EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 11309/84

Mats JACOBSSON

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 16 March 1989)

11309/84

- i -

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. 15-49) ............     4

      A.  Particular circumstances of the case

          (paras. 15-26) ....................................     4

      B.  Relevant domestic law and practice

          (paras. 27-49) ....................................     6

          a.  Legislation on construction

              and urban planning (paras. 27-29) .............     6

          b.  Plans and regulations for

              non-planned areas (paras. 30-36) ..............     6

          c.  Building prohibitions

              (paras. 37-42) ................................     7

          d.  Formation of property units

              (para. 43) ....................................     8

          e.  Decisions and review of decisions

              (paras. 44-49) ................................     8

III.  SUBMISSIONS OF THE PARTIES (paras. 50-74) .............    10

      A.  The applicant

          (paras. 50-58) ....................................    10

      B.  The Government

          (paras. 59-74) ....................................    11

IV.   OPINION OF THE COMMISSION (paras. 75-102) .............    14

      A.  Points at issue

          (para. 75) ........................................    14

11309/84

- ii -

      B.  Article 6 of the Convention

          (paras. 76-97) ....................................    14

          a.  Applicability of Article 6 para. 1

              of the Convention (paras. 78-89) ..............    14

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

                   (paras. 79-86) ...........................    14

              bb.  Was the right "civil" in character?

                   (paras. 87-89) ...........................    15

          b.  Compliance with Article 6 para. 1

              of the Convention (paras. 90-97) ..............    16

      C.  Article 13 of the Convention

          (paras. 98-100) ...................................    17

      D.  Recapitulation

          (para. 101) .......................................    17

Dissenting Opinion of Mr.  S. Trechsel joined by Mrs.  J. Liddy    18

Opinion dissidente de M. F. Martinez ....................        19

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 applicant, Mr.  Mats Jacobsson, is a Swedish citizen born

in 1953 and resident in Stockholm.  He is a journalist by profession.

He is represented before the Commission by Mr.  Hasse W. Tullberg, a

lawyer.

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 a reduction in the possibilities for

construction on the applicant's property arising from an amendment to

a building plan (byggnadsplan) for the area in which his property is

located.  The applicant complains that, whereas under the old plan he

had a right to divide his property into two building plots, he now has

no such right as a result of the amendment.  He alleges a violation of

Article 6 para. 1 and of Article 13 of the Convention on the grounds

that his rights under the building plan could not be examined at an

impartial and public court hearing and that he did not have an

effective remedy for the alleged violation of his rights and freedoms

as set forth in the Convention or its Protocol No. 1.

B.      The proceedings

5.      The application was introduced on 5 August 1984 and registered

on 17 December 1984.  It was declared inadmissible on 8 October 1985

as the applicant had not shown that he had complied with the six

months rule laid down in Article 26 of the Convention.

        On 13 October 1986 the Commission, on the basis of new

information, decided to re-open the proceedings and, 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 16 January 1987 their observations in writing on the

admissibility and merits of the application insofar as it related to

the alleged violation of Article 6 para. 1 of the Convention.

        The Government's observations were dated 15 January 1987 and

the applicant's observations in reply were, after an extension of the

time-limit, dated 9 April 1987.

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

Procedure was granted to the applicant on 16 October 1987.

7.      On 8 March 1988 the Commission decided to declare inadmissible

the applicant's complaint that the decision to change the building

plan violated Article 1 of Protocol No. 1 to the Convention.

The remainder of the application, concerning the complaint under

Articles 6 and 13 of the Convention that the amendment to the building

plan could not be examined at an impartial and public court hearing

and that the applicant did not have an effective remedy for the

alleged violation of his rights and freedoms as set forth in the

Convention, was declared 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 Government submitted further observations on 13 June 1988

and the applicant submitted further observations by letter of

27 September 1988.  The observations of each party were transmitted to

the other party for information.  The Government submitted further

observations by letter of 24 November 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. 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

             Mr.  F. MARTINEZ

             Mr.  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 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

second decision on the admissibility of the application of 8 March 1988

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.     Since 1973 the applicant has owned a property, Tullinge 17:289

(previously Stg 3594), with an area of 2,079 m2.  It is situated in the

municipality of Botkyrka, a suburb south of Stockholm.  On the

property there is a small house.

16.     When the applicant acquired the property in 1973 the area was

subject to a building plan which had been drawn up in 1938.  The 1938

building plan provided that no building plot should be less than

1,500 m2 in area.  As an exception it was provided that a plot with a

smaller area, but no less than 1,000 m2, could be permitted within an

area where sewage and water-supply systems in accordance with a plan

approved by the local health authorities had been installed before the

buildings were erected or in connection therewith.

17.     Furthermore, after 4 June 1954, except for some short periods,

there has been a building prohibition under Section 109 of the

Building Act (byggnadslagen) in the area in which the applicant's

property is located, pending an amendment of the building plan in

force.  After 4 June 1954 construction was prohibited in the area also

under Section 110 of the Building Act pending the construction of

adequate roads, water-supply and sewage systems.

