CEDH · CASELAW;REPORTS;ENG — 1 juillet 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                                   SECOND CHAMBER                            APPLICATION No. 17240/90                         IKON Industriële Konsulenten in                 Marketing-Management B.V. and Martin SIMON                                     against                                 the NETHERLANDS                            REPORT OF THE COMMISSION                            (adopted on 1 July 1992)                                TABLE OF CONTENTS                                                                         Page I.     INTRODUCTION       (paras. 1-21) . . . . . . . . . . . . . . . . . . . . . . . . . . .1         A.     The application             (paras. 2-8). . . . . . . . . . . . . . . . . . . . . . . . .1         B.     The proceedings             (paras. 9-16) . . . . . . . . . . . . . . . . . . . . . . . .1         C.     The present Report             (paras. 17-21). . . . . . . . . . . . . . . . . . . . . . . .2   II.    ESTABLISHMENT OF THE FACTS       (paras. 22-33). . . . . . . . . . . . . . . . . . . . . . . . . . .4   III.   OPINION OF THE COMMISSION       (paras. 34-62). . . . . . . . . . . . . . . . . . . . . . . . . . .7         A.     Complaint declared admissible             (para. 34). . . . . . . . . . . . . . . . . . . . . . . . . .7         B.     Point at issue             (para. 35). . . . . . . . . . . . . . . . . . . . . . . . . .7         C.     Article 6 para. 1 of the Convention             (paras. 36-60). . . . . . . . . . . . . . . . . . . . . . . .7            i. General considerations             (paras. 36-39). . . . . . . . . . . . . . . . . . . . . . . .7           ii. Period to be considered             (para. 40). . . . . . . . . . . . . . . . . . . . . . . . . .7          iii. Reasonableness of the length of the proceedings             (paras. 41-60). . . . . . . . . . . . . . . . . . . . . . . .8               a. Complexity of the case                (paras. 43-44) . . . . . . . . . . . . . . . . . . . . . .8               b. Conduct of the first applicant                (paras. 45-47) . . . . . . . . . . . . . . . . . . . . . .8               c. Conduct of the authorities                (paras. 48-59) . . . . . . . . . . . . . . . . . . . . . .9               d. General assessment                (paras. 60-61) . . . . . . . . . . . . . . . . . . . . . 11         D.     Conclusion (para. 62) . . . . . . . . . . . . . . . . . . . 11   APPENDIX I    :   HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . . . . 12   APPENDIX II   :   DECISION ON THE ADMISSIBILITY OF                 THE APPLICATION . . . . . . . . . . . . . . . . . . . . 13   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 first applicant, Ikon Industriële Konsulenten in Marketing-Management B.V., is a company whose seat is in Amsterdam. The second applicant, Martin Simon, 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.         The application is directed against the Netherlands whose Government are represented by Mr. K. de Vey Mestdagh, of the Netherlands Ministry of Foreign Affairs.   3.     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 certain property for other than residential purposes. In a judgment of 28 May 1980 the Court granted the Municipality's claim.   4.     On 13 June 1980 the first applicant appealed to the Court of Appeal (Gerechtshof) of Amsterdam.   In its judgment of 3 January 1985 the Court of Appeal quashed the Regional Court's judgment and rejected the Municipality's claim.   5.     On 3 April 1985 the Municipality 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 to the Court of Appeal of The Hague for further examination.   6.     After the Municipality had resumed the proceedings in November 1987, the Court of Appeal of The Hague, in a judgment of 7 February 1989, quashed the Regional Court's judgment of 28 May 1980 and rejected the Municipality's claim.   7.     On 7 May 1989 the Municipality appealed to the Supreme Court which, in a judgment of 22 March 1991, rejected the appeal.   8.     The applicants complain of a violation of Article 6 para. 1 of the Convention in that the length of the proceedings before the Dutch courts exceeded a reasonable time.   B.     The proceedings   9.     The application was introduced on 29 June 1990 and registered on 1 October 1990.   10.    On 3 December 1990 the Commission decided to invite the respondent Government to submit their observations on the admissibility and the merits of the application.   The Commission also decided that the application should be examined by a Chamber.   11.    After having consulted the parties, the Commission decided on 9 April 1991 to refer the application to a Chamber.   12.    The Government's observations were submitted on 12 April 1991 and the applicants' observations in reply were submitted on 29 April 1991.   13.    On 8 July 1991 the Commission (First Chamber) declared the application admissible and decided to put additional questions to the parties.   14.    Additional observations were submitted on 16 September, 25 October and 29 November 1991 by the applicants and on 18 October and 27 November 1991 by the Government.   15.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Consultations with the parties took place between 15 July and 18 October 1991.   16.    The Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   17.    The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                     MM.    S. TRECHSEL, President of the Second Chamber                         G. JÖRUNDSSON                         A. WEITZEL                         J.-C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                   Mrs.   G.H. THUNE                   MM.    F. MARTINEZ                         L. LOUCAIDES                         J.-C. GEUS   18.    The text of this Report was adopted on 1 July 1992 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   19.    The purpose of the Report, pursuant to Article 31 of the Convention, is             i)   to establish the facts, and           ii) to state an opinion as to whether the facts found               disclose a breach by the State concerned of its               obligations under the Convention.   20.    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.   21.    The full text of the parties' submissions, together with the documents lodged as exhibits, is held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   22.    On 4 September 1975 the first applicant bought the right to a long-term lease (erfpacht) of the property situated 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.   23.    On 20 January 1976 the first applicant requested the Municipality of Amsterdam to grant a permission for a changed use of the property.   On 15 December 1976 a supplementary request was made to change the corresponding condition in the long-term lease agreement.   24.    On 7 April 1977 the Municipality refused to agree to change the permitted use of the property.   On 19 April 1977 the first applicant appealed against this refusal to the Provincial Executive (Gedeputeerde Staten) of the Province of North Holland.   On 6 September 1977 the Provincial Executive decided 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.   25.    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.   After an exchange of memorials, 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 (on 19 December 1979, 30 January, 27 February, 26 March, 23 April and 21 May 1980).   Judgment was finally given on 28 May 1980.   26.    In the judgment of 28 May 1980 the Regional Court found that the use indicated in the original long-term lease agreement of 12 July 1929 was binding also on new lessees and that this condition had not lost its legally binding force as a result of the fact that some lessess had not respected the condition.   Nor could it be said that the Municipality had renounced this condition or otherwise lost its right to invoke it.   The Court therefore granted the Municipality's claim and prohibited the first applicant from using the property for other than residential purposes.   27.    On 13 June 1980 the first applicant appealed to the Court of Appeal (Gerechtshof) of Amsterdam.   After an exchange of memorials, a first hearing was held on 23 April 1981.   An interlocutory judgment was given on 25 June 1981.   In this judgment some of the first applicant's arguments were rejected.   However, in the Court's opinion it remained to be examined whether the refusal to allow the first applicant to use the property at Bachstraat 15 for other than residential purposes was in conflict with the "principle of equality" ("gelijkheidsbeginsel").   The answer to that question depended on whether the refusal given to the first applicant and the decisions to grant applications for a change of use, which had been made in some other cases, could be considered to be part of a consistent municipal policy.   The Court therefore requested the Municipality to provide a survey of other applications for a change of the residential use of properties in the same area and of the decisions taken in regard to those applications.   The Municipality was also requested to indicate the policy guidelines which were the basis for such decisions.   The case was referred to a further hearing on 17 September 1981.   28.    During the period from September 1981 to April 1983 the Municipality repeatedly requested and was granted an extended time- limit for the presentation of the material requested by the Court of Appeal in its interlocutory judgment.   The material was finally submitted on 14 April 1983, and the first applicant submitted its reply on 2 June 1983.   On 6 October 1983 the Court of Appeal gave a second interlocutory judgment.   It considered that the Municipality had interpreted the Court's previous request too restrictively and had not provided sufficient information to allow the Court to reach a conclusion on the observance or not of the principle of equality. It therefore requested the Municipality to provide supplementary information and referred the case to a hearing on 17 November 1983.   29.    Further submissions by the Municipality were made on 12 January and 4 October 1984 and by the first applicant on 19 April 1984.   On 3 January 1985 the Court of Appeal gave its judgment in which it quashed the Regional Court's judgment and rejected the Municipality's claim.   The Court found that the Municipality had not shown that the negative decision taken in regard to the first applicant and certain other decisions were based on a consistent municipal policy.   Consequently, there had been a breach of the principle of equality.   30.    On 3 April 1985 the Municipality appealed to the Supreme Court (Hoge Raad).   In its judgment of 27 March 1987 the Supreme Court found that the Court of Appeal had not correctly applied the principle of equality.   It therefore quashed the judgment of the Court of Appeal as well as its two interlocutory judgments and referred the case to the Court of Appeal of The Hague for further examination and adjudication.   31.    On 12 November 1987 the Municipality of Amsterdam resumed the proceedings before the Court of Appeal of The Hague.   After written submissions by the parties, the Court held a hearing on 13 December 1988.   In its judgment, which was given on 7 February 1989, the Court found that there had been an unequal treatment of the first applicant as compared to others.   It therefore quashed the Regional Court's judgment of 28 May 1980 and again rejected the Municipality's claim.   32.    On 7 May 1989 the Municipality again appealed to the Supreme Court.   In its judgment of 22 March 1991 the Supreme Court rejected the appeal of the Municipality.   33.    In June 1991 the first applicant sued the Municipality before the Regional Court of Amsterdam, requesting damages resulting from the refusal to let the first applicant use the property at Bachstraat 15 for office purposes.   This had in fact made it necessary for the first applicant to buy other premises for its office, which had resulted in extra costs.   In reply the Municipality requested that the claim be rejected.   The Commission has not been informed of the further development of these proceedings.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   34.    The Commission has declared admissible the applicant's complaint that the length of the proceedings before the Dutch courts exceeded a reasonable time.   B.     Point at issue   35.    The issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect of the length of the proceedings concerned.   C.     Article 6 para. 1 (Art. 6-1) of the Convention         i. General considerations   36.    The applicants complain under Article 6 para. 1 (Art. 6-1) of the Convention that the length of the proceedings before the Dutch courts exceeded a reasonable time.   37.    Article 6 para. 1 (Art. 6-1) of the Convention provides, insofar as relevant, as follows:         In the determination of his civil rights and obligations       (...), everyone is entitled to a fair and public hearing       within a reasonable time by an independent and impartial       tribunal established by law."   38.    The applicability of Article 6 para. 1 (Art. 6-1) to the present proceedings is not in dispute.   The Commission agrees that the proceedings, in which the issue was the use of property leased by the first applicant, concerned the determination of the first applicant's civil rights.   As the second applicant was the director and only share-holder of the first applicant, the Commission finds that his civil rights were also at issue.   39.    The Commission must examine the length of the proceedings on the basis of the criteria established in the case-law of the Court and the Commission, namely the complexity of the case, the applicant's conduct and the conduct of the authorities dealing with the case (see, for instance, Eur. Court H.R., Zimmermann and Steiner judgment of 13 July 1983, Series A No. 66, para. 24).         ii. Period to be considered   40.    The starting-point of the period, the reasonableness of which is at issue, is 23 May 1978, when the Municipality of Amsterdam sued the applicant before the Regional Court of Amsterdam.   The period ends on 22 March 1991, when the final judgment in the case was given by the Supreme Court.   The proceedings as a whole thus lasted for twelve years and ten months.        iii. Reasonableness of the length of the proceedings   41.    The applicants consider that there were unnecessary delays in the proceedings for which the courts were responsible.   They point out that the Municipality of Amsterdam also prolonged the proceedings and that the Municipality, while being a party to the domestic proceedings, is also a public body for which the Government are responsible under the Convention.   42.    The Government consider that the length of the proceedings cannot be regarded as unreasonable.   They attribute the length partly to the complexity of the matters involved and partly to the fact that the parties availed themselves of the domestic remedies, which they were of course entitled to do, but which inevitably prolonged the proceedings.   They also consider that the first applicant did not do what could have been done to expedite the proceedings.                            a. Complexity of the case   43.    The Government point at the complexity of the matters on which the Municipality was requested to provide information according to the two interlocutory judgments of the Court of Appeal of Amsterdam.   They also submit that the legal issues involved were complex, since they concerned an area where civil law and public law overlap.   The question was whether the Municipality should have used private law or administrative law in order to achieve the desired objective.   Moreover, the case involved another question which was controversial in the doctrine and the case-law, namely the extent to which the general principles of good administration are also applicable to private law actions of the public authorities.   44.    The Commission accepts that the case raised certain difficult questions of fact and law.   Nevertheless, it finds that the complexity of the case can only to a limited extent account for the length of the proceedings in the present case.                        b. Conduct of the first applicant   45.    The Government note that the length of the proceedings was due, to a large extent, to the fact that the parties availed themselves of the domestic remedies at their disposal.   They further note that in the long proceedings before the Court of Appeal of Amsterdam the first applicant did not make any use of the possibilities it had under Dutch law to expedite the proceedings by requesting that the information which the Municipality was to provide should be provided speedily or within a specific time- limit.   The Government also consider that the proceedings before the Court of Appeal of Amsterdam were to some extent prolonged by suggestions about a possible friendly settlement which had been made by the first applicant.   46.    The applicants deny that any attempts to reach a friendly settlement were made which in any way prolonged the proceedings. They also note that the delay by the Municipality in collecting and submitting the information which had been requested by the Court of Appeal of Amsterdam must also be attributed to the Government, the Municipality being a public organ.   47.    The Commission cannot find in the present case any elements showing that the first applicant's conduct was such as to cause any unnecessary delays in the proceedings.   It is possible that the first applicant could have taken certain measures in order to expedite the proceedings, in particular before the Court of Appeal, but the Commission notes in this regard the case-law of the European Court, according to which even in civil cases, where the conduct of the proceedings is often to a large extent determined by the acts of the parties, the judicial authorities are not dispensed from ensuring that the proceedings are conducted expeditiously as required by Article 6 (Art. 6) of the Convention (Eur. Court H.R., Buchholz judgment of 6 May 1981, Series A No. 42, p. 16, para. 50). The Commission also attaches some weight to the fact that in the present case, the opposite party, which was to provide further material in the case, was a public body for whose acts the Government are responsible under the Convention.                          c. Conduct of the authorities   48.    The Commission finds it appropriate in this regard first to examine the different parts of the judicial proceedings separately.   49.    In first instance, the proceedings before the Regional Court of Amsterdam lasted from 23 May 1978 to 28 May 1980, i.e. for about two years.   One problem arises in regard to these proceedings, namely whether the time which elapsed between the hearing of the case and the judgment was reasonable.   50.    In this regard the Commission recalls that the hearing took place on 15 October 1979 and that it was then announced that judgment would be given on 19 December 1979.   However, the rendering of the judgment was subsequently postponed   on six different occasions, and the judgment was not given until on 28 May 1980, i.e. more than seven months after the hearing.   The Government find this delay justified by the complexity of the legal issues involved.   The applicants do not agree and point out that a period of six weeks would be normal between the hearing and the judgment.   51.    The Commission, after examining the legal reasoning in the Regional Court's judgment, finds it difficult to accept that it should have taken more than seven months to prepare the judgment. In any case, it finds the relatively long time which elapsed to be a relevant element in the consideration of the total length of the proceedings.   52.    The proceedings before the Court of Appeal of Amsterdam lasted from 13 June 1980 to 3 January 1985, i.e. for about four and a half years.   During this period the Court requested the Municipality, in two interlocutory judgments of 25 June 1981 and 6 October 1983, to produce certain material about municipal policy and how it had been applied in cases similar to that of the first applicant.   As regards the first request, several extensions of the time-limit were asked for and granted and it took the Municipality about one year and ten months to submit its replies on 14 April 1983.   However, the material then submitted was not considered sufficient, and a new request for supplementary information was made.   53.    The Government point out that under Dutch law each party is at liberty to inform the court that it is opposed to an extension of a time-limit for the submission of documents being granted to the other party.   It is then the task of the judge to assess whether an extension is justified.   Moreover, in the present case the request to the Municipality concerned data which were difficult to obtain.   The gathering of material from various departments of the Municipality required considerable time.   The first applicant was also partly responsible for the delay because of attempts that were made to settle the case out of court during the relevant time.   54.    The   applicants consider that the time granted to the Municipality by the Court of Appeal for the submission of the documents concerned was unreasonably long.   They contest that the first applicant was in any way responsible for the delay concerned since no attempts to settle the case, which in any way affected the delay, were made during that time.   55.    The Commission considers that a period of about one year and ten months for the submission of material of the kind concerned could only be considered reasonable in exceptional circumstances, and it has in no way been demonstrated that such circumstances existed in the present case.   The responsibility for the delay must be shared between the Court of Appeal and the Municipality, and the Government are responsible for both of them in the application of Article 6 (Art. 6) of the Convention.   56.    As regards the proceedings between 12 November 1987 and 7 February 1989 before the Court of Appeal of The Hague, there is no indication of any unreasonable delays.   57.    Finally there were proceedings before the Supreme Court during two periods, from 3 April 1985 to 27 March 1987 and from 7 May 1989 to 22 March 1991.   Consequently, in each case the proceedings lasted for somewhat less than two years.   58.    The Government consider that these periods correspond to the normal periods in cassation proceedings and that they cannot be considered unreasonably long.   The applicants, on the other hand, argue that these periods should be assessed in light of the fact that the proceedings at the first and second degree of jurisdiction had already been very long.   Moreover, it is in the applicants' view important to note that there were two sets of proceedings before the Supreme Court.   Having regard to these circumstances, the applicants consider that there was an unreasonable delay also in the proceedings before the Supreme Court.   59.    The Commission considers that the proceedings before the Supreme Court were not in themselves remarkably long.   It regards it, however, as a relevant consideration that the case came twice before the Supreme Court and that, on the second occasion, the Supreme Court was aware that it had already dealt with the same case before during a period of almost two years.                              d. General assessment   60.    When examining the length of the proceedings as a whole, the Commission first notes that the total length of twelve years and ten months is considerable.   The Commission also notes that the determination of the first applicant's dispute with the Municipality apparently had important economic consequences for the applicants.   61.    It is true that the length of the proceedings can to some extent be explained by the complexity of the subject-matter and by the fact that the case was dealt with in five sets of proceedings: before the Regional Court, the Court of Appeal of Amsterdam, the Supreme Court, the Court of Appeal of The Hague and again the Supreme Court.   Nevertheless, there have also been delays in the proceedings for which the Government must be held responsible, and when examining the proceedings as a whole, the Commission finds that the applicants' civil rights were not determined within a reasonable time as required by Article 6 para. 1 (Art. 6-1) of the Convention.   D.     Conclusion   62.    The Commission concludes unanimously that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the Second Chamber     President of the Second Chamber          (K. Rogge)                        (S. Trechsel)                                   APPENDIX I                             HISTORY OF PROCEEDINGS   Date                                     Item ___________________________________________________________________   29 June 1990                             Introduction of application   1 October 1990                           Registration of application     Examination of admissibility   3 December 1990                          Commission's decision to                                         invite the Government to                                         submit observations on the                                         admissibility and merits of                                         the application   9 April 1991                             Decision to refer the                                         application to a Chamber   12 April 1991                            Government's observations   29 April 1991                            Applicants' observations                                         in reply   8 July 1991                              Commission's decision to                                         declare the application                                         admissible (First Chamber)   Examination of the merits   15 July 1991                             Parties invited to submit                                         additional observations on                                         the merits   16 September 1991                        Applicants' additional                                         observations   18 October 1991                          Government's additional                                         observations   25 October 1991                          Applicants' further                                         observations   27 November 1991                         Govenment's further                                         observations   29 November 1991                         Applicants' further                                         observations   1 July 1992                              Commission's deliberations                                         on the merits, final vote                                         and adoption of the Report                                         (Second Chamber)