AS TO THE ADMISSIBILITY OF
Application No. 22231/93
by Tönnes and Karin ROSENBORG
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 January 1995, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
F. MARTINEZ
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the 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 4 March 1993 by
Tönnes and Karin ROSENBORG against Sweden and registered on
13 July 1993 under file No. 22231/93;
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 applicants, a married couple, are Swedish citizens born in
1924 and 1927, respectively. They are pensioners and reside at
Hässelby, Sweden.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
In 1972 the applicants bought a piece of property (Tvärnö 6:15)
with appurtenant fishing rights in Östhammar, Sweden, where they live
in the summer. In 1988, by decision of the Real Estate Formation
Authority (Fastighetsbildningsmyndigheten) of Östhammar, an association
of joint property owners (samfällighetsförening - "the Association")
was formed to administer jointly-owned land, roads and fishing-waters
in the region. The association decided to regulate certain aspects of
the fishing (Case no. 1). In 1990 the Real Estate Formation Authority
decided that some roads in the neighbourhood be upgraded and maintained
as jointly-owned facilities (gemensamhetsanläggning) (Case no. 2).
Case no. 1
At a meeting on 28 August 1988 the Association decided to divide
certain parts of the joint fishing waters between the different
properties involved and to designate other parts as common waters.
The applicants, who had not been present at the meeting, later
received a copy of the decision by mail. Discontent with the decision,
they contacted the land surveyor who had been in charge of the
formation of the Association and inquired on how to appeal. The land
surveyor advised them to wait while he asked the Association to repeal
its decision. However, on 3 October 1988, he informed them that the
Association would not repeal the decision. Thus, on 5 October 1988, the
applicants appealed to the Real Estate Court (Fastighetsdomstolen) of
Uppsala, claiming, inter alia, that their fishing rights had been
considerably restricted contrary to the statute of the Association and
that the decision was a nullity as the Association had exceeded its
powers.
On 17 May 1990 the Real Estate Court, considering that the
decision was not a nullity, rejected the appeal as it had been lodged
out of time, Section 53, subsection 2 of the Act on the Administration
of Associations of Joint Property Owners (Lagen om förvaltning av
samfälligheter, 1973:1150) stating that the time-limit for lodging an
appeal was four weeks from the date of the decision.
On 9 August 1990 the Svea Court of Appeal (Svea hovrätt) upheld
the Real Estate Court's decision. On 31 January 1991 the Supreme Court
(Högsta domstolen) refused leave to appeal.
The applicants, claiming to have been misled by the land
surveyor, requested the expired time for appeal to be restored
(återställande av försutten tid). The request was, however, dismissed
by the Court of Appeal on 6 March 1991.
By letter of 26 February 1991 the applicants requested the
Association to set aside the 1988 decision. At its annual meeting on
5 May 1991, the Association, however, decided not to grant the request.
On 21 November 1991, the Real Estate Court rejected the applicants'
appeal, as their submissions failed to show that the 1991 decision
contravened the Association's statute or was unlawful. On 12 June 1992
the applicants' further appeal was rejected by the Court of Appeal and
on 16 February 1993 the Supreme Court refused leave to appeal.
Case no. 2
On 17 September 1990, on application by a neighbour of the
applicants', the Real Estate Formation Authority, consisting of the
above-mentioned land surveyor, decided that three roads in the
neighbourhood, used for forestry transports and as access roads for
different properties, should be upgraded and maintained as
jointly-owned facilities. It was further decided that the properties
in the neighbourhood should contribute to the construction and
maintenance costs according to fixed shares. The three roads are
situated near to the applicants' property. A fourth road, on their
property, was on their request excluded from the undertaking.
The applicants appealed to the Real Estate Court, requesting, in
the first place, that the decision be set aside, and, in the second
place, that the shares be fixed in a different way and that their
number of shares of the maintenance costs be reduced. They alleged that
prior agreements between the property owners sufficiently ensured that
the roads were properly maintained and that they only used two of the
roads, exclusively in the summer. During the Court's hearing, the
applicants further requested that the third road be excluded from the
undertaking, as the property owners at the meeting preceding the Real
Estate Formation Authority's decision allegedly had agreed to exclude
this road.
By decision of 17 December 1991, the Real Estate Court dismissed
the request for the exclusion of the third road, as it had been lodged
out of time. Furthermore, except for some changes as to the
apportionment of costs, the Court upheld the decision of the Real
Estate Formation Authority. The Court noted that all participating
properties had to share the snow-clearance costs, if one property owner
requested the roads to be kept open for motor traffic during the
winter.
The applicants appealed to the Court of Appeal, requesting, in
the first place, that the decisions by the Real Estate Formation
Authority and the Real Estate Court be set aside or, in the second
place, that the third road be excluded from the undertaking or that
they be relieved of their duty to contribute to the costs of this road.
They submitted, inter alia, that their request for the exclusion of the
third road formed part of their first-hand claim, for which reason the
Real Estate Court should not have dismissed it. They further alleged
that the undertaking did not meet the requirements of the Construction
Act (Anläggningslagen, 1973:1149). As concerns snow-clearance, they
maintained that it was of no benefit to them, but that it, on the
contrary, was to their disadvantage, as the cleared roads would make
their house accessible to burglars.
On 12 June 1992 the Court of Appeal rejected the appeal and on
12 January 1993 the Supreme Court refused leave to appeal.
COMPLAINTS
1. The applicants contend that the decision to divide the lavaret
fishing waters has infringed their right to the peaceful enjoyment of
their possessions. They invoke Article 1 of Protocol No. 1 to the
Convention.
2. The applicants further claim that their rights under Article 1
of Protocol No. 1 have been violated by the decision obliging them to
contribute to the costs of upgrading and maintaining a road which they
do not use and of clearing the roads of snow although they do not
occupy their property in the winter.
3. The applicants finally allege that their appeals have not been
heard by an impartial tribunal within the meaning of Article 6 of the
Convention.
THE LAW
1. The applicants contend that the decision to divide the lavaret
fishing waters violated their rights under Article 1 of Protocol No. 1
(P1-1) to the Convention.
However, the Commission is not required to decide whether or not
the facts submitted by the applicants in support of this particular
complaint disclose any appearance of a violation of the invoked
provision as Article 26 (Art. 26) of the Convention provides that the
Commission "may only deal with a matter ... within a period of six
months from the date on which the final decision was taken".
The Commission recalls that the applicants twice sought to have
the Association's 1988 decision set aside. First, they appealed the
1988 decision to the Real Estate Court. The Court, however, rejected
the appeal for failure to comply with the applicable time-limit. The
rejection was upheld on appeal. Second, they requested, in 1991, the
Association to set aside its earlier decision. The Association,
however, refused the request, and subsequent appeals to the different
courts were unsuccessful.
The Commission finds that the proceedings following the
Association's 1991 decision only determined whether the Association had
been entitled, under its statute and the law, to decide not to set
aside its 1988 decision. Thus, it did not examine the contents of the
1988 decision or determine whether this decision was in conformity with
the statute and the law. The Commission therefore finds that the
appeals against the Association's 1991 decision did not constitute an
effective remedy, under Article 26 (Art. 26) of the Convention, against
the 1988 decision.
In view of the above, the Commission considers that the
examination of the 1988 decision ended with the conclusion of the first
set of proceedings, either on 31 January 1991, when the Supreme Court
refused leave to appeal, or, at the latest, on 6 March 1991, when the
Court of Appeal refused to restore the expired time for appeal. The
present application was introduced on 4 March 1993, about two years
after the final decision. Consequently, even assuming that the land
surveyor's conduct absolved the applicants from the obligation to
comply with the domestic time-limit for appeal against the 1988
decision, the applicants have not respected the time-limit laid down
in Article 26 (Art. 26) of the Convention.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
2. The applicants further claim that the decision obliging them to
contribute to the costs of upgrading and maintaining a road which they
do not use and of clearing the roads of snow although they do not
occupy their property in the winter constitutes an infringement of
their right to the peaceful enjoyment of their possessions. Also in
respect of this complaint they invoke Article 1 of Protocol No. 1
(P1-1), 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."
The Commission first notes that the applicants have not been
deprived of their possessions as a result of the decisions concerning
the roads in question. The alleged interference with their property
rights, therefore, falls under the second paragraph of the above
provision. However, the Commission does not find it necessary to
determine whether there has been such an interference in the present
case, because, even assuming this to be the case, the Commission
considers that the interference has been permissible under the second
paragraph.
Under the second paragraph, 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, as this provision is to be construed in the light
of the general principle enunciated in the first sentence of the first
paragraph, 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 (cf. Eur. Court H.R., Allan
Jacobsson judgment of 25 October 1989, Series A no. 163, p. 17,
para. 55).
In the present case, the Commission sees no reason to doubt that
the alleged interference was in accordance with Swedish law. The
Commission further notes that the roads are, inter alia, needed for
transport of forestry products, which undoubtedly is a legitimate
general interest within the meaning of the second paragraph of Article
1 of Protocol No. 1 (P1-1). Moreover, having regard to the above-
mentioned margin of appreciation, the Commission does not consider the
applicants' obligation to contribute to the costs, including the snow-
clearance costs, of all three roads at issue to be disproportionate to
the requirements of the general interest.
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 applicants finally allege that their appeals have not been
heard by an impartial tribunal within the meaning of Article 6
(Art. 6) of the Convention, which, in relevant parts, reads as follows:
"1. In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing ...
by an ... impartial tribunal ..."
The Commission notes that the applicants' appeals in the two
cases have been heard by the Real Estate Court, the Court of Appeal
and, in deciding whether to grant leave to appeal, by the Supreme
Court. The Commission further notes that the applicants have not stated
any grounds for finding that these courts have not been impartial.
Moreover, nothing in the file suggests any reasons to call in question
the impartiality of the courts.
It follows that also this part of the application 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 THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber Acting President of the Second Chamber
(K. ROGGE) (G.H. THUNE)
Full & Egal Universal Law Academy