Lexploria

Application No. 12585/86

L.

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 3 July 1990)

TABLE OF CONTENTS

I. INTRODUCTION

(paras. 1-19) ...................................... 1

A. The application

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

B. The proceedings

(paras. 5-14 ) .............................. 1

C. The present Report

(paras. 15-19) .............................. 2

II. ESTABLISHMENT OF THE FACTS

(paras. 20-31) ...................................... 3

A. The particular circumstances of the case

(paras. 20-26) .............................. 3

B. Relevant domestic law

(paras. 27-31) .............................. 4

III. OPINION OF THE COMMISSION

(paras. 32-50) ...................................... 5

A. Points at issue

(para. 32) .................................. 5

B. Article 1 of Protocol No. 1 to the Convention

(paras. 33-42) .............................. 5

C. Article 6 of the Convention

(paras. 43-49) .............................. 7

D. Recapitulation

(para. 50) .................................. 7

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

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

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Swedish citizen born in 1932 and resident

at Mellerud. She is a farmer by profession. She is represented before

the Commission by Mr. Rune Lanestrand who is a farmer and journalist.

3. The application is directed against Sweden. The Government

are represented by their Agent, Mr. Hans Corell, Ambassador,

Under-Secretary at the Ministry for Foreign Affairs, Stockholm.

4. The case concerns the refusal to grant the buyers of an

agricultural property sold by the applicant a permit to acquire the

property. It raises issues under Article 1 of Protocol No. 1 to the

Convention and Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 28 October 1986 and

registered on 5 December 1986. On 4 July 1988 the Commission decided,

in accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to

give notice of the application to the respondent Government and to

invite them to present before 14 October 1988 their observations in

writing on the admissibility and merits of the application.

6. The Government's observations were dated 12 October 1988 and

the applicant's observations in reply were dated 30 November 1988.

7. On 13 April 1989 the Commission declared the application

admissible.

8. The parties were then invited to submit any additional

observations on the merits of the application which they wished to

make.

9. The applicant submitted observations by letter of 21 June 1989

and the Government submitted further observations on 18 July 1989.

10. On 7 October 1989 the Commission decided to adjourn the

examination of the case pending judgment of the European Court of

Human Rights in the case of Håkansson and Sturesson. The Court

delivered judgment in that case on 21 February 1990 (Eur. Court H.R.,

HÃ¥kansson and Sturesson judgment of 21 February 1990, Series A

No. 171). The parties were then invited to submit comments in the

light of this judgment.

11. The applicant submitted comments by letter dated

3 April 1990 and, on 4 April 1990, the Government submitted further

observations in the light of the Court's judgment.

12. On 12 May 1990 the Commission considered the state of

proceedings of the case.

13. On 3 July 1990 the Commission deliberated on the merits of

the application and took the final votes in the case.

14. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

15. 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

J. A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

16. The text of this Report was adopted on 3 July 1990 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

17. 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.

18. 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.

19. 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

20. The applicant and her brothers own an agricultural property

called Hinsetakan 1:23 in the municipality of Vänersborg. They have

tried to sell the property three times since 1983, but on each

occasion the Agricultural Committee (lantbruksnämnden) of the County

of Älvsborg has considered the purchase sum to be too high and

rejected the buyers' request for a permit to acquire the property.

Such a permit is needed, according to Section 1 (1) of the 1979

Land Acquisition Act (jordförvärvslagen, in its wording before

1 July 1987), for the acquisition of real estate, which is assessed

for tax purposes as agricultural property. If a permit is refused the

purchase becomes void.

21. On 30 August 1985 Hinsetakan 1:23 was bought by Stefan

Jonasson and Katarina Lewander for 300,000 SEK. According to the

purchase contract the purchase price was to be paid in cash at the

latest when the buyers took possession of the property. The purchase

was made on the condition that the buyers obtained a permit to acquire

the property. On 15 October 1985 the buyers submitted a request for a

permit to acquire Hinsetakan 1:23 to the Agricultural Committee.

22. Following investigations by the Agricultural Committee the

buyers were informed by a letter of 7 November 1985 that a refusal of

the request for a permit could be envisaged since the purchase sum was

too high according to the norms of the Agricultural Committee and since

the real estate was needed for rationalisation purposes. According to

the valuation of the Agricultural Committee the price of Hinsetakan 1:23

should be 255,000 SEK.

23. The buyers were given the opportunity to comment upon the letter

of the Committee.

24. On 19 November 1985 the Agricultural Committee rejected the

request for a permit to acquire the property on the ground that the

real estate was needed for rationalisation of forestry. The Committee

referred to Section 4 para. 1 (3) of the Land Acquisition Act.

25. Stefan Johansson appealed to the National Board of Agriculture

(lantbruksstyrelsen) which in a decision of 20 March 1986 referred to

Section 4 para. 1 (1) and (3) of the Land Acquisition Act and rejected

the appeal, stating inter alia as follows:

"The Agricultural Committee has assessed the real estate at a

value of 255.000 SEK. Since the valuation includes a

reasonable safety margin the Board finds that the purchase sum

considerably exceeds the property's value having regard to its

return and all other circumstances. The Board also finds that

the purchased property is needed for purposes of

rationalisation. It is appropriate to unite it with the real

estate Hinsetakan 1:28. In that case the purchased property

would be joined together with a farm which can be further

developed and which is run by a full-time farmer, who has

reported need for more land to the Agricultural Committee."

26. The applicant and the buyers appealed to the Government

(Ministry of Agriculture). The applicant argued inter alia that the

price agreed was not unreasonable and that the owner of Hinsetakan 1:28

was in fact not interested in buying the property. In a decision of

18 June 1986 the Government rejected the appeal on the same grounds as

those referred to by the National Board of Agriculture. In their

decision the Government reminded the sellers of the possibility to

make a request under Section 14 of the Land Acquisition Act that the

State redeem the property.

B. Relevant domestic law

27. The acquisition of real property, which is assessed for tax

purposes as an agricultural holding, is subject to the regulations of

the 1979 Land Acquisition Act. The Act was enacted in 1979 -

replacing an Act of 1965 - in order to implement new agricultural

guidelines adopted by the Riksdag in 1977, and also to meet the policy

goals of forestry and regional planning. Among the aims which, in

particular, were to be promoted by the Act are the creation and

preservation of effective family holdings so as to strengthen the

connection between cultivation and ownership, and also the promotion

of a continuous structural rationalisation of agriculture and

forestry.

28. Under Section 1 of the Act, in its wording before 1 July 1987,

a permit is required for the acquisition of a property assessed for

tax purposes as an agricultural holding. Section 2 enumerates a

number of exceptions, none of which is relevant to the present case.

A request for a permit to acquire a real estate should be made within

three months after the purchase (Section 12).

29. When deciding on an application for a permit, the desirability

of encouraging the creation and development of rational holdings in

agriculture, forestry and horticulture (farm holdings) shall be taken

into account (Section 3). Furthermore, according to Section 4 an

application for a permit shall be refused inter alia if the price or

other compensation for the property significantly exceeds the value of

the property or if the property is needed for the rationalisation of

agriculture or forestry.

30. If an application for a permit to acquire agricultural

property has not been made within the time-limit and in the manner

prescribed, or if the permit has been refused, the purchase becomes

void (Section 13).

31. In the event that the purchase of agricultural property

becomes invalid as a result of a refusal of permission to acquire the

property on the ground that it is needed for the rationalisation of

agriculture and forestry, the State is, according to Section 14 of the

Act, obliged to redeem the property at the purchase price agreed upon

in the invalid sale if the seller requests it. However, under the same

Section no such obligation exists, where the purchase price

considerably exceeds the value of the property in view of its yield

and other circumstances, or if the terms are unreasonable in other

respects. A request for redemption should be made to the Agricultural

Committee. If the request is refused an action for redemption may be

brought before the Real Estate Court (fastighetsdomstolen). The

decision of that Court can be appealed to the Court of Appeal

(hovrätten) and from there an appeal lies to the Supreme Court (högsta

domstolen).

III. OPINION OF THE COMMISSION

A. Points at issue

32. The principal issues to be determined are:

- whether there has been a violation of the applicant's

property rights as guaranteed by Article 1 of Protocol

No. 1 (P1-1) of the Convention;

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

was applicable to the dispute which arose over the

question whether the buyers of the applicant's

property should be granted a permit to retain the

agricultural property they had bought and, if so,

whether there has been a violation of this

provision.

B. Article 1 of Protocol No. 1 (P1-1) to the Convention

33. Article 1 of Protocol No. 1 (P1-1) provides:

"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."

34. The applicant has complained of being prevented from selling

her property by the refusal of a permit by the Agricultural Committee

and of the artificial market price which has been determined for her

property. She submits that this is in violation of the above provision.

35. The Government submit that the applicant has not been deprived

of her property, but subject to a control of the use of property which

is necessary in the general interest of the rationalisation of

agriculture. They refer to the wide margin of appreciation

accorded to Contracting States and submit that the system does not

impose an undue burden on the applicant.

36. The Commission considers that in principle the right

guaranteed by Article 1 of Protocol No. 1 (P1-1) includes the owner's

right to sell the property. Consequently, the refusal in the present

case to grant the buyers of the property at issue a permit to acquire

it constituted an interference with the applicant's right to the

peaceful enjoyment of her possessions as guaranteed by Article 1 of

Protocol No. 1 (P1-1). However, although the applicant was prevented

from selling her property at a certain price to the buyers of her

choice, she was not prevented from keeping it. In the Commission's

view, the interference complained of cannot be characterised as a

deprivation of property, but as a control of the use of property. The

question whether it was justified must therefore be examined under the

second paragraph of Article 1 of Protocol No. 1 (P1-1) to the

Convention.

37. The Commission must determine whether the control was "in the

general interest", which requires an examination of the lawfulness and

purpose of the interference and the proportionality of the inter-

ference (see e.g. Eur. Court H.R., Tre Traktörer AB judgment of

7 July 1989, Series A. No. 159, p. 22-24, paras. 56-62).

38. The Commission notes that the decisions taken were based on

the provisions of the 1979 Land Acquisition Act, notably Sections 1

and 4 of the Act. The Commission further recalls that certain aspects

of the price-control system on the sale of land established under

that Act were examined by the Court in the case of HÃ¥kansson and

Sturesson (Eur. Court H.R., HÃ¥kansson and Sturesson judgment of

21 February 1990, Series A No. 171) and that the Court did not find

any conflict to exist between that system as applied in the said case

and Article 1 of Protocol No. 1 (P1-1) (loc. cit., paras. 52-54). In the

case of HÃ¥kansson and Sturesson, the issue arising under that Article

was one of deprivation of property, while the present case concerns

"control" of "the use of property" within the meaning of the second

paragraph of the Article.

39. The objectives of the Land Acquisition Act are, in particular,

to create and preserve effective family holdings so as to strengthen

the connection between cultivation and ownership, and also to promote

rationalisation of agriculture and forestry. The control of prices is

an important element to promote these aims. The Commission considers

these aims to be legitimate for the purpose of Article 1 of Protocol

No. 1 (P1-1). It is satisfied that the decisions of which the applicant

complains were taken in order to promote the aims of the Land

Acquisition Act and that they were lawful.

40. As regards the proportionality of the interference the

Commission recalls that the second paragraph of Article 1 of the

Protocol (P1-1) has to be construed in the light of the general

principle set out in the first sentence of this Article (P1-1)

(Eur. Court H.R., James and Others judgment of 21 February 1986,

Series A No. 98, p. 17, para. 37). This sentence has been interpreted

by the Court as including the requirement that a measure of

interference should strike a "fair balance" between the demands of the

general interest of the community and the requirements of the

protection of the individual's fundamental rights (Eur. Court H.R.,

Sporrong and Lönnroth judgment of 23 September 1982, Series A No. 52,

p. 26, para. 69). The search for this balance is reflected in the

structure of Article 1 (Art. 1) as a whole and hence also in the

second paragraph. There must be a reasonable relationship of

proportionality between the means employed and the aim sought to be

realised (James and Others judgment, loc.cit., p. 22, para. 50).

