CEDH · CASELAW;REPORTS;ENG — 14 mai 1992

.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 }                          EUROPEAN COMMISSION OF HUMAN RIGHTS                            APPLICATION No. 14224/88                        Johannes Paulus Emmanuel BAAKMAN                                     against                                 the NETHERLANDS                            REPORT OF THE COMMISSION                            (adopted on 14 May 1992)   TABLE OF CONTENTS                                                                         Page I.     INTRODUCTION       (paras. 1-12) . . . . . . . . . . . . . . . . . . . . . . . . . . .1         A.   The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . . . .1         B.   The proceedings           (paras. 5-8). . . . . . . . . . . . . . . . . . . . . . . . . .1         C.   The present Report           (paras. 9-12) . . . . . . . . . . . . . . . . . . . . . . . . .2   II.    ESTABLISHMENT OF THE FACTS       (paras. 13-32). . . . . . . . . . . . . . . . . . . . . . . . . . .3         A.   The particular circumstances of the case           (paras. 13-24). . . . . . . . . . . . . . . . . . . . . . . . .3         B.   Relevant domestic law           (paras. 25-32). . . . . . . . . . . . . . . . . . . . . . . . .5   III.   OPINION OF THE COMMISSION       (paras. 33-58). . . . . . . . . . . . . . . . . . . . . . . . . . .7         A.   Complaints declared admissible           (para. 33). . . . . . . . . . . . . . . . . . . . . . . . . . .7         B.   Points at issue           (para. 34). . . . . . . . . . . . . . . . . . . . . . . . . . .7         C.   Article 6 of the Convention           (paras. 35-53). . . . . . . . . . . . . . . . . . . . . . . . .7         D.   Article 13 of the Convention           (paras. 54-56). . . . . . . . . . . . . . . . . . . . . . . . 10         E.   Recapitulation           (paras. 57-58). . . . . . . . . . . . . . . . . . . . . . . . 11   Dissenting opinion by Mr. H.G. SCHERMERS. . . . . . . . . . . . . . . . 12   Dissenting opinion by Mr. S. TRECHSEL, Sir Basil HALL and Mrs. J. LIDDY . . . . . . . . . . . . . . . . . . . . . . . . . . . 17   APPENDIX I   : HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . . . . . 18   APPENDIX II : DECISION ON THE ADMISSIBILITY . . . . . . . . . . . . . . 19   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is a Dutch citizen, born in 1945 and resident in Haaksbergen, the Netherlands.   He is represented before the Commission by Mr. M. Verhoeven, a lawyer practising in Enschede, the Netherlands.   3.     The application is directed against the Netherlands.   The respondent Government are represented by their Agent, Mr. Karel de Vey Mestdagh of the Netherlands Ministry of Foreign Affairs, The Hague.   4.     The case relates to administrative proceedings which the applicant initiated in order to have a neighbour's building removed.   It raises issues under Article 6 para. 1 and under Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1.   B.     The proceedings   5.     The application was introduced on 16 May 1988 and registered on 16 September 1988.   The Commission decided on 4 April 1990 to communicate the application to the respondent Government for written observations on the admissibility and merits of the complaints under Article 6 para. 1 and under Article 13 of the Convention in conjunction with of Article 1 of Protocol No. 1. The Government submitted their observations on 2 July 1990 and the applicant's observations in reply were submitted on 9 October 1990.   6.     On 9 July 1991 the Commission declared the application admissible.   7.     On 15 July 1991 the parties were invited to submit additional observations on the application.   The applicant submitted observations on 17 September 1991 and the Government on 18 October 1991.   8.     After having declared the case admissible, the Commission acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   9.     The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:               MM.    C.A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   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                   C.L. ROZAKIS             Mrs.   J. LIDDY             MM.    L. LOUCAIDES                   J.-C. GEUS                   M.P. PELLONPÄÄ                   B. MARXER         The text of the Report was adopted by the Commission on 14 May 1992 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   10.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is:         (1)    to establish the facts, and         (2)    to state an opinion as to whether the facts found             disclose a breach by the State concerned of             its obligations under the Convention.   11.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   12.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   13.    On 15 September 1976 the applicant bought a farmhouse and a piece of land from the heirs of A.J.H. ten T.   One of the deceased's sons, J.H. ten T., is the applicant's neighbour and owns the adjacent land.   The boundary between the two properties had been determined by officials of the land registry on 15 October 1970 and marked accordingly by a stone post on one side and a steel pipe with a wooden post on top on the opposite side.   14.    In 1976 the neighbour applied for a building permit for a garage, which was granted by the Mayor and Aldermen (Burgemeester en Wethouders) of Haaksbergen on 28 September 1976.   When the garage was completed in 1977, the neighbour had, without a permission thereto, also built a lean-to behind the garage.   15.    In 1981 the land registry compared the actual boundary marks with the boundary indicated in the land register, and found that the visible boundary marks did not correspond to the land register. The wooden post had been placed several decimetres from the actual boundary on the applicant's land.   It became clear that both the garage and the lean-to intruded several decimetres on the applicant's land.   The applicant was not willing to sell this piece of land to his neighbour.   16.    On 4 October 1982 and 6 January 1983, the applicant requested the Mayor and Aldermen of Haaksbergen to order the removal of the garage and lean-to using executive coercion (bestuursdwang).           On 24 March 1983 the Mayor and Aldermen of Haaksbergen rejected the applicant's request and decided to give the neighbour the opportunity of requesting a building permit for the lean-to retroactively, which he did on 8 April 1983.   The permit was granted on 3 May 1983.   The applicant filed objections against both decisions, namely on 29 March 1983 against the refusal to apply administrative coercion and on 20 May 1983 against the decision to grant the permit.   17.    As no decision was taken on the applicant's objections within the prescribed time-limit of 30 days, the passivity of the authorities was to be considered under Dutch law as fictitious rejections of the applicant's objections.   He appealed against these fictitious rejections on 29 June and 8 August 1983.         However, on 16 August 1983, the Mayor and Aldermen of Haaksbergen took formal decisions on his objections.   As regards the use of executive coercion, they declared his objections partly inadmissible and partly ill-founded.   As regards the building permit, they declared the applicant's objections ill-founded and again granted the neighbour the building permit concerned.   18.    The applicant appealed against these decisions on 12 and 16 September 1983.   19.    On 28 February 1985, the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State) decided on the applicant's appeals in two separate judgments.   As regards the refusal of the Mayor and Aldermen to apply executive coercion, the applicant's appeal was rejected as being ill-founded.   As regards the building permit for the lean-to, the Judicial Division held that the permit had been granted wrongfully, because it was not in conformity with the current land-use plan which stipulated that outbuildings must be built at a distance of at least one metre from the plot boundary.   The Judicial Division therefore quashed the fictitious decision as well as the formal decision of 16 August 1983 on the applicant's objections against the building permit.   20.    As a result of this decision of the Judicial Division of the Council of State, the Mayor and Aldermen of Haaksbergen were under an obligation to take a new decision regarding the applicant's objections against the building permit granted on 8 April 1983. However, as no such decision was taken, the applicant requested the Judicial Division of the Council of State, on 17 June 1985, in accordance with Section 77 (at present Section 104) of the Council of State Act (Wet op de Raad van State), to act upon the Judicial Division's ruling of 28 February 1985.   21.    On 28 February 1986 the Judicial Division decided that the applicant's request was well-founded and ordered the Mayor and Aldermen to take a new decision on the applicant's objections of 20 May 1983, taking into account the Judicial Division's judgment of 28 February 1985.   The new decision was to be taken within two months of the date on which the Judicial Division's new judgment was despatched. The order was made on penalty of a fine per day during which the Mayor and Aldermen failed to comply with the order.   As the judgment was despatched on 2 May 1986, the time- limit expired on 2 July 1986.   22.    In their decision of 27 May 1986, the Mayor and Aldermen declared the applicant's objections ill-founded but nevertheless refused the building permit for the lean-to.   The applicant appealed against this decision, but while the appeal was pending, the Mayor and Aldermen rectified their own decision by stating, on 11 August 1986, that, in the decision of 27 May 1986, the applicant's objections should have been declared "well-founded" and not "ill-founded".   In these circumstances, the President of the Judicial Division decided, on 19 May 1987, to reject the applicant's appeal against the decision of 27 May 1986.   The applicant's objections against the President's decision were rejected by the Judicial Division on 18 November 1987.   23.    On 23 February 1987 the applicant again requested the Mayor and Aldermen to apply executive coercion in order to remove the lean-to.   This request was rejected on 23 June 1987.   The applicant's appeal to the Judicial Division was rejected on 21 February 1991.   The Judicial Division held that the application of executive coercion was the exercise of a discretionary power, and that the decision of the Mayor and Aldermen not to use executive coercion was not unreasonable in view of the interests involved.   24.    Also on 21 February 1991 the Judicial Division quashed a decision of the Mayor and Aldermen of 12 July 1988 on the applicant's objections against a fence his neighbour had constructed in the meantime, also on the applicant's land, without a building permit. It held that the Mayor and Aldermen had unjustly concluded that no building permit was required for the construction of the fence.   B.     Relevant domestic law   25.    Section 47 of the Housing Act (Woningwet) provides that, for constructions, a permit (bouwvergunning) by the Mayor and Aldermen (Burgemeester en Wethouders) is required.   Section 48 of the Housing Act provides that a permit is to be granted if the building plan is in accordance with the local zoning plan (bestemmingsplan) and building regulations (bouwverordening) in force.   26.    In the assessment of a building plan for a construction permit, private interests of third parties, such as neighbours, are not taken into account.   A permit will only be refused if the proposed construction would contravene public law regulations.   27.    In cases where a person considers that a neigbour is guilty of unlawful building affecting his rights as owner of the adjoining property, there are two kinds of possible remedies of which he may avail himself.   He may have recourse either to administrative law remedies or to private law remedies in order to have the matter settled.   (a)   Administrative law remedies   28.    The Mayor and Aldermen of a municipality are competent to grant a building permit (bouwvergunning).   It is also within their competence to apply executive coercion (bestuursdwang) in order to discontinue, or cause to be discontinued, an unlawful factual situation.   They may for instance issue a demolition order in respect of a building which has been constructed unlawfully.         When the Mayor and Aldermen grant a building permit or refuse to apply executive coercion in order to remove a building unlawfully constructed, a person whose interests are affected by this decision may submit his objections to the Mayor and Aldermen. If they reject the objections, an appeal against that decision may be lodged with the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State).   If the Mayor and Aldermen do not rule on the objections within a time-limit of 30 days, this is regarded as a fictitious rejection of the objections, and an appeal to the Judicial Division is possible also in that case.   29.    If the Judicial Division of the Council of State quashes the decision appealed against, the Mayor and Aldermen are required to rule again on the objections against the original decision, and when doing so, they must take the Judicial Division's judgment into account.   Should they fail to make a new ruling, the party concerned may submit a request to the Judicial Division which, if the request is well-founded, will order the Mayor and Aldermen to act within a specified period of time under the threat of a pecuniary penalty in case of non-compliance.   (b)   Private law remedies   30.    Irrespective of whether or not a construction is in conformity with a building permit, it may constitute a tort (onrechtmatige daad) in relation to another person.   Against such a tort private law remedies are available.   31.    Under Article 1401 of the Civil Code (Burgerlijk Wetboek) in force at the relevant time, which deals with tort, a plaintiff may claim damages or request the civil court to deliver a declaratory judgment or an injunction by which the defendant is either forbidden or ordered to do something.   This implies that a civil court, although it lacks the competence to annul an administrative decision, may, in summary proceedings (kort geding), render such an administrative decision "inoperative", where no other remedy is available (cf. Supreme Court judgment of 1 July 1983, NJ 1984, no. 360).   32.    If, however, a plaintiff claims damages for tort alleging that the administrative decision is unlawful, and an administrative appeal against that decision is possible but has not been lodged, the civil court shall reject the tort claim as inadmissible.   If, on the other hand, the claim is not based on the unlawfulness of the administrative decision, the civil court can examine the claim, even if the plaintiff has not first challenged the decision before an administrative court (cf. Supreme Court judgment of 22 November 1985, NJ 1986, no. 722).         The failure to make use of a possible administrative appeal will therefore not necessarily lead to the inadmissibility of a claim based on tort, but may nevertheless have a certain effect on the examination by the civil court of the issues raised in respect of the alleged tort. Where the administrative decision has not been challenged, the civil court must assume that the decision, both in form and contents, is in conformity with the legal requirements (cf. Supreme Court judgment of 4 February 1983, NJ 1985, no. 21, and of 16 May 1986, NJ 1986, no. 723).   On that assumption, the civil court must then draw the consequences under private law and conclude whether or not tort has been established.   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   33.    The Commission has declared admissible the applicant's complaints that the proceedings relating to his neighbour's lean-to were not terminated within a reasonable time and that no effective remedy was available to protect his right as an owner.   B.     Points at issue   34.    The issues to be determined are:      -   whether there has been a violation of Article 6 para. 1       (Art. 6-1) of the Convention;      -   whether there has been a violation of Article 13 (Art. 13) of       the Convention in conjunction with Article 1 of       Protocol No. 1 (P1-1).   C.     Article 6 (Art. 6) of the Convention   35.    Article 6 para. 1 (Art. 6-1) of the Convention includes the following provision:         "In the determination of his civil rights and obligations       ..., everyone is entitled to a ... hearing within a       reasonable time by (a) ... tribunal ..."   36.    The Government submit that Article 6 para. 1 (Art. 6-1) is not applicable to the proceedings concerned.   They consider that, in order for that provision to be applicable, the proceedings must directly determine civil rights.   It is true that it is in the applicant's interest that the municipality should refuse a building permit and apply executive coercion, but this does not mean, in the Government's opinion, that the proceedings regarding these matters determine civil rights.   37.    The Commission recalls that the concept of "civil rights and obligations" is not to be interpreted solely by reference to the respondent State's domestic law and that Article 6 para. 1 (Art. 6-1) applies irrespective of the parties' status, be it public or private, and of the nature of the legislation which governs the manner in which the dispute is to be determined; it is sufficient that the outcome of the proceedings should be "decisive for private rights and obligations" (cf. Eur. Court H.R., H. v. France judgment of 24 October 1989, Series A no. 162, para. 47).   38.    The Commission notes that the dispute which formed the background of the proceedings in the present case related to the fact that the applicant's neighbour had made a construction which intruded on the applicant's property and that the applicant wished this construction to be removed.   This was undoubtedly a dispute concerning the applicant's civil rights.   The question which arises is whether the administrative proceedings initiated were such that they could result in a determination of those civil rights.   39.    The Commission has previously been called upon to examine cases where administrative proceedings have been resorted to in order to settle similar disputes between neighbours.   In one case, which concerned certain inconveniences resulting from a neighbour's garage, the Commission considered that administrative proceedings did not involve a determination of the civil rights at issue (No. 7941/77, Dec. 1.5.79, D.R. 16 p. 88).   In a more recent case, the Commission declared admissible an application which raised the question of whether a decision to grant an applicant's neighbour a building permit was decisive for a civil right of the applicant (No. 12887/87, Dec. 7.6.90).   40.    In the present case, the Government have stated that, in the case of this kind of disputes between neighbours, the parties may under Dutch law have recourse to administrative law or to private law remedies to have the matter settled.   The Government have added that each of these remedies offers in its own way legal protection to the parties concerned.   However, in the Government's view, the administrative remedy is indirect and circuitous, whereas the private law remedy is direct.   41.    The Commission considers that both kinds of remedies could result in a decision which made it clear that the construction intruding on the applicant's property was unlawful, either because it did not conform to administrative regulations or because it violated the applicant's property right.   In both cases, the outcome of the proceedings would have an impact on the applicant's situation as the owner of the adjoining property.   42.    It may be that the applicant would have made a better choice if he had initiated a private law action before the civil courts. However, the Commission is not called upon to determine which proceedings would have provided the applicant with the best chances of success.   It suffices that the outcome of the proceedings actually chosen by the applicant had, or could have, a bearing on the civil rights which was the subject-matter of the dispute (cf. Eur. Court H.R., Editions Périscope v. France judgment of 26 March 1992, Series A no. 234-B, para. 38, and X. v. France judgment of 31 March 1992, Series A no. 236, para. 40).   43.    The Commission is therefore of the opinion that Article 6 para. 1 (Art. 6-1) of the Convention applies to the present case.   44.    The administrative proceedings brought by the applicant were an appeal against the building permit granted to his neighbour as well as a request for executive coercion in order to put an end to the unlawful intrusion on his property.   The Commission considers that these two parts of the proceedings should be seen as a whole and be examined together, since the executive coercion demanded by the applicant must be regarded as a means of giving practical effect to a decision establishing the unlawfulness of the construction.   45.    On the other hand, the proceedings regarding the neighbour's fence (para. 24) cannot be seen as a continuation of the proceedings concerning the lean-to and should therefore not be taken into account in the consideration of the length of the proceedings of which the applicant complains.   46.    The Commission thus notes that the relevant proceedings started on 4 October 1982, when the applicant first requested the removal of the lean-to by executive coercion, and ended on 21 February 1991 when the applicant's appeal against the refusal to use executive coercion was rejected by the Judicial Division of the Council of State.   Consequently, the total length of the proceedings was about eight years and four months.   47.    The Commission recalls that the reasonableness of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria:   the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court H.R., Vermillo judgment of 20 February 1991, Series A no. 198, para. 30).   48.    The Government consider that the proceedings in the period from 20 May 1983 to 28 February 1985 were completed with a fair degree of promptitude.   As regards the period from 23 June 1987 to 21 February 1991, the Government admit that the proceedings took a long time.   They nevertheless consider that, in the particular circumstances of the case, the proceedings were dealt with within a reasonable time.   The Government point out in this respect that some delay was caused by the fact that the Judicial Division of the Council of State dealt with this case concurrently with the separate dispute regarding the fence which the neighbour had erected.   The Government finally recognise that the municipality contributed to some delay when failing for some time to take the decision to which the applicant was entitled in view of the Judicial Division's judgment of 28 February 1984.   49.    The Commission first notes that the proceedings cannot be considered to have been particularly complex.   It has not been alleged that the applicant contributed to any significant delays in the proceedings.   The Commission further notes that parts of the proceedings took place before an administrative body - the Mayor and Aldermen of Haaksbergen - and not before a court. Nevertheless, these parts of the proceedings must also be taken into account under Article 6 para. 1 (Art. 6-1) of the Convention, since they affected the final determination by a court of the issues involved.   50.    As regards the conduct of the authorities, the Commission notes that some delays must be attributed to the Mayor and Aldermen of Haaksbergen.   After the applicant had filed objections, on 29 March and 20 May 1983, against decisions of the Mayor and Aldermen of 24 March and 3 May 1983, the Mayor and Aldermen took no decision within the time-limit of 30 days prescribed by law.   After the Judicial Division of the Council of State had quashed the fictitious as well as formal municipal decisions on 28 February 1985, the Mayor and Aldermen took no new decision as they were obliged to do, but such a decision was only taken on 27 May 1986, after the applicant had lodged a new request to the Judicial Division of the Council of State and the Judicial Division had ordered the Mayor and Aldermen to take a decision within a certain time-limit.   It is also noticeable that, in their decision of 27 May 1986, the Mayor and Aldermen, apparently by mistake, declared the applicant's objection ill-founded instead of well- founded, which led to some unnecessary litigation before this matter had been settled.   51.    As regards the proceedings before the Judicial Division, the Commission notes that the applicant appealed to the Judicial Division on 12 and 16 September 1983 and that the Judicial Division ruled on the appeals about one year and five months later, i.e. on 28 February 1985.   Moreover, after the applicant had appealed against the decision of the Mayor and Aldermen of 23 June 1987, the Judicial Division did not rule on the appeal until about three years and eight months later, i.e. on 21 February 1991.   The Commission cannot find that the explanation which the Government have provided for this latter delay is sufficient as justification for a delay of this length.   52.    In the light of the criteria established by the Court's and the Commission's case-law and having regard to all the circumstances of the case, the Commission finds that the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.         Conclusion   53.    The Commission concludes, by 15 votes to 4, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   D.     Article 13 (Art. 13) of the Convention   54.    The applicant also maintains that he had no effective remedy concerning the protection of his right as an owner.   He relies on Article 13 (Art. 13) of the Convention which provides:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy       before a national authority notwithstanding that the       violation has been committed by persons acting in an       official capacity."   55.    The Commission notes in this regard that, in the administrative proceedings concerned, the applicant had access to the Judicial Division of the Council of State in order to protect his rights.   Moreover, it would also have been possible for him to institute civil proceedings before a court against his neighbour. In these circumstances, he cannot be considered to have lacked an effective remedy as referred to in Article 13 (Art. 13) of the Convention.         Conclusion   56.    The Commission concludes, unanimously, that there has not been a violation of Article 13 (Art. 13) of the Convention.   E.     Recapitulation   57.    The Commission concludes, by 15 votes to 4, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 53).   58.    The Commission concludes, unanimously, that there has not been a violation of Article 13 (Art. 13) of the Convention (para. 56).   Secretary to the Commission             President of the Commission         (H.C. KRÜGER)                          (C.A. NØRGAARD)                    Dissenting opinion by Mr. H. G. SCHERMERS         For a number of reasons I do not agree with the Commission's report on the application of Mr. Baakman.   1.     The application with respect to Article 13 should be inadmissible for non-exhaustion.   2.     The complaint with respect to Article 6 is incompatible because Article 6 is not applicable to this kind of litigation. Even if Article 6 were applicable to the administrative proceedings against the building permit, it cannot be applied to the claim for executive coercion as the applicant has no right thereto.   3.     Court judgments are effective only when executed.   Still, there is no general rule that the time needed for the execution of judgments should be added to the reasonable time required by Article 6.   To add the time needed for execution in the present case without adding it in other cases cannot be justified.   4.     When the periods needed for proceedings outside Article 6 and for the execution of the other proceedings are deducted the remaining length of the proceedings which might be covered by Article 6 (even though in my opinion it is not) is not unreasonably long.         The following remarks may serve to clarify each of the above- mentioned points.   I.     The first question which arises is the one of the exhaustion of domestic remedies.   Two complaints of the applicant have been declared admissible: the one on the length of the administrative proceedings under Article 6 and the question whether the applicant had an effective remedy concerning the protection of his rights as an owner under Article 13.   With respect to the latter question I think the domestic remedies have not been exhausted.   The normal remedy for the protection of ownership is the one before the civil courts.   This has not even been tried by the applicant.   He chose administrative proceedings which concerned the question whether the government fell short of their legal obligations, but which did not concern property questions.   As the applicant has not used the proper remedies available he has not exhausted in this respect.         With respect to the applicant's claim that the administrative proceedings took too long, the institution of civil proceedings could not have been an appropriate remedy.   As far as those proceedings are concerned the remedies have been sufficiently exhausted.   II.    As to the applicability of Article 6 three legal problems are involved in the present case:   1)     Mr. Ten T. has built a garage and a lean-to partly on the applicant's territory.   This has caused a dispute between two individuals which can be settled before the civil courts.   There is no doubt that Article 6 applies to such cases, but this case is not under discussion.   2)     Could Mr. Ten T. build a garage and a lean-to?   For any building in the Netherlands governmental permission is needed. When considering requests for such a permission the government will look into zoning plans, building regulations and similar rules of public law.   If permission is refused or subjected to too severe conditions, the applicant of the permission can litigate against the authorities.   In the early times of the Convention this kind of litigation was not considered as being covered by Article 6.   In their more recent case-law the Court and the Commission have accepted, however, that the civil law interests of the prospective builder are such that his litigation about the building permit can be covered by Article 6.         When a building permit is to be granted it can be challenged by a large variety of other interested persons.   The following few examples may illustrate this large variety.   The view of a distant land-owner may be spoilt to such an extent that he has an interest in the refusal of the building permit.   The prospective building may attract so much traffic, noise or pollution that people in a wide neighbourhood may have reason to fear deterioration of their own property.   When the proposed building is not in accordance with building regulations this may cause risks for the neighbourhood. As the civil rights of all these neighbours may be affected by the granting of the building permit there may be some reason for submitting that all such neighbours have a civil right in litigating against the building permit and therefore should be protected by Article 6.   In my opinion this would mean an expansion of Article 6, however, and I sincerely doubt whether the present case is the most suitable one for such an expansion.   The applicant has a dispute with Mr. Ten T.   The civil courts, which normally decide similar disputes, are available and must be considered able to solve the dispute.   The applicant, however, addresses himself to the government in an effort to force them to solve his private litigation on the ground that the building permit has been illegally granted as one is not entitled to build on someone else's property.   Whether under those circumstances the litigation against the government can still be seen as determining a civil right is doubtful.   One might submit that it is in the interest of judicial protection that as many kinds of disputes as possible are covered by the article, or that the Court has shown a tendency to extend the applicability of Article 6.   It may therefore not be beyond doubt that Article 6 is inapplicable and I am willing to assume that Article 6 can be applied for this particular legal problem.   3)     The applicant's claim that the government should use executive coercion is of a different character.   It is a means of force at the full discretion of the government, meant to enforce rules of public law such as building regulations.   It is true that individuals may ask the government to use executive coercion against particular illegal building, but the government is under no obligation to grant such requests.   Executive coercion is used only when the government considers it necessary in the public interest. It is not a means of execution of court judgments or of any civil rights or obligations.   As an individual has no right to executive coercion, litigation about it should not be regarded as covered by Article 6.   III.   In as far as Article 6 may be presumed to be applicable to the present case, the question arises whether the case was decided within a reasonable time.   The Commission notes that the relevant proceedings started on 4 October 1982 when the applicant first requested a removal of the lean-to by executive coercion and ended on 21 February 1991 when the applicant's appeal against the refusal to use executive coercion was rejected by the Judicial Division of the Council of State.   Consequently, the total length of the proceedings is estimated at 8 years and 4 months.   In my opinion, this counting is incorrect for at least two reasons.         First, the applicant's requests of 4 October 1992 and 6 January 1983 for the use of executive coercion should not be taken into account as not being covered by Article 6.   The first act of the applicant which (though indirectly) concerned his civil rights was his objection of 20 May 1983 against the decision to grant a building permit for the lean-to retroactively.   This objection lead to the final decision of the Judicial Division of 28 February 1985 holding that the planning permission had been granted wrongfully.   The final court decision in this case was given, therefore, after less than two years.         Secondly, the addition of the time needed for the execution of a judgment to the reasonable time within which one's civil rights have to be determined inevitably leads to arbitrariness and should be avoided. It is true that the municipal executive of Haaksbergen was slow in executing the judgment of the Judicial Division.   The applicant, however, did not depend on this execution.   After the annulment of the building permission by the Judicial Division it was clear that the lean-to was illegally constructed which enabled the applicant to obtain a judgment from the civil courts ordering Mr. Ten T. to remove the illegal construction or, at least, to pay compensation.   The negligence of the municipal executive of Haaksbergen had the effect that Mr. Ten T. was in contravention of the law, having built without a required   permit.   This is a public law affair which could perhaps lead to a fine or to measures of the government against Ten T., but which was of no direct concern to the applicant.   However, being interested in a decision of the municipal executive of Haaksbergen the applicant went back to the Judicial Division and obtained a court order that the municipality should take a decision concerning the applicant's objection of 20 May 1983.   This leads to the question whether the time needed for the execution of a judgment may in some cases be added to the reasonable time within which everyone is entitled to a court judgment, even though the period for execution is not added in other cases.   Normally, the length of procedure is counted until the final court judgment.   As a rule court judgments are executed without further proceedings, but if they are not, the litigant may have to go to a court again for obtaining execution.   As he will first have tried to obtain execution without the help of a court a considerable amount of time may pass between the date of the final court judgment and the date on which the litigant brings the question of execution again before a court.   The length of this amount of time depends on the litigant and cannot, therefore, be attributed to the Government.   It should not be included in the length of procedure to be respected under Article 6.   In the present case this amount of time is extraordinary short, but in most cases it may well be more than six months.   That illustrates the need to either always include the time needed for execution in the length of procedure, or to separate the two proceedings in all cases.   As long as the execution is not always included in the length of the proceedings a complaint for length of procedure lodged more than six months after a final court judgment would be declared inadmissible for violation of the six months time limit if no litigation about the execution follows.   If there is litigation about the execution then the case would no longer be time barred even if such further litigation would start more than six months after the final court judgment in the case itself.   A case which was inadmissible when brought more than six months after the final court decision would then become admissible again solely because the applicant decided to bring its execution again before a court.   The time needed for the litigation on the execution would then be added to the total proceedings.         The addition of all proceedings on the execution of judgments to the time needed for the court decisions themselves would entail an expansion of Article 6 which is neither in conformity with the case-law so far, nor desirable.   The alternative is to keep the two procedures separated.         However, in the case of Martins Moreira the Court held that the relevant period should also extend to the subsequent enforcement proceedings (Eur. Court H.R., Martins Moreira judgment of 26 October 1988, Series A no.143, p. 16 para. 44). In this judgment the Court referred to the Guincho judgment of 10 July 1984, where also the time needed for a further judgment had been added, but there the first judgment was not final as the further judgment had to establish the amount of the damages to be paid (Eur. Court H.R., Guincho judgment of 10 July 1984, Series A no. 81, p. 13 para. 29).         In the present case the municipality took a decision in order to execute the judgment of 28 February 1985.   Against this decision the applicant lodged an appeal which was dismissed after two years as manifestly ill-founded on 19 May 1987.   If the time needed for the original decision and that for its execution are added together the final decision was taken four years after the applicant's first objection against the building permit.   IV.    The question then arises whether four years is too long a period for both a court decision against a governmental authority and the execution of that court decision.   I think this period can be justified, not so much because of the complexity of the case, but rather because of the stubborness of the applicant.   The authorities were of the opinion that Mr. Ten T., who acted in good faith, should not be compelled to demolish his garage or his lean- to.   As the applicant was unwilling to sell the small piece of land involved or to accept any other form of compensation the case became complicated because of lack of an acceptable solution. Taking that into account I think that even the period of four years was not unjustifiably long.         Independent of the above mentioned action and prior to its decision the applicant started on 23 February 1987 a new action to obtain executive coercion.   As he had no right to such coercion under Dutch law this action falls outside Article 6, but even if it were covered by Article 6 it should not be accepted as a continuation of the litigation.   Executive coercion had already been refused, and each new application for it must be seen as a separate action to force a particular way of execution which previously failed.   The final decision in this action was taken on 21 February 1991 which is four years after its introduction.   I find this a long period of time for a simple action, but I think it can