PARTIAL
AS TO THE ADMISSIBILITY OF
Application No. 12258/86
by the Estates of Mr. and Mrs. SKÄRBY
and their heirs and children
against Sweden
The European Commission of Human Rights sitting in private
on 9 May 1988, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
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 26 June 1986 by
the Estates of Mr. and Mrs. Skärby and their heirs and children
against Sweden and registered on 30 June 1986 under file No. 12258/86;
Having regard to;
- the Government's written observations dated 18 June 1987;
- the applicant's written observations in reply dated
7 September 1987.
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they appear from the parties'
submissions, may be summarised as follows:
The applicants are the Estates of Mr. Christian Skärby and
Mrs. Maria Skärby and their heirs and children namely:
- Mrs. Ingegärd Skärby, born in 1909 and resident at Nyhamnsläge,
- Mrs. Rigmor Skärby, born in 1910 and resident at Ambjörby,
- Mrs. Majken Skärby, born in 1912 and resident at Nyhamnsläge,
- Mr. Bertil Skärby, born in 1914 and resident at Nyhamnsläge,
- Mr. Rolf Skärby, born in 1919 and resident at Kisa,
- Mrs. Lena Hedman, born in 1921 and resident at Höganäs.
The applicants are Swedish citizens. They are represened
before the Commission by Mr. Bertil Grennberg, a patents consultant
practising in Stockholm.
The particular facts of the case
In 1913 Mr. Christian Skärby and Mrs. Maria Skärby, who are
now deceased, bought a farm in the south of Sweden. The property was
bought with a view to lodging and partly nourishing the family. In
1915 a fire destroyed the house and a new one was built. The property
has been the family home of the Skärby family ever since. Originally,
the property consisted of three different parts called Flundrarp 4:9,
Stubbarp 8:17 and Stubbarp 8:18. The total surface is around eight
hectares. In 1960 Christian and Maria Skärby bought a new area of
land adjacent to the property. It was joined with Flundrarp 4:9 and
was thereafter named Flundrarp 12:1.
The property is situated on the shore of Skälderviken, a bay
outside the western coast of the province of Skåne in southern Sweden.
The surroundings are considered to be one of the most beautiful in
Sweden. In the Act on the Preservation of Natural Resources (lagen om
hushållning med naturresurser m m), which entered into force on 1 July
1987, this area is mentioned among those which, according to the Act,
are considered of national interest with regard to natural and cultural
values.
In 1962 the County Administrative Board (länsstyrelsen) of
Malmö confirmed a building plan, which is still in force regarding the
main part of Flundrarp 4:9. According to that plan the part of the
property situated closest to the shore should be preserved as a natural
park. The area further up should be used partly for agriculture and
partly as a garden to the main building. On the land around the main
building new constructions are prohibited. The plan does not prevent
the applicants from preserving the main building and the two outhouses
on the area intended as a garden to the main building. Nor does the
plan prevent the applicants from pulling down the main building and
erecting a new one on the same spot. On the area planned for agriculture
farm buildings may be erected.
On the property there are five different buildings. Apart
from the main building there is a store building containing one room
which is used as a dwelling. Besides these two buildings there are
three small buildings within the area. One is situated within the
part of the property where, according to the plan of 1962, no new
buildings are allowed. The remaining two buildings are situated
within the area which is reserved as a natural park.
In 1964 the County Administrative Board confirmed a building
plan regarding the remaining part of Flundrarp 4:9 and Stubbarp 8:17
and 8:18. According to this plan the land owner was allowed to erect
two or, depending on the size, three buildings for recreation purposes
on Flundrarp and about 15 such buildings on Stubbarp 8:17 and 8:18.
No buildings have yet been erected according to this plan. However,
new constructions within the area covered by this building plan were
prohibited under Section 110 of the Building Act (byggnadslagen)
until water supplies and sewerage systems are provided. The main
reason for this prohibition was that lack of subsoil water makes a
coordination necessary when providing water supplies and sewerage
systems for the area.
In 1983 to 1984 a new building plan was proposed regarding a
part of Flundrarp 12:1. This proposed plan was made following a
request from the Skärby family. In this proposal one plot was planned
for the main building and one for the store building. Three more
plots were planned, two of which would be situated within the part of
the area where, according to the existing plan of 1962, no new
buildings may be erected. The third plot would be situated in the
area intended for agriculture. The natural park was extended to cover
also the area which, according to the plan of 1964, was meant for the
two or three buildings for recreation purposes on Flundrarp 12:1.
This proposed plan was approved by some of the parties to the
estate of Christian and Maria Skärby, but some of them did not
approve of the development agreement (exploateringsavtal) which the
municipality proposed. The municipality considered that an agreement
was necessary in order to approve the proposed alteration of the
building plan. The agreement should inter alia regulate how the costs
for the planning should be paid and how the water supply system and
the sewerage system should be provided in regard to these three new
plots. This was considered necessary in order to lift the building
prohibition in force.
In 1986 Bertil Skärby applied to the Building Committee
(byggnadsnämnden) of Höganäs for a building permit to erect a house
and two garages on Flundrarp 12:1.
In a decision of 24 March 1986 the Building Committee rejected
the application on the ground that the buildings proposed would not
comply with the building plan in force. The decision also meant that
the Committee found no reason for granting an exemption from the plan.
Insofar as the decision involved a decision to refuse an
exemption from the building plan, no appeal was possible.
Today the main building on the property is inhabited by
Mrs. Majken Skärby who is retired. She is severely ill, suffering
from Parkinson's disease and a decalcification of her skeleton. The
house is badly insulated and draughty. The applicants consider that
it is no use repairing it. In addition, the situation of the house on
the property has become unsuitable as a result of the noise from the
traffic on the road which has been constructed nearby. For medical
reasons and in view of the great risk that she will soon need a
wheelchair in order to move around, Mrs. Skärby is not able to stay
very long in this house. She is in great need of a new house.
Mr. Bertil Skärby is also retired and lives at present in the
above-mentioned store building. It is a simple house where, the
applicants submit, the hens were previously kept. The house has no
running water and no stove. He is therefore also in great need of a new
house on the property which he is exploiting.
Relevant legislation
This case relates to the consequences of an adopted building plan.
If an area has become densely populated or if such a situation
is expected to emerge in the area, but this situation does not call
for a town plan, the municipality must see to it that a building plan
is drawn up, to the extent necessary for the regulations of the
planning of the area.
A building plan must delineate and state the limits of the
areas intended to be used for various purposes in the plan, such as
land intended for building purposes, as well as roads and other public
places. If special regulations relating to the development or the use
of the areas concerned are required, such regulations must also be
incorporated in the plan. Such planning regulations can relate to the
use of building land for certain purposes, a prohibition on the
development of a certain part of the building land, the number of
buildings on a certain site, the size of the site, the surface area
of the building, its height and the number of storeys, etc.
A building plan must be approved by the Municipal Council
(kommunfullmäktige). The matter can also be delegated to the Building
Committee. Before acquiring legal force, decisions of approval must
be confirmed by the County Administrative Board. An owner of land
affected by a County Administrative Board decision approving a
building plan has a right of appeal against the Board's decision to
the Government.
If the question has been raised of the drawing up of a
building plan for a certain area, or of such a plan being altered, the
County Administrative Board - if the municipality so requests - can
prohibit new constructions in the area. Such a prohibition may be
issued for, at most, one year but can be extended by the County
Administrative Board for, at most, two years at a time (Section 109
of the Building Act). A County Administrative Board's decision on
the prohibition of new constructions or on the extension of such a
prohibition can be appealed to the Government.
According to Section 110 first paragraph of the Building Act,
a new construction may not take place in contravention of a building
plan. Under the second paragraph of that Section, a County
Administrative Board can prescribe that new constructions in an area
covered by a building plan may not take place without the Board's
permission before adequate roads, water-supplies and sewerage systems
have been provided.
Exemptions can be granted from the prohibitions to construct
in individual cases. Such a decision is taken by the County
Administrative Board or by the Building Committee if the County
Administrative Board has delegated competence to grant exemptions to
that Committee. Nearly all municipalities have such authorisation.
A condition for granting an exemption from a building
prohibition in contravention of a building plan is that the Building
Committee approves the exemption from the plan. This means that the
municipality has a right of veto in respect of exemptions from a
building plan.
The costs for developing a building plan are paid by the
municipality. However, the property owners concerned shall compensate
the municipality for the costs in proportion to the acreage of the
property, if the plan is considered to be of considerable use to the
owner (Section 101 of the Building Act). Such compensation is often
stipulated in an agreement into which the municipality enters with the
property owners concerned.
It is for the owners of the land to see to it that roads and
other amenities are completed within an area covered by a building
plan.
A building plan can be altered if required. According to
Section 23 of the Building Ordinance (byggnadsstadgan), the provisions
concerning the adoption and confirmation of building plans shall, in
principle, also apply to the alteration or withdrawal of such plans.
There are, however, no rules that indicate the material pre-conditions
determining how alteration or confirmation is to be decided.
A decision of the Building Committee under the Building Act or
the Building Ordinance, for example regarding a building permit, may
be appealed to the County Administrative Board and further to the
Administrative Court of Appeal (kammarrätten) and ultimately to the
Supreme Administrative Court (regeringsrätten). A decision to refuse
an exemption from a confirmed building plan cannot be appealed
(Section 71 of the Building Ordinance).
COMPLAINTS
1. The applicants complain that they have not have had a fair and
public hearing before a court in respect of their claim for a right to
build a new house on their property. They allege that Article 6 of
the Convention has been violated.
2. The applicants maintain that they have been denied the right
to live in decent houses on their own property where they have worked
for seventy-three years in order to make the property more beautiful
and pleasant. They submit that this is in breach of Article 8 of the
Convention.
3. The applicants also submit that Article 17 of the Convention
has been violated because public power has been used beyond the limits
permitted under Articles 6 and 8 of the Convention and Article 1 of
Protocol No. 1 to the Convention.
4. The applicants also allege that Article 18 of the Convention
has been violated in that the real purpose of the local authorities
has been to acquire the applicants' property at a low price in order
to sell it to holiday-makers.
5. Finally, the applicants allege that Article 1 of Protocol No. 1
has been violated since the applicants are no longer allowed to live
in a decent manner on their property where they have lived for a long
time and which they wish to continue exploiting.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 June 1986 and registered
on 30 June 1986.
On 4 March 1987 the Commission decided to invite the
Government to submit written observations on the admissibility and
merits of the application.
The Government's observations were, after an extension of the
time-limit, received by letter dated 18 June 1987 and the applicant's
observations in reply were dated 7 September 1987.
At the request of the Rapporteur the applicants submitted a
document by letter dated 22 October 1987.
SUBMISSIONS OF THE PARTIES
A. The Government
1. The facts
The Government observe that if an individual who applies for a
building permit submits that an exemption from a building plan is not
necessary for obtaining a building permit - alleging that the building
12258/86
will be erected in accordance with the plan - the decision of the
Building Committee can be appealed. Such an appeal should be made to
the County Administrative Board and ultimately to the Government.
However, no appeal lies in respect of a decision not to grant an
exemption from a building plan.
The reason why it is not allowed to make an appeal, as regards
decisions to refuse exemptions from building plans, is that the
suitability of the plan has once been decided upon when the plan was
confirmed. At that time it was possible to make an appeal against
that decision. It should not be possible to have the same issue
examined all over again every time an application for a building
permit, which implies an exemption from the building plan, is examined.
The present complaints to the Commission concern the decision
of the Building Committee of Höganäs to refuse an exemption from the
existing building plan. The new dwelling and the two garage buildings
would be located within the area of Flundrarp 12:1 which according to
the building plan is regarded as a natural park within which there
exists a prohibition to erect new buildings.
Accordingly, the issue is not whether the applicants shall be
allowed to build a new house on the property, but where upon the
property concerned the new houses shall be situated. In the plan
proposed in 1983-1984 the municipality offered the applicants four new
sites upon which buildings may be erected according to that plan.
They are located at the property within an area which the parties to
the estate approved upon in 1984. However, an adoption of the
proposed plan implies that they accept to contribute to the costs of
the municipality for altering the building plan and for sewerage and
water supply systems. The location of the new sites proposed by the
municipality is very close to what the applicants wish. They are
situated less than 200 meters from what was suggested in Bertil
Skärby's application for a building permit which was rejected on 24
March 1986. However, in the Building Committee's opinion the location
proposed in the plan is far better with regard to the landscape and
the general interest.
The applicants' allegation that the Superior Land Surveyor
(överlantmätaren) and the Architect of the County (länsarkitekten) in
1961 declared that the plan of 1962 would not be an obstacle to the
construction of new buildings is contested. It is most unlikely that
these two officials stated anything to this effect. This would imply
that they declared that the plan adopted should not be followed which
would be against the law.
2. The admissibility
2.1 In general
The Government have several objections as to the admissibility
of this application.
The estates of Maria and Christian Skärby are the owners of
the property concerned. These estates are claiming to be victims of a
violation of the Convention.
According to Swedish procedural law an estate of a deceased
person can bring an action before a court provided that all the
parties to the estate agree upon such a measure. This is because the
estate forms a legal person. A court order concerning the estate
is binding on the whole estate.
The power of attorney for Mr. Grennberg appended to the
application of 18 December 1986 has been signed by Mr. Bertil Skärby on
behalf of the estates of Christian and Maria Skärby. Bertil Skärby is
authorised to act on behalf of the estates according to a power of
attorney signed on 28 February 1969.
Since there seems to be disagreement between the parties
to the estates as to whether the development agreement proposed by the
municipality should be accepted or not and since the power of attorney
for Bertil Skärby was signed 18 years ago it would be appropriate to
ascertain that the complaints before the Commission are supported by
all parties to the estates of Maria and Christian Skärby.
If this is not the case the application should be declared
inadmissible ratione personae as far as the estates are concerned,
since the complaints cannot be brought before the Commission on behalf
of the estates if the complaints are supported only by certain parties
to the estates.
In this context it is noted that it was not the estates but
Bertil Skärby who applied for a building permit, which application was
rejected by the Building Committee in its decision of 24 March 1986.
The Government also maintain that the applicants have not
exhausted domestic remedies.
The decision of 24 March 1986 to refuse an exemption from the
building plan relates to the building plan which was confirmed by the
County Administrative Board in 1962. No appeal was lodged against
that decision by the Skärby family. Such an appeal could have been
lodged with the Government.
Nor has there been an appeal against the decision of 24 March
1986. It is true that an appeal cannot be lodged against the
decision as far as an exemption from the building plan is concerned.
However, it is possible to appeal against the decision claiming that an
exemption was not necessary for a certain reason or that the issue was
not handled properly for some reason. Appeals should be made to the
County Administrative Board and further to the Government or to the
Administrative Court of Appeal.
According to Section 108 of the Building Act the applicants
also have the possibility to turn directly to the County Administrative
Board requesting it to alter the plan in the way they wish provided
that they can prove that there is a need for an alteration of the plan
and that the municipality has failed in its duty in this regard. A
decision on such a request can be appealed to the Government. In the
present case such a request will probably be rejected but the possibility,
which has not been used by the applicants, forms a safeguard against a
municipality which fails in its duty towards the common interests as
well as the interests of individuals.
12258/86
The Government also submit that the applicants have prevented
a further examination of the matter by not accepting the development
agreement proposed by the municipality. If signed, this agreement
would not have entered into force until the alteration of the plan was
confirmed by a decision of the County Administrative Board. Against
such a decision an appeal could have been lodged and the plan thus
could have been examined with regard to general and individual
interests. The applicants could have claimed an extended right to
erect buildings or a possibility to build on other parts of the
property concerned. When examining such an appeal it rests upon the
County Administrative Board to consider whether the interests of the
individual have been taken into account to a reasonable extent. The
development agreement and its conditions could have been examined in
this context.
Even if the plan proposed had been confirmed, the applicants
had the possibility of having the fairness of the development
agreement examined by the general courts if they wished. Before a
general court they could have claimed that the agreement was not valid
because it must be considered unfair.
As regards the information which the applicants allege was
given by the Superior Land Surveyor (överlantmätaren) and by the
Architect for the County (länsarkitekten) the applicants seem to
submit that this information was a main reason for Christian Skärby
not to lodge an appeal against the plan decision of 1962. Assuming
that such information was given, which the Government contest, the
applicants could have requested the Supreme Administrative Court to
set a new time limit for an appeal against the decision of the County
Administrative Board so that an appeal against that decision could be
lodged (återställande av försutten tid). This they could have done as
soon as they realised that they had received false information. In
their submission to the Supreme Administrative Court they could have
stated that, due to that information, they had abstained from making
an appeal against the decision. This possibility has apparently never
been tried.
As far as the six months rule is concerned the Government
maintain that it is the decision of 1962 to confirm the building plan
which forms the basis for the restrictions made regarding construction
on the property. The decision of 24 March 1986 is only a logical
consequence of the plan decision of 1962. In reality the complaints
concern the decision of 1962 which is more than twenty years old.
This means that the six months rule has not been observed. Should the
Commission consider the decision of 1986 to refuse an exemption from
the plan as the final decision from which the six months period should
be calculated, the Government have no objection in this regard.
2.2 Article 6 of the Convention
The Government maintain that the complaints do not fall within
the scope of Article 6. This Article would only be applicable if the
case concerned a determination of the civil rights of the applicants.
12258/86
However, the issue is not whether the applicants should be
allowed to build another house on the property, but on what spot
within the property the houses (which they are allowed to build)
should be situated and whether they should be allowed to build an
increased number of houses without contributing to the municipality's
costs for planning, water supply and sewerage systems.
In the Government's view this question does not relate to a
civil right within the meaning of the Convention. The location of a
new building must be considered within an area regulated by other
considerations than purely legal views. A main issue is the effect on
the landscape caused by the building. Considerations in this regard
have been dominant in the present case. They can hardly be examined
by a court. In the Government's view considerations of this kind were
never meant to fall within the scope of the expression "civil rights".
This view is in line with the wording of the text and is also
supported by the travaux préparatoires to the Convention. The
Government refer to a decision of the Commission in a case against
Sweden (No. 10977/84, Dec. 1.7.85).
Planning is a matter which the inhabitants of a municipality
can influence by ordinary political means. That is why a plan is
originally adopted by a political body, namely the Building Committee
of the municipality. In the political debate a building plan can be
an issue of major importance.
The question whether Article 6 is applicable in a case like
the present one is of great importance to the Swedish Government. If
the provision is considered applicable in regard to decisions on
planning, the conditions for the whole Swedish system of planning
would be changed drastically.
The possibility of having decisions on planning examined by
courts is something quite alien to the system of planning. This
system is based on the idea that the municipality is responsible for
the use of land and the building activities within the municipality,
and that the state control of how the municipalities carry out their
obligations is exercised by the County Administrative Board and the
Government.
Before a plan is adopted, landowners and others concerned
are duly consulted and the proposed plan is exposed at a public
planning-exhibition in the municipality. Decisions on planning are
carried out speedily by the County Administrative Boards and the
Government, since such decisions often concern great economic
interests of public as well as private nature, and even short delays
can cause great losses. As a rule, such decisions also concern a
great number of persons. If those were granted the right to have
decisions on planning examined by a court in accordance with Article 6
of the Convention, which i.a. prescribes public hearings, such a
procedure would entail a great risk that the whole planning-procedure
would be delayed for a considerable time. Any such delay may lead to
serious consequences for the municipality, exploiters and others.
There is also an inherent risk that there may be those who would use
the possibility to go to court in order to delay planning-decisions
which they are not prepared to accept for political, ideological or
other reasons not relevant in this context.
The Government maintain that the complaints under Article 6
fall outside the scope of the Convention. The application should
therefore in this regard be declared inadmissible for being
incompatible ratione materiae with the provisions of the Convention.
2.3 Article 8 of the Convention
The Government maintain that the right to respect for a
person's private and family life, home and correspondence does not
include a right to a certain standard of a dwelling. The complaint in
this regard falls outside the scope of Article 8 and should be declared
inadmissible for being incompatible ratione materiae with the
Convention. In any event, this complaint is manifestly ill-founded.
2.4 Other Articles invoked
The Government submit that the complaints under Articles 17
and 18 of the Convention and Article 1 of the Protocol No. 1 to the
Convention are inadmissible for being manifestly ill-founded.
Reference is made to what is said below on the merits.
3. The merits
3.1 Article 6 of the Convention
If it is assumed that the decision of the County Administrative
Board to confirm the building plan of 1962 involves a determination of
civil rights and obligations the Government admit that there is no
possibility to have this decision examined by a court. As regards the
decision of the Building Committee of 24 March 1986 the Government
submit that there is a possibility to have issues regarding building
permits examined by a court to a certain extent.
The Government observe that officials who have taken part
in a decision which is considered unlawful are responsible for this
decision and they can be prosecuted for abuse of office or for
careless abuse of office according to the Penal Code (brottsbalken).
However, in this case the Government see no reason to question the
lawfulness of the decisions taken.
3.2 Article 1 of Protocol No. 1 to the Convention
In the Government's view this case does not concern a
categoric refusal to allow the applicants to build a new house on
their property. On the contrary, the Skärby family has been granted
extended rights to erect buildings. The present situation is caused by
the fact that certain members of the family are not prepared to accept
the development agreement, which is connected with an alteration of
the existing building plan. The conditions under this agreement
cannot be considered unreasonable.
The municipality's costs for planning the area amount to about
59.000 SEK. The agreement stipulates that the applicants should pay
30.000 SEK of these costs. Of this amount 10.000 SEK have already
been paid.
The costs for a municipal sewerage and water supply system
for the new plots planned amount to 20.000 SEK for the two plots in
the north west and to 125.000 SEK for the plot in the north east.
These sums should be paid by the applicants according to the agreement.
It is not unreasonable to require a person who intends to erect
buildings on his property to contribute to these kinds of costs. It is
not possible to let the municipalities themselves be answerable for
all these costs. Sewerage and water supply-systems must be provided
for all dwellings. Areas, covered by a building plan or a town plan,
are or will become densely populated, and for health and environment
reasons sewerage and water supply-systems must be provided jointly for
all estates within such an area. This is all in the interest of the
property owner and the inhabitants of the municipality.
The necessity of planning as regards housing has been
recognised in other cases before the Commission. The Government admit
that the system as such interferes with the rights of the individual
to peaceful enjoyment of his possessions.
However, a planning decision does not deprive anyone of his
property. It only limits a person's possibility to use his property
for example for building purposes. No other effect appears in this
case. The planning decision and the decision of 24 March 1986 are
both based on an Act enforced in order to control the use of property.
Thus, it is the second paragraph of Article 1 of Protocol No. 1 which
is applicable to the case.
It remains to examine whether a fair balance was struck
between the public interest and the protection of the individual's
rights.
The consideration underlying the plan decision and the
Building Committee's decision of 24 March 1986 is to preserve the
unique area as a natural resource for the future. This certainly is
an aim in the public interest.
The Government maintain that the interests of the individual
have been taken into account to a reasonable extent. The applicants
have not been totally refused permission to erect buildings on the
property. Instead they have been given this opportunity but on certain
conditions which they have refused to accept. These conditions cannot
be considered unfair. The location of the site according to the
proposed plan of 1983-1984 must be considered acceptable. The present
buildings on the property may be in a very bad condition. However,
nothing has prevented the applicants from repairing the buildings at
an earlier stage when this was still possible. The plan decision has
not prevented the owners therefrom.
When looking at the situation as a whole it may be observed
that the authorities have taken several measures in order to meet the
needs of the applicants, far beyond what they were obliged to do
according to the legislation in force. The decisions taken were
lawful and cannot be said to contravene the general principles of
international law.
The Government are of the opinion that there is no violation
of Article 1 of Protocol No. 1 and that the complaints are manifestly
ill-founded.
3.3 Articles 8, 17 and 18 of the Convention
Regarding Article 8 of the Convention the Government maintain
that the right to respect for private and family life does not apply
to the standard of a dwelling. The applicants have not been denied
the right to live on their property.
The Government fail to see how the use of public power in this
case can give rise to an allegation that Article 17 of the Convention
has been violated. The applicants allege that the local authorities
intended to create a situation which could make it possible for the
authorities to purchase the applicant's property at a low price in
order to sell it to holiday makers. Such a way of acting would
probably be regarded as an abuse of office. Any allegation in this
regard is contested.
The Government maintain that the complaints under Articles 17
and 18 are manifestly ill-founded.
4. Conclusions
The position of the Government in this case is
concerning the admissibility:
that the application should be declared inadmissible, partly
ratione personae, for failure to exhaust domestic remedies, for
failure to observe the six months rule laid down in Article 26 and,
as regards Articles 6 and 8, ratione materiae, and finally as regards
Articles 8, 17 and 18 of the Convention and Article 1 of Protocol No. 1
for being manifestly ill-founded, and
concerning the merits:
that there is no violation of the Convention as far as
Articles 8, 17 and 18 of the Convention and Article 1 of Protocol
No. 1 are concerned.
B. The applicants
1. The facts
The applicants recall that the legislation relevant to the
present case has changed practically every year. In the beginning
there were only a few regulations in the law concerning buildings
necessary for agriculture. This freedom has gradually been restricted
through legislation.
Partly as a result of the efforts of the family, the property
has become very beautiful and in 1958, when the municipality wished to
make a building plan for the area, the responsible architect wanted to
make a natural park of the area. Subsequently a new plan was exposed
in the local school and in that plan a large part of the land of
Flundrarp 12:1 was marked as a natural park. The Skärby family asked
the responsible local authorities about the legal significance of the
reservation of the land as a natural park because they wished in all
circumstances to be able to build on the property in order to satisfy
the needs of the family. The house in which they lived was not of
first quality since it had been constructed long ago and it was
envisaged at the time that the new construction should be carried out
in a not too distant future. However, the responsible local
authorities could not reply to this request but advised the family to
submit an enquiry to the County Administrative Board of Malmö. As a
result, in 1961, Mr. Christian Skärby, accompanied by his two children
Majken and Bertil, went by car to the County Administrative Board of
Malmö and they were received by the Superior Land Surveyor and by the
Architect of the County. These public officials declared clearly that
the plan would not be an obstacle to the construction of the houses
which the family might be in need of in the future, if the family did
not object to the plan proposed. It is submitted that the authorities
thus gave clear assurances that if the children were to construct a
new house on the territory marked "natural park" this would be
acceptable. As a result the family decided not to lodge an appeal
against the proposed plan. In 1968, after the death of Mr. Christian
Skärby, the children wanted to construct a new house and accordingly
asked for a preliminary decision from the municipality. It then
appeared that the previous promises and assurances did not have any
value and it was even questioned whether they had ever existed.
The applicants point out that it appears from the Government's
submissions as if the 1962 building plan pre-supposes a use of the part
of the property called natural park, similar to that envisaged for
land declared protected natural area. However, such a declaration of
a piece of land pre-supposes the payment of compensation for the
damage suffered by the proprietor and a declaration under Section 118
of the Building Act. Such a declaration has never been made.
It is true that the word natural park is not found anywhere in
the legislation. It may then be assumed that the intention of the
authorities at the time when this terminoloy was used was precisely what
was explained orally to the owners, i.e. the applicant's father, on
the occasion of his visit to the County Administrative Board for
further information. The applicants insist that the meeting in 1961
really took place and Mr. Skärby and Mrs. Skärby who were present at
the meeting could give evidence under oath.
In view of the extended right to construct for agricultural
properties at that time it appears that, as time has gone by, there
has been a transformation unfavourable to the applicants.
It is true that the municipality has proposed places for the
constructions. However, the applicants are of the opinion that these
places have been chosen precisely because the authorities knew that
they were unacceptable to the applicants. For instance the authorities
have proposed that the applicants should construct on the small court
yard between the present dwelling and the out-buildings which would
destroy the value of the said out-buildings.
The applicants allege that there has been a discrimination
between the applicants and the neighbour owners. In respect of a
property situated near to the applicants, the applicants point out
that the civil servant responsible for the questions of protection of
the nature had to decide on the use of the land. The land was owned
by a foundation and it was intended to construct a golf course and a
group of leisure houses as well as houses for permanent dwellings.
The civil servant who had to decide on the case received at the same
time from the foundation an amount of 57,000 SEK for private research
purposes. This development of the land was very controversial and
there was reason to suspect corruption. A Member of Parliament
brought a complaint and notified the Minister of Justice and the
fiscal authorities. This case has not yet been settled.
2. The admissibility
The applicants agree to introduce the present application
before the Commission. In support the applicants refer to a new
letter of authority dated 30 May 1986. The applicants also refer to a
declaration made by the three successors who have signed the
development agreement. They declare that they thought that this
agreement was the only possibility to change the blocked situation in
the negotiations with the municipality, even if they thereby had to
content themselves with what they considered to be an injustice.
As regards exhaustion of domestic remedies the Government have
argued that the applicants could have appealed against the decision of
1962 and then against the decision of 1986 and that they could request
a reinstatement in proceedings when they realised that the information
given by the authorities in 1961 was incorrect. Furthermore, the
Government maintain that the applicants could have requested an
amendment of the plan.
The reason why the applicants did not appeal against the
building plan of 1962 was that the plan as presented by the authorities
did not put any obstacles to the construction of houses to satisfy the
needs of the family.
The decision of 1986 was not revisable unless it was illegal.
Illegality could however not be seriously invoked and accordingly an
appeal was useless. A request for reinstatement in proceedings is not
counted as a domestic remedy under the general principles of
international law. Moreover, the Supreme Administrative Court has a
strict practice concerning such appeals to the effect that such a
remedy must anyway be regarded as ineffective.
As regards the possibility of requesting a change in the plan
this is precisely what the applicants have tried. The authorities
have made a new plan which was contrary to the applicants' wishes.
Furthermore, they requested the payment of 30,000 SEK for the plan.
The Government admit that an appeal against such a new plan would be
ineffective but they hold the opinion that it could nevertheless have
been tried. The ineffectiveness, which has been admitted, dispenses
the applicants from trying this remedy.
If it were admitted that there was a failure to exhaust
remedies in respect of the 1962 decision the applicants point out that
any such decision was only a preliminary decision in respect of the
applicants' request for a building permit which is the object of the
application.
In conclusion, the municipality has refused a dispensation from
the building plan and has rejected the request for a building permit.
As a result of the necessity of having a dispensation from the
building plan the possibilities of an appeal have been cut off. There
is no remedy against the decision of the Building Committee in this
respect. The applicants have therefore satisfied the conditions of
Article 26 of the Convention.
3. The merits
3.1 Article 6 of the Convention
The Government seem to admit that the Building Committee is
not to be regarded as a tribunal in Sweden. The case dealt with by
the Building Committee concerned a permission to construct a house
whose placement and details of construction were indicated in the
application.
It is evident that the use of such a house falls within the
private and civil sphere. Building activities are private and civil
activities. The applicants point out that the municipality's fees for
the planification and the water and sewage system were not at issue in
the case. The Government submit that the question of the location of
the new building must be considered to fall within an area regulated
by other considerations than purely legal views. They submit that the
main issue is the effect on the landscape caused by the building. The
applicants fully agree with the latter point. However, they find it
incomprehensible why this should be a reason to exclude the tribunals
from determining any disputes in that respect. The applicants
consider that this is a question which must be considered in the
context of the preamble to the Convention which speaks of the rule of
law, the opposite being arbitrariness and unlimited power given to
municipal civil servants. The rule of law means that the laws and
other regulations should be decided by an elected body but that they
should be applied by impartial and independent bodies.
This is well in line with the decision referred to by the
Government (No. 10977/84). The argument which the Government wish to
push forward in that decision loses much of its force in the present
case where the regulations are applicable and interpreted by a
municipality which itself engages in real estate business, and not
by the State as the supreme authority.
The applicants recall that the purpose of Article 6 of the
Convention has been clearly explained by the Court in a number of
cases, in particular the Golder case (Eur. Court H.R., Golder judgment
of 21 February 1975, Series A no. 18) and the Ringeisen case, (Eur.
Court H.R., Ringeisen judgment of 16 July 1971, Series A no. 13).
Moreover, in the Sporrong and Lönnroth judgment (Eur. Court H.R.
judgment of 23 September 1982, Series A no. 52) the Court stated that
it is of little consequence that the contestation (dispute) concerned
an administrative measure taken by the competent body and the exercise
of public authority.
The fact that a dispensation is legally possible weakens the
position of the Government. It is in the nature of things that a plan
cannot regulate everything. It is not in the nature of things that
such derogations should be given by a municipal committee of a
municipality which finds at the same time a financial interest
therein. It can thereby try to reduce the value of the property in
order to force an owner to sell his land to the municipality which, at
a later stage, can practically revaluate the land by lifting the
prohibitions. Accordingly, it is necessary to allow disputes in
relation to such dispensations to be determined by independent and
impartial bodies. Otherwise it would be possible to use a law so as
to remove the substance of the guarantees of Article 6 in situations
where one of the parties in the dispute is the State or a body on
which the State has conferred a privileged situation.
Consequently the applicants consider that the question whether
they should be permitted to build or prohibited from erecting a house
on a place chosen by them concerns a dispute regarding their civil
rights and obligations.
The Government also invoke the theoretical possibility
of introducing criminal proceedings against the responsible civil
servants in the municipality. The applicants cannot understand how
a tribunal could possibly find criminal the use by a democratically
elected body of political power regularly conferred on them by the
legislation.
Finally, the Government submit that it would be impractical if
a land-owner could have the possibility to have his rights examined by
a tribunal when it concerns planification. The applicants find the
reasoning astonishing. First, it is notorious that it is the State
and not the individuals who have the habit of delaying for the purpose
of depriving owners of their property. The applicants refer to the
case of Sporrong and Lönnroth. Secondly, Article 6 does not only give
the right to have the case heard by a tribunal but also to have the
case heard within a reasonable time. If the Government find it
appropriate to speed up the procedure concerning questions of
planification it would be simple to provide that the tribunals to
which one refers such cases should treat them rapidly with a minimum
of delay. The Government are well placed to introduce such a system
and they are also obliged to do so by the Convention, in particular,
since the Government find themselves that the delays are not
reasonable.
3.2 Article 1 of Protocol No. 1 to the Convention
The applicants accept the Government's submissions that there
has been no prohibition to construct on the property as such. However,
what has been proposed by the municipality has each time been unacceptable.
The exploitation agreement was unacceptable for a number of reasons,
inter alia the following:
The municipality proposes a take it or leave it solution where
all problems with for instance water and sewage have been solved. The
applicants, however, wish to have the freedom to choose although at
the same time respecting the requirements of the health care
authorities and concerning electricity but they wish to make the works
themselves. It is for instance clear that the sub-soil water is
acceptable and that no law in Sweden prohibits the construction and
use of wells. Only a few agriculturalists use the municipal water.
Moreover, it is excessive to give away to the municipality, land
necessary for the erection of a transformer and an adjacent parking
place.
Furthermore, the applicants cannot accept to construct a new
house on the court yard between the existing house and the out houses.
The applicants consider that the municipality has been
practising blackmail against them in order to get hold of their
property on which the municipality would wish to build holiday houses.
The Government admit that there has been an interference with
the applicants' right to the use and the peaceful enjoyment of their
possessions. However, the Government do not admit that the
planification involves a deprivation of their property. The applicants
disagree. They admit that it may appear from the judgment in the
Sporrong and Lönnroth case (loc. cit., p. 24, paras. 62 - 63) that it
may be a question only of reducing the possibility to use the possession
and that that is not a deprivation of property. However, such an
interpretation does not take due account of the realities of the
disputed situation. The interferences suffered by the applicants are
different in nature from those in the Sporrong and Lönnroth case.
The applicants find it natural that there is a regulation on
the use of their property for the purpose of maintaining the beauty of
the nature. They consider that they have proven that their own
actions also have this objective. They would even have been glad if
this aim had been pursued better in the region near to their land.
As regards the second paragraph of Article 1 of Protocol No. 1
the applicants recall that the word law presupposes a certain quality
of the law making it possible for a tribunal to apply it. It appears
from the Government's reply that they do not wish to regulate the use
of property by the introduction of laws but prefer to give such powers
of decision to the local elected bodies. This is not what the authors
of the Convention wanted when in the Preamble to the Convention they
reaffirmed their profound belief in the fundamental freedoms which are
the foundation of justice, and the rule of law. The rule of law is
not compatible with conferring such unlimited powers on local elected
bodies.
The Government consider that a fair balance has been
struck between the interest of the applicants and the general
interest. It is obvious that even if the Government find that the
municipality has abused its power they will not admit it before the
Commission.
In short the applicants submit that the Government and the
municipality have manifestly and abusively disrespected the
applicants' right to property. Whether the interference should be
characterised as a deprivation of property or as a regulation of its use
is not of great importance. In both cases the rule of law has not been
respected. The applicants consider that they have shown that there
has been no fair balance struck between the general interest and the
applicants' interest.
3.3 Article 8 of the Convention
The applicants' allegation under Article 8 of the Convention
is based on the fact that the authorities have put up insurmountable
obstacles against the efforts of the Skärby family to live together on
their own property and land as was the wish of old Mr. Skärby. There
is a disrespect for family life as protected by Article 8.
3.4 Article 17 of the Convention
In the present case this Article raises two issues. One is
based on the fact that it is the municipality which carries the
responsibilities for the violations suffered. The other issue relates
to the provision "aimed at .... their limitation to a greater extent
than is provided for in the Convention".
Disputes concerning civil rights and obligations must be heard
by a body having the quality of a tribunal. It appears that the
Government do not wish to respect this obligation. The Convention
does not provide for any limitation of this right which is necessary
to ensure the rule of law. To put the municipality in a position of
judge and party at the same time should be severely condemned by the
Commission since it has nothing to do with a true political democracy,
being contrary to the respect for human rights.
The applicants point out that there have been no efforts from
the side of the Swedish State to avoid the alleged violations.
3.5 Article 18 of the Convention
It is notorious in Sweden that several municipalities have the
habit of not doing any planification necessary to construct houses
except for land which has already been acquired by the municipality.
To buy at a low price and sell at a high price that is the normal aim
for every commercial activity. When it is practised by a municipality
with the help of public power such a commercial activity can only look
strange.
4. Conclusions
The applicants conclude that they have exhausted domestic
remedies in all circumstances in relation to the decision of 24 March
1986. They consider Article 6 of the Convention to be applicable,
since the case concerns a dispute decisive for the applicants' civil
rights and obligations. They also consider Article 8 of the
Convention to be applicable. The applicants conclude that there have
been violations of Articles 6, 8, 17 and 18 of the Convention and of
Protocol No. 1.
THE LAW
1. The applicants allege that their right to the peaceful
enjoyment of their property has been restricted in a way contrary to
Article 1 of Protocol No. 1 (P1-1) to the Convention, and that they
have, contrary to Article 6 para. 1 (Art. 6-1) of the Convention, not
had access to a tribunal to examine the dispute as to whether they
should be granted a building permit. The applicants also invoke
Articles 8, 17 and 18 (Art. 8, 17, 18) of the Convention.
The Government express doubts as to whether all the parties to
the applicant estates support the application to the Commission and
submit that, if this was not the case, the application should be
declared inadmissible as being incompatible ratione persone with the
provisions of the Convention.
In their written observations the applicants have submitted a
new power of attorney and an explanatory note from those three parties
to the estates who had signed the development agreement with the
municipality.
In the light of these documents, which have been notified to
the Government, the Commission now finds that there is no reason to
reject the application for being incompatible with the Convention on
the ground invoked by the Government in their earlier submissions.
2. The Government submit that the applicants have failed to
exhaust domestic remedies as required under Article 26 (Art. 26) of the
Convention. They refer to the fact that the applicants did not appeal
against the building plan which was adopted in 1962. They also submit
that if the applicants have failed to appeal against that plan as a
result of incorrect information allegedly given by the authorities
they could have asked for the time-limit for an appeal to be restored.
The Government also submit that the applicants could ask the County
Administrative Board to alter the building plan. They further
maintain that the applicants have themselves prevented a further
examination of the matter since they have not accepted the development
agreement proposed by the municipality. Finally, the Government submit
that the applicants have not appealed against the decision of the
Building Committee of 24 March 1986.
The Commission notes that the application is not directed
against the adoption of the building plan in 1962, but against the
decision of the Building Committee of 24 March 1986 refusing the
applicants' request for a building permit. The remedies referred to
by the Government with regard to the building plan and the development
agreement cannot be considered as remedies against this decision.
The only submission of non-exhaustion which remains to be
examined is the allegation that the applicants could have appealed
against the decision of the Building Committee to the County
Administrative Board, had they considered that an exemption from the
building plan was not necessary or that the issue had not been
properly handled. The Government admit that no appeal lies against
the decision insofar as it relates to the refusal to grant an
exemption from the building plan. However, the applicants do not make
any submission to the effect that the application for a building
permit was incorrectly dealt with or that an exemption from the
building plan was unnecessary. The applicants appear to admit that
such an exemption was required.
In these circumstances, the Commission cannot find that there
was an effective remedy which the applicants failed to exercise. It
follows that the application cannot be rejected for non-exhaustion of
domestic remedies.
3. The applicants complain that the restriction of their right to use
their property violates Article 1 of Protocol No. 1 (P1-1) to the Convention.
Article 1 of Protocol No. 1 (Art. P1-1) 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 considers that the refusal of a building permit
may, in the circumstances of the present case, be regarded as an
interference with the applicants' right to the peaceful enjoyment of
their possessions as guaranteed by Article 1 of Protocol No. 1 (P1-1).
The Commission considers that the applicants were not
"deprived" of their property within the meaning of the second sentence
of the first paragraph of Article 1(Art. 1). The interference falls
to be considered under the second paragraph of Article 1 of Protocol
No. 1 (P1-1) as being a measure to "control the use of property".
Consequently, the Commission must examine whether the
interference with the applicants' right to the peaceful enjoyment of
possessions was justified under the second paragraph of Article 1 of
Protocol No.1 (P1-1). This means that it must consider whether the
refused building permit was "necessary to control the use of property
in accordance with the general interest". The task of the Convention
organs in this context is to supervise the lawfulness, purpose and
proportionality of the decisions taken by the domestic authorities
(cf. e.g. No. 10378/83, Dec. 7.12.83, D.R. 35 p. 235). The question
of proportionality requires a determination as to whether there was a
reasonable relationship between the means employed and the aim sought
to be realised or, in other words, whether a fair balance has been
struck between the demands of the general interest and the interest of
the individual. In determining whether a fair balance exists, the
Contracting State enjoys a wide margin of appreciation with regard
both to choosing means of enforcement and to ascertaining whether the
consequences of enforcement are justified in the general interest for
the purpose of achieving the object of the measure in question (Eur.
Court H.R., Agosi judgment of 24 October 1986, Series A no. 108, p.
18, para. 52).
The Commission finds that the Building Act was a law enforced
in the general interest. It is satisfied that the refusal of the
building permit had a basis in Swedish law and therefore finds that
the decision was lawful.
As to the "general interest" pursued by the refusal of the
building permit, the Commission notes that the purpose was to refuse
construction of buildings in conflict with a building plan, which did
not envisage buildings in the places proposed by the applicants. The
buildings proposed would have been situated in an area which in the
plan was reserved as a natural park. The Commission is satisfied that
the interests which were thus pursued by the decision refusing the
building permit served the "general interest".
As regards the proportionality between the interference with
the applicants' property rights and the general interest pursued, the
Commission recalls the following.
The right to construct new buildings on the applicants'
property is regulated in the Building Act and the Building Ordinance
as well as by the building plans which were adopted in 1962 and 1964.
Under Swedish law the applicants would have a right to build on their
property provided that the proposed construction did not run counter
to any confirmed plan and that it satisfied technical demands on
construction.
However, the constructions proposed by the applicants did not
comply with the building plans adopted for the area. Consequently,
the applicants do not under Swedish law have any right to construct
the buildings proposed in their application for a building permit.
They could only obtain such a right if the Building Committee
exercised its discretion and granted an exemption from the building
plan. However, the Building Committee has refused such an exemption.
The Commission further observes that the restriction on the
applicants' property derives from the adoption of the building plan in
1962, i.e. more than 20 years ago. The Commission is not called upon
to examine the suitability of the building plans adopted in 1962 and
1964, nor whether or not the applicants, at the time, were correctly
informed about the implication of the said plans.
The Commission, moreover, recalls that the building regulations
presently in force for the applicants' different properties do not
totally prevent the applicants from constructing new buildings, but
the possibilities of construction are severely limited.
In 1983 to 1984 a new building plan was proposed by the
municipality at the request of the applicants. The adoption of the
proposed new plan was dependent on whether the applicants were
prepared to accept a development agreement proposed by the
municipality. The applicants have in detail explained the reasons why
they consider that the development agreement was unacceptable to them.
The Commission notes these reasons, but it also notes that the
authorities have made certain proposals to meet the applicants'
wishes. The applicants' wish to maintain and improve their property
which has been in the hands of the family for a long time must be
considered as legitimate and relevant.
Nevertheless, in view of the wide margin of appreciation
enjoyed by the Contracting States in this area, the Commission finds
that the Building Committee's decision to refuse a building permit for
the specific constructions proposed in the applicants' request for
such a permit cannot be considered to be disproportionate to its
legitimate purpose. Consequently, the interference with the
applicants' right to the peaceful enjoyment of their possessions was
justified under the terms of the second paragraph of Article 1 of
Protocol No. 1 (P1-1).
It follows that in this respect the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
4. The applicants also allege a violation of Article 6 (Art. 6)
of the Convention since they cannot have the question of an exemption
from the building plan examined by an impartial tribunal.
Article 6 para. 1 (Art. 6-1) first sentence reads as follows:
"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 Government submit that the decisions relating to the
planning of the building activities and the decision of the Building
Committee of 24 March 1986 did not involve any determination of a
dispute which related to the applicants' "civil rights" within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention. They argue
that this part of the application is therefore inadmissible as being
incompatible ratione materiae with the provisions of the Convention.
In case the Commission finds that the complaint is not incompatible
with the Convention, the Government admit that there is no possibility
for the applicants to have the building plan of 1962 examined by a
court. As regards the decision of the Building Committee of 24 March
1986 they submit that issues regarding building permits can be
examined by a court to a certain extent.
The main issues to be determined under Article 6 para. 1
(Art. 6-1) are whether the decision of the Building Committee of 24
March 1986 was decisive for the applicants' "civil rights" and, if so,
whether the applicants had at their disposal a procedure satisfying
the requirements of this provision in regard to that decision.
The Commission has made a preliminary examination of these
issues in the light of the parties' submissions. It considers that
these issues raise questions of fact and law which are of such an
important and complex nature that their determination requires an
examination of the merits. The complaint under Article 6 (Art. 6)
must therefore be declared admissible, no other ground for declaring
it inadmissible having been established.
5. The applicants also allege a violation of Article 8 (Art. 8)
of the Convention, which inter alia protects the right to respect for
private life, family life and home. The applicants submit that this
provision has been violated as a result of the insurmountable
obstacles raised by the authorities against the applicants living
together on their property.
The Government submit that this complaint is incompatible
ratione materiae with the provisions of the Convention or manifestly
ill-founded.
The Commission considers that the applicant estates cannot in
the circumstances of the present case invoke Article 8 (Art. 8) of the
Convention. In this respect the application is incompatible ratione
personae with the provisions of the Convention.
Insofar as this complaint is brought by the individual
applicants as natural persons, Article 8 (Art. 8) can be invoked.
However the Commission refers to its reasoning under Article 1 of
Protocol No. 1 (P1-1) above. It finds that the Building Committee's
refusal of a building permit cannot be considered as an interference
with the said applicants' right to respect for their private life,
family life or their home within the meaning of Article 8 (Art. 8) of
the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27) of the
Convention.
6. The applicants have also invoked Articles 17 and 18 (Art. 17,
18) of the Convention.
However, the Commission finds no separate issues under these
Articles.
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.
For these reasons, the Commission
DECLARES ADMISSIBLE, without prejudging the merits, the
applicants' complaint that they did not have available a
procedure satisfying Article 6 para. 1 of the Convention in
relation to the Building Committee's decision of 24 March 1986;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRUGER) (C. A. NØRGAARD)