AS TO THE ADMISSIBILITY OF
Application No. 13625/88
by Siv ÖUNAPUU
against Sweden
The European Commission of Human Rights (Second Chamber)
sitting in private on 14 October 1991, the following members being
present:
MM. S. TRECHSEL, President of the Second Chamber
G. SPERDUTI
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
Mr. M.P. PELLONPÄÄ
Mr. K. ROGGE, Secretary to the Second Chamber
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 9 June 1987 by
Siv ÖUNAPUU against Sweden and registered on 23 February 1988 under
file No. 13625/88;
Having regard to:
- the report provided for in Rule 47 of the Rules of Procedure
of the Commission;
- the Commission's decision of 6 September 1990 to bring the
application to the notice of the respondent Government and invite them
to submit written observations on its admissibility and merits limited
to the issue under Article 6 para. 1 of the Convention;
- the observations submitted by the respondent Government on 30
January and 22 May 1991 and the observations in reply submitted by the
applicant on 30 March and 4 June 1991;
- the Commission's decision of 9 April 1991 to refer the
application to the Second Chamber;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Swedish citizen, born in 1947 and resident
at Malmö. She is a university student. Before the Commission the
applicant is represented by Mr. Göran Ravnsborg, a university lecturer
at Lund.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
The applicant was the owner of a property called Slätvaren 42
at Limhamn in the municipality of Malmö. She further owned an adjacent
property called Slätvaren 2, which consisted of a narrow passage
permitting access for Slätvaren 42 to street P (Prångaregatan).
Slätvaren 42 was situated alongside street S (Strandgatan).
According to a town plan adopted on 18 October 1983 Slätvaren
42 was granted an extended building right along street S. The plan
indicated that if Slätvaren 42 was divided the building plot situated
away from street S would be given a road easement (vägservitut) to
street S over the plot closer to that street.
On 13 November 1985 the Building Committee (byggnadsnämnden)
of Malmö adopted a proposal for division of building plots
(tomtindelning). The proposal involved a division of Slätvaren 42 into
two building plots, one called Slätvaren 48 and the other Slätvaren 49.
The applicant's house is situated on Slätvaren 48. Having regard to the
right to further construction allowed along street S Slätvaren 48 was
given a road easement of a breadth of 2,5 metres and a height of 2,5
metres over Slätvaren 49 to that street. Slätvaren 2 was proposed to
be added to the neighbouring property Slätvaren 1, as the passage was
no longer considered necessary for Slätvaren 48.
The applicant opposed the proposal. She submitted that it was
inconvenient to arrange an access from plot 48 to street S. It was
better to keep Slätvaren 2 as a passage for access for plots 48 and 49
to street P. The applicant invoked Section 33 of the 1959 Building
Ordinance (byggnadsstadgan, hereinafter "the 1959 ordinance").
On 16 July 1986 the County Administrative Board (läns-
styrelsen) of the County of Malmöhus confirmed the division of building
plots pursuant to Section 33 of the 1947 Building Act (byggnadslagen,
hereinafter "the 1947 Act"). It found that Section 33 of the 1959
Ordinance did not prevent the division of building plots. Further, the
taking of Slätvaren 2 for the purpose of enlarging another property
created a better division of the properties in the area and the
applicant had been compensated as the building right on Slätvaren 42
had been extended.
The applicant's appeal to the Government (Ministry of Housing)
was rejected on 11 December 1986.
On 12 June 1987 Slätvaren 2 was transferred and added to
Slätvaren 1 in accordance with the division of building plots.
Following an agreement with the owner of that property the applicant
was paid 8.505 SEK in compensation.
Relevant domestic law
Up to 1 July 1987 division of building plots was part of the
planning system under the 1947 Act and the 1959 Ordinance. Under
Section 28 of the 1947 Act a building block was to be divided into
plots for the appropriate development in accordance with a town plan.
A division was to take place at the request of the land owner or when
the Building Committee found a division necessary and provided that the
landowner could not reasonably argue that a division should not take
place (Section 30).
Under Section 33 of the 1959 Ordinance the purpose of a
division was to create a well-adapted, simple and clear division of a
building block. Every property unit should have access to a street and
regard was to be had to existing easements and property rights as well
as to the express wishes of the property owner.
Under Sections 37 and 38 of the 1947 Act construction in a
block which had not been divided into plots was prohibited. If a
division had been carried out construction was allowed to the extent
that it complied with that division. In both cases exemptions could be
made for special reasons.
Under Section 34 para. 1 of the 1959 Ordinance a proposal for
a division of building plots was to be made by a surveyor eligible to
serve as Head of the Property Formation Authority. It was to be marked
on a map and accompanied by a description. It further had to include
the necessary easements. The division could be carried out provided the
area was covered by a town plan and provided that it was in accordance
with the conditions laid down in the 1970 Property Formation Act
(fastighetsbildningslagen, hereinafter "the 1970 Act"). The division
was adopted by the Building Committee and had to be confirmed by the
County Administrative Board, from which an appeal lay to the
Government.
The actual division of the property units was carried out by
the Property Formation Authority (fastighetsbildningsmyndigheten).
Under Chapter 3, Sections 1 and 2 of the 1970 Act property formation
shall allow for each property unit to be permanently suitable for its
purpose with respect to its location, size and other circumstances.
Special regard should be had to the proper shape of the property and
to its access to adjacent roads. The formation should correspond with
the town plan or the division of building plots. However, exemptions
from a town plan or a division of building plots could be allowed for
special reasons provided that the derogation was in accordance with the
purpose of the town plan.
When the property formation consisted of property regulation
(fastighetsreglering) land could be transferred from one property to
another (Chapter 5, Section 1). Moreover, the properties should be
composed and shaped in a way which suited their purpose as well as
before the property regulation. The property could not be changed in
such a way as to decrease its value significantly (Chapter 5, Section
8).
If land was transferred from a property the owner had the right
to compensation in money or by receiving other pieces of land. The
parties could settle the question of compensation themselves (Chapter
5, Sections 2 and 18).
An easement created through a property regulation should be of
essential importance to the purposeful use of the property benefiting
from it. It could be created, changed or abolished without any formal
request provided that this was important with regard to another measure
involving a property regulation and if it was carried out in the same
context (Section 10).
The Property Formation Authority's decisions with regard to
property regulation, including the creation of easements, could be
appealed against to a Real Estate Court (fastighetsdomstol), a
specially composed District Court (tingsrätt). Further appeals lay to
a Court of Appeal (hovrätt) and the Supreme Court (Högsta domstolen),
in the latter case provided that leave to appeal was granted.
COMPLAINTS
1. The applicant alleges violations of Article 1 of Protocol No.
1 to the Convention on the ground that she has been forced to sell
Slätvaren 2 without any "real" compensation and on the ground that
Slätvaren 49 has been encumbered with an easement.
2. The applicant also alleges a violation of Article 6 para. 1 of
the Convention on the ground that she has not had the possibility of
a court review of the administrative decisions.
3. Finally, the applicant alleges violations of Articles 17 and
18 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 June 1987 and registered
on 23 February 1988.
On 6 September 1990 the Commission decided to bring the
application to the notice of the respondent Government and invite them
to submit written observations on its admissibility and merits limited
to the issue under Article 6 para. 1 of the Convention.
After an extension of the time-limit the Government's
observations were submitted on 30 January 1991. The applicant's
observations in reply were submitted on 30 March 1991.
On 9 April 1991 the Commission decided to refer the application
to the Second Chamber.
Further observations were submitted by the Government on 22 May
1991 and by the applicant on 4 June 1991.
THE LAW
1. The applicant complains that she has been forced to sell her
property Slätvaren 2 without any "real" compensation and that her
property Slätvaren 49 has been encumbered with an easement. She alleges
violations of Article 1 of Protocol No. 1 (P1-1) to the Convention,
which reads as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
(a) Insofar as the complaint relates to Slätvaren 2 the Government
submit that the transfer of this property to Slätvaren 1 amounted to a
deprivation of the applicant's property. However, the complaint is
manifestly ill-founded, as the deprivation was carried out in accordance
with Swedish law and pursued a legitimate aim, that is to create a
sensible division of the building block for the purpose of development,
and as the applicant has not been made to carry an individual and
excessive burden. Slätvaren 2 was so narrow that it could not serve as
a passage for cars. A widening of Slätvaren 2 would have had negative
effects for other property owners. Both Slätvaren 48 and 49 were owned
by the applicant, who, through the town plan, was allowed to erect a
further building on the last-mentioned property. It seemed natural to
arrange for both her properties to have the same access to a street.
Moreover, in 1987 the applicant received compensation for Slätvaren 2 in
the amount of 8.505 SEK. This sum was considerably higher than the
purchase price paid by her in 1983, namely 4.200 SEK, and must be
regarded as reasonably related to the value of the property.
The applicant contends that Slätvaren 2 has always served a road
function naturally and frequently used by the owners of Slätvaren 42.
The width of the passage was quite enough for pedestrians.
The Commission recalls that Article 1 of Protocol No. 1 (P1-1)
comprises three distinct rules. The first rule, set out in the first
sentence of the first paragraph, is of a general nature and enunciates
the principle of peaceful enjoyment of property; the second rule,
contained in the second sentence of the same paragraph, covers
deprivation of possessions and makes it subject to certain conditions;
and the third rule, stated in the second paragraph, recognises that
Contracting States are entitled, amongst other things, to control the
use of property in accordance with the general interest. The three
rules are not "distinct" in the sense of being unconnected: the second
and third rules are concerned with particular instances of interference
with the right to peaceful enjoyment of property and should therefore be
construed in the light of the general principle enunciated in the first
rule (Eur. Court H.R., Allan Jacobsson judgment of 25 October 1989,
Series A No. 163, p. 16, para. 53).
The Commission considers that the transfer of Slätvaren 2 to
Slätvaren 1 was a deprivation of the applicant's property which should
be examined under the second sentence of the first paragraph of Article
1 of Protocol No. 1 (P1-1). The Commission must examine whether this
deprivation was "in the public interest" and "subject to the conditions
provided for by law" and "by the general principles of international
law".
As regards the general principles of international law the
Commission recalls that this condition does not apply to the taking by
a State of the property of its own nationals (Eur. Court H.R., Lithgow
and Others judgment of 8 July 1986, Series A No. 102, p. 50, para. 119).
Consequently, this condition is not applicable in the present case since
the applicant, who was deprived of her property by Sweden, is of Swedish
nationality. It remains to be examined whether the interference
satisfied the other two conditions.
As regards the question whether the deprivation was carried out
in the "public interest" the Commission observes that the purpose of the
deprivation, as stated in Section 28 of the 1947 Act and Section 33 of
the 1959 Ordinance, was to create a well-adapted division of the
building block for the purpose of development. This is a legitimate
public interest for the purposes of the first paragraph of Article 1 of
Protocol No. 1 (P1-1), even to the extent that it may imply the
compulsory transfer of property from one individual to another (cf. Eur.
Court H.R., Håkansson and Sturesson judgment of 21 February 1990, Series
A No. 171, p. 15, para. 44, with further reference).
As regards the lawfulness of the deprivation the Commission
recalls that its power to review compliance with domestic law is limited
(see e.g. above-mentioned Håkansson and Sturesson judgment, p. 16, para.
47). It observes that the transfer of Slätvaren 2 to Slätvaren 1 was
carried out in accordance with the 1970 Act. The measure thus had a
basis in Swedish law. The Commission is therefore satisfied that the
deprivation was lawful.
Finally, as regards the proportionality of the interference,
Article 1 of Protocol No. 1 (P1-1) requires a reasonable relationship of
proportionality between the means employed and the aim pursued. This
implies that the owner shall not have to bear "an individual and
excessive burden" (above-mentioned Håkansson and Sturesson judgment, p.
17, para. 51, with further reference). The Commission observes that the
applicant in 1987 received 8.505 SEK for Slätvaren 2, while the price
paid by her in 1983 was 4.200 SEK. The price received by her must be
considered reasonable in relation to the value of the property (cf.
above-mentioned Håkansson and Sturesson judgment, p. 18, para. 54). In
these circumstances, and having regard to the wide margin of
appreciation enjoyed by Contracting States under Article 1 of Protocol
No. 1 (P1-1), the Commission concludes that the applicant has not been
made to carry an individual and excessive burden.
Consequently, the interference with the applicant's right to
peaceful enjoyment of her possessions was justified under the terms of
the second sentence of the first paragraph of Article 1 of Protocol No.
1 (P1-1).
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
(b) Insofar as the complaint relates to the easement established on
Slätvaren 49 the Government submit that it is manifestly ill-founded.
The easement constitutes a measure to control the use of the applicant's
property and was a prerequisite for the transfer of Slätvaren 2 to
Slätvaren 1. Therefore, the reasons justifying that transfer also
justify the easement, which was established in the general interest.
Moreover, there was a reasonable relationship of proportionality between
the means employed and the aim sought to be realised.
The applicant contends that because of the easement the future
building on Slätvaren 49 will have to include a 17 metres long tunnel
highly disproportionate to that building as a whole. The annual costs
for the tunnel will amount to 30.000 SEK. Had the applicant been allowed
to keep and even widen Slätvaren 2 the neighbours would not have been
burdened with any comparable costs or inconveniences.
The Commission considers that the easement established on
Slätvaren 49 constitutes a measure of control of the use of the
applicant's property which falls to be examined under the second
paragraph of Article 1 of Protocol No. 1 (P1-1).
Under the second paragraph of Article 1 of Protocol No. 1
(P1-1) the Contracting States are entitled, amongst other things, to
control the use of property in accordance with the general interest by
enforcing such laws as they deem necessary for the purpose. However,
there must exist a reasonable relationship of proportionality between
the means employed and the aim sought to be realised. In striking the
fair balance thereby required between the general interest of the
community and the requirements of the protection of the individual's
fundamental rights, the authorities enjoy a wide margin of appreciation
(above- mentioned Allan Jacobsson judgment, p. 17, para. 55).
As regards the "general interest" served by the easement, the
Commission notes that the easement served an aim under the 1947 Act,
that is to create a well-adapted division of the building block for the
purpose of development. This is a legitimate general interest for the
purpose of the second paragraph of Article 1 of Protocol No. 1 (P1-1).
As regards the lawfulness of the easement the Commission notes
that the easement was established in accordance with the 1970 Act and
thus had a basis in Swedish law. The Commission is therefore satisfied
that the easement is lawful.
As regards the proportionality of the interference, the
Commission observes that both the property encumbered by the easement
and the property which benefited from the easement belong to the
applicant who previously, in the town plan, had been granted an extended
building right on the first-mentioned property. However, under Section
37 of the 1947 Act such further construction was, in principle,
dependent on whether a division of building plots had been carried out.
As regards the tunnel which allegedly would have to be created in the
case of future construction, the Commission cannot speculate on the
possible inconveniences or costs caused by such an obligation.
In these circumstances, and having regard to the wide margin of
appreciation enjoyed by the Contracting States under Article 1 of
Protocol No. 1 (P1-1), the Commission finds that the interference with
the applicant's right to the peaceful enjoyment of her possessions was
justified under the second paragraph of Article 1 of Protocol No. 1
(P1-1).
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.
2. The applicant further complains that she could not obtain a
court review of the administrative decisions. She alleges a violation of
Article 6 para. 1 (Art. 6-1) of the Convention, which reads, insofar as
it is relevant:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing ... by an independent and
impartial tribunal..."
The Government submit that, although the ownership of Slätvaren
2 was not transferred to the owner of Slätvaren 1 merely as a result of
the division of building plots, this was decisive for the subsequent
property formation proceedings which led to that transfer of ownership.
The Government therefore do not contest the admissibility of this
complaint and admit a violation of Article 6 para. 1 (Art. 6-1) of the
Convention in that the applicant had no access to court to challenge the
division of building plots.
The Commission finds that this complaint is not manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. As no other ground for declaring it inadmissible has been
established the complaint must be admitted.
3. The applicant finally alleges violations of Articles 17 and 18
(Art. 17, 18) of the Convention.
Article 17 (Art. 17) of the Convention reads:
"Nothing in this Convention may be interpreted as implying for
any State, group or person any right to engage in any activity
or perform any act aimed at the destruction of any of the rights
and freedoms set forth herein or at their limitation to a greater
extent than is provided for in the Convention."
Article 18 (Art. 18) of the Convention reads:
"The restrictions permitted under this Convention to the said
rights and freedoms shall not be applied for any purpose other
than those for which they have been prescribed."
The Commission finds no appearance of any violation of Articles
17 or 18 (Art. 17, 18) of the Convention.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits of the case,
the complaint under Article 6 para. 1 (Art. 6-1) of the
Convention;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy