AS TO THE ADMISSIBILITY OF
Application No. 34325/96
by J.J.W.M. MENS and P.P.M. MENS-HOEK
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 20 May 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the 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 1 April 1996 by
J.J.W.M. MENS and P.P.M. MENS-HOEK against the Netherlands and
registered on 20 December 1996 under file No. 34325/96;
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 both Dutch nationals born in 1942. They reside
in Dalem, the Netherlands. The applicants are represented by
Mr M.J.C. Deriks, a lawyer practising in Rotterdam.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
a. Particular circumstances of the case
Following the near-disastrous flooding in the region of the major
rivers in the beginning of 1995, the Netherlands Government decided
that special measures had to be taken in order to enhance the safety
of the people living alongside these rivers. For this reason a Bill was
introduced in which it was proposed to strengthen particular sections
of certain dikes in order to prevent further flooding. This Bill,
called the Major Rivers Delta Act (Deltawet Grote Rivieren, hereinafter
referred to as "the Delta Act"), was adopted by the Parliament on
11 April 1995 after the Legislation Division (Afdeling wetgeving) of
the Council of State (Raad van State) had given its advice. It was
published in the Bulletin of Acts and Decrees (Staatsblad) and entered
into force on 21 April 1995.
By decision of 18 and 25 July 1995, the Provincial Executive
(Gedeputeerde Staten) of the province of Gelderland adopted - pursuant
to Article 4 para. 3 of the Delta Act - a plan for the realisation of
works to strengthen a particular section of a dike. For the applicants
the realisation of this plan meant in effect that the reinforcement of
the outer dike in the section concerned would, inter alia, entail that
the crest and the exterior slope of the dike would lie in their garden
near their house and that certain vegetation would have to be removed.
The realisation would entail expropriation of land owned by the
applicants, namely, amongst others, certain parcels east and west of
their house and part of the mound on which their house is constructed.
The applicants and twelve other parties filed an appeal against
the decision of 18 and 25 July 1995 with the Administrative Law
Division (Afdeling Bestuursrechtspraak) of the Council of State. In
their appeal, the applicants argued, inter alia, that in reaching its
decision, the Provincial Executive of Gelderland had not struck a fair
balance between the public interest in dike reconstruction and their
personal interests in that, inter alia, by taking away a strip of
15 metres from their garden the proportional relation between their
house, their garden and the dike would become distorted. They submitted
alternative ways to secure the strengthening of the dike section which
would take less space and/or would enable a dike strengthening on the
land side of the dike. These alternatives included a construction of
a parallel dike and a quay wall.
Following a hearing held on 22 September 1995, the Administrative
Law Division, in its decision of 2 October 1995, considered the
applicants' appeal founded insofar as it concerned planned works on the
dike which had no connection with the strengthening of the dike and
rejected the remainder of their appeal.
As to the part of the applicants' appeal which was rejected, the
Administrative Law Division found that the Provincial Executive could
reasonably have attached more weight to the disadvantages of the
proposed construction of a parallel dike or a quay wall than to the
pertaining advantage of needing less space for the dike strengthening
measures. In this connection the Administrative Law Division accepted
the opinion of the Provincial Executive that the disadvantages attached
to the alternatives suggested by the applicants were to be set off
against a relatively minor limitation on the use of space in the
applicants' garden.
After having balanced the interests involved, the Administrative
Law Division concluded that the realisation of the plan would not place
a disproportionately heavy burden on the applicants and that it had not
appeared that in the adoption of the plan requirements under domestic
law or general principles of international law had been disrespected.
By letters of 15 January, 22 March, 12 April and 24 May 1996
respectively, the administrator, i.e. the Polder District Tieler- en
Culemborgerwaarden, informed the applicants that as negotiations aimed
at an amicable resolution had proven unsuccessful in that the
applicants had turned down the Polder District's last offers in respect
of the different plots owned by the applicants and required for the
realisation of the plan, it now was compelled to avail itself of its
powers under Article 5 of the Delta Act and consequently would proceed
to expropriate the different parcels. The applicants were requested to
state their bank or giro account number so that the amounts offered for
the different parcels could be transferred to that account. If the
applicants did not wish to disclose their account number, the amount
would be reserved for them on an account of the public notary Mr E. The
applicants were further informed that, if they wished to seek higher
amounts in compensation, they could address the Regional Court
(Arrondissementsrechtbank) of Dordrecht via a lawyer.
b. Relevant domestic law
Pursuant to Article 1 of the Delta Act, it only applies to the
realisation of those works mentioned in a list annexed to the Act.
Article 4 para. 1 of the Delta Act provides that the
administrator who will be carrying out the works indicated in Article 1
should draw up a draft plan and an explanatory memorandum.
Pursuant to Article 4 para. 2 of the Delta Act, it must be clear
from this draft plan and the explanatory memorandum what consequences
the realisation of the works will entail, in what manner account had
been taken of the interests involved, including the interests of
landscape, nature, cultural-historic elements, public housing, country
planning and environment.
Article 4 para. 3 of the Delta Act, insofar as relevant, provides
that the Provincial Executive will adopt the plan for the realisation
of the works and the explanatory memorandum on the basis of the draft
plan.
Pursuant to Article 5 para. 1 of the Delta Act the administrator
is entitled to expropriate property if this property has been
explicitly mentioned in the plan and in situations where such an
expropriation is regarded as absolutely necessary for the realisation
of the works. A number of provisions in the Expropriation Act
(Onteigeningswet) apply to the expropriation proceedings.
Article 74 para. 1 of the Expropriation Act obliges the
authorities to offer compensation to the owner of the expropriated
property. Pursuant to para. 2 of this provision, the owner or the
expropriated property may institute civil proceedings if the
authorities have not offered compensation within three months or when
the owner does not agree to the amount of compensation offered.
The Council of State consists of a vice-President and
28 Councillors (Staatsraden) and is formally presided over by the King
or Queen. the Councillors are appointed for life by Royal Decree
(Koninklijk Besluit) at the recommendation of the Minister of Internal
Affairs (Minister van Binnenlandse Zaken) following consultation with
the Minister of Justice (Minister van Justitie).
The Council of State has a Legislation Division, which provides
the Government with advice on proposed legislation, and an
Administrative Law Division, which acts as an administrative court in
first and final instance and as court of appeal. Councillors usually
take part in the activities of both divisions.
According to Article 8:15 of the General Administrative Law Act
(Algemene Wet Bestuursrecht) a party may challenge a judge on the
ground that the latter appears to lack impartiality.
Pursuant to Article 8:16 of the General Administrative Law Act
the request to replace a judge should be submitted as soon as the party
concerned became aware of facts or circumstances which led to the
appearance of a lack of impartiality.
The Netherlands is a Member State of the European Union and a
Party to the EEC Treaty of 25 March 1957. Where a preliminary question
as regards compatibility with rules of the European Union is raised in
proceedings before a national court from which no appeal lies, that
court is required, under Article 177 in fine of the EEC Treaty, to
refer this question to the Court of Justice of the European
Communities.
COMPLAINTS
1. The applicants complain under Article 1 of Protocol No. 1 that
the expropriation of land they own for the purposes of the Delta Act
constitutes a disproportionate interference with their right to respect
for their property in that the Council of State has not or
insufficiently understood that the examination on appeal of the draft
plan also determines the necessity of expropriation. The applicants
argue that the tool of expropriation is meant for situations where the
use of private property is indispensable for the realisation of works
in the public interest and not to allow public authorities to execute
such works in a cheaper way. The applicants submit that strengthening
the dike on the land side of the dike is an affordable alternative and,
in matters of expropriation, the public authorities do have the freedom
to opt for a less expensive method where the use of a more expensive
method could spare private property.
2. Referring to the judgment of 24 October 1996 of the Court of
Justice of the European Communities in case C-72/95, the applicants
complain under Article 6 of the Convention of the unfairness of the
proceedings in that, contrary to European Union Council Directive
85/337 of 27 June 1985, the Administrative Law Division failed to order
ex officio a Report on the environmental effects of the dike
strengthening plan at issue.
