AS TO THE ADMISSIBILITY OF
Application No. 14225/88
by Ulla-Brita NORDH and others
against Sweden
The European Commission of Human Rights sitting in private
on 3 December 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
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 27 July 1988
by Ulla-Brita Nordh against Sweden and registered on 20 September 1988
under file No. 14225/88;
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 applicants, may be
summarised as follows.
The applicants are the following Swedish citizens:
1. Ulla-Brita Nordh, born in 1926 and resident at Västra
Frölunda;
2. Sune Nordh, born in 1926 and resident at Västra Frölunda;
3. Carl Swenson, born in 1927 and resident in Gothenburg.
The applicants are represented by Mr. Carl-Einar Mellander,
a lawyer practising in Gothenburg.
On 30 November 1977 a natural disaster occurred in a
residential area at Tuve outside Gothenburg when a large area of earth
slipped and 67 houses, including the applicants' houses, were
destroyed. The applicants' buildings were insured but the land was
not insured.
After the disaster, the Government announced that the State
would compensate the property owners. On 1 March 1978 a press release
from the Ministry of Local Government announced that the State would
compensate the land in the area destroyed. In the Government Bill
(p. 96) it was said that the compensation which would have to be paid by
the State essentially concerned the land. In March 1978 Parliament
allocated funds for the compensation. On 1 June 1978 the Government
established a "market value" for the different properties. As regards
the property owned jointly by the first and second applicants the
value was set at 810.000 SEK and the third applicant's property was
evaluated at 510.000 SEK.
By agreements of 18 March and 3 May 1978 the municipality of
Gothenburg took possession of the applicants' properties stating that:
"the State has declared its intention to give the victims
the same financial situation as before the disaster.
Within the Government the work is guided by the principle
that a generous assessment shall be made as regards
compensation to (the victims)".
Subsequently, the State and the insurance companies made an
agreement according to which the insurance companies would pay 70 %
and the State 30 % of the compensation to the victims.
The applicants obtained compensation from their insurance
companies at a level which slightly exceeded the "market value"
established by the Government. But this compensation did not comprise
the land. The applicants are of the opinion that the State is obliged
to compensate them also for the market value of the land under the
decision made by Parliament. The Government, however, took the view
that the State should only compensate the property owners for the
amount which corresponded to the established market value after
deduction of the amount paid by the insurance companies.
The applicants state that as a result of the agreement between
the State and the insurance companies and the view taken by the
Government, it became meaningless to complain about the compensation
received from the insurance company since, if the compensation
exceeded 70 % of the Government's "market value", the State's share of
the compensation would be reduced correspondingly.
By a subsequent agreement, the applicants surrendered their
ownership of the properties to the Gothenburg municipality
for 100 SEK. The applicants submit that they did not surrender their
properties freely because, if they had not signed the agreement, they
would have been struck off the priority list for receiving new
building plots in the Gothenburg area. Moreover, the compensation of
100 SEK constituted payment for a building plot, which in the
applicants' view had a value exceeding 100,000 SEK, and, as regards
the third applicant, the payment also covered compensation for a
garage which was not destroyed.
Following refusals by the Government to grant the applicants
any compensation, the applicants brought proceedings against the State
before the District Court (tingsrätten) of Stockholm claiming
compensation for the land. On 22 February 1982 the District Court
dismissed the applicants' claims, inter alia, on the ground that
Parliament's decision to allocate funds was of a public law
character and could not directly be the basis for a claim of a civil
right character. On 15 February 1985 the Svea Court of Appeal (Svea
hovrätt) confirmed the District Court's findings. The applicants
lodged a further appeal with the Supreme Court (Högsta domstolen)
which on 1 February 1988 confirmed the Court of Appeal's finding. The
Supreme Court considered that the applicants' claims were based on the
allegation that the Government had refused to implement Parliament's
decision about compensation to the victims of the disaster and, in
that context, had introduced conditions for compensation which had not
been put by Parliament. The issue was whether an ordinary court had
jurisdiction to examine a claim on such a ground. The Supreme Court
found that an ordinary court did not have jurisdiction. It referred
to the fact that Parliament decided about the State's expenses and the
Government had the task of implementing those decisions. A court was
not suitable - where the decision to allocate resources had not been
regulated in a legal text - to determine matters concerning the
implementation of such a decision.
COMPLAINTS
1. The applicants complain that they have not had a court
examination of the merits of their claim against the State within a
reasonable time. They allege violations of Article 6 of the
Convention.
2. The applicants also allege violations of Article 1 of Protocol
No. 1 to the Convention, inter alia, on the ground that they
were dispossessed of their properties on conditions which were
subsequently not respected and on the ground that no compensation has
been paid for the land.
3. The applicants also allege violations of Articles 8 and 13 of
the Convention.
4. Finally, the applicants allege that they have been
discriminated against contrary to Article 14 of the Convention in that
they have not received any compensation from the State as offered to
the other victims and on the ground that there has been discrimination
in the proceedings between the State and the applicants.
THE LAW
1. The applicants allege violations of Article 6 para. 1
(Art. 6-1) of the Convention, the first sentence of which reads:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial
tribunal established by law."
The Commission has first examined whether this provision is
applicable to the dispute between the applicants and the State.
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).
Moreover, Article 6 para. 1 (Art. 6-1) only applies if the "right" is
"civil" in character (see Eur. Court H.R., Benthem judgment of 23
October 1985, Series A No. 97, p. 14, para. 32).
The Commission first observes that there is no provision in
Swedish law according to which the State is obliged to pay
compensation to victims of a natural disaster. Moreover, the
Parliamentary decision of 1978 did not result in any Act or other
legal provision regulating the right to compensation. The decision
simply concerned the allocation of funds to compensate the victims of
the Tuve disaster. The payment of compensation to the victims of
the disaster was consequently a unilateral decision of the State of
a public law character. The Commission considers, irrespective of
whether the applicants could claim that a "right" followed from the
State's decision, that any such "right" was of a public law nature and
cannot be characterised as a "civil" right (cf. No. 10612/83, Dec.
10.12.84, D.R. 40 p. 276). Article 6 para. 1 (Art. 6-1) of the
Convention is therefore not applicable to this dispute.
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).
As regards any dispute over the agreements entered into
between the applicants and the Gothenburg municipality, the Commission
observes that the applicants could have brought any such dispute
before the ordinary courts. However, they do not allege any violation
of Article 6 para. 1 (Art. 6-1) in this respect.
2. The applicants also allege violations of Article 1 of
Protocol No. 1 (P1-1) to the Convention, which provides:
"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 Commission recalls that the applicants' ownership was
transferred by agreement to the municipality of Gothenburg after the
Tuve disaster. It further recalls that there is no right under
Swedish law to compensation for the effects of a natural disaster
and the Parliament's decision to allocate certain funds to compensate
the victims did not create any right under Swedish law for the
applicants. Nor can such a right be derived from Article 1 of
Protocol No. 1 (P1-1). The Commission further recalls that the
applicants received compensation from their insurance company for the
loss of the buildings, but they did not receive any compensation for
the land. Nevertheless, according to the Government, the compensation
for the buildings covered the value of the properties, including the
land.
The Commission finds, in view of the above, that the facts of
the case do not disclose an interference by the State with the
applicants' right to the peaceful enjoyment of their possessions.
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.
3. The Commission finds no appearance of a violation of the other
provisions invoked by the applicants. The remainder of the
application is therefore also manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy