Lexploria

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

Menu

W. AND OTHERS v. SWEDEN

W. AND OTHERS v. SWEDEN