EUROPEAN COMMISSION OF HUMAN RIGHTS
APPLICATION No. 14224/88
Johannes Paulus Emmanuel BAAKMAN
against
the NETHERLANDS
REPORT OF THE COMMISSION
(adopted on 14 May 1992)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-12) . . . . . . . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-8). . . . . . . . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 9-12) . . . . . . . . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 13-32). . . . . . . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 13-24). . . . . . . . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(paras. 25-32). . . . . . . . . . . . . . . . . . . . . . . . .5
III. OPINION OF THE COMMISSION
(paras. 33-58). . . . . . . . . . . . . . . . . . . . . . . . . . .7
A. Complaints declared admissible
(para. 33). . . . . . . . . . . . . . . . . . . . . . . . . . .7
B. Points at issue
(para. 34). . . . . . . . . . . . . . . . . . . . . . . . . . .7
C. Article 6 of the Convention
(paras. 35-53). . . . . . . . . . . . . . . . . . . . . . . . .7
D. Article 13 of the Convention
(paras. 54-56). . . . . . . . . . . . . . . . . . . . . . . . 10
E. Recapitulation
(paras. 57-58). . . . . . . . . . . . . . . . . . . . . . . . 11
Dissenting opinion by Mr. H.G. SCHERMERS. . . . . . . . . . . . . . . . 12
Dissenting opinion by Mr. S. TRECHSEL, Sir Basil HALL
and Mrs. J. LIDDY . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
APPENDIX I : HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . . . . . 18
APPENDIX II : DECISION ON THE ADMISSIBILITY . . . . . . . . . . . . . . 19
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before
the Commission.
A. The application
2. The applicant is a Dutch citizen, born in 1945 and resident
in Haaksbergen, the Netherlands. He is represented before the
Commission by Mr. M. Verhoeven, a lawyer practising in Enschede,
the Netherlands.
3. The application is directed against the Netherlands. The
respondent Government are represented by their Agent,
Mr. Karel de Vey Mestdagh of the Netherlands Ministry of Foreign
Affairs, The Hague.
4. The case relates to administrative proceedings which the
applicant initiated in order to have a neighbour's building
removed. It raises issues under Article 6 para. 1 and under
Article 13 of the Convention in conjunction with
Article 1 of Protocol No. 1.
B. The proceedings
5. The application was introduced on 16 May 1988 and registered
on 16 September 1988. The Commission decided on 4 April 1990 to
communicate the application to the respondent Government for
written observations on the admissibility and merits of the
complaints under Article 6 para. 1 and under Article 13 of the
Convention in conjunction with of Article 1 of Protocol No. 1. The
Government submitted their observations on 2 July 1990 and the
applicant's observations in reply were submitted on 9 October 1990.
6. On 9 July 1991 the Commission declared the application
admissible.
7. On 15 July 1991 the parties were invited to submit additional
observations on the application. The applicant submitted
observations on 17 September 1991 and the Government on
18 October 1991.
8. After having declared the case admissible, the Commission
acting in accordance with Article 28 para. 1 (b) of the Convention,
placed itself at the disposal of the parties with a view to
securing a friendly settlement of the case. In the light of the
parties' reactions the Commission now finds that there is no basis
on which a friendly settlement can be effected.
C. The present Report
9. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations
and votes, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
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
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
The text of the Report was adopted by the Commission on
14 May 1992 and is now transmitted to the Committee of Ministers in
accordance with Article 31 para. 2 of the Convention.
10. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is:
(1) to establish the facts, and
(2) to state an opinion as to whether the facts found
disclose a breach by the State concerned of
its obligations under the Convention.
11. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the
Commission's decision on the admissibility of the application as
Appendix II.
12. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
13. 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 applicant's neighbour and owns
the adjacent land. The boundary between the two properties had
been 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.
14. 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.
15. 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 had been placed several decimetres from the actual
boundary on the applicant's land. It became clear that both the
garage and the lean-to intruded several decimetres on the
applicant's land. The applicant was not willing to sell this piece
of land to his neighbour.
16. 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 filed objections against both
decisions, namely on 29 March 1983 against the refusal to apply
administrative coercion and on 20 May 1983 against the decision to
grant the permit.
17. As no decision was taken on the applicant's objections within
the prescribed time-limit of 30 days, the passivity of the
authorities was to be considered under Dutch law as fictitious
rejections of the applicant's objections. He appealed against
these fictitious rejections on 29 June and 8 August 1983.
However, on 16 August 1983, the Mayor and Aldermen of
Haaksbergen took formal decisions on his objections. As regards
the use of executive coercion, they declared his objections partly
inadmissible and partly ill-founded. As regards the building
permit, they declared the applicant's objections ill-founded and
again granted the neighbour the building permit concerned.
18. The applicant appealed against these decisions on 12 and
16 September 1983.
19. On 28 February 1985, the Judicial Division of the Council of
State (Afdeling Rechtspraak van de Raad van State) decided on the
applicant's appeals in two separate judgments. As regards the
refusal of the Mayor and Aldermen to apply executive coercion, the
applicant's appeal was rejected as being ill-founded. As regards
the building permit for the lean-to, the Judicial Division held
that the permit had been granted wrongfully, because it was not in
conformity with the current land-use plan which stipulated that
outbuildings must be built at a distance of at least one metre from
the plot boundary. The Judicial Division therefore quashed the
fictitious decision as well as the formal decision of
16 August 1983 on the applicant's objections against the building
permit.
20. As a result of this decision of the Judicial Division of the
Council of State, the Mayor and Aldermen of Haaksbergen were under
an obligation to take a new decision regarding the applicant's
objections against the building permit granted on 8 April 1983.
However, as no such decision was taken, the applicant requested the
Judicial Division of the Council of State, on 17 June 1985, in
accordance with Section 77 (at present Section 104) of the Council
of State Act (Wet op de Raad van State), to act upon the Judicial
Division's ruling of 28 February 1985.
21. On 28 February 1986 the Judicial Division decided that the
applicant's request was well-founded and ordered the Mayor and
Aldermen to take a new decision on the applicant's objections of
20 May 1983, taking into account the Judicial Division's judgment
of 28 February 1985. The new decision was to be taken within two
months of the date on which the Judicial Division's new judgment
was despatched. The order was made on penalty of a fine per day
during which the Mayor and Aldermen failed to comply with the
order. As the judgment was despatched on 2 May 1986, the time-
limit expired on 2 July 1986.
22. In their decision of 27 May 1986, the Mayor and Aldermen
declared the applicant's objections ill-founded but nevertheless
refused the building permit for the lean-to. The applicant
appealed against this decision, but while the appeal was pending,
the Mayor and Aldermen rectified their own decision by stating, on
11 August 1986, that, in the decision of 27 May 1986, the
applicant's objections should have been declared "well-founded" and
not "ill-founded". In these circumstances, the President of the
Judicial Division decided, on 19 May 1987, to reject the
applicant's appeal against the decision of 27 May 1986. The
applicant's objections against the President's decision were
rejected by the Judicial Division on 18 November 1987.
23. 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. The
applicant's appeal to the Judicial Division was rejected on
21 February 1991. The Judicial Division held that the application
of executive coercion was the exercise of a discretionary power,
and that the decision of the Mayor and Aldermen not to use
executive coercion was not unreasonable in view of the interests
involved.
24. Also on 21 February 1991 the Judicial Division quashed a
decision of the Mayor and Aldermen of 12 July 1988 on the
applicant's objections 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.
B. Relevant domestic law
25. Section 47 of the Housing Act (Woningwet) provides that, for
constructions, a permit (bouwvergunning) by the Mayor and Aldermen
(Burgemeester en Wethouders) is required. Section 48 of the
Housing Act provides that a permit is to be granted if the building
plan is in accordance with the local zoning plan (bestemmingsplan)
and building regulations (bouwverordening) in force.
26. In the assessment of a building plan for a construction
permit, private interests of third parties, such as neighbours, are
not taken into account. A permit will only be refused if the
proposed construction would contravene public law regulations.
27. In cases where a person considers that a neigbour is guilty
of unlawful building affecting his rights as owner of the adjoining
property, there are two kinds of possible remedies of which he may
avail himself. He may have recourse either to administrative law
remedies or to private law remedies in order to have the matter
settled.
(a) Administrative law remedies
28. The Mayor and Aldermen of a municipality are competent to
grant a building permit (bouwvergunning). It is also within their
competence to apply executive coercion (bestuursdwang) in order to
discontinue, or cause to be discontinued, an unlawful factual
situation. They may for instance issue a demolition order in
respect of a building which has been constructed unlawfully.
When the Mayor and Aldermen grant a building permit or refuse
to apply executive coercion in order to remove a building
unlawfully constructed, a person whose interests are affected by
this decision may submit his objections to the Mayor and Aldermen.
If they reject the objections, an appeal against that decision may
be lodged with the Judicial Division of the Council of State
(Afdeling Rechtspraak van de Raad van State). If the Mayor and
Aldermen do not rule on the objections within a time-limit of
30 days, this is regarded as a fictitious rejection of the
objections, and an appeal to the Judicial Division is possible also
in that case.
29. If the Judicial Division of the Council of State quashes the
decision appealed against, the Mayor and Aldermen are required to
rule again on the objections against the original decision, and
when doing so, they must take the Judicial Division's judgment into
account. Should they fail to make a new ruling, the party
concerned may submit a request to the Judicial Division which, if
the request is well-founded, will order the Mayor and Aldermen to
act within a specified period of time under the threat of a
pecuniary penalty in case of non-compliance.
(b) Private law remedies
30. Irrespective of whether or not a construction is in
conformity with a building permit, it may constitute a tort
(onrechtmatige daad) in relation to another person. Against such a
tort private law remedies are available.
31. Under Article 1401 of the Civil Code (Burgerlijk Wetboek) in
force at the relevant time, which deals with tort, a plaintiff may
claim damages or request the civil court to deliver a declaratory
judgment or an injunction by which the defendant is either
forbidden or ordered to do something. This implies that a civil
court, although it lacks the competence to annul an administrative
decision, may, in summary proceedings (kort geding), render such an
administrative decision "inoperative", where no other remedy is
available (cf. Supreme Court judgment of 1 July 1983, NJ 1984,
no. 360).
32. If, however, a plaintiff claims damages for tort alleging
that the administrative decision is unlawful, and an administrative
appeal against that decision is possible but has not been lodged,
the civil court shall reject the tort claim as inadmissible. If,
on the other hand, the claim is not based on the unlawfulness of
the administrative decision, the civil court can examine the claim,
even if the plaintiff has not first challenged the decision before
an administrative court (cf. Supreme Court judgment of
22 November 1985, NJ 1986, no. 722).
The failure to make use of a possible administrative appeal
will therefore not necessarily lead to the inadmissibility of a
claim based on tort, but may nevertheless have a certain effect on
the examination by the civil court of the issues raised in respect
of the alleged tort. Where the administrative decision has not been
challenged, the civil court must assume that the decision, both in
form and contents, is in conformity with the legal requirements
(cf. Supreme Court judgment of 4 February 1983, NJ 1985, no. 21,
and of 16 May 1986, NJ 1986, no. 723). On that assumption, the
civil court must then draw the consequences under private law and
conclude whether or not tort has been established.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
33. The Commission has declared admissible the applicant's
complaints that the proceedings relating to his neighbour's lean-to
were not terminated within a reasonable time and that no effective
remedy was available to protect his right as an owner.
B. Points at issue
34. The issues to be determined are:
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention;
- whether there has been a violation of Article 13 (Art. 13) of
the Convention in conjunction with Article 1 of
Protocol No. 1 (P1-1).
C. Article 6 (Art. 6) of the Convention
35. Article 6 para. 1 (Art. 6-1) of the Convention includes the
following provision:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing within a
reasonable time by (a) ... tribunal ..."
36. The Government submit that Article 6 para. 1 (Art. 6-1) is
not applicable to the proceedings concerned. They consider that,
in order for that provision to be applicable, the proceedings must
directly determine civil rights. It is true that it is in the
applicant's interest that the municipality should refuse a building
permit and apply executive coercion, but this does not mean, in the
Government's opinion, that the proceedings regarding these matters
determine civil rights.
37. The Commission recalls that the concept of "civil rights and
obligations" is not to be interpreted solely by reference to the
respondent State's domestic law and that Article 6 para. 1
(Art. 6-1) applies irrespective of the parties' status, be it
public or private, and of the nature of the legislation which
governs the manner in which the dispute is to be determined; it is
sufficient that the outcome of the proceedings should be "decisive
for private rights and obligations" (cf. Eur. Court H.R., H. v.
France judgment of 24 October 1989, Series A no. 162, para. 47).
38. The Commission notes that the dispute which formed the
background of the proceedings in the present case related to the
fact that the applicant's neighbour had made a construction which
intruded on the applicant's property and that the applicant wished
this construction to be removed. This was undoubtedly a dispute
concerning the applicant's civil rights. The question which arises
is whether the administrative proceedings initiated were such that
they could result in a determination of those civil rights.
39. The Commission has previously been called upon to examine
cases where administrative proceedings have been resorted to in
order to settle similar disputes between neighbours. In one case,
which concerned certain inconveniences resulting from a neighbour's
garage, the Commission considered that administrative proceedings
did not involve a determination of the civil rights at issue
(No. 7941/77, Dec. 1.5.79, D.R. 16 p. 88). In a more recent case,
the Commission declared admissible an application which raised the
question of whether a decision to grant an applicant's neighbour a
building permit was decisive for a civil right of the applicant
(No. 12887/87, Dec. 7.6.90).
40. In the present case, the Government have stated that, in the
case of this kind of disputes between neighbours, the parties may
under Dutch law have recourse to administrative law or to private
law remedies to have the matter settled. The Government have added
that each of these remedies offers in its own way legal protection
to the parties concerned. However, in the Government's view, the
administrative remedy is indirect and circuitous, whereas the
private law remedy is direct.
41. The Commission considers that both kinds of remedies could
result in a decision which made it clear that the construction
intruding on the applicant's property was unlawful, either because
it did not conform to administrative regulations or because it
violated the applicant's property right. In both cases, the
outcome of the proceedings would have an impact on the applicant's
situation as the owner of the adjoining property.
42. It may be that the applicant would have made a better choice
if he had initiated a private law action before the civil courts.
However, the Commission is not called upon to determine which
proceedings would have provided the applicant with the best chances
of success. It suffices that the outcome of the proceedings
actually chosen by the applicant had, or could have, a bearing on
the civil rights which was the subject-matter of the dispute (cf.
Eur. Court H.R., Editions Périscope v. France judgment of
26 March 1992, Series A no. 234-B, para. 38, and X. v. France
judgment of 31 March 1992, Series A no. 236, para. 40).
43. The Commission is therefore of the opinion that Article 6
para. 1 (Art. 6-1) of the Convention applies to the present case.
44. The administrative proceedings brought by the applicant were
an appeal against the building permit granted to his neighbour as
well as a request for executive coercion in order to put an end to
the unlawful intrusion on his property. The Commission considers
that these two parts of the proceedings should be seen as a whole
and be examined together, since the executive coercion demanded by
the applicant must be regarded as a means of giving practical
effect to a decision establishing the unlawfulness of the
construction.
45. On the other hand, the proceedings regarding the neighbour's
fence (para. 24) cannot be seen as a continuation of the
proceedings concerning the lean-to and should therefore not be
taken into account in the consideration of the length of the
proceedings of which the applicant complains.
46. The Commission thus notes that the relevant proceedings
started on 4 October 1982, when the applicant first requested the
removal of the lean-to by executive coercion, and ended on
21 February 1991 when the applicant's appeal against the refusal to
use executive coercion was rejected by the Judicial Division of the
Council of State. Consequently, the total length of the
proceedings was about eight years and four months.
47. The Commission recalls that the reasonableness of proceedings
must be assessed in the light of the particular circumstances of
the case and with the help of the following criteria: the
complexity of the case, the conduct of the parties and the conduct
of the authorities dealing with the case (see Eur. Court H.R.,
Vermillo judgment of 20 February 1991, Series A no. 198, para. 30).
48. The Government consider that the proceedings in the period
from 20 May 1983 to 28 February 1985 were completed with a fair
degree of promptitude. As regards the period from 23 June 1987 to
21 February 1991, the Government admit that the proceedings took a
long time. They nevertheless consider that, in the particular
circumstances of the case, the proceedings were dealt with within a
reasonable time. The Government point out in this respect that
some delay was caused by the fact that the Judicial Division of the
Council of State dealt with this case concurrently with the
separate dispute regarding the fence which the neighbour had
erected. The Government finally recognise that the municipality
contributed to some delay when failing for some time to take the
decision to which the applicant was entitled in view of the
Judicial Division's judgment of 28 February 1984.
49. The Commission first notes that the proceedings cannot be
considered to have been particularly complex. It has not been
alleged that the applicant contributed to any significant delays in
the proceedings. The Commission further notes that parts of the
proceedings took place before an administrative body - the Mayor
and Aldermen of Haaksbergen - and not before a court.
Nevertheless, these parts of the proceedings must also be taken
into account under Article 6 para. 1 (Art. 6-1) of the Convention,
since they affected the final determination by a court of the
issues involved.
50. As regards the conduct of the authorities, the Commission
notes that some delays must be attributed to the Mayor and Aldermen
of Haaksbergen. After the applicant had filed objections, on
29 March and 20 May 1983, against decisions of the Mayor and
Aldermen of 24 March and 3 May 1983, the Mayor and Aldermen took no
decision within the time-limit of 30 days prescribed by law. After
the Judicial Division of the Council of State had quashed the
fictitious as well as formal municipal decisions on
28 February 1985, the Mayor and Aldermen took no new decision as
they were obliged to do, but such a decision was only taken on
27 May 1986, after the applicant had lodged a new request to the
Judicial Division of the Council of State and the Judicial Division
had ordered the Mayor and Aldermen to take a decision within a
certain time-limit. It is also noticeable that, in their decision
of 27 May 1986, the Mayor and Aldermen, apparently by mistake,
declared the applicant's objection ill-founded instead of well-
founded, which led to some unnecessary litigation before this
matter had been settled.
51. As regards the proceedings before the Judicial Division, the
Commission notes that the applicant appealed to the Judicial
Division on 12 and 16 September 1983 and that the Judicial Division
ruled on the appeals about one year and five months later, i.e. on
28 February 1985. Moreover, after the applicant had appealed
against the decision of the Mayor and Aldermen of 23 June 1987, the
Judicial Division did not rule on the appeal until about three
years and eight months later, i.e. on 21 February 1991. The
Commission cannot find that the explanation which the Government
have provided for this latter delay is sufficient as justification
for a delay of this length.
52. In the light of the criteria established by the Court's and
the Commission's case-law and having regard to all the
circumstances of the case, the Commission finds that the length of
the proceedings complained of exceeded the "reasonable time"
referred to in Article 6 para. 1 (Art. 6-1) of the Convention.
Conclusion
53. The Commission concludes, by 15 votes to 4, that there has
been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
D. Article 13 (Art. 13) of the Convention
54. The applicant also maintains that he had no effective remedy
concerning the protection of his right as an owner. He relies on
Article 13 (Art. 13) of the Convention which provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
55. The Commission notes in this regard that, in the
administrative proceedings concerned, the applicant had access to
the Judicial Division of the Council of State in order to protect
his rights. Moreover, it would also have been possible for him to
institute civil proceedings before a court against his neighbour.
In these circumstances, he cannot be considered to have lacked an
effective remedy as referred to in Article 13 (Art. 13) of the
Convention.
Conclusion
56. The Commission concludes, unanimously, that there has not
been a violation of Article 13 (Art. 13) of the Convention.
E. Recapitulation
57. The Commission concludes, by 15 votes to 4, that there has
been a violation of Article 6 para. 1 (Art. 6-1) of the Convention
(para. 53).
58. The Commission concludes, unanimously, that there has not
been a violation of Article 13 (Art. 13) of the Convention
(para. 56).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Dissenting opinion by Mr. H. G. SCHERMERS
For a number of reasons I do not agree with the Commission's
report on the application of Mr. Baakman.
1. The application with respect to Article 13 should be
inadmissible for non-exhaustion.
2. The complaint with respect to Article 6 is incompatible
because Article 6 is not applicable to this kind of litigation.
Even if Article 6 were applicable to the administrative proceedings
against the building permit, it cannot be applied to the claim for
executive coercion as the applicant has no right thereto.
3. Court judgments are effective only when executed. Still,
there is no general rule that the time needed for the execution of
judgments should be added to the reasonable time required by
Article 6. To add the time needed for execution in the present
case without adding it in other cases cannot be justified.
4. When the periods needed for proceedings outside Article 6 and
for the execution of the other proceedings are deducted the
remaining length of the proceedings which might be covered by
Article 6 (even though in my opinion it is not) is not unreasonably
long.
The following remarks may serve to clarify each of the above-
mentioned points.
I. The first question which arises is the one of the exhaustion
of domestic remedies. Two complaints of the applicant have been
declared admissible: the one on the length of the administrative
proceedings under Article 6 and the question whether the applicant
had an effective remedy concerning the protection of his rights as
an owner under Article 13. With respect to the latter question I
think the domestic remedies have not been exhausted. The normal
remedy for the protection of ownership is the one before the civil
courts. This has not even been tried by the applicant. He chose
administrative proceedings which concerned the question whether the
government fell short of their legal obligations, but which did not
concern property questions. As the applicant has not used the
proper remedies available he has not exhausted in this respect.
With respect to the applicant's claim that the administrative
proceedings took too long, the institution of civil proceedings
could not have been an appropriate remedy. As far as those
proceedings are concerned the remedies have been sufficiently
exhausted.
II. As to the applicability of Article 6 three legal problems are
involved in the present case:
1) Mr. Ten T. has built a garage and a lean-to partly on the
applicant's territory. This has caused a dispute between two
individuals which can be settled before the civil courts. There is
no doubt that Article 6 applies to such cases, but this case is not
under discussion.
2) Could Mr. Ten T. build a garage and a lean-to? For any
building in the Netherlands governmental permission is needed.
When considering requests for such a permission the government will
look into zoning plans, building regulations and similar rules of
public law. If permission is refused or subjected to too severe
conditions, the applicant of the permission can litigate against
the authorities. In the early times of the Convention this kind of
litigation was not considered as being covered by Article 6. In
their more recent case-law the Court and the Commission have
accepted, however, that the civil law interests of the prospective
builder are such that his litigation about the building permit can
be covered by Article 6.
When a building permit is to be granted it can be challenged
by a large variety of other interested persons. The following few
examples may illustrate this large variety. The view of a distant
land-owner may be spoilt to such an extent that he has an interest
in the refusal of the building permit. The prospective building
may attract so much traffic, noise or pollution that people in a
wide neighbourhood may have reason to fear deterioration of their
own property. When the proposed building is not in accordance with
building regulations this may cause risks for the neighbourhood.
As the civil rights of all these neighbours may be affected by the
granting of the building permit there may be some reason for
submitting that all such neighbours have a civil right in
litigating against the building permit and therefore should be
protected by Article 6. In my opinion this would mean an expansion
of Article 6, however, and I sincerely doubt whether the present
case is the most suitable one for such an expansion. The applicant
has a dispute with Mr. Ten T. The civil courts, which normally
decide similar disputes, are available and must be considered able
to solve the dispute. The applicant, however, addresses himself to
the government in an effort to force them to solve his private
litigation on the ground that the building permit has been
illegally granted as one is not entitled to build on someone else's
property. Whether under those circumstances the litigation against
the government can still be seen as determining a civil right is
doubtful. One might submit that it is in the interest of judicial
protection that as many kinds of disputes as possible are covered
by the article, or that the Court has shown a tendency to extend
the applicability of Article 6. It may therefore not be beyond
doubt that Article 6 is inapplicable and I am willing to assume
that Article 6 can be applied for this particular legal problem.
3) The applicant's claim that the government should use
executive coercion is of a different character. It is a means of
force at the full discretion of the government, meant to enforce
rules of public law such as building regulations. It is true that
individuals may ask the government to use executive coercion
against particular illegal building, but the government is under no
obligation to grant such requests. Executive coercion is used only
when the government considers it necessary in the public interest.
It is not a means of execution of court judgments or of any civil
rights or obligations. As an individual has no right to executive
coercion, litigation about it should not be regarded as covered by
Article 6.
III. In as far as Article 6 may be presumed to be applicable to
the present case, the question arises whether the case was decided
within a reasonable time. The Commission notes that the relevant
proceedings started on 4 October 1982 when the applicant first
requested a removal of the lean-to by executive coercion and ended
on 21 February 1991 when the applicant's appeal against the refusal
to use executive coercion was rejected by the Judicial Division of
the Council of State. Consequently, the total length of the
proceedings is estimated at 8 years and 4 months. In my opinion,
this counting is incorrect for at least two reasons.
First, the applicant's requests of 4 October 1992 and
6 January 1983 for the use of executive coercion should not be
taken into account as not being covered by Article 6. The first
act of the applicant which (though indirectly) concerned his civil
rights was his objection of 20 May 1983 against the decision to
grant a building permit for the lean-to retroactively. This
objection lead to the final decision of the Judicial Division of
28 February 1985 holding that the planning permission had been
granted wrongfully. The final court decision in this case was
given, therefore, after less than two years.
Secondly, the addition of the time needed for the execution
of a judgment to the reasonable time within which one's civil
rights have to be determined inevitably leads to arbitrariness and
should be avoided. It is true that the municipal executive of
Haaksbergen was slow in executing the judgment of the Judicial
Division. The applicant, however, did not depend on this
execution. After the annulment of the building permission by the
Judicial Division it was clear that the lean-to was illegally
constructed which enabled the applicant to obtain a judgment from
the civil courts ordering Mr. Ten T. to remove the illegal
construction or, at least, to pay compensation. The negligence of
the municipal executive of Haaksbergen had the effect that
Mr. Ten T. was in contravention of the law, having built without a
required permit. This is a public law affair which could perhaps
lead to a fine or to measures of the government against Ten T., but
which was of no direct concern to the applicant. However, being
interested in a decision of the municipal executive of Haaksbergen
the applicant went back to the Judicial Division and obtained a
court order that the municipality should take a decision concerning
the applicant's objection of 20 May 1983. This leads to the
question whether the time needed for the execution of a judgment
may in some cases be added to the reasonable time within which
everyone is entitled to a court judgment, even though the period
for execution is not added in other cases. Normally, the length of
procedure is counted until the final court judgment. As a rule
court judgments are executed without further proceedings, but if
they are not, the litigant may have to go to a court again for
obtaining execution. As he will first have tried to obtain
execution without the help of a court a considerable amount of time
may pass between the date of the final court judgment and the date
on which the litigant brings the question of execution again before
a court. The length of this amount of time depends on the litigant
and cannot, therefore, be attributed to the Government. It should
not be included in the length of procedure to be respected under
Article 6. In the present case this amount of time is
extraordinary short, but in most cases it may well be more than six
months. That illustrates the need to either always include the
time needed for execution in the length of procedure, or to
separate the two proceedings in all cases. As long as the
execution is not always included in the length of the proceedings a
complaint for length of procedure lodged more than six months after
a final court judgment would be declared inadmissible for violation
of the six months time limit if no litigation about the execution
follows. If there is litigation about the execution then the case
would no longer be time barred even if such further litigation
would start more than six months after the final court judgment in
the case itself. A case which was inadmissible when brought more
than six months after the final court decision would then become
admissible again solely because the applicant decided to bring its
execution again before a court. The time needed for the litigation
on the execution would then be added to the total proceedings.
The addition of all proceedings on the execution of judgments
to the time needed for the court decisions themselves would entail
an expansion of Article 6 which is neither in conformity with the
case-law so far, nor desirable. The alternative is to keep the two
procedures separated.
However, in the case of Martins Moreira the Court held that
the relevant period should also extend to the subsequent
enforcement proceedings (Eur. Court H.R., Martins Moreira judgment
of 26 October 1988, Series A no.143, p. 16 para. 44). In this
judgment the Court referred to the Guincho judgment of
10 July 1984, where also the time needed for a further judgment had
been added, but there the first judgment was not final as the
further judgment had to establish the amount of the damages to be
paid (Eur. Court H.R., Guincho judgment of 10 July 1984,
Series A no. 81, p. 13 para. 29).
In the present case the municipality took a decision in order
to execute the judgment of 28 February 1985. Against this decision
the applicant lodged an appeal which was dismissed after two years
as manifestly ill-founded on 19 May 1987. If the time needed for
the original decision and that for its execution are added together
the final decision was taken four years after the applicant's first
objection against the building permit.
IV. The question then arises whether four years is too long a
period for both a court decision against a governmental authority
and the execution of that court decision. I think this period can
be justified, not so much because of the complexity of the case,
but rather because of the stubborness of the applicant. The
authorities were of the opinion that Mr. Ten T., who acted in good
faith, should not be compelled to demolish his garage or his lean-
to. As the applicant was unwilling to sell the small piece of land
involved or to accept any other form of compensation the case
became complicated because of lack of an acceptable solution.
Taking that into account I think that even the period of four years
was not unjustifiably long.
Independent of the above mentioned action and prior to its
decision the applicant started on 23 February 1987 a new action to
obtain executive coercion. As he had no right to such coercion
under Dutch law this action falls outside Article 6, but even if it
were covered by Article 6 it should not be accepted as a
continuation of the litigation. Executive coercion had already
been refused, and each new application for it must be seen as a
separate action to force a particular way of execution which
previously failed. The final decision in this action was taken on
21 February 1991 which is four years after its introduction. I
find this a long period of time for a simple action, but I think it
cannot be taken into account as this not a kind of action covered
by Article 6.
Considering all aspects of the case I think that the delays
which might be covered by Article 6 are not such that the European
Convention of Human Rights has been infringed.
Dissenting opinion of Mr. S. TRECHSEL, Sir Basil HALL and
Mrs. J. LIDDY
We do not agree that the proceedings brought by the applicant
against the Mayor and Aldermen of HAAKSBERGEN were proceedings to
which Article 6 para. 1 of the Convention applied.
These proceedings did not result in, and could not have
resulted in, the determination of the applicant's civil rights.
His right of property was indeed not in dispute. The building
constructed by his neighbour, to which the proceedings related,
uncontestably intruded into his land. In respect of that intrusion
remedies against the neighbour were available and proceedings taken
by the applicant against the neighbour could have determined any
contestation there might have been over the applicant's civil
rights.
The issue in the proceedings taken against the HAAKSBERGEN
municipality was of a different character. The applicant claimed
that his objection to the grant of planning permission should not
have been rejected and that the municipality should use executive
coercion to effect the demolition of the building in question.
In our view the proceedings were directed to the question
whether the municipality had properly carried out its public duties
and not to the determination of the applicant's civil rights. His
civil right of ownership was not in issue in these proceedings. A
contestation on that issue -had there been any - could only have
been resolved in civil proceedings brought by the applicant against
his neighbour.
Accordingly, we conclude that there was no violation of
Article 6 para. 1 in this case.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
___________________________________________________________________
16 May 1988 Introduction of application
16 September 1988 Registration of application
Examination of admissibility
4 April 1990 Commission's decision to
invite the Government to
submit their observations
on the admissibility and
merits of the application
2 July 1990 Government's observations
9 October 1990 Applicant's observations in
reply
9 July 1991 Commission's decision to
declare the application
admissible
Examination of the merits
15 July 1991 Parties invited to submit
further observations on the
merits
17 September 1991 Applicant's further
observations
18 October 1991 Government's further
observations
14 May 1992 Commission's deliberations
on the merits, final vote
and adoption of the Report
Full & Egal Universal Law Academy