EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 10537/83
Väinö USKELA
against
SWEDEN
REPORT OF THE COMMISSION
(adopted on 16 July 1987)
TABLE OF CONTENTS
page
I. INTRODUCTION (paras. 1-14) ......................... 1
A. The application
(paras. 2-4) ................................... 1
B. The proceedings
(paras. 5-10) .................................... 1
C. The present Report
(paras. 11-14) ..................................... 2
II. ESTABLISHMENT OF THE FACTS (paras. 15-31) ........... 4
A. The particular circumstances of the case
(paras. 15-28) ..................................... 4
a. Proceedings relating to the issue of the
expropriation permit
(paras. 16-21) ................................. 4
b. Proceedings relating to the determination
of the terms of the expropriation
(paras. 22-24) ................................. 6
c. The transfer of the ownership of the property
(paras. 25-28) ................................. 7
B. Relevant domestic law
(paras. 29-31) ..................................... 8
III. SUBMISSIONS OF THE PARTIES (paras. 32-44) ........... 10
A. The applicant
(paras. 33-38) .................................... 10
B. The Government
(paras. 39-44) .................................... 13
IV. OPINION OF THE COMMISSION (paras. 45-75) ........... 17
A. Points at issue
(para. 45-51) ..................................... 17
B. Article 6 of the Convention
(paras. 52-65) .................................... 18
a. As to the applicability of Article 6
para. 1 of the Convention (paras. 52-57)....18
b. As to the compliance with Article 6 para. 1
of the Convention
(paras. 58-65) .............................18
C. Article 1 of Protocol No. 1 (paras. 66-74).........19
D. Recapitulation
(para. 75) ........................................21
CONCURRING OPINION BY MR. FROWEIN, joined by
MM. TRECHSEL, WEITZEL, SOYER, BATLINER and Sir Basil HALL...22
APPENDIX I HISTORY OF THE PROCEEDINGS ..................23
APPENDIX II DECISION AS TO THE ADMISSIBILITY ............25
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant, Mr. Väinö Uskela, is a Swedish citizen born in
1904 and resident at Johanneshov. He is an artist by profession. He
was up to 23 August 1986 represented before the Commission by Mr.
Peter Nobel, a lawyer practising at Uppsala. As from 23 August 1986,
the applicant is represented by Mr. Gunnar Ljungman, a lawyer
practising at Uppsala.
3. The Government are represented by their Agent, Mr. Hans
Corell, Ambassador, Under-Secretary at the Ministry for Foreign
Affairs, Stockholm.
4. The case relates to an expropriation permit regarding the
applicant's real estate. The applicant complains that he was deprived
of his property in breach of Article 1 of Protocol No. 1 and that he
had no possibility of having the dispute relating to the issuing of
the expropriation permit examined by a tribunal satisfying the
conditions of Article 6 para. 1 of the Convention.
B. The proceedings
5. The application was introduced on 11 May 1983 and registered
on 19 August 1983. On 7 December 1983 the Commission decided, in
accordance with Rule 42, para. 2, sub-para. b of its Rules of
Procedure, to give notice of the application to the respondent
Government and to invite them to present before 25 February 1984 their
observations in writing on the admissibility and merits of the
complaint under Article 6 para. 1 of the Convention.
The Government's observations were dated 23 February 1984 and
the applicant's observations in reply were dated 29 March 1984.
On 3 October 1984 the Commission, after an examination of the
admissibility of the application, decided to invite the Government to
submit, before 30 November 1984, further observations on the
admissibility and merits of the complaint under Article 6 of the
Convention.
The Government's observations were dated 29 November 1984 and
the applicant's observations in reply were dated 14 January 1985.
On 6 March 1985 the Commission decided to invite the
Government to submit, before 26 April 1985, supplementary observations
on the admissibility and merits of the complaint under Article 1 of
Protocol No. 1.
The Government's observations were dated 23 April 1985 and the
applicant's observations in reply were dated 12 June 1985.
6. On 10 October 1985 the Commission decided to declare
inadmissible the applicant's complaint that the expropriation permit
as such was a violation of Article 1 of Protocol No. 1. The remainder
of the application was declared admissible (1).
7. The parties were then invited to submit any additional
observations on the merits of the application which they wished to
make.
The applicant submitted further observations by letter of 14
February 1986 and the Government submitted observations on 21 March
1986. These observations were transmitted to the other party for
information.
8. On 10 May and 11 October 1986 the Commission considered the
state of proceedings of the case. On 3 March 1987 the Commission
deliberated on the merits of the case and, on 7 and 8 July 1987, it
again deliberated on the merits and took the final votes in the case.
9. Legal aid under the Addendum to the Commission's Rules of
Procedure was granted to the applicant on 18 May 1984.
10. After declaring the case admissible the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. In the light of the parties' reactions the Commission
now finds that there is no basis on which a friendly settlement can be
effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:
MM. C. A. NØRGAARD
G. SPERDUTI
J. A. FROWEIN
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
__________________
(1) See decision on admissibility, Appendix II.
The text of the Report was adopted by the Commission on
16 July 1987 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 para. 1
of the Convention, is
(1) to establish the facts, and
(2) to state an opinion as to whether the facts found disclose
a breach by the Government of their obligations
under the Convention.
13. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application forms Appendix II.
14. The full text of the parties' submissions, together with
the documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
15. The applicant had a leasehold (tomträtt) on a site and on the
building erected thereon which was named Lärarinnan 4 in the real
estate register. The 1981 assessment value of the property for tax
purposes (taxeringsvärde) was 270,000 Swedish Crowns, of which 130,000
related to the building on the property. The building has 12 flats.
The applicant's property has been subject to expropriation
proceedings and the ownership to the property has changed during the
time in question. In the following the facts are set out under three
different headings, the first relating to the proceedings leading to
the issue of the expropriation permit, the second relating to the
proceedings concerning the terms of the expropriation and the third
relating to the transfer of the ownership.
a. Proceedings relating to the issue of the
expropriation permit
16. On 13 March 1980 the Building Committee (byggnadsnämnden)
ordered, pursuant to Section 16 of the Act on Penalties and
Interventions in Cases of Illegal Constructions etc. (lagen om
påföljder och ingripanden vid olovligt byggande m.m.), that the
applicant should, at the latest on 30 May 1980, have taken certain
measures indicated in a statement of the Building Permits Office
(byggnadslovsbyrån), in order to restore the property to an acceptable
level.
The statement of the Building Permits Office referred to was
dated 4 March 1980. It reads inter alia as follows:
"On 26 June 1979 the Property Committee (fastighetsnämnden)
decided to ask the Property Office (fastighetskontoret)
'to request the Building Committee to take necessary
measures under the Building Ordinance (byggnadsstadgan) and
the Act on Penalties and Interventions in Cases of Illegal
Constructions etc. with the aim of avoiding sanitary
inconveniences, mismanagement, disfigurement etc. on the
leaseholder's right to Lärarinnan 4.
The background to this decision is numerous complaints from
persons living in the neighbourhood, tenants associations
and political organisations that the property is neglected
and that some flats are not used for dwelling purposes.
Such complaints have also been submitted to the health care
authorities and to the Building Committee'.
The property is very neglected.
The following measures must be taken on the property in order
that its state can be considered to be such as prescribed
by Section 50 of the Building Ordinance:
1. The roof must be repaired.
2. The system of outflow of water on the roof must be
repaired.
3. Broken windows must be replaced.
4. Damaged plaster must be taken away and the facade be
re-plastered.
For the garden to be in such state as prescribed by
Section 53 of the Building Ordinance, all rubbish must be
removed.
The owner of the property has been invited in writing
to submit an opinion and a proposal for measures to be taken
in order to remedy the deficiencies. In the reply it is said
that the garden has been tidied up and that the plaster works
will be started this spring. However, in the garden there is
still a stack of demolition timber and the like."
The applicant received the order from the Building Committee
on 14 May 1980. He did not comply with the order.
The applicant could have appealed against the order to the
County Administrative Board (länsstyrelsen). The time-limit for
appeal was three weeks. The applicant did appeal against the order,
but out of time. On 31 July 1980 the County Administrative Board of
Stockholm rejected the appeal for being out of time.
17. In June 1980 the municipality of Stockholm applied to the
Government for a permit to expropriate the applicant's property.
After obtaining the opinion of the County Administrative Board of
Stockholm and of the applicant, the Government decided to grant the
requested permit to expropriate. The Government's decision, which was
dated 12 November 1981, reads inter alia as follows:
"The municipality has, in support of its application, inter
alia referred to the fact that the property has for a long
time been the subject of the municipality's attention since
the building which is erected on the property is gravely run
down and in essence not inhabited. The building has three
storeys and is said to have twelve flats of which one or
possibly two are used by (the applicant). The other flats
have not, according to the municipality, been in use for a
long time. The outer area gives the impression of deficient
maintenance with broken windows, plaster falling off, untidy
garden etc. According to the municipality the property is a
very disturbing element in the housing environment. (The
applicant) has been ordered by the Building Committee under
threat of a fine to restore the property to an acceptable
level.
On the basis of the investigation it is established
that the property is neglected. (The applicant) has not
complied with the order of restoring the building and the
garden. The Government consider that (the applicant) has
shown a clear lack of interest and ability to keep the
property in order. In the Government's opinion the facts are
such that grave neglect is feared. The application should
therefore be granted.
Pursuant to Chapter 2 Section 7 of the Expropriation
Act, the Government grant the municipality of Stockholm a
permit to expropriate (the property). The matter of
expropriation should be pursued at the latest on 12 November
1982 by a summons before the court."
18. The applicant maintains that the Government's decision was
based on investigations made by the County Administrative Board
and on an application by the municipality of Stockholm, which are both
alleged to be wrong and misleading.
19. By letters of 5 March and 5 April 1982 the applicant
requested the Government to reconsider their decision in view of new
circumstances. He indicated that on 21 January 1982 he had sold the
property to a person, who intended to restore it immediately. There
were no tenants in the building any more, the only person who lived
there being the applicant.
By decision of 15 April 1982 the Government rejected the
request stating that the matter had been finally decided on
12 November 1981.
20. The applicant then applied to the Supreme Administrative Court
(regeringsrätten) for reopening of the matter (resning). This request
was refused by a decision of 16 November 1982.
21. The applicant has also complained to the Standing Constitutional
Committee of the Parliament (riksdagens konstitutionsutskott), and to the
Chancellor of Justice (justitiekanslern), but without success.
b. Proceedings relating to the determination
of the terms of the expropriation
22. On 22 January 1982 the municipality of Stockholm applied for
a summons of the applicant before the Real Estate Court
(fastighetsdomstolen) of the Stockholm District Court (tingsrätt) in
order to have the compensation terms for the expropriation determined.
The municipality also requested an advance transfer of the ownership.
23. On 2 July 1982 the Stockholm District Court, after having
inspected the property, refused the request for advance transfer
stating the following:
"The Court has observed the following at the inspection.
There is nothing remarkable to note as regards the roof.
One chimney needed repair or rebuilding. The walls of the
building needed replastering badly. The plaster had fallen
off in certain places, but these parts of the walls did not
show any considerable damage. Some window panes were
missing and had been replaced by boards. In some balconies
the girders had rusted and the surface was cracked. Windows
and door-frames needed painting. The apartments were in need
of total repair. In those parts of the building that were
not heated, the water had been drained off.
From what could be seen at this inspection, the building is
in great need of repair, but this need does not call for an
advance transfer of ownership to the municipality before the
Court has ruled on all the issues of this case.
The request for advance transfer of ownership cannot
therefore be granted."
24. Subsequently the municipality, after deciding not to pursue
the expropriation in view of the change of owner, withdrew its
application before the Real Estate Court which, on 24 November 1986,
struck the case off its list.
The municipality's decision to withdraw its action before the
Court was based inter alia on a report on an investigation by the
Property Office, dated 28 April 1986, submitted to the Property
Committee. From this report it appears that the property had been
partly restored during 1982. Thus, the facade and one of the
staircases with six flats had been restored and the cellar had been
partly restored. In the report it was estimated that the remaining
restoration of the property would cost roughly 1 - 1.5 million Swedish
crowns.
c. The transfer of the ownership of the property
25. On 21 January 1982 the applicant sold his leaseholder's right
for 850,000 Swedish Crowns. The buyer Mr. S, obtained a preliminary
registration (vilande lagfart) of the acquisition. A condition for
acquiring a property for tenancy purposes is that the buyer obtains a
permit from the Rent Board (hyresnämnden) to purchase the property .
The rules are laid down in the Act on the Acquisition of Property for
Tenancy Purposes (lagen om förvärv av hyresfastighet). Mr. S submitted
an application for such a permit, but he later withdrew his
application, and the purchase thereby became void.
The property was then sold by the applicant to a flat-
owners' association (bostadsrättsförening) on the same conditions as
had previously been agreed with Mr. S.
This sale was considered under the Act on the Acquisition of
Property for Tenancy Purposes by the Rent Board and, upon appeal, by
the House and Tenancy Court (bostadsdomstolen), which on 1 November
1984 did not approve the sale. The sale thus became void.
26. In the meantime, on 19 November 1982, the flat-owners'
association had obtained a loan of one million SEK. Security for
the loan was given by way of a mortgage on the leasehold.
The loan was not duly paid and the creditors instituted
litigation against the applicant requesting that the loan, including
interest and costs, be paid from the applicant's property.
This claim was granted by the District Court of Stockholm on
27 December 1983 and its decision was confirmed by the Svea Court of
Appeal (Svea hovrätt) on 28 June 1984. On 19 February 1985 the
Supreme Court (högsta domstolen) refused to grant leave to appeal.
The applicant's petition for re-opening of the proceedings was
rejected by the Supreme Court on 30 August 1985.
27. As a result the applicant's property was sold by the
Enforcement Office (kronofogdemyndigheten) at a public auction on
4 February 1986 to a building company for 1,841,OOO SEK. Before the
public auction the Enforcement Office had requested from an
independent company an assessment of the value of the property. The
assessment resulted in a value of 1,300,000 SEK.
The applicant appealed against the public auction. The appeal
was rejected by the Court of Appeal on 4 March 1986. Subsequently, the
auction acquired legal force.
The distribution to creditors took place on 5 March 1986. The
applicant did not receive any money.
28. On 7 April 1986 the purchase-deed was issued and on
10 April 1986 the applicant was evicted from the property by the
Enforcement Office.
B. Relevant domestic law
29. The legislation applicable in the applicant's case is the 1972
Expropriation Act (expropriationslagen). Under this Act,
expropriation is carried out in two stages. In the first stage the
Government - with some exceptions - decide whether expropriation
should be authorised. If expropriation is to take place, an
expropriation permit is issued. The Government's decision is final. A
decision to grant an expropriation permit does not automatically lead
to expropriation. It entitles the holder of the permit to continue to
the second stage, i.e. to institute expropriation proceedings before
the Real Estate Court. An expropriation permit shall indicate the
latest date at which the applicant, normally a municipality, has to
bring the case to the Real Estate Court for settlement, inter alia,
of the transfer date and the compensation. The expropriation is
completed when the compensation has been fixed and paid. The Real
Estate Court cannot review the expropriation permit as such. A
decision by the Real Estate Court can be appealed to the Court of
Appeal and from there to the Supreme Court.
30. Under the Expropriation Act, expropriation permits may be
obtained by municipalities for various reasons. Under Chapter 2,
Section 7, permits may be granted for properties suffering from gross
neglect. This section reads:
(Swedish)
"Expropriation får ske för att försätta eller hålla fastighet
i tillfredsställande skick, när grov vanvård föreligger eller
kan befaras uppkomma."
(English)
"Expropriation may be granted, for the purpose of restoring
the property to a satisfactory condition or of maintaining
it in such a condition, when the property is gravely
neglected or there is a risk of such neglect."
When interpreting the condition "gravely neglected", guidance
can be found in the Government's proposal of 1970 for amendments of
the 1917 Act on Expropriation, where it is stated that neglect of
buildings for tenancy purposes affects mainly the tenants. Therefore,
it was considered important that actions could be taken at such an
early stage as to prevent undue difficulties arising for the tenants.
Thus, it was thought that expropriation should be possible, not only
when gross neglect is apparent, but also when there are firm reasons
to believe that a building may be neglected in the future.
In the legislative procedure the problems of assessing the
condition were also discussed. It was noted that the evidence
needed could vary from case to case. One factor, which would
constitute a reason for expropriation, could be that the owner had not
complied with orders to maintain his property. Another could be that
there was evidence that the owner systematically neglected his
property. A sufficient reason for expropriation is that the owner has
shown a lack of interest in or capability of maintaining his property.
There must thus be evidence of defects on the property, as well as a
lack of interest on the part of the owner in maintaining the property.
31. Expropriation may not be granted if the purpose can be
appropriately achieved in some other way or if the general or individual
disadvantages of the expropriation prevail over the advantages which can
be gained from such an action (Chapter 2, Section 12 of the
Expropriation Act).
III. SUBMISSIONS OF THE PARTIES
32. The parties' submissions on the merits have been made both at
the admissibility stage and at the merits stage. The following is a
summary of these submissions.
A. The applicant
33. Article 1 of Protocol No. 1 prescribes that 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.
Chapter 2, Section 12 of the Expropriation Act provides
that expropriation should not be granted, if the purpose could be
appropriately achieved in some other way. If the case is one of grave
neglect of property or risk thereof, the obvious action first to be
taken by the authorities is to order the owner under threat of a fine
to take the necessary steps to maintain or restore the property. This
possibility is also open to the authorities according to the Act on
Penalties and Interventions in Cases of Illegal Constructions etc.
Sections 16 and 17 of that Act allow the authorities to order the
owner to take appropriate steps under threat of a fine. It is
therefore submitted that, if the case had been dealt with according to
Swedish law, the applicant should have been ordered by the
municipality to repair the property or risk being fined.
34. The Government's decision of 12 November 1981 concerning the
expropriation permit indicated that the applicant had been given such
an order and that he had been fined. This is not, however, correct.
The Government as well as the County Administrative Board accepted an
incorrect statement by the municipality.
The essential element in the applicant's grievances is that no
other ways were tried before the municipality applied for the
expropriation permit. No investigation was made into the applicant's
economic possibilities to repair and maintain the property and no
possibility was offered to the applicant to defend his civil rights
and proper interest before any impartial tribunal or other authority.
35. The applicant describes the background of the expropriation
permit as follows:
On 30 November 1972 the District Court of Stockholm rejected a
claim from the municipality of Stockholm that the applicant be
obliged, under threat of a fine of 5,OOO SEK, to remove certain
storage from his property. The Court apparently found that the
municipality's grievances against the applicant and the way he took
care of his property were legally unfounded. However, as from that
date the politicians and the authorities of Stockholm sought to
achieve their aim without litigation before public and impartial
tribunals. The question has been raised as to what is at the root of
the conflict between the applicant and the municipality. A very
probable answer has been suggested in the fact that the tenants'
association, which has political influence in particular on the
social-democratic party, of which Mr. Hulth is a powerful member
in his capacity as a member of the city council, has demanded action
against the applicant with the purpose of forcing him to allow more
tenants into the property. This is an assumption and not a proven
fact. Reference is made to a document of 7 November 1978 produced by
the Legal Department (juridiska avdelningen) of the Stockholm City
Council which concludes as follows:
"From the above presented investigation it appears that none of
the legal remedies under consideration could be used in order
to force the leaseholder to make the building on Lärarinnan 4
fit for dwelling and lease the flats. From the sections
concerning the Building Ordinance (byggnadsstadgan) and
expropriation, it appears that if the leaseholder fails
several times to comply with the Building Committee's orders
aiming at repairing the building's exterior then thereafter if
the exterior is so gravely neglected that grave neglect according
to the Expropriation Act could be considered to be at hand,
then expropriation could be resorted to."
On 14 May 1980 the applicant received an order from the
Property Office of the municipality of Stockholm, dated 13 March 1980.
It ordered the applicant to undertake certain repairs on the exterior
of the building. The claim to remove certain storage from the
property, which had been rejected by the court in 1972, was repeated.
The order referred to an official statement from a subdivision of the
office, the Building Permits Office (byggnadslovsbyrån), dated 4 March
1980.
The applicant was ordered to complete the works before the end
of May 1980. This order would have been unreasonable even if it had
been communicated to him closer to its date of issue, on 13 March
1980, and not, as was the case, on 14 May 1980.
The applicant points out that the order which applied to him
was not subject to a conditional fine in case of non-compliance. Any
assertion to the contrary is an erroneous assumption by the
Government. In the applicant's opinion this issue is of the greatest
importance, as it shows that the municipality of Stockholm has not
exhausted other remedies to achieve their purpose. Thus the granting
of expropriation was in violation of Chapter 2, Section 12,
sub-section 1 of the Expropriation Act.
Before the expropriation permit was granted by the Government
on 12 November 1981, the applicant sent several letters to various
authorities describing measures taken or planned for the maintenance
of the property. But he never had the opportunity of stating the
true facts and his views or arguments before any independent
or impartial body.
36. The applicant refers to the Government's statement that an
expropriation permit is issued in accordance with the various
conditions in the law. Although the Government are a political body
the decision is not entirely political, as it is subject to the
provisions of the law. A problem arises, in the applicant's view,
when the Government's decision has not been arrived at in accordance
with the law, as in the present case, where the decision was based on
incorrect information from local authorities. It is the absence of
any effective legal remedy against such an unlawful decision, which
forms the basis of the applicant's complaint.
It is understandable that decisions in expropriation cases are
entrusted to the Government in order to ensure that the same practice is
applies in all cases. But the possibility of judicial control as to
the lawfulness of the decision would not undermine the efforts to
make the practice consistent.
The procedure in matters of expropriation is of an
administrative nature and does not include any public hearing by an
independent and impartial tribunal. As the permit was granted by the
Government there is no other simple legal remedy since no appeal
lies against the Government's decision.
37. As regards the condition "public interest" in Article 1 of
Protocol No. 1, the applicant submits that the public need or public
interest referred to here is subjectively alleged by the municipality,
but has never been objectively tested against the conditions of the
law, nor has there been any examination of the possibilities of trying
other appropriate ways to achieve the maintainance of the property.
At the time there were no tenants on the property. There was no
question of any disadvantages for neighbours, passers-by or children
as has been incorrectly alleged by the municipality.
As the property was repaired and restored, the question
remains why the expropriation had to go on, if the only purpose was to
prevent neglect. If the Government find that they have no possibility
to revoke the expropriation permit without the cooperation of the
municipality, this question should be directed to the municipality.
The applicant can agree with the Government that the
expropriation permit is not the sole factor affecting the value or use
of the property, but it is certainly a factor of the greatest
importance. No similar plan had been published before the
expropriation, as the sole ground for this expropriation was said to
be the grave neglect or the risk of grave neglect of the property and
nothing else.
The Government consider that the applicant has no reason for
this complaint, "since he has brought the expropriation upon himself".
This argument does not appear well-founded because this is exactly
what the entire dispute is about. The argument is self-defeating.
The applicant has never had the opportunity of defending himself
against the accusations of grave neglect. No evidence was required to
support these accusations by the municipality.
The property was in fact locked and no one could enter it
without the permission of the owner. The applicant therefore asserts
that no representative of the municipality, the County Administrative
Board or any other officer has even inspected the property other than
from the street.
If the proceedings in this case are correct, it means that any
civil servant of the municipality could just pass by any property and
decide that it was gravely neglected or that there was a risk of such
neglect and then draw up a report for the purpose of applying for an
expropriation permit without the owner having any real possibility of
refuting what has been alleged against him.
38. The applicant concludes that he has been the victim of a
breach of Article 6 of the Convention and Article 1 of Protocol No. 1.
B. The Government
39. The Government recall that in its decision on the
admissibility of the case (Appendix II) the Commission made the following
statement:
"As regards the complaint about the fact that the
expropriation procedure is now being carried out, the
Commission recalls that the applicant has complained that
the expropriation is at the same time illegal under Swedish
law and in violation of Article 1 of Protocol No. 1, since it
is not justified irrespective of the award of compensation.
The Commission finds that in this respect there were no
effective remedies available to the applicant."
The Government submit that they are not sure as to how this
statement should be construed, considering the fact that the
Commission has declared inadmissible the complaint that the
expropriation permit as such was a violation of Article 1 of Protocol
No. 1. With reference to the above statement, the Commission
concludes that the application cannot be declared inadmissible with
reference to the six months' rule. The implication of this
reasoning by the Commission and which really belongs to the spheres of
Articles 6 and 13 of the Convention will be dealt with below. In the
event that the Commission considers that there are still issues
remaining under Article 1 of Protocol No. 1, the Government submit the
following.
40. As the case now stands the property was never expropriated
while in the hands of the applicant. The property was sold at a
public auction. From the judgment of the District Court it appears
that the applicant claimed that he had been deceived by Mr. S.
The applicant had been cheated both in connection with the sale of the
property and when the loan was taken. The idea was that the building
should be repaired. The applicant and the association had accepted an
offer for renovation of the inside of the building for SEK 42,000 and
agreed that the costs for external renovation must not exceed SEK
90,000. He had agreed with Mr. S that the entire renovation must
not cost more than SEK 132,000. Mr. S was not authorised to
mortgage the property for a higher amount. This fact should have
been apparent to the creditor. The applicant accepted the fact that
certain flats had been renovated but contested that more than
SEK 200,000 had been invested in the leaseholder's right. He was not
aware of the fact that the association had borrowed one million SEK
until he read about it in a newspaper some time during spring 1983.
The Government's decision of 12 December 1981 to issue the
expropriation permit refers to an order from the Building Committee
that the applicant should repair his house. This order was not, as
is erroneously indicated in the decision, issued on penalty of a fine.
This error might be the result of a mixing up of different kinds of
orders related to the property.
41. Due to the latest development, the situation has in some ways
become partly similar to the one in the Sporrong and Lönnroth Case
(Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September 1982,
Series A no. 52). An expropriation permit was granted, but no
expropriation took place. Following the Court's line of argument
in the said case, cf. also case of James and Others (Eur. Court H.R.,
James and Others judgment of 21 February 1986, Series A no. 98, para.
37), one can first conclude that the second sentence of Article 1
para. 1 of Protocol No. 1 is not applicable. With reference to the
Court's reasoning in the Sporrong and Lönnroth case the second
paragraph of the same Article is not applicable either. What remains
to be examined is thus Article 1 para. 1 first sentence. This raises
the question whether too heavy a burden was put on the applicant in
relation to the general interest being pursued.
In the Government's opinion this is not the case. According
to the case-law of the Court and the Commission the Contracting States
are given a wide discretion as far as the grounds for expropriations
are concerned. The underlying purpose of Chapter 2, Section 7 of the
Expropriation Act is a legitimate one. The applicant could have
avoided the measures taken by the municipality by actions which had in
fact been in his own favour. It should be noted that, in order to
avoid an expropriation, the owner merely has to keep his property in
order. It is obvious that this is in his own interest from all
possible aspects and is not a detrimental obligation. Instead the
applicant has persistently refused to abide by the general obligations
which are incumbent upon all owners of tenants' houses in Sweden.
When, after a long period of negligence on the part of the applicant,
the municipality decided to apply for an expropriation permit, the
Government, which are responsible for the application of the
Expropriation Act as far as the granting of expropriation permits is
concerned, found that the requirements of the said provision were met.
The Government question whether the Commission should go beyond that
judgment and enter into the application of a Contracting State's
national law (cf. inter alia case of James and Others, loc. cit.).
Whether the applicant should have had the possibility of bringing this
decision before a court is of course a separate question, which must
be dealt with under Article 6 of the Convention.
The question remains whether an owner should be granted the
possibility of having the issue reviewed, once an expropriation permit
has been issued. In the Government's view such a procedure could very
well be applied. But Swedish law does not foresee this possibility,
and there is no obligation under the Convention to guarantee such a
possibility. The actual ground for expropriation differs from other
expropriation provisions under Swedish law. As previously emphasised,
it is the owner himself who is responsible. The expropriation permit
is the ultimate reaction to a continuing or accelerating mismanagement
of the property. Thus, in the Government's opinion the Convention
does not require that the applicant should have any remedies once "the
point of no return" - the expropriation permit - has been passed.
The municipality can always apply for the withdrawal of an
expropriation permit, if the applicant shows an inclination to restore
the building. This was, however, not done in the present case, since
the municipality thought that such a measure should not be taken as
long as there was a risk of continuous gross negligence.
The Government observe in this context that the repairs made on
the property in 1982 were made after the issuing of the appropriate
permit.
42. As regards Article 6 of the Convention, the Government submit
that the issues to be examined are whether the decision of the
Government to grant the expropriation permit was a "determination" of
the applicant's "civil rights and obligations" within the meaning of
Article 6 para. 1 of the Convention and, if so, whether the applicant
had the benefit of a "fair and public hearing" before "an independent
and impartial tribunal" for the purpose of that determination.
A decision on this question will be of great importance for
existing Swedish legislation. The European Court of Human Rights held
in the Sporrong and Lönnroth case (loc. cit., para. 83) that "the
expropriation permits affecting the applicants' properties related to
a 'civil' right and, as regards their period of validity, gave rise to a
'contestation' (dispute), within the meaning of Article 6 (1)".
This judgment has been discussed thoroughly within the
competent Swedish ministries. The Government have come to the
conclusion that it is not all that clear what conclusions should be
drawn from this expression in the judgment. The Government have noted
that the situation of the owners of the two Stockholm properties was
extraordinary. It also appears that the Court took special note of
the long periods of validity of the permits, since this is expressly
mentioned in the judgment. It also appears that the Court took note
of the combined effects of the permits and the burden incurred by
prohibitions on construction which had been imposed on the properties
(loc. cit., para. 81).
The Government have also noted the joint dissenting opinion by
five of the judges, and especially their statement that the
expropriation permits were not directly determinative for private
rights, but for the rights under public law of the City of Stockholm.
In their opinion judicial review, at least of the lawfulness of the
measures taken, might be desirable also in such cases. However, they
found that this was not required by Article 6 para. 1 of the
Convention.
The Government consider that there is great merit in the
reasoning of these judges. The granting of expropriation permits is a
necessary means for governments and other authorities to make
decisions concerning the use of land, based on general political,
economic and other considerations in the interest of the general
public. Such decisions are also considered necessary under the
Convention, hence the restriction in Article 1 of Protocol No. 1.
The Government refer in this context to their reasoning in the
Sporrong and Lönnroth case and recall that the Commission held in that
case that Article 6 was not applicable to decisions on expropriation
permits. It is true that the Court has handed down judgments which -
like the judgment in the Sporrong and Lönnroth case - indicate that
the scope of Article 6 is wider than many states might have realised
when they ratified the Convention. The Government have construed the
judgment in the Sporrong and Lönnroth case so as not to require
further amendments to be made to the Swedish legislation on
expropriation apart from an amendment which now in principle limits
the validity of expropriation permits to a period of one year with a
narrow possibility of further prolongation. This opinion has been
examined by the Committee of Ministers, which on 25 October 1985
decided without comments that it had exercised its function under
Article 54 of the Convention (Res. (85) 17).
The Government request the Commission to consider these
circumstances in examining the present application. The facts of the
case should be sufficiently clear. The effects of the grant of an
expropriation permit in Sweden should also be sufficiently clarified.
Reference is made to the Government's earlier submissions as well as
to the judgment in the Sporrong and Lönnroth case.
The Government draw the Commission's attention to the fact
that since the spring of 1986, legislative measures are under
consideration which are supposed effectively to remedy any possible
procedural flaw that might presently exist in the Swedish legal system
in view of the individual's rights under Article 6 para. 1 of the
Convention. A first draft of the proposed new legislation, as well as
the considerations underlying it, is contained in a memorandum
released in the summer of 1986 by the Ministry of Justice (Ds Ju
1986:3).
In short, the new legislation, if adopted, would open a
possibility to challenge a wide range of administrative decisions,
including decisions taken by the Government, before the Supreme
Administrative Court without any requirement of having to obtain a
leave to appeal. Among matters which are particularly referred to in
the memorandum, and which would come within the scope of the new
provisions, are matters covered by the legislation on expropriation.
A Government Bill on the matter is expected to be presented to the
Riksdag during 1987. In case the new provisions are adopted,
decisions on expropriation of the kind disputed in the present case
can be challenged before the Supreme Administrative Court.
43. Should the Commission come to the conclusion that the
expropriation permit concerned the applicant's "civil rights and
obligations", the Government admit that the issue as to whether
deprivation of the property may take place was finally determined by
the Government's decision of 12 November 1981. The Government concede
that this decision was not handed down after a public hearing or by an
independent and impartial tribunal.
44. The Government conclude that there has been no violation of
Article 1 of Protocol No. 1 or of Article 6 of the Convention.
IV. OPINION OF THE COMMISSION
A. Points at issue
45. In its decision on admissibility, the Commission declared
inadmissible, for failure to comply with the six months' rule, the
complaint that the expropriation permit as such was a violation of
Article 1 of Protocol No. 1 (P1-1). The remainder of the application was
declared admissible.
46. It follows from the admissibility decision that the
Commission has retained two issues for an examination on
the merits. First, the issue under Article 6 (Art. 6) of the Convention
whether the decision of the Government to grant the expropriation
permit was a "determination" of the applicant's "civil rights and
obligations" and, if so, whether the applicant had the benefit of a
"fair and public hearing" before "an independent and impartial
tribunal" for that determination. Second, the issue whether the fact
that the expropriation procedure was being carried on under the
authority of the expropriation permit was in breach of Article 1 of
Protocol No. 1 (P1-1).
47. Under Article 1 of Protocol No. 1 (P1-1) the applicant complains that
the expropriation permit was issued on the basis of incorrect and
misleading information and that the expropriation procedure was
continued after the applicant had restored his property. The
applicant also complains that the existence of the expropriation
permit affected the value and use of the property.
48. However, under the admissibility decision the scope of the
admissible part of the application does not cover the expropriation
permit of 12 November 1981 as such. The applicant's main submission
as regards the period thereafter is that he did in fact repair the
property to such an extent that the expropriation was no longer
necessary and the expropriation permit should accordingly have been
cancelled.
49. The Commission observes that on 4 February 1986 the
applicant's property was sold at a public auction pursuant to a court
order that a loan, for which the property had been mortgaged, be paid
out of the property. This enforced sale of the applicant's property
is not a matter which the Commission is called upon to examine.
50. As a result of the change of ownership, the municipality of
Stockholm withdrew its action for expropriation of the property and,
on 24 November 1986, the District Court of Stockholm struck the case
off its list. Accordingly, the result of these subsequent events was
that the applicant's property was never expropriated under the
authority of the expropriation permit.
51. In these circumstances, the issues which remain to be examined on the
merits are the issue under Article 6 (Art. 6) of the Convention and the
remaining issue under Article 1 of Protocol No. 1 (P1-1).
B. Article 6 (Art. 6) of the Convention
a. As to the applicability of Article 6 para. 1 (Art. 6-1) of the
Convention
52. As follows from the admissibility decision, the issues which
have to be examined under Article 6 (Art. 6) of the Convention are: the
question whether the Government's decision to grant the expropriation
permit involved a determination of the applicant's civil rights or
obligations and, if so, whether the applicant had the benefit of a
procedure satisfying the conditions of Article 6 (Art. 6) of the Convention in
respect of that determination.
53. 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."
54. It is established case-law that a decision to issue an
expropriation permit with regard to an individual's property is a
decision which is "decisive" for that individual's "civil rights" (see
Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September 1982,
Series A no. 52, pp. 29-30, paras. 80-81 and 83 and Bodén v. Sweden,
Comm. Report 15.5.86, paras. 33 and 36).
55. Article 6 para. 1 (Art. 6-1) of the Convention guarantees to everyone,
who claims that an interference by a public authority with his "civil
rights" is unlawful, the right to submit that claim to a tribunal meeting the
requirements of Article 6 para. 1 (Art. 6-1) (see Eur. Court H.R., Le Compte,
Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 20,
para. 44). The claim or dispute must be "genuine and of a serious nature" (see
Eur. Court H.R., Benthem judgment of 23 October 1985, Series A no. 97, p. 14,
para. 32).
56. The Commission finds that in the present case there was a
"genuine" and "serious" dispute, in particular as to whether the
decision to issue the expropriation permit was in conformity with
Swedish law (cf. paras. 33 - 35).
57. Accordingly, the Commission finds that Article 6 para. 1 (Art. 6-1) was
applicable to the dispute over the expropriation permit.
b. As to the compliance with Article 6 para. 1 (Art. 6-1) of the
Convention
58. It must finally be examined whether the applicant had the
possibility of submitting the dispute as to the issuing of the
expropriation permit to a "tribunal" satisfying the conditions
of Article 6 para. 1 (Art. 6-1) of the Convention.
59. The Government admit that the Government's decision to grant
the expropriation permit was not given after a public hearing or
by an independent and impartial tribunal.
60. It is obvious in the Commission's opinion that the proceedings
before the Government relating to the issuing of the expropriation
permit did not constitute proceedings before a "tribunal" within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
61. As regards subsequent proceedings the Commission notes that in
the proceedings which were instituted before the Real Estate Court the
applicant could not challenge the lawfulness under Swedish law of the
expropriation permit.
62. The Government have not referred to any remedy which might
permit a review of their decision to issue an expropriation permit and
which might satisfy the requirements of Article 6 para. 1 (Art. 6-1).
63. In this context the Commission recalls that in the Sporrong
and Lönnroth judgment the Court examined whether a municipal appeal
against the decision of the City of Stockholm to request the
Government to issue an expropriation permit, or an application
to the Supreme Administrative Court for the reopening of the
proceedings, directed against the decision of the Government, were remedies
which fulfilled the requirements of Article 6 para. 1 (Art. 6-1) of the
Convention. The Court held that these remedies were not sufficient for the
purposes of Article 6 para. 1 (Art. 6-1) (cf. Sporrong and Lönnroth judgment,
loc. cit., pp. 30-31, paras. 84-87).
64. It follows that the applicant did not have at his disposal a procedure
satisfying the requirements of Article 6 para. 1 (Art. 6-1) in respect of the
dispute which arose over the expropriation permit.
Conclusion
65. The Commission concludes by a unanimous vote that there has
been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
C. Article 1 of Protocol No. 1 (P1-1)
66. Article 1 of Protocol No. 1 (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 contribrutions or penalties."
67. In view of the scope of the admissible part of the application
(cf. para. 48) and the subsequent factual development (cf. paras. 49
and 50), the Commission considers that there is only one issue left
to be examined under Article 1 of Protocol No. 1 (P1-1), namely the applicant's
claim that since he restored the property the expropriation permit
should have been cancelled.
68. The Commission considers that no issue arises under Article 1
para. 1 (Art. 1-1) second sentence since the applicant's property was never
expropriated under the authority of the expropriation permit.
However, the maintenance in force of the expropriation permit for more
than four years while the property was in the hands of the applicant
constituted an interference with his right to the peaceful enjoyment
of his possessions irrespective of the fact that the property was
eventually not expropriated.
Although the enjoyment of the property was interfered with by
the expropriation permit, the Commission notes that the applicant was
still entitled to make normal use of the property. He could sell and
mortgage it. Moreover, there is no indication that the value of the
property substantially decreased as a result of the expropriation
permit.
69. It must next be examined whether the interference created by
the pending expropriation permit was justified under Article 1 para. 1
first sentence of Protocol No. 1 (P1-1) (cf. Sporrong and Lönnroth judgment,
op. cit., pp. 24-28, paras. 61-74). For this purpose the Commission
must determine whether a fair balance was struck between the demands
of the general interest of the community and the requirements of the
protection of the individual's fundamental rights.
70. The Commission observes that the expropriation permit was
based on Chapter 2, Section 7 of the Expropriation Act under which
provision a property may be expropriated for the purpose of restoring
or maintaining properties which have been gravely neglected or
where there is a risk of such neglect.
71. The Commission considers that where an expropriation permit is
based on the failure of a property owner to keep his property in
order, an issue may arise under Article 1 of Protocol No. 1 (P1-1) if the
expropriation permit is maintained, irrespective of whether the
property owner has restored the property. The Commission observes,
however, that in the present case the reason for the expropriation
permit was not simply that the applicant had failed to perform certain
repairs on his property but also that it was feared that the property
would be gravely neglected. This fear was based in particular on the
applicant's lack of interest and his inability to keep the property in
order.
72. The Commission moreover notes that the expropriation permit
was in force from 12 November 1981 and that the property was sold by
the Enforcement Office in February 1986. It is established that while
the applicant undertook certain repairs on his property after the
expropriation permit was issued, such repairs only started in July
1982. It is however also established that in April 1986, the property
was still in need of substantial repairs, the investigation made by
the local authority having estimated the costs of the remaining
repairs at 1-1.5 million Swedish Crowns (para. 24).
73. In these circumstances the Commission considers that it has
not been established that the repairs undertaken by the applicant had
removed the grounds for the original expropriation permit to the
effect that the general interest pursued by the maintenance in force
of the expropriation permit had become disproportionate to the
interference with the applicant's rights created thereby. Accordingly
the Commission considers that during the period in question, the
Government were justified under Article 1 of Protocol No. 1 (P1-1) in finding
that the grounds for the expropriation permit were still valid.
Conclusion
74. The Commission concludes by a vote of 17 against one that
there has been no violation of Article 1 of Protocol No. 1 (P1-1).
D. Recapitulation
75. - The Commission concludes by a unanimous vote that there has
been a violation of Article 6 para. 1 (Art. 6-1) of the Convention
(para. 65)
- The Commission concludes by a vote of 17 against one that
there has been no violation of Article 1 of Protocol No. 1
(P1-1) (para. 74).
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Concurring Opinion by Mr. J. A. Frowein, joined by
MM. Trechsel, Weitzel, Soyer, Batliner and Sir Basil Hall
Although we agree that there has been no violation of
Article 1 Protocol No. 1 we cannot accept the reasoning developed
in paras. 66-73 of the Report.
Article 1 is a provision which is drafted in a way sometimes
creating misunderstandings. While the fundamental right guaranteed is
to be found in para. 1 first sentence, para. 1 second sentence as well
as para. 2 contain specific restrictive clauses. Para. 2 covers the
legislation necessary for controlling the use of property, while
para. 1, second sentence provides for the possibility of expropriation.
Both restrictive clauses have to be interpreted in the light of the
guarantee in para. 1 first sentence which must be an effective one.
What we cannot accept, however, is the approach of the
majority to justify a restriction on the basis of Article 1 para. 1
first sentence.
In the present case an expropriation permit was issued and
remained in force for more than four years. However, as no
expropriation finally took place, we agree with the majority that
under such circumstances the deprivation rule is not applicable in its
full sense. Nevertheless, the existence of an expropriation permit of
course must have some consequences for the possibility to sell or
mortgage a property. It is therefore an interference with the right
to the peaceful enjoyment of one's property.
When analysing such an interference under Article 1, regard
must be had to the aim of the legislation on which the expropriation
permit is based. When, as in the present case, the expropriation permit
was issued to avoid a situation where the property is gravely
neglected this is intended to be a measure of "control" of the use of
property. The intention of the legislation, as we understand it, is to
protect the property in the general interest.
It follows therefore that a difficult issue under the
Convention would arise where the property-owner had no possibility to
avoid expropriation by restoring his property. We have not been fully
informed about the Swedish legislation in that respect. We could not
see a deprivation to be in the public interest where a property-owner
has within a reasonable time restored the property after being
requested to do so. We would also consider it to be a non-
proportionate measure of control under para. 2 to uphold an
expropriation permit with the legal and practical effects it has where
the property has been fully restored.
Since it has not been established that the property had been
fully restored when the applicant lost it through an enforcement
procedure we find no violation of Article 1.
&_APPENDIX I&S
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________________
11 May 1983 Introduction of the
Application
19 August 1983 Registration of the
Application
Examination of Admissibility
7 December 1983 Commission's deliberations
and decision to invite the
Government to submit
observations on the
admissibility and merits
of the application (limited
to Article 6 para. 1 of the
Convention)
23 February 1984 Government's observations
29 March 1984 Applicant's reply
3 October 1984 Commission's further
deliberations and decision
to invite the Government
to submit supplementary
observations on the
admissibility and merits
of the complaint under
Article 6 para. 1 of the
Convention
29 November 1984 Government's observations
14 January 1985 Applicant's observations
Date Item
_________________________________________________________________________
6 March 1985 Commission's further deliberations
and decision to invite the Government
to submit supplementary observations
on the admissibility and merits of
the complaint under Article 1 of
Protocol No. 1
23 April 1985 Government's further observations
12 June 1985 Applicant's further observations
10 October 1985 Commission's deliberations
and decision to declare the
application partly
admissible and
partly inadmissible
Examination of the merits
14 February 1986 Applicant's letter
containing observations
on the merits
21 March 1986 Government's observations
on the merits
29 April 1986 Letter from the applicant
10 May 1986 Consideration of state of
proceedings and decision
of the Commission not to
hold a hearing in the case
11 October 1986 Consideration of state of
proceedings
3 March 1987 Commission's deliberations
on the merits
7 and 8 July 1987 Commission's deliberations
on the merits and final votes
16 July 1987 Adoption of the Report