AS TO THE ADMISSIBILITY OF

                      Application No. 34325/96

                      by J.J.W.M. MENS and P.P.M. MENS-HOEK

                      against the Netherlands

     The European Commission of Human Rights (Second Chamber) sitting

in private on 20 May 1998, 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. 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 1 April 1996 by

J.J.W.M. MENS and P.P.M. MENS-HOEK against the Netherlands and

registered on 20 December 1996 under file No. 34325/96;

     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 applicants are both Dutch nationals born in 1942. They reside

in Dalem, the Netherlands. The applicants are represented by

Mr M.J.C. Deriks, a lawyer practising in Rotterdam.

     The facts of the case, as submitted by the applicants, 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 further flooding. This Bill,

called the Major Rivers Delta Act (Deltawet Grote Rivieren, hereinafter

referred to as "the Delta Act"), was adopted by the 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) and entered

into force on 21 April 1995.

     By decision of 18 and 25 July 1995, the Provincial Executive

(Gedeputeerde Staten) of the province of Gelderland adopted - pursuant

to Article 4 para. 3 of the Delta Act - a plan for the realisation of

works to strengthen a particular section of a dike. For the applicants

the realisation of this plan meant in effect that the reinforcement of

the outer dike in the section concerned would, inter alia, entail that

the crest and the exterior slope of the dike would lie in their garden

near their house and that certain vegetation would have to be removed.

The realisation would entail expropriation of land owned by the

applicants, namely, amongst others, certain parcels east and west of

their house and part of the mound on which their house is constructed.

     The applicants and twelve other parties filed an appeal against

the decision of 18 and 25 July 1995 with the Administrative Law

Division (Afdeling Bestuursrechtspraak) of the Council of State. In

their appeal, the applicants 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 their

personal interests in that, inter alia, by taking away a strip of

15 metres from their garden the proportional relation between their

house, their garden and the dike would become distorted. They submitted

alternative ways to secure the strengthening of the dike section which

would take less space and/or would enable a dike strengthening on the

land side of the dike. These alternatives included a construction of

a parallel dike and a quay wall.

     Following a hearing held on 22 September 1995, the Administrative

Law Division, in its decision of 2 October 1995, considered the

applicants' appeal founded insofar as it concerned planned works on the

dike which had no connection with the strengthening of the dike and

rejected the remainder of their appeal.

     As to the part of the applicants' appeal which was rejected, the

Administrative Law Division found that the Provincial Executive could

reasonably have attached more weight to the disadvantages of the

proposed construction of a parallel dike or a quay wall than to the

pertaining advantage of needing less space for the dike strengthening

measures. In this connection the Administrative Law Division accepted

the opinion of the Provincial Executive that the disadvantages attached

to the alternatives suggested by the applicants were to be set off

against a relatively minor limitation on the use of space in the

applicants' garden.

     After having balanced the interests involved, the Administrative

Law Division concluded that the realisation of the plan would not place

a disproportionately heavy burden on the applicants and that it had not

appeared that in the adoption of the plan requirements under domestic

law or general principles of international law had been disrespected.

     By letters of 15 January, 22 March, 12 April and 24 May 1996

respectively, the administrator, i.e. the Polder District Tieler- en

Culemborgerwaarden, informed the applicants that as negotiations aimed

at an amicable resolution had proven unsuccessful in that the

applicants had turned down the Polder District's last offers in respect

of the different plots owned by the applicants and required for the

realisation of the plan, it now was compelled to avail itself of its

powers under Article 5 of the Delta Act and consequently would proceed

to expropriate the different parcels. The applicants were requested to

state their bank or giro account number so that the amounts offered for

the different parcels could be transferred to that account. If the

applicants did not wish to disclose their account number, the amount

would be reserved for them on an account of the public notary Mr E. The

applicants were further informed that, if they wished to seek higher

amounts in compensation, they could address the Regional Court

(Arrondissementsrechtbank) of Dordrecht via a lawyer.

b.   Relevant domestic law

     Pursuant to Article 1 of the Delta Act, it only applies to the

realisation of those works mentioned in a list annexed to the Act.

     Article 4 para. 1 of the Delta Act provides that the

administrator who will be carrying out the works indicated in Article 1

should draw up a draft plan and an explanatory memorandum.

     Pursuant to Article 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 entail, in what manner account had

been taken of the interests involved, including the interests of

landscape, nature, cultural-historic elements, public housing, country

planning and environment.

     Article 4 para. 3 of the Delta Act, 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 Article 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 an

expropriation is regarded as absolutely necessary for the realisation

of the works. A number of provisions in the Expropriation Act

(Onteigeningswet) apply to the expropriation proceedings.

     Article 74 para. 1 of the Expropriation Act obliges the

authorities to offer compensation to the owner of the expropriated

property. Pursuant to para. 2 of this provision, the owner or the

expropriated property may institute civil proceedings if the

authorities have not offered compensation within three months or when

the owner does not agree to the amount of compensation offered.

     The Council of State consists of a vice-President and

28 Councillors (Staatsraden) and is formally presided over by the King

or Queen. the Councillors are appointed for life by Royal Decree

(Koninklijk Besluit) at the recommendation of the Minister of Internal

Affairs (Minister van Binnenlandse Zaken) following consultation with

the Minister of Justice (Minister van Justitie).

     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 Article 8:15 of the General Administrative Law Act

(Algemene Wet Bestuursrecht) a party may challenge a judge on the

ground that the latter appears to lack impartiality.

     Pursuant to Article 8:16 of the General 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.

     The Netherlands is a Member State of the European Union and a

Party to the EEC Treaty of 25 March 1957. Where a preliminary question

as regards compatibility with rules of the European Union is raised in

proceedings before a national court from which no appeal lies, that

court is required, under Article 177 in fine of the EEC Treaty, to

refer this question to the Court of Justice of the European

Communities.

COMPLAINTS

1.   The applicants complain under Article 1 of Protocol No. 1 that

the expropriation of land they own for the purposes of the Delta Act

constitutes a disproportionate interference with their right to respect

for their property in that the Council of State has not or

insufficiently understood that the examination on appeal of the draft

plan also determines the necessity of expropriation. The applicants

argue that the tool of expropriation is meant for situations where the

use of private property is indispensable for the realisation of works

in the public interest and not to allow public authorities to execute

such works in a cheaper way. The applicants submit that strengthening

the dike on the land side of the dike is an affordable alternative and,

in matters of expropriation, the public authorities do have the freedom

to opt for a less expensive method where the use of a more expensive

method could spare private property.

2.   Referring to the judgment of 24 October 1996 of the Court of

Justice of the European Communities in case C-72/95, the applicants

complain under Article 6 of the Convention of the unfairness of the

proceedings in that, contrary to European Union Council Directive

85/337 of 27 June 1985, the Administrative Law Division failed to order

ex officio a Report on the environmental effects of the dike

strengthening plan at issue.

3.   The applicants further complain under Article 6 of the Convention

that the Administrative Law Division of the Council of State cannot be

regarded as impartial in view of the fact that the members of the

Council of State carry out both advisory and judicial functions in that

in their case one of the members of the Administrative Law Division had

also advised in the adoption of the Delta Act.

THE LAW

1.   The applicants complain under Article 1 of Protocol No. 1 (P1-1)

that the expropriation of land they own for the purposes of the Delta

Act constitutes a disproportionate interference with their right to

respect for their property.

     Article 1 of Protocol No. 1 (P1-1), insofar as relevant, reads:

     "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 section at issue, and subsequently, the realisation of this

plan, entails the expropriation of land owned by the applicants. Since

expropriation constitutes a "deprivation" of possessions, it falls

within the second sentence of Article 1 of Protocol No. 1 (P1-1) and

the Commission must therefore determine whether the facts of the case

establish that the applicants' deprivation of their property is "in the

public interest" and whether this 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 (cf. 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 applicants'

property was provided for by law, namely the Delta Act. In a previous

case the Commission has accepted that measures of expropriation under

the Delta Act can reasonably be regarded as being in the public

interest (No. 29840/96, Dec. 15.1.97, unpublished). The Commission

finds no reason to take a different view in the present case.

     However, according to the Convention organs' case-law, a measure

depriving persons of their 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 (Eur. Court HR, James and Others v. the United

Kingdom judgment of 21 February 1986, Series A no. 98, 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 observes that in the present case the

Administrative Law Division examined whether there were reasonable

alternatives to the adopted plan in which the applicant's land would

not or to a lesser extent be affected. It concluded, however, that

there were no such reasonable alternatives. As regards the alternative

measures suggested by the applicants the Administrative Law Division,

after having balanced the parties' arguments, accepted the Provincial

Executive's finding that the disadvantages of the proposed construction

of a parallel dike or a quay wall outweighed the pertaining limited

advantage for the applicants' property.

     The Commission further takes account of the fact that, pursuant

to the applicable rules, the applicants will be compensated for their

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 at issue cannot be considered to be

disproportionate to its legitimate purpose and, consequently, finds no

appearance of a violation of Article 1 of Protocol No. 1 (P1-1).

     It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2.   Referring to the judgment of 24 October 1996 of the Court of

Justice of the European Communities in case C-72/95, the applicants

complain under Article 6 (Art. 6) of the Convention of the unfairness

of the proceedings in that, contrary to EC Council Directive 85/337 of

27 June 1985, the Administrative Law Division failed to order ex

officio a Report on the environmental effects of the dike strengthening

plan at issue.

     Article 6 (Art. 6) 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 ... hearing ... by an

     independent and impartial tribunal established by law...."

     The Commission recalls at the outset that it is not competent to

examine alleged errors of fact or law committed by national courts,

except where it considers that such errors might have involved a

possible violation of the rights and freedoms set forth in this

Convention (cf. No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77). The

Commission is, therefore, not competent to examine whether European

Union Directives have been correctly applied by the Netherlands

authorities.

     The Commission notes that the Administrative Law Division handed

down its decision in the present case on 2 October 1995 whereas the

judgment of the Court of Justice of the European Communities the

applicants refer to was handed down more than one year later, namely

on 24 October 1996. However, as the Netherlands is a Member State of

the European Union, it was open to the applicants in the proceedings

before the Administrative Law Division to seek a preliminary ruling as

to the compatibility of the procedure with the EC Council Directive

85/337 of 27 June 1985.

     Although the Convention does not guarantee as such any right to

have a case referred by a national court to the Court of Justice of the

European Communities for a preliminary ruling under Article 177 of the

EEC Treaty, a refusal of a request for such a referral may infringe the

fairness of proceedings if it appeared to be arbitrary (cf.

No. 20631/92, Dec. 12.5.93, D.R. 74, p. 274).

     However, it does not appear that the applicants ever requested

the Administrative Law Division to seek a preliminary ruling from the

Court of Justice of the European Communities or that they have argued

before the Administrative Law Division that the procedure fell short

of requirements under European Union rules.

     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 (cf. 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 all remedies have been tried does not of

itself constitute compliance with the exhaustion of domestic remedies.

It is also required that the applicant, at least in substance, has

submitted to the competent authorities the complaint brought before the

Commission (cf. No. 16278/90, Dec. 3.5.93, D.R. 74, p. 93; and

19601/92, Dec. 19.1.95, D.R. 80, p. 46).

     In these circumstances, insofar as the applicants complain of the

failure of the Administrative Law Division to order a Report on the

environmental effects of the plan at issue, the Commission is of the

opinion that by not having raised this point in the proceedings at

issue and by not having sought to obtain clarification on this point

by requesting a preliminary ruling the applicants have failed to

exhaust domestic remedies within the meaning of Article 26 (Art. 26)

of the Convention (cf. No. 13251/87, Dec. 6.3.91, D.R. 68, p. 137).

     Finally, noting that the applicants have been given ample

opportunity to state their case and to submit whatever they found

relevant in the proceedings before the Administrative Law Division, the

Commission further cannot find that these proceedings fell short of the

requirements as to fairness of proceedings within the meaning of

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

     It follows that this part of the application must also be

rejected as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

3.   The applicants further complain under Article 6 (Art. 6) of the

Convention that the Administrative Law Division of the Council of State

cannot be regarded as impartial in view of the fact that the members

of the Council of State carry out both advisory and judicial functions

in that in their case one of the members of the Administrative Law

Division had also advised in the adoption of the Delta Act.

     The Commission recalls that the Convention does not provide for

an actio popularis. It is only required to examine the applicants'

complaints that they themselves were victims of a violation of

Article 6 para. 1 (Art. 6-1) of the Convention as regards the different

functions of the Council of State (cf. No. 20560/94, Dec. 18.10.95,

D.R. 83, p. 66).

     The Commission, therefore, finds that the applicants can only

claim to be a victim within the meaning of Article 25 (Art. 25) of the

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

Convention as regards the member of the Council of State who had

advised in the adoption of the Delta Act and, subsequently, was one of

the members of the Administrative Law Division who decided the

applicants' appeal.

     However, the Commission notes that the applicants neither tried

to challenge this judge of the Administrative Law Division concerned

nor raised this complaint under Article 6 para. 1 (Art. 6-1) of the

Convention, which forms an integral part of Dutch law, in the

proceedings before the Administrative Law Division. By failing to do

so, they did not provide the Administrative Law Division with the

opportunity to remedy the violation alleged against it. Consequently,

the Commission finds that the applicants have not complied with the

requirement of exhaustion of domestic remedies (cf. No. 29840/96, Dec.

15.1.97, unpublished).

     It follows that this part of the application is inadmissible

under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

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

      Secretary                                   President

to the Second Chamber                      of the Second Chamber