AS TO THE ADMISSIBILITY OF
Application No. 24191/94
by Lars-Göran BERGLUND and Others
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 19 October 1995, the following members being present:
MM. G. JÖRUNDSSON, Acting President
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the 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 19 May 1994 by
Lars-Göran Berglund and Others against Sweden and registered on
25 May 1994 under file No. 24191/94;
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 26 applicants (see Annex I) are Swedish citizens and reside
at Sölvesborg. Before the Commission they are represented by
Staffan Michelson, a lawyer practising in Stockholm.
A. The particular circumstances of the case
The facts of the case, as submitted by the applicants, may be
summarised as follows.
In 1988, the road administrations (vägförvaltningarna) of the
Counties of Blekinge and Kristianstad adopted a working-plan
(arbetsplan) for the reconstruction of a highway - the E22 - and some
other roads outside of Sölvesborg. For several years before the
adoption of the plan, the administrations had considered alternative
proposals and had taken into account, inter alia, environmental
effects, construction costs, traffic safety and accessibility before
deciding on the location of the highway. After its adoption, the
working-plan was publicised and the public was given an opportunity to
comment on the project. Several authorities, organisations and
individuals, including some of the applicants, submitted their
observations. On 8 June 1989 the respective County Administrative
Boards (länsstyrelserna) submitted the working-plan to the National
Road Administration (Vägverket) for approval in accordance with Section
18 of the Public Roads Act (Väglagen, 1971:948).
By decision of 2 July 1990, the National Road Administration
approved the working-plan. It considered that the proposed location of
the highway was the most appropriate alternative with respect to the
effects on land, waters and the environment in general. It further
found that the proposed reconstructions achieved the purpose of the
roads with the least possible interference and inconvenience and
without unreasonable costs, as required by Section 13 of the Public
Roads Act.
Several people, among them some of the applicants, appealed to
the Government, claiming that the working-plan was unlawful under,
inter alia, the Public Roads Act and the Environmental Protection Act
(Miljöskyddslagen, 1969:387) and that alternative locations of the
highway, including the one advocated by the majority of the appellants,
had not been sufficiently investigated.
On 2 May 1991 the Government, agreeing with the findings of the
National Road Administration, upheld its decision. The applicants did
not apply to the Supreme Administrative Court for a review of the
Government's decison under the Act on Judicial Review of Certain
Administrative Decisions (Lagen om rättsprövning av vissa
förvaltningsbeslut, 1988:205 - "the 1988 Act").
47 inhabitants of Sölvesborg, including all the applicants, later
brought an action against the State through the National Road
Administration in the Real Estate Court (Fastighetsdomstolen) of
Karlskrona, requesting the Court to prohibit further construction work.
They contended that the road project was unlawful under Section 4 of
the Environmental Protection Act, as, allegedly, it did not meet the
requirement of achieving its purpose with the least possible
interference and inconvenience and without unreasonable costs. Instead,
the plaintiffs suggested an alternative location of the highway which,
they claimed, would be more appropriate.
In reply, the National Road Administration claimed that the
Government's decision of 2 May 1991 prevented an examination by the
Real Estate Court, for which reason the case should be dismissed. On
17 February 1992 the Court rejected this claim. No appeal was made
against this decision.
With respect to the merits of the case, the Court delivered its
judgment on 18 June 1993. It rejected the plaintiff's action, finding
that a comparison between the two remaining road location alternatives
showed that the costs were equivalent but that the alternative approved
by the National Road Administration caused less interference and
inconvenience.
The plaintiffs appealed to the Court of Appeal (Hovrätten) of
Skåne and Blekinge. They further requested that the Court, as an
interim measure, should prohibit further construction work while the
case was pending. On 9 September 1993 the Court rejected this request,
as the plaintiffs had not shown probable cause for their appeal to
succeed.
After the plaintiffs had appealed against the Court of Appeal's
decision, the Supreme Court (Högsta domstolen), on 11 October 1993,
granted leave to appeal with respect to the question whether a
working-plan approved under the Public Roads Act hindered a court
examination of the road project under Section 4 of the Environmental
Protection Act. By decision of 30 November 1993, the Supreme Court
found that the approved working-plan hindered such an examination. The
Court, inter alia, noted that the examination carried out by the
National Road Administration and the Government under Section 13 of the
Public Roads Act included an assessment of the environmental effects
which, to a great extent, corresponded to an examination under the
Environmental Protection Act.
As the Supreme Court's decision excluded a further examination
of the plaintiffs' case, it was later withdrawn.
B. Relevant domestic law
Provisions on the construction of public roads are contained in
the Public Roads Act. According to Section 15, a working-plan for the
road construction shall be drawn up. The plan shall include, inter
alia, a description of the environmental effects of the construction
(miljökonsekvensbeskrivning). In this respect, Section 13 is of
importance. It states the following:
(translation)
"When constructing a road it shall be ensured that the road
is located and designed so as to achieve the purpose of the
road with the least possible interference and inconvenience
and without unreasonable costs."
A similar provision is to be found in Section 4 of the
Environmental Protection Act. It reads as follows:
(translation)
"Undertakings which are hazardous to the environment should
be located so that its purpose can be achieved with the
least possible interference and inconvenience and without
unreasonable costs."
Section 1 of the Environmental Protection Act defines which
undertakings are considered as hazardous to the environment. Road
traffic is covered by that definition.
Under Section 34 of the Environmental Protection Act, an
individual may bring a claim in the Real Estate Court that a certain
undertaking should be prohibited due to its hazardous nature. The Real
Estate Court's decisions and judgments may be appealed to the Court of
Appeal and, with leave to appeal, the Supreme Court.
Section 18 of the Public Roads Act provides that a working-plan
concerning the construction of a road is approved by the National Road
Administration. Its decisions may be appealed to the Government.
Thus, unlike the Environmental Protection Act, the Public Roads
Act does not contain any provision providing for the possibility to
appeal to a court. However, under the 1988 Act, the Supreme
Administrative Court (Regeringsrätten) has jurisdiction in certain
administrative cases. Section 1 of this Act provides the following:
(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 shall review whether the
decision in the case is contrary to any legal rule in a
manner indicated by the requesting party or otherwise
apparent from the circumstances of the case.
Judicial review may pertain only to such decisions as
- imply exercise of public authority in relation
to 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."
According to the travaux préparatoires to the Act, the Supreme
Administrative Court's 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 Court should examine whether the challenged
decision is compatible with the principles of objectivity, impartiality
and equality before the law. In addition, it should examine whether
there have been any procedural errors which might have affected the
outcome of the case. If the relevant law leaves a certain discretion
to the deciding authority to make a choice between different options,
all of which must be considered lawful, the Court should examine
whether the challenged decision falls within that discretion
(cf. Government Bill 1987/88:69, pp. 23-25 and 234). When examining the
Government Bill, the Council of Legislation (Lagrådet) stated that the
examination of the lawfulness of an administrative decision in some
cases must include an assessment of whether the prescribed balance of
interests has been appropriately observed.
The Supreme Administrative Court has, under the 1988 Act,
reviewed several Government decisions concerning the approval of
working-plans for road constructions (cf., e.g., Regeringsrättens
årsbok, RÅ 1990 not 176 and RÅ 1993 not 168).
COMPLAINTS
1. The applicants claim that, as a consequence of the Supreme
Court's decision, they were denied access to court. They invoke
Article 6 para. 1 of the Convention.
2. Further under Article 6 para. 1 the applicants contend that the
Supreme Court was not impartial when taking its decision of
30 November 1993, as it promoted the interests of the State.
3. The applicants also claim that the road project at issue violated
their right to respect for their private life under Article 8 of the
Convention and their property rights under Article 1 of Protocol No. 1
to the Convention.
4. The applicants finally complain, under Article 13 of the
Convention, that, as a consequence of the Supreme Court decision, they
had no remedy against the judgment of the Real Estate Court.
THE LAW
1. The applicants complain that they were denied access to court.
They invoke Article 6 para. 1 (Art. 6-1) of the Convention which, in
relevant parts, reads as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal ..."
The Commission recalls that the applicants, in the Real Estate
Court, claimed that the road project was unlawful under Section 4 of
the Environmental Protection Act. The Commission further recalls that
the Supreme Court, when it later dismissed the case, stated that the
examination carried out by the National Road Administration and the
Government under Section 13 of the Public Roads Act included an
assessment of the environmental effects which, to a great extent,
corresponded to an examination under the Environmental Protection Act.
The Commission notes that the wordings of the relevant
provisions - Section 13 of the Public Roads Act and Section 4 of the
Environmental Protection Act - are almost identical. Having regard to
this and to the above statement of the Supreme Court, the Commission
considers that, in so far as the proceedings involved a determination
of the applicants' civil rights, their right of access to court under
Article 6 para. 1 (Art. 6-1) of the Convention was sufficiently
guaranteed if they were able to obtain an examination by a court of the
Government's decision of 2 May 1991.
In this respect, the Commission notes that the Supreme
Administrative Court, under the 1988 Act, has reviewed several
Government decisions concerning the approval of working-plans for road
constructions. It was thus possible for the applicants to obtain such
a review by the Supreme Administrative Court. In assessing whether this
review would have fulfilled the requirements of Article 6 para. 1
(Art. 6-1) of the Convention, the Commission notes that the applicants
claimed that the road construction was unlawful, as it did not meet the
requirement of achieving its purpose with the least possible
interference and inconvenience and without unreasonable costs. This
claim could have been examined by the Supreme Administrative Court
under Section 13 of the Public Roads Act. Thus, confining itself as far
as possible to examining the question raised by the case before it, the
Commission finds no evidence in this case which would lead to the
conclusion that the Supreme Administrative Court, in examining an
application by the applicants, would have had to decline jurisdiction
(cf. No. 18660/91, Bengtsson v. Sweden, Dec. 7.12.94, D.R. 79-A,
p. 11).
In these circumstances the Commission finds that the applicants
could have obtained a court determination fulfilling 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. Further under Article 6 para. 1 (Art. 6-1) the applicants contend
that the Supreme Court was not impartial when taking its decision of
30 November 1993, as it promoted the interests of the State. In this
respect, the applicants argue that the Court examined a question which
neither party had submitted to it and which had been finally decided
by the Real Estate Court on 17 February 1992. Furthermore, the Court
allegedly disregarded the wording of the applicable provisions of the
Environmental Protection Act and instead based its decision on the
travaux préparatoires to the Act.
The Commission, however, finds that the applicants' submissions
fail to show any partiality on the part of the Supreme Court.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicants also claim that the road project at issue violated
their right to respect for their private life under Article 8 (Art. 8)
of the Convention and their property rights under Article 1 of Protocol
No. 1 (P1-1) to the Convention.
The Commission is, however, not required to decide whether or not
the facts alleged by the applicants disclose any appearance of a
violation of the Article invoked as, under Article 26 (Art. 26) of the
Convention, it "may only deal with the matter after all domestic
remedies have been exhausted, according to the generally recognised
rules of international law ...". In this respect, the Commission
recalls its above conclusion that the applicants could have obtained
a court determination of their case by applying to the Supreme
Administrative Court for a review, under the 1988 Act, of the
Government's decision of 2 May 1991. The applicants, however, failed
to lodge such an application. Furthermore, the Commission finds that
an examination of the complaint does not disclose the existence of any
special circumstance which might have absolved the applicants from
exhausting the remedies at their disposal.
It follows that this part of the application must be rejected for
non-exhaustion of domestic remedies under Article 27 para. 3
(Art. 27-3) of the Convention.
4. The applicants finally complain that, as a consequence of the
Supreme Court decision, they had no remedy against the judgment of the
Real Estate Court, which concerned their property rights and their
right to respect for their private life. They invoke Article 13
(Art. 13) of the Convention, which reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Commission notes that the applicants have not claimed that
the Real Estate Court's judgment, as such, violated any of the rights
and freedoms guaranteed by the Convention. With regard to possible
violations of the applicants' property rights and their right to
respect for their private life, the Commission recalls its above
conclusion that the applicants could have obtained a court
determination of their case. Thus, in this respect, they had an
effective remedy under Article 13 (Art. 13). The Commission therefore
considers that the applicants' submissions fail to substantiate the
present complaint.
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.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary Acting President
to the Second Chamber of the Second Chamber
(M.-T. SCHOEPFER) (G. JÖRUNDSSON)
ANNEX
The applicants are:
1. Mr. Lars-Göran Berglund;
2. Ms. Siv Berndsson;
3. Mr. Uno Berntsson;
4. Mr. Helge Bjerstedt;
5. Ms. Ann-Britt Borgström;
6. Ms. Margrethe Brynolf;
7. Mr. Peter Erlandsson;
8. Ms. Acki Erlandsson;
9. Mr. Bengt Fröberg;
10. Ms. Margita Fröberg;
11. Ms. Karin Greek;
12. Mr. Börje Hector;
13. Mr. Bo Johansson;
14. Mr. Bengt-Åke Karlsson;
15. Mr. Bengt-Göran Nilsson;
16. Mr. Niclas Nilsson;
17. Mr. Ingvar Persson;
18. Ms. Kerstin Persson;
19. Mr. Raoul Persson;
20. Ms. Margareta Kulldorf;
21. Mr. Bengt Stensson;
22. Mr. Willy Söderdahl;
23. Ms. Viveka Söderdahl;
24. Ms. Ingela Söderholm;
25. Mr. Peter Peters;
26. Mr. Göran Warnefors.
Full & Egal Universal Law Academy