Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 10537/83

Väinö USKELA

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 16 July 1987)

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. 15-31) ........... 4

A. The particular circumstances of the case

(paras. 15-28) ..................................... 4

a. Proceedings relating to the issue of the

expropriation permit

(paras. 16-21) ................................. 4

b. Proceedings relating to the determination

of the terms of the expropriation

(paras. 22-24) ................................. 6

c. The transfer of the ownership of the property

(paras. 25-28) ................................. 7

B. Relevant domestic law

(paras. 29-31) ..................................... 8

III. SUBMISSIONS OF THE PARTIES (paras. 32-44) ........... 10

A. The applicant

(paras. 33-38) .................................... 10

B. The Government

(paras. 39-44) .................................... 13

IV. OPINION OF THE COMMISSION (paras. 45-75) ........... 17

A. Points at issue

(para. 45-51) ..................................... 17

B. Article 6 of the Convention

(paras. 52-65) .................................... 18

a. As to the applicability of Article 6

para. 1 of the Convention (paras. 52-57)....18

b. As to the compliance with Article 6 para. 1

of the Convention

(paras. 58-65) .............................18

C. Article 1 of Protocol No. 1 (paras. 66-74).........19

D. Recapitulation

(para. 75) ........................................21

CONCURRING OPINION BY MR. FROWEIN, joined by

MM. TRECHSEL, WEITZEL, SOYER, BATLINER and Sir Basil HALL...22

APPENDIX I HISTORY OF THE PROCEEDINGS ..................23

APPENDIX II DECISION AS TO THE ADMISSIBILITY ............25

I. INTRODUCTION

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

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

Commission.

A. The application

2. The applicant, Mr. Väinö Uskela, is a Swedish citizen born in

1904 and resident at Johanneshov. He is an artist by profession. He

was up to 23 August 1986 represented before the Commission by Mr.

Peter Nobel, a lawyer practising at Uppsala. As from 23 August 1986,

the applicant is represented by Mr. Gunnar Ljungman, a lawyer

practising at Uppsala.

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 an expropriation permit regarding the

applicant's real estate. The applicant complains that he was deprived

of his property in breach of Article 1 of Protocol No. 1 and that he

had no possibility of having the dispute relating to the issuing of

the expropriation permit examined by a tribunal satisfying the

conditions of Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 11 May 1983 and registered

on 19 August 1983. On 7 December 1983 the Commission decided, in

accordance with Rule 42, para. 2, sub-para. b of its Rules of

Procedure, to give notice of the application to the respondent

Government and to invite them to present before 25 February 1984 their

observations in writing on the admissibility and merits of the

complaint under Article 6 para. 1 of the Convention.

The Government's observations were dated 23 February 1984 and

the applicant's observations in reply were dated 29 March 1984.

On 3 October 1984 the Commission, after an examination of the

admissibility of the application, decided to invite the Government to

submit, before 30 November 1984, further observations on the

admissibility and merits of the complaint under Article 6 of the

Convention.

The Government's observations were dated 29 November 1984 and

the applicant's observations in reply were dated 14 January 1985.

On 6 March 1985 the Commission decided to invite the

Government to submit, before 26 April 1985, supplementary observations

on the admissibility and merits of the complaint under Article 1 of

Protocol No. 1.

The Government's observations were dated 23 April 1985 and the

applicant's observations in reply were dated 12 June 1985.

6. On 10 October 1985 the Commission decided to declare

inadmissible the applicant's complaint that the expropriation permit

as such was a violation of Article 1 of Protocol No. 1. The remainder

of the application was declared admissible (1).

7. The parties were then invited to submit any additional

observations on the merits of the application which they wished to

make.

The applicant submitted further observations by letter of 14

February 1986 and the Government submitted observations on 21 March

1986. These observations were transmitted to the other party for

information.

8. On 10 May and 11 October 1986 the Commission considered the

state of proceedings of the case. On 3 March 1987 the Commission

deliberated on the merits of the case and, on 7 and 8 July 1987, it

again deliberated on the merits 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 applicant on 18 May 1984.

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

G. SPERDUTI

J. A. FROWEIN

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

__________________

(1) See decision on admissibility, Appendix II.

The text of the Report was adopted by the Commission on

16 July 1987 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 Government of their obligations

under the Convention.

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

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

decision on the admissibility of the application forms Appendix II.

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

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

Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

15. The applicant had a leasehold (tomträtt) on a site and on the

building erected thereon which was named Lärarinnan 4 in the real

estate register. The 1981 assessment value of the property for tax

purposes (taxeringsvärde) was 270,000 Swedish Crowns, of which 130,000

related to the building on the property. The building has 12 flats.

The applicant's property has been subject to expropriation

proceedings and the ownership to the property has changed during the

time in question. In the following the facts are set out under three

different headings, the first relating to the proceedings leading to

the issue of the expropriation permit, the second relating to the

proceedings concerning the terms of the expropriation and the third

relating to the transfer of the ownership.

a. Proceedings relating to the issue of the

expropriation permit

16. On 13 March 1980 the Building Committee (byggnadsnämnden)

ordered, pursuant to Section 16 of the Act on Penalties and

Interventions in Cases of Illegal Constructions etc. (lagen om

påföljder och ingripanden vid olovligt byggande m.m.), that the

applicant should, at the latest on 30 May 1980, have taken certain

measures indicated in a statement of the Building Permits Office

(byggnadslovsbyrån), in order to restore the property to an acceptable

level.

The statement of the Building Permits Office referred to was

dated 4 March 1980. It reads inter alia as follows:

"On 26 June 1979 the Property Committee (fastighetsnämnden)

decided to ask the Property Office (fastighetskontoret)

'to request the Building Committee to take necessary

measures under the Building Ordinance (byggnadsstadgan) and

the Act on Penalties and Interventions in Cases of Illegal

Constructions etc. with the aim of avoiding sanitary

inconveniences, mismanagement, disfigurement etc. on the

leaseholder's right to Lärarinnan 4.

The background to this decision is numerous complaints from

persons living in the neighbourhood, tenants associations

and political organisations that the property is neglected

and that some flats are not used for dwelling purposes.

Such complaints have also been submitted to the health care

authorities and to the Building Committee'.

The property is very neglected.

The following measures must be taken on the property in order

that its state can be considered to be such as prescribed

by Section 50 of the Building Ordinance:

1. The roof must be repaired.

2. The system of outflow of water on the roof must be

repaired.

3. Broken windows must be replaced.

4. Damaged plaster must be taken away and the facade be

re-plastered.

For the garden to be in such state as prescribed by

Section 53 of the Building Ordinance, all rubbish must be

removed.

The owner of the property has been invited in writing

to submit an opinion and a proposal for measures to be taken

in order to remedy the deficiencies. In the reply it is said

that the garden has been tidied up and that the plaster works

will be started this spring. However, in the garden there is

still a stack of demolition timber and the like."

The applicant received the order from the Building Committee

on 14 May 1980. He did not comply with the order.

The applicant could have appealed against the order to the

County Administrative Board (länsstyrelsen). The time-limit for

appeal was three weeks. The applicant did appeal against the order,

but out of time. On 31 July 1980 the County Administrative Board of

Stockholm rejected the appeal for being out of time.

17. In June 1980 the municipality of Stockholm applied to the

Government for a permit to expropriate the applicant's property.

After obtaining the opinion of the County Administrative Board of

Stockholm and of the applicant, the Government decided to grant the

requested permit to expropriate. The Government's decision, which was

dated 12 November 1981, reads inter alia as follows:

"The municipality has, in support of its application, inter

alia referred to the fact that the property has for a long

time been the subject of the municipality's attention since

the building which is erected on the property is gravely run

down and in essence not inhabited. The building has three

storeys and is said to have twelve flats of which one or

possibly two are used by (the applicant). The other flats

have not, according to the municipality, been in use for a

long time. The outer area gives the impression of deficient

maintenance with broken windows, plaster falling off, untidy

garden etc. According to the municipality the property is a

very disturbing element in the housing environment. (The

applicant) has been ordered by the Building Committee under

threat of a fine to restore the property to an acceptable

level.

On the basis of the investigation it is established

that the property is neglected. (The applicant) has not

complied with the order of restoring the building and the

garden. The Government consider that (the applicant) has

shown a clear lack of interest and ability to keep the

property in order. In the Government's opinion the facts are

such that grave neglect is feared. The application should

therefore be granted.

Pursuant to Chapter 2 Section 7 of the Expropriation

Act, the Government grant the municipality of Stockholm a

permit to expropriate (the property). The matter of

expropriation should be pursued at the latest on 12 November

1982 by a summons before the court."

18. The applicant maintains that the Government's decision was

based on investigations made by the County Administrative Board

and on an application by the municipality of Stockholm, which are both

alleged to be wrong and misleading.

19. By letters of 5 March and 5 April 1982 the applicant

requested the Government to reconsider their decision in view of new

circumstances. He indicated that on 21 January 1982 he had sold the

property to a person, who intended to restore it immediately. There

were no tenants in the building any more, the only person who lived

there being the applicant.

By decision of 15 April 1982 the Government rejected the

request stating that the matter had been finally decided on

12 November 1981.

20. The applicant then applied to the Supreme Administrative Court

(regeringsrätten) for reopening of the matter (resning). This request

was refused by a decision of 16 November 1982.

21. The applicant has also complained to the Standing Constitutional

Committee of the Parliament (riksdagens konstitutionsutskott), and to the

Chancellor of Justice (justitiekanslern), but without success.

b. Proceedings relating to the determination

of the terms of the expropriation

22. On 22 January 1982 the municipality of Stockholm applied for

a summons of the applicant before the Real Estate Court

(fastighetsdomstolen) of the Stockholm District Court (tingsrätt) in

order to have the compensation terms for the expropriation determined.

The municipality also requested an advance transfer of the ownership.

23. On 2 July 1982 the Stockholm District Court, after having

inspected the property, refused the request for advance transfer

stating the following:

"The Court has observed the following at the inspection.

There is nothing remarkable to note as regards the roof.

One chimney needed repair or rebuilding. The walls of the

building needed replastering badly. The plaster had fallen

off in certain places, but these parts of the walls did not

show any considerable damage. Some window panes were

missing and had been replaced by boards. In some balconies

the girders had rusted and the surface was cracked. Windows

and door-frames needed painting. The apartments were in need

of total repair. In those parts of the building that were

not heated, the water had been drained off.

From what could be seen at this inspection, the building is

in great need of repair, but this need does not call for an

advance transfer of ownership to the municipality before the

Court has ruled on all the issues of this case.

The request for advance transfer of ownership cannot

therefore be granted."

24. Subsequently the municipality, after deciding not to pursue

the expropriation in view of the change of owner, withdrew its

application before the Real Estate Court which, on 24 November 1986,

struck the case off its list.

The municipality's decision to withdraw its action before the

Court was based inter alia on a report on an investigation by the

Property Office, dated 28 April 1986, submitted to the Property

Committee. From this report it appears that the property had been

partly restored during 1982. Thus, the facade and one of the

staircases with six flats had been restored and the cellar had been

partly restored. In the report it was estimated that the remaining

restoration of the property would cost roughly 1 - 1.5 million Swedish

crowns.

c. The transfer of the ownership of the property

25. On 21 January 1982 the applicant sold his leaseholder's right

for 850,000 Swedish Crowns. The buyer Mr. S, obtained a preliminary

registration (vilande lagfart) of the acquisition. A condition for

acquiring a property for tenancy purposes is that the buyer obtains a

permit from the Rent Board (hyresnämnden) to purchase the property .

The rules are laid down in the Act on the Acquisition of Property for

Tenancy Purposes (lagen om förvärv av hyresfastighet). Mr. S submitted

an application for such a permit, but he later withdrew his

application, and the purchase thereby became void.

The property was then sold by the applicant to a flat-

owners' association (bostadsrättsförening) on the same conditions as

had previously been agreed with Mr. S.

This sale was considered under the Act on the Acquisition of

Property for Tenancy Purposes by the Rent Board and, upon appeal, by

the House and Tenancy Court (bostadsdomstolen), which on 1 November

1984 did not approve the sale. The sale thus became void.

26. In the meantime, on 19 November 1982, the flat-owners'

association had obtained a loan of one million SEK. Security for

the loan was given by way of a mortgage on the leasehold.

The loan was not duly paid and the creditors instituted

litigation against the applicant requesting that the loan, including

interest and costs, be paid from the applicant's property.

This claim was granted by the District Court of Stockholm on

27 December 1983 and its decision was confirmed by the Svea Court of

Appeal (Svea hovrätt) on 28 June 1984. On 19 February 1985 the

Supreme Court (högsta domstolen) refused to grant leave to appeal.

The applicant's petition for re-opening of the proceedings was

rejected by the Supreme Court on 30 August 1985.

27. As a result the applicant's property was sold by the

Enforcement Office (kronofogdemyndigheten) at a public auction on

4 February 1986 to a building company for 1,841,OOO SEK. Before the

public auction the Enforcement Office had requested from an

independent company an assessment of the value of the property. The

assessment resulted in a value of 1,300,000 SEK.

The applicant appealed against the public auction. The appeal

was rejected by the Court of Appeal on 4 March 1986. Subsequently, the

auction acquired legal force.

The distribution to creditors took place on 5 March 1986. The

applicant did not receive any money.

28. On 7 April 1986 the purchase-deed was issued and on

10 April 1986 the applicant was evicted from the property by the

Enforcement Office.

B. Relevant domestic law

29. The legislation applicable in the applicant's case is the 1972

Expropriation Act (expropriationslagen). Under this Act,

expropriation is carried out in two stages. In the first stage the

Government - with some exceptions - decide whether expropriation

should be authorised. If expropriation is to take place, an

expropriation permit is issued. The Government's decision is final. A

decision to grant an expropriation permit does not automatically lead

to expropriation. It entitles the holder of the permit to continue to

the second stage, i.e. to institute expropriation proceedings before

the Real Estate Court. An expropriation permit shall indicate the

latest date at which the applicant, normally a municipality, has to

bring the case to the Real Estate Court for settlement, inter alia,

of the transfer date and the compensation. The expropriation is

completed when the compensation has been fixed and paid. The Real

Estate Court cannot review the expropriation permit as such. A

decision by the Real Estate Court can be appealed to the Court of

Appeal and from there to the Supreme Court.

30. Under the Expropriation Act, expropriation permits may be

obtained by municipalities for various reasons. Under Chapter 2,

Section 7, permits may be granted for properties suffering from gross

neglect. This section reads:

(Swedish)

"Expropriation får ske för att försätta eller hålla fastighet

i tillfredsställande skick, när grov vanvård föreligger eller

kan befaras uppkomma."

(English)

"Expropriation may be granted, for the purpose of restoring

the property to a satisfactory condition or of maintaining

it in such a condition, when the property is gravely

neglected or there is a risk of such neglect."

When interpreting the condition "gravely neglected", guidance

can be found in the Government's proposal of 1970 for amendments of

the 1917 Act on Expropriation, where it is stated that neglect of

buildings for tenancy purposes affects mainly the tenants. Therefore,

it was considered important that actions could be taken at such an

early stage as to prevent undue difficulties arising for the tenants.

Thus, it was thought that expropriation should be possible, not only

when gross neglect is apparent, but also when there are firm reasons

to believe that a building may be neglected in the future.

In the legislative procedure the problems of assessing the

condition were also discussed. It was noted that the evidence

needed could vary from case to case. One factor, which would

constitute a reason for expropriation, could be that the owner had not

complied with orders to maintain his property. Another could be that

there was evidence that the owner systematically neglected his

property. A sufficient reason for expropriation is that the owner has

shown a lack of interest in or capability of maintaining his property.

There must thus be evidence of defects on the property, as well as a

lack of interest on the part of the owner in maintaining the property.

31. Expropriation may not be granted if the purpose can be

appropriately achieved in some other way or if the general or individual

disadvantages of the expropriation prevail over the advantages which can

be gained from such an action (Chapter 2, Section 12 of the

Expropriation Act).

III. SUBMISSIONS OF THE PARTIES

32. The parties' submissions on the merits have been made both at

the admissibility stage and at the merits stage. The following is a

summary of these submissions.

A. The applicant

33. Article 1 of Protocol No. 1 prescribes that 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.

Chapter 2, Section 12 of the Expropriation Act provides

that expropriation should not be granted, if the purpose could be

appropriately achieved in some other way. If the case is one of grave

neglect of property or risk thereof, the obvious action first to be

taken by the authorities is to order the owner under threat of a fine

to take the necessary steps to maintain or restore the property. This

possibility is also open to the authorities according to the Act on

Penalties and Interventions in Cases of Illegal Constructions etc.

Sections 16 and 17 of that Act allow the authorities to order the

owner to take appropriate steps under threat of a fine. It is

therefore submitted that, if the case had been dealt with according to

Swedish law, the applicant should have been ordered by the

municipality to repair the property or risk being fined.

34. The Government's decision of 12 November 1981 concerning the

expropriation permit indicated that the applicant had been given such

an order and that he had been fined. This is not, however, correct.

The Government as well as the County Administrative Board accepted an

incorrect statement by the municipality.

The essential element in the applicant's grievances is that no

other ways were tried before the municipality applied for the

expropriation permit. No investigation was made into the applicant's

economic possibilities to repair and maintain the property and no

possibility was offered to the applicant to defend his civil rights

and proper interest before any impartial tribunal or other authority.

35. The applicant describes the background of the expropriation

permit as follows:

On 30 November 1972 the District Court of Stockholm rejected a

claim from the municipality of Stockholm that the applicant be

obliged, under threat of a fine of 5,OOO SEK, to remove certain

storage from his property. The Court apparently found that the

municipality's grievances against the applicant and the way he took

care of his property were legally unfounded. However, as from that

date the politicians and the authorities of Stockholm sought to

achieve their aim without litigation before public and impartial

tribunals. The question has been raised as to what is at the root of

the conflict between the applicant and the municipality. A very

probable answer has been suggested in the fact that the tenants'

association, which has political influence in particular on the

social-democratic party, of which Mr. Hulth is a powerful member

in his capacity as a member of the city council, has demanded action

against the applicant with the purpose of forcing him to allow more

tenants into the property. This is an assumption and not a proven

fact. Reference is made to a document of 7 November 1978 produced by

the Legal Department (juridiska avdelningen) of the Stockholm City

Council which concludes as follows:

"From the above presented investigation it appears that none of

the legal remedies under consideration could be used in order

to force the leaseholder to make the building on Lärarinnan 4

fit for dwelling and lease the flats. From the sections

concerning the Building Ordinance (byggnadsstadgan) and

expropriation, it appears that if the leaseholder fails

several times to comply with the Building Committee's orders

aiming at repairing the building's exterior then thereafter if

the exterior is so gravely neglected that grave neglect according

to the Expropriation Act could be considered to be at hand,

then expropriation could be resorted to."

On 14 May 1980 the applicant received an order from the

Property Office of the municipality of Stockholm, dated 13 March 1980.

It ordered the applicant to undertake certain repairs on the exterior

of the building. The claim to remove certain storage from the

property, which had been rejected by the court in 1972, was repeated.

The order referred to an official statement from a subdivision of the

office, the Building Permits Office (byggnadslovsbyrån), dated 4 March

1980. The applicant was ordered to complete the works before the end

of May 1980. This order would have been unreasonable even if it had

been communicated to him closer to its date of issue, on 13 March

1980, and not, as was the case, on 14 May 1980.

The applicant points out that the order which applied to him

was not subject to a conditional fine in case of non-compliance. Any

assertion to the contrary is an erroneous assumption by the

Government. In the applicant's opinion this issue is of the greatest

importance, as it shows that the municipality of Stockholm has not

exhausted other remedies to achieve their purpose. Thus the granting

of expropriation was in violation of Chapter 2, Section 12,

sub-section 1 of the Expropriation Act.

Before the expropriation permit was granted by the Government

on 12 November 1981, the applicant sent several letters to various

authorities describing measures taken or planned for the maintenance

of the property. But he never had the opportunity of stating the

true facts and his views or arguments before any independent

or impartial body.

36. The applicant refers to the Government's statement that an

expropriation permit is issued in accordance with the various

conditions in the law. Although the Government are a political body

the decision is not entirely political, as it is subject to the

provisions of the law. A problem arises, in the applicant's view,

when the Government's decision has not been arrived at in accordance

with the law, as in the present case, where the decision was based on

incorrect information from local authorities. It is the absence of

any effective legal remedy against such an unlawful decision, which

forms the basis of the applicant's complaint.

It is understandable that decisions in expropriation cases are

entrusted to the Government in order to ensure that the same practice is

applies in all cases. But the possibility of judicial control as to

the lawfulness of the decision would not undermine the efforts to

make the practice consistent.

The procedure in matters of expropriation is of an

administrative nature and does not include any public hearing by an

independent and impartial tribunal. As the permit was granted by the

Government there is no other simple legal remedy since no appeal

lies against the Government's decision.

37. As regards the condition "public interest" in Article 1 of

Protocol No. 1, the applicant submits that the public need or public

interest referred to here is subjectively alleged by the municipality,

but has never been objectively tested against the conditions of the

law, nor has there been any examination of the possibilities of trying

other appropriate ways to achieve the maintainance of the property.

At the time there were no tenants on the property. There was no

question of any disadvantages for neighbours, passers-by or children

as has been incorrectly alleged by the municipality.

As the property was repaired and restored, the question

remains why the expropriation had to go on, if the only purpose was to

prevent neglect. If the Government find that they have no possibility

to revoke the expropriation permit without the cooperation of the

municipality, this question should be directed to the municipality.

The applicant can agree with the Government that the

expropriation permit is not the sole factor affecting the value or use

of the property, but it is certainly a factor of the greatest

importance. No similar plan had been published before the

expropriation, as the sole ground for this expropriation was said to

be the grave neglect or the risk of grave neglect of the property and

nothing else.

The Government consider that the applicant has no reason for

this complaint, "since he has brought the expropriation upon himself".

This argument does not appear well-founded because this is exactly

what the entire dispute is about. The argument is self-defeating.

The applicant has never had the opportunity of defending himself

against the accusations of grave neglect. No evidence was required to

support these accusations by the municipality.

The property was in fact locked and no one could enter it

without the permission of the owner. The applicant therefore asserts

that no representative of the municipality, the County Administrative

Board or any other officer has even inspected the property other than

from the street.

If the proceedings in this case are correct, it means that any

civil servant of the municipality could just pass by any property and

decide that it was gravely neglected or that there was a risk of such

neglect and then draw up a report for the purpose of applying for an

expropriation permit without the owner having any real possibility of

refuting what has been alleged against him.

38. The applicant concludes that he has been the victim of a

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

B. The Government

39. The Government recall that in its decision on the

admissibility of the case (Appendix II) the Commission made the following

statement:

"As regards the complaint about the fact that the

expropriation procedure is now being carried out, the

Commission recalls that the applicant has complained that

the expropriation is at the same time illegal under Swedish

law and in violation of Article 1 of Protocol No. 1, since it

is not justified irrespective of the award of compensation.

The Commission finds that in this respect there were no

effective remedies available to the applicant."

The Government submit that they are not sure as to how this

statement should be construed, considering the fact that the

Commission has declared inadmissible the complaint that the

expropriation permit as such was a violation of Article 1 of Protocol

No. 1. With reference to the above statement, the Commission

concludes that the application cannot be declared inadmissible with

reference to the six months' rule. The implication of this

reasoning by the Commission and which really belongs to the spheres of

Articles 6 and 13 of the Convention will be dealt with below. In the

event that the Commission considers that there are still issues

remaining under Article 1 of Protocol No. 1, the Government submit the

following.

40. As the case now stands the property was never expropriated

while in the hands of the applicant. The property was sold at a

public auction. From the judgment of the District Court it appears

that the applicant claimed that he had been deceived by Mr. S.

The applicant had been cheated both in connection with the sale of the

property and when the loan was taken. The idea was that the building

should be repaired. The applicant and the association had accepted an

offer for renovation of the inside of the building for SEK 42,000 and

agreed that the costs for external renovation must not exceed SEK

90,000. He had agreed with Mr. S that the entire renovation must

not cost more than SEK 132,000. Mr. S was not authorised to

mortgage the property for a higher amount. This fact should have

been apparent to the creditor. The applicant accepted the fact that

certain flats had been renovated but contested that more than

SEK 200,000 had been invested in the leaseholder's right. He was not

aware of the fact that the association had borrowed one million SEK

until he read about it in a newspaper some time during spring 1983.

The Government's decision of 12 December 1981 to issue the

expropriation permit refers to an order from the Building Committee

that the applicant should repair his house. This order was not, as

is erroneously indicated in the decision, issued on penalty of a fine.

This error might be the result of a mixing up of different kinds of

orders related to the property.

41. Due to the latest development, the situation has in some ways

become partly similar to the one in the Sporrong and Lönnroth Case

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

Series A no. 52). An expropriation permit was granted, but no

expropriation took place. Following the Court's line of argument

in the said case, cf. also case of James and Others (Eur. Court H.R.,

James and Others judgment of 21 February 1986, Series A no. 98, para.

37), one can first conclude that the second sentence of Article 1

para. 1 of Protocol No. 1 is not applicable. With reference to the

Court's reasoning in the Sporrong and Lönnroth case the second

paragraph of the same Article is not applicable either. What remains

to be examined is thus Article 1 para. 1 first sentence. This raises

the question whether too heavy a burden was put on the applicant in

relation to the general interest being pursued.

In the Government's opinion this is not the case. According

to the case-law of the Court and the Commission the Contracting States

are given a wide discretion as far as the grounds for expropriations

are concerned. The underlying purpose of Chapter 2, Section 7 of the

Expropriation Act is a legitimate one. The applicant could have

avoided the measures taken by the municipality by actions which had in

fact been in his own favour. It should be noted that, in order to

avoid an expropriation, the owner merely has to keep his property in

order. It is obvious that this is in his own interest from all

possible aspects and is not a detrimental obligation. Instead the

applicant has persistently refused to abide by the general obligations

which are incumbent upon all owners of tenants' houses in Sweden.

When, after a long period of negligence on the part of the applicant,

the municipality decided to apply for an expropriation permit, the

Government, which are responsible for the application of the

Expropriation Act as far as the granting of expropriation permits is

concerned, found that the requirements of the said provision were met.

The Government question whether the Commission should go beyond that

judgment and enter into the application of a Contracting State's

national law (cf. inter alia case of James and Others, loc. cit.).

Whether the applicant should have had the possibility of bringing this

decision before a court is of course a separate question, which must

be dealt with under Article 6 of the Convention.

The question remains whether an owner should be granted the

possibility of having the issue reviewed, once an expropriation permit

has been issued. In the Government's view such a procedure could very

well be applied. But Swedish law does not foresee this possibility,

and there is no obligation under the Convention to guarantee such a

possibility. The actual ground for expropriation differs from other

expropriation provisions under Swedish law. As previously emphasised,

it is the owner himself who is responsible. The expropriation permit

is the ultimate reaction to a continuing or accelerating mismanagement

of the property. Thus, in the Government's opinion the Convention

does not require that the applicant should have any remedies once "the

point of no return" - the expropriation permit - has been passed.

The municipality can always apply for the withdrawal of an

expropriation permit, if the applicant shows an inclination to restore

the building. This was, however, not done in the present case, since

the municipality thought that such a measure should not be taken as

long as there was a risk of continuous gross negligence.

The Government observe in this context that the repairs made on

the property in 1982 were made after the issuing of the appropriate

permit.

42. As regards Article 6 of the Convention, the Government submit

that the issues to be examined are whether the decision of the

Government to grant the expropriation permit was a "determination" of

the applicant's "civil rights and obligations" within the meaning of

Article 6 para. 1 of the Convention and, if so, whether the applicant

had the benefit of a "fair and public hearing" before "an independent

and impartial tribunal" for the purpose of that determination.

A decision on this question will be of great importance for

existing Swedish legislation. The European Court of Human Rights held

in the Sporrong and Lönnroth case (loc. cit., para. 83) that "the

expropriation permits affecting the applicants' properties related to

a 'civil' right and, as regards their period of validity, gave rise to a

'contestation' (dispute), within the meaning of Article 6 (1)".

This judgment has been discussed thoroughly within the

competent Swedish ministries. The Government have come to the

conclusion that it is not all that clear what conclusions should be

drawn from this expression in the judgment. The Government have noted

that the situation of the owners of the two Stockholm properties was

extraordinary. It also appears that the Court took special note of

the long periods of validity of the permits, since this is expressly

mentioned in the judgment. It also appears that the Court took note

of the combined effects of the permits and the burden incurred by

prohibitions on construction which had been imposed on the properties

(loc. cit., para. 81).

The Government have also noted the joint dissenting opinion by

five of the judges, and especially their statement that the

expropriation permits were not directly determinative for private

rights, but for the rights under public law of the City of Stockholm.

In their opinion judicial review, at least of the lawfulness of the

measures taken, might be desirable also in such cases. However, they

found that this was not required by Article 6 para. 1 of the

Convention.

The Government consider that there is great merit in the

reasoning of these judges. The granting of expropriation permits is a

necessary means for governments and other authorities to make

decisions concerning the use of land, based on general political,

economic and other considerations in the interest of the general

public. Such decisions are also considered necessary under the

Convention, hence the restriction in Article 1 of Protocol No. 1.

The Government refer in this context to their reasoning in the

Sporrong and Lönnroth case and recall that the Commission held in that

case that Article 6 was not applicable to decisions on expropriation

permits. It is true that the Court has handed down judgments which -

like the judgment in the Sporrong and Lönnroth case - indicate that

the scope of Article 6 is wider than many states might have realised

when they ratified the Convention. The Government have construed the

judgment in the Sporrong and Lönnroth case so as not to require

further amendments to be made to the Swedish legislation on

expropriation apart from an amendment which now in principle limits

the validity of expropriation permits to a period of one year with a

narrow possibility of further prolongation. This opinion has been

examined by the Committee of Ministers, which on 25 October 1985

decided without comments that it had exercised its function under

Article 54 of the Convention (Res. (85) 17).

The Government request the Commission to consider these

circumstances in examining the present application. The facts of the

case should be sufficiently clear. The effects of the grant of an

expropriation permit in Sweden should also be sufficiently clarified.

Reference is made to the Government's earlier submissions as well as

to the judgment in the Sporrong and Lönnroth case.

The Government draw the Commission's attention to the fact

that since the spring of 1986, legislative measures are under

consideration which are supposed effectively to remedy any possible

procedural flaw that might presently exist in the Swedish legal system

in view of the individual's rights under Article 6 para. 1 of the

Convention. A first draft of the proposed new legislation, as well as

the considerations underlying it, is contained in a memorandum

released in the summer of 1986 by the Ministry of Justice (Ds Ju

1986:3).

In short, the new legislation, if adopted, would open a

possibility to challenge a wide range of administrative decisions,

including decisions taken by the Government, before the Supreme

Administrative Court without any requirement of having to obtain a

leave to appeal. Among matters which are particularly referred to in

the memorandum, and which would come within the scope of the new

provisions, are matters covered by the legislation on expropriation.

A Government Bill on the matter is expected to be presented to the

Riksdag during 1987. In case the new provisions are adopted,

decisions on expropriation of the kind disputed in the present case

can be challenged before the Supreme Administrative Court.

43. Should the Commission come to the conclusion that the

expropriation permit concerned the applicant's "civil rights and

obligations", the Government admit that the issue as to whether

deprivation of the property may take place was finally determined by

the Government's decision of 12 November 1981. The Government concede

that this decision was not handed down after a public hearing or by an

independent and impartial tribunal.

44. The Government conclude that there has been no violation of

Article 1 of Protocol No. 1 or of Article 6 of the Convention.

IV. OPINION OF THE COMMISSION

A. Points at issue

45. In its decision on admissibility, the Commission declared

inadmissible, for failure to comply with the six months' rule, the

complaint that the expropriation permit as such was a violation of

Article 1 of Protocol No. 1 (P1-1). The remainder of the application was

declared admissible.

46. It follows from the admissibility decision that the

Commission has retained two issues for an examination on

the merits. First, the issue under Article 6 (Art. 6) of the Convention

whether the decision of the Government to grant the expropriation

permit was a "determination" of the applicant's "civil rights and

obligations" and, if so, whether the applicant had the benefit of a

"fair and public hearing" before "an independent and impartial

tribunal" for that determination. Second, the issue whether the fact

that the expropriation procedure was being carried on under the

authority of the expropriation permit was in breach of Article 1 of

Protocol No. 1 (P1-1).

47. Under Article 1 of Protocol No. 1 (P1-1) the applicant complains that

the expropriation permit was issued on the basis of incorrect and

misleading information and that the expropriation procedure was

continued after the applicant had restored his property. The

applicant also complains that the existence of the expropriation

permit affected the value and use of the property.

48. However, under the admissibility decision the scope of the

admissible part of the application does not cover the expropriation

permit of 12 November 1981 as such. The applicant's main submission

as regards the period thereafter is that he did in fact repair the

property to such an extent that the expropriation was no longer

necessary and the expropriation permit should accordingly have been

cancelled.

49. The Commission observes that on 4 February 1986 the

applicant's property was sold at a public auction pursuant to a court

order that a loan, for which the property had been mortgaged, be paid

out of the property. This enforced sale of the applicant's property

is not a matter which the Commission is called upon to examine.

50. As a result of the change of ownership, the municipality of

Stockholm withdrew its action for expropriation of the property and,

on 24 November 1986, the District Court of Stockholm struck the case

off its list. Accordingly, the result of these subsequent events was

that the applicant's property was never expropriated under the

authority of the expropriation permit.

51. In these circumstances, the issues which remain to be examined on the

merits are the issue under Article 6 (Art. 6) of the Convention and the

remaining issue under Article 1 of Protocol No. 1 (P1-1).

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

a. As to the applicability of Article 6 para. 1 (Art. 6-1) of the

Convention

52. As follows from the admissibility decision, the issues which

have to be examined under Article 6 (Art. 6) of the Convention are: the

question whether the Government's decision to grant the expropriation

permit involved a determination of the applicant's civil rights or

obligations and, if so, whether the applicant had the benefit of a

procedure satisfying the conditions of Article 6 (Art. 6) of the Convention in

respect of that determination.

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

"In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to

a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

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

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

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

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

Series A no. 52, pp. 29-30, paras. 80-81 and 83 and Bodén v. Sweden,

Comm. Report 15.5.86, paras. 33 and 36).

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

56. The Commission finds that in the present case there was a

"genuine" and "serious" dispute, in particular as to whether the

decision to issue the expropriation permit was in conformity with

Swedish law (cf. paras. 33 - 35).

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

applicable to the dispute over the expropriation permit.

b. As to the compliance with Article 6 para. 1 (Art. 6-1) of the

Convention

58. It must finally be examined whether the applicant had the

possibility of submitting the dispute as to the issuing of the

expropriation permit to a "tribunal" satisfying the conditions

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

59. The Government admit that the Government's decision to grant

the expropriation permit was not given after a public hearing or

by an independent and impartial tribunal.

60. It is obvious in the Commission's opinion that the proceedings

before the Government relating to the issuing of the expropriation

permit did not constitute proceedings before a "tribunal" within the

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

61. As regards subsequent proceedings the Commission notes that in

the proceedings which were instituted before the Real Estate Court the

applicant could not challenge the lawfulness under Swedish law of the

expropriation permit.

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

permit a review of their decision to issue an expropriation permit and

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

63. In this context the Commission recalls that in the Sporrong

and Lönnroth judgment the Court examined whether a municipal appeal

against the decision of the City of Stockholm to request the

Government to issue an expropriation permit, or an application

to the Supreme Administrative Court for the reopening of the

proceedings, directed against the decision of the Government, were remedies

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

Convention. The Court held that these remedies were 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).

64. It follows that the applicant did not have at his disposal a procedure

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

dispute which arose over the expropriation permit.

Conclusion

65. The Commission concludes by a unanimous vote that there has

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

C. Article 1 of Protocol No. 1 (P1-1)

66. Article 1 of Protocol No. 1 (P1-1) reads as follows:

"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 contribrutions or penalties."

67. In view of the scope of the admissible part of the application

(cf. para. 48) and the subsequent factual development (cf. paras. 49

and 50), the Commission considers that there is only one issue left

to be examined under Article 1 of Protocol No. 1 (P1-1), namely the applicant's

claim that since he restored the property the expropriation permit

should have been cancelled.

68. The Commission considers that no issue arises under Article 1

para. 1 (Art. 1-1) second sentence since the applicant's property was never

expropriated under the authority of the expropriation permit.

However, the maintenance in force of the expropriation permit for more

than four years while the property was in the hands of the applicant

constituted an interference with his right to the peaceful enjoyment

of his possessions irrespective of the fact that the property was

eventually not expropriated.

Although the enjoyment of the property was interfered with by

the expropriation permit, the Commission notes that the applicant was

still entitled to make normal use of the property. He could sell and

mortgage it. Moreover, there is no indication that the value of the

property substantially decreased as a result of the expropriation

permit.

69. It must next be examined whether the interference created by

the pending expropriation permit was justified under Article 1 para. 1

first sentence of Protocol No. 1 (P1-1) (cf. Sporrong and Lönnroth judgment,

op. cit., pp. 24-28, paras. 61-74). For this purpose the Commission

must determine whether a fair balance was struck between the demands

of the general interest of the community and the requirements of the

protection of the individual's fundamental rights.

70. The Commission observes that the expropriation permit was

based on Chapter 2, Section 7 of the Expropriation Act under which

provision a property may be expropriated for the purpose of restoring

or maintaining properties which have been gravely neglected or

where there is a risk of such neglect.

71. The Commission considers that where an expropriation permit is

based on the failure of a property owner to keep his property in

order, an issue may arise under Article 1 of Protocol No. 1 (P1-1) if the

expropriation permit is maintained, irrespective of whether the

property owner has restored the property. The Commission observes,

however, that in the present case the reason for the expropriation

permit was not simply that the applicant had failed to perform certain

repairs on his property but also that it was feared that the property

would be gravely neglected. This fear was based in particular on the

applicant's lack of interest and his inability to keep the property in

order.

72. The Commission moreover notes that the expropriation permit

was in force from 12 November 1981 and that the property was sold by

the Enforcement Office in February 1986. It is established that while

the applicant undertook certain repairs on his property after the

expropriation permit was issued, such repairs only started in July

1982. It is however also established that in April 1986, the property

was still in need of substantial repairs, the investigation made by

the local authority having estimated the costs of the remaining

repairs at 1-1.5 million Swedish Crowns (para. 24).

73. In these circumstances the Commission considers that it has

not been established that the repairs undertaken by the applicant had

removed the grounds for the original expropriation permit to the

effect that the general interest pursued by the maintenance in force

of the expropriation permit had become disproportionate to the

interference with the applicant's rights created thereby. Accordingly

the Commission considers that during the period in question, the

Government were justified under Article 1 of Protocol No. 1 (P1-1) in finding

that the grounds for the expropriation permit were still valid.

Conclusion

74. The Commission concludes by a vote of 17 against one that

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

D. Recapitulation

75. - The Commission concludes by a unanimous vote that there has

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

(para. 65)

- The Commission concludes by a vote of 17 against one that

there has been no violation of Article 1 of Protocol No. 1

(P1-1) (para. 74).

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

Concurring Opinion by Mr. J. A. Frowein, joined by

MM. Trechsel, Weitzel, Soyer, Batliner and Sir Basil Hall

Although we agree that there has been no violation of

Article 1 Protocol No. 1 we cannot accept the reasoning developed

in paras. 66-73 of the Report.

Article 1 is a provision which is drafted in a way sometimes

creating misunderstandings. While the fundamental right guaranteed is

to be found in para. 1 first sentence, para. 1 second sentence as well

as para. 2 contain specific restrictive clauses. Para. 2 covers the

legislation necessary for controlling the use of property, while

para. 1, second sentence provides for the possibility of expropriation.

Both restrictive clauses have to be interpreted in the light of the

guarantee in para. 1 first sentence which must be an effective one.

What we cannot accept, however, is the approach of the

majority to justify a restriction on the basis of Article 1 para. 1

first sentence.

In the present case an expropriation permit was issued and

remained in force for more than four years. However, as no

expropriation finally took place, we agree with the majority that

under such circumstances the deprivation rule is not applicable in its

full sense. Nevertheless, the existence of an expropriation permit of

course must have some consequences for the possibility to sell or

mortgage a property. It is therefore an interference with the right

to the peaceful enjoyment of one's property.

When analysing such an interference under Article 1, regard

must be had to the aim of the legislation on which the expropriation

permit is based. When, as in the present case, the expropriation permit

was issued to avoid a situation where the property is gravely

neglected this is intended to be a measure of "control" of the use of

property. The intention of the legislation, as we understand it, is to

protect the property in the general interest.

It follows therefore that a difficult issue under the

Convention would arise where the property-owner had no possibility to

avoid expropriation by restoring his property. We have not been fully

informed about the Swedish legislation in that respect. We could not

see a deprivation to be in the public interest where a property-owner

has within a reasonable time restored the property after being

requested to do so. We would also consider it to be a non-

proportionate measure of control under para. 2 to uphold an

expropriation permit with the legal and practical effects it has where

the property has been fully restored.

Since it has not been established that the property had been

fully restored when the applicant lost it through an enforcement

procedure we find no violation of Article 1.

&_APPENDIX I&S

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________________

11 May 1983 Introduction of the

Application

19 August 1983 Registration of the

Application

Examination of Admissibility

7 December 1983 Commission's deliberations

and decision to invite the

Government to submit

observations on the

admissibility and merits

of the application (limited

to Article 6 para. 1 of the

Convention)

23 February 1984 Government's observations

29 March 1984 Applicant's reply

3 October 1984 Commission's further

deliberations and decision

to invite the Government

to submit supplementary

observations on the

admissibility and merits

of the complaint under

Article 6 para. 1 of the

Convention

29 November 1984 Government's observations

14 January 1985 Applicant's observations

Date Item

_________________________________________________________________________

6 March 1985 Commission's further deliberations

and decision to invite the Government

to submit supplementary observations

on the admissibility and merits of

the complaint under Article 1 of

Protocol No. 1

23 April 1985 Government's further observations

12 June 1985 Applicant's further observations

10 October 1985 Commission's deliberations

and decision to declare the

application partly

admissible and

partly inadmissible

Examination of the merits

14 February 1986 Applicant's letter

containing observations

on the merits

21 March 1986 Government's observations

on the merits

29 April 1986 Letter from the applicant

10 May 1986 Consideration of state of

proceedings and decision

of the Commission not to

hold a hearing in the case

11 October 1986 Consideration of state of

proceedings

3 March 1987 Commission's deliberations

on the merits

7 and 8 July 1987 Commission's deliberations

on the merits and final votes

16 July 1987 Adoption of the Report

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USKELA v. SWEDEN

USKELA v. SWEDEN

LEXI