AS TO THE ADMISSIBILITY OF
Application No. 25989/94
by Adrianus A. VAN VLIMMEREN and
Petrus VAN ILVERENBEEK
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 October 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
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 15 August 1994 by
Adrianus A. VAN VLIMMEREN and Petrus VAN ILVERENBEEK against the
Netherlands and registered on 19 December 1994 under file No. 25989/94;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
15 July 1996 and the observations in reply submitted by the
applicants on 28 October 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Dutch citizens, born in 1951 and 1946
respectively, residing in Oudenbosch, the Netherlands. Before the
Commission they are represented by Mr. G.R.A.G. Goorts, a lawyer
practising in Roermond, the Netherlands.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. The particular circumstances of the case
Both applicants cultivate land in an area where the land
consolidation project (ruilverkaveling) "Oud Gastel-Oudenbosch" is in
progress. The area measures about 6,800 hectares and the land
consolidation project concerns approximately 2,500 people. On behalf
of the Land Development Commission (Landinrichtingscommissie) water
control works were carried out in 1988. These works included the
widening and digging of watercourses, the construction of a culvert and
the changing of the direction of the current. From 1991 plots of land
under cultivation by the applicants were regularly flooded and the
yield of the plots subsequently diminished.
The applicants allege that the flooding occurred as a result of
a change in the drainage situation which, in its turn, had been caused
by the water control works carried out in 1988.
On 12 August 1991 the applicants informed the Land Development
Commission that they held that Commission liable for the damage which
they had suffered and would still suffer in the future. The Land
Development Commission disclaimed all responsibility by letter of
21 August 1991; it submitted that the flooding had occurred as a result
of the management and maintenance of the water levels as carried out
by and under the responsibility of the District Water Board
(Waterschap).
By letter of 20 February 1992 the applicants requested the Land
Development Commission to compensate them for a specified damage they
had suffered. In support of their claims they submitted a letter from
the District Water Board of 6 August 1991 in which this body stated
that the change in the drainage situation had occurred as a result of
the works carried out in the course of the land consolidation. In
addition, the applicants requested the Land Development Commission to
take steps in order to avoid further flooding.
It appears that the Land Development Commission again rejected
any responsibility for the damage suffered.
The applicants subsequently requested the Regional Court
(Arrondissementsrechtbank) of Breda to order a preliminary expert
investigation (voorlopig deskundigenonderzoek), and this request was
granted by decision of 4 December 1992. The appointed expert submitted
his findings in April 1993.
Referring to the expert's report, the applicants again submitted
their claims for damages to the Land Development Commission on
21 May 1993. By letter of 17 June 1993, the Land Development Commission
informed the applicants that it did not agree with the findings in the
report, which in their opinion contained inaccuracies, nor with the
conclusions drawn from the report by the applicants.
The applicants subsequently instigated proceedings pursuant to
Section 129 para. 2 of the Land Development Act (Landinrichtingswet)
with the Breda Regional Court. They requested the Court to order the
Land Development Commission to execute the works as advised by the
expert in his report to prevent further flooding and to compensate the
applicants for the damage they had suffered.
Following a hearing on 5 November 1993, the civil chamber of the
Regional Court, departing from earlier case-law, declared the
applicants' claims inadmissible on 10 May 1994. It held that it was
true that Section 129 para. 2 of the Land Development Act provided for
the compensation of damage caused by preparatory works which affected
the infrastructure. However, in proceedings pursuant to this provision
only disputes in respect of the amount of damages might be examined.
According to the Regional Court, the system of the Land Development Act
left no room for the examination in these proceedings of the question
whether or not any damage had occurred as a result of the preparatory
works.
The Regional Court further considered that the damage alleged by
the applicant fell within the ambit of Section 212 para. 1 (b) sub-
para. 4 of the Land Development Act, which concerns the compensation
for damage under the terms of the list of financial settlements (lijst
der geldelijke regelingen). As the Regional Court anticipated that the
applicants would raise the issue of compensation again once the list
of financial settlements had been deposited for inspection (ter inzage
legging), it submitted as its provisional view that it might be
desirable for the applicants to instigate a preliminary hearing of
witnesses (voorlopig getuigenverhoor) in view of the fact that the
opinions of the expert and the Land Development Commission as to the
reasons for the flooding varied widely.
The applicants' subsequent request for a preliminary hearing of
witnesses was granted by the Regional Court on 14 June 1994. On
28 June 1994, ten witnesses were heard.
The applicants had been informed that the list of financial
settlements would be deposited for inspection at the beginning of 1996.
In their application to the Commission they submitted that they did not
expect to be able to put their claims for damages to the Regional Court
of Breda before the beginning of 1997. It appears from developments
which have taken place following the introduction of the application
that the list of financial settlements, the drawing up of which had
started on 11 June 1993, was deposited for inspection between 9 October
1995 and 8 November 1995.
On 20 November 1995 the applicants filed objections against the
list of financial settlements with the Land Development Commission.
They claimed compensation for damage as a result of flooding in 1991,
1992, 1993 and 1994, reimbursement of legal costs, of the costs
incurred in the preliminary expert investigation and of the costs
incurred in the determination of their damages, as well as legal
interest. In support of the claim of the first applicant, it was
further submitted that he had only narrowly escaped bankruptcy. For
this reason the applicants, by letter of 29 November 1995, requested
the Land Development Commission to give their objections priority and,
if no agreement could be reached, to transfer the objections to the
Investigating Judge (Rechter-Commissaris) expeditiously.
On 5 June 1996 the Land Development Commission summoned the
applicants to a hearing of their objections. This hearing not resulting
in the objections being resolved, the case was referred to the
Investigating Judge before whom a hearing took place on 23 October 1996
which also did not result in resolution of the objections. Although the
objections filed by other persons had not yet been dealt with by the
Investigating Judge, the applicants' objections were referred to the
Regional Court of Breda. Following a hearing on 3 December 1996 the
Regional Court issued interlocutory judgments on 28 January 1997 in the
case of the first applicant and on 14 January 1997 in the case of the
second. It decided that further information was required and adjourned
the proceedings which are currently still pending.
As a result of the placement of a pump by the Land Development
Commission in the course of 1994, no further flooding has occurred. The
applicants submit that this pump was installed after they had
threatened to instigate summary proceedings.
B. Relevant domestic law and practice
The present Land Development Act (Landinrichtingswet), which
provides for land consolidation to be carried out in the interest of
the development of rural areas, entered into force in 1985, replacing
the 1954 Land Consolidation Act (Ruilverkavelingswet).
Pursuant to Section 7 of the Land Development Act, the general
administration of land consolidation is carried out by the Central Land
Development Commission (Centrale Landinrichtingscommissie), consisting
of a maximum of twenty members and appointed by Royal Decree
(Koninklijk Besluit).
Land consolidation projects are carried out by local Land
Development Commissions, appointed by the provincial executive
(Gedeputeerde Staten) and consisting of a maximum of seven members.
According to Section 129 para. 2 of the Land Development Act,
damage resulting from preparatory land consolidation works shall be
compensated. Disputes regarding the amount of damages are brought
before the Regional Court for determination. Section 212 para. 1 (b)
sub-para. 4 provides for the compensation of damage, which is not
covered by Section 129 para. 2, to be included in the list of financial
settlements.
In the present case, the decision of the Regional Court of Breda
of 10 May 1994 constituted a departure from case-law to date. Until
then the courts had always dealt with requests for application of
Section 129 para. 2 of the Act even when they involved issues of
liability.
The list of financial settlements is drawn up by the local Land
Development Commission pursuant to Section 211 of the Land Development
Act and is subject to approval by the Central Land Development
Commission (Section 213 para. 1).
The list is deposited for inspection at a locality chosen by the
Land Development Commission for a period of one month. There is no
possibility in law of splitting up the list: it must be submitted as
a whole. Interested parties may lodge objections with the Land
Development Commission against the list of financial settlements,
within fourteen days from the last day on which the list was open to
inspection (Section 214). In case no objections are received, the list
is final (Section 215).
Alternatively, the Land Development Commission examines the
objections and tries to achieve a settlement (Section 174 para. 1). If
these attempts fail, the Land Development Commission transmits the
objections and the procès-verbal it has drawn up of the objection
proceedings to the Investigating Judge (Section 174).
The Investigating Judge will also attempt to reach a settlement
(Section 176 para. 1). To this effect he determines the date of a
hearing as soon as possible and calls up the interested persons
(Section 175 paras. 1 and 2). The hearing is also attended by a
representative of the Central Land Development Commission and one or
more representatives of the local Land Development Commission, as well
as the latter's surveyor.
If agreement is reached, the list of settlements becomes final.
Otherwise the case is referred to the Regional Court by the
Investigating Judge (Section 178 para. 2).
The Regional Court gives matters concerning the list of financial
settlements priority over all other cases, except those concerning
expropriation (Section 179). The Court hears the persons concerned as
well as the representative of the Central Land Development Commission
and the surveyor (Section 185 para. 2). The Court decides within thirty
days after the date of the hearing (Section 185 para. 3). No appeal
lies from this decision (Section 186). The list of financial
settlements does not become final until all disputes concerning the
list have been determined by the Regional Court (Section 217).
In a decision of 10 February 1984 (Nederlandse Jurisprudentie
1985, 102), the Supreme Court (Hoge Raad), considering that the 1954
Land Consolidation Act - in which the present Land Development
Commissions were called Local Committees - regulated the way in which
damage resulting from land consolidation works was to be settled, held
that the costs of such works under this Act were partly to be borne by
the State, partly by the owners of the land concerned. The costs to be
borne by the owners were specified on a list of financial settlements.
The Supreme Court found that in this system of financial settlements
no legal personality had been bestowed upon the Local Committees nor
upon the joint owners. According to the Supreme Court, another way of
obtaining damages from the owners, i.e. by instituting civil
proceedings for tort, would be incompatible with this system.
However, in a judgment of 2 September 1994 (Rechtspraak van de
Week 21 September 1994, Nederlandse Jurisprudentie 1995, 660) the
Supreme Court decided that the Local Committee was an organ of the
State, and that the State could be held liable for the consequences of
a tort committed by the Local Committee. It considered that the system
laid down in the 1954 Land Consolidation Act for compensation of damage
did not imply that the consequences of an act of tort committed by the
State should be borne by the owners of the parcels of land involved in
the land consolidation. The Supreme Court further held that the
liability imposed on the owners to pay compensation through the
procedure of the list of financial settlements was not based on acts
of tort having been committed, but on damage caused by works carried
out in the interest of the land consolidation.
Prior to this judgment, the opinion that the Local Committee was
indeed an organ of the State and that it must thus be possible to hold
the State liable, as a legal person, for any damage arising out of land
development had been expressed in literature on Dutch law.
The 1985 Land Development Act contains no changes as regards the
settlement of damages from the 1954 Land Consolidation Act.
COMPLAINTS
The applicants complain under Article 6 para. 1 of the Convention
that they have been unable to have their civil rights determined by an
independent and impartial tribunal within a reasonable time. As a
result of the decision of the Breda Regional Court of 10 May 1994, they
were forced to await the deposit of the list of financial settlements
in October 1995 before being able to submit a claim for compensation
for damage which had first occurred in 1991. The Regional Court of
Breda, being the first tribunal within the meaning of Article 6 to
examine their claims, did not hear their case until December 1996 and
has not yet reached a final decision.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 August 1994 and registered
on 19 December 1994.
On 15 May 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 15 July
1996. The applicants replied on 28 October 1996, after an extension of
the time-limit fixed for that purpose.
THE LAW
The applicants complain that they have been unable to have their
civil rights determined by a tribunal within a reasonable time. They
invoke Article 6 para. 1 (Art. 6-1) of the Convention which provides,
insofar as relevant:
"1. In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing within a reasonable
time by an independent and impartial tribunal established by
law."
The Government submit that the applicants have failed to exhaust
domestic remedies. They refer to the Supreme Court's judgment of
2 September 1994, published shortly after that date, from which it
appears that it is possible to start civil proceedings for tort where
damage has been caused by works related to land consolidation projects.
The Government also point to the development of legal thinking as
expressed in relevant literature prior to the lodging of the present
application.
Furthermore, the Government argue that the Regional Court of
Breda was expected to give judgment at the end of 1996 or the beginning
of 1997 on the claims submitted by the applicants to the Land
Development Commission. The Government explain that in doing so, the
Regional Court would consider the claims in their entirety, i.e.
including statutory interest, costs of investigations, court fees,
etc., which means that issues such as the expiry of time limits,
including any undesirably long periods of time, could be taken into
account. In the Government's opinion, it is also for this reason that
domestic remedies have not yet been exhausted.
The applicants reply in the first place that the Supreme Court's
judgment invoked by the Government was not given until after their
present complaint had been introduced with the Commission. In any
event, the applicants' claims for compensation were not, or not
entirely, based on the premise that a tort had been committed by the
Land Development Commission, but merely on the fact that they had
suffered damage as a result of works carried out in the course of the
land consolidation project. Moreover, they submit that the Supreme
Court's judgment confirms that where damage, as in the present case,
has been caused by works carried out in the interest of the land
consolidation, compensation should be obtained by means of the list of
financial settlements.
The Commission observes that it is thus in dispute between the
parties whether or not the applicants should have instituted civil
proceedings and whether or not such proceedings might have constituted
an effective remedy.
The Commission notes that the proceedings instigated before the
Breda Regional Court by the applicants pursuant to Section 129 para. 2
of the Land Development Act had previously been capable of providing
relief in cases where damage had occurred as a result of preparatory
land consolidation works. However, in the case of the applicants the
Regional Court departed from this case-law in its decision of
10 May 1994 in which it held explicitly that the question put before
it fell to be decided within the procedure of the list of financial
settlements.
The Commission recalls that it has previously held that an
applicant is excused from pursuing a domestic remedy if he shows that
on the basis of case-law it would be of no avail (cf. No. 18598/91,
Dec. 18.5.94, D.R. 78, p. 72). At the time of the decision of the civil
chamber of the Regional Court of Breda (10 May 1994) and also at the
time of introduction of the present application (15 August 1994), the
case-law of the Supreme Court held that civil proceedings for tort were
incompatible with the system of financial settlements laid down in the
predecessor of the Land Development Act. It thus appears that when the
applicants introduced their application with the Commission they were,
quite understandably, of the opinion that they had complied with the
requirement of exhaustion of domestic remedies. In these circumstances
the Commission considers it inappropriate to hold against the
applicants the fact that a potential remedy, brought about by the
Supreme Court changing its case-law after the applicants had introduced
their application, came to light. Moreover, the Commission notes the
applicants' submissions to the effect that it in fact appears from the
Supreme Court's judgment invoked by the Government that no civil
proceedings for tort can be brought for their claims. The Commission
considers that in these circumstances it cannot be said that the
Government have succeeded in proving the existence of available and
sufficient domestic remedies (cf. Eur. Court HR, De Jong, Baljet and
Van den Brink v. the Netherlands judgment of 22 May 1984, Series A
no. 77, p. 18, para. 36).
The Commission notes that the Government further argue that
proceedings are still in progress which may answer the complaints put
before the Commission and that accordingly also for this reason
domestic remedies have not yet been exhausted. In this respect the
Commission recalls the Convention organs' case-law according to which
the decisive question in assessing the effectiveness of a remedy
concerning a complaint about the length of proceedings is whether it
provides a direct and speedy protection of the rights guaranteed in
Article 6 (Art. 6) of the Convention (cf. Eur. Court HR, Deweer v.
Belgium judgment of 27 February 1980, Series A no. 35, p. 16, para.
29). In view of the fact that it is exactly the alleged unreasonable
length of time before their claims could be examined by a court which
is at the heart of the applicants' complaint, the Commission considers
that this argument goes to the merits of the application.
Accordingly, the application cannot be declared inadmissible for
non-exhaustion of domestic remedies.
As to the merits, the Government submit that the period to be
taken into account under Article 6 para. 1 (Art. 6-1) commenced on 12
August 1991 when the applicants formally held the Land Development
Commission liable for the damage concerned. It was expected that the
Court of Appeal would give judgment on the applicants' claims for
damages by the end of 1996 or the beginning of 1997. In light of the
care with which compensation claims must be dealt with under the
provisions of the Land Development Act and the complexity of drawing
up a list of financial settlements concerning a large area and many
people with entitlements, the reasonable time requirement contained in
Article 6 para. 1 (Art. 6-1) has, in the Government's opinion, not been
exceeded.
The applicants do not dispute that the drawing up of a list of
financial settlements is a time-consuming matter. However, they argue
that this does not justify the situation where it becomes impossible
to put claims for damages to an independent tribunal within a
reasonable time. The applicants stress that it must have been as a
result of their requests to deal with their claims expeditiously or the
pressure exerted by them that the Regional Court decided to examine
their objections on 3 December 1996, i.e. at a time when the objections
lodged by other persons had not even been dealt with by the
Investigating Judge. Nevertheless, according to the applicants, the
period between 12 August 1991 and December 1996 still exceeds a
reasonable time. Moreover, even though it was clear from the outset
that no agreement would be reached in the proceedings before the Land
Development Commission and the Investigating Judge, their objections
had to be examined by them pursuant to the legal provisions in force.
The Commission, after a preliminary investigation of the present
complaint in the light of the parties' submissions, considers that it
raises questions of fact and law which require an examination of the
merits. This complaint cannot, therefore, be declared inadmissible as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for inadmissibility
have been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy