Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30328/96

by Per JONSSON

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 9 April 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

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 15 January 1996

by Per JONSSON against Sweden and registered on 28 February 1996 under

file No. 30328/96;

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, a Swedish citizen born in 1944, resides in

Stockholm. Before the Commission he is represented by his lawyer,

Ms. Ulrika Sundin Bonnedahl.

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

summarised as follows.

Adoption of building plan

On 21 October 1991 the Municipal Council (kommunfullmäktige) of

Umeå adopted a building plan (detaljplan) concerning the establishment

of a golf course and other recreational facilities on certain land

which included parts of the applicant's forest property, Norrmjöle 1:6.

The applicant, who previously had objected to the requisitioning of his

land, was not personally notified of the decision, which gained legal

force on 7 May 1992. He allegedly became aware of the decision in

September 1992 and later applied to the Supreme Administrative Court

(Regeringsrätten) for a restoration of the expired time-limit for

appeal (återställande av försutten tid). His application was granted

on 16 November 1995. The applicant has since appealed against the

planning decision to the County Administrative Board (länsstyrelsen)

of the County of Västerbotten, where the case is presently pending.

Compulsory transfer of land

On 30 December 1992 the Real Estate Formation Authority

(Fastighetsbildningsmyndigheten) in Umeå, on application by the local

golf club and against the applicant's will, decided that parts of

Norrmjöle 1:6 (about 3.6 hectares of a total of almost 27 hectares) be

transferred (fastighetsreglering) to the golf club's property. At the

same time, about 0.2 hectares of land were added to Norrmjöle 1:6. The

applicant was compensated for the estimated market value of the

transferred land. The land added to his property was considered to be

of no value. The compensation was thus fixed at 129,189 Swedish crowns

(SEK).

The applicant appealed to the Real Estate Court

(Fastighetsdomstolen), claiming, firstly, that the decision to transfer

land should be revoked or, secondly, that he should be given higher

compensation.

By decision of 7 July 1994, the Real Estate Court upheld the

appealed decision. The court noted that the forced transfer of land

was allowed, as the relevant area was brought into line with the above-

mentioned building plan. The court further found that the benefits of

the land transfer outweighed the inconveniences and costs involved,

that the transfer did not make the applicant's property less suited to

its purpose and that all other requirements laid down in the Real

Estate Formation Act (Fastighetsbildningslagen, 1970:988) for the

protection of the interests of individual property owners were

fulfilled. With regard to the applicant's compensation, the court

noted that it had been fixed in accordance with established principles

by a land surveyor, appointed as expert valuer by the Real Estate

Formation Authority. The court considered that the compensation

decision was supported by the facts of the case. Before deciding in

the case, the court had held an inspection of the locus in quo

(syn). The applicant then appealed to the Court of Appeal

(hovrätten) for Upper Norrland. He maintained that the land transfer

decision should be quashed as, allegedly, the golf club was not

competent under the law to apply for the measures in question.

Secondly, he claimed that the case should be adjourned pending the

Supreme Administrative Court's decision on his application for

restoration of the time-limit for appeal against the building plan

decision. Thirdly, he demanded compensation of 172,545 SEK for the

loss of his land.

On 13 February 1995 the Court of Appeal rejected all the

applicant's claims and accordingly upheld the Real Estate Court's

decision.

On 19 July 1995 the Supreme Court (Högsta domstolen) refused the

applicant leave to appeal.

COMPLAINTS

1. The applicant contends that he has not had a fair hearing as

required by Article 6 para. 1 of the Convention.

2. The applicant further claims that the transfer of land in

question violated his property rights under Article 1 of Protocol No. 1

to the Convention.

THE LAW

1. The applicant contends that he has not had a fair hearing as

required by Article 6 para. 1 (Art. 6-1) of the Convention which, in

relevant parts, reads as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair ... hearing ... by ...

[a] tribunal ..."

The applicant maintains that his "civil rights" were determined

by the decision to transfer parts of his land to the golf club's

property. He argues, however, that that decision, like other decisions

on compulsory transfer of land, was taken in accordance with the plan

in force. Thus, the question of the transfer was effectively

determined already when the plan was adopted. As he was not informed

of the planning decision, he was not able to appeal against it and his

objections to the plan were not taken into account. If the appeal

lodged against this decision after the Supreme Administrative Court's

decision to restore the time-limit for appeal is successful, he will

have to apply to the Supreme Court for a re-opening of the land

transfer proceedings in an attempt to get his land back.

The Commission first finds that the proceedings in the case

related to the transfer of parts of the applicant's property and

therefore concerned a determination of his "civil rights" within the

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

The Commission further recalls that, when examining whether court

proceedings satisfy the requirements of Article 6 para. 1

(Art. 6-1), it must look at the proceedings as a whole. In the

present case, the Real Estate Formation Authority's decision of 30

December 1992 to transfer parts of the applicant's property was

reviewed by the Real Estate Court, the Court of Appeal and, in deciding

not to grant leave to appeal, the Supreme Court. The Real Estate Court

held an inspection before deciding in the case and both that court and

the Court of Appeal examined the applicant's claims before rejecting

his appeals.

The Commission therefore considers that the land transfer

proceedings, as such, were not unfair. The applicant contends,

however, that the question of the transfer of land had been effectively

determined already before these proceedings started by the decision to

adopt the building plan, against which the applicant, for lack of a

proper notification, had not been able to appeal. In this respect, the

Commission notes, however, that the Supreme Administrative Court, by

decision of 16 November 1995, restored the time-limit for appealing

against the planning decision, following which the applicant appealed

to the County Administrative Board. The planning decision will thus

be examined in these - pending - proceedings, in which the applicant

will be able to present his objections to the plan. Should the

applicant be successful in these proceedings - and the planning

decision thus be quashed in so far as it concerns his property - he may

apply to the Supreme Court for a re-opening of the land transfer

proceedings.

In these circumstances, the Commission does not find that the

proceedings in the applicant's case, taken as a whole, have been

unfair.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant further claims that the transfer of land in

question violated his property rights, as the establishment of a golf

course cannot be considered as a public interest. He invokes Article

1 of Protocol No. 1 (P1-1) to the Convention which provides the

following:

"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 provision 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."

The Commission first notes that proceedings concerning the

adoption of the building plan are pending and that, should the

applicant be successful in these proceedings, he may apply to the

Supreme Court for a re-opening of the land transfer proceedings. The

question thus arises whether domestic remedies have been exhausted in

accordance with Article 26 (Art. 26) of the Convention. The Commission

finds, however, that it does not have to resolve this question as the

complaint is, in any case, inadmissible for the following reasons.The

transfer of parts of the applicant's land constituted a deprivation of

his possessions which falls to be considered under the second sentence

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

The Commission recalls that the object of the land transfer was

the establishment of a golf course and other recreational facilities.

The Commission considers that this is a legitimate "public interest".

With regard to the lawfulness of the decisions, the Commission is

further satisfied that they were in conformity with Swedish law, namely

the provisions of the Real Estate Formation Act. The requirement that

the deprivation be in accordance with the general principles of

international law only applies to foreigners and is thus of no

relevance to the present application.

A deprivation of possessions must, however, not only in principle

pursue a legitimate aim in the public interest, but it must also

demonstrate a reasonable relationship of proportionality between the

means employed and the aim sought to be realised. The requisite

proportionality will not be found if the person concerned has had to

bear "an individual and excessive burden". Compensation terms are

material to the assessment of whether a fair balance has been struck

between the various interests at stake and whether or not a

disproportionate burden has been imposed on the person who has been

deprived of his possessions. Although Article 1 of Protocol No. 1

(P1-1) does not give a right to any particular amount of compensation,

the taking of property without payment of an amount reasonably related

to its value would normally constitute a disproportionate interference

which could not be considered justifiable (cf. Eur. Court HR, Lithgow

and Others v. the United Kingdom judgment of 8 July 1986, Series A no.

102, pp. 50-51, paras. 120-121).

In the present case, the Commission observes that the Real Estate

Court, in its decision of 7 July 1994, found that the transfer of land

did not make the applicant's property less suited to its purpose.

Further, the compensation granted to the applicant for the loss of his

land, fixed by an expert valuer appointed by the Real Estate Formation

Authority, was intended to correspond to the market value of the land.

In the light of the above and having regard to the margin of

appreciation enjoyed by the national authorities under Article 1 of

Protocol No. 1 (P1-1), the Commission cannot find that the means

employed in the present case were disproportionate or that the

compensation awarded was not reasonably related to the value of the

land in question. It cannot, therefore, be said that the applicant had

to bear an excessive burden.

It follows that this part of the application is also 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 G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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JONSSON v. SWEDEN

JONSSON v. SWEDEN

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