AS TO THE ADMISSIBILITY OF
Application No. 22759/93
by Ernst GRADIN
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 7 September 1995, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 October 1993 by
Ernst Gradin against Sweden and registered on 12 October 1995 under
file No. 22759/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Swedish citizen born in 1910, resides at
Junsele. Before the Commission he is represented by Mr. Per Svensson,
a lawyer practising at Njurunda.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1938 the applicant bought a piece of property (Grundtjärn
2:11) in the municipality of Örnsköldsvik. By way of an easement
(servitut) established in 1892, the owner of that property had a right
to take firewood and timber on two neighbouring properties (later
designated Grundtjärn 2:7 and 3:1) and to use these properties for
hunting, fishing and pasturage.
The applicant resided permanently on his property between 1938
and 1946, after which it was let for about 15 years. Since the early
1960's, it has been used by the applicant for recreational purposes.
Until 1986 the applicant hunted elk on Grundtjärn 3:1 on payment of an
annual charge of 100 SEK to the owner of that property. His son, who
also took part in the hunting, had to pay 600 SEK. The difference
between the charges were allegedly due to the easement. The applicant
has also been hunting hare and game birds on Grundtjärn 3:1. He has,
however, not used his right of pasturage since 1946.
In 1987 the owner of Grundtjärn 3:1, a private forestry company,
applied to the Real Estate Formation Authority (Fastighetsbildnings-
myndigheten - "the Authority") of Örnsköldsvik for a cancellation of
the easement save for the fishing rights.
By decision of 30 November 1987, the Authority granted the
application. Noting that Grundtjärn 2:11 was not permanently occupied,
the Authority stated that the applicant's rights could be cancelled as
the right of pasturage had been abandoned and as, due to the changed
circumstances which had occurred since 1892, the other rights were no
longer necessary. Reference was made to Chapter 7, Section 15, of the
Real Estate Formation Act (Fastighetsbildningslagen, 1970:988), which
provides that an easement may be cancelled if it hinders the rational
use of the property to which it attaches. The easement may also be
cancelled if, due to changed circumstances, there is no need for the
easement, or the benefit of it is insignificant compared to the burden
borne by the property to which it attaches, or if the easement appears
to be abandoned. The decision further referred to Section 15 of the Act
of Promulgation of the Real Estate Formation Act (Lagen om införande
av fastighetsbildningslagen, 1970:989), according to which easements
concerning firewood, timber and pasturage may be cancelled even if the
requirements of Chapter 7, Section 15, are not met. With regard to
firewood, this applies only if the property benefiting from the
easement is not permanently occupied.
By the same decision, the Authority fixed the applicant's
compensation for the loss of his rights at a rounded-off figure of
10,000 SEK to be paid by the owner of Grundtjärn 3:1. No compensation
was granted in respect of the right of pasturage, as it was considered
to be abandoned. With regard to the right to take firewood and timber,
the Authority fixed the compensation at 9,700 SEK after having made
a calculation based on the market price of the wood and an estimated
20-year consumption, having regard to the applicant's limited use of
his property. In deciding the value of the hunting right, the
Authority took into account the possibility, under Sections 8 and 40
of the 1938 Hunting Act (Lagen om rätt till jakt, 1938:274), to have
an old hunting easement declared void by a court fifty years after the
entry into force of that Act, i.e. on 1 July 1988. Such a declaration
would not entitle the former holder of the hunting right to any
compensation. The Authority, thus, considered that the applicant should
only be compensated for the hunting that could take place before
1 July 1988. As elk-hunting was not allowed between 30 November 1987
and 1 July 1988 and, thus, only small game hunting could take place
during this period, the applicant's compensation was fixed at 200 SEK,
corresponding to the cost of the appropriate game-licence.
The applicant appealed first to the Real Estate Court
(Fastighetsdomstolen) of Härnösand and later to the Court of Appeal
(Hovrätten) for Lower Norrland and the Supreme Court (Högsta
domstolen). With respect to the cancelled right to take firewood and
timber, he requested to be compensated, in the first place, by being
given certain woodland or, in the second place, by being granted the
amount of 62,000 SEK. As concerns the hunting right, he requested the
courts, in the first place, to quash the decision to cancel his right
or, in the second place, to fix the compensation at 114,000 SEK.
On 8 August 1989 the Real Estate Court upheld the Authority's
decision. It found, inter alia, that there was no need for the
applicant to hunt on other properties, as he used his property only for
recreational purposes. The Court further agreed with the Authority's
compensation assessments.
On 19 May 1992 the Court of Appeal upheld the decisions of the
lower instances with the exception of the amount of compensation for
the right to take firewood and timber, which was increased to 12,550
SEK, due to a rise in the market prices of wood. The Court otherwise
agreed with the method of assessment employed by the lower instances.
On 13 April 1993 the Supreme Court refused the applicant leave
to appeal.
COMPLAINTS
The applicant complains that the cancellation of the easement
constituted an unjustified interference with his property rights. He
further maintains that the compensation granted was inadequate. He
invokes Article 1 of Protocol No. 1 to the Convention.
THE LAW
The applicant claims that the cancellation of the easement
violated his rights under Article 1 of Protocol No. 1 (P1-1) to the
Convention, 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."
The applicant asserts that the cancellation in question was
unjustified as there was no public interest involved, the owner of the
property to which the easement attached being a private company. He
maintains that the above provision does not allow the transfer of
property from one person to another. He further asserts that he was not
adequately compensated for the loss of his rights. In this respect, he
claims that the hunting right, the loss of which he was not compensated
for, was of particular importance to him.
The Commission first notes that the applicant did not appeal to
the domestic courts against the cancellation of his right of pasturage
and that he therefore failed, in this respect, to exhaust, in
accordance with Article 26 (Art. 26) of the Convention, the domestic
remedies available to him. Thus, in so far as the applicant's complaint
includes the loss of the right of pasturage, it follows that this part
of the application must be rejected for non-exhaustion of domestic
remedies under Article 27 para. 3 (Art. 27-3) of the Convention.
As regards the cancellation of the applicant's right to take
firewood and timber and to hunt on the neighbouring properties, the
Commission considers that this measure constituted a deprivation of his
possessions which falls to be considered under the second sentence of
the first paragraph of Article 1 (Art. 1-1).
The Commission recalls that the rights in question were cancelled
as they were found to be abandoned or, due to changed circumstances,
unnecessary for the use of the applicant's property. The relevant
decisions referred to Chapter 7, Section 15 of the Real Estate
Formation Act, which, inter alia, states that an easement may be
cancelled if it hinders the rational use of the property to which it
attaches. Having regard to the foregoing and to the margin of
appreciation enjoyed by the national authorities under Article 1 of
Protocol No. 1 (P1-1) (cf. Eur. Court H.R., Håkansson and Sturesson
judgment of 21 February 1990, Series A no. 171-A, p. 18, para. 54), the
Commission is satisfied that the decisions pursued a legitimate "public
interest", even though they involved a transfer of possessions between
private parties (cf. Eur. Court H.R., James and Others judgment of 21
February 1986, Series A no. 98, pp. 30-32, paras. 39-45).
With regard to the lawfulness of the challenged decisions, the
Commission is further satisfied that they were in conformity with
Swedish law, namely the above-mentioned provisions of the Real Estate
Formation Act, its Promulgation Act and the 1938 Hunting Act. The
requirement that the deprivation be in accordance with the general
principles of international law only applies to foreigners and is,
thus, of no relevance to the present application.
A deprivation of possessions must, however, not only in principle
pursue a legitimate aim in the public interest, but it must also
demonstrate a reasonable relationship of proportionality between the
means employed and the aim sought to be realised. The requisite
proportionality will not be found if the person concerned has had to
bear "an individual and excessive burden". Compensation terms are
material to the assessment of whether a fair balance has been struck
between the various interests at stake and whether or not a
disproportionate burden has been imposed on the person who has been
deprived of his possessions. Although Article 1 of Protocol No. 1
(P1-1) does not give a right to any particular amount of compensation,
the taking of property without payment of an amount reasonably related
to its value would normally constitute a disproportionate interference
which could not be considered justifiable (cf. Eur. Court H.R., Lithgow
and Others judgment of 8 July 1986, Series A no. 102, p. 50-51,
paras. 120-121).
In the present case, the Commission observes that the applicant
was granted 12,550 SEK as compensation for the loss of his right to
take firewood and timber. The Court of Appeal arrived at this amount
after having estimated the applicant's future consumption and the
existing market price of the wood. With respect to the hunting right,
the national authorities found that the value of this right was limited
as, according to the law, it could be declared void on 1 July 1988
without compensation. As only small game hunting was allowed until that
date, the applicant's compensation was fixed at 200 SEK, corresponding
to the cost of the appropriate game-licence.
The Commission finds no reason to call into question the method
used for calculating the compensation for the loss of the right to take
firewood and timber. As regards the hunting right, it was limited in
time by the provisions of the 1938 Hunting Act, which entered into
force on 1 July 1938. In so far as the applicant complains of the
limitation imposed by these provisions, the complaint relates to a
point of time prior to the entry into force of Protocol No. 1, and it
is therefore outside the competence ratione temporis of the Commission.
In so far as the applicant complains of the compensation awarded by the
national authorities, the Commission finds no support for the
allegation that it was inadequate, taking into account that the hunting
right could not, under the circumstances, be expected to be valid after
1 July 1988.
In the above circumstances and having regard to the national
authorities' margin of appreciation, the Commission cannot find that
the compensation awarded for the cancellation of the applicant's rights
was not proportionate and reasonably related to their value. It cannot,
therefore, be said that the applicant had to bear an excessive burden
in the matter.
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.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary Acting President
to the Second Chamber of the Second Chamber
(M.-T. SCHOEPFER) (G. H. THUNE)
Full & Egal Universal Law Academy