CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 12856/87                       by E. VAN WIJK B.V.                       against the Netherlands             The European Commission of Human Rights (Second Chamber) sitting in private on 10 September 1991, the following members being present:                 MM. S. TRECHSEL, President of the Second Chamber                   G. SPERDUTI                   G. JÖRUNDSSON                   A. WEITZEL                   H.G. SCHERMERS              Mrs.   G. H. THUNE              Mr.   F. MARTINEZ              Mrs.   J. LIDDY              MM.   J.-C. GEUS                   M.P. PELLONPÄÄ                Mr.   K. ROGGE, Secretary to the Second Chamber           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 March 1987 by E. van Wijk B.V. against the Netherlands and registered on 15 April 1987 under file No. 12856/87;           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           A. Particular circumstances of the case           The applicant is a company, having its seat at Genderen, the Netherlands.   Before the Commission it is represented by Mr.   W.J. Wortelboer, a lawyer practising in Amsterdam.           The facts as submitted by the parties may be summarised as follows.           The applicant is a shipping and haulage company.   It has existed since 1933.   In the course of time three storage tanks for oil were put in the ground on its property.           On 13 May 1982, the applicant company requested the Municipal Authorities for a license under the Nuisance Act (Hinderwet) to construct, to bring into operation and to exploit storage space, a repair device for motor vehicles and three underground oil tanks, all of which it had apparently been using for a number of years.           By letter of 5 August 1982 the Waterworks Company "Noord-West-Brabant" raised objections (bezwaar) in respect of the license application and the draft decision of the Municipal Authorities.           On 17 February 1983 the Municipal Authorities granted the license subject to certain conditions.           The Waterworks Company lodged an appeal against the decision of the Municipal Authorities with the Crown in March 1983.           In a public hearing before the Administrative Litigation Division of the Council of State (Afdeling voor de geschillen van bestuur van de Raad van State), the applicant company submitted that it had a right to compensation if the Crown would take a decision which would cause damages to the applicant company.           On 1 October 1986 the Crown, in accordance with the advice of the Administrative Litigation Division of the Council of State, decided that the Municipal Authorities had rightly granted the license under the Nuisance Act, but changed several of the attached conditions, so that the oil would now be stored above ground and part of the company's property would be provided with a non-porous soil covering in the interest of the water-supply.   The Crown disregarded the applicant company's request for compensation.           The applicant company alleges that it would cost 1.200.000,- Dutch guilders to meet all the conditions in the Crown's decision.           B. Relevant domestic law and practice           Pursuant to the Benthem judgment, in which the Court has held that the Crown is not a tribunal within the meaning of Article 6 para. 1 of the Convention, the Dutch legislation has been amended by the Provisional Act on Crown Appeals (Tijdelijke Wet Kroongeschillen). This Act came into force on 1 January 1988.   In order to comply with the Benthem judgment until 1 January 1988, the Supreme Court has ruled that the interested party may file an appeal with the civil courts after a decision of the Crown.   The civil court has the right to conduct a totally independent examination of the case, including the contentious issue already decided by the Crown (Hoge Raad 12 December 1986, NJ 1987/272).   This case-law has been confirmed by subsequent judgments (e.g.   Hoge Raad 6 February 1987, NJ 1987/381).     COMPLAINTS           The applicant company complains that the Crown, which has decided on the applicant company's civil rights, is not an independent and impartial tribunal within the meaning of Article 6 para. 1 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 31 March 1987 and registered on 15 April 1987.           On 2 May 1989, 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 complaint under Article 6 para. 1 of the Convention concerning the proceedings before the Crown.           The Government's observations were received by letter dated 13 September 1989 and the applicant's observations were dated 24 November 1989.           On 2 September 1991 the Commission refered the application to the Second Chamber.   THE LAW           The applicant company has complained that the Crown, which decided on its civil rights, is not an independent and impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, which reads, insofar as relevant:   "In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by an independent and impartial tribunal..."           The Government submit that, while Article 6 para. 1 (Art. 6-1) of the Convention applies to proceedings concerning applications for a licence under the Nuisance Act, the applicant company has failed to exhaust the domestic remedies as required by Article 26 (Art. 26) of the Convention.   Pursuant to the Benthem judgment and in anticipation on the Provisional Act on Crown Appeals, the Supreme Court has ruled as soon as 12 December 1986 that an interested party can apply to the civil courts for a full legal review of the Crown's decision.   This case-law has been further confirmed and clarified in the Supreme Court's decision of 6 February 1987.           The applicant company submits that the possibility of seizing the civil courts after the Crown's decision constitutes in itself a breach of Article 6 para. 1 (Art. 6-1) of the Convention, since the entire duration of the proceedings will not be "within a reasonable time". The applicant company further argues that a domestic remedy does not have to be exhausted where it is not effective or adequate and that the high costs attached to the civil proceedings render ineffective the new domestic remedy indicated by the Government.           The Commission considers the objection by the Government not as raising an issue of non-exhaustion but rather as implying the argument that the applicant can no longer claim to be a victim of a violation of its right under Article 6 para. 1 (Art. 6-1) to a hearing before an independent and impartial tribunal and that the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           In this respect, the Commission observes that the applicant company claims to have been a victim of a violation of Article 6 para. 1 (Art. 6-1) in the past, in that it did not have access to an independent and impartial tribunal for the determination of its civil rights; this situation prevailed throughout the domestic proceedings which started on 13 May 1982 and ended on 1 October 1986 when the Crown gave its decision.   The Commission notes that some time after that decision the Supreme Court rendered the two judgments invoked by the Government (Hoge Raad 12 December 1986, NJ 1987/272 and Hoge Raad 6 February 1987, NJ 1987/381).   The Commission also notes that under this new case-law the applicant company could institute new proceedings which would start before a civil court of first instance.           The Commission does not find that this recent development precludes the applicant company from claiming that it has been a victim in the past of the situation complained of.           It follows that the application cannot in this respect be declared inadmissible as being manifestly ill-founded.           The Commission further, having regard to the parties' submissions under Article 6 para. 1 (Art. 6-1) of the Convention, considers that the applicant company's complaint, that its case was not judged by an independent and impartial tribunal, raises a serious issue which must be examined on the merits.   The application cannot, therefore, be declared 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 this reason, the Commission, by a majority             DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.     Secretary to the Second Chamber      President of the Second Chamber                 (K. ROGGE)                          (S. TRECHSEL)