Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 14282/88

Lennart and Gunny ZANDER

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 14 October 1992)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 15). . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2 - 4) . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5 - 11). . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 12 - 15) . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16 - 31) . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 16 - 23) . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law and practice

(paras. 24 - 31) . . . . . . . . . . . . . . . . . 4

III. OPINION OF THE COMMISSION

(paras. 32 - 49) . . . . . . . . . . . . . . . . . . . . 6

A. Complaint declared admissible

(para. 32). . . . . . . . . . . . . . . . . . 6

B. Point at issue

(para. 33). . . . . . . . . . . . . . . . . . 6

C. Article 6 para. 1 of the Convention

(paras. 34 - 48). . . . . . . . . . . . . . . 6

D. Conclusion

(para. 49). . . . . . . . . . . . . . . . . . 8

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . 9

APPENDIX II : DECISION ON THE ADMISSIBILITY. . . . . . . . . .10

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 are husband and wife and both Swedish citizens.

Before the Commission they are represented by Mr. Staffan Michelson,

a lawyer practising in Stockholm.

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 concerns the absence of a right to a court review of a

decision granting an extended right to treat refuse on a property

adjacent to the one owned by the applicants. The applicants invoke

Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 2 September 1988 and registered

on 12 October 1988.

6. 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 the admissibility and merits.

7. 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.

8. On 9 April 1991 the Commission decided to refer the application

to the Second Chamber. On 25 April 1991 the Government submitted

additional observations.

9. On 14 October 1991 the Commission (Second Chamber) declared the

application admissible and invited the parties to submit further

observations on the merits.

10. Further observations were submitted by the Government on

3 December 1991 and by the applicants by an undated letter of

December 1991.

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 took place between

December 1991 and February 1992. In the light of the parties'

reactions, the Commission now finds that there is no basis upon which

such a settlement could 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. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

13. The purpose of the Report, pursuant to Article 31 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.

14. 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.

15. 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

16. The applicants own a property in Gryta in the municipality of

Västerås adjacent to a property on which a company (VAFAB) 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").

17. In 1979 it was discovered that refuse containing cyanide had been

tipped on the dump. Analyses of drinking-water emanating from a well

adjacent to the dump showed excessive occurrence of cyanide. The Health

Care Board (hälsovårdsnämnden) of Västerås then prohibited the use of

the water and provisionally supplied the property owner dependent on

that water with municipal drinking-water transported to him by truck.

18. Further analyses carried out in October 1983 showed excessive

occurrence of cyanide also in six further wells around the dump. The

Environment and Health Care Board (miljö- och hälsoskyddsnämnden) of

Västerås then prohibited the use of the water in those wells and

provisionally supplied the dependent property owners (including the

applicants) with municipal drinking-water.

19. In June 1984 the limit of cyanide allowed was raised and from

February 1985 the property owners no longer received municipal

drinking-water.

20. In July 1986 VAFAB requested a permit to, inter alia, take care

of untreated household refuse also after 1986, to store ashes and slag

from three further refuse combustion plants (the previous permit

allowed the storing of such refuse from one plant) and to extend the

area for storing cinders.

21. In the proceedings before the Licensing Board the applicants

argued that the proposed increase in activities on the dump involved

a risk of further pollution of their drinking-water. In view of this

they requested that the permit contain a precautionary measure under

Section 5 of the 1969 Act to the effect that VAFAB be obliged to supply

the eleven property owners dependent on the wells with municipal

drinking-water.

22. By decision of 13 March 1987 the Licensing Board granted VAFAB's

request and rejected the applicants' request under Section 5, finding

that there was no likely connection between the activities on the dump

and any pollution of the drinking-water. Notwithstanding a possible

risk of pollution the Board found it unreasonable to order the company

to take such a general precautionary measure as the one requested by

the applicants. It ordered, however, that the water in the wells should

be analysed at regular intervals and the owners be informed of the

results. If suspicions were to arise that the dump was polluting the

water the company was immediately to comply with any orders issued by

the County Administrative Board (länsstyrelsen) to the effect that the

property owners be supplied with municipal drinking-water.

23. The applicants appealed to the Government, which rejected the

appeal on 17 March 1988.

B. Relevant domestic law and practice

24. 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 detrimental effects of that activity by taking reasonable

protective or precautionary measures or by tolerating reasonable

restrictions. Regard should be had to both public and private

interests.

25. When a permit is issued by the Licensing Board 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 party concerned may lodge an

appeal with the Government (Section 48).

26. 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 of 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).

27. Section 34 provides a possibility to file a claim with a Real

Estate Court (fastighetsdomstol), a specially composed District Court

(tingsrätt), on the grounds of environmentally hazardous activity. Such

a claim may 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.

28. 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. Thus, if a permit has

been issued under the 1969 Act a claim under Section 34 cannot be

considered. Exceptions are to be found in Sections 23-25, 29 and 40.

None of those provisions are relevant in the present case.

29. 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).

30. On 18 August 1986 the Supreme Court rendered a judgment (NJA 1986

p. 422) concerning the refusal of public legal assistance to a property

owner requesting under Section 5 that the use of pesticides on an

adjacent property be restricted, alternatively that protective measures

be taken by the owner of that property. In rejecting the request a Real

Estate Court had revoked the order granting legal assistance,

considering that the measure requested could only be ordered under very

exceptional circumstances and, therefore, the property owner could not

be considered to have a sufficient legal interest in pursuing his

request. The refusal of further legal assistance was upheld by a Court

of Appeal. In reversing that decision the Supreme Court found that the

property owner's request under Section 5 of the 1969 Act was a remedy

prescribed under that very Act to be used in respect of environmentally

hazardous activities of a neighbour, in particular in situations where

no permit under the 1969 Act is necessary. The property owner,

therefore, did have a sufficient legal interest in pursuing the

request.

31. In a decision of 1977 (KN no. 36/77) the Licensing Board refused

a licence for a latex emulsion plant, finding that, although the plant

would not cause any objective and considerable risk of damage, it could

not be excluded that there could, at least during a transition period,

remain a significant feeling of uncertainty among the neighbours as to

risks caused by the plant. Such uncertainty could also affect the value

of the properties in the vicinity and was to be taken into account when

considering the licence matter.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

32. The complaint declared admissible concerns the absence of a right

to have the applicants' civil rights determined by a court.

B. Point at issue

33. The issue to be determined is whether there has been a violation

of Article 6 para. 1 (Art. 6-1) of the Convention.

C. Article 6 para. 1 (Art. 6-1) of the Convention

34. Article 6 para. 1 (Art. 6-1) of the Convention reads, insofar as

it is relevant, as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a ... hearing ... by [a] ...

tribunal ..."

35. The applicants allege a violation of Article 6 para. 1

(Art. 6-1) in that they had no possibility of a court review of the

decision to grant a permit to a neighbour to increase the activities

on the dump.

36. The Commission must, in order to determine the issue in question,

ascertain whether there was a dispute over a "right" which can be said,

at least on arguable grounds, to be recognised under domestic law. The

dispute must be a genuine and serious one; it may relate not only to

the actual existence of a right but also to its scope and the manner

of its exercise, and the result of the proceedings must be directly

decisive for the right in question. Finally, the right must be of a

"civil" character (cf. e.g. Eur. Court H.R., Skärby judgment of

28 June 1990, Series A no. 180-B, pp. 36 and 37, paras. 27 and 29).

37. The Commission first finds that there was a genuine and serious

dispute with regard to the right of protection from the risk of

pollution claimed by the applicants under Section 5 of the 1969 Act.

38. The Commission must next determine whether the dispute related

to a right of a "civil" character. It first recalls that the concept

of "civil rights and obligations" is not to be interpreted solely by

reference to the respondent State's domestic law and that Article 6

para. 1 (Art. 6-1) applies irrespective of the parties' status, be it

public or private, and of the nature of the legislation governing the

manner in which the dispute is to be determined. It is sufficient that

the action was "pecuniary" in nature and that the action was founded

on an alleged infringement of rights which were likewise pecuniary

rights (Eur. Court H.R., Editions Périscope judgment of 26 March 1992,

to be published in Series A no. 234-B, para. 40) or that the outcome

of the proceedings should be "decisive for private rights and

obligations" (Eur. Court H.R., X v. France judgment of 31 March 1992,

to be published in Series A no. 236, para. 30).

39. The applicants have objected to the Licensing Board's finding

that no risk of pollution was at hand. They contend that the dispute

did regard their civil right under Section 5 of the 1969 Act to obtain

protection from that risk, in particular as under Section 22 the

issuing of a permit under the 1969 Act prevented them from submitting

a claim for precautionary measures to a Real Estate Court. They further

refer to the judgment by the Supreme Court of 18 August 1986

recognising a general right to lodge a request under Section 5 of the

1969 Act in order to have detrimental effects of an environmentally

hazardous activity prevented.

40. The Government have refuted the applicants' assertion that a

civil right of theirs was determined when the Licensing Board and the

Government considered the licence matter. The applicants could not

maintain, on arguable grounds, that they were entitled to have the risk

of any environmentally hazardous activity excluded, nor was there any

risk at hand affecting their interests as property owners. Had the

applicants been injured or their property been damaged they would have

had a right to compensation under the 1986 Act in accordance with a

procedure satisfying the requirements in Article 6 para. 1

(Art. 6-1) of the Convention.

41. The Commission first notes that if, as a result of VAFAB's

activities, the applicants had suffered actual damage by pollution of

their drinking-water, they would have had a right to compensation under

Section 3 of the Environmental Damage Act (see para. 29 above) and to

a court determination of any claim for such compensation. However, the

question which has to be considered in the present case is whether,

although no such damage had occurred, the applicants' civil rights were

already at issue at the time when a permit was granted to VAFAB to

carry on activities which in the applicants' view involved a risk for

damage.

42. The domestic proceedings in the present case would seem to show

that the applicants were in fact recognised as having a certain right

which had to be taken into account by the authorities. It is clear that

the applicants were allowed to present their objections in the

proceedings before the Licensing Board, and the examination of these

objections was in fact an important element in the reasoning contained

in the Board's decision. Moreover, the applicants were considered to

have competence to appeal against the Board's decision, and the

Government considered their appeal admissible and examined the

substance of their arguments.

43. The Commission has also noted that, according to certain Swedish

case-law referred to by the applicants (see paras. 30 and 31 above),

it would seem to be recognised in Swedish law that a property-owner may

be considered to enjoy a certain right to have his interests taken into

account already at the stage when a decision is taken on a request for

a permit to carry on an environmentally hazardous activity in the

neighbourhood.

44. The Commission is therefore of the opinion that the applicants

could arguably claim that the Licensing board's decision of

13 March 1986 affected their rights under Swedish law.

45. As regards the character of the right at issue, the Commission

notes that the right related to the environmental conditions of the

applicants' property and that the existence of environmental

inconveniences or risks might well be a factor which affects the value

of a property. Consequently the right at issue must be considered to

be a civil right to which Article 6 para. 1 (Art. 6-1) of the

Convention applies.

46. The Commission must finally 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.

47. The Commission recalls that the applicants' appeal against the

Licensing Board's decision was examined by the Government in the final

resort. Their 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 a "tribunal" for the purposes of

Article 6 para. 1 (Art. 6-1).

48. Consequently, the applicants did not have at their disposal a

procedure satisfying Article 6 para. 1 (Art. 6-1).

D. Conclusion

49. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

2 September 1988 Introduction of the application

12 October 1988 Registration of the application

Examination of admissibility

5 November 1990 Commission's decision to invite the

Government to submit observations on

the admissibility and merits of the

application

23 January 1991 Government's observations

22 March 1991 Applicant's observations in reply

9 April 1991 Application referred to Second Chamber

25 April 1991 Government's additional observations

14 October 1991 Commission's deliberations and

decision to declare the application

admissible

23 October 1991 Decision on admissibility transmitted

to the parties

Examination of the merits

2 April 1992 Commission's consideration of the

state of proceedings

2 September 1992 Commission's consideration of the

state of proceedings

14 October 1992 Commission's deliberations on the

merits, final vote and adoption of the

Report

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ZANDER v. SWEDEN

ZANDER v. SWEDEN

LEXI