AS TO THE ADMISSIBILITY OF
Application No. 12835/87
by W. and Others
against Sweden
The European Commission of Human Rights (Second Chamber)
sitting in private on 5 March 1991, the following members being
present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ RUIZ
Mrs. J. LIDDY
J.-C. GEUS
M.P. PELLONPÄÄ
Mr. K. ROGGE, Secretary to the Second Chamber
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 July 1985
by W. and Others against Sweden and registered on
2 April 1987 under file No. 12835/87;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 19 May 1989 and the observations in reply submitted by
the applicant on 8 July 1989;
Having regard to the Commission's decision of 8 January 1991
to refer the application to the Second Chamber;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicants, all Swedish citizens, are set out in the
Annex.
Before the Commission the first applicant, Mr. P.W.,
represents the other applicants.
Particular circumstances of the case
The applicants are owners of properties in the area of Värnäs.
In 1978 the National Road Administration (Vägverket; hereinafter "the
NRA") announced that it planned to reconstruct the existing road
between the villages Värnäs and Ljusnästorp, the distance between
the villages being about three kilometres.
Two alternative stretches for the reconstruction were
considered, a new bypass around Värnäs or a through-way, the latter
alternative implying the repair and reconstruction of the existing
road through Värnäs.
On 4 September 1980 the NRA adopted a working-plan for the
bypass, which was regarded as the more favourable alternative in view
of traffic, environmental and cost aspects. The decision was taken
after consultations with property owners and following the exhibition
of the working-plan, as prescribed in the Roads Act (väglagen,
hereinafter "the Act").
The applicants appealed to the Government (Ministry of
Transport and Communication) which, on 2 April 1981, quashed the
decision and referred the matter back to the NRA for re-examination
on the ground that it had not been shown that the bypass could be
constructed in such a way that its purpose could be achieved with the
least possible interference and inconvenience and without unreasonable
costs, this being a requirement under Section 13 of the Act.
The NRA drew up an alternative working-plan for the
through-way and re-examined the bypass alternative. Both alternatives
were examined together, including consultations with the property
owners and the exhibition of the plans. The estimated cost for the
bypass was 7,2 million SEK and for the through-way 8 million SEK.
On 1 July 1983 the NRA adopted an amended working-plan for the
bypass, stating inter alia that the road connection at issue was the
most important transportation way in the northern part of the County
of Värmland; that its reconstruction was of importance with regard to
traffic safety, environmental protection and the flow of traffic; that
the through-way was in bad condition; and that the aim to reconstruct
the road connection would best be achieved by the bypass alternative,
which also would be 0,8 million SEK cheaper than the through-way
alternative. The NRA noted that, as a result of the bypass, 3,4
hectares of farming land would disappear and that questions of
redemption of land and compensation would be examined in separate
proceedings.
The applicants appealed to the Government, alleging inter alia
that the bypass would run straight through their farming land and
seriously diminish the possibilities to use the properties for farming
in the future.
On 31 January 1985 the Government rejected the applicants'
appeals, noting that this time two alternative working-plans had been
drawn up and examined. It thus had been established that by choosing
the bypass alternative the purpose of the road could be achieved with
the least possible interference and inconvenience and without
unreasonable costs.
During 1986 and 1987 an agreement was reached between the
applicants and the NRA concerning the compensation for the right of
way gained by the NRA. Compensation was paid to the applicants in the
following amounts: P.W. and four other joint owners 45.000
SEK, Gudmund Olofsson 5.800 SEK, Bengt Sonesson 17.000 SEK, Märtha
Haglund 4.700 SEK, Olle and Hildur Nygren 5.000 SEK, Axel Nordqvist
29.509 SEK and Elle and Frida Nilsson 12.500 SEK.
In October 1987 the bypass was opened for traffic.
Relevant domestic law and practice
According to Section 10 of the Act a road may be constructed
if it is needed for public traffic or may be assumed to be of
particular importance to the community. The construction of a road in
a new direction, including the repair of a road, may take place when
it is required in the general public interest.
Section 15 of the Act provides that, for the construction of a
road, a so called working-plan shall be drawn up. The plan shall
inter alia specify the land needed for the road. When the plan is
drawn up there shall be consultations with inter alia the property
owners concerned (Section 16). It shall also be exhibited for
inspection in a way similar to that regarding a building plan. The
plan is adopted by the NRA after consultations with the County
Administrative Board (Section 17). If the NRA and the County
Administrative Board have different views on the matter, it shall be
referred to the Government (Section 18).
Section 48 first paragraph of the Act provides that,
from the moment a decision to adopt a working-plan has gained legal
force until the road construction work is finished, no building may be
erected or any other measure be taken within the road area specified
in the working-plan, if this could subsequently obstruct the use of
the area for road purposes. Such measures may only be taken with the
permission of the County Administrative Board.
According to Section 31 of the Act a right of way (vägrätt)
arises when the authority responsible for the road starts using the
land specified in the working-plan, that is when the stretch of the
road across the property has been clearly marked on the land and
the construction work has commenced. Under Section 32 of the Act the
right of way ceases to exist when the road is withdrawn. The right of
way authorises the maintainer of the road to determine the use of land
needed for the road, notwithstanding the right of any other party with
regard to the property. The right of way also includes the right to
make use of resources that can be extracted from the land.
Under Section 55 of the Act the property owner or any other
party who has a right of usufruct is entitled to compensation for
the right of way gained by the maintainer of the road. If the
maintainer of the road and the property owner cannot agree on the
amount of compensation, it is decided by the Real Estate Court
(fastighetsdomstolen) in application of relevant parts of the 1972
Expropriation Act (expropriationslagen).
COMPLAINTS
1. The applicants complain that the decision to construct a road
over their properties was not taken in accordance with Swedish law.
They allege a violation of Article 1 of Protocol No. 1 to the
Convention.
2. The applicants further complain that they could not obtain a
court examination of the decision to construct the road. They allege
a violation of Article 6 para. 1 of the Convention.
3. The applicants finally complain that they did not have an
effective remedy before a national authority for the above violations
of their rights under the Convention. They allege a violation of
Article 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 July 1985 and registered
on 2 April 1987.
On 13 March 1989 the Commission decided that notice of the
application should be given to the respondent Government and that the
parties should be invited to submit written observations on the
admissibility and merits of the application limited to the issue
under Article 6 of the Convention.
The Government's observations were submitted on 19 May 1989.
The applicants' observations in reply were submitted on 8 July 1989.
On 8 January 1991 the plenary Commission decided to refer the
application to the Second Chamber.
THE LAW
1. The applicants complain that the decision to construct a road
over their properties was not taken in accordance with Swedish law.
They allege a violation of Article 1 of Protocol No. 1 (P1-1) to the
Convention, which reads:
"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 Government submit that the adoption of the working-plan had
the effect of obliging the applicants to give up parts of their properties
in a way similar to expropriation. However, the decisions at issue
were taken in accordance with domestic law. The Government refer to
the wide margin of appreciation conferred on the authorities in
matters of this kind.
The applicants contend that, when the Government quashed the
first decision regarding a working-plan, the matter involved prestige.
The Government's decision had no effect, since nothing essential was
changed in the new plan subsequently drawn up and adopted.
The Commission observes that the decision to adopt the
working-plan had the temporary effect that the applicants, within a
specified area of their properties, were prohibited from erecting
buildings or taking any other measures which could substantially
obstruct the use of this area for road purposes. This prohibition
was in force from the moment the decision to adopt the working-plan
gained legal force until the road construction work was finished.
The Commission notes that the right of way, authorising the
NRA to make use of the applicants' property, insofar as it was needed
for the road, only arose when the road construction work commenced.
The applicants reached an agreement with the NRA as to the amount of
compensation. In this respect no issue arises under Article 1 (Art. 1).
However, the adoption of the working-plan interfered with the
applicants' right to the peaceful enjoyment of their possessions, in
that it restricted the use of their properties. It constituted a
measure to control the use of property which must be examined under
the second paragraph of Article 1 (Art. 1) as to its lawfulness,
purpose and proportionality (cf. Eur. Court H.R., Tre Traktörer AB
judgment of 7 July 1989, Series A No. 159, pp. 22-24, paras. 55-62).
The Convention organs' power to review compliance with
domestic law is limited. It is in the first place for the national
authorities to interpret and apply that law. The requirement of
lawfulness includes that the impugned measure should have a basis
in domestic law. Furthermore, the law must have a certain quality,
that is it must be accessible, foreseeable and compatible with the
rule of law. A law which confers a discretion on the authorities must
indicate the scope of that discretion. The degree of precision
required will depend on the particular subject-matter (cf. Eur. Court
H.R., Huvig judgment of 24 April 1990, Series A No. 176, pp. 52-55,
paras. 26, 28-29).
As to the lawfulness of the the working-plan the Commission
observes that, apart from the requirements under Section 13 of the
Act, the domestic law leaves some discretion to the authorities in
choosing the working-plan to be adopted. It further notes that the
first working-plan was quashed by the Government; that the NRA then
drew up alternative working-plans on which the applicants were
consulted and which were exhibited for public inspection, as provided
for in the Act; and that the decision adopting the new working-plan,
taken after comprehensive investigation, contained detailed reasons.
The Commission is therefore satisfied that the decision complained of
had a basis in Swedish law.
As to the purpose of the interference, the Commission observes
that the aim of the working-plan was to improve the condition of the
road connection with regard to traffic safety, environmental
protection and the flow of traffic. The Commission considers this to
be a legitimate aim in the general interest.
As regards the proportionality between the interference with
the applicants' property rights and the aim pursued, the Commission
observes that according to the working-plan the bypass would run
straight through the applicants' farming-land. However, in view of
the aim of the decision to adopt the working-plan for the bypass and
having regard to the wide margin of appreciation enjoyed by the
Contracting States in this area, the Commission cannot find that the
decision was disproportionate to the aim pursued.
Consequently the interference was justified under the terms of
the second paragraph of Article 1 of Protocol No. 1 (P1-1) to the Convention.
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.
2. The applicants furthermore complain that they could not obtain
a court examination of the decision to construct the road. They
allege a violation of Article 6 para. 1 (Art. 6-1) of the Convention,
which reads, insofar as it is relevant:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing ... by [a] ... tribunal..."
The issues to be decided are whether the working-plan was
decisive for the applicants' "civil rights and obligations" and, if
so, whether a genuine dispute of a serious nature arose between the
applicants and the authorities in relation to this plan. In the
affirmative, it would have to be determined whether the applicants had
at their disposal a procedure satisfying the conditions of Article 6
para. 1 (Art. 6-1) of the Convention with regard to the dispute.
The Government admit the admissibility of this complaint and
state that it was not at the time possible under Swedish law to have
the working-plan reviewed by a court.
The Commission finds that this complaint is not manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention and that no other ground for declaring it inadmissible
has been established.
3. The applicants finally allege a violation of Article 13
(Art. 13) of the Convention, which reads:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an
official capacity."
The Commission considers that the issue under Article 13
(Art. 13) of the Convention is closely linked to the corresponding
issue under Article 6 (Art. 6) of the Convention which the Commission
has found above to be admissible.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits of the
case, the applicants' complaints under Article 6 para. 1
(Art. 6-1) and Article 13 (Art. 13) of the Convention;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
ANNEX
The applicants:
1. Mr. W., a Bachelor of Arts born in 1950
and resident at T. ;
2. Mr. O., an engineer born in 1934 and resident at K. ;
3. Mr. S., a farmer born in 1919 and resident at St; .
4. Mrs. H., born in 1934 and resident at St. ;
5. Mr. N., a farmer born in 1919 and resident at St. ;
6. Mrs. N., a farmer born in 1917 and resident at St. ;
7. Mr. N., a farmer born in 1905 and resident at St. ;
8. Mrs. N., a farmer born in 1927 and resident at St. ; and
9. Mrs. N., born in 1897 and resident at St.
Full & Egal Universal Law Academy