AS TO THE ADMISSIBILITY OF
Application No. 14083/88
by Knut Alfred ANDERSSON and others
against Sweden
The European Commission of Human Rights sitting in private
on 7 January 1991, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Sir Basil HALL
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 1 July 1987
by Knut Alfred ANDERSSON and others against Sweden and registered
on 1 August 1988 under file No. 14083/88;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants, who are Swedish citizens, are set out in the
Annex. Before the Commission, they are represented by Mr. Per
Svensson, a lawyer practising in Sundsvall.
The applicants own a number of agricultural properties in the
area of Dala Järna. Following initiatives from the Agricultural
Committee (lantbruksnämnden) and the County Administrative Board
(länsstyrelsen) the applicants' properties have been the objects of a
redistribution of land under the Property Formation Act
(fastighetsbildningslagen).
On 9 April 1985 the Property Formation Authority (fastighets-
bildningsmyndigheten) in the County of Kopparberg gave permission to a
property reformation of an area covering some 10.000 hectares of
land.
Some of the applicants appealed to the Falu District Court
(tingsrätten) claiming that the permission be quashed or that their
properties be excluded from the future property formation. On
3 December 1985 the District Court rejected the appeal.
Some applicants appealed to the Svea Court of Appeal (Svea
hovrätt) which rejected the appeal on 5 May 1986.
The Supreme Court (Högsta domstolen) refused leave to appeal
on 10 December 1986.
The property reformation was ordered pursuant to Chapter 5
Sections 4 and 5 of the Property Formation Act. The provisions in the
Act can be summarised as follows.
Property reformation involves the transfer of land from one
property to another. Land which is being taken away from one property
shall be compensated either in the form of other land or monetary
compensation. Property reformation may take place on the condition
that a more suitable division of properties or otherwise a more
suitable usage of the land is obtained and the advantages outweighs
the costs and inconveniences involved. The property reformation in the
present case could under Chapter 5 Section 5 para. 2 of the Act not
take place if the property owners which have a considerable interest
in the matter more generally opposed the reformation and the reasons
therefor were justified. When examining such an issue regard should in
particular be had to the opinion of those who have the greatest
interest in the reformation.
COMPLAINTS
The applicants allege a violation of Article 1 of Protocol No. 1
to the Convention on the ground that the permission to reform the
properties results in land being taken away from them and given to
other private subjects. This results in the big landowner becoming
bigger and the small landowner becoming smaller. The applicants submit
that the "public interest" in Article 1 cannot justify a compulsory
redistribution of land between private individuals.
THE LAW
1. The Commission does not find it necessary to examine whether
each of the applicants can claim to be a "victim" of a violation
within the meaning of Article 25 (Art. 25) of the Convention and
whether each applicant has complied with the condition in Article 26
(Art. 26) of the Convention as to the exhaustion of domestic remedies
with regard to the procedure concerning the permission to the land
redistribution.
2. The applicants allege a violation of Article 1 of Protocol
No. 1 (P1-1) to the Convention 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 applicants submit that land is being taken away from them
and given to other private subjects and that Article 1 of Protocol No. 1
(P1-1) does not permit such a transfer of property between private
subjects.
The Commission notes that the applicants are entitled to
compensation, but that they have not informed the Commission of the
outcome on this point. Nor have they indicated the extent of the area
of land of which they have been deprived.
As regards the notion of "public interest" in Article 1 of
Protocol No. 1 (P1-1), the Court has stated as follows (cf. Eur. Court
H.R., James and Others judgment of 21 February 1986, Series A no. 98,
p. 32, para. 46):
"Because of their direct knowledge of their society and its
needs, the national authorities are in principle better
placed than the international judge to appreciate what is
"in the public interest". Under the system of protection
established by the Convention, it is thus for the national
authorities to make the initial assessment both of the
existence of a problem of public concern warranting measures
of deprivation of property and of the remedial action to be
taken (see, mutatis mutandis, the Handyside judgment of
7 December 1976, Series A no. 24, p. 22, para. 48). Here, as in
other fields to which the safeguards of the Convention
extend, the national authorities accordingly enjoy a certain
margin of appreciation.
Furthermore, the notion of "public interest" is necessarily
extensive. In particular, as the Commission noted, the
decision to enact laws expropriating property will commonly
involve consideration of political, economic and social
issues on which opinions within a democratic society may
reasonably differ widely. The Court, finding it natural that
the margin of appreciation available to the legislature in
implementing social and economic policies should be a wide
one, will respect the legislature's judgment as to what is
'in the public interest' unless that judgment be manifestly
without reasonable foundation. In other words, although the
Court cannot substitute its own assessment for that of the
national authorities, it is bound to review the contested
measures under Article 1 of Protocol No. 1 (P1-1) and, in so
doing, to make an inquiry into the facts with reference to which
the national authorities acted."
As regards the issue of whether Article 1 of Protocol No. 1
(P1-1) guarantees a right to compensation and the level of any such
compensation, the Court has held as follows (cf. above-mentioned James
and Others judgment, p. 36, para. 54):
"The first question that arises is whether the availability
and amount of compensation are material considerations under
the second sentence of the first paragraph of Article 1 (P1-1),
the text of the provision being silent on the point. The
Commission, with whom both the Government and the applicants
agreed, read Article 1 (Art. 1) as in general impliedly requiring the
payment of compensation as a necessary condition for the taking of
property of anyone within the jurisdiction of a Contracting State.
Like the Commission, the Court observes that under the legal
systems of the Contracting States, the taking of property in
the public interest without payment of compensation is
treated as justifiable only in exceptional circumstances not
relevant for present purposes. As far as Article 1 is
concerned, the protection of the right of property it
affords would be largely illusory and ineffective in the
absence of any equivalent principle. Clearly, compensation
terms are material to the assessment whether the contested
legislation respects a fair balance between the various
interests at stake and, notably, whether it does not impose
a disproportionate burden on the applicants (see the
above-mentioned Sporrong and Lönnroth judgment, Series A no. 52,
pp. 26 and 28, paras. 69 and 73).
The Court further accepts the Commission's conclusion as to
the standard of compensation: the taking of property without
payment of an amount reasonably related to its value would
normally constitute a disproportionate interference which
could not be considered justifiable under Article 1 (Art. 1).
Article 1 (Art. 1) does not, however, guarantee a right to full
compensation in all circumstances. Legitimate objectives of "public
interest", such as pursued in measures of economic reform or measures
designed to achieve greater social justice, may call for less than
reimbursement of the full market value. Furthermore, the Court's power
of review is limited to ascertaining whether the choice of
compensation terms falls outside the State's wide margin of
appreciation in this domain (see paragraph 46 above)."
It follows from the Court's judgment in the James and Others
case that a transfer of property from one private subject to another
private subject may as such be compatible with the "public interest".
The Commission also refers to the Court's Erkner and Hofauer judgment
of 23 April 1987 (Eur. Court H.R., Series A no. 117, p. 78, para. 131)
and to its decision on admissibility in the case of H. v. Sweden
(No. 11417/85, Dec. 9.10.85, not published) which concerned
redistribution of land to other private subjects.
In the present case, the Commission recalls that the
redistribution of land was decided in order to obtain a more suitable
division of properties or otherwise a more suitable usage of the
land.
On the basis of the above considerations and noting that the
applicants have not provided any information on the final outcome of
the redistribution of land, the Commission finds that the material
submitted by the applicants does not disclose any appearance of a
violation of Article 1 of Protocol No. 1 (P1-1).
It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
ANNEX
1. Knut Alfred Andersson, born in 1913
2. The Estate of Ilbäcks Herman Johansson
3. Hilmer Hermansson
4. Ragnar Hermansson, born in 1920
5. Ingvar Hermansson, born in 1923
6. Henry Hermansson
7. Christina Granberg, born in 1932
8. Märta Olars, born in 1920
9. Hol Ernst Persson, born in 1913
10. The Estates of Börs Erik Eriksson and Börs Katrina Eriksson
11. Ester Eriksson
12. Bernhard Eriksson
13. Britta Eriksson
14. Edvin Eriksson
15. Gunvor Andersson, born in 1939
16. Jöns Axel Nilsson, born in 1907
17. Ingrid Einarsson, born in 1942
18. Berta Larsson, born in 1914
19. The Estate of Börs Johan Mattson
20. Ingvar Johansson, born in 1914
21. Erik Johansson, born in 1919
22. Sven Ingvarsson, born in 1944
23. Kjell Ingvarsson, born in 1961
24. The Estate of Hans Einar Eriksson
25. Rut Lilja, born in 1930
26. Gustav Einarsson, born in 1936
27. Vallner Hultgren, born in 1924
28. Ingrid Hultgren, born in 1932
29. Hildur Jonsson, born in 1926
30. Mats Hultgren, born in 1952
31. The Estate of Mört Greta Andersson
32. Helmer Nilsson
33. Greta Nilsson
34. Märta Klang
Full & Egal Universal Law Academy