PARTLY DISSENTING OPINION OF JUDGE DE MEYER (CONCERNING ARTICLE 1 OF PROTOCOL No. 1 (P1-1))

(Translation)

I do not think that the Court has "no jurisdiction to examine the complaints which the Commission declared inadmissible" [4] .

In the present case the facts established by the Commission constituted an infringement of both the applicant company ’ s right "to the peaceful enjoyment" of t heir possessions [5] and their right of "access to a tribunal invested with sufficient jurisdiction to decide the case before it" [6] .

Although the "deficiency of a procedural nature" that the Court found to have occurred did not necessarily affect "the outcome of the proceedings in question" [7] , it is very artificial to separate these two aspects of the case. Depriving someone of the possibility of asserting a right in a court of law simultaneously infringes the right itself.

DISSENTING OPINION OF JUDGE MARTENS, JOINED BY JUDGES GÖLCÜKLÜ, PETTITI AND VALTICOS

1. To my regret I am unable to agree with the Court ’ s judgment.

I.

2.   Unlike the majority, I find that the applicant company had access to a court - the Schiedam District Court - which was fully competent to decide all questions of fact and of law which were material under the relevant substantive norm - point 4 of Schedule IV (see paragraph 27 of the judgment) - as construed by that court.

3.   Admittedly the District Court refused to examine an issue raised by the applicant company in their defence. However, contrary to what the Court seems to suggest (see paragraph 53 in fine and paragraph 54 of its judgment), the District Court did not base its refusal on the finding that it lacked competence to decide that issue, but on the finding that the issue was immaterial for determining the maximum rent allowed.

4.   Thus, what the Court qualifies as "facts which were crucial for the determination of the issue" was found to be immaterial for that determination by the District Court. This demonstrates that the question in the present case is one of (interpretation of) substantive national law and not one of access to a court or of fair process. Or, to put it another way, not a question under Article 6 (art. 6) but, at most, a question under Article 1 of Protocol No. 1 (P1-1).

II.

5.   In order to elucidate this proposition, let me first make some general remarks on the characteristics of the relevant legislation.

Under this legislation (see paragraphs 20 to 28 of the judgment) landlords and tenants are in principle free to agree a rent, but in practice housing rents are subject to a rather strict administrative price-control regime. Whether the rent agreed upon is to be corrected either by the Rent Board or by the District Court essentially depends on the quality of the housing accommodation in question. There are detailed, substantive provisions for rating that quality. These provisions all contain norms of the very simple, classic type: if A, then B - the A always being plain, straightforward facts concerning the accommodation. These provisions thus leave practically no room for judicial assessment.

The rationale for using this type of norm is obvious: the system is designed to be applied throughout the Netherlands, by petty officials - the local rent boards - who will have to deal with a great many cases a year, in simple and inexpensive proceedings, which should not require legal assistance; yet the system should yield results that are consistent all over the country.

These characteristics are highlighted by the fact that, although there is a form of judicial review of the Rent Board ’ s decision, that review lies only to the District Court - the lowest civil court in the hierarchy, the only one where legal assistance is not required - the legislature having denied the parties any possibility of appeal from the decisions of that court.

III.

6.   Against this background let me try to elucidate the proposition advanced above in paragraph 4 by means of an example taken from point 1 of Schedule IV, which gives a list of quite serious deficiencies relating to the accommodation, deficiencies which, if established, entail compulsory reduction of the rent to the minimum level (see paragraphs 25 and 26 of the judgment).

One of these deficiencies is:

"the gas pipes or electricity cables are so dangerous that the public utility company is no longer prepared to supply gas or electricity."

Suppose that a tenant, relying on the public utility company ’ s having cut the gas supply on the ground that the pipes are dangerous, requests that the District Court accordingly reduce his rent to the minimum level. Suppose further that the landlord does not deny that that company has decided to cut the gas supply on this ground, but argues that this fact does not justify a rent reduction since the company acted on an erroneous assessment of the dangerousness of the pipes. Suppose, finally, that the District Court rules that it will not go into the issue of the actual justification of the decision taken by the public utility company (which is not a party to the proceedings); making it clear that in its opinion the wording of point 1 of Schedule IV demonstrates that the mere fact that the public utility company has cut the gas supply on the ground that it judges the pipes dangerous constitutes a "deficiency" which entails compulsory reduction of the rent to the legal minimum and that, consequently, the question whether or not the public utility company ’ s judgment on the pipes was correct is immaterial and therefore does not fall to be decided.

In this fictitious case too, the correctness or not of the public company ’ s verdict on the pipes is "crucial" to the landlord ’ s line of argument, but here also the District Court refuses to give the ruling sought on this issue on the ground that it is immaterial under the substantive rule as construed by that court on the basis of its wording and (I would add) in conformity with the characteristics of the relevant legislation as a whole (see paragraph 5 above).

Such refusal does not constitute a violation of Article 6 (art. 6). Article 6 (art. 6) does not imply an obligation to decide whatever issues may be raised by one or other of the parties. Issues which are irrelevant need not be decided (see, a contrario , the Ruiz Torija v. Spain judgment of 9 December 1994, Series A no. 303-A, p. 12, para . 30). Nor does Article 6 (art. 6) enable the Convention organs to review the domestic courts ’ interpretation of substantive rules of their national law, not even when any such interpretation carries the implication that a certain issue raised in proceedings coming under Article 6 (art. 6) is immaterial.

IV.

7.   Moving from this fictitious case to the actual case before the Court, the deficiency which, if established, entails compulsory reduction of the rent to the minimum level reads (point 4 of Schedule IV, see paragraph 28 of the judgment):

"the further inspection under the Soil Cleaning (Temporary Provisions) Act has indicated pollution of the soil under or in the immediate vicinity of the accommodation such as to cause serious danger to public health or the environment".

The tenant in the domestic proceedings

a) submitted that "the accommodation" (his flat) was situated in an area (the Noord-Nieuwlandsepolder-zuid ) which had, already since 1985, been reputed to be polluted and, consequently, had been inspected under the Soil Cleaning (Temporary Provisions) Act (SCTP);

b) submitted that a "further inspection" under that Act had indicated that the area was so polluted "as to cause serious danger to public health or the environment" and requested that the District Court accordingly reduce his rent to the minimum level.

In support of his submission under (b) above, the tenant produced a letter from the competent authorities under the SCTP which showed that "the further inspection had led them to conclude that further soil-cleaning measures were necessary" in the area (see paragraph 10 of the judgment).

The landlord - the applicant company - did not deny allegation (a) or that there had been a "further inspection" which had led the competent authorities to mandate the next step under the SCTP. The landlord ’ s argument was rather that the latter fact did not justify a rent reduction since those authorities had acted on an erroneous assessment of the dangerousness of the pollution: the landlord contended that the report of the "further inspection" had made it clear that the pollution was not such "as to cause serious danger to public health or the environment".

The Schiedam District Court construed point 4 of Schedule IV as meaning that the mere fact that the "further inspection" had led the competent authorities under the SCTP to mandate the next step under that Act - that is to designate the site as one where soil cleaning was required ( saneringsgeval ) (see paragraph 17 of the judgment) - constituted a "deficiency" which entailed compulsory reduction of the rent to the legal minimum; and that, consequently, the question whether or not the authorities ’ judgment on the dangerousness of the pollution was correct, far from being "crucial", was immaterial in the rent-control proceedings and therefore not an issue to be decided in those proceedings.

In this actual case, too, the conclusion cannot be other than that reached under section III above, namely that the District Court ’ s refusal to go into the issue pleaded by the defendant landlord does not constitute a violation of Article 6 (art. 6) since Article 6 (art. 6) implies neither an obligation to decide whatever issues may be raised by one or other of the parties nor a yardstick to gauge a domestic court ’ s interpretation of a substantive rule of national law to the effect that a certain issue is immaterial for the decision to be given.

V.

8.   The analysis of the present case set out in section IV confirms what is said in paragraphs 2 and 3 above, notably my proposition that the question in the present case is primarily one of substantive (national) law or, to be more precise, a question of interpretation of substantive (national) law. As I have, I hope, demonstrated, the crux of the matter is the District Court ’ s interpretation of point 4 of Schedule IV.

Normally it is for the domestic courts to interpret national law, but since the European Court of Human Rights reserves itself a certain power of review, notably as to the reasonableness of such interpretations (see, for example, the Casado Coca v. Spain judgment of 24 February 1994, Series A no. 285-A, p. 18, para . 43, and the Bulut v. Austria judgment of 22 February 1996, Reports of Judgments and Decisions 1996-II, pp. 355-56, para . 29), I will conclude with a few remarks on the District Court ’ s interpretation, or rather on the interpretation adopted by various other district courts which in the present case was followed by the Schiedam District Court (see paragraph 38 of the Court ’ s judgment).

9.   A first point to make is that this interpretation is in harmony with the text of the norm (see  paragraph 7 above): that text does not specify how or in what manner it should be established that "the further inspection" has indicated the required degree of pollution. In particular, the text does not refer to the report of the experts who have conducted "the further inspection". Thus, the district courts in question were free to establish that "the further inspection" had indicated the required degree of pollution by deeming the opinion of the competent authorities to be decisive in this respect.

Secondly, these district courts had good grounds for doing so. The "further inspection" is only one of the stages in the preliminaries to soil cleaning under the SCTP (see paragraph 32 of the judgment) and under that Act the competent authorities are allowed to authorise the next stage only if they are satisfied that the "further inspection" has (sufficiently) indicated a pollution of the soil in the relevant area "such as to cause serious danger to public health or the environment". Consequently, for the purposes of applying point 4 of Schedule IV the fact that the competent authorities have authorised the next stage may very well be taken as establishing that "the further inspection under the Soil Cleaning (Temporary Provisions) Act has [indeed] indicated pollution of the soil under or in the immediate vicinity of the accommodation such as to cause serious danger to public health or the environment".

Thirdly, this interpretation brings the application of point 4 of Schedule IV into line with that of the other points of that Schedule (see paragraph 5 above). It does so by reducing that application to a simple question of fact: what did the competent authorities under the SCTP do when they were confronted with the results of the "further inspection"? It avoids, moreover, difficult technical debates which would become unavoidable if the rent boards and the district courts had to decide themselves whether or not the report of the experts who conducted "the further inspection" sufficiently indicated the required degree of soil pollution: such debates are not consonant with the character of the proceedings in question as set out in paragraph 5 above.

In sum, this interpretation - which seems to be that of the competent Minister, which is followed by what I believe is a majority of district courts, and which also appears to be supported by the Judicial Division of the Raad van State (see paragraph 38 of the judgment) - is reasonable and should therefore have been taken into account by the European Court. It is this interpretation of point 4 of Schedule IV which underlies the decision of the Schiedam District Court in the case before us: its wording makes that perfectly clear (see paragraph 17 of the judgment).

VI.

10.   In paragraph 4 above I said that the question in the present case is not one under Article 6 (art. 6) but, at most, one under Article 1 of Protocol No. 1 (P1-1). I think that I have sufficiently elucidated the first part of that proposition. I will therefore end this opinion by making a short remark on the last part of the proposition.

Under the above-discussed interpretation of point 4 of Schedule IV the decision of the competent authorities under the SCTP indirectly has consequences for the rent, since under this interpretation the mere fact that those authorities have decided to take further cleaning measures involves so serious a "deficiency" that the rent cannot but be the minimum rent allowed. Under that interpretation the landlords cannot contest that decision in the rent proceedings. It is, however, far from certain that landlords have the possibility of bringing administrative proceedings against the competent authorities under the SCTP in order to challenge their decision. It might, therefore, be argued that the relevant rule of substantive national law lays a disproportionate burden on landlords and, consequently, is incompatible with Article 1 of Protocol No. 1 (P1-1). However, that complaint was not before the Court, since the Commission ruled that it was manifestly ill ‑ founded and therefore declared it inadmissible.

[1] The case is numbered 49/1995/555/641. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning the States bound by Protocol No. 9 (P9).

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-VI), but a copy of the Commission's report is obtainable from the registry.

[4] See paragraph 45 of the judgment; see also on this subject my dissenting opinion in the case of W. v. the United Kingdom , judgment of 8 July 1987, Series A no. 121, p. 42.

[5] Article 1 of Protocol No. 1 (P1-1).

[6] See paragraph 55 of the judgment.

[7] See paragraph 45 of the judgment.