Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 12782/87

Erik KARLSSON

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 12 April 1989)

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. 11-14) .................................... 2

II. ESTABLISHMENT OF THE FACTS (paras. 15-25) ............. 3

A. Particular circumstances of the case

(paras. 15-21) .................................... 3

B. Relevant domestic law

(paras. 22-25) .................................... 4

III. OPINION OF THE COMMISSION (paras. 26-47) .............. 5

A. Point at issue

(para. 26) .......................................... 5

B. Article 6 of the Convention

(paras. 27-47) ....................................... 5

a. Applicability of Article 6 para. 1 of

the Convention

(paras. 29-41) ....................... 5

b. Compliance with Article 6 para. 1

of the Convention

(paras. 42-47) ....................... 7

APPENDIX I : HISTORY OF THE PROCEEDINGS .................... 8

APPENDIX II: DECISION ON THE ADMISSIBILITY ................. 9

I. INTRODUCTION

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

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

Commission.

A. The application

2. The applicant is Mr. Erik Karlsson born in 1910. He is a

Swedish citizen resident at Sundborn. He is a property owner and is

represented before the Commission by Mr. Per-Gunnar Viklund, a lawyer

practising at Falun.

3. The application is directed against Sweden. The respondent

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

Ambassador, Under-Secretary at the Ministry for Foreign Affairs,

Stockholm.

4. The case relates to the refusal to grant the applicant a

permit to acquire certain agricultural property. The applicant

complains that the dispute over the refusal to grant him the permit

could not be brought before a court as guaranteed by Article 6 of the

Convention.

B. The proceedings

5. The application was introduced on 12 January 1987 and

registered on 2 March 1987. On 7 October 1987 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 8 January 1988 their observations in

writing on the admissibility and merits of the application.

The Government's observations were dated 7 January 1988. The

applicant's observations in reply were dated 7 March 1988.

6. On 12 October 1988 the Commission declared the application

admissible.

7. The parties were then invited to submit any additional

observations or further evidence they wished to put before the

Commission. Their legal submissions should in particular deal with

the dispute which arose between the applicant and the Swedish

authorities.

8. The Government submitted further observations on 19 December

1988. The Government's observations were transmitted to the

applicant for information.

9. Legal aid under the Addendum to the Commission's Rules of

Procedure was granted to the applicant on 22 January 1988.

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

accordance with Article 28 (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

11. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes in plenary session, the following members being present:

MM. S. TRECHSEL, Acting President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

H. G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. C. L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

The text of the Report was adopted by the Commission on

12 April 1989 and is now transmitted to the Committee of Ministers

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

12. 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.

13. 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 forms Appendix II.

14. 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. Particular circumstances of the case

15. The applicant is a real estate owner and forestry manager. On

14 February 1986 he acquired a property, Ã…sen 3:8, in the municipality

of Falun for 45.000 SEK. The property is an agricultural property of

10 hectares and to acquire such a property it is necessary to obtain a

permit in accordance with the 1979 Land Acquisition Act

(jordförvärvslagen). If a permit is refused the purchase becomes

void.

16. According to the first clause of the purchase contract the

applicant should take over the property as soon as he had obtained the

permit. The second clause of the contract provided that the purchase

sum which had been paid on 15 January 1986 would be refunded to the

applicant if the permit was refused or if for some other reason

the purchase would not be completed.

17. The applicant requested permission from the Agricultural

Committee (lantbruksnämnden) of the County of Kopparberg to acquire

the property. He referred to a valuation of the property according to

which the property value was 49.100 SEK. He maintained that he was

working as a farmer and that he would be prepared to exchange the

property for another property if this would be in the interest of a

more efficient forestry. He pointed out that the seller of the

property, who was not a real farmer, preferred to keep it rather than

selling it at the price offered by the owner of the surrounding

properties.

18. On 13 June 1986 the Agricultural Committee refused to grant

the applicant a permit. The Committee referred to Section 4 para. 1

(1) and (3) of the Land Acquisition Act and stated that the price

significantly exceeded the property value and that the property was

needed to make forestry more efficient.

19. The applicant appealed to the National Board of Agriculture

(lantbruksstyrelsen). He recalled that the purchase sum was 45.000

SEK and that the property, according to the valuation report submitted

to the Agricultural Committee, had a value of 49.100 SEK. He further

submitted that due to other circumstances, mainly the fact that the

property was so narrow that he could rely on natural regeneration of

the forest and would have no costs for planting pines, the value could

be considered to be even higher and that the purchase sum could not be

a reason for refusing the permit. He also submitted that the permit

could not be refused on the basis of the rationalisation of the

forestry, as he was prepared to exchange the property for another

property if this would promote the structural rationalisation of the

forestry. He pointed out that he owned a property nearby and alleged

that the Committee had not offered him to buy real estate that had

been for sale previously and that bordered on his property.

20. The National Board of Agriculture rejected the appeal on 13

October 1986 on the same grounds as the Agricultural Committee. The

Board stated that the Committee had assessed the value of the property

at 10.000 SEK and indicated that the property should be used for the

rationalisation of the property named Ã…sen 4:1.

21. The applicant's further appeal to the Government (Ministry of

Agriculture), in which he referred to his submissions to the

Agricultural Committee and the National Board of Agriculture, was

rejected on 11 December 1986.

B. Relevant domestic law

22. The acquisition of real estate, 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 certain 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.

23. Under Section 1 of the Act, a permit is required for the

acquisition of real estate 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 such real estate should be made within three months after

the purchase (Section 12).

24. 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 kept

in mind (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 in view of its yield and other circumstances, or if the

property is needed for the rationalisation of agriculture or forestry.

25. 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).

IV. OPINION OF THE COMMISSION

A. Point at issue

26. The only issue to be determined is whether Article 6 para. 1

(Art. 6-1) of the Convention is applicable and, if so, whether or not there has

been a violation of that provision.

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

27. The applicant alleges a violation of Article 6 para. 1 (Art. 6-1) of

the Convention, in that he had no possibility of having examined by a court the

decision whereby he was refused a permit to acquire the property.

28. The Government submit that the complaint falls outside the

scope of Article 6 para. 1 (Art. 6-1) since it does not involve any dispute

("contestation") over "civil rights and obligations" within the meaning of this

provision. In case Article 6 para. 1 (Art. 6-1) were considered applicable,

the Government admit that the applicants did not have the benefit of a

procedure meeting the requirements of this provision.

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

29. Article 6 para. 1 (Art. 6-1) first sentence reads as follows:

"In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

30. The applicability of this provision depends on whether the

proceedings, by which the applicant was refused a permit to acquire the

agricultural property, were decisive for a dispute (French:

"contestation") which related to a "civil right" of the applicant.

31. The Government point out that it follows, not only from the

provisions of the Land Acquisition Act, but also from the first and

second clauses of the contract of purchase of 14 February 1986, that

the applicant's acquisition of the property depended on the permission

of the Agricultural Committee. They submit that in this respect the

present case differs from the Ringeisen and Sramek cases, in that the

contract itself foresees the procedure required to obtain a permit to

acquire the property and expressly deals with the event of such a

permit being refused (cf. Eur. Court H. R., Ringeisen judgment of 16

July 1971, Series A no. 19 and Sramek judgment of 22 October 1984,

Series A no. 84). They argue that the refusal of the permit in the

present case did not affect any existing property right of the

applicant but merely a conditional right which did not constitute a

civil right (cf. Kaplan v. United Kingdom, Comm. Report 17.7.80,

para. 140, D.R. 21 p. 5).

32. In the Government's opinion, the purchase contract might,

moreover, be construed as an acceptance by the parties of the

procedure in question and, consequently, as a waiver of their rights under

Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court H.R., Deweer

judgment of 27 February 1980, Series A no. 35, p. 19, para. 49).

33. The Government finally submit that what is at issue in the

present case is the application of public law regulations regarding

transactions involving agricultural land and the use of such land and

they conclude that no civil right was affected.

34. The applicant disagrees with the Government as regards the

legal significance of the first and second clauses of the contract of

purchase. He maintains that when agricultural property has been

sold the buyer may from the day of his purchase start exploiting the

property. He may cut down valuable trees and sell them. If a permit

to acquire the property is refused and the purchase becomes void, this

could create serious problems for both parties. Therefore a contract

of purchase usually contains a clause providing that the buyer shall not

take over the property until after he has obtained a permit to acquire

it. It is obvious that the purchase sum shall be refunded if the

purchase of the property becomes void.

35. The Commission recalls that, according to established case-law,

a dispute as to whether a buyer of agricultural land should be granted

a permit to retain that land is decisive for a "civil right" of the

buyer (cf. Ringeisen judgment, loc. cit., p. 39, para. 94, and Sramek

judgment, loc. cit., p. 17, para. 34).

36. The Commission observes that the applicant's purchase was

subject to the condition under the Land Acquisition Act that he obtain

a permit to acquire the property. The examination of whether he should

be granted such a permit was accordingly decisive for his property

right. The fact that the purchase contract indicated that the applicant

might not be granted a permit to acquire the property cannot be considered as a

waiver of his right under Article 6 (Art. 6) of the Convention to a court

procedure.

37. Article 6 para. 1 (Art. 6-1) of the Convention guarantees to everyone,

who claims that an interference by a public authority with his "civil

rights" is unlawful, the right to submit that claim to a tribunal

meeting the requirements of this provision (see Eur. Court H.R., Le

Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A

no. 43, p. 20, para. 44). The claim or dispute must be "genuine and of

a serious nature" (see Eur. Court H.R., Benthem judgment of

23 October 1985, Series A no. 97, p. 14, para. 32). The dispute may

relate not only to the actual existence of a right but also to its

scope or the manner in which it may be exercised. The dispute may

concern both questions of fact and questions of law (cf. Eur. Court

H.R., van Marle and Others judgment of 26 June 1984, Series A no. 101,

p. 11, para. 32).

38. The Government submit, in this regard, that there was no

dispute concerning the present applicant's civil rights and

obligations; in particular, he has not alleged that the competent

authorities acted in a way they were not legally entitled to (cf.

Kaplan v. the United Kingdom, loc. cit., paras. 163-167).

39. The Commission observes that the applicant, in his submissions

to the Swedish authorities, alleged that he was wrongly refused a

permit to acquire the property in question. He considered that the

authorities' finding that the purchase price was too high was based on

an incorrect valuation of the property and that the refusal of the

permit impeded the rationalisation of forestry as the property would

remain in the hands of the seller, who was not a real farmer and who

did not intend to sell it to the owner of the neighbouring properties,

whereas the applicant was prepared to exchange the property for

another one in the interest of a more efficient forestry. He also

submitted that the Agricultural Committee had failed to offer him

property that had been for sale previously and that bordered on his

property.

40. There was thus a dispute as to whether the facts of the case

were such that the authorities were justified, under Section 4 para. 1

(1) and (3) of the Land Acquisition Act, to refuse the applicant a

permit to acquire the property. In the Commission's opinion this was a

"genuine" and "serious" dispute concerning the lawfulness under

Swedish law of the refusal.

41. Accordingly, the Commission finds that Article 6 para. 1 (Art. 6-1) of

the Convention was applicable to the dispute over the applicant's

right to acquire the property.

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

42. It must next be examined whether the applicant had the

possibility of submitting the dispute regarding the refusal to grant

him the permit to acquire the property to a "tribunal" satisfying the

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

43. It is recalled that the applicant appealed against the

Agricultural Committee's decision of 13 June 1986 to the National

Board of Agriculture. Against the Board's decision of 13 October 1986

he lodged a further appeal to the Government. The Government rejected

the appeal on 11 December 1986. No appeal lay against the Government's

decision.

44. In the Commission's opinion the proceedings before the

Government did not constitute proceedings before a tribunal within the

meaning of Article 6 para. 1 (Art. 6-1).

45. The Commission also finds, as the Government admit, that the

applicant did not have access to any court or other tribunal

satisfying the requirements of this provision.

46. It follows that 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 over the permit to acquire the property.

Conclusion

47. The Commission concludes, by a unanimous vote, that there has

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

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

12 January 1987 Introduction of the

application

2 March 1987 Registration of the

application

Examination of admissibility

7 October 1987 Commission's decision to invite

the Government to submit

observations in writing

7 January 1988 Government's observations

7 March 1988 Applicants' reply

12 October 1988 Commission's decision to

declare the application

admissible

Examination of the merits

19 December 1988 Government's observations

on the merits

11 March 1989 Commission's consideration of state

of proceedings

12 April 1989 Commission's deliberations

on the merits and final votes, and

adoption of the Report

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KARLSSON v. SWEDEN

KARLSSON v. SWEDEN

LEXI