AS TO THE ADMISSIBILITY OF
Application No. 12049/86
by Gerarda Elka VAN DER LINDEN VOOREN
against the Netherlands
The European Commission of Human Rights sitting in private on
14 July 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 21 November
1985 by Gerarda Elka VAN DER LINDEN VOOREN against the Netherlands and
registered on 13 March 1986 under file No. 12049/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen, born on 1 May 1964, living
in Amsterdam. In the proceedings before the Commission she is
represented by her grandfather, Mr. P. Brouwer, who lives in
Halsteren, the Netherlands.
In 1977 the applicant inherited, together with her brother or
sister, a business concern which owned and let the rooms of a large
house in Amsterdam. As of 1 February 1982, the applicant's guardian
let the house on lease because it needed renovation. Shortly before that
date, the last tenants had left the house.
On 14 or 15 March 1982, by which date the renovation of the
house had not yet been completed, the house was occupied by squatters.
Both the leaseholder and the applicant's guardian reported this to the
police and to the Public Prosecutor who refused to prosecute the
squatters, apparently on the ground that the house was not, at the
time of the squatting, in actual use. This criterion was used in
accordance with the Dutch Supreme Court's jurisprudence on Section 138
of the Dutch Penal Code, which qualifies breach of domicile as a
criminal offence. The Public Prosecutor told the leaseholder and the
guardian by the end of March 1982 that their case was civil and not
criminal. However, civil proceedings could not be instituted against
the squatters, because their identity was not known.
Having found that it was not possible to evict the squatters
without the help of the police, the guardian and the leaseholder then
decided to use a special legal construction in order to circumvent the
deadlock caused by the anonymity of the squatters: the leaseholder
instituted summary civil proceedings before the President of the
Amsterdam Regional Court against the guardian, claiming that the
latter had to put the house, in an empty state, at his disposal. On
28 June 1982, the President granted the claims and authorised the
leaseholder to have the premises vacated, if necessary with police
assistance.
The President's judgment was not executed, however, apparently
because neither the leaseholder nor the guardian had sufficient
financial resources to pay the bailiff, who had asked for 10.000
guilders to vacate the house. Also for financial reasons, no summary
civil proceedings under Section 1401 of the Civil Code were instituted
against the Head of the local Police, the Mayor of Amsterdam, in order
to obtain police assistance in moving out the squatters. The
availability of this remedy in squatting cases, developed and accepted
by Dutch courts since 1981, was endorsed by the Supreme Court (Hoge
Raad) on 21 January 1983 (NJ 1983, 252).
It appears that around July 1982, the lease had been
cancelled because the leaseholder had not paid the rent and had gone
bankrupt. The cancellation apparently constituted an additional
hindrance to the execution of the judgment of 28 June 1982.
At some later date, a new guardian was appointed who asked the
Mayor of Amsterdam, in his letters of 21 August 1984 and 8 January
1985, to co-operate in the removal of the squatters from the house.
Similar letters to the Mayor were written by the present
representative of the applicant, one of which is dated 6 August 1985.
Apparently, the Mayor did not answer any of these letters. Requests
to have the names of the squatters forwarded by the police to the
applicant's representative were not answered either.
On 19 January 1985, the applicant's representative asked the
Public Prosecutor to prosecute the squatters under, inter alia,
Section 138 of the Penal Code. On 26 March 1985, the Public
Prosecutor answered that there was no reason for prosecution since
the case was of a civil character. He referred to the judgment of the
President of the Regional Court.
On 18 March 1985, the applicant's representative filed a
complaint, under Section 12 of the Code of Penal Procedure, against
this refusal to prosecute with the Amsterdam Court of Appeal. At that
time, he did not possess a written authority to act on behalf of the
applicant. On 2 September 1986, the Court of Appeal considered that
this omission was covered by the fact that an authority had been
given on 1 August 1985. The Court held, contrary to the findings of
the Public Prosecutor, that there exists serious suspicion that the
squatters are guilty of breach of domicile. However, the Court found
that it was not expedient to order prosecution since the Public
Prosecutor's refusal to prosecute dated from March 1982 and three
years had elapsed before a complaint was filed with the Court.
At the end of 1985, the applicant's guardian sold the house to
an estate agent, apparently for a low price because of the presence of
the squatters.
COMPLAINTS
The applicant alleges a violation of Article 1 of Protocol No. 1.
(P1-1) She complains that the Dutch authorities, by refusing to remove the
squatters from her house, have not guaranteed to her the peaceful
enjoyment of her possessions.
THE LAW
The applicant has complained that the Dutch authorities were
unwilling to co-operate, through police assistance, in the removal of
the squatters from her house.
It is true that Article 1 of Protocol No. 1 (P1-1) of the Convention
secures to everyone the right to peaceful enjoyment of his
possessions.
However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a
violation of this provision as, under Article 26 (Art. 26) of the Convention,
it may only deal with a matter after all domestic remedies have been exhausted
according to the generally recognised rules of international law.
In the present case the applicant failed to institute civil
proceedings under Section 1401 of the Civil Code against the Mayor of
Amsterdam claiming that he order the police to put an end to the
occupation of the applicant's house.
It is true that the applicant claims that she had not
sufficient financial means to start civil proceedings against the
Mayor of Amsterdam. However, she has failed to substantiate this
claim. Neither has she shown that she or her guardian has applied for
free legal aid. Moreover, an examination of the case as it has been
submitted does not disclose the existence of any other special
circumstances which might have absolved the applicant, according to
the generally recognised rules of international law, from exhausting
the domestic remedies at her disposal.
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies and her application
must in this respect be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
For these reasons the Commission,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)