EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
APPLICATION No. 17240/90
IKON Industriële Konsulenten in
Marketing-Management B.V. and Martin SIMON
against
the NETHERLANDS
REPORT OF THE COMMISSION
(adopted on 1 July 1992)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-21) . . . . . . . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-8). . . . . . . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 9-16) . . . . . . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 17-21). . . . . . . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 22-33). . . . . . . . . . . . . . . . . . . . . . . . . . .4
III. OPINION OF THE COMMISSION
(paras. 34-62). . . . . . . . . . . . . . . . . . . . . . . . . . .7
A. Complaint declared admissible
(para. 34). . . . . . . . . . . . . . . . . . . . . . . . . .7
B. Point at issue
(para. 35). . . . . . . . . . . . . . . . . . . . . . . . . .7
C. Article 6 para. 1 of the Convention
(paras. 36-60). . . . . . . . . . . . . . . . . . . . . . . .7
i. General considerations
(paras. 36-39). . . . . . . . . . . . . . . . . . . . . . . .7
ii. Period to be considered
(para. 40). . . . . . . . . . . . . . . . . . . . . . . . . .7
iii. Reasonableness of the length of the proceedings
(paras. 41-60). . . . . . . . . . . . . . . . . . . . . . . .8
a. Complexity of the case
(paras. 43-44) . . . . . . . . . . . . . . . . . . . . . .8
b. Conduct of the first applicant
(paras. 45-47) . . . . . . . . . . . . . . . . . . . . . .8
c. Conduct of the authorities
(paras. 48-59) . . . . . . . . . . . . . . . . . . . . . .9
d. General assessment
(paras. 60-61) . . . . . . . . . . . . . . . . . . . . . 11
D. Conclusion (para. 62) . . . . . . . . . . . . . . . . . . . 11
APPENDIX I : HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . . . . 12
APPENDIX II : DECISION ON THE ADMISSIBILITY OF
THE APPLICATION . . . . . . . . . . . . . . . . . . . . 13
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 first applicant, Ikon Industriële Konsulenten in
Marketing-Management B.V., is a company whose seat is in Amsterdam.
The second applicant, Martin Simon, 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.
The application is directed against the Netherlands whose
Government are represented by Mr. K. de Vey Mestdagh, of the
Netherlands Ministry of Foreign Affairs.
3. 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 certain property for other than residential purposes.
In a judgment of 28 May 1980 the Court granted the Municipality's
claim.
4. On 13 June 1980 the first applicant appealed to the Court of
Appeal (Gerechtshof) of Amsterdam. In its judgment of
3 January 1985 the Court of Appeal quashed the Regional Court's
judgment and rejected the Municipality's claim.
5. On 3 April 1985 the Municipality 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 to the Court
of Appeal of The Hague for further examination.
6. After the Municipality had resumed the proceedings in
November 1987, the Court of Appeal of The Hague, in a judgment of
7 February 1989, quashed the Regional Court's judgment of
28 May 1980 and rejected the Municipality's claim.
7. On 7 May 1989 the Municipality appealed to the Supreme Court
which, in a judgment of 22 March 1991, rejected the appeal.
8. The applicants complain of a violation of Article 6 para. 1
of the Convention in that the length of the proceedings before the
Dutch courts exceeded a reasonable time.
B. The proceedings
9. The application was introduced on 29 June 1990 and registered
on 1 October 1990.
10. On 3 December 1990 the Commission decided to invite the
respondent Government to submit their observations on the
admissibility and the merits of the application. The Commission
also decided that the application should be examined by a Chamber.
11. After having consulted the parties, the Commission decided on
9 April 1991 to refer the application to a Chamber.
12. The Government's observations were submitted on 12 April 1991
and the applicants' observations in reply were submitted on
29 April 1991.
13. On 8 July 1991 the Commission (First Chamber) declared the
application admissible and decided to put additional questions to
the parties.
14. Additional observations were submitted on 16 September,
25 October and 29 November 1991 by the applicants and on 18 October
and 27 November 1991 by the Government.
15. After declaring the case admissible, the Commission, acting
in accordance with Article 28 para. 1 (b) of the Convention, also
placed itself at the disposal of the parties with a view to
securing a friendly settlement of the case. Consultations with the
parties took place between 15 July and 18 October 1991.
16. The Commission now finds that there is no basis on which such
a settlement can be effected.
C. The present Report
17. The present Report has been drawn up by the Commission
(Second Chamber) in pursuance of Article 31 of the Convention and
after deliberations and votes, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
18. The text of this Report was adopted on 1 July 1992 and is now
transmitted to the Committee of Ministers of the Council of Europe,
in accordance with Article 31 para. 2 of the Convention.
19. The purpose of the Report, pursuant to Article 31 of the
Convention, is
i) to establish the facts, and
ii) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
20. 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.
21. The full text of the parties' submissions, together with the
documents lodged as exhibits, is held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
22. On 4 September 1975 the first applicant bought the right to a
long-term lease (erfpacht) of the property situated 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.
23. On 20 January 1976 the first applicant requested the
Municipality of Amsterdam to grant a permission for a changed use
of the property. On 15 December 1976 a supplementary request was
made to change the corresponding condition in the long-term lease
agreement.
24. On 7 April 1977 the Municipality refused to agree to change
the permitted use of the property. On 19 April 1977 the first
applicant appealed against this refusal to the Provincial Executive
(Gedeputeerde Staten) of the Province of North Holland. On
6 September 1977 the Provincial Executive decided 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.
25. 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. After
an exchange of memorials, 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 (on 19 December 1979, 30 January, 27 February, 26 March,
23 April and 21 May 1980). Judgment was finally given on
28 May 1980.
26. In the judgment of 28 May 1980 the Regional Court found that
the use indicated in the original long-term lease agreement of
12 July 1929 was binding also on new lessees and that this
condition had not lost its legally binding force as a result of the
fact that some lessess had not respected the condition. Nor could
it be said that the Municipality had renounced this condition or
otherwise lost its right to invoke it. The Court therefore granted
the Municipality's claim and prohibited the first applicant from
using the property for other than residential purposes.
27. On 13 June 1980 the first applicant appealed to the Court of
Appeal (Gerechtshof) of Amsterdam. After an exchange of memorials,
a first hearing was held on 23 April 1981. An interlocutory
judgment was given on 25 June 1981. In this judgment some of the
first applicant's arguments were rejected. However, in the Court's
opinion it remained to be examined whether the refusal to allow the
first applicant to use the property at Bachstraat 15 for other than
residential purposes was in conflict with the "principle of
equality" ("gelijkheidsbeginsel"). The answer to that question
depended on whether the refusal given to the first applicant and
the decisions to grant applications for a change of use, which had
been made in some other cases, could be considered to be part of a
consistent municipal policy. The Court therefore requested the
Municipality to provide a survey of other applications for a change
of the residential use of properties in the same area and of the
decisions taken in regard to those applications. The Municipality
was also requested to indicate the policy guidelines which were the
basis for such decisions. The case was referred to a further
hearing on 17 September 1981.
28. During the period from September 1981 to April 1983 the
Municipality repeatedly requested and was granted an extended time-
limit for the presentation of the material requested by the Court
of Appeal in its interlocutory judgment. The material was finally
submitted on 14 April 1983, and the first applicant submitted its
reply on 2 June 1983. On 6 October 1983 the Court of Appeal gave a
second interlocutory judgment. It considered that the Municipality
had interpreted the Court's previous request too restrictively and
had not provided sufficient information to allow the Court to reach
a conclusion on the observance or not of the principle of equality.
It therefore requested the Municipality to provide supplementary
information and referred the case to a hearing on 17 November 1983.
29. Further submissions by the Municipality were made on
12 January and 4 October 1984 and by the first applicant on
19 April 1984. On 3 January 1985 the Court of Appeal gave its
judgment in which it quashed the Regional Court's judgment and
rejected the Municipality's claim. The Court found that the
Municipality had not shown that the negative decision taken in
regard to the first applicant and certain other decisions were
based on a consistent municipal policy. Consequently, there had
been a breach of the principle of equality.
30. On 3 April 1985 the Municipality appealed to the Supreme
Court (Hoge Raad). In its judgment of 27 March 1987 the Supreme
Court found that the Court of Appeal had not correctly applied the
principle of equality. It therefore quashed the judgment of the
Court of Appeal as well as its two interlocutory judgments and
referred the case to the Court of Appeal of The Hague for further
examination and adjudication.
31. On 12 November 1987 the Municipality of Amsterdam resumed the
proceedings before the Court of Appeal of The Hague. After written
submissions by the parties, the Court held a hearing on
13 December 1988. In its judgment, which was given on
7 February 1989, the Court found that there had been an unequal
treatment of the first applicant as compared to others. It
therefore quashed the Regional Court's judgment of 28 May 1980 and
again rejected the Municipality's claim.
32. On 7 May 1989 the Municipality again appealed to the Supreme
Court. In its judgment of 22 March 1991 the Supreme Court rejected
the appeal of the Municipality.
33. In June 1991 the first applicant sued the Municipality before
the Regional Court of Amsterdam, requesting damages resulting from
the refusal to let the first applicant use the property at
Bachstraat 15 for office purposes. This had in fact made it
necessary for the first applicant to buy other premises for its
office, which had resulted in extra costs. In reply the
Municipality requested that the claim be rejected. The Commission
has not been informed of the further development of these
proceedings.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
34. The Commission has declared admissible the applicant's
complaint that the length of the proceedings before the Dutch
courts exceeded a reasonable time.
B. Point at issue
35. The issue to be determined is whether there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention in
respect of the length of the proceedings concerned.
C. Article 6 para. 1 (Art. 6-1) of the Convention
i. General considerations
36. The applicants complain under Article 6 para. 1 (Art. 6-1) of
the Convention that the length of the proceedings before the Dutch
courts exceeded a reasonable time.
37. Article 6 para. 1 (Art. 6-1) of the Convention provides,
insofar as relevant, as follows:
In the determination of his civil rights and obligations
(...), everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial
tribunal established by law."
38. The applicability of Article 6 para. 1 (Art. 6-1) to the
present proceedings is not in dispute. The Commission agrees that
the proceedings, in which the issue was the use of property leased
by the first applicant, concerned the determination of the first
applicant's civil rights. As the second applicant was the director
and only share-holder of the first applicant, the Commission finds
that his civil rights were also at issue.
39. The Commission must examine the length of the proceedings on
the basis of the criteria established in the case-law of the Court
and the Commission, namely the complexity of the case, the
applicant's conduct and the conduct of the authorities dealing with
the case (see, for instance, Eur. Court H.R., Zimmermann and
Steiner judgment of 13 July 1983, Series A No. 66, para. 24).
ii. Period to be considered
40. The starting-point of the period, the reasonableness of which
is at issue, is 23 May 1978, when the Municipality of Amsterdam
sued the applicant before the Regional Court of Amsterdam. The
period ends on 22 March 1991, when the final judgment in the case
was given by the Supreme Court. The proceedings as a whole thus
lasted for twelve years and ten months.
iii. Reasonableness of the length of the proceedings
41. The applicants consider that there were unnecessary delays in
the proceedings for which the courts were responsible. They point
out that the Municipality of Amsterdam also prolonged the
proceedings and that the Municipality, while being a party to the
domestic proceedings, is also a public body for which the
Government are responsible under the Convention.
42. The Government consider that the length of the proceedings
cannot be regarded as unreasonable. They attribute the length
partly to the complexity of the matters involved and partly to the
fact that the parties availed themselves of the domestic remedies,
which they were of course entitled to do, but which inevitably
prolonged the proceedings. They also consider that the first
applicant did not do what could have been done to expedite the
proceedings.
a. Complexity of the case
43. The Government point at the complexity of the matters on
which the Municipality was requested to provide information
according to the two interlocutory judgments of the Court of Appeal
of Amsterdam. They also submit that the legal issues involved were
complex, since they concerned an area where civil law and public
law overlap. The question was whether the Municipality should have
used private law or administrative law in order to achieve the
desired objective. Moreover, the case involved another question
which was controversial in the doctrine and the case-law, namely
the extent to which the general principles of good administration
are also applicable to private law actions of the public
authorities.
44. The Commission accepts that the case raised certain difficult
questions of fact and law. Nevertheless, it finds that the
complexity of the case can only to a limited extent account for the
length of the proceedings in the present case.
b. Conduct of the first applicant
45. The Government note that the length of the proceedings was
due, to a large extent, to the fact that the parties availed
themselves of the domestic remedies at their disposal. They
further note that in the long proceedings before the Court of
Appeal of Amsterdam the first applicant did not make any use of the
possibilities it had under Dutch law to expedite the proceedings by
requesting that the information which the Municipality was to
provide should be provided speedily or within a specific time-
limit. The Government also consider that the proceedings before
the Court of Appeal of Amsterdam were to some extent prolonged by
suggestions about a possible friendly settlement which had been
made by the first applicant.
46. The applicants deny that any attempts to reach a friendly
settlement were made which in any way prolonged the proceedings.
They also note that the delay by the Municipality in collecting and
submitting the information which had been requested by the Court of
Appeal of Amsterdam must also be attributed to the Government, the
Municipality being a public organ.
47. The Commission cannot find in the present case any elements
showing that the first applicant's conduct was such as to cause any
unnecessary delays in the proceedings. It is possible that the
first applicant could have taken certain measures in order to
expedite the proceedings, in particular before the Court of Appeal,
but the Commission notes in this regard the case-law of the
European Court, according to which even in civil cases, where the
conduct of the proceedings is often to a large extent determined by
the acts of the parties, the judicial authorities are not dispensed
from ensuring that the proceedings are conducted expeditiously as
required by Article 6 (Art. 6) of the Convention (Eur. Court H.R.,
Buchholz judgment of 6 May 1981, Series A No. 42, p. 16, para. 50).
The Commission also attaches some weight to the fact that in the
present case, the opposite party, which was to provide further
material in the case, was a public body for whose acts the
Government are responsible under the Convention.
c. Conduct of the authorities
48. The Commission finds it appropriate in this regard first to
examine the different parts of the judicial proceedings separately.
49. In first instance, the proceedings before the Regional Court
of Amsterdam lasted from 23 May 1978 to 28 May 1980, i.e. for about
two years. One problem arises in regard to these proceedings,
namely whether the time which elapsed between the hearing of the
case and the judgment was reasonable.
50. In this regard the Commission recalls that the hearing took
place on 15 October 1979 and that it was then announced that
judgment would be given on 19 December 1979. However, the
rendering of the judgment was subsequently postponed on six
different occasions, and the judgment was not given until on
28 May 1980, i.e. more than seven months after the hearing. The
Government find this delay justified by the complexity of the legal
issues involved. The applicants do not agree and point out that a
period of six weeks would be normal between the hearing and the
judgment.
51. The Commission, after examining the legal reasoning in the
Regional Court's judgment, finds it difficult to accept that it
should have taken more than seven months to prepare the judgment.
In any case, it finds the relatively long time which elapsed to be
a relevant element in the consideration of the total length of the
proceedings.
52. The proceedings before the Court of Appeal of Amsterdam
lasted from 13 June 1980 to 3 January 1985, i.e. for about four and
a half years. During this period the Court requested the
Municipality, in two interlocutory judgments of 25 June 1981 and
6 October 1983, to produce certain material about municipal policy
and how it had been applied in cases similar to that of the first
applicant. As regards the first request, several extensions of the
time-limit were asked for and granted and it took the Municipality
about one year and ten months to submit its replies on
14 April 1983. However, the material then submitted was not
considered sufficient, and a new request for supplementary
information was made.
53. The Government point out that under Dutch law each party is
at liberty to inform the court that it is opposed to an extension
of a time-limit for the submission of documents being granted to
the other party. It is then the task of the judge to assess
whether an extension is justified. Moreover, in the present case
the request to the Municipality concerned data which were difficult
to obtain. The gathering of material from various departments of
the Municipality required considerable time. The first applicant
was also partly responsible for the delay because of attempts that
were made to settle the case out of court during the relevant time.
54. The applicants consider that the time granted to the
Municipality by the Court of Appeal for the submission of the
documents concerned was unreasonably long. They contest that the
first applicant was in any way responsible for the delay concerned
since no attempts to settle the case, which in any way affected the
delay, were made during that time.
55. The Commission considers that a period of about one year and
ten months for the submission of material of the kind concerned
could only be considered reasonable in exceptional circumstances,
and it has in no way been demonstrated that such circumstances
existed in the present case. The responsibility for the delay must
be shared between the Court of Appeal and the Municipality, and the
Government are responsible for both of them in the application of
Article 6 (Art. 6) of the Convention.
56. As regards the proceedings between 12 November 1987 and
7 February 1989 before the Court of Appeal of The Hague, there is
no indication of any unreasonable delays.
57. Finally there were proceedings before the Supreme Court
during two periods, from 3 April 1985 to 27 March 1987 and from
7 May 1989 to 22 March 1991. Consequently, in each case the
proceedings lasted for somewhat less than two years.
58. The Government consider that these periods correspond to the
normal periods in cassation proceedings and that they cannot be
considered unreasonably long. The applicants, on the other hand,
argue that these periods should be assessed in light of the fact
that the proceedings at the first and second degree of jurisdiction
had already been very long. Moreover, it is in the applicants'
view important to note that there were two sets of proceedings
before the Supreme Court. Having regard to these circumstances,
the applicants consider that there was an unreasonable delay also
in the proceedings before the Supreme Court.
59. The Commission considers that the proceedings before the
Supreme Court were not in themselves remarkably long. It regards
it, however, as a relevant consideration that the case came twice
before the Supreme Court and that, on the second occasion, the
Supreme Court was aware that it had already dealt with the same
case before during a period of almost two years.
d. General assessment
60. When examining the length of the proceedings as a whole, the
Commission first notes that the total length of twelve years and
ten months is considerable. The Commission also notes that the
determination of the first applicant's dispute with the
Municipality apparently had important economic consequences for the
applicants.
61. It is true that the length of the proceedings can to some
extent be explained by the complexity of the subject-matter and by
the fact that the case was dealt with in five sets of proceedings:
before the Regional Court, the Court of Appeal of Amsterdam, the
Supreme Court, the Court of Appeal of The Hague and again the
Supreme Court. Nevertheless, there have also been delays in the
proceedings for which the Government must be held responsible, and
when examining the proceedings as a whole, the Commission finds
that the applicants' civil rights were not determined within a
reasonable time as required by Article 6 para. 1 (Art. 6-1) of the
Convention.
D. Conclusion
62. The Commission concludes unanimously that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the Second Chamber President of the Second Chamber
(K. Rogge) (S. Trechsel)
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
___________________________________________________________________
29 June 1990 Introduction of application
1 October 1990 Registration of application
Examination of admissibility
3 December 1990 Commission's decision to
invite the Government to
submit observations on the
admissibility and merits of
the application
9 April 1991 Decision to refer the
application to a Chamber
12 April 1991 Government's observations
29 April 1991 Applicants' observations
in reply
8 July 1991 Commission's decision to
declare the application
admissible (First Chamber)
Examination of the merits
15 July 1991 Parties invited to submit
additional observations on
the merits
16 September 1991 Applicants' additional
observations
18 October 1991 Government's additional
observations
25 October 1991 Applicants' further
observations
27 November 1991 Govenment's further
observations
29 November 1991 Applicants' further
observations
1 July 1992 Commission's deliberations
on the merits, final vote
and adoption of the Report
(Second Chamber)
Full & Egal Universal Law Academy