AS TO THE ADMISSIBILITY OF
Application No. 18660/91
by Roland BENGTSSON
against Sweden
The European Commission of Human Rights sitting in private on
7 December 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
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 18 December 1990
by Roland BENGTSSON against Sweden and registered on 13 August 1991
under file No. 18660/91;
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 15 December 1993 and 18 March 1994 and the observations
in reply submitted by the applicant on 13 February and 29 June 1994;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is a Swedish citizen, born in 1933. He is a farmer
and resides at Älmhult, Sweden. Before the Commission he is represented
by Mr. Göran Ravnsborg, resident at Lund, Sweden.
A. The particular circumstances of the case
The applicant and his daughter own certain real estate (stadsäga)
at Älmhult which is used for farming and forestry as well as for gravel
exploitation.
On 12 January 1988 the Municipality of Älmhult applied to the
Government in accordance with Chapter 2, sections 1 and 2 of the
Expropriation Act (expropriationslagen 1972:719) for leave to
expropriate substantial parts of the applicant's and his daughter's
real estate for industrial purposes and for the construction of a
container terminal to be used by Swedish Rail (Statens Järnvägar). The
application was the result of an investigation of four different
locations for the project and was accompanied by an explanation as to
why the area belonging to the applicant was best suited for the
purpose.
Having obtained the views of the parties involved, including the
applicant and the Kronoberg County Council (länsstyrelsen), the
Government (Bostadsdepartementet) decided on 11 January 1990 to grant
the Municipality of Älmhult permission to expropriate the area in
question. In its decision the Government stated inter alia:
(translation)
"The Municipality has shown in their application for leave
to expropriate that an area is needed for a container
terminal and that the area in question for various reasons
is far better suited for this than other proposed
alternatives. The Government agree with the Municipality
and the County Council that an area must also be reserved
for the extension of the terminal and for transport
intensive business in connection with the container
terminal area. ... The Government conclude that the
Municipality has shown that alternative areas for placement
are missing and that the entire area requested in the
application is necessary for urban development and for what
follows therefrom.
According to Chapter 2, section 12, subsection 1, of the
Expropriation Act leave to expropriate shall not be granted
if, inter alia, the inconveniences following the
expropriation, from a general and individual point of view,
outweigh the advantages which would follow from it. It
follows from the submissions obtained by the County Council
from the Agricultural Board and the Forestry Board that
(the applicant) has a strong personal interest in securing
that the agricultural property unit is not forced to cede
bigger areas of land. ... The Government find, however,
that the (alternative) proposals submitted by the County
Council render the future planning of the area difficult
and lead to both a poor utilisation of the necessary
exploitation installations and an unsuitable division of
the land. When striking a balance between the different
interests the Government find, therefore, that Chapter 2,
section 12, of the Expropriation Act does not prevent the
granting of leave to expropriate in accordance with the
Municipality's request ... .
The Government note that the Municipality has submitted
that the agricultural land may be used for agricultural
purposes until the area is required for industrial
purposes."
The Government furthermore decided that the expropriation permit
would expire if proceedings to this effect had not been instituted in
the ordinary courts of law before 11 January 1991.
In accordance with the provisions of the 1988 Act on Judicial
Review of Certain Administrative Decisions (Lag 1988:205 om rätts-
prövning av vissa förvaltningsbeslut) the applicant challenged the
Government's above decision before the Supreme Administrative Court
(Regeringsrätten). He requested the Court to quash the Government's
decision maintaining that it lacked objectivity and was based on an
incorrect evaluation of the facts and the evidence submitted.
The Supreme Administrative Court rendered its decision on
27 June 1990. It found that the Government had not evaluated the facts
and the evidence incorrectly and had not exceeded the margin of
appreciation which the Expropriation Act left to them. The Court found
that the decision did not violate any provision of the Expropriation
Act or any other legal rule. Accordingly the Government's decision was
upheld.
Pursuant to the expropriation permit issued by the Government on
11 January 1990 the Municipality instituted proceedings in the Real
Estate Court (Fastighetsdomstolen) in order to expropriate the property
in question. In a partial judgment of 15 January 1991 the Court decided
that parts of the land would be transferred to the Municipality with
the same rights as if the expropriation had been completed. This
judgment was upheld by the Göta Court of Appeal (Göta hovrätt) on
11 September 1991. As an advance payment of the compensation therefor
the applicant received 300,000 SEK. As regards the remainder of the
applicant's land the Real Estate Court pronounced judgment on
17 December 1993 according to which the applicant was ordered to
surrender his property and the Municipality was ordered to pay to the
applicant an additional 3,286,650 SEK plus interest. Furthermore, the
Municipality was ordered to pay the applicant's legal costs.
The judgment has been appealed against and the case is at present
pending in the Göta Court of Appeal (hovrätten).
B. Relevant domestic law
a. The 1972 Expropriation Act
As regards expropriation the law applicable in the present case
is primarily the 1972 Expropriation Act (Expropriationslag (1972:719),
hereinafter "the 1972 Act").
As a rule it is for the Government to decide whether
expropriation should be authorised. The decision takes the form of an
expropriation permit and is based on the various conditions laid down
in the Act. The permit does not automatically lead to an expropriation
but it entitles a given public authority to effect the expropriation
if necessary. The effect in law of the issuing of an expropriation
permit is to confer on its holder a title to acquire the designated
property.
According to Chapter 1, section 1, of the 1972 Act, land
belonging to anyone but the Government may be acquired by expropriation
with title, usufruct (nyttjanderätt) or easement (servitut). An
expropriation permit is subject to a time-limit for service of a
summons to appear in court for the purpose of judicial proceedings.
Within this time-limit the authority must initiate judicial proceedings
failing which the permit will lapse, Chapter 3, section 6 of the 1972
Act.
The expropriation is not completed until compensation has been
fixed and paid. The compensation shall correspond to the market value
of the expropriated land plus the further damage the owner has suffered
(cf. Chapter 4, section 1, of the 1972 Act). The Real Estate Court has
jurisdiction in respect of the compensation to be paid and appeals
against its decision may be lodged with the Court of Appeal and, in the
final resort, with the Supreme Court (Högsta domstolen).
In Chapter 2 of the 1972 Act the grounds justifying the issuing
of an expropriation permit are enumerated. The relevant provisions in
this context are sections 1 and 2. According to Chapter 2, section 1,
expropriation is allowed in order to enable the Municipality to acquire
rights over land which is needed according to future public
requirements, for urban development and what follows therefrom. Within
areas of urban development (tätbebyggelse) expropriation is allowed
only if there are reasons to assume that, within a foreseeable time,
the area will be subject to building or other construction activities
which are deemed important in the general interest, or if there is an
urgent necessity for the Municipality to acquire rights over the land
for the furthering of planned building or for any other similar reason.
According to Chapter 2, section 2, of the 1972 Act, expropriation
is also permitted to make way for installations to supply the public
need for transportation or other communications. The provision is meant
to be used to provide land for all kinds of public need for
communication and transportation. The travaux préparatoires indicate
that the concept of "installation" (anläggning) should be given an
extensive interpretation and include also installations which are not
obviously necessary for transportation but are necessary for an
appropriate use of the ground.
As regards the question of what investigation or evidence of the
need for expropriation the expropriating party has to present before
the Government Chapter 3, section 2, of the 1972 Act stipulates that
the application for an expropriation permit should be in writing and
state - inter alia - the claim and the circumstances on which it is
founded and in addition the investigation that might be needed in every
single case. Section 2 of the Expropriation Ordinance (Expropriations-
kungörelse (1972:727)) furthermore provides that an application for an
expropriation permit should include a description of the enterprise
which in every single case should be complete so as to allow for an
assessment of the necessity of the expropriation. According to
Chapter 2, section 12, subsection 1, of the 1972 Act an expropriation
permit must not be granted if the purpose of the expropriation can be
attained by other appropriate means, or if the disadvantages following
from the expropriation would outweigh its advantages from general and
individual points of view.
b. The 1988 Act on Judicial Review of Certain Administrative
Decisions
Since 1988 the Supreme Administrative Court examines cases under
the 1988 Act on Judicial Review of Certain Administrative Decisions.
In performing this task the Supreme Administrative Court is the only
and final court. This Act was designed for the purpose of securing that
Sweden fulfil its obligations under Article 6 of the Convention after
the European Court of Human Rights in a number of cases had reached the
conclusion that a court control of administrative decisions was
required to a further extent than provided for under Swedish law and
foreseen by the Swedish legislator.
According to the 1988 Act, the Supreme Administrative Court shall
examine certain decisions which the Government or other administrative
authorities have taken in administrative cases. The Act applies to
decisions which affect the personal status of private citizens or their
mutual personal and economic relations (cf. Chapter 8, section 2, of
the Instrument of Government), as well as decisions which affect the
relations between private citizens and the public administration and
relate to obligations incumbent upon private citizens or otherwise
interfere with the personal or economic affairs of private citizens
(cf. Chapter 8, section 3, of the Instrument of Government), provided
that the decision in question cannot be examined by a court of law in
some other way.
The basic provision of the 1988 Act, section 1 has the following
wording:
(translation)
"At the request of a private party in such administrative
proceedings before the Government or an administrative
authority as pertain to any situation envisaged by
Chapter 8, sections 2 and 3, of the Instrument of
Government, the Supreme Administrative Court is to review
the issue whether the decision in the case is contrary to
any legal rule referred to by the requesting party or which
is in any way apparent from the circumstances.
Judicial review may pertain only to such decisions as
- imply exercise of public authority regarding a private
subject,
- may otherwise be reviewed by a court only following a
request for relief for substantive defects and
- which could not otherwise be subject to review."
The Supreme Administrative Court's examination concentrates in
principle on the question whether the challenged decision is contrary
to any legal rule. According to the travaux préparatoires to the 1988
Act the examination should concentrate on the lawfulness of the
challenged decisions but the Court also has the power to re-examine the
facts upon which the application of the law has been based.
Furthermore, the Supreme Administrative Court should examine whether
the challenged decision is compatible with the constitutional
principles set out in Chapter 1, section 9, of the Instrument of
Government: objectivity, impartiality and the principle of equality
before the law. In addition it should examine whether errors in the
procedure have occurred which might have affected the outcome of the
case. If the authority responsible for the challenged decision has had
the discretion under the relevant law to make a choice between a number
of different options, all of which must be considered lawful, the
Supreme Administrative Court's examination should be restricted to the
question whether the challenged decision falls within the discretion
thus afforded to the authority concerned under the law in question.
When examining the Government Bill proposing this new remedy for
adoption by the Parliament, the Council of Legislation (lagrådet)
stated that it was to be noted that the examination of the lawfulness
of an administrative decision in some cases must include an assessment
of whether the prescribed balance of interests had been appropriately
observed.
If the Supreme Administrative Court finds that an administrative
decision is contrary to a certain legal provision, it shall quash the
decision. If the quashed decision ought to be replaced by another
decision, the Supreme Administrative Court shall refer the case back
to the administrative authority which has taken the challenged
decision. In a case where the Court finds the decision lawful, the
decision will stand as valid.
An examination under the 1988 Act does not prevent the
enforcement of the challenged decision, unless the Supreme
Administrative Court decides otherwise.
No leave to appeal procedure applies under the 1988 Act.
The 1988 Act also contains certain provisions as to who may
request judicial review under the Act and as to the time-limit within
which such a request shall be made. It also regulates how the Supreme
Administrative Court shall be composed when applying the 1988 Act. In
other respects, the procedure in cases examined under the 1988 Act is
governed by the Administrative Procedure Act (Förvaltningsprocesslagen
(1971:291)).
By virtue of a new Act (1991:1825) containing certain amendments
to the 1988 Act, the latter shall remain in force until the end of
1994.
c. The Administrative Procedure Act of 1971
The proceedings before the administrative courts in Sweden are
governed by the Administrative Procedure Act unless the material law
applied by the court contains some rules of procedure. The
administrative courts have a duty to carry out investigations ex
officio to a further extent than the ordinary courts. It is the
responsibility of the administrative court to ensure that each case is
investigated to the extent required according to the nature of the
case. The procedure before the Supreme Administrative Court is in
principle a written procedure, but the Court may decide to hold oral
hearings on specific matters if this is likely to assist it in its
examination of a case or to expedite the proceedings (cf. section 9 of
the Administrative Procedure Act).
COMPLAINTS
The applicant alleges a violation of Article 6 para. 1 of the
Convention maintaining that the judicial review by the Supreme
Administrative Court pursuant to the 1988 Act makes it impossible to
accept this as a domestic remedy. He furthermore alleges that the
review is limited to the extent that it does not fulfil the
requirements of Article 6 para. 1. The applicant also complains that
he has no right to an oral hearing in the proceedings before the
Supreme Administrative Court.
The applicant finally complains that the expropriation of his
property is contrary to Article 1 of Protocol No. 1 to the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 December 1990 and registered
on 13 August 1991.
On 1 September 1993 the Commission (Second Chamber) decided to
bring the application to the notice of the respondent Government and
to invite them to submit written observations on the admissibility and
merits of the issues raised under Article 6 of the Convention.
After an extension of the time-limit the Government's
observations were submitted on 15 December 1993. Further observations
were submitted by the Government on 18 March 1994. The applicant's
observations in reply were submitted on 13 February and 29 June 1994
respectively.
THE LAW
1. The applicant complains that the proceedings before the Supreme
Administrative Court did not fulfil the requirements of Article 6
para. 1 (Art. 6-1) of the Convention which, as far as relevant, reads
as follows:
"1. In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public
hearing ... by [a] ... tribunal ...".
In support of his allegation the applicant submits that even in
Swedish law the judicial review procedure in question cannot be
considered as an ordinary remedy, which appears from the fact that the
final administrative authority is not obliged to indicate in its
decision that an appeal against its decision exists. Furthermore,
whereas the Swedish Supreme Court and the Supreme Administrative Court
normally review all aspects of a case and make independent and
conclusive determinations as to the matter reviewed, the judicial
review open to the applicant under the 1988 Act limits the powers of
the Supreme Administrative Court to those of a cassation court which
can only either sustain or quash the decision. As the review in the
applicant's opinion furthermore is limited to questions of law this
implies that the Supreme Administrative Court does not determine civil
rights and obligations within the meaning of Article 6 (Art. 6) of the
Convention.
The applicant also maintains that the review under the 1988 Act
falls short of fulfilling the requirements of Article 6 para. 1
(Art. 6-1) of the Convention due to the fact that the procedural
provisions applicable do not provide a right to an oral hearing
regardless of the fact that the Supreme Administrative Court is the
only "tribunal" which reviews the case.
The Government maintain that domestic law and practice show that
although the review under the 1988 Act is supposed to concentrate on
an examination of the lawfulness of the challenged administrative
decision, it also includes a re-examination of the facts, and an
examination as to whether the decision is compatible with the
constitutional principles of objectivity, impartiality and equality
before the law. The Supreme Administrative Court furthermore examines
whether procedural errors have occurred and - in cases of expropriation
- the review must also include an assessment of whether the prescribed
balance of interests has been observed and may for this purpose even
include an examination of new facts.
The Government furthermore refer to the fact that in the present
case the Supreme Administrative Court actually not only examined the
lawfulness of the challenged decision but also made an assessment of
the balance of interests on which the decision to grant the
expropriation permit rested.
As regards the question of an oral hearing the Government
maintain that this question, as submitted, is of an abstract nature.
In the alternative the Government maintain that this issue was not
raised in the original application to the Commission and, consequently,
it should be rejected as having been submitted out of time. In any
event the Government point out that the applicant never requested an
oral hearing for which reason he must be considered as having tacitly
waived his right in this respect.
As regards the requirements of Article 26 (Art. 26) of the
Convention to which the Government refer in respect of the question of
an oral hearing the Commission recalls that according to Rule 44 para.
4 of its Rules of Procedure the date of introduction of an application
shall in general be considered to be the date of the first
communication from the applicant. The Commission may nevertheless for
good cause decide that a different date be considered to be the date
of introduction.
In the applicant's first communication with the Commission of
18 December 1990 he merely stated that the respondent Government, by
issuing an expropriation permit had, in his opinion, violated Article
6 para. 1 (Art. 6-1) of the Convention as well as Article 1 of Protocol
No. 1 (P1-1) to the Convention. This communication was clearly not
sufficient to constitute a full application in accordance with Rule 44
paras. 1 and 2 of the Commission's Rules of Procedure, in particular
as it contained no statement of the facts or arguments. Nevertheless,
the Commission considers that the letter with enclosures submitted on
18 December 1990 were sufficient to constitute the introduction of an
application since they set out, albeit summarily, the object of the
application (cf. No. 10293/83, Dec. 12.12.85, D.R. 45 p. 41).
Since the scope of the application in respect of the date of
introduction is circumscribed by the terms of the applicant's first
communication the Commission must next examine whether the further
details of the application should be considered as legal submissions
in respect of the applicant's main complaints to which the six months
rule would not be opposable (cf. no. 12015/86, Dec. 6.7.88., D.R. 57
p. 108) or whether they should be considered as separate complaints
introduced at a later stage (cf. No. 10857/84, Dec. 15.7.86. D.R. 48
p. 106).
In this respect the Commission notes the contents of the
applicant's second communication with the Commission of 30 July 1991
which contained further arguments as to the basis for his complaints
and was set out in the official application form provided by the
Commission's Secretariat. Having regard to the contents of this
communication the Commission agrees with the Government that the
applicant did not therein, in substance, raise the issue of the lack
of an oral hearing in the Supreme Administrative Court. The Commission
furthermore considers that the complaint based on the lack of an oral
hearing cannot be interpreted as merely a particular aspect of the
complaint based on the allegation, considered below, that the scope of
the judicial review offered under the 1988 Act did not fulfil the
requirements of Article 6 para. 1 (Art. 6-1) of the Convention. The
Commission finds that the complaint of a lack of an oral hearing
contains a distinct, precise fact in respect of the right to a fair
hearing. In these circumstances, for the purposes of the six months
rule, the complaint must be considered separately.
Thus, the final decision to be taken into consideration in this
respect is the judgment of the Supreme Administrative Court, which was
given on 27 June 1990. However, the Commission finds that the complaint
of a lack of an oral hearing was not raised in substance before 25 June
1993 when the applicant submitted further information to the
Commission. That is more than six months after the date of the
judgment.
It follows that this complaint has been introduced out of time
and must be rejected in accordance with Article 27 para. 3 (Art. 27-3)
of the Convention.
As regards the complaint that the review offered by the Supreme
Administrative Court pursuant to the 1988 Act did not, in respect of
its scope, fulfil the requirements of Article 6 para. 1 (Art. 6-1), the
Commission recalls that this new Act provides for an appeal to the
Supreme Administrative Court against administrative decisions involving
exercise of public authority regarding a private individual or legal
person in cases where no other judicial remedy is available. The scope
of the Act is defined by reference to certain provisions in the
Instrument of Government, and some enumerated categories of decisions
are excluded from the application of the Act.
The examination by the Supreme Administrative Court under this
new law is in principle limited to the question whether the challenged
decision is in conflict with any legal rule and according to the
travaux préparatoires the examination shall concentrate on the
lawfulness of the challenged decision. However, the Commission recalls
that the competence of the Supreme Administrative Court is not limited
to an examination of how the law has been applied but may include a
re-examination of the facts upon which the application of the law was
based. The Supreme Administrative Court shall also examine whether
fundamental legal principles such as objectivity, impartiality and
equality before the law have been respected. Moreover, the Supreme
Administrative Court shall examine whether there have been any
procedural errors which may have affected the outcome of the case.
The Commission also recalls that the scope of review must be
assessed in the light of the fact that expropriation is not a matter
exclusively within the discretion of the administrative authorities but
is based on various conditions laid down in the Expropriation Act of
1972, in particular Chapter 2 of the Act where the grounds justifying
the issuing of an expropriation permit are enumerated. For example the
Commission recalls that according to Chapter 2, section 12, subsection
1 of the Act an expropriation permit must not be granted if the purpose
of the expropriation can be attained by other appropriate means, or if
the disadvantages resulting from the expropriation would outweigh its
advantages from general and individual points of view. It was for the
Supreme Administrative Court to satisfy itself that this provision had
been complied with.
Finally, the Commission recalls that in the present case the
applicant maintained, in his appeal to the Supreme Administrative
Court, that the Government's decision regarding the expropriation
permit lacked objectivity and was based on an incorrect evaluation of
the facts and the evidence submitted. Confining itself as far as
possible to examining the question raised by the case before it the
Commission has found no evidence in this case which could lead to the
conclusion that the Supreme Administrative Court in examining the above
complaints, as submitted by the applicant, had to decline jurisdiction
in replying to them or in ascertaining the various facts.
In these circumstances the Commission finds that the review
available to the applicant in the instant case fulfilled the
requirements of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant also complains that he has been deprived of his
property contrary to 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."
He argues in support of his allegation that the authorities were
not duly compelled to investigate into, and present reasonable
alternatives to the expropriation in question which could have implied
a fair balance between gains and losses. He considers that an excessive
burden has been placed upon him.
In respect of this complaint the Commission recalls that the
Government decided on 11 January 1990 to grant the authorities the
expropriation permit and that this decision was upheld by the Supreme
Administrative Court on 27 June 1990. With reference to this permit the
authorities instituted court proceedings in order to finalise the
expropriation. In these circumstances the Commission considers that
there has been an interference with the applicant's right of property
as guaranteed in Article 1 of Protocol No. 1 (P1-1) to the Convention.
However, the proceedings whereby a final decision as to the amount of
compensation the applicant will receive pursuant to domestic
legislation have not yet come to an end. Therefore, the Commission
finds that it is premature to consider whether the interference with
the applicant's property rights is justified since the question of a
reasonable relationship of proportionality between the interference
with the applicant's rights and the public interest objectives being
pursued cannot be determined.
In such circumstances the Commission finds that the condition as
to the exhaustion of domestic remedies has not been fulfilled and this
part of the application must accordingly be rejected under Article 27
para. 3 (Art. 27-3) 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
Full & Egal Universal Law Academy