CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 octobre 1997

.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. 25989/94                       by Adrianus A. VAN VLIMMEREN and                          Petrus VAN ILVERENBEEK                       against the Netherlands        The European Commission of Human Rights (Second Chamber) sitting in private on 22 October 1997, the following members being present:              Mrs    G.H. THUNE, President            MM     J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, Secretary to the 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 15 August 1994 by Adrianus A. VAN VLIMMEREN and Petrus VAN ILVERENBEEK against the Netherlands and registered on 19 December 1994 under file No. 25989/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      15 July 1996 and the observations in reply submitted by the      applicants on 28 October 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicants are Dutch citizens, born in 1951 and 1946 respectively, residing in Oudenbosch, the Netherlands. Before the Commission they are represented by Mr. G.R.A.G. Goorts, a lawyer practising in Roermond, the Netherlands.        The facts of the case, as submitted by the parties, may be summarised as follows.   A.    The particular circumstances of the case        Both applicants cultivate land in an area where the land consolidation project (ruilverkaveling) "Oud Gastel-Oudenbosch" is in progress. The area measures about 6,800 hectares and the land consolidation project concerns approximately 2,500 people. On behalf of the Land Development Commission (Landinrichtingscommissie) water control works were carried out in 1988. These works included the widening and digging of watercourses, the construction of a culvert and the changing of the direction of the current. From 1991 plots of land under cultivation by the applicants were regularly flooded and the yield of the plots subsequently diminished.        The applicants allege that the flooding occurred as a result of a change in the drainage situation which, in its turn, had been caused by the water control works carried out in 1988.        On 12 August 1991 the applicants informed the Land Development Commission that they held that Commission liable for the damage which they had suffered and would still suffer in the future. The Land Development Commission disclaimed all responsibility by letter of 21 August 1991; it submitted that the flooding had occurred as a result of the management and maintenance of the water levels as carried out by and under the responsibility of the District Water Board (Waterschap).        By letter of 20 February 1992 the applicants requested the Land Development Commission to compensate them for a specified damage they had suffered. In support of their claims they submitted a letter from the District Water Board of 6 August 1991 in which this body stated that the change in the drainage situation had occurred as a result of the works carried out in the course of the land consolidation. In addition, the applicants requested the Land Development Commission to take steps in order to avoid further flooding.        It appears that the Land Development Commission again rejected any responsibility for the damage suffered.        The applicants subsequently requested the Regional Court (Arrondissementsrechtbank) of Breda to order a preliminary expert investigation (voorlopig deskundigenonderzoek), and this request was granted by decision of 4 December 1992. The appointed expert submitted his findings in April 1993.        Referring to the expert's report, the applicants again submitted their claims for damages to the Land Development Commission on 21 May 1993. By letter of 17 June 1993, the Land Development Commission informed the applicants that it did not agree with the findings in the report, which in their opinion contained inaccuracies, nor with the conclusions drawn from the report by the applicants.        The applicants subsequently instigated proceedings pursuant to Section 129 para. 2 of the Land Development Act (Landinrichtingswet) with the Breda Regional Court. They requested the Court to order the Land Development Commission to execute the works as advised by the expert in his report to prevent further flooding and to compensate the applicants for the damage they had suffered.        Following a hearing on 5 November 1993, the civil chamber of the Regional Court, departing from earlier case-law, declared the applicants' claims inadmissible on 10 May 1994. It held that it was true that Section 129 para. 2 of the Land Development Act provided for the compensation of damage caused by preparatory works which affected the infrastructure. However, in proceedings pursuant to this provision only disputes in respect of the amount of damages might be examined. According to the Regional Court, the system of the Land Development Act left no room for the examination in these proceedings of the question whether or not any damage had occurred as a result of the preparatory works.        The Regional Court further considered that the damage alleged by the applicant fell within the ambit of Section 212 para. 1 (b) sub- para. 4 of the Land Development Act, which concerns the compensation for damage under the terms of the list of financial settlements (lijst der geldelijke regelingen). As the Regional Court anticipated that the applicants would raise the issue of compensation again once the list of financial settlements had been deposited for inspection (ter inzage legging), it submitted as its provisional view that it might be desirable for the applicants to instigate a preliminary hearing of witnesses (voorlopig getuigenverhoor) in view of the fact that the opinions of the expert and the Land Development Commission as to the reasons for the flooding varied widely.        