AS TO THE ADMISSIBILITY OF
Application No. 14224/88
by Johannes Paulus Emmanuel BAAKMAN
against the Netherlands
The European Commission of Human Rights sitting in private
on 9 July 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
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
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 16 May 1988 by
Johannes Paulus Emmanuel BAAKMAN against the Netherlands and
registered on 16 September 1988 under file No. 14224/88;
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 applicant is a Dutch citizen, born in 1945. He is an
unemployed nuclear process technician and lives in Haaksbergen, the
Netherlands. Before the Commission the applicant is represented by
M. Verhoeven, a lawyer practising in Enschede, the Netherlands.
The facts as submitted by the parties may be summarised as
follows.
On 15 September 1976 the applicant bought a farmhouse and a
piece of land from the heirs of A.J.H. ten T. One of the deceased's
sons, J.H. ten T., is the neighbour and owns the adjacent land. The
boundary between the two properties was determined by officials of the
land registry on 15 October 1970 and marked accordingly by a stone
post on one side and a steel pipe with a wooden post on top on the
opposite side. In 1981 the land registry compared the actual boundary
marks with the boundary indicated in the land register, and found that
the visible boundary marks did not correspond to the land register.
The wooden post was placed several decimetres from the boundary on the
applicant's land.
In 1976 the neighbour applied for a building permit for a
garage, which was granted by the Mayor and Aldermen (Burgemeester en
Wethouders) of Haaksbergen on 28 September 1976. When the garage was
completed in 1977, the neighbour had, without a permission thereto,
also built a lean-to behind the garage. After the verification of the
land boundaries it became clear that both the garage and the lean-to
intruded several decimetres on the applicant's land. The applicant is
not willing to sell this piece of land to his neighbour.
On 4 October 1982 and 6 January 1983, the applicant requested
the Mayor and Aldermen of Haaksbergen to order the removal of the
garage and lean-to using executive coercion (bestuursdwang).
On 24 March 1983 the Mayor and Aldermen of Haaksbergen rejected
the applicant's request and decided to give the neighbour the
opportunity of requesting a building permit for the lean-to
retroactively, which he did on 8 April 1983. The permit was granted
on 3 May 1983. The applicant appealed against both decisions. In the
final appeal proceedings on the refusal by the Mayor and Aldermen to
apply executive coercion the Judicial Division of the Council of State
(Afdeling Rechtspraak van de Raad van State) quashed the negative
decision by the Mayor and Aldermen and rejected the applicant's appeal
as ill-founded in their decision of 28 February 1985. In the final
proceedings on the granting of the building permit for the lean-to the
Judicial Division in their decision of 28 February 1985 quashed the
negative decision of the Mayor and Aldermen on the applicant's
objection on the ground that the building permit for the lean-to had
been wrongly granted.
The Mayor and Aldermen therefore had to take a new decision on
the applicant's objection against the granting of the building permit
for the lean-to.
As the Mayor and Aldermen failed to do so, the applicant
requested the Judicial Division on 17 June 1985 to apply Section 77
(at present Section 104) of the Council of State Act (Wet op de Raad
van State), which deals with cases in which administrative organs
fail to act on a ruling. On 28 February 1986 the Judicial Division
held that the applicant had rightly complained and ordered the
Mayor and Aldermen to take a new decision before 2 July 1986.
On 27 May 1986 the Mayor and Aldermen decided to refuse the
building permit, yet declared the applicant's complaint ill-founded.
The applicant filed an appeal against this decision, which was finally
rejected by the Judicial Division on 18 November 1987, as the Mayor
and Aldermen had corrected their decision already on 10 June 1986 and
11 August 1986 by stating that the applicant's complaints were indeed
well-founded. Also on 18 November 1987 the Judicial Division rejected a
second request of 7 July 1986 by the applicant to apply Section 77 (at
present Section 104) of the Council of State Act.
On 23 February 1987 the applicant again requested the Mayor
and Aldermen to apply executive coercion in order to remove the
lean-to. This request was rejected on 23 June 1987. In the final
appeal proceedings before the Judicial Division the applicant's appeal
was rejected on 21 February 1991. The Judicial Division held that the
application of executive coercion is no obligation, but a
discretionary power. It further held that the decision of the Mayor
and Aldermen not to apply executive coercion, as the part of the
lean-to which is built on the applicant's land is too small to justify
the application of executive coercion in respect of the lean-to, was
not an unreasonable decision in view of the interests involved.
Also on 21 February 1991 the Judicial Division quashed a
negative decision of the Mayor and Aldermen of 12 July 1988 on the
applicant's objection against a fence his neighbour had constructed in
the meantime, also on the applicant's land, without a building permit.
It held that the Mayor and Aldermen had unjustly concluded that no
building permit was required for the construction of the fence.
The two decisions of 21 February 1991 were received by the
applicant on 7 March 1991.
In connection with these proceedings, the applicant also
brought proceedings against a local zoning plan (bestemmingsplan)
which included rules about the rights to erect outbuildings. He
initiated these proceedings by appealing, on 20 May 1983, against a
proposal for such a plan, and he pursued the proceedings after the
plan had been approved by the municipal authorities on 30 August 1983.
The proceedings ended with the Crown (Kroon) decision of 18 November
1986 in which the approval of the plan was annulled.
COMPLAINTS
The applicant complains that he cannot gain adequate redress
in his attempts to have his neighbour's outbuilding removed, which has
been built several decimetres onto his side of the property line. He
also complains that the proceedings have not been terminated within a
reasonable time, whereas no effective remedy was available concerning
the protection against an infringement of his rights as an owner. He
alleges violations of Article 6 para. 1 of the Convention and Article
13 of the Convention in conjunction with Article 1 of Protocol No. 1.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 16 May 1988 and registered
on 16 September 1988.
On 4 April 1990 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 submitted the observations on 2 July 1990 and
the applicant's observations in reply were submitted on 9 October 1990.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the proceedings relating to his neighbour's outbuilding
have not been terminated within a reasonable time.
Article 6 para. 1 (Art. 6-1) reads insofar as relevant:
"1. In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public
hearing within a reasonable time by a ... tribunal ..."
The Government submit that the applicant failed to exhaust all
domestic remedies as the applicant would still be able, as he has been
from the beginning, to institute civil proceedings against his
neighbour for interference with the applicant's rights of ownership.
The Government state that the procedures the applicant has followed
were not designed to protect his ownership rights, but to assess the
conformity of building plans with government physical planning
criteria and necessary technical requirements. The Government further
state that executive coercion is not a remedy which a member of the
public may have recourse to for the protection of his private
interests.
The Government state furthermore that, even assuming that
Article 6 para. 1 (Art. 6-1) of the Convention would apply to the
present case, the reasonable time referred to in Article 6 para. 1
(Art. 6-1) of the Convention has not been exceeded.
The applicant also invokes Article 13 (Art. 13) of the
Convention in conjunction with Article 1 of Protocol No. 1 (P1-1),
stating that in respect of his rights as an owner, he has been denied
an effective remedy.
The Government submit that an effective remedy to this end
exists in the form of civil proceedings, which the applicant failed to
initiate.
The Commission first notes that the applicant complains of the
length of the administrative proceedings and takes the view that the
procedures referred to by the Government do not constitute effective
remedies in regard to the length of the administrative proceedings.
The Commission considers that the main issue to be decided is
whether the decisions relating to the outbuildings constructed by the
applicant's neighbour were decisive for a "civil right" of the
applicant and, if so, whether this civil right was determined within a
reasonable time as required by Article 6 para. 1 (Art. 6-1) of the
Convention.
The Commission furthermore considers that it has to be decided
whether the applicant's rights as an owner were affected by the
present proceedings and, if so, whether the proceedings the applicant
instituted are to be considered "effective remedies" within the meaning
of Article 13 (Art. 13) of the Convention.
After an examination of these issues in the light of the
parties' submissions, the Commission considers that they raise
questions of fact and law which are of such a complex nature that
their determination requires an examination of the merits. The
application cannot therefore be declared inadmissible as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for inadmissibility
have been established.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy