AS TO THE ADMISSIBILITY OF
Application No. 12521/86
by ASSARGENERATOR HB
and ASSAR NORDEBO
against Sweden
The European Commission of Human Rights sitting in private
on 12 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy 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 15 October 1986
by Assargenerator HB and Assar Nordebo against Sweden and registered
on 7 November 1986 under file No. 12521/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they appear from the applicants'
submissions, may be summarised as follows.
The applicants are Assargenerator (handelsbolag), a company
with its seat at Kalix (the first applicant), and Mr. Assar Nordebo
(the second applicant), a Swedish citizen born in 1926 and resident at
Vitvattnet, Kalix. Mr. Nordebo is one of the owners of Assargenerator.
On 4 January 1982 the first applicant applied to the Water
Court (vattendomstolen) of the District Court (tingsrätten) of Luleå
for permission to construct a small power station (minikraftverk) to
make use of the water power in the river Kattån. The Court considered
that the question whether the proposed project should be permitted or
not was an issue to be determined by the Government. In an opinion
submitted to the Government (the Ministry of Agriculture) and dated 11
October 1982 the Court referred, pursuant to Chapter 4 Section 20 of
the Water Act (vattenlagen), the issue of a permission to be
determined by the Government. The Court stated, as its opinion, that
it saw no reason to refuse the permission on the basis of the
provisions of the Water Act.
On 4 January 1982 the second applicant applied to the Water
Court for permission to use, at the most, half of the water power of
the river Vistån and to construct and run a mini power station. The
Court considered that the question whether the proposed project should
be permitted or not was an issue to be determined by the Government.
In an opinion submitted to the Government and dated 11 September 1983
the Court referred the issue of a permission to be determined by the
Government. The Court stated, as its opinion, that it saw no reason,
on the basis of the provisions of the Water Act, not to permit the
proposed enterprise.
On 23 May 1985 the Government refused to grant the permissions
requested and rejected a claim for compensation for loss of income
from the first applicant. In its decision relating to Kattån, the
Government stated:
"The Government consider that the provisions of Chapter 2 of
the Water Act (1918:523) do not prevent the requested project.
The project concerns the river Kattån which is part of the
tributaries of the river Kalix. These inland waters are
regulated by the parliamentary decision of 1977 concerning the
guidelines of the national planning of the inland waters in
Northern Svealand and Norrland. According to this decision, no
power station shall be constructed in the river Kalix or its
tributaries. However, it appears from the parliamentary
resolution concerning the above-mentioned guidelines that they
may not constitute an obstacle to small measures relating,
for example, to constructions already made. The river Kattån
is not affected by such constructions. The project is not
required for the local supply of energy.
The Government consider that the proposed development cannot
be considered as such a small measure as would be compatible
with the decision concerning the guidelines for the national
planning. The development is therefore incompatible with
general planning policy.
The Government find that the project is contrary to Chapter 4
Section 18 para. 2 of the Water Act (1918:523).
The request for compensation for loss of income from energy
production is rejected."
The Government's decision relating to Vistån contained similar
reasoning, but for the fact that Vistån was part of the tributaries to
the Pite river.
The applicants pursued their applications before the Water
Court. They argued inter alia that the Parliament's decision
concerning the above-mentioned guidelines did not apply to the
tributaries to the Kalix and Pite rivers and that, consequently, the
Government's decision was based on incorrect assumptions. In judgments
dated 5 September 1985 the Water Court rejected the applications on
the ground that the permissibility of the proposed enterprises had
been finally determined by the Government.
The applicants appealed to the Water Court of Appeal
(vattenöverdomstolen) which confirmed the judgments of the Water Court
on 20 January 1986 since the proposed projects were not permissible
following the Government's decision.
The applicants lodged a further appeal with the Supreme Court
(högsta domstolen) which refused to grant leave to appeal on
24 September 1986.
Later the applicants applied for re-opening (resning) of the
proceedings. The application was rejected by the Supreme Court on
5 October 1987. A further application for re-opening of the
proceedings was lodged with the Supreme Court on 23 April 1988.
COMPLAINTS
1. The applicants complain that as a result of the judgments in
the case they have been deprived of their sources of energy and their
claims for compensation have been rejected. They allege that Article 1
of Protocol No. 1 to the Convention has been violated.
2. The authorities involved in the case have not applied the law
in a manner compatible with the public interest. The courts have
accepted the false descriptions of the relevant Bill given by the
Government. The applicants' right to an impartial and public hearing
within a reasonable time before an impartial and independent court, as
guaranteed by Article 6 of the Convention, has not been respected.
THE LAW
1. The applicants complain that they have been deprived of their
sources of energy in breach of Article 1 of Protocol No. 1 (P1-1) to
the Convention, which protects the right to property.
Article 26 (Art. 26) of the Convention provides that the
Commission may only deal with an application if it has been submitted
within a period of six months from the date on which the final
decision was taken. Here, the question arises as to which decision is
to be regarded as the "final decision". The Commission notes in this
context that in its opinions to the Government of 11 October 1982 and
11 September 1983 the Water Court considered that, under the relevant
provisions, the Government were the competent body to determine the
question whether the applicants' projects were to be permitted under
the Water Act. The Commission also notes that in the judgments of 5
September 1985 the Water Court found that the Government's decisions
of 23 May 1985 had finally settled the question of whether the
proposed constructions could be permitted. The Water Court of Appeal
found that the proposed projects were not permissible following the
Government's decision and confirmed the judgments of the Water Court.
The Commission considers that it follows from the above that
the question whether the proposed projects were permissible was
finally decided by the Government on 23 May 1985. Consequently, this
decision must be regarded as "the final decision" for the purpose of
calculating the six months period. It follows that, since the
application was introduced on 15 October 1986 - which is more than six
months after 23 May 1985 - this complaint has been raised out of
time.
Accordingly, this part of the application must be rejected
pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicants also complain that they have not been accorded
a fair and public hearing satisfying the conditions or Article 6
para. 1 (Art 6-1) of the Convention.
In view of its consideration above under No. 1 the Commission
considers that any allegation relating to the proceedings before the
Government must also be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention as being out of time.
3. Insofar as the applicants maintain that the proceedings before
the Water Court and the Water Court of Appeal did not meet the
requirements of Article 6 (Art. 6) of the Convention, the Commission
considers that it is not necessary to decide whether any "civil right"
of the applicants was determined in those proceedings. Even if this
were so, the Commission finds no appearance of any violation of
Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that, in this respect, 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
DECLARES THE APPLICATION INADMISSIBLE
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C. A. NØRGAARD)