Lexploria

AS TO THE ADMISSIBILITY

Application No. 19138/91

by A.v.P.

against the Netherlands

The European Commission of Human Rights (Second Chamber)

sitting in private on 6 April 1994, the following members being

present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

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 25 September

1991 by A.v.P. against the Netherlands and registered on 20

November 1991 under file No. 19138/91;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having regard to:

- reports provided for in Rule 47 of the Rules of Procedure

of the Commission;

- the observations submitted by the respondent Government on

28 September 1993 and the observations in reply submitted

by the applicant on 13 December 1993;

Having deliberated;

Decides as follows:

THE FACTS

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

at De Lutte, the Netherlands. Before the Commission he is

represented by Mr. G.W.H.J. de Koning, a lawyer practising in

Apeldoorn.

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

summarised as follows.

The applicant used to run, in the form of a firm

(vennootschap onder firma), a café alongside a busy road. The

clients were mainly truck-drivers. In July 1985 a new highway was

opened, which had a negative effect on the café's turnover.

Already on 26 August 1983 a meeting had taken place between

the Public Works and Water Management Department (Rijkswaterstaat

- hereinafter referred to as "the Department"), the applicant and

the Municipality of Losser. All agreed that the Municipal

Executive (Burgemeester en Wethouders) of Losser would contact

the Director of the Department in order to examine whether or not

"administrative compensation" (bestuurscompensatie) on the basis

of equity could be awarded to the applicant for the negative

effects of the highway on his income, so that the applicant's

compensation would be covered "otherwise" within the meaning of

Section 49 of the Town and Country Planning Act (Wet op de

Ruimtelijke Ordening - hereinafter referred to as "the Act").

On 25 May 1984 the applicant filed a request for

compensation under Section 49 of the Act to the Municipal Council

(Gemeenteraad) of Losser. As agreed between the parties on 26

August 1983, the Municipal Council forwarded this request to the

Department, who decided to seek an expert opinion assessing the

applicant's damages. The applicant's lawyer agreed in writing to

the deviation from the normally applicable time-limits in respect

of the application of Section 49 of the Act in view of the

procedure agreed upon on 26 August 1983.

Following an initial report assessing the damage at 318.500

Dutch guilders and a counter expert opinion obtained by the

applicant, an expert opinion was submitted to the Department on

3 April 1987 assessing the compensation to be awarded to the

applicant at 864.500 Dutch guilders, i.e. 70% of the total

damages assessed at 1.235.000 Dutch guilders.

By letter of 18 April 1988 the Department offered the

applicant compensation in the amount of 341.950 Dutch guilders

plus statutory interests and possible tax damages. By letter of

11 May 1988 the applicant rejected the offer and requested to be

paid the amount arrived at in the final expert opinion pending

a final decision on his claim for compensation. By letter of 9

June 1988, referring to the procedure agreed upon on 26 August

1983, the Department refused the applicant's request and informed

him that he would be paid as soon as a final decision on his

compensation request of 25 May 1984 had been taken.

The applicant's appeal to the Judicial Division of the

Council of State (Afdeling Rechtspraak van de Raad van State) was

rejected on 25 August 1988, on the ground that the offer of 18

April 1988 did not constitute a decision within the meaning of

the Administrative Decisions Appeals Act (Wet Administratieve

Rechtspraak Overheidsbeschikkingen).

The applicant subsequently started summary proceedings

before the President of the Regional Court

(Arrondissementsrechtbank) of The Hague claiming an amount of

864.500 Dutch guilders for damages.

By judgment of 18 April 1989 the President of the Regional

Court ordered the Department to pay 341.950 Dutch guilders to the

applicant. The President rejected the applicant's argument that

his full claim should be paid as he did not find it established

that the parties had agreed on 26 August 1983 that the Department

would pay the compensation amount as assessed by experts.

By decision of 29 June 1989 the Municipal Council rejected

the applicant's request for compensation under Section 49 of the

Act. The Council noted that the applicant's lawyer had agreed in

writing to the deviation from the normally applicable time-limits

in respect of the application of Section 49 of the Act in view

of the procedure agreed upon on 26 August 1983. The Municipal

Council did not find it necessary to seek the advice of a Damage

Assessment Commission within the meaning of Section 4 of the

Procedure Ordinance on Compensation of Damage Caused by Planning

(Procedure-verordening Planschadevergoeding), considering that

the applicant's damage was covered "otherwise" within the meaning

of Section 49 of the Act, as the Department was under an

obligation to apply the system of administrative compensation.

On 20 September 1989 the applicant filed an appeal against

this decision with the Administrative Litigation Division of the

Council of State (Afdeling voor de Geschillen van Bestuur van de

Raad van State) in accordance with the Interim Act on Crown

Appeals (Tijdelijke Wet Kroongeschillen). He requested the

Administrative Litigation Division to decide the matter itself,

as already five years had elapsed since the opening of the new

highway, and submitted that it was therefore of the utmost

importance that a final decision on his claim would be given

soon.

By decision of 15 February 1990 the President of the

Administrative Litigation Division rejected the applicant's

request for an interim measure under Section 107 of the Act on

the Council of State (Wet op de Raad van State).

In its decision of 26 March 1991 the Administrative

Litigation Division quashed the decision of the Municipal Council

of 29 June 1989. It found that the Municipality had unjustly

considered that it was not necessary to apply Section 4 of the

Procedure Ordinance on Compensation of Damage Caused by Planning

by seeking the advice of a Damage Assessment Commission and had

therefore failed to make its own assessment of the alleged

damage, as required by the procedural rules on the application

of Section 49 of the Act, and ordered the Municipal Council to

take a new decision within a maximum period of six months.

On 30 May 1991 the Municipal Council decided to seek the

advice of a Damage Assessment Commission. This Commission advised

in its report of 26 September 1991 that the applicant be paid an

amount which was considerably higher than the amount already paid

by the Department.

In its decision of 31 October 1991 the Municipal Council,

after having considered the advice by the Damage Assessment

Commission, again rejected the applicant's request for

compensation under Section 49 of the Act, considering that an

alternative exploitation of the applicant's business was possible

in the form of a hotel and that his damage was already covered

by the amount paid by the Department.

On 5 December 1991 the applicant filed an appeal against the

decision of 31 October 1991 with the Administrative Litigation

Division.

By decision of 13 February 1992 the President of the

Administrative Litigation Division rejected the applicant's

request for an interim measure under Section 107 of the Act on

the Council of State.

In its decision of 3 February 1993 the Administrative

Litigation Division quashed the decision of 31 October 1991,

considering that the Municipal Council had failed to make its own

assessment of the applicant's claim for damages but conformed

itself to the opinion of the Department. Following the

applicant's request the Administrative Litigation Division

decided the matter itself and awarded the applicant further

compensation for damage of assets of 200.000 Dutch guilders with

statutory interest as from 3 December 1982, compensation for loss

of income of 498.050 Dutch guilders with statutory interest as

from 13 June 1985, and, in view of the Municipal Council's

failure to comply with the Administrative Litigation Division's

clear directives as contained in its decision of 26 March 1991,

ordered the Municipality to pay the applicant an additional

amount of 5.000 Dutch guilders for the disadvantage suffered by

him as a result of this failure.

Following this decision the amount of 1.263.515,90 Dutch

guilders has been paid to the applicant on 22 March 1993.

COMPLAINT

The applicant complains under Article 6 para. 1 of the

Convention that his civil rights and obligations have not been

determined within a reasonable time. He complains in particular

that the Administrative Litigation Division in its decision of

26 March 1991 failed to decide the case itself.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 September 1991 and

registered on 20 November 1991.

On 30 June 1993 the Commission decided to communicate the

application to the respondent Government and invite them to

submit written observations on the admissibility and merits of

the application.

The Government's observations were submitted on 28 September

1993 and the applicant's observations in reply were submitted on

13 December 1993.

THE LAW

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

of the Convention that his civil rights and obligations have not

been determined within a reasonable time.

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

relevant, reads:

"In the determination of his civil rights and

obligations (...) everyone is entitled to a (...) hearing

within a reasonable time by a (...) tribunal (...)."

The Government submit that the application has been deprived

of any material basis. The award of the additional amount of

5.000 Dutch guilders by the Administrative Litigation Division

is not based on Section 49 of the Town and Country Planning Act,

but on the general powers of the Division under Section 5 para.

4 of the Interim Act on Crown Appeals to award compensation in

cases where a decision is quashed. According to the Government

it appears from the considerations in the decision of 3 February

1993 of the Administrative Litigation Division that the award of

the additional amount of 5.000 Dutch guilders relates to the

delay caused by the Municipal Council in that the latter, in its

second decision of 31 October 1991, took insufficient account of

the Administrative Litigation Division's decision of 26 March

1991, whereas the application is primarily motivated by the

applicant's dissatisfaction with the fact that the Administrative

Litigation Division did not itself decide the substantive aspects

of the case in its first decision of 26 March 1991.

In this respect the Government submit that, insofar as an

administrative court has discretionary powers to decide the

substance of an administrative matter itself after having quashed

an administrative decision for being unlawful, these powers can

be used only if the administrative body has no room left to

exercise its discretionary powers in respect of the substance of

the matter and if the court has sufficient information to reach

a decision itself. According to the Government this was not the

case at the time the Administrative Litigation Division took its

first decision on 26 March 1991, as becomes clear from the

Division's second decision of 3 February 1993, which is based to

a significant degree on the report of 26 September 1991 of the

Damage Assessment Commission.

The Government further submit that the period between the

first refusal by the Municipal Council on 29 June 1989 of the

applicant's request for compensation under Section 49 of the Act

and the final decision of 3 February 1993 of the Administrative

Litigation Division cannot be regarded as exceeding a reasonable

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

Convention. As regards the period before 29 June 1989 the

Government submit that the applicant, or his counsel, had clearly

agreed in writing to proceedings lasting longer than normal. It

was not until 1988, when the Department departed from the

experts' report drawn up in that connection, that the applicant

took various kinds of action relating to that offer, as well as

appealing against the decision of 29 June 1989.

The applicant refutes the Government's argument that the

application has been deprived of any material basis. He submits

that so far a part of the interests awarded has not been paid and

that, due to the length of the proceedings, his possibilities to

start a new business have been considerably diminished in view

of his age.

Referring to the Explanatory Memorandum (Memorie van

Toelichting) to the Interim Act on Crown Appeals, the applicant

submits that it is incorrect to say that the Administrative

Litigation Division can only decide a matter when an

administrative body has no room left to exercise its

discretionary powers in respect of the substance of the matter.

According to the applicant the Division is always competent to

decide disputes concerning the application of Section 49 of the

Act itself.

The applicant considers that the Administrative Litigation

Division had sufficient information to decide the matter itself

on 26 March 1991, given that the two reports, in which his

damages were assessed, contained almost identical conclusions.

The applicant maintains that his civil rights have not been

determined within a reasonable time, since about ten years passed

between his first agreement with public authorities in 1983 in

respect of the compensation of his damages and the final award

of this compensation in 1993. The second appeal procedure before

the Administrative Litigation Division constituted an unnecessary

delay, given that the decision of 26 March 1991 merely resulted

in a repetition of events.

The Commission, noting that the parties do not dispute the

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

to the proceedings at issue, considers that Article 6 para. 1

applies to the present administrative proceedings, which were

decisive for the applicant's private rights (cf. Eur. Court H.R.,

X. v. France judgment of 31 March 1992, Series A no. 234-C, p.

90 para. 30).

However, under Article 25 para. 1 (Art. 25-1) of the

Convention the Commission can only receive an application from

a person who can claim to be a victim of a violation by one of

the High Contracting Parties of the rights set forth in the

Convention.

The Commission notes in respect of the period between 25 May

1984, when the applicant submitted his request for compensation

under Section 49 of the Act, and 29 June 1989, when the Municipal

Council rejected this request for the first time that the

applicant, represented by his lawyer, had agreed in writing to

deviate from the normally applicable time-limits in respect of

the application of Section 49 of the Act in view of the procedure

agreed upon on 26 August 1983.

The Commission considers that, by explicitly waiving his

rights under the Act in respect of the normally applicable time-

limits, the applicant made a choice which implied that the

determination of his compensation could last longer than normal.

The applicant cannot complain of a situation which he himself

helped to bring about and

cannot, therefore, claim to be a victim of a violation of Article

6 para. 1 (Art. 6-1) in respect of the length of the proceedings

between 25 May 1984 and 29 June 1989 (cf. No. 12717/87, Dec.

8.9.88, D.R. 57 p. 196).

As regards the period between 20 September 1989, when the

applicant filed an appeal against the decision of 29 June 1989,

and 3 February 1993, when the Administrative Litigation Division

determined the applicant's compensation award, the Commission,

when considering the victim question, recalls that under Article

26 (Art. 26) of the Convention it may only deal with an

application when all domestic remedies have been exhausted

according to the generally recognised rules of international law.

Under this rule an applicant is obliged to make use of remedies

likely to be effective and adequate to remedy the matters of

which he complains.

Where an applicant makes use of such remedies and thereby

obtains adequate redress at the domestic level for the alleged

violation of the Convention, he cannot complain to be a victim

of a violation (cf. No.12719/87, Dec. 3.5.88, D.R.56 p. 237).

The Commission recalls that the Administrative Litigation

Division, in its decision of 26 March 1991, ordered the Municipal

Council to take a new decision within a maximum period of six

months in which it should make its own assessment of the damages

by consulting a Damage Assessment Commission, which, in the

Commission's view, constituted an adequate measure to expedite

the proceedings.

The Commission further recalls that the Administrative

Litigation Division, in its decision of 3 February 1993, did not

only decide the substance of the applicant's claim on the basis

of the report of the Damage Assessment Commission, but also

ordered the Municipal Council to pay an additional separate

amount of 5.000 Dutch guilders for its failure to comply with the

Administrative Litigation Division's clear directives as

contained in its decision of 26 March 1991. In these

circumstances the Commission accepts that the additional amount

of 5.000 Dutch guilders awarded to the applicant constituted

adequate redress at the domestic level for the unnecessary delay

caused by this failure.

The Commission therefore finds that the applicant can no

longer claim to be a victim of the alleged violation of Article

6 para. 1

(Art. 6-1) of the Convention and it follows that the application

must be rejected under Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second

Chamber

(K. ROGGE) (S. TRECHSEL)

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A.V.P. v. THE NETHERLANDS

A.V.P. v. THE NETHERLANDS

LEXI