CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 mai 1998

.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. 34325/96                       by J.J.W.M. MENS and P.P.M. MENS-HOEK                       against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 20 May 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              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 1 April 1996 by J.J.W.M. MENS and P.P.M. MENS-HOEK against the Netherlands and registered on 20 December 1996 under file No. 34325/96;        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 applicants are both Dutch nationals born in 1942. They reside in Dalem, the Netherlands. The applicants are represented by Mr M.J.C. Deriks, a lawyer practising in Rotterdam.        The facts of the case, as submitted by the applicants, 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 further flooding. This Bill, called the Major Rivers Delta Act (Deltawet Grote Rivieren, hereinafter referred to as "the Delta Act"), was adopted by the 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) and entered into force on 21 April 1995.        By decision of 18 and 25 July 1995, the Provincial Executive (Gedeputeerde Staten) of the province of Gelderland adopted - pursuant to Article 4 para. 3 of the Delta Act - a plan for the realisation of works to strengthen a particular section of a dike. For the applicants the realisation of this plan meant in effect that the reinforcement of the outer dike in the section concerned would, inter alia, entail that the crest and the exterior slope of the dike would lie in their garden near their house and that certain vegetation would have to be removed. The realisation would entail expropriation of land owned by the applicants, namely, amongst others, certain parcels east and west of their house and part of the mound on which their house is constructed.        The applicants and twelve other parties filed an appeal against the decision of 18 and 25 July 1995 with the Administrative Law Division (Afdeling Bestuursrechtspraak) of the Council of State. In their appeal, the applicants 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 their personal interests in that, inter alia, by taking away a strip of 15 metres from their garden the proportional relation between their house, their garden and the dike would become distorted. They submitted alternative ways to secure the strengthening of the dike section which would take less space and/or would enable a dike strengthening on the land side of the dike. These alternatives included a construction of a parallel dike and a quay wall.        Following a hearing held on 22 September 1995, the Administrative Law Division, in its decision of 2 October 1995, considered the applicants' appeal founded insofar as it concerned planned works on the dike which had no connection with the strengthening of the dike and rejected the remainder of their appeal.        As to the part of the applicants' appeal which was rejected, the Administrative Law Division found that the Provincial Executive could reasonably have attached more weight to the disadvantages of the proposed construction of a parallel dike or a quay wall than to the pertaining advantage of needing less space for the dike strengthening measures. In this connection the Administrative Law Division accepted the opinion of the Provincial Executive that the disadvantages attached to the alternatives suggested by the applicants were to be set off against a relatively minor limitation on the use of space in the applicants' garden.        After having balanced the interests involved, the Administrative Law Division concluded that the realisation of the plan would not place a disproportionately heavy burden on the applicants and that it had not appeared that in the adoption of the plan requirements under domestic law or general principles of international law had been disrespected.        By letters of 15 January, 22 March, 12 April and 24 May 1996 respectively, the administrator, i.e. the Polder District Tieler- en Culemborgerwaarden, informed the applicants that as negotiations aimed at an amicable resolution had proven unsuccessful in that the applicants had turned down the Polder District's last offers in respect of the different plots owned by the applicants and required for the realisation of the plan, it now was compelled to avail itself of its powers under Article 5 of the Delta Act and consequently would proceed to expropriate the different parcels. The applicants were requested to state their bank or giro account number so that the amounts offered for the different parcels could be transferred to that account. If the applicants did not wish to disclose their account number, the amount would be reserved for them on an account of the public notary Mr E. The applicants were further informed that, if they wished to seek higher amounts in compensation, they could address the Regional Court (Arrondissementsrechtbank) of Dordrecht via a lawyer.   b.    Relevant domestic law        Pursuant to Article 1 of the Delta Act, it only applies to the realisation of those works mentioned in a list annexed to the Act.        Article 4 para. 1 of the Delta Act provides that the administrator who will be carrying out the works indicated in Article 1 should draw up a draft plan and an explanatory memorandum.        Pursuant to Article 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 entail, in what manner account had been taken of the interests involved, including the interests of landscape, nature, cultural-historic elements, public housing, country planning and environment.        Article 4 para. 3 of the Delta Act, 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 Article 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 an expropriation is regarded as absolutely necessary for the realisation of the works. A number of provisions in the Expropriation Act (Onteigeningswet) apply to the expropriation proceedings.        Article 74 para. 1 of the Expropriation Act obliges the authorities to offer compensation to the owner of the expropriated property. Pursuant to para. 2 of this provision, the owner or the expropriated property may institute civil proceedings if the authorities have not offered compensation within three months or when the owner does not agree to the amount of compensation offered.        The Council of State consists of a vice-President and 28 Councillors (Staatsraden) and is formally presided over by the King or Queen. the Councillors are appointed for life by Royal Decree (Koninklijk Besluit) at the recommendation of the Minister of Internal Affairs (Minister van Binnenlandse Zaken) following consultation with the Minister of Justice (Minister van Justitie).        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 Article 8:15 of the General Administrative Law Act (Algemene Wet Bestuursrecht) a party may challenge a judge on the ground that the latter appears to lack impartiality.        Pursuant to Article 8:16 of the General 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.        The Netherlands is a Member State of the European Union and a Party to the EEC Treaty of 25 March 1957. Where a preliminary question as regards compatibility with rules of the European Union is raised in proceedings before a national court from which no appeal lies, that court is required, under Article 177 in fine of the EEC Treaty, to refer this question to the Court of Justice of the European Communities.     COMPLAINTS   1.    The applicants complain under Article 1 of Protocol No. 1 that the expropriation of land they own for the purposes of the Delta Act constitutes a disproportionate interference with their right to respect for their property in that the Council of State has not or insufficiently understood that the examination on appeal of the draft plan also determines the necessity of expropriation. The applicants argue that the tool of expropriation is meant for situations where the use of private property is indispensable for the realisation of works in the public interest and not to allow public authorities to execute such works in a cheaper way. The applicants submit that strengthening the dike on the land side of the dike is an affordable alternative and, in matters of expropriation, the public authorities do have the freedom to opt for a less expensive method where the use of a more expensive method could spare private property.   2.    Referring to the judgment of 24 October 1996 of the Court of Justice of the European Communities in case C-72/95, the applicants complain under Article 6 of the Convention of the unfairness of the proceedings in that, contrary to European Union Council Directive 85/337 of 27 June 1985, the Administrative Law Division failed to order ex officio a Report on the environmental effects of the dike strengthening plan at issue.   3.    The applicants further complain under Article 6 of the Convention that the Administrative Law Division of the Council of State cannot be regarded as impartial in view of the fact that the members of the Council of State carry out both advisory and judicial functions in that in their case one of the members of the Administrative Law Division had also advised in the adoption of the Delta Act.     THE LAW   1.    The applicants complain under Article 1 of Protocol No. 1 (P1-1) that the expropriation of land they own for the purposes of the Delta Act constitutes a disproportionate interference with their right to respect for their property.        Article 1 of Protocol No. 1 (P1-1), insofar as relevant, reads:        "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 section at issue, and subsequently, the realisation of this plan, entails the expropriation of land owned by the applicants. Since expropriation constitutes a "deprivation" of possessions, it falls within the second sentence of Article 1 of Protocol No. 1 (P1-1) and the Commission must therefore determine whether the facts of the case establish that the applicants' deprivation of their property is "in the public interest" and whether this 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 (cf. 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 applicants' property was provided for by law, namely the Delta Act. In a previous case the Commission has accepted that measures of expropriation under the Delta Act can reasonably be regarded as being in the public interest (No. 29840/96, Dec. 15.1.97, unpublished). The Commission finds no reason to take a different view in the present case.        However, according to the Convention organs' case-law, a measure depriving persons of their 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 (Eur. Court HR, James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, 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 observes that in the present case the Administrative Law Division examined whether there were reasonable alternatives to the adopted plan in which the applicant's land would not or to a lesser extent be affected. It concluded, however, that there were no such reasonable alternatives. As regards the alternative measures suggested by the applicants the Administrative Law Division, after having balanced the parties' arguments, accepted the Provincial Executive's finding that the disadvantages of the proposed construction of a parallel dike or a quay wall outweighed the pertaining limited advantage for the applicants' property.        The Commission further takes account of the fact that, pursuant to the applicable rules, the applicants will be compensated for their 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 at issue cannot be considered to be disproportionate to its legitimate purpose and, consequently, finds no appearance of a violation of Article 1 of Protocol No. 1 (P1-1).        It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    Referring to the judgment of 24 October 1996 of the Court of Justice of the European Communities in case C-72/95, the applicants complain under Article 6 (Art. 6) of the Convention of the unfairness of the proceedings in that, contrary to EC Council Directive 85/337 of 27 June 1985, the Administrative Law Division failed to order ex officio a Report on the environmental effects of the dike strengthening plan at issue.        Article 6 (Art. 6) of the Convention, insofar as relevant, provides as follows:        "1.    In the determination of his civil rights and obligations      ... everyone is entitled to a fair ... hearing ... by an      independent and impartial tribunal established by law...."        The Commission recalls at the outset that it is not competent to examine alleged errors of fact or law committed by national courts, except where it considers that such errors might have involved a possible violation of the rights and freedoms set forth in this Convention (cf. No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77). The Commission is, therefore, not competent to examine whether European Union Directives have been correctly applied by the Netherlands authorities.        The Commission notes that the Administrative Law Division handed down its decision in the present case on 2 October 1995 whereas the judgment of the Court of Justice of the European Communities the applicants refer to was handed down more than one year later, namely on 24 October 1996. However, as the Netherlands is a Member State of the European Union, it was open to the applicants in the proceedings before the Administrative Law Division to seek a preliminary ruling as to the compatibility of the procedure with the EC Council Directive 85/337 of 27 June 1985.        Although the Convention does not guarantee as such any right to have a case referred by a national court to the Court of Justice of the European Communities for a preliminary ruling under Article 177 of the EEC Treaty, a refusal of a request for such a referral may infringe the fairness of proceedings if it appeared to be arbitrary (cf. No. 20631/92, Dec. 12.5.93, D.R. 74, p. 274).        However, it does not appear that the applicants ever requested the Administrative Law Division to seek a preliminary ruling from the Court of Justice of the European Communities or that they have argued before the Administrative Law Division that the procedure fell short of requirements under European Union rules.        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 (cf. 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 all remedies have been tried does not of itself constitute compliance with the exhaustion of domestic remedies. It is also required that the applicant, at least in substance, has submitted to the competent authorities the complaint brought before the Commission (cf. No. 16278/90, Dec. 3.5.93, D.R. 74, p. 93; and 19601/92, Dec. 19.1.95, D.R. 80, p. 46).        In these circumstances, insofar as the applicants complain of the failure of the Administrative Law Division to order a Report on the environmental effects of the plan at issue, the Commission is of the opinion that by not having raised this point in the proceedings at issue and by not having sought to obtain clarification on this point by requesting a preliminary ruling the applicants have failed to exhaust domestic remedies within the meaning of Article 26 (Art. 26) of the Convention (cf. No. 13251/87, Dec. 6.3.91, D.R. 68, p. 137).        Finally, noting that the applicants have been given ample opportunity to state their case and to submit whatever they found relevant in the proceedings before the Administrative Law Division, the Commission further cannot find that these proceedings fell short of the requirements as to fairness of proceedings within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that this part of the application must also be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicants further complain under Article 6 (Art. 6) of the Convention that the Administrative Law Division of the Council of State cannot be regarded as impartial in view of the fact that the members of the Council of State carry out both advisory and judicial functions in that in their case one of the members of the Administrative Law Division had also advised in the adoption of the Delta Act.        The Commission recalls that the Convention does not provide for an actio popularis. It is only required to examine the applicants' complaints that they themselves were victims of a violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards the different functions of the Council of State (cf. No. 20560/94, Dec. 18.10.95, D.R. 83, p. 66).        The Commission, therefore, finds that the applicants can only claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention of a violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards the member of the Council of State who had advised in the adoption of the Delta Act and, subsequently, was one of the members of the Administrative Law Division who decided the applicants' appeal.        However, the Commission notes that the applicants neither tried to challenge this judge of the Administrative Law Division concerned nor raised this complaint under Article 6 para. 1 (Art. 6-1) of the Convention, which forms an integral part of Dutch law, in the proceedings before the Administrative Law Division. By failing to do so, they did not provide the Administrative Law Division with the opportunity to remedy the violation alleged against it. Consequently, the Commission finds that the applicants have not complied with the requirement of exhaustion of domestic remedies (cf. No. 29840/96, Dec. 15.1.97, unpublished).        It follows that this part of the application is inadmissible under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.          For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.        M.-T. SCHOEPFER                                J.-C. GEUS       Secretary                                    President to the Second Chamber                       of the Second Chamber