the applicant the Division is always competent to
decide disputes concerning the application of Section 49 of the
Act itself.
The applicant considers that the Administrative Litigation
Division had sufficient information to decide the matter itself
on 26 March 1991, given that the two reports, in which his
damages were assessed, contained almost identical conclusions.
The applicant maintains that his civil rights have not been
determined within a reasonable time, since about ten years passed
between his first agreement with public authorities in 1983 in
respect of the compensation of his damages and the final award
of this compensation in 1993. The second appeal procedure before
the Administrative Litigation Division constituted an unnecessary
delay, given that the decision of 26 March 1991 merely resulted
in a repetition of events.
The Commission, noting that the parties do not dispute the
applicability of Article 6 para. 1 (Art. 6-1) of the Convention
to the proceedings at issue, considers that Article 6 para. 1
applies to the present administrative proceedings, which were
decisive for the applicant's private rights (cf. Eur. Court H.R.,
X. v. France judgment of 31 March 1992, Series A no. 234-C, p.
90 para. 30).
However, under Article 25 para. 1 (Art. 25-1) of the
Convention the Commission can only receive an application from
a person who can claim to be a victim of a violation by one of
the High Contracting Parties of the rights set forth in the
Convention.
The Commission notes in respect of the period between 25 May
1984, when the applicant submitted his request for compensation
under Section 49 of the Act, and 29 June 1989, when the Municipal
Council rejected this request for the first time that the
applicant, represented by his lawyer, had agreed in writing to
deviate from the normally applicable time-limits in respect of
the application of Section 49 of the Act in view of the procedure
agreed upon on 26 August 1983.
The Commission considers that, by explicitly waiving his
rights under the Act in respect of the normally applicable time-
limits, the applicant made a choice which implied that the
determination of his compensation could last longer than normal.
The applicant cannot complain of a situation which he himself
helped to bring about and
cannot, therefore, claim to be a victim of a violation of Article
6 para. 1 (Art. 6-1) in respect of the length of the proceedings
between 25 May 1984 and 29 June 1989 (cf. No. 12717/87, Dec.
8.9.88, D.R. 57 p. 196).
As regards the period between 20 September 1989, when the
applicant filed an appeal against the decision of 29 June 1989,
and 3 February 1993, when the Administrative Litigation Division
determined the applicant's compensation award, the Commission,
when considering the victim question, recalls that under Article
26 (Art. 26) of the Convention it may only deal with an
application when all domestic remedies have been exhausted
according to the generally recognised rules of international law.
Under this rule an applicant is obliged to make use of remedies
likely to be effective and adequate to remedy the matters of
which he complains.
Where an applicant makes use of such remedies and thereby
obtains adequate redress at the domestic level for the alleged
violation of the Convention, he cannot complain to be a victim
of a violation (cf. No.12719/87, Dec. 3.5.88, D.R.56 p. 237).
The Commission recalls that the Administrative Litigation
Division, in its decision of 26 March 1991, ordered the Municipal
Council to take a new decision within a maximum period of six
months in which it should make its own assessment of the damages
by consulting a Damage Assessment Commission, which, in the
Commission's view, constituted an adequate measure to expedite
the proceedings.
The Commission further recalls that the Administrative
Litigation Division, in its decision of 3 February 1993, did not
only decide the substance of the applicant's claim on the basis
of the report of the Damage Assessment Commission, but also
ordered the Municipal Council to pay an additional separate
amount of 5.000 Dutch guilders for its failure to comply with the
Administrative Litigation Division's clear directives as
contained in its decision of 26 March 1991. In these
circumstances the Commission accepts that the additional amount
of 5.000 Dutch guilders awarded to the applicant constituted
adequate redress at the domestic level for the unnecessary delay
caused by this failure.
The Commission therefore finds that the applicant can no
longer claim to be a victim of the alleged violation of Article
6 para. 1
(Art. 6-1) of the Convention and it follows that the application
must be rejected under Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second
Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy