Application No. 15642/89
by F.B., A.B. and Association X.
against the Netherlands
The European Commission of Human Rights sitting in private on
31 August 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
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 2 February 1989
by F.B., A.B. and Association X. against the Netherlands and
registered on 18 October 1989 under file No. 15642/89;
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 F.B., A.B. born in respectively 1942 and 1944,
both Dutch citizens and residing in B., the Netherlands, and
"Association X." an association with its registered seat in B. The
association's aim is, inter alia, to promote and maintain the safety
and quality of life within the region A. for the citizens and other
parties concerned within the region.
The applicants are represented by the association's secretary
A.J.G. Grobbe, residing in B.
The facts of the case, as submitted by the parties, may be
summarised as follows.
By decision of 6 July 1982 the Provincial Executive (Gedeputeerde
Staten) of Gelderland ordered (aanwijzingsbesluit) the Municipal
Council (Gemeenteraad) of A. to revise the zoning plan
(bestemmingsplan) "Immenberg", inter alia, in order to enable the
construction of a specific road.
On 16 February 1984 the Municipality of Apeldoorn decided not to
comply with the order in respect of the road.
After having considered objections raised by, among others, the
applicants, the Provincial Executive of Gelderland, on the basis of
Article 40 of the Town and Country Planning Act (Wet op de Ruimtelijke
Ordening) adopted the ninth partial revision of the "Immenberg" zoning
plan on its own authority, and transmitted the revision to the Crown
(de Kroon) for final approval as required by Article 40 of the Town and
Country Planning Act.
As objections by, inter alia, the applicants against this
revision had been raised, the Crown requested the advice of the
Administrative Litigation Division of the Council of State (Afdeling
voor de geschillen van bestuur van de Raad van State). On 22 June 1988
and 24 February 1989 the Administrative Litigation Division advised the
Crown not to approve the revised plan.
By Royal Decree of 14 July 1989, the Crown, contrary to the
opinion of the Administrative Litigation Division, rejected the
objections on future traffic safety, traffic policy, hindrance by
future traffic, noise, negative financial and environmental aspects and
approved the ninth revision of the zoning plan.
Following two letters by the applicant association, the President
of the Administrative Litigation Division informed the association by
letter of 14 August 1989 that the Provisional Act on Crown Appeals
(Tijdelijke wet Kroongeschillen) was not applicable to the proceedings
concerning the zoning plan revision, as this Act applies to disputes
on which according to the law the Crown should decide, whereas in this
case the Crown's function is not that of an administrative appeal organ
but that of an administrative authority.
The second and third applicants subsequently started summary
proceedings (kort geding) before the President of the Regional Court
(Arrondissementsrechtbank) of The Hague, requesting an injunction
prohibiting the construction of the planned road. On 19 October 1989
the President rejected the request as being premature. He considered
that the State had argued that it would not start the construction
works before construction and tree-felling permits had been issued and
either the administrative or the civil judge in summary proceedings had
examined the applicants' possible objections in respect of the zoning
plan. The President did not exclude the possibility for a civil judge
to examine the applicants' objections against the zoning plan in that
context.
On 31 October and 10 November 1989 the Municipal Executive of A.
granted construction permits to the general manager of the Department
of Public Works (Rijkswaterstaat) in Gelderland in order to start the
construction works of the planned road.
The applicants subsequently requested the President of the
Judicial Division of the Council of State (Afdeling Rechtspraak van de
Raad van State) to apply Article 107 of the Council of State Act (Wet
op de Raad van State) - which deals with the possibility to request a
suspension or an interim measure in respect of administrative decisions
pending an administrative appeal - and suspend the granted construction
permits.
The applicants' request was rejected on 1 February 1990 by the
President of the Judicial Division. In his decision, the President
agreed with the opinion of the President of the Administrative
Litigation Division, as expressed in the latter's letter of 14 August
1989 to the applicant association, that the Provisional Act on Crown
Appeals did not apply to the proceedings on the zoning plan revision
at issue and considered, inter alia, in respect of the Royal Decree of
14 July 1989 that the Crown, after having thoroughly balanced the
interests involved, had reached a lawful decision which could not be
considered as being unreasonable or arbitrary. In respect of the
construction permits the President held that the Municipal Executive
had correctly examined the compatibility of the construction permits
with the zoning plan and had granted these permits in accordance with
the law.
Following the rejection by the Municipal Executive of Apeldoorn
of the applicants' objections against the granting of the construction
permits, they submitted a subsequent appeal to the Judicial Division,
which is apparently still pending.
COMPLAINT
The applicants complain under Article 6 para. 1 of the Convention
that their civil rights have not been determined by an impartial and
independent tribunal, as the Crown did not decide on the approval of
the proposed revision in accordance with the advice of the
Administrative Litigation Division of the Council of State.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 2 February 1989 and registered
on 18 October 1989.
On 7 November 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's observations were submitted on 1 March 1991 and
the applicants' reply thereto on 7 May 1991.
THE LAW
The applicants complain under Article 6 para. 1 (Art. 6-1) of the
Convention that their civil rights have been determined by the Crown,
which they claim is not an independent and impartial tribunal.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides:
"1. In the determination of his civil rights and
obligations (...) everyone is entitled to a fair and public
hearing (...) by an independent and impartial tribunal
(...)."
The Government are of the opinion that the applicants have failed
to exhaust domestic remedies in respect of their complaint.
The Commission notes in the first place that the applicant
association's aim is, inter alia, to promote and maintain the safety
and quality of life within the region Apeldoorn-Dieren for the citizens
and other parties concerned within the region.
The question therefore arises whether the applicant association
can be regarded as an applicant for the purposes of Article 25
(Art. 25) of the Convention.
According to this provision the Commission may receive petitions
"from any person, non-governmental organisation or group of individuals
claiming to be a victim of a violation by one of the High Contracting
Parties of the rights set forth in (the) Convention".
However, the Commission does not need to resolve this issue, as
the application is inadmissible for the following reasons.
The Commission recalls that, under the Convention, the concept
of "civil rights and obligations" is autonomous and cannot be
interpreted solely by reference to domestic law. In deciding whether
a "civil right" exists for the purposes of Article 6 para. 1 (Art. 6-
1), account should be taken of its substantive content and effects, the
object and purpose of the Convention and the national legal systems of
the other Contracting States. In addition it must be shown that the
result of the proceedings at issue was decisive for such a right (cf.
No. 11282/84, Dec. 12.11.87, D.R. 54 p. 70 with further references).
The Commission also recalls that proceedings aimed at changing
a zoning plan do not, as such, involve a determination of civil rights
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention
(cf. No. 11844/85, Dec. 29.2.88, D.R. 55 p. 205).
The Commission notes that the applicants' objections against the
revised zoning plan and the granted construction permits are of a
general nature and solely relate to the applicants' general quality of
life within their direct environment.
In these circumstances the Commission considers that there is no
indication that the proceedings at issue, as such, determined the
applicants' civil rights and obligations within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that the application is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy