AS TO THE ADMISSIBILITY OF
Application No. 11844/85
by Gunnar ERIKSSON and Others
against Sweden
The European Commission of Human Rights sitting in private
on 29 February 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 11 June 1985
by Gunnar Eriksson and Others against Sweden and registered on
30 October 1985 under file N° 11844/85;
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 applicants who are all Swedish citizens are the following:
1. Mr. Gunnar Eriksson, born in 1937 and resident at Storsätern.
He is a farmer and engineer.
2. Mrs. Stina Ohlsson, born in 1941 and resident at Idre.
She is a bank employee.
3. Mrs. Mariann Eriksson, born in 1936 and resident at Storsätern.
She is a factory employee.
4. Mr. Sture Foglé, born in 1923 and resident in Stockholm.
He is a mining engineer.
Before the Commission the applicants are represented by
Mr. Engel Galtung who is a retired engineer residing at Sundbyberg,
Sweden.
The applicants own a piece of land at Storsätern, called
Floåsen 11:13. In 1973 a building plan for the area including Floåsen
11:13 was adopted. This plan was amended on 14 March 1978. A building
plan for the adjoining area including a piece of land called Floåsen
20:99 was adopted by the Government on 16 October 1980. The two areas
are separated from each other by the river Grövlan. According to the
building plans it was envisaged that a road and a bridge be
constructed in order to link Floåsen 20:99 with a highway. This
involved the applicants' property through which the road would be
built.
A construction plan for the road in question was set up by the
Property Formation Authority (fastighetsbildningsmyndigheten) of Mora
on 6 October 1978.
On 22 September 1981 the owner of the area Floåsen 20:99
applied for permission to construct the road as set out in the
construction plan of 1978 and the building plan of 1973 as amended in
1978. The Property Formation Authority examined the application and
the property owners involved, including the applicants, were heard.
On 12 November 1981 the Property Formation Authority decided
to grant the permission requested. It was furthermore decided that
the owners of Floåsen 11:13 should be awarded 11.000 Swedish crowns
(SEK) in compensation for the land and the applicant no. 2 should be
awarded 27.000 SEK in compensation for the loss of a cottage owned by
her which was to be demolished according to the decision. The
Authority decided that the road should be constructed before
31 December 1986.
The applicants lodged an appeal against this decision with the
District Court of Falun (Falu tingsrätt). They claimed that the
decision should be quashed and in the alternative that compensation
should be paid, not only for the market value of the land to be taken
for the road construction, but also for other losses such as
inconveniences relating to noise and dust caused by the future
increase of traffic. The second applicant claimed compensation in
the amount of 734.571 SEK.
In its judgment of 14 September 1984 the District Court stated
inter alia:
"According to Section 49 of the Construction Act
(anläggningslagen) a right may be granted to a property to
construct a road over another property provided the need of
the road is of considerable importance for the first
property and provided substantial inconveniences do not
arise for the latter. The District Court finds it obvious
that it is of considerable importance to grant the right to
construct a road over the property Floåsen 11:13 in
order to satisfy the needs of the property mentioned in the
decision of the Property Formation Authority of an exit to
the public road 1058. Such a permission is in accordance
with the building plan of 1973 and 1978 concerning the village
of Storsätern. The examination of the case does not support
the allegation that the construction of the road and the
traffic which may follow will give rise to substantial
inconveniences for Floåsen 11:13. For these reasons the
plaintiffs' request to quash the decision shall be
rejected."
Furthermore the District Court examined the applicants'
request for compensation. The Court first noted that the applicants
had declared that they were satisfied with the compensation awarded
for the land which was to be taken from them (11,000 SEK) and that the
decision had acquired legal force in that respect. As regards the
claim for compensation for inconveniences resulting from the future
traffic the Court found no reason to award any compensation. The
compensation to be awarded to the second applicant for the destruction
of her cottage was increased to 32.000 SEK.
The applicants appealed against this judgment to the Svea
Court of Appeal (Svea hovrätt) which upheld the judgment on
21 December 1984. Leave to appeal to the Supreme Court (högsta
domstolen) was refused by the Supreme Court on 17 June 1985.
Whilst the above proceedings were pending the owner of Floåsen
20:99 submitted an application requesting permission to construct a
bridge over the river Grövlan in order to connect the property with
the road to be constructed. This question was examined by the Water
Court of Stockholm (Stockholms tingsrätt, vattendomstolen). Before
this Court the first applicant objected to such construction.
On 6 December 1984 the Water Court dismissed the applicant's
objections and granted permission to construct the bridge since no
obstacles according to Chapter 2 of the Water Act (vattenlagen) were
present. The construction thus permitted shall, according to the
judgment, be terminated within five years from the date of the
judgment.
The first applicant appealed against this judgment to the
Water Court of Appeal (vattenöverdomstolen) which upheld the judgment
on 6 March 1985. Leave to appeal to the Supreme Court was refused by
the Supreme Court on 17 June 1985.
The first applicant submitted a request for re-opening of the
above proceedings. This request was rejected by the Supreme Court on
26 March 1987.
On 1 December 1981 the Building Committee (byggnadsnämnden)
of Älvdalen decided, following a request from the applicants, not to
change the building plan. Similar decisions were taken by the
Building Committee on 31 May 1983 and 23 April 1985 following letters
from the applicants' representative.
By letter of 17 February 1983 the applicants' representative,
inter alia, requested the Government to reconsider their decision of
16 October 1980 relating to the adoption of the building plan.
On 24 March 1983 the Government decided not to examine the
request since the matter had been finally determined on 16 October
1980.
At present neither the bridge nor the road has been constructed.
The time-limit set for the construction of the road, 31 December 1986,
has expired.
COMPLAINTS
1. The applicants allege a violation of Article 1 of Protocol
No. 1 to the Convention in that a part of their property will be taken
away in order to construct a private road from Floåsen 20:99 to the
public road. They submit that the private road is not in the public
interest.
Even if the land and the cottage will not be taken from them
the applicants allege that Article 1 of Protocol No. 1 has been
violated in that they have, for a very long period of time, lived in
uncertainty as to the future of their property. This uncertainty
involves inter alia damages to the applicants since they cannot
repair the cottage and connect it with the water and sewage system.
2. Furthermore the applicants invoke Article 6 para. 1 and
Article 13 of the Convention. They complain that the courts ignored
their request for compensation and furthermore applied the wrong law
when considering the matter. In particular under Article 13 of the
Convention the applicants submit that the Building Committee's
decisions on building plans are not subject to any appeal.
3. The applicants also allege that the owner of Floåsen 20:99,
a large company, is given undue advantages, and that there has been
discrimination against the applicants.
THE LAW
As to Article 1 of Protocol No. 1 (P1-1)
1. The applicants complain that they will be deprived of property
contrary to Article 1 of Protocol No. 1 (P1-1) to the Convention.
Even if the property will not be taken away from them, they submit
that the uncertainty created by the authorities' decisions violates
the said provision. Article 1 of Protocol No. 1 (P1-1) 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."
The Commission observes that the construction of the road and
the bridge which is envisaged by the building plans has not yet taken
place, and it is uncertain whether it will ever take place.
The decision of the Property Formation Authority of
12 November 1981, which inter alia gave the owner of Floåsen 20:99 the
right to build a road over the applicants' property and to demolish
the second applicant's cottage, provided that the constructions should
have been terminated before 31 December 1986. Accordingly this
decision can no longer be executed.
The decision of the Water Court of 6 December 1984, which inter
alia gave the owner of Floåsen 20:99 the right to construct a bridge
over the river Grövlan and on the applicants' property, provides that
the constructions should be terminated within five years from the date
of the judgment, i.e. before 6 December 1989.
Consequently, there exists a building plan according to which
a road may be constructed over the applicants' property and a bridge
may be constructed from the applicants' property over the river
Grövlan. There are also two decisions implementing the building plan
one of which, concerning the construction of the bridge, may still be
executed. If land will be taken from the applicants there are rules
guaranteeing compensation as appears from the decision of the Property
Formation Authority.
The building plans at issue were adopted on 14 March 1978
(regarding the land east of the river Grövlan) and on 16 October
1980 (regarding the land west of the river Grövlan). The applicants'
subsequent efforts to obtain a change of the building plans cannot be
regarded as effective remedies for the purpose of Article 26 (Art. 26)
of the Convention. The Commission is consequently prevented by the
six months rule from examining the adoption of those building plans if
it is assumed that the applicants have exhausted domestic remedies in
that respect. The fact that the building plans have remained in force
after they were adopted cannot be considered separately by the
Commission.
It follows that, insofar as the applicants complain about the
adoption and effects of the building plans, this complaint does not
satisfy the conditions of Article 26 (Art. 26) of the Convention and
is consequently inadmissible under Article 27 para. 3 (Art. 27-3).
2. However, the decisions relating to the implementation of the
plans, by the construction of the road and the bridge, have created
an interference with the applicants' right to the peaceful enjoyment
of their possessions as guaranteed by Article 1 of Protocol No. 1
(Art. P1-1). The Commission must therefore examine whether these
decisions constituted deprivation, or only control of the use, of the
applicants' property.
The Commission here notes that the building plans can no
longer be implemented on the basis of the decision of the Property
Formation Authority concerning the construction of a road, a decision
which was not enforced within its stipulated time-limit. It follows
that the applicants cannot be considered to have been "deprived", by
the above decision, of their property within the meaning of the second
sentence of the first paragaraph of Article 1 (P1-1). The Commission next
notes that it is still legally possible to implement the decision
authorising the construction of the bridge, but it considers that the
factual situation is such that also this interference with the
applicants' property right cannot be characterised as deprivation, but
only as "control (of) the use of property". Consequently, the
interferences complained of fall to be considered under the second
paragraph of Article 1 of Protocol No. 1 (P1-1).
The Commission must therefore examine whether the
interferences with the applicants' right to the peaceful enjoyment of
possessions were justified under the second paragraph of Article 1 of
Protocol No. 1 (P1-1). This means that it must consider whether the
decisions concerning the implementation of the building plans were
"necessary to control the use of property in accordance with the
general interest". The task of the Convention organs in this context
is to supervise the lawfulness, purpose and proportionality of the
decisions taken by the domestic authorities (cf. e.g. No. 10378/83,
Dec. 7.12.83, D.R. 35 p. 235). The question of proportionality
requires a determination as to whether a fair balance has been struck
between the demands of the general interest and the interest of the
individual. In determining whether a fair balance exists, the
Contracting State enjoys a wide margin of appreciation with regard
both to choosing means of enforcement and to ascertaining whether the
consequences of enforcement are justified in the general interest for
the purpose of achieving the object of the measure in question (Eur.
Court H.R., Agosi judgment of 24 October 1986, Series A No. 108,
p. 18, para. 52).
The Commission is satisfied that the decisions taken by the
Swedish authorities were lawful. It is also satisfied that they
served the "general interest". A decision authorising the owner of a
property in a development area to construct a bridge and a road in
order to give him access to the public road can be regarded as being
in the "general" interest.
As regards the proportionality between the interference with
the applicants' property rights and the general interest pursued, the
Commission recalls that the road and the bridge were to be constructed
in order to provide access from an area, which was intended to be
developed with leisure houses, to the public road. If this area is
developed according to the plan, it is thus envisaged that land will
be taken from the applicants for the construction of the road and
the bridge.
Although the Commission understands that the uncertainty as
to the implementation of the plans affects and restricts the
applicants in the use of their property, it finds, in view of the wide
margin of appreciation enjoyed by the Contracting States in this area,
that the decisions taken cannot be considered to be disproportionate
to their legitimate purpose. Consequently, the interference with the
applicants' right to the peaceful enjoyment of their possessions was
justified under the terms of the second paragraph of Article 1 of
Protocol No. 1 (P1-1).
The Commission finds no indication of any other issue under
Article 1 of Protocol No. 1 (P1-1).
It follows that in this respect the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
As to Articles 6 and 13 (Art. 6, 13) of the Convention
3. The applicants also allege violations of Article 6 (Art. 6) and
Article 13 (Art. 13) of the Convention.
Article 6 para. 1 (Art. 6-1) first sentence 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."
Article 13 (Art. 13) of the Convention guarantees to everyone,
whose rights and freedoms in the Convention are violated, the right to
an effective remedy before a national authority.
The applicants' complaints in this respect relate, on the one
hand, to the proceedings concerning the construction of the road and,
on the other hand, to the applicants' efforts to obtain a change of
the building plan.
As regards the proceedings relating to the construction of the
road the applicants submit that the domestic law has been incorrectly
applied and that the decisions on compensation were incorrect.
The Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its constant
case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.
13.12.79, D.R. 18 pp. 31, 45).
However, from the applicants' submissions there is no
indication of a possible violation of Articles 6 or 13 (Art. 6, 13) of
the Convention in respect of the proceedings relating to the road and
bridge construction.
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.
4. Insofar as the applicants complain under Articles 6 and 13
(Art. 6, 13) of the Convention of the procedure whereby the building
plans were adopted, the Commission recalls that these plans acquired
legal force in 1978 and 1980 respectively. If it is assumed that the
applicants have exhausted domestic remedies, it follows that the
applicants have not complied with the six months rule in Article 26
(Art. 26) of the Convention and this complaint is consequently
inadmissible under Article 27 para. 3 (Art. 27-3) of the Convention.
5. It is true that the applicants have subsequently tried to
obtain an amendment of the building plans. They have addressed
themselves to the Building Committee which on 1 December 1980,
31 May 1983 and 23 April 1985 decided not to amend the plans.
On 24 March 1983 the Government decided not to examine a request from
Mr. Galtung for reconsideration of the Government's adoption of the
building plan on 16 October 1980.
However, the Commission considers that the above decisions
to reject the applicants' requests to have the building plan amended
cannot be considered to involve a determination of the applicants'
"civil rights" within the meaning of Article 6 (Art. 6) of the
Convention. Nor do they involve any determination of the applicants'
rights and freedoms guaranteed by the Convention.
It follows that in these respects the application is
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2).
6. The applicants' allegation that Article 1 of Protocol 1 No. 1
(P1-1) was violated as a result of the duration and the uncertainty as to the
implementation of the building plan relates to the adoption of the
building plan and its legal consequences. Accordingly, no separate
issues arise under Articles 6 or 13 (Art. 6, 13) of the Convention in
this respect.
As to Article 14 (Art. 14) of the Convention
7. The applicants have also referred to Article 14 (Art. 14) of
the Convention which prohibits discrimination in the enjoyment of the
rights and freedoms of the Convention. However, in view of its
considerations above the Commission finds no separate issue in this
respect.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRUGER) (C. A. NØRGAARD)