18.     Since 1973 there has been a building prohibition pursuant to

Section 109 of the Building Act on the applicant's property according

to decisions of the County Administrative Board (länsstyrelsen) of

Stockholm County of 28 July 1972, 20 August 1974, 31 August 1976,

11 January 1979, 11 January 1980, 31 March 1981 and 31 August 1982.

These decisions have been valid during the period up to and including

1 September 1978 as well as during the periods 11 January 1979 -

11 January 1981, 31 March 1981 - 31 March 1982 and 31 August 1982 -

31 August 1983.  Appeals were lodged with the Government against the

County Administrative Board's decisions of 20 August 1974 and

31 August 1982.  The Government rejected the appeals on 9 October 1975

and 19 May 1983, respectively.

19.     In 1975 the applicant complained about the inconveniences

resulting from the sewage system in the area.  As a result the

County Administrative Board ordered that the municipality should,

before the end of 1982, install sewage pipes in the area where the

applicant's property is situated.

20.     On 16 December 1982 the Municipal Council (kommunfullmäktige)

adopted a proposal for amendments to the building plan for the area in

which the applicant's property is situated.

21.     The applicant objected to the proposed building plan.  He

alleged that the amendments were wrongly restricting construction,

since they contained a provision that building plots must be at least

1,500 m2.  The previous building plan allowed for building plots of at

least 1,500 m2 and, if certain conditions relating to the water and

sewage system were fulfilled, 1,000 m2.  The applicant alleged that the

result of the amendments was that properties, including his own, which

previously had two building rights were deprived of one of them.

However, the building plan was confirmed by the County Administrative

Board on 4 July 1983 pursuant to Section 108 of the Building Act.  In

its decision the Board, inter alia, gave the following reasons:

"The aim of the plan pursuant to the description is

to regulate the conditions for the properties affected by

the development of the water and sewage system until the

town plan can be made on the basis of the ongoing area

plan.  Therefore there is a general interest not to

prejudice the forthcoming planning.  The present low

utilisation of the land, controlled with regard to location,

must be seen as a consequence of this.  The County

Administrative Board finds the municipality's assessment

in this regard to be acceptable.  Nor can a low degree

of exploitation as such be considered to contravene the

Building Act.

As regards the building right the County Administrative

Board observes the following: Stg 3594 comprises 2,079 m2.

The existing plan of 1938 allows for building plots of at

least 1,500 m2.  Where the property is situated in an area

where water and sewage pipes have been installed before or

in connection with the construction in accordance with an

approved plan of the Health Care Board (hälsovårdsnämnden),

it is permitted to reduce the area of the building plots,

but not to less than 1000 m2.  This condition must presuppose

some sort of private initiative for a common installation for

several properties in order to construct on them.  Since the

building prohibition was issued under Section 110 of the

Building Act in 1954 no measures have been taken by the

property owners with a view to arranging any water and sewage

installations.  The water and sewage pipes which have now been

installed have been so only in order to remedy the sanitary

inconveniences which have arisen in the area despite large

building plots.  The conditions in the plan, according to

which building plots of less than 1,500 m2 may be permitted,

cannot therefore be considered to be fulfilled.  The County

Administrative Board therefore finds that there is no obvious

right to divide Stg 3594 according to the plan in force.  In

view of this and having regard to the general interest of not

prejudging the forthcoming town planning the County

Administrative Board considers that the decision of the

municipality not to agree to (the applicant's) claim for

further building rights is acceptable."

22.     The applicant appealed to the Government, which on

19 January 1984 amended the decision of the County Administrative

Board so as to avoid the consequence that any new construction on the

applicant's property would necessitate the demolition of the existing

house on the property.  In other respects the appeal was rejected.

23.     The applicant then applied to the Supreme Administrative Court

(regeringsrätten) for re-opening of the matter.  In a decision of

5 June 1984 the Supreme Administrative Court rejected the application.

The Court summarised the applicant's submissions as follows:

"In his application Mr.  Jacobsson requests that the Supreme

Administrative Court examine the matter and invokes as grounds

therefor that the Government's decision was based on false

statements and that the proposed plan was contrary to the

law."

24.     The applicant states that his intention has always been to

divide his property and to build at least one more detached house.  He

also intends to enlarge the existing building.  The applicant's

request for division of the property has been rejected by the Building

Committee (byggnadsnämnden).

25.     On 10 November 1981 the Building Committee decided to

inform the applicant in reply to a request for an advance opinion

(förhandsbesked) that the Committee was not prepared to grant

exemptions from the building prohibition in force pursuant to

Sections 109 and 110 of the Building Act.

26.     On 12 March 1985 the Building Committee rejected an

application by the applicant for exemption from the provision in the

building plan in force that prescribes a minimum plot size of 1,500 m2.

B.      Relevant domestic law and practice

a.      Legislation on construction and urban planning

27.     A property owner's right to erect buildings on his property

was, up to 30 June 1987, regulated in the 1947 Building Act

(byggnadslagen, "the 1947 Act") and the 1959 Building Ordinance

(byggnadsstadgan, "the 1959 Ordinance").  As from 1 July 1987 a new

Act, the 1987 Plan and Building Act (plan- och byggnadslagen),

regulates this matter.  However, this Act is of no relevance in the

present case.

28.     Section 1 of the 1947 Act provided that construction on

property required a building permit to the extent required by

Government regulations.  Such rules are to be found in Section 54 of

the 1959 Ordinance.  A permit is required for all new constructions,

except for the construction of certain buildings for public use, or

smaller additions to existing residences and farms or smaller houses

on such estates.

29.     Section 5 of the Act also calls for an examination of whether

the property is suitable from a general point of view for building

purposes.  Such an examination shall be made under a planning

procedure in accordance with the 1947 Act, except for areas classified

as non-urban (glesbebyggelse) or as "urban developments on a smaller

scale" (tätbebyggelse av mindre omfattning).  For the latter

categories, the required examination may be made when examining an

application for a building permit.

b.      Plans and regulations for non-planned areas

30.     Plans should take due consideration of public as well as

individual interests.

        A master plan (generalplan) encompasses the major guidelines

within a community or a part of a community.  A town plan (stadsplan)

or a building plan (byggnadsplan) contains more detailed regulations

on the development of the area.  For areas not regulated by such plans,

construction activities are regulated by the Ordinance.

31.     The development in areas covered only by older subdivision

plans (avstyckningsplaner) is governed by these plans as well as

regulations for non-planned areas (utomplansbestämmelser).

32.     A town plan is to be drawn up by the municipality, when

necessary as a result of the urbanisation of the community, in order

to regulate constructions.  Such a plan must contain information about

the borders of blocks (byggnadskvarter), of public areas (allmänna

platser), and of special zones, such as railway areas, harbours,

recreational (sports) areas, etc.  The town plan must also contain the

further provisions deemed necessary regarding constructions in various

areas, or regarding the use of properties in these areas.  The

Ordinance mentions inter alia specific use of blocks, prohibitions

against construction on part of a block, construction methods to be

used, the number of permitted buildings on a certain site (tomt) and

the permitted surface area, location, height, and the number of flats

of a building.  A town plan must be confirmed by the County

Administrative Board, in order to become valid.

33.     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 (Section 107 of the 1947 Act).

34.     A building plan - like a town 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 ban 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.

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

The matter can also be delegated to the Municipal Building Committee.

Before gaining 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.

36.     If a municipality fails to take the necessary steps to draw up

a building plan for an area where it is needed, the County Administrative

Board can have such a plan drawn up and approved for the area in

question (Section 108 of the 1947 Act).

c.      Building prohibitions

37.     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 - may

prohibit new constructions in the area.  Such a building 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 1947 Act).  A County Administrative Board's decision on the

building prohibition or on the extension of such a prohibition can be

appealed to the Government.

38.     According to Section 110 para. 1 of the 1947 Act, a new

construction may not take place in conflict with a building plan.

Under the second paragraph of that Section, 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 sewage systems have been provided.

39.     Exemptions may be granted in individual cases from the said

building prohibitions.  Such a decision is taken by the County

Administrative Board or by the Building Committee in the municipality

if the County Administrative Board has delegated the competence to

grant exemptions to that Committee.  Nearly all municipalities have

such authorisation.

40.     A condition for the granting of an exemption from a building

prohibition in conflict with a building plan is that the Building

Committee approves the exemption from the plan.  This means that the

municipality has a right of veto in respect of exemptions from a

building plan.

41.     A building plan or a town plan can be altered if required.

According to Section 23 of the 1959 Ordinance, the rules

concerning the adoption and confirmation of town plans and 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.  Nor are there any

regulations as to compensation in such situations.

42.     However, when considering whether the owner's right to build

according to a plan may be limited or withdrawn when altering the

plan, the authorities concerned must weigh the public interest of such

an alteration against the infringement of the private interest which

the decision can give rise to (Section 4 of the 1947 Act and Section 9

of the 1959 Ordinance).

d.      Formation of property units

43.     Divisions of units of property are resolved by the Property

Formation Agencies (fastighetsbildningsmyndigheterna).  New units are

to be designed in such a way as to make all units concerned

permanently suitable for their purpose in view of their location,

size and other conditions.  Within town planned areas or areas

subject to subdivision plans, a division must be made in accordance

with the plan.  Where other regulations govern the development of

land, e.g. a building prohibition, the division has to be carried out

so as not to obstruct the purpose of the prohibition.  If there are no

plans for the area, divisions with a view to construction may not be

made, if they were to impede appropriate use of the area, to result in

inappropriate development or to obstruct appropriate planning for the

area.

e.      Decisions and review of decisions

44.     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.

