Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 12318/86

Rolf WOLLART

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 5 March 1991)

TABLE OF CONTENTS

page

I. INTRODUCTION (paras. 1-14) ........................... 1

A. The application

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

B. The proceedings

(paras. 5-10) .................................... 1

C. The present Report

(paras. 11-13) ................................... 2

II. ESTABLISHMENT OF THE FACTS (paras. 14-29) ............ 3

A. The particular circumstances of the case

(paras. 14-20) ................................... 5

B. Relevant domestic law

(paras. 21-29) ................................... 5

III. OPINION OF THE COMMISSION (paras. 30-45) ............. 7

A. Complaints declared admissible (para. 30) ........ 7

B. Points at issue

(para. 31) ....................................... 7

C. Article 6 of the Convention

(paras. 32-40) ................................... 7

D. Article 13 of the Convention (paras. 41-43)....... 8

E. Recapitulation (paras. 44-45) .................... 8

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

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

APPENDIX III: FINAL DECISION ON THE ADMISSIBILITY ........ 16

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 1931 and resident

in Stockholm. He is represented before the Commission by Mr. Olof

Nyström, a lawyer practising in Stockholm.

3. The application is directed against Sweden. The Government

are represented by their Agent, Mr. Carl Henrik Ehrenkrona, Legal

Adviser at the Ministry for Foreign Affairs, Stockholm.

4. The case relates to the absence of a court review with regard

to a dispute over a refusal to grant the applicant a building permit. It

raises issues under Articles 6 para. 1 and 13 of the Convention.

B. The proceedings

5. The application was introduced on 30 May 1986 and registered

on 5 August 1986. The Commission decided on 8 September 1988 to

adjourn the examination of the applicant's procedural complaint

regarding the Government's decision of 16 January 1986 and to declare

inadmissible the remainder of the application (see Appendix II). The

adjourned part of the application was communicated to the Government

for written observations on the admissibility and merits of the

complaints under Articles 6 and 13 of the Convention.

The Government's observations were dated 2 December 1988 and

the applicant's observations in reply were dated 5 April 1989.

6. On 10 July 1989 the Commission declared the remainder of the

application admissible. The Commission also decided to adjourn the

further examination of the case until the European Court of Human

Rights had delivered judgment in the case of the Estates of Mr. and

Mrs. Skärby and their heirs and children. On 28 June 1990 the Court

delivered judgment in the Skärby case (Eur. Court H.R., Skärby

judgment of 28 June 1990, Series A no 180-B).

7. On 5 July 1990 the parties were invited to submit any

additional observations they wished to put before the Commission. The

Government submitted observations by letter dated 30 August 1990 and

the applicant submitted a letter dated 11 September 1990. Further

observations from the applicant were received on 19 November 1990

and from the Government on 20 December 1990.

8. On 25 February 1991 the Commission decided to refer the case

to the Second Chamber.

9. 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'

reactions the Commission now finds that there is no basis on which a

friendly settlement can be effected.

C. The present Report

10. 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

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

Mrs. J. LIDDY

J.-C. GEUS

M.P. PELLONPÄÄ

The text of the Report was adopted by the Commission on

5 March 1991 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

11. The purpose of the Report, pursuant to Article 31 para. 1

of the Convention, is

(1) to establish the facts, and

(2) to state an opinion as to whether the facts found

disclose a breach by the State concerned of its

obligations under the Convention.

12. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decisions on the admissibility of the application form Appendices II

and III.

13. 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

14. The applicant owns the property Oppsätra 1:5 situated

approximately 50 kilometres outside Stockholm in the Municipality of

Österåker (previously the Municipality of Vaxholm). Having obtained a

building permit in 1979, he built a leisure house of 60 square metres

on the property. The house was inspected and approved by the

municipality in February 1982 in spite of the fact that the applicant

had in some respects deviated from the building permit.

15. A few months later the applicant applied to the Building

Committee (byggnadsnämnden) of Vaxholm for a new building permit. On

16 November 1982 the Building Committee rejected that application

finding no reason to grant exemption from the applicable prohibition

of urban development. It further ordered the applicant under the

threat of a penalty of 40,000 SEK to alter the building so that it

conformed with the building permit issued in 1979. The Committee also

decided, in accordance with the Act on Penalties and Interventions in

Cases of Illegal Construction etc. (lagen om påföljder och

ingripanden vid olovligt byggande m.m.), to impose on the applicant a

building fee of 8,800 SEK and, in accordance with the same Act, to

transmit to the public prosecutor for examination the question of a

supplementary fee. The decision of the Building Committee states

inter alia the following:

" On the property there is a leisure house with a building area

of 95 square metres and a gross area of 119 square metres. The

building has been erected on the basis of a building permit

issued on 15 May 1979. When the building was erected the

building permit was not respected in the sense that the roof

of the building was prolonged, a five metre long wall was

erected as a terrace, a cellar was created with a window and

inside staircase. As a result of the illegal measures, the

gross area of the building has been increased by 59 square

metres in excess of what was permitted under the building

permit. Consequently, the building is now in conflict with

the guidelines in the municipality's area plan concerning

restrictions of building areas with the aim of preventing

permanent settlement within areas which are not planned for

this. The building has been made considerably more suited for

permanent living than foreseen in the building permit. The

applicant has even stated that he now lives permanently in the

building. In these circumstances the Building Committee finds

that the building is to be considered as a completely new

construction when examining the question of a supplementary

fee under the Act on Penalties and Interventions in Cases of

Illegal Construction etc.

The property owner has been given an opportunity to correct

what he has done and to avoid penalties under the said Act. He

has, however, requested that his pending application for a

building permit, which inter alia covers some of the unlawful

constructions, shall be dealt with immediately. He requests

permission to alter the construction and to add a living room

and the previously mentioned cellar with an inside staircase

and window. ... The proposed constructions comprise 85 square

metres gross area of which 59 square metres concern the

cellar.

The construction proposed is to be regarded as urban

development. Exemption from the prohibition against urban

development under Section 56 of the Building Ordinance

(byggnadsstadgan) is therefore required. According to the

guidelines for the examination of questions of building permits

in the area plan adopted by the municipality, the prohibition of

urban development should be applied restrictively so as to limit

the gross areas of buildings to, at the most, 60 square metres

for leisure houses and 30 square metres for out-houses in cases

where exemption from the prohibition is granted. The aim of the

restrictions is to prevent permanent living in areas which have

not been planned for this. The constructions are in conflict with

the guidelines of the area plan of the municipality."

16. As a result of a letter from the applicant dated 10 January

1983, the Building Committee reconsidered the previous decision of 16

November 1982. However, on 22 March 1983 the Building Committee

decided to maintain its previous decision and ordered that the

applicant should have the construction altered within five months from

receipt of the decision.

17. The applicant appealed to the County Administrative Board

(länsstyrelsen) of the Stockholm County. He claimed that the Board

should quash the decision to refuse a building permit, grant him

exemption from the prohibition of urban development and quash the

order under the threat of a penalty to change the building in

accordance with the building permit previously granted. In support of

his appeal, the applicant submitted that the municipality's area plan

did not have any legal effect and that permanent living in a leisure

house was not unlawful. On 30 November 1983 the County Administrative

Board upheld the Building Committee's decision. It stated inter alia:

"The measures under examination - both those which have been

carried out and those for which permission is requested - are

to be considered as erection of new buildings (Section 54

para. 1 and Section 75 of the Building Ordinance) and involve

urban development within the meaning of the Building Act

(byggnadslagen) in view of the fact that by the measures the

leisure house would be transformed into a permanent dwelling in

particular as a result of the considerable addition of living

area. There are no special reasons justifying an exemption in

order to allow these measures.

The County Administrative Board therefore finds that

the Building Committee's order under penalty of 40,000 SEK to

modify the construction so as to comply with the building

permit of 15 May 1979 shall be upheld. Thus the cellar should

be refilled... the staircase should be taken away and the

opening as well as the windows in the cellar shall be taken

away. The terrace and the roof shall be reduced."

18. The applicant lodged a further appeal with the Administrative

Court of Appeal (kammarrätten) of Stockholm. On 30 May 1985, the

Administrative Court of Appeal decided that since the appeal included

the question of an exemption from certain regulations concerning urban

development the appeal should, as a whole, be examined by the

Government. In accordance with Section 9 of the Act on Administrative

Courts (lagen om allmänna förvaltningsdomstolar), the Administrative

Court of Appeal decided to transmit the appeal to the Government. In

the decision the Administrative Court of Appeal stated as its opinion

that, provided that the Government granted the required exemption, it

had no objection to a building permit being granted. If exemption were

not granted the Administrative Court of Appeal suggested that the

Government should reject the appeal and that the time-limit within

which the order should be executed should be fixed at four months from

receipt of the Government's decision.

19. On 16 January 1986, after having received further arguments

from the applicant, the Government (the Ministry of Housing) rejected

the applicant's appeal. The Government agreed with the assessment of

the County Administrative Board and decided that the order should be

executed within four months from the applicant's receipt of the

Government's decision. The Government noted that the examination in

the case did not concern the extension of the roof and the terrace

which had been accepted by the Building Inspector according to the

minutes of 2 February 1982.

20. Subsequently, on 10 November 1987 the applicant was granted a

building permit for reconstruction of the cellar with windows and an

inside staircase. This decision was made under the 1987 Plan and

Building Act (plan- och byggnadslagen).

B. Relevant domestic law

21. Until 1 July 1987 a property owner's rights to build on his

property were regulated by the 1947 Building Act and the 1959 Building

Ordinance. On 1 July 1987 the Plan and Building Act replaced the

1947 Act.

22. Section 1 of the 1947 Act provided that constructions on a

property required a building permit to the extent laid down by the

Government. Section 54 of the 1959 Ordinance specified that a permit

was required for all new constructions except for the construction of

certain buildings.

23. Before a building could be erected on a property, Section 5 of

the 1947 Act called for an examination of whether the property was

suitable from a general point of view for this purpose. Such an

examination was to be effected by planning procedure, except for

non-urban areas where it could be made when an application for a

building permit was under consideration.

24. Regulations for non-planned areas (i.e. areas not covered by a

town or a building plan) inter alia prohibited the construction of new

buildings on properties which were not found to be suitable in the

general interest for this purpose.

25. Under Section 56 of the 1959 Ordinance, the authorities could

not grant permits for new constructions which would result in urban

development (tätbebyggelse) within an area not covered by a town plan

or a building plan. However, under Section 67 para. 1 of the

Ordinance an exemption could be granted from this prohibition if there

were special reasons.

26. Applications for building permits were to be filed with the

local building committee. If an application concerned a property

subject to a building prohibition, it was in practice considered as

including also an application for exemption from the prohibition. The

applicant could, however, choose to apply for an exemption only, in

order to apply for a permit when the question of exemption had been

resolved.

27. The examination of an application for a building permit

involved ascertaining that the intended building would not run counter

to any confirmed plan, to the regulations for non-planned areas, or to

a building prohibition, and that it satisfied technical demands on

construction. In the absence of such obstacles, a permit should have

been granted.

28. Decisions by the Building Committee to refuse building permits

or exemptions from building prohibitions could be appealed to the

County Administrative Board.

29. Appeals against the Board's decisions lay to the Government as

regards exemptions from building prohibitions and to the

Administrative Court of Appeal as regards building permits. In the

latter case a further appeal to the Supreme Administrative Court

(regeringsrätten) could be lodged if leave to appeal was granted. If

the Board decided both questions, appeals were to be lodged with the

Administrative Court of Appeal. If this Court found that the

construction did not require any exemption from a building

prohibition, it would proceed to examine the permit question.

Otherwise, the Court would transfer the case to the Government for the

final decision, together with an opinion on the permit issue.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

30. The Commission has declared admissible the applicant's

complaints regarding the absence of a court review in respect of the

Government's decision of 16 January 1986 confirming the refusal of a

building permit and the restoration order.

B. Points at issue

31. 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 (Art. 6) of the Convention

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

(Art. 6-1) of the Convention on the ground that no court review was

available in respect of the Government's decision of 16 January 1986.

The Government admit that there has been a violation of Article 6

para. 1 (Art. 6-1) of the Convention as alleged by the applicant.

33. Article 6 para. 1 (Art. 6-1) first sentence reads, insofar

as relevant:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law."

34. The Commission recalls that the absence of the right to a

court review in the context of the 1947 Building Act and the 1959

Building Ordinance has previously been examined by the Convention

organs. Reference is made in particular to the Sporrong and Lönnroth

case (Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September,

1982, Series A no. 52), the Allan Jacobsson case (Eur. Court H.R.,

Allan Jacobsson judgment of 25 October 1989, Series A no. 163), the

Mats Jacobsson case (Eur. Court H.R., Mats Jacobsson judgment of 28

June 1990, Series A no. 180-A) and the Skärby case (Eur. Court H.R.,

Skärby judgment of 28 June 1990, Series A no. 180-B).

35. The Commission considers that in the present case the

applicant could arguably claim to have a "right" to a building permit

subject to the conditions laid down in the 1947 Act and the 1959

Ordinance. It is further of the opinion that a serious dispute of a

genuine nature arose over that right. Moreover, the right claimed was

"civil" in character (see above-mentioned Skärby judgment, p. 37,

para. 29). The Commission further notes that the outcome of this

dispute would also determine whether or not the restoration order

would be upheld.

36. Consequently, Article 6 para. 1 (Art. 6-1) is applicable.

37. The Government concede that the applicant did not have

available a procedure satisfying the conditions of Article 6 para. 1

(Art. 6-1) of the Convention.

38. The Commission recalls that the Government determined the

dispute in the last restort. The proceedings before the Government

did not, in the Commission's view, constitute proceedings before a

"tribunal" within the meaning of Article 6 para. 1 (Art. 6-1).

Furthermore, the Government's decision was not open to an ordinary

review by the 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).

39. It follows that the applicant did not have at his disposal a

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

with regard to the dispute over the refusal to grant him a building

permit and the restoration order.

Conclusion

40. 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

41. The applicant also maintains that he had no effective remedy

before a national authority. He relies on Article 13 (Art. 13) of the

Convention which provides:

"Everyone whose rights and freedoms as set forth in

this Convention are violated shall have an effective

remedy before a national authority notwithstanding that

the violation has been committed by persons acting in an

official capacity."

42. Having regard to its above conclusion under Article 6 para. 1

(Art. 6-1) (para. 40), the Commission considers that it is not

necessary to examine the case under Article 13 (Art. 13). The

requirements of Article 13 (Art. 13) are less strict than, and are

here absorbed by, those of Article 6 para. 1 (Art. 6-1) (see, inter

alia the above-mentioned Sporrong and Lönnroth judgment, p. 31, para.

89).

Conclusion

43. 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

44. 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. 40).

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. 43).

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

______________________________________________________________________

30 May 1986 Introduction of the application

5 August 1986 Registration of the application

Examination of Admissibility

8 September 1988 Commission's decision to invite

the Government to submit

observations in writing on the

admissibility and merits of the

complaints under Articles 6 and 13

of the Convention relating to the

Government's decision of 19 January 1986

and decision to declare inadmissible

the remainder of the application.

2 December 1988 Government's observations

5 April 1989 Applicant's observations in reply

10 July 1989 Decision to declare the remainder of

the application admissible.

Examination of the merits

10 July 1989 Commission's decision to adjourn

further examination until the European

Court of Human Rights had delivered

judgment in the Skärby case.

28 June 1990 The Court delivers judgment in the Skärby

case (Series A no. 180-B)

5 July 1990 Parties invited to submit further

observations on the merits

30 August 1990 and Government's further observations

20 December 1990

11 September 1990 and Applicant's further observations

19 November 1990

6 October 1990 and Commission's consideration of the

8 December 1990 state of proceedings

25 February 1991 Decision to refer the application

to the Second Chamber

5 March 1991 Commission's deliberations on the

merits, final vote and adoption of

the Report

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WOLLART v. SWEDEN

WOLLART v. SWEDEN