JACOBSEN v. SWEDEN
Doc ref: 12032/86 • ECHR ID: 001-45454
Document date: April 10, 1991
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 12032/86
Carsten JACOBSEN
against
SWEDEN
REPORT OF THE COMMISSION
(adopted on 10 April 1991)
TABLE OF CONTENTS
page
I. INTRODUCTION
(paras. 1-21) ........................................ 1
A. The application
(paras. 2-4) ................................. 1
B. The proceedings
(paras. 5-16) ................................ 1
C. The present Report
(paras. 17-21) ............................... 2
II. ESTABLISHMENT OF THE FACTS
(paras. 22-74) ....................................... 4
A. The particular circumstances of the case
(paras. 22-44) ............................... 4
B. Relevant domestic law
(paras. 45-74) ............................... 6
a. Legislation on construction and urban
planning (paras. 45-47) .............. 6
b. Plans and regulations for non-planned
areas (paras. 48-58) ................. 7
c. Building prohibitions
(paras. 59-61) ....................... 8
d. Application for a building permit
(paras. 62-65) ....................... 8
e. Appeals against decisions
(paras. 66-70) ....................... 9
f. Supervisory functions and sanctions
(paras. 71-74) ....................... 9
III. OPINION OF THE COMMISSION
(paras. 75-107) ...................................... 11
A. Complaints declared admissible (para. 75) .... 11
B. Points at issue (para. 76) ................... 11
C. Article 1 of Protocol No. 1
(paras. 77-92) ............................... 11
D. Article 6 of the Convention
(paras. 93-100) .............................. 14
E. Article 13 of the Convention
(paras. 101-103) ............................. 15
F. Articles 17 and 18 of the Convention
(paras. 104-106) ............................. 15
G. Recapitulation (para. 107) ................... 15
APPENDIX I : HISTORY OF THE PROCEEDINGS ................ 16
APPENDIX II : DECISION ON THE ADMISSIBILITY ............. 18
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 1920 and resident
at Falkenberg. He is retired. Before the Commission the applicant is
represented by Mr. Peter Westdahl, a lawyer practising in Gothenburg.
3. The application is directed against Sweden. The Government
were initially represented by their Agent Mr. Hans Corell,
Under-Secretary for Legal and Consular Affairs at the Ministry for
Foreign Affairs, Stockholm. As from 23 January 1991 the Government
are represented by their Agent Mr. Carl Henrik Ehrenkrona, legal
adviser at the Ministry for Foreign Affairs.
4. The case relates to a set of building prohibitions on the
applicant's property. Such prohibitions were, with some short
interruptions, in force from 1 August 1972 until 30 June 1987. The
applicant complains that Article 1 of Protocol No. 1 has been violated
as a result of the total duration of the prohibitions. He further
alleges violations of Articles 6 and 13 of the Convention since he
could not have a dispute over the lawfulness of one of the
prohibitions examined by a tribunal. He finally alleges violations of
Articles 17 and 18 of the Convention.
B. The proceedings
5. The application was introduced on 19 January 1986 and
registered on 10 March 1986.
6. On 2 May 1988 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.
7. The Government's observations were submitted on 17 August
1988. After an extension of the time-limit the applicant's
observations in reply were submitted on 16 October 1988. The
Government submitted further observations on 12 December 1988.
8. On 16 December 1988 the applicant was granted legal aid.
9. On 13 March 1989 the Commission declared the application
admissible and adjourned its examination until the European Court of
Human Rights had delivered judgment in the Allan Jacobsson case
(Application No. 10842/84).
10. On 18 April 1989 the text of the decision on admissibility was
communicated to the parties, in accordance with Rule 43 of the
Commission's Rules of Procedure.
11. On 14 November 1989 the parties were invited to submit further
written observations in the light of the Court's judgment in the Allan
Jacobsson case (Eur. Court H.R., judgment of 25 October 1989, Series A
No. 163).
12. The Government's further observations were submitted on
10 January 1990.
13. On 10 February 1990 the Commission adjourned the examination
of the application pending the outcome of the cases of Mats Jacobsson
(Application No. 11309/84) and Skärby (Application No. 12258/86)
before the Court.
14. On 12 September 1990 the parties were invited to submit
further written observations in the light of the Court's judgments in
the cases of Mats Jacobsson (Eur. Court H.R., judgment of 28 June
1990, Series A 180-A) and Skärby (Eur. Court H.R., judgment of 28 June
1990, Series A 180-B).
15. The Government's further observations were submitted on 19
October 1990. After two extensions of the time-limit the applicant's
further observations were submitted on 14 December 1990. Further
observations were submitted by the Government on 7 February 1991.
16. 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' reaction the
Commission now finds that there is no basis upon which such a
settlement can be effected.
C. The present Report
17. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
18. The text of this Report was adopted by the Commission on
10 April 1991 and is now transmitted to the Committee of Ministers of
the Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
19. 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.
20. 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.
21. 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
22. In 1963 the applicant bought a property of 12,820 m2 called
Skrea 5:15 and located in the municipality of Falkenberg. The
property had been created in 1935 for dwelling purposes. In 1937 a
leisure house had been erected on the property.
23. No detailed plan had been established for the area in which the
property is situated and, consequently, regulations for non-planned
areas (utomplansbestämmelser) were applicable.
24. On 21 August 1969 the Building Committee (byggnadsnämnden) of
Falkenberg granted the applicant a building permit for a one-family
house of 200 m2 to be constructed on the property. The building
permit was granted on condition that the leisure house would be pulled
down when the new building had been erected.
25. Following the erection of the one-family house in 1969-1970
the Building Committee, on 10 November 1971, rejected a request by the
applicant to be relieved of the obligation to pull down the leisure
house. The applicant was ordered to pull it down within three months
from the decision having been served upon him.
26. On 8 December 1971, following a new request by the applicant,
the Building Committee quashed its previous injunction and allowed
the house to remain intact until further notice, however, not beyond
15 October 1973.
27. On 26 May 1972 the applicant requested permission to erect a
wind shelter between the new building and the leisure house. The
applicant argued that his wife needed the leisure house for her
handicraft and weaving activities.
28. By decision of 5 July 1972 the Building Committee rejected
the applicant's request.
29. From 1 August 1972 until 30 June 1987 building prohibitions
were, with some short interruptions, in force within the area to which
the applicant's property belongs. The prohibitions were issued by the
County Administrative Board (länsstyrelsen) of the County of Halland
under Section 109 of the 1947 Building Act (byggnadslagen, "the 1947
Act"), pending the adoption of a building plan.
30. Building prohibitions were issued for the following periods:
(date of decision by the
County Administrative Board) (prohibition valid until)
1 August 1972 31 December 1972
30 December 1972 31 December 1974
22 November 1974 31 December 1976
30 December 1976 31 December 1978
26 January 1979 31 December 1980
17 February 1981 31 December 1982
18 January 1983 31 December 1984
15 January 1985 31 December 1986
13 January 1987 30 June 1987
31. In 1975 the applicant's wife acquired half of the applicant's
property Skrea 5:15 by virtue of a partition of the joint estate of
the spouses.
32. In May 1981, the applicant's wife requested a building permit
for an addition to the leisure house of "approximately 3,5 m"
(building surface about 14 m2).
33. On 17 June 1981 the Building Committee rejected the request,
referring to the regulations for non-planned areas and the building
prohibition and finding no basis for an exemption from the prohibition
or the granting of a building permit.
34. The applicant's wife's appeal to the County Administrative
Board was rejected on 1 October 1982. The County Administrative Board
stated that the requested addition would, under Section 75 of the 1959
Building Ordinance (byggnadsstadgan; "the 1959 Ordinance") be
tantamount to a new construction and contrary not only to the building
prohibition under Section 109 of the 1947 Act, but also to the
prohibition under Section 56 of the 1959 Ordinance to grant permits
which would result in urban development (tätbebyggelse) within an
area not covered by a town plan or a building plan.
35. The applicant's wife appealed to the Administrative Court of
Appeal (kammarrätten) of Gothenburg, which on 6 April 1984 decided to
refer the matter to the Government for decision, since the case
concerned both the issue of a building permit and that of an exemption
from a building prohibition and since the latter question was to be
decided by the Government. In its opinion, the Administrative Court
of Appeal stated inter alia that decisions which had gained legal
force already existed, to the effect that the leisure house was to be
pulled down and that no building permit could be granted.
36. The appeal was rejected by the Government on 6 September 1984.
37. On 20 December 1984 the applicant's wife requested inter alia
an exemption from the building prohibition and a building permit for
the leisure house.
38. On 15 January 1985 the County Administrative Board issued a
building prohibition similar to the previous ones pending the adoption
of a proposal for a building plan or an amendment to a building plan.
The prohibition was valid until 31 December 1986 (cf. para. 30). The
reasons for the request for a building prohibition, as submitted by
the municipality of Falkenberg (the Building Committee), were inter
alia the following: In the area there existed building plans which
permitted buildings exceeding 80 m2. The intention was to change all
the building plans so as to comply with the guidelines issued by the
Building Committee on 15 March 1984. Moreover, in certain areas
planning work was going on.
39. The applicant appealed against this decision to the Government
(the Ministry of Housing and Physical Planning), alleging that for
more than fifteen years he had been prevented from the enjoyment of his
property.
40. On 24 January 1985 the Building Committee rejected the
applicant's wife's request of 20 December 1984. The subsequent appeal
to the County Administrative Board was rejected on 2 October 1985.
41. In its opinion of 19 September 1985 on the applicant's
appeal against the building prohibition issued on 15 January 1985
the Building Committee stated the following:
"The question of a prohibition on new constructions for 'the
Southern Coastal Area' ('Södra kustbygden') was raised by
the Building Committee on 26 January 1972 ... The area was
the subject of area planning which was to be followed up by
detailed planning. The delimitation of the prohibition area
was decided in consultation with the County Architect
(länsarkitekten). Within the prohibition area continuous
detailed planning is going on. Whenever detailed plans
are established within the area, the prohibition area has been
reduced accordingly. The property Skrea 5:15 is affected by
the ongoing detailed planning of the property Skrea 5:3 and
other properties. The planning partly relates to the
extension of the current camping site within the area of
Hansagård and partly to a re-allocation of the road
Strandvägen ... For the moment investigations as to the
allocation of the road are being carried out."
42. In his further observations to the Government of 4 October
1985 the applicant alleged inter alia that the Building Committee had
grossly misused the building prohibitions and prevented him and his
wife from the peaceful enjoyment of their property. He further
alleged that the Building Committee had, in its efforts to interfere
with the applicant's private property, given false information to
superior authorities and courts.
43. On 17 October 1985 the Government rejected the appeal,
considering that the planning situation in the area justified a
prolongation of the building prohibition.
44. The leisure house was removed from the property in October
1985.B. Relevant domestic law
a. Legislation on construction and urban planning
45. A property owner's right to erect buildings on his property
was up to 1 July 1987 regulated in the 1947 Act and the 1959
Ordinance.
46. Section 1 of the 1947 Act provided that construction on
property required a building permit insofar as this followed from
rules laid down by the Government. Such rules were to be found in
Section 54 of the 1959 Ordinance. A permit was required for all new
constructions, except certain buildings for public use, or smaller
additions to existing residences and farms or smaller houses on such
estates.
47. Section 5 of the 1947 Act called for an examination of whether
the property was suitable from a general point of view for building
purposes. Such examination should be carried out by planning
procedure in accordance with the 1947 Act, except for areas
classified as "non-urban" (glesbebyggelse) or as "urban developments
on a smaller scale" (tätbebyggelse av mindre omfattning). For the
latter categories, the required examination could be made when
an application for a building permit was examined.
b. Plans and regulations for non-planned areas
48. Plans were to take due consideration of public as well as
private interests. A master plan (generalplan) encompassed the
major guidelines within a municipality or a part of a municipality.
A town plan (stadsplan) or a building plan (byggnadsplan) contained
more detailed regulations on the development of the area. For areas
not regulated by town or building plans, the construction activities
were regulated by the regulations for non-planned areas
(utomplansbestämmelser) in the 1959 Ordinance.
49. A master plan was to be drawn up by the municipality when
necessary for the guidance of further detailed planning regarding the
structuring and developing of the community. At the request of the
municipality, the master plan could be confirmed (fastställd) by the
County Administrative Board. Complete master plans were seldom deemed
necessary. Instead, municipalities tended to meet their planning needs
by using simpler, less detailed plans, usually described as area plans
(områdesplaner). Such plans were not governed by law.
50. The Government could decide that a master plan was to be
prepared, when needed to further a development which was deemed urgent
in the national interest.
51. A master plan could not cover an area which was already
covered by a town or a building plan.
52. A town plan was to be drawn up by the municipality, when
necessary as a result of the urbanisation of the community, in order
to regulate constructions. Such a plan had to contain information
about blocks of buildings (byggnadskvarter), public areas (allmänna
platser), and special zones, such as railway areas, harbours,
recreational (sports) areas, etc. The town plan also had to contain
further provisions regarding constructions in various areas, or
regarding the use of properties in these areas. The 1959 Ordinance
mentioned inter alia specific use of blocks, prohibitions against
construction on part of a block, construction methods to be used, the
number of permitted buildings on a certain site (tomt) and the
permitted surface area, location, height, and the number of flats of a
building.
53. A town plan was to be confirmed by the County Administrative
Board in order to become valid.
54. If a municipality failed to draw up a town plan, although
there was a need for it, the Government could order the municipality to
present such a plan for the Government's approval within a fixed
time-limit.
55. A town plan gave the municipality a right to redeem areas
necessary for public use. The redemption value was decided by the
Real Estate Court (fastighetsdomstolen), and was to be assessed
according to the rules laid down in the Expropriation Act
(expropriationslagen).
56. If an area had become densely populated or if such a
situation was expected to emerge in the area, but this situation did
not call for a town plan, a building plan had to be issued by the
municipality, to the extent necessary for the regulation of the
development of the area. A building plan was largely the same as a
town plan, but did not have as far-reaching legal consequences. A
building plan also had to be validated through a confirmation by the
County Administrative Board, which could issue such a plan if the
municipality had failed to produce one.
57. The abovementioned categories of plans could be cancelled by
decision of the County Administrative Board. Such a decision had to
take the interests of property owners into consideration.
58. Regulations for non-planned areas prohibited constructions of
new buildings, unless they were suitable in the general interest. The
same examination regarding general suitability was made, whether as
part of the planning procedure or as part of the processing of an
application for a building permit, for an area not covered by town or
building plans.
c. Building prohibitions
59. Under Section 56 of the 1959 Ordinance, the authorities could
not grant permits for new buildings, which would have resulted in urban
development within an area which was not covered by a town plan or a
building plan. According to Section 75 of the 1959 Ordinance, the
term "new building" also included additions to or the reconstruction
of an already existing building. The concept of "urban development" was
defined in Section 6 of the 1947 Act as such concentrated building as
would immediately or in the near future call for special installations
for common needs (e.g. water supply, sewage systems and other
utilities). Section 56 of the 1959 Ordinance thus provided for a
general building prohibition for certain areas. This prohibition was
applied in an extensive way.
60. Under Section 109 of the 1947 Act the County Administrative
Board could, if the question of the establishment of a building plan
or of an amendment to such a plan had arisen, on the municipality's
request issue a building prohibition pertaining to that area for a
period of one year. Such a prohibition could be prolonged at most for
two years at a time. Exemptions could be granted by the County
Administrative Board or by the Building Committee.
61. If a building plan or a part of such a plan could not be
approved, the Government or, if the plan was to be approved by the
County Administrative Board, the competent County Administrative
Board issued such a building prohibition as was required by the
circumstances.
d. Application for a building permit
62. A person, who wished to erect a building, for which a permit
was required, had to file an application with the local Building
Committee. An application coming under any of the above building
prohibitions was in practice considered as also including an
application for exemption from the prohibition in question. The
applicant could, on the other hand, choose to apply for an exemption
only, in order to apply for a permit when the matter of exemption had
been resolved.
63. The examination of an application for a building permit
involved ascertaining that the intended building would not run counter
to any confirmed plan, or, as the case might be, to the regulations of
non-planned areas, or to a building prohibition, and that it satisfied
technical demands on construction. In the absence of such obstacles,
a permit was to be granted.
64. If the intended construction required an exemption of any kind,
the Building Committee also had to take a decision on this matter. In
case the Committee lacked legal competence to do so, it would normally
refer the application, as regards the exemption, to the County
Administrative Board, suspending its decision on the permit issue,
pending the outcome of the exemption issue.
65. Under Section 58 subsection 2 of the 1959 Ordinance the
Building Committee could combine a building permit for a new building
with a condition prescribing that some other building in the relevant
property unit was to be pulled down. Such a condition could be made
only if the Building Committee had found that it was necessary and if
the applicant consented to it in writing. If such a condition was
not complied with, the Building Committee could, by virtue of Section
16 of the 1976 Act on Penalties and Public Intervention in the Event
of Unauthorised Construction (lagen om påföljder och ingripanden vid
olovligt byggande m.m.), enjoin the owner of a property to undertake
that measure within a certain time. Under Section 17 of the same
Act, such an injunction could be combined with a fine or with an
order stating that, unless the injunction was complied with, the
measure in question could be carried out by the Building Committee
at the person's own expense.
e. Appeals against decisions
66. Decisions by the Building Committee to refuse building permits
and to refuse exemptions from building prohibitions could be appealed
to the County Administrative Board.
67. A decision by the County Administrative Board to reject an
appeal against the Building Committee's decision refusing exemption
from a building prohibition could be appealed to the Government.
However, an appeal against a decision of the County Administrative
Board to reject an appeal regarding an application for a building
permit was to be lodged with the Administrative Court of Appeal. A
decision by the Administrative Court of Appeal could be appealed to
the Supreme Administrative Court (regeringsrätten), which could refuse
leave to appeal.
68. A decision by the County Administrative Board which resolved
both issues (the building permit and the exemption from the building
prohibition) could be appealed to the Administrative Court of Appeal.
If the Court found that an exemption was not required, the matter was
subsequently processed as a case relating only to the question of a
building permit. Otherwise the case was transferred to the Government
together with an opinion on the permit issue.
69. There was no limitation of the number of times a property
owner could apply for building permits or exemptions from a building
prohibition. The authorities were obliged to examine the matter each
time they were seized with an application.
70. A decision by the County Administrative Board to issue a
building prohibition or, as the first instance, to refuse an
exemption from a building prohibition, could be appealed to the
Government.
f. Supervisory functions and sanctions
71. The County Administrative Board supervised planning and
construction activities - including those of the Building Committees -
within the County. The National Board of Physical Planning and
Building (planverket) - a Government Agency - supervised the same
fields on the national level.
72. The Parliamentary Ombudsmen (justitieombudsmännen)
supervised, on behalf of the Parliament, inter alia, the County
Administrative Boards, and the Building Committees, to ensure that
they acted according to laws and statutes. The same supervision was,
on behalf of the Government, carried out by the Chancellor of Justice
(justitiekanslern). Both these institutions could take action either
on the basis of an application or on their proper initiative.
73. None of these supervisory bodies could alter a decision by an
authority. The County Administrative Boards could, however, intervene
by issuing prohibitions and injunctions. Otherwise, a supervisory
body could only point to committed errors, e.g. by referring a matter
to the district prosecutor who could act upon it as he saw fit.
74. Those who, in the course of their official duties,
deliberately or through gross negligence disregarded their obligations
as laid down in laws and statutes, could be fined or sentenced to prison
by a court under Chapter 20 of the Penal Code (brottsbalken). The
Government and the municipalities were under certain conditions liable
for damages, inter alia, for property damage, caused by fault or
negligence in the exercise of public authority. Civil claims of this
kind were examined by the general courts.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
75. The complaints declared admissible concern the lawfulness and
duration of building prohibitions on the applicant's property and the
absence of a court remedy in respect of one of them.
B. Points at issue
76. The issues to be determined are:
- Whether there has been a violation of Article 1 of Protocol
No. 1 (Art. P1-1) to the Convention;
- 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;
- Whether there have been violations of Articles 17 and 18
(Art. 17, 18) of the Convention.
C. Article 1 of Protocol No. 1 (P1-1)
77. Article 1 of Protocol No. 1 (P1-1) reads as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties."
78. According to the Court's case-law, Article 1 of Protocol No. 1
(Art. (P1-1) comprises three distinct rules. The first rule, set out
in the first sentence of the first paragraph, is of a general nature
and enunciates the principle of peaceful enjoyment of property; the
second rule, contained in the second sentence of the same paragraph,
covers deprivation of possessions and makes it subject to certain
conditions; and the third rule, stated in the second paragraph,
recognises that Contracting States are entitled, amongst other things,
to control the use of property in accordance with the general
interest. The three rules are not "distinct" in the sense of being
unconnected: the second and third rules are concerned with particular
instances of interference with the right to peaceful enjoyment of
property and should therefore be construed in the light of the general
principle enunciated in the first rule (Eur. Court H.R., Allan
Jacobsson judgment of 25 October 1989, Series A No. 163, p. 16, para.
53).
79. According to the decision on admissibility, the only issue
which the Commission has to examine in regard to Article 1 (Art. 1) is
whether the building prohibitions which were in force from 1972 to
1987 violated the applicant's right under that Article. In this
respect, the Commission finds that the applicant was not "deprived" of
his property within the meaning of the second sentence of the first
paragraph of Article 1 (Art. 1). However, the building prohibitions
constituted a measure of control of the applicant's property and thus
fall to be considered under the second paragraph of this provision
(above-mentioned Allan Jacobsson judgment, p. 16, para. 54).
80. Under the second paragraph of Article 1 of Protocol No. 1
(P1-1) the Contracting States are entitled, amongst other things, to
control the use of property in accordance with the general interest by
enforcing such laws as they deem necessary for the purpose. However,
there must exist a reasonable relationship of proportionality between
the means employed and the aim sought to be realised. In striking the
fair balance thereby required between the general interest of the
community and the requirements of the protection of the individual's
fundamental rights, the authorities enjoy a wide margin of
appreciation (above- mentioned Allan Jacobsson judgment, p. 17, para.
55).
81. The applicant alleges a violation of Article 1 of Protocol No.
1 (P1-1) on the ground that the building prohibitions were, with some
short interruptions, in force for almost 15 years. He submits that
the total duration of these prohibitions was excessive and that he was
prevented from the peaceful enjoyment of his possessions. He alleges
that the prohibitions were not in accordance with the law and that the
stated aim of the prohibitions, which was to facilitate the planning
of a nearby road and camping site, was not the real reason. Thus the
prohibitions were not issued in the general interest.
82. The Government submit that the building prohibitions were
justified, since they were issued in the general interest in order to
control the use of the applicant's property. The Government further
submit that, notwithstanding the existence of a building prohibition
issued under Section 109 of the 1947 Act, construction of new
buildings on the applicant's property was also hindered by a building
prohibition under Section 56 of the 1959 Ordinance. In view of the
refusals of the applicant's wife's requests for a building permit in
1981 and 1984 it was most unlikely that the applicant would
subsequently have been granted a building permit.
83. The Commission recalls that the Convention organs' power to
review compliance with domestic law is limited: it is in the first
place for the national authorities to interpret and apply that law (cf.
e.g. Eur. Court H.R., Tre Traktörer AB judgment of 7 July 1989, Series
A No. 154, p. 23, para. 58).
84. The Commission further notes that the first building
prohibition regarding the applicant's property was issued by the
County Administrative Board on 1 August 1972 and was valid until
31 December 1972. It was subsequently prolonged on 30 December 1972,
on 22 November 1974 and 30 December 1976, before the respective dates
of expiry. The last-mentioned prohibition was valid until 31 December
1978. On 26 January 1979 the County Administrative Board issued a new
building prohibition similar to the previous ones and valid until
31 December 1980. Further prohibitions were issued on 17 February
1981 (valid until 31 December 1982), on 18 January 1983 (valid until
31 December 1984), on 15 January 1985 (valid until 31 December 1986)
and on 13 January 1987 (valid until 30 June 1987).
85. The above building prohibitions were issued under Section 109
of the 1947 Act. They thus had a basis in Swedish law. The
prolongations of the prohibition were also provided for by the same
section. The Commission is thus satisfied that the building
prohibitions were lawful.
86. The Commission is also satisfied that the building
prohibitions served the general interest. It recalls that, in the
increasingly complex and ever developing society of today, it is
indispensable that the use of land be regulated by detailed and
careful planning. It follows that States must have instruments at
hand in order to plan or regulate building activities (Sporrong and
Lönnroth v. Sweden, Comm. Report 8.10.80, para. 111, Eur. Court H.R.,
Series B No. 46, p. 50). The 1947 Act and the planning procedure
under it are in principle measures serving a general interest. The
Commission notes the applicant's allegations as to the aim of the
prohibitions, but finds nothing to suggest that they were not issued
in order to facilitate future planning, which purpose undoubtedly
falls within the general interest as envisaged in Article 1 of
Protocol No. 1 (P1-1) (above-mentioned Allan Jacobsson judgment, p.
17, para. 57).
87. The Commission therefore concludes that the building
prohibitions were lawful measures which served a general interest.
88. As regards the proportionality between the interference with
the applicant's property rights and the aim pursued the Commission
recalls that town planning is a complex procedure which requires
considerable time. The issuing of a building prohibition during the
planning procedure constitutes an important measure to facilitate the
planning, which in the interest of proper planning may have to be
maintained for a considerable period (Allan Jacobsson v. Sweden, Comm.
Report 8.10.87, para. 135, Eur. Court H.R., Series A No. 163, p. 28).
89. The Commission observes that, since the applicant's property
was situated in an area not yet covered by a town plan or a building
plan, Section 56 of the 1959 Ordinance prevented the authorities from
granting a building permit, if the construction would have
resulted in urban development. It has not, therefore, been shown that
during the relevant period the authorities would have been obliged to
grant the applicant a building permit, had the building prohibitions
under Section 109 of the 1947 Act not been in force. Thus, the
Commission does not find it established that the building prohibitions
deprived the applicant of any unconditional right to further
construction on his property which he had enjoyed before.
90. Moreover, the building prohibitions were only valid for one
year with the possibility of renewal for periods of two years each.
The need to maintain them was thus examined at regular intervals.
Exemptions from a prohibition could be granted where the planning
procedure would not be obstructed. These review procedures provided a
possibility for weighing the public interest against that of the
individual (above-mentioned Allan Jacobsson judgment, pp. 18-19,
para. 62). Although concerned by the total duration of the building
prohibitions at issue, the Commission considers, in view of the wide
margin of appreciation enjoyed by the Contracting States in this area,
that in the circumstances of the case the prohibitions were not
disproportionate to their legitimate purpose.
91. In view of the above considerations the Commission finds
that the interference with the applicant's right to the peaceful
enjoyment of his possessions was justified under the second paragraph
of Article 1 of Protocol No. 1 (P1-1).
Conclusion
92. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 1 of Protocol No. 1 (P1-1).
D. Article 6 (Art. 6) of the Convention
93. 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..."
94. The applicant alleges a violation of Article 6 para. 1
(Art. 6-1) of the Convention since he could not have the dispute over
the building prohibition issued on 15 January 1985 examined by a
tribunal.
95. The Government admit that the appeal proceedings preceding the
Government's decision of 17 October 1985 were not a procedure which
satisfied Article 6 para. 1 (Art. 6-1) of the Convention and that
there has been a violation of that provision.
96. The Commission considers that the dispute over the building
prohibition concerned the applicant's civil rights and that he was
therefore entitled to enjoy the guarantees of Article 6 para. 1
(Art. 6-1) of the Convention.
97. The Commission recalls that the building prohibition issued by
the County Administrative Board was subject to appeal to the
Government. The applicant's appeal was rejected on 17 October 1985.
No appeal lay against the Government's decision.
98. It follows that the dispute in question 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).
99. Consequently, the applicant did not have at his disposal a
procedure satisfying the requirements of Article 6 para. 1
(Art. 6-1) in respect of the dispute which arose over the building
prohibition issued on 15 January 1985.
Conclusion
100. The Commission concludes, by a unanimous vote, that there
has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
E. Article 13 (Art. 13) of the Convention
101. The applicant also invokes Article 13 (Art. 13) of the
Convention. He submits that there was no effective remedy in respect
of the restriction of his civil rights.
102. Having regard to its above conclusion under Article 6 para. 1
(Art. 6-1) (para. 100), 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) (above-mentioned
Allan Jacobsson judgment, p. 21, para. 78).
Conclusion
103. 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.
F. Articles 17 and 18 (Art. 17, 18) of the Convention
104. The applicant also invokes Articles 17 and 18 (Art. 17, 18) of the
Convention. He submits that the aim of the building prohibitions was
to nullify his civil rights and that the authorities did not indicate
any justified reason for the prohibitions.
105. Referring to its above conclusion under Article 1 of Protocol
No. 1 (P1-1) (para. 92), the Commission finds no appearance of a violation
of Article 17 or Article 18 (Art. 17, 18) of the Convention.
Conclusion
106. The Commission concludes, by a unanimous vote, that there
has been no violation of Article 17 or Article 18 (Art. 17, 18) of the
Convention.
G. Recapitulation
107. - The Commission concludes, by a unanimous vote, that there
has been no violation of Article 1 of Protocol No. 1 (P1-1) (para. 92).
- 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. 100).
- 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. 103).
- The Commission concludes, by a unanimous vote, that there
has been no violation of Article 17 or Article 18 (Art. 17, 18) of the
Convention (para. 106).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
______________________________________________________________________
19 January 1986 Introduction of the application
10 March 1986 Registration of the application
Examination of admissibility
2 May 1988 Commission's decision to invite the
Government to submit observations on
the admissibility and merits of the
application
17 August 1988 Government's observations
16 October 1988 Applicant's observations in reply
12 December 1988 Government's further observations
16 December 1988 Commission's decision to grant
legal aid
13 March 1989 Commission' decision to declare the
application admissible and to adjourn
the examination pending the Court's
judgment in the Allan Jacobsson case
18 April 1989 Transmission to the parties of the
text of the decision on admissibility
Examination of the merits
14 November 1989 Invitations to parties to submit
further observations
10 January 1990 Government's further observations
10 February 1990 Commission's decision to adjourn the
examination pending the Court's
judgments in the Mats Jacobsson and
Skärby cases
12 September 1990 Invitations to parties to submit
further observations
6 October 1990 Commission's consideration of the
state of proceedings
19 October 1990 Government's further observations
14 December 1990 Applicant's further observations
12 January 1991 Commission's consideration of the
state of proceedings
7 February 1991 Government's further observations
10 April 1991 Commission's deliberations on the
merits, final vote and adoption of
the Report