FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 41909/02
by Otto BJÖRKLUND and Others
against Finland
The European Court of Human Rights (Fourth Section), sitting on 12 April 2007 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta,
MrsP. Hirvelä, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 12 November 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Otto Björklund and Ms Harriet Enholm, are Finnish nationals who were born in 1941 and 1946 respectively. The first applicant lives in Brussels, Belgium and the second applicant in Ekerö, Sweden. The third applicant is the estate (kuolinpesä, dödsbo) of the late Mrs Vivan Björklund, represented by the first applicant. The applicants are represented before the Court by Mr Harry Hedman, a lawyer practising in Helsinki. The respondent Government are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1944 Mrs Vivan Björklund inherited property – Hagen RN:o 1:21 – (“Hagen property”) at Hemtans in the municipality of Espoo (which, since 1972 is the “city of Espoo”). Since her death on 16 July 2000, the property has been part of her estate and has belonged to her beneficiaries, the first and second applicants. The property has a surface area of 5,854 hectares and is undeveloped. It is situated near the central park of Espoo.
In 1958 the Espoo Municipal Council (kauppalanvaltuusto, köpingsfullmäktige, now the City Council (kaupunginvaltuusto, stadsfullmäktige)), adopted a municipal building plan (rakennussuunnitelma, byggnadsplan; called as rakennuskaava under the Building Act (rakennuslaki, byggnadslagen; Act no. 370/1958)) for the locality, including the Hagen property. The plan was approved by the Uusimaa County Administrative Board (lääninhallitus, länsstyrelsen) on 12 March 1959. The plan assigned potential floor space of 9,105 square metres on the Hagen property.
On 26 January 1961 the County Administrative Board ordered that no new building could be constructed in that area without its permission until adequate water, sewerage and traffic facilities had been provided (ban on building (rakennuskielto, byggnadsförbud)). The Ministry of the Interior (sisäasiainministeriö, inrikesministeriet) upheld that decision on 7 November 1961.
On 29 January 1963 the Municipal Council decided that a wider area should be incorporated within a town plan (asemakaava, stadsplan) and renewed the ban on building. On 3 March 1964 the Municipal Council decided that a town plan would be prepared for the Hemtans and surrounding areas and imposed a new ban on building.
On 15 December 1964 the Municipal Council annulled the municipal building plan, because a more extensive town plan was to be drawn up. A ban on building was imposed pursuant to section 42(2) of the Building Act. The decision was approved by the Ministry of the Interior on 26 February 1965. The ban on building was renewed sixteen times, so that it remained in force for over 33 years, until 1 November 1994. It would appear that in 1985 and possibly in other years the applicants (or their relatives) unsuccessfully appealed to the Supreme Administrative Court against the renewals of the ban on building.
In 1968 a programme to draw up a master plan (yleiskaava, generalplan) was adopted. A regional development plan (seutukaava, regionplan) was adopted in 1977 under the terms of which, according to the Government, the Hagen property became part of a larger recreation zone. The applicants maintained that the Hagen property was marked with a symbol denoting an area of dense population. In January 1990 a proposal for a component master plan (osayleiskaava, delgeneralplan) was made in respect of a northern section of Espoo. Under this proposal the southern part of the applicants’ property would have been used for detached housing.
During 1985-1986 the applicants negotiated with the city of Espoo for a possible land-exchange contract. A letter of intent was signed in 1988 and was stated to be valid for five years. As no town plan was adopted, the letter of intent lapsed in 1992.
On 10 December 1991 the City Board (kaupunginhallitus, stadssyrelsen) prolonged the ban on building on the Hagen property for the fifteenth time on the ground that a town plan was due to be drawn up for the area. The applicants appealed to the Ministry of the Environment (ympäristöministeriö, miljöministeriet; Ministry). They submitted that the ban on building, which had applied to the Hagen property for 30 years, could not be regarded as temporary within the meaning of the existing legislation and was unconstitutional. They also asked the Ministry to request the competent municipal authority to draw up a master plan and a town plan for the area in question.
At the request of the building board (rakennuslautakunta, byggnadsnämnden), the City Council decided to remove the detached housing zone from the proposal for a component master plan in a decision of 11 August 1992.
On 11 May 1993 the Ministry partially lifted the ban on building in the area. However, in spite of the applicants’ appeal the ban on building in respect of the Hagen property remained in force. The Ministry stated that, as the town plan concerning the area was included in the planning programme of the city of Espoo and the Hagen property was located near the central park, the planning arrangements in respect of that area of land had to be decided in a town plan. By a separate decision of 22 July 1994, it rejected an application by the applicants for the city of Espoo to be required to adopt a detailed plan. The applicants appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) against these two decisions.
Meanwhile, the ban on building was extended (for the sixteenth time) until the end of 1995 by a decision of the City Council on 7 December 1993.
In the autumn of 1993 a planning programme for the years 1994-1998 was adopted. The planning area “Hemtansåker Nr 331600”, covering the Hagen property, was included in the programme, but without any detailed time-table specifying when it would be subject to a further plan.
On 19 January 1994 the City Council adopted part I of the master plan (yleiskaavan osa I, generalplan del I) for the north of Espoo. The Hagen property was now designated for recreational use. The Ministry dismissed the appeals and approved the plan on 27 June 1996. The Supreme Administrative Court rejected the applicants’ appeal on 23 December 1997.
Meanwhile, on 1 November 1994 the Supreme Administrative Court gave its decision on the (fifteenth) ban on building that had been issued by the City Board on 10 December 1991 and approved by the Ministry on 11 May 1993. The court ruled, inter alia, that the city had not started to draw up a town plan, and that, taking into account the planned use of the land and the length of the ban on building, there had been no special reasons to renew it. However, as the ban had expired at the end of 1993, it did not rule further on the case. The decision became a precedent (KHO 1994 A 28).
On 9 March 1995 the Supreme Administrative Court dismissed the applicants’ appeal concerning the obligation to adopt a detailed plan. It found that there were no legal grounds under which the Ministry could oblige the city to draw up such a plan.
The City Council approved the Central Park I component master plan for a northern section of Espoo on 1 April 1996. The decision was approved by the Ministry on 3 October 1997 and upheld by the Supreme Administrative Court on 1 July 1999. This plan covered a small southern part of the applicants’ property, which was assigned partly to a neighbourhood recreational zone and partly to a conservation zone (the Vassholmsberget hazel grove).
In December 1999, basing their application on the Supreme Administrative Court’s decision of 1 November 1994, the applicants applied for an exemption permit in order to build 38 terraced houses and 13 detached houses, comprising of 9,105 square metres in total, despite the lack of any town plan. Their application was rejected on 26 January 2001 by the Ministry, which found as follows:
“In the regional development plan of 1977 the [Hagen] property was assigned to a recreational zone. Since then two master plans covering the area in question have been adopted, namely part I of the master plan for the north of Espoo and the Central Park I master plan. These plans designate the bulk of the property for recreational use, outdoor activities and sports. The property is crossed by important recreational routes leading from the central park to the north. The Vassberget area is situated in the south-east section of the property, which is reserved for use as a conservation zone in part I of the master plan for the north of Espoo, and in the southern part of the property there is the Lillträskmossen area, which is reserved for conservation in the Central Park I master plan.
Before a decision can be taken on whether the applicants’ property can be built on ... both a master plan and a town plan have to be drawn up for the area, and this involves also an examination of the need for recreational zones, the connections to the central park, and the suitability of the property for building purposes. A building project on this scale cannot be based on an exemption permit.”
The applicants appealed to the Supreme Administrative Court, claiming, inter alia, that the refusal to grant them an exemption allowing them to build and the lack of a detailed plan had de facto denied them the right to peacefully enjoy their property for over 30 years without compensation.
On 14 May 2002 the Supreme Administrative Court dismissed their appeal.
On 8 October 2004, upon the applicants’ application, the Assessment Adjustment Board (oikaisulautakunta, rättelsenämnden) of the Espoo Tax Office (verotoimisto, skattebyrå) changed the rateable value of their property for the years 1998–2004 to correspond to the planning situation (use of the land for recreational and outdoor activities) and the liability to rates on the value of the building was cancelled.
B. Relevant domestic law
Constitution
The 1919 Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland; Act no. 94/1919), which was in force until 1995, provided that the right of Finnish citizens to their possessions was to be secured by law (section 6(1)). Since 1995 property has been protected by section 12 of the Constitution Act (Act no. 969/1995). This provision is equivalent to section 15 of the present Constitution (perustuslaki, grundlagen; Act no. 731/1999).
Ban on building and building restriction
Section 5(1) of the Building Act, as worded at the relevant time, provided that urban development (taaja-asutus, tätbebyggelse) was permitted only in areas with a ratified town plan, municipal building plan or shore plan (rantakaava, strandplan). According to subsection 2, exemptions could be granted in individual cases or in certain areas.
Section 26(2) of the Building Act required the authorities to ensure that planning measures would not hinder the implementation of the regional development plan. Under section 27 the authorities had to ensure that new construction would not hinder the use of land as contemplated in the regional development plan (a building restriction (rakentamisrajoitus, byggnadsinkränkning)).
Section 42 prohibited the construction of new buildings if it contravened a town plan (a building restriction). Subsection 2(3) imposed a ban on building in areas for which a town plan was scheduled to be drawn up.
By virtue of section 42, subsection 3 the ban on building was valid for a maximum of two years. However, if special reasons so warranted, it could be extended for a maximum of two years at a time. The legislation in force at the relevant time did not include any specific provisions on the maximum duration of bans on building. Section 143(1) provided, however, that the competent ministry could set a time-limit by which the municipal authorities had to make a decision on a town plan.
Under section 53 (1), of the Land Use and Building Act (maankäyttö- ja rakennuslaki, markanvändnings- och bygglag; Act no. 132/1999), which repealed the Building Act with effect from 1 January 2000, a ban on building is valid for a maximum of two years. While the plan remains incomplete, the municipality may extend the term for a maximum of two years at a time. However, under the new legislation, a ban on building may not exceed eight years in all.
Exemption permit
According to section 132 of the Building Act, as worded at the relevant time, the Ministry had power to grant exemptions from provisions, orders, prohibitions or other restrictions concerning construction (such as prohibitions against urban development) laid down in the Building Act or adopted by virtue of it, if an exemption would not substantially impede the implementation of planning or other housing arrangements or the achievement of nature conservation objectives.
Expropriation
Section 56(1) of the Building Act provided that if a town plan or a ratified local master plan designated land for a purpose other than private construction and the landowner was thereby prevented from using the land in a manner generating a reasonable return, the municipality concerned or, if the land was designated in the plan as being required for State needs, the State, was obliged to expropriate the land. Section 58(1) specified that the duty of the municipality or the State to expropriate the land took effect only after the landowner’s application for an exemption from the restriction had been refused and the decision had become effective.
Section 64(1) allowed the landowner to demand expropriation if the municipality or State failed to comply with its obligation voluntarily.
COMPLAINT
The applicants complained under Article 1 of Protocol No. 1 to the Convention that since 1961 they had been denied the use of their possessions without any compensation. They said that their property had been subject to a protracted ban on building until November 1994. Since that date no town plan had been issued in respect of their property, nor had they been granted an exemption permit allowing them to build. They further alleged that the rateable taxation value of their property had, however, been calculated on the basis that it had “potential” building rights.
THE LAW
A. The Government’s preliminary objections
The Government submitted that part of the application concerned a period prior to Finland’s accession to the Convention and should therefore be rejected as incompatible ratione temporis in accordance with Article 35 §§ 3 and 4 of the Convention.
In the alternative, in so far as the applicants alleged that the rateable value of their property had been calculated on the basis that it had “potential” building rights, the Government referred to the Espoo tax authority’s decision of 8 October 2004 reducing the rateable value and cancelling part of the liability to rates, and submitted that the applicants could no longer claim to be victims within the meaning of Article 34 of the Convention. Further, in their view, Mrs Vivan Björklund’s estate did not have the requisite standing under Article 34 of the Convention.
The Government submitted in the further alternative, that the applicants had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. The remedy of requiring the State to expropriate the land under the Building Act and the Land Use and Building Act had not been exhausted in the present case, although the applicants’ application for an exemption permit had been rejected by the Ministry. In the Government’s view there was no obstacle in the Building Act to the applicants initiating a procedure with a view to having their property expropriated.
Finally, in the Government’s opinion all proceedings related to the case that had ended prior to 12 May 2002 should be rejected in accordance with Article 35 § 4 of the Convention as they did not meet the six-month requirement under Article 35 § 1 of the Convention.
The applicants, for their part, considered that the continuous deprivation of their building rights constituted a “continuing situation” and that the Government had neglected to take any action to remedy the situation since 10 May 1990, when the Convention entered into force in respect of Finland. In their submission, the proceedings and facts prior to that date had, in any event, to be taken into consideration as a background to the case.
Further, the rateable taxation value of their property had been too high for at least 22 years (1977-1998) causing them corresponding damage, so they had been directly affected by the measure as victims. In addition, even if the right to the peaceful enjoyment of the possession in the instant case belonged partially to Mrs Vivan Björklund’s estate, the applicants asserted that as her son and daughter they had derived rights and obligations thereunder and, therefore, were directly affected by the impugned measure as victims.
The applicants also disagreed with the Government that requesting expropriation could be considered as a means of securing the peaceful enjoyment of their possessions. They referred to the Land Use and Building Act, which specified that expropriation of the property was by its nature a secondary and extraordinary measure to be resorted to when the landowner’s property was affected by measures in the public interest and there was no other remedy or recourse available. The applicants further alleged that under the domestic legislation they had not had any prospect of having the land expropriated, even in theory. Nor did the law guarantee full compensation for the property or compensate for the damage and inconvenience caused to the land owner. They maintained that they had exhausted the domestic remedies in the case by appealing a total of four times to the Supreme Administrative Court. They had also explored voluntary means of resolving the situation by concluding a land-exchange contract with the City Council in 1988.
Finally, in response to the Government’s preliminary objections concerning the six-month rule, the applicants stressed that their application concerned a continuing situation in which the permanent state of affairs constituted a violation of their property rights. The request for an exemption permit was only the final phase in the protracted dispute with the authorities.
The Court notes, firstly, that the Convention entered into force with respect to Finland on 10 May 1990. The Court will therefore limit its examination to determining whether the facts occurring after that date disclose a breach of the Convention. The events prior to 10 May 1990 will nonetheless be taken into account as a background to the issue before the Court (see, inter alia, Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299‑A, p. 19, § 53). Consequently, this part of the Governments’ preliminary objections must be accepted.
On the other hand, the Court does not share the Government’s view concerning the applicants’ victim status. It notes that the applicants’ main complaint concerns the protracted ban on building and building restriction. The reduction in the rateable value of the property in taxation did not cause them to lose their status as victims in this regard. Further, the first and second applicants were the only heirs of the late Mrs Vivan Björklund. In these circumstances, the applicants, including the estate of the late Mrs Vivan Björklund, can claim victims of a violation of their rights under Article 1 of Protocol No. 1 to the Convention.
As to the objection of a failure to exhaust domestic remedies, the Court notes that the parties disagreed whether in the circumstances of the case the applicants could have successfully requested expropriation. However, irrespective of the position under the domestic law, the Court finds it somewhat contradictory to request the applicants to ask the authorities to buy their property as a remedy for interference with property rights.
Finally, as to the Government’s observations concerning the six-month rule, the Court finds that the various proceedings in the present case all concerned the applicants’ right to use and build on their land. The Court does not share the Government’s view that only complaints concerning the proceedings that ended within the six-month period preceding the applicants’ application to the Court were lodged within the required time-limit.
Consequently, the remainder of the Government’s preliminary objections must be dismissed.
B. Alleged violation of Article 1 of Protocol No. 1
The applicants complained that their inability to use their property violated Article 1 of Protocol No. 1, which reads as follows:
“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.”
(a) The parties’ submissions
The Government accepted that the ban on building on the applicants’ property might be considered an interference with their property rights in so far as it hindered the use of their property. The applicable provision was the third rule concerning “control of the use of property”. However, they submitted that the bans on building and building restrictions on the Hagen property were in accordance with the national law in force at the relevant time and were imposed with the legitimate aim of facilitating planning, which was in the general interest. The Government also considered that the restrictions were not disproportionate, especially as during previous decades the city of Espoo had grown considerably and its population had increased dramatically. They stressed that the purpose of bans on building during the preparation of a town plan was to prevent unplanned development. Allowing an area to become too densely built up before necessary infrastructure and transport facilities were in place would make any future planning difficult and weaken housing supply in new residential areas. Reducing the size of recreational zones as a result of urban development would have similar effects. Building restrictions during the preparation of a town plan had been regarded as particularly important in areas where there was pressure to accept building projects. This was the position in the city of Espoo, which was now the second largest city in Finland.
The Government further argued that in the present case the ban on building was in any event of secondary importance as the highly developed areas in the city of Espoo had long been covered by a statutory prohibition against urban development (see the section on “Relevant domestic law” above). They further stressed that due to the increase in the population of Espoo, town plans had become necessary in a number of areas, and this had required prioritising. For this reason, the Hemtans area was not covered by a town plan in accordance with the original schedule. Furthermore, under the current plans the area had been designated for recreational and conservation purposes.
As to the refusal to grant the applicants an exemption permit, the Government submitted that a landowner had no substantive right to build more than the permitted volume. They pointed out that the municipal building plan had been annulled as far back as 1964, i.e. before the Convention entered into force in respect of Finland. In 1999 the Hagen property was no longer subject to a ban on building, but it was nevertheless necessary to have an exemption permit to build. According to the national case-law, detailed plans were required to determine the acceptability of a large scale building, as in the present case. The Government emphasised that the project intended for the Hagen property did not comply with the land use that had been designated for it in the plans that had been ratified for the area.
Finally, the Government argued that the Ministry had not determined whether it was possible to grant an exemption permit on the property in general or in a volume smaller than that applied for, as no request to that effect had been lodged.
The applicants, for their part, maintained that the Finnish legislation concerning the exemption permit procedure and unjustified renewals of bans on building did not guarantee them the right to the peaceful enjoyment of their property. They stressed that for over 45 years they had no effective means of exploiting the Hagen property. The granting of an exemption permit should – by definition – remain an exceptional means of developing property. They also criticized the authorities for imposing bans on building for various reasons.
In the applicants’ view, the local authorities’ passivity and unwillingness to take action to respect their property rights was demonstrated by various events, such as the annulment of the original municipal building plan in 1964 and the delay in drafting a town plan while drawing up other plans in which their property was reserved for recreational purposes.
As to proportionality, the applicants doubted whether there had ever been any absolute need for the building ban, still less for the extension thereto. During the period of the ban the city of Espoo had drawn up other town plans to accommodate over 150,000 inhabitants. The applicants’ property was located in the middle of a densely constructed urban area in the city. In their view, the rapid development of the neighbouring properties amounted to discrimination as the only permitted building on their property was a two-room summer cottage that had been built in 1947. The applicants further submitted that the Hagen property was marked as a residential area in various regional development plans. The applicants’ property had, in sum, been burdened excessively.
The applicants argued, lastly, that they had had a legitimate reason to believe that the local authorities would draft a town plan for the area within a reasonable time and that they would have been granted building rights in accordance with the original municipal building plan of 1959. In the current situation, however, they doubted whether the authorities had ever had any real intention of drafting a town plan for the area, as it seemed that their aim had instead been to reserve their property for the future needs of the city. In the applicants’ view they had had to bear an individual and excessive economic and mental burden which was not reasonable or justified in the public interest.
(b) The Court’s assessment
The Court reiterates that Article 1 of Protocol No. 1 guarantees in substance the right to property. It comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of the peaceful enjoyment of possessions. The second, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. However, the three rules are not “distinct” in the sense of being unconnected: the second and the third rules are concerned with particular interferences with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, AGOSI v. the United Kingdom, judgment of 24 October 1986, Series A no. 108, p. 17, § 48).
The applicants claimed that the circumstances in their case were similar to those in the case of Sporrong and Lönnroth v. Sweden (judgment of 23 September 1982, Series A no. 52) as regards the length of the prohibition on construction. The Court notes, however, that unlike the position in the latter case, the present applicants’ property rights were never under the threat of expropriation. It finds that the interference at issue, being the result of control of use of the property, falls to be examined under the third rule, that is to say under the second paragraph of Article 1 of Protocol No. 1.
Under that rule the Contracting States are entitled to control the use of property in accordance with the general interest, by enforcing such laws as they may deem necessary for the purpose. However, there must exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised. In striking the fair balance thereby required between the general interest of the community and the requirements of the protection of the individual’s fundamental rights, the authorities enjoy a wide margin of appreciation (see, among other authorities, Allan Jacobsson v. Sweden (no. 1), judgment of 25 October 1989, Series A no. 163, § 55).
Accordingly, the Court will examine whether the bans on building and the building restriction were lawful and in accordance with the “general interest” and whether a “fair balance” was struck between the demands of the public or general interest of the community and the requirements of the protection of the individual’s fundamental rights.
The Court finds that in the present case the ban on building in force until 1994 was based on the then Building Act (section 42, subsection 2(3)). The construction of urban development in an area not covered by a town plan was prohibited in section 5(1) of the same Act. Thus the impugned measures had a clear basis in the Finnish legislation.
Furthermore, it is indispensable that the use of land be regulated by detailed and careful planning. The Court is satisfied that the bans on building and building restriction in the present case were in pursuance of a general interest, namely to facilitate future planning in the area.
As to the proportionality of the interference, the Court accepts that the Hagen property has been subject to restrictions in use for a very long period. However, as noted above, the Court can only examine whether the facts occurred after the Convention entered into force with respect to Finland on 10 May 1990 constitute a violation of the applicants’ property rights.
Further, it is unclear from the documents submitted to the Court on which date the instant applicants can be considered to have had possessory rights in the Hagen property and to have suffered any interference with those rights. The Court finds, in particular, that it was only on 16 July 2000 when Mrs Vivan Björklund died and the Hagen property became part of her estate. However, for the reasons set out below it does not need to decide this question.
The Court notes that the original municipal building plan of 1959, assigning the property with a potential floor space of some 9,000 square metres, was in force only for a few years as it was annulled in 1964, i.e. some twenty-six years before the Convention entered into force with respect to Finland. In addition, in that plan no building rights as such were granted to the Hagen property. The parties could not agree on whether the Hagen property constituted part of a larger recreational zone or was (partly) designated as a dense population area in the regional development plan of 1977, which, apparently, is still in force. The Court notes that in any event, the subsequent (component) master plans of 1994 and 1996 designated the Hagen property mainly for recreational and conservational purposes. It also notes that on 8 October 2004, at the applicants’ request, the Assessment Adjustment Board decreased the rateable value of the Hagen property in taxation for the year 1998 onwards to correspond to the planning situation (use for recreational and outdoor activities). Consequently, the Court cannot find it established that the applicants were given any assurances by the authorities, or had any realistic expectation, that they would be able to engage in any major development on the Hagen property.
The Court further notes that, contrary to the case of Sporrong and Lönnroth v. Sweden (cited above, § 70) it has not been established that the present applicants had been left in complete uncertainty as to the fate of their property. Nor was their situation affected by a prospect of expropriation at some future undetermined point in time (c.f. Skibińscy v. Poland, no. 52589/99, §§ 77, 92, 14 November 2006). The expressed ban on building remained in force until November 1994. Since then the domestic legislation prohibited any urban development on the Hagen property. Exemption permits to construct could, however, be granted. Consequently, in 1999 the applicants applied for an exemption permit to construct 51 dwellings on the property (with a floor space corresponding to the municipal building plan of 1959). While it is true that that application was dismissed and that that decision was upheld at last instance by the Supreme Administrative Court (decision of 14 May 2002), the Court finds that that decision did not determine whether the applicants could have been granted an exemption permit for construction in general or for a smaller volume than that originally applied for. Further, there is no indication that the applicants have been prevented from selling the land.
Finally, although Article 1 of Protocol No. 1 contains no express procedural requirements, the Court’s case-law requires the relevant proceedings also to afford the individual a reasonable opportunity of putting his or her case to the responsible authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision (see, inter alia, Jokela v. Finland, no. 28856/95, § 45, ECHR 2002-IV). The Court notes that over the years the applicants (or their relatives) challenged various decisions concerning the Hagen property before the domestic authorities and courts. It considers that all these domestic procedures provided a possibility for the public interest to be weighed against that of the applicants (see, inter alia, Allan Jacobsson v. Sweden (no. 1), cited above, § 62).
Taking into account the State’s wide margin of appreciation when implementing their town planning policy, the Court concludes that no adverse effects such as would render the balancing of interests unfair have been shown to exist in the present application. Accordingly, there is no appearance of an improper balance between the protection of the applicants’ property rights and the demands of the general interest and, consequently, no appearance of a violation of the applicants’ right to the peaceful enjoyment of their possessions.
For these reasons, the Court unanimously
Declares the application inadmissible.
T.L. EarlyNicolas Bratza
RegistrarPresident
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