Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22130/93

by A.E.N.

against the Netherlands

The European Commission of Human Rights sitting in private on

30 November 1994, the following members being present:

Present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 4 March 1992 by

A.E.N. against the Netherlands and registered on 29 June 1993 under

file No. 22130/93;

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

1. The particular circumstances of the case

The applicant is a Dutch citizen, born in 1943, and resides at

Hornhuizen, the Netherlands.

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

summarised as follows.

Between 1971 and 31 December 1987, a land consolidation project

(ruilverkaveling) was carried out in a region of the Dutch province of

Groningen. The project included the applicant's farmland.

During the project, the Land Planning Service (Landinrichtings-

dienst) of the Ministry of Agriculture, Nature Management and Fisheries

(Ministerie van Landbouw, Natuurbeheer en Visserij) was authorised to

grant subsidies to the farmers involved, for works improving the

quality of the farmlands (kavelverbeteringssubsidie).

On 22 June 1987, the applicant applied for three subsidies for

the costs of earthmoving (grondverzet). On 30 July and 6 August 1987,

the Land Planning Service provisionally agreed to grant the subsidies

(subsidietoezegging) under the condition that the earthmoving be

completed before 31 December 1987.

In August 1987, a Land Planning Service official, Mr. G.,

informed the applicant that, in view of the imminent closure of the

list of financial settlements (lijst der geldelijke regelingen), he

should not further postpone his request for a subsidy for the costs of

the intended draining of his farmland, as these draining works should

be completed before 31 December 1987.

By letter of 16 December 1987, the Land Planning Service informed

the farmers who were involved in the land consolidation project, among

whom the applicant, that in view of the exceptionally bad weather

conditions that year, the deadline before which the projects for which

a subsidy had already been provisionally granted had to be completed,

would, upon request, be extended to 30 June 1988 at the latest.

On 22 December 1987, the Regional Court of Groningen closed the

list of financial settlements. This meant that the land consolidation

project would end on 31 December 1987. In its decision, the Regional

Court stated that it had not yet taken a decision in the last dispute

concerning the list of financial settlements, involving a certain Mr.

R., but that it would nevertheless close the list in view of the fact

that an agreement had been reached between the Land Planning Service

on the one hand, and the Land Planning Commission appointed for this

land consolidation project on the other, and that this agreement did

not affect the interests of either Mr. R. or the other landowners and

landusers involved in the land consolidation project. The Regional

Court gave its final decision in the case of Mr. R. on 14 October 1988.

On 30 December 1987, the applicant applied for a subsidy for the

draining of his farmland. On the same date, he requested that the

deadline for the execution of the earthmoving be extended to 31

December 1988.

On 12 January 1988, the Inspector of the Land Planning Service

extended the deadline for the completion of the earthmoving to 30 June

1988 at the latest. He stated that no further extension would be

possible since the land consolidation project had been closed on 31

December 1987.

Also on 12 January 1988, the Inspector of the Land Planning

Service rejected the applicant's request for a subsidy for the

draining, as the draining should have been completed before 1 January

1988, whereas an extension of the time-limit for these works was not

applicable to this subsidy request since the extension of the time-

limit until 1 July 1988 only applied to projects for which, on

3 November 1987, subsidies had already been provisionally granted.

On 11 February 1988, the applicant filed an appeal against these

two decisions under the Administrative Decisions Appeals Act (Wet

Administratieve Rechtspraak Overheidsbeschikkingen) with the Judicial

Division of the Council of State (Afdeling Rechtspraak van de Raad van

State).

Following a suggestion thereto by the President of the Judicial

Division of the Council of State, the Minister of Agriculture, Nature

Management and Fisheries considered the applicant's appeal as an

objection (bezwaarschrift). On 28 June 1988 the Minister postponed his

decision on the applicant's objections for 30 days.

As the Minister of Agriculture, Nature Management and Fisheries

failed to take a decision on the appeals within the prescribed period

of time, the applicant, on 31 August 1988, lodged an appeal with the

Judicial Division of the Council of State against the presumed

rejections (fictieve weigering) of his objections.

In two decisions, of 7 November 1989 and 5 November 1990

respectively, the Minister of Agriculture, Nature Management and

Fisheries rejected the applicant's objections. The applicant did not

file a separate appeal against these decisions.

In the proceedings before the Judicial Division of the Council

of State, the applicant alleged that the Regional Court's decision of

22 December 1987 to close the list of financial settlements was

contrary to Section 217 of the Land Planning Act (Landinrichtingswet).

He argued that the list could not have been closed before

14 October 1988 due to an unsettled financial dispute concerning the

list, and that, consequently, the land consolidation project had not

ended on 31 December 1987 but only on 31 December 1988. Therefore, the

refusal to grant him a subsidy for the draining of his land was

incorrect. Invoking Article 6 para. 1 of the Convention, the applicant

complained that there was no possibility to appeal against the Regional

Court's decision and he requested the Judicial Division of the Council

of State to examine the legality of that decision. He further

complained in respect of the extension of the deadline until

30 June 1988, that this date had been chosen arbitrarily and was not

logical.

On 30 December 1991, after having considered the written and oral

submissions by the applicant and the Ministry of Agriculture, Nature

Management and Fisheries, the Judicial Division of the Council of State

rejected the appeal.

As regards the rejection of the applicant's request for subsidy

for the drainage works, the Judicial Division noted the Ministry's

constant policy that operations such as the ones at issue, for which

a subsidy has been provisionally granted, must be completed at the

latest on 31 December of the year in which the list of financial

settlements has been closed by the Regional Court, and that in the

present case the Regional Court had closed this list on

22 December 1987. The Judicial Division considered this closure as a

given fact, which could not be challenged in the proceedings before it,

as these proceedings only concerned the applicant's appeal against the

decisions of 12 January 1988. The Judicial Division held that the

Ministry's constant policy, of which the applicant was aware, could not

be regarded as unreasonable and that there was no ground on the basis

of which the Ministry should have made an exception to its constant

policy, given the fact that the applicant had been informed in August

1987 that he should make haste with his request for subsidy, and that

the applicant had had about four years' time to request the subsidy.

As regards the decision to extend the deadline for the execution

of the earthmoving only until 30 June 1988 and not to 31 December 1988,

as requested by the applicant, the Judicial Division of the Council of

State accepted the Ministry's arguments for refusing a further

extension, namely that the extension until 30 June 1988 had been

sufficient for all other persons, among whom 22 farmers, who had been

provisionally granted subsidies to complete their works. The Judicial

Division noted that the applicant had not challenged this fact, and it

found that no facts or circumstances had appeared on the basis of which

the Ministry should have granted the applicant an extra period of six

months.

2. Relevant domestic law

The rules concerning land consolidation projects are laid down

in the Land Planning Act.

During a land consolidation project, the landowners and landusers

involved are represented in a Land Planning Commission (Landinrich-

tingscommissie) which is appointed for a certain project. The

individual landowners and landusers involved have, during the land

consolidation project, the possibility to lodge objections to all kinds

of decisions and plans.

In the course of a land consolidation project, the Land Planning

Service is authorised to grant subsidies for works improving the

quality of the soil. The policy rules regulating the granting of such

subsidies are contained in an explanatory note, which accompanies the

form that has to be filled in when an application for a subsidy is

filed. A provisional subsidy grant has a maximum validity of two years,

within which the work must be completed. However, the work for which

a subsidy has been provisionally granted must, in any case, be

completed by the end of the year in which the Regional Court closes the

list of financial settlements. The persons to whom subsidies have

provisionally been granted are informed of the date before which the

work must be completed.

At an early stage of the land consolidation project, the Land

Planning Service assesses the values of the immovable properties of the

landowners and landusers involved. After the redistribution of the

land, the Land Planning Service assesses the new values of the

immovable properties. The results of the second assessment and the

differences between the two assessments are recorded in the list of

financial settlements. The changes in value are the basis for the

division of the costs of the land consolidation project among the

landowners and landusers involved.

The landowners and landusers involved can lodge objections to the

list with the Land Planning Service, which will try to effect a

settlement. Where a settlement cannot be effected, the case is brought

before a judge of the competent Regional Court. If the judge cannot

effect a settlement either, the Regional Court has to determine the

dispute. An appeal in cassation can be lodged with the Supreme Court

(Hoge Raad) against the Regional Court's decision.

Pursuant to Section 217 of the Land Planning Act, the Regional

Court closes the list of financial settlements after it has dealt with

all disputes concerning the list. No appeal lies against the decision

to close the list.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

of the impossibility to lodge an appeal against the Regional Court's

decision to close the list of financial settlements.

He further complains under Article 6 para. 1 of the Convention

that the Judicial Division of the Council of State did not examine the

legality of the Regional Court's decision.

THE LAW

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

Convention that no appeal lies against the Regional Court's decision

to close the list of financial settlements, and that the Judicial

Division of the Council of State did not examine the legality of the

Regional Court's decision.

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

relevant, reads as follows:

"In the determination of his civil rights and obligations

(...) everyone is entitled to a fair hearing (...)."

2. As regards the complaint that no appeal lay against the Regional

Court's decision of 22 December 1987 to close the list of financial

settlements, the Commission is not required to decide whether or not

the facts submitted by the applicant disclose any appearance of a

violation of the Convention as, in accordance with Article 26

(Art. 26) of the Convention, the Commission finds that the final

decision in these proceedings was given by the Regional Court on

22 December 1987, which is more than six months before the date on

which the application was submitted to the Commission.

It follows that this part of the application must be rejected

under Article 27 para. 3 (Art. 27-3) of the Convention.

3. Insofar as the applicant complains that the Judicial Division of

the Council of State did not review the legality of the Regional

Court's decision but accepted it as a given fact, the Commission

recalls in the first place its constant case-law that it is not

competent to examine alleged errors of fact and law committed by

national judicial authorities, except where it considers that such

errors might have involved a possible violation of the rights and

freedoms set forth in the Convention (cf. No. 17722/91, Dec. 8.4.91,

D.R. 69 p. 345).

On the assumption that Article 6 para. 1 (Art. 6-1) of the

Convention applies to proceedings concerning the conditions attached

to the granting of a subsidy, the Commission has to examine whether or

not the applicant received a fair hearing in the proceedings before the

Judicial Division of the Council of State.

The Commission notes that in the administrative proceedings

before it the Judicial Division had to determine the applicant's appeal

against the decisions of the Minister of Agriculture, Nature Management

and Fisheries of 12 January 1988, and that in these proceedings the

applicant has been provided with ample opportunity to state his case

and to challenge the submissions of the opposite party.

In its decision, the Judicial Division had, inter alia, regard

to a final decision by another court, the function and competence of

which are different from that of the Judicial Division and the

independence and impartiality of which are not challenged by the

applicant. The Commission does not find that this affected the fairness

of the administrative proceedings at issue.

In these circumstances the Commission finds no indication that

the administrative proceedings before the Judicial Division were not

in conformity with the requirements of Article 6 para. 1

(Art. 6-1) of the Convention.

It follows that this complaint is manifestly ill-founded and has

to be rejected under 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

(K. ROGGE) (S. TRECHSEL)

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A.E.N. v. THE NETHERLANDS

A.E.N. v. THE NETHERLANDS

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