CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 janvier 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 29840/96                       by P.C.M.S.                       against the Netherlands        The European Commission of Human Rights (Second Chamber) sitting in private on 15 January 1997, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA              Ms.    M.-T. SCHOEPFER, 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 10 November 1995 by P.C.M.S. against the Netherlands and registered on 19 January 1996 under file No. 29840/96;        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 applicant is a Dutch citizen, born in 1938, and resides in Utrecht, the Netherlands. Before the Commission he is represented by Mr. R.W. Siebers, who acts on behalf of "Stichting Red ons Rivierlandschap" and "Stichting Uiterwaardenpark Maas-Waal-Merwede", two associations concerned with nature conservation.        The facts of the case, as submitted by the applicant, may be summarised as follows.   A.    Particular circumstances of the case        Following the near-disastrous flooding in the region of the major rivers in the beginning of 1995, the Netherlands Government decided that special measures had to be taken in order to enhance the safety of the people living alongside these rivers. For this reason a Bill was introduced in which it was proposed to strengthen particular sections of certain dikes in order to prevent future flooding. This Bill, called the Major Rivers Delta Act (Deltawet Grote Rivieren), was adopted by Parliament on 11 April 1995 after the Legislation Division (Afdeling wetgeving) of the Council of State (Raad van State) had given its advice. It was published in the Bulletin of Acts and Decrees (Staatsblad) of 20 April 1995 and entered into force the next day.        On 24 April 1995 the Provincial Executive (Gedeputeerde Staten) of Gelderland adopted - pursuant to Section 4 para. 3 of the Major Rivers Delta Act - a plan for the realisation of works to strengthen a particular section of a dike. The realisation of this plan meant in effect that a house belonging to the applicant would have to be destroyed and thus expropriated beforehand.        On 8 May 1995 the applicant filed an appeal against this decision with the Administrative Law Division (Afdeling Bestuursrechtspraak) of the Council of State. He argued, inter alia, that in reaching its decision, the Provincial Executive of Gelderland had not struck a fair balance between the public interest in dike reconstruction and his personal interest in the preservation of his house. In this respect he referred to an alternative plan which would not necessitate the destruction of his house.        Following a hearing on 6 June 1995, the Administrative Law Division rejected the appeal on 16 June 1995.        As regards the alternative plan referred to by the applicant, the Administrative Law Division noted that adoption of that plan would lead to the applicant's house being partly surrounded by a sheetpile wall and that the cost of the realisation of this plan would exceed the value of the house concerned. For these reasons the Administrative Law Division considered the Provincial Executive's findings that the alternative plan was not desirable from the point of view of the occupant's living conveniences and that the cost to realise the plan was not proportionate to the value of the house not to be unreasonable or incorrect.        The Administrative Law Division held, moreover, that also the repositioning of the dike would not be a valid alternative and, furthermore, that no reasonable alternative appeared to exist apart from the destruction of the house.        Finally, the Administrative Law Division noted that the authorities had examined several possibilities for the reconstruction of the house at a different location, but that an agreement between the applicant and the authorities on this issue or as regards the question of compensation had not yet been reached.        After balancing the interests involved, the Administrative Law Division concluded that the adverse consequences for the applicant were not disproportionate to the public interests of reconstructing this section of the dike in accordance with the adopted plan. Moreover, it found nothing in the applicant's submissions from which to conclude that the adoption of the plan was contrary to the law or to general legal principles.   B.    Relevant domestic law        Pursuant to Section 1 of the Major Rivers Delta Act (hereafter: "Delta Act") the Act only applies to the realisation of those works which are mentioned in a list annexed to the Act.        Section 4 para. 1 of the Delta Act provides that the administrator who will be carrying out the works indicated in Section 1 should draw up a draft plan and an explanatory memorandum.        Pursuant to Section 4 para. 2 of the Delta Act, it must be clear from this draft plan and the explanatory memorandum what consequences the realisation of the works will have, in what manner account has been taken of the interests involved, including the interests of landscape, nature, cultural-historic elements, public housing, country planning and environment.        The third paragraph of this provision, insofar as relevant, provides that the Provincial Executive will adopt the plan for the realisation of the works and the explanatory memorandum on the basis of the draft plan.        Pursuant to Section 5 para. 1 of the Delta Act the administrator is entitled to expropriate property if this property has been explicitly mentioned in the plan and in situations where such expropriation is regarded as absolutely necessary for the realisation of the works. A number of provisions from the Expropriation Act (Onteigeningswet) apply to the expropriation proceedings.         The authorities are obliged to offer compensation to the owner of the expropriated property (Section 74 para. 1 Expropriation Act). The second paragraph of Section 74 provides that the owner of the expropriated property may initiate civil proceedings if the authorities have not offered compensation within three months, or if he does not agree to the amount of compensation offered.        The Council of State consists of a vice-president and 28 councillors and is formally presided over by the King or Queen. The councillors (staatsraden) are appointed for life by Royal Decree (Koninklijk Besluit) at the recommendation of the Minister of Internal Affairs following consultation with the Minister of Justice.        The Council of State has a Legislation Division, which provides the Government with advice on proposed legislation, and an Administrative Law Division, which acts as an administrative court in first and final instance and as court of appeal.        Councillors usually take part in the activities of both divisions.        According to Section 8:15 of the Administrative Law Act (Algemene wet bestuursrecht) a party may challenge a judge on the ground that the latter appears to lack impartiality.        Pursuant to Section 8:16 para. 1 of the Administrative Law Act the request to replace a judge should be submitted as soon as the party concerned became aware of facts or circumstances which led to the appearance of a lack of impartiality.   COMPLAINTS   1.    The applicant complains of a violation of Article 1 of Protocol No. 1 in that the Administrative Law Division of the Council of State did not consider the necessity of the deprivation of his house.   2.    The applicant also complains of an infringement of his right to respect for his home as guaranteed by Article 8 para. 1 of the Convention.   3.     The applicant further raises the question whether the Administrative Law Division can be regarded as an impartial tribunal within the meaning of Article 6 para. 1 of the Convention in view of the fact that the members of the Council of State carry out both advisory and judicial functions.   4.    The applicant finally complains under Article 6 para. 1 of the Convention that he did not receive a fair trial since in his opinion his interests were not correctly balanced by the Administrative Law Division.   THE LAW   1.    The applicant submits that the expropriation of his house amounts to a breach of Article 1 of Protocol No. 1 (P1-1) which, insofar as relevant, provides:        "Every natural or legal person is entitled to the peaceful      enjoyment of his possessions.   No one shall be deprived of his      possessions except in the public interest and subject to the      conditions provided for by law and by the general principles of      international law."        The Commission notes that the adoption of the plan to strengthen the dike, and subsequently the realisation of this plan, will result in the expropriation of the applicant's house. Since expropriation constitutes a "deprivation" of possessions, it falls within the second sentence of the above provision and the Commission must therefore determine whether the facts of the case establish that the applicant will be deprived of his property "in the public interest" and whether the deprivation is "subject to the conditions provided for by law" and "by the general principles of international law".        The Commission recalls in the first place that the general principles of international law do not apply where, as in the present case, property is taken by a State from its own nationals (Eur. Court HR, Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 50, para. 119).        It is furthermore clear that the deprivation of the applicant's possession was provided for by law, namely by the Major Rivers Delta Act. It thus remains to be determined whether the deprivation of the property was in the public interest.        As regards the Convention organs' supervision in this respect the Commission recalls that in its James and Others v. the United Kingdom judgment of 21 February 1986 (Series A no. 98, p. 32, para. 46), the Court held as follows:        "Because of their direct knowledge of their society and its      needs, the national authorities are in principle better placed      than the international judge to appreciate what is "in the public      interest". Under the system of protection established by the      Convention, it is thus for the national authorities to make the      initial assessment both of the existence of a problem of public      concern warranting measures of deprivation of property and of the      remedial action to be taken (see, mutatis mutandis, the Handyside      v. the United Kingdom judgment of 7 December 1976, Series A      no. 24, p. 22, para. 48). Here, as in other fields to which the      safeguards of the Convention extend, the national authorities      accordingly enjoy a certain margin of appreciation.        Furthermore, the notion of "public interest" is necessarily      extensive. In particular, as the Commission noted, the decision      to enact laws expropriating property will commonly involve      consideration of political, economic and social issues on which      opinions within a democratic society may reasonably differ      widely. The Court, finding it natural that the margin of      appreciation available to the legislature in implementing social      and economic policies should be a wide one, will respect the      legislature's judgment as to what is "in the public interest"      unless that judgment be manifestly without reasonable      foundation."        In the present case the background and purpose of the enactment of the contested legislation was the State's wish to strengthen the dikes in order to provide more protection to the people living alongside the rivers. The Commission cannot find that this lacks reasonable foundation.        