Lexploria

Application No. 11855/85

Gösta HÅKANSSON and Sune STURESSON

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 13 October 1988)

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. 15-42) ............ 4

A. Particular circumstances of the case

(paras. 15-31) .................................... 4

B. Relevant domestic law

(paras. 32-42) .................................... 6

III. SUBMISSIONS OF THE PARTIES (paras. 43-94) ............. 10

A. The applicants

(paras. 43-64) .................................... 10

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

(paras. 43-59) ................................ 10

b. Articles 6 and 13 of the Convention

(paras. 60-64) ................................ 14

B. The Government

(paras. 65-94) .................................... 15

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

(paras. 65-79) ................................ 15

b. Article 6 of the Convention

(paras. 80-92) ................................ 18

aa. The refusal to grant the applicants

permission to retain the property

(paras. 80-85) ........................... 18

bb. The public sale

(paras. 86-92) ........................... 20

c. Article 13 of the Convention

(paras. 93-94) ................................ 21

IV. OPINION OF THE COMMISSION (paras. 95-156) ............ 23

A. Points at issue

(para. 95) ...................................... 23

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

(paras. 96-116) ................................. 23

C. Article 6 of the Convention

(paras. 117-150) ................................ 27

a. Proceedings concerning the permit to retain

the property

(paras. 117-132) ............................ 27

aa. Applicability of Article 6 para. 1 of

the Convention

(paras. 117-124) ....................... 27

bb. Compliance with Article 6 para. 1

of the Convention

(paras. 125-132) ....................... 28

b. Absence of a public hearing before the Göta

Court of Appeal

(paras. 133-150) ............................ 29

aa. Applicability of Article 6 para. 1

of the Convention

(para. 135) ............................ 29

bb. Compliance with Article 6 para. 1 of

the Convention

(paras. 136-150) ....................... 30

D. Article 13 of the Convention

(paras. 151-153) ................................ 32

E. Article 14 of the Convention

(paras. 154-155) ................................ 33

F. Recapitulation

(para. 156) ..................................... 33

Opinion partiellement dissidente de M. Vandenberghe,

rejoint par M. Soyer ........................................ 34

Dissenting opinion of MM. Nørgaard, Schermers, Danelius

Sir Basil Hall and Mrs Liddy ................................ 35

APPENDIX I : HISTORY OF THE PROCEEDINGS .................... 36

APPENDIX II: DECISION ON THE ADMISSIBILITY ................. 38

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 Mr. Gösta Håkansson, born in 1926, resident

at Höör and a police officer by profession, and Mr. Sune Sturesson,

born in 1931, resident at Skånes Fagerhult and a farmer by profession.

Both applicants are Swedish citizens. They are represented before the

Commission by Mr. Göran Ravnsborg, a lecturer of law at the University

of Lund.

3. The 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 acquisition and the subsequent forced

sale of agricultural land and raises issues mainly as to whether the

administrative decision not to grant the applicants a permit to retain

a property which they bought at a public auction violates Article 1 of

Protocol No. 1 to the Convention and Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 3 April 1984 and registered

on 15 November 1985. On 12 May 1986 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 25 August 1986 their observations in

writing on the admissibility and merits of the application.

The Government's observations were dated 21 August 1986 and

the applicants' observations in reply were dated 9 October 1986.

On 4 March 1987 the Commission, after an examination of the

admissibility of the application, decided to invite the parties to a

hearing on the admissibility and merits of the application.

At the hearing, which was held on 15 July 1987, the applicants

were represented by Mr. Göran Ravnsborg. The Government were

represented by their Agent, Mr. Hans Corell, and by Mr. Rolf

Strömberg, Permanent Under-Secretary and Chief Legal Officer at the

Ministry of Environment and Energy, and Mr. Håkan Berglin, Legal

Adviser at the Ministry for Foreign Affairs, as advisers.

6. On 15 July 1987 the Commission declared the application

admissible.

7. The parties were then invited to submit any additional

observations on the merits of the application which they wished to

make and to reply to certain questions.

The Government submitted further observations on 12 November

1987 and 7 January 1988, and the applicants submitted observations by

letter of 5 January 1988. The observations of each party were

transmitted to the other party for comments before 1 March 1988.

The parties submitted further observations each by a letter

dated 26 February 1988. The Government submitted a further letter

dated 25 April 1988 and the applicants a further letter dated

12 August 1988.

8. On 5 March and 9 July 1988 the Commission considered the state

of proceedings of the case. On 3 October 1988 the Commission

deliberated on the merits of the application and took the final votes

in the case.

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

Procedure was granted to the applicants on 12 December 1986.

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

F. ERMACORA

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Sir Basil HALL

Mr. C. L. ROZAKIS

Mrs. J. LIDDY

The text of the Report was adopted by the Commission on

13 October 1988 and is now transmitted to the Committee of Ministers

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

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

the Convention, is

(1) to establish the facts, and

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

disclose a breach by the State concerned of its

obligations under the Convention.

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

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

decision on the admissibility of the application forms Appendix II.

14. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

15. On 4 December 1979 the applicants bought an agricultural real

estate called Risböke 1:3 in the municipality of Markaryd at a public

auction (exekutiv auktion) for 240,000 SEK. The property had been

seized by a decision of 11 July 1979 in order to secure the payment of

the previous owners' debts to three banks. According to a valuation

made before the auction, the value of the property had been estimated

at 140,000 SEK. The sale at the auction acquired legal force.

16. On 7 January 1980 the County Administrative Board

(länsstyrelsen) of the County of Kronoberg issued a letter of purchase

(köpebrev). In this letter the applicants were reminded that according

to Section 16 para. 1 of the Land Acquisition Act (jordförvärvslagen)

a property which has been acquired at a public auction in such

circumstances that a permit to acquire the land would have been

necessary if the land had been acquired by a voluntary purchase must

be sold within two years from the date on which the auction acquired

legal force unless the buyer has obtained a permit to retain the

property, and if the property is not sold within the said period, the

County Administrative Board shall, at the request of the County

Agricultural Board (lantbruksnämnden), order that the property be sold

at a public auction in accordance with Section 17 of the said Act.

17. On 7 January 1980 the applicants submitted a request to the

County Agricultural Board of the County of Kronoberg that they be

granted a permit to retain the real estate Risböke 1:3 under the Land

Acquisition Act.

Following an enquiry by the County Agricultural Board the

applicants were informed by a letter of 5 February 1980 that the real

estate must, in view of its size, situation and nature, be considered

as a "rationalisation" unit which ought to be used for the purpose

of strengthening other properties in the area which could be further

developed. The Board indicated that neighbours were interested in

acquiring the property and a refusal of the request for the permit

could therefore be envisaged under Section 4 para. 1 sub-section 3 of

the Land Acquisition Act. Moreover, the Board indicated that there

were reasons to believe that the Board would find that the price for

the real estate was too high for redemption (inlösen). The applicants

were given the opportunity to comment upon the letter of the Board.

18. On 15 February 1980 the County Agricultural Board rejected the

applicants' request for a permit to retain the property. It considered

that the real estate was of importance for rationalisation and ought

to be used for the purpose of strengthening other properties in the

area which could be further developed.

19. The applicants appealed to the National Board of Agriculture

(lantbruksstyrelsen) which in a decision of 5 September 1980 rejected

the appeal, stating inter alia as follows:

"The National Board of Agriculture finds, as did the County

Agricultural Board, that the real estate at issue lacks

the prerequisites for remaining as a commercial unit of its

own. Moreover, the National Board considers that a new

establishment on the real estate would be likely to make it

more difficult for the active farmer in the area to develop

his business."

From the decision of the National Board of Agriculture it

appears that there are no buildings on the property at issue. It has

an area of 41 hectares of which 18 hectares are forest and eight

hectares are pasture. It furthermore appears that Mr. Sturesson owns

and runs a real estate of an area of 10 hectares of pasture and 63

hectares of forest. This property is situated approximately 25

kilometres from the property bought by the applicants. It furthermore

appears from the decision of the National Board that the applicants'

intention when acquiring the property was to build up units which at

present would create opportunities of employment and which

subsequently could become financially sound properties to be exploited

by the applicants' children. It moreover appears that the property at

issue is situated in an area where in the opinion of the County

Agricultural Board there is only room for one active farmer and that

the neighbouring property is at present rented by Michael Borg who has

also rented his parents' estate which comprises five hectares of

pasture and 42 hectares of forest. Michael Borg had shown great

interest in the property at issue.

20. The applicants appealed to the Government (Ministry of

Agriculture) which in a decision of 26 February 1981 rejected the

appeal.

21. Following a new request dated 4 January 1982, the County

Agricultural Board of the County of Kronoberg rejected an

application from the applicants for a permit to retain the real

estate Risböke 1:3. In the decision, which was dated 25 January 1982,

the County Agricultural Board stated that the real estate at issue was

considered to be a unit suitable for rationalisation purposes which

ought to be used for the strengthening of properties within the area

which could be further developed. It furthermore stated that the

Board was not prepared to redeem the real estate at the price of

240,000 SEK.

22. The applicants appealed against this decision to the National

Board of Agriculture which, after having inspected the property,

rejected the appeal on 15 November 1982.

23. The applicants submitted a further appeal to the Government

which on 27 October 1983 rejected the appeal.

24. In a letter of 11 January 1985 the applicants requested the

Government to reconsider their decision of 27 October 1983. On 14

March 1985 the Government decided not to take any measures in respect

of the applicants' request. In their decision, the Government

recalled that the appeal case had been finally decided by them on

27 October 1983.

25. The applicants brought proceedings before the Real Estate

Court (fastighetsdomstolen) of the District Court (tingsrätten) of

Växjö requesting that the State redeem the real estate in accordance

with Section 14 of the Land Acquisition Act. In a judgment of 11

December 1981 the Court rejected the applicants' claim, stating that

the provision invoked by the applicants could not be applied by

analogy to the applicants' situation and that, consequently, the

conditions for ordering the State to redeem the property were not

satisfied. The applicants appealed to the Göta Court of Appeal (Göta

hovrätt) which on 1 July 1982 confirmed the judgment of the District

Court. On 14 July 1983 the Supreme Court (högsta domstolen) refused

to grant the applicants leave to file a further appeal.

26. At the request of the County Agricultural Board, the County

Administrative Board, on 10 November 1983, ordered that the real

estate Risböke 1:3 should be sold at a public auction.

In a decision of 19 April 1984 the Enforcement Office

(kronofogdemyndigheten) found that the real estate had a value of

125,000 SEK. The applicants appealed against this decision to the Göta

Court of Appeal which in a decision of 4 June 1984 dismissed the

appeal stating that it was not possible to appeal against the decision

of the Enforcement Office as it was only a preparatory stage for a

subsequent decision on the sale of the real estate. The applicants

appealed against this decision to the Supreme Court which on 23 August

1984 refused to grant leave to appeal.

27. Before the public sale on 18 June 1985 the property had

undergone three valuations, one by the National Board of Forestry

(skogsvårdsstyrelsen) of February and March 1984, another by the

Senior Land Surveyor (överlantmätaren) of the County of Kronoberg of

April 1984 and a third by two specially appointed valuers of October

1984. The latter valuers had been appointed on 26 June 1984 by the

County Administrative Board (länsstyrelsen).

As a result of the first valuation, the value of the real

estate was decided as being 100,000 SEK.

The second valuation by the Senior Land Surveyor resulted in

an estimated value of the estate of 125,000 SEK. The third valuation

by two specially appointed valuers, while referring to the previous

two valuations, nevertheless resulted in a value of 172,000 SEK which

was the value to be the basis for the public auction in June 1985.

28. The public auction took place on 18 June 1985. It was noted

that the real estate had been assessed at a value of 172,000 SEK and

that the taxable value was 107,000 SEK. The lowest bid which could be

accepted would be 172,000 SEK. At the public auction, only one offer

of 172,000 SEK was made. The offer was made by the County Agricultural

Board, and it was accepted by the Enforcement Office.

29. Prior to the auction, four different applications for an

advance permit (förhandstillstånd) to acquire the property Risböke

1:3 had been rejected by the County Agricultural Board. Applications

from Stellan Ingemarsson, Artur Svensson and Nils Arvid Torstensson

were rejected on 10 June 1985 and an application from Anders HÃ¥kansson

was rejected on 14 June 1985.

However, a request for an advance permit from Michael Borg and

Thorwald Borg had previously been granted by the County Agricultural

Board on 10 April 1984 on the condition that they applied, within two

months from the public auction, for a merger of Risböke 1:3 with

Tiböke 1:8 and 1:9.

30. The applicants appealed against the public auction to the Göta

Court of Appeal requesting that the sale of the property be annulled.

They argued that the property had been sold at a price which was lower

that the market price and that the valuation which arrived at the

amount of 172.000 SEK had been based on an assessment of the yield of

the property and not on its market value. On 3 July 1985 the Court of

Appeal rejected the appeal.

31. The applicants submitted a further appeal to the Supreme

Court which on 20 August 1985 refused to grant leave to appeal.

B. Relevant domestic law

32. The acquisition of a real estate, which is assessed for tax

purposes as an agricultural holding, is subject to the regulations

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

replacing an Act of 1965 on the same issue - in order to implement the

new agricultural guidelines adopted by the Riksdag in 1977 and also to

meet the policy goals of forestry and regional planning. Among the

aims particularly to be furthered by the Act are the creation and

preservation of effective family holdings so as to strengthen the

connection between cultivation and ownership, and also the promotion

of a continuous structural rationalisation of agriculture and

forestry.

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

acquisition of real estate assessed for tax purposes as an agricultural

holding. Section 2 enumerates a number of exceptions, none of which

is relevant to the present case.

34. When deciding on an application for a permit, it shall be

taken into account that the setting up and development of rational

enterprises in agriculture, forestry and horticulture (farm holdings)

should be promoted (Section 3).

Section 4 provides inter alia:

(Swedish)

"Förvärvstillstånd skall vägras,

1. om köpeskillingen eller annan ersättning inte endast

obetydligt överstiger egendomens värde med hänsyn till dess

avkastning och övriga omständigheter,

2. om det kan antas att förvärvet sker huvudsakligen för

kapitalplacering,

3. om egendomen behövs för jordbrukets eller skogsbrukets

rationalisering..."

(English translation)

"A permit to acquire the property shall be refused,

1. if the price or other compensation significantly

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

other conditions,

2. if it can be assumed that the acquisition is effected

mainly as an investment,

3. if the property is required for the rationalisation of

agriculture or forestry..."

35. A property acquired at a compulsory auction under

circumstances which, in case of an ordinary purchase, would have

required a permit, shall, according to Section 16 para. 1 of the Act,

be re-sold within two years unless the said circumstances no longer

exist or the purchaser has obtained a permission from the County

Agricultural Board to retain the property. In case of an application

for such a permission, the provisions of Sections 3 and 4 shall apply.

36. A decision by the County Agricultural Board not to grant

permission to retain property acquired at a compulsory auction may be

appealed to the National Board of Agriculture and ultimately to the

Government.

37. In case a purchase of property becomes invalid as a result of

a refusal of permission to acquire the property on the ground that it

is needed for the rationalisation of agriculture and forestry, the

State is, according to Section 14 of the Act, obliged to redeem the

property at the purchase price agreed upon if the seller requests it.

However, under the same Section, no such obligation exists in case the

purchase price considerably exceeds the value of the property in

view of its yield and other circumstances, or if the terms are

unreasonable in other respects.

In respect of property acquired at a compulsory auction there

is, unlike the situation in case of an ordinary purchase, no

obligation for the State to redeem the property.

38. According to Section 14 para. 2 of the Act, an action for

redemption of property by the State shall be brought before a Real

Estate Court, whose decision may be appealed to a Court of Appeal and

ultimately to the Supreme Court.

39. In case the property has not, when required under the above

provisions, been sold within the prescribed time limit, the County

Administrative Board shall, according to Section 16 para. 1, order

that the property be sold by the Enforcement Office at a public

auction.

40. The basic provisions concerning an auction are found in

Section 17 of the Act and, by reference in this Section, in Chapter 12

of the 1981 Code of Enforcement (utsökningsbalken). No sale may take

place unless the purchase price offered amounts at least to the

estimated value set on the property prior to the auction (Section 17

of the Land Acquisition Act and Chapter 12 Section 3 of the Code of

Enforcement). This estimated value is to be fixed by the Enforcement

Office or, in case of a timely request by the owner of the property

for a special valuation, by valuers appointed by the County

Administrative Board (Section 17 of the Land Acquisition Act).

41. Decisions by the Enforcement Office in respect of a public

auction may, according to Chapter 18 Section 1 of the Code of

Enforcement, be brought before a Court of Appeal and, ultimately, the

Supreme Court. However, according to Section 6 para. 2 of the same

Chapter, an appeal against a decision merely constituting a

preparation for a future determination may, in general, be made only

in connection with an appeal against that determination.

42. As regards the procedure in case an appeal is made, the rules

of the 1942 Code of Judicial Procedure (rättegångsbalken) are, as far

as relevant, applicable by virtue of a reference in Chapter 18 Section

1 of the Code of Enforcement. Under Chapter 52 Section 10 of the Code

of Judicial Procedure a party or any other person may, when this is

deemed necessary, be heard by the Court of Appeal.

Chapter 52 Section 10 first sentence reads:

(Swedish)

"Finnes för utredningen erforderligt, att part eller annan

höres muntligen i hovrätten, förordne hovrätten därom på

sätt den finner lämpligt."

(English translation)

"Where it is required for the purposes of the investigation of

a case that a party or other person be heard orally by the

Court of Appeal, the Court of Appeal shall decide on such a

hearing as it sees fit."

III. SUBMISSIONS OF THE PARTIES

A. The applicants

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

43. The applicants consider that the compulsory public auction on

19 June 1986 constitutes a violation of their property right under

Article 1 of Protocol No. 1.

The applicants were deprived of their possessions within the

meaning of the second sentence of Article 1 of Protocol No. 1 as a

result of the sale of their property at the public auction. The

applicants contest the Government's submission that this interference

was justified under the terms of Article 1. They find no fair balance

between the demands of the alleged public interest concerned and the

necessity to protect the applicants' fundamental rights. On the

contrary, the public sale was planned by the administration in order

to place an excessive burden on the applicants in a discriminatory

manner, both absolutely and in comparison with the previous owner and

the subsequent owner. The Government use the concept "public sale" and

"auction" in a deceitful way when they describe the way in which the

property was taken away from the applicants on 18 June 1985. The price

had already been fixed by the County Agricultural Board at 172,000 SEK

without appeal. Nobody was allowed to make bids except the County

Agricultural Board which, for security reasons, prior to the public

sale had refused to grant any of four serious prospective buyers a

permit to acquire the real estate in question.

44. When they bought Risböke 1:3 at the compulsory public auction

in December 1979 the applicants were in no way gambling. In view of

the known circumstances at the auction, the applicants considered the

special permit to retain the estate as a pure administrative

formality. They still find the fact that they were finally not allowed

to retain Risböke 1:3 to be the result of a series of discriminatory,

capricious and, from an objective point of view, unpredictable

administrative "interpretations" or rather deliberate administrative

misinterpretations of the Land Acquisition Act.

45. A prerequisite for considering Risböke 1:3 as a

"rationalisation unit" - a consideration which could have made the

purchase hazardous - was that an estate assessed as a nucleus estate

(kärnfastighet) could be found in the close vicinity. The applicants

were unable to consider the estate Tiböke 1:9 as equivalent to a

nucleus estate.

46. Tiböke 1:9 was at the time of the compulsory public auction

owned by August Borg, born in 1899 and the father of Michael Borg and

Thorwald Borg. He did not personally run either agriculture or

forestry on his estate; the woods of the estate were neglected to a

high degree and the agriculture, concentrated on milk production, was

let out on lease to his son Michael Borg. This ownership situation,

including the natural possibility for a sudden change with a most

uncertain result - there being at least four sons and daughters, heirs

and heiresses - made it difficult to consider Tiböke 1:9 a nucleus

estate.

Furthermore, Michael Borg's agricultural business with its

concentration on milk production seemed - in the light of the

overproduction of milk in Sweden and the official propaganda for

subsidised curtailment of such production - highly unfit for making a

nucleus estate out of Tiböke 1:9.

Also most of the very fundamental milk production equipments

were lacking on Tiböke 1:9. From these facts the applicants were

allowed to draw the conclusion that Tiböke 1:9 should not be

classified as a nucleus estate and for that reason should not be

considered a "rationalisation unit".

In addition, there were no economy buildings on Tiböke 1:9 at

the time. Consequently, any true agricultural activity on that

property would require substantial investments which from a financial

point of view would be completely irresponsible.

47. Moreover, the County Agricultural Board had given no

information to the effect that Risböke 1:3 might be considered an

efficiency improvement estate or "rationalisation unit". Consequently,

the applicants were justified in concluding that the permit approving

their purchase of Risböke 1:3 would be a pure formality.

The basic reasons for refusing the applicants a permit to

retain Risböke 1:3 were indicated in a statement by Mr. Viking Karlsson

dated 14 January 1980. The applicants conclude from that statement

that Mr. Karlsson had not properly examined the quality of Risböke 1:3

before issuing that statement.

48. Concerning the bidding at the compulsory public auction in

December 1979 the applicants submit that the bids given were as

follows:

Michael Borg ............................. 220,000 SEK (his final bid)

Bertil Bjarnhagen ........................ 225,000 SEK

Applicants ............................... 230,000 SEK

Bertil Bjarnhagen ........................ 235,000 SEK (his final bid)

Applicants ............................... 240,000 SEK (decisive bid)

This series of bids on 4 December 1979 constitutes the free

market price of Risböke 1:3.

49. At a compulsory public auction like the one on 4 December 1979

when the Swedish State appears as the formal seller there is no price

control. Such a control could have a negative influence on the State's

prospects to get full compensation for unpaid taxes when an estate is

compulsorily sold to cover the owner's unpaid taxes.

However, later on, when the private buyer is refused the

permit on the ground that for "rationalisation" purposes someone else

should have the estate it is also alleged by the same administration

that the Swedish public interest requires from the buyer not only a

forced public auction sale where he is finally deprived of his

ownership but also that he shall pay an individual contribution to

such a "rationalisation" by selling at an artificial price,

arbitrarily lower than his bid at the previous compulsory public

auction.

50. The whole procedure causes economic losses for the private

buyer/seller. This system has been introduced to provide the State

with a double guarantee, namely a) a guarantee for an extraordinary

proper payment of taxes and other public fees to the State and b) a

guarantee for the cheapest possible accomplishment of administratively

decided real estate "rationalisations" in complete ignorance of

realities. The fate of the applicants proves that the system does not

aim at creating anything like a fair balance either between

contradictory interests in general or in particular in the

distribution of losses and gains among the parties involved. The

applicants were not given 172,000 SEK for Risböke 1:3 but 156,000 SEK

(= 172,000 - 16,000 SEK) after the costs for the sale had been

subtracted from the administratively fixed purchase-price, 172,000 SEK.

51. Under Article 14 of the Convention the applicants submit that

they have been seriously discriminated against in relation to both

Arthur Svensson (the seller at the auction in 1979) and Michael Borg

and Thorwald Borg (the final acquirers of Risböke 1:3), not to mention

the County Agricultural Board as the buyer of the real estate in

question at the alleged "public auction" on 18 June 1985.

52. Risböke 1:3 was in 1985 - when the applicants were forced to

sell it - a different real estate from that which existed in 1979 when

the applicants bought it. By 1985 it had been improved by the skilled

forestry of the applicants. In close co-operation with the National

Board of Forestry (skogsvårdsstyrelsen), the applicants had

accomplished clearances, thinning out and final loggings together with

subsequent plantations.

53. It is obvious that the Agricultural Board concentrated on

causing the applicants as much harm and economic losses as possible in

connection with the forced sale of Risböke 1:3. If the Board had had

the intention to create a "fair balance" it could have a) bought the

property at the forced "public auction" on 18 June 1985 for at least

the same price as at the public auction in 1979 and b) under the

period of its ownership of the property - June to December 1985 -

instituted a registered right to log through thinning out Christmas

trees on the property in favour of the applicants for five years.

After those years the applicants would have had a fair chance to

secure a reasonable profit out of their silviculture on the property

as the legal owners and the new owners would be in the possession of a

strongly developing, nice young spruce wood without any efforts of

their own and at a low price.

54. When Risböke 1:3 was to be sold in June 1985 at an alleged

"public auction", the price was already fixed at 172,000 SEK. For that

reason the Agricultural Board was legally allowed to grant the

designated future owners, Michael Borg and Thorwald Borg, a special

land acquisition permit. This permit was issued on the condition that

the licensees should ask within two months after the public

auction for a real estate merger of Risböke 1:3 and Tiböke 1:8 and

1:9. However, Michael Borg, who at the compulsory public auction in

1979 was prepared to pay 220,000 SEK for Risböke 1:3, refused to buy

the estate for 172,000 SEK, thereby making a complete fool out of the

Agricultural Board. In this situation, where the Board could obviously

no longer allege any local interest for buying Risböke 1:3, it had to

buy the estate itself, since the prestige of the Board forbade it to

declare the auction void and allow the applicants to retain the

estate. However, in this situation it was impossible for Michael Borg

and Thorwald Borg to fulfil the above mentioned condition for their

permit. From an objective point of view this should have meant that

two months after the forced public auction on 18 June 1985 the permit

of Michael Borg and Thorwald Borg should have been declared void and

the Agricultural Board, incapable of finding any local interest in

acquiring Risböke 1:3, should have sold the estate back to the

applicants. Instead, the Board started to bargain with the two

brothers Borg and finally sold Risböke 1:3 to them for the subsidised

price of 125,000 SEK in December 1985.

55. The applicants submit that at the relevant time the alleged

"only active farmer in the region" Michael Borg was not running any

farming or forestry business on Tiböke 1:9. This submission is

supported by the fact that he was not accounting for any earnings from

farming during 1984, 1985 or 1986 and that the real estate tax

assessment of 1984 records the Tiböke 1:9 value as to stables,

cow-house and barn as being nought.

56. The applicants made two critical remarks about the three

valuations which preceded the public sale in June 1985 (cf. para. 27).

First, the site quality of the estate was underestimated as being only

half of the real quality and, secondly, the comprehensive forestry on

the property in which the applicants engaged during 1980-1983,

including the planting of roughly 26,000 spruce plants, was ignored,

although all those plants were on the spot before the valuations were

made in 1984. These plants could easily give the landowner a net

income of more than 300,000 SEK, within a few years, depending on the

high site quality and the very intensive forestry and the hard work of

the applicants and their family members for which they received no

compensation.

Taking into account this extraordinary high net income within

only a few years and the fact that after this necessary thinning out

the landowner will possess a fertile soil with widespread and strongly

grown young trees for timber, the applicants find it shocking that the

Government and the Supreme Court forced them to sell for 172,000 SEK

in 1985 what they had bought in 1979 for 240,000 SEK.

57. In the follow up of the forced auction on 18 June 1985 the

applicants find some other revealing features of the Government's

"public interest", namely that the County Agricultural Board, in the

four cases of rejected applications for a permit to acquire the

property at the public sale of June 1985, insisted on the unrealistic

valuation of the estate and that after the forced sale in June 1985

the County Agricultural Board sold the property for 125,000 SEK to the

two brothers Michael Borg and Thorwald Borg who were prepared to buy

exactly the same property at the compulsory auction in December 1979

for 220,000 SEK.

58. In the applicants' view there can only be one reason for the

County Agricultural Board to maintain its absurd valuation of the

property amounting to 86,000 SEK. If that valuation could be accepted

as the starting point it may appear as if the applicants were decently

compensated, instead of ruthlessly underpaid in a discriminatory

manner, when they were allowed to get 172,000 SEK at the compulsory

auction in June 1985, and at the same time it may appear as if the

subsequent buyers Michael Borg and Thorwald Borg had to purchase the

property at a normal market price when as a matter of fact they were

considerably subsidised. The applicants are certain that all this

happened in the so-called Swedish public interest. However, the

applicants submit that the argument as to the Swedish public interest

is a most risky one. The Land Acquisition Act was enacted in order to

implement some new agricultural guidelines and to meet policy goals of

forestry and regional planning. Soon after the enforcement of this Act

the public debate made it the target of heavy criticism concerning not

only the policy goals but also the administrative means of reaching

those goals. The predominating Swedish opinion now finds the policy

goals as defined by this Act to a large extent outdated and for that

reason among others not worthy of the administrative means which the

Act still leaves open for abuse by a powerminded and unjudicious

Swedish bureaucracy.

59. To sum up, the applicants submit that the compulsory auction

in December 1979 where they bought the property at the price of

240,000 SEK left the previous owner with a net profit of about 100,000

SEK. After four years of intensive forestry on the property, including

the planting of 26,000 spruce plants, which activities should roughly

have doubled the market value of the property from the time of the

compulsory auction of December 1979 to the middle of 1985, the

applicants were forced to sell the property at a price fixed by the

administration at 172,000 SEK to the County Agricultural Board which,

by rejecting all applications for a permit to acquire the property,

excluded all other buyers. Subsequently the County Agricultural Board

sold the property to new owners at a highly subsidised price, 125,000

SEK.

The applicants lost more than 300,000 SEK as a result of the

public auction. The applicants consider that the actions taken by the

administration and by the courts involve violations of their right to

peaceful enjoyment of their possessions as guaranteed by Article 1,

first paragraph, of Protocol No. 1.

b. Articles 6 and 13 of the Convention

60. The refusal of the permit to retain the property was a

determination of a dispute in regard to the applicants' civil rights.

Article 6 para. 1 was applicable and the applicants' right to access

to a tribunal has been violated.

61. There existed - and still exist - most serious disputes

between the applicants, on the one hand, and the Swedish bureaucracy,

on the other hand, as to almost all aspects of the applicants'

property right to Risböke 1:3. These disputes concern the

determination of a fundamental civil right of the applicants. For that

reason the applicants should have been allowed access to court for

determination of this fundamental civil right as provided in Article 6

para. 1 of the Convention.

62. As to the nature of their right to Risböke 1:3 the applicants

observe that when they bought Risböke 1:3 on 4 December 1979 they

became immediately joint owners of that real estate and that their

ownership was confirmed by means of an entry into the land register.

The refusal of the permit is for that reason a decisive element as to

the applicants' ownership and not a suspending factor.

63. The Court's refusal to quash the public auction sale of

18 June 1985 leaves the applicants without access either to an effective

domestic remedy or to a fair and public hearing by an independent and

impartial tribunal.

64. Articles 6 para. 1 and 13 of the Convention are applicable.

The applicants conclude that there have been violations of their

rights set forth in those Articles.

B. The Government

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

65. According to the applicants, the determination prior to the

auction on 18 June 1985 of an estimated value of the property of

172,000 SEK and the public sale of the property at that price

constituted a violation of Article 1 of Protocol No. 1, since the

applicants had acquired the property at a price of 240,000 SEK.

66. The Government admit that the applicants were "deprived of

(their) possessions" within the meaning of the second sentence of

Article 1 of Protocol No. 1 by virtue of the public sale of the

property. However, for the following reasons the Government submit

that this interference with the applicants' rights was justified under

the terms of the said Article.

67. It follows from the wording of the second sentence of Article 1

that for a deprivation of property not to constitute a violation of

this Article, it has to be carried out "in the public interest" and in

accordance with "conditions provided for by law and by the general

principles of international law". Furthermore, as construed by the

European Court of Human Rights in the Case of James and Others (Eur.

Court H.R., James and Others judgment of 21 February 1986, Series A

No. 98, p. 29, para. 37), the second sentence is to be viewed in the

light of the general principle enunciated in the first sentence of the

Article. This latter provision has been construed by the Court so as

to require that, in case of an otherwise justified interference, a

fair balance should be struck between the demands of the public

interest concerned and the necessity of protecting the individual's

fundamental rights.

68. The Land Acquisition Act, forming the legal basis for the

public sale of the applicants' property, was enacted for the purpose

of implementing the policy goals of agriculture, forestry and regional

planning. The contested auction was held as a means of enforcing

provisions of the Act aimed at developing rational and effective farm

holdings. In view of this, and considering that the Court has viewed

the notion of "public interest" as a "necessarily extensive" concept

and also afforded the national authorities a "margin of appreciation"

in assessing the public needs and the appropriate measures to be taken

to satisfy them, the Government submit that the interference with the

applicants' rights was "in the public interest" within the meaning of

the second sentence of Article 1.

69. The Government observe that the applicants have not alleged

that the auction was not carried out in accordance with relevant

provisions of Swedish law. However, the terms "law" and "lawful" in

the Convention and Protocol No. 1 do not merely refer to domestic law

but also relate to "the quality of the law, requiring it to be

compatible with the rule of law". Although the exact meaning of this

requirement may still be open to some doubt, it may reasonably be

deduced from the Court's case-law that in the present context the law,

in order to satisfy the requirements of the second sentence, would

need to afford a reasonable protection against arbitrary interferences

and, in particular, to provide adequate guidance as to the

circumstances under which, and the conditions on which, an

interference may be carried out.

When considering the facts of the present case in view of

these observations, the Government submit that the requirement that

the interference be subject to "conditions provided for by law" was

also satisfied. Thus, except for the price at which the property was

ultimately to be sold, every significant element as well as

procedural aspect of the public sale was regulated by written law

readily available to the applicants. Furthermore, there is nothing to

indicate that they were not also in fact fully informed of these

regulations and their potential consequences. Finally, the publicly

announced estimated market value of the property at the time the

applicants acquired it - 140,000 SEK - provided clear guidance as to

the possible price in case of a subsequent public sale in accordance

with these regulations.

70. As regards the reference to "general principles of

international law", the Government observe that both applicants are

Swedish citizens. Therefore, and in view of the fact that the Court

has found these principles to be applicable only in respect of

non-nationals (see James and Others judgment, loc. cit., pp. 38-40,

paras. 58-66), no separate issue arises in respect of this particular

requirement.

71. According to the case-law of the Court, it is further required

that any interference, in order to be justified under Article 1, need

to be "both appropriate for achieving its aim and not disproportionate

thereto" and that, accordingly, the balance required will not be found

in case the individual concerned would have to bear "an individual and

excessive burden". This would appear to call for an examination of,

firstly, whether the public sale of the applicants' property in itself

was appropriate in view of the aim sought to be achieved and,

secondly, whether the applicants under the circumstances had to suffer

undue economic burdens.

72. The policy goals of agriculture and forestry could in the

Government's view scarcely be achieved without imposing appropriate

restrictions on the right to acquire and hold land suitable for

agriculture and forestry. The framing and administration of such

restrictions offer a variety of possible measures to be taken, some of

which necessarily involve serious interferences with the individual's

right to property, including depriving him of his property.

As regards the choice between such possible measures, the

concept "in the public interest" suggests that the discretion afforded

to States is considerably wider in scope than under other similar

provisions of the Convention, for instance Articles 8-10, where the

notion "necessary in a democratic society" is used. In applying

Article 1 of Protocol No. 1, the Commission has viewed the former

concept as "clearly (encompassing) measures which would be preferable

or advisable, and not only essential, in a democratic society"

(Handyside v. the United Kingdom, Comm. Report, 30.9.75, para. 167,

Eur. Court H.R., Series B No. 22, p. 50).

In view of the wide discretion thus afforded to a State as

regards the particular measures to be taken in order to implement

legitimate policy goals, it could not reasonably be held that the

measures taken in the present case were not appropriate in relation to

the goals sought to be achieved.

73. As regards the question of whether the applicants had to

suffer undue economic burdens, the Government first observe that the

property had a fixed value for tax purposes of 107,000 SEK. This

value is, as a matter of law, intended to correspond to 75 per cent of

the market value. Furthermore, at the time of the public auction of 4

December 1979, the estimated market value was publicly announced to be

140,000 SEK. Finally, prior to the public sale on 18 June 1985 the

property was assessed at a value of 172,000 SEK, at which price it was

also purchased by the County Agricultural Board. In view of this, the

Government submit that the applicants were afforded an amount

corresponding to the full market value of the property.

74. However, the applicants acquired the property at a

considerably higher price than that at which it was sold at the public

auction of 18 June 1985. In view of this, it could be argued that

they were not fully compensated. Based on this line of reasoning, the

applicants have asserted that the public sale amounted to a violation

of Article 1 of Protocol No. 1. Even assuming that the price at which

the applicants acquired the property would be considered to reflect

its market value, the Government are unable to share this view.

At the outset, Article 1 of Protocol No. 1 does not at all

call for any form of compensation in case of deprivation of property

in the public interest. Nevertheless, the Court has held that the

taking of property by the State without any form of compensation would

normally be inconsistent with the requirements of the said Article.

In doing so, however, the Court has rejected the idea that the State

would be obliged under all circumstances to fully compensate the

property owner. Rather, all that is required, according to the Court,

would appear to be that the compensation should be "reasonably related

to" the market value. In addition, as regards the determination of

the compensation the Court has observed the necessity of allowing the

State a "wide margin of appreciation".

In view of this, the Government submit that the applicants

were adequately compensated as required by Article 1 of

Protocol No. 1.

75. As to the economic losses actually suffered by the applicants,

the Government add the following. Legislation aimed at implementing

policy goals such as those concerned in the present case would hardly

serve its purpose without, at least occasionally, giving rise to

situations in which the individual would have to bear what at first

sight might be viewed as considerable burdens. In recognising that

such burdens cannot always be avoided, the Court has accepted that, in

principle, it is for the national legislator to assess the advantages

and disadvantages involved in the legislative measures concerned,

provided only that the measures ultimately taken would not be "so

unreasonable as to be outside the State's margin of appreciation"

(James and Others judgment, loc. cit., p. 42, para. 69).

When applying this test in the present case, the Government

maintain that, in view of the policy goals pursued, there is nothing

in the legislation as such that could reasonably render it

unacceptable under Article 1 of Protocol No. 1. In particular, the

Government observe that the mechanism provided for in the legislation

does not inherently, and in practice all but never, lead to situations

like the one in the present case. Furthermore, the grievances

suffered by the applicants were to a large extent the result of what

in the Government's opinion may be viewed as highly risky undertakings

consciously entered into by the applicants themselves. Although aware

of the facts that they might not be granted permission to retain the

property and that the property might ultimately be sold at a public

auction, they nevertheless chose to acquire it at a price which at the

time of the acquisition exceeded the publicly announced, estimated

market value by 100,000 SEK, i.e. by more than 70 per cent.

76. As regards the decision not to redeem the property, the

Government only observe that no requirement could be read into the

Convention or Protocol No. 1 to the effect that a State would be under

an obligation to redeem property in the way requested by the

applicants.

77. To sum up, while admitting that the public sale constituted an

interference with the applicants' right to property, the Government

submit that the interference was justified under the second sentence

of Article 1 of Protocol No. 1. Consequently, the Government maintain

that there has been no violation of that provision.

78. As to the allegations that the applicants have been exposed to

discriminatory treatment with regard to the person who owned the

property before them and in relation to the persons who finally

acquired the property, the Government make the following

observations.

The aims of the legislation must be regarded as justified and

reasonable. The way it was applied in the present instance is

compatible with these aims. Furthermore, the effects of the measures

challenged by the applicants cannot be said to be unreasonable or out

of proportion with regard to these aims. In principle, this also goes

for the information provided by the applicants that the property was

finally sold by the County Agricultural Board to Michael Borg and

Thorwald Borg at a price of SEK 125,000. This fact does not, alone,

substantiate the allegation that that price was fixed on

discriminatory grounds. Furthermore, the Government hold that this

last transaction should not be taken into consideration by the

Commission, since it has no direct effect on the situation of the

applicants.

79. Thus, no discrimination in the sense of Article 14 of the

Convention has occurred in any of the ways alleged by the applicants.

b. Article 6 of the Convention

aa. The refusal to grant the applicants permission to

retain the property

80. The Government contest that the applicants' "civil rights"

were determined. They submit that there are particular features of the

present case. It has characteristics distinguishing it from the

Ringeisen case (Eur. Court H.R., Ringeisen judgment of 16th July 1971,

Series A No. 13), the case which would appear to be the one most in

line with the present one. In the present case the property was

acquired at a public auction and not through an ordinary purchase from

a private seller. Furthermore, the legal consequences of the relevant

decision were considerably more far-reaching in the Ringeisen case in

that it rendered the purchase null and void. In the present case the

decision not to grant permission to retain the property entailed an

obligation to sell the property. The purchase as such was not

affected. In the Government's opinion these characteristics carry

considerable weight when considering whether the proceedings should be

viewed as involving determination of "civil rights" within the meaning

of Article 6 para. 1.

81. Moreover, the minutes from the public auction of 4 December

1979 indicate that, prior to the commencement of the bidding,

information was given regarding the provisions of Section 2

Subsection 10, and Section 16 of the Land Acquisition Act.

Consequently, the conditions laid down in the letter of

purchase, reminding the purchasers that their acquisition of the

property was made subject to an obligation under Section 16 para. 1 of

the Land Acquisition Act to sell that property within two years from

the date on which the public auction acquired legal force, were

brought to the attention of prospective buyers before the commencement

of the bidding.

82. The applicants' bidding at the public auction was made in

awareness of this obligation. A provision to the same effect appears

in the letter of purchase. The Government, therefore, submit that the

bidding and the acquisition of the property were made subject to an

obligation to resell the property within two years, if circumstances

had not then changed, in that the competent authorities had granted

permission to retain the property, or such permission was then no

longer required. Consequently, the applicants' right to the property,

as acquired at the auction, was limited to two years not only by law,

but also by the consent of the applicants. The applicants' rights were

thus limited and the decision regarding permission to retain the

property cannot be regarded as a decision concerning the applicants'

civil rights.

83. In other words, the main effect of the decision to refuse

permission under the Land Acquisition Act was that the original

voluntarily accepted obligation to resell the property remained

unchanged. No civil right in the sense of the Convention was concerned

since the conditions under which the applicants had voluntarily

acquired their property were not affected and, furthermore, since by

accepting these conditions the applicants had also voluntarily

accepted that the possibility of their retaining the property beyond

the two year-limit would be subject to a decision by the competent

authorities under the Land Acquisition Act, and thus waived any right

of a civil nature they might otherwise be said to have had in this

respect (cf. a contrario Eur. Court H.R., Sramek judgment of

22 October 1984, Series A No. 84, p. 17, para. 34, and Poiss judgment

of 23 April 1987, Series A No. 117, p. 102, para. 48).

84. If the Commission should nevertheless consider that the

decision regarding permission to retain the property in question does

concern a civil right, the Government submit that the applicants, by

acquiring the property under the applicable conditions, had accepted

that the possibility of their obtaining a permit to retain the

property was to be examined by the competent authorities under the

Land Acquisition Act, and according to the procedure foreseen for

these authorities. The applicants have thus waived the guarantees

under Article 6 para. 1 as regards these proceedings (cf. inter alia,

Eur. Court H.R., Deweer judgment of 27 February 1980, Series A No. 35,

p. 25, para. 49).

85. In case the Commission would find that the present decision

did amount to a determination of the applicants' "civil rights" within

the meaning of Article 6 para. 1, the Government admit that the

applicants were not entitled to take proceedings meeting the

requirements of the said Article.

bb. The public sale

86. The applicants have also in respect of the public sale alleged

violations of Article 6 para. 1 of the Convention on the ground that

their appeal was decided upon without an oral hearing.

87. As regards the applicability of Article 6 para. 1, the

Government take the same position as in respect of the refusal of

permission to retain the property. In case the Commission would find

Article 6 para. 1 applicable, the Government submit that the

requirements of that Article were satisfied in the present case.

88. The Government firstly observe that Article 6 para. 1 as it

stands does not seem to call for a public hearing for the

determination of civil rights and obligations. Rather, it merely

provides that everyone is entitled to such a hearing. In the

Government's opinion, this clearly indicates that the right to

proceedings in public could be waived. The European Court of Human

Rights has also adopted this view and, furthermore, recognised that

the waiver could be tacit (see e.g. Deweer judgment, loc. cit., p. 25,

para. 49, and Eur. Court H.R., Le Compte, Van Leuven and De Meyere

judgment of 23 June 1981, Series A no. 43, para. 59).

89. In the present case, the contested auction as such was carried

out in public. Furthermore, every decision related to the public sale

could be, and some of the decisions were in fact, brought before courts

competent to review every aspect of the matter in respect of questions

of law as well as questions of fact. The rules governing such appeal

proceedings do comprise provisions according to which parties and

witnesses could be heard by the Court of Appeal as well as the Supreme

Court. However, no request for such a hearing was ever made by the

applicants, nor was there any indication that they, nevertheless, did

expect a hearing to be held or that in any possible way they could be

expected to benefit from a hearing. Under these circumstances the

Government submit that the requirements of Article 6 para. 1 were

satisfied and that, accordingly, the application on this point is

ill-founded.

90. In case the Commission does not share this view, the

Government question, even in case a hearing is requested by the party

concerned, whether at all Article 6 of the Convention calls for oral

proceedings regardless of the character of the issues involved. The

Commission has in numerous decisions dealt with the concept of a "fair

and public hearing" in a manner that seems to indicate that all that

would be required would be that a party is provided appropriate

facilities for presenting and arguing his case and that the opposing

party is not put in a more favourable position with regard to the

possibilities of presenting his position. It certainly goes without

saying that the circumstances in a case might be such as to call for a

hearing for these requirements to be fulfilled. However, in the

Government's opinion it would seem to be equally conceivable that a

party under certain circumstances could be given a perfectly fair

chance to present his case, even though he were not afforded the

possibility of doing this at a hearing. Thus, a civil case involving

no disputed facts but only pure legal issues would seem to be as

appropriately presented and argued in writing as at a hearing.

In this context the Government refer to the Commission's

decision on the admissibility of Application No. 1169/61 (Dec.

24.9.63, Yearbook 6, p. 520) in which the Commission expressed the

opinion that, when the character and mode of living of an applicant

were not directly relevant to the formation of the Court's opinion,

proceedings wholly in writing might meet the requirements of Article 6

para. 1.

91. In the present case the only issue brought before the courts

was a question of law, namely what principles to be applied when

assessing the value of the property (see the applicants' appeals to

the Göta Court of Appeal and to the Supreme Court). Consequently, there

was no dispute as regards the facts of the case and the character and

mode of living of the applicants were of no relevance to the formation

of the courts' opinions.

92. The Government also draw attention to the important principle

under Swedish law of general access to official documents

(offentlighetsprincipen). According to this principle - which is laid

down in the Freedom of the Press Act (tryckfrihetsförordningen) forming

part of the Swedish Constitution - anybody has the right to have access

to the written submissions to Swedish courts (the principle is subject

to a limited number of exceptions provided for in the Secrecy Act, none

of which is relevant to the present case). This means that there is full

publicity about court proceedings even if there is no hearing and,

accordingly, that there could be no material before the courts that is

not readily available to the parties as well as the public. Clearly,

this public nature of the proceedings provides a substantial guarantee

against arbitrary decisions by enabling the parties and the public to

verify and scrutinise the manner in which the administration of justice

is carried out. The Government maintain that this specific feature of the

Swedish legal system should be given special regard when considering

Swedish court proceedings in view of the requirements of Article 6

para. 1 of the Convention.

c. Article 13 of the Convention

93. In the Government's view the only possibly relevant issue

pertains to the valuations of the property preceding the public

auction of 18 June 1985. However, these valuations do not form a

separate issue, but are part of the proceedings leading up to that

public auction. On the other hand, with regard to the public auction,

the Government recall that such a public sale may be appealed against

and reviewed in every respect by the competent courts. The Government

submit that this possibility of appeal constituted an effective remedy

in the sense of Article 13.

94. As regards the permission to retain the property, the

Government submit that the possibility to appeal a decision by the

County Agricultural Board to the National Board of Agriculture and

then to the Government must be sufficient for the purposes of

Article 13 of the Convention.

IV. OPINION OF THE COMMISSION

A. Points at issue

95. The principal issues to be determined are:

- whether there has been a violation of the applicants' property right as

guaranteed by Article 1 of Protocol No. 1 (Art. P1-1) to the Convention;

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

to the dispute which arose over the question whether the applicants should be

granted a permit to retain the agricultural property they had bought and, if

so, whether there has been a violation of this provision;

- whether there has been a violation of Article 6 para. 1 (Art. 6-1) of

the Convention as a result of the fact that no oral hearing was held before the

Court of Appeal in the proceedings concerning the public sale;

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

Convention;

- whether there has been a violation of Article 14 (Art. 14) of the

Convention in conjunction with Article 1 of Protocol No. 1 (Art. P1-1).

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

96. Article 1 of Protocol No. 1 reads (Art. P1-1):

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of

his possessions except in the public interest and subject to

the conditions provided for by law and by the general

principles of international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it deems

necessary to control the use of property in accordance with

the general interest or to secure the payment of taxes or

other contributions or penalties."

97. In alleging a violation of this Article the applicants submit

in particular that, at the public auction in December 1979, the State

sold the property to them at the price of 240,000 SEK, then refused

them a permit to retain the property, and finally bought it in June

1985 at a new public auction at the price of 172,000 SEK.

98. The Government admit that the applicants were "deprived of

(their) possessions" as a result of the public sale of the property in

1985, but submit that this was justified under the second sentence of

the first paragraph of Article 1 (Art. 1).

99. The Commission finds that the public sale of the property in

1985 constituted an interference with the applicants' right to the

peaceful enjoyment of their possessions as guaranteed by Article 1 of

Protocol No. 1 (Art. P1-1) and that the interference is to be characterised as a

deprivation of possessions. Consequently, it will examine the case

under the second sentence of the first paragraph of Article 1 of

Protocol No. 1 (Art. P1-1).

100. The Commission must thus decide whether the deprivation of the

applicants' property was "in the public interest" and "subject to the

conditions provided for by law" and "by the general principles of

international law".

101. As regards the general principles of international law, the

Commission recalls that this condition does not apply to the taking by

a State of the property of its own nationals (Eur. Court H.R., Lithgow

and Others judgment of 8 July 1986, Series A No. 102, p. 50, para.

119). Consequently, this condition is not applicable in the present

case since the applicants, who were deprived of their property by

Sweden, are of Swedish nationality. It remains to be examined whether

the interference satisfied the other two conditions.

102. The applicants contest that the interference was "in the

public interest".

103. The Commission recalls that the taking of property in

pursuance of legitimate social, economic or other policies may be "in

the public interest", even if the community at large has no direct use

or enjoyment of the property (see Eur. Court H.R., James and Others

judgment of 21 February 1986, Series A No. 98, p. 32, para. 45). In

the James and Others judgment, the Court also made the following

statement as to the Convention organs' supervision of the condition

"in the public interest" (p. 32, para. 46):

"Because of their direct knowledge of their society and its

needs, the national authorities are in principle better

placed than the international judge to appreciate what is

'in the public interest'. Under the system of protection

established by the Convention, it is thus for the national

authorities to make the initial assessment both of the

existence of a problem of public concern warranting

measures of deprivation of property and of the remedial

action to be taken (see, mutatis mutandis, the Handyside

judgment of 7 December 1976, Series A No. 24, p. 22, § 48).

Here, as in other fields to which the safeguards of the

Convention extend, the national authorities accordingly enjoy

a certain margin of appreciation.

Furthermore, the notion of 'public interest' is necessarily

extensive. In particular, as the Commission noted, the

decision to enact laws expropriating property will commonly

involve consideration of political, economic and social

issues on which opinions within a democratic society may

reasonably differ widely. The Court, finding it natural

that the margin of appreciation available to the

legislature in implementing social and economic policies

should be a wide one, will respect the legislature's

judgment as to what is 'in the public interest' unless that

judgment be manifestly without reasonable foundation. In

other words, although the Court cannot substitute its own

assessment for that of the national authorities, it is bound

to review the contested measures under Article 1 of Protocol

No. 1 (Art. P1-1) and, in so doing, to make an inquiry into the facts

with reference to which the national authorities acted."

104. The purpose of the deprivation of the applicants' property was

to promote the aims of the Land Acquisition Act, and to further the

implementation of the decisions taken under it by the competent

authorities, notably the local Agricultural Board.

The background of the public sale of the applicants' property

was that they had originally acquired it under the condition that they

would obtain, under the Land Acquisition Act, a permit to retain the

property. However, they were refused such a permit on the ground that

the property in question was a "rationalisation unit" to be used for

the strengthening of other properties in the area. The Commission

considers that, in principle, depriving a person of an agricultural

property for such a purpose may be "in the public interest".

105. The applicants contest that their property was in fact a

"rationalisation unit" in relation to, in particular, the property

owned by, and the activities performed by, the brothers Michael Borg

and Thorwald Borg, who allegedly were active farmers in the area.

It is not the Commission's task to determine this issue. It

notes, however, that the opinion of the Agricultural Board was

confirmed, on appeal, by the National Board of Agriculture and then by

the Government. Moreover, the property was subsequently sold to

Michael Borg and Thorwald Borg, and the aim, which the authorities

indicated when refusing the applicants a permit to retain the

property, was thus pursued.

106. However, this does not settle the issue of whether the

interference was "in the public interest". A deprivation of property

must not only in principle pursue a legitimate aim "in the public

interest". There must also be a reasonable relationship of

proportionality between the means employed and the aim sought to be

realised (James and Others judgment, loc. cit., p. 34, para. 50). This

latter requirement was described in the case of Sporrong and Lönnroth

(Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September 1982,

Series A No. 52, p. 26, para. 69) as the fair balance that must be

struck between the demands of the general interest of the community

and the requirements of the protection of the individual's fundamental

rights. Thus a measure must be both appropriate for achieving its

aims and not disproportionate thereto.

107. The applicants point out that the requirement of

proportionality was not met since they bought the property for

240,000 SEK - in reality from the State -, were then refused a permit

to retain the property - by the State - and then forced to sell the

property - to the State - for 172,000 SEK.

108. According to the case-law of the Convention organs

compensation terms are material to the assessment of whether a fair

balance has been struck between the various interests at stake and

whether or not a disproportionate burden has been imposed on the

applicant. In the case of James and Others, the Court stated as

follows (James and Others judgment, loc. cit., p. 36, para. 54):

"The Court further accepts the Commission's conclusion

as to the standard of compensation: the taking of property

without payment of an amount reasonably related to its

value would normally constitute a disproportionate

interference which could not be considered justifiable

under Article 1 (Art. 1). Article 1 (Art. 1) does

not, however, guarantee a right to full compensation

in all circumstances. Legitimate objectives of

'public interest', such as pursued in measures of

economic reform or measures designed to achieve greater

social justice, may call for less than reimbursement of

the full market value. Furthermore, the Court's

power of review is limited to ascertaining whether

the choice of compensation terms falls outside the

State's wide margin of appreciation in this domain

..."

As regards the latter sentence the Commission recalls that in

the case of Lithgow and Others, concerning nationalisation of

industries, the Court developed the following reasoning (Eur. Court

H.R., Lithgow and Others judgment of 8 July 1986, Series A No. 102,

p. 51, para. 122):

"A decision to enact nationalisation legislation will

commonly involve consideration of various issues on which

opinions within a democratic society may reasonably differ

widely. Because of their direct knowledge of their society and

its needs and resources, the national authorities are in

principle better placed than the international judge to

appreciate what measures are appropriate in this area and

consequently the margin of appreciation available to them

should be a wide one. It would, in the Court's view, be

artificial in this respect to divorce the decision as to the

compensation terms from the actual decision to nationalise,

since the factors influencing the latter will of necessity

also influence the former. Accordingly, the Court's power of

review in the present case is limited to ascertaining whether

the decisions regarding compensation fell outside the United

Kingdom's wide margin of appreciation; it will respect the

legislature's judgment in this connection unless that judgment

was manifestly without reasonable foundation."

109. The Commission recalls that the public auction in 1979, at

which the applicant bought the property for 240,000 SEK, was preceded

by a valuation according to which the property was assessed to have a

value of 140,000 SEK. The applicants were fully aware of the

regulations applicable to an acquisition at such an auction, in

particular that they needed a subsequent permit in order to be allowed

to retain the property. The Commission considers that the applicants

could not reasonably have expected that such a permit would in effect

be granted. Since the applicants bought the property at a price which

was much higher than the assessed value and without guarantees of

being subsequently granted the requisite permit, they must be

considered to have taken a great risk.

110. When the property was sold at the public sale in 1985 for the

price of 172,000 SEK, it had undergone three valuations, the highest

value being 172,000 SEK. This valuation was made by independent

valuers, and there is no substantiated allegation that the valuation

was incorrect.

The Commission notes the considerable difficulties that exist

in establishing an objective market price for a property of the kind

here at issue and under the prevailing market conditions. In view of

the different valuations made, it does not find it established that

the value of the applicants' property, at the time of the public sale,

was higher than 172,000 SEK.

111. The Commission therefore considers that the applicants

received, at the public sale, a price for their property which must be

considered to have been reasonably related to its value.

112. Consequently, the Commission considers that the domestic

authorities cannot be said to have exceeded their margin of

appreciation, when they acquired the applicants' property for such a

price in the interest of rationalising agriculture. It accordingly

finds that the enforced public sale of the applicants' property was an

interference with their property right effected "in the public

interest" and that the principle of proportionality was satisfied.

113. Finally, as regards the condition "subject to the conditions

provided for by law", the Commission recalls that this phrase requires

the existence of and compliance with adequately accessible and

sufficiently precise domestic legal provisions. The word "law" in the

Convention does not only refer back to domestic law, but also to the

quality of the law, requiring it to be compatible with the rule of law

(see Eur. Court H.R., Malone judgment of 2 August 1984, Series A No.

82, pp. 31-33, paras. 66-68).

114. Here the Commission notes that the deprivation of the

applicants' property was based on various provisions contained in the

Land Acquisition Act, notably Sections 16 and 17 of that Act. There is

no indication that it nevertheless failed to meet the requirement in

Article 1 (Art. 1) of "conditions provided for by law".

115. Consequently, the interference by Sweden with the applicants'

right to peaceful enjoyment of their possessions was justified under

the terms of the second sentence of the first paragraph of Article 1

of Protocol No. 1 (Art. P1-1).

Conclusion

116. The Commission concludes, by ten votes to two, that there has

been no violation of Article 1 of Protocol No. 1 (Art. P1-1).

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

a. Proceedings concerning the permit to retain the property

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

117. Article 6 para. 1 (Art. 6-1) 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.

Judgment shall be pronounced publicly but the press and public

may be excluded from all or part of the trial in the interests

of morals, public order or national security in a democratic

society, where the interests of juveniles or the protection of

the private life of the parties so require, or to the extent

strictly necessary in the opinion of the court in special

circumstances where publicity would prejudice the interests of

justice."

118. The Government submit that Article 6 para. 1 (Art. 6-1) was not

applicable to the proceedings concerned. They argue that the

acquisition at the public auction was subject to the legal condition

that the applicants had to obtain a permit within two years to keep

the property and that, if they did not, they were obliged to resell

the property. Since the applicants bought the property in awareness of

this condition, it cannot, in the Government's view, be said that they

had any right to retain the property. On the contrary, by purchasing

under such conditions they waived their possible right to a court

procedure.

119. The Commission recalls, however, that, according to

established case-law, a dispute as to whether a buyer of agricultural

land should be granted a permit to retain that land is decisive for a

"civil right", in the sense of Article 6 (Art. 6), of the buyer (cf.

Eur. Court H.R., Ringeisen judgment of 16 July 1971, Series A No. 13,

p. 39, para. 94, and Sramek judgment of 22 October 1984, Series A No.

84, p. 17, para. 34).

120. Consequently, the administrative decisions in the present case,

as to whether the applicants should be granted a permit to retain the

property they had bought at the public auction, was a decision which

was decisive for their "civil rights".

121. The Commission observes in this connection that, since the

applicants' purchase was subject to the condition under the Land

Acquisition Act that they obtain a permit to retain the property, the

examination of whether they should be granted such a permit was

decisive for their property right. The Commission does not share the

opinion that the applicants waived their right to a court procedure as

a result of the fact that the purchase was subject to certain

conditions. Nor does this fact justify the conclusion that no "right"

was at issue.

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

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

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

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

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

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

of a serious nature" (see Eur. Court H.R., Benthem judgment of 23

October 1985, Series A No. 97, p. 14, para. 32).

123. In the Commission's opinion, it appears from the various

proceedings initiated by the applicants, and the arguments invoked by

them in these proceedings, that there was a dispute of a "genuine and

serious nature", in particular as to whether the decision to refuse

them a permit to retain the property was in conformity with Swedish

law.

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

applicable to the dispute over the applicants' right to retain the

property.

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

125. It must next be examined whether the applicants had the

possibility of submitting the dispute over their right to retain the

property to a "tribunal" satisfying the conditions of Article 6 para.

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

126. The Commission recalls that the requested permit was refused

by the County Agricultural Board, and the applicants' appeals to the

National Board of Agricultural and to the Government were unsuccessful.

No further appeal lay against the Government's decisions.

127. The Government admit that, with regard to the dispute over

their request for the permit, the applicants were not entitled under

Swedish law to a procedure which satisfied Article 6 para. 1 (Art. 6-1) of the

Convention.

128. The Commission finds that the proceedings before the

Government did not constitute proceedings before a "tribunal" within

the meaning of this provision.

129. The Government have not referred to any remedy which might

permit a review of their decisions regarding the permit at issue and

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

130. 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 these requirements. The Court held that it was not

sufficient for the purposes of Article 6 para. 1 (Art. 6-1) (cf. Sporrong and

Lönnroth judgment, loc. cit., pp. 30-31, paras. 84-87).

131. It follows that the present applicants did not have at their

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

(Art. 6-1) of the Convention in respect of the dispute which arose over their

request for the permit to retain the property.

Conclusion

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

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

a result of the absence of a procedure satisfying this provision with

regard to the dispute over the refusal to grant a permit to retain the

property.

b. Absence of a public hearing before the Göta Court of Appeal

133. The applicants complain that the Göta Court of Appeal

determined their appeal against the public auction without a public

hearing.

134. The Government submit that Article 6 para. 1 (Art. 6-1) of the

Convention was not applicable to those proceedings. In the

alternative, they submit that the conditions of Article 6 para. 1

(Art. 6-1) were satisfied.

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

135. The Commission considers that Article 6 para. 1 (Art. 6-1) was

applicable to the proceedings before the Göta Court of Appeal since

these proceedings concerned an appeal against the public sale of the

applicants' property, the right to property being a "civil" right.

The fact that the applicants, in their appeal, only raised the issue

of the valuation of the property prior to the auction does not alter

this conclusion.

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

136. Article 6 para. 1 (Art. 6-1) of the Convention guarantees the right to

a public hearing, unless the conditions for exceptions in the second sentence

of that paragraph are satisfied.

Under the case-law of the Convention organs, a departure from

the principle that there should be a public hearing may in certain

circumstances be justified regarding proceedings before courts of

appeal or courts of cassation. Account must be taken of the entirety

of the proceedings and the role of the courts concerned. The decisive

elements are the nature of the national appeal system, the scope of

the court's functions and the manner in which the individual's interests

are presented and protected before the court (see Eur. Court H.R.,

Ekbatani judgment of 26 May 1988, Series A No. 134, paras. 27 and 28).

137. Nevertheless, the principle of publicity must be fully

respected at least in one instance dealing with the merits of a case.

In the case of Adler v. Switzerland (Comm. Report, 15.3.85, to

be published in D.R.) the Commission found a violation of Article 6

para. 1 (Art. 6-1) of the Convention as a result of the absence of a public

hearing before the Swiss Federal Court which decided as first and last

instance.

138. In the present case, the sale of the property was conducted

publicly by the Enforcement Office, but this was not a procedure by

which a court determined "civil rights" and, consequently, Article 6

(Art. 6) of the Convention did not apply to that sale.

139. The Commission observes that the Court of Appeal was the first

and only judicial body which examined the merits of the applicants'

complaint against the public auction. It considers, therefore, that

the applicant was entitled to a public hearing before that Court,

since none of the grounds listed in the second sentence of Article 6

para. 1 (Art. 6-1) could have justified an exception from the rule in the first

sentence.

140. The Government point out that the applicant did not request a

hearing before the Court of Appeal. The Commission has therefore

examined whether the fact that the applicants did not request a

hearing before the Court can be considered as a waiver of their right to a

hearing under Article 6 (Art. 6) of the Convention, or as a tacit approval of

their appeal being examined without a hearing.

141. The Commission recalls that in the Le Compte, Van Leuven and

De Meyere judgment (cf. Eur. Court H.R., judgment of 23 June 1981,

Series A No. 43, pp. 25-26, para. 59) the Court made the following

statement:

"(The applicants) were thus entitled to have the proceedings

conducted in public. Admittedly, neither the letter nor the

spirit of Article 6 para. 1 (Art. 6-1) would have prevented them from

waiving this right of their own free will, whether expressly

or tacitly (cf. the above-mentioned Deweer judgment p. 26,

para. 49); conducting disciplinary proceedings of this kind

in private does not contravene the Convention, provided that

the person concerned consents. In the present case the

applicants clearly wanted and claimed a public hearing. To

refuse them such a hearing was not permissible under Article 6

para. 1 (Art. 6-1), since none of the circumstances set out in its

second sentence existed."