41. The Commission has taken into account that a wide

margin of appreciation is enjoyed by the State when choosing means to

control property in the general interest. The system of control of

purchase prices of agricultural property established under the Land

Acquisition Act cannot be considered to go beyond that margin of

appreciation. As regards the application of that system to the

present case the Commission notes that the purchase price of the

applicant's property was 300,000 SEK whereas its value according to

the assessment made by the Agricultural Committee was 255,000 SEK. It

has not been shown that this valuation was unreasonable. Considering

that the applicant could presumably have sold the property to someone

else, or could have had it redeemed by the State under Section 14 of

the Land Acquisition Act, at a price reasonably related to its value,

and that in any case she could keep the property, the Commission finds

that the decisions complained of were not disproportionate to the

legitimate aims pursued.

Conclusion

42. The Commission concludes unanimously that there has been no

violation of Article 1 of Protocol No. 1 (P1-1);

C. Article 6 (Art. 6) of the Convention

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

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

relevant, as follows:

"In the determination of his civil rights and obligations

... everyone is entitled to a fair and public hearing within

a reasonable time by an independent and impartial tribunal

established by law."

44. The Government have recognised the similarity of the present

case with the case of HÃ¥kansson and Sturesson (Eur. Court H.R.,

loc.cit.), in which the Court found that "civil rights and obligations"

were at stake in the disputes before the administrative authorities

concerning the permit issue. The Commission finds that in the present

case the refusal to grant the buyer a permit to acquire the

applicant's property, including the valuation of the property,

concerned the applicant's "civil rights". Furthermore, the Commission

considers that there was a dispute concerning the lawfulness under

Swedish law of the decisions taken (cf para. 26).

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

applied to the dispute over the refusal to grant the buyer a permit to

acquire the property.

46. The Government argue that the applicant has waived her right

under Article 6 para. 1 (Art. 6-1) of the Convention as a result of her

acceptance in the purchase contract of the permit procedure.

47. The Commission disagrees. The fact that in the purchase

contract the permit procedure is foreseen cannot be interpreted as a

waiver by the applicant of the rights guaranteed to her by Article 6

para. 1 (Art. 6-1) in the case of a dispute over the lawfulness under

Swedish law of the decision to refuse the permit.

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

48. The Commission recalls that the dispute in question, as in the

HÃ¥kansson and Sturesson case (loc.cit., para 63) was decided by the

administrative authorities, including the Government at final instance.

It finds that these decisions were not open to review before the

ordinary courts or the administrative courts, or any other body which

could be considered to be a "tribunal" within the meaning of

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

Conclusion

49. The Commission concludes unanimously that there has been a

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

D. Recapitulation

50.- The Commission concludes unanimously that there has been no

violation of Article 1 to Protocol No. 1 (P1-1) to the Convention (para.

42)

- The Commission concludes unanimously that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 49).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

______________________________________________________________________

28.10.86 Introduction of the application

05.12.86 Registration of the application

Examination of Admissibility

04.07.88 Commission's deliberations and

decision to invite the Government to

submit observations in writing

12.10.88 Government's observations

30.11.88 Applicant's observations in reply

13.04.89 Commission's deliberation

and decision to declare the

application admissible

Examination of the merits

21.06.89 Applicant's observations on the merits

18.07.89 Government's observations on the merits

07.10.89 Commission's decision to adjourn the

case pending the case of Håkansson

and Sturesson before the European

Court of H.R.

21.02.90 Court's judgment in the case of

Håkansson and Sturesson

03.04.90 Applicant's letter

04.04.90 Government's further observations

12.05.90 Commission's consideration of the

state of proceedings

03.07.90 Commission's deliberations on the

merits, final votes and adoption of

the Report

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L. v. SWEDEN

L. v. SWEDEN

LEXI