EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 12835/87
P.W. and Others
against
SWEDEN
REPORT OF THE COMMISSION
(adopted on 1 April 1992)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 16) ....................................... 1
A. The application
(paras. 2 - 5) ................................... 1
B. The proceedings
(paras. 6 - 11) .................................. 1
C. The present Report
(paras. 12 - 16) ................................. 2
II. ESTABLISHMENT OF THE FACTS
(paras. 17 - 28) ...................................... 3
A. The particular circumstances of the case
(paras. 17 - 23) ................................. 3
B. Relevant domestic law and practice
(paras. 24 - 28) ................................. 3
III. OPINION OF THE COMMISSION
(paras. 29 - 49) ...................................... 5
A. Complaints declared admissible
(para. 29) ....................................... 5
B. Points at issue
(para. 30) ....................................... 5
C. Article 6 para. 1 of the Convention
(paras. 31 - 45) ................................. 5
D. Article 13 of the Convention
(paras. 46 - 48) ................................. 6
E. Recapitulation
(para. 49) ....................................... 7
APPENDIX I: HISTORY OF THE PROCEEDINGS ................. 8
APPENDIX II: DECISION ON THE ADMISSIBILITY .............. 9
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 applicants, all Swedish citizens, are Mr. P.W., a Bachelor
of Arts born in 1950 and resident at Torsby; Mr. G.O., an engineer born
in 1934 and resident at Karlstad; Mr. B.S., a farmer born in 1919 and
resident at Stöllet; Mrs. M.H., born in 1934 and resident at Stöllet;
Mr. O.N., a farmer born in 1919 and resident at Stöllet; Mrs. H.N., a
farmer born in 1917 and resident at Stöllet; Mr. A.N., a farmer born
in 1905 and resident at Stöllet; Mrs. E.N., a farmer born in 1927 and
resident at Stöllet; and Mrs. F.N., born in 1897 and resident at
Stöllet.
The applicants are represented by the first applicant, Mr. W.
3. The application is directed against Sweden. The respondent
Government are represented by Mr. Carl Henrik Ehrenkrona, legal adviser
at the Ministry for Foreign Affairs.
4. The case relates to the adoption of a working-plan for the
construction of a road running over the applicants' agricultural
properties. From the adoption of the plan until the construction work
was finished, i.e. for approximately two and a half years, certain
measures (e.g. construction) potentially obstructing the use of the
road area for road purposes could only be taken with special permission
of the County Administrative Board.
5. The applicants complain of violations of Article 6 para. 1 and
Article 13 of the Convention as they could not obtain a court
examination of the decision to adopt the working-plan. They further
complained of a violation of their right to the peaceful enjoyment of
their possessions under Article 1 of Protocol No. 1 in that the
decision was not taken in accordance with Swedish law.
B. The proceedings
6. The application was introduced on 15 July 1985 and registered on
2 April 1987.
7. On 13 March 1989 the Commission decided to give notice of the
application to the respondent Government and to invite them to submit
written observations on the admissibility and merits of the
application.
8. The Government's observations were submitted on 19 May 1989. The
applicants' observations in reply were submitted on 8 July 1989.
9. On 8 January 1991 the plenary Commission decided to refer the
application to the Second Chamber.
10. On 5 March 1991 the Commission (Second Chamber) declared the
complaints under Articles 6 para. 1 and Article 13 of the Convention
admissible. The remainder of the application was declared inadmissible.
11. After declaring the case admissible the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. Active consultations with the parties took
place between 12 March and 3 December 1991. In the light of the
parties' reactions, the Commission now finds that there is no basis
upon which such a settlement can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
13. The text of this Report was adopted on 1 April 1992 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
14. The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the
Convention.
15. 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 as Appendix II.
16. 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. The particular circumstances of the case
17. The applicants are owners of properties in the area of Värnäs.
18. On 4 September 1980 the National Road Administration (Vägverket;
hereinafter "the NRA") adopted a working-plan for a bypass around
Värnäs.
19. The applicants appealed to the Government (Ministry of Transport
and Communications) 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 required under Section 13 of the 1971 Roads Act (väglag 1971:948;
hereinafter "the Act").
20. On 1 July 1983 the NRA adopted an amended working-plan for the
bypass.
21. The applicants appealed to the Government, alleging inter alia
that the bypass would run straight through their farming land and
seriously diminish their possibilities to use the properties for
farming.
22. On 31 January 1985 the Government rejected the applicants'
appeals, noting that this time two alternative working-plans had been
drawn up and examined. Thus it 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.
23. In October 1987 the bypass was opened for traffic.
B. Relevant domestic law and practice
24. 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.
25. Under Section 13 of the Act it shall be ensured that the road to
be constructed is located and designed so as to achieve the purpose of
the road with the least possible interference and inconvenience and
without unreasonable costs.
