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AS TO THE ADMISSIBILITY OF

Application No. 12049/86

by Gerarda Elka VAN DER LINDEN VOOREN

against the Netherlands

The European Commission of Human Rights sitting in private on

14 July 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 21 November

1985 by Gerarda Elka VAN DER LINDEN VOOREN against the Netherlands and

registered on 13 March 1986 under file No. 12049/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born on 1 May 1964, living

in Amsterdam. In the proceedings before the Commission she is

represented by her grandfather, Mr. P. Brouwer, who lives in

Halsteren, the Netherlands.

In 1977 the applicant inherited, together with her brother or

sister, a business concern which owned and let the rooms of a large

house in Amsterdam. As of 1 February 1982, the applicant's guardian

let the house on lease because it needed renovation. Shortly before that

date, the last tenants had left the house.

On 14 or 15 March 1982, by which date the renovation of the

house had not yet been completed, the house was occupied by squatters.

Both the leaseholder and the applicant's guardian reported this to the

police and to the Public Prosecutor who refused to prosecute the

squatters, apparently on the ground that the house was not, at the

time of the squatting, in actual use. This criterion was used in

accordance with the Dutch Supreme Court's jurisprudence on Section 138

of the Dutch Penal Code, which qualifies breach of domicile as a

criminal offence. The Public Prosecutor told the leaseholder and the

guardian by the end of March 1982 that their case was civil and not

criminal. However, civil proceedings could not be instituted against

the squatters, because their identity was not known.

Having found that it was not possible to evict the squatters

without the help of the police, the guardian and the leaseholder then

decided to use a special legal construction in order to circumvent the

deadlock caused by the anonymity of the squatters: the leaseholder

instituted summary civil proceedings before the President of the

Amsterdam Regional Court against the guardian, claiming that the

latter had to put the house, in an empty state, at his disposal. On

28 June 1982, the President granted the claims and authorised the

leaseholder to have the premises vacated, if necessary with police

assistance.

The President's judgment was not executed, however, apparently

because neither the leaseholder nor the guardian had sufficient

financial resources to pay the bailiff, who had asked for 10.000

guilders to vacate the house. Also for financial reasons, no summary

civil proceedings under Section 1401 of the Civil Code were instituted

against the Head of the local Police, the Mayor of Amsterdam, in order

to obtain police assistance in moving out the squatters. The

availability of this remedy in squatting cases, developed and accepted

by Dutch courts since 1981, was endorsed by the Supreme Court (Hoge

Raad) on 21 January 1983 (NJ 1983, 252).

It appears that around July 1982, the lease had been

cancelled because the leaseholder had not paid the rent and had gone

bankrupt. The cancellation apparently constituted an additional

hindrance to the execution of the judgment of 28 June 1982.

At some later date, a new guardian was appointed who asked the

Mayor of Amsterdam, in his letters of 21 August 1984 and 8 January

1985, to co-operate in the removal of the squatters from the house.

Similar letters to the Mayor were written by the present

representative of the applicant, one of which is dated 6 August 1985.

Apparently, the Mayor did not answer any of these letters. Requests

to have the names of the squatters forwarded by the police to the

applicant's representative were not answered either.

On 19 January 1985, the applicant's representative asked the

Public Prosecutor to prosecute the squatters under, inter alia,

Section 138 of the Penal Code. On 26 March 1985, the Public

Prosecutor answered that there was no reason for prosecution since

the case was of a civil character. He referred to the judgment of the

President of the Regional Court.

On 18 March 1985, the applicant's representative filed a

complaint, under Section 12 of the Code of Penal Procedure, against

this refusal to prosecute with the Amsterdam Court of Appeal. At that

time, he did not possess a written authority to act on behalf of the

applicant. On 2 September 1986, the Court of Appeal considered that

this omission was covered by the fact that an authority had been

given on 1 August 1985. The Court held, contrary to the findings of

the Public Prosecutor, that there exists serious suspicion that the

squatters are guilty of breach of domicile. However, the Court found

that it was not expedient to order prosecution since the Public

Prosecutor's refusal to prosecute dated from March 1982 and three

years had elapsed before a complaint was filed with the Court.

At the end of 1985, the applicant's guardian sold the house to

an estate agent, apparently for a low price because of the presence of

the squatters.

COMPLAINTS

The applicant alleges a violation of Article 1 of Protocol No. 1.

(P1-1) She complains that the Dutch authorities, by refusing to remove the

squatters from her house, have not guaranteed to her the peaceful

enjoyment of her possessions.

THE LAW

The applicant has complained that the Dutch authorities were

unwilling to co-operate, through police assistance, in the removal of

the squatters from her house.

It is true that Article 1 of Protocol No. 1 (P1-1) of the Convention

secures to everyone the right to peaceful enjoyment of his

possessions.

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the Convention,

it may only deal with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

In the present case the applicant failed to institute civil

proceedings under Section 1401 of the Civil Code against the Mayor of

Amsterdam claiming that he order the police to put an end to the

occupation of the applicant's house.

It is true that the applicant claims that she had not

sufficient financial means to start civil proceedings against the

Mayor of Amsterdam. However, she has failed to substantiate this

claim. Neither has she shown that she or her guardian has applied for

free legal aid. Moreover, an examination of the case as it has been

submitted does not disclose the existence of any other special

circumstances which might have absolved the applicant, according to

the generally recognised rules of international law, from exhausting

the domestic remedies at her disposal.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and her application

must in this respect 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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VAN DER LINDEN VOOREN v. THE NETHERLANDS

VAN DER LINDEN VOOREN v. THE NETHERLANDS

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