3. The applicants further complain under Article 6 of the Convention
that the Administrative Law Division of the Council of State cannot be
regarded as impartial in view of the fact that the members of the
Council of State carry out both advisory and judicial functions in that
in their case one of the members of the Administrative Law Division had
also advised in the adoption of the Delta Act.
THE LAW
1. The applicants complain under Article 1 of Protocol No. 1 (P1-1)
that the expropriation of land they own for the purposes of the Delta
Act constitutes a disproportionate interference with their right to
respect for their property.
Article 1 of Protocol No. 1 (P1-1), insofar as relevant, reads:
"Every natural or legal 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 for by law and by the general principles of
international law."
The Commission notes that the adoption of the plan to strengthen
the dike section at issue, and subsequently, the realisation of this
plan, entails the expropriation of land owned by the applicants. Since
expropriation constitutes a "deprivation" of possessions, it falls
within the second sentence of Article 1 of Protocol No. 1 (P1-1) and
the Commission must therefore determine whether the facts of the case
establish that the applicants' deprivation of their property is "in the
public interest" and whether this deprivation is "subject to the
conditions provided for by law and by the general principles of
international law".
The Commission recalls in the first place that the general
principles of international law do not apply where, as in the present
case, property is taken by a State from its own nationals (cf. Eur.
Court HR, Lithgow and Others v. the United Kingdom judgment of
8 July 1986, Series A no. 102, p. 50, para. 119).
It is furthermore clear that the deprivation of the applicants'
property was provided for by law, namely the Delta Act. In a previous
case the Commission has accepted that measures of expropriation under
the Delta Act can reasonably be regarded as being in the public
interest (No. 29840/96, Dec. 15.1.97, unpublished). The Commission
finds no reason to take a different view in the present case.
However, according to the Convention organs' case-law, a measure
depriving persons of their property must not only pursue a legitimate
aim "in the public interest", but there must also be a reasonable
relationship of proportionality between the means employed and the aim
sought to be realised (Eur. Court HR, James and Others v. the United
Kingdom judgment of 21 February 1986, Series A no. 98, p. 34,
para. 50). This latter requirement was expressed in other terms in the
Sporrong and Lönnroth v. Sweden judgment of 23 September 1982 by the
notion of the "fair balance" that must be struck between the demands
of the general interest of the community and the requirements of the
protection of the individual's fundamental rights. The requisite
balance will not be found if the person concerned has had to bear "an
individual and excessive burden" (Series A no. 52, pp. 26 and 28,
paras. 69 and 73).
The Commission observes that in the present case the
Administrative Law Division examined whether there were reasonable
alternatives to the adopted plan in which the applicant's land would
not or to a lesser extent be affected. It concluded, however, that
there were no such reasonable alternatives. As regards the alternative
measures suggested by the applicants the Administrative Law Division,
after having balanced the parties' arguments, accepted the Provincial
Executive's finding that the disadvantages of the proposed construction
of a parallel dike or a quay wall outweighed the pertaining limited
advantage for the applicants' property.
The Commission further takes account of the fact that, pursuant
to the applicable rules, the applicants will be compensated for their
expropriated possessions.
In view of these circumstances, the Commission concludes that,
given the wide margin of appreciation enjoyed by the Contracting States
in this area, the decision at issue cannot be considered to be
disproportionate to its legitimate purpose and, consequently, finds no
appearance of a violation of Article 1 of Protocol No. 1 (P1-1).
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. Referring to the judgment of 24 October 1996 of the Court of
Justice of the European Communities in case C-72/95, the applicants
complain under Article 6 (Art. 6) of the Convention of the unfairness
of the proceedings in that, contrary to EC Council Directive 85/337 of
27 June 1985, the Administrative Law Division failed to order ex
officio a Report on the environmental effects of the dike strengthening
plan at issue.
Article 6 (Art. 6) of the Convention, insofar as relevant,
provides as follows:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law...."
The Commission recalls at the outset that it is not competent to
examine alleged errors of fact or law committed by national courts,
except where it considers that such errors might have involved a
possible violation of the rights and freedoms set forth in this
Convention (cf. No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77). The
Commission is, therefore, not competent to examine whether European
Union Directives have been correctly applied by the Netherlands
authorities.
The Commission notes that the Administrative Law Division handed
down its decision in the present case on 2 October 1995 whereas the
judgment of the Court of Justice of the European Communities the
applicants refer to was handed down more than one year later, namely
on 24 October 1996. However, as the Netherlands is a Member State of
the European Union, it was open to the applicants in the proceedings
before the Administrative Law Division to seek a preliminary ruling as
to the compatibility of the procedure with the EC Council Directive
85/337 of 27 June 1985.
Although the Convention does not guarantee as such any right to
have a case referred by a national court to the Court of Justice of the
European Communities for a preliminary ruling under Article 177 of the
EEC Treaty, a refusal of a request for such a referral may infringe the
fairness of proceedings if it appeared to be arbitrary (cf.
No. 20631/92, Dec. 12.5.93, D.R. 74, p. 274).
However, it does not appear that the applicants ever requested
the Administrative Law Division to seek a preliminary ruling from the
Court of Justice of the European Communities or that they have argued
before the Administrative Law Division that the procedure fell short
of requirements under European Union rules.
The Commission reiterates that according to Article 26 (Art. 26)
of the Convention it may only deal with an application after all
domestic remedies have been exhausted. This rule of exhaustion of
domestic remedies, which dispenses States from answering before an
international body for their acts before they have had an opportunity
to put matters right through their own legal system, is one of the
generally recognised principles of international law (cf. Eur. Court
HR, De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971,
Series A no. 12, p. 29, para. 50).
The mere fact that all remedies have been tried does not of
itself constitute compliance with the exhaustion of domestic remedies.
It is also required that the applicant, at least in substance, has
submitted to the competent authorities the complaint brought before the
Commission (cf. No. 16278/90, Dec. 3.5.93, D.R. 74, p. 93; and
19601/92, Dec. 19.1.95, D.R. 80, p. 46).
In these circumstances, insofar as the applicants complain of the
failure of the Administrative Law Division to order a Report on the
environmental effects of the plan at issue, the Commission is of the
opinion that by not having raised this point in the proceedings at
issue and by not having sought to obtain clarification on this point
by requesting a preliminary ruling the applicants have failed to
exhaust domestic remedies within the meaning of Article 26 (Art. 26)
of the Convention (cf. No. 13251/87, Dec. 6.3.91, D.R. 68, p. 137).
Finally, noting that the applicants have been given ample
opportunity to state their case and to submit whatever they found
relevant in the proceedings before the Administrative Law Division, the
Commission further cannot find that these proceedings fell short of the
requirements as to fairness of proceedings within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application must also be
rejected as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
3. The applicants further complain under Article 6 (Art. 6) of the
Convention that the Administrative Law Division of the Council of State
cannot be regarded as impartial in view of the fact that the members
of the Council of State carry out both advisory and judicial functions
in that in their case one of the members of the Administrative Law
Division had also advised in the adoption of the Delta Act.
The Commission recalls that the Convention does not provide for
an actio popularis. It is only required to examine the applicants'
complaints that they themselves were victims of a violation of
Article 6 para. 1 (Art. 6-1) of the Convention as regards the different
functions of the Council of State (cf. No. 20560/94, Dec. 18.10.95,
D.R. 83, p. 66).
The Commission, therefore, finds that the applicants can only
claim to be a victim within the meaning of Article 25 (Art. 25) of the
Convention of a violation of Article 6 para. 1 (Art. 6-1) of the
Convention as regards the member of the Council of State who had
advised in the adoption of the Delta Act and, subsequently, was one of
the members of the Administrative Law Division who decided the
applicants' appeal.
However, the Commission notes that the applicants neither tried
to challenge this judge of the Administrative Law Division concerned
nor raised this complaint under Article 6 para. 1 (Art. 6-1) of the
Convention, which forms an integral part of Dutch law, in the
proceedings before the Administrative Law Division. By failing to do
so, they did not provide the Administrative Law Division with the
opportunity to remedy the violation alleged against it. Consequently,
the Commission finds that the applicants have not complied with the
requirement of exhaustion of domestic remedies (cf. No. 29840/96, Dec.
15.1.97, unpublished).
It follows that this part of the application is inadmissible
under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy