AS TO THE ADMISSIBILITY OF
Application No. 25023/94
by STIFTELSEN ANURAG SAGAR
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 28 February 1996, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, 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 11 April 1994 by
STIFTELSEN ANURAG SAGAR against Sweden and registered on 30 August 1994
under file No. 25023/94;
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 applicant is a foundation established in Stockholm. Before
the Commission it is represented by a member of its board,
Mr. Håkan Berggren.
a. The particular circumstances of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 8 April 1993 the Road Administration of the Central Region
(Vägverket, Region Mitt) adopted a working-plan (arbetsplan) for the
reconstruction of the public road no. 310 between Västbacka and Los.
It was approved on 1 June 1993 by the County Administrative Board
(Länsstyrelsen) of the County of Gävleborg. It was later submitted to
the National Road Administration (Vägverket) for approval in accordance
with Section 18 of the Public Roads Act (Väglagen, 1971:948).
The applicant foundation claimed that the road project unduly
encroached upon one of its properties. However, by decision of
19 July 1993, the National Road Administration approved the working-
plan. It considered that the proposed reconstruction achieved the
purpose of the road with the least possible interference and
inconvenience and without unreasonable costs, as required by Section
13 of the Public Roads Act.
The applicant foundation appealed to the Government, claiming
that there was no need to reconstruct the road, that the project unduly
encroached upon its property, that the reconstructed road was
unsuitable for road safety reasons and that it would cause noise.
On 24 March 1994 the Government, agreeing with the findings of
the National Road Administration, upheld its decision.
Apparently, the applicant foundation did not apply to the Supreme
Administrative Court (Regeringsrätten) for a review of the Government's
decision under the Act on Judicial Review of Certain Administrative
Decisions (Lagen om rättsprövning av vissa förvaltningsbeslut, 1988:205
- "the 1988 Act").
b. Relevant domestic law
Section 13 of the Public Roads Act provides the following:
(translation)
"When constructing a road it shall be ensured that the road
is located and designed so as to achieve the purpose of the
road with the least possible interference and inconvenience
and without unreasonable costs."
Section 18 of the Public Roads Act states that a working-plan
concerning the construction of a road is to be approved by the National
Road Administration. Its decisions may be appealed to the Government.
The Public Roads Act does not contain any provision providing for
the possibility to appeal to a court. However, under the 1988 Act, the
Supreme Administrative Court (Regeringsrätten) has jurisdiction in
certain administrative cases. Section 1 of this Act provides the
following:
(translation)
"At the request of a private party in such administrative
proceedings before the Government or an administrative
authority as pertain to any situation envisaged by Chapter
8, Sections 2 and 3, of the Instrument of Government, the
Supreme Administrative Court shall review whether the
decision in the case is contrary to any legal rule in a
manner indicated by the requesting party or otherwise
apparent from the circumstances of the case.
Judicial review may pertain only to such decisions as
- imply exercise of public authority in relation to a
private subject,
- may not otherwise be reviewed by a court except upon a
request for relief for substantive defects, and
- could not otherwise be subject to review."
According to the travaux préparatoires to the Act, the Supreme
Administrative Court's examination should concentrate on the lawfulness
of the challenged decisions, but the Court also has the power to re-
examine the facts upon which the application of the law has been based.
Furthermore, the Court should examine whether the challenged decision
is compatible with the principles of objectivity, impartiality and
equality before the law. In addition, it should examine whether there
have been any procedural errors which might have affected the outcome
of the case. If the relevant law leaves a certain discretion to the
deciding authority to make a choice between different options, all of
which must be considered lawful, the Court should examine whether the
challenged decision falls within that discretion (cf. Government Bill
1987/88:69, pp. 23-25 and 234). When examining the Government Bill, the
Council of Legislation (Lagrådet) stated that the examination of the
lawfulness of an administrative decision in some cases must include an
assessment of whether the prescribed balance of interests has been
appropriately observed.
The Supreme Administrative Court has, under the 1988 Act,
reviewed several Government decisions concerning the approval of
working-plans for road constructions (cf., e.g., Regeringsrättens
årsbok, RÅ 1990 not 176 and RÅ 1993 not 168, and the Court's judgment
of 30 May 1995 in case no. 2060-1994). In case no. 2060-1994, the Court
held an oral hearing before delivering its judgment.
COMPLAINT
Invoking Article 6 para. 1 of the Convention and Article 1 of
Protocol No. 1 to the Convention, the applicant foundation claims that
it did not have a determination by a court of the decisions concerning
the approval of the working-plan and that it was denied an oral
hearing.
THE LAW
The applicant foundation complains that it did not have access
to court and that it was not given an oral hearing. The Commission
finds that the complaint falls to be considered under Article 6 para.
1 (Art. 6-1) of the Convention which, in relevant parts, reads as
follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing ... by [a] ...
tribunal ..."
The Commission notes that the applicant foundation did not attack
the decision of the Government by requesting judicial review under the
1988 Act on Judicial Review of Certain Administrative Decisions. It
appears from the case-law of the Supreme Administrative Court that that
Court has considered itself competent under the 1988 Act to review
Government decisions concerning the approval of working-plans for road
constructions and that in at least one case it has held an oral
hearing. It would thus have been possible for the applicant foundation
to obtain such a review by the Supreme Administrative Court and to
request an oral hearing. In assessing whether the scope of this review
would have been sufficient to satisfy the requirements of Article 6
para. 1 (Art. 6-1) of the Convention, the Commission notes that the
applicant foundation claimed that the road project was unnecessary and
unsuitable and that it unduly encroached upon its interests as property
owner. An application by the applicant foundation for judicial review
based on these elements could have been examined by the Supreme
Administrative Court under Section 13 of the Public Roads Act. Thus,
in the circumstances of the present case, the Commission finds no
reason to believe that the Supreme Administrative Court, in examining
an application by the applicant foundation for judicial review, would
have had to decline jurisdiction (cf. No. 18660/91, Bengtsson v.
Sweden, Dec. 7.12.94, D.R. 79-A, p. 11).
In these circumstances the Commission finds that the applicant
foundation could have obtained a court determination fulfilling the
requirements of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that 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 Acting President
to the Second Chamber of the Second Chamber
(M.-T. SCHOEPFER) (G.H. THUNE)
Full & Egal Universal Law Academy