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You are here: BAILII >> Databases >> European Court of Human Rights >> OERLEMANS v. THE NETHERLANDS - 12565/86 [1991] ECHR 52 (27 November 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/52.html Cite as: [1991] ECHR 52, (1993) 15 EHRR 561, 15 EHRR 561

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In the Oerlemans case v. the Netherlands*,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention")** and the

relevant provisions of the Rules of Court***, as a Chamber composed

of the following judges:

Mr R. Ryssdal, President,

Mr Thór Vilhjálmsson,

Mr L.-E. Pettiti,

Mr R. Macdonald,

Mr A. Spielmann,

Mr J. De Meyer,

Mr S.K. Martens,

Mr I. Foighel,

Mr J.M. Morenilla,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 22 May and 23 October 1991,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 42/1990/233/299. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of the corresponding originating

applications to the Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came

into force on 1 January 1990.

*** The amendments to the Rules of Court which came into force on

1 April 1989 are applicable to this case.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 7 July 1990,

within the three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention. It originated

in an application (no. 12565/86) against the Netherlands lodged

with the Commission under Article 25 (art. 25) by

Mr Johannes Oerlemans, a Dutch national, on 5 September 1986.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby the Netherlands recognised

the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request was to obtain a decision as

to whether the facts of the case disclosed a breach by the

respondent State of its obligations under Article 6 para. 1

(art. 6-1) of the Convention.

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated

that he wished to take part in the proceedings and designated the

lawyer who would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Mr S.K. Martens, the elected judge of Dutch nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of

the Court (Rule 21 para. 3 (b)). On 27 August 1990, in the

presence of the Registrar, the President drew by lot the names of

the other seven members, namely Mr J. C. Dremona,

Mr Thór Vilhjálmsson, Mr L.-E. Pettiti, Mr R. Macdonald,

Mr A. Spielmann, Mr J. De Meyer and Mr J.M. Morenilla (Article 43

in fine of the Convention and Rule 21 para. 4) (art. 43).

Subsequently, Mr I. Foighel, substitute judge, replaced Mr Cremona,

who was unable to take part in the consideration of the case

(Rules 22 para. 1 and 24 para. 1).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent

of the Dutch Government ("the Government"), the Delegate of the

Commission and the lawyer for the applicant on the need for a

written procedure (Rule 37 para. 1). In accordance with the order

made in consequence, the registry received the applicant's memorial

on 17 December 1990 and the Government's memorial on

21 December 1990. In a letter of 18 January 1991 the Secretary to

the Commission informed the Registrar that the Delegate did not

wish to submit one.

5. Having consulted, through the Registrar, those who would be

appearing before the Court, the President directed on 11 April 1991

that the oral proceedings should open on 22 May 1991 (Rule 38).

6. The hearing took place in public in the Human Rights

Building, Strasbourg, on the appointed day. The Court had held a

preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr K. de Vey Mestdagh, Agent,

Mr J.L. de Wijkerslooth de Weerdesteijn, Counsel,

Mr Th. G.M. Simons, Adviser;

(b) for the Commission

Mr F. Martinez, Delegate;

(c) for the applicant

Mr C.E.A.M. van de Mortel, advocaat, Counsel.

The Court heard addresses by Mr de Vey Mestdagh and

Mr de Wijkerslooth de Weerdesteijn for the Government, Mr Martinez

for the Commission and Mr van de Mortel for the applicant, as well

as the Government's and the applicant's replies to its questions.

In the course of the hearing both the Government and the applicant

filed various documents with the Court.

AS TO THE FACTS

I. The particular circumstances of the case

7. Mr Johannes Oerlemans lives at Hogerheide, in the commune

of Woensdrecht (Netherlands).

Since 1968 he has been involved in cattle farming on a farm of

approximately 110 hectares which his father had operated before

him. The farmland comprises a parcel registered as "Commune

Woensdrecht, section G, no. 1836" (circa 64.5 hectares), of which

Mr Oerlemans is a co-owner together with the Stichting Het Brabants

Landschap, a foundation set up for the purpose of nature

preservation. He has a one sixth interest in the land. The above

parcel was situated outside the dyke along the eastern end of the

Oosterschelde, an arm of the North Sea.

8. The eastern part of the Oosterschelde has been shut off

from the sea by a series of dykes whose purpose was to strengthen

the defences against the sea rather than to reclaim land.

Before the completion of these dykes the area comprising the

parcel G, no. 1836 consisted partly of a complex of open water,

strips of mudland and siltland submerged either by each high tide

or by spring tides (slikken en schorren), intersected by inlets,

and partly of low dunes backed by cliffs). The open-water area was

a mixture of salt and fresh water. Due to these conditions, only

limited use could be made of the parcel.

The dyke enclosing the land comprising the parcel - called

"Markiezaatskade" after the local delta region known as the

"Markiezaatsmeer" - was completed in August 1983. Thereafter, with

the disappearance of the tides and the predominance of fresh water,

the land gradually became drier with changes in the flora and fauna

of the area and an explosive growth of thistles.

At the present time the Markiezaatsmeer, an area composed of some

700 hectares land and 800 hectares water, is partly a "protected

natural site" in the sense of section 7 of the Nature Protection

Act 1967 ("the 1967 Act" - (Natuurbeschermingswet) and partly a

"national nature preserve" in the sense of section 21 of that Act

(see paragraphs 15-19 below). The Stichting Het Brabants Landschap

acts as a supervisor for the area.

A. The designation order

9. Before the Markiezaatskade was completed the Minister of

Culture, Recreation and Public Works designated the area which

includes the parcel as a "protected natural site" by an order of

20 September 1982 made pursuant to section 7 of the 1967 Act.

An explanatory note was appended to the order. Points 2 and 3 of

the note contained a comprehensive description of the particular

scientific and environmental importance of the area as it then was.

Point 4 described the developments to be expected from the

completion of the dykes, including the gradual cessation of tidal

effects, the transformation into a freshwater zone, the drying out

of the land and important changes in the existing biotope.

Point 6 of the note specified that "current long-established use of

land could continue as usual" but that "certain actions should,

however, be subject to authorisation"; among these were "the use of

methods intended or likely to alter or intensify the existing use

of land", "removing, destroying or degrading the soil (...),

filling in, levelling, clearing or ploughing the land" and "the use

of herbicides or substances to promote or inhibit growth".

B. The applicant's appeal to the Crown

10. On 30 October 1982 the applicant appealed against the

designation order to the Crown under section 19 of the 1967 Act

(see paragraph 18 below).

He pointed out that he used parts of the designated area including

parcel G, no. 1836 for pasturing cattle and alleged that the order

would turn those parts into wasteland. He submitted that this

would not be in the interests of nature conservation and would,

moreover, entail considerable economic losses. Further, the area's

protection as a natural site was already sufficiently secured by

the West Brabant regional development plan and the Woensdrecht

municipal land-use plan, both of which respected the rights of

farmers. He concluded that the reasons given for the order were

both insufficient and superfluous and that it should be annulled.

11. The appeal was heard before the Administrative Disputes

Division (Afdeling Geschillen van Bestuur) of the Council of State

(Raad van State) (see paragraphs 36 and 37 below) on

8 November 1985.

In accordance with the advisory opinion of that Division the

applicant's appeal was dismissed by Royal Decree of 14 March 1986,

no. 38 (Administrative Decisions (Administratiefrechtelijke

Beslissingen) 1986, 484).

The Crown first held that the area met the requirements of

section 1 (b) of the 1967 Act. It then examined and rejected the

objection that the requirement of section 7 of that Act was not

fulfilled in that the protection of the area was already secured in

another way. As to the applicant's fear that his user of parcel G,

no. 1836 for pasturing cattle would be unduly restricted, the Crown

held that at the hearing it had been established that the manner in

which he had exploited the parcel did not impair the essential

characteristics of the area so that the existing use could be

continued without an authorisation being required. The applicant's

fear that the site would turn into wasteland was considered

unfounded because it was possible to use the land so as to prevent

that. Finally the Crown held that the interests of protecting the

area as a "protected natural site" under the Nature Protection Act

outweighed the interests of the applicant.

C. The applicant's subsequent appeals arising out of

measures taken under the Nature Protection Act

12. In 1987 the applicant had some 15 hectares of parcel G,

no. 1836 levelled and some inlets filled in. When this was

discovered, the Minister of Agriculture and Fisheries on

2 July 1987 issued an order under section 29 of the 1967 Act to

cease work. The applicant appealed against this order to the

Litigation Division (Afdeling Rechtspraak) of the Council of State

(see paragraph 27 below) and requested an interim injunction from

the President of that Division. Following the dismissal of that

request on 18 August 1987, the Minister, by order of

23 February 1988, specified the steps to be taken by the applicant

to restore the land to its original state. The Minister stated

that, if these measures were not carried out by the applicant

before 1 September 1988, they would be done at his expense. The

applicant appealed against this order to the Litigation Division

alleging that he had taken the impugned measures in order to

destroy the thistles proliferating on parcel G, no. 1836, as he had

been ordered to do by the municipal authorities of the commune of

Woensdrecht. The Litigation Division joined the appeals and

dismissed them on 26 November 1990.

13. On 8 March 1988 the Minister of Agriculture and Fisheries

refused to grant the applicant authorisation to use mechanical

means for destroying thistles on part of the land.

The applicant appealed to the Crown against this decision. In

accordance with section 1 para. 1 of the Interim Act on Crown

Appeals (Tijdelijke wet Kroongeschillen), the appeal was referred

for decision to the Administrative Disputes Division of the Council

of State. The appeal was dismissed on 15 September 1989.

14. On 22 January 1988 the applicant claimed compensation under

section 18 of the 1967 Act. He claimed that he had suffered damage

because of the manner in which the natural site was managed. As a

result thistles had become so abundant that all other growth had

ceased and the use of parcel G, no. 1836 for pasture had become

impossible. He based his claim for Hfl. 200,000 on the allegation

that as from 1984 he had had the intention to use that parcel for

intensive pasture, increasing the number of cattle to two hundred.

The Minister dismissed the claim on 16 May 1989, pointing out,

inter alia, that the applicant could not reasonably have expected

that after the closure of the Markiezaatskade he would have been

able to use the parcel more intensively than before since he must

have known long before that the area would be designated as a

protected natural site.

On 10 July 1989 the applicant appealed against this decision to the

Crown. At the date of the hearing before the Court the appeal was

still pending before the Administrative Disputes Division of the

Council of State.

II. Relevant domestic law and practice

A. The Nature Protection Act of 15 November 1967

15. Section 1 (b) of the 1967 Act defines a natural site as

composed of grounds and waters which are of general interest as

regards their scenic beauty or scientific value.

Under section 7 of the Act the Minister of Culture, Recreation and

Public Works may, in agreement with the Minister for Planning and

Development (ruimtelijke ordening), designate as a protected

natural site (beschermd natuurmonument) a natural site which is not

protected in any other way. Designation takes place by means of a

reasoned decision which must specify the land registry parcels

affected by the designation.

16. Section 12 (1) of the Act states that it is forbidden to

carry out actions detrimental to the scenic beauty or scientific

interest of a protected natural site or which might disfigure the

site, without authorisation by the Minister or in breach of the

terms of such an authorisation. Section 12 (2) specifies that the

actions envisaged by section 12 (1) are those which affect the

essential characteristics of the protected natural site as set out

in the designation order.

17. Section 18 of the Act allows for the possibility of

obtaining compensation for damage suffered as a result of a

designation order, refusal of authorisation or the terms attached

to an authorisation.

18. Section 19 of the Act limits appeal to the Crown by

interested parties to: a designation order under section 7, a

repeal of such an order under section 11, decisions as to

authorisations made under section 13 and decisions as to

compensation for damage under section 18.

19. Under section 21 the Minister of Culture, Recreation and

Public Works may designate as a "national nature preserve"

(staatsnatuurmonument) a natural site which belongs to the State.

20. Sections 26 to 29 of the Act provide for various penalties

or coercive measures in respect of actions contrary to the

provisions of the Act.

B. General principles and practice as to remedies against

the administration under Netherlands law and the

consequences of the Benthem judgment

1. The competence of the civil courts in claims

against the administration

21. Under Netherlands law the civil courts have traditionally

had competence to grant relief against the administration if and in

so far as no other relief is available.

This competence is based on the Constitution and on the Act on the

Organisation of the Judiciary of 1827 (Wet op de rechterlijke

organisatie (RO)).

Under subsection 1 of section 112 of the Constitution it is for the

judiciary to adjudicate on "disputes on civil rights and claims".

The "judiciary" responsible for the administration of justice in

civil cases is composed of the Supreme Court, the courts of appeal,

the district and cantonal courts.

Section 2 RO provides (as far as relevant):

"The judiciary is exclusively charged to take cognizance of and to

decide upon all disputes on property or rights derived from

property, on claims or civil rights ..."

22. The leading precedents as to the interpretation of section

2 are the Supreme Court's judgments of 31 December 1915 and

of 18 August 1944.

In its judgment of 31 December 1915 (Nederlandse Jurisprudentie

(NJ) 1916, p. 407) the Supreme Court held that:

"under section 2 RO, the exclusive competence of the judiciary

depends on the object of the dispute, that is the right for which

the plaintiff claims protection, and not on the nature of the right

on which the defendant's argument is based".

The case which was decided by the Supreme Court in its judgment of

18 August 1944 (NJ 1944/45, no. 598) concerned an action brought by

a commune against a province based on the latter's refusal to

deliver electricity to the commune. The commune alleged in the

first place that it was entitled to delivery under a

quasi-contractual obligation incumbent on the province and in the

second place that the refusal constituted a tort since it was

contrary to a public law obligation. The commune sought both a

declaratory judgment that the refusal was unlawful and a judicial

order to deliver.

As to the first ground the Supreme Court, reiterating its decision

of 1915, held inter alia that:

"for the question whether there is a claim within the

meaning of that section [section 2 RO] it is immaterial

whether the obligation is governed by public or by civil law

..."

On the second ground the Supreme Court noted that these claims were

based on section 1401 of the Civil Code and held:

"that the protection afforded by this section is not

confined only to the claim for damages to which it

explicitly refers, but also applies to preventive measures

where there exists a serious threat that injustice is on

the point of being done."

It concluded that as far as the latter ground was concerned the

"object of the dispute" was an obligation under section 1401 of the

Civil Code and that, accordingly, the case concerned a civil right

within the meaning of section 2 RO, it being irrelevant for the

competence of the civil courts whether or not the obligation to

deliver the electricity was of a public law nature.

23. The above case-law is understood to imply that where a

citizen bases his claims against the administration on the

allegation that the latter has committed a tort against him, the

civil courts are, in principle, competent to take cognizance of the

case.

24. Finally it should be noted that where the civil courts are

competent the President of the District Court has competence in

interlocutory proceedings (kort geding - see, for the role of these

proceedings in the Netherlands, the Keus judgment of

25 October 1990, Series A no. 185, p. 64, para. 17).

a. Judicial review by the civil courts of administrative

acts

25. Under section 120 of the Constitution, as construed in the

constant case-law of the Supreme Court, the judiciary is not

permitted to examine the lawfulness of Acts of Parliament. The

courts can, however, review the lawfulness of subordinate

legislation and of all other acts of the administration including

the lawfulness of decisions which have a general character (such as

regulations, plans or, directives).

A decision of the administration is unlawful (onrechtmatig)

and constitutes a tort within the meaning of section 1401 of the

Civil Code when it violates a right of the plaintiff or is contrary

to a rule of international or domestic law which seeks to protect

the plaintiff's interests, or to general principles of proper

administration which, inter alia, forbid abuse of power and

encompass the principles of proportionality and reasoned decisions

as well as requiring that all relevant considerations be taken into

account in reaching a decision.

b. Remedies under section 1401 of the Civil Code

26. Although section 1401 of the Civil Code states that a

victim of a tort is entitled to damages, his rights under this

section are wider. He may ask for a declaratory judgment and for

an injunction by which the defendant is either forbidden or ordered

to do something (see also paragraph 21 above). That means that a

citizen who claims that a decision of the administration

constitutes a tort may demand, if need be in interlocutory

proceedings, that the court or its President restrains the

administration, for example, from executing or having executed its

impugned decision (see Supreme Court judgment of 1 July 1983,

NJ 1984, no. 360). In this sense the courts, although they lack

competence to annul the decisions of administrative authorities,

may, as the Supreme Court explained in its judgment of 1 July 1983,

make such a decision "inoperative".

Although claims for damages against the administration are subject

to a limitation period of five years under a special Act of

31 October 1924, the period of limitation for other forms of relief

against the administration based on section 1401 of the Civil Code

is the normal thirty year period provided for in section 2004 of

that code.

2. Further forms of relief against the administration:

appeal to an administrative tribunal or to a higher

administrative authority ("administrative appeal")

27. Under Netherlands law there are two other forms of relief

against the administration.

a. Administrative Tribunals

28. In the first place, it may be possible to appeal to an

administrative tribunal with competence to make a decision in the

matter. This is, as a general rule, possible in areas such as

fiscal law, social security law, and the law concerning civil

servants: in these fields cases are dealt with by either special

administrative tribunals or special sections of the civil courts.

Since 1 July 1976, when the Act concerning administrative

jurisdiction as to decisions of the administration (Wet

administratieve rechtspraak overheidsbeschikkingen (AROB-Act))

entered into force, there is, moreover, a more general

administrative tribunal, the Litigation Division (Afdeling

Rechtspraak) of the Council of State (Raad van State), which is

competent only as regards administrative decisions. It is since

the AROB-Act that it has become possible to appeal to the

Litigation Division from those orders made under the Nature

Protection Act against which under section 19 there is no appeal to

the Crown (see paragraphs 12, 18 and 20 above).

b. Appeals to a higher administrative authority

29. In the second place, under Netherlands law as it stood

before the enactment of the Interim Act on Crown Appeals (see

paragraph 40 below) there was a special form of relief against the

administration, referred to as an "administrative appeal". Under

this procedure the aggrieved citizen was given the right to appeal

from the decision of an administrative authority to a higher

administrative authority which, if the appeal was allowed, had

competence to take the proper decision itself. The appeal to the

Crown under section 19 of the 1967 Act from the designation order

of the Minister (see paragraph 18 above) is an example of this type

of relief. A further example was the administrative appeal which

was at stake in the Supreme Court's judgments of 22 February 1957

(NJ 1957, no. 310) and 26 March 1976 (NJ 1976, no 375): the appeal

from a decision by the municipal executive to the municipal council

(see paragraph 30 in fine below).

3. The doctrine of the competence of civil courts where an

"administrative appeal" is possible

30. In its judgment of 9 March 1938 (NJ 1938, no. 1000), the

Supreme Court examined whether the lower court was correct in

holding that it should not examine the lawfulness of a municipal

development plan. The Supreme Court recalled that an appeal lies

to the Crown after such a plan has been approved first by the

municipal council and then by the provincial council. It added

that in such an appeal the Administrative Division of the Council

of State gives an advisory opinion and thus "an examination of the

case in adversary proceedings is secured".

The Court concluded:

"that the law, by making available the above-described

administrative procedure, offers such guarantees to all

those interested in the substance of the municipal development

plan, that it is to be assumed that a plan which

has been formally drawn up in accordance with the law is

final for everybody ..., so that an action before the civil courts,

based on the allegation that the plan is null and void because the

substance is contrary to the law, is excluded."

In its above-mentioned judgment of 22 February 1957 (NJ 1957,

no. 310) the Supreme Court took the opposite view with regard to

the administrative appeal then under examination:

"... because the appeal to the municipal council which is

possible under the law does not offer sufficient guarantees

for it to be regarded as a special procedure which excludes

the possibility of seeking relief before the civil courts

..."

The Supreme Court reiterated this opinion in its judgment of

26 March 1976 (NJ 1976, no. 375). There the court held that:

"if the applicant for a building licence is of the opinion

that the authorities by refusing his application have

violated section 48 of the Housing Act, he may under

section 1401 of the Civil Code claim damages for the harm he has

suffered. The court in assessing that claim must examine

the lawfulness of the decision refusing the application

because the procedure to seek relief from such a decision

does not offer sufficient guarantees for it to be

considered a special procedure which excludes examination on

the basis of section 1401 of the Civil Code."

31. The above-mentioned judgments form part of an extensive

case-law to the effect that where an administrative appeal offers

sufficient guarantees as to a fair procedure, the civil courts,

although remaining in principle competent, should refrain from

examining the lawfulness of the administrative decision against

which the appeal lies. Examination of the latter question is not,

however, excluded if the administrative appeal does not offer such

guarantees.

4. Consequences of Article 6 para. 1 (art. 6-1) of the Convention

on the doctrine of the competence of civil courts where an

"administrative appeal" is possible

32. In 1979, in a much noted article by G.J. Wiarda (Non sine

causa, Opstellen aangeboden aan Prof. Mr G.J. Scholten, pp. 459 et

seq.) it was submitted that the Crown did not meet the requirements

of Article 6 para. 1 (art. 6-1) of the Convention. The author

warned that there might be many cases of appeal to the Crown where

that provision applied and argued that the appeal to the Crown

procedure should be revised. The Court's judgment in the Benthem

case (the judgment of 23 October 1985, Series A no. 97) confirmed

the correctness of these views.

33. Prior to the Benthem judgment several authorities - among

whom a member of the Supreme Court - had already stated that, if

the above proposition was right, the consequence would be that

(1) the appeal to the Crown could no longer be said to be an

administrative appeal which "offers sufficient guarantees" as to a

fair procedure and (2) that, accordingly, under the doctrine

described in paragraphs 30-31 above, the civil courts would be free

to examine the lawfulness of any decision of the administration

coming within the province of Article 6 (art. 6) of the Convention

against which appeal to the Crown lies (see, inter alia: B.W.N. de

Waard, Tijdschrift voor Openbaar Bestuur, 1980, pp. 551 et seq.;

A.R. Bloembergen, Bouwrecht, 1981, p. 284; E.M.H. Hirsch Ballin,

Preadvies voor de Nederlandse Juristenvereniging, HNJV 1983, I.2.,

p. 48; J.A.E. van der Does & J.L. de Wijkerslooth, Onrechtmatige

Overheidsdaad (1985), p. 33).

After the Benthem judgment this view was generally accepted among

the many learned writers who examined the consequences of that

judgment for the Netherlands system of remedies against the

administration (see, inter alia, J.M. Polak, Nederlands

Juristenblad 1985, p. 1197; P.J.J. van Buren, ibid., p. 1301;

B.F. de Jong, Nederlands Juristenblad 1986, p. 813; "Kroonberoep en

Art. 6 ECRM" (1986), pp. 29, 63, 70 and 71; E.M.H. Hirsch Ballin,

in his note on the Benthem judgment, Administratiefrechtelijke

Beslissingen 1986, no. 1; De Haan and Drupsteen, Bestuursrecht in

de sociale rechtsstaat, II, p. 289). The only question which

divided the legal profession was whether or not it would be

necessary to appeal to the Crown before taking the case to a civil

court.

The above view concerning the competence of the civil courts was

also accepted by the Arnhem Court of Appeal in a judgment of

17 February 1986 in interlocutory proceedings (Kort Geding 1986,

no. 138).

34. The Supreme Court decided this issue for the first time in

its judgment of 12 December 1986 (NJ 1987, no. 381). The case

concerned a decision taken by the municipal authorities under the

Nuisance Act 1952 (Hinderwet) to close down the plaintiff's

business. Under that Act the plaintiff could have appealed to the

Crown ("administrative appeal") and in that context he could have

requested interim mesures from the President of the Administrative

Disputes Division of the Council of State. Instead, however, he

instituted interlocutory proceedings (kort geding) before the

President of a civil court. Both the President and the Court of

Appeal held that the plaintiff should have availed himself of the

appeal procedure to the Crown and refused to entertain the action.

In conformity with the advisory opinion of the acting Procureur

Generaal the Supreme Court dismissed the appeal.

The Court first recalled that:

"the fact that, under section 2 RO civil courts are competent to

take cognizance of an action based on section 1401 of the Civil

Code, does not prevent a refusal to entertain the action based on,

to put it briefly, the existence of another remedy which offers

sufficient guarantees."

The Court then held that there actually was such a procedure

because the plaintiff could have addressed himself to the President

of the Administrative Disputes Division of the Council of State;

accordingly, the President of the civil court was not the

appropriate judge in the matter.

As appears from the opinion of Mr Bloembergen, a Supreme Court

judge acting as Procureur Generaal, this was in conformity with the

doctrine referred to in paragraphs 30 and 31 above. He had,

however, also discussed the question whether that doctrine could

still be upheld after the Benthem judgment which he considered

ought to be taken into account. He concluded that "also after the

Benthem judgment in principle the citizen will have to appeal to

the Crown first; thereafter he can address himself to the civil

courts" (NJ 1987, no. 1375, para. 5.3).

The Supreme Court considered that the Benthem judgment was

immaterial because the case concerned interlocutory proceedings

which did not involve a "determination" of the plaintiff's civil

rights. It added:

"It is true, however, that it would be difficult to accept the

aforementioned exclusion of the President as kort geding judge if

it were open to an interested party in cases concerning a

determination of civil rights within the meaning of

Article 6 para. 1 (art. 6-1) of the Convention to take the case as

to the merits directly to the civil courts. The system in force at

the moment should, in order to avoid procedural complications,

however, be understood as enabling the interested party to bring

his case to the civil courts only after a decision on his appeal to

the Crown."

In his annotation to the judgment Professor Scheltema pointed out

that the conclusions drawn by the Supreme Court were to be expected

in the light of its case-law:

"the appeal to the Crown is no longer to be considered as

offering sufficient guarantees; consequently, until the

Interim Act on Crown Appeals has made the Administrative

Division of the Council of State a tribunal in most cases,

there is a role for the civil courts."

35. The above interpretation was endorsed by a judgment of the

Supreme Court of 6 February 1987 (NJ 1988, no. 926). In that case

the plaintiff (Aral) had asked for a new licence under the Nuisance

Act 1952 in view of plans to extend and modify a filling station.

In anticipation of the granting of this licence the company had in

1976 - with the full knowledge and approval of the head of the

municipal "Nuisance-Act- department" - reconstructed its

installations in the station. However, in 1979 the muncipal

authorities refused to grant the licence requested and at the same

time closed down all of the company's installations. Upon appeal

the Crown annulled the decisions of the municipal authorities and

issued the requested licence. Aral thereupon instituted a claim

for damages in a civil court. The Court of Appeal held that the

commune had committed a tort and ordered it to pay damages. The

Supreme Court dismissed the commune's appeal.

In its appeal the commune complained that the Court of Appeal had

considered itself bound by the decision of the Crown. The Supreme

Court recalled the doctrine referred to above (in paragraphs 30

and 31). It held that the appeal to the Crown was, as far as the

domestic law of the Netherlands was concerned, to be considered as

an administrative procedure which offered sufficient guarantees.

Consequently, in principle, the civil courts were bound by the

Crown's decision. However, the Supreme Court added:

"In view of the judgment of the European Court of Human

Rights of 23 October 1985, NJ 1986, 102 (the Benthem case)

an exception to that principle must, however, be made if

'the licencee or the person who exploits the installations'

pleads that the Crown cannot be deemed to be a 'tribunal'

which meets the requirements of Article 6 para. 1 (art. 6-1) of the

European Convention on Human Rights: in that case the

aforementioned principle is not to be applied and it is

the duty of the civil courts also to deal fully and

independently with the issue already decided by the Crown.

It has, however, not been established that Aral has made

such a plea based on the above-mentioned treaty provision

and the commune cannot make such a plea."

This ruling was further confirmed by the Supreme Court's judgment

of 28 April 1989 (NJ 1990, no. 213).

C. Provisions relating to procedure in appeals to the Crown

(Kroonberoep)

1. Before the entry into force of the Act of

18 June 1987

36. Under the Constitution the King or Queen is inviolable.

The Sovereign takes decisions on the responsibility of a Minister,

who must countersign them.

In ordinary language, the expression "the Crown" means the

Sovereign and Minister or Ministers exercising their

decision-making powers.

37. The Crown rules on administrative disputes brought before

it on appeal. It decides only after the Administrative Disputes

Division of the Raad van State has investigated the case and

prepared a draft decision (section 26 para. 1 of the Act on the

Raad van State).

The members of the Division, whose number is fixed by the Crown but

must be at least five including the President, are chosen by the

Crown from among the members of the Raad van State and on its

recommendation. The Administrative Disputes Division should not be

confused with the Litigation Division which itself examines cases

within its jurisdiction.

38. The President of the Division calls for the necessary

official reports and informs the Minister concerned accordingly

(section 32 (c) para. 1). The parties may submit such documentary

evidence as they consider necessary (section 34). A public hearing

gives them an opportunity to argue their cases if they so wish

(section 45). They have the right, as does the President of the

Division, to call witnesses and experts, put questions to them and

comment on any evidence given (section 41 para. 4, section 46

paras. 5 and 6 and section 48).

The Division deliberates in camera (section 51). It can carry out

an inspection of the premises (section 52), obtain additional

official reports, which the parties are able to comment on

(section 54), and hold further hearings (section 55).

It then draws up a draft Royal Decree which it submits to the Crown

together with its opinion (section 56). The relevant Minister has

six months to inform the Division of any objections he may have and

ask it to reconsider the case (section 57).

39. After receiving the Division's opinion or additional

opinion the Crown issues a Royal Decree within six months. This

time-limit may be extended by three months (section 58 para. 1).

Once it has expired the Crown must follow the Division's opinion

(section 58 (a)); prior thereto it may depart from the opinion, but

only if the Minister concerned has first consulted the Minister of

Justice or, if the latter is himself concerned, the Prime Minister

(section 57 and section 58 para. 2 (a) and (b)). In practice this

happens only very rarely.

The Crown's decision may be based on considerations of law or

expediency; subject to the jurisdiction of the civil court (see

paragraphs 32-35 above) no appeal may be brought against it.

The reasoned Decree is sent immediately to the parties and the

Division, and is then made available to the public for one month at

the Secretariat of the Raad van State (section 59 para. 2). If it

goes against the Division's opinion it is published in the Official

Journal (Staatsblad) together with the Minister's report, which

contains the Division's draft and the Minister's correspondence

with the Division and with the Minister of Justice or Prime

Minister (section 58 para. 3).

2. The Interim Act on Crown Appeals

40. The Interim Act on Crown Appeals was passed on 18 June 1987

in order to give effect to the Benthem judgment. The Act came into

force on 1 January 1988 and will expire five years after that date

(section 11). Following the expiry of the Act it is envisaged to

create within the Council of State an administrative division with

jurisdiction to decide any administrative appeal and to introduce

administrative chambers in regional courts.

Under section 1 para. 1 of the Act the Administrative Disputes

Division of the Council of State is to decide all disputes which

formerly were to be decided by the Crown. Section 1 para. 2,

however, provides, inter alia, that this amendment shall not apply

to "decisions of a general character".

The Administrative Disputes Division has held that a designation

order made under section 7 of the Nature Protection Act is not a

"decision of a general character" within the meaning of section 1

para. 2 of the 1987 Act. Consequently an appeal against a section

7 designation order is at present decided by the Administrative

Disputes Division (decision of 31 May 1988 in the case of the

"Limitische Heide" (unpublished); decision of 26 October 1988 in

the case of the "Tafelberg-en Blaricummerheide

(Administratiefrechtelijke Beslissingen 1989, no. 41; Milieu en

Recht 1989, p. 274); decision of 2 November 1988 in the case of the

"Busummer- en Westerheide" - unpublished). In its decision of

26 October 1988 the Minister's order was quashed; in the other two

cases the appeal was dismissed.

PROCEEDINGS BEFORE THE COMMISSION

41. Mr Oerlemans lodged his application with the Commission on

24 November 1986 (no. 12565/86). He alleged violations of

Article 6 para. 1 (art. 6-1) of the Convention and Article 1 of

Protocol No. 1 (P1-1).

42. On 10 July 1989 the Commission declared the applicant's

complaint under Article 6 para. 1 (art. 6-1) admissible and

rejected the remainder of the application.

In its report adopted on 3 April 1990 (Article 31 of the

Convention) (art. 31), the Commission expressed the opinion that

there had been a violation of Article 6 para. 1 (art. 6-1) (by

fifteen votes to two). The full text of the Commission's opinion

and the dissenting opinion contained in the report is reproduced as

an annex to this judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment (volume 219

of Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

43. At the hearing before the Court on 22 May 1991 the

Government submitted that "Article 6 para. 1 (art. 6-1) of the

Convention has not been violated in this case".

AS TO THE LAW

44. The applicant complained that he was unable under

Netherlands law to challenge the designation order affecting his

property before a court. He invoked Article 6 para. 1 (art. 6-1)

of the Convention according to which:

"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 Commission upheld his complaint.

A. Applicability of Article 6 para. 1 (art. 6-1)

1. Existence of a dispute ("contestation") over a

right"

45. The Government submitted that Article 6 para. 1 (art. 6-1)

was not applicable in this case.

Referring to the case-law of the Court they did not accept that

there was a dispute of a genuine or serious nature because the

applicant was not hindered in using his property for grazing cattle

in the same manner as he did before the designation order was made.

Indeed the explanatory notes of the order explicitly stated that

long-standing use of agricultural land could continue normally. It

was only after the construction of the dykes that the useful value

of the land became potentially larger. Accordingly, it could not

be argued that the outcome of the dispute was decisive for the

applicant's rights, which it only affected remotely or tenuously.

In the Government's submission such a dispute would only arise,

inter alia, when an authorisation was refused or when compensation

was denied.

46. The Court is not persuaded by this reasoning. In the first

place, there existed a dispute concerning the lawfulness of the

designation order (see paragraphs 10 and 11 above). In the second

place, the legal consequences of the designation order were that

the applicant was no longer free to cultivate his land as he saw

fit and was required to seek an authorisation from the Minister for

various purposes, for example if he sought to alter or intensify

existing use or carry out certain farming activities such as

clearing or ploughing the land or using herbicides (see paragraph 9

above). The extent to which he was restricted in his use of the

land can be seen from the subsequent disputes that he had with the

Minister concerning work that he had carried out or proposed to

carry out (see paragraphs 12-14 above).

There thus existed a serious dispute in the present case concerning

the resultant restrictions on the applicant's use of his property

(see, as the most recent authorities in this area, the Skärby

judgment of 28 June 1990, Series A no. 180-B, p. 36, para. 27, and

the Fredin judgment of 18 February 1991, Series A no. 192,

p. 20, para. 63). It makes no difference to this conclusion that

the potential of the land was enhanced by the completion of the

dyke in 1983 (see paragraph 8 above)

2. The "civil" character of the right in issue

47. The Government also pleaded, in the alternative, that

there was no right of a "civil" character at issue.

48. However, in the light of the Court's case-law there can be

no doubt that the property right in question was "civil" in nature

within the meaning of Article 6 para. 1 (art. 6-1) (see, inter

alia, the above-mentioned Skärby and Fredin judgments, Series A

no. 180-B, p. 37, para. 29, and Series A no. 192, p. 20, para. 63).

49. In sum, Article 6 para. 1 (art. 6-1) applies to the present

case.

B. Compliance with Article 6 para. 1 (art. 6-1)

50. In the applicant's submission he was not able to challenge

the lawfulness of the designation order before a court, the appeal

procedure to the Crown not involving an independent and impartial

tribunal within the meaning of Article 6 para. 1 (art. 6-1). He

did not consider that an action before the civil courts was open to

him.

51. The Government, on the other hand, contended that following

the Court's Benthem judgment of 23 October 1985 (Series A no. 97)

the administrative appeal to the Crown could no longer be

considered to offer sufficient guarantees of a fair procedure as

required by Article 6 para. 1 (art. 6-1). Consequently, in the

light of existing principles of Netherlands law it would have been

open to the applicant, following the Royal Decree of 14 March 1986

in his case, to challenge the lawfulness of the designation order

before a civil court.

52. The Commission considered the existence of this remedy

before the civil courts to be debatable. In any event, the Supreme

Court decision of 12 December 1986 which acknowledged the remedy

for the first time was nine months after the Royal Decree in the

applicant's case (see paragraph 34 above).

53. The Court notes that under Netherlands law it is clearly

established, in extensive case-law which predates the present

dispute, that where an administrative appeal to a higher authority

is not considered to offer sufficient guarantees as to a fair

procedure it is possible to have recourse to the civil courts for

a full review of the lawfulness of the administrative decision

(see paragraphs 25-26 and 30-31 above). The fact that the dispute

is of a public law nature is irrelevant in this context

(see paragraph 22 above).

54. Following the Benthem judgment it was the view of many

authorities on Netherlands law that, as a direct consequence of the

above doctrine, the civil courts would thus be able to examine the

lawfulness of any administrative decision coming within the scope

of Article 6 (art. 6) against which an appeal lay to the Crown

(see paragraph 33 above). Indeed this opinion had already been

expressed by several commentators in writings which preceded the

Benthem judgment (ibid.). The only difference of opinion concerned

the question of whether it was necessary to appeal first to the

Crown before going to the civil court (ibid.).

55. The Supreme Court upheld this view concerning the

competence of the civil courts in a decision of 12 December 1986

and confirmed the principle in several subsequent judgments

(see paragraphs 34-35 above).

56. Under Netherlands law a civil court can carry out a full

examination of all acts of the administration in the light, inter

alia, of principles of administrative law, can award damages for

torts committed and can grant injunctions against the

administration (see paragraphs 25-26 above).

57. The Court concludes that, under well-established principles

of Netherlands law which existed at the time of the Royal Decree in

the present case (14 March 1986), the applicant could have

submitted his dispute to the civil courts for examination.

C. Conclusion

58. Accordingly, there has been no violation of

Article 6 para. 1 (art. 6-1).

FOR THESE REASONS, THE COURT

Holds unanimously that there has been no violation of

Article 6 para. 1 (art. 6-1) of the Convention.

Done in English and French, and delivered at a public hearing in

the Human Rights Building, Strasbourg, on 27 November 1991.

Rolv RYSSDAL

President

Marc-André EISSEN

Registrar