26. Section 15 of the Act provides that a working-plan (arbetsplan)
shall be drawn up for the construction of a road. The plan shall inter
alia specify the land needed for the road.
27. 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.
28. 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 substantially obstruct the use of the area
for road purposes. Such measures may only be taken with the permission
of the County Administrative Board (länsstyrelsen).
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
29. The complaints declared admissible concern the absence of a right
to a court examination of the decision of 1 July 1983 to adopt the
working-plan.
B. Points at issue
30. The issues to be determined are:
- Whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention;
- Whether there has been a violation of Article 13 (Art. 13) of the
Convention.
C. Article 6 para. 1 (Art. 6-1) of the Convention
31. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as it is
relevant, reads as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing .... by [a] ...
tribunal..."
32. The applicants allege a violation of Article 6 para. 1 (Art. 6-1)
of the Convention since they could not obtain a court examination of
the decision to construct the road.
33. The Government submit that the decision adopting the working-plan
meant that the applicants had to give up part of their properties in
a way similar to expropriation. Thus, the decision was decisive for
their "civil rights" within the meaning of Article 6 para. 1 (Art. 6-1)
of the Convention. The Government further admit that the applicants had
no possibility to have the decision examined by a tribunal.
34. In the light of the Court's case-law there can be no doubt that
the applicants' right to enjoy their properties was "civil" in nature
within the meaning of Article 6 para. 1 (Art. 6-1) (see, inter alia,
Eur. Court H.R., Oerlemans judgment of 27 November 1991, to be
published as Series A no. 219, paras. 48-49).
35. The Commission must next examine whether the decision to adopt
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 with regard to that
decision.
36. 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, i.e. for approximat
tely two an
a half years. Thus, the adoption of the plan was decisive for the
applicants' "civil rights and obligations".
37. Under Section 13 of the Act it shall be ensured that the road to
be constructed is located and designed so as to achieve the purpose of
the road with the least possible interference and inconvenience and
without unreasonable costs.
38. The applicants appealed against the decision of 1 July 1983
alleging inter alia that the bypass would run straight through their
agricultural properties and seriously diminish their possibilities to
use the land for farming.
39. The Commission finds that there existed a genuine dispute of a
serious nature between the applicants and the authorities concerning
the lawfulness of the working-plan.
40. Consequently, Article 6 para. 1 (Art. 6-1) of the Convention is
applicable to the present case.
41. The Commission must next determine 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.
42. The Commission recalls that the working-plan was adopted by the
NRA on 1 July 1983. This decision was subject to appeal to the
Government, which rejected the applicants' appeals on 31 January 1985.
No further appeal lay against that decision.
43. It follows that the dispute was determined by the Government in
the final resort. The Government's decision was not open to review as
to its lawfulness by either ordinary or administrative courts, or by
any other body which could be considered to be a "tribunal" for the
purposes of Article 6 para. 1 (Art. 6-1).
44. Consequently, the applicants did not have at their disposal a
procedure satisfying the requirement of Article 6 para. 1 (Art. 6-1).
Conclusion
45. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
D. Article 13 (Art. 13) of the Convention
46. The applicants also invoke Article 13 (Art. 13) of the
Convention. They submit that there was no effective remedy in respect
of the restriction of their civil rights.
47. Having regard to its above conclusion under Article 6 para. 1
(Art. 6-1) (para. 45), the Commission does not consider it necessary
to examine the case also under Article 13 (Art. 13), since the
requirements of Article 13 (Art. 13) are less strict than, and here
absorbed by, those of Article 6 para. 1 (Art. 6-1) (Eur. Court H.R.,
Mats Jacobsson judgment of 28 June 1990, Series A no. 180-A, pp. 14-15,
para. 38).
Conclusion
48. The Commission concludes, by a unanimous vote, that it is not
necessary to examine separately whether there has been a violation of
Article 13 (Art. 13) of the Convention.
E. Recapitulation
49. - 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. 45).
- The Commission concludes, by a unanimous vote, that it is
not necessary to examine separately whether there has been a violation
of Article 13 (Art. 13) of the Convention (para. 48).
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
______________________________________________________________________
15 July 1985 Introduction of the application
2 April 1987 Registration of the application
Examination of admissibility
13 March 1989 Commission's decision to invite the
Government to submit observations on
the admissibility and merits of the
application
19 May 1989 Government's observations
8 July 1989 Applicants' observations in reply
8 January 1991 Commission's decision to refer the
application to the Second Chamber
5 March 1991 Commission's decision to declare the
application partly admissible and
partly inadmissible
12 March 1991 Communication to the parties of the
text of the decision on admissibility
Examination of the merits
8 July 1991 Commission's consideration of the
state of proceedings
14 October 1991 Commission's consideration of the
state of proceedings
1 April 1992 Commission's deliberations on the
merits, final vote and adoption of
the Report
Full & Egal Universal Law Academy