EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 12258/86

The Estates of Mr. and Mrs.  SKÄRBY

and their heirs and children

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 16 March 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. 15-37) .............    3

        A.  The particular circumstances of the case

            (paras. 15-25) ....................................    3

        B.  Relevant domestic law (paras. 26-37) ..............    4

III.    SUBMISSIONS OF THE PARTIES (paras. 38-66) ............     7

        A.  The applicants (paras. 38-50) ....................     7

        B.  The Government (paras. 51-66) ....................    10

IV.     OPINION OF THE COMMISSION (paras. 67-93) .............    14

        A.  Point at issue (para. 67) ........................    14

        B.  Article 6 of the Convention (paras. 68-93) .......    14

            a.  Applicability of Article 6 para. 1

                of the Convention (paras. 69-87) .............    14

                aa.  Was there a dispute regarding a "right"?

                     (paras. 70-83) ..........................    14

                bb.  Was the right "civil" in character?

                     (paras. 84-87) ..........................    16

            b.  Compliance with Article 6 para. 1

                of the Convention (paras. 88-93) .............    17

Dissenting opinion by MM. Nørgaard, Trechsel

Jörundsson and Martinez ......................................    19

Concurring Opinion by Mr.  Danelius ...........................    20

Concurring Opinion by Mrs.  Liddy .............................    21

APPENDIX I      :  HISTORY OF THE PROCEEDINGS ................    22

APPENDIX II     :  DECISION ON THE ADMISSIBILITY .............    23

I.      INTRODUCTION

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

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

Commission.

A.      The application

2.      The applicants are the Estates of Mr.  Christian Skärby and

Mrs.  Maria Skärby and their heirs and children namely:

    a.  Mrs.  Ingegärd Skärby, born in 1909 and resident at Nyhamnsläge,

    b.  Mrs.  Rigmor Skärby, born in 1910 and resident at Ambjörby,

    c.  Mrs.  Majken Skärby, born in 1912 and resident at Nyhamnsläge,

    d.  Mr.  Bertil Skärby, born in 1914 and resident at Nyhamnsläge,

    e.  Mr.  Rolf Skärby, born in 1919 and resident at Kisa,

    f.  Mrs.  Lena Hedman, born in 1921 and resident at Höganäs.

        The applicants are Swedish citizens.  They are represented

before the Commission by Mr.  Bertil Grennberg, a patents consultant

practising in Stockholm.

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 applicants' complaint of the absence

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

Convention in respect of a decision by a Building Committee to refuse

them a permit to build on a property.

B.      The proceedings

5.      The application was introduced on 26 June 1986 and

registered on 30 June 1986.  On 4 March 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 15 May 1987 their observations in

writing on the admissibility and merits of the application.

6.      The Government's observations were, after an extension of the

time-limit, dated 18 June 1987 and the applicants' observations in

reply were dated 7 September 1987.

7.      On 9 May 1988 the Commission decided to declare admissible

the applicant's complaint of a violation of Article 6 para. 1 of the

Convention.  The remainder of the application (essentially complaints

under Article 1 of Protocol No. 1 to the Convention) was declared

inadmissible.

8.      The parties were then invited to submit any additional

observations on the merits of the application which they wished to

make.

9.      The Government submitted further observations by letter of

8 September 1988 and the applicants submitted further observations on

20 September 1988.  The observations of each party were communicated to

the other party for information.

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.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     S. TRECHSEL

                     G. SPERDUTI

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     H. VANDENBERGHE

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

        The text of the Report was adopted by the Commission on

16 March 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.      The particular circumstances of the case

15.     In 1913 Mr.  Christian Skärby and Mrs.  Maria Skärby, who are

now deceased, bought a farm in the south of Sweden.  The property was

bought with a view to lodging and partly nourishing the family.  In

1915 a fire destroyed the house and a new one was built.  The property

has been the family home of the Skärby family ever since.  Originally,

the property consisted of three different parts called Flundrarp 4:9,

Stubbarp 8:17 and Stubbarp 8:18.  The total surface is around eight

hectares.  In 1960 Christian and Maria Skärby bought a new area of

land adjacent to the property.  It was joined with Flundrarp 4:9 and

was thereafter named Flundrarp 12:1.

        The property is situated on the shore of Skälderviken, a bay

outside the western coast of the province of Skåne in southern Sweden.

The surroundings are considered to be one of the most beautiful in

Sweden.  In the Act on the Preservation of Natural Resources (lagen om

hushållning med naturresurser m m) this area is mentioned among those

which, according to the Act, are considered of national interest with

regard to natural and cultural values.

16.     In 1962 the County Administrative Board (länsstyrelsen) of

Malmöhus County confirmed a building plan, which is still in force,

regarding the main part of Flundrarp 4:9.  According to that plan the

part of the property situated closest to the shore should be preserved

as a natural park.  The area further up should be used partly for

agriculture and partly as a garden to the main building.  On the land

around the main building new constructions are prohibited.  The plan

does not prevent the applicants from preserving the main building and

the two outhouses on the area intended as a garden to the main

building.  Nor does the plan prevent the applicants from pulling down

the main building and erecting a new one on the same spot.  On the

area planned for agriculture, farm buildings may be erected.

17.     On the property there are five different buildings.  Apart

from the main building there is a store building containing one room

which is used as a dwelling.  Besides these two buildings there are

three small buildings within the area.  One is situated within the

part of the property where, according to the plan of 1962, no new

buildings are allowed.  The remaining two buildings are situated

within the area which is reserved as a natural park.

18.     In 1964 the County Administrative Board confirmed a building

plan regarding the remaining part of Flundrarp 4:9 and Stubbarp 8:17

and 8:18.  According to this plan the land owner was allowed to erect

two or, depending on the size, three buildings for recreation purposes

on Flundrarp and about 15 such buildings on Stubbarp 8:17 and 8:18.

No buildings have yet been erected according to this plan.  However,

new constructions within the area covered by this building plan were

prohibited under Section 110 of the Building Act (byggnadslagen)

until water supplies and sewerage systems are provided.  The main

reason for this prohibition was that lack of subsoil water makes a

coordination necessary when providing water supplies and sewerage

systems for the area.

19.     In 1983 to 1984 a new building plan was proposed regarding a

part of Flundrarp 12:1.  This proposed plan was made following a

request from the Skärby family.  In this proposal one plot was planned

for the main building and one for the store building.  Three more

plots were planned, two of which would be situated within the part of

the area where, according to the existing plan of 1962, no new

buildings may be erected.  The third plot would be situated in the

area intended for agriculture.  The natural park was extended to cover

also the area which, according to the plan of 1964, could be used for

the two or three buildings for recreation purposes on Flundrarp 12:1.

20.     This proposed plan was approved by some of the parties to the

estate of Christian and Maria Skärby, but some of them did not

approve of the development agreement (exploateringsavtal) which the

municipality proposed.  The municipality considered that an agreement

was necessary in order to approve the proposed alteration of the

building plan.  The agreement should inter alia regulate how the costs

for the planning should be paid and how the water supply system and

the sewerage system should be provided in regard to the three new

plots.  This was considered necessary in order to lift the building

prohibition in force.

21.     In 1986 Bertil Skärby applied to the Building Committee

(byggnadsnämnden) of Höganäs for a building permit to erect a house

and two garages on Flundrarp 12:1.

22.     In a decision of 24 March 1986 the Building Committee rejected

the application on the ground that the buildings proposed would not

comply with the building plan in force.  The decision also meant that

the Committee found no reason for granting an exemption from the plan.

23.     Insofar as the decision involved a decision to refuse an

exemption from the building plan, no appeal was possible.

24.     Today the main building on the property is inhabited by

Mrs.  Majken Skärby who is retired.  She is severely ill, suffering

from Parkinson's disease and a decalcification of her skeleton.  The

house is badly insulated and draughty.  The applicants consider that

it is no use repairing it.  In addition, the situation of the house on

the property has become unsuitable as a result of the noise from the

traffic on the road which has been constructed nearby.  For medical

reasons and in view of the great risk that she will soon need a

wheelchair in order to move around, Mrs.  Skärby is not able to stay

very long in this house.  She is in great need of a new house.

25.     Mr.  Bertil Skärby is also retired and lives at present in the

above-mentioned store building.  It is a simple house where, the

applicants submit, the hens were previously kept.  The house has no

running water and no stove.  He is therefore also in great need of a new

house on the property which he is exploiting.

B.      Relevant domestic law

26.     The relevant provisions in the present case are the 1947

Building Act (byggnadslagen) and the 1959 Building Ordinance

(byggnadsstadgan).  This legislation has been replaced by the 1987

Plan and Building Act (plan-och bygglagen), but the following survey

concerns the situation as it was before this new legislation entered

into force.

27.     If an area has become densely populated or if such a situation

is expected to emerge in the area, but this situation does not call

for a town plan, the municipality must see to it that a building plan

is drawn up, to the extent necessary for the regulation of the

planning of the area.  A building plan must delineate and state the

limits of the areas intended to be used for various purposes in the

plan, such as land intended for building purposes, as well as roads

and other public places.  If special regulations relating to the

development or the use of the areas concerned are required, such

regulations must also be incorporated in the plan.  Such planning

regulations can relate to the use of building land for certain

purposes, a prohibition on the development of a certain part of the

building land, the number of buildings on a certain site, the size of

the site, the surface area of the building, its height and the number

of storeys, etc.

28.     A building plan must be approved by the Municipal Council

(kommunfullmäktige).  The matter can also be delegated to the Building

Committee.   Before acquiring legal force, decisions of approval must

be confirmed by the County Administrative Board.  An owner of land

affected by a County Administrative Board decision approving a

building plan has a right of appeal against the Board's decision to

the Government.

29.     If the question has been raised of the drawing up of a

building plan for a certain area, or of such a plan being altered, the

County Administrative Board - if the municipality so requests - can

prohibit new constructions in the area.  Such a prohibition may be

issued for, at most, one year but can be extended by the County

Administrative Board for, at most, two years at a time (Section 109

of the Building Act).  A County Administrative Board's decision on

the prohibition of new constructions or on the extension of such a

prohibition can be appealed to the Government.

30.     The costs for developing a building plan are paid by the

municipality.  However, the property owners concerned shall compensate

the municipality for the costs in proportion to the size of the

property, if the plan is considered to be of considerable use to the

owner (Section 101 of the Building Act).  Such compensation is often

stipulated in an agreement into which the municipality enters with the

property owners concerned.  It is for the owners of the land to see to

it that roads and other amenities are completed within an area covered

by a building plan.

31.     A building plan can be amended if required.  According to

Section 23 of the Building Ordinance (byggnadsstadgan), the provisions

concerning the adoption and confirmation of building plans shall, in

principle, also apply to the alteration or withdrawal of such plans.

There are, however, no rules stating the material conditions for

alteration or confirmation.

32.     According to Section 110 first paragraph of the Building Act,

a new construction may not take place in contravention of a building

plan.  However, the County Administrative Board may grant an exemption

"when there are special reasons and the Building Committee approves

it" (Section 110 first paragraph).  Since the approval of the Building

Committee is a condition for the granting of an exemption, it follows

that the Building Committee has a right of veto in respect of

exemptions from a building plan.

33.     The competence to grant exemption from a prohibition to

construct may be delegated to the Building Committee.  Nearly all

Building Committees have such competence.

34.     Under the second paragraph of Section 110, a County

Administrative Board can prescribe that new constructions in an area

covered by a building plan may not take place without the Board's

permission before adequate roads, water-supplies and sewerage systems

have been provided.

35.     A person, who wishes to erect a building, for which a permit

is required, must file an application with the Building Committee.  An

application coming under a building prohibition is in practice

considered as also including an application for exemption from the

prohibition in question.  The applicant may, on the other hand, choose

to apply for an exemption only, with the intention to apply for a

permit when the matter of exemption has been resolved.

36.     The examination of an application for a permit involves

ascertaining that the intended building will not run counter to any

confirmed plan or, as the case may be, to the regulations of

non-planned areas, or to a building prohibition and that it satisfies

technical demands on construction.  In the absence of such obstacles,

a permit should be granted.

37.     A decision of the Building Committee under the Building Act or

the Building Ordinance, for example regarding a building permit, may

be appealed to the County Administrative Board and further to the

Administrative Court of Appeal (kammarrätten) and ultimately to the

Supreme Administrative Court (regeringsrätten).

        A decision to refuse an exemption from a confirmed building

plan cannot be appealed (Section 71 of the Building Ordinance).

III.    SUBMISSIONS OF THE PARTIES

A.      The applicants

38.     Partly as a result of the efforts of the Skärby family, their

property has become very beautiful and in 1958, when the municipality

wished to make a building plan for the area, the responsible architect

wanted to make a natural park of the area.  Subsequently a new plan

was exposed in the local school and in that plan a large part of the

land of Flundrarp 12:1 was marked as a natural park.  The Skärby

family asked the responsible local authorities about the legal

significance of the reservation of the land as a natural park because

they wished in all circumstances to be able to build on the property

in order to satisfy the needs of the family.  The house in which they

lived was not of first quality since it had been constructed long ago

and it was envisaged at the time that the new construction should be

carried out in a not too distant future.  However, the responsible

local authorities could not reply to this enquiry but advised the

family to submit it to the County Administrative Board of Malmö.  As a

result, in 1961, Mr.  Christian Skärby, accompanied by his two children

Majken and Bertil, went by car to the County Administrative Board of

Malmö and they were received by the Superior Land Surveyor and by the

Architect of the County.  These public officials declared clearly that

the plan would not be an obstacle to the construction of the houses

which the family might be in need of in the future, if the family did

not object to the plan proposed.  It is submitted that the authorities

thus gave clear assurances that if the children were to construct a

new house on the territory marked "natural park" this would be

acceptable.  As a result the family decided not to lodge an appeal

against the proposed plan.  In 1968, after the death of Mr.  Christian

Skärby, the children wished to construct a new house and accordingly

asked for a preliminary decision from the municipality.  It then

appeared that the previous assurances did not have any value and it

was even questioned whether they had ever existed.

39.     It is true that the municipality has proposed sites for the

new constructions.  However, the applicants are of the opinion that

these places have been chosen precisely because the authorities knew

that they were unacceptable to the applicants.  For instance the

authorities have proposed that the applicants should construct on the

small court yard between the present dwelling and the out-buildings

which would destroy the value of the said out-buildings.

40.     The applicants allege that they were discriminated against as

compared to their neighbours.  In respect of a property situated near

to the applicants, the civil servant responsible for protection of the

nature had to decide on the use of the land.  The land was owned by a

foundation and it was intended to construct a golf course and a group

of leisure houses as well as houses for permanent dwellings.  The civil

servant who had to decide on the case received at the same time from

the foundation an amount of 57,000 SEK for private research purposes.

This development of the land was very controversial and there was

reason to suspect corruption.  A Member of Parliament brought a

complaint and notified the Minister of Justice and the fiscal

authorities.

41.     The case dealt with by the Building Committee concerned a

permission to construct a house whose placement and details of

construction were indicated in the application.  It is evident that the

use of such a house falls within the private and civil sphere.

Building activities are private and civil activities.  The applicants

point out that the municipality's fees for the planification and the

water and sewerage system were not at issue in the case.  The Government

submit that the question of the location of the new building must be

considered to fall within an area regulated by other considerations

than purely legal views.  They submit that the main issue is the

effect on the landscape caused by the building.  The applicants fully

agree with the latter point.  However, they find it incomprehensible

why this should be a reason to exclude the tribunals from determining

any disputes in that respect.  The applicants consider that this is a

question which must be considered in the context of the preamble to

the Convention which speaks of the rule of law, the opposite being

arbitrariness and unlimited power given to municipal civil servants.

The rule of law means that the laws and other regulations should be

decided by an elected body but that they should be applied by

impartial and independent bodies.

42.     This is well in line with the decision referred to by the

Government (No. 10977/84).  The argument which the Government wish to

put forward in that decision loses much of its force in the present

case where the regulations are applicable and interpreted by a

municipality which itself engages in real estate business, and not

by the State as the supreme authority.

43.     The fact that an exemption is legally possible weakens the

position of the Government.  It is in the nature of things that a plan

cannot regulate everything.  It is not in the nature of things that

such derogations should be given by a committee of a municipality

which finds at the same time a financial interest therein.  It can

thereby try to reduce the value of the property in order to force an

owner to sell his land to the municipality which, at a later stage,

can practically revalue the land by lifting the prohibitions.

Accordingly, it is necessary to allow disputes in relation to such

exemptions to be determined by independent and impartial bodies.

Otherwise it would be possible to use a law so as to remove the

substance of the guarantees of Article 6 of the Convention in

situations where one of the parties in the dispute is the State or a

body on which the State has conferred a privileged situation.

44.     The Government submit that it would be impractical if

a land-owner could have the possibility to have his rights examined by

a tribunal when it concerns planification.  The applicants find the

reasoning astonishing.  First, it is notorious that it is the State

and not the individuals that has the habit of delaying for the purpose

of depriving owners of their property.  The applicants refer to the

case of Sporrong and Lönnroth.  Secondly, Article 6 does not only give

the right to have the case heard by a tribunal but also to have the

case heard within a reasonable time.  If the Government find it

appropriate to speed up the procedure concerning questions of

planification it would be easy to provide that the tribunals to

which one refers such cases should treat them rapidly with a minimum

of delay.  The Government are well placed to introduce such a system

and they are also obliged to do so by the Convention, in particular,

since the Government find themselves that the delays are not

reasonable.

45.     The applicants are convinced that, in their capacity as

owners, they have a right to construct buildings on their property.

The ownership gives them a negative right to prohibit others from

constructing on their property.  As regards the positive aspect of the

property right they find it natural that they do not have a right to

construct anything but that it is reasonable that the municipality

exercises a control.  The applicants do not accept that the right to

construct on the property was taken away by the 1962 planning decision

together with the subsequent changes of the law.  They assume that the

intention in 1962 was not to deprive them of their property but to

ensure a proper development of constructions.

46.     The applicants consider that the case concerns a right.  The

right which they refer to is not a right to obtain a permit but a

right inherent in the position of a proprietor of land.  Article 6

speaks of "des contestations sur ses droits et obligations de

caractère civil".  This means that Article 6 also covers issues where

doubts may exist as to whether there exists a right.  Textually

speaking, Article 6 seems to say that, when there is a dispute over a

right or obligation, everyone has the right to have his case heard by

a tribunal satisfying a certain number of conditions.  Consequently,

even the one who alleges a right which he does not have has the right

to have his case heard.  Article 6 is not restricted to good cases.  For

the applicants it is evident that the case falls within the category

of civil rights since the decision at issue affected their right to

use their property.  The fact of having a system of permits for the use

of property does not change the nature of that right.  In view of

the background of the case it cannot be doubted that there was a

dispute between the applicants and the local authorities.

47.     As regards the discretion concerning exemptions, it seems

apparent that the Building Committee are not bound by any plans since

they can make a new plan as soon as they wish.  This is what happened

in 1983-84.  It is thus within the competence of the Committee to act

as they wish.  Confirmation by the County Administrative Board is in

practice only refused if it finds the plan unreasonable.  It is

certainly possible for the Building Committee to change the plans when

the municipality has acquired the land in question.  The applicants are

certain that this is the intention of the municipality, a conviction

which has been strengthened by what the applicants' representative

heard at a court hearing on 4 May 1988 before the Administrative Court

of Appeal.

        In exercising its discretion the Committee must take the

circumstances of the individual cases into account.  In a big city in a

block which is already constructed, it must consider that the

neighbouring properties do not suffer from what is permitted and the

possibilities to make derogations are limited.  In rural areas, far

from agglomerations, the position is different.  The Building Committee

was not prevented legally from granting the exemption requested in the

present case.

48.     Consequently the applicants consider that the question whether

they should be permitted to build or prohibited from erecting a house

on a place chosen by them concerns a dispute regarding their civil

rights and obligations.

49.     The Building Committee's decision of 1986 was not subject to

appeal unless it was illegal.  Illegality could however not be

seriously invoked and accordingly an appeal was useless.  Since the

municipality refused exemption from the building plan and rejected the

request for a building permit, there was no remedy against the

decision.

50.     The applicants point out that, in the present case, the

decision has been taken by an administrative organ which was an

interested party.  The municipality is itself active on the property

market.  Such an activity is incompatible with the role of arbitrator

in the exercise of other individuals' property rights.  The applicants

submit that the negative view taken by the municipality can only be

explained by the fact that the municipality wishes to acquire the

property.  It is notorious that many municipalities use the planning

instruments for commercial objectives.  Only in areas where the

municipality possesses large areas is the necessary planning carried

out.

        The present state of affairs is consequently incompatible with

the pre-eminence of the rule of law.  As regards the Kaplan case, the

applicants note that what was missing in the Kaplan was not a right

but a serious dispute.  In the judgments in the cases O., B., R., W. v.

the United Kingdom, the Court observed that the existence of a right

was decided in an autonomous way.  In the Kaplan case it was not even

alleged that there was any fault in the activities of the

administration.  In the present case, even if the members of the

Building Committee had the public interest before their eyes, there

were the financial interests of the municipality.  They cannot take the

position of a judge when the applicant requests permission to

construct on his property.  Bertil Skärby could not bring the case

before a tribunal.  The question whether it would have been sufficient

if the tribunal had addressed only the issue of the legality of the

position taken by the Building Committee or whether it ought to

determine also the substantive issue does therefore not arise.  In any

case, according to the applicants, the nature of the original plan was

such that they were legally entitled to obtain an exemption and,

consequently, also a determination regarding the legality would have

been sufficient for their case to be successful.

B.      The Government

51.     The Government observe that the reason why it is not possible

to appeal against a decision to refuse exemption from a building plan,

is that the suitability of the plan has once been decided when the

plan was confirmed.  At that time it was possible to make an appeal

against that decision.  It should not be possible to have the same

issue examined all over again every time an application for a building

permit, which implies an exemption from the building plan, is

examined.

52.     The present complaint concerns the decision of the Building

Committee to refuse an exemption from the existing building plan.  The

new dwelling and the two garage buildings would be located within the

area of Flundrarp 12:1 which, according to the building plan, is

regarded as a natural park within which new buildings are prohibited.

53.     Accordingly, the issue was not whether the applicants should

be allowed to build a new house on the property, but where upon the

property the new houses should be situated.  In the plan proposed in

1983-1984 the municipality offered the applicants four new sites upon

which buildings may be erected.  They are located on the property

within an area which the parties to the estate approved in 1984.

However, an adoption of the proposed plan implies that they accept to

contribute to the costs of the municipality for altering the building

plan and for sewerage and water supply systems.  The location of the

new sites proposed by the municipality is very close to what the

applicants wish.  They are situated less than 200 metres from what was

suggested in the application for a building permit which was rejected

on 24 March 1986.  However, in the Building Committee's opinion the

location proposed in the plan is far better with regard to the

landscape and the general interest.

54.     In the Government's view this question does not relate to a

civil right within the meaning of Article 6 of the Convention.  The

question of the location of a new building depends on other

considerations than purely legal ones.  A main issue is the effect on

the landscape caused by the building.  Considerations in this regard

have been dominant in the present case.  They can hardly be examined

by a court.  In the Government's view considerations of this kind were

never meant to fall within the scope of "civil rights".  This view is

in line with the wording of Article 6 and is also supported by the

travaux préparatoires to the Convention.  The Government refer to a

decision of the Commission in a case against Sweden (No. 10977/84,

Dec. 1.7.85).

55.     Planning is a matter which the inhabitants of a municipality

can influence by political means.  That is why a plan is originally

adopted by a political body, namely the Building Committee of the

municipality.  In the political debate a building plan can be an issue

of major importance.

56.     The possibility of having decisions on planning examined by

courts is alien to the system of planning.  This system is based on

the idea that the municipality is responsible for the use of land and

the building activities within the municipality, and that the state

control of how the municipalities carry out their obligations is

exercised by the County Administrative Board and the Government.

57.     Before a plan is adopted, landowners and others concerned

are duly consulted and the proposed plan is exposed at a public

planning-exhibition in the municipality.  Decisions on planning are

carried out speedily by the County Administrative Boards and the

Government, since such decisions often concern great economic

interests of public as well as private nature, and even short delays

can cause great losses.  As a rule, such decisions also concern a

great number of persons.  If those were granted the right to have

decisions on planning examined by a court in accordance with Article 6

of the Convention, such a procedure would entail a great risk that the

whole planning-procedure would be delayed for a considerable time.

Any such delay may lead to serious consequences for the municipality,

developers and others.  There is also an inherent risk that some

persons would use the possibility to go to court in order to delay

planning-decisions which they are not prepared to accept for

political, ideological or other reasons not relevant in this context.

58.     Furthermore, it must be examined whether there existed a

"right" at all to be determined by the Building Committee or, to be

more specific, whether the possibility to construct buildings on one's

property or to be granted an exemption from a plan could be described

as "rights" within the meaning of the Convention.  It follows from the

jurisprudence of the Convention organs that it is the character of the

"right" at issue which is relevant and that the nature of what could

be described as a "right" is, to a considerable extent, established by

national legislation, although an autonomous appreciation is also made

by the Convention organs.

59.     The possibility to construct a building on one's property is

not considered a separate right under Swedish law, nor does it form an

inherent part of land ownership.  It followed from Section 5 of the

1947 Building Act that no land owner had a right based on any Swedish

law to construct buildings of the kind dealt with in the present case

on his land.  His possibility of doing this was subject to the

appreciation made by the competent authorities on the basis of the

relevant provisions of the 1947 Building Act and the 1959 Building

Ordinance.  The object of the examination under these Acts was to

ensure that the land intended for new constructions was suitable from

a general point of view for such a purpose.  This examination is done

when a plan is adopted and confirmed.  The margin of appreciation

afforded to the competent Swedish authorities when deciding to

introduce a plan or when examining an application for an exemption

from a plan, therefore, under the 1947 Building Act, was so wide that

no entitlement of the land owner may be said to exist which could be

regarded as a "right" within the meaning of the Convention.

60.     It is the building plan which regulates the property owner's

possibility of using his property for construction.  The building plans

in force were confirmed by the County Administrative Board in 1962 and

1964.  According to these plans the applicants were not allowed to

erect new buildings in the way they wish.  The decision of 24 March 1986

was only concerned with the question whether there was any possibility

of granting an exemption from the confirmed plan.  Thus this procedure

was not decisive for any rights of Bertil Skärby.  And the purpose of

this kind of procedure was not to determine any dispute regarding any

rights of the applicant.

61.     The original idea of making it possible to provide for

exemptions from a building plan was that, since a building plan can be

decisive for the land owners' possibility to erect buildings within

the area covered by the plan for a number of years, it was deemed

necessary to provide for exemptions in special situations.  For

instance, when looking more closely at an area within which the plan

allows for a building to be erected, one might find that for practical

reasons, for instance the nature of the ground, it is not possible to

construct the building at exactly the same place as according to the

plan.  Other examples are cases where, for reasons relating to building

technique, it is desirable to exceed the limit for the building area

as stipulated in the plan, or where it is deemed necessary to exceed

this limit in order to obtain a better result with regard to the

planning of the building.

62.     It was for such situations exemptions were intended.  If

applied more generally in order to have a building prohibition based

on a building plan quashed, the exemption procedure in reality will

give rise to a review of the whole plan itself.  This was never the

intention.  In its decision of 29 February 1988 on Application No.

11844/85 the Commission stated that decisions to reject requests to

have a building plan amended cannot be considered to involve a

determination of the applicant's "civil rights" within the meaning of

Article 6 of the Convention.  Since a decision to grant or refuse an

exemption from a plan in reality only involves an examination the

scope of which is more limited than a request for an amendment of a

plan,  Article 6 cannot be applicable to such decisions.  From what has

been said above it can be seen that the provisions regarding

exemptions from confirmed plans have not created any separate "rights"

for the individual.

63.     To sum up, the Government maintain that the decision of

24 March 1986 not to grant the applicants an exemption from the plan

was not decisive for any rights of the applicants.  For that reason,

Article 6 para. 1 is not applicable to the applicants' case.

64.     The Government also contend that the decision of 24 March 1986

did not involve any determination of a dispute (contestation) between

the applicants and the competent authorities about the lawfulness

under Swedish law of the refusal to permit the constructions in

question.  Reference is made to the nature and extent of the discretion

of the Building Committee when examining an issue regarding an

exemption from a building plan.  The substance as well as the

lawfulness of the legal consequences for the applicants were examined

in the procedure according to which the plan was confirmed.  It should

be added that decisions on plans can be appealed to the Government.

However, this was never done by the applicants.

65.     As regards the decision of the Building Committee of 24 March

1986 the Government submit that there is a possibility to have issues

regarding building permits examined by a court to a certain extent.

66.     The Government further observe that officials who have taken

part in a decision which is considered unlawful are responsible for

this decision and they can be prosecuted for abuse of office or for

careless performance of office according to the Penal Code

(brottsbalken).  However, in this case the Government see no reason to

question the lawfulness of the decisions taken.

IV.     OPINION OF THE COMMISSION

A.      Point at issue

67.     The only issue to be decided is whether or not Article 6

para. 1 (Art. 6-1) of the Convention is applicable in the present case and, if

so, whether or not there has been a violation of that provision.

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

68.     The applicants allege a violation of Article 6 para. 1 (Art. 6-1) of

the Convention in that no court remedy was available in respect of the Building

Committee's decision of 24 March 1986.  The Government submit that this

complaint falls outside the scope of Article 6 (Art. 6).

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

"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."

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

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

depends on whether the applicants were seeking the determination of a

dispute (French: contestation) regarding a "right" and whether that

"right" was "civil" in character.

aa.     Was there a dispute regarding a "right"?

70.     Article 6 para. 1 (Art. 6-1) applies only to disputes ("contestations")

over "rights and obligations" which can be said, at least on arguable

grounds, to be recognised under domestic law.  It does not in itself

guarantee any particular content for "rights and obligations" in the

substantive law of the Contracting States (cf.  Eur.  Court H.R.,

Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 70,

para. 192).  On the other hand, it is not decisive whether a certain

benefit, or possible claim, is characterised as a "right" under the

domestic legal system.  This is so since the term "right" must be given

an autonomous interpretation in the context of Article 6 para. 1 (Art. 6-1).  In

its Report in the case of W. v. the United Kingdom (Comm.  Report 15.10.85,

para. 115, Eur.  Court H.R., Series A no. 121-A, pp. 48-49) the

Commission held that:

"Even where a benefit can be granted as a matter of discretion

rather than as a matter or right, a claim for such a benefit

may well be considered to fall within the ambit of (Article 6

para. 1) (Art. 6-1)."

71.     It is established case-law that Article 6 para. 1 (Art. 6-1) 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 satisfying the requirements of that 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).

72.     The Government argue that the discretion, or margin of

appreciation, of the Building Committee in the examination of the

exemption issue was so wide that the applicants could not be said to

have had any "right" within the meaning of the Convention.

73.     According to Section 110 of the 1947 Building Act, new

construction may not take place in contravention of a building plan.

However, the prohibition is not absolute, since the same Section

provides for the possibility of obtaining exemptions.  Exemptions from

the building plan can be granted by the County Administrative Board

when there are special reasons and when the local Building Committee

has agreed to it.  Moreover, a Building Committee can be given

competence to grant such exemptions itself.  In the present case, the

Building Committee had such competence.

74.     As a building plan was in force in regard to the applicants'

property, it follows from Section 110 of the Building Act that the

applicants needed an exemption in order to be allowed to build on the

property in a manner not provided for in the building plan.  In fact

they asked for a building permit, which included a request for

exemption from the building plan, but this request was refused by the

Building Committee.

75.     The Building Act does not indicate any precise criteria for

determining in which cases such exemptions shall be granted.  The

public authorities therefore enjoy a wide discretion, and the question

arises whether the applicants could, on arguable grounds, claim a

right under Swedish law to obtain an exemption.

76.     In this connection, the Commission recalls the case of H. v.

Belgium (Eur.  Court H.R., judgment of 30 November 1987, Series A

no. 127, paras. 41-43), in which the European Court held that there

was a dispute over a "right" under Belgian law when the Council of the

Ordre des Avocats was called upon to decide whether there were

"exceptional circumstances" which warranted the applicant's

readmission as an avocat.  The Court noted that the term

"exceptional circumstances" was capable of being interpreted and

applied in a wide variety of ways (para. 42) and that the Council had

some discretion in deciding whether the requirement of "exceptional

circumstances" had been met (para. 43).  Nevertheless, the Court found

that the applicant could arguably maintain that he satisfied that

condition and that there was, therefore, a dispute over a "right" in

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (para. 43).

77.     The discretion at issue in the case of H. v.  Belgium can well

be compared with the discretion enjoyed by the Building Committee in

the present case, when deciding whether or not to grant exemption from

the building plan.  That discretion was wide but not unlimited, and it

had to be exercised in the framework of the applicable law.  In its

judgment in the Pudas case (Eur.  Court H.R., Pudas judgment of

27 October 1987, Series A no. 125-A, para. 34), the European Court

stated that it followed from "generally recognised legal and

administrative principles that the authorities did not have an

unfettered discretion" when deciding whether or not to revoke a

traffic licence, and the same is true as regards the Building

Committee's decision in the present case.

78.     According to the said "legal and administrative principles",

the Building Committee was obliged, when examining the applicants'

request, to take all the different public and private interests

involved into account as well as the general purposes of the

applicable building legislation.  It was the task of the Building

Committee to determine on this basis whether there were sufficient

reasons for granting the request for an exemption.  It is also clear

that the Building Committee was under an obligation not to let its

decision be influenced by any irrelevant considerations and to decide

on the exemption issue under a fair procedure and in accordance with

general legal rules such as the obligation to give equal treatment to

all citizens.

79.     The applicants are of the opinion that if the Building

Committee had made a fair assessment of the different interests

involved, it should have reached the conclusion that an exemption from

the building plan was justified in their case.  Consequently, they must

be understood to claim that, in the circumstances, they had a right to

obtain exemption and that they were denied this right by the Building

Committee.  The applicants further allege that they were discriminated

against as compared to their neighbours (para. 40) and that the

decision of the Building Committee was influenced by the fact that the

municipality was itself engaged on the property market and had the

financial benefit of the municipality as its major concern (para. 50).

80.     In these circumstances, the applicants' allegation is not only

that the Building Committee exercised its discretion to the

applicants' disadvantage but that the Committee took a decision which

was influenced by irrelevant considerations and therefore contrary to

Swedish law.  The Commission notes, in this context, that the

Government have provided some examples of special situations in which

exemptions could be granted (para. 61), and it understands the

applicants to argue that their situation was also of such a special

nature as to justify an exemption.

81.     The Government have argued that to permit an appeal against

the refusal of exemption would be similar to granting an appeal

whereby the building plan could be reviewed.  In this context the

Government refer to the Commission's decision on the admissibility of

Application No. 11844/85 (Dec. 29.2.88, to be published in D.R.) in

which case the Commission held that a decision by a Building Committee

not to amend a building plan did not involve a determination of a

"civil right" of those applicants who had requested an amendment of

the building plan.

82.     The Commission cannot accept this argument.  It notes that

Section 110 of the Building Act specifically permits the granting of

exemptions from a building plan, and it considers a decision to refuse

such an exemption in an individual case not to be of the same kind as

a decision not to amend the building plan.

83.     For these reasons, the Commission considers that, in view of

the nature of the applicants' claim for an exemption, there existed a

"serious" and "genuine" dispute over the determination of a "right"

which the applicants could, at least on arguable grounds, claim under

Swedish law.

        bb. Was the right "civil" in character?

84.     It is established case-law that a decision to issue an

expropriation permit with regard to an individual's property is a

decision which is "decisive" for that individual's "civil rights"

(Eur.  Court H.R., Bodén judgment of 27 October 1987, Series A

no. 125-B, pp. 40-41, para. 32).  Similarly, a decision to issue or

prolong a building prohibition on an individual property, although of

a different nature, is also "decisive" for that individual's "civil

rights" since such a prohibition clearly restricts the use of the

property right by suspending the right to build which the proprietor

would otherwise have (Allan Jacobsson v.  Sweden, Comm.  Report 8.10.87,

p. 31, para. 142).

85.     The Government argue that the issue was not whether the

applicants should be allowed to build, but only on what site on their

property they could build.  Such an issue concerning the location of a

building does not, in the Government's view, relate to a "civil

right".

86.     The Commission, however, considers that the disagreement in

the present case concerned a basic element in a decision to permit the

construction of a new building, namely the location of that building.

The disagreement which existed on that matter must therefore be

considered to have been decisive for the applicants' "civil" rights.

87.     Accordingly, the Commission finds that Article 6 para. 1 (Art. 6-1) was

applicable to the dispute which arose in relation to the question of

the exemption from the building plan.

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

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

possibility of submitting the dispute as to the building permit to a

"tribunal" satisfying the conditions of Article 6 para. 1 (Art. 6-1) of the

Convention.

89.     It is recalled that no appeal could be lodged against the

Building Committee's decision unless the applicants considered that an

exemption from the building plan was not required.  However, the

applicants considered that such an exemption was in fact required.  An

appeal concerning the issue whether an exemption was required would

therefore not involve a determination of the issue in the present

case, which concerned the granting or not of an exemption from the

building plan.

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

Building Committee did not constitute proceedings before a "tribunal"

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

91.     The Government have not referred to any other remedy which

might permit a review of the decision concerning the exemption issue

and which might satisfy the requirements of Article 6 para. 1 (Art. 6-1).  The

Commission finds that no such remedy was available to the applicants

at the relevant time.

92.     It follows that the applicants did not have at their disposal a

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

respect of the dispute which arose over the exemption from the building plan.

        Conclusion

93.     The Commission concludes, by 12 votes to 5, that there has

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

  Secretary to the Commission               President of the Commission

        (H. C. KRÜGER)                            (C. A. NØRGAARD)

Dissenting opinion by MM. Nørgaard, Trechsel,

Jörundsson and Martinez

        We regret that we are unable to share the Commission's opinion

that Article 6 para. 1 is violated in the present case.

        We agree that under certain circumstances a claim for a

benefit may be considered to fall within the ambit of Article 6 para.

1 of the Convention.  It depends however on the specific facts of each

case whether this is so.

        In the present case the applicants were not forbidden to build

on their property but they were refused a benefit, namely a specific

building permit which could only be granted as an exemption from a

duly adopted building plan.  The decision whether such an exemption

should be granted is a discretionary decision by the Building

Committee, which would only fall within the ambit of Article 6 para. 1

if it could be claimed that the decision was illegal.

        In the present case the Commission interprets the applicants

to complain about the legality of the decision.  In our opinion

however they are in reality not complaining about the legality but

simply about the way in which the Building Committee has exercised its

discretion.  A complaint by which an applicant complains that an

administrative authority has exercised its discretion wrongly by not

granting him a benefit, in our opinion, falls outside the ambit of

Article 6 para. 1.

        Consequently we do not find a violation of Article 6 para. 1

in the present case.

Concurring opinion by Mr.  Danelius

        In the present case, I have supported the Commission's opinion

according to which there has been a violation of Article 6 para. 1 of

the Convention.  I also accept the Commission's reasoning for reaching

that conclusion, and I merely wish to add the following

considerations.

        The distinction between a dispute over a "right" and a dispute

over the exercise of administrative discretion is one which is

difficult to make in practice.  In most cases where the authorities

have been entrusted with some degree of discretion, a person who has

been denied a benefit will not only be dissatisfied with the way this

discretion has been exercised, but he will also consider that there

were good legal reasons why the authorities should have reached a

different result.  In fact, the administration, when exercising its

discretion, is bound by a number of legal principles, and the exercise

of this discretion is therefore limited in many respects by the law.

For the person who is dissatisfied with a decision, it is often

natural to argue that if the authorities had properly applied the

legal principles by which they were bound, their decision would have

been different.  In cases where this is alleged, there is in my view

also a need for judicial control under Article 6 para. 1, and I

consider the present case to belong to this category.

        It is of course another question whether or not the "right" at

issue is a "civil" right within the meaning of Article 6 para. 1, but

I have little doubt that in the present case this question should be

answered in the affirmative.

Concurring opinion by Mrs.  Liddy

        I agree that Article 6 para. 1 was applicable and that there

was a violation in this case.  Having taken a contrary view in

connection with a dispute over an amended building plan in a Report

also adopted today (Jacobsson v.  Sweden, Application No. 11309/84), I

would explain that I attach particular significance to the fact that

the planning system allows for later scrutiny of individual

applications for building permits (and for the grant of exemptions

from the plan in that context) which are based on an individual's

immediate intention to use the land in a specified manner.  In the

present case the refusal of a building permit seems to me to be

directly decisive for the applicants' rights and obligations.

APPENDIX I

HISTORY OF THE PROCEEDINGS

        Date                    Item

_____________________________________________________________________

26 June 1986                    Introduction of the application

30 June 1986                    Registration of the application

Examination of admissibility

4 March 1987                    Commission's deliberations and

                                decision to invite the Government

                                to submit observations on the

                                admissibility and merits of

                                the application.

18 June 1987                    Government's observations

7 September 1987                Applicants' reply

9 May 1988                      Commission's further deliberations and

                                decision to declare the application

                                partly admissible and partly

                                inadmissible

Examination of the merits

8 September 1988                Government's observations on the merits

20 September 1988               Applicants' observations on the merits

8 October 1988                  Commission's consideration of state of

                                proceedings

7 March 1989                    Commission's deliberations on the

                                merits and final votes.

16 March 1989                   Adoption of the Report