ITEMID: 001-78946
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF HERBST v. GERMANY
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1 as regards the length of the compensation proceedings;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicant was born in 1944 and lives in Neckargemünd in Germany.
5. From 1972 to 1979 the applicant studied law at the University of Heidelberg.
6. From April to May 1979 he wrote a paper (sechs-Wochen-Hausarbeit) on public building law, which formed part of the first state examination.
7. In November 1979 the applicant wrote three further examination papers.
8. On 6 December 1979 the Lower Saxony Examination Office (Justizprüfungsamt) informed the applicant that his paper on public building law had been given the mark “unsatisfactory” (mangelhaft, 1 point).
9. On 31 January 1980 that same office informed the applicant that his other public law paper had been marked “insufficient” (ungenügend, 0 points).
10. As a reaction to these poor grades - which could cause failure in the examinations - the applicant developed a severe depression which prevented him from further pursuing the examination proceedings.
11. On 25 April 1980 the applicant lodged a motion with the Hanover Administrative Court (Verwaltungsgericht) with the aim of obtaining a re-evaluation of the two examination papers.
12. On 27 February 1986 the Hanover Administrative Court rejected the motion as being inadmissible.
13. The applicant's appeal to the Lüneburg Administrative Court of Appeal (Oberverwaltungsgericht) remained unsuccessful.
14. On 9 February 1987 the Federal Administrative Court refused to grant the applicant leave to appeal on points of law.
15. On 2 March 1988 the Federal Constitutional Court refused to accept the applicant's constitutional complaint for adjudication.
16. On 30 November 1982 the applicant lodged a compensation claim against the State of Lower Saxony with the Hanover Regional Court (Landgericht).
17. On 5 January 1983 the Regional Court, upon the applicant's request and with the defendant's consent, decided to suspend proceedings pending the proceedings before the administrative courts.
18. On 14 December 1987 the Regional Court decided not to schedule a hearing before the Federal Constitutional Court had given its decision on the applicant's complaint against the administrative courts' judgments.
19. On 20 September 1988 the applicant informed the Regional Court that he had lodged an application against the Federal Constitutional Court's decision with the European Commission for Human Rights and requested that the proceedings remain suspended.
20. On 21 December 1988 the Regional Court refused to further suspend the proceedings.
21. On 8 March 1989 the Celle Court of Appeal rejected the applicant's complaint against that decision.
22. On 17 March 1989 the applicant, once again, requested to suspend the proceedings.
23. By letter to the Regional Court of 7 February 1990 the applicant requested that the proceedings should be continued. Referring to expert opinions submitted by fifteen legal scholars, he claimed that the evaluations of his two examination papers were incorrect. Alleging that the poor grades had caused his psychological illness and had thus prevented him from completing his studies and from pursuing a university career, he claimed 463,300 Deutschmarks (DEM) as damages for lost income, a monthly pension and further compensation for immaterial damage suffered by him.
24. On 8 June 1990 the Regional Court refused to grant the applicant legal aid.
25. On 19 March 1991 the Celle Court of Appeal rejected the applicant's complaint.
26. On 16 July 1991 the Federal Constitutional Court (Bundesverfassungsgericht), on the applicant's complaint, quashed this decision and remitted the case to the Court of Appeal.
27. On 25 May 1992 the Celle Court of Appeal partially granted the applicant legal aid and rejected the applicant's further request.
28. On 10 September 1992 the applicant filed a constitutional complaint against the Celle Court of Appeal's decision.
29. On 2 May 1994 the applicant requested the Hanover Regional Court to continue the proceedings. He further informed the Regional Court that his counsel had relinquished her mandate.
30. On 17 January 1995 the Regional Court, by way of legal aid, appointed new counsel for the applicant.
31. On 27 January 1995 the Regional Court scheduled a hearing for 18 May 1995, which was postponed twice, once to allow the applicant further written submissions and once because the applicant had lodged a motion for bias against the presiding judge of the Regional Court.
32. On 8 February 1995 the Federal Constitutional Court refused to accept the applicant's constitutional complaint for adjudication.
33. By judgment of 11 April 1996, following an oral hearing held on 29 February 1996, the Hanover Regional Court rejected the applicant's claim.
34. On 10 July 1996 the applicant lodged an appeal against the judgment of the Hanover Regional Court.
35. On 22 July 1997 the Celle Court of Appeal (Oberlandesgericht) ordered an expert opinion to be prepared as to whether the evaluation of the two examination papers caused the applicant to fall ill and prevented him from taking part in the scheduled oral examinations.
36. On 15 June 1998 the expert submitted his written opinion.
37. On 6 October 1998 the applicant submitted extensive comments on the expert opinion and requested that the expert be heard by the court.
38. On 29 October 1998 the applicant requested that the expert should submit his comments in written form.
39. On 10 December 1999 the Court of Appeal scheduled a hearing for 28 June 2000. On 23 February 2000 that same court requested the expert to submit his comments on the parties' submissions in written form.
40. On 23 May 2000 the expert submitted his written comments.
41. On 20 June 2000 the applicant filed an objection for bias against the expert, which was rejected on 28 June 2000.
42. On 28 June 2000 the Court of Appeal heard the medical expert. At the end of the hearing, the applicant's counsel repeated a former request that two doctors, who had examined respectively treated the applicant during his illness, should be heard as witnesses.
43. By partial judgment (Teilurteil) of 29 August 2000 the Court of Appeal rejected the applicant's claim in so far as it concerned damages for the time after 31 May 1980. It found that the applicant had failed to prove that any illness after the end of July 1981 had been caused by the alleged incorrect evaluation of his examination papers. In this respect, the court followed the expert's opinion that any illness which had been caused by the evaluation had subsided after a maximum period of 1.5 years and that any following illness was solely caused by the structure of the applicant's personality. According to the Court of Appeal, the expert's reasoning duly took into account the medical statements submitted by the applicant. Accordingly, that Court did not find it necessary to hear witnesses on the applicant's state of health.
44. On 29 September 2000 the applicant lodged a request to be granted leave to appeal on points of law.
45. On 20 September 2001 the Federal Court of Justice (Bundesgerichtshof) refused to grant the applicant leave to appeal.
46. On 19 November 2001 the Federal Constitutional Court refused to accept the applicant's constitutional complaint for adjudication.
47. On 29 August 2000 the Celle Court of Appeal decided to hear expert opinion on the allegedly incorrect evaluation of the examination papers.
48. In April 2001 the expert submitted his report.
49. On 29 August 2001 the Court of Appeal held a hearing and heard the expert.
50. On 18 September 2001 the Court of Appeal, by final judgment (Schlussurteil), found that the evaluation of the two examination papers had been indeed incorrectly low and that the examiners had acted in breach of their official duties. Had the examination papers been correctly evaluated, the applicant would have very probably passed the examination and would have found employment as a trainee lawyer. Accordingly, it granted the applicant DEM 1,500.00 as damages for lost income in the month of May 1980 and further DEM 10,000.00 for non-pecuniary damages.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91030
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: MELNIK v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mr Stepan Aksentyevich Melnik, is a Russian national who was born in 1929 and lives in Monino, Moscow Region. The applicant was represented by Ms L. Alekseyeva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant, a former military officer, lives in a municipal flat. In November 1998 he asked the Monino housing maintenance authority to transfer to him the title to that flat. His request was rejected because Monino was a “restricted military settlement” and Russian law prohibited the transfer of title to housing premises in such settlements.
In 2002 the applicant unsuccessfully repeated his request.
On 14 March 2002 the applicant challenged before the Supreme Court of the Russian Federation Government's decree no. 752-p by which the town of Monino was included in the list of “restricted military settlements”. He claimed that the decree infringed his right to receive title to the flat.
On 17 July 2002 the Supreme Court dismissed the claim, holding, in so far as relevant, as follows:
“By virtue of section 15 of the Federal Law “On Status of Military Personnel” particular status is given to restricted military settlements in order to assign housing premises to military authorities for subsequent distribution of housing premises among military servicemen and other persons connected to the military service...
The applicant's arguments that the disputed regulation contradicts Article 19 §§ 1 and 2 and Article 35 § 2 of the Russian Constitution [and] violates his right to acquire title to the flat where he lives are ill-founded because the contested Government's regulation sets out the list of restricted military settlements which have housing premises. The prohibition on transferring the title to housing premises in restricted military settlements was established by section 4 of the RSFSR Law no. 1541-1 of 4 July 1991 “On Privatisation of Housing Premises in the Russian Federation”..., other legal acts of the Russian Federation and the constituencies of the Russian Federation, and not by the contested regulation.”
The applicant appealed against that judgment. He also sought leave to appear before the appeal court.
On 12 August 2002 the Appellate Division of the Supreme Court notified the applicant that the appeal hearing was scheduled for 10.40 a.m. on 5 September 2002.
On 5 September 2002, at 10.30 a.m., the applicant, accompanied by two witnesses, arrived at the courthouse. According to the witnesses' statements, presented to the Court by the applicant, a clerk told them that they were third in the queue and instructed them to wait by courtroom no. 440. They had been waiting for three hours when judges leaving the courtroom for lunch told them that the applicant's case had already been examined.
The Appellate Division of the Supreme Court upheld the judgment of 17 July 2002. It noted that the town of Monino had been included in the list of restricted military settlements in 1981. By regulation no. 752-p of 1 June 2000 the Government merely confirmed that the town of Monino was a restricted military settlement which included housing premises. On 4 July 1991 the Law “On Privatisation of Housing Premises in the Russian Federation” (“the Privatisation of Housing Act”) was adopted. It granted individuals the right to acquire title to State and municipal-owned flats of which they had taken possession on the basis of a social tenancy agreement. At the same time, section 4 of that law prohibited the transfer of title to State and municipal owned flats to individuals in restricted military settlements. The Appellate Division stressed that the applicant should have challenged that legal provision in the Privatisation of Housing Act and not the Government's regulation.


ITEMID: 001-58109
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF THE NATIONAL & PROVINCIAL BUILDING SOCIETY, THE LEEDS PERMANENT BUILDING SOCIETY AND THE YORKSHIRE BUILDING SOCIETY v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of P1-1;No violation of Art. 14+P1-1;No violation of Art. 6-1;No violation of Art. 14+6-1
JUDGES: C. Russo;John Freeland;N. Valticos;R. Pekkanen
TEXT: 6. The applicants were at all relevant times building societies within the meaning of the Building Societies Act 1986. Building societies operate under the status of “mutual societies” under English law as opposed to the status enjoyed by companies under company law. A building society’s members are made up of its investors who deposit savings with it and receive a rate of interest or a dividend in return, and its borrowers who are charged interest on their loans. By and large, loans are taken out by borrowers to buy private residential property.
7. Investors with a building society are liable to pay income tax in respect of the interest earned on their deposits. The income tax owed to the Inland Revenue for the purposes of the fiscal year running from 6 April of one year to 5 April of the following year was in practice calculated or measured with reference to a period of equal length preceding the actual fiscal year. The so-called “measurement principle” required that the period measured be always equal in length to the period taxed. The taxpayer was not in fact taxed on the income of the preceding year but assessed to tax on the income received in the current year, the amount of the current year’s income being artificially computed by reference to the income of the previous year. Accordingly, in normal circumstances, individual investors with building societies would be obliged to declare in their tax returns for the fiscal year in question the amount of interest or dividends earned on their deposits in a preceding reference period of equal length to the fiscal year, and the Inland Revenue would have to make individual assessments to tax on the strength of the information supplied by the investor.
8. However, in view of the very large number of building society investors, many of whom had only modest savings and were thus only liable to small amounts of income tax, or to no tax at all, it had for many years up to and including the fiscal year 1985/86 been the practice for the Inland Revenue to make voluntary arrangements with building societies for the payment by each society of a single annual composite amount. The effect of this payment by a building society was to discharge its investors’ liability to income tax at the basic rate on the interest which they earned. These arrangements, which were for very many years operated on a non-statutory basis, were at the relevant time given statutory recognition under section 343 (1) of the Income and Corporation Taxes Act 1970 – “the 1970 Act”.
9. The composite-rate payment under the voluntary arrangements was calculated for each fiscal year by reference to the global amount of interest paid by the society to its investors. However, in order to reflect the fact that some of the investors would not have been liable to tax at all given the modest amounts of their savings (see paragraph 8 above) a reduced rate of tax was applied. For this reason the annual payments made under this scheme were known as “reduced-rate tax” or “composite-rate tax”, or “CRT”.
10. The amount paid to investors by way of interest on their investments took account of the fact that their liability to income tax was discharged by the building society via the payment of CRT to the Inland Revenue. Investors thus received their interest net of tax.
11. In accordance with the “revenue-neutrality” principle, set out in section 26 of the Finance Act 1984, the CRT payment reflected only the amount which would have been paid by the investors themselves had they been obliged to declare and pay tax on the interest they earned through their deposits.
12. To achieve this, the Treasury, following negotiations with the Building Societies Associations, set each year, by statutory instrument, the CRT rate. In doing so, it was required to aim at a result whereby the same amount of tax was collected at source from building societies for the fiscal year in question as would have been collected from the individual depositors had they been taxed directly on the interest they received over a preceding reference period (see paragraphs 7 above and 13 below).
13. Until 1985/86, a “prior-period” system applied in respect of CRT. The amount of CRT to be paid by each building society for each fiscal year (see paragraph 12 above) was calculated by reference to the interest which it paid to its investors not during the actual year being taxed, but during the society’s own twelve months’ accounting period ending within that fiscal year. The tax was in every case paid on or around 1 January of the year of assessment. As noted above (see paragraph 8 above), the legal effect of this payment representing income tax was to discharge investors’ basic-rate liability on the interest earned in the year being taxed.
14. There was no legal requirement to have a harmonised accounting period. Different time frames were used by different building societies, but in all cases the time frames represented a period equal in length to the fiscal year, having regard to the requirements of the measurement principle (see paragraph 7 above). The following accounting periods were operated by each of the applicant societies:
Thus, on or around 1 January 1986, the three applicant societies paid to the Inland Revenue, to discharge their investors’ liability to income tax at the basic rate for the fiscal year 6 April 1985–5 April 1986, sums measured by reference to the interest paid to their investors in their accounting periods ended 30 September 1985 (the Leeds) and 31 December 1985 (the National & Provincial and the Yorkshire). Under the effect of the voluntary arrangements (see paragraph 8 above), these payments completely discharged the income-tax liability of their investors in respect of the interest paid to them by the respective societies for the fiscal year 6 April 1985–5 April 1986.
On that basis each of the applicant companies paid the following amounts by way of CRT to the Inland Revenue:
15. With a view to putting the taxation of the interest paid by building societies to investors on a similar footing to the scheme which had been introduced for banks by the Finance Act 1984, the Government proposed the introduction of a mandatory regime for the collection of tax on investors’ interest and the payment of the tax quarterly on the last days of February, May, August and November instead of annually in January. In his budget statement on 19 March 1985 announcing the introduction of the new scheme, the Chancellor of the Exchequer declared that it would not produce any additional revenue. The proposal was adopted by Parliament in the form of section 40 of the Finance Act 1985.
16. Section 40 amended section 343 of the 1970 Act (see paragraph 8 above) by inserting a new sub-section (1A) which had the effect of bringing to an end the long-standing voluntary arrangements as from 6 April 1986. It also empowered the Inland Revenue Commissioners to make regulations introducing a new system of accounting for the fiscal year 1986/87 and for subsequent years. Under the Income Tax (Building Society) Regulations 1986 (“the 1986 Regulations”), which came into force on 6 April 1986, tax was to be calculated on a quarterly basis on the actual interest paid during the actual year of assessment, as opposed to a prior period.
17. However the ending of the voluntary arrangements exposed a gap (“the gap period”) between the end of the applicant societies’ accounting periods in 1985/86 (see paragraph 14 above) and the start of the first quarter under the new regime. In the case of the Leeds the gap period was from 1 October 1985 to 5 April 1986, and in the case of the National & Provincial and the Yorkshire it was from 1 January 1986 to 5 April 1986. In order to ensure that each payment of interest formed the basis of an assessment to tax, transitional regulations were introduced which deemed payments falling into the “gap period” to have been made in a later accounting period, with the result that they formed the basis for an assessment to tax under the new “actual-year” arrangements. In the view of the Government the legislative intention was to ensure that the same amount of tax was collected as would have been collected if the previous arrangements had continued and that the building societies did not receive an undeserved windfall in respect of the gap period.
18. Against this background, Regulation 11 (read in conjunction with Regulation 3) of the 1986 Regulations purported to require building societies to account for tax relating to payments of interest to their investors in their respective gap periods. Regulation 11 (4) provided for tax to be charged on interest paid in the gap period at 1985/86 rates, i.e. 25.25%, the basic rate of income tax being 30% for that year.
19. Each of the applicant societies took the view that the transitional regulations ran counter to the Government’s declared intention that the new regime introduced by the Finance Act 1985 should not produce any additional revenue (see paragraph 15 above), which view was reaffirmed during the parliamentary debates on section 40 of that Act. They considered that the effect of Regulations 3 and 11 was to impose tax again on interest they had paid in 1985/86, a fiscal year for which liability on their investors’ interest had already been discharged (see paragraph 14 above). For the applicants this had the result that, for twenty-four months’ interest paid to its investors in the two fiscal years 1986/87 and 1987/88, a society like the Leeds, with a 30 September year-end, was required to pay tax on thirty months’ interest. For the National & Provincial and the Yorkshire, each would have to pay tax on twenty-seven months’ interest for the twenty-four month period covered by the fiscal years 1986/87 and 1987/88. In the view of the applicant societies these consequences ran counter to the measurement principle according to which the measurement period forming the basis of assessment to tax can never exceed the length of the fiscal year (see paragraph 7 above).
Each of the three applicant societies did in fact pay the tax claimed to be due under the transitional provisions of the Regulations as follows:
20. The Government point out that the payments were made “without formal protest”. However, the applicants assert that they made clear from the outset that they disputed the lawfulness of the tax and that they associated themselves with the proceedings initiated by the Woolwich Equitable Building Society (“the Woolwich”) to challenge the lawfulness of the transitional provisions in Regulation 11. For its part the Leeds issued a press release when the Regulations were still at the draft stage, drawing attention to, inter alia, their complaint that the Regulations would have the objectionable effect of subjecting building societies to double taxation. The affidavit sworn by the Executive Vice-Chairman of the Woolwich referred to the Leeds’ support for its decision to initiate legal proceedings against the transitional arrangements. Both the National & Provincial and the Yorkshire made requests for the repayment of the amounts they had paid to the Inland Revenue.
21. On 18 June 1986 the Woolwich commenced judicial review proceedings seeking a declaration that Regulation 11 was unlawful as being outside the scope of the enabling legislation. It was further alleged that the transitional arrangements transgressed the fundamental principles of constitutional and taxation law and that the machinery adopted by the 1986 Regulations in order to implement the change in the system resulted in a double charge to tax over the gap period.
22. On 4 July 1986 the Government introduced in Parliament a measure intended to validate retrospectively the impugned Regulations and to give effect to what they claimed to be the original intention of Parliament when adopting them (see paragraphs 15 and 17 above). The responsible Government minister informed Parliament that the Regulations did not affect the amount of tax collected, only the timing of payment and reiterated that they would not bring extra tax to the Inland Revenue. On 25 July 1986 the Finance Act 1986 (“the 1986 Act”) received the Royal Assent. Section 47 of the Act retrospectively amended section 343 (1A) of the 1970 Act (see paragraph 16 above) with the purpose of authorising the Inland Revenue Commissioners to make regulations requiring the taxation in the year 1986/87 and subsequent years of assessments of sums paid to investors in the gap period and not previously brought into account.
23. On 15 July 1987 the Woolwich issued a writ against the Inland Revenue claiming repayment of the sums paid by way of tax under the transitional provisions of the Regulations, as well as interest from the date of payment.
24. On 31 July 1987 Nolan J granted the application in Woolwich 1 (see paragraph 21 above) and made a declaration that Regulation 11 was void in its entirety and that the remaining Regulations were void in so far as they purported to apply to payments made to investors prior to 6 April 1986. He held that:
25. The Inland Revenue appealed against the decision. They conceded that Regulation 11 (4) was invalid but contended that this partial invalidity did not invalidate the rest of the Regulation.
26. Towards the end of 1987, the Inland Revenue repaid to the Woolwich the sum of GBP 57,000,000 with interest from 31 July 1987 (the date of the order of Nolan J) but refused to pay interest from any earlier date. Thus, the remaining issue in the Woolwich 2 proceedings (see paragraph 23 above) came to be whether or not Woolwich had grounds for claiming interest on the payments made by them up to 31 July 1987.
27. On 12 July 1988 Nolan J dismissed the Woolwich 2 action, holding that the Woolwich was not entitled to recover the sums in issue under any general principle of restitution or as having been paid under duress. He took the view that the sums had been paid under an implied agreement that they would be repaid if and when the dispute about the validity of the 1986 Regulations was resolved in favour of the Woolwich. Thus, the Woolwich had no cause of action to recover the money until the date of his order of 31 July 1987. The Woolwich appealed against the decision and order.
28. On 12 April 1989 the Court of Appeal allowed the appeal of the Inland Revenue in the Woolwich 1 proceedings (see paragraph 25 above). The court held that:
29. On 25 October 1990 the House of Lords allowed the appeal of the Woolwich in the Woolwich 1 proceedings. The House of Lords, Lord Lowry dissenting, declared the transitional provisions in the 1986 Regulations to be ultra vires on the grounds that Regulation 11 (4), as the Inland Revenue had previously conceded, and Regulation 3, so far as it related to the period after February and before 6 April 1986, were ultra vires the empowering statute. The House of Lords considered that Regulation 11 (4) could not be severed from the rest of Regulation 11 and that the transitional provisions in the 1986 Regulations were therefore void in their entirety.
30. Lord Oliver, delivering the judgment of the majority, concluded:
“... I confess that I find the conclusion irresistible that Parliament intended by these words [section 47 of the 1986 Act] to enable the Revenue to take account of and to charge to tax sums which, rightly or wrongly, it regarded as otherwise representing windfalls in the hands of building societies. One has only to look at the circumstances. The Regulations of 1986 had been made and had been objected to. They were made the subject of a direct challenge in legal proceedings, the evidence in support of which clearly adumbrated the arguments advanced before the judge and the Court of Appeal. The notion that Parliament should go to the trouble of enacting an expressly retrospective amendment in order to provide, unnecessarily, for the use of these sums as a measurement of tax liability – a matter never remotely in issue – is simply fanciful ...
... I am bound to say that I think it unfortunate that the Revenue, through Parliament, should have chosen by secondary rather than primary legislation to take what was, on ordinary principles, the very unusual course of seeking to tax more than one year’s income in a single year of assessment, but section 47 of the Finance Act 1986 is, on any analysis, a very unusual provision and I have, in the end, found myself irresistibly driven to the conclusion that this was what Parliament intended should occur. It may be – I do not know – that the legislature did not appreciate fully that the effect of the arrangements made in 1985 was to discharge all liability for tax on interest paid in the year of assessment 1985/86, including tax on interest paid after the end of a society’s accounting year, and that, accordingly, to tax those sums again in a subsequent year was, in a sense, to tax them twice. But even making that assumption it amounts to no more than saying that the legislature should not have intended to do that which it plainly set out to do. I would, for my part, therefore, reject the Woolwich’s principal argument.”
This ruling declaring Regulation 11 (4) void on technical grounds meant that no mechanism existed to achieve what the Government claimed to be Parliament’s initial intention that interest payments made during the gap period should be assessed for tax. This led the Government to introduce new legislative provisions. A draft press release was circulated as early as 7 March 1991 for the approval of the Chancellor of the Exchequer. The draft indicated that the Chancellor in his budget-day speech on 19 March 1991 would introduce legislation to validate retrospectively the Regulations which had been struck down in the Woolwich 1 case (see paragraph 33 below).
31. Following the House of Lords’ decision in the Woolwich 1 proceedings, and after having made several requests for repayment, the Leeds commenced proceedings on 15 March 1991 against the Inland Revenue for the restitution of the sum of GBP 56,973,690 paid pursuant to the 1986 Regulations which had been declared void in the Woolwich 1 proceedings.
32. On 17 March 1991 the National & Provincial, which had also sought but was refused repayment, commenced proceedings against the Inland Revenue for the restitution of the sum of GBP 15,873,945 paid pursuant to the void Regulations.
33. On 19 March 1991, in his budget statement, the Chancellor of the Exchequer announced the introduction of legislation to remedy “the technical defects in the Regulations”. This legislation became section 53 of the Finance Act 1991 (“the 1991 Act”), which entered into force on 25 July 1991. Section 53 provided, inter alia:
“Section 343 (1A) of the [1970 Act] ... shall be deemed to have conferred powers to make all the provisions in fact contained in [the 1986 Regulations].”
34. The provision had retrospective effect, save that by subsection (4) it had no effect “in relation to a building society which commenced proceedings to challenge the validity of the Regulations before 18 July 1986”. The Woolwich was the only building society which satisfied this condition.
35. In a letter dated 21 March 1991 the Director-General of the Building Societies Associations informed the Financial Secretary to the Treasury that the decision of the Government “[did] not come as any great surprise, although it will still be very disappointing to the societies concerned”. In fact, the concrete effect of the measure was to stifle the Leeds 1 and National & Provincial 1 proceedings (see paragraphs 31and 32 above). Although they had shown support for the Woolwich’s judicial proceedings (see paragraph 20 above) neither had formally commenced legal proceedings before 18 July 1986. At the costs hearing the Government conceded that they had no defence to the action brought by the Leeds and the National & Provincial had it not been for section 53 of the 1991 Act. Costs were awarded against the Government.
36. On 22 May 1991 the Court of Appeal, by a majority, allowed the appeal by the Woolwich in Woolwich 2 and awarded the interest claimed.
37. The majority of the Court of Appeal accepted the Woolwich’s primary submission that, where money was paid under an illegal demand for taxation by a government body, the payer had an immediate prima facie right to recover the payment.
38. On 10 July 1991 the Leeds applied for leave to commence judicial review proceedings for a declaration that the Treasury Orders establishing the composite-rate tax for 1986/87 and for the following years were unlawful (“Leeds 2”). The Leeds claimed that:
39. On 6 November 1991 the National & Provincial was granted leave to commence judicial review proceedings similar to those in Leeds 2 for a declaration that the Treasury Orders establishing the composite-rate tax for 1986/87 and subsequent years were unlawful because of the retrospective validation of the Regulations (“National & Provincial 2”). The application was joined with the Leeds 2 proceedings and with a similar application made by the Bradford and Bingley Building Society.
40. On 3 March 1992 the Yorkshire applied for leave to commence similar judicial review proceedings for a declaration that the Treasury Orders establishing the composite-rate tax for 1986/87 and subsequent years were unlawful (“Yorkshire 1”).
41. Further proceedings were commenced by the Yorkshire on 11 May 1992 (“Yorkshire 2”), by the Leeds on 1 June 1992 (“Leeds 3”) and by the National & Provincial on 12 June 1992 (“National & Provincial 3”). In those proceedings the applicant societies claimed restitution of the money due to them if the judicial review proceedings (Leeds 2 and National & Provincial 2, and Yorkshire 1) were successful (see paragraphs 38–40 above).
42. On 16 July 1992 section 64 of the Finance (No. 2) Act 1992 (“the 1992 Act”) entered into force. This legislation had been anticipated as from 7 May 1992 when the Financial Secretary in a reply to a parliamentary question noted that his Government intended to introduce legislation to validate retrospectively the impugned Treasury Orders. Section 64 provided, with retrospective effect, that the Treasury Orders “shall be taken to be and always to have been effective”. The Government acknowledged during the parliamentary debates on section 64 that the measure was intended to pre-empt the legal proceedings launched by the applicants to challenge the validity of the Treasury Orders and that it would result in the Woolwich being treated more favourably. However, they pointed out that the challenge to the composite rate for CRT in the fiscal years 1986/87 to 1989/90 threw into doubt the lawfulness of the collection of all sums from building societies, banks and other deposit institutions in the periods in question. While there was no doubt as to the lawfulness of the collection in respect of the vast majority of those sums, the effect of impugning the rates set would have been to render the collection of all sums unlawful. The amount at stake was in the region of GBP 15 billion.
43. The effect of section 64 was to extinguish the remaining proceedings lodged by the applicants for judicial review of the validity of the Treasury Orders and for restitution (see paragraphs 39–41 above).
44. On 20 July 1992 the House of Lords, by a majority, dismissed the Inland Revenue’s appeal in the Woolwich 2 proceedings.
The House of Lords did not accept that, on the facts of the Woolwich case, there was any implied agreement for the repayment of the money paid under the invalid Regulations if and when the dispute was resolved in the taxpayer’s favour. Nevertheless, by a majority, the House of Lords held:
45. Section 343 (1A) of the 1970 Act (introduced by section 40 of the Finance Act 1985, and as amended by section 47 of the Finance Act 1986) provides as follows:
“The Board may by regulations made by statutory instrument make provision with respect to the year 1986/87 and any subsequent year of assessment requiring building societies, on such sums as may be determined in accordance with the regulations (including sums paid or credited before the beginning of the year but not previously brought into account under subsection (1) above or this subsection), to account for and pay an amount representing income tax ... and any such regulations may contain such incidental and consequential provisions as appear to the Board to be appropriate, including provisions requiring the making of returns.” [The words in bold print were added by the 1986 Act.]
46. Section 53 of the Finance Act 1991 provides, so far as relevant, as follows:
“(1) Section 343 (1A) of the Income and Corporation Taxes Act 1970 ... shall be deemed to have conferred power to make all the provisions in fact contained in the Income Tax (Building Societies) Regulations 1986 ...
(4) In relation to a building society which commenced proceedings to challenge the validity of the Regulations before 18 July 1986, this section shall not have effect to the extent that the Regulations apply (or purport to apply) to payments or credits made before 6 April 1986.”
47. Section 64 of the Finance (No. 2) Act 1992 provides as follows:
“(1) For the purposes of this section each of the following is a relevant order –
(a) the Income Tax (Reduced and Composite Rate) Order 1985 ...
(b) the Income Tax (Reduced and Composite Rate) Order 1986 ...
(c) the Income Tax (Reduced and Composite Rate) Order 1987 ...
(d) the Income Tax (Reduced and Composite Rate) Order 1988 ...
(2) If apart from this section a relevant order would not be so taken, it shall be taken to be and always to have been effective to determine the rate set out in the order as the reduced rate and the composite rate for the year of assessment for which the order was made.”
NON_VIOLATED_ARTICLES: 14
6
P1
NON_VIOLATED_PARAGRAPHS: 6-1
P1-1


ITEMID: 001-21929
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: ÖVER v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant, Ahmet Över, is a Turkish national of Kurdish origin, born in 1956 and, at the time of introduction of the application, he was detained in the Netherlands for expulsion purposes. He is represented before the Court by Ms G.E.M. Later, a lawyer practising in The Hague.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant entered and took up residence in the Netherlands in 1991. On 22 October 1996, the applicant applied for asylum or, alternatively, a residence permit on humanitarian grounds. The State Secretary of Justice (Staatssecretaris van Justitie) rejected these requests on 12 March 1997. The applicant filed an objection (bezwaarschrift) against this decision with the State Secretary on 9 April 1997.
As, pursuant to Article 32 of the Aliens Act (Vreemdelingenwet), this objection was denied suspensive effect as to the applicant’s expulsion, the applicant filed a request with the Hague Regional Court (Arrondissementsrechtbank) on 28 May 1998 for an injunction on his expulsion pending the proceedings on his objection. On 20 June 1997, the State Secretary rejected the applicant’s objection. The applicant’s subsequent appeal to the Hague Regional Court was rejected on 5 January 1998.
The applicant filed an opposition (verzet) against the judgment of 5 January 1998, which was rejected by the Hague Regional Court on 20 April 1998.
In December 1998 the applicant participated in a hunger strike in a church in the Netherlands together with about 130 other illegal aliens who had been living in the Netherlands for a long time. On 17 December 1998, the State Secretary gave an undertaking that he would personally examine the cases of these illegal aliens. In this connection, the State Secretary informed the applicant by letter of 1 February 1999 that he did not meet the conditions for a residence permit on the basis of the policy on the legalisation of illegal aliens. The State Secretary had further not found any reason, capable of justifying a departure from this policy, to grant the applicant a residence permit on humanitarian grounds. On 4 February 1999, the applicant filed an objection against this decision with the State Secretary.
On 16 February 1999, following the apprehension of the Kurdish leader Abdullah Öcalan by the Turkish authorities, a protest demonstration took place in The Hague in the course of which protesters occupied the residence of the Greek Ambassador and members of the Ambassador’s household were prevented from leaving the premises. That day, the applicant was arrested and subsequently detained in police custody (inverzekeringstelling) on suspicion of vandalism and violence (openlijke geweldpleging) after he was found amid a group of protesters who appeared to be heading in the direction of the residence.
Upon instructions of the public prosecutor and after having been heard and served with an indictment to stand trial on charges of disobeying police orders, the applicant was handed over to the aliens’ police (vreemdelingenpolitie) on 17 February 1999, who apprehended him in order to verify his identity, nationality and residence title in accordance with Article 19 of the Aliens Act.
On 18 February 1999, the applicant was placed in aliens’ detention for the purposes of expulsion (vreemdelingenbewaring) under Article 26 § 1 (a) of the Aliens Act (Vreemdelingenwet). On the same day, the applicant’s lawyer filed a request with the Hague Regional Court for an injunction on his expulsion pending the proceedings on the applicant’s objection filed on 4 February 1999 against the State Secretary’s decision of 1 February 1999.
On 19 February 1999, the applicant filed a second request for asylum or, alternatively, a residence permit on humanitarian grounds and, on 25 February 1999, he was interviewed by an official on the reasons for these requests.
On 26 February 1999, the applicant filed an appeal with the Hague Regional Court against his placement in aliens’ detention and he requested compensation for the time spent in aliens’ detention.
The applicant’s request of 19 February 1999 was rejected by the State Secretary on 3 March 1999. Noting that the applicant had stated that he had left Turkey for the Netherlands in 1991 because the Turkish authorities had made it impossible for him to do his work as a shepherd and had exerted pressure on him to become a village guard, the State Secretary held that the applicant’s submissions did not disclose any grounds for believing that he had well-founded reasons to fear persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees. The State Secretary considered that the mere fact that the applicant belonged to the Kurdish community in Turkey did not warrant such a conclusion, and neither had it appeared that the applicant had attracted the particular attention of the Turkish authorities. Insofar as the applicant relied on Article 3 of the Convention, the State Secretary did not find it established that the applicant, if expelled to Turkey, would face a real risk of being subjected to treatment contrary to this provision of the Convention. The State Secretary further ordered the applicant to leave the Netherlands without delay.
On 11 March 1999, following a hearing held on 9 March 1999 in the course of which the applicant was represented by a lawyer, the Hague Regional Court, in a decision pronounced in public, rejected the applicant’s appeal of 26 February 1999 against his placement in aliens’ detention. The Regional Court considered that public order required the applicant’s placement in aliens’ detention as he had resided illegally in the Netherlands for six years and had apparently evaded the control of the aliens’ department (vreemdelingendienst). Noting that the applicant had no residence title and finding that it had not been established that the applicant had sufficient means of subsistence, the Regional Court held that there were serious grounds to believe that the applicant would seek to find ways of avoiding his expulsion.
The Regional Court did not agree with the applicant that there were no real prospects for his expulsion and, in this respect, rejected his argument that the public prosecutor had not given his consent for the expulsion. It considered that this consent was implied in the public prosecutor’s decision to hand the applicant over to the aliens’ police for expulsion purposes. As to the objection filed against the rejected request for asylum of 19 February 1999, the Regional Court considered that this did not have such prospects of success that, on that ground, the applicant’s placement in aliens’ detention should be discontinued. It further took into consideration that this request for asylum had only been filed after the applicant’s arrest on 16 February 1999, which cast doubts as to the sincerity of his motives for making an application for asylum. It further held that there was no indication that the applicant had well-founded reasons to fear persecution in his country of origin.
The Hague Regional Court concluded that the applicant’s apprehension and placement in aliens’ detention were lawful under the relevant statutory provisions and, after having balanced the interests involved, could reasonably be regarded as justified. Consequently, it found no grounds to award the applicant compensation for the time spent in placement in aliens’ detention. The parties were notified of this decision on 1 April 1999.
On 12 April 1999, the applicant filed a third request for asylum or, alternatively, a residence permit on humanitarian grounds. On the same day, he filed a second appeal with the Hague Regional Court against his placement in aliens’ detention and he requested compensation for the time spent in aliens’ detention.
On 4 May 1999, following a hearing held on 20 April 1999 in the course of which the applicant was represented by a lawyer, the Hague Regional Court, in a decision pronounced in public, rejected the applicant’s appeal of 12 April 1999. Noting that the lawfulness of this placement had already been determined in its decision of 11 March 1999, it limited its examination to the lawfulness of the applicant’s continued placement in aliens’ detention.
As to the ongoing proceedings, the Hague Regional Court found no indication that these had such evident chances of success that it would be unreasonable to continue the applicant’s placement in aliens’ detention. It further did not find it established that the applicant, if expelled to Turkey, would run the risk of being subjected to treatment contrary to Article 3 of the Convention. As to the argument that Article 6 of the Convention entails the right of an accused to appear at his trial, the Regional Court noted that the Netherlands authorities granted entry visas to aliens wishing to attend their trial in the Netherlands and that, therefore, this did not constitute an obstacle to expulsion. It further noted that the applicant was in the possession of a valid Turkish passport, so that a presentation to the Turkish consular authorities in order to obtain travel documents would not be necessary. It further noted that a determination of a new application for a residence permit could only be awaited in the Netherlands if no contraindications existed and that, in the applicant’s case, there were such contraindications since he was suspected of having committed a criminal offence.
The Hague Regional Court further found no indication that, since its decision of 11 March 1999, the authorities had been lacking in diligence in their consideration of the applicant’s case or that there were insufficient prospects of expulsion. It concluded that there was no appearance that the applicant’s continued placement in aliens’ detention was contrary to the relevant statutory provisions and that, after having balanced the interests involved, it could reasonably be regarded as justified. Consequently, it found no grounds for awarding the applicant compensation for the time spent in placement in aliens’ detention. The parties were notified of this decision on 25 May 1999.
On 31 August 1999, the State Secretary informed the Dutch Parliament that, in view of reports on what had happened to two asylum seekers who had been expelled to Turkey, a policy decision had been taken to suspend temporarily the expulsion of Turkish nationals of Kurdish origin. On the same day, upon an order of the Hague Regional Court, the applicant was released from aliens’ detention.
On 10 April 2000, following proceedings on appeal in the criminal proceedings brought against the applicant, the Hague Court of Appeal (Gerechtshof) quashed the applicant’s conviction by the Regional Court and declared the prosecution inadmissible, holding that the applicant’s deprivation of liberty on 16 February 1999 had been unlawful in that there had been no reasonable suspicion that he had committed an offence in respect of which the legal provisions in force allowed a suspect to be taken into police custody.
The applicant’s objection of 4 February 1999 against the State Secretary’s decision of 1 February 1999 has, to date, not been decided on. No further information has been submitted as to the remaining proceedings instituted by the applicant.
Article 26 of the Aliens Act, insofar as relevant, provides:
“1. If the interests of public order, public policy or national security so require, the following categories of aliens may be detained:
a. aliens whose expulsion has been ordered;
b. aliens in respect of whom there are serious ground to believe that their expulsion will be ordered;
c. aliens who are not allowed to reside in the Netherlands by virtue of any of the provisions contained in Articles 8-10 <of the Aliens Act>, pending the decision on an application for a residence permit, a permanent residence permit or leave to enter as refugees.
2. An alien shall not be detained when, and detention shall be terminated as soon as, he intimates that he wishes to leave the Netherlands and is in fact in a position to do so.
3. Detention for the reasons set out in the first sentence of paragraph 1 and for the categories referred to under b. or c. of that paragraph shall not be of longer duration than one month.
...”
An alien whose expulsion has been ordered can, in principle, remain in aliens’ detention for an unlimited period of time. The lawfulness of a placement in aliens’ detention can, however, be challenged before a court. Where the court is of the opinion that there are no prospects of expulsion within a reasonable time, it can order that the measure of placement in aliens’ detention be terminated.
It has been established in the case-law of the Legal Uniformity Division (Rechtseenheidskamer) of the Hague Regional Court that the interest of an alien to be released from aliens’ detention increases with the passage of time. Where a placement in aliens’ detention exceeds a period of six months, it is generally held that the alien’s interest in being released is greater than the interest to keep him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, this point in time may also be reached before or after six months have passed. It may be later where the alien frustrates the determination of his identity or nationality and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his control.
Pursuant to Article 34a of the Aliens Act, the Regional Court must examine an appeal brought against a measure of deprivation of liberty within two weeks and must hand down its written decision on the appeal within two weeks following its hearing on the appeal.
According to Article 8:65 of the General Administrative Law Act (Algemene Wet Bestuursrecht), the President of the Regional Court shall inform the parties at the closure of the hearing when the court’s decision will be handed down. Article 8:79 of the General Administrative Law Act provides that, within two weeks of the date of the pronouncement of the decision, the Registry of the Regional Court will send a copy of the decision to the parties free of charge.
Although no appeal lies against a decision by the Regional Court in proceedings concerning requests for release from detention for expulsion purposes, an appeal to the Court of Appeal (Gerechtshof) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes. Furthermore, an appeal may be admitted in which the complaint is made that in the decision challenged a fundamental principle of law has been disrespected (cf. The Hague Court of Appeal, 12 November 1998, Nederlandse Jurisprudentie 1999, nr. 127)
There is no time-limit for the filing of an appeal against a decision of placement in aliens’ detention and in principle a person placed in aliens’ detention may file as many appeals against this decision as he sees fit. When the lawfulness of a decision of placement in aliens’ detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens’ detention as from the date of the last judicial decision taken on this point.
On 27 July 1999, the State Secretary of Justice requested the Hague Regional Court to suspend the examination of appeals, including requests for injunctions on expulsions, filed by asylum seekers of Kurdish origin, as it had appeared that two such asylum seekers had encountered serious problems after they had been expelled to Turkey.
On 31 August 1999, the State Secretary informed the Dutch Parliament that, in view of reports on what had happened to two asylum seekers who had been expelled to Turkey, a policy decision had been taken to suspend temporarily the expulsion of Turkish nationals of Kurdish origin.
On 16 December 1999, the State Secretary informed the Dutch Parliament that the results of an investigation into the facts on the basis of which the expulsion of Turkish nationals of Kurdish origin had been temporarily suspended had led to the lifting of that suspension.


ITEMID: 001-80621
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF VIKTOR KONOVALOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1
JUDGES: Christos Rozakis
TEXT: 6. The applicant was born in 1957 and lives in Moscow.
7. On 19 March 1999, while travelling with his family to Ukraine, the applicant was stopped in the Moscow Region by officers of the road police. The police discovered that the applicant's car had been brought into Russia on 8 January 1999 and that customs had authorised its circulation on Russian territory for two months only. On the same day the Podolsk Customs Office seized the applicant's car as the object of a breach of customs regulations.
8. On 23 March 1999 the Podolsk Customs Office opened a case against the applicant for failure to take the vehicle out of the customs territory of the Russian Federation within the established time-limit, this being an administrative offence under Article 271 § 1 of the Customs Code.
9. On 23 July 1999 an expert identified the applicant's car as a Peugeot 305 having a depreciated value of 9,858 Russian roubles (RUR).
10. On 30 July 1999 the customs authorities found the applicant guilty of a breach of Article 271 § 1 of the Customs Code and imposed a fine equal to the car's value. The fine was payable within fifteen days of receipt of the decision or, if an appeal was lodged, within fifteen days of the final decision on the appeal.
11. On 11 August 1999 the Moscow Customs Directorate rejected the applicant's appeal against the decision of 30 July 1999. An appeal to a court lay against such a refusal.
12. On 21 August 1999 the applicant lodged an appeal with the Meshchanskiy District Court of Moscow. According to the applicant, the Podolsk Post Office confirmed that on 31 August 1999 a copy of the complaint had been delivered to the Podolsk Customs Office.
13. On 25 August 1999 the customs office forwarded the decision of 30 July 1999 to the bailiffs' service for enforcement through the sale of the car. The applicant was not informed of this.
14. On 17 September 1999 the bailiff commissioned a private company to organise the sale of the car.
15. After several reductions of the sale price, on 15 December 1999 the car was sold for RUR 3,000.
16. On 14 April 2000 the Meshchanskiy District Court heard the appeal. It found that the existence of a breach was not disputed by the parties and that the decision imposing the fine had not become time-barred. The court dismissed the complaint.
17. On 10 August 2000 the Moscow City Court upheld, on the applicant's appeal, the judgment of 14 April 2000.
18. The applicant complained to a prosecutor's office that the sale of his car had been unlawful as it was effected at the time when his appeal against the customs office's decision was pending.
19. On 24 May 2001 the South-Western transport prosecutor's office sent a letter to the head of the Podolsk Customs Office. A deputy prosecutor determined that the decision of 30 July 1999 had been enforced in breach of the Customs Code. Having received, on 24 September 1999, a copy of the applicant's appeal to a court, the Podolsk Customs Office had not forwarded that information to the bailiff or suspended the enforcement proceedings. The deputy prosecutor recommended that similar violations be avoided in the future, yet in the applicant's case he refused to take action because “the State interests had not been harmed”.
20. The applicant complained to a court about the bailiff's acts. He submitted, in particular, that he had not been notified of the opening of the enforcement proceedings or informed about the reduction of the sale price and that the car had been sold outside the two-month time-limit.
21. On 14 June 2001 the Podolsk Town Court of the Moscow Region gave judgment. It found that the representative of the Podolsk bailiffs' service could not show that the applicant had been notified of the enforcement proceedings and price reduction. Nor could he explain what actions had been undertaken by the bailiff to identify the applicant's sources of income or other property and why the car had not been offered to the creditor upon expiry of the two-month time-limit but instead had been sold three months later. The court noted that the enforcement file contained the report on the impossibility of enforcement dated 21 December 1999, but the documents on which the act had been founded were missing. The court made a declaratory judgment that the enforcement procedure had been carried out in breach of the Enforcement Act.
22. The applicant also lodged a complaint against the Podolsk Customs Office. He submitted, in particular, that the office had failed to suspend the enforcement proceedings pending the outcome of his complaint to a court.
23. On 12 March 2002 the Podolsk Town Court of the Moscow Region dismissed the complaint. As regards the allegedly premature transfer of the car to the bailiffs, the court held as follows:
“The car taken from [the applicant] was a piece of evidence that, pursuant to Article 327 of the Customs Code, was to be kept until the time-limit for lodging an appeal against the decision of the customs office... had expired or until a higher customs office or a district/town court had given a decision... The car was handed over for sale to the court bailiffs after the higher customs office had replied to [the applicant's] complaint; [the applicant] did not show that, before the handover of the car had been effected, he had informed the Podolsk Customs Office of his having lodged a complaint with a court; an acknowledgement-of-receipt coupon on p. 100 of the case file is not evidence of appropriate notification because [the text of] the notification is missing ...”
24. On 30 May 2002 the Moscow Regional Court, on the applicant's appeal, upheld the judgment of 12 March 2002.
25. The applicant sued the Moscow Region Directorate of the Ministry of Justice, the authority in charge of court bailiffs, for pecuniary and non-pecuniary damage caused by the court bailiff.
26. On 27 February 2003 a Justice of the Peace of the 13th Court Circuit of the Zyuzino District of Moscow granted the applicant's claims in part. He determined that the applicant's car had been billed for sale on 17 September 1999 and that the price had been reduced on 6 October, 19 October, 2 November and 8 December 1999. On 15 December 1999 it had been sold for RUR 3,000. The court found that, in breach of the requirement of the Enforcement Act, the applicant had not been informed of the enforcement proceedings, the bailiff had not attempted to identify his other assets or money, the creditor had not been offered to keep the car or to contest the sale price of the car. The court noted the decision of the Podolsk prosecutor's office of 22 October 2002 whereby criminal proceedings against the court bailiff were discontinued. The decision established that the bailiff might have been guilty of professional negligence (Article 293 § 1 of the Criminal Code), but prosecution was time-barred. The court ruled that there was a causal link between the bailiff's unlawful actions and the pecuniary damage caused to the applicant, and ordered the Ministry of Justice, as the bailiff's employer, to reimburse RUR 6,858 to the applicant (the difference between the car's valuation and sale price) and to pay RUR 500 in respect of non-pecuniary damage, RUR 2,000 for legal costs and also to bear court fees.
27. On 25 December 2003 the Zyuzinskiy District Court of Moscow quashed, on an appeal from the Ministry of Justice, the judgment of 27 February 2003. The court held that the applicant had failed to prove that the bailiff's actions had caused him pecuniary or non-pecuniary damage and the violations committed by the bailiff had been of “a procedural nature”.
28. The Customs Code, as in force at the material time, provides in relevant part as follows.
A breach of customs regulations is punishable by, in particular, forfeiture of the goods or vehicles that were the object of the offence, or payment of a fine equal to their value (Article 242 §§ 4 and 5).
29. Physical evidence includes the goods and vehicles that were the objects of a violation of the customs regulations. Such evidence is kept in the warehouse until the time-limit for lodging an appeal has expired or the appeal has been decided upon by the higher customs office or a court (Article 327).
30. The goods and vehicles that were the object of a violation of the customs regulations will be seized. If the person who is found liable for a violation of customs regulations has no permanent residence in Russia, his goods, money or vehicle may be seized as security for payment of the fine (Article 337).
31. The order on payment of a fine may be enforced by the customs office after the time-limit for lodging an appeal has expired (Article 378). The lodging of an appeal shall suspend enforcement (Article 376). The fine is payable within fifteen days after the final decision refusing the appeal against the order was issued. If the fine has not been paid within this time-limit, it may be recovered from the goods charged as security for the payment or from the person's other assets or income (Article 379).
32. The Enforcement Act provides in relevant part as follows.
A copy of the decision on the opening of enforcement proceedings must be sent to the debtor within one day of issue (section 9 § 4). The creditor and the debtor are the parties to the enforcement proceedings (section 29 § 1).
33. Recovery may be made out of the debtor's property if the debtor does not have sufficient cash funds in Russian roubles or foreign currency (section 46).
34. Property subject to a charge may be sold within two months of the date of the charge order. If the property has not been sold within two months, the creditor will have the right to keep the property. If the creditor refuses, the property is returned to the debtor and the writ of enforcement to the creditor (section 54).


ITEMID: 001-57706
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF OERLEMANS v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
TEXT: 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.
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".
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.
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.
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.
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).
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.
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.
27. Under Netherlands law there are two other forms of relief against the administration.
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).
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).
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.
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).
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).
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.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1