However, according to the Convention organs' case-law, a measure depriving a person of his property must not only pursue a legitimate aim "in the public interest", but there must also be a reasonable relationship of proportionality between the means employed and the aim sought to be realised (James and Others v. the United Kingdom judgment, loc. cit., p. 34, para. 50). This latter requirement was expressed in other terms in the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982 by the notion of the "fair balance" that must be struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The requisite balance will not be found if the person concerned has had to bear "an individual and excessive burden" (Series A no. 52, pp. 26 and 28, paras. 69 and 73).        The Commission notes in the first place that in the present case the Administrative Law Division of the Council of State examined whether there were reasonable alternatives to the adopted plan in which the house of the applicant would not have to be expropriated. However, it concluded that there were no such alternatives. As regards the plan referred to by the applicant, the Administrative Law Division noted that the cost of the realisation of that plan would exceed the value of the house concerned and that, therefore, it could not be regarded as a valid alternative.        The Commission notes furthermore that it appears that the authorities were examining several possibilities for the reconstruction of the house at a different location.        Finally, the Commission takes account of the fact that it follows from the applicable law that the applicant will be compensated for the expropriated possessions.        In view of these circumstances the Commission concludes that, given the wide margin of appreciation enjoyed by the Contracting States in this area, the decision taken cannot be considered to be disproportionate to its legitimate purpose.        Consequently, the Commission finds no appearance of a violation of Article 1 Protocol No. 1 (P1-1). It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant also complains that his right under Article 8 para. 1 (Art. 8-1) of the Convention has been violated since his house will be expropriated. Article 8 (Art. 8), insofar as relevant, reads as follows:        "1.    Everyone has the right to respect for ... his home ...        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        The Commission recalls that it has already found the expropriation of the applicant's house to be in conformity with the requirements of Article 1 of Protocol No. 1 (P1-1). It further considers that the interference would be justified as being in accordance with the law and as necessary in a democratic society in the interest of public safety and for the protection of health and the rights of others, within the meaning of paragraph 2 of Article 8 (Art. 8-2) (cf. No. 12736/87, Dec. 5.5.88, not published).        It follows that this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant furthermore alleges that the Administrative Law Division of the Council of State lacked impartiality. He invokes Article 6 para. 1 (Art. 6-1) of the Convention which, insofar as relevant, provides:        "In the determination of his civil rights and obligations ...      everyone is entitled to a fair ... hearing ... by an ...      impartial tribunal ..."        The Commission reiterates that according to Article 26 (Art. 26) of the Convention it may only deal with an application after all domestic remedies have been exhausted. This rule of exhaustion of domestic remedies, which dispenses States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, is one of the generally recognised principles of international law (Eur. Court HR, De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no. 12, p. 29, para. 50).        The mere fact that an applicant has submitted his case to the competent court does not in itself constitute compliance with this rule. It is also required that the substance of any complaint made before the Commission should have been raised during the proceedings concerned. The Commission refers to its established case-law on this matter (cf. e.g. No. 12717/87, Dec. 8.9.88, D.R. 57 p. 196).        The Commission furthermore recalls that it follows from the fact that the Convention forms an integral part of Dutch law that alleged violations of the rights guaranteed by the Convention may be invoked in procedures before the national courts.        The Commission observes that in the present case the applicant neither tried to challenge the judges of the Administrative Law Division, nor raised his complaint under Article 6 para. 1 (Art. 6-1) of the Convention in his proceedings before this tribunal. By failing to do so, he did not provide the Administrative Law Division with the opportunity to remedy the violation alleged against it. Consequently, the Commission finds that the applicant has not complied with the requirement of exhaustion of domestic remedies.        It follows that this part of the application is inadmissible under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.   4.    The applicant finally complains under Article 6 para. 1 (Art. 6-1) of the Convention that the Administrative Law Division failed to balance his interests correctly.        The Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Contracting States. In particular, it is not competent to deal with an application alleging that errors of fact or law have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of the rights and freedoms set out in the Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77, p. 81).        The Commission notes that the applicant was represented by a lawyer throughout the proceedings at issue and that he was provided with ample opportunity to present his views and challenge the submissions of his adversary in the proceedings.        In view of these circumstances, the Commission finds no indication that the proceedings were unfair and considers, therefore, that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.        M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber