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AS TO THE ADMISSIBILITY OF

Application No. 14224/88

by Johannes Paulus Emmanuel BAAKMAN

against the Netherlands

The European Commission of Human Rights sitting in private

on 9 July 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

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

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 16 May 1988 by

Johannes Paulus Emmanuel BAAKMAN against the Netherlands and

registered on 16 September 1988 under file No. 14224/88;

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 applicant is a Dutch citizen, born in 1945. He is an

unemployed nuclear process technician and lives in Haaksbergen, the

Netherlands. Before the Commission the applicant is represented by

M. Verhoeven, a lawyer practising in Enschede, the Netherlands.

The facts as submitted by the parties may be summarised as

follows.

On 15 September 1976 the applicant bought a farmhouse and a

piece of land from the heirs of A.J.H. ten T. One of the deceased's

sons, J.H. ten T., is the neighbour and owns the adjacent land. The

boundary between the two properties was determined by officials of the

land registry on 15 October 1970 and marked accordingly by a stone

post on one side and a steel pipe with a wooden post on top on the

opposite side. In 1981 the land registry compared the actual boundary

marks with the boundary indicated in the land register, and found that

the visible boundary marks did not correspond to the land register.

The wooden post was placed several decimetres from the boundary on the

applicant's land.

In 1976 the neighbour applied for a building permit for a

garage, which was granted by the Mayor and Aldermen (Burgemeester en

Wethouders) of Haaksbergen on 28 September 1976. When the garage was

completed in 1977, the neighbour had, without a permission thereto,

also built a lean-to behind the garage. After the verification of the

land boundaries it became clear that both the garage and the lean-to

intruded several decimetres on the applicant's land. The applicant is

not willing to sell this piece of land to his neighbour.

On 4 October 1982 and 6 January 1983, the applicant requested

the Mayor and Aldermen of Haaksbergen to order the removal of the

garage and lean-to using executive coercion (bestuursdwang).

On 24 March 1983 the Mayor and Aldermen of Haaksbergen rejected

the applicant's request and decided to give the neighbour the

opportunity of requesting a building permit for the lean-to

retroactively, which he did on 8 April 1983. The permit was granted

on 3 May 1983. The applicant appealed against both decisions. In the

final appeal proceedings on the refusal by the Mayor and Aldermen to

apply executive coercion the Judicial Division of the Council of State

(Afdeling Rechtspraak van de Raad van State) quashed the negative

decision by the Mayor and Aldermen and rejected the applicant's appeal

as ill-founded in their decision of 28 February 1985. In the final

proceedings on the granting of the building permit for the lean-to the

Judicial Division in their decision of 28 February 1985 quashed the

negative decision of the Mayor and Aldermen on the applicant's

objection on the ground that the building permit for the lean-to had

been wrongly granted.

The Mayor and Aldermen therefore had to take a new decision on

the applicant's objection against the granting of the building permit

for the lean-to.

As the Mayor and Aldermen failed to do so, the applicant

requested the Judicial Division on 17 June 1985 to apply Section 77

(at present Section 104) of the Council of State Act (Wet op de Raad

van State), which deals with cases in which administrative organs

fail to act on a ruling. On 28 February 1986 the Judicial Division

held that the applicant had rightly complained and ordered the

Mayor and Aldermen to take a new decision before 2 July 1986.

On 27 May 1986 the Mayor and Aldermen decided to refuse the

building permit, yet declared the applicant's complaint ill-founded.

The applicant filed an appeal against this decision, which was finally

rejected by the Judicial Division on 18 November 1987, as the Mayor

and Aldermen had corrected their decision already on 10 June 1986 and

11 August 1986 by stating that the applicant's complaints were indeed

well-founded. Also on 18 November 1987 the Judicial Division rejected a

second request of 7 July 1986 by the applicant to apply Section 77 (at

present Section 104) of the Council of State Act.

On 23 February 1987 the applicant again requested the Mayor

and Aldermen to apply executive coercion in order to remove the

lean-to. This request was rejected on 23 June 1987. In the final

appeal proceedings before the Judicial Division the applicant's appeal

was rejected on 21 February 1991. The Judicial Division held that the

application of executive coercion is no obligation, but a

discretionary power. It further held that the decision of the Mayor

and Aldermen not to apply executive coercion, as the part of the

lean-to which is built on the applicant's land is too small to justify

the application of executive coercion in respect of the lean-to, was

not an unreasonable decision in view of the interests involved.

Also on 21 February 1991 the Judicial Division quashed a

negative decision of the Mayor and Aldermen of 12 July 1988 on the

applicant's objection against a fence his neighbour had constructed in

the meantime, also on the applicant's land, without a building permit.

It held that the Mayor and Aldermen had unjustly concluded that no

building permit was required for the construction of the fence.

The two decisions of 21 February 1991 were received by the

applicant on 7 March 1991.

In connection with these proceedings, the applicant also

brought proceedings against a local zoning plan (bestemmingsplan)

which included rules about the rights to erect outbuildings. He

initiated these proceedings by appealing, on 20 May 1983, against a

proposal for such a plan, and he pursued the proceedings after the

plan had been approved by the municipal authorities on 30 August 1983.

The proceedings ended with the Crown (Kroon) decision of 18 November

1986 in which the approval of the plan was annulled.

COMPLAINTS

The applicant complains that he cannot gain adequate redress

in his attempts to have his neighbour's outbuilding removed, which has

been built several decimetres onto his side of the property line. He

also complains that the proceedings have not been terminated within a

reasonable time, whereas no effective remedy was available concerning

the protection against an infringement of his rights as an owner. He

alleges violations of Article 6 para. 1 of the Convention and Article

13 of the Convention in conjunction with Article 1 of Protocol No. 1.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 May 1988 and registered

on 16 September 1988.

On 4 April 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 submitted the observations on 2 July 1990 and

the applicant's observations in reply were submitted on 9 October 1990.

THE LAW

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

Convention that the proceedings relating to his neighbour's outbuilding

have not been terminated within a reasonable time.

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

"1. In the determination of his civil rights and

obligations ..., everyone is entitled to a fair and public

hearing within a reasonable time by a ... tribunal ..."

The Government submit that the applicant failed to exhaust all

domestic remedies as the applicant would still be able, as he has been

from the beginning, to institute civil proceedings against his

neighbour for interference with the applicant's rights of ownership.

The Government state that the procedures the applicant has followed

were not designed to protect his ownership rights, but to assess the

conformity of building plans with government physical planning

criteria and necessary technical requirements. The Government further

state that executive coercion is not a remedy which a member of the

public may have recourse to for the protection of his private

interests.

The Government state furthermore that, even assuming that

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

present case, the reasonable time referred to in Article 6 para. 1

(Art. 6-1) of the Convention has not been exceeded.

The applicant also invokes Article 13 (Art. 13) of the

Convention in conjunction with Article 1 of Protocol No. 1 (P1-1),

stating that in respect of his rights as an owner, he has been denied

an effective remedy.

The Government submit that an effective remedy to this end

exists in the form of civil proceedings, which the applicant failed to

initiate.

The Commission first notes that the applicant complains of the

length of the administrative proceedings and takes the view that the

procedures referred to by the Government do not constitute effective

remedies in regard to the length of the administrative proceedings.

The Commission considers that the main issue to be decided is

whether the decisions relating to the outbuildings constructed by the

applicant's neighbour were decisive for a "civil right" of the

applicant and, if so, whether this civil right was determined within a

reasonable time as required by Article 6 para. 1 (Art. 6-1) of the

Convention.

The Commission furthermore considers that it has to be decided

whether the applicant's rights as an owner were affected by the

present proceedings and, if so, whether the proceedings the applicant

instituted are to be considered "effective remedies" within the meaning

of Article 13 (Art. 13) of the Convention.

After an examination of these issues in the light of the

parties' submissions, the Commission considers that they raise

questions of fact and law which are of such a complex nature that

their determination requires an examination of the merits. The

application cannot therefore be declared inadmissible as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for inadmissibility

have been established.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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BAAKMAN v. THE NETHERLANDS

BAAKMAN v. THE NETHERLANDS