CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 juillet 1988

.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. 12049/86 by Gerarda Elka VAN DER LINDEN VOOREN against the Netherlands             The European Commission of Human Rights sitting in private on 14 July 1988, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      F. ERMACORA                      E. BUSUTTIL                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                   Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 21 November 1985 by Gerarda Elka VAN DER LINDEN VOOREN against the Netherlands and registered on 13 March 1986 under file No. 12049/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a Dutch citizen, born on 1 May 1964, living in Amsterdam.   In the proceedings before the Commission she is represented by her grandfather, Mr.   P. Brouwer, who lives in Halsteren, the Netherlands.           In 1977 the applicant inherited, together with her brother or sister, a business concern which owned and let the rooms of a large house in Amsterdam.   As of 1 February 1982, the applicant's guardian let the house on lease because it needed renovation.   Shortly before that date, the last tenants had left the house.           On 14 or 15 March 1982, by which date the renovation of the house had not yet been completed, the house was occupied by squatters. Both the leaseholder and the applicant's guardian reported this to the police and to the Public Prosecutor who refused to prosecute the squatters, apparently on the ground that the house was not, at the time of the squatting, in actual use.   This criterion was used in accordance with the Dutch Supreme Court's jurisprudence on Section 138 of the Dutch Penal Code, which qualifies breach of domicile as a criminal offence.   The Public Prosecutor told the leaseholder and the guardian by the end of March 1982 that their case was   civil and not criminal.   However, civil proceedings could not be instituted against the squatters, because their identity was not known.           Having found that it was not possible to evict the squatters without the help of the police, the guardian and the leaseholder then decided to use a special legal construction in order to circumvent the deadlock caused by the anonymity of the squatters:   the leaseholder instituted summary civil proceedings before the President of the Amsterdam Regional Court against the guardian, claiming that the latter had to put the house, in an empty state, at his disposal.   On 28 June 1982, the President granted the claims and authorised the leaseholder to have the premises vacated, if necessary with police assistance.           The President's judgment was not executed, however, apparently because neither the leaseholder nor the guardian had sufficient financial resources to pay the bailiff, who had asked for 10.000 guilders to vacate the house.   Also for financial reasons, no summary civil proceedings under Section 1401 of the Civil Code were instituted against the Head of the local Police, the Mayor of Amsterdam, in order to obtain police assistance in moving out the squatters.   The availability of this remedy in squatting cases, developed and accepted by Dutch courts since 1981, was endorsed by the Supreme Court (Hoge Raad) on 21 January 1983 (NJ 1983, 252).           It appears that around July 1982, the lease had been cancelled because the leaseholder had not paid the rent and had gone bankrupt.   The cancellation apparently constituted an additional hindrance to the execution of the judgment of 28 June 1982.           At some later date, a new guardian was appointed who asked the Mayor of Amsterdam, in his letters of 21 August 1984 and 8 January 1985, to co-operate in the removal of the squatters from the house. Similar letters to the Mayor were written by the present representative of the applicant, one of which is dated 6 August 1985. Apparently, the Mayor did not answer any of these letters.   Requests to have the names of the squatters forwarded by the police to the applicant's representative were not answered either.           On 19 January 1985, the applicant's representative asked the Public Prosecutor to prosecute the squatters under, inter alia, Section 138 of the Penal Code.   On 26 March 1985, the Public Prosecutor answered that there was no reason for prosecution since the case was of a civil character.   He referred to the judgment of the President of the Regional Court.           On 18 March 1985, the applicant's representative filed a complaint, under Section 12 of the Code of Penal Procedure, against this refusal to prosecute with the Amsterdam Court of Appeal.   At that time, he did not possess a written authority to act on behalf of the applicant.   On 2 September 1986, the Court of Appeal considered that this omission was covered by the fact that an authority had been given on 1 August 1985.   The Court held, contrary to the findings of the Public Prosecutor, that there exists serious suspicion that the squatters are guilty of breach of domicile.   However, the Court found that it was not expedient to order prosecution since the Public Prosecutor's refusal to prosecute dated from March 1982 and three years had elapsed before a complaint was filed with the Court.           At the end of 1985, the applicant's guardian sold the house to an estate agent, apparently for a low price because of the presence of the squatters.     COMPLAINTS           The applicant alleges a violation of Article 1 of Protocol No. 1. (P1-1) She complains that the Dutch authorities, by refusing to remove the squatters from her house, have not guaranteed to her the peaceful enjoyment of her possessions.     THE LAW           The applicant has complained that the Dutch authorities were unwilling to co-operate, through police assistance, in the removal of the squatters from her house.           It is true that Article 1 of Protocol No. 1 (P1-1) of the Convention secures to everyone the right to peaceful enjoyment of his possessions.           However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           In the present case the applicant failed to institute civil proceedings under Section 1401 of the Civil Code against the Mayor of Amsterdam claiming that he order the police to put an end to the occupation of the applicant's house.           It is true that the applicant claims that she had not sufficient financial means to start civil proceedings against the Mayor of Amsterdam.   However, she has failed to substantiate this claim.   Neither has she shown that she or her guardian has applied for free legal aid.   Moreover, an examination of the case as it has been submitted does not disclose the existence of any other special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at her disposal.           It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and her application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.           For these reasons the Commission,           DECLARES THE APPLICATION INADMISSIBLE.        Secretary to the Commission         President of the Commission                    (H.C. KRÜGER)                     (C.A. NØRGAARD)