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You are here: BAILII >> Databases >> European Court of Human Rights >> OERLEMANS v. THE NETHERLANDS - 12565/86 [1991] ECHR 52 (27 November 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/52.html
Cite as: 15 EHRR 561, (1993) 15 EHRR 561, [1991] ECHR 52
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In the Oerlemans case v. the Netherlands*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the
relevant provisions of the Rules of Court***, as a Chamber composed
of the following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr A. Spielmann,
Mr J. De Meyer,
Mr S.K. Martens,
Mr I. Foighel,
Mr J.M. Morenilla,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 22 May and 23 October 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 42/1990/233/299. 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.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
*** The amendments to the Rules of Court which came into force on
1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 7 July 1990,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 12565/86) against the Netherlands lodged
with the Commission under Article 25 (art. 25) by
Mr Johannes Oerlemans, a Dutch national, on 5 September 1986.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby the Netherlands recognised
the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision as
to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 6 para. 1
(art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr S.K. Martens, the elected judge of Dutch nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of
the Court (Rule 21 para. 3 (b)). On 27 August 1990, in the
presence of the Registrar, the President drew by lot the names of
the other seven members, namely Mr J. C. Dremona,
Mr Thór Vilhjálmsson, Mr L.-E. Pettiti, Mr R. Macdonald,
Mr A. Spielmann, Mr J. De Meyer and Mr J.M. Morenilla (Article 43
in fine of the Convention and Rule 21 para. 4) (art. 43).
Subsequently, Mr I. Foighel, substitute judge, replaced Mr Cremona,
who was unable to take part in the consideration of the case
(Rules 22 para. 1 and 24 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Dutch Government ("the Government"), the Delegate of the
Commission and the lawyer for the applicant on the need for a
written procedure (Rule 37 para. 1). In accordance with the order
made in consequence, the registry received the applicant's memorial
on 17 December 1990 and the Government's memorial on
21 December 1990. In a letter of 18 January 1991 the Secretary to
the Commission informed the Registrar that the Delegate did not
wish to submit one.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 11 April 1991
that the oral proceedings should open on 22 May 1991 (Rule 38).
6. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr K. de Vey Mestdagh, Agent,
Mr J.L. de Wijkerslooth de Weerdesteijn, Counsel,
Mr Th. G.M. Simons, Adviser;
(b) for the Commission
Mr F. Martinez, Delegate;
(c) for the applicant
Mr C.E.A.M. van de Mortel, advocaat, Counsel.
The Court heard addresses by Mr de Vey Mestdagh and
Mr de Wijkerslooth de Weerdesteijn for the Government, Mr Martinez
for the Commission and Mr van de Mortel for the applicant, as well
as the Government's and the applicant's replies to its questions.
In the course of the hearing both the Government and the applicant
filed various documents with the Court.
AS TO THE FACTS
I. The particular circumstances of the case
7. Mr Johannes Oerlemans lives at Hogerheide, in the commune
of Woensdrecht (Netherlands).
Since 1968 he has been involved in cattle farming on a farm of
approximately 110 hectares which his father had operated before
him. The farmland comprises a parcel registered as "Commune
Woensdrecht, section G, no. 1836" (circa 64.5 hectares), of which
Mr Oerlemans is a co-owner together with the Stichting Het Brabants
Landschap, a foundation set up for the purpose of nature
preservation. He has a one sixth interest in the land. The above
parcel was situated outside the dyke along the eastern end of the
Oosterschelde, an arm of the North Sea.
8. The eastern part of the Oosterschelde has been shut off
from the sea by a series of dykes whose purpose was to strengthen
the defences against the sea rather than to reclaim land.
Before the completion of these dykes the area comprising the
parcel G, no. 1836 consisted partly of a complex of open water,
strips of mudland and siltland submerged either by each high tide
or by spring tides (slikken en schorren), intersected by inlets,
and partly of low dunes backed by cliffs). The open-water area was
a mixture of salt and fresh water. Due to these conditions, only
limited use could be made of the parcel.
The dyke enclosing the land comprising the parcel - called
"Markiezaatskade" after the local delta region known as the
"Markiezaatsmeer" - was completed in August 1983. Thereafter, with
the disappearance of the tides and the predominance of fresh water,
the land gradually became drier with changes in the flora and fauna
of the area and an explosive growth of thistles.
At the present time the Markiezaatsmeer, an area composed of some
700 hectares land and 800 hectares water, is partly a "protected
natural site" in the sense of section 7 of the Nature Protection
Act 1967 ("the 1967 Act" - (Natuurbeschermingswet) and partly a
"national nature preserve" in the sense of section 21 of that Act
(see paragraphs 15-19 below). The Stichting Het Brabants Landschap
acts as a supervisor for the area.
A. The designation order
9. Before the Markiezaatskade was completed the Minister of
Culture, Recreation and Public Works designated the area which
includes the parcel as a "protected natural site" by an order of
20 September 1982 made pursuant to section 7 of the 1967 Act.
An explanatory note was appended to the order. Points 2 and 3 of
the note contained a comprehensive description of the particular
scientific and environmental importance of the area as it then was.
Point 4 described the developments to be expected from the
completion of the dykes, including the gradual cessation of tidal
effects, the transformation into a freshwater zone, the drying out
of the land and important changes in the existing biotope.
Point 6 of the note specified that "current long-established use of
land could continue as usual" but that "certain actions should,
however, be subject to authorisation"; among these were "the use of
methods intended or likely to alter or intensify the existing use
of land", "removing, destroying or degrading the soil (...),
filling in, levelling, clearing or ploughing the land" and "the use
of herbicides or substances to promote or inhibit growth".
B. The applicant's appeal to the Crown
10. On 30 October 1982 the applicant appealed against the
designation order to the Crown under section 19 of the 1967 Act
(see paragraph 18 below).
He pointed out that he used parts of the designated area including
parcel G, no. 1836 for pasturing cattle and alleged that the order
would turn those parts into wasteland. He submitted that this
would not be in the interests of nature conservation and would,
moreover, entail considerable economic losses. Further, the area's
protection as a natural site was already sufficiently secured by
the West Brabant regional development plan and the Woensdrecht
municipal land-use plan, both of which respected the rights of
farmers. He concluded that the reasons given for the order were
both insufficient and superfluous and that it should be annulled.
11. The appeal was heard before the Administrative Disputes
Division (Afdeling Geschillen van Bestuur) of the Council of State
(Raad van State) (see paragraphs 36 and 37 below) on
8 November 1985.
In accordance with the advisory opinion of that Division the
applicant's appeal was dismissed by Royal Decree of 14 March 1986,
no. 38 (Administrative Decisions (Administratiefrechtelijke
Beslissingen) 1986, 484).
The Crown first held that the area met the requirements of
section 1 (b) of the 1967 Act. It then examined and rejected the
objection that the requirement of section 7 of that Act was not
fulfilled in that the protection of the area was already secured in
another way. As to the applicant's fear that his user of parcel G,
no. 1836 for pasturing cattle would be unduly restricted, the Crown
held that at the hearing it had been established that the manner in
which he had exploited the parcel did not impair the essential
characteristics of the area so that the existing use could be
continued without an authorisation being required. The applicant's
fear that the site would turn into wasteland was considered
unfounded because it was possible to use the land so as to prevent
that. Finally the Crown held that the interests of protecting the
area as a "protected natural site" under the Nature Protection Act
outweighed the interests of the applicant.
C. The applicant's subsequent appeals arising out of
measures taken under the Nature Protection Act
12. In 1987 the applicant had some 15 hectares of parcel G,
no. 1836 levelled and some inlets filled in. When this was
discovered, the Minister of Agriculture and Fisheries on
2 July 1987 issued an order under section 29 of the 1967 Act to
cease work. The applicant appealed against this order to the
Litigation Division (Afdeling Rechtspraak) of the Council of State
(see paragraph 27 below) and requested an interim injunction from
the President of that Division. Following the dismissal of that
request on 18 August 1987, the Minister, by order of
23 February 1988, specified the steps to be taken by the applicant
to restore the land to its original state. The Minister stated
that, if these measures were not carried out by the applicant
before 1 September 1988, they would be done at his expense. The
applicant appealed against this order to the Litigation Division
alleging that he had taken the impugned measures in order to
destroy the thistles proliferating on parcel G, no. 1836, as he had
been ordered to do by the municipal authorities of the commune of
Woensdrecht. The Litigation Division joined the appeals and
dismissed them on 26 November 1990.
13. On 8 March 1988 the Minister of Agriculture and Fisheries
refused to grant the applicant authorisation to use mechanical
means for destroying thistles on part of the land.
The applicant appealed to the Crown against this decision. In
accordance with section 1 para. 1 of the Interim Act on Crown
Appeals (Tijdelijke wet Kroongeschillen), the appeal was referred
for decision to the Administrative Disputes Division of the Council
of State. The appeal was dismissed on 15 September 1989.
14. On 22 January 1988 the applicant claimed compensation under
section 18 of the 1967 Act. He claimed that he had suffered damage
because of the manner in which the natural site was managed. As a
result thistles had become so abundant that all other growth had
ceased and the use of parcel G, no. 1836 for pasture had become
impossible. He based his claim for Hfl. 200,000 on the allegation
that as from 1984 he had had the intention to use that parcel for
intensive pasture, increasing the number of cattle to two hundred.
The Minister dismissed the claim on 16 May 1989, pointing out,
inter alia, that the applicant could not reasonably have expected
that after the closure of the Markiezaatskade he would have been
able to use the parcel more intensively than before since he must
have known long before that the area would be designated as a
protected natural site.
On 10 July 1989 the applicant appealed against this decision to the
Crown. At the date of the hearing before the Court the appeal was
still pending before the Administrative Disputes Division of the
Council of State.
II. Relevant domestic law and practice
A. The Nature Protection Act of 15 November 1967
15. Section 1 (b) of the 1967 Act defines a natural site as
composed of grounds and waters which are of general interest as
regards their scenic beauty or scientific value.
Under section 7 of the Act the Minister of Culture, Recreation and
Public Works may, in agreement with the Minister for Planning and
Development (ruimtelijke ordening), designate as a protected
natural site (beschermd natuurmonument) a natural site which is not
protected in any other way. Designation takes place by means of a
reasoned decision which must specify the land registry parcels
affected by the designation.
16. Section 12 (1) of the Act states that it is forbidden to
carry out actions detrimental to the scenic beauty or scientific
interest of a protected natural site or which might disfigure the
site, without authorisation by the Minister or in breach of the
terms of such an authorisation. Section 12 (2) specifies that the
actions envisaged by section 12 (1) are those which affect the
essential characteristics of the protected natural site as set out
in the designation order.
17. Section 18 of the Act allows for the possibility of
obtaining compensation for damage suffered as a result of a
designation order, refusal of authorisation or the terms attached
to an authorisation.
18. Section 19 of the Act limits appeal to the Crown by
interested parties to: a designation order under section 7, a
repeal of such an order under section 11, decisions as to
authorisations made under section 13 and decisions as to
compensation for damage under section 18.
19. Under section 21 the Minister of Culture, Recreation and
Public Works may designate as a "national nature preserve"
(staatsnatuurmonument) a natural site which belongs to the State.
20. Sections 26 to 29 of the Act provide for various penalties
or coercive measures in respect of actions contrary to the
provisions of the Act.
B. General principles and practice as to remedies against
the administration under Netherlands law and the
consequences of the Benthem judgment
1. The competence of the civil courts in claims
against the administration
21. Under Netherlands law the civil courts have traditionally
had competence to grant relief against the administration if and in
so far as 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 (RO)).
Under subsection 1 of section 112 of the Constitution it is for the
judiciary to adjudicate on "disputes on civil rights and claims".
The "judiciary" responsible for the administration of justice in
civil cases is composed of the Supreme Court, the courts of appeal,
the district and cantonal courts.
Section 2 RO provides (as far as relevant):
"The judiciary is exclusively charged to take cognizance of and to
decide upon all disputes on property or rights derived from
property, on claims or civil rights ..."
22. The leading precedents as to the interpretation of section
2 are the Supreme Court's judgments of 31 December 1915 and
of 18 August 1944.
In its judgment of 31 December 1915 (Nederlandse Jurisprudentie
(NJ) 1916, p. 407) the Supreme Court held that:
"under section 2 RO, the exclusive competence of the judiciary
depends on the object of the dispute, that is the right for which
the plaintiff claims protection, and not on the nature of the right
on which the defendant's argument is based".
The case which was decided by the Supreme Court in its judgment of
18 August 1944 (NJ 1944/45, no. 598) concerned an action brought by
a commune against a province based on the latter's refusal to
deliver electricity to the commune. The commune alleged in the
first place that it was entitled to delivery under a
quasi-contractual obligation incumbent on the province and in the
second place that the refusal constituted a tort since it was
contrary to a public law obligation. The commune sought both a
declaratory judgment that the refusal was unlawful and a judicial
order to deliver.
As to the first ground the Supreme Court, reiterating its decision
of 1915, held inter alia that:
"for the question whether there is a claim within the
meaning of that section [section 2 RO] it is immaterial
whether the obligation is governed by public or by civil law
..."
On the second ground the Supreme Court noted that these claims were
based on section 1401 of the Civil Code and held:
"that the protection afforded by this section is not
confined only to the claim for damages to which it
explicitly refers, but also applies to preventive measures
where there exists a serious threat that injustice is on
the point of being done."
It concluded that as far as the latter ground was concerned the
"object of the dispute" was an obligation under section 1401 of the
Civil Code and that, accordingly, the case concerned a civil right
within the meaning of section 2 RO, it being irrelevant for the
competence of the civil courts whether or not the obligation to
deliver the electricity was of a public law nature.
23. The above case-law is understood to imply that where a
citizen bases his claims against the administration on the
allegation that the latter has committed a tort against him, the
civil courts are, in principle, competent to take cognizance of the
case.
24. Finally it should be noted that where the civil courts are
competent the President of the District Court has competence in
interlocutory proceedings (kort geding - see, for the role of these
proceedings in the Netherlands, the Keus judgment of
25 October 1990, Series A no. 185, p. 64, para. 17).
a. Judicial review by the civil courts of administrative
acts
25. Under section 120 of the Constitution, as construed in the
constant case-law of the Supreme Court, the judiciary is not
permitted to examine the lawfulness of Acts of Parliament. The
courts can, however, review the lawfulness of subordinate
legislation and of all other acts of the administration including
the lawfulness of decisions which have a general character (such as
regulations, plans or, directives).
A decision of the administration is unlawful (onrechtmatig)
and constitutes a tort within the meaning of section 1401 of the
Civil Code when it violates a right of the plaintiff or is contrary
to a rule of international or domestic law which seeks to protect
the plaintiff's interests, or to general principles of proper
administration which, inter alia, forbid abuse of power and
encompass the principles of proportionality and reasoned decisions
as well as requiring that all relevant considerations be taken into
account in reaching a decision.
b. Remedies under section 1401 of the Civil Code
26. Although section 1401 of the Civil Code states that a
victim of a tort is entitled to damages, his rights under this
section are wider. He may ask for a declaratory judgment and for
an injunction by which the defendant is either forbidden or ordered
to do something (see also paragraph 21 above). That means that a
citizen who claims that a decision of the administration
constitutes a tort may demand, if need be in interlocutory
proceedings, that the court or its President restrains the
administration, for example, from executing or having executed its
impugned decision (see Supreme Court judgment of 1 July 1983,
NJ 1984, no. 360). In this sense the courts, although they lack
competence to annul the decisions of administrative authorities,
may, as the Supreme Court explained in its judgment of 1 July 1983,
make such a decision "inoperative".
Although claims for damages against the administration are subject
to a limitation period of five years under a special Act of
31 October 1924, the period of limitation for other forms of relief
against the administration based on section 1401 of the Civil Code
is the normal thirty year period provided for in section 2004 of
that code.
2. Further forms of relief against the administration:
appeal to an administrative tribunal or to a higher
administrative authority ("administrative appeal")
27. Under Netherlands law there are two other forms of relief
against the administration.
a. Administrative Tribunals
28. In the first place, it may be possible to appeal to an
administrative tribunal with competence to make a decision in the
matter. This is, as a general rule, possible in areas such as
fiscal law, social security law, and the law concerning civil
servants: in these fields cases are dealt with by either special
administrative tribunals or special sections of the civil courts.
Since 1 July 1976, when the Act concerning administrative
jurisdiction as to decisions of the administration (Wet
administratieve rechtspraak overheidsbeschikkingen (AROB-Act))
entered into force, there is, moreover, a more general
administrative tribunal, the Litigation Division (Afdeling
Rechtspraak) of the Council of State (Raad van State), which is
competent only as regards administrative decisions. It is since
the AROB-Act that it has become possible to appeal to the
Litigation Division from those orders made under the Nature
Protection Act against which under section 19 there is no appeal to
the Crown (see paragraphs 12, 18 and 20 above).
b. Appeals to a higher administrative authority
29. In the second place, under Netherlands law as it stood
before the enactment of the Interim Act on Crown Appeals (see
paragraph 40 below) there was a special form of relief against the
administration, referred to as an "administrative appeal". Under
this procedure the aggrieved citizen was given the right to appeal
from the decision of an administrative authority to a higher
administrative authority which, if the appeal was allowed, had
competence to take the proper decision itself. The appeal to the
Crown under section 19 of the 1967 Act from the designation order
of the Minister (see paragraph 18 above) is an example of this type
of relief. A further example was the administrative appeal which
was at stake in the Supreme Court's judgments of 22 February 1957
(NJ 1957, no. 310) and 26 March 1976 (NJ 1976, no 375): the appeal
from a decision by the municipal executive to the municipal council
(see paragraph 30 in fine below).
3. The doctrine of the competence of civil courts where an
"administrative appeal" is possible
30. In its judgment of 9 March 1938 (NJ 1938, no. 1000), the
Supreme Court examined whether the lower court was correct in
holding that it should not examine the lawfulness of a municipal
development plan. The Supreme Court recalled that an appeal lies
to the Crown after such a plan has been approved first by the
municipal council and then by the provincial council. It added
that in such an appeal the Administrative Division of the Council
of State gives an advisory opinion and thus "an examination of the
case in adversary proceedings is secured".
The Court concluded:
"that the law, by making available the above-described
administrative procedure, offers such guarantees to all
those interested in the substance of the municipal development
plan, that it is to be assumed that a plan which
has been formally drawn up in accordance with the law is
final for everybody ..., so that an action before the civil courts,
based on the allegation that the plan is null and void because the
substance is contrary to the law, is excluded."
In its above-mentioned judgment of 22 February 1957 (NJ 1957,
no. 310) the Supreme Court took the opposite view with regard to
the administrative appeal then under examination:
"... because the appeal to the municipal council which is
possible under the law does not offer sufficient guarantees
for it to be regarded as a special procedure which excludes
the possibility of seeking relief before the civil courts
..."
The Supreme Court reiterated this opinion in its judgment of
26 March 1976 (NJ 1976, no. 375). There the court held that:
"if the applicant for a building licence is of the opinion
that the authorities by refusing his application have
violated section 48 of the Housing Act, he may under
section 1401 of the Civil Code claim damages for the harm he has
suffered. The court in assessing that claim must examine
the lawfulness of the decision refusing the application
because the procedure to seek relief from such a decision
does not offer sufficient guarantees for it to be
considered a special procedure which excludes examination on
the basis of section 1401 of the Civil Code."
31. The above-mentioned judgments form part of an extensive
case-law to the effect that where an administrative appeal offers
sufficient guarantees as to a fair procedure, the civil courts,
although remaining in principle competent, should refrain from
examining the lawfulness of the administrative decision against
which the appeal lies. Examination of the latter question is not,
however, excluded if the administrative appeal does not offer such
guarantees.
4. Consequences of Article 6 para. 1 (art. 6-1) of the Convention
on the doctrine of the competence of civil courts where an
"administrative appeal" is possible
32. In 1979, in a much noted article by G.J. Wiarda (Non sine
causa, Opstellen aangeboden aan Prof. Mr G.J. Scholten, pp. 459 et
seq.) it was submitted that the Crown did not meet the requirements
of Article 6 para. 1 (art. 6-1) of the Convention. The author
warned that there might be many cases of appeal to the Crown where
that provision applied and argued that the appeal to the Crown
procedure should be revised. The Court's judgment in the Benthem
case (the judgment of 23 October 1985, Series A no. 97) confirmed
the correctness of these views.
33. Prior to the Benthem judgment several authorities - among
whom a member of the Supreme Court - had already stated that, if
the above proposition was right, the consequence would be that
(1) 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, under the doctrine
described in paragraphs 30-31 above, 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 appeal to the Crown lies (see, inter alia: B.W.N. de
Waard, Tijdschrift voor Openbaar Bestuur, 1980, pp. 551 et seq.;
A.R. Bloembergen, Bouwrecht, 1981, p. 284; E.M.H. Hirsch Ballin,
Preadvies voor de Nederlandse Juristenvereniging, HNJV 1983, I.2.,
p. 48; J.A.E. van der Does & J.L. de Wijkerslooth, Onrechtmatige
Overheidsdaad (1985), p. 33).
After the Benthem judgment this view was generally accepted among
the many learned writers who examined the consequences of that
judgment for the Netherlands system of remedies against the
administration (see, inter alia, J.M. Polak, Nederlands
Juristenblad 1985, p. 1197; P.J.J. van Buren, ibid., p. 1301;
B.F. de Jong, Nederlands Juristenblad 1986, p. 813; "Kroonberoep en
Art. 6 ECRM" (1986), pp. 29, 63, 70 and 71; E.M.H. Hirsch Ballin,
in his note on the Benthem judgment, Administratiefrechtelijke
Beslissingen 1986, no. 1; De Haan and Drupsteen, Bestuursrecht in
de sociale rechtsstaat, II, p. 289). The only question which
divided the legal profession was whether or not it would be
necessary to appeal to the Crown before taking the case to a civil
court.
The above view concerning the competence of the civil courts was
also accepted by the Arnhem Court of Appeal in a judgment of
17 February 1986 in interlocutory proceedings (Kort Geding 1986,
no. 138).
34. The Supreme Court decided this issue for the first time in
its judgment of 12 December 1986 (NJ 1987, no. 381). The case
concerned a decision taken by the municipal authorities under the
Nuisance Act 1952 (Hinderwet) to close down the plaintiff's
business. Under that Act the plaintiff could have appealed to the
Crown ("administrative appeal") and in that context he could have
requested interim mesures from the President of the Administrative
Disputes Division of the Council of State. Instead, however, he
instituted interlocutory proceedings (kort geding) before the
President of a civil court. Both the President and the Court of
Appeal held that the plaintiff should have availed himself of the
appeal procedure to the Crown and refused to entertain the action.
In conformity with the advisory opinion of the acting Procureur
Generaal the Supreme Court dismissed the appeal.
The Court first recalled that:
"the fact that, under section 2 RO civil courts are competent to
take cognizance of an action based on section 1401 of the Civil
Code, does not prevent a refusal to entertain the action based on,
to put it briefly, the existence of another remedy which offers
sufficient guarantees."
The Court then held that there actually was such a procedure
because the plaintiff could have addressed himself to the President
of the Administrative Disputes Division of the Council of State;
accordingly, the President of the civil court was not the
appropriate judge in the matter.
As appears from the opinion of Mr Bloembergen, a Supreme Court
judge acting as Procureur Generaal, this was in conformity with the
doctrine referred to in paragraphs 30 and 31 above. He had,
however, also discussed the question whether that doctrine could
still be upheld after the Benthem judgment which he considered
ought to be taken into account. He concluded that "also after the
Benthem judgment in principle the citizen will have to appeal to
the Crown first; thereafter he can address himself to the civil
courts" (NJ 1987, no. 1375, para. 5.3).
The Supreme Court considered that the Benthem judgment was
immaterial because the case concerned interlocutory proceedings
which did not involve a "determination" of the plaintiff's civil
rights. It added:
"It is true, however, that it would be difficult to accept the
aforementioned exclusion of the President as kort geding judge if
it were open to an interested party in cases concerning a
determination of civil rights within the meaning of
Article 6 para. 1 (art. 6-1) of the Convention to take the case as
to the merits directly to the civil courts. The system in force at
the moment should, in order to avoid procedural complications,
however, be understood as enabling the interested party to bring
his case to the civil courts only after a decision on his appeal to
the Crown."
In his annotation to the judgment Professor Scheltema pointed out
that the conclusions drawn by the Supreme Court were to be expected
in the light of its case-law:
"the appeal to the Crown is no longer to be considered as
offering sufficient guarantees; consequently, until the
Interim Act on Crown Appeals has made the Administrative
Division of the Council of State a tribunal in most cases,
there is a role for the civil courts."
35. The above interpretation was endorsed by a judgment of the
Supreme Court of 6 February 1987 (NJ 1988, no. 926). In that case
the plaintiff (Aral) had asked for a new licence under the Nuisance
Act 1952 in view of plans to extend and modify a filling station.
In anticipation of the granting of this licence the company had in
1976 - with the full knowledge and approval of the head of the
municipal "Nuisance-Act- department" - reconstructed its
installations in the station. However, in 1979 the muncipal
authorities refused to grant the licence requested and at the same
time closed down all of the company's installations. Upon appeal
the Crown annulled the decisions of the municipal authorities and
issued the requested licence. Aral thereupon instituted a claim
for damages in a civil court. The Court of Appeal held that the
commune had committed a tort and ordered it to pay damages. The
Supreme Court dismissed the commune's appeal.
In its appeal the commune complained that the Court of Appeal had
considered itself bound by the decision of the Crown. The Supreme
Court recalled the doctrine referred to above (in paragraphs 30
and 31). It held that the appeal to the Crown was, as far as the
domestic law of the Netherlands was concerned, to be considered as
an administrative procedure which offered sufficient guarantees.
Consequently, in principle, the civil courts were bound by the
Crown's decision. However, the Supreme Court added:
"In view of the judgment of the European Court of Human
Rights of 23 October 1985, NJ 1986, 102 (the Benthem case)
an exception to that principle must, however, be made if
'the licencee or the person who exploits the installations'
pleads that the Crown cannot be deemed to be a 'tribunal'
which meets the requirements of Article 6 para. 1 (art. 6-1) of the
European Convention on Human Rights: in that case the
aforementioned principle is not to be applied and it is
the duty of the civil courts also to deal fully and
independently with the issue already decided by the Crown.
It has, however, not been established that Aral has made
such a plea based on the above-mentioned treaty provision
and the commune cannot make such a plea."
This ruling was further confirmed by the Supreme Court's judgment
of 28 April 1989 (NJ 1990, no. 213).
C. Provisions relating to procedure in appeals to the Crown
(Kroonberoep)
1. Before the entry into force of the Act of
18 June 1987
36. Under the Constitution the King or Queen is inviolable.
The Sovereign takes decisions on the responsibility of a Minister,
who must countersign them.
In ordinary language, the expression "the Crown" means the
Sovereign and Minister or Ministers exercising their
decision-making powers.
37. The Crown rules on administrative disputes brought before
it on appeal. It decides only after the Administrative Disputes
Division of the Raad van State has investigated the case and
prepared a draft decision (section 26 para. 1 of the Act on the
Raad van State).
The members of the Division, whose number is fixed by the Crown but
must be at least five including the President, are chosen by the
Crown from among the members of the Raad van State and on its
recommendation. The Administrative Disputes Division should not be
confused with the Litigation Division which itself examines cases
within its jurisdiction.
38. The President of the Division calls for the necessary
official reports and informs the Minister concerned accordingly
(section 32 (c) para. 1). The parties may submit such documentary
evidence as they consider necessary (section 34). A public hearing
gives them an opportunity to argue their cases if they so wish
(section 45). They have the right, as does the President of the
Division, to call witnesses and experts, put questions to them and
comment on any evidence given (section 41 para. 4, section 46
paras. 5 and 6 and section 48).
The Division deliberates in camera (section 51). It can carry out
an inspection of the premises (section 52), obtain additional
official reports, which the parties are able to comment on
(section 54), and hold further hearings (section 55).
It then draws up a draft Royal Decree which it submits to the Crown
together with its opinion (section 56). The relevant Minister has
six months to inform the Division of any objections he may have and
ask it to reconsider the case (section 57).
39. After receiving the Division's opinion or additional
opinion the Crown issues a Royal Decree within six months. This
time-limit may be extended by three months (section 58 para. 1).
Once it has expired the Crown must follow the Division's opinion
(section 58 (a)); prior thereto it may depart from the opinion, but
only if the Minister concerned has first consulted the Minister of
Justice or, if the latter is himself concerned, the Prime Minister
(section 57 and section 58 para. 2 (a) and (b)). In practice this
happens only very rarely.
The Crown's decision may be based on considerations of law or
expediency; subject to the jurisdiction of the civil court (see
paragraphs 32-35 above) no appeal may be brought against it.
The reasoned Decree is sent immediately to the parties and the
Division, and is then made available to the public for one month at
the Secretariat of the Raad van State (section 59 para. 2). If it
goes against the Division's opinion it is published in the Official
Journal (Staatsblad) together with the Minister's report, which
contains the Division's draft and the Minister's correspondence
with the Division and with the Minister of Justice or Prime
Minister (section 58 para. 3).
2. The Interim Act on Crown Appeals
40. The Interim Act on Crown Appeals was passed on 18 June 1987
in order to give effect to the Benthem judgment. The Act came into
force on 1 January 1988 and will expire five years after that date
(section 11). Following the expiry of the Act it is envisaged to
create within the Council of State an administrative division with
jurisdiction to decide any administrative appeal and to introduce
administrative chambers in regional courts.
Under section 1 para. 1 of the Act the Administrative Disputes
Division of the Council of State is to decide all disputes which
formerly were to be decided by the Crown. Section 1 para. 2,
however, provides, inter alia, that this amendment shall not apply
to "decisions of a general character".
The Administrative Disputes Division has held that a designation
order made under section 7 of the Nature Protection Act is not a
"decision of a general character" within the meaning of section 1
para. 2 of the 1987 Act. Consequently an appeal against a section
7 designation order is at present decided by the Administrative
Disputes Division (decision of 31 May 1988 in the case of the
"Limitische Heide" (unpublished); decision of 26 October 1988 in
the case of the "Tafelberg-en Blaricummerheide
(Administratiefrechtelijke Beslissingen 1989, no. 41; Milieu en
Recht 1989, p. 274); decision of 2 November 1988 in the case of the
"Busummer- en Westerheide" - unpublished). In its decision of
26 October 1988 the Minister's order was quashed; in the other two
cases the appeal was dismissed.
PROCEEDINGS BEFORE THE COMMISSION
41. Mr Oerlemans lodged his application with the Commission on
24 November 1986 (no. 12565/86). He alleged violations of
Article 6 para. 1 (art. 6-1) of the Convention and Article 1 of
Protocol No. 1 (P1-1).
42. On 10 July 1989 the Commission declared the applicant's
complaint under Article 6 para. 1 (art. 6-1) admissible and
rejected the remainder of the application.
In its report adopted on 3 April 1990 (Article 31 of the
Convention) (art. 31), the Commission expressed the opinion that
there had been a violation of Article 6 para. 1 (art. 6-1) (by
fifteen votes to two). The full text of the Commission's opinion
and the dissenting opinion contained in the report is reproduced as
an annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 219
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
43. At the hearing before the Court on 22 May 1991 the
Government submitted that "Article 6 para. 1 (art. 6-1) of the
Convention has not been violated in this case".
AS TO THE LAW
44. The applicant complained that he was unable under
Netherlands law to challenge the designation order affecting his
property before a court. He invoked Article 6 para. 1 (art. 6-1)
of the Convention according to which:
"1. In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public
hearing by an independent and impartial tribunal ... ."
The Commission upheld his complaint.
A. Applicability of Article 6 para. 1 (art. 6-1)
1. Existence of a dispute ("contestation") over a
right"
45. The Government submitted that Article 6 para. 1 (art. 6-1)
was not applicable in this case.
Referring to the case-law of the Court they did not accept that
there was a dispute of a genuine or serious nature because the
applicant was not hindered in using his property for grazing cattle
in the same manner as he did before the designation order was made.
Indeed the explanatory notes of the order explicitly stated that
long-standing use of agricultural land could continue normally. It
was only after the construction of the dykes that the useful value
of the land became potentially larger. Accordingly, it could not
be argued that the outcome of the dispute was decisive for the
applicant's rights, which it only affected remotely or tenuously.
In the Government's submission such a dispute would only arise,
inter alia, when an authorisation was refused or when compensation
was denied.
46. The Court is not persuaded by this reasoning. In the first
place, there existed a dispute concerning the lawfulness of the
designation order (see paragraphs 10 and 11 above). In the second
place, the legal consequences of the designation order were that
the applicant was no longer free to cultivate his land as he saw
fit and was required to seek an authorisation from the Minister for
various purposes, for example if he sought to alter or intensify
existing use or carry out certain farming activities such as
clearing or ploughing the land or using herbicides (see paragraph 9
above). The extent to which he was restricted in his use of the
land can be seen from the subsequent disputes that he had with the
Minister concerning work that he had carried out or proposed to
carry out (see paragraphs 12-14 above).
There thus existed a serious dispute in the present case concerning
the resultant restrictions on the applicant's use of his property
(see, as the most recent authorities in this area, the Skärby
judgment of 28 June 1990, Series A no. 180-B, p. 36, para. 27, and
the Fredin judgment of 18 February 1991, Series A no. 192,
p. 20, para. 63). It makes no difference to this conclusion that
the potential of the land was enhanced by the completion of the
dyke in 1983 (see paragraph 8 above)
2. The "civil" character of the right in issue
47. The Government also pleaded, in the alternative, that
there was no right of a "civil" character at issue.
48. However, in the light of the Court's case-law there can be
no doubt that the property right in question was "civil" in nature
within the meaning of Article 6 para. 1 (art. 6-1) (see, inter
alia, the above-mentioned Skärby and Fredin judgments, Series A
no. 180-B, p. 37, para. 29, and Series A no. 192, p. 20, para. 63).
49. In sum, Article 6 para. 1 (art. 6-1) applies to the present
case.
B. Compliance with Article 6 para. 1 (art. 6-1)
50. In the applicant's submission he was not able to challenge
the lawfulness of the designation order before a court, the appeal
procedure to the Crown not involving an independent and impartial
tribunal within the meaning of Article 6 para. 1 (art. 6-1). He
did not consider that an action before the civil courts was open to
him.
51. The Government, on the other hand, contended that following
the Court's Benthem judgment of 23 October 1985 (Series A no. 97)
the administrative appeal to the Crown could no longer be
considered to offer sufficient guarantees of a fair procedure as
required by Article 6 para. 1 (art. 6-1). Consequently, in the
light of existing principles of Netherlands law it would have been
open to the applicant, following the Royal Decree of 14 March 1986
in his case, to challenge the lawfulness of the designation order
before a civil court.
52. The Commission considered the existence of this remedy
before the civil courts to be debatable. In any event, the Supreme
Court decision of 12 December 1986 which acknowledged the remedy
for the first time was nine months after the Royal Decree in the
applicant's case (see paragraph 34 above).
53. The Court notes that under Netherlands law it is clearly
established, in extensive case-law which predates the present
dispute, that where an administrative appeal to a higher authority
is not considered to offer sufficient guarantees as to a fair
procedure it is possible to have recourse to the civil courts for
a full review of the lawfulness of the administrative decision
(see paragraphs 25-26 and 30-31 above). The fact that the dispute
is of a public law nature is irrelevant in this context
(see paragraph 22 above).
54. Following the Benthem judgment it was the view of many
authorities on Netherlands law that, as a direct consequence of the
above doctrine, the civil courts would thus be able to examine the
lawfulness of any administrative decision coming within the scope
of Article 6 (art. 6) against which an appeal lay to the Crown
(see paragraph 33 above). Indeed this opinion had already been
expressed by several commentators in writings which preceded the
Benthem judgment (ibid.). The only difference of opinion concerned
the question of whether it was necessary to appeal first to the
Crown before going to the civil court (ibid.).
55. The Supreme Court upheld this view concerning the
competence of the civil courts in a decision of 12 December 1986
and confirmed the principle in several subsequent judgments
(see paragraphs 34-35 above).
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 (see paragraphs 25-26 above).
57. The Court concludes that, under well-established principles
of Netherlands law which existed at the time of the Royal Decree in
the present case (14 March 1986), the applicant could have
submitted his dispute to the civil courts for examination.
C. Conclusion
58. Accordingly, there has been no violation of
Article 6 para. 1 (art. 6-1).
FOR THESE REASONS, THE COURT
Holds unanimously that there has been no violation of
Article 6 para. 1 (art. 6-1) of the Convention.
Done in English and French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 27 November 1991.
Rolv RYSSDAL
President
Marc-André EISSEN
Registrar