AS TO THE ADMISSIBILITY OF
Application No. 12810/87
by Lars Lorenius
against Sweden
The European Commission of Human Rights sitting in private
on 18 January 1989, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
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
MM. F. MARTINEZ
C. L. ROZAKIS
Mrs. J. LIDDY
Mr. H. C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 December 1986
by Lars Lorenius against Sweden and registered on 16 March 1987 under
file No. 12810/87;
Having regard to:
- the first report provided for in Rule 40 of the Rules of
Procedure of the Commission;
- the Commission's decision of 9 December 1987 to invite the
Government to submit written observations on the admissibility
and merits of the application;
- the Government's written observations dated 17 March 1988 and
the applicant's reply dated 30 June 1988;
- the second report provided for in the Rules of Procedure.
Having deliberated;
Decides as follows:
THE FACTS
The facts, which are not in dispute between the parties, may
be summarised as follows.
The applicant is a Swedish citizen born in 1942 and resident
at Bettna. He was formerly a farmer. Before the Commission the
applicant is represented by Mr. Sten Blomqvist, a lawyer practising at
Lidingö.
Particular circumstances of the case
In April 1979 the applicant acquired an agricultural property
in the municipality of Flen, Forsnäs 1:11 and other units of land, for
4,500,000 SEK.
On 13 October 1981 he sold the property to a company, Diplo,
for 4,150,000 SEK. In accordance with the provisions of the Land
Acquisition Act (jordförvärvslagen) the buyer applied for a permit to
acquire the property. Following indications to the effect that the
Government might not grant a permit because the price was too high,
the applicant and the buyer decided to reduce the price to
3,600,000 SEK.
On 27 May 1982 the Government decided to reject the
application for a permit pursuant to Section 4 para. 1 (1) and (4) of
the Land Acquisition Act. In their decision the Government stated the
following reasons:
"The Government find that the price exceeds, not only
insignificantly, the value of the property in view of its
return and other circumstances. However, the neighbouring
properties, owned by Diplo, and the property at issue must
be regarded as capable of development as separate agricultural
enterprises. These enterprises should remain independent.
There are no reasons why the purchase should nevertheless
be accepted."
The applicant submits that as a result of the Government's
decision, which was not subject to appeal, he suffered a financial
loss amounting to 2,439,000 SEK. In a letter to the Government of
11 September 1984 the applicant requested compensation for his loss.
On 28 February 1985 the Government decided that there was no basis for
paying compensation to the applicant.
The applicant summoned the State before the District Court
(tingsrätten) of Stockholm claiming compensation for the loss on the
ground that the basis for the Government's decision was deficient and
that, consequently, the decision was wrong. He claimed to be entitled
to compensation under Chapter 2 Section 18 of the Instrument of
Government (regeringsformen).
The District Court dismissed the applicant's action, without
having served the summons on the State, by a decision of 26 March 1986,
mainly for the following reasons:
"Under Chapter 3 Section 7 of the Tort Liability Act
(skadeståndslagen) an action for compensation for damages
caused by mistake or negligence in the exercise of public
power may not be brought on the basis of a decision of the
Government, unless the decision has been quashed or
amended. It has not been argued that the Government's
decision of 27 May 1982 has been quashed or amended.
The provisions in Chapter 2 Section 18 of the
Instrument of Government about protection for persons who
are deprived of their property by expropriation or other
similar measures are not applicable to the seller of a
property who retains his property because the buyer is
refused a permit to acquire it...".
The applicant appealed to the Svea Court of Appeal (hovrätt)
which in a decision of 9 October 1985 rejected the appeal.
The applicant appealed to the Supreme Court (högsta domstolen)
which, on 22 August 1986, refused leave to appeal. One of the
Justices of the Supreme Court stated in a concurring opinion:
"It could be argued that leave to appeal should be granted
in view of the question whether the provision in Chapter 3
Section 7 of the Tort Liability Act constitutes a procedural
obstacle to the extent that the victim bases his claim for
compensation not on a wrongful decision by the Government,
but on the principles of expropriation law, as expressed in
Chapter 2 Section 18 of the Instrument of Government. In
the present case it seems, however, that the lower courts
have also examined the substance of such a claim. In view
hereof and of the other circumstances of the case I am
satisfied that leave to appeal should not be granted."
On 11 June 1986, the applicant asked the Government to
reconsider their decision of 28 February 1985 and grant him
compensation for the loss he had suffered as a result of the
Government's decision of 27 May 1982.
On 9 October 1986, the Government stated that the applicant
had not invoked any such circumstances as might cause the Government
to take a different view of the matter from the one that appears in
their decision of 28 February 1985, and that the Government would take
no action on the basis of this new request.
Relevant domestic law
The acquisition of agricultural properties is subject to
provisions set forth in the 1979 Land Acquisition Act. The Act aims at
furthering the creation and preservation of effective family holdings
so as to strengthen the connection between cultivation and ownership,
and also the promotion of a continuous structural rationalisation of
agriculture and forestry.
Under Section 1 of the Act, a permit is required for the
purchase of agricultural properties. Section 2 enumerates a number of
exceptions to the main rule. A request for permission to acquire the
real estate shall be submitted within three months after it was
acquired (Section 12).
When deciding on an application for a permit, account shall be
taken of the desirability of promoting the creation and development of
rational holdings in agriculture, forestry and horticulture (farm
holdings). Furthermore, under Section 4 first paragraph, an
application for a permit shall be rejected, inter alia, if the sales
price or other compensation for the property considerably exceeds the
value of the property with regard to its yield and other
circumstances, if the property is needed for the rationalisation of
agriculture or forestry or if the acquisition would appear to bring
about the merger of two or more farm holdings which are developed or
capable of development and which should remain separate.
If an application for a permit has not been submitted within
the time-limit and in the manner prescribed, or if permission to
acquire the property has been refused, the acquisition will be
annulled.
Chapter 3 Section 7 of the Tort Liability Act restricts the
possibility of bringing an action for compensation on the basis of a
decision taken by the Government.
Chapter 2 Section 18 of the Instrument of Government
guarantees compensation for the loss suffered by a citizen, whose
property is requisitioned by expropriation or by any other similar
disposition. Compensation is guaranteed in accordance with principles
governed by law. Chapter 2 Section 18 of the Instrument of
Government reads as follows:
"Every citizen whose property is requisitioned by
expropriation or by any other similar disposition shall be
guaranteed compensation for his loss in accordance with
principles governed by law."
COMPLAINTS
1. The applicant complains that Article 1 of Protocol No. 1 to
the Convention has been violated. As a result of the Government's
refusal to grant the buyer a permit to acquire the property, the
applicant has been deprived of his right to the purchase price. The
examination which preceded the decision has not been conducted in a
way which effectively secured the applicant's rights. There was, for
instance, no valuation which could support the opinion that the price
was too high.
2. The applicant also alleges a violation of Article 6 of the
Convention in that he was not permitted to bring an action before the
courts for compensation for the losses he suffered as a result of the
Government's decision. The action brought by the applicant was
rejected on formal grounds since the original decision had been
taken by the Government.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 December 1986 and
registered on 16 March 1987.
On 9 December 1987 the Commission decided to communicate the
application to the respondent Government and to invite them to submit
written observations on the admissibility and merits.
The Government's observations were dated 17 March 1988 and the
applicant's observations in reply were dated 30 June 1988.
SUBMISSIONS OF THE PARTIES
A. The Government
In the opinion of the Government there are two sets of
proceedings to be considered in this case. One of those pertains to
the refusal to grant the buyer (Diplo) a permit to acquire the
property, allegedly leading to deprivation of the applicant's right to
the purchase price. The other set of proceedings concerns the
applicant's allegation that he was not permitted to bring an action
before a court regarding compensation for his alleged loss.
Article 1 of Protocol No. 1 to the Convention
As regards the refusal to grant the buyer a permit to acquire
the property, allegedly depriving the applicant of his right to the
purchase price, the Government submit that only the decision refusing
a permit is invoked. The wording of the application on this point
clearly indicates that only that decision is invoked in support of
the submissions regarding Article 1 of Protocol No.1. This means that
the domestic remedies on this point were exhausted by the
Government's decision of 27 May 1982. Since the application was
lodged with the Commission on 22 December 1986, the applicant has
failed to comply with the six months rule in Article 26 of the
Convention as regards this issue.
As regards the decisions regarding the applicant's request for
damages, the Government contend that they have not been invoked as a
ground for claiming a violation under Article 1 of Protocol No. 1.
However, if the Commission were to consider these decisions,
the Government contend that the six months period in regard to Article
1 of Protocol No. 1 should be calculated as from the Government's
decision of 28 February 1985. The Government decision of 9 October
1986 does not, in the Government's opinion, constitute an effective
remedy since it only refers back to the decision of February 1985. The
same is the case with the court procedure, leading up to the decision
by the Supreme Court of 22 August 1986, which was not an effective
remedy in regard to the complaint under Article 1 of Protocol No. 1
since, mainly in view of the provisions of the Instrument of
Government, the courts could never come to deal with the merits of the
application to acquire the property. Thus, counting from the
Government's decision of 28 February 1985, the six months rule has not
been complied with.
Article 6 of the Convention
a. Admissibility
As regards the complaint under Article 6, the Government
accept that the applicant has complied with the six months rule in
Article 26 of the Convention. The Government are of the opinion that
the date of the decision by the Supreme Court, i.e. 22 August 1986,
should be considered to be the starting point for calculating the six
months period.
b. Merits
As regards the question of whether the applicant was denied
access to the courts on a contestation regarding his civil rights, the
Government first point out that the substance of the applicant's
submissions before the national courts concerned the question of
whether he was entitled to compensation for a measure that he alleged
to be tantamount to expropriation of his property. The essential
basis for the applicant's allegations was that he considered the
valuation of the property undertaken by the authorities to be
unsatisfactory. The applicant alleged that the estimated value of the
property was too low, which had caused the appreciation of the sales
price to be faulty. This issue, in the Government's opinion, is a
question of appreciation of fact. While it is true that disputes over
facts may indeed constitute a dispute (contestation) regarding a civil
right in the sense of Article 6, the Government contend that, for this
to be the case, a civil right in the sense of the Convention must be
at hand.
The essential issue brought before the national Swedish courts
by the applicant was whether he was entitled to compensation for the
alleged expropriation of his property, and the appreciation made by
the Government when applying the Land Acquisition Act. The
legality as such of the measure taken does not, in the Government's
opinion, seem to have been contested by the applicant, only the
appreciations on the basis of which the Government's decision was
taken and the way in which the property's value was established.
It appears from the jurisprudence of the European Court of
Human Rights that Article 6 para. 1 extends only to contestations
(disputes) over (civil) rights and obligations which can be said, at
least on arguable grounds, to be recognised under domestic law.
Article 6 para. 1 does not in itself guarantee any particular content
for (civil) rights and obligations in the substantive law of the
Contracting States, nor does it require that there be a national court
with competence to invalidate or override national law. In the
present instance the grant of an acquisition permit and the
appreciations on the basis of which the decision regarding that permit
was to be taken were under the sole jurisdiction of the Government.
The Land Acquisition Act did not in this instance afford any right of
compensation, and the courts considered themselves incompetent to
examine the compensation issue. In view of this, and in view of the
fact that the applicant has not contended before the Swedish courts
that the Government's decision on the acquisition issue was
incompatible with the laws of Sweden, the Government maintain that
there was no contestation over a civil right in the sense of Article 6
of the Convention. The Government contend that the position of
Swedish law on this issue is not incompatible with the Convention.
Consequently, the application should be declared manifestly
ill-founded.
In case the Commission were to find that there was a
contestation over civil rights in the sense of Article 6 of the
Convention, the Government submit the following.
The applicant's allegation that he was not permitted to bring
before a court the merits of an action regarding compensation for his
alleged loss is correct. It should, however, be pointed out that the
question whether he had the right to institute litigation against the
Government was examined by the courts, in fact by the court of first
instance, by the Court of Appeal and by the Supreme Court. The reason
why the courts found themselves not competent to deal with the matter
is that under the Tort Liability Act no action for compensation can be
brought against the State under Section 7 of Chapter 3 (e.g. liability
for financial loss) on account of a decision rendered by the
Government, unless the decision has been reversed or amended.
Since Article 6 para. 1 does not in itself guarantee any
particular content for (civil) rights and obligations in the
substantive law of the Contracting States, there is nothing in the
Convention to prevent Sweden from enacting a tort law with this
particular limitation. The Government, therefore, contend that the
applicant had access to court, namely for the assessment of the
question whether the State was liable for the effects of the
Government decision not to grant the buyer a permit to acquire the
property. The courts ruled that no such liability existed under
Swedish law. The fact that this ruling had the form of a rejection on
formal grounds does not alter this conclusion. The Government thus
contend that the applicant had access to court in accordance with
Article 6 para. 1 of the Convention.
Furthermore, according to the jurisprudence of the Court the
right of access to a court secured by Article 6 para. 1 is not
absolute. Exceptions are considered to be permitted by implication
since the right of access by its very nature calls for regulation by
the State, regulation which may vary in time and in place according to
the needs and resources of the community and of individuals. While
stating that Contracting States enjoy a certain margin of appreciation
in laying down such regulations, the European Court of Human Rights
has nevertheless pointed out that it must be satisfied that the
limitations applied do not restrict or reduce the access left to the
individual in such a way or to such an extent that the very essence of
the right is impaired. The Court has furthermore stated that a
limitation will not be compatible with Article 6 para. 1 if it does
not pursue a legitimate aim and if there is not a reasonable
relationship of proportionality between the means employed and the aim
sought to be achieved.
The Government contend that in the present instance the aim of
the limitation in question must be considered as being legitimate.
That aim was to exclude the possibility of requesting compensation for
certain decisions taken by the Government, particularly those of a
political character, whereas there was no intention of excluding the
possibility to request damages in court for an administrative decision
by the Government of the kind now in question. The way this aim was
brought about, i.e. making the reversal or amendment of the Government
decision in question a condition for claiming compensation from the
State because of that decision, clearly lies within the Government's
margin of appreciation. The Government also contend that this
limitation of access to court does not impair the essence of the
individual's right of access to a court. Consequently, in the
Government's opinion, there has been no violation of Article 6 para. 1
of the Convention. With reference to this reasoning the Government
maintain that the application is manifestly ill-founded.
Conclusions
The Government conclude concerning the admissibility that the
application should be declared inadmissible, as regards the complaint
under Article 1 of Protocol No. 1, for failure to comply with the six
months rule of Article 26 of the Convention, alternatively, as regards
the whole application, for being manifestly ill-founded, and
concerning the merits, that there has been no violation of the
Convention or Protocol No. 1.
B. The applicant
a. Article 26 of the Convention
The applicant submits that the examination of the request for
a permit to acquire the agricultural property and the question of
compensation for the unlawful refusal of the permit are closely
linked. In order to properly exhaust all remedies the applicant has
felt obliged to try before a civil court to obtain compensation under
the provisions of the Instrument of Government.
The fact that his "action" has been dismissed by the courts
was not foreseeable. This particular provision of the Instrument of
Government was enacted in 1979 and has in practice seldom been
applied. It was therefore necessary for the applicant to have this
fact established before turning to the Commission. The six months
period should consequently be calculated from the date of the Supreme
Court's decision on 22 August 1986.
b. Article 1 of Protocol No. 1 to the Convention
The applicant alleges that the unlawful application of the
relevant Act has caused him great financial losses which have not been
foreseen by the law. The balance of interest, required by the law,
particularly concerning the price control, has been neglected in a way
which has made the applicant suffer losses which he cannot be obliged
to accept in a State governed by the rule of law.
c. Article 6 of the Convention
It has not been possible for the applicant to have examined
before a court the effects of the incorrect application of Swedish law
which has resulted in violations of his civil right to property. The
extraordinary remedies which exist have been without any prospect
and even formally excluded for the applicant.
The applicant submits that, for such serious interferences in
the civil law sphere as the quashing of ordinary contracts, there
must exist proper procedures securing an impartial and objective
examination of all the aspects of a case. No such procedure has been
available to the applicant.
Moreover, the fact that the provisions of the Convention are
not applied by Swedish courts imply that they are irrelevant. This
is, in the applicant's view, in breach of Article 13 of the Convention.
THE LAW
1. The applicant complains that, as a result of the Government's
refusal to grant the buyer a permit to acquire the property, he has
been deprived of his right to the purchase price and there has,
consequently, been a violation of Article 1 of Protocol No. 1 (P1-1) to the
Convention, which reads:
"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 Government submit that this complaint is inadmissible for failure
to observe the six months rule laid down in Article 26 (Art. 26) of the
Convention.
Article 26 (Art. 26) of the Convention provides that the Commission may
only deal with a matter "after all domestic remedies have been
exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on
which the final decision was taken". It is established case-law that
"the final decision" refers only to domestic remedies which can be
considered to be "effective and sufficient" for the purpose of
rectifying the complaint made (see, inter alia, No. 9599/81, Dec.
11.3.85, D.R. 42 p. 33).
The applicant's complaint is that the refusal to grant the
buyer a permit to acquire the property violated Article 1 of Protocol
No. 1 (P1-1). The issue concerning the permit was finally decided by the
Government on 27 May 1982, a decision which was not subject to appeal.
The applicant argues that, in order to comply with Article 26
(Art. 26) of the Convention, he had to try to secure compensation for the
alleged violation on the basis of Chapter 2 Section 18 of the
Instrument of Government. He maintains that the decision of the
Supreme Court of 22 August 1986 was "the final decision" for the
purposes of Article 26 (Art. 26) of the Convention.
The Commission first observes that under Chapter 3 Section 7
of the Tort Liability Act the State is exempt from liability if the
claim for compensation is based on a Government decision, unless the
decision has been quashed or amended. Consequently, an action based
on the Tort Liability Act was not an "effective" remedy for the
purposes of Article 26 (Art. 26).
The question then arises whether a compensation claim based on
Chapter 2 Section 18 of the Instrument of Government can be regarded
as an "effective remedy". The Commission recalls that the said
provision guarantees compensation to everyone whose property is
"requisitioned by expropriation or by any other similar disposition".
The District Court held in the present case that this provision did
not apply to the seller of a property who retains the property
because the buyer is refused a permit to acquire it. Consequently,
the District Court, without having served a summons on the State or
further examined the merits of the claim, dismissed the applicant's
action. This decision was upheld on appeal. The Commission further
finds no indication that this provision could possibly be considered
applicable to the present situation which differs essentially from
expropriation.
In these circumstances the action brought by the applicant
cannot reasonably be considered to have had any prospects of success.
Consequently, it cannot be regarded as an "effective" remedy and
cannot be taken into account when calculating the six months rule in
Article 26 (Art. 26) of the Convention.
The Government submit that the six months period started to
run from the Government's decision of 28 February 1985, when they
decided that there was no basis for paying compensation to the
applicant.
The Commission considers that, even if the Government could
have granted the applicant compensation, such a decision would have
been one of pure discretion. A request for such a discretionary
decision cannot be regarded as a remedy which should be exhausted for
the purposes of Article 26 (Art. 26) (cf. No. 10530/83, Dec. 16.6.85, D.R. 42
p. 171).
The starting point for calculating the six months period is
therefore, in the Commission's opinion, the Government's decision of
27 May 1982. Since the application was not introduced with the
Commission until 22 December 1986 it follows that it has been
introduced out of time and must be rejected pursuant to Article 27
para. 3 (Art. 27-3) of the Convention.
2. The applicant complains under Article 6 (Art. 6) of the Convention that
he was not allowed to bring an action before the court as the action he brought
was dismissed on formal grounds. Article 6 para. 1 (Art. 6-1) first sentence
reads:
"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."
The Commission first observes that it is not here faced with a
complaint of absence of a procedure satisfying the conditions of
Article 6 para. 1 (Art. 6-1) in respect of the Government's decision to refuse
the buyer a permit to acquire the property.
The applicant's complaint is merely that his action before the
courts was dismissed on formal grounds rather than after an
examination of the merits of the action. In the proceedings the
applicant sought to establish whether on the basis of the provisions
of Chapter 2 Section 18 of the Instrument of the Government he was
entitled to compensation for the refusal to grant the buyer a permit
to acquire the property.
Article 6 para. 1 (Art. 6-1) applies to disputes over "rights" which can
be said, at least on arguable grounds, to be recognised under domestic
law. It applies not only to disputes over well established "rights"
but also to disputes as to whether a particular "right" exists under
domestic law (cf. Eur. Court H.R., Lithgow and Others judgment of 8
July 1986, Series A no. 102, p. 70, para. 192). However, such a
dispute about the existence of a right 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 Commission considers that the applicant was seeking to
obtain a right to compensation which he clearly had no basis for under
Swedish law. In fact, there is no provision which, in a case like that
of the applicant, entitles the seller to be compensated for any
alleged financial loss resulting from a denial to grant the buyer a
permit to acquire a property. It is also clear that the applicant did
not even allege such a right under the Land Acquisition Act. Nor did
he seek to obtain compensation on the basis of the Tort Liability Act.
He chose to rely on the Instrument of Government, which provides for
compensation in case of expropriation or other similar interferences
with property rights. As is shown by the decisions of the Swedish
courts this was such a far-fetched argument that the District Court
did not even summon the State, but dismissed the action without having
heard the State.
The Commission finds that the applicant's action was so
clearly without basis in Swedish law that there was no serious dispute
about the existence of a right under Swedish law. Consequently, he
was not seeking the determination of any "right" under Swedish law and
Article 6 para. 1 (Art. 6-1) of the Convention is therefore
inapplicable.
It follows that, in this respect, the application is
incompatible ratione materiae with the provisions of the Convention
and must be rejected under Article 27 para. 2 (Art. 27-2).
3. The Commission finds no issue under Article 13 (Art. 13) of the
Convention, to which the applicant referred in his pleadings.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)