CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 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. 14443/88                       by 46 inhabitants of RUIGOORD                       against the Netherlands             The European Commission of Human Rights sitting in private on 6 September 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   F. ERMACORA                   G. SPERDUTI                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 31 August 1988 by 46 inhabitants of RUIGOORD against the Netherlands and registered on 5 December 1988 under file No. 14443/88;           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 applicants are 46 inhabitants of Ruigoord, the Netherlands.   The names of the applicants are attached to this report.   Before the Commission, the applicants are represented by Mr. L.D.H. Hamer, a lawyer practising in Amsterdam.           The facts of the case, as submitted by the applicants, may be summarised as follows:           The village of Ruigoord forms part of the Municipality of Haarlemmerliede and Spaarnwoude.   In 1969 the Municipal Council (Gemeenteraad) established a zoning plan (bestemmingsplan) "Landelijk Gebied 1968" on the basis of which Ruigoord and its surroundings were no longer zoned for housing but for harbour and harbour related industry.   The zoning plan was finally approved by Royal Decree on 20 June 1974.   A transitional provision on minor building activities was finally approved by the Provincial Executive on 16 March 1976.           On 25 September 1984, the Municipal Council of Haarlemmerliede and Spaarnwoude drew up a new zoning plan "Ruigoord 1984" intended to restitute the housing destination to the village Ruigoord and its surroundings, replacing the harbour and harbour related industry destination.   The village consists of dwellings which remained in 1973 after the partial demolition of dwellings and of wasteland areas, which were levelled to prepare the construction of a harbour and related industry in order to extend the western harbour area of Amsterdam.   To this end, the Municipality of Amsterdam has acquired the land and dwellings thereon with the exception of four pieces of land, which are presently owned by, respectively, the applicants numbered 1, 2, 5, 30, 33 and 34 (see Appendix).           The village remained inhabited, partly by people who have not sold their land and house to the Municipality of Amsterdam, partly by people who rent their house from the Municipality of Amsterdam and who have not yet been requested to vacate their homes, partly by people occupying houses without paying rent, which had been vacated by the former inhabitants and by one family who bought their land and house in 1980.   The Municipality of Haarlemmerliede and Spaarnwoude occasionally grants temporary building permits valid for five years for construction and renovation works.           Following the objection by, inter alia, the Municipal Authorities of Amsterdam, the Provincial Executive of Noord-Holland on 5 March 1985 refused to approve the new zoning plan.   Against this refusal, the Municipal Authorities of Haarlemmerliede and Spaarnwoude, the Forestry Board (Bosschap) and a number of applicants (those numbered to 36 inclusive as appended) appealed to the Crown (de Kroon) on the basis of the Crown Appeal Act.           Both the Municipal Authorities and the applicants emphasised the need of reinstating the village of Ruigoord residential zoning thereby legalising the present situation of the inhabitants and extending the possibilities of small-scale building activities.           The Crown decided, in conformity with the advice given by the Litigation Division of the Council of State (Afdeling Geschillen van Bestuur van de Raad van State), on 3 March 1988, that the Provincial Executive of Noord-Holland had rightfully refused the approval of the new zoning plan.   It held, inter alia, that under the circumstances, the interests of the City of Amsterdam in having ample opportunities to expand its harbour and to locate related industry outweighed the interests of the Municipality of Haarlemmerliede and Spaarnwoude, the Forestry Board and the applicants.           In the view of the Crown, under the existing zoning plan, there were sufficient possibilities for applicants to initiate small-scale building activities with regard to their houses, even though the village did not officially have the status of residential area.     COMPLAINTS           The applicants complain under Article 6 para. 1 of the Convention that their civil rights as owners, tenants and occupants, living under a constant threat of expropriation and/or enforced vacation of their homes and a constant construction prohibition, were not determined by an independant and impartial tribunal and that they did therefore not receive a fair hearing.           The applicants further complain under Article 1 of Protocol No. 1, that the withholding of the approval of the new zoning plan implies a constant prohibition on minor building activities, thereby rendering it impossible for house owners to add value to their property, which considerably limits the possibility to exercise their ownership rights.     THE LAW   1.       The applicants complain that the Crown is not an independent and impartial tribunal and that they have therefore been denied the right to a fair hearing.   The applicants invoke Article 6 para. 1 (Art. 6-1) of the Convention, the first sentence of which reads as follows:   "1.    In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."           The Commission notes that the applicants were involved in proceedings aimed at changing the zoning plan in force.   These proceedings started with the decision of the Municipal Council of Haarlemmerliede and Spaarnwoude to replace the zoning plan in force by a new zoning plan.   The Provincial Executive of Noord-Holland refused to approve the proposed new draft plan, whereas the Crown upheld the decision of the Provincial Executive.   The Commission takes the view that such proceedings cannot be considered to involve a determination of the applicants' "civil rights" within the meaning of Article 6 (Art. 6) of the Convention (cf.   No. 11844/85, Dec. 29.2.88, to be published in D.R. 55).           It follows that in this respect the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   2.       The applicants furthermore complain under Article 1 of Protocol No. 1 (P1-1) that the withholding of the approval of the new zoning plan implies a constant prohibition on minor building activities, thereby rendering it impossible for house owners to add value to their property, which considerably limits the possibility to exercise their ownership rights.           Article 1 of Protocol No. 1 (P1-1) reads:   "Every natural or legal person is entitled to the peaceful enjoyment of his possessions.   No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.   The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."           The Commission first observes that only a small number of applicants can be considered as owners within the meaning of Article 1 of Protocol No. 1 (P1-1).           The Commission notes that under this provision the applicants cannot claim a right to have a new zoning plan approved by the Provincial Executive of Noord-Holland.           Insofar the applicants complain on the existing situation, the Commission is not required to decide whether or not the complaint of the applicants discloses any appearance of a violation of this provision, as Article 26 (Art. 26) of the Convention also provides that the Commission "may only deal with the matter (...) within a period of six months from the date on which the final decision was taken".           In the present case the approval of the zoning plan by Royal Decree of 20 June 1974 and the approval by the Provincial Executive of 16 March 1976 of minor building activities were the final decisions regarding the subject of this particular complaint, whereas the application was submitted to the Commission on 31 August 1988, that is more than six months after the date of these decisions.   Furthermore, an examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of that period.           It is true that the applicants have, within the six months' period preceding the introduction of this application to the Commission received a decision from the Crown, in which the Crown held that the Provincial Executive had rightfully refused the approval of the new zoning plan.   The legal situation of the applicants remained therefore unaltered.   The Commission recalls that a request for re-opening of a case cannot as a rule be regarded as an effective remedy within the meaning of Article 26 (Art. 26) of the Convention (cf.   No. 10537/83, Dec. 10.10.85, D.R. 44 p. 98).   The decision of the Crown in that matter cannot therefore be taken into account when calculating the six months' period.           In this respect the applicants have therefore failed to comply with the six months' rule laid down in Article 26 (Art. 26) of the Convention. It follows that this complaint must 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)