The applicants' subsequent request for a preliminary hearing of witnesses was granted by the Regional Court on 14 June 1994. On 28 June 1994, ten witnesses were heard.        The applicants had been informed that the list of financial settlements would be deposited for inspection at the beginning of 1996. In their application to the Commission they submitted that they did not expect to be able to put their claims for damages to the Regional Court of Breda before the beginning of 1997. It appears from developments which have taken place following the introduction of the application that the list of financial settlements, the drawing up of which had started on 11 June 1993, was deposited for inspection between 9 October 1995 and 8 November 1995.        On 20 November 1995 the applicants filed objections against the list of financial settlements with the Land Development Commission. They claimed compensation for damage as a result of flooding in 1991, 1992, 1993 and 1994, reimbursement of legal costs, of the costs incurred in the preliminary expert investigation and of the costs incurred in the determination of their damages, as well as legal interest. In support of the claim of the first applicant, it was further submitted that he had only narrowly escaped bankruptcy. For this reason the applicants, by letter of 29 November 1995, requested the Land Development Commission to give their objections priority and, if no agreement could be reached, to transfer the objections to the Investigating Judge (Rechter-Commissaris) expeditiously.        On 5 June 1996 the Land Development Commission summoned the applicants to a hearing of their objections. This hearing not resulting in the objections being resolved, the case was referred to the Investigating Judge before whom a hearing took place on 23 October 1996 which also did not result in resolution of the objections. Although the objections filed by other persons had not yet been dealt with by the Investigating Judge, the applicants' objections were referred to the Regional Court of Breda. Following a hearing on 3 December 1996 the Regional Court issued interlocutory judgments on 28 January 1997 in the case of the first applicant and on 14 January 1997 in the case of the second. It decided that further information was required and adjourned the proceedings which are currently still pending.        As a result of the placement of a pump by the Land Development Commission in the course of 1994, no further flooding has occurred. The applicants submit that this pump was installed after they had threatened to instigate summary proceedings.   B.    Relevant domestic law and practice        The present Land Development Act (Landinrichtingswet), which provides for land consolidation to be carried out in the interest of the development of rural areas, entered into force in 1985, replacing the 1954 Land Consolidation Act (Ruilverkavelingswet).        Pursuant to Section 7 of the Land Development Act, the general administration of land consolidation is carried out by the Central Land Development Commission (Centrale Landinrichtingscommissie), consisting of a maximum of twenty members and appointed by Royal Decree (Koninklijk Besluit).        Land consolidation projects are carried out by local Land Development Commissions, appointed by the provincial executive (Gedeputeerde Staten) and consisting of a maximum of seven members.        According to Section 129 para. 2 of the Land Development Act, damage resulting from preparatory land consolidation works shall be compensated. Disputes regarding the amount of damages are brought before the Regional Court for determination. Section 212 para. 1 (b) sub-para. 4 provides for the compensation of damage, which is not covered by Section 129 para. 2, to be included in the list of financial settlements.        In the present case, the decision of the Regional Court of Breda of 10 May 1994 constituted a departure from case-law to date. Until then the courts had always dealt with requests for application of Section 129 para. 2 of the Act even when they involved issues of liability.        The list of financial settlements is drawn up by the local Land Development Commission pursuant to Section 211 of the Land Development Act and is subject to approval by the Central Land Development Commission (Section 213 para. 1).        The list is deposited for inspection at a locality chosen by the Land Development Commission for a period of one month. There is no possibility in law of splitting up the list: it must be submitted as a whole. Interested parties may lodge objections with the Land Development Commission against the list of financial settlements, within fourteen days from the last day on which the list was open to inspection (Section 214). In case no objections are received, the list is final (Section 215).        Alternatively, the Land Development Commission examines the objections and tries to achieve a settlement (Section 174 para. 1). If these attempts fail, the Land Development Commission transmits the objections and the procès-verbal it has drawn up of the objection proceedings to the Investigating Judge (Section 174).        The Investigating Judge will also attempt to reach a settlement (Section 176 para. 1). To this effect he determines the date of a hearing as soon as possible and calls up the interested persons (Section 175 paras. 1 and 2). The hearing is also attended by a representative of the Central Land Development Commission and one or more representatives of the local Land Development Commission, as well as the latter's surveyor.        If agreement is reached, the list of settlements becomes final. Otherwise the case is referred to the Regional Court by the Investigating Judge (Section 178 para. 2).        The Regional Court gives matters concerning the list of financial settlements priority over all other cases, except those concerning expropriation (Section 179). The Court hears the persons concerned as well as the representative of the Central Land Development Commission and the surveyor (Section 185 para. 2). The Court decides within thirty days after the date of the hearing (Section 185 para. 3). No appeal lies from this decision (Section 186). The list of financial settlements does not become final until all disputes concerning the list have been determined by the Regional Court (Section 217).        In a decision of 10 February 1984 (Nederlandse Jurisprudentie 1985, 102), the Supreme Court (Hoge Raad), considering that the 1954 Land Consolidation Act   - in which the present Land Development Commissions were called Local Committees - regulated the way in which damage resulting from land consolidation works was to be settled, held that the costs of such works under this Act were partly to be borne by the State, partly by the owners of the land concerned. The costs to be borne by the owners were specified on a list of financial settlements. The Supreme Court found that in this system of financial settlements no legal personality had been bestowed upon the Local Committees nor upon the joint owners. According to the Supreme Court, another way of obtaining damages from the owners, i.e. by instituting civil proceedings for tort, would be incompatible with this system.        However, in a judgment of 2 September 1994 (Rechtspraak van de Week 21 September 1994, Nederlandse Jurisprudentie 1995, 660) the Supreme Court decided that the Local Committee was an organ of the State, and that the State could be held liable for the consequences of a tort committed by the Local Committee. It considered that the system laid down in the 1954 Land Consolidation Act for compensation of damage did not imply that the consequences of an act of tort committed by the State should be borne by the owners of the parcels of land involved in the land consolidation. The Supreme Court further held that the liability imposed on the owners to pay compensation through the procedure of the list of financial settlements was not based on acts of tort having been committed, but on damage caused by works carried out in the interest of the land consolidation.        Prior to this judgment, the opinion that the Local Committee was indeed an organ of the State and that it must thus be possible to hold the State liable, as a legal person, for any damage arising out of land development had been expressed in literature on Dutch law.        The 1985 Land Development Act contains no changes as regards the settlement of damages from the 1954 Land Consolidation Act.     COMPLAINTS        The applicants complain under Article 6 para. 1 of the Convention that they have been unable to have their civil rights determined by an independent and impartial tribunal within a reasonable time. As a result of the decision of the Breda Regional Court of 10 May 1994, they were forced to await the deposit of the list of financial settlements in October 1995 before being able to submit a claim for compensation for damage which had first occurred in 1991. The Regional Court of Breda, being the first tribunal within the meaning of Article 6 to examine their claims, did not hear their case until December 1996 and has not yet reached a final decision.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 15 August 1994 and registered on 19 December 1994.        On 15 May 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 15 July 1996. The applicants replied on 28 October 1996, after an extension of the time-limit fixed for that purpose.     THE LAW        The applicants complain that they have been unable to have their civil rights determined by a tribunal within a reasonable time. They invoke Article 6 para. 1 (Art. 6-1) of the Convention which provides, insofar as relevant:        "1.    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 established by      law."        The Government submit that the applicants have failed to exhaust domestic remedies. They refer to the Supreme Court's judgment of 2 September 1994, published shortly after that date, from which it appears that it is possible to start civil proceedings for tort where damage has been caused by works related to land consolidation projects. The Government also point to the development of legal thinking as expressed in relevant literature prior to the lodging of the present application.        Furthermore, the Government argue that the Regional Court of Breda was expected to give judgment at the end of 1996 or the beginning of 1997 on the claims submitted by the applicants to the Land Development Commission. The Government explain that in doing so, the Regional Court would consider the claims in their entirety, i.e. including statutory interest, costs of investigations, court fees, etc., which means that issues such as the expiry of time limits, including any undesirably long periods of time, could be taken into account. In the Government's opinion, it is also for this reason that domestic remedies have not yet been exhausted.        The applicants reply in the first place that the Supreme Court's judgment invoked by the Government was not given until after their present complaint had been introduced with the Commission. In any event, the applicants' claims for compensation were not, or not entirely, based on the premise that a tort had been committed by the Land Development Commission, but merely on the fact that they had suffered damage as a result of works carried out in the course of the land consolidation project. Moreover, they submit that the Supreme Court's judgment confirms that where damage, as in the present case, has been caused by works carried out in the interest of the land consolidation, compensation should be obtained by means of the list of financial settlements.        