142. In a subsequent judgment (Eur. Court H.R., Albert and Le Compte

judgment of 10 February 1983, Series A No. 58, p. 19, para. 35), the

Court developed this statement as follows:

"The rule requiring a public hearing, as embodied in Article 6

para. 1 (Art. 6-1), may also yield in certain circumstances to the will

of the person concerned. Admittedly, the nature of some of the

rights safeguarded by the Convention is such as to exclude a

waiver of the entitlement to exercise them (see the De Wilde,

Ooms and Versyp judgment of 18 June 1971, Series A No. 12,

p. 36, para. 65), but the same cannot be said of certain other

rights. Thus, neither the letter nor the spirit of Article 6

para. 1 (Art. 6-1) would prevent a medical practitioner from waiving, of

his own free will and in an unequivocal manner (see the

Neumeister judgment of 7 May 1974, Series A No. 17, p. 16,

para. 36), the entitlement to have his case heard in public;

conducting disciplinary proceedings of this kind in private

does not contravene Article 6 para. 1 (Art. 6-1) if the domestic law so

permits and this is in accordance with the will of the person

concerned (see the above-mentioned Le Compte, Van Leuven and

De Meyere judgment, Series A No. 43, p. 25, para. 59).

However, far from giving any agreement to this effect,

Dr. Le Compte had sought to have a public hearing (see

paragraph 14 above). Article 6 para. 1 (Art. 6-1) did not provide

justification for denying him such a hearing, as none of the

circumstances of exception set out in its second sentence

existed (see paragraph 34 above). Dr. Albert, for his part,

had made no similar request, but the evidence before the Court

does not establish that he intended to waive the publicity to

which he was entitled under the Convention."

143. In another case, the Commission has declared inadmissible for

failure to exhaust domestic remedies a complaint that the Swiss

Federal Court did not hold a public hearing in certain appeal

proceedings because the applicant had failed to ask expressly for a

hearing and the Court had a choice between a public and a non-public

hearing (Dec. No. 6916/75, 8.10.76, D.R. 6 p. 107). In the Adler case

(loc. cit.) the Government had, at the admissibility stage, argued

that the applicant had failed to exhaust domestic remedies because he

had not requested a public hearing. The Commission rejected this

submission since "parties to first instance proceedings do not have to

expect that their case will be decided without a public hearing", and

since no appeal lay against the judgment of the Federal Court (Dec.

No. 9846/81, 3.3.83, D.R. 32 p. 228).

144. It follows from the Court's judgment in the Le Compte, Van

Leuven and De Meyere cases that it is possible to waive the right

to a public hearing either expressly or tacitly. The express consent

of the individual concerned is therefore not necessary.

145. In its decision on the above-mentioned application

No. 6916/75, the Commission indicated that an issue of a waiver of the

right to a public hearing could arise as a result of the fact that the

applicant had asked to complete his notice of appeal in writing. The

Commission left this issue open since the fact that the applicant had

not asked for a hearing either expressly or otherwise was sufficient

for it to find that he had not exhausted the domestic remedies.

146. The Commission notes that the present applicants have not

expressly waived their right to a hearing. In determining whether

their failure to ask for a hearing can be interpreted as a tacit

acceptance of the Court of Appeal examining their appeal on the basis

of the case-file and without oral arguments, the Commission has

considered whether the applicable procedural rules would have secured

them a hearing if they had requested to have one.

147. In this regard, the Commission notes that Chapter 52 Section

10 of the Code of Judicial Procedure, which deals with appeals other

than in normal civil or criminal cases, regulates the question of

written or oral procedure before the Court of Appeal. The rule is that

the party may be heard by the court, if this is deemed necessary.

148. The Commission notes, however, that the Court is not obliged

to hold a hearing if the party requests it and there is nothing to

suggest that, in the present case, such a request would have been

granted had it been made.

149. In these circumstances, where the Swedish law and practice do

not indicate that it is even likely that a hearing would have been

held, had it been requested, the fact that no request was made cannot

be interpreted as a tacit approval of the appeal being examined by the

Court without a hearing. Consequently, the absence of a hearing

violated Article 6 para. 1 (Art. 6-1).

Conclusion

150. The Commission concludes, by seven votes to five, that there

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

result of the absence of a public hearing before the Göta Court of

Appeal.

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

151. The applicants also maintain that they had no effective remedy

before a national authority in respect of the violations of which they

complain. They rely 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."

152. Having regard to its above conclusions under Article 6 para. 1

(Art. 6-1) (para. 132), the Commission is not called upon 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 (see, inter

alia, Sporrong and Lönnroth judgment, loc. cit., p. 31, para. 88).

Conclusion

153. 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.

E. Article 14 (Art.14) of the Convention

154. The applicants also invoke Articles 14 (Art. 14) of the Convention.

However, referring to its above conclusion under Article 1 of Protocol

No. 1 (Art. P1-1) (para. 116), the Commission finds no appearance of a violation

of this Article.

Conclusion

155. The Commission concludes, by a unanimous vote, that there has been no

violation of Article 14 (Art. 14) of the Convention in conjunction with Article

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

F. Recapitulation

156. - The Commission concludes, by ten votes to two, that there has

been no violation of Article 1 of Protocol No. 1 (Art. P1-1) (para. 116).

- The Commission concludes, by a unanimous vote, that there has been a

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

absence of a procedure satisfying this provision with regard to the dispute

over the refusal to grant a permit to retain the property (para. 132).

- The Commission concludes, by seven votes to five, that there

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

result of the absence of a public hearing before the Göta Court of

Appeal (para. 150).

- 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. 153).

- The Commission concludes, by a unanimous vote, that there has been no

violation of Article 14 (Art. 14) of the Convention in conjonction with Article

1 of Protocol No. 1 (Art. P1-1) (para. 155).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

&_Opinion partiellement dissidente de M. Vandenberghe,&S

&_rejoint par M. Soyer&S

Je regrette d'être en désaccord avec la Commission en ce qui

concerne la violation de l'article 1 du premier protocole.

Comme il est exposé e.a. aux paragraphes 15 et 49 du Rapport,

l'Etat suédois a vendu, en vente publique forcée, un terrain agricole

aux requérants le 4 décembre 1979 pour le prix de 240.000 SEK.

Lors de la vente publique, aucune règle limitant la formation

du prix n'était en application. La raison en est de permettre Ã

l'administration d'obtenir un prix maximal en vue du paiement des

dettes du propriétaire précédent.

Ce même terrain a été obligatoirement vendu par les

requérants, en vente publique, en juin 1985 pour le prix de 172.000 SEK.

Les requérants n'avaient, en effet, pas obtenu le permis

approprié pour conserver le terrain agricole comme propriétaires.

Il me semble qu'un Etat ne respecte pas la règle de la

proportionnalité si, lors d'une vente publique, suite à la procédure

d'exécution de l'administration sur les biens d'un débiteur, le prix

peut se former librement mais que pour rester propriétaire il faut

obtenir une permission supplémentaire.

Et si cette autorisation n'est pas obtenue, le propriétaire

est obligé de vendre le terrain acheté en vente publique sans qu'on

tienne compte du prix payé à l'administration lors de la procédure

d'exécution forcée.

Une telle attitude manque de fair-play envers l'acheteur et me

semble déraisonnable. Comme l'exprime un vieux dicton : "Donner et

retenir ne vaut". A plus forte raison quand il s'agit d'une vente ou

l'acheteur paie un prix.

Enfin, le manque de contrôle judiciaire minimal de la

procédure utilisée contre les requérants est aussi un élément Ã

prendre en considération.

Pour ces raisons je conclus à la violation de l'Article 1 du

premier protocole.

&_Dissenting Opinion of MM. Nørgaard, Schermers, Danelius,&S

&_Sir Basil Hall and Mrs Liddy&S

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

conclusion in para. 150.

We agree that Article 6 para. 1 of the Convention was

applicable to the appeal proceedings before the Court of Appeal and

that the applicants were in principle entitled to a public hearing.

However, in our opinion, the fact that the applicants did not request

a hearing must lead to the conclusion that there has been no violation

of Article 6 para. 1.

The present case is distinguishable from the Albert and Le

Compte case (cf. para. 142) in that public hearings were excluded

under national law in that case, i.e. a request for a public hearing

was bound to fail. In the present case a request for a hearing would

have been an important element in the Court's assessment under

Chapter 52 Section 10 of the Code of Judicial Procedure of the

necessity of a hearing. In our opinion the present case resembles more

the Swiss case (No. 6916/75) mentioned in para. 143.

Given the applicants' situation under Swedish law, we consider

that the applicants could have been expected to request a hearing of

their appeal, if they wished to have such a hearing. Such a request

could have resulted in a hearing having been held before the Court of

Appeal. Their failure to request a hearing should therefore be

interpreted as a tacit approval of the appeal being examined by the

Court without a hearing.

Consequently, the absence of a hearing cannot be regarded as a

violation of Article 6 para. 1.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

3 April 1984 Introduction of the

application

15 November 1985 Registration of the

application

Examination of admissibility

12 May 1986 Commission's deliberations

and decision to invite the

Government to submit

observations in writing

21 August 1986 Government's observations

9 October 1986 Applicants' reply

4 March 1987 Commission's further deliberations

and decision to invite the parties

to a hearing

15 July 1987 Hearing on admissibility and merits

The parties were represented as

follows:

Government: MM. Corell

Strömberg

Berglin

Applicants: Mr. Ravnsborg

15 July 1987 Commission's deliberations

and decision to declare the

application admissible

Examination of the merits

15 July 1987 Deliberation on the merits

12 November 1987 Government's observations

on the merits

Date Item

5 January 1988 Applicants' observations

on the merits

7 January 1988 Government's further observations

on the merits

26 February 1988 Government's further observations

26 February 1988 Applicants' further observations

5 March 1988 Consideration of state of

proceedings

25 April 1988 Government's letter

9 July 1988 Consideration of state of proceedings

12 August 1988 Applicants' further observations

3 October 1988 Commission's deliberations

on the merits and final votes

13 October 1988 Adoption of the Report

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HÅKANSSON AND STURESSON v. SWEDEN

HÅKANSSON AND STURESSON v. SWEDEN