Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21073/92

by S.J., B.J. and G.J.

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 October 1996, 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

L. LOUCAIDES

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 25 November 1991

by S.J., B.J. and G.J. against Sweden and registered on 15 December

1992 under file No. 21073/92;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 17 February 1995 and the observations in reