Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25673/94

by Leonardus Henricus Gerardus PEURTENERS

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 18 May 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

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 8 July 1994 by

Leonardus Henricus Gerardus PEURTENERS against the Netherlands and

registered on 15 November 1994 under file No. 25673/94;

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 1943, and residing at

Bree, Belgium. Before the Commission he is represented by Mr. G.R.A.G.

Goorts, a lawyer practising at Horst, the Netherlands.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

a. Particular circumstances of the case

In 1984, the applicant bought a parcel of farmland in the

municipality of Roosteren. To the piece of farmland was attached an

obligation to plant new trees that would replace trees that had been

felled in 1978. When the applicant became owner of the parcel of land,

the obligation was transferred to him in accordance with Section 3 of

the Forest Act (Boswet).

On 15 January 1992, the applicant requested exemption from the

obligation to replant trees on his land. On 3 June 1992, the request

was rejected by the Director of the Forestry Commission (Directeur van

het Staatsbosbeheer). The Forestry Commission is a division of the

Ministry of Agriculture, Nature Management and Fisheries (Ministerie

van landbouw, natuurbeheer en visserij).

The applicant lodged an objection (bezwaarschrift) to the

rejection. On 16 March 1993, after a hearing at which the applicant's

lawyer pleaded the applicant's case, the Director of the Forestry

Commission rejected the objection.

The applicant subsequently lodged an appeal with the Industrial

Appeals Tribunal (College van Beroep voor het Bedrijfsleven). A hearing

was held on 2 December 1993. Both the applicant and his lawyer were

present. On 12 January 1994, the Industrial Appeals Tribunal rejected

the applicant's appeal.

b. Relevant domestic law

Pursuant to Section 8 para. 1 of the Forest Act, an appeal can

be lodged against a decision of the Director of the Forestry Commission

with the Industrial Appeals Tribunal.

Section 8 para. 2 of the Forest Act states that Sections 3, 5,

and 29-73 of the Industrial Appeals Act (Wet Administratieve recht-

spraak bedrijfsorganisatie) apply to proceedings conducted under the

Forest Act.

Pursuant to Section 37, the President of the Industrial Appeals

Tribunal may take decisions concerning cases that fall outside the

competence of the Tribunal, and in cases that are manifestly

inadmissible or unfounded (kennelijk niet-ontvankelijk of ongegrond)

after a summary examination of the case and without a public hearing

of the parties. In such cases an in-depth examination by the Industrial

Appeals Tribunal is not necessary. Against such a decision of the

President, an objection (verzet) can be lodged with the Industrial

Appeals Tribunal (Section 38 of the Industrial Appeals Act).

COMPLAINTS

The applicant complains that his civil rights and obligations

were not determined by an independent tribunal within the meaning of

Article 6 para. 1 of the Convention because:

- pursuant to Section 37 of the Industrial Appeals Act, the

President of the Industrial Appeals Tribunal may take decisions

concerning cases that fall outside the competence of the

Tribunal, and in cases that are manifestly inadmissible or

unfounded after a mere summary examination of the case and

without a public hearing of the parties;

- the executive authorities can, pursuant to Section 74 of the

Industrial Appeals Act, decide that a judgment of the Industrial

Appeals Tribunal shall not be implemented or suspend its

execution.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6)of the

Convention that his case was not heard by an independent tribunal.

Article 6 para. 1 (Art. 6-1), insofar as relevant, reads as

follows:

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

everyone is entitled to a ... hearing ... by an independent (...)

tribunal ...."

The Commission notes that in the present case there was a dispute

concerning restrictions on the applicant's use of his property. The

property right in question was civil in nature. Article 6 para. 1

(Art. 6-1) therefore applies to this case (cf. Eur. Court H.R.,

Oerlemans judgment of 27 November 1991, Series A no. 219, pp. 20-21,

paras. 45-49).

The applicant complains that the summary procedure provided for

in Section 37 of the Industrial Appeals Act does not meet the

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

The Commission observes, however, that Section 37 was not applied

in the present case. The applicant's case was not decided by the

President of the Industrial Appeals Tribunal but by the full bench of

the Tribunal. The applicant, therefore, cannot 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).

This part of the application is therefore manifestly ill-founded

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

The applicant further complains that Section 74 of the Industrial

Appeals Act is incompatible with the notion of "independent tribunal"

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

The Commission recalls that the compatibility of Section 74 of

the Industrial Appeals Act with the notion of "tribunal" within the

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

by the Court in the case of Van de Hurk v. the Netherlands (Eur. Court

H.R., judgment of 19 April 1994, Series A no. 288). The Court stated,

inter alia, that the power to give a binding decision which may not be

altered by a non-judicial authority to the detriment of an individual

party is inherent in the very notion of a "tribunal", and that this

power can also be seen as a component of the "independence" required

by Article 6 para. 1 (Art. 6-1) (ibid., p. 16, para. 45). The Court

found that, since Section 74 of the Industrial Appeals Act allowed the

executive authorities partially or completely to deprive a judgment of

the Industrial Appeals Tribunal of its effect to the detriment of an

individual party, one of the basic attributes of a "tribunal" was

missing (ibid., p. 17, para. 52). In the absence of a remedy that

fulfilled the requirements of Article 6 para. 1 (Art. 6-1), the Court

concluded that there had been a violation of Article 6 para. 1

(Art. 6-1) of the Convention (ibid., p. 18 para. 55).

Section 8 para. 2 of the Forest Act enumerates the Sections of

the Industrial Appeals Act that apply to proceedings conducted under

the Forest Act. Section 74 of the Industrial Appeals Act is, however,

not included in this enumeration. The applicant's complaint therefore

lacks foundation.

It follows that this part of the application is also 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.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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PEURTENERS v. THE NETHERLANDS

PEURTENERS v. THE NETHERLANDS

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