Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14443/88

by 46 inhabitants of RUIGOORD

against the Netherlands

The European Commission of Human Rights sitting in private

on 6 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

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 31 August 1988

by 46 inhabitants of RUIGOORD against the Netherlands and registered

on 5 December 1988 under file No. 14443/88;

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 46 inhabitants of Ruigoord, the

Netherlands. The names of the applicants are attached to this

report. Before the Commission, the applicants are represented by Mr.

L.D.H. Hamer, a lawyer practising in Amsterdam.

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

summarised as follows:

The village of Ruigoord forms part of the Municipality of

Haarlemmerliede and Spaarnwoude. In 1969 the Municipal Council

(Gemeenteraad) established a zoning plan (bestemmingsplan) "Landelijk

Gebied 1968" on the basis of which Ruigoord and its surroundings were

no longer zoned for housing but for harbour and harbour related

industry. The zoning plan was finally approved by Royal Decree on 20

June 1974. A transitional provision on minor building activities was

finally approved by the Provincial Executive on 16 March 1976.

On 25 September 1984, the Municipal Council of Haarlemmerliede

and Spaarnwoude drew up a new zoning plan "Ruigoord 1984" intended to

restitute the housing destination to the village Ruigoord and its

surroundings, replacing the harbour and harbour related industry

destination. The village consists of dwellings which remained in 1973

after the partial demolition of dwellings and of wasteland areas,

which were levelled to prepare the construction of a harbour and

related industry in order to extend the western harbour area of

Amsterdam. To this end, the Municipality of Amsterdam has acquired

the land and dwellings thereon with the exception of four pieces of

land, which are presently owned by, respectively, the applicants

numbered 1, 2, 5, 30, 33 and 34 (see Appendix).

The village remained inhabited, partly by people who have not

sold their land and house to the Municipality of Amsterdam, partly by

people who rent their house from the Municipality of Amsterdam and who

have not yet been requested to vacate their homes, partly by people

occupying houses without paying rent, which had been vacated by the

former inhabitants and by one family who bought their land and house

in 1980. The Municipality of Haarlemmerliede and Spaarnwoude

occasionally grants temporary building permits valid for five years

for construction and renovation works.

Following the objection by, inter alia, the Municipal

Authorities of Amsterdam, the Provincial Executive of Noord-Holland on

5 March 1985 refused to approve the new zoning plan. Against this

refusal, the Municipal Authorities of Haarlemmerliede and Spaarnwoude,

the Forestry Board (Bosschap) and a number of applicants (those

numbered to 36 inclusive as appended) appealed to the Crown (de

Kroon) on the basis of the Crown Appeal Act.

Both the Municipal Authorities and the applicants emphasised

the need of reinstating the village of Ruigoord residential zoning

thereby legalising the present situation of the inhabitants and

extending the possibilities of small-scale building activities.

The Crown decided, in conformity with the advice given by the

Litigation Division of the Council of State (Afdeling Geschillen van

Bestuur van de Raad van State), on 3 March 1988, that the Provincial

Executive of Noord-Holland had rightfully refused the approval of the

new zoning plan. It held, inter alia, that under the circumstances,

the interests of the City of Amsterdam in having ample opportunities

to expand its harbour and to locate related industry outweighed

the interests of the Municipality of Haarlemmerliede and Spaarnwoude,

the Forestry Board and the applicants.

In the view of the Crown, under the existing zoning plan,

there were sufficient possibilities for applicants to initiate

small-scale building activities with regard to their houses, even

though the village did not officially have the status of residential

area.

COMPLAINTS

The applicants complain under Article 6 para. 1 of the

Convention that their civil rights as owners, tenants and occupants,

living under a constant threat of expropriation and/or enforced

vacation of their homes and a constant construction prohibition, were

not determined by an independant and impartial tribunal and that they

did therefore not receive a fair hearing.

The applicants further complain under Article 1 of Protocol

No. 1, that the withholding of the approval of the new zoning plan

implies a constant prohibition on minor building activities, thereby

rendering it impossible for house owners to add value to their

property, which considerably limits the possibility to exercise their

ownership rights.

THE LAW

1. The applicants complain that the Crown is not an independent

and impartial tribunal and that they have therefore been denied the

right to a fair hearing. The applicants invoke Article 6 para. 1

(Art. 6-1) of the Convention, the first sentence of which reads as

follows:

"1. In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by

law."

The Commission notes that the applicants were involved in

proceedings aimed at changing the zoning plan in force. These

proceedings started with the decision of the Municipal Council of

Haarlemmerliede and Spaarnwoude to replace the zoning plan in force by

a new zoning plan. The Provincial Executive of Noord-Holland refused

to approve the proposed new draft plan, whereas the Crown upheld the

decision of the Provincial Executive. The Commission takes the view

that such proceedings cannot be considered to involve a determination

of the applicants' "civil rights" within the meaning of Article 6

(Art. 6) of the Convention (cf. No. 11844/85, Dec. 29.2.88, to be

published in D.R. 55).

It follows that in this respect the application is

incompatible ratione materiae with the provisions of the Convention

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

2. The applicants furthermore complain under Article 1 of

Protocol No. 1 (P1-1) that the withholding of the approval of the new

zoning plan implies a constant prohibition on minor building

activities, thereby rendering it impossible for house owners to add

value to their property, which considerably limits the possibility to

exercise their ownership rights.

Article 1 of Protocol No. 1 (P1-1) reads:

"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 preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it deems

necessary to control the use of property in accordance with the

general interest or to secure the payment of taxes or other

contributions or penalties."

The Commission first observes that only a small number of

applicants can be considered as owners within the meaning of Article 1

of Protocol No. 1 (P1-1).

The Commission notes that under this provision the applicants

cannot claim a right to have a new zoning plan approved by the

Provincial Executive of Noord-Holland.

Insofar the applicants complain on the existing situation, the

Commission is not required to decide whether or not the complaint of

the applicants discloses any appearance of a violation of this

provision, as Article 26 (Art. 26) of the Convention also provides

that the Commission "may only deal with the matter (...) within a

period of six months from the date on which the final decision was

taken".

In the present case the approval of the zoning plan by Royal

Decree of 20 June 1974 and the approval by the Provincial Executive of

16 March 1976 of minor building activities were the final decisions

regarding the subject of this particular complaint, whereas the

application was submitted to the Commission on 31 August 1988, that is

more than six months after the date of these decisions. Furthermore,

an examination of the case does not disclose the existence of any

special circumstances which might have interrupted or suspended the

running of that period.

It is true that the applicants have, within the six months'

period preceding the introduction of this application to the

Commission received a decision from the Crown, in which the Crown held

that the Provincial Executive had rightfully refused the approval of

the new zoning plan. The legal situation of the applicants remained

therefore unaltered. The Commission recalls that a request for

re-opening of a case cannot as a rule be regarded as an effective

remedy within the meaning of Article 26 (Art. 26) of the Convention

(cf. No. 10537/83, Dec. 10.10.85, D.R. 44 p. 98). The decision of

the Crown in that matter cannot therefore be taken into account when

calculating the six months' period.

In this respect the applicants have therefore failed to comply

with the six months' rule laid down in Article 26 (Art. 26) of the

Convention. It follows that this complaint must be rejected under

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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46 INHABITANTS OF RUIGOORD v. THE NETHERLANDS

46 INHABITANTS OF RUIGOORD v. THE NETHERLANDS

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