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