AS TO THE ADMISSIBILITY OF
Application No. 14282/88
by Lennart and Gunny ZANDER
against Sweden
The European Commission of Human Rights (Second Chamber)
sitting in private on 14 October 1991, the following members being
present:
MM. S. TRECHSEL, President of the Second Chamber
G. SPERDUTI
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
Mr. 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 2 September 1988
by Lennart and Gunny ZANDER against Sweden and registered on
12 October 1988 under file No. 14282/88;
Having regard to:
- the report provided for in Rule 47 of the Rules of Procedure
of the Commission;
- the Commission's decision of 5 November 1990 to bring the
application to the notice of the respondent Government and invite them
to submit written observations on its admissibility and merits;
- the observations submitted by the respondent Government on
23 January and 25 April 1991 and the observations in reply submitted
by the applicant on 22 March 1991;
- the Commission's decision of 9 April 1991 referring the
application to the Second Chamber;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Swedish citizens, resident at Västerås.
Before the Commission they are represented by Mr. Staffan Michelson, a
lawyer practising in Stockholm.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
The applicants own a property in Gryta in the municipality of
Västerås adjacent to a property on which a company takes care of and
treats refuse from inter alia households and industries. A permit for
such activities was granted to the company by the National Licensing
Board for Environment Protection (koncessionsnämnden för miljöskydd,
hereinafter "the Licensing Board") on 1 July 1983 under the 1969
Environment Protection Act (miljöskyddslagen, hereinafter "the 1969
Act").
In 1979 it had been discovered in a police investigation that
refuse containing cyanide had been tipped on the dump. Following
analyses of the drinking water showing excessive occurrence of cyanide
in a well adjacent to the dump the Health Care Board (hälsovårds-
nämnden) of Västerås prohibited the property owner from using the
water. He was then provided with drinking water by the municipality.
New analyses of the water were carried out in 1983 showing excessive
occurrence of cyanide also in other wells around the dump. In October
1983 the Environment and Health Care Board (miljö- och hälsoskydds-
nämnden) of Västerås prohibited the water in the wells from being used
for drinking and preparation of food. In June 1984 the limit of
cyanide allowed was raised and in February 1985 the property owners
stopped receiving municipal drinking water.
By decision of 13 March 1987 the Licensing Board granted the
company a permit to take care of untreated household refuse also after
1986. The company was furthermore allowed to store ashes and slag from
three further refuse combustion plants. The previous permit allowed
the storing of such refuse from one plant. Finally, the company was
allowed to extend the area for storing cinders. Being of the opinion
that the increased activities involved a risk that their drinking-
water would be polluted in particular by cyanide because of leakage
from the dump, the applicants together with other property owners had
requested that the permit contain a condition or precautionary measure
under Section 5 of the 1969 Act to the effect that the company be
obliged to supply eleven property owners with municipal drinking-
water.
This request was rejected, as the alleged connection between
the activities on the dump and the occurrence of cyanide was
considered unlikely. The Licensing Board further considered that,
notwithstanding the possible risk of pollution, it would have been
unreasonable to order the company to take such a general precautionary
measure. However, the Licensing Board ordered that the water in the
wells should be continuously analysed and the owners be informed of
the results. If suspicions would arise that the water was being
polluted by the dump the company was immediately to comply with any
orders issued by the County Administrative Board (länsstyrelsen) to
supply the property owners with drinking water.
The applicants appealed to the Government which rejected the
appeal on 17 March 1988.
Relevant domestic law
According to Section 1 of the 1969 Act any use of land that
may cause pollution of inter alia water or air is defined as
environmentally hazardous activity. Section 5 imposes an obligation on
those who carry out or intend to carry out such an activity to prevent
or remedy, by taking protective or precautionary measures or by
tolerating restrictions, detrimental effects of that activity. Regard
should be had to both public and private interests. According to
Section 10 the Government may decide that certain types of
environmentally hazardous activity shall not be allowed and that an
already established activity may not be altered in a way which could
cause increased or new detriment or significant disturbance unless the
Licensing Board has issued a permit under the 1969 Act. Such a
requirement may be found in Sections 3 and 5 of the 1989 Environment
Protection Ordinance (miljöskyddsförordningen, hereinafter "the 1989
Ordinance).
The Licensing Board is composed of a chairman and three other
members. The chairman shall be well-versed in legal matters and
experienced in performing judicial tasks. The other members must have
experience from matters falling within the sphere of the National
Environment Protection Board's (Naturvårdsverket) activities, of
technical matters and of industrial operations, respectively. All
members are nominated by the Government (Section 11 of the 1969 Act).
When a permit is issued according to Section 10 of the 1969
Act the environmentally hazardous activity itself and the conditions
prescribed for the activity shall be specified in detail (Section 18).
Any concerned party may lodge an appeal with the Government against
the decisions of the Licensing Board (Section 48).
The 1969 Act also provides a possibility to file a claim on
the grounds of environmentally hazardous activity (Section 34). Such
claims shall be filed with a Real Estate Court (fastighetsdomstol),
a specially composed District Court (tingsrätt), and may inter alia
aim at obtaining a ruling obliging the person or company concerned to
take protective or precautionary measures in order to continue the
activity in question. However, such a claim has no impact on the
environmentally hazardous activity as such, as under Section 22 an
activity which has been permitted under the 1969 Act may not be
ordered to be discontinued under a provision in that Act, neither may
precautionary measures be imposed to a further extent than what has
been stated in the permit. Exceptions are to be found in Sections
23-25, 29 and 40. None of those provisions are relevant in the present
case.
According to Section 3 of the 1986 Environmental Damage Act
(miljöskadelagen, hereinafter "the 1986 Act") damage or injury caused
inter alia by pollution of ground water and water courses entitles the
damaged or injured party to compensation provided that a substantial
probability of a causal connection has been established. The liability
to pay compensation is imposed on those who carry on or cause
deleterious activities to be carried on (Section 6). The Real Estate
Court may grant a claim for compensation, even if the activity has
been permitted under the 1969 Act. The decision of that court can be
brought before a Court of Appeal (hovrätt) and ultimately, with leave
to appeal, before the Supreme Court (Högsta domstolen).
COMPLAINTS
The applicants complain that they had no right to have their
civil rights determined by a court. They refer to Section 22 of the
1969 Act and allege a violation of Article 6 para. 1 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 2 September 1988 and
registered on 12 October 1988.
On 5 November 1990 the Commission decided to bring the
application to the notice of the respondent Government and invite them
to submit written observations on its admissibility and merits.
The Government's observations were submitted on 23 January
1991. Following an extension of the time-limit the applicants'
observations in reply were submitted on 22 March 1991. Additional
observations were submitted by the Government on 25 April 1991.
On 9 April 1991 the Commission decided to refer the
application to the Second Chamber.
THE LAW
The applicants complain that they had no right to have their
civil rights determined by a court. They refer to Section 22 of the
1969 Act and 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 an independent
and impartial tribunal ..."
The Government submit that the application is incompatible
ratione materiae with the Convention within the meaning of Article 27
para. 2 (Art. 27-2). The applicability of Article 6 para. 1 (Art. 6-1)
of the Convention extends only to disputes over "civil rights and
obligations" which can be said, at least on arguable grounds, to be
recognised under domestic law. The dispute must be genuine and of a
serious nature. The present application is based on the assumption
that a civil right of the applicants was determined when the Licensing
Board and the Government considered the license matter. However,
there is no right under Swedish law to be kept absolutely safe from or
to obtain compensation for risks caused by environmentally hazardous
activities. Had the applicants been injured or their property
damaged they would have had a right to compensation under the 1986
Act in accordance with a procedure satisfying the requirements in
Article 6 (Art. 6) of the Convention. Thus, the difference in the
assessment of the risk between, on the one hand, the applicants and,
on the other hand, the Licensing Board and the Government was not
decisive for any rights of the applicants. The applicants could not
maintain, on arguable grounds, that they were entitled to have the
risk of any environmentally hazarduous activity excluded, nor was
there any such risk at hand. Thus, there was no dispute over a
"right". Moreover, a careful consideration of the impact of the
dump on the applicants' water supply was carried out in the
administrative proceedings. In their decision of 17 March 1988 the
Government noted an opinion of the Geological Survey of Sweden
(Sveriges geologiska undersökning) according to which it did not seem
likely that water from the dump had polluted or could pollute the
drinking water. The Government further decided that there should be
continuous control by means of thorough examinations in order to
detect the possible existence of any detrimental effect on the
drinking water. If such a control gives rise to a suspicion that the
drinking water is being negatively affected by the dump, the company
has an obligation to supply the property owners with household water
acceptable from the point of view of health.
Should the Commission find that the proceedings were decisive
for any right of the applicants under Swedish law, the Government
reserve their position as to whether such a right should be considered
to be of a "civil" character.
The applicants contend that there was a concrete and genuine
dispute regarding the risk of further pollution of their drinking
water, as it had already been proved that it contained cyanide which
most likely originated from the dump. One of the most fundamental aims
of the 1969 Act is to guarantee the individuals their right to
protection from such a risk. The assessment of the risk as made by the
administrative authorities was directly decisive for the applicants'
rights. The Geological Survey of Sweden is directly subordinated to and
dependent on the Government and the investigations carried out by that
organ were rudimentary. Under Swedish law the applicants were entitled
to protection from encroachment and detriment caused by hazardous
activities. However, a permit for such activities had been granted by
the Licensing Board and, according to Section 22 of the 1969 Act, they
could not submit such a claim to a court.
The Commission considers that the issues to be determined are
whether the decision to grant a permit to increase the activities on
the dump was decisive for the applicants' "civil rights" within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention and, if so,
whether a genuine and serious dispute arose between the applicants and
the Swedish authorities in relation to that decision. In the
affirmative, it would have to be determined whether the applicants
had at their disposal a procedure satisfying the requirements of
Article 6 para. 1 (Art. 6-1) of the Convention in regard to that
dispute.
The Commission considers that these issues require an
examination of the merits of the case. It follows that the
application is not manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for
declaring it inadmissible has been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy