Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29840/96

by P.C.M.S.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 15 January 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

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 10 November 1995

by P.C.M.S. against the Netherlands and registered on 19 January 1996

under file No. 29840/96;

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 applicant is a Dutch citizen, born in 1938, and resides in

Utrecht, the Netherlands. Before the Commission he is represented by

Mr. R.W. Siebers, who acts on behalf of "Stichting Red ons

Rivierlandschap" and "Stichting Uiterwaardenpark Maas-Waal-Merwede",

two associations concerned with nature conservation.

The facts of the case, as submitted by the applicant, 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 future flooding. This Bill, called

the Major Rivers Delta Act (Deltawet Grote Rivieren), was adopted by

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) of 20 April 1995 and entered into force the next day.

On 24 April 1995 the Provincial Executive (Gedeputeerde Staten)

of Gelderland adopted - pursuant to Section 4 para. 3 of the Major

Rivers Delta Act - a plan for the realisation of works to strengthen

a particular section of a dike. The realisation of this plan meant in

effect that a house belonging to the applicant would have to be

destroyed and thus expropriated beforehand.

On 8 May 1995 the applicant filed an appeal against this decision

with the Administrative Law Division (Afdeling Bestuursrechtspraak) of

the Council of State. He 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 his

personal interest in the preservation of his house. In this respect he

referred to an alternative plan which would not necessitate the

destruction of his house.

Following a hearing on 6 June 1995, the Administrative Law

Division rejected the appeal on 16 June 1995.

As regards the alternative plan referred to by the applicant, the

Administrative Law Division noted that adoption of that plan would lead

to the applicant's house being partly surrounded by a sheetpile wall

and that the cost of the realisation of this plan would exceed the

value of the house concerned. For these reasons the Administrative Law

Division considered the Provincial Executive's findings that the

alternative plan was not desirable from the point of view of the

occupant's living conveniences and that the cost to realise the plan

was not proportionate to the value of the house not to be unreasonable

or incorrect.

The Administrative Law Division held, moreover, that also the

repositioning of the dike would not be a valid alternative and,

furthermore, that no reasonable alternative appeared to exist apart

from the destruction of the house.

Finally, the Administrative Law Division noted that the

authorities had examined several possibilities for the reconstruction

of the house at a different location, but that an agreement between the

applicant and the authorities on this issue or as regards the question

of compensation had not yet been reached.

After balancing the interests involved, the Administrative Law

Division concluded that the adverse consequences for the applicant were

not disproportionate to the public interests of reconstructing this

section of the dike in accordance with the adopted plan. Moreover, it

found nothing in the applicant's submissions from which to conclude

that the adoption of the plan was contrary to the law or to general

legal principles.

B. Relevant domestic law

Pursuant to Section 1 of the Major Rivers Delta Act (hereafter:

"Delta Act") the Act only applies to the realisation of those works

which are mentioned in a list annexed to the Act.

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

administrator who will be carrying out the works indicated in Section

1 should draw up a draft plan and an explanatory memorandum.

Pursuant to Section 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 have, in what manner account has been

taken of the interests involved, including the interests of landscape,

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

and environment.

The third paragraph of this provision, 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 Section 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

expropriation is regarded as absolutely necessary for the realisation

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

(Onteigeningswet) apply to the expropriation proceedings.

The authorities are obliged to offer compensation to the owner

of the expropriated property (Section 74 para. 1 Expropriation Act).

The second paragraph of Section 74 provides that the owner of the

expropriated property may initiate civil proceedings if the authorities

have not offered compensation within three months, or if he does not

agree to the amount of compensation offered.

The Council of State consists of a vice-president and

28 councillors and is formally presided over by the King or Queen. The

councillors (staatsraden) are appointed for life by Royal Decree

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

Affairs following consultation with the Minister of Justice.

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 Section 8:15 of the Administrative Law Act (Algemene

wet bestuursrecht) a party may challenge a judge on the ground that the

latter appears to lack impartiality.

Pursuant to Section 8:16 para. 1 of the 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.

COMPLAINTS

1. The applicant complains of a violation of Article 1 of

Protocol No. 1 in that the Administrative Law Division of the Council

of State did not consider the necessity of the deprivation of his

house.

2. The applicant also complains of an infringement of his right to

respect for his home as guaranteed by Article 8 para. 1 of the

Convention.

3. The applicant further raises the question whether the

Administrative Law Division can be regarded as an impartial tribunal

within the meaning of Article 6 para. 1 of the Convention in view of

the fact that the members of the Council of State carry out both

advisory and judicial functions.

4. The applicant finally complains under Article 6 para. 1 of the

Convention that he did not receive a fair trial since in his opinion

his interests were not correctly balanced by the Administrative Law

Division.

THE LAW

1. The applicant submits that the expropriation of his house amounts

to a breach of Article 1 of Protocol No. 1 (P1-1) which, insofar as

relevant, provides:

"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, and subsequently the realisation of this plan, will result

in the expropriation of the applicant's house. Since expropriation

constitutes a "deprivation" of possessions, it falls within the second

sentence of the above provision and the Commission must therefore

determine whether the facts of the case establish that the applicant

will be deprived of his property "in the public interest" and whether

the 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 (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 applicant's

possession was provided for by law, namely by the Major Rivers Delta

Act. It thus remains to be determined whether the deprivation of the

property was in the public interest.

As regards the Convention organs' supervision in this respect the

Commission recalls that in its James and Others v. the United Kingdom

judgment of 21 February 1986 (Series A no. 98, p. 32, para. 46), the

Court held as follows:

"Because of their direct knowledge of their society and its

needs, the national authorities are in principle better placed

than the international judge to appreciate what is "in the public

interest". Under the system of protection established by the

Convention, it is thus for the national authorities to make the

initial assessment both of the existence of a problem of public

concern warranting measures of deprivation of property and of the

remedial action to be taken (see, mutatis mutandis, the Handyside

v. the United Kingdom judgment of 7 December 1976, Series A

no. 24, p. 22, para. 48). Here, as in other fields to which the

safeguards of the Convention extend, the national authorities

accordingly enjoy a certain margin of appreciation.

Furthermore, the notion of "public interest" is necessarily

extensive. In particular, as the Commission noted, the decision

to enact laws expropriating property will commonly involve

consideration of political, economic and social issues on which

opinions within a democratic society may reasonably differ

widely. The Court, finding it natural that the margin of

appreciation available to the legislature in implementing social

and economic policies should be a wide one, will respect the

legislature's judgment as to what is "in the public interest"

unless that judgment be manifestly without reasonable

foundation."

In the present case the background and purpose of the enactment

of the contested legislation was the State's wish to strengthen the

dikes in order to provide more protection to the people living

alongside the rivers. The Commission cannot find that this lacks

reasonable foundation.

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

depriving a person of his 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 (James and Others v. the United Kingdom judgment,

loc. cit., 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 notes in the first place that in the present case

the Administrative Law Division of the Council of State examined

whether there were reasonable alternatives to the adopted plan in which

the house of the applicant would not have to be expropriated. However,

it concluded that there were no such alternatives. As regards the plan

referred to by the applicant, the Administrative Law Division noted

that the cost of the realisation of that plan would exceed the value

of the house concerned and that, therefore, it could not be regarded

as a valid alternative.

The Commission notes furthermore that it appears that the

authorities were examining several possibilities for the reconstruction

of the house at a different location.

Finally, the Commission takes account of the fact that it follows

from the applicable law that the applicant will be compensated for the

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 taken cannot be considered to be

disproportionate to its legitimate purpose.

Consequently, the Commission finds no appearance of a violation

of Article 1 Protocol No. 1 (P1-1). It follows that this part of the

application is manifestly ill-founded within the meaning of Article 27

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

2. The applicant also complains that his right under Article 8

para. 1 (Art. 8-1) of the Convention has been violated since his house

will be expropriated. Article 8 (Art. 8), insofar as relevant, reads

as follows:

"1. Everyone has the right to respect for ... his home ...

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Commission recalls that it has already found the

expropriation of the applicant's house to be in conformity with the

requirements of Article 1 of Protocol No. 1 (P1-1). It further

considers that the interference would be justified as being in

accordance with the law and as necessary in a democratic society in the

interest of public safety and for the protection of health and the

rights of others, within the meaning of paragraph 2 of Article 8

(Art. 8-2) (cf. No. 12736/87, Dec. 5.5.88, not published).

It follows that this complaint must also be rejected as being

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

(Art. 27-2) of the Convention.

3. The applicant furthermore alleges that the Administrative Law

Division of the Council of State lacked impartiality. He invokes

Article 6 para. 1 (Art. 6-1) of the Convention which, insofar as

relevant, provides:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair ... hearing ... by an ...

impartial tribunal ..."

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 (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 an applicant has submitted his case to the

competent court does not in itself constitute compliance with this

rule. It is also required that the substance of any complaint made

before the Commission should have been raised during the proceedings

concerned. The Commission refers to its established case-law on this

matter (cf. e.g. No. 12717/87, Dec. 8.9.88, D.R. 57 p. 196).

The Commission furthermore recalls that it follows from the fact

that the Convention forms an integral part of Dutch law that alleged

violations of the rights guaranteed by the Convention may be invoked

in procedures before the national courts.

The Commission observes that in the present case the applicant

neither tried to challenge the judges of the Administrative Law

Division, nor raised his complaint under Article 6 para. 1 (Art. 6-1)

of the Convention in his proceedings before this tribunal. By failing

to do so, he did not provide the Administrative Law Division with the

opportunity to remedy the violation alleged against it. Consequently,

the Commission finds that the applicant has not complied with the

requirement of exhaustion of domestic remedies.

It follows that this part of the application is inadmissible

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

4. The applicant finally complains under Article 6 para. 1

(Art. 6-1) of the Convention that the Administrative Law Division

failed to balance his interests correctly.

The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Contracting States. In particular,

it is not competent to deal with an application alleging that errors

of fact or law have been committed by domestic courts, except where it

considers that such errors might have involved a possible violation of

the rights and freedoms set out in the Convention (cf. No. 21283/93,

Dec. 5.4.94, D.R. 77, p. 81).

The Commission notes that the applicant was represented by a

lawyer throughout the proceedings at issue and that he was provided

with ample opportunity to present his views and challenge the

submissions of his adversary in the proceedings.

In view of these circumstances, the Commission finds no

indication that the proceedings were unfair and considers, therefore,

that this part of the application is manifestly ill-founded within the

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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P.C.M.S. v. THE NETHERLANDS

P.C.M.S. v. THE NETHERLANDS

LEXI