CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 juillet 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                         AS TO THE ADMISSIBILITY OF                         Application No. 17240/90                       by Ikon Industriële Konsulenten in                       Marketing-Management B.V. and                       Martin Simon                       against the Netherlands             The European Commission of Human Rights (First Chamber) sitting in private on 8 July 1991, the following members being present:                 MM. J.A. FROWEIN, President of the First Chamber                   F. ERMACORA                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   H. DANELIUS              Sir   Basil HALL              MM.   C.L. ROZAKIS                   L. LOUCAIDES                   B. MARXER                Mr.   M. de SALVIA, Secretary to the First 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 29 June 1990 by Ikon Industriële Konsulenten in Marketing-Management B.V. and Martin Simon against the Netherlands and registered on 1 October 1990 under file No. 17240/90;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as they appear from the applicants' observations, may be summarised as follows.           The first applicant, Ikon Industriële Konsulenten in Marketing-Management B.V., is a company seated in Amsterdam.           The second applicant is a Dutch citizen, born in 1944 and resident in Amsterdam.   He is the director and only share-holder of the first applicant.           Both applicants are represented by Mr.   J.R. Branbergen, a lawyer in Amsterdam.           On 4 September 1975, the first applicant bought the right to a long-term lease of the property at Bachstraat 15 in Amsterdam and established its office on the property.   It subsequently appeared that the property was registered as residential property, this being also the use of the property indicated in the long-term lease agreement of 12 July 1929.           On 20 January 1976, the first applicant requested the municipality of Amsterdam to grant a permission for a changed use of property.   On 15 December 1976, a supplementary request was made to change the corresponding condition in the long-term lease agreement.           On 7 April 1977 the municipality informed the first applicant that they did not agree to change the permitted use of the property. The first applicant appealed to the Provincial Government of the Province of North-Holland which decided on 6 September 1977 that the appeal was well-founded and granted a permission to change the use of the property.   However, the municipality of Amsterdam persisted in refusing to change the corresponding condition in the long-term lease agreement.           On 23 May 1978 the municipality of Amsterdam sued the first applicant before the Regional Court (Arrondissementsrechtbank) of Amsterdam, requesting the Court to prohibit the first applicant from using the property for other than residential purposes.   A hearing was held on 15 October 1979.   It was then announced that judgment would be given on 19 December 1979.   However, the rendering of the judgment was postponed six times, and it was not given until on 28 May 1980.   In the judgment, the municipality's claim was granted.           On 13 June 1980 the first applicant appealed to the Court of Appeal (Gerechtshof) of Amsterdam.   The proceedings before the Court of Appeal lasted from 13 June 1980 to 3 January 1985.   After two interlocutory judgments of 25 June 1981 and 6 October 1983 the final judgment of the Court of Appeal was given on 3 January 1985.   Its content was that the Regional Court's judgment was quashed and the municipality's claim was rejected.           On 3 April 1985 the municipality of Amsterdam appealed to the Supreme Court (Hoge Raad).   On 27 March 1987 the Supreme Court quashed the judgment of the Court of Appeal and referred the case back to the Court of Appeal of The Hague for further examination.             In November 1987 the municipality of Amsterdam resumed the proceedings before the Court of Appeal of The Hague.   In its judgment of 7 February 1989 the Court of Appeal quashed the Regional Court's judgment of 28 May 1980 and again rejected the municipality's claim against the first applicant.           On 7 May 1989 the municipality again appealed to the Supreme Court which gave its judgment on 22 March 1991.   In its judgment, the Supreme Court rejected the appeal of the municipality.     COMPLAINTS           The applicants claim that they have suffered considerable damage because of the delays in the court proceedings.   Because of the uncertainty as to whether they may use the property at Bachstraat 15 for office purposes, they have found it necessary to move the first applicant's office to another location.           The applicants allege that their civil rights have not been determined within a reasonable time and allege a violation of Article 6 para. 1 of the Convention.     THE LAW           The applicants complain that their civil rights have not been determined within a reasonable time and allege a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   1.       The Commission first notes that only the first applicant was a party to the proceedings before the Dutch courts.   The second applicant is the director and only shareholder of the first applicant and is in such capacities indirectly affected by the outcome of the proceedings.   The Commission therefore considers that both applicants may claim to be victims of a violation of the Convention as regards the length of the proceedings and that they are entitled to complain to the Commission in accordance with Article 25 (Art. 25) of the Convention.   2.       The Government submit that the domestic remedies have not been exhausted as required by Article 26 (Art. 26) of the Convention since the applicants did not at any time during the domestic proceedings raise the issue of the length of the proceedings and since they also did not, pursuant to Section 1401 of the Civil Code, institute proceedings claiming damages from the Government in respect of the length of the proceedings.   Having regard to the outcome of the domestic proceedings, the Government further submit that the applicants may now request damages from the municipality of Amsterdam and that such a request may include compensation for the length of the proceedings insofar as the municipality may be held responsible.           The applicants reply that they could not, by raising, during the proceedings, the issue of their length, have obtained a judicial decision which would have expedited these proceedings.   Nor could an action based on Section 1401 of the Civil Code have accelerated the proceedings and such an action could therefore not be seen as an alternative to a complaint based on Article 6 para. 1 (Art. 6-1) of the Convention.   As regards a claim directed against the municipality, the applicants submit that they intend to make such a claim which will concern the damage suffered as a result of their having been obliged to move from their property.   The claim will not be based on the length of the proceedings, but the new compensation proceedings can be expected to go on for some years to come, and this period should be added to the time the previous proceedings have lasted.           The Commission considers that, although the first applicant could have raised the issue of the length of the proceedings in the course of these proceedings, it has not been shown that this would have constituted an effective remedy.   Nor could an action based on the general right to compensation for wrongful acts under Section 1401 of the Civil Code be regarded as an effective remedy in regard to a complaint of the length of the proceedings.           As regards an action against the municipality of Amsterdam, the Commission notes that such proceedings could only concern matters for which the municipality could be held responsbile and not delays for which the courts themselves were responsible.           The Commission therefore finds that the application cannot be rejected on the ground that the applicants have not exhausted the domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.   3.       As regards the substance of the applicants' complaint the Government admit that the proceedings took longer than could be regarded as desirable.   However, the Government take the view that the time was not unreasonable and in violation of Article 6 para. 1 (Art. 6-1) of the Convention.           The applicants maintain that the total time of the proceedings was unreasonably long.           The Commission notes that the court proceedings started on 23 May 1978 and ended on 22 March 1991.   Consequently, they lasted for about 12 years 10 months.           The Commission finds that the case raises complex issues of fact and law under the Convention, the determination of which must be reserved for an examination of the merits.           For these reasons, the Commission unanimously           DECLARES THE APPLICATION ADMISSIBLE.     Secretary to the First Chamber        President of the First Chamber             (M. de SALVIA)                        (J.A FROWEIN)