RESOLUTION DH (98) 204

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 17 DECEMBER 1996 IN THE CASE OF TERRA WONINGEN B.V. AGAINST THE NETHERLANDS

(Adopted by the Committee of Ministers on 10 July 1998 at the 637th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"),

Having regard to the judgment of the European Court of Human Rights in the Terra Woningen B.V. case delivered on 17 December 1996 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 20641/92) against the Netherlands, lodged with the European Commission of Human Rights on 9 September 1992, under Article 25 of the Convention by a limited liability company possessing legal personality under Netherlands law, Terra Woningen B.V., and that the Commission declared admissible the complaints according to which the applicant company had not had the benefit of sufficient judicial review in the determination of its civil rights as the District Court had considered itself bound by the administrative authority's finding (Provincial Executive) on the soil pollution and its effects on public health and the environment; and according to which the applicant company had had no effective remedy against the decision of the Provincial Executive, which affected its property rights;

Recalling that the case was brought before the Court by the Commission on 29 May 1995;

Whereas in its judgment of 17 December 1996 the Court:

- held, by eight votes to one, that it had no jurisdiction to rule on the allegations of violation of Article 1 of Protocol No. 1 taken together with Articles 14, 17 and 18 of the Convention;

- - dismissed, unanimously, the Government's preliminary objection;

- - held, by five votes to four, that there had been a violation of Article 6, paragraph 1, of the Convention;

- held, unanimously, that it was not necessary to examine the applicant company's allegation of a violation of Article 13 of the Convention;

- - held, unanimously, that the respondent State was to pay to the applicant company, within three months, Netherland Guilders 30 000, plus any value-added tax that may be payable; and that simple interest at an annual rate of 5% should be payable from the expiry of the above-mentioned three months until settlement;

- - dismissed, unanimously, the remainder of the claim for just satisfaction;

Having regard to the rules adopted by the Committee of Ministers concerning the application of Article 54 of the Convention;

Having invited the government of the respondent State to inform it of the measures which had been taken in consequence of the judgment of 17 December 1996 having regard to the Netherlands' obligation under Article 53 of the Convention to abide by it;

Whereas, during the examination of the case by the Committee of Ministers, the government of the respondent State gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 6 March 1997, within the time-limit set, the government of the respondent State paid the applicant company the sum provided for in the judgment of 17 December 1996,

Declares, after having taken note of the information supplied by the Government of the Netherlands, that it has exercised its functions under Article 54 of the Convention in this case.

Appendix to Resolution DH (98) 204

Information provided by the Government of the Netherlands

during the examination of the Terra Woningen B.V. case

by the Committee of Ministers

In order to draw the Dutch Courts' attention to the findings of the European Court of Human Rights, the judgment has been published in the law journal Nederlands Juristen Comité voor Mensenrechten , No. 5, 1997 pp. 617-628.

The Dutch Government considers that the Court's judgment will clarify the case-law of the Dutch courts concerning their competence to review the administrative authority factual findings, since the Convention and the judgments of the Court are, in principle, considered to have direct effect in Dutch law (see e.g. the Committee of Ministers' Resolutions DH (95) 240, in the case of Lala against the Netherlands, and DH 95 (241) in the case of Pelladoah against the Netherlands). In accordance therewith, the domestic courts will no longer consider themselves bound by the administrative authorities' findings in respect of soil pollution and will decide themselves whether the pollution of the soil is "such as to cause serious danger to public health or the environment" (cf. Schedule IV in the Housing Rents Ordinance). Thus, violations similar to that found in the present case will be avoided in the future.

In view of the above, the Government is of the opinion that the Netherlands have complied with their obligations under Article 53 of the Convention as regards this case.