AS TO THE ADMISSIBILITY OF
Application No. 14846/89
by Hubertus Johannes KRONENBURG
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 13 January 1992, 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 RUIZ
L. LOUCAIDES
J.-C. GEUS
Mr.K. ROGGE, Secretary to the Second 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 25 November 1988
by Hubertus Johannes KRONENBURG against the Netherlands and registered
on 31 March 1989 under file No. 14846/89;
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 applicant is a Dutch citizen, born in 1930 and presently
residing in Rotterdam, the Netherlands. Before the Commission, he is
represented by C.A. Busquet, a lawyer practising in Rotterdam.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In January 1982, the applicant bought a house in a new
sub-division of Rotterdam, in the sub-municipality (deelgemeente) Prins
Alexander, which house was built in the beginning of that year.
According to the zoning plan, established by the Municipal Council
(Gemeenteraad) of Rotterdam in 1978, and finally approved by the Crown
on 8 February 1983, and according to documentation provided in January
1982 by the sub-municipality, this part of the sub-division was zoned
as an up-market residential area in park-like surroundings.
However, because the market for such houses was deteriorating
considerably, only one of the three major building projects in that
part of the sub-division was realised. A building project for 62
houses to buy was replaced by a project for 102 relatively inexpensive
houses for rent. Another project for 58 houses was stopped, and
instead, in late 1981 an old people's home, consisting of 78 individual
dwellings and a nursing home with 132 beds, was planned. The home was
to be composed of different separate buildings of 3 to 4 floors.
Because the latter complex was not in conformity with the
provisions of the zoning plan which, inter alia, only provided for
buildings of 3 floors, the sub-municipality started a procedure to
amend that plan in order to make the granting of a building permit
possible. This procedure, inter alia, provided for the hearing of the
inhabitants in this sub-division. Because the applicant's house had
not yet been completed, although he had already bought it, he did not
receive an invitation to attend this hearing.
By Royal Decree (Koninklijk Besluit) of 8 February 1983, the
amended zoning plan became irrevocable.
On 15 February 1983, the building permit was granted. The
applicant and 47 other inhabitants, united in the association of
house-owners known as "E 50", filed an objection against the permit on
the basis of the Administrative Jurisdiction concerning Government
Decrees Act (Wet Administratieve Rechtspraak Overheidsbeschikkingen).
After a rejection by the local authority (dagelijks bestuur van de
deelgemeente), the association "E 50" appealed to the Judicial Division
of the Council of State (Afdeling Rechtspraak van de Raad van State),
which also rejected the appeal by Royal Decree of 16 November 1984.
On 5 February 1985, the applicant and the other inhabitants filed
a request for compensation with the Municipal Council (gemeenteraad)
of Rotterdam on the basis of Article 49 of the Town and Country
Planning Act (Wet op de Ruimtelijke Ordening). The Council rejected
the request on 6 March 1986. Subsequently, the inhabitants appealed
to the Crown. After and in conformity with advice by the
Administrative Litigation Division of the Council of State (Afdeling
Geschillen van Bestuur van de Raad van State), the Crown rejec
r Artic
appeal by Royal Decree of 20 June 1988, considering that there was no
damage justifying compensation under Article 49 of the Town and Country
Planning Act. The Crown noted, in particular, that the amendments
concerning the height of buildings were not contrary to the general
orientations of the zoning plan.
In the meantime the association "E 50" had also instituted civil
proceedings against the Municipality of Rotterdam with the Regional
Court (Arrondissementsrechtbank) of Rotterdam on the basis of Article
1401 of the Civil Code (Burgerlijk Wetboek), claiming compensation for
tort caused by the Municipality by providing false information about
the building projects close to the house they planned to buy. On 26
June 1987, the Regional Court rejected the request for compensation.
On the basis of a letter from their lawyer, expressing certain doubts
about the chances of success of an appeal, the association decided not
to lodge an appeal.
COMPLAINTS
1.The applicant complains that the decision of the Crown of 8
February 1983 amending the zoning project and modifying the type and
density of the buildings near to his house affected the value of his
property. He invokes Article 1 of Protocol No. 1 to the Convention.
2. He also alleges that this decision discriminated against him
in the enjoyment of his rights and freedoms. He invokes Article 14 of
the Convention in conjunction with Article 1 of Protocol No. 1.
3. The applicant finally complains under Article 6 of the
Convention that he did not have a fair hearing in that his case was
wrongly determined. He submits that the decision of the Crown of 20
June 1988 to reject his claims for compensation did not take account
of his personal interests and that the refusal to award him
compensation was motivated by political considerations.
THE LAW
1.The applicant complains that the decision of the Crown of 8
February 1983 amending the zoning plan and the ensuing granting of a
building permit for buildings of a different type and in a higher
density than previously foreseen, in the vicinity of his house,
affected the value of his property. He invokes Article 1 of Protocol
No. 1 (P1-1) to the Convention of which the first paragraph provides
as follows:
"Every legal or natural person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject
to the conditions provided by law and by the general
principles of international law."
Under Article 26 (Art. 26) of the Convention the Commission may
only deal with an application which has been introduced within a period
of six months after the final national decision. The applicant
complains about a decision of the Crown taken in 1983 and of a building
permit in respect of which the final decision was taken in 1984 whereas
he introduced his application in 1988. Therefore the applicant has not
complied with the six months rule as embodied in Article 26
(Art. 26) of the Convention.
It follows that this part of the application must be rejected
under Article 26 in conjunction with Article 27 para. 3 (Art. 26+27-3)
of the Convention for being out of time.
2. The applicant also complains that the decision of the Crown of
8 February 1983 discriminated against him in the enjoyment of his right
to peaceful enjoyment of his possessions. He invokes Article 14 of the
Convention in conjunction with Article 1 of Protocol No. 1
(Art. 14+P1-1).
Article 14 (Art. 14) of the Convention provides that "the
enjoyment of the rights and freedoms set forth in (the) Convention
shall be secured without discrimination on any ground". It is not clear
from the applicant's submissions in relation to whom he claims to have
suffered discrimination.
In any event, the Commission is not required to decide whether
or not the facts alleged by the applicant disclose any appearance of
a violation of Article 14 (Art. 14), as this complaint is also made out
of time. The Commission refers in this respect to its above findings.
It follows that this part of the application must also be
rejected under Article 26 in conjunction with Article 27 para. 3
(Art. 26+27-3) of the Convention for being out of time.
3. The applicant finally complains that he did not receive a fair
hearing in that the Crown, in its decision of 20 June 1988, wrongly
determined his case. It disregarded his personal interests and its
refusal to award him compensation was motivated by political
considerations.
The Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with applications alleging that
errors of law or fact have been committed by domestic authorities,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention (see e.g. mutatis mutandis No. 458/59, Dec. 29.3.60,
Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp.
71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy