I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Swedish citizen born in 1939 and resident
at Falun. He is a car driver by profession. He is represented before
the Commission by Mr. Per-Gunnar Viklund, a lawyer practising at
Falun.
3. The case relates to the issuing of an expropriation permit
regarding the applicant's real estate. The applicant complains that
the expropriation permit was issued in breach of Article 1 of Protocol
No. 1 (P1-1) and that he had no possibility of having the dispute
relating to the issuing of the expropriation permit examined by a
tribunal satisfying the conditions of Article 6 para. 1 (Art. 6-1) of
the Convention.
B. The proceedings
4. The application was introduced on 10 January 1984 and
registered on 4 May 1984. On 3 October 1984 the Commission decided,
in accordance with Rule 42, para. 2, sub-para. b of its Rules of
Procedure, to bring the application to the notice of the respondent
Government and invite them to submit written observations on the
admissibility and merits of the complaint under Article 6 para. 1
(Art. 6-1) of the Convention.
The Government were represented by their Agent, Mr. Hans Corell,
Under-Secretary at the Ministry of Foreign Affairs. The Government's
observations were dated 10 January 1985 and the applicant's
observations in reply were dated 1 March 1985.
On 7 May 1985 the Commission, after an examination of the
admissibility of the application, decided to invite the Government to
submit written observations on the admissibility and merits of the
complaint under Article 1 of Protocol No. 1 (P1-1).
The Government's observations were dated 24 June 1985 and the
applicant's observations in reply were dated 4 September 1985.
5. On 5 December 1985 the Commission decided to declare
admissible, as raising issues under Article 6 of the Convention
(Art. 6), the applicant's complaint of the absence of a determination
by a tribunal in respect of the issue of an expropriation permit. The
remainder of the application was declared inadmissible (1).
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(1) See decision on admissibility, Appendix II.
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6. The parties were then invited to submit any additional
observations on the merits of the issue under Article 6 (Art. 6)
of the Convention which they wished to make.
The Government submitted further observations by letter of
19 February 1986 and the applicant submitted his observations on
26 February 1986. These observations were transmitted to each party for
information.
7. On 8 March 1986 the Commission considered the state of
proceedings of the case. On 15 May 1986 the Commission deliberated on
the merits of the case and took the final votes in the case.
8. Legal aid under the Addendum to the Commission's Rules of
Procedure was granted to the applicant on 15 March 1985.
9. Following its decision on the admissibility the Commission,
acting in accordance with Article 28 para. b (Art. 28-b) of the
Convention, placed itself at the disposal of the parties with a view
to securing a friendly settlement of the matter. In the light of the
parties' reactions the Commission now finds that there is no basis on
which a friendly settlement can be effected.
C. The present Report
10. The present Report has been drawn up by the Commission in
pursuance of Article 31 (Art. 31) of the Convention and after
deliberations and votes in plenary session, the following members
being present:
MM. C. A. NØRGAARD
G. SPERDUTI
J. A. FROWEIN
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G. H. THUNE
Sir Basil HALL
The text of the Report was adopted by the Commission on 15 May 1986
and is now transmitted to the Committee of Ministers in accordance
with Article 31 para. 2 (Art. 31-2) of the Convention.
11. The purpose of the Report, pursuant to Article 31 para. 1
(Art. 31-1) of the Convention, is
(1) to establish the facts, and
(2) to state an opinion as to whether the facts found disclose a
breach by the respondent Government of their obligations under the
Convention.
12. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application forms Appendix II.
13. The full text of the pleadings of the parties, together with
the documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The Particular Facts of the Case
14. The applicant owns together with Mr. B.B. the properties
Källviken 1:18, 1:25 and 1:26.
On 30 June 1977 the Municipal Assembly (kommunfullmäktige) of Falun
adopted a regional plan, which included the applicant's properties, in
order to develop a housing estate. On 9 February 1978 the
municipality of Falun decided to request an expropriation permit for
the area in question.
15. On 1 March 1979 the Government decided to issue an
expropriation permit with respect to inter alia the applicant's
properties. The basic reasons for the expropriation permit were that
the municipality intended to reconstruct the area creating inter alia
1,800 flats, schools and other services. The applicant opposed the
expropriation since he wished to continue to live in his parents'
house, situated on Källviken 1:26, together with his mother and since
it was doubtful whether the property was needed for the plans of the
municipality and since in any event only part of the property was
needed. The Government considered, however, that the municipality had
shown that the applicant's property, Källviken 1:26, was needed for a
green belt zone, and the Government concluded that the conditions for
expropriation laid down in the Expropriation Act (expropriationslagen)
were satisfied.
16. The Government indicated in the decision that the
expropriation permit should be followed by a summons before the Court
at the latest on 3 March 1980. This action for the determination of
the compensation commenced on 28 February 1980 before the Real Estate
Court (fastighetsdomstolen) of the District Court (tingsrätten) of
Falun.
17. On 2 July 1984 the applicant and the municipality entered into
a settlement according to which the applicant sold the property to the
municipality and the municipality agreed to let the house to the
applicant for a period of five years with a possibility of prolonging
that period. On 17 August 1984 the Court struck the case off its
list, since the municipality had revoked its claim for expropriation,
as a result of the said agreement.
B. Relevant Domestic Law
18. The legislation applicable in the applicant's case is the 1972
Expropriation Act. Under this Act, expropriation permits are
generally granted by the Government (Chapter 3, Section 1). Such
permits may be obtained by municipalities and other bodies for various
reasons. For the applicant's case, the valid reason is stated in
Chapter 2, Section 1 of the Act, which reads (paras. 1-3):
"Expropriation is allowed in order to enable a municipality to dispose
of land which is needed, with regard to future development, for urban
development (tätbebyggelse) or constructions in connection with such
development.
Such expropriation as is envisaged by paragraph one may only concern
areas situated within the municipality itself.
Within areas of urban development expropriation is allowed only if
there is reason to assume that, within a foreseeable time, the area
will be subject to building or other construction activities, which
are deemed important from a general point of view, or if it is
urgently required that the municipality dispose of the land for the
furthering of planned building or for any other similar reason."
19. According to Chapter 2, Section 12 of the Expropriation Act an
expropriation permit shall not be granted if its purpose can be
attained by some other appropriate means, or, if the disadvantages of
the expropriation would outweigh, from general and individual points
of view, its advantages.
20. The issuing of an expropriation permit does not automatically
lead to expropriation. It authorises the holder of the permit to
expropriate the property. In order to complete the expropriation the
holder must institute expropriation proceedings before a Real Estate
Court. The Court determines the compensation to be paid to the owner
as well as the exact limitation of the expropriated area and related
matters. The compensation shall in principle amount to the market
value of the property. The expropriation is not completed until
compensation has been fixed and paid.
21. No appeal may be made against a Government decision concerning
expropriation permits. An appeal against the decision of the Real
Estate Court may be lodged with the Court of Appeal (hovrätten) and,
in the final resort, with the Supreme Court (högsta domstolen).
22. Appeals against a decision of the local government to apply
for an expropriation permit may be lodged with the Administrative
Court of Appeal (kammarrätten) according to the special appeal
procedures laid down in Chapter 7 of the 1977 Act on Local Government
(kommunallagen). Appeals against the judgment of the Administrative
Court of Appeal may be lodged with the Supreme Administrative Court
(regeringsrätten).
III. SUBMISSIONS OF THE PARTIES
23. The parties' principal submissions have been made at the
admissibility stage in their written observations, which included
arguments as to the merits. These submissions appear in the decision
on admissibility, which is annexed to this Report as Appendix II. The
Commission refers to the relevant parts of this decision.
At present, the Commission will limit itself to recalling the parties'
main arguments and supplement them by adding the observations made on
the merits.
A. The Applicant
24. In the proceedings concerning the question of an expropriation
permit the parties, ie the expropriator and the property owner, are
involved in a discussion before the Government. There is no oral
hearing and the property owner has no possibility to submit evidence
in his case other than by allegations. From the expropriator it is
normally sufficient that there is an allegation that the land will be
taken in accordance with a draft city plan for the purpose of building
for housing. Normally there is no examination as to the necessity of
the expropriation. The decision of the Government finally determines
the question of the ownership right to the property. The subsequent
court proceedings are considered by the property owner more as a
formality and only concern the questions of compensation and the date
of access to the property. At that stage the essential issue of the
expropriation permit as such has already been determined.
25. The applicant submits that the Government's measure to
determine the question of whether an expropriation is permissible is a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
26. The applicant submits that the Government's application of the
Expropriation Act in his case was arbitrary. He submits that the
Government did not, as Article 1 of Protocol No. 1 (P1-1) provides,
properly examine the public interest in the case. In this connection,
he has pointed out that the subsequent decision of the municipality to
let the house to the applicant shows that there was no clear public
interest in acquiring the property. Moreover, he has recalled that
the intended constructions have not yet started, although eight years
have elapsed.
B. The Government
27. The issues to be examined by the Commission are whether the
decision of the Government to grant the expropriation permit was a
"determination" of the applicant's "civil rights and obligations"
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention
and, if so, whether the applicant had the benefit of a "fair and
public hearing" before "an independent and impartial tribunal" for
that determination.
The Government state that a decision on this question will be of great
importance to the present Swedish legislation. In the Case of
Sporrong and Lönnroth (Eur. Court H.R., judgment of 23 September 1982,
Series A no. 52, p. 30, para. 83) the Court held that "the
expropriation permits affecting the applicants' properties related to
a civil right and, as regards their period of validity (Government's
under-lining), gave rise to a 'contestation' (dispute), within the
meaning of Article 6 para. 1 (Art. 6-1)".
This judgment has been discussed thoroughly within the competent
Swedish ministries. The Government have come to the conclusion that
it is not all that clear what conclusions should be drawn from this
expression in the judgment. The Government have noted that the
situation of the owners of the two Stockholm real estate properties
was extraordinary. It also appears that the Court took special note
of the long periods of validity of the permits, since this is
expressly mentioned in the judgment. It also appears that the Court
took note of the combined effects of the permits and the burden
incurred by prohibitions on construction which had been imposed on the
properties. Reference is made to para. 81 of the judgment.
28. The Government have also noted the joint separate opinion by
five of the judges, and especially their statement that the
expropriation permits did not directly determine private rights, but
rights under public law of the City of Stockholm. In their opinion
judicial review, at least of the lawfulness of the measures taken,
might be desirable also in such cases. However, they found that this
was not required by Article 6 para. 1 (Art. 6-1) of the Convention.
The Government consider that there is great merit in the reasoning of
these judges. The granting of expropriation permits is a necessary
means for governments and other authorities to make decisions
concerning the use of land based on general political, economic and
other considerations in the interest of the general public. Such
decisions are also considered necessary under the Convention, hence
Article 1 of Protocol No. 1 (P1-1).
The Government refer in this context to their reasoning in the
Sporrong and Lönnroth case and recall that the Commission in that case
held that Article 6 (Art. 6) was not applicable in relation to
decisions on expropriation permits. It is true that the Court has
handed down judgments which - like the judgment in the Sporrong and
Lönnroth case - indicate that the scope of Article 6 (Art. 6) is wider
than many States might have realised when they ratified the
Convention. The Government have construed the judgment in the
Sporrong and Lönnroth case in the sense that it was not necessary to
make further amendments to the Swedish legislation on expropriation
apart from an amendment which now in principle limits the duration of
expropriation permits to a period of one year with a restricted
possibility of further prolongation. This opinion has been examined
by the Committee of Ministers, which on 25 October 1985 decided
without comments that it had exercised its function under Article 54
(Art. 54) of the Convention.
29. Should the Commission come to the conclusion that the
expropriation permit concerned the applicant's "civil rights and
obligations", the Government admit that the issue as to whether
deprivation of property may take place was finally determined by the
Government's decision of 1 March 1979. The Government admit that this
decision was not handed down after a public hearing or by an
independent and impartial tribunal.
IV. OPINION OF THE COMMISSION
A. Points at issue
30. The issues to be decided are
a. Whether or not Article 6 para. 1 (Art. 6-1) of the Convention
is applicable in the present case, and
b. If so, whether or not there has been a breach of Article 6
para. 1 (Art. 6-1) of the Convention.
B. As to the applicability of Article 6 para. 1 (Art. 6-1)
of the Convention
31. Article 6 para. 1, first sentence (Art. 6-1-1) reads as follows:-
"In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law."
32. It is established case-law that the right to property is a
"civil right" within the meaning of Article 6 para. 1 (Art. 6-1)
of the Convention (see Eur. Court H.R., Sporrong and Lönnroth
judgment of 23 September 1982, Series A no. 52, p. 29, para. 79).
33. Article 6 para. 1 (Art. 6-1) is however only applicable if the
issuing of the expropriation permit was "decisive" for the civil
right, i.e. for the right to property (cf. Eur. Court H.R.,
Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, para. 94).
It is true that under Swedish law the issuing of the expropriation
permit is only an initial step in the procedure leading to the
deprivation of property. The Commission considers however that this
is an important step since it finally determines whether the legal
conditions for expropriation are satisfied. Since this decision plays
such an important rôle in the procedure of expropriation, the
Commission finds that it must be considered as "decisive" for the
applicant's right to property.
The decision of the Government to issue an expropriation permit with
regard to the applicant's property was therefore decisive for his
"civil rights".
34. Article 6 para. 1 (Art. 6-1) of the Convention guarantees to
everyone who claims that an interference by a public authority with
his "civil rights" is unlawful, the right to submit that claim to a
tribunal meeting the requirements of Article 6 para. 1 (Art. 6-1)
(see Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of
23 June 1981, Series A no. 43, p. 20, para. 44). The claim or dispute
must be "genuine and of a serious nature" (see Eur. Court H.R.,
Benthem judgment of 23 October 1985, Series A no. 97, p. 14,
para. 32).
35. The applicant has submitted that the Government's application
of the Expropriation Act was arbitrary and that they did not properly
examine the public interest in the case. The applicant has also
submitted that the rental agreement, which was concluded with the
municipality after the expropriation permit was issued, shows that the
property was not necessary for the activities of the municipality and
he has pointed out that the intended constructions have not yet
started although eight years have elapsed. Having regard to these
submissions the Commission considers that there was in reality a
"genuine" and "serious" dispute as to whether the decision to issue
the expropriation permit was in conformity with Swedish law.
36. The Government have pointed out that in the Sporrong and
Lönnroth case Article 6 (Art. 6) was considered applicable since there
was a dispute as regards the duration of the expropriation permit. It
is true that in the said case the dispute related to the duration of
the expropriation permit. The Court was not called upon to determine
whether Article 6 (Art. 6) was applicable to a dispute regarding the
issuing of an expropriation permit. The Commission considers,
however, that if Article 6 (Art. 6) is applicable to a dispute
concerning the duration of an expropriation permit, it must also be
applicable to a dispute as to whether an expropriation permit should
be issued at all.
Accordingly, the Commission finds that Article 6 para. 1 (Art. 6-1)
was applicable to the dispute which arose in relation to the
expropriation permit.
C. As to the compliance with Article 6 para. 1 (Art. 6-1)
of the Convention
37. It must finally be examined whether the applicant had the
possibility of submitting the dispute as to the issuing of the
expropriation permit to a "tribunal" satisfying the conditions of
Article 6 para. 1 (Art. 6-1) of the Convention.
38. The Commission considers it obvious, and this is not in
dispute between the parties, that the proceedings before the
Government relating to the issuing of the expropriation permit did not
constitute proceedings before a "tribunal" within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention.
The Government have not referred to any remedy which might permit a
review of the Government's decision to issue an expropriation permit
and which might satisfy the requirements of Article 6 para. 1
(Art. 6-1).
39. In this context the Commission recalls that in the Sporrong
and Lönnroth judgment the Court examined whether a municipal appeal
against the decision of the City of Stockholm to request the
Government to issue an expropriation permit, or an application to the
Supreme Administrative Court for the reopening of the proceedings,
directed against the decision of the Government, were remedies which
fulfilled the requirements of Article 6 para. 1 (Art. 6-1) of the
Convention. The Court held that these remedies were not sufficient for
the purposes of Article 6 para. 1 (Art. 6-1) (cf. Sporrong and Lönnroth
judgment, p. 30-31, paras. 84-87).
40. It follows that the applicant did not have at his disposal a
procedure satisfying the requirements of Article 6 para. 1 (Art. 6-1)
in respect of the dispute which arose as regards the issuing of the
expropriation permit.
D. Conclusion
41. The Commission concludes by a unanimous vote that there has
been a breach of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)