CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 août 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 }                          Application No. 15642/89                       by F.B., A.B. and Association X.                       against the Netherlands         The European Commission of Human Rights sitting in private on 31 August 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  F. ERMACORA                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  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 2 February 1989 by   F.B., A.B. and Association X. against the Netherlands and registered on 18 October 1989 under file No. 15642/89;         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 F.B., A.B. born in respectively 1942 and 1944, both Dutch citizens and residing in B., the Netherlands, and "Association X." an association with its registered seat in B.   The association's aim is, inter alia, to promote and maintain the safety and quality of life within the region A. for the citizens and other parties concerned within the region.         The applicants are represented by the association's secretary A.J.G. Grobbe, residing in B.         The facts of the case, as submitted by the parties, may be summarised as follows.         By decision of 6 July 1982 the Provincial Executive (Gedeputeerde Staten) of Gelderland ordered (aanwijzingsbesluit) the Municipal Council (Gemeenteraad) of A. to revise the zoning plan (bestemmingsplan) "Immenberg", inter alia, in order to enable the construction of a specific road.         On 16 February 1984 the Municipality of Apeldoorn decided not to comply with the order in respect of the road.         After having considered objections raised by, among others, the applicants, the Provincial Executive of Gelderland, on the basis of Article 40 of the Town and Country Planning Act (Wet op de Ruimtelijke Ordening) adopted the ninth partial revision of the "Immenberg" zoning plan on its own authority, and transmitted the revision to the Crown (de Kroon) for final approval as required by Article 40 of the Town and Country Planning Act.         As objections by, inter alia, the applicants against this revision had been raised, the Crown requested the advice of the Administrative Litigation Division of the Council of State (Afdeling voor de geschillen van bestuur van de Raad van State).   On 22 June 1988 and 24 February 1989 the Administrative Litigation Division advised the Crown not to approve the revised plan.         By Royal Decree of 14 July 1989, the Crown, contrary to the opinion of the Administrative Litigation Division, rejected the objections on future traffic safety, traffic policy, hindrance by future traffic, noise, negative financial and environmental aspects and approved the ninth revision of the zoning plan.         Following two letters by the applicant association, the President of the Administrative Litigation Division informed the association by letter of 14 August 1989 that the Provisional Act on Crown Appeals (Tijdelijke wet Kroongeschillen) was not applicable to the proceedings concerning the zoning plan revision, as this Act applies to disputes on which according to the law the Crown should decide, whereas in this case the Crown's function is not that of an administrative appeal organ but that of an administrative authority.         The second and third applicants subsequently started summary proceedings (kort geding) before the President of the Regional Court (Arrondissementsrechtbank) of The Hague, requesting an injunction prohibiting the construction of the planned road.   On 19 October 1989 the President rejected the request as being premature.   He considered that the State had argued that it would not start the construction works before construction and tree-felling permits had been issued and either the administrative or the civil judge in summary proceedings had examined the applicants' possible objections in respect of the zoning plan. The President did not exclude the possibility for a civil judge to examine the applicants' objections against the zoning plan in that context.         On 31 October and 10 November 1989 the Municipal Executive of A. granted construction permits to the general manager of the Department of Public Works (Rijkswaterstaat) in Gelderland in order to start the construction works of the planned road.         The applicants subsequently requested the President of the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State) to apply Article 107 of the Council of State Act (Wet op de Raad van State) - which deals with the possibility to request a suspension or an interim measure in respect of administrative decisions pending an administrative appeal - and suspend the granted construction permits.         The applicants' request was rejected on 1 February 1990 by the President of the Judicial Division.   In his decision, the President agreed with the opinion of the President of the Administrative Litigation Division, as expressed in the latter's letter of 14 August 1989 to the applicant association, that the Provisional Act on Crown Appeals did not apply to the proceedings on the zoning plan revision at issue and considered, inter alia, in respect of the Royal Decree of 14 July 1989 that the Crown, after having thoroughly balanced the interests involved, had reached a lawful decision which could not be considered as being unreasonable or arbitrary. In respect of the construction permits the President held that the Municipal Executive had correctly examined the compatibility of the construction permits with the zoning plan and had granted these permits in accordance with the law.         Following the rejection by the Municipal Executive of Apeldoorn of the applicants' objections against the granting of the construction permits, they submitted a subsequent appeal to the Judicial Division, which is apparently still pending.     COMPLAINT         The applicants complain under Article 6 para. 1 of the Convention that their civil rights have not been determined by an impartial and independent tribunal, as the Crown did not decide on the approval of the proposed revision in accordance with the advice of the Administrative Litigation Division of the Council of State.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 2 February 1989 and registered on 18 October 1989.         On 7 November 1990 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application.         The Government's observations were submitted on 1 March 1991 and the applicants' reply thereto on 7 May 1991.     THE LAW         The applicants complain under Article 6 para. 1 (Art. 6-1) of the Convention that their civil rights have been determined by the Crown, which they claim is not an independent and impartial tribunal.         Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides:         "1. In the determination of his civil rights and       obligations (...) everyone is entitled to a fair and public       hearing (...) by an independent and impartial tribunal       (...)."         The Government are of the opinion that the applicants have failed to exhaust domestic remedies in respect of their complaint.         The Commission notes in the first place that the applicant association's aim is, inter alia, to promote and maintain the safety and quality of life within the region Apeldoorn-Dieren for the citizens and other parties concerned within the region.         The question therefore arises whether the applicant association can be regarded as an applicant for the purposes of Article 25 (Art. 25) of the Convention.         According to this provision the Commission may receive petitions "from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by one of the High Contracting Parties of the rights set forth in (the) Convention".         However, the Commission does not need to resolve this issue, as the application is inadmissible for the following reasons.         The Commission recalls that, under the Convention, the concept of "civil rights and obligations" is autonomous and cannot be interpreted solely by reference to domestic law.   In deciding whether a "civil right" exists for the purposes of Article 6 para. 1 (Art. 6- 1), account should be taken of its substantive content and effects, the object and purpose of the Convention and the national legal systems of the other Contracting States.   In addition it must be shown that the result of the proceedings at issue was decisive for such a right (cf. No. 11282/84, Dec. 12.11.87, D.R. 54 p. 70 with further references).         The Commission also recalls that proceedings aimed at changing a zoning plan do not, as such, involve a determination of civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. No. 11844/85, Dec. 29.2.88, D.R. 55 p. 205).         The Commission notes that the applicants' objections against the revised zoning plan and the granted construction permits are of a general nature and solely relate to the applicants' general quality of life within their direct environment.         In these circumstances the Commission considers that there is no indication that the proceedings at issue, as such, determined the applicants' civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.         It follows that the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.         Secretary to the Commission             President of the Commission             (H.C. KRÜGER)                            (C.A. NØRGAARD)