Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32047/96

by T.C.

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 April 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 April 1996 by

T.C. against Sweden and registered on 27 June 1996 under file

No. 32047/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Swedish citizen, born in 1929 and resident in

Stockholm.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant owns real property at Dalarö in the municipality

of Haninge near Stockholm. In 1991 the municipality began planning a

new pressure-based sewage disposal system for a group of properties.

This system included, for each property, a pump unit with a 3-metre-

deep container which was to be buried in the ground, whereas its top

would remain visible. The municipality's intention formed part of an

overall scheme for improving the sewage disposal in the municipality.

It appears that on 21 May 1992 the applicant and other property

owners, on whose properties a pump unit was to be placed, contested the

municipality's intention before the National Board for Water and Sewage

(Statens va-nämnd). They argued in favour of another sewage disposal

system which would be cheaper and also entail hygienic and

environmental advantages. That system did not require pumps, as the

sewer would follow the natural inclination of the terrain. Such a

system was already in use in certain municipalities nearby. Should the

Board confirm the municipality's choice of system, the applicant and

others requested that the pump units should not be located on their

respective properties. In the further alternative, the applicants and

others requested permission to choose the type of pump unit to be

located on their properties.

On 17 August 1993 the National Board for Water and Sewage, after

an oral hearing and inspection, upheld the municipality's choice of

system pursuant to the 1970 Act on Public Water and Sewage Systems (lag

1970:244 om allmänna vatten- och avloppsanläggningar). The Board

considered that the provider of the sewage disposal system, i.e. the

municipality, had to be given a certain latitude in the choice of a

system. Moreover, in order for the pressure-based system to function

optimally, pump units were to be placed on private properties, and the

municipality was authorised to decide on the type of unit. The property

owners would be responsible for the electrical running of the unit on

their respective properties.

The applicant and other property owners appealed and requested

an oral hearing before the Water Court of Appeal (Vattenöverdomstolen).

In a letter of 8 March 1994 they were given the opportunity to make

supplementary observations in writing, as the appeal could be decided

without an oral hearing. In their supplementary observations of

18 March 1994 the appellants withdrew their request for such a hearing.

On 29 December 1994 the Water Court of Appeal, having dispensed

with an oral hearing, in essence upheld the decision of the National

Board for Water and Sewage. Both proposed systems were technically

acceptable and entailed a similar financial burden, if account was

taken of costs incurred both by the municipality and by the property

owners. The Water Court of Appeal therefore placed decisive weight on

its finding that the pressure-based system would interfere less with

the natural environment in the area. However, the property owners were

authorised to choose the type of pump unit to be located on their

respective properties, provided that their choice did not cause harm

or additional costs either to the municipality or to other property

owners. On 30 October 1995 the Supreme Court (Högsta domstolen) refused

the applicant and others leave to appeal.

COMPLAINTS

1. The applicant complains that the placement of a pump unit on his

property without any compensation was an unjustified interference with

his rights under Article 1 of Protocol No. 1.

2. The applicant also complains under Article 6 para. 1 of the

Convention that he was denied an oral hearing before the Water Court

of Appeal.

3. Finally, the applicant complains under Article 6 para. 1 of the

Convention about the length of the proceedings.

THE LAW

1. The applicant complains that the placement of a pump unit on his

property without any compensation was an unjustified interference with

his rights under Article 1 of Protocol No. 1 (P1-1). This provision

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 contributions or penalties."

Article 1 of Protocol No. 1 (P1-1) comprises three distinct

rules. The first rule, set out in the first sentence of the first

paragraph, is of a general nature and enunciates the principle of

peaceful enjoyment of property. The second rule, contained in the

second sentence of the same paragraph, covers deprivation of

possessions and makes it subject to certain conditions. The third rule,

stated in the second paragraph, recognises that Contracting States are

entitled, amongst other things, to control the use of property in

accordance with the general interest. The three rules are not

"distinct" in the sense of being unconnected: the second and third

rules are concerned with particular instances of interference with the

right to peaceful enjoyment of property and should therefore be

construed in the light of the general principle enunciated in the

first rule (see, e.g., Eur. Court HR, Fredin v. Sweden judgment of 18

February 1991, Series A no. 192, p. 14, para. 41).

