EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 11309/84
Mats JACOBSSON
against
SWEDEN
REPORT OF THE COMMISSION
(adopted on 16 March 1989)
11309/84
- i -
TABLE OF CONTENTS
page
I. INTRODUCTION (paras. 1-14) ............................ 1
A. The application
(paras. 2-4) ...................................... 1
B. The proceedings
(paras. 5-10) ..................................... 1
C. The present Report
(paras. 11-14) .................................... 2
II. ESTABLISHMENT OF THE FACTS (paras. 15-49) ............ 4
A. Particular circumstances of the case
(paras. 15-26) .................................... 4
B. Relevant domestic law and practice
(paras. 27-49) .................................... 6
a. Legislation on construction
and urban planning (paras. 27-29) ............. 6
b. Plans and regulations for
non-planned areas (paras. 30-36) .............. 6
c. Building prohibitions
(paras. 37-42) ................................ 7
d. Formation of property units
(para. 43) .................................... 8
e. Decisions and review of decisions
(paras. 44-49) ................................ 8
III. SUBMISSIONS OF THE PARTIES (paras. 50-74) ............. 10
A. The applicant
(paras. 50-58) .................................... 10
B. The Government
(paras. 59-74) .................................... 11
IV. OPINION OF THE COMMISSION (paras. 75-102) ............. 14
A. Points at issue
(para. 75) ........................................ 14
11309/84
- ii -
B. Article 6 of the Convention
(paras. 76-97) .................................... 14
a. Applicability of Article 6 para. 1
of the Convention (paras. 78-89) .............. 14
aa. Was there a dispute regarding a "right"?
(paras. 79-86) ........................... 14
bb. Was the right "civil" in character?
(paras. 87-89) ........................... 15
b. Compliance with Article 6 para. 1
of the Convention (paras. 90-97) .............. 16
C. Article 13 of the Convention
(paras. 98-100) ................................... 17
D. Recapitulation
(para. 101) ....................................... 17
Dissenting Opinion of Mr. S. Trechsel joined by Mrs. J. Liddy 18
Opinion dissidente de M. F. Martinez .................... 19
APPENDIX I : HISTORY OF THE PROCEEDINGS .................... 22
APPENDIX II: DECISION ON THE ADMISSIBILITY ................. 23
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, Mr. Mats Jacobsson, is a Swedish citizen born
in 1953 and resident in Stockholm. He is a journalist by profession.
He is represented before the Commission by Mr. Hasse W. Tullberg, a
lawyer.
3. The application is directed against Sweden. The respondent
Government are represented by their Agent, Mr. Hans Corell,
Ambassador, Under-Secretary at the Ministry for Foreign Affairs,
Stockholm.
4. The case relates to a reduction in the possibilities for
construction on the applicant's property arising from an amendment to
a building plan (byggnadsplan) for the area in which his property is
located. The applicant complains that, whereas under the old plan he
had a right to divide his property into two building plots, he now has
no such right as a result of the amendment. He alleges a violation of
Article 6 para. 1 and of Article 13 of the Convention on the grounds
that his rights under the building plan could not be examined at an
impartial and public court hearing and that he did not have an
effective remedy for the alleged violation of his rights and freedoms
as set forth in the Convention or its Protocol No. 1.
B. The proceedings
5. The application was introduced on 5 August 1984 and registered
on 17 December 1984. It was declared inadmissible on 8 October 1985
as the applicant had not shown that he had complied with the six
months rule laid down in Article 26 of the Convention.
On 13 October 1986 the Commission, on the basis of new
information, decided to re-open the proceedings and, in accordance
with Rule 42, para. 2 (b) of its Rules of Procedure, to give notice
of the application to the respondent Government and to invite them to
present before 16 January 1987 their observations in writing on the
admissibility and merits of the application insofar as it related to
the alleged violation of Article 6 para. 1 of the Convention.
The Government's observations were dated 15 January 1987 and
the applicant's observations in reply were, after an extension of the
time-limit, dated 9 April 1987.
6. Legal aid under the Addendum to the Commission's Rules of
Procedure was granted to the applicant on 16 October 1987.
7. On 8 March 1988 the Commission decided to declare inadmissible
the applicant's complaint that the decision to change the building
plan violated Article 1 of Protocol No. 1 to the Convention.
The remainder of the application, concerning the complaint under
Articles 6 and 13 of the Convention that the amendment to the building
plan could not be examined at an impartial and public court hearing
and that the applicant did not have an effective remedy for the
alleged violation of his rights and freedoms as set forth in the
Convention, was declared admissible.
8. The parties were then invited to submit any additional
observations on the merits of the application which they wished to
make.
9. The Government submitted further observations on 13 June 1988
and the applicant submitted further observations by letter of
27 September 1988. The observations of each party were transmitted to
the other party for information. The Government submitted further
observations by letter of 24 November 1988.
10. After declaring the case admissible the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. 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
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. C. L. ROZAKIS
Mrs. J. LIDDY
The text of the Report was adopted by the Commission on
16 March 1989 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is :
(1) to establish the facts, and
(2) to state an opinion as to whether the facts disclose a
breach by the State concerned of its obligations under
the Convention.
13. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
second decision on the admissibility of the application of 8 March 1988
forms Appendix II.
14. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
15. Since 1973 the applicant has owned a property, Tullinge 17:289
(previously Stg 3594), with an area of 2,079 m2. It is situated in the
municipality of Botkyrka, a suburb south of Stockholm. On the
property there is a small house.
16. When the applicant acquired the property in 1973 the area was
subject to a building plan which had been drawn up in 1938. The 1938
building plan provided that no building plot should be less than
1,500 m2 in area. As an exception it was provided that a plot with a
smaller area, but no less than 1,000 m2, could be permitted within an
area where sewage and water-supply systems in accordance with a plan
approved by the local health authorities had been installed before the
buildings were erected or in connection therewith.
17. Furthermore, after 4 June 1954, except for some short periods,
there has been a building prohibition under Section 109 of the
Building Act (byggnadslagen) in the area in which the applicant's
property is located, pending an amendment of the building plan in
force. After 4 June 1954 construction was prohibited in the area also
under Section 110 of the Building Act pending the construction of
adequate roads, water-supply and sewage systems.
18. Since 1973 there has been a building prohibition pursuant to
Section 109 of the Building Act on the applicant's property according
to decisions of the County Administrative Board (länsstyrelsen) of
Stockholm County of 28 July 1972, 20 August 1974, 31 August 1976,
11 January 1979, 11 January 1980, 31 March 1981 and 31 August 1982.
These decisions have been valid during the period up to and including
1 September 1978 as well as during the periods 11 January 1979 -
11 January 1981, 31 March 1981 - 31 March 1982 and 31 August 1982 -
31 August 1983. Appeals were lodged with the Government against the
County Administrative Board's decisions of 20 August 1974 and
31 August 1982. The Government rejected the appeals on 9 October 1975
and 19 May 1983, respectively.
19. In 1975 the applicant complained about the inconveniences
resulting from the sewage system in the area. As a result the
County Administrative Board ordered that the municipality should,
before the end of 1982, install sewage pipes in the area where the
applicant's property is situated.
20. On 16 December 1982 the Municipal Council (kommunfullmäktige)
adopted a proposal for amendments to the building plan for the area in
which the applicant's property is situated.
21. The applicant objected to the proposed building plan. He
alleged that the amendments were wrongly restricting construction,
since they contained a provision that building plots must be at least
1,500 m2. The previous building plan allowed for building plots of at
least 1,500 m2 and, if certain conditions relating to the water and
sewage system were fulfilled, 1,000 m2. The applicant alleged that the
result of the amendments was that properties, including his own, which
previously had two building rights were deprived of one of them.
However, the building plan was confirmed by the County Administrative
Board on 4 July 1983 pursuant to Section 108 of the Building Act. In
its decision the Board, inter alia, gave the following reasons:
"The aim of the plan pursuant to the description is
to regulate the conditions for the properties affected by
the development of the water and sewage system until the
town plan can be made on the basis of the ongoing area
plan. Therefore there is a general interest not to
prejudice the forthcoming planning. The present low
utilisation of the land, controlled with regard to location,
must be seen as a consequence of this. The County
Administrative Board finds the municipality's assessment
in this regard to be acceptable. Nor can a low degree
of exploitation as such be considered to contravene the
Building Act.
As regards the building right the County Administrative
Board observes the following: Stg 3594 comprises 2,079 m2.
The existing plan of 1938 allows for building plots of at
least 1,500 m2. Where the property is situated in an area
where water and sewage pipes have been installed before or
in connection with the construction in accordance with an
approved plan of the Health Care Board (hälsovårdsnämnden),
it is permitted to reduce the area of the building plots,
but not to less than 1000 m2. This condition must presuppose
some sort of private initiative for a common installation for
several properties in order to construct on them. Since the
building prohibition was issued under Section 110 of the
Building Act in 1954 no measures have been taken by the
property owners with a view to arranging any water and sewage
installations. The water and sewage pipes which have now been
installed have been so only in order to remedy the sanitary
inconveniences which have arisen in the area despite large
building plots. The conditions in the plan, according to
which building plots of less than 1,500 m2 may be permitted,
cannot therefore be considered to be fulfilled. The County
Administrative Board therefore finds that there is no obvious
right to divide Stg 3594 according to the plan in force. In
view of this and having regard to the general interest of not
prejudging the forthcoming town planning the County
Administrative Board considers that the decision of the
municipality not to agree to (the applicant's) claim for
further building rights is acceptable."
22. The applicant appealed to the Government, which on
19 January 1984 amended the decision of the County Administrative
Board so as to avoid the consequence that any new construction on the
applicant's property would necessitate the demolition of the existing
house on the property. In other respects the appeal was rejected.
23. The applicant then applied to the Supreme Administrative Court
(regeringsrätten) for re-opening of the matter. In a decision of
5 June 1984 the Supreme Administrative Court rejected the application.
The Court summarised the applicant's submissions as follows:
"In his application Mr. Jacobsson requests that the Supreme
Administrative Court examine the matter and invokes as grounds
therefor that the Government's decision was based on false
statements and that the proposed plan was contrary to the
law."
24. The applicant states that his intention has always been to
divide his property and to build at least one more detached house. He
also intends to enlarge the existing building. The applicant's
request for division of the property has been rejected by the Building
Committee (byggnadsnämnden).
25. On 10 November 1981 the Building Committee decided to
inform the applicant in reply to a request for an advance opinion
(förhandsbesked) that the Committee was not prepared to grant
exemptions from the building prohibition in force pursuant to
Sections 109 and 110 of the Building Act.
26. On 12 March 1985 the Building Committee rejected an
application by the applicant for exemption from the provision in the
building plan in force that prescribes a minimum plot size of 1,500 m2.
B. Relevant domestic law and practice
a. Legislation on construction and urban planning
27. A property owner's right to erect buildings on his property
was, up to 30 June 1987, regulated in the 1947 Building Act
(byggnadslagen, "the 1947 Act") and the 1959 Building Ordinance
(byggnadsstadgan, "the 1959 Ordinance"). As from 1 July 1987 a new
Act, the 1987 Plan and Building Act (plan- och byggnadslagen),
regulates this matter. However, this Act is of no relevance in the
present case.
28. Section 1 of the 1947 Act provided that construction on
property required a building permit to the extent required by
Government regulations. Such rules are to be found in Section 54 of
the 1959 Ordinance. A permit is required for all new constructions,
except for the construction of certain buildings for public use, or
smaller additions to existing residences and farms or smaller houses
on such estates.
29. Section 5 of the Act also calls for an examination of whether
the property is suitable from a general point of view for building
purposes. Such an examination shall be made under a planning
procedure in accordance with the 1947 Act, except for areas classified
as non-urban (glesbebyggelse) or as "urban developments on a smaller
scale" (tätbebyggelse av mindre omfattning). For the latter
categories, the required examination may be made when examining an
application for a building permit.
b. Plans and regulations for non-planned areas
30. Plans should take due consideration of public as well as
individual interests.
A master plan (generalplan) encompasses the major guidelines
within a community or a part of a community. A town plan (stadsplan)
or a building plan (byggnadsplan) contains more detailed regulations
on the development of the area. For areas not regulated by such plans,
construction activities are regulated by the Ordinance.
31. The development in areas covered only by older subdivision
plans (avstyckningsplaner) is governed by these plans as well as
regulations for non-planned areas (utomplansbestämmelser).
32. A town plan is to be drawn up by the municipality, when
necessary as a result of the urbanisation of the community, in order
to regulate constructions. Such a plan must contain information about
the borders of blocks (byggnadskvarter), of public areas (allmänna
platser), and of special zones, such as railway areas, harbours,
recreational (sports) areas, etc. The town plan must also contain the
further provisions deemed necessary regarding constructions in various
areas, or regarding the use of properties in these areas. The
Ordinance mentions inter alia specific use of blocks, prohibitions
against construction on part of a block, construction methods to be
used, the number of permitted buildings on a certain site (tomt) and
the permitted surface area, location, height, and the number of flats
of a building. A town plan must be confirmed by the County
Administrative Board, in order to become valid.
33. If an area has become densely populated or if such a situation
is expected to emerge in the area, but this situation does not call
for a town plan, the municipality must see to it that a building plan
is drawn up, to the extent necessary for the regulation of the
planning of the area (Section 107 of the 1947 Act).
34. A building plan - like a town plan - must delineate and state
the limits of the areas intended to be used for various purposes in
the plan, such as land intended for building purposes, as well as
roads and other public places. If special regulations relating to the
development or the use of the areas concerned are required, such
regulations must also be incorporated in the plan. Such planning
regulations can relate to the use of building land for certain
purposes, a ban on the development of a certain part of the building
land, the number of buildings on a certain site, the size of the site,
the surface area of the building, its height and the number of
storeys, etc.
35. A building plan must be approved by the Municipal Council.
The matter can also be delegated to the Municipal Building Committee.
Before gaining legal force, decisions of approval must be confirmed by
the County Administrative Board. An owner of land affected by a
County Administrative Board decision approving a building plan has a
right of appeal against the Board's decision to the Government.
36. If a municipality fails to take the necessary steps to draw up
a building plan for an area where it is needed, the County Administrative
Board can have such a plan drawn up and approved for the area in
question (Section 108 of the 1947 Act).
c. Building prohibitions
37. If the question has been raised of the drawing up of a
building plan for a certain area or of such a plan being altered, the
County Administrative Board - if the municipality so requests - may
prohibit new constructions in the area. Such a building prohibition
may be issued for, at most, one year but can be extended by the County
Administrative Board for, at most, two years at a time (Section 109 of
the 1947 Act). A County Administrative Board's decision on the
building prohibition or on the extension of such a prohibition can be
appealed to the Government.
38. According to Section 110 para. 1 of the 1947 Act, a new
construction may not take place in conflict with a building plan.
Under the second paragraph of that Section, a County Administrative
Board can prescribe that new constructions in an area covered by a
building plan may not take place without the Board's permission before
adequate roads, water-supplies and sewage systems have been provided.
39. Exemptions may be granted in individual cases from the said
building prohibitions. Such a decision is taken by the County
Administrative Board or by the Building Committee in the municipality
if the County Administrative Board has delegated the competence to
grant exemptions to that Committee. Nearly all municipalities have
such authorisation.
40. A condition for the granting of an exemption from a building
prohibition in conflict with a building plan is that the Building
Committee approves the exemption from the plan. This means that the
municipality has a right of veto in respect of exemptions from a
building plan.
41. A building plan or a town plan can be altered if required.
According to Section 23 of the 1959 Ordinance, the rules
concerning the adoption and confirmation of town plans and building
plans shall, in principle, also apply to the alteration or withdrawal
of such plans. There are, however, no rules stating the material
conditions for alteration or confirmation. Nor are there any
regulations as to compensation in such situations.
42. However, when considering whether the owner's right to build
according to a plan may be limited or withdrawn when altering the
plan, the authorities concerned must weigh the public interest of such
an alteration against the infringement of the private interest which
the decision can give rise to (Section 4 of the 1947 Act and Section 9
of the 1959 Ordinance).
d. Formation of property units
43. Divisions of units of property are resolved by the Property
Formation Agencies (fastighetsbildningsmyndigheterna). New units are
to be designed in such a way as to make all units concerned
permanently suitable for their purpose in view of their location,
size and other conditions. Within town planned areas or areas
subject to subdivision plans, a division must be made in accordance
with the plan. Where other regulations govern the development of
land, e.g. a building prohibition, the division has to be carried out
so as not to obstruct the purpose of the prohibition. If there are no
plans for the area, divisions with a view to construction may not be
made, if they were to impede appropriate use of the area, to result in
inappropriate development or to obstruct appropriate planning for the
area.
e. Decisions and review of decisions
44. A person, who wishes to erect a building, for which a permit
is required, must file an application with the Building Committee. An
application coming under a building prohibition is in practice
considered as also including an application for exemption from the
prohibition in question. The applicant may, on the other hand, choose
to apply for an exemption only, with the intention to apply for a
permit when the matter of exemption has been resolved.
45. The examination of an application for a permit involves
ascertaining that the intended building will not run counter to any
confirmed plan or, as the case may be, to the regulations of
non-planned areas, or to a building prohibition and that it satisfies
technical demands on construction. In the absence of such obstacles,
a permit should be granted.
46. Decisions by the Building Committee to refuse building permits
and exemptions may be appealed to the County Administrative Board.
47. A decision by the County Administrative Board to issue a
building prohibition or to refuse an exemption from a building
prohibition may be appealed to the Government, as may a decision by
the Board to reject an appeal against the Building Committee's
decision not to grant an exemption. A decision of the County
Administrative Board to reject an appeal regarding an application for
a building permit may, however, be appealed to the Administrative
Court of Appeal (kammarrätten). Decisions by the Administrative Court
of Appeal may be appealed to the Supreme Administrative Court
(regeringsrätten), which may refuse to grant leave to appeal.
48. When a decision by the County Administrative Board has
resolved both issues (the permit and the exemption) it may be appealed
to the Administrative Court of Appeal. If this Court should come to
the conclusion that an exemption is not required, the matter will
subsequently be processed as relating only to the question of a
building permit. Otherwise the Administrative Court of Appeal will
refer the matter to the Government for a decision. The Court also
makes a statement to the Government on the permit issue.
49. Moreover, the confirmation of town and building plans by the
County Administrative Board may be appealed to the Government by the
property owners concerned. The owners may also appeal against a
decision to refuse confirmation of an adopted proposal for a plan.
However, they cannot formally require a plan to be prepared by the
municipality or the County Administrative Board, nor can they demand
an injunction by the Government, ordering a municipality to prepare a
proposal for a town plan.
III. SUBMISSIONS OF THE PARTIES
A. The applicant
50. The applicant was entitled initially to build one house on his
land and, later on, two houses, each with a plot of land of around
1,000 m2, provided either that he and his neighbours had arranged
for a common water and sewage system or that the municipality had
complied with its obligation to supply a common system.
51. Swedish law assumed that this was the pattern of evolution, in
accordance with the 1947 Act, for the 1938 building plan. The
applicant's right to build according to that plan was incontestable.
Swedish authorities have, however, prevented him from using his right.
52. First, this was done by imposing prolonged building
prohibitions, since 1954, by methods which are regarded as an abuse of
Swedish law. These prohibitions have furthermore been in conflict with
each other and have prevented the applicant from taking action, which
he was subsequently considered, for example in the County Administrative
Board's decision of 1983, to have neglected to carry out.
53. As a result of the 1983 building plan, Swedish authorities
finally prevented the applicant from using his previous building
right. The 1983 plan decisions were based on, inter alia, general
policy plans, which according to the Swedish Constitution are not to
be regarded as legally binding.
54. These proceedings were covered by Article 6 para. 1 of the
Convention.
55. It was not in the public interest to deny the applicant the
use of his land in a manner allowed to others in the same area. In
any case, the deprivation of his rights by means of illegal, prolonged
building prohibitions, the denial of access to an impartial tribunal
to examine his applications for exemptions, the denial of access to a
tribunal for the appeal against the Building Committee's decisions
etc., far exceed any public interest to have his land "in store" for
whenever in the future the authorities decide to begin contemplating
the need for a town plan.
56. The aim given in the decision of the County Administrative
Board - to protect possible interests to have the land in status quo
until the day in an uncertain future when the land may be useful when
making a town plan, the creation of which has not yet been decided
upon - has no basis in law, but constitutes abuse of power.
57. The Government's statement that the County Administrative
Board and the Government are faster than a court implies that cases
are not examined in the same thorough way by the County Administrative
Board and the Government as they would be by courts.
58. The inadequacies in Swedish procedural law, which have
excluded the possibility of a court hearing on important issues in the
applicant's case, have been a decisive factor in the occurrence of such
anomalies as the abuse of prolonged investigatory bans in combination
with conflicting requests, by means of simultaneous technical bans,
for completion of technical utilities (sewage, etc.). Further, the
municipality's economic interests have been unilaterally favoured
without the balancing of interests, required by the Swedish
Constitution. Furthermore those interests have been based on informal
plans, something which is also contrary to the Constitution.
B. The Government
59. In several rulings the Government have approved suggested
alterations to plans that have involved constraints according to
earlier plans. This has also been done against the opinion of the
land owners concerned. In most cases it has been a matter of limiting
the maximum building area permitted so as to prevent people from
taking up permanent residence in an area intended for holiday
cottages. A condition for approving these constraints has been that
the property concerned should not be diminished in value to any
appreciable extent.
60. The Government accept that the issue to be decided is whether
the decision to adopt the proposal for amendments to the building plan
for the area in which the applicant's property is situated was
decisive for a "civil right" of the applicant and, if so, whether a
dispute arose between the applicant and the Swedish authorities in
relation to the adoption of the amendments.
61. Since it is not possible to have decisions to adopt or
confirm building plans examined by a tribunal, the Government accept
that, if the Commission should find that such decisions involve the
determination of a dispute relating to the applicant's civil rights
within the meaning of the Convention, the applicant has had no access
to a procedure satisfying the requirements of Article 6 para. 1 of the
Convention.
However, the Government maintain, for the reasons set out
below, that the decision here at issue does not involve the
determination of a dispute concerning the applicant's civil rights.
62. Planning decisions are dominated by considerations of public
interest and determined principally by considerations of policy. Such
decisions fall outside the scope of Article 6. This view is consistent
with the wording of the text and supported by the travaux
préparatoires. The decision to adopt a building plan is taken by a
local parliamentary assembly (the Municipal Council) or by a special
committee to which such matters can be delegated. Thus, the planning
as such is a matter on which the inhabitants of a municipality can
have influence by ordinary political means. In the political debate
in a municipality the planning of the municipality can be an issue of
major importance.
63. The applicant's complaints concern the exercise of the duties
and powers of the competent local authorities in implementing the aim
referred to in the decision of the County Administrative Board. The
authorities in question have not determined any legal relationship
between the applicant and a third person. The decisions by the Board
and the Government only concern the special kind of relationship which
exists between private subjects and the public, represented by
authorities acting under public law in the public interest.
64. The question whether Article 6 is applicable in this case is
of great importance to the Government. If Article 6 is considered
applicable in regard to decisions on planning, the conditions for the
whole Swedish system of planning would be changed drastically.
65. The possibility of having decisions on planning examined by
courts is alien to the system of planning. This system is based on
the idea that the municipality is responsible for the use of land and
for building within the municipality, and that state control of how
the municipalities carry out their obligations shall be exercised by
the County Administrative Board and the Government.
66. Decisions on planning are carried out speedily by the County
Administrative Boards and the Government, since such decisions often
concern great economic interests of a public as well as a private
nature, and even short delays can cause great losses. As a rule, such
decisions also concern a great number of persons. If all such persons
had the right to have decisions on planning examined by a court in
accordance with Article 6 of the Convention, which inter alia
prescribes public hearings, such a procedure would entail a great risk
that the whole planning procedure would be delayed for a considerable
time. Any such delay may lead to serious consequences for the
municipality, developers and others. There is also an inherent risk
that some persons would use the possibility to go to court in order to
delay planning decisions which they are not prepared to accept for
political, ideological or other reasons not relevant in this context.
67. It follows from the above that planning decisions are not
aimed at increasing or diminishing the values of private property.
Rather, it is evident that in exercising their powers and duties the
competent planning authorities are bound to take decisions which
influence the individual's possibilities in using his property. Such
effects cannot, however, be considered a "determination of (his)
civil rights and obligations" within the meaning of the Convention, as
it is necessary to look to the real effect of such a decision in the
concrete case and to whether there exists any right that originates
from or is included in the property rights that might have been
affected. In addition, it is necessary to examine whether such a
right, if it exists, may be regarded as a "civil right".
68. It is the character of the "right" at issue which is relevant
(Eur. Court H.R., König judgment of 28 June 1978, Series A no. 27;
Benthem judgment of 23 October 1985, Series A no. 97). The nature of
the right at issue, however, is to a considerable extent determined by
national legislation, though an autonomous appreciation is made by the
Convention organs.
69. In the present case the applicant has alleged that the
amendment of the plan deprived him of one of his two "building rights"
which he contends to have had under the plan of 1938. The Government
find that the applicant's use of the expression "building right" is
somewhat misleading. The possibility to construct a building on one's
property is not a separate right under Swedish law, nor does it form
an inherent part of land ownership. It follows from Section 5 of the
1947 Act that no land owner had a right to construct on his land under
the said Act, but that his possibilities of doing this were subject to
the appreciation made by the competent authorities on the basis of the
relevant provisions of the 1947 Act and the 1959 Ordinance.
70. The Government contend that the margin of appreciation
afforded to the competent Swedish authorities, when deciding to
introduce or amend a plan, to issue a building prohibition or an
exemption therefrom under the 1947 Act, was so wide that no right of
the land owner may be said to have existed which could be regarded as
a "right" within the meaning of Article 6 of the Convention.
In this case, it cannot be said that the applicant had a
right to construct on his property before the plan was amended. He
still had to apply for a building permit and had to observe other
obligations resting upon him as a land owner who wants to construct a
new building on a new plot. In order to create two separate plots on
the area he also had to apply for a special permit which would be
granted only if certain prerequisites were fulfilled. The Government
underline that, even if the plan had not been amended, the applicant
still would have had no right to divide the area into smaller units;
the prerequisites for such a measure were not fulfilled. This can be
seen from the decision of the County Administrative Board of 4 July
1983.
71. Thus the decision to amend the plan was only one of several
circumstances which were decisive for the possibility that the
applicant might divide his plot into two and construct a new building
thereupon. This decision taken alone cannot be said to have been
decisive for his "rights" in this regard.
72. The Government conclude that, since the possibility of dividing
property or of building does not under Swedish law form an inherent
part of land ownership, no civil right was affected by the decisions
now at issue.
73. Consequently, the decisions taken by the competent authorities
when altering the building plan did not determine a dispute which
related to the applicant's "civil rights" within the meaning of
Article 6 para. 1 of the Convention.
74. The Convention has not been incorporated into Swedish law in
the sense that it can be directly applied by Swedish courts or other
authorities. However, a party is free to refer to the Convention when
arguing a case, as for example when an appeal is taken against a
decision of the County Administrative Board or any other authority.
Such arguments must be taken into account when the authority concerned
takes a decision and it is immaterial in this respect that a case is
examined by an authority other than a court. Although it is true that
such an authority or court cannot express an explicit opinion
regarding the interpretation of a provision in the Convention, it is
submitted that such a competence is not required in order to fulfil
the obligations arising from Article 13.
IV. OPINION OF THE COMMISSION
A. Points at issue
75. The issues to be determined are :
- whether Article 6 para. 1 (Art. 6-1) of the Convention is applicable
to the dispute which arose over the amendment of the
building plan and, if so, whether there has been a violation
of this provision;
- whether there has been a violation of Article 13 (Art. 13) of the
Convention.
B. Article 6 (Art. 6) of the Convention
76. Article 6 para. 1 (Art. 6-1) first sentence of the Convention 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."
77. The applicant complains that there has been a violation of
this provision on the ground that he did not have access to a
tribunal satisfying the conditions of Article 6 para. 1 (Art. 6-1) for the
determination of his claims concerning the adoption of amendments to
the building plan by the Swedish authorities. The Government submit
that the proceedings complained of did not involve the determination
of any civil rights of the applicant and that, consequently, Article 6
(Art. 6) of the Convention is not applicable.
a. Applicability of Article 6 para. 1 (Art. 6-1) of the Convention
78. The applicability of Article 6 para. 1 (Art. 6-1) of the Convention
depends on whether the applicant was seeking the determination of a
dispute (French: "contestation") regarding a "right" and whether that
"right" was "civil" in character.
aa. Was there a dispute regarding a "right"?
79. Article 6 para. 1 (Art. 6-1) applies only to disputes ("contestations")
over "rights and obligations" which can be said, at least on arguable
grounds, to be recognised under domestic law. It does not in itself
guarantee any particular content for "rights and obligations" in the
substantive law of the Contracting States (cf. Eur. Court H.R.,
Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 70,
para. 192). On the other hand, it is not decisive whether a certain
benefit, or possible claim, is characterised as a "right" under the
domestic legal system. This is so since the term "right" must be given an
autonomous interpretation in the context of Article 6 para. 1 (Art. 6-1). In
its Report in the case of W. v. the United Kingdom (Comm. Report 15.10.85,
para. 115, Eur. Court H.R., Series A no. 121-A, pp. 48-49) the Commission held
that:
"Even where a benefit can be granted as a matter of discretion
rather than as a matter of right, a claim for such a benefit
may well be considered to fall within the ambit of (Article 6
para. 1 (Art. 6-1) )."
80. It is established case-law that Article 6 para. 1 (Art. 6-1) 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 satisfying the requirements of that provision (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). The
dispute may relate not only to the actual existence of a right but
also to its scope or the manner in which it may be exercised. The
dispute may concern both questions of fact and questions of law (cf.
Eur. Court H.R., van Marle and Others judgment of 26 June 1984,
Series A no. 101, p. 11, para. 32).
81. In the present case, the Commission notes that the applicant
has under Swedish law a right to build on his property to the extent
that the intended construction does not contravene any confirmed plan,
regulations for non-planned areas or any building prohibition, and
that it satisfies technical demands on construction (cf. para 45 in
fine). It further notes that the legal effect of the amendments to the
building plan, as regards the possibility of building on the
applicant's property, is in dispute between the parties. Be that as it
may, it is clear that the applicant enjoyed and continues to enjoy an
ongoing right under Swedish law to apply for building permits in
respect of his property, and that the authorities are obliged to
examine the matter each time they are seized with such an application.
82. The Government argue, however, that the decision to amend a
building plan is a matter of discretion and not of right. Indeed, in
the Government's opinion the scope of the discretion exercised by the
public authorities in such matters is so wide that the applicant could
not be said to have had any "right" within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention.
83. The Commission finds that a "right" within the meaning of Article 6
para. 1 (Art. 6-1) can well exist, or be claimed to exist, even if the
decision-making body enjoys a wide discretion.
84. It is true that, if the applicant simply argued that the authorities
should have used their discretion in a different manner, Article 6 para. 1
(Art. 6-1) may not apply since there would be no "genuine" and "serious"
dispute over the lawfulness of the refused exemption (cf. Kaplan v. the United
Kingdom, Comm. Report 17.7.80, D.R. 21 p. 5).
85. However, in the present case, the applicant must be understood to argue
that the public authorities, when amending the building plan, did not take due
consideration of his individual interest as they were obliged to do in the
exercise of their discretion. Several of the applicant's arguments -
unilateral favouring of municipal interests, abuse of power, action against the
Constitution, etc. (cf. paras. 50-58) - also indicate that, in the applicant's
opinion, the authorities acted contrary to Swedish law. In this context, the
Commission notes that the applicant applied to the Supreme Administrative Court
for re-opening of the proceedings arguing inter alia that the plan was contrary
to the law (cf. para. 23).
86. In these circumstances, the Commission finds that there existed a
serious and genuine dispute about the applicant's right to build under Swedish
law.
bb. Was the right "civil" in character?
87. It is established case-law that a decision to issue an expropriation
permit with regard to an individual's property is a decision which is
"decisive" for that individual's "civil rights" (Eur. Court. H.R., Bodén
judgment of 27 October 1987, Series A no. 125-B, pp. 40-41, para. 32).
Similarly, a decision to issue or prolong a building prohibition on an
individual's property, although of a different nature, is also "decisive" for
that individual's "civil rights" since such a prohibition clearly restricts the
use of the property right by suspending the right to build which the proprietor
would otherwise have (Allan Jacobsson v. Sweden, Comm. Report 8.10.87, p. 31,
para. 142).
88. In the present case, the Government submit that the possible effects
which the decision at issue may have had on the applicant's property rights are
too indirectly and remotely related to the object and purpose of that decision
to fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission, however, considers that the amendments to the building plan
clearly affected the applicant's right to construct on his property. In
particular, under the old plan he could argue that he had a right to divide his
property and to build an additional house. This possibility appears to be
excluded under the new plan.
89. The Commission therefore finds that the decision was "decisive" for
the applicant's "civil rights", and this conclusion is not affected by the fact
that the planning procedure is part of public law and that a building plan is a
necessary element in urban planning.
b. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention
90. It must next be examined whether the applicant had the possibility of
submitting the dispute as to the amendments to the building plan to a
"tribunal" satisfying the conditions of Article 6 para. 1 (Art. 6-1) of the
Convention.
91. It is recalled that the building plan confirmed on 4 July 1983 by the
County Administrative Board was the subject of an appeal by the applicant to
the Government, which partially rejected this appeal on 19 January 1984. No
appeal lay against the Government's decision.
92. The Government admit that their examination was not a procedure which
satisfied Article 6 para. 1 (Art. 6-1) of the Convention.
93. In the Commission's opinion the proceedings before the Government
relating to the adoption of the building plan did not constitute proceedings
before a "tribunal" within the meaning of this provision.
94. The Government have not referred to any remedy which might permit a
review of their decision regarding the building plan and which might satisfy
the requirements of Article 6 para. 1 (Art. 6-1).
95. In this context the Commission recalls that in the Sporrong and
Lönnroth judgment the Court examined whether an application to the Supreme
Administrative Court for the reopening of the proceedings, directed against a
decision of the Government, was a remedy which
satisfied the requirements of Article 6 para. 1 (Art. 6-1). The Court held
that it was not sufficient for the purpose of this provision (cf. Eur. Court
H.R., Sporrong and Lönnroth judgment of 23.9.82, Series A no. 46, pp. 30-31,
paras. 84-87).
96. 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 over the adoption of the building plan.
Conclusion
97. The Commission concludes, by 14 votes to 3, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
C. Article 13 (Art. 13) of the Convention
98. The applicant also maintains that he had no effective remedy before a
national authority in respect of the violations of which he complains under
Article 1 of Protocol No. 1 (P1-1) to the Convention (cf. Appendix II, p. 42).
He relies on Article 13 (Art. 13) of the Convention which provides:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding
that the violation has been committed by persons acting
in an official capacity."
99. Having regard to its above conclusion under Article 6 para. 1
(Art. 6-1) (para. 97), the Commission considers that it is not necessary to
examine the case under Article 13 (Art. 13). The requirements of Article 13
(ARt. 13) are less strict than, and are here absorbed by, those of Article 6
para. 1 (Art. 6-1) (see, inter alia, Sporrong and Lönnroth judgment, loc. cit.,
p. 31, para. 88).
Conclusion
100. The Commission concludes, by a unanimous vote, that it is not necessary
to examine whether there has been a violation of Article 13 (Art. 13) of the
Convention.
D. Recapitulation
101. - The Commission concludes, by 14 votes to 3, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 97).
- The Commission concludes, by a unanimous vote, that it is not necessary
to examine whether there has been a violation of Article 13 (Art. 13) of the
Convention (para. 100).
Secretary to the Commission President of the Commission
(H. C. KRUGER) (C. A. NØRGAARD)
Dissenting opinion by Mr. S. Trechsel joined by Mrs. J. Liddy
I have come to the conclusion that Article 6 of the Convention
was not violated as it was not applicable to the contested issue.
The guarantees set out in Article 6 apply, inter alia, in the
determination of civil rights and obligations. As a rule, it is for
the national legislator to regulate the substantive law, the
procedural rights being applicable only in disputes concerning the
contents and limits of domestic substantive law.
In the present case, the applicant was involved in a dispute
concerning amendments of a building plan. Such a plan is of a general
nature and sets out rules for the use of property. Although the plan
is not, technically, a statute, it regulates a set of problems for the
whole community. Even if such general rules affect an individual, a
dispute over such general rules does not relate to "determination" of
rights of an individual, but concerns a conflict de lege ferenda.
In my view, however, Article 6 of the Convention does not apply to
such disputes.
Opinion dissidente de M. F. Martinez
A mon très grand regret je ne peux pas suivre la majorité de
la Commission, et voici mes motifs.
1. La Commission relève qu'à l'occasion de l'amendement du plan
d'urbanisme en 1983, une contestation sur un droit de caractère civil
s'est produite. A mes yeux, cependant, il n'existe aucune
contestation sur un droit individuel du requérant.
2. D'abord je rappelerai qu'on rencontre parmi les actes
administratifs, d'une part, des actes à caractère normatif,
c'est-à-dire des mesures à portée générale, émanant soit du
gouvernement, soit des autorités locales et, d'autre part, des actes
individuels, c'est-à-dire à portée particulière (autorisation
personnelle, nomination, contrat).
Les actes normatifs (ou réglements au sens technique du mot)
comportent des prescriptions "générales et impersonnelles". Ils sont
donc des règles de droit, au même titre que les lois à proprement
parler, mais avec une place moins élevée dans la hiérarchie des
textes.
Et de même que le législateur peut changer les lois,
l'autorité administrative peut modifier les règlements dans le domaine
de sa compétence.
3. La modification d'un règlement ne suppose pas la contestation
d'un droit individuel des citoyens, même si ce changement peut créer,
modifier ou supprimer des droits subjectifs par rapport au règlement
antérieur.
La contestation d'un droit individuel ne peut naître qu'à
l'égard d'un acte individuel de l'administration. Une personne ne
peut vraiment se confronter à l'autorité administrative qu'à propos
d'un acte individuel, par exemple lorsqu'un citoyen prêtend que les
règles objectives lui accordent un droit mais que l'administration le
lui refuse, au motif que la règle objective de droit n'a pas la portée
que la personne concernée lui attribue.
4. Un plan d'urbanisme comporte des règles objectives ; c'est un
règlement. Il régit l'abstrait d'une façon "générale et
impersonnelle" ; il détermine ce qui peut être fait et ce qui est
interdit à propos de l'urbanisme et de la construction immobilière.
La réforme du plan d'urbanisme (comme la réforme de n'importe
quel règlement, comme la réforme d'une loi) est du seul ressort de
l'autorité compétente. La réforme vise l'intérêt général, dont la
garde appartient exclusivement à cette autorité.
L'amendement du plan d'urbanisme revient à changer de
règlement. Cela n'entraîne pas, en soi-même, une contestation sur les
droits individuels de toutes les personnes matériellement affectées
par la modification réglementaire.
En matière d'urbanisme, la contestation sur un droit
individuel ne prend naissance que lorsque l'individu veut entreprendre
une construction concrète qu'il prétend être en conformité avec le
plan, mais que l'administration lui refuse un tel droit par une
décision de portée individuelle.
5. Dans le cas d'espèce en cause, il ne s'agit que de la réforme
d'un plan d'urbanisme, c'est-à-dire un changement de la règle
juridique. Et la règle juridique ne garantit jamais sa propre
perpétuité.
Le cas d'espèce ne contient point de contestation sur un droit
individuel du requérant. Les interventions de celui-ci devant le
County Administrative Board ou le Municipal Council s'inscrivent dans
la procédure propre au changement de plan d'urbanisme. Car c'est une
pratique assez répandue parmi les Etats signataires de la Convention
que de prendre l'avis des personnes intéressées lorsque les autorités
locales vont modifier certains règlements.
6. Dans le cas concret que nous considérons l'ancien plan ne
comportait pas un droit acquis à construire deux bâtiments sur le
terrain du requérant. Il ne comportait la possibilité de le faire que
sous la condition de réaliser certaines installations hydrauliques ou
de vidange.
Le requérant, qui n'avait pas obtenu de permis de construire
dont l'exécution devienne impossible à cause de la modification
réglementaire, n'a pas souffert la perte d'un droit mais d'une simple
possibilité.
Le changement d'une règle de droit, voire le changement de
loi, comporte presque toujours la naissance des possibilités
nouvelles, l'effacement de certaines possibilités anciennes. Mais il
me semble très difficile d'admettre que le simple changement de la
règle de droit soit l'équivalent d'une contestation sur les droits
individuels des citoyens dont les possibilités sont affectées par la
règle nouvelle.
La Commission elle-même a dit dans sa décision sur la
recevabilité de cette affaire (rendue le 8 mars 1988) que le
changement du plan d'urbanisme était une mesure permise par le
paragraphe 2 de l'article 1 du Protocol n° 1. Et la Commission
rappelle que le requérant n'avait le droit de bâtir ni sous l'ancien
plan ni sous le plan remanié (voir p. 46 de ce rapport, dernier
alinéa).
Qu'il me soit permis de demander comment une modification du
plan, admise par la Convention dans son Protocole additionnel,
pourrait constituer la contestation sur un droit civil du requérant,
alors que ce requérant - de l'avis même de la Commission - était
dépourvu de droit sous l'empire à la fois de l'ancien et du nouveau
plan.
.PA:11309/84
Avec beaucoup de respect pour mes éminents collègues, je ne
trouve pas de cohérence entre ce qui se lit dans la décision sur la
recevabilité (dernier paragraphe de la page 46) et ce qui a été écrit
aux paragraphes 83-86 du rapport sur le fond.
7. Pour finir je me pencherai sur les conséquences pratiques que
le rapport de la Commission comporte. Les Etats ne pourraient plus
changer leurs plans d'urbanisme sans offrir un procès devant un
tribunal (avec toutes les garanties prévues par l'article 6 de la
Convention) avec n'importe quel citoyen qui se prétende affecté par la
modification réglementaire.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_____________________________________________________________________
5 August 1984 Introduction of the application
17 December 1984 Registration of the application
Examination of admissibility
8 October 1985 Commission's deliberations and
decision to declare the application
inadmissible
13 October 1986 Commission's further deliberations,
decision to re-open the proceedings
and to invite the Government to submit
observations on the admissibility and
merits of the application.
15 January 1987 Government's observations
9 April 1987 Applicant's reply
8 March 1988 Commission's further deliberations and
decision to declare the application
partly admissible and partly
inadmissible
Examination of the merits
13 June 1988 Government's observations on the merits
9 July 1988 Commission's consideration of state of
proceedings
27 September 1988 Applicant's observations on the merits
27 November 1988 Government's further observations
12 December 1988 Commission's consideration of state of
proceedings
7 March 1989 Commission's deliberations on the
merits and final votes.
16 March 1989 Adoption of the Report.