Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23735/94

by Harry PERSSON

against Sweden

The European Commission of Human Rights (First Chamber) sitting

in private on 26 February 1997, the following members being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, 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 6 May 1993 by

Harry PERSSON against Sweden and registered on 22 March 1994 under file

No. 23735/94;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 28 June 1996 and the observations in reply submitted by

the applicant on 29 August 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swedish citizen born in 1935, resides in Luleå.

He is, since 1994, the sole owner of the real property Gautsträsk 1:16

situated within the municipality of Sorsele in the north of Sweden.

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

summarised as follows.

In September 1985, the applicant reported H.F., a tenant of a

nearby summer cottage, to the police, claiming that he had illegally

constructed and cleared a road on Gautsträsk 1:16, at the time owned

by the applicant's father, and that he had, for this purpose, cut down

trees on the property. In August 1989, after the police had

investigated the matter, the applicant was informed that the case had

been closed by the chief prosecutor as there was no evidence of any

criminal offence having been committed.

In October 1989, H.F. bought part of the property Gautsträsk

1:20, on which the summer cottage was situated. On 6 December he

applied to the Real Estate Formation Authority (Fastighetsbildnings-

myndigheten - "the Authority") for a partition (avstyckning). Later,

he further requested that an easement (servitut) be established, giving

him a right to use the above road located on Gautsträsk 1:16 and five

other neighbouring properties (fastighetsreglering). After the death

of the applicant's father, Gautsträsk 1:16 was, at this time, owned by

the applicant, his mother and his two sisters.

On 31 August 1990 the Authority summoned the property owners

concerned, including the applicant, to a meeting concerning the issues

raised by H.F.'s application. The meeting was to take place at the

property bought by H.F. The date of the meeting was erroneously given

as 12 August 1990 instead of 12 September 1990. A new summons with the

correct date was allegedly sent less than a week before the meeting.

In a letter to the Authority of 5 September 1990, the owners of

Gautsträsk 1:16 opposed that H.F. should be allowed to use the road on

their property as it was unsuitable in several respects. If it was

necessary for H.F. to cross their property, they proposed that another

road be constructed at a different location north of the road used by

H.F. and that it be jointly owned and maintained by the property owners

in the area (vägsamfällighet). The applicant further submitted his own

survey of the roads in the area dated 26 February 1990. In this

survey, he claimed that the road on their property was actually a track

which had been used since the 1930's for walking and cycling and since

the 1960's by a few stray cars. On aerial photographs from the 1960's

and the 1970's the track was allegedly hardly perceptible. No major

change had occurred until the beginning of the 1980's when H.F. started

to use the road also in wintertime and cleared it from snow.

The applicant was not present at the meeting on

12 September 1990. He was, however, represented by his mother who

opposed the establishment of an easement. The other property owners

concerned approved. The Authority inspected the locus in quo (syn),

including the alternative road location proposed by the owners of

Gautsträsk 1:16.

By decision of 12 September 1990, the Authority decided to allow

the partition. It further decided that Gautsträsk 1:16 and the other

five properties in question be encumbered with an easement in

accordance with H.F.'s application. As regards the easement, the

Authority stated the following:(translation)

"An easement is established for an access road encumbering

Gautsträsk 1:16 and other properties. The easement is

established in regard to an already existing road. The

road has a suitable location on moderately broken ground.

The road is used by the owners of the agricultural

properties Gautsträsk 1:20, 1:21, 1:22, 1:13 and 1:26 as

well as the owner of a summer cottage built on the property

Gautsträsk 1:20. It is therefore not unreasonable that

also the owner of the partitioned plot, H.F., may use the

road. The alternative proposal concerning a road to the

north is inferior. The lie is more hilly and the standard

of the road is lower.

...

The easement regarding the right to use the road is

established without agreement [between the property

owners].

...

The established easements are of considerable importance as

required by Chapter 7, Section 1 of the Real Estate

Formation Act [Fastighetsbildningslagen, 1970:988].

...

No compensation has been claimed. Thus, no compensation is

to be paid."

The applicant appealed against the decision in so far as it

concerned the easement. He called into question the impartiality of

the land surveyor (förrättningslantmätare) who had conducted the

proceedings and claimed that the summons had been served too late. He

requested that a new meeting be held by a different surveyor and that

summons be served to this meeting at least two weeks in advance.

The Authority agreed with the applicant's complaint that he had

been called too late to the first meeting. On 7 November 1990 it

therefore summoned the property owners to a new meeting and declared

invalid the decisions taken on 12 September. The summons was sent to

the applicant's permanent address in Luleå. In the summons the land

surveyor declared that if there were no new circumstances he intended

to affirm the previous decisions. The second meeting was to be held

at the Land Surveyors' Office in Lycksele on 26 November 1990.

The applicant received the summons by forwarded mail on

15 November 1990 in Stockholm where he was at the time attending a

course on town and country planning. He contacted the Authority by

phone the same day and requested that the meeting be cancelled as he

was unable to attend due to his studies. In letters to the Authority

dated 19 and 25 November, he reiterated the request. He complained

that the time between serving of the summons and the meeting was

insufficient, maintaining that at least four weeks' notice should have

been given. He also criticised, inter alia, the land surveyor's

declared intention to affirm the previous decisions and the designated

location of the second meeting, 130 km away from the properties

concerned, which allegedly made it very difficult for the parties to

attend. He further maintained his position as to the unsuitability of

the road in question. The applicant's request for a cancellation

of the second meeting was rejected and the meeting was held as

scheduled by the same land surveyor. Again, the applicant was absent

but represented by his mother. The Authority decided on the same day

to allow the partition and establish the road easement. In the

decision, reference was made to the reasons stated in the decision of

12 September. The applicant and the other owners of Gautsträsk 1:16,

who had now claimed 13,000 SEK as compensation, were awarded

compensation of 50 SEK, as the encumbrance on their property was

considered to be minimal.

The applicant and the other owners of Gautsträsk 1:16 appealed

to the Real Estate Court (Fastighetsdomstolen). On 14 March 1991 the

court summoned the parties to a hearing to be held in Sorsele on

28 May 1991.

The hearing was held as scheduled. The applicant was present but

not the other owners of Gautsträsk 1:16. The owners were represented

at the hearing by a lawyer. They requested, in the first place, that

the road easement be declared null and void in so far as it concerned

their property and, in the second place, that they be awarded

compensation of 10,000 SEK. The court inspected the area but did not

view the alternative road location proposed by the appellants, although

they had requested the court to do so.

On 2 July 1991 the Real Estate Court, agreeing with the

Authority's assessments concerning the easement, upheld the appealed

decision in all respects. It noted, inter alia, that about 60 metres

of the road for which the easement had been established was located on

Gautsträsk 1:16 and that it was connected to the country road at a more

right angle than indicated on the map drawn up by the land surveyor.

The court, which was unanimous, consisted of two professional judges,

one technical expert (fastighetsråd) and two lay judges.

The applicant and the other owners of Gautsträsk 1:16 appealed

to the Court of Appeal of Upper Norrland (Hovrätten för Övre Norrland).

They requested, firstly, that the decisions of the Authority and the

Real Estate Court be quashed and the case be referred back to the

Authority for new proceedings and, secondly, that the easement

encumbering their property be declared null and void. They maintained

their position as to the merits of the case. As to the location of the

road for which the easement had been established, they recalled that

the Real Estate Court had noted that it was connected to the country

road at a right angle and not obliquely as indicated on the map drawn

up by the land surveyor and as erroneously outlined on an economic map

(ekonomisk karta).

The appellants further complained of the proceedings in the case.

They reiterated their complaints relating to the proceedings before the

Authority and further complained that the Authority had corresponded

with them by handwritten notes. With respect to the proceedings of the

Real Estate Court, they complained that it had failed to inspect the

location of the alternative road. They further called into question

the impartiality of the two lay judges of the Real Estate Court. In

1987, one of them, the head of the Forestry Board (Skogsvårdsstyrelsen)

at Sorsele, had allegedly informed the applicant's mother that he found

the road for which the easement was later established to be unnecessary

for forestry purposes. Moreover, in a letter to the appellants in

January 1990, he had expressed that he had examined the economic map

and found that the road was marked on it. The appellants therefore

claimed that, before the proceedings in the Real Estate Court, this lay

judge had expressed his opinion that the road was authorised by the

economic map. The complaints against the other lay judge concerned the

fact that she had the same family name as H.F., their opponent in the

case, and therefore might be related to him.

On 28 February 1992 the Court of Appeal, which did not hold a

hearing in the case, upheld the Real Estate Court's decision on the

merits. With respect to the procedural complaints lodged by the

appellants, the Court of Appeal first found that the summons to the

Authority's second meeting had not been served too late. The Court of

Appeal rejected also the other procedural complaints concerning the

proceedings before the Authority. As regards the proceedings before

the Real Estate Court, the Court of Appeal noted that it had been

appropriate for that court to inspect also the alternative road

location but that its failure to do so did not constitute such a

procedural error which would give reason to quash its decision and

refer the case back to it for a new examination. The complaints

concerning the participation of the lay judges in the Real Estate Court

were also rejected, as it had not been shown that there were reasons

to doubt their impartiality in the case. This latter decision was

final.

The applicant and the other owners of Gautsträsk 1:16 thereafter

appealed to the Supreme Court which, however, refused them leave to

appeal on 10 November 1992.

COMPLAINTS

1. The applicant complains that he did not have a fair hearing in

accordance with Article 6 of the Convention.

As regards the proceedings of the Real Estate Formation

Authority, he submits that the summons to the Authority's meetings were

served too late and that the second meeting on 26 November 1990 was

held at a location which made it impossible for him to attend.

He also contends that the proceedings before the Real Estate

Court were unfair and that the court was not impartial. He refers to

the court's failure to inspect the alternative road location proposed

by the owners of Gautsträsk 1:16 and the participation of the two lay

judges in the court's examination of the case. Furthermore, the

minutes of the court's hearing were allegedly incomplete and the

chairman of the court behaved brusquely towards the lawyer representing

the owners of Gautsträsk 1:16.

2. The applicant further claims that the decisions taken by the

Authority and the courts in his case were not in accordance with the

provisions of the Real Estate Formation Act and thus unlawful. He

contends that the road for which the easement was established was

unsuitable and inferior to the proposed alternative road. Moreover,

the easement was not of considerable importance to H.F.'s property.

It also created environmental damage on Gautsträsk 1:16. In this

connection, the applicant asserts that land surveyors have been given

almost unlimited powers to take arbitrary decisions affecting the

individual's rights. He invokes Article 6 of the Convention and

Article 1 of Protocol No. 1 to the Convention.

3. Further under Article 1 of Protocol No. 1, the applicant claims

that the police and the public prosecutor failed to properly consider

his complaints concerning the measures undertaken by H.F. on

Gautsträsk 1:16.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 May 1993 and registered on

22 March 1994.

On 12 April 1996 the Commission (First Chamber) decided to

communicate the application to the respondent Government, pursuant to

Rule 48 para. 2 (b) of the Rules of Procedure. The Government were

asked to deal with the questions whether the applicant had a fair

hearing given the fact that the Real Estate Court did not inspect the

alternative road location and whether the participation of the head of

the Forestry Board at Sorsele as lay judge in that court gave rise to

doubts as to the court's impartiality.

The Government's written observations were submitted on

28 June 1996 after an extension of the time-limit fixed for that

purpose. The applicant replied on 29 August 1996.

THE LAW

1. The applicant complains that he did not have a fair hearing in

accordance with Article 6 (Art. 6) of the Convention.