Moreover, although Article 1 (Art. 1) contains no explicit

procedural requirements, the proceedings at issue must afford the

individual a reasonable opportunity of putting his case to the

responsible authorities for the purpose of effectively challenging the

measures interfering with his rights under Article 1 of Protocol No.

1 (P1-1). In ascertaining whether this condition has been satisfied a

comprehensive view must be taken of the applicable procedures (cf.,

e.g., Eur. Court HR, Agosi v. the United Kingdom judgment of 24 October

1986, Series A no. 108, p. 19, para. 55; Hentrich v. France judgment

of 22 September 1994, Series A no. 296-A, p. 21, para. 49).

The Commission considers that the applicant's obligation to

adhere to the new sewage disposal system and to tolerate that the

requisite pump unit be placed on his property amounted to a control of

the use of that property. This interference with the applicant's

property rights falls to be examined under the second paragraph of

Article 1 of Protocol No. 1 (P1-1) as to its lawfulness, purpose and

proportionality.

The Commission finds no substantiation of the applicant's

assertion that the interference was not in accordance with domestic

law. The Commission can furthermore accept that the purpose of the

interference was to improve the sewage disposal in the relevant area

of the municipality. Turning to the proportionality of the

interference, the Commission notes that the applicant was eventually

afforded the possibility to choose, within certain limits, the type of

pump unit to be located on his property.

Furthermore, the Commission considers that the applicant had at

his disposal sufficient procedural safeguards for the purpose of

challenging the municipality's choice of sewage system.

Summing up, the Commission finds that the applicant was not made

to carry an individual and excessive burden and that a fair balance was

struck between the conflicting interests at stake. Accordingly, there

is no indication of a violation of Article 1 of Protocol No. 1

(P1-1).

It follows that this complaint must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant also complains under Article 6 para. 1 (Art. 6-1)

of the Convention that he was denied an oral hearing before the Water

Court of Appeal.

The Commission recalls that neither the letter nor the spirit of

Article 6 (Art. 6) prevents a person from waiving of his own free will,

either expressly or tacitly, the entitlement to have his case heard in

public. Any such waiver must, however, be made in an unequivocal manner

and must not run counter to any important public interest (see, e.g.,

Eur. Court HR, Schuler-Zgraggen v. Switzerland judgment of 24 June

1993, Series A no. 263, pp. 19-20, para. 58; HÃ¥kansson and Sturesson

v. Sweden judgment of 21 February 1990, Series A no. 171, p. 20,

para. 67).

In the present case the applicant, in his submissions to the

Water Court of Appeal dated 18 March 1994, expressly waived his right

to a public hearing. This waiver did not run counter to any important

public interest. Accordingly, there is no appearance of a violation of

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

It follows that this complaint must also be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. Finally, the applicant complains about the length of the

proceedings. He again invokes Article 6 para. 1 (Art. 6-1) cited above.

The Commission notes that the period to be taken into

consideration for the purpose of assessing the length of the

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

apparently began on 21 May 1992, when the applicant and others

instituted the proceedings before the National Board for Water and

Sewage. The proceedings ended on 30 October 1995, when the Supreme

Court refused leave to appeal. The proceedings thus lasted

approximately three years and five months.

The reasonableness of the length of proceedings must be assessed

in the light of the particular circumstances of the case and having

regard to the criteria laid down in the Court's case-law, in particular

the complexity of the case, the conduct of the applicant and of the

relevant authorities and the importance of what is at stake for the

applicant in the litigation (see, e.g., Eur. Court HR, Duclos v. France

judgment of 17 December 1996, Reports of Judgments and Decisions,

1996-VI, pp. 2180-2181, para. 55).

In the present case the Commission considers it sufficient to

note that the proceedings were pending before three levels of

jurisdiction and involved an oral hearing before, and an inspection by,

the National Board for Water and Sewage. The length of the proceedings

cannot therefore be considered excessive. Accordingly, there is no

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

Convention on this point either.

It follows that this complaint must also be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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