Lexploria

Application No. 15642/89

by F.B., A.B. and Association X.

against the Netherlands

The European Commission of Human Rights sitting in private on

31 August 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 February 1989

by F.B., A.B. and Association X. against the Netherlands and

registered on 18 October 1989 under file No. 15642/89;

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 applicants are F.B., A.B. born in respectively 1942 and 1944,

both Dutch citizens and residing in B., the Netherlands, and

"Association X." an association with its registered seat in B. The

association's aim is, inter alia, to promote and maintain the safety

and quality of life within the region A. for the citizens and other

parties concerned within the region.

The applicants are represented by the association's secretary

A.J.G. Grobbe, residing in B.

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

summarised as follows.

By decision of 6 July 1982 the Provincial Executive (Gedeputeerde

Staten) of Gelderland ordered (aanwijzingsbesluit) the Municipal

Council (Gemeenteraad) of A. to revise the zoning plan

(bestemmingsplan) "Immenberg", inter alia, in order to enable the

construction of a specific road.

On 16 February 1984 the Municipality of Apeldoorn decided not to

comply with the order in respect of the road.

After having considered objections raised by, among others, the

applicants, the Provincial Executive of Gelderland, on the basis of

Article 40 of the Town and Country Planning Act (Wet op de Ruimtelijke

Ordening) adopted the ninth partial revision of the "Immenberg" zoning

plan on its own authority, and transmitted the revision to the Crown

(de Kroon) for final approval as required by Article 40 of the Town and

Country Planning Act.

As objections by, inter alia, the applicants against this

revision had been raised, the Crown requested the advice of the

Administrative Litigation Division of the Council of State (Afdeling

voor de geschillen van bestuur van de Raad van State). On 22 June 1988

and 24 February 1989 the Administrative Litigation Division advised the

Crown not to approve the revised plan.

By Royal Decree of 14 July 1989, the Crown, contrary to the

opinion of the Administrative Litigation Division, rejected the

objections on future traffic safety, traffic policy, hindrance by

future traffic, noise, negative financial and environmental aspects and

approved the ninth revision of the zoning plan.

Following two letters by the applicant association, the President

of the Administrative Litigation Division informed the association by

letter of 14 August 1989 that the Provisional Act on Crown Appeals

(Tijdelijke wet Kroongeschillen) was not applicable to the proceedings

concerning the zoning plan revision, as this Act applies to disputes

on which according to the law the Crown should decide, whereas in this

case the Crown's function is not that of an administrative appeal organ

but that of an administrative authority.

The second and third applicants subsequently started summary

proceedings (kort geding) before the President of the Regional Court

(Arrondissementsrechtbank) of The Hague, requesting an injunction

prohibiting the construction of the planned road. On 19 October 1989

the President rejected the request as being premature. He considered

that the State had argued that it would not start the construction

works before construction and tree-felling permits had been issued and

either the administrative or the civil judge in summary proceedings had

examined the applicants' possible objections in respect of the zoning

plan. The President did not exclude the possibility for a civil judge

to examine the applicants' objections against the zoning plan in that

context.

On 31 October and 10 November 1989 the Municipal Executive of A.

granted construction permits to the general manager of the Department

of Public Works (Rijkswaterstaat) in Gelderland in order to start the

construction works of the planned road.

The applicants subsequently requested the President of the

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

Raad van State) to apply Article 107 of the Council of State Act (Wet

op de Raad van State) - which deals with the possibility to request a

suspension or an interim measure in respect of administrative decisions

pending an administrative appeal - and suspend the granted construction

permits.

The applicants' request was rejected on 1 February 1990 by the

President of the Judicial Division. In his decision, the President

agreed with the opinion of the President of the Administrative

Litigation Division, as expressed in the latter's letter of 14 August

1989 to the applicant association, that the Provisional Act on Crown

Appeals did not apply to the proceedings on the zoning plan revision

at issue and considered, inter alia, in respect of the Royal Decree of

14 July 1989 that the Crown, after having thoroughly balanced the

interests involved, had reached a lawful decision which could not be

considered as being unreasonable or arbitrary. In respect of the

construction permits the President held that the Municipal Executive

had correctly examined the compatibility of the construction permits

with the zoning plan and had granted these permits in accordance with

the law.

Following the rejection by the Municipal Executive of Apeldoorn

of the applicants' objections against the granting of the construction

permits, they submitted a subsequent appeal to the Judicial Division,

which is apparently still pending.

COMPLAINT

The applicants complain under Article 6 para. 1 of the Convention

that their civil rights have not been determined by an impartial and

independent tribunal, as the Crown did not decide on the approval of

the proposed revision in accordance with the advice of the

Administrative Litigation Division of the Council of State.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 February 1989 and registered

on 18 October 1989.

On 7 November 1990 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 1 March 1991 and

the applicants' reply thereto on 7 May 1991.

THE LAW

The applicants complain under Article 6 para. 1 (Art. 6-1) of the

Convention that their civil rights have been determined by the Crown,

which they claim is not an independent and impartial tribunal.

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

relevant, provides:

"1. In the determination of his civil rights and

obligations (...) everyone is entitled to a fair and public

hearing (...) by an independent and impartial tribunal

(...)."

The Government are of the opinion that the applicants have failed

to exhaust domestic remedies in respect of their complaint.

The Commission notes in the first place that the applicant

association's aim is, inter alia, to promote and maintain the safety

and quality of life within the region Apeldoorn-Dieren for the citizens

and other parties concerned within the region.

The question therefore arises whether the applicant association

can be regarded as an applicant for the purposes of Article 25

(Art. 25) of the Convention.

According to this provision the Commission may receive petitions

"from any person, non-governmental organisation or group of individuals

claiming to be a victim of a violation by one of the High Contracting

Parties of the rights set forth in (the) Convention".

However, the Commission does not need to resolve this issue, as

the application is inadmissible for the following reasons.

The Commission recalls that, under the Convention, the concept

of "civil rights and obligations" is autonomous and cannot be

interpreted solely by reference to domestic law. In deciding whether

a "civil right" exists for the purposes of Article 6 para. 1 (Art. 6-

1), account should be taken of its substantive content and effects, the

object and purpose of the Convention and the national legal systems of

the other Contracting States. In addition it must be shown that the

result of the proceedings at issue was decisive for such a right (cf.

No. 11282/84, Dec. 12.11.87, D.R. 54 p. 70 with further references).

The Commission also recalls that proceedings aimed at changing

a zoning plan do not, as such, involve a determination of civil rights

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

(cf. No. 11844/85, Dec. 29.2.88, D.R. 55 p. 205).

The Commission notes that the applicants' objections against the

revised zoning plan and the granted construction permits are of a

general nature and solely relate to the applicants' general quality of

life within their direct environment.

In these circumstances the Commission considers that there is no

indication that the proceedings at issue, as such, determined the

applicants' civil rights and obligations within the meaning of

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

It follows that the application is incompatible ratione materiae

with the provisions of the Convention 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 Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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F.B., A.B. AND ASSOCIATION X. v. THE NETHERLANDS

F.B., A.B. AND ASSOCIATION X. v. THE NETHERLANDS

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