AS TO THE ADMISSIBILITY OF
Application No. 12452/86
by C. W. and others
against Sweden
The European Commission of Human Rights sitting in private
on 5 July 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 22 April 1986
by C. W. and others against Sweden and registered on 10 October 1986
under file No. 12452/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The application has been introduced by the owners of 65
properties in Stockholm. They are inter alia insurance companies, real
estate companies and individuals. Their particulars are set out in
Appendix 1 attached hereto. Before the Commission the applicants are
represented by Mr. Ingvar Lindqvist, a lawyer and director of the
Stockholm Property Owners' Association (Stockholms fastighets-
ägareförening).
The applicants' properties have been subjected to zonal
expropriation permits (expropriationstillstånd) granted by the
Government to the Stockholm City Council in accordance with Section 44
of the 1947 Building Act (byggnadslagen - hereinafter "the 1947 Act").
The reason for the expropriation permits was an urban redevelopment
planned by the City Council.
The applicants' properties can be divided into four groups
according to the different expropriation permits they were affected
by. The time-limits for the original expropriation permits were
between five and ten years and for two of the groups the time-limits
were extended by three to ten years. The periods in which the
expropriation permits were valid appear below:
Group Expropriation permits Extension of validity of Termination of
issued expropriation permits expropriation per
I 31 July 1956 13 July 1961, 2 April 1965, 1976-1979
14 May 1971
II 24 September 1971 - 1976-1979
III 2 April 1965 28 June 1979 1975-1980
IV 26 November 1971 - 1979
The 1947 Act prohibits any new construction that is not in
conformity with the city plan. It permits, even before, and until,
such a plan has been adopted by the municipal authorities and approved
by the regional authorities, the prohibition as an interim measure of
any construction work (Section 35 combined with Sections 14 and 15 of
the 1947 Act). Section 15 of the Act provides as follows:
"If a question is raised concerning a request for the
adoption of a master plan for a certain zone or for the
amendment of a master plan that has already been approved,
the County Administrative Board may, at the request of the
municipality, prohibit all new construction (nybyggnad)
in that zone. The prohibition shall remain in force until a
decision in the matter has been taken by the municipal
council, but not for more than one year. Where necessary,
the County Administrative Board may, at the request of the
municipality, extend the validity of the prohibition on
construction by a maximum of two years at a time.
Exemptions from the prohibition on construction referred to
in the preceding paragraph may be granted by the County
Administrative Board or, in accordance with rules laid down
by the Government, by the Building Committee (byggnadsnämnd)."
A decision by the County Administrative Board to issue or
extend a prohibition on construction may be challenged by means of an
appeal to the Government (Section 150 para. 2 of the 1947 Act).
Long-term prohibitions on construction were imposed on the
applicants' properties for the larger part of the periods in which the
expropriation permits were valid. For all except ten properties the
building prohibitions expired between 25 March 1976 and 16 September
1985. The building prohibitions concerning the remaining properties
expired as follows:
Sperlingens Backe 29, 30.31 28 August 1986
Sumpen 10, 14 16 February 1987
Lagern 4, 5, 6, 9, 10 9 June 1987
Pilen 18 1 July 1987
Two of the zonal expropriation permits, affecting 37 of the
properties owned by applicants in the present case (see Appendix 2)
were at issue in the case of Sporrong and Lönnroth (Eur. Court H.R.,
Sporrong and Lönnroth judgment of 23 September 1982, Series A No. 52).
The property owners, whose properties were affected by expropriation
permits and prohibitions on construction of long duration, had agreed
that the Sporrong Estate's and Mrs. Lönnroth's cases should be brought
before the Convention organs. The assumption of the owners was that,
if a favourable result was reached in those proceedings, the State
would accept that result and all the property owners in a similar
situation would be compensated.
In its judgment the Court concluded that there had been a
violation of Article 1 of Protocol No. 1 to the Convention as the
expropriation permits, in combination with the long-term prohibitions
on construction imposed on the properties of the applicants in that
case, created a situation which upset the fair balance which should be
struck between the protection of the right of property and the
requirements of the general interest. The Court considered that the
applicants bore an individual and excessive burden which could have
been rendered legitimate only if they had had the possibility of
seeking a reduction of the time-limits or of claiming compensation
(cf. Sporrong and Lönnroth judgment, loc. cit., p. 21, para. 73). The
Court also found a violation of Article 6 of the Convention on the
ground that the case of the Sporrong Estate and Mrs. Lönnroth could
not be heard by a tribunal competent to determine all the aspects of
the matter (cf. Sporrong and Lönnroth judgment, loc. cit., p. 25,
para. 87).
In a judgment of 18 December 1984 under Article 50 of the
Convention the Court afforded the Sporrong Estate and Mrs. Lönnroth
satisfaction assessed at 800.000 SEK and 200.000 SEK, respectively
(Eur. Court H.R., Sporrong and Lönnroth judgment of 18 December 1984,
Series A No. 88, p. 11, para. 32).
On 17 December 1985 all the applicants except the partnership
Klockan 1 made a request to the Government that they be afforded
compensation amounting in total to 86.194.834 SEK. They submitted that
they had been subjected to the same violations of their rights under
the Convention as the Sporrong Estate and Mrs. Lönnroth. They referred
to the fact that the Government had paid damages amounting to 66.667 SEK
to a Mr. Andersson, who owned a fourth of Mrs. Lönnroth's property.
The requested compensation had been calculated according to the
principles applied by the Court when establishing the satisfaction
afforded to the Sporrong Estate and Mrs. Lönnroth. The remaining
applicant, the partnership Klockan 1, made a similar request on
8 August 1986 asking for 9.823.097 SEK.
On 20 February and 9 October 1986 the Government rejected the
requests. They stated that Swedish law does not provide for
compensation for expropriation permits. The Government furthermore
stated that the above judgments of the European Court of Human Rights
do not oblige the State to compensate the present applicants.
COMPLAINTS
1. The applicants submit that it is implied in the Convention
system that decisions of the Convention organs should be respected by
the responding State when dealing with identical cases. The applicants
maintain that, as Sweden has accepted to abide by the judgments of the
Court, the Swedish State should, in accordance with the judgments
given in the case of Sporrong and Lönnroth, afford an equal
compensation to all the property owners whose rights have been
interfered with in the same way. The applicants complain that the
Government rejected their requests for compensation. They allege that
there has been a violation of Article 46 of the Convention.
2. The applicants complain that between 8 and 23 years have
passed without their compensation claims being examined by a court.
They submit that this delay is unreasonable and contrary to Article 6
para. 1 of the Convention.
3. Under Article 1 of Protocol No. 1 to the Convention the
applicants complain:
- that compensation for the property of which they have been
deprived has not been paid "promptly" in accordance with
general principles of international law;
- that the "public interest", e.g. the original grounds for
the expropriation, which was an urban redevelopment planned
by the Municipality of Stockholm, no longer applied after
the Municipality had changed its plans;
- that the consequences of the long-term expropriation permits
in combination with the building prohibitions deprive them of
their right to peaceful enjoyment of their possessions;
- that the expropriation permits were prolonged without any
legal authority and that they therefore were deprived
of their property under conditions not provided by law;
- that the lack of compensation for loss of a great part of
their right to dispose of the property is contrary
to general principles of international law concerning
"just compensation".
4. The applicants maintain that, in comparison with property
owners who were not affected by long-term expropriation permits and
building prohibitions, they were subject to far-reaching
discrimination. They invoke Article 14 of the Convention.
5. The applicants complain that the public expropriation powers
have been misused to limit the rights inherent in ownership to a far
greater extent than was necessary in order to effect the expropriation.
They allege a violation of Article 17 of the Convention.
6. The applicants maintain that, as the Government in their
decisions of 20 February and 9 October 1986 stated that the State has
no obligation to compensate them for the alleged violations of their
rights under the Convention, they have no effective remedy as regards
their claim for compensation or some other form of redress. They
invoke Article 13 of the Convention.
7. The applicants further maintain that they have been subjected
to discrimination as their requests for compensation were rejected.
They submit that another property owner, who owned part of the
Lönnroth property but who had not made an application to the
Convention organs, was afforded compensation. They allege that, in
this respect too, there has been a violation of Article 14 of the
Convention.
THE LAW
1. The applicants complain that there has been a violation of
their rights under Article 1 of Protocol No. 1 (P1-1) to the Convention and
Articles 6, 14 and 17 (Art. 6, 14, 17) of the Convention on account of the
long-term expropriation permits in combination with the building prohibitions.
The applicants also complain under Article 13 (Art. 13) of the
Convention that they had no effective remedy as regards their claim for
compensation or some other form of redress based on the judgments of the Court
in the case of Sporrong and Lönnroth.
Finally, the applicants complain that they have been discriminated
against as their requests for compensation were rejected, while another
property owner in a similar situation, who had not made an application to the
Convention organs, was afforded compensation following the judgments in the
case of Sporrong and Lönnroth. They invoke Article 14 (Art. 14) of the
Convention.
Under Article 26 (Art. 26) of the Convention the Commission may only
deal with an application "after all domestic remedies have been exhausted
according to the generally recognised rules of international law, and within a
period of six months from the date on which the final decision was taken".
According to the Commission's case-law only a remedy which is
"effective and sufficient" can be taken into account under Article 26
(Art. 26). Where no domestic remedy is available, the six months
period in Article 26 (Art. 26) runs from the act or the decision which
is itself alleged to be in violation of the Convention. If the
violation complained of consists of a continuing situation, against
which no domestic remedy is available, the six months period runs from
the end of this continuing situation (cf. No. 6852/74, Dec. 5.12.78,
D.R. 15 p. 5).
The present case has been brought on the basis that the
applicants were in situations identical to those of the Estate of
Sporrong and of Mrs. Lönnroth, and that the applicants have been the
victims of the same violations of the Convention (cf. Sporrong and
Lönnroth judgment, loc. cit.). The Commission notes, however, that
although the present applicants were in a continuing situation similar
to those of the Estate of Sporrong and of Mrs. Lönnroth, this
situation essentially came to an end when the expropriation permits
were revoked or lifted, i.e. at the latest in 1980.
As the present application was only introduced on 22 April
1986, which is more than six months later, it has been lodged out of
time insofar as it concerns the expropriation permits. The Commission
considers that the applicants' ground for not lodging their
application earlier, i.e. that they awaited the outcome of the
Sporrong and Lönnroth case, could not suspend the running of the six
months period in their cases. It furthermore finds that the requests
for compensation which the applicants lodged with the Government, and
which they based on the judgments in the Sporrong and Lönnroth case,
were not effective remedies for the purpose of Article 26 (Art. 26) of
the Convention.
Consequently, in this respect, the application must be
rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
Insofar as the applicants' complaints relate to the building
prohibitions, the Commission notes that for all except ten properties
the application was introduced more than six months after the building
prohibitions had expired. Moreover, the applicants have failed to
show that, after the expropriation permits had been lifted and the
Court's judgment in the Sporrong and Lönnroth case had been given,
they have taken any steps to appeal against the building prohibitions.
The applicants could appeal to the Government under Section 150 of the
1947 Building Act against the relevant decisions of the County
Administrative Board.
It follows that here the applicants have not complied with the
condition as to the exhaustion of domestic remedies, and this part of their
application must also be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
2. The applicants finally complain that the refusal to pay them
compensation means that the Government refuse to abide by the
judgments of the Court in the Sporrong and Lönnroth case. They refer
to the fact that another property owner has received compensation
although he was not an applicant in the Sporrong and Lönnroth case.
They allege that they have been discriminated against and invoke
Article 14 (Art. 14) of the Convention.
The Commission considers however that an applicant cannot
claim to have a right under the Convention to obtain compensation
based on a judgment by the Court in a case concerning another
applicant.
It follows that in this respect the application is
incompatible ratione materiae with the provisions of the Convention
and must be rejected under Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRUGER) (C. A. NØRGAARD)