Lexploria

I. INTRODUCTION

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

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

Commission.

A. The application

2. The applicant is a Swedish citizen born in 1939 and resident

at Falun. He is a car driver by profession. He is represented before

the Commission by Mr. Per-Gunnar Viklund, a lawyer practising at

Falun.

3. The case relates to the issuing of an expropriation permit

regarding the applicant's real estate. The applicant complains that

the expropriation permit was issued in breach of Article 1 of Protocol

No. 1 (P1-1) 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 (Art. 6-1) of

the Convention.

B. The proceedings

4. The application was introduced on 10 January 1984 and

registered on 4 May 1984. On 3 October 1984 the Commission decided,

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

Procedure, to bring the application to the notice of the respondent

Government and invite them to submit written observations on the

admissibility and merits of the complaint under Article 6 para. 1

(Art. 6-1) of the Convention.

The Government were represented by their Agent, Mr. Hans Corell,

Under-Secretary at the Ministry of Foreign Affairs. The Government's

observations were dated 10 January 1985 and the applicant's

observations in reply were dated 1 March 1985.

On 7 May 1985 the Commission, after an examination of the

admissibility of the application, decided to invite the Government to

submit written observations on the admissibility and merits of the

complaint under Article 1 of Protocol No. 1 (P1-1).

The Government's observations were dated 24 June 1985 and the

applicant's observations in reply were dated 4 September 1985.

5. On 5 December 1985 the Commission decided to declare

admissible, as raising issues under Article 6 of the Convention

(Art. 6), the applicant's complaint of the absence of a determination

by a tribunal in respect of the issue of an expropriation permit. The

remainder of the application was declared inadmissible (1).

_______________

(1) See decision on admissibility, Appendix II.

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6. The parties were then invited to submit any additional

observations on the merits of the issue under Article 6 (Art. 6)

of the Convention which they wished to make.

The Government submitted further observations by letter of

19 February 1986 and the applicant submitted his observations on

26 February 1986. These observations were transmitted to each party for

information.

7. On 8 March 1986 the Commission considered the state of

proceedings of the case. On 15 May 1986 the Commission deliberated on

the merits of the case and took the final votes in the case.

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

Procedure was granted to the applicant on 15 March 1985.

9. Following its decision on the admissibility the Commission,

acting in accordance with Article 28 para. b (Art. 28-b) of the

Convention, placed itself at the disposal of the parties with a view

to securing a friendly settlement of the matter. 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

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

pursuance of Article 31 (Art. 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

The text of the Report was adopted by the Commission on 15 May 1986

and is now transmitted to the Committee of Ministers in accordance

with Article 31 para. 2 (Art. 31-2) of the Convention.

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

(Art. 31-1) 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 respondent Government of their obligations under the

Convention.

12. 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.

13. The full text of the pleadings of the parties, together with

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

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The Particular Facts of the Case

14. The applicant owns together with Mr. B.B. the properties

Källviken 1:18, 1:25 and 1:26.

On 30 June 1977 the Municipal Assembly (kommunfullmäktige) of Falun

adopted a regional plan, which included the applicant's properties, in

order to develop a housing estate. On 9 February 1978 the

municipality of Falun decided to request an expropriation permit for

the area in question.

15. On 1 March 1979 the Government decided to issue an

expropriation permit with respect to inter alia the applicant's

properties. The basic reasons for the expropriation permit were that

the municipality intended to reconstruct the area creating inter alia

1,800 flats, schools and other services. The applicant opposed the

expropriation since he wished to continue to live in his parents'

house, situated on Källviken 1:26, together with his mother and since

it was doubtful whether the property was needed for the plans of the

municipality and since in any event only part of the property was

needed. The Government considered, however, that the municipality had

shown that the applicant's property, Källviken 1:26, was needed for a

green belt zone, and the Government concluded that the conditions for

expropriation laid down in the Expropriation Act (expropriationslagen)

were satisfied.

16. The Government indicated in the decision that the

expropriation permit should be followed by a summons before the Court

at the latest on 3 March 1980. This action for the determination of

the compensation commenced on 28 February 1980 before the Real Estate

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

Falun.

17. On 2 July 1984 the applicant and the municipality entered into

a settlement according to which the applicant sold the property to the

municipality and the municipality agreed to let the house to the

applicant for a period of five years with a possibility of prolonging

that period. On 17 August 1984 the Court struck the case off its

list, since the municipality had revoked its claim for expropriation,

as a result of the said agreement.

B. Relevant Domestic Law

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

Expropriation Act. Under this Act, expropriation permits are

generally granted by the Government (Chapter 3, Section 1). Such

permits may be obtained by municipalities and other bodies for various

reasons. For the applicant's case, the valid reason is stated in

Chapter 2, Section 1 of the Act, which reads (paras. 1-3):

"Expropriation is allowed in order to enable a municipality to dispose

of land which is needed, with regard to future development, for urban

development (tätbebyggelse) or constructions in connection with such

development.

Such expropriation as is envisaged by paragraph one may only concern

areas situated within the municipality itself.

Within areas of urban development expropriation is allowed only if

there is reason to assume that, within a foreseeable time, the area

will be subject to building or other construction activities, which

are deemed important from a general point of view, or if it is

urgently required that the municipality dispose of the land for the

furthering of planned building or for any other similar reason."

19. According to Chapter 2, Section 12 of the Expropriation Act an

expropriation permit shall not be granted if its purpose can be

attained by some other appropriate means, or, if the disadvantages of

the expropriation would outweigh, from general and individual points

of view, its advantages.

20. The issuing of an expropriation permit does not automatically

lead to expropriation. It authorises the holder of the permit to

expropriate the property. In order to complete the expropriation the

holder must institute expropriation proceedings before a Real Estate

Court. The Court determines the compensation to be paid to the owner

as well as the exact limitation of the expropriated area and related

matters. The compensation shall in principle amount to the market

value of the property. The expropriation is not completed until

compensation has been fixed and paid.

21. No appeal may be made against a Government decision concerning

expropriation permits. An appeal against the decision of the Real

Estate Court may be lodged with the Court of Appeal (hovrätten) and,

in the final resort, with the Supreme Court (högsta domstolen).

22. Appeals against a decision of the local government to apply

for an expropriation permit may be lodged with the Administrative

Court of Appeal (kammarrätten) according to the special appeal

procedures laid down in Chapter 7 of the 1977 Act on Local Government

(kommunallagen). Appeals against the judgment of the Administrative

Court of Appeal may be lodged with the Supreme Administrative Court

(regeringsrätten).

III. SUBMISSIONS OF THE PARTIES

23. The parties' principal submissions have been made at the

admissibility stage in their written observations, which included

arguments as to the merits. These submissions appear in the decision

on admissibility, which is annexed to this Report as Appendix II. The

Commission refers to the relevant parts of this decision.

At present, the Commission will limit itself to recalling the parties'

main arguments and supplement them by adding the observations made on

the merits.

A. The Applicant

24. In the proceedings concerning the question of an expropriation

permit the parties, ie the expropriator and the property owner, are

involved in a discussion before the Government. There is no oral

hearing and the property owner has no possibility to submit evidence

in his case other than by allegations. From the expropriator it is

normally sufficient that there is an allegation that the land will be

taken in accordance with a draft city plan for the purpose of building

for housing. Normally there is no examination as to the necessity of

the expropriation. The decision of the Government finally determines

the question of the ownership right to the property. The subsequent

court proceedings are considered by the property owner more as a

formality and only concern the questions of compensation and the date

of access to the property. At that stage the essential issue of the

expropriation permit as such has already been determined.

25. The applicant submits that the Government's measure to

determine the question of whether an expropriation is permissible is a

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

26. The applicant submits that the Government's application of the

Expropriation Act in his case was arbitrary. He submits that the

Government did not, as Article 1 of Protocol No. 1 (P1-1) provides,

properly examine the public interest in the case. In this connection,

he has pointed out that the subsequent decision of the municipality to

let the house to the applicant shows that there was no clear public

interest in acquiring the property. Moreover, he has recalled that

the intended constructions have not yet started, although eight years

have elapsed.

B. The Government

27. The issues to be examined by the Commission 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 (Art. 6-1) 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

that determination.

The Government state that a decision on this question will be of great

importance to the present Swedish legislation. In the Case of

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

Series A no. 52, p. 30, para. 83) the Court held that "the

expropriation permits affecting the applicants' properties related to

a civil right and, as regards their period of validity (Government's

under-lining), gave rise to a 'contestation' (dispute), within the

meaning of Article 6 para. 1 (Art. 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 real estate 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. Reference is made to para. 81 of the judgment.

28. The Government have also noted the joint separate opinion by

five of the judges, and especially their statement that the

expropriation permits did not directly determine private rights, but

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 (Art. 6-1) 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

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

The Government refer in this context to their reasoning in the

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

held that Article 6 (Art. 6) was not applicable in relation 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 (Art. 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 in the sense that it was not necessary to

make further amendments to the Swedish legislation on expropriation

apart from an amendment which now in principle limits the duration of

expropriation permits to a period of one year with a restricted

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

(Art. 54) of the Convention.

29. 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 property may take place was finally determined by the

Government's decision of 1 March 1979. The Government admit that this

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

independent and impartial tribunal.

IV. OPINION OF THE COMMISSION

A. Points at issue

30. The issues to be decided are

a. Whether or not Article 6 para. 1 (Art. 6-1) of the Convention

is applicable in the present case, and

b. If so, whether or not there has been a breach of Article 6

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

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

of the Convention

31. Article 6 para. 1, first sentence (Art. 6-1-1) 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."

32. It is established case-law that the right to property is a

"civil right" within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention (see Eur. Court H.R., Sporrong and Lönnroth

judgment of 23 September 1982, Series A no. 52, p. 29, para. 79).

33. Article 6 para. 1 (Art. 6-1) is however only applicable if the

issuing of the expropriation permit was "decisive" for the civil

right, i.e. for the right to property (cf. Eur. Court H.R.,

Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, para. 94).

It is true that under Swedish law the issuing of the expropriation

permit is only an initial step in the procedure leading to the

deprivation of property. The Commission considers however that this

is an important step since it finally determines whether the legal

conditions for expropriation are satisfied. Since this decision plays

such an important rôle in the procedure of expropriation, the

Commission finds that it must be considered as "decisive" for the

applicant's right to property.

The decision of the Government to issue an expropriation permit with

regard to the applicant's property was therefore decisive for his

"civil rights".

34. 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).

35. The applicant has submitted that the Government's application

of the Expropriation Act was arbitrary and that they did not properly

examine the public interest in the case. The applicant has also

submitted that the rental agreement, which was concluded with the

municipality after the expropriation permit was issued, shows that the

property was not necessary for the activities of the municipality and

he has pointed out that the intended constructions have not yet

started although eight years have elapsed. Having regard to these

submissions the Commission considers that there was in reality a

"genuine" and "serious" dispute as to whether the decision to issue

the expropriation permit was in conformity with Swedish law.

36. The Government have pointed out that in the Sporrong and

Lönnroth case Article 6 (Art. 6) was considered applicable since there

was a dispute as regards the duration of the expropriation permit. It

is true that in the said case the dispute related to the duration of

the expropriation permit. The Court was not called upon to determine

whether Article 6 (Art. 6) was applicable to a dispute regarding the

issuing of an expropriation permit. The Commission considers,

however, that if Article 6 (Art. 6) is applicable to a dispute

concerning the duration of an expropriation permit, it must also be

applicable to a dispute as to whether an expropriation permit should

be issued at all.

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

was applicable to the dispute which arose in relation to the

expropriation permit.

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

of the Convention

37. 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.

38. The Commission considers it obvious, and this is not in

dispute between the parties, 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.

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

review of the Government's decision to issue an expropriation permit

and which might satisfy the requirements of Article 6 para. 1

(Art. 6-1).

39. 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, p. 30-31, paras. 84-87).

40. 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 as regards the issuing of the

expropriation permit.

D. Conclusion

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

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

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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BODEN v. SWEDEN

BODEN v. SWEDEN

LEXI