AS TO THE ADMISSIBILITY OF
Application No. 29840/96
by P.C.M.S.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 15 January 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
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 10 November 1995
by P.C.M.S. against the Netherlands and registered on 19 January 1996
under file No. 29840/96;
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 applicant is a Dutch citizen, born in 1938, and resides in
Utrecht, the Netherlands. Before the Commission he is represented by
Mr. R.W. Siebers, who acts on behalf of "Stichting Red ons
Rivierlandschap" and "Stichting Uiterwaardenpark Maas-Waal-Merwede",
two associations concerned with nature conservation.
The facts of the case, as submitted by the applicant, 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 future flooding. This Bill, called
the Major Rivers Delta Act (Deltawet Grote Rivieren), was adopted by
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) of 20 April 1995 and entered into force the next day.
On 24 April 1995 the Provincial Executive (Gedeputeerde Staten)
of Gelderland adopted - pursuant to Section 4 para. 3 of the Major
Rivers Delta Act - a plan for the realisation of works to strengthen
a particular section of a dike. The realisation of this plan meant in
effect that a house belonging to the applicant would have to be
destroyed and thus expropriated beforehand.
On 8 May 1995 the applicant filed an appeal against this decision
with the Administrative Law Division (Afdeling Bestuursrechtspraak) of
the Council of State. He 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 his
personal interest in the preservation of his house. In this respect he
referred to an alternative plan which would not necessitate the
destruction of his house.
Following a hearing on 6 June 1995, the Administrative Law
Division rejected the appeal on 16 June 1995.
As regards the alternative plan referred to by the applicant, the
Administrative Law Division noted that adoption of that plan would lead
to the applicant's house being partly surrounded by a sheetpile wall
and that the cost of the realisation of this plan would exceed the
value of the house concerned. For these reasons the Administrative Law
Division considered the Provincial Executive's findings that the
alternative plan was not desirable from the point of view of the
occupant's living conveniences and that the cost to realise the plan
was not proportionate to the value of the house not to be unreasonable
or incorrect.
The Administrative Law Division held, moreover, that also the
repositioning of the dike would not be a valid alternative and,
furthermore, that no reasonable alternative appeared to exist apart
from the destruction of the house.
Finally, the Administrative Law Division noted that the
authorities had examined several possibilities for the reconstruction
of the house at a different location, but that an agreement between the
applicant and the authorities on this issue or as regards the question
of compensation had not yet been reached.
After balancing the interests involved, the Administrative Law
Division concluded that the adverse consequences for the applicant were
not disproportionate to the public interests of reconstructing this
section of the dike in accordance with the adopted plan. Moreover, it
found nothing in the applicant's submissions from which to conclude
that the adoption of the plan was contrary to the law or to general
legal principles.
B. Relevant domestic law
Pursuant to Section 1 of the Major Rivers Delta Act (hereafter:
"Delta Act") the Act only applies to the realisation of those works
which are mentioned in a list annexed to the Act.
Section 4 para. 1 of the Delta Act provides that the
administrator who will be carrying out the works indicated in Section
1 should draw up a draft plan and an explanatory memorandum.
Pursuant to Section 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 have, in what manner account has been
taken of the interests involved, including the interests of landscape,
nature, cultural-historic elements, public housing, country planning
and environment.
The third paragraph of this provision, 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 Section 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
expropriation is regarded as absolutely necessary for the realisation
of the works. A number of provisions from the Expropriation Act
(Onteigeningswet) apply to the expropriation proceedings.
The authorities are obliged to offer compensation to the owner
of the expropriated property (Section 74 para. 1 Expropriation Act).
The second paragraph of Section 74 provides that the owner of the
expropriated property may initiate civil proceedings if the authorities
have not offered compensation within three months, or if he does not
agree to the amount of compensation offered.
The Council of State consists of a vice-president and
28 councillors and is formally presided over by the King or Queen. The
councillors (staatsraden) are appointed for life by Royal Decree
(Koninklijk Besluit) at the recommendation of the Minister of Internal
Affairs following consultation with the Minister of Justice.
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 Section 8:15 of the Administrative Law Act (Algemene
wet bestuursrecht) a party may challenge a judge on the ground that the
latter appears to lack impartiality.
Pursuant to Section 8:16 para. 1 of the 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.
COMPLAINTS
1. The applicant complains of a violation of Article 1 of
Protocol No. 1 in that the Administrative Law Division of the Council
of State did not consider the necessity of the deprivation of his
house.
2. The applicant also complains of an infringement of his right to
respect for his home as guaranteed by Article 8 para. 1 of the
Convention.
3. The applicant further raises the question whether the
Administrative Law Division can be regarded as an impartial tribunal
within the meaning of Article 6 para. 1 of the Convention in view of
the fact that the members of the Council of State carry out both
advisory and judicial functions.
4. The applicant finally complains under Article 6 para. 1 of the
Convention that he did not receive a fair trial since in his opinion
his interests were not correctly balanced by the Administrative Law
Division.
THE LAW
1. The applicant submits that the expropriation of his house amounts
to a breach of Article 1 of Protocol No. 1 (P1-1) which, insofar as
relevant, provides:
"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, and subsequently the realisation of this plan, will result
in the expropriation of the applicant's house. Since expropriation
constitutes a "deprivation" of possessions, it falls within the second
sentence of the above provision and the Commission must therefore
determine whether the facts of the case establish that the applicant
will be deprived of his property "in the public interest" and whether
the 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 (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 applicant's
possession was provided for by law, namely by the Major Rivers Delta
Act. It thus remains to be determined whether the deprivation of the
property was in the public interest.
As regards the Convention organs' supervision in this respect the
Commission recalls that in its James and Others v. the United Kingdom
judgment of 21 February 1986 (Series A no. 98, p. 32, para. 46), the
Court held as follows:
"Because of their direct knowledge of their society and its
needs, the national authorities are in principle better placed
than the international judge to appreciate what is "in the public
interest". Under the system of protection established by the
Convention, it is thus for the national authorities to make the
initial assessment both of the existence of a problem of public
concern warranting measures of deprivation of property and of the
remedial action to be taken (see, mutatis mutandis, the Handyside
v. the United Kingdom judgment of 7 December 1976, Series A
no. 24, p. 22, para. 48). Here, as in other fields to which the
safeguards of the Convention extend, the national authorities
accordingly enjoy a certain margin of appreciation.
Furthermore, the notion of "public interest" is necessarily
extensive. In particular, as the Commission noted, the decision
to enact laws expropriating property will commonly involve
consideration of political, economic and social issues on which
opinions within a democratic society may reasonably differ
widely. The Court, finding it natural that the margin of
appreciation available to the legislature in implementing social
and economic policies should be a wide one, will respect the
legislature's judgment as to what is "in the public interest"
unless that judgment be manifestly without reasonable
foundation."
In the present case the background and purpose of the enactment
of the contested legislation was the State's wish to strengthen the
dikes in order to provide more protection to the people living
alongside the rivers. The Commission cannot find that this lacks
reasonable foundation.
However, according to the Convention organs' case-law, a measure
depriving a person of his 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 (James and Others v. the United Kingdom judgment,
loc. cit., 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 notes in the first place that in the present case
the Administrative Law Division of the Council of State examined
whether there were reasonable alternatives to the adopted plan in which
the house of the applicant would not have to be expropriated. However,
it concluded that there were no such alternatives. As regards the plan
referred to by the applicant, the Administrative Law Division noted
that the cost of the realisation of that plan would exceed the value
of the house concerned and that, therefore, it could not be regarded
as a valid alternative.
The Commission notes furthermore that it appears that the
authorities were examining several possibilities for the reconstruction
of the house at a different location.
Finally, the Commission takes account of the fact that it follows
from the applicable law that the applicant will be compensated for the
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 taken cannot be considered to be
disproportionate to its legitimate purpose.
Consequently, the Commission finds no appearance of a violation
of Article 1 Protocol No. 1 (P1-1). It follows that this part of the
application is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains that his right under Article 8
para. 1 (Art. 8-1) of the Convention has been violated since his house
will be expropriated. Article 8 (Art. 8), insofar as relevant, reads
as follows:
"1. Everyone has the right to respect for ... his home ...
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Commission recalls that it has already found the
expropriation of the applicant's house to be in conformity with the
requirements of Article 1 of Protocol No. 1 (P1-1). It further
considers that the interference would be justified as being in
accordance with the law and as necessary in a democratic society in the
interest of public safety and for the protection of health and the
rights of others, within the meaning of paragraph 2 of Article 8
(Art. 8-2) (cf. No. 12736/87, Dec. 5.5.88, not published).
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant furthermore alleges that the Administrative Law
Division of the Council of State lacked impartiality. He invokes
Article 6 para. 1 (Art. 6-1) of the Convention which, insofar as
relevant, provides:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by an ...
impartial tribunal ..."
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 (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 an applicant has submitted his case to the
competent court does not in itself constitute compliance with this
rule. It is also required that the substance of any complaint made
before the Commission should have been raised during the proceedings
concerned. The Commission refers to its established case-law on this
matter (cf. e.g. No. 12717/87, Dec. 8.9.88, D.R. 57 p. 196).
The Commission furthermore recalls that it follows from the fact
that the Convention forms an integral part of Dutch law that alleged
violations of the rights guaranteed by the Convention may be invoked
in procedures before the national courts.
The Commission observes that in the present case the applicant
neither tried to challenge the judges of the Administrative Law
Division, nor raised his complaint under Article 6 para. 1 (Art. 6-1)
of the Convention in his proceedings before this tribunal. By failing
to do so, he did not provide the Administrative Law Division with the
opportunity to remedy the violation alleged against it. Consequently,
the Commission finds that the applicant has not complied with the
requirement of exhaustion of domestic remedies.
It follows that this part of the application is inadmissible
under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.
4. The applicant finally complains under Article 6 para. 1
(Art. 6-1) of the Convention that the Administrative Law Division
failed to balance his interests correctly.
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 Contracting States. In particular,
it is not competent to deal with an application alleging that errors
of fact or law have been committed by domestic courts, except where it
considers that such errors might have involved a possible violation of
the rights and freedoms set out in the Convention (cf. No. 21283/93,
Dec. 5.4.94, D.R. 77, p. 81).
The Commission notes that the applicant was represented by a
lawyer throughout the proceedings at issue and that he was provided
with ample opportunity to present his views and challenge the
submissions of his adversary in the proceedings.
In view of these circumstances, the Commission finds no
indication that the proceedings were unfair and considers, therefore,
that this part of the application is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy