Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

APPLICATION No. 17240/90

IKON Industriële Konsulenten in

Marketing-Management B.V. and Martin SIMON

against

the NETHERLANDS

REPORT OF THE COMMISSION

(adopted on 1 July 1992)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-21) . . . . . . . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-8). . . . . . . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 9-16) . . . . . . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 17-21). . . . . . . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 22-33). . . . . . . . . . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

(paras. 34-62). . . . . . . . . . . . . . . . . . . . . . . . . . .7

A. Complaint declared admissible

(para. 34). . . . . . . . . . . . . . . . . . . . . . . . . .7

B. Point at issue

(para. 35). . . . . . . . . . . . . . . . . . . . . . . . . .7

C. Article 6 para. 1 of the Convention

(paras. 36-60). . . . . . . . . . . . . . . . . . . . . . . .7

i. General considerations

(paras. 36-39). . . . . . . . . . . . . . . . . . . . . . . .7

ii. Period to be considered

(para. 40). . . . . . . . . . . . . . . . . . . . . . . . . .7

iii. Reasonableness of the length of the proceedings

(paras. 41-60). . . . . . . . . . . . . . . . . . . . . . . .8

a. Complexity of the case

(paras. 43-44) . . . . . . . . . . . . . . . . . . . . . .8

b. Conduct of the first applicant

(paras. 45-47) . . . . . . . . . . . . . . . . . . . . . .8

c. Conduct of the authorities

(paras. 48-59) . . . . . . . . . . . . . . . . . . . . . .9

d. General assessment

(paras. 60-61) . . . . . . . . . . . . . . . . . . . . . 11

D. Conclusion (para. 62) . . . . . . . . . . . . . . . . . . . 11

APPENDIX I : HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . . . . 12

APPENDIX II : DECISION ON THE ADMISSIBILITY OF

THE APPLICATION . . . . . . . . . . . . . . . . . . . . 13

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 first applicant, Ikon Industriële Konsulenten in

Marketing-Management B.V., is a company whose seat is in Amsterdam.

The second applicant, Martin Simon, is a Dutch citizen, born in

1944 and resident in Amsterdam. He is the director and only share-

holder of the first applicant. Both applicants are represented by

Mr. J.R. Branbergen, a lawyer in Amsterdam.

The application is directed against the Netherlands whose

Government are represented by Mr. K. de Vey Mestdagh, of the

Netherlands Ministry of Foreign Affairs.

3. On 23 May 1978 the Municipality of Amsterdam sued the first

applicant before the Regional Court (Arrondissementsrechtbank) of

Amsterdam, requesting the Court to prohibit the first applicant

from using certain property for other than residential purposes.

In a judgment of 28 May 1980 the Court granted the Municipality's

claim.

4. On 13 June 1980 the first applicant appealed to the Court of

Appeal (Gerechtshof) of Amsterdam. In its judgment of

3 January 1985 the Court of Appeal quashed the Regional Court's

judgment and rejected the Municipality's claim.

5. On 3 April 1985 the Municipality appealed to the Supreme

Court (Hoge Raad). On 27 March 1987 the Supreme Court quashed the

judgment of the Court of Appeal and referred the case to the Court

of Appeal of The Hague for further examination.

6. After the Municipality had resumed the proceedings in

November 1987, the Court of Appeal of The Hague, in a judgment of

7 February 1989, quashed the Regional Court's judgment of

28 May 1980 and rejected the Municipality's claim.

7. On 7 May 1989 the Municipality appealed to the Supreme Court

which, in a judgment of 22 March 1991, rejected the appeal.

8. The applicants complain of a violation of Article 6 para. 1

of the Convention in that the length of the proceedings before the

Dutch courts exceeded a reasonable time.

B. The proceedings

9. The application was introduced on 29 June 1990 and registered

on 1 October 1990.

10. On 3 December 1990 the Commission decided to invite the

respondent Government to submit their observations on the

admissibility and the merits of the application. The Commission

also decided that the application should be examined by a Chamber.

11. After having consulted the parties, the Commission decided on

9 April 1991 to refer the application to a Chamber.

12. The Government's observations were submitted on 12 April 1991

and the applicants' observations in reply were submitted on

29 April 1991.

13. On 8 July 1991 the Commission (First Chamber) declared the

application admissible and decided to put additional questions to

the parties.

14. Additional observations were submitted on 16 September,

25 October and 29 November 1991 by the applicants and on 18 October

and 27 November 1991 by the Government.

15. 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 of the case. Consultations with the

parties took place between 15 July and 18 October 1991.

16. The Commission now finds that there is no basis on which such

a settlement can be effected.

C. The present Report

17. 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. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

18. The text of this Report was adopted on 1 July 1992 and is now

transmitted to the Committee of Ministers of the Council of Europe,

in accordance with Article 31 para. 2 of the Convention.

19. 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.

20. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the

Commission's decision on the admissibility of the application as

Appendix II.

21. The full text of the parties' submissions, together with the

documents lodged as exhibits, is held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

22. On 4 September 1975 the first applicant bought the right to a

long-term lease (erfpacht) of the property situated at Bachstraat

15 in Amsterdam and established its office on the property. It

subsequently appeared that the property was registered as

residential property, this being also the use of the property

indicated in the long-term lease agreement of 12 July 1929.

23. On 20 January 1976 the first applicant requested the

Municipality of Amsterdam to grant a permission for a changed use

of the property. On 15 December 1976 a supplementary request was

made to change the corresponding condition in the long-term lease

agreement.

24. On 7 April 1977 the Municipality refused to agree to change

the permitted use of the property. On 19 April 1977 the first

applicant appealed against this refusal to the Provincial Executive

(Gedeputeerde Staten) of the Province of North Holland. On

6 September 1977 the Provincial Executive decided that the appeal

was well-founded and granted a permission to change the use of the

property. However, the Municipality of Amsterdam persisted in

refusing to change the corresponding condition in the long-term

lease agreement.

25. On 23 May 1978 the Municipality of Amsterdam sued the first

applicant before the Regional Court (Arrondissementsrechtbank) of

Amsterdam, requesting the Court to prohibit the first applicant

from using the property for other than residential purposes. After

an exchange of memorials, a hearing was held on 15 October 1979.

It was then announced that judgment would be given on 19 December

1979. However, the rendering of the judgment was postponed six

times (on 19 December 1979, 30 January, 27 February, 26 March,

23 April and 21 May 1980). Judgment was finally given on

28 May 1980.

26. In the judgment of 28 May 1980 the Regional Court found that

the use indicated in the original long-term lease agreement of

12 July 1929 was binding also on new lessees and that this

condition had not lost its legally binding force as a result of the

fact that some lessess had not respected the condition. Nor could

it be said that the Municipality had renounced this condition or

otherwise lost its right to invoke it. The Court therefore granted

the Municipality's claim and prohibited the first applicant from

using the property for other than residential purposes.

27. On 13 June 1980 the first applicant appealed to the Court of

Appeal (Gerechtshof) of Amsterdam. After an exchange of memorials,

a first hearing was held on 23 April 1981. An interlocutory

judgment was given on 25 June 1981. In this judgment some of the

first applicant's arguments were rejected. However, in the Court's

opinion it remained to be examined whether the refusal to allow the

first applicant to use the property at Bachstraat 15 for other than

residential purposes was in conflict with the "principle of

equality" ("gelijkheidsbeginsel"). The answer to that question

depended on whether the refusal given to the first applicant and

the decisions to grant applications for a change of use, which had

been made in some other cases, could be considered to be part of a

consistent municipal policy. The Court therefore requested the

Municipality to provide a survey of other applications for a change

of the residential use of properties in the same area and of the

decisions taken in regard to those applications. The Municipality

was also requested to indicate the policy guidelines which were the

basis for such decisions. The case was referred to a further

hearing on 17 September 1981.

28. During the period from September 1981 to April 1983 the

Municipality repeatedly requested and was granted an extended time-

limit for the presentation of the material requested by the Court

of Appeal in its interlocutory judgment. The material was finally

submitted on 14 April 1983, and the first applicant submitted its

reply on 2 June 1983. On 6 October 1983 the Court of Appeal gave a

second interlocutory judgment. It considered that the Municipality

had interpreted the Court's previous request too restrictively and

had not provided sufficient information to allow the Court to reach

a conclusion on the observance or not of the principle of equality.

It therefore requested the Municipality to provide supplementary

information and referred the case to a hearing on 17 November 1983.

29. Further submissions by the Municipality were made on

12 January and 4 October 1984 and by the first applicant on

19 April 1984. On 3 January 1985 the Court of Appeal gave its

judgment in which it quashed the Regional Court's judgment and

rejected the Municipality's claim. The Court found that the

Municipality had not shown that the negative decision taken in

regard to the first applicant and certain other decisions were

based on a consistent municipal policy. Consequently, there had

been a breach of the principle of equality.

30. On 3 April 1985 the Municipality appealed to the Supreme

Court (Hoge Raad). In its judgment of 27 March 1987 the Supreme

Court found that the Court of Appeal had not correctly applied the

principle of equality. It therefore quashed the judgment of the

Court of Appeal as well as its two interlocutory judgments and

referred the case to the Court of Appeal of The Hague for further

examination and adjudication.

31. On 12 November 1987 the Municipality of Amsterdam resumed the

proceedings before the Court of Appeal of The Hague. After written

submissions by the parties, the Court held a hearing on

13 December 1988. In its judgment, which was given on

7 February 1989, the Court found that there had been an unequal

treatment of the first applicant as compared to others. It

therefore quashed the Regional Court's judgment of 28 May 1980 and

again rejected the Municipality's claim.

32. On 7 May 1989 the Municipality again appealed to the Supreme

Court. In its judgment of 22 March 1991 the Supreme Court rejected

the appeal of the Municipality.

33. In June 1991 the first applicant sued the Municipality before

the Regional Court of Amsterdam, requesting damages resulting from

the refusal to let the first applicant use the property at

Bachstraat 15 for office purposes. This had in fact made it

necessary for the first applicant to buy other premises for its

office, which had resulted in extra costs. In reply the

Municipality requested that the claim be rejected. The Commission

has not been informed of the further development of these

proceedings.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

34. The Commission has declared admissible the applicant's

complaint that the length of the proceedings before the Dutch

courts exceeded a reasonable time.

B. Point at issue

35. The issue to be determined is whether there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention in

respect of the length of the proceedings concerned.

C. Article 6 para. 1 (Art. 6-1) of the Convention

i. General considerations

36. The applicants complain under Article 6 para. 1 (Art. 6-1) of

the Convention that the length of the proceedings before the Dutch

courts exceeded a reasonable time.

37. Article 6 para. 1 (Art. 6-1) of the Convention provides,

insofar as relevant, as follows:

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."

38. The applicability of Article 6 para. 1 (Art. 6-1) to the

present proceedings is not in dispute. The Commission agrees that

the proceedings, in which the issue was the use of property leased

by the first applicant, concerned the determination of the first

applicant's civil rights. As the second applicant was the director

and only share-holder of the first applicant, the Commission finds

that his civil rights were also at issue.

39. The Commission must examine the length of the proceedings on

the basis of the criteria established in the case-law of the Court

and the Commission, namely the complexity of the case, the

applicant's conduct and the conduct of the authorities dealing with

the case (see, for instance, Eur. Court H.R., Zimmermann and

Steiner judgment of 13 July 1983, Series A No. 66, para. 24).

ii. Period to be considered

40. The starting-point of the period, the reasonableness of which

is at issue, is 23 May 1978, when the Municipality of Amsterdam

sued the applicant before the Regional Court of Amsterdam. The

period ends on 22 March 1991, when the final judgment in the case

was given by the Supreme Court. The proceedings as a whole thus

lasted for twelve years and ten months.

iii. Reasonableness of the length of the proceedings

41. The applicants consider that there were unnecessary delays in

the proceedings for which the courts were responsible. They point

out that the Municipality of Amsterdam also prolonged the

proceedings and that the Municipality, while being a party to the

domestic proceedings, is also a public body for which the

Government are responsible under the Convention.

42. The Government consider that the length of the proceedings

cannot be regarded as unreasonable. They attribute the length

partly to the complexity of the matters involved and partly to the

fact that the parties availed themselves of the domestic remedies,

which they were of course entitled to do, but which inevitably

prolonged the proceedings. They also consider that the first

applicant did not do what could have been done to expedite the

proceedings.

a. Complexity of the case

43. The Government point at the complexity of the matters on

which the Municipality was requested to provide information

according to the two interlocutory judgments of the Court of Appeal

of Amsterdam. They also submit that the legal issues involved were

complex, since they concerned an area where civil law and public

law overlap. The question was whether the Municipality should have

used private law or administrative law in order to achieve the

desired objective. Moreover, the case involved another question

which was controversial in the doctrine and the case-law, namely

the extent to which the general principles of good administration

are also applicable to private law actions of the public

authorities.

44. The Commission accepts that the case raised certain difficult

questions of fact and law. Nevertheless, it finds that the

complexity of the case can only to a limited extent account for the

length of the proceedings in the present case.

b. Conduct of the first applicant

45. The Government note that the length of the proceedings was

due, to a large extent, to the fact that the parties availed

themselves of the domestic remedies at their disposal. They

further note that in the long proceedings before the Court of

Appeal of Amsterdam the first applicant did not make any use of the

possibilities it had under Dutch law to expedite the proceedings by

requesting that the information which the Municipality was to

provide should be provided speedily or within a specific time-

limit. The Government also consider that the proceedings before

the Court of Appeal of Amsterdam were to some extent prolonged by

suggestions about a possible friendly settlement which had been

made by the first applicant.

46. The applicants deny that any attempts to reach a friendly

settlement were made which in any way prolonged the proceedings.

They also note that the delay by the Municipality in collecting and

submitting the information which had been requested by the Court of

Appeal of Amsterdam must also be attributed to the Government, the

Municipality being a public organ.

47. The Commission cannot find in the present case any elements

showing that the first applicant's conduct was such as to cause any

unnecessary delays in the proceedings. It is possible that the

first applicant could have taken certain measures in order to

expedite the proceedings, in particular before the Court of Appeal,

but the Commission notes in this regard the case-law of the

European Court, according to which even in civil cases, where the

conduct of the proceedings is often to a large extent determined by

the acts of the parties, the judicial authorities are not dispensed

from ensuring that the proceedings are conducted expeditiously as

required by Article 6 (Art. 6) of the Convention (Eur. Court H.R.,

Buchholz judgment of 6 May 1981, Series A No. 42, p. 16, para. 50).

The Commission also attaches some weight to the fact that in the

present case, the opposite party, which was to provide further

material in the case, was a public body for whose acts the

Government are responsible under the Convention.

c. Conduct of the authorities

48. The Commission finds it appropriate in this regard first to

examine the different parts of the judicial proceedings separately.

49. In first instance, the proceedings before the Regional Court

of Amsterdam lasted from 23 May 1978 to 28 May 1980, i.e. for about

two years. One problem arises in regard to these proceedings,

namely whether the time which elapsed between the hearing of the

case and the judgment was reasonable.

50. In this regard the Commission recalls that the hearing took

place on 15 October 1979 and that it was then announced that

judgment would be given on 19 December 1979. However, the

rendering of the judgment was subsequently postponed on six

different occasions, and the judgment was not given until on

28 May 1980, i.e. more than seven months after the hearing. The

Government find this delay justified by the complexity of the legal

issues involved. The applicants do not agree and point out that a

period of six weeks would be normal between the hearing and the

judgment.

51. The Commission, after examining the legal reasoning in the

Regional Court's judgment, finds it difficult to accept that it

should have taken more than seven months to prepare the judgment.

In any case, it finds the relatively long time which elapsed to be

a relevant element in the consideration of the total length of the

proceedings.

52. The proceedings before the Court of Appeal of Amsterdam

lasted from 13 June 1980 to 3 January 1985, i.e. for about four and

a half years. During this period the Court requested the

Municipality, in two interlocutory judgments of 25 June 1981 and

6 October 1983, to produce certain material about municipal policy

and how it had been applied in cases similar to that of the first

applicant. As regards the first request, several extensions of the

time-limit were asked for and granted and it took the Municipality

about one year and ten months to submit its replies on

14 April 1983. However, the material then submitted was not

considered sufficient, and a new request for supplementary

information was made.

53. The Government point out that under Dutch law each party is

at liberty to inform the court that it is opposed to an extension

of a time-limit for the submission of documents being granted to

the other party. It is then the task of the judge to assess

whether an extension is justified. Moreover, in the present case

the request to the Municipality concerned data which were difficult

to obtain. The gathering of material from various departments of

the Municipality required considerable time. The first applicant

was also partly responsible for the delay because of attempts that

were made to settle the case out of court during the relevant time.

54. The applicants consider that the time granted to the

Municipality by the Court of Appeal for the submission of the

documents concerned was unreasonably long. They contest that the

first applicant was in any way responsible for the delay concerned

since no attempts to settle the case, which in any way affected the

delay, were made during that time.

55. The Commission considers that a period of about one year and

ten months for the submission of material of the kind concerned

could only be considered reasonable in exceptional circumstances,

and it has in no way been demonstrated that such circumstances

existed in the present case. The responsibility for the delay must

be shared between the Court of Appeal and the Municipality, and the

Government are responsible for both of them in the application of

Article 6 (Art. 6) of the Convention.

56. As regards the proceedings between 12 November 1987 and

7 February 1989 before the Court of Appeal of The Hague, there is

no indication of any unreasonable delays.

57. Finally there were proceedings before the Supreme Court

during two periods, from 3 April 1985 to 27 March 1987 and from

7 May 1989 to 22 March 1991. Consequently, in each case the

proceedings lasted for somewhat less than two years.

58. The Government consider that these periods correspond to the

normal periods in cassation proceedings and that they cannot be

considered unreasonably long. The applicants, on the other hand,

argue that these periods should be assessed in light of the fact

that the proceedings at the first and second degree of jurisdiction

had already been very long. Moreover, it is in the applicants'

view important to note that there were two sets of proceedings

before the Supreme Court. Having regard to these circumstances,

the applicants consider that there was an unreasonable delay also

in the proceedings before the Supreme Court.

59. The Commission considers that the proceedings before the

Supreme Court were not in themselves remarkably long. It regards

it, however, as a relevant consideration that the case came twice

before the Supreme Court and that, on the second occasion, the

Supreme Court was aware that it had already dealt with the same

case before during a period of almost two years.

d. General assessment

60. When examining the length of the proceedings as a whole, the

Commission first notes that the total length of twelve years and

ten months is considerable. The Commission also notes that the

determination of the first applicant's dispute with the

Municipality apparently had important economic consequences for the

applicants.

61. It is true that the length of the proceedings can to some

extent be explained by the complexity of the subject-matter and by

the fact that the case was dealt with in five sets of proceedings:

before the Regional Court, the Court of Appeal of Amsterdam, the

Supreme Court, the Court of Appeal of The Hague and again the

Supreme Court. Nevertheless, there have also been delays in the

proceedings for which the Government must be held responsible, and

when examining the proceedings as a whole, the Commission finds

that the applicants' civil rights were not determined within a

reasonable time as required by Article 6 para. 1 (Art. 6-1) of the

Convention.

D. Conclusion

62. The Commission concludes unanimously that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Second Chamber President of the Second Chamber

(K. Rogge) (S. Trechsel)

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

___________________________________________________________________

29 June 1990 Introduction of application

1 October 1990 Registration of application

Examination of admissibility

3 December 1990 Commission's decision to

invite the Government to

submit observations on the

admissibility and merits of

the application

9 April 1991 Decision to refer the

application to a Chamber

12 April 1991 Government's observations

29 April 1991 Applicants' observations

in reply

8 July 1991 Commission's decision to

declare the application

admissible (First Chamber)

Examination of the merits

15 July 1991 Parties invited to submit

additional observations on

the merits

16 September 1991 Applicants' additional

observations

18 October 1991 Government's additional

observations

25 October 1991 Applicants' further

observations

27 November 1991 Govenment's further

observations

29 November 1991 Applicants' further

observations

1 July 1992 Commission's deliberations

on the merits, final vote

and adoption of the Report

(Second Chamber)

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IKON INDUSTRIELE KONSULENTEN IN MARKETING-MANAGEMENT B.V. AND SIMON v. THE NETHERLANDS

IKON INDUSTRIELE KONSULENTEN IN MARKETING-MANAGEMENT B.V. AND SIMON v. THE NETHERLANDS

LEXI