CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 avril 1994

.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                       Application No. 19138/91                       by A.v.P.                       against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 6 April 1994, the following members being present:             MM.   S. TRECHSEL, President                H. DANELIUS                G. JÖRUNDSSON                J.-C. SOYER                H.G. SCHERMERS           Mrs. G.H. THUNE           MM.   F. MARTINEZ                L. LOUCAIDES                J.-C. GEUS                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY             Mr.   K. ROGGE, Secretary to the Chamber          Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 25 September 1991 by A.v.P. against the Netherlands and registered on 20 November 1991 under file No. 19138/91;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to:   -     reports provided for in Rule 47 of the Rules of Procedure of the     Commission;     -     the observations submitted by the respondent Government on      28 September 1993 and the observations in reply submitted      by the applicant on 13 December 1993;        Having deliberated;        Decides as follows:       THE FACTS        The applicant is a Dutch citizen, born in 1938, and resides at De Lutte, the Netherlands. Before the Commission he is represented by Mr. G.W.H.J. de Koning, a lawyer practising in Apeldoorn.        The facts of the case, as submitted by the parties, may be summarised as follows.        The applicant used to run, in the form of a firm (vennootschap onder firma), a café alongside a busy road. The clients were mainly truck-drivers. In July 1985 a new highway was opened, which had a negative effect on the café's turnover.        Already on 26 August 1983 a meeting had taken place between the Public Works and Water Management Department (Rijkswaterstaat - hereinafter referred to as "the Department"), the applicant and the Municipality of Losser. All agreed that the Municipal Executive (Burgemeester en Wethouders) of Losser would contact the Director of the Department in order to examine whether or not "administrative compensation" (bestuurscompensatie) on the basis of equity could be awarded to the applicant for the negative effects of the highway on his income, so that the applicant's compensation would be covered "otherwise" within the meaning of Section 49 of the Town and Country Planning Act (Wet op de Ruimtelijke Ordening - hereinafter referred to as "the Act").        On 25 May 1984 the applicant filed a request for compensation under Section 49 of the Act to the Municipal Council (Gemeenteraad) of Losser. As agreed between the parties on 26 August 1983, the Municipal Council forwarded this request to the Department, who decided to seek an expert opinion assessing the applicant's damages. The applicant's lawyer agreed in writing to the deviation from the normally applicable time-limits in respect of the application of Section 49 of the Act in view of the procedure agreed upon on 26 August 1983.        Following an initial report assessing the damage at 318.500 Dutch guilders and a counter expert opinion obtained by the applicant, an expert opinion was submitted to the Department on 3 April 1987 assessing the compensation to be awarded to the applicant at 864.500 Dutch guilders, i.e. 70% of the total damages assessed at 1.235.000 Dutch guilders.        By letter of 18 April 1988 the Department offered the applicant compensation in the amount of 341.950 Dutch guilders plus statutory interests and possible tax damages. By letter of 11 May 1988 the applicant rejected the offer and requested to be paid the amount arrived at in the final expert opinion pending a final decision on his claim for compensation. By letter of 9 June 1988, referring to the procedure agreed upon on 26 August 1983, the Department refused the applicant's request and informed him that he would be paid as soon as a final decision on his compensation request of 25 May 1984 had been taken.          The applicant's appeal to the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State) was rejected on 25 August 1988, on the ground that the offer of 18 April 1988 did not constitute a decision within the meaning of the Administrative Decisions Appeals Act (Wet Administratieve Rechtspraak Overheidsbeschikkingen).        The applicant subsequently started summary proceedings before the President of the Regional Court (Arrondissementsrechtbank) of The Hague claiming an amount of 864.500 Dutch guilders for damages.        By judgment of 18 April 1989 the President of the Regional Court ordered the Department to pay 341.950 Dutch guilders to the applicant. The President rejected the applicant's argument that his full claim should be paid as he did not find it established that the parties had agreed on 26 August 1983 that the Department would pay the compensation amount as assessed by experts.        By decision of 29 June 1989 the Municipal Council rejected the applicant's request for compensation under Section 49 of the Act. The Council noted that the applicant's lawyer had agreed in writing to the deviation from the normally applicable time-limits in respect of the application of Section 49 of the Act in view of the procedure agreed upon on 26 August 1983. The Municipal Council did not find it necessary to seek the advice of a Damage Assessment Commission within the meaning of Section 4 of the Procedure Ordinance on Compensation of Damage Caused by Planning (Procedure-verordening Planschadevergoeding), considering that the applicant's damage was covered "otherwise" within the meaning of Section 49 of the Act, as the Department was under an obligation to apply the system of administrative compensation.        On 20 September 1989 the applicant filed an appeal against this decision with the Administrative Litigation Division of the Council of State (Afdeling voor de Geschillen van Bestuur van de Raad van State) in accordance with the Interim Act on Crown Appeals (Tijdelijke Wet Kroongeschillen). He requested the Administrative Litigation Division to decide the matter itself, as already five years had elapsed since the opening of the new highway, and submitted that it was therefore of the utmost importance that a final decision on his claim would be given soon.        By decision of 15 February 1990 the President of the Administrative Litigation Division rejected the applicant's request for an interim measure under Section 107 of the Act on the Council of State (Wet op de Raad van State).        In its decision of 26 March 1991 the Administrative Litigation Division quashed the decision of the Municipal Council of 29 June 1989. It found that the Municipality had unjustly considered that it was not necessary to apply Section 4 of the Procedure Ordinance on Compensation of Damage Caused by Planning by seeking the advice of a Damage Assessment Commission and had therefore failed to make its own assessment of the alleged damage, as required by the procedural rules on the application of Section 49 of the Act, and ordered the Municipal Council to take a new decision within a maximum period of six months.        On 30 May 1991 the Municipal Council decided to seek the advice of a Damage Assessment Commission. This Commission advised in its report of 26 September 1991 that the applicant be paid an amount which was considerably higher than the amount already paid by the Department.        In its decision of 31 October 1991 the Municipal Council, after having considered the advice by the Damage Assessment Commission, again rejected the applicant's request for compensation under Section 49 of the Act, considering that an alternative exploitation of the applicant's business was possible in the form of a hotel and that his damage was already covered by the amount paid by the Department.        On 5 December 1991 the applicant filed an appeal against the decision of 31 October 1991 with the Administrative Litigation Division.        By decision of 13 February 1992 the President of the Administrative Litigation Division rejected the applicant's request for an interim measure under Section 107 of the Act on the Council of State.        In its decision of 3 February 1993 the Administrative Litigation Division quashed the decision of 31 October 1991, considering that the Municipal Council had failed to make its own assessment of the applicant's claim for damages but conformed itself to the opinion of the Department. Following the applicant's request the Administrative Litigation Division decided the matter itself and awarded the applicant further compensation for damage of assets of 200.000 Dutch guilders with statutory interest as from 3 December 1982, compensation for loss of income of 498.050 Dutch guilders with statutory interest as from 13 June 1985, and, in view of the Municipal Council's failure to comply with the Administrative Litigation Division's clear directives as contained in its decision of 26 March 1991, ordered the Municipality to pay the applicant an additional amount of 5.000 Dutch guilders for the disadvantage suffered by him as a result of this failure.        Following this decision the amount of 1.263.515,90 Dutch guilders has been paid to the applicant on 22 March 1993.   COMPLAINT        The applicant complains under Article 6 para. 1 of the Convention that his civil rights and obligations have not been determined within a reasonable time. He complains in particular that the Administrative Litigation Division in its decision of 26 March 1991 failed to decide the case itself.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 25 September 1991 and registered on 20 November 1991.        On 30 June 1993 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 28 September 1993 and the applicant's observations in reply were submitted on 13 December 1993.   THE LAW        The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that his civil rights and obligations have not been determined within a reasonable time.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads:             "In the determination of his civil rights and      obligations (...) everyone is entitled to a (...) hearing      within a reasonable time by a (...) tribunal (...)."        The Government submit that the application has been deprived of any material basis. The award of the additional amount of 5.000 Dutch guilders by the Administrative Litigation Division is not based on Section 49 of the Town and Country Planning Act, but on the general powers of the Division under Section 5 para. 4 of the Interim Act on Crown Appeals to award compensation in cases where a decision is quashed. According to the Government it appears from the considerations in the decision of 3 February 1993 of the Administrative Litigation Division that the award of the additional amount of 5.000 Dutch guilders relates to the delay caused by the Municipal Council in that the latter, in its second decision of 31 October 1991, took insufficient account of the Administrative Litigation Division's decision of 26 March 1991, whereas the application is primarily motivated by the applicant's dissatisfaction with the fact that the Administrative Litigation Division did not itself decide the substantive aspects of the case in its first decision of 26 March 1991.        In this respect the Government submit that, insofar as an administrative court has discretionary powers to decide the substance of an administrative matter itself after having quashed an administrative decision for being unlawful, these powers can be used only if the administrative body has no room left to exercise its discretionary powers in respect of the substance of the matter and if the court has sufficient information to reach a decision itself. According to the Government this was not the case at the time the Administrative Litigation Division took its first decision on 26 March 1991, as becomes clear from the Division's second decision of 3 February 1993, which is based to a significant degree on the report of 26 September 1991 of the Damage Assessment Commission.        The Government further submit that the period between the first refusal by the Municipal Council on 29 June 1989 of the applicant's request for compensation under Section 49 of the Act and the final decision of 3 February 1993 of the Administrative Litigation Division cannot be regarded as exceeding a reasonable time within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. As regards the period before 29 June 1989 the Government submit that the applicant, or his counsel, had clearly agreed in writing to proceedings lasting longer than normal. It was not until 1988, when the Department departed from the experts' report drawn up in that connection, that the applicant took various kinds of action relating to that offer, as well as appealing against the decision of 29 June 1989.        The applicant refutes the Government's argument that the application has been deprived of any material basis. He submits that so far a part of the interests awarded has not been paid and that, due to the length of the proceedings, his possibilities to start a new business have been considerably diminished in view of his age.          Referring to the Explanatory Memorandum (Memorie van Toelichting) to the Interim Act on Crown Appeals, the applicant submits that it is incorrect to say that the Administrative Litigation Division can only decide a matter when an administrative body has no room left to exercise its discretionary powers in respect of the substance of the matter. According to the applicant the Division is always competent to decide disputes concerning the application of Section 49 of the Act itself.        The applicant considers that the Administrative Litigation Division had sufficient information to decide the matter itself on 26 March 1991, given that the two reports, in which his damages were assessed, contained almost identical conclusions.        The applicant maintains that his civil rights have not been determined within a reasonable time, since about ten years passed between his first agreement with public authorities in 1983 in respect of the compensation of his damages and the final award of this compensation in 1993. The second appeal procedure before the Administrative Litigation Division constituted an unnecessary delay, given that the decision of 26 March 1991 merely resulted in a repetition of events.        The Commission, noting that the parties do not dispute the applicability of Article 6 para. 1 (Art. 6-1) of the Convention to the proceedings at issue, considers that Article 6 para. 1 applies to the present administrative proceedings, which were decisive for the applicant's private rights (cf. Eur. Court H.R., X. v. France judgment of 31 March 1992, Series A no. 234-C, p. 90 para. 30).        However, under Article 25 para. 1 (Art. 25-1) of the Convention the Commission can only receive an application from a person who can claim to be a victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention.        The Commission notes in respect of the period between 25 May 1984, when the applicant submitted his request for compensation under Section 49 of the Act, and 29 June 1989, when the Municipal Council rejected this request for the first time that the applicant, represented by his lawyer, had agreed in writing to deviate from the normally applicable time-limits in respect of the application of Section 49 of the Act in view of the procedure agreed upon on 26 August 1983.        The Commission considers that, by explicitly waiving his rights under the Act in respect of the normally applicable time- limits, the applicant made a choice which implied that the determination of his compensation could last longer than normal. The applicant cannot complain of a situation which he himself helped to bring about and     cannot, therefore, claim to be a victim of a violation of Article 6 para. 1 (Art. 6-1) in respect of the length of the proceedings between 25 May 1984 and 29 June 1989 (cf. No. 12717/87, Dec. 8.9.88, D.R. 57 p. 196).        As regards the period between 20 September 1989, when the applicant filed an appeal against the decision of 29 June 1989, and 3 February 1993, when the Administrative Litigation Division determined the applicant's compensation award, the Commission, when considering the victim question, recalls that under Article 26 (Art. 26) of the Convention it may only deal with an application when all domestic remedies have been exhausted according to the generally recognised rules of international law. Under this rule an applicant is obliged to make use of remedies likely to be effective and adequate to remedy the matters of which he complains.        Where an applicant makes use of such remedies and thereby obtains adequate redress at the domestic level for the alleged violation of the Convention, he cannot complain to be a victim of a violation (cf. No.12719/87, Dec. 3.5.88, D.R.56 p. 237).        The Commission recalls that the Administrative Litigation Division, in its decision of 26 March 1991, ordered the Municipal Council to take a new decision within a maximum period of six months in which it should make its own assessment of the damages by consulting a Damage Assessment Commission, which, in the Commission's view, constituted an adequate measure to expedite the proceedings.        The Commission further recalls that the Administrative Litigation Division, in its decision of 3 February 1993, did not only decide the substance of the applicant's claim on the basis of the report of the Damage Assessment Commission, but also ordered the Municipal Council to pay an additional separate amount of 5.000 Dutch guilders for its failure to comply with the Administrative Litigation Division's clear directives as contained in its decision of 26 March 1991. In these circumstances the Commission accepts that the additional amount of 5.000 Dutch guilders awarded to the applicant constituted adequate redress at the domestic level for the unnecessary delay caused by this failure.        The Commission therefore finds that the applicant can no longer claim to be a victim of the alleged violation of Article 6 para. 1 (Art. 6-1) of the Convention and it follows that the application must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber         President of the Second Chamber          (K. ROGGE)                         (S. TRECHSEL)