AS TO THE ADMISSIBILITY OF
Application No. 14740/89
by Arvid ANDERSSON and 28 others
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 December 1992, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
Mr. K. ROGGE, Secretary to the Second Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 28 February 1988
by Arvid ANDERSSON and 28 others against Sweden and registered on
7 March 1989 under file No. 14740/89;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 31 May 1991 and the observations in reply submitted by
the applicants on 18 August 1991;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are listed in the Annex. They are all Swedish
citizens, with the exception of applicant no. 14, who is a United
Kingdom citizen. Before the Commission the applicants are represented
by Mr. Göran Ravnsborg, an Assistant Professor resident at Lund.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
Twenty-seven of the applicants are owners of properties in the
area of Ljungskile. The applicants nos. 5, 6 and 17 as well as nos. 19
and 20 and nos. 22 and 23, respectively, are joint property owners. The
applicants nos. 4 and 16 are lease-holders.
In October 1985 the National Road Administration (Vägverket,
hereinafter "the NRA") presented five alternative draft working-plans
(arbetsplaner) for the re-construction of the section of the motorway
E6 between Stora Höga and Bratteröd/Uddevalla. The drafts were
subsequently presented to the public.
In November 1985 the Municipal Council (kommunfullmäktige) of
Uddevalla and the County Administrative Board (länsstyrelsen) of the
County of Göteborg and Bohus submitted their opinions on the drafts.
In April 1986 the NRA presented its revised draft working-plans.
These were presented to the public in May 1986.
On 3 June 1986 the Municipal Council supported the draft
alternative B, according to which the motorway would, in the area of
Ljungskile, run through a tunnel and over a bridge.
On 9 June 1986 the County Road Administration (vägförvaltningen)
of the County of Göteborg and Bohus supported the draft alternative A,
according to which the motorway would be constructed on a road
embankment over the inner part of the bay of Ljungskile.
In its opinion of 19 June 1986 to the NRA the County
Administrative Board also supported the draft alternative A.
On 27 November 1986 the NRA adopted draft alternative A as the
official working-plan. The NRA found that by choosing alternative A the
purpose of the road could be achieved with the least possible
interference and inconvenience and without unreasonable costs. It had
particular regard to traffic safety and environmental aspects.
The decision was appealed against to the Government by a large
number of physical and legal persons, including the applicants, who
argued, inter alia, that the motorway should have been constructed east
of Ljungskile. Others argued in favour of an improvement of the already
existing road. The appeals also pertained to the cost-assessment and
the procedure terminating in the NRA's decision.
On 3 September 1987 the Government (Ministry of Transport and
Communication) rejected the appeals, having found, inter alia, that
alternative A had been drawn up in accordance with the law. Several
alternative working-plans had also been studied and their costs had
been assessed.
Applicant no. 15 sold his property in 1987.
Relevant domestic law
According to Section 10 of the 1971 Roads Act (väglag 1971:948)
a road may be constructed if it is needed for public traffic or may be
assumed to be of particular importance to the community. The
construction of a road in a new direction, including the repair of a
road, may take place when it is required in the general public
interest.
Under Section 13 it shall be ensured that the road to be
constructed is located and designed so as to achieve the purpose of the
road with the least possible interference and inconvenience and without
unreasonable costs.
Section 15 provides that, for the construction of a road, a so
called working-plan shall be drawn up. The plan shall specify the land
needed for the road and the environmental consequences of the road
construction. When the plan is drawn up there shall be consultations
with inter alia the property owners concerned (Section 16). It shall
also be exhibited for inspection in a way similar to that regarding a
building plan (Section 17). The plan is adopted by the NRA after
consultations with the County Administrative Board. If the NRA and the
County Administrative Board have different views on the matter, it
shall be referred to the Government (Section 18).
According to Section 31 a road construction right (vägrätt)
arises when the authority responsible for the road starts using the
land specified in the working-plan, that is when the stretch of the
road across the property has been clearly marked on the land and the
construction work has commenced.
The road construction right authorises the maintainer of the road
to make use of the land needed for the road, notwithstanding the right
of any other party with regard to the property. It normally also
includes the right to make use of resources that can be extracted from
the land (Section 30).
Section 48, subsection 1 provides that, from the moment a
decision to adopt a working-plan has gained legal force and until the
road construction work is finished, no building may be erected or any
other measure be taken within the road area specified in the
working-plan, if this could subsequently obstruct the use of the area
for road purposes. Such measures may only be taken with the permission
of the County Administrative Board.
Under Section 55 the property owner or any other party who has
a right of usufruct is entitled to compensation for the road
construction right gained by the maintainer of the road. If the
maintainer of the road and the property owner cannot agree on the
amount of compensation, this amount is decided by a Real Estate Court
(fastighetsdomstol) in application of the relevant parts of the 1972
Expropriation Act (expropriationslag 1972:719).
Until 1 June 1988 anybody negatively affected by the adoption of
a working-plan could lodge an appeal with the Government (Section 75).
There was no other remedy.
COMPLAINTS
1. The applicants complain that their appeals were not taken into
due consideration by the Government and that they could not obtain a
court examination of the decision to adopt a working-plan. They invoke
in this respect Article 6 para. 1 and Article 13 of the Convention.
2. Initially all of the applicants also alleged violations of
Articles 8, 17 and 18 of the Convention, Article 1 of Protocol No. 1
and Article 2 of Protocol No. 4. These complaints were, however,
withdrawn by applicants nos. 1, 4-6, 8, 10, 12-17 and 19-21 in their
observations of 18 August 1991. The remainder of the applicants pursue
their complaints, referring to the inconveniences caused by the road
and the significant decrease of the value of their properties, for
which they have not yet been compensated. They submit, in particular,
that the road runs over the properties of applicants nos. 2 and 7 and
only forty metres from the dwelling-house of applicant no. 3. They
request the Commission to postpone the examination of these complaints
until documentation can be provided about the extent of the damage they
have suffered.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 February 1989 and registered
on 7 March 1989.
On 8 April 1991 the Commission decided to communicate the
application to the respondent Government and to invite them to submit
written observations on the admissibility and merits of the application
limited to the complaint under Article 6 of the Convention.
The Government's observations were submitted on 31 may 1991 and
the applicants' observations in reply on 18 August 1991.
On 7 October 1991 the Commission decided to refer the application
to the Second Chamber.
THE LAW
1. The applicants complain, under Article 6 para. 1 and Article 13
(Art. 6-1, 13) of the Convention, that their appeals to the Government
were not duly considered and that they could not obtain a court
examination of the Government's decision. Article 6 para. 1
(Art. 6-1) of the Convention reads in its relevant part:
"In the determination of his civil rights ..., everyone is
entitled to a ... hearing by [a] ... tribunal ..."
The issues to be decided are whether the working-plan was
decisive for the applicants' "civil rights" and, if so, whether a
genuine dispute of a serious nature arose between the applicants and
the authorities in relation to this plan. In the affirmative, it would
have to be determined whether the applicants had at their disposal a
procedure satisfying the conditions of Article 6 para. 1 (Art. 6-1) of
the Convention with regard to the dispute.
The Government admit the admissibility of this complaint and
state that it was not at the time possible under Swedish law to have
the working-plan reviewed by a court.
The Commission observes that the Government's decision upholding
the working-plan does not specify the contents of the applicants'
appeals. From the terms of the decision it appears, however, that the
appeals pertained, in essence, to the lawfulness of the NRA's decision
to adopt draft alternative A of the working-plans presented.
The Commission notes the fact that applicants nos. 4 and 16 are
lease-holders and that applicant no. 15 sold his property in 1987. The
question whether Article 6 para. 1 (Art. 6-1) of the Convention is
applicable in their cases must, however, be reserved for an examination
on the merits.
Having regard to the parties' submissions the Commission finds
that this complaint is not manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground
for declaring the complaint inadmissible has been established.
2. Applicants nos. 2-3, 7, 9, 11, 18 and 22-29 further allege
violations of Articles 8, 17 and 18 of the Convention, Article 1 of
Protocol No. 1 and Article 2 of Protocol No. 4 (Art. 8, 17, 18, P1-1,
P4-2) to the Convention. They refer to the inconveniences caused by the
road as well as the significant decrease of the value of their
properties.
(a) The Commission will first consider the complaint under Article 1
of Protocol No. 1 (P1-1), which reads:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject
to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it
deems necessary to control the use of property in
accordance with the general interest or to secure the
payment of taxes or other contributions or penalties."
The Commission finds that the adoption of the working-plan
interfered with the applicants' right to the peaceful enjoyment of
their possessions, in that it restricted the use of their properties.
It constituted a measure to control the use of property which must be
examined under the second paragraph of Article 1 (Art. 1) as to its
lawfulness, purpose and proportionality (e.g. Eur. Court H.R., Tre
Traktörer AB judgment of 7 July 1989, Series A No. 159, pp. 22-24,
paras. 55-62).
The Convention organs' power to review compliance with domestic
law is limited. It is in the first place for the national authorities
to interpret and apply that law. The requirement of lawfulness includes
that the impugned measure should have a basis in domestic law.
Furthermore, the law must have a certain quality, that is it must be
accessible, foreseeable and compatible with the rule of law. A law
which confers a discretion on the authorities must indicate the scope
of that discretion. The degree of precision required will depend on the
particular subject-matter (e.g. Eur. Court H.R., Fredin judgment of
18 February 1991, Series A no. 192, p. 16, para. 50).
As to the lawfulness of the working-plan the Commission observes
that, apart from the requirements under Section 13 of the Roads Act,
the domestic law leaves some discretion to the authorities in choosing
the working-plan to be adopted. It further notes that the NRA drew up
alternative working-plans which were exhibited for public inspection,
as prescribed in the Roads Act; and that the decision adopting
alternative A, taken after comprehensive investigation, contained
detailed reasons. The Commission is therefore satisfied that the
decision complained of had a basis in Swedish law.
As regards the purpose of the interference the Commission
observes that the aim of the working-plan was to improve the condition
of the road connection, in particular having regard to traffic safety
and environmental aspects, these being legitimate aims in the general
interest.
As regards the proportionality between the interference and the
aim pursued the Commission considers that a control of use of property
may, in certain circumstances, require compensation to be paid (Pine
Valley Developments Ltd and Others v. Ireland, Comm. Report 6.6.90,
paras. 83-84, Eur. Court H.R., Series A no. 222, p. 40). The Commission
observes that in the present case no agreements have as yet been
reached between the applicants and the maintainer of the road as to the
compensation amounts. It is also clear that if negotiations about such
compensation should not result in agreements, the applicants could
introduce proceedings to have the compensation decided by the Real
Estate Court in accordance with the Expropriation Act. It would
therefore be premature for the Commission at the present time to
examine the question of proportionality before the domestic
compensation proceedings have terminated.
In these circumstances the Commission finds that at present the
applicants have not shown that there has been a disproportionate
interference with their right under Article 1 of Protocol No. 1
(P1-1).
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
(b) As regards the complaints under Articles 8, 17 and 18 of the
Convention and Article 2 of Protocol No. 4 (Art. 8, 17, 18, P1-1,
P4-2) to the Convention the Commission finds no separate issue.
It follows that this complaint must also be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits of the case,
the applicants' complaint that they could not obtain a court
examination of the decision to adopt a working-plan; and
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
ANNEX
The applicants are:
1. Mr. Arvid Andersson, born in 1914 and resident at
Ljungskile;
2. Mr. Evert Andersson, a farmer born in 1934 and resident at
Ödsmål;
3. Mr. Kjell Berntsson, a carpenter born in 1947 and resident
at Ödsmål;
4. Mr. Bengt-Åke Emanuelsson, born in 1943 and resident at
Ljungskile;
5. Ms. Ingegerd Hedborn, born in 1923 and resident at
Ljungskile;
6. Mr. Michael Hedborn, born in 1955 and resident at
Ljungskile;
7. Mr. Göran Hermansson, a farmer born in 1932 and resident at
Ödsmål;
8. Ms. Marianne Isaksson, born in 1945 and resident at
Svenshögen;
9. Ms. Lily Jacobsson, a cook born in 1933 and resident at
Ödsmål;
10. Ms. Agnes Johansson, born in 1901 and resident at
Ljungskile;
11. Mr. Gösta Johansson, a crane operator born in 1937 and
resident at Svenshögen;
12. Mr. Bosse Karlsson, a manager born in 1951 and resident at
Svenshögen;
13. Mr. Kjell Karlsson, a farmer born in 1953 and resident at
Ljungskile;
14. Ms. Freda Keillor, a saleswoman born in 1942 and resident
at Ljungskile;
15. Mr. Conny Krantz, an engineer born in 1951 and resident at
Ödsmål;
16. Mr. Evert Larsson, a director born in 1931 and resident at
Ljungskile;
17. Ms. Lena Lundin, born in 1961 and resident at Ljungskile;
18. Ms. Ann-Margret Massoberg, a teacher born in 1935 and
resident at Ljungskile;
19. Ms. Adele Olsson, a clerk born in 1926 and resident at
Stenungsund;
20. Mr. Gunnar Olsson, a farmer born in 1929 and resident at
Stenungsund;
21. Mr. Lars Olsson, a farmer born in 1954 and resident at
Ljungskile;
22. Mr. Lars-Eric Persson, a police inspector born in 1939 and
resident at Ljungskile;
23. Ms. Marianne Persson, a housewife born in 1939 and resident
at Ljungskile;
24. Ms. Barbro Puumalainen, a child care-taker resident at
Ödsmål;
25. Mr. Roy Rundlöf, a port dealer born in 1949 and resident at
Svenshögen;
26. Mr. Gustav Sandberg, born in 1911 and resident at
Svenshögen;
27. Mr. Ingemar Svensson, a farmer born in 1943 and resident at
Stenungsund;
28. Mr. Lars Svensson, a farmer born in 1934 and resident at
Ödsmål; and
29. Mr. Gunnar Torstensson, a manager born in 1935 and resident
at Trollhättan.
Full & Egal Universal Law Academy