AS TO THE ADMISSIBILITY OF
Application No. 17240/90
by Ikon Industriële Konsulenten in
Marketing-Management B.V. and
Martin Simon
against the Netherlands
The European Commission of Human Rights (First Chamber)
sitting in private on 8 July 1991, the following members being
present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
H. DANELIUS
Sir Basil HALL
MM. C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
Mr. M. de SALVIA, Secretary to the First 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 29 June 1990
by Ikon Industriële Konsulenten in Marketing-Management B.V. and
Martin Simon against the Netherlands and registered on 1 October 1990
under file No. 17240/90;
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 facts of the case, as they appear from the applicants'
observations, may be summarised as follows.
The first applicant, Ikon Industriële Konsulenten in
Marketing-Management B.V., is a company seated in Amsterdam.
The second applicant is a Dutch citizen, born in 1944 and
resident in Amsterdam. He is the director and only share-holder of
the first applicant.
Both applicants are represented by Mr. J.R. Branbergen, a
lawyer in Amsterdam.
On 4 September 1975, the first applicant bought the right to a
long-term lease of the property at Bachstraat 15 in Amsterdam and
established its office on the property. It subsequently appeared that
the property was registered as residential property, this being also
the use of the property indicated in the long-term lease agreement of
12 July 1929.
On 20 January 1976, the first applicant requested the
municipality of Amsterdam to grant a permission for a changed use of
property. On 15 December 1976, a supplementary request was made to
change the corresponding condition in the long-term lease agreement.
On 7 April 1977 the municipality informed the first applicant
that they did not agree to change the permitted use of the property.
The first applicant appealed to the Provincial Government of the
Province of North-Holland which decided on 6 September 1977 that the
appeal was well-founded and granted a permission to change the use of
the property. However, the municipality of Amsterdam persisted in
refusing to change the corresponding condition in the long-term lease
agreement.
On 23 May 1978 the municipality of Amsterdam sued the first
applicant before the Regional Court (Arrondissementsrechtbank) of
Amsterdam, requesting the Court to prohibit the first applicant from
using the property for other than residential purposes. A hearing was
held on 15 October 1979. It was then announced that judgment would be
given on 19 December 1979. However, the rendering of the judgment was
postponed six times, and it was not given until on 28 May 1980. In
the judgment, the municipality's claim was granted.
On 13 June 1980 the first applicant appealed to the Court of
Appeal (Gerechtshof) of Amsterdam. The proceedings before the Court
of Appeal lasted from 13 June 1980 to 3 January 1985. After two
interlocutory judgments of 25 June 1981 and 6 October 1983 the final
judgment of the Court of Appeal was given on 3 January 1985. Its
content was that the Regional Court's judgment was quashed and the
municipality's claim was rejected.
On 3 April 1985 the municipality of Amsterdam appealed to the
Supreme Court (Hoge Raad). On 27 March 1987 the Supreme Court quashed
the judgment of the Court of Appeal and referred the case back to the
Court of Appeal of The Hague for further examination.
In November 1987 the municipality of Amsterdam resumed the
proceedings before the Court of Appeal of The Hague. In its judgment
of 7 February 1989 the Court of Appeal quashed the Regional Court's
judgment of 28 May 1980 and again rejected the municipality's claim
against the first applicant.
On 7 May 1989 the municipality again appealed to the Supreme
Court which gave its judgment on 22 March 1991. In its judgment, the
Supreme Court rejected the appeal of the municipality.
COMPLAINTS
The applicants claim that they have suffered considerable
damage because of the delays in the court proceedings. Because of the
uncertainty as to whether they may use the property at Bachstraat 15
for office purposes, they have found it necessary to move the first
applicant's office to another location.
The applicants allege that their civil rights have not been
determined within a reasonable time and allege a violation of Article
6 para. 1 of the Convention.
THE LAW
The applicants complain that their civil rights have not been
determined within a reasonable time and allege a violation of Article
6 para. 1 (Art. 6-1) of the Convention.
1. The Commission first notes that only the first applicant was a
party to the proceedings before the Dutch courts. The second
applicant is the director and only shareholder of the first applicant
and is in such capacities indirectly affected by the outcome of the
proceedings. The Commission therefore considers that both applicants
may claim to be victims of a violation of the Convention as regards
the length of the proceedings and that they are entitled to complain
to the Commission in accordance with Article 25 (Art. 25) of the Convention.
2. The Government submit that the domestic remedies have not been
exhausted as required by Article 26 (Art. 26) of the Convention since the
applicants did not at any time during the domestic proceedings raise
the issue of the length of the proceedings and since they also did
not, pursuant to Section 1401 of the Civil Code, institute proceedings
claiming damages from the Government in respect of the length of the
proceedings. Having regard to the outcome of the domestic
proceedings, the Government further submit that the applicants may now
request damages from the municipality of Amsterdam and that such a
request may include compensation for the length of the proceedings
insofar as the municipality may be held responsible.
The applicants reply that they could not, by raising, during
the proceedings, the issue of their length, have obtained a judicial
decision which would have expedited these proceedings. Nor could an
action based on Section 1401 of the Civil Code have accelerated the
proceedings and such an action could therefore not be seen as an
alternative to a complaint based on Article 6 para. 1 (Art. 6-1) of the
Convention. As regards a claim directed against the municipality, the
applicants submit that they intend to make such a claim which will
concern the damage suffered as a result of their having been obliged
to move from their property. The claim will not be based on the
length of the proceedings, but the new compensation proceedings can be
expected to go on for some years to come, and this period should be
added to the time the previous proceedings have lasted.
The Commission considers that, although the first applicant
could have raised the issue of the length of the proceedings in the
course of these proceedings, it has not been shown that this would
have constituted an effective remedy. Nor could an action based on
the general right to compensation for wrongful acts under Section 1401
of the Civil Code be regarded as an effective remedy in regard to a
complaint of the length of the proceedings.
As regards an action against the municipality of Amsterdam,
the Commission notes that such proceedings could only concern matters
for which the municipality could be held responsbile and not delays
for which the courts themselves were responsible.
The Commission therefore finds that the application cannot be
rejected on the ground that the applicants have not exhausted the
domestic remedies within the meaning of Article 26 (Art. 26) of the
Convention.
3. As regards the substance of the applicants' complaint the
Government admit that the proceedings took longer than could be
regarded as desirable. However, the Government take the view that the
time was not unreasonable and in violation of Article 6 para. 1
(Art. 6-1) of the Convention.
The applicants maintain that the total time of the proceedings
was unreasonably long.
The Commission notes that the court proceedings started on 23
May 1978 and ended on 22 March 1991. Consequently, they lasted for
about 12 years 10 months.
The Commission finds that the case raises complex issues of
fact and law under the Convention, the determination of which must be
reserved for an examination of the merits.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION ADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M. de SALVIA) (J.A FROWEIN)
Full & Egal Universal Law Academy