CEDH · CASELAW;REPORTS;ENG — 7 juillet 1992

.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 }      EUROPEAN COMMISSION OF HUMAN RIGHTS   SECOND CHAMBER                          Application No. 12856/87                              E. van WIJK B.V.                                   against                               the NETHERLANDS                          REPORT OF THE COMMISSION                          (adopted on 7 July 1992)                              TABLE OF CONTENTS                                                                 Page   I.       INTRODUCTION         (paras. 1-18) .........................................    1           A.       The application                 (paras. 2-5) ..................................    1           B.       The proceedings                 (paras. 6-13) .................................    1           C.       The present Report                 (paras. 14-18) ................................    2   II.      ESTABLISHMENT OF THE FACTS         (paras. 19-26) ........................................    3   III.     OPINION OF THE COMMISSION         (paras.   27-43) .......................................    5           A.       Complaint declared admissible (para. 27) .....     5           B.       Point at issue (para. 28) .....................    5           C.       Applicability of Article 6 para. 1                 of the Convention (paras. 29-33) ..............    5           D.       Compliance with Article 6 para. 1                 (paras. 34-42) .................................   5           E.       Conclusion (para. 43) ..........................   7   APPENDIX I       :   HISTORY OF THE PROCEEDINGS ..................   8   APPENDIX II      :   DECISION ON THE ADMISSIBILITY ...............   10                             I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant, E. van Wijk B.V., is a Dutch private company with limited liability having its seat at Genderen, the Netherlands.   3.     In the proceedings before the Commission, the applicant company was represented by Mr. W.J. Wortelboer, succeeded by Mr. L. de Jong and Mr. R.B.H.M. Casander, who are lawyers practising in Amsterdam.   4.     The application is directed against the Netherlands.   The Netherlands Government were represented by their Agent, Mrs. D.S. van Heukelom, succeeded by Mr. K. de Vey Mestdagh, both of the Netherlands Ministry of Foreign Affairs.   5.     The applicant company complains that it did not have access to an independent and impartial tribunal for the determination of its civil rights since the Crown, which dealt with its case, does not meet these requirements.   B.     The proceedings   6.     The application was introduced on 31 March 1987 and registered on 15 April 1987.   7.     On 2 May 1989 the Commission decided to give notice of the application to the respondent Government, and to invite them to present, before 8 September 1989, their written observations on the admissibility and merits of the application.   8.     After an extension of the time-limit, the observations of the Government were submitted on 13 September 1989.   9.     The applicant company was invited to submit observations in reply before 3 November 1989.   Following an extension of the time-limit, it submitted its observations in reply on 24 November 1989.   10.    On 2 September 1991 the Commission referred the application to a Chamber.   11.    On 10 September 1991 the Commission (Second Chamber) declared the application admissible.   The parties were invited, should they so desire, to submit further evidence and observations on the merits of the application.   12.    After an extension of the time-limit, the Government submitted their further observations on 18 December 1991, followed by the applicant's on 23 December 1991.   13.    In their observations of 18 December 1991 the Governement, referring to the Oerlemans judgment (Eur. Court H.R., Oerlemans judgment of 27 November 1991, Series A no. 219), maintained the view that the domestic remedies were not exhausted. However, the Commission found no basis for declaring the application inadmissible under Article 29 of the Convention.   14.    After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis upon which a friendly settlement can be effected.   C.     The present Report   14.    The present Report was drawn up by the Commission (Second Chamber) in pursuance of Article 31 para. 1 of the Convention and after deliberations and votes, the following members being present:                 MM. S. TRECHSEL, President of the Second Chamber                   G. JÖRUNDSSON                   A. WEITZEL                   J.C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs. G. H. THUNE              MM.   F. MARTINEZ RUIZ                   L. LOUCAIDES                   J.-C. GEUS   15.    The text of this Report was adopted by the Commission on 7 July 1992 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   16.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)    to establish the facts, and         2)    to state an opinion as to whether the facts            found disclose a breach by the State concerned            of its obligations under the Convention.   17.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I, and the Commission's decision on the admissibility of the application as Appendix II.   18.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   19.    On 13 May 1982, the applicant company applied to the Municipal Authorities for a licence 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.   20.    By letter of 5 August 1982 the Waterworks Company "Noord-West- Brabant" raised objections (bezwaar) against the application and the draft decision of the Municipal Authorities.   21.    On 17 February 1983 the Municipal Authorities granted the licence subject to certain conditions.   22.    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.   23.     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 licence under the Nuisance Act, but amended several of the attached conditions. It provided that the oil should be stored above ground and that part of the company's site should be provided with a non-porous soil covering in order to protect the water-supply.   B.     Relevant domestic law and practice   24.    Pursuant to the Benthem judgment (Eur. Court H.R., judgment of 23 October 1985, Series A no. 97), in which the Court 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 before 1 January 1988, the Supreme Court (Hoge Raad) has decided that, pursuant to a well-established rule under Dutch law, 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 an independent examination of the case, including the contentious issue already decided by the Crown (Hoge Raad 12 December 1986, NJ 1987/381). This case-law has been confirmed by subsequent judgments (e.g. Hoge Raad 6 February 1987, NJ 1988/926).   25.    The above-mentioned rule is derived from the traditional competence of the Dutch civil courts to grant relief against the administration where no other relief is available.   This competence is based on the Constitution and on the Act on the Organisation of the Judiciary of 1827 (Wet op de Rechterlijke Organisatie).   26.    An extensive case-law was developed by the Supreme Court over the last decades, supported by several authorities, to the effect that where an administrative appeal would not offer sufficient guarantees of a fair procedure, the civil courts are competent to examine the lawfulness of the administrative decision against which the appeal lies.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   27.    The Commission has declared admissible the applicant company's complaint that its case was not judged by an independent and impartial tribunal.   B.     Point at issue   28.    Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.     Applicability of Article 6 para. 1 (Art. 6-1) of the Convention   29.    The first issue to be decided is whether Article 6 para. 1 (Art. 6-1) of the Convention applies to the proceedings at issue.   30.    Article 6 para. 1 (Art. 6-1) of the Convention states, 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 ..."   31.    The parties agree that Article 6 para. 1 (Art. 6-1) applies to the proceedings at issue.   32.    The Commission recalls the findings of the Court in the Benthem case (Eur. Court H.R., Benthem judgment of 23 October 1985, Series A no. 97, para. 36) that Article 6 para. 1 (Art. 6-1) of the Convention applies to proceedings concerning applications for a licence under the Nuisance Act.   33.    Article 6 para. 1 (Art. 6-1) is therefore applicable to the proceedings in the present case.   D.     Compliance with Article 6 para. 1 (Art. 6-1)   34.    The Commission must therefore examine whether the applicant company had access to an independent and impartial tribunal for the determination of its civil rights.   35.    The applicant company submits that it did not have access to a court for the determination of its civil rights, the appeal procedure before the Crown not involving an independent and impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1).   It did not bring an action before the civil courts after the Crown's decision, since the entire duration of the proceedings would not be "within a reasonable time" and the high costs attached to these proceedings, which are never fully covered by legal aid, deprived them of their effectiveness.   In addition, when the Crown proceedings were instituted in the present case, the possibility of starting civil proceedings did not yet exist, or at least it could not yet be considered as a clearly defined appeal procedure at that time.   Moreover, one single decision of the Supreme Court does not amount to well-established case-law.   The Supreme Court's first decision in this sense was only published on 9 May 1987.   36.    The Government submit that according to the Benthem judgment the administrative appeal to the Crown could no longer be considered to offer sufficient guarantees of a fair procedure.   However, in the Oerlemans judgment (Eur. Court H.R., Oerlemans judgment of 27 November 1991, Series A no. 219, para. 56) the Court has accepted that under Dutch law a civil court can carry out a full examination of any administrative decision coming within the scope of Article 6 (Art. 6) against which an appeal to the Crown lies, but which is considered not to satisfy the requirements of Article 6 (Art. 6). Therefore the applicant company could and still can submit its dispute to the civil courts for examination. As the applicant company did not seize the civil courts, its complaint about the total length of the proceedings is one in abstracto and should therefore be rejected.   In any event, it could have applied for legal aid under the Dutch legal aid scheme. Moreover, the applicant company could have submitted these complaints for examination to the civil courts.   37.    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 during the first part of the national proceedings starting on 13 May 1982 and ending on 23 October 1985 when the European Court of Human Rights rendered its judgment in the Benthem case.   Then it became clear that the Crown could not be considered as a lawful court. This meant that after the Crown's decision further proceedings before the civil courts became possible, as held by the Supreme Court in two judgments invoked by the Government (Hoge Raad 12 December 1986, NJ 1987/381 and Hoge Raad 6 February 1987, NJ 1987/926).   38.    The Commission notes that under the Supreme Court's new case-law the applicant company could institute new proceedings which would start before a civil court of first instance.   39.    The Commission notes that, prior to the Benthem judgment, several legal writers in the Netherlands had already argued that the Crown proceedings did not meet the requirements of Article 6 (Art. 6) of the Convention. If this proposition was right, the consequence would be (1) that the appeal to the Crown could no longer be said to be an administrative appeal which "offers sufficient guarantees" as to a fair procedure and (2) that accordingly the civil courts would be free to examine the lawfulness of any decision of the administration coming within the province of Article 6 (Art. 6) of the Convention against which an appeal to the Crown lies.   After the Benthem judgment this view was generally accepted and was confirmed by the decision of the Supreme Court of 12 December 1986 in which it held that the civil courts are able to examine the lawfulness of any administrative decision coming within the scope of Article 6 (Art. 6) against which an appeal lies to the Crown.   40.    The European Court of Human Rights has accepted this rule in its Oerlemans judgment (ibid., para. 56):         "Under Netherlands law a civil court can carry out a full       examination of all acts of the administration in the light, inter       alia, of principles of administrative law, can award damages for       torts committed and can grant injunctions against the       administration (...)".   41.    The applicant company could therefore have seized the civil courts after the Royal Decree of 1 October 1986.   42.    It follows that the applicant company did have access to an independent and impartial tribunal for the determination of its civil rights.   E.     Conclusion   43.    The Commission concludes by 9 votes to 1 that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the Second Chamber        President of the Second Chamber         (K. ROGGE)                               (S. TRECHSEL)                                 APPENDIX I                           HISTORY OF PROCEEDINGS   Date                                     Item _______________________________________________________________________   31 March 1987                            Introduction of application   15 April 1987                            Registration of application   Examination of admissibility   2 May 1989                               Commission's decision to                                         invite the Government to                                         submit their observations on                                         the admissibility and merits                                         of the application   4 September 1989                         Time-limit extended until                                         18 September 1989 at                                         Government's request   13 September 1989                        Government's observations   31 October 1989                          Time-limit extended until                                         24 November 1989 at                                         applicant's request   24 November 1991                         Applicant's observations in                                         reply   2 September 1991                         Commission's decision to                                         refer the application to the                                         Second Chamber   10 September 1991                        Commission's decision to                                         declare the complaint under                                         Article 6 para. 1 admissible   3 October 1991                           Parties invited, should                                         they so desire, to submit                                         further observations on the                                         merits of the application   Examination of the merits   6 November 1991                          Time-limit extended until                                         31 December 1991 at                                         Government's request   18 December 1991                         Further observations by the                                         respondent Government   23 December 1991                         Further observations by the                                         applicant on the merits of                                         the application   12 March 1992                            Applicant's request for                                         leave to comment on                                         Government's further                                         observations   2 April 1992                             Request granted   23 April 1992                            Applicant requests extension                                         time-limit until 28 May 1992   28 April 1992                            Extension until 16 May 1992   7 July 1992                              Commission's deliberations                                         on the merits, final vote                                         and adoption of the Report