The Commission observes that it is thus in dispute between the parties whether or not the applicants should have instituted civil proceedings and whether or not such proceedings might have constituted an effective remedy.        The Commission notes that the proceedings instigated before the Breda Regional Court by the applicants pursuant to Section 129 para. 2 of the Land Development Act had previously been capable of providing relief in cases where damage had occurred as a result of preparatory land consolidation works. However, in the case of the applicants the Regional Court departed from this case-law in its decision of 10 May 1994 in which it held explicitly that the question put before it fell to be decided within the procedure of the list of financial settlements.        The Commission recalls that it has previously held that an applicant is excused from pursuing a domestic remedy if he shows that on the basis of case-law it would be of no avail (cf. No. 18598/91, Dec. 18.5.94, D.R. 78, p. 72). At the time of the decision of the civil chamber of the Regional Court of Breda (10 May 1994) and also at the time of introduction of the present application (15 August 1994), the case-law of the Supreme Court held that civil proceedings for tort were incompatible with the system of financial settlements laid down in the predecessor of the Land Development Act. It thus appears that when the applicants introduced their application with the Commission they were, quite understandably, of the opinion that they had complied with the requirement of exhaustion of domestic remedies. In these circumstances the Commission considers it inappropriate to hold against the applicants the fact that a potential remedy, brought about by the Supreme Court changing its case-law after the applicants had introduced their application, came to light.   Moreover, the Commission notes the applicants' submissions to the effect that it in fact appears from the Supreme Court's judgment invoked by the Government that no civil proceedings for tort can be brought for their claims. The Commission considers that in these circumstances it cannot be said that the Government have succeeded in proving the existence of available and sufficient domestic remedies (cf. Eur. Court HR, De Jong, Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 18, para. 36).        The Commission notes that the Government further argue that proceedings are still in progress which may answer the complaints put before the Commission and that accordingly also for this reason domestic remedies have not yet been exhausted. In this respect the Commission recalls the Convention organs' case-law according to which the decisive question in assessing the effectiveness of a remedy concerning a complaint about the length of proceedings is whether it provides a direct and speedy protection of the rights guaranteed in Article 6 (Art. 6) of the Convention (cf. Eur. Court HR, Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 16, para. 29). In view of the fact that it is exactly the alleged unreasonable length of time before their claims could be examined by a court which is at the heart of the applicants' complaint, the Commission considers that this argument goes to the merits of the application.        Accordingly, the application cannot be declared inadmissible for non-exhaustion of domestic remedies.        As to the merits, the Government submit that the period to be taken into account under Article 6 para. 1 (Art. 6-1) commenced on 12 August 1991 when the applicants formally held the Land Development Commission liable for the damage concerned. It was expected that the Court of Appeal would give judgment on the applicants' claims for damages by the end of 1996 or the beginning of 1997. In light of the care with which compensation claims must be dealt with under the provisions of the Land Development Act and the complexity of drawing up a list of financial settlements concerning a large area and many people with entitlements, the reasonable time requirement contained in Article 6 para. 1 (Art. 6-1) has, in the Government's opinion, not been exceeded.        The applicants do not dispute that the drawing up of a list of financial settlements is a time-consuming matter. However, they argue that this does not justify the situation where it becomes impossible to put claims for damages to an independent tribunal within a reasonable time. The applicants stress that it must have been as a result of their requests to deal with their claims expeditiously or the pressure exerted by them that the Regional Court decided to examine their objections on 3 December 1996, i.e. at a time when the objections lodged by other persons had not even been dealt with by the Investigating Judge. Nevertheless, according to the applicants, the period between 12 August 1991 and December 1996 still exceeds a reasonable time. Moreover, even though it was clear from the outset that no agreement would be reached in the proceedings before the Land Development Commission and the Investigating Judge, their objections had to be examined by them pursuant to the legal provisions in force.        The Commission, after a preliminary investigation of the present complaint in the light of the parties' submissions, considers that it raises questions of fact and law which require an examination of the merits. This complaint cannot, therefore, be declared inadmissible as being 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 these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.        M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber