EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 25989/94

Adrianus A. van Vlimmeren

and

Petrus van Ilverenbeek

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 20 May 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-42)              3

A. The particular circumstances of the case

(paras. 16-31)              3

B. Relevant domestic law and practice

(paras. 32-42)              5

III. OPINION OF THE COMMISSION

(paras. 43-53)              7

A. Complaint declared admissible

(para. 43) 7

B. Point at issue

(para. 44) 7

C. As regards Article 6 para. 1 of the Convention

(paras. 45-52)              7

CONCLUSION

(para. 53) 9

APPENDIX : DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              10

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicants are Dutch citizens, born in 1951 and 1946 respectively, and resident at Oudenbosch , the Netherlands. They were represented before the Commission by Mr G.R.A.G. Goorts , a lawyer practising in Roermond , the Netherlands.

3. The application is directed against the Netherlands.  The respondent Government were represented by their Agent, Mr R. Böcker , of the Netherlands Ministry of Foreign Affairs.

4. The case concerns the applicants' complaint that they were unable to put claims for compensation for damage before a tribunal within a reasonable time.  The applicants invoke Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 15 August 1994 and registered on 19 December 1994.

6. On 15 May 1996 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 15 July 1996.  The applicants replied on 28 October 1996 after an extension of the time-limit fixed for this purpose.

8. On 22 October 1997 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 31 October 1997 and they were invited to submit such further information or observations on the merits as they wished.  The Government submitted observations on 18 December 1997.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, 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. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

12. The text of this Report was adopted on 20 May 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's decision on the admissibility of the application is annexed hereto.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. 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.

17. 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.

18. 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 ).

19. 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.

20. It appears that the Land Development Commission again rejected any responsibility for the damage suffered.

21. 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.

22. 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.

23. 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.

24. 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.

25. The Regional Court further considered that the damage alleged by the applicants 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.

26. 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.

27. 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.

28. 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.

29. 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 .

30. 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. In the case of the second applicant the Regional Court announced that it would appoint an expert in order for the amount of damage to be determined. It decided that further information was required in the case of the first applicant to enable a comparison of the drainage situation prior to and following the water control works of 1988; to that end it asked the Land Development Commission to provide a water table classes chart ( grondwatertrappenkaart ). As it was not technically feasible to produce a new water table classes chart, the Land Development Commission proposed to the applicants' counsel that a different method be adopted to obtain the information required. Counsel agreed to put the proposal to the applicants and to consult expert opinion. The Government submit that the applicants failed to make their position known despite repeatedly having been urged to respond to the proposal. For this reason the Regional Court was asked to order the personal appearance of the parties which was arranged for 27 January 1998. It was expected that an expert would also be appointed at that time, who would need several months to form an opinion. A final judgment may thus be given before the summer of 1998.

31. 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

32. 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 ).

33. 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 ).

34. 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.

35. 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.

36. 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.

37. 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).

38. 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).

39. 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).

40. 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 summons 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.

41. 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).

42. 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).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

43. The Commission has declared admissible the applicants' complaint that they were unable to obtain a determination of their civil rights within a reasonable time.

B. Point at issue

44. Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 of the Convention, as alleged by the applicants.

C. As regards Article 6 para. 1 of the Convention

45. Article 6 para. 1 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 and public hearing within a reasonable time by an independent and impartial tribunal established by law."

46. The applicants submit that after they had formally held the Land Development Commission liable for their damage on 12 August 1991, they were unable to put their claims before an independent tribunal until December 1996. Although they do not dispute that the drawing up of a list of financial settlements is a time-consuming matter, they are of the opinion that this period nevertheless exceeded a reasonable time. The applicants stress, moreover, 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.  Furthermore, 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 still had to be examined by them pursuant to the legal provisions in force, thus extending the length of proceedings.

47. The Government agree that the period to be taken into account under Article 6 para. 1 commenced on 12 August 1991. However, 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 has, in the Government's opinion, not been exceeded. Moreover, the lapse of time which has occurred following the Regional Court's interlocutory judgments of January 1997 did not result from inactivity on the part of the Government.

48. The Commission notes in the first place that what is at stake in the present case is not the length of proceedings as such but rather the applicants' complaint that they only obtained access to a tribunal at a stage when it was no longer possible for their civil rights to be determined within a reasonable time. This is borne out by the fact that the application was introduced within six months of the decision of  the Regional Court of Breda of 10 May 1994. In its judgment the Regional Court expressly held that the applicants' claims fell to be considered within the framework of the proceedings concerning the list of financial settlements; the applicants were thus made aware that they would not be able to put their claims before a tribunal until the list of financial settlements had been deposited for inspection and the objections against the list had been examined by the Land Development Commission and the Investigating Judge.

49. The Commission recalls that Article 6 para. 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the provision embodies the "right to a court", of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect (Eur. Court HR, Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, para. 36). The right of access to court is not absolute but may be subject to limitations. Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (op. cit., pp. 18-19, para. 38; Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, p. 24, para. 57). The Commission considers that, similarly, a delay in the possibility for an individual to have access to court must not be of such a long duration that the right to obtain a determination of his civil rights and obligations within a reasonable time becomes frustrated.

50. In the present case the applicants first informed the Land Development Commission on 12 August 1991 that they held that body liable for the damage they had suffered as a result of flooding. When the Breda Regional Court had declined to entertain their case the applicants had to wait until 9 October 1995 (i.e. four years and two months) for the list of financial settlements to be deposited for inspection and the possibility to file objections and claim compensation. The subsequent proceedings before the Land Development Commission and the Investigating Judge did not result in a friendly settlement. In this respect the Commission notes that the Investigating Judge cannot be considered as a "tribunal" within the meaning of Article 6 para. 1 of the Convention since his sole task was to attempt to secure a friendly settlement (see para. 40 above) and did thus not involve a determination of the applicants' civil rights and obligations. The applicants were subsequently able to put their claims before the Breda Regional Court where a hearing took place on 3 December 1996, i.e. five years and nearly four months after 12 August 1991. These proceedings are currently still pending.

51. Although the Commission appreciates that the drawing up of a list of financial settlements for a land consolidation project such as the one at issue is a complex and time-consuming matter, it considers that this cannot justify a period of more than five years elapsing before the applicants are able to put their claims for compensation of the damage suffered by them before a tribunal. In this respect it notes that it appears from the interlocutory judgments of the Regional Court of January 1997 that this Court is investigating the extent of the damage and whether the damage was indeed caused by the water control works carried out in 1988 (see para. 30 above). The Commission fails to see why the drawing up of the list of financial settlements would have prevented the examination of these questions and the awarding of provisional and/or partial compensation at an earlier stage.

52. Accordingly, the Commission finds that by denying the applicants access to court for a period of five years and nearly four months they were unable to obtain a determination of their civil rights and obligations within a reasonable time.

CONCLUSION

53. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

   M.-T. SCHOEPFER                                                            J.-C. GEUS

      Secretary                                                                             President

to the Second Chamber                                               of the Second Chamber