Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 13625/88

Siv ÖUNAPUU

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 2 September 1992)

TABLE OF CONTENTS

I. INTRODUCTION

(paras. 1 - 16) . . . . . . . . . . . . . . . . . . . 1

A. The application

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

B. The proceedings

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

C. The present Report

(paras. 12 - 16) . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17 - 32). . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 17 - 23) . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 24 - 32) . . . . . . . . . . . . . . . . 3

III. OPINION OF THE COMMISSION

(paras. 33 - 44). . . . . . . . . . . . . . . . . . . 6

A. Complaint declared admissible

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

B. Point at issue

(para. 34) . . . . . . . . . . . . . . . . . . . 6

C. Article 6 para. 1 of the Convention

(paras. 35 - 43) . . . . . . . . . . . . . . . . 6

D. Conclusion

(para. 44) . . . . . . . . . . . . . . . . . . . 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 applicant is a Swedish citizen born in 1947 and resident at

Malmö. She is a student. Before the Commission she was represented by

Mr. Göran Ravnsborg, a university lecturer at Lund.

3. The application is directed against Sweden. The respondent

Government were represented by Mr. Carl Henrik Ehrenkrona, legal adviser

at the Ministry for Foreign Affairs.

4. The case relates to a division of building plots affecting the

applicant's property. She complains that she could not obtain a court

review of the pertinent administrative decisions and invokes

Article 6 para. 1 of the Convention. She also alleges violations of

Articles 17 and 18 of the Convention and Article 1 of Protocol No. 1 to

the Convention.

B. The proceedings

5. The application was introduced on 9 June 1987 and registered on

23 February 1988.

6. On 6 September 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 limited to the issue

under Article 6 para. 1 of the Convention.

7. After an extension of the time-limit the Government's observations

were submitted on 30 January 1991. The applicant's observations in reply

were submitted on 30 March 1991.

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

the Second Chamber.

9. Further observations were submitted by the Government on 22 May 1991

and by the applicant on 4 June 1991.

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

complaint under Article 6 para. 1 of the Convention admissible and the

remainder of the complaints 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 October 1991 and July 1992. 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. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

13. The text of this Report was adopted on 2 September 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 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 applicant was the owner of a property called Slätvaren 42 at

Limhamn in the municipality of Malmö. She further owned an adjacent

property called Slätvaren 2, which consisted of a narrow passage

permitting access for Slätvaren 42 to Street P (Prångaregatan). Slätvaren

42 was situated alongside street S (Strandgatan).

18. According to a town plan adopted on 18 October 1983 Slätvaren 42 was

granted an extended building right along street S. The plan indicated

that if Slätvaren 42 were divided the building plot situated away from

street S would be given a road easement (vägservitut) to street S over

the plot closer to that street.

19. On 13 November 1985 the Building Committee (byggnadsnämnden) of

Malmö adopted a proposal for division of building plots (tomtindelning).

The proposal involved a division of Slätvaren 42 into two building plots,

one called Slätvaren 48 and the other Slätvaren 49. The applicant's house

is situated on Slätvaren 48. Having regard to the right to further

construction allowed along street S Slätvaren 48 was given a road

easement of a breadth of 2,5 metres and a height of 2,5 metres over

Slätvaren 49 to that street. Slätvaren 2 was proposed to be added to the

neighbouring property Slätvaren 1, as the passage was no longer

considered necessary for Slätvaren 48.

20. The applicant opposed the proposal. She submitted that it was

inconvenient to arrange an access from plot 48 to street S. It was better

to keep Slätvaren 2 as a passage for access for plots 48 and 49 to street

P. The applicant invoked Section 33 of the 1959 Building Ordinance

(byggnadsstadgan, hereinafter "the 1959 Ordinance").

21. On 16 July 1986 the County Administrative Board (länsstyrelsen) of

the County of Malmöhus confirmed the division of building plots pursuant

to Section 33 of the 1947 Building Act (byggnadslagen, hereinafter "the

1947 Act"). It found that Section 33 of the 1959 Ordinance did not

prevent the division of building plots. Further, the taking of Slätvaren

2 for the purpose of enlarging another property created a better division

of the properties in the area and the applicant had been compensated as

the building right on Slätvaren 42 had been extended.

22. The applicant's appeal to the Government (Ministry of Housing) was

rejected on 11 December 1986.

23. On 12 June 1987 Slätvaren 2 was transferred and added to Slätvaren

1 in accordance with the division of building plots. Following an

agreement with the owner of that property the applicant was paid

8.505 SEK in compensation.

B. Relevant domestic law

24. Up to 1 July 1987 division of building plots was part of the

planning system under the 1947 Act and the 1959 Ordinance. Under Section

28 of the 1947 Act a building block was to be divided into plots for the

appropriate development in accordance with a town plan. A division was

to take place at the request of the land owner or when the Building

Committee found a division necessary and provided that the landowner

could not reasonably argue that a division should not take place

(Section 30).

25. Under Section 33 of the 1959 Ordinance the purpose of a division was

to create a well-adapted, simple and clear division of a building block.

Every property unit should have access to a street and regard was to be

had to existing easements and property rights as well as to the express

wishes of the property owner.

26. Under Sections 37 and 38 of the 1947 Act construction in a block

which had not been divided into plots was prohibited. If a division had

been carried out construction was allowed to the extent that it complied

with that division. In both cases exemptions could be made for special

reasons.

27. Under Section 34 para. 1 of the 1959 Ordinance a proposal for a

division of building plots was to be made by a surveyor eligible to serve

as Head of the Property Formation Authority (fastighets-

bildningsmyndigheten). It was to be marked on a map and accompanied by

a description. It further had to include the necessary easements. The

division could be carried out provided the area was covered by a town

plan and provided that it was in accordance with the conditions laid down

in the 1970 Property Formation Act (fastighetsbildningslagen, hereinafter

"the 1970 Act"). The division was adopted by the Building Committee and

had to be confirmed by the County Administrative Board, from which an

appeal lay to the Government (Sections 33 and 150 of the 1947 Act).

28. The actual division of the property units was carried out by the

Property Formation Authority. Under Chapter 3, Sections 1 and 2 of the

1970 Act property formation shall allow for each property unit to be

permanently suitable for its purpose with respect to its location, size

and other circumstances. Special regard should be had to the proper shape

of the property and to its access to adjacent roads. The formation should

correspond to the town plan or the division of building plots. However,

exemptions from a town plan or a division of building plots could be

allowed for special reasons provided that the derogation was in

accordance with the purpose of the town plan.

29. When the property formation consisted of property regulation

(fastighetsreglering) land could be transferred from one property to

another (Chapter 5, Section 1). Moreover, the properties should be

composed and shaped in a way which suited their purpose equally well as

before the property regulation. The property could not be changed in such

a way as to decrease its value significantly (Chapter 5, Section 8).

30. If land was transferred from a property the owner had the right to

compensation in money or by receiving other pieces of land. The parties

could settle the question of compensation themselves (Chapter 5,

Sections 2 and 18).

31. An easement created through a property regulation should be of

essential importance to the purposeful use of the property benefiting

from it. It could be created, changed or abolished without any formal

request provided that this was important with regard to another measure

involving a property regulation and if it was carried out in the same

context (Section 10).

32. The Property Formation Authority's decisions with regard to property

regulation, including the creation of easements, could be appealed

against to a Real Estate Court (fastighetsdomstol), a specially composed

District Court (tingsrätt). Further appeals lay to a Court of Appeal

(hovrätt) and the Supreme Court (Högsta domstolen), in the latter case

provided that leave to appeal was granted.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

to a court review of the division of building plots.

B. Point at issue

34. 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

35. 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

..."

36. The applicant alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention in that she did not have the possibility of

a court review of the administrative decisions concerning the division

of building plots.

37. The Government admit a violation of Article 6 para. 1 (Art. 6-1) of

the Convention in that the applicant had no access to court to challenge

the decision to divide the building plots.

38. The Commission considers that there existed a genuine dispute of a

serious nature between the applicant and the authorities concerning the

lawfulness of the division of building plots.

39. Consequently, Article 6 para. 1 (Art. 6-1) of the Convention is

applicable in the case.

40. 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.

41. The Commission recalls that the division of building plots was

adopted by the Building Committee of Malmö on 13 November 1985 and

confirmed by the County Administrative Board of the County of Malmöhus

on 16 July 1986. The applicant's appeal to the Government was rejected

on 11 December 1986.

42. It follows that the dispute was determined 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 to be a "tribunal" for the purposes of Article 6

para. 1 (Art. 6-1).

43. Consequently, the applicant did not have at her disposal a procedure

satisfying the requirement of Article 6 para. 1 (Art. 6-1).

D. Conclusion

44. 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 PROCEEDINGS

Date Item

_________________________________________________________________

9 June 1987 Introduction of the application

23 February 1988 Registration of the application

Examination of admissibility

6 September 1990 Commission's decision to invite the

Government to submit observations on

the admissibility and merits of the

application

30 January 1991 Government's observations

30 March 1991 Applicant's observations in reply

9 April 1991 Application referred to the Second

Chamber

22 May 1991 Government's further observations

4 June 1991 Applicant's further observations in

reply

14 October 1991 Commission's decision to declare the

application partly admissible and

partly inadmissible

23 October 1991 Decision on admissibility communicated

to the parties

Examination of the merits

1 July 1992 Commission's consideration of the

state of proceedings

2 September 1992 Commission's deliberations on the

merits, final vote and adoption of

the Report

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ÖUNAPUU v. SWEDEN

ÖUNAPUU v. SWEDEN

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