FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 33412/96
by FAMILJEN DENEV PENSIONSSTIFTELSE and Martin DENEV
against Sweden
The European Court of Human Rights (First Section), sitting on 16 January 2001 as a Chamber composed of
MrsW. Thomassen, President,
MrsE. Palm,
MrL. Ferrari Bravo,
MrGaukur Jörundsson,
MrC. Bîrsan,
MrJ. Casadevall,
MrR. Maruste, judges,
andMrM. O’Boyle, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 8 March 1994 and registered on 10 October 1996,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
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 first applicant is a Swedish foundation. The second applicant, a Bulgarian and Swedish national, is a member of the board of directors of the first applicant. The Government are represented by Ms Eva Jagander, Ministry of Foreign Affairs.
A.The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 30 March 1990 the second applicant sold 30 pieces of real property to the first applicant, 14 of which were agricultural estates.
On 2 April 1990, pursuant to sections 1 and 4 of the Act on Foreign Acquisitions of Real Estate etc. (Lagen om utländska förvärv av fast egendom m.m., 1982:618; hereinafter “the 1982 Act”), the first applicant submitted a request to the County Administrative Board (länsstyrelsen) of the County of Kopparberg for a permit to retain the acquired properties.
On 11 April 1990 the request was submitted to the County Agricultural Board (lantbruksnämnden) for an opinion. The opinion of the County Agricultural Board was received at the County Administrative Board on 14 May 1990.
On 29 May 1990 the first applicant stated, inter alia, that the County Agricultural Board’s opinion was illegal and should therefore not be taken into account. Furthermore, the first applicant wanted immediately to obtain a decision regarding those property units which were not agricultural or forestry properties.
On 7 June 1990 the County Administrative Board informed the Municipal Executive Board (kommunstyrelsen) of the Municipality of Malung about the first applicant’s request and asked the Municipal Executive Board to inform the County Administrative Board not later than 28 June 1990 whether it was going to make use of its right to acquire the properties in accordance with the Pre-Emption Act (Förköpslagen, 1967:868; hereinafter “the 1967 Act”).
On 11 February 1992 the decision of the Municipal Executive Board of Malung not to use its right to acquire the properties arrived at the County Administrative Board. The decision was dated 25 June 1990.
On 21 April 1992 the first applicant submitted a request for a permit to retain 16 of the property units in the matter. It stated that the bill of sale of 30 March 1990, on which its earlier application was based, had become invalid due to the lengthy handling of the case. On 22 April 1992 the first applicant made additional submissions.
On 20 May 1992 the County Administrative Board decided to grant the first applicant’s request for acquisition permits with respect to several of the property units in question.
On 25 May 1992 the first applicant submitted to the County Administrative Board a request for a permit to retain six of the property units in the matter. The application was based on a deed of gift according to which the second applicant assigned the six units to the first applicant. The deed was dated 19 May 1992.
On 1 June 1992 the first applicant submitted a request for a permit to retain four property units. This request was based on two bills of sale, one of which was going to replace the deed of gift of 19 May 1992 with respect to one of the units. On 9 July 1992 the first applicant submitted further observations.
By a decision of 13 July 1992 the County Administrative Board, following a recommendation of the County Agricultural Board, rejected the first applicant’s request in respect of eleven of the agricultural estates. In so doing, the County Administrative Board relied on Chapter 1, Section 8 § 2 of the 1982 Act, according to which a permit to acquire a property shall be refused if such a permit would have been refused under the Land Acquisition Act (Jordförvärvslagen, 1979:230; hereinafter “the 1979 Act”).
On 27 July 1992 the first applicant appealed against the decision. On 1 September 1992 the County Administrative Board transmitted the case file to the Government. The first applicant submitted observations on 2 and 13 October 1992 and on 18 March 1993.
On 25 March 1993 the Government quashed the decision of 13 July 1992. They found that, as of 31 December 1992, the 1982 Act had been replaced by the 1992 Act on Approval of Certain Acquisitions of Real Estate (Lagen om tillstånd till vissa förvärv av fast egendom, 1992:1368; hereinafter “the 1992 Act”), the transitional rules of which stipulated that the new legislation was to be observed regardless of whether the acquisition had occurred before or after the entering into force of the 1992 Act. For this reason, so the Government stated, the first applicant’s request had to be considered on the basis of the 1992 Act. Finding that this should be done at first instance, they referred the case back to the County Administrative Board.
By decision of 17 May 1993, the County Administrative Board found that the 1992 Act – as opposed to the 1982 Act – did not apply to Swedish foundations. Thus, under the 1992 Act, no permit was required for the first applicant’s acquisition of the agricultural estates. The Board noted, however, that acquisitions by Swedish foundations of agricultural holdings were subject to public approval under other legislation, viz. the 1979 Act. Being the competent authority to deal also with requests for acquisition permits according to the 1979 Act, the Board decided to consider the first applicant’s request on the basis of the said act. In the decision of 17 May 1993 the request was rejected. The Board stated the following:
(Translation)
“Under Section 5 of the [1979] Act ..., a legal person may only be issued an acquisition permit if
1.the legal person relinquishes or can be expected to relinquish land which is of significance for the rationalisation of agriculture or forestry and, in terms of
size or value, is equivalent or almost equivalent to the land acquired by the legal person,
2.the acquisition has the consequence that land already belonging to the legal person becomes more suitable for its purpose,
3.the land is intended for other purposes than agriculture or forestry,
4.there are other particular reasons.
In the County Administrative Board’s opinion, none of the conditions stated in [Section 5] has been fulfilled in the instant case. The agricultural holdings are situated in areas where the partition of land is inappropriate and where efforts are being made to improve the general layout of estates. For this reason, all of the holdings, regardless of size, are of significance to agriculture and forestry. The fact that holdings may have been given low rateable values [taxeringsvärden] does not constitute particular reasons within the meaning of [Section 5]. Thus, a permit to acquire the properties shall be refused.”
Following the first applicant’s appeals, the County Administrative Board’s decision was upheld by the National Board of Agriculture (Statens jordbruksverk) on 13 July 1993 and the Administrative Court of Appeal (kammarrätten) in Sundsvall on 8 November 1993.
On 26 November 1993 the first applicant lodged an appeal with the Supreme Administrative Court (Regeringsrätten). On 8 December 1993 the first applicant was requested to submit its appeal petition in the original. This was done on 14 March 1994. On 26 April and 26 July 1994 and on 13 June 1995 the first applicant submitted further observations. It stated, inter alia, that the Supreme Administrative Court would commit a deliberate crime of omission against the will of Parliament if it did not quash the criminal judgment of the Administrative Court of Appeal.
On 5 September 1995 the Supreme Administrative Court refused the first applicant leave to appeal. Thus, on the same day, the County Administrative Board’s decision of 17 May 1993 gained legal force. As a consequence, the first applicant’s purchase of the eleven agricultural estates became invalid.
B.Relevant domestic law
a.Permission to acquire certain real property
At the time of the first applicant’s acquisition of the land in question, a permit was required for acquisition of land in accordance with the 1982 Act. Without such a permit the purchase became null and void. Thus, according to Section 1 of the 1982 Act, potential purchasers of real property, with respect to which the 1982 Act applied, could not acquire real property without an acquisition permit. With certain exceptions, not relevant to the present case, the 1982 Act was applicable to Swedish foundations like the first applicant.
An application for an acquisition permit was to be submitted not later than three months after the acquisition (Chapter 1, Section 4 of the 1982 Act). The acquisition was invalid if a permit had not been applied for within the prescribed time or if a permit was refused (Chapter 1, Section 7). Questions relating to acquisitions were examined by the County Administrative Board (Chapter 1, Section 3). A permit was not granted if it would have been refused in connection with an examination in accordance with the 1979 Act.
The 1982 Act was repealed on 31 December 1992 when the 1992 Act entered into force. According to the transitional provisions of the 1992 Act, this Act shall apply even when the acquisition took place before its entry into force, except in cases where the acquisition did not require a permit under the Act in force at the time of the acquisition. Under the 1992 Act, an acquisition permit is required in certain cases in connection with the acquisition of real property which for taxation purposes is to be regarded as a small house or as agricultural property. However, a permit is not required under the 1992 Act when the purchaser is a Swedish legal entity (Section 1 § 2(6)). On the other hand, as regards agricultural property, there is a permit requirement under the 1979 Act.
The 1979 Act is applicable, inter alia, in connection with acquisition of agricultural property by purchase, exchange or gift (Section 2). Under the Act, an acquisition permit is required, inter alia, when the acquirer is a legal entity (Section 3a). As a rule, permit matters are examined by the County Administrative Board of the county within which the property is situated.
The material rules for granting permits are found in Sections 4–8 of the 1979 Act. Section 5 contains provisions on granting an acquisition permit to a legal entity. As examples of when a permit may be granted could be mentioned cases where the acquisition means that the land already in the purchaser’s possession will become more functional (§ 1(2)) or that the property is intended for purposes other than agriculture or forestry (§ 1(3)).
An application for an acquisition permit shall be submitted not later than three months after the acquisition took place (Section 12 § 2). The question of granting a permit based on a purchase or an exchange may not be decided until it has been clarified whether pre-emption according to the 1967 Act will be exercised, unless it is obvious that pre-emption will not be exercised (Section 12 § 3). The acquisition becomes null and void if the application is not submitted within the prescribed time, or if the permit is refused (Section 13).
According to the 1967 Act a local municipality may, under certain circumstances, exercise the right of pre-emption in respect of an agreed purchase of a piece of real property which is needed for certain purposes in the public interest.
b.Appeal procedure
Under Chapter 4, Section 1 of the 1982 Act an appeal could be lodged with the Government against decisions in permit matters made by public authorities other than the Government.
Under Section 18 of the 1979 Act an appeal may be lodged with the National Board of Agriculture against decisions made by a County Administrative Board. A decision by the National Board of Agriculture may be appealed against to an administrative court, i.e. the County Administrative Court and then to the Administrative Court of Appeal. Prior to 1 April 1995 an appeal could be lodged directly with the Administrative Court of Appeal. An appeal may be lodged with the Supreme Administrative Court against decisions made by the Administrative Court of Appeal. However, by virtue of Section 33 of the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291), leave to appeal is required.
c.Provisions pertaining to expeditious processing
The 1982 Act and the 1982 Ordinance on Foreign Acquisitions of Real Property (Förordningen om utländska förvärv av fast egendom m.m., 1982:879) contain no provisions concerning the procedure as far as demands for speediness are concerned, nor do the 1992 Act or the 1992 Ordinance on Permission to Acquire Certain Real Property (Förordningen om tillstånd till vissa förvärv av fast egendom, 1992:1374). However, with respect to cases examined under the 1979 Act, Section 9 of the Land Acquisition Ordinance (Jordförvärvsförordningen, 1991:736) stipulates that questions concerning acquisition permits shall be examined without delay and that decisions in the matter shall be rendered not later than three months after the application was made, unless there are special reasons.
Section 7 of the Administrative Procedure Act (Förvaltningslagen, 1986:223), which contains general rules governing the procedure before the administrative authorities and which is applicable to the procedure before the County Administrative Board and the National Board of Agriculture, prescribes that cases shall be handled as simply, rapidly and economically as is possible without jeopardising legal security (Section 7). There are no special provisions concerning how rapidly cases are to be handled before the administrative courts in the Administrative Court Procedure Act.
COMPLAINTS
1.The first applicant – in its capacity as buyer – and the second applicant – in his capacity as seller – complain that the case was not determined within a reasonable time as required by Article 6 § 1 of the Convention. They consider that the period to be taken into account is the period between 2 April 1990 and 5 September 1995, i.e. a period of about five years and five months.
2.Moreover, the applicants complain of a violation of Article 1 of Protocol No. 1 to the Convention. They maintain that the impugned measures constituted an interference with their right to peaceful enjoyment of the agricultural estates and the moneys deriving from the sale of the estates, respectively. In this context they also contend that the decisions of the various bodies involved are at variance with relevant domestic law.
3.Finally, invoking Article 14 of the Convention, the applicants allege that they have been victims of discrimination as compared with buyers and sellers of Swedish origin.
THE LAW
1.The applicants complain that the case was not determined within a reasonable time as required by Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time ...”
The Government maintain that the examination carried out in this case was of certain complexity since it was necessary to obtain opinions and decisions from the competent administrative and judicial authorities in order to examine the case properly. Furthermore, according to the Government, regard should be had to the fact that the first applicant’s request contained several property units, which all had to be considered. Another complicating factor was that an entirely new Act had entered into force, following the County Administrative Board’s decision of 13 July 1992, creating a new legal basis for the examination of the first applicant’s request.
In the Government’s opinion the case has been made more complex with regard to facts and procedure because of the conduct of the first applicant, especially in the first set of proceedings before the County Administrative Board. The Government argue that the thorough investigation that was carried out to a great extent was made in the first applicant’s own interest, since it could not itself present its case and relevant facts and arguments in a
clear and well-structured manner. Allegedly, the case was also made more complex with regard to facts and procedure because of the conduct of the first applicant. For example, its request was reformulated several times with different legal bases being invoked.
Furthermore, in the Government’s view, the first applicant complicated the matter by submitting a great number of submissions, some of which were allegedly not easy to understand. It was very difficult to make an assessment and separate relevant facts and arguments from all the information that the first applicant submitted. The Government maintain that the efforts made to investigate the first applicant’s different statements were clearly exceeding what can be considered as normal in a case like the present.
In sum, the Government are of the opinion that the complaint should be declared inadmissible for being manifestly ill-founded.
The applicants maintain that their request for an acquisition permit was not processed with the necessary speed. They contend that the case was a simple one and that requests of this nature are usually decided within one or two months. Allegedly, the authorities deciding on the case violated Swedish law in this respect.
The Court finds that the period to be taken into consideration started to run on 2 April 1990, when the first applicant submitted a request for an acquisition permit, and ended on 5 September 1995, when the Supreme Administrative Court refused leave to appeal. The proceedings, which comprised four levels of jurisdiction, thus lasted five years and five months.
The Court recalls at the outset that the reasonableness of the length of proceedings must be assessed with reference to the following criteria: the complexity of the case and the conduct of the parties and that of the authorities before which the case is brought. Furthermore, the special circumstances of the case, in particular what is at stake for the applicant in the litigation, may in certain circumstances be taken into account and may call for an overall assessment (cf., e.g., the Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, § 30, and the X. v. France judgment of 31 March 1992, Series A no. 234-C, p. 90, § 32). The Court also recalls that in civil cases the exercise of the right to a hearing within a reasonable time is subject to diligence being shown by the parties concerned (cf., e.g., the Pretto and Others v. Italy judgment of 8 December 1983, Series A no. 71, pp. 14 et seq., §§ 33 et seq.). Nonetheless this principle cannot absolve the courts from securing that the case progresses within a reasonable time (cf., e.g., the Martins Moreira v. Portugal judgment of 26 October 1988, Series A no. 143, p. 17, § 46).
As to the matter of complexity, the Court finds that the instant case does not seem to differ considerably from an average case concerning a request for an acquisition permit. However, some specific complicating factors can be observed. For example, the application considered a relatively large number of property units. The authorities also had to apply new legislation.
As regards the first applicant’s conduct, it is clear that this to some extent prolonged the proceedings and also complicated the character of the case. Thus, the first applicant submitted on several occasions supplementary observations which did not always seem to be
readily comprehensible and of immediate relevance to the decision whether to grant the acquisition permit in question. Furthermore, the first applicant changed its request on several occasions and invoked new legal bases.
Lastly, as regards the conduct of the judicial authorities, the Court notes that there were indeed some periods of inactivity from the part of the authorities, mostly in the first set of proceedings. In particular, the County Administrative Board cannot be absolved from criticism for its omission to uphold the time-limit fixed for the Municipal Executive Board’s decision whether to exercise its rights under the pre-emption legislation. However, these delays do not under the circumstances, in the Court’s opinion, give rise to any serious misgivings as to the reasonableness of the length of the proceedings.
Making an overall assessment the Court finds that the length of the proceedings, in four levels of jurisdiction, did not exceed what could be considered reasonable under Article 6 § 1 of the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
2.The applicants complain of a violation of Article 1 of Protocol No. 1 to the Convention. They maintain that the impugned measures constituted an interference with their right to peaceful enjoyment of the agricultural estates and the moneys deriving from the sale of the estates, respectively. In this context they also contend that the decisions of the various bodies involved are at variance with relevant domestic law.
Article 1 of Protocol No. 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 ...”
The Court recalls that its task in this context is to examine the lawfulness, purpose and proportionality of the decision taken by the domestic authorities (cf., e.g., application no. 12258/86, decision of 9 May 1988, D.R. 56, p. 215). As regards the choice of the detailed legal rules implementing a measure for the control of the use of property, the domestic legislature must have a wide margin of appreciation. In respect of the purpose of the measures, the Court must respect the domestic legislature’s judgment as to what is in the general interest unless that judgment was manifestly without reasonable foundation (cf. the Mellacher and Others v. Austria judgment of 19 December 1989, Series A no. 169, p. 26, § 45).
In the present case the Court notes that the measures taken were based on the relevant domestic legal provisions. Furthermore, they were clearly in pursuance of a general interest, namely the rational use of the country’s agricultural resources. Therefore, the Court finds no appearance of a violation of Article 1 of Protocol No. 1 to the Convention.
It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
As to the applicants’ contention that the decisions of the various bodies involved are at variance with relevant domestic law, the Court recalls that, in accordance with Article 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 applications concerning errors of law or fact allegedly committed by the competent national authorities, to whom it falls, in the first place, to interpret and apply domestic law. The Court has no competence to examine allegations concerning such errors except where, and to the extent that, they seem likely to have entailed a possible violation of any of the rights and freedoms set out in the Convention (see the Garcia Ruiz v. Spain judgment of 21 January 1999, § 28, with further reference, to be published in Reports of Judgments and Decisions 1999).
It is true that the applicants maintain that the decisions in question were at variance with relevant domestic law. However, an examination of this part of the application has not disclosed to the Court any appearance of a violation of the Convention.
It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
3.The applicants allege, invoking Article 14 of the Convention, that they have been victims of discrimination as compared with buyers and sellers of Swedish origin.
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court finds no appearance in the material submitted by the applicants of a violation of this Article.
It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Michael O’BoyleWilhelmina Thomassen
RegistrarPresident
Full & Egal Universal Law Academy