AS TO THE ADMISSIBILITY OF
Application No. 13724/88
by Brita KJELLBERG
against Sweden
The European Commission of Human Rights sitting in private
on 5 March 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 12 December 1987
by Brita Kjellberg against Sweden and registered on 30 March 1988
under file No. 13724/88;
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 facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Swedish citizen, born in 1919. She resides
at Ärla, Sweden.
The applicant moved to her present residence at Ärla in 1968.
The residence is situated at the Ärla ridge (Ärlaåsen) which contains
several million cubic metres of valuable gravel. It appears that the
competent authorities, in accordance with the applicable legislation,
intended to grant permission to exploit gravel from the area to a
number of firms and certain correspondence followed between the
authorities and the applicant who wanted to preserve the area in order
to protect nature. Nevertheless it appears that a number of permits to
exploit gravel were granted.
In 1975 the applicant complained to the Parliamentary
Ombudsman (JO) that certain machines were used in a gravel pit without
permission, but JO dismissed the case as the applicant's complaints
were being examined by the competent authorities. On 18 December 1975
the Government (Ministry of Agriculture) rejected the applicant's
various complaints against the gravel exploitation as she was not
considered a party to the case.
In 1976 the applicant tried to buy a certain piece of land
from her neighbour, who had permission to extract gravel in the area,
as she wanted to preserve it, but apparently the neighbour did not
want to sell the land.
In 1978 the applicant then instituted proceedings in the Real
Estate Court (fastighetsdomstolen) maintaining that the gravel
exploitation should stop as it caused noise and pollution and
threatened the existing water resources. The applicant withdrew the
case from the Court on 18 January 1980 as she found it did not proceed
with the necessary speed.
The applicant, however, pursued her case against the gravel
exploitation with the competent administrative authorities, but on
several occasions the County Administrative Board (länsstyrelsen) or
the Government rejected her complaints having found that appropriate
measures had been taken, and complied with, in order to protect the
environment.
On 19 August 1986 the Municipality of Eskilstuna extended the
permission to extract gravel provided a number of requirements in
accordance with the existing legislation were fulfilled. The applicant
complained thereof to the County Administrative Board which decided,
after visiting the site and the applicant, that the applicable
legislation for the protection of the environment had been complied
with.
The applicant's subsequent complaint to the Government was
rejected on 11 February 1988.
COMPLAINTS
The applicant complains of "sanitary inconveniences" caused by
the nearby gravel pit and that its presence is a violation of the
right to respect for her home and her private life. She also complains
that in so far as the authorities' decisions state that she cannot
complain about the matters this amounts to a violation of her right to
freedom of expression.
THE LAW
1. The applicant has complained of the gravel exploitation which
the Swedish authorities permit and which is carried out close to her
home. She maintains that this amounts to an unjustified interference
with her right to respect for her private life and her home.
The Commission has considered this complaint under Article 8
(Art. 8) of the Convention which reads as follows:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Commission considers that this provision cannot be
interpreted so as to apply only with regard to direct measures taken
by the authorities against the privacy and/or home of an individual.
It may also cover indirect intrusions which are unavoidable
consequences of measures not at all directed against private
individuals (cf. No. 9310/81, Dec. 16.7.86, D.R. 47 p. 5). For example
considerable noise nuisance can undoubtedly affect the physical
well-being of a person and thus interfere with his private life, and
it may also deprive a person of the possibility of enjoying the
amenities of his home.
In the present case the Commission recalls that the applicant
has tried at least for the last 15 years to bring the gravel
exploitation at the Ärla ridge to an end as this in her opinion
creates "sanitary inconveniences" and ruins the environment.
The Commission finds that it can leave open the question
whether the gravel exploitation and its consequences as regards noise
and other inconveniences near the applicant's home at all constitute
an interference with her right to respect for her private life and her
home as, even assuming this to be the case, such an interference is
justified under Article 8 para. 2 (Art. 8-2) of the Convention for the
following reasons.
The Commission is satisfied that the operation of the gravel
pits is lawful under Swedish law and that the alleged interference is
"in accordance with the law". Furthermore, the operation is aimed at
protecting the rights of others, i.e. the rights of gravel pit owners
to enjoy their property.
The Commission furthermore finds that the alleged interference
is proportionate to the legitimate aim pursued and notes in particular
that the gravel exploitation is under constant supervision by the
competent authorities which control that it is carried out in
accordance with the applicable legislation, inter alia enacted for the
protection of the environment.
In these circumstances the alleged interference with the
applicant's right under Article 8 para. 1 (Art. 8-1) of the
Convention is justified under the terms of its paragraph 2
(Art. 8-2).
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.
2. The applicant has also complained that the various decisions
made by the authorities involved violated her rights under Article 10
(Art. 10) of the Convention which secures the right to freedom of
expression. However, the Commission finds no issue under this
provision which would merit any further examination.
It follows that this part of the application is also
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.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C. A. NØRGAARD)
Full & Egal Universal Law Academy