EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 12318/86
Rolf WOLLART
against
SWEDEN
REPORT OF THE COMMISSION
(adopted on 5 March 1991)
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. 11-13) ................................... 2
II. ESTABLISHMENT OF THE FACTS (paras. 14-29) ............ 3
A. The particular circumstances of the case
(paras. 14-20) ................................... 5
B. Relevant domestic law
(paras. 21-29) ................................... 5
III. OPINION OF THE COMMISSION (paras. 30-45) ............. 7
A. Complaints declared admissible (para. 30) ........ 7
B. Points at issue
(para. 31) ....................................... 7
C. Article 6 of the Convention
(paras. 32-40) ................................... 7
D. Article 13 of the Convention (paras. 41-43)....... 8
E. Recapitulation (paras. 44-45) .................... 8
APPENDIX I : HISTORY OF THE PROCEEDINGS ................. 9
APPENDIX II : PARTIAL DECISION ON THE ADMISSIBILITY ...... 10
APPENDIX III: FINAL DECISION ON THE ADMISSIBILITY ........ 16
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 is a Swedish citizen, born in 1931 and resident
in Stockholm. He is represented before the Commission by Mr. Olof
Nyström, a lawyer practising in Stockholm.
3. The application is directed against Sweden. The Government
are represented by their Agent, Mr. Carl Henrik Ehrenkrona, Legal
Adviser at the Ministry for Foreign Affairs, Stockholm.
4. The case relates to the absence of a court review with regard
to a dispute over a refusal to grant the applicant a building permit. It
raises issues under Articles 6 para. 1 and 13 of the Convention.
B. The proceedings
5. The application was introduced on 30 May 1986 and registered
on 5 August 1986. The Commission decided on 8 September 1988 to
adjourn the examination of the applicant's procedural complaint
regarding the Government's decision of 16 January 1986 and to declare
inadmissible the remainder of the application (see Appendix II). The
adjourned part of the application was communicated to the Government
for written observations on the admissibility and merits of the
complaints under Articles 6 and 13 of the Convention.
The Government's observations were dated 2 December 1988 and
the applicant's observations in reply were dated 5 April 1989.
6. On 10 July 1989 the Commission declared the remainder of the
application admissible. The Commission also decided to adjourn the
further examination of the case until the European Court of Human
Rights had delivered judgment in the case of the Estates of Mr. and
Mrs. Skärby and their heirs and children. On 28 June 1990 the Court
delivered judgment in the Skärby case (Eur. Court H.R., Skärby
judgment of 28 June 1990, Series A no 180-B).
7. On 5 July 1990 the parties were invited to submit any
additional observations they wished to put before the Commission. The
Government submitted observations by letter dated 30 August 1990 and
the applicant submitted a letter dated 11 September 1990. Further
observations from the applicant were received on 19 November 1990
and from the Government on 20 December 1990.
8. On 25 February 1991 the Commission decided to refer the case
to the Second Chamber.
9. 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. 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
10. 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
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ
Mrs. J. LIDDY
J.-C. GEUS
M.P. PELLONPÄÄ
The text of the Report was adopted by the Commission on
5 March 1991 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
11. 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 State concerned of its
obligations under the Convention.
12. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decisions on the admissibility of the application form Appendices II
and III.
13. 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
14. The applicant owns the property Oppsätra 1:5 situated
approximately 50 kilometres outside Stockholm in the Municipality of
Österåker (previously the Municipality of Vaxholm). Having obtained a
building permit in 1979, he built a leisure house of 60 square metres
on the property. The house was inspected and approved by the
municipality in February 1982 in spite of the fact that the applicant
had in some respects deviated from the building permit.
15. A few months later the applicant applied to the Building
Committee (byggnadsnämnden) of Vaxholm for a new building permit. On
16 November 1982 the Building Committee rejected that application
finding no reason to grant exemption from the applicable prohibition
of urban development. It further ordered the applicant under the
threat of a penalty of 40,000 SEK to alter the building so that it
conformed with the building permit issued in 1979. The Committee also
decided, in accordance with the Act on Penalties and Interventions in
Cases of Illegal Construction etc. (lagen om påföljder och
ingripanden vid olovligt byggande m.m.), to impose on the applicant a
building fee of 8,800 SEK and, in accordance with the same Act, to
transmit to the public prosecutor for examination the question of a
supplementary fee. The decision of the Building Committee states
inter alia the following:
" On the property there is a leisure house with a building area
of 95 square metres and a gross area of 119 square metres. The
building has been erected on the basis of a building permit
issued on 15 May 1979. When the building was erected the
building permit was not respected in the sense that the roof
of the building was prolonged, a five metre long wall was
erected as a terrace, a cellar was created with a window and
inside staircase. As a result of the illegal measures, the
gross area of the building has been increased by 59 square
metres in excess of what was permitted under the building
permit. Consequently, the building is now in conflict with
the guidelines in the municipality's area plan concerning
restrictions of building areas with the aim of preventing
permanent settlement within areas which are not planned for
this. The building has been made considerably more suited for
permanent living than foreseen in the building permit. The
applicant has even stated that he now lives permanently in the
building. In these circumstances the Building Committee finds
that the building is to be considered as a completely new
construction when examining the question of a supplementary
fee under the Act on Penalties and Interventions in Cases of
Illegal Construction etc.
The property owner has been given an opportunity to correct
what he has done and to avoid penalties under the said Act. He
has, however, requested that his pending application for a
building permit, which inter alia covers some of the unlawful
constructions, shall be dealt with immediately. He requests
permission to alter the construction and to add a living room
and the previously mentioned cellar with an inside staircase
and window. ... The proposed constructions comprise 85 square
metres gross area of which 59 square metres concern the
cellar.
The construction proposed is to be regarded as urban
development. Exemption from the prohibition against urban
development under Section 56 of the Building Ordinance
(byggnadsstadgan) is therefore required. According to the
guidelines for the examination of questions of building permits
in the area plan adopted by the municipality, the prohibition of
urban development should be applied restrictively so as to limit
the gross areas of buildings to, at the most, 60 square metres
for leisure houses and 30 square metres for out-houses in cases
where exemption from the prohibition is granted. The aim of the
restrictions is to prevent permanent living in areas which have
not been planned for this. The constructions are in conflict with
the guidelines of the area plan of the municipality."
16. As a result of a letter from the applicant dated 10 January
1983, the Building Committee reconsidered the previous decision of 16
November 1982. However, on 22 March 1983 the Building Committee
decided to maintain its previous decision and ordered that the
applicant should have the construction altered within five months from
receipt of the decision.
17. The applicant appealed to the County Administrative Board
(länsstyrelsen) of the Stockholm County. He claimed that the Board
should quash the decision to refuse a building permit, grant him
exemption from the prohibition of urban development and quash the
order under the threat of a penalty to change the building in
accordance with the building permit previously granted. In support of
his appeal, the applicant submitted that the municipality's area plan
did not have any legal effect and that permanent living in a leisure
house was not unlawful. On 30 November 1983 the County Administrative
Board upheld the Building Committee's decision. It stated inter alia:
"The measures under examination - both those which have been
carried out and those for which permission is requested - are
to be considered as erection of new buildings (Section 54
para. 1 and Section 75 of the Building Ordinance) and involve
urban development within the meaning of the Building Act
(byggnadslagen) in view of the fact that by the measures the
leisure house would be transformed into a permanent dwelling in
particular as a result of the considerable addition of living
area. There are no special reasons justifying an exemption in
order to allow these measures.
The County Administrative Board therefore finds that
the Building Committee's order under penalty of 40,000 SEK to
modify the construction so as to comply with the building
permit of 15 May 1979 shall be upheld. Thus the cellar should
be refilled... the staircase should be taken away and the
opening as well as the windows in the cellar shall be taken
away. The terrace and the roof shall be reduced."
18. The applicant lodged a further appeal with the Administrative
Court of Appeal (kammarrätten) of Stockholm. On 30 May 1985, the
Administrative Court of Appeal decided that since the appeal included
the question of an exemption from certain regulations concerning urban
development the appeal should, as a whole, be examined by the
Government. In accordance with Section 9 of the Act on Administrative
Courts (lagen om allmänna förvaltningsdomstolar), the Administrative
Court of Appeal decided to transmit the appeal to the Government. In
the decision the Administrative Court of Appeal stated as its opinion
that, provided that the Government granted the required exemption, it
had no objection to a building permit being granted. If exemption were
not granted the Administrative Court of Appeal suggested that the
Government should reject the appeal and that the time-limit within
which the order should be executed should be fixed at four months from
receipt of the Government's decision.
19. On 16 January 1986, after having received further arguments
from the applicant, the Government (the Ministry of Housing) rejected
the applicant's appeal. The Government agreed with the assessment of
the County Administrative Board and decided that the order should be
executed within four months from the applicant's receipt of the
Government's decision. The Government noted that the examination in
the case did not concern the extension of the roof and the terrace
which had been accepted by the Building Inspector according to the
minutes of 2 February 1982.
20. Subsequently, on 10 November 1987 the applicant was granted a
building permit for reconstruction of the cellar with windows and an
inside staircase. This decision was made under the 1987 Plan and
Building Act (plan- och byggnadslagen).
B. Relevant domestic law
21. Until 1 July 1987 a property owner's rights to build on his
property were regulated by the 1947 Building Act and the 1959 Building
Ordinance. On 1 July 1987 the Plan and Building Act replaced the
1947 Act.
22. Section 1 of the 1947 Act provided that constructions on a
property required a building permit to the extent laid down by the
Government. Section 54 of the 1959 Ordinance specified that a permit
was required for all new constructions except for the construction of
certain buildings.
23. Before a building could be erected on a property, Section 5 of
the 1947 Act called for an examination of whether the property was
suitable from a general point of view for this purpose. Such an
examination was to be effected by planning procedure, except for
non-urban areas where it could be made when an application for a
building permit was under consideration.
24. Regulations for non-planned areas (i.e. areas not covered by a
town or a building plan) inter alia prohibited the construction of new
buildings on properties which were not found to be suitable in the
general interest for this purpose.
25. Under Section 56 of the 1959 Ordinance, the authorities could
not grant permits for new constructions which would result in urban
development (tätbebyggelse) within an area not covered by a town plan
or a building plan. However, under Section 67 para. 1 of the
Ordinance an exemption could be granted from this prohibition if there
were special reasons.
26. Applications for building permits were to be filed with the
local building committee. If an application concerned a property
subject to a building prohibition, it was in practice considered as
including also an application for exemption from the prohibition. The
applicant could, however, choose to apply for an exemption only, in
order to apply for a permit when the question of exemption had been
resolved.
27. The examination of an application for a building permit
involved ascertaining that the intended building would not run counter
to any confirmed plan, to the regulations for non-planned areas, or to
a building prohibition, and that it satisfied technical demands on
construction. In the absence of such obstacles, a permit should have
been granted.
28. Decisions by the Building Committee to refuse building permits
or exemptions from building prohibitions could be appealed to the
County Administrative Board.
29. Appeals against the Board's decisions lay to the Government as
regards exemptions from building prohibitions and to the
Administrative Court of Appeal as regards building permits. In the
latter case a further appeal to the Supreme Administrative Court
(regeringsrätten) could be lodged if leave to appeal was granted. If
the Board decided both questions, appeals were to be lodged with the
Administrative Court of Appeal. If this Court found that the
construction did not require any exemption from a building
prohibition, it would proceed to examine the permit question.
Otherwise, the Court would transfer the case to the Government for the
final decision, together with an opinion on the permit issue.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
30. The Commission has declared admissible the applicant's
complaints regarding the absence of a court review in respect of the
Government's decision of 16 January 1986 confirming the refusal of a
building permit and the restoration order.
B. Points at issue
31. 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 (Art. 6) of the Convention
32. The applicant alleges a violation of Article 6 para. 1
(Art. 6-1) of the Convention on the ground that no court review was
available in respect of the Government's decision of 16 January 1986.
The Government admit that there has been a violation of Article 6
para. 1 (Art. 6-1) of the Convention as alleged by the applicant.
33. Article 6 para. 1 (Art. 6-1) first sentence reads, insofar
as relevant:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law."
34. The Commission recalls that the absence of the right to a
court review in the context of the 1947 Building Act and the 1959
Building Ordinance has previously been examined by the Convention
organs. Reference is made in particular to the Sporrong and Lönnroth
case (Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September,
1982, Series A no. 52), the Allan Jacobsson case (Eur. Court H.R.,
Allan Jacobsson judgment of 25 October 1989, Series A no. 163), the
Mats Jacobsson case (Eur. Court H.R., Mats Jacobsson judgment of 28
June 1990, Series A no. 180-A) and the Skärby case (Eur. Court H.R.,
Skärby judgment of 28 June 1990, Series A no. 180-B).
35. The Commission considers that in the present case the
applicant could arguably claim to have a "right" to a building permit
subject to the conditions laid down in the 1947 Act and the 1959
Ordinance. It is further of the opinion that a serious dispute of a
genuine nature arose over that right. Moreover, the right claimed was
"civil" in character (see above-mentioned Skärby judgment, p. 37,
para. 29). The Commission further notes that the outcome of this
dispute would also determine whether or not the restoration order
would be upheld.
36. Consequently, Article 6 para. 1 (Art. 6-1) is applicable.
37. The Government concede that the applicant did not have
available a procedure satisfying the conditions of Article 6 para. 1
(Art. 6-1) of the Convention.
38. The Commission recalls that the Government determined the
dispute in the last restort. The proceedings before the Government
did not, in the Commission's view, constitute proceedings before a
"tribunal" within the meaning of Article 6 para. 1 (Art. 6-1).
Furthermore, the Government's decision was not open to an ordinary
review by the 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).
39. It follows that the applicant did not have at his disposal a
procedure satisfying the requirements of Article 6 para. 1 (Art. 6-1)
with regard to the dispute over the refusal to grant him a building
permit and the restoration order.
Conclusion
40. 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
41. The applicant also maintains that he had no effective remedy
before a national authority. He relies on Article 13 (Art. 13) of the
Convention which provides:
"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."
42. Having regard to its above conclusion under Article 6 para. 1
(Art. 6-1) (para. 40), the Commission considers that it is not
necessary to examine the case under Article 13 (Art. 13). The
requirements of Article 13 (Art. 13) are less strict than, and are
here absorbed by, those of Article 6 para. 1 (Art. 6-1) (see, inter
alia the above-mentioned Sporrong and Lönnroth judgment, p. 31, para.
89).
Conclusion
43. 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
44. 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. 40).
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. 43).
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
______________________________________________________________________
30 May 1986 Introduction of the application
5 August 1986 Registration of the application
Examination of Admissibility
8 September 1988 Commission's decision to invite
the Government to submit
observations in writing on the
admissibility and merits of the
complaints under Articles 6 and 13
of the Convention relating to the
Government's decision of 19 January 1986
and decision to declare inadmissible
the remainder of the application.
2 December 1988 Government's observations
5 April 1989 Applicant's observations in reply
10 July 1989 Decision to declare the remainder of
the application admissible.
Examination of the merits
10 July 1989 Commission's decision to adjourn
further examination until the European
Court of Human Rights had delivered
judgment in the Skärby case.
28 June 1990 The Court delivers judgment in the Skärby
case (Series A no. 180-B)
5 July 1990 Parties invited to submit further
observations on the merits
30 August 1990 and Government's further observations
20 December 1990
11 September 1990 and Applicant's further observations
19 November 1990
6 October 1990 and Commission's consideration of the
8 December 1990 state of proceedings
25 February 1991 Decision to refer the application
to the Second Chamber
5 March 1991 Commission's deliberations on the
merits, final vote and adoption of
the Report
Full & Egal Universal Law Academy