45.     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.

46.     Decisions by the Building Committee to refuse building permits

and exemptions may be appealed to the County Administrative Board.

47.     A decision by the County Administrative Board to issue a

building prohibition or to refuse an exemption from a building

prohibition may be appealed to the Government, as may a decision by

the Board to reject an appeal against the Building Committee's

decision not to grant an exemption.  A decision of the County

Administrative Board to reject an appeal regarding an application for

a building permit may, however, be appealed to the Administrative

Court of Appeal (kammarrätten).  Decisions by the Administrative Court

of Appeal may be appealed to the Supreme Administrative Court

(regeringsrätten), which may refuse to grant leave to appeal.

48.     When a decision by the County Administrative Board has

resolved both issues (the permit and the exemption) it may be appealed

to the Administrative Court of Appeal.  If this Court should come to

the conclusion that an exemption is not required, the matter will

subsequently be processed as relating only to the question of a

building permit.  Otherwise the Administrative Court of Appeal will

refer the matter to the Government for a decision.  The Court also

makes a statement to the Government on the permit issue.

49.     Moreover, the confirmation of town and building plans by the

County Administrative Board may be appealed to the Government by the

property owners concerned.  The owners may also appeal against a

decision to refuse confirmation of an adopted proposal for a plan.

However, they cannot formally require a plan to be prepared by the

municipality or the County Administrative Board, nor can they demand

an injunction by the Government, ordering a municipality to prepare a

proposal for a town plan.

III.    SUBMISSIONS OF THE PARTIES

A.      The applicant

50.     The applicant was entitled initially to build one house on his

land and, later on, two houses, each with a plot of land of around

1,000 m2, provided either that he and his neighbours had arranged

for a common water and sewage system or that the municipality had

complied with its obligation to supply a common system.

51.     Swedish law assumed that this was the pattern of evolution, in

accordance with the 1947 Act, for the 1938 building plan.  The

applicant's right to build according to that plan was incontestable.

Swedish authorities have, however, prevented him from using his right.

52.     First, this was done by imposing prolonged building

prohibitions, since 1954, by methods which are regarded as an abuse of

Swedish law.  These prohibitions have furthermore been in conflict with

each other and have prevented the applicant from taking action, which

he was subsequently considered, for example in the County Administrative

Board's decision of 1983, to have neglected to carry out.

53.     As a result of the 1983 building plan, Swedish authorities

finally prevented the applicant from using his previous building

right.  The 1983 plan decisions were based on, inter alia, general

policy plans, which according to the Swedish Constitution are not to

be regarded as legally binding.

54.     These proceedings were covered by Article 6 para. 1 of the

Convention.

55.     It was not in the public interest to deny the applicant the

use of his land in a manner allowed to others in the same area.  In

any case, the deprivation of his rights by means of illegal, prolonged

building prohibitions, the denial of access to an impartial tribunal

to examine his applications for exemptions, the denial of access to a

tribunal for the appeal against the Building Committee's decisions

etc., far exceed any public interest to have his land "in store" for

whenever in the future the authorities decide to begin contemplating

the need for a town plan.

56.     The aim given in the decision of the County Administrative

Board - to protect possible interests to have the land in status quo

until the day in an uncertain future when the land may be useful when

making a town plan, the creation of which has not yet been decided

upon - has no basis in law, but constitutes abuse of power.

57.     The Government's statement that the County Administrative

Board and the Government are faster than a court implies that cases

are not examined in the same thorough way by the County Administrative

Board and the Government as they would be by courts.

58.     The inadequacies in Swedish procedural law, which have

excluded the possibility of a court hearing on important issues in the

applicant's case, have been a decisive factor in the occurrence of such

anomalies as the abuse of prolonged investigatory bans in combination

with conflicting requests, by means of simultaneous technical bans,

for completion of technical utilities (sewage, etc.).  Further, the

municipality's economic interests have been unilaterally favoured

without the balancing of interests, required by the Swedish

Constitution.  Furthermore those interests have been based on informal

plans, something which is also contrary to the Constitution.

B.      The Government

59.     In several rulings the Government have approved suggested

alterations to plans that have involved constraints according to

earlier plans.  This has also been done against the opinion of the

land owners concerned.  In most cases it has been a matter of limiting

the maximum building area permitted so as to prevent people from

taking up permanent residence in an area intended for holiday

cottages.  A condition for approving these constraints has been that

the property concerned should not be diminished in value to any

appreciable extent.

60.     The Government accept that the issue to be decided is whether

the decision to adopt the proposal for amendments to the building plan

for the area in which the applicant's property is situated was

decisive for a "civil right" of the applicant and, if so, whether a

dispute arose between the applicant and the Swedish authorities in

relation to the adoption of the amendments.

61.      Since it is not possible to have decisions to adopt or

confirm building plans examined by a tribunal, the Government accept

that, if the Commission should find that such decisions involve the

determination of a dispute relating to the applicant's civil rights

within the meaning of the Convention, the applicant has had no access

to a procedure satisfying the requirements of Article 6 para. 1 of the

Convention.

        However, the Government maintain, for the reasons set out

below, that the decision here at issue does not involve the

determination of a dispute concerning the applicant's civil rights.

62.     Planning decisions are dominated by considerations of public

interest and determined principally by considerations of policy.  Such

decisions fall outside the scope of Article 6.  This view is consistent

with the wording of the text and supported by the travaux

préparatoires.  The decision to adopt a building plan is taken by a

local parliamentary assembly (the Municipal Council) or by a special

committee to which such matters can be delegated.  Thus, the planning

as such is a matter on which the inhabitants of a municipality can

have influence by ordinary political means.  In the political debate

in a municipality the planning of the municipality can be an issue of

major importance.

63.     The applicant's complaints concern the exercise of the duties

and powers of the competent local authorities in implementing the aim

referred to in the decision of the County Administrative Board.  The

authorities in question have not determined any legal relationship

between the applicant and a third person.  The decisions by the Board

and the Government only concern the special kind of relationship which

exists between private subjects and the public, represented by

authorities acting under public law in the public interest.

64.     The question whether Article 6 is applicable in this case is

of great importance to the Government.  If Article 6 is considered

applicable in regard to decisions on planning, the conditions for the

whole Swedish system of planning would be changed drastically.

65.     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

for building within the municipality, and that state control of how

the municipalities carry out their obligations shall be exercised by

the County Administrative Board and the Government.

66.     Decisions on planning are carried out speedily by the County

Administrative Boards and the Government, since such decisions often

concern great economic interests of a public as well as a private

nature, and even short delays can cause great losses.  As a rule, such

decisions also concern a great number of persons.  If all such persons

had the right to have decisions on planning examined by a court in

accordance with Article 6 of the Convention, which inter alia

prescribes public hearings, 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.

67.     It follows from the above that planning decisions are not

aimed at increasing or diminishing the values of private property.

Rather, it is evident that in exercising their powers and duties the

competent planning authorities are bound to take decisions which

influence the individual's possibilities in using his property.  Such

effects cannot, however, be considered a "determination of (his)

civil rights and obligations" within the meaning of the Convention, as

it is necessary to look to the real effect of such a decision in the

concrete case and to whether there exists any right that originates

from or is included in the property rights that might have been

affected.  In addition, it is necessary to examine whether such a

right, if it exists, may be regarded as a "civil right".

68.     It is the character of the "right" at issue which is relevant

(Eur.  Court H.R., König judgment of 28 June 1978, Series A no. 27;

Benthem judgment of 23 October 1985, Series A no. 97).  The nature of

the right at issue, however, is to a considerable extent determined by

national legislation, though an autonomous appreciation is made by the

Convention organs.

69.     In the present case the applicant has alleged that the

amendment of the plan deprived him of one of his two "building rights"

which he contends to have had under the plan of 1938.  The Government

find that the applicant's use of the expression "building right" is

somewhat misleading.  The possibility to construct a building on one's

property is not a separate right under Swedish law, nor does it form

an inherent part of land ownership.  It follows from Section 5 of the

1947 Act that no land owner had a right to construct on his land under

the said Act, but that his possibilities of doing this were subject to

the appreciation made by the competent authorities on the basis of the

relevant provisions of the 1947 Act and the 1959 Ordinance.

70.     The Government contend that the margin of appreciation

afforded to the competent Swedish authorities, when deciding to

introduce or amend a plan, to issue a building prohibition or an

exemption therefrom under the 1947 Act, was so wide that no right of

the land owner may be said to have existed which could be regarded as

a "right" within the meaning of Article 6 of the Convention.

        In this case, it cannot be said that the applicant had a

right to construct on his property before the plan was amended.  He

still had to apply for a building permit and had to observe other

obligations resting upon him as a land owner who wants to construct a

new building on a new plot.  In order to create two separate plots on

the area he also had to apply for a special permit which would be

granted only if certain prerequisites were fulfilled.  The Government

underline that, even if the plan had not been amended, the applicant

still would have had no right to divide the area into smaller units;

the prerequisites for such a measure were not fulfilled.  This can be

seen from the decision of the County Administrative Board of 4 July

1983.

71.     Thus the decision to amend the plan was only one of several

circumstances which were decisive for the possibility that the

applicant might divide his plot into two and construct a new building

thereupon.  This decision taken alone cannot be said to have been

decisive for his "rights" in this regard.

72.     The Government conclude that, since the possibility of dividing

property or of building does not under Swedish law form an inherent

part of land ownership, no civil right was affected by the decisions

now at issue.

73.     Consequently, the decisions taken by the competent authorities

when altering the building plan did not determine a dispute which

related to the applicant's "civil rights" within the meaning of

Article 6 para. 1 of the Convention.

74.     The Convention has not been incorporated into Swedish law in

the sense that it can be directly applied by Swedish courts or other

authorities.  However, a party is free to refer to the Convention when

arguing a case, as for example when an appeal is taken against a

decision of the County Administrative Board or any other authority.

Such arguments must be taken into account when the authority concerned

takes a decision and it is immaterial in this respect that a case is

examined by an authority other than a court.  Although it is true that

such an authority or court cannot express an explicit opinion

regarding the interpretation of a provision in the Convention, it is

submitted that such a competence is not required in order to fulfil

the obligations arising from Article 13.

IV.     OPINION OF THE COMMISSION

A.      Points at issue

75.     The issues to be determined are :

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

           to the dispute which arose over the amendment of the

           building plan and, if so, whether there has been a violation

           of this provision;

        -  whether there has been a violation of Article 13 (Art. 13) of the

           Convention.

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

76.     Article 6 para. 1 (Art. 6-1) first sentence of the Convention 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."

77.     The applicant complains that there has been a violation of

this provision on the ground that he did not have access to a

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

determination of his claims concerning the adoption of amendments to

the building plan by the Swedish authorities.  The Government submit

that the proceedings complained of did not involve the determination

of any civil rights of the applicant and that, consequently, Article 6

(Art. 6) of the Convention is not applicable.

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

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

depends on whether the applicant was 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"?

79.     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 of right, a claim for such a benefit

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

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

80.     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).

81.     In the present case, the Commission notes that the applicant

has under Swedish law a right to build on his property to the extent

that the intended construction does not contravene any confirmed plan,

regulations for non-planned areas or any building prohibition, and

that it satisfies technical demands on construction (cf. para 45 in

fine).  It further notes that the legal effect of the amendments to the

building plan, as regards the possibility of building on the

applicant's property, is in dispute between the parties.  Be that as it

may, it is clear that the applicant enjoyed and continues to enjoy an

ongoing right under Swedish law to apply for building permits in

respect of his property, and that the authorities are obliged to

examine the matter each time they are seized with such an application.

82.     The Government argue, however, that the decision to amend a

building plan is a matter of discretion and not of right.  Indeed, in

the Government's opinion the scope of the discretion exercised by the

public authorities in such matters is so wide that the applicant could

not be said to have had any "right" within the meaning of Article 6

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

83.     The Commission finds that a "right" within the meaning of Article 6

para. 1 (Art. 6-1) can well exist, or be claimed to exist, even if the

decision-making body enjoys a wide discretion.

84.     It is true that, if the applicant simply argued that the authorities

should have used their discretion in a different manner, Article 6 para. 1

(Art. 6-1) may not apply since there would be no "genuine" and "serious"

dispute over the lawfulness of the refused exemption (cf.  Kaplan v. the United

Kingdom, Comm.  Report 17.7.80, D.R. 21 p. 5).

85.     However, in the present case, the applicant must be understood to argue

that the public authorities, when amending the building plan, did not take due

consideration of his individual interest as they were obliged to do in the

exercise of their discretion.  Several of the applicant's arguments -

unilateral favouring of municipal interests, abuse of power, action against the

Constitution, etc. (cf. paras. 50-58) - also indicate that, in the applicant's

opinion, the authorities acted contrary to Swedish law.  In this context, the

Commission notes that the applicant applied to the Supreme Administrative Court

for re-opening of the proceedings arguing inter alia that the plan was contrary

to the law (cf. para. 23).

86.     In these circumstances, the Commission finds that there existed a

serious and genuine dispute about the applicant's right to build under Swedish

law.

        bb. Was the right "civil" in character?

87.     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's 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).

88.     In the present case, the Government submit that the possible effects

which the decision at issue may have had on the applicant's property rights are

too indirectly and remotely related to the object and purpose of that decision

to fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission, however, considers that the amendments to the building plan

clearly affected the applicant's right to construct on his property.  In

particular, under the old plan he could argue that he had a right to divide his

property and to build an additional house.  This possibility appears to be

excluded under the new plan.

89.      The Commission therefore finds that the decision was "decisive" for

the applicant's "civil rights", and this conclusion is not affected by the fact

that the planning procedure is part of public law and that a building plan is a

necessary element in urban planning.

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

90.     It must next be examined whether the applicant had the possibility of

submitting the dispute as to the amendments to the building plan to a

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

Convention.

91.     It is recalled that the building plan confirmed on 4 July 1983 by the

County Administrative Board was the subject of an appeal by the applicant to

the Government, which partially rejected this appeal on 19 January 1984.  No

appeal lay against the Government's decision.

92.     The Government admit that their examination was not a procedure which

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

93.     In the Commission's opinion the proceedings before the Government

relating to the adoption of the building plan did not constitute proceedings

before a "tribunal" within the meaning of this provision.

94.     The Government have not referred to any remedy which might permit a

review of their decision regarding the building plan and which might satisfy

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

95.     In this context the Commission recalls that in the Sporrong and

Lönnroth judgment the Court examined whether an application to the Supreme

Administrative Court for the reopening of the proceedings, directed against a

decision of the Government, was a remedy which

satisfied the requirements of Article 6 para. 1 (Art. 6-1).  The Court held

that it was not sufficient for the purpose of this provision (cf.  Eur. Court

H.R., Sporrong and Lönnroth judgment of 23.9.82, Series A no. 46, pp. 30-31,

paras. 84-87).

96.     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 which arose over the adoption of the building plan.

        Conclusion

97.     The Commission concludes, by 14 votes to 3, that there has been a

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

C.      Article 13 (Art. 13) of the Convention

98.     The applicant also maintains that he had no effective remedy before a

national authority in respect of the violations of which he complains under

Article 1 of Protocol No. 1 (P1-1) to the Convention (cf.  Appendix II, p. 42).

He relies on Article 13 (Art. 13) of the Convention which provides:

        "Everyone whose rights and freedoms as set forth in

        this Convention are violated shall have an effective

        remedy before a national authority notwithstanding

        that the violation has been committed by persons acting

        in an official capacity."

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

(Art. 6-1) (para. 97), the Commission considers that it is not necessary to

examine the case under Article 13 (Art. 13).  The requirements of Article 13

(ARt. 13) are less strict than, and are here absorbed by, those of Article 6

para. 1 (Art. 6-1) (see, inter alia, Sporrong and Lönnroth judgment, loc. cit.,

p. 31, para. 88).

Conclusion

100.    The Commission concludes, by a unanimous vote, that it is not necessary

to examine whether there has been a violation of Article 13 (Art. 13) of the

Convention.

D.      Recapitulation

101.  - The Commission concludes, by 14 votes to 3, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 97).

      - The Commission concludes, by a unanimous vote, that it is not necessary

to examine whether there has been a violation of Article 13 (Art. 13) of the

Convention (para. 100).

Secretary to the Commission               President of the Commission

    (H. C. KRUGER)                              (C. A. NØRGAARD)

Dissenting opinion by Mr.  S. Trechsel joined by Mrs.  J. Liddy

        I have come to the conclusion that Article 6 of the Convention

was not violated as it was not applicable to the contested issue.

        The guarantees set out in Article 6 apply, inter alia, in the

determination of civil rights and obligations.  As a rule, it is for

the national legislator to regulate the substantive law, the

procedural rights being applicable only in disputes concerning the

contents and limits of domestic substantive law.

        In the present case, the applicant was involved in a dispute

concerning amendments of a building plan.  Such a plan is of a general

nature and sets out rules for the use of property.  Although the plan

is not, technically, a statute, it regulates a set of problems for the

whole community.  Even if such general rules affect an individual, a

dispute over such general rules does not relate to "determination" of

rights of an individual, but concerns a conflict de lege ferenda.

In my view, however, Article 6 of the Convention does not apply to

such disputes.

Opinion dissidente de M. F. Martinez

        A mon très grand regret je ne peux pas suivre la majorité de

la Commission, et voici mes motifs.

1.      La Commission relève qu'à l'occasion de l'amendement du plan

d'urbanisme en 1983, une contestation sur un droit de caractère civil

s'est produite.  A mes yeux, cependant, il n'existe aucune

contestation sur un droit individuel du requérant.

2.      D'abord je rappelerai qu'on rencontre parmi les actes

administratifs, d'une part, des actes à caractère normatif,

c'est-à-dire des mesures à portée générale, émanant soit du

gouvernement, soit des autorités locales et, d'autre part, des actes

individuels, c'est-à-dire à portée particulière (autorisation

personnelle, nomination, contrat).

        Les actes normatifs (ou réglements au sens technique du mot)

comportent des prescriptions "générales et impersonnelles".  Ils sont

donc des règles de droit, au même titre que les lois à proprement

parler, mais avec une place moins élevée dans la hiérarchie des

textes.

        Et de même que le législateur peut changer les lois,

l'autorité administrative peut modifier les règlements dans le domaine

de sa compétence.

3.      La modification d'un règlement ne suppose pas la contestation

d'un droit individuel des citoyens, même si ce changement peut créer,

modifier ou supprimer des droits subjectifs par rapport au règlement

antérieur.

        La contestation d'un droit individuel ne peut naître qu'Ã

l'égard d'un acte individuel de l'administration.  Une personne ne

peut vraiment se confronter à l'autorité administrative qu'à propos

d'un acte individuel, par exemple lorsqu'un citoyen prêtend que les

règles objectives lui accordent un droit mais que l'administration le

lui refuse, au motif que la règle objective de droit n'a pas la portée

que la personne concernée lui attribue.

4.      Un plan d'urbanisme comporte des règles objectives ; c'est un

règlement.  Il régit l'abstrait d'une façon "générale et

impersonnelle" ; il détermine ce qui peut être fait et ce qui est

interdit à propos de l'urbanisme et de la construction immobilière.

        La réforme du plan d'urbanisme (comme la réforme de n'importe

quel règlement, comme la réforme d'une loi) est du seul ressort de

l'autorité compétente.  La réforme vise l'intérêt général, dont la

garde appartient exclusivement à cette autorité.

        L'amendement du plan d'urbanisme revient à changer de

règlement.  Cela n'entraîne pas, en soi-même, une contestation sur les

droits individuels de toutes les personnes matériellement affectées

par la modification réglementaire.

        En matière d'urbanisme, la contestation sur un droit

individuel ne prend naissance que lorsque l'individu veut entreprendre

une construction concrète qu'il prétend être en conformité avec le

plan, mais que l'administration lui refuse un tel droit par une

décision de portée individuelle.

5.      Dans le cas d'espèce en cause, il ne s'agit que de la réforme

d'un plan d'urbanisme, c'est-à-dire un changement de la règle

juridique.  Et la règle juridique ne garantit jamais sa propre

perpétuité.

        Le cas d'espèce ne contient point de contestation sur un droit

individuel du requérant.  Les interventions de celui-ci devant le

County Administrative Board ou le Municipal Council s'inscrivent dans

la procédure propre au changement de plan d'urbanisme.  Car c'est une

pratique assez répandue parmi les Etats signataires de la Convention

que de prendre l'avis des personnes intéressées lorsque les autorités

locales vont modifier certains règlements.

6.      Dans le cas concret que nous considérons l'ancien plan ne

comportait pas un droit acquis à construire deux bâtiments sur le

terrain du requérant.  Il ne comportait la possibilité de le faire que

sous la condition de réaliser certaines installations hydrauliques ou

de vidange.

        Le requérant, qui n'avait pas obtenu de permis de construire

dont l'exécution devienne impossible à cause de la modification

réglementaire, n'a pas souffert la perte d'un droit mais d'une simple

possibilité.

        Le changement d'une règle de droit, voire le changement de

loi, comporte presque toujours la naissance des possibilités

nouvelles, l'effacement de certaines possibilités anciennes.  Mais il

me semble très difficile d'admettre que le simple changement de la

règle de droit soit l'équivalent d'une contestation sur les droits

individuels des citoyens dont les possibilités sont affectées par la

règle nouvelle.

        La Commission elle-même a dit dans sa décision sur la

recevabilité de cette affaire (rendue le 8 mars 1988) que le

changement du plan d'urbanisme était une mesure permise par le

paragraphe 2 de l'article 1 du Protocol n° 1.  Et la Commission

rappelle que le requérant n'avait le droit de bâtir ni sous l'ancien

plan ni sous le plan remanié (voir p. 46 de ce rapport, dernier

alinéa).

        Qu'il me soit permis de demander comment une modification du

plan, admise par la Convention dans son Protocole additionnel,

pourrait constituer la contestation sur un droit civil du requérant,

alors que ce requérant - de l'avis même de la Commission - était

dépourvu de droit sous l'empire à la fois de l'ancien et du nouveau

plan.

.PA:11309/84

        Avec beaucoup de respect pour mes éminents collègues, je ne

trouve pas de cohérence entre ce qui se lit dans la décision sur la

recevabilité (dernier paragraphe de la page 46) et ce qui a été écrit

aux paragraphes 83-86 du rapport sur le fond.

7.      Pour finir je me pencherai sur les conséquences pratiques que

le rapport de la Commission comporte.  Les Etats ne pourraient plus

changer leurs plans d'urbanisme sans offrir un procès devant un

tribunal (avec toutes les garanties prévues par l'article 6 de la

Convention) avec n'importe quel citoyen qui se prétende affecté par la

modification réglementaire.

APPENDIX I

HISTORY OF THE PROCEEDINGS

        Date                    Item

_____________________________________________________________________

5 August 1984                   Introduction of the application

17 December 1984                Registration of the application

Examination of admissibility

8 October 1985                  Commission's deliberations and

                                decision to declare the application

                                inadmissible

13 October 1986                 Commission's further deliberations,

                                decision to re-open the proceedings

                                and to invite the Government to submit

                                observations on the admissibility and

                                merits of the application.

15 January 1987                 Government's observations

9 April 1987                    Applicant's reply

8 March 1988                    Commission's further deliberations and

                                decision to declare the application

                                partly admissible and partly

                                inadmissible

Examination of the merits

13 June 1988                    Government's observations on the merits

9 July 1988                     Commission's consideration of state of

                                proceedings

27 September 1988               Applicant's observations on the merits

27 November 1988                Government's further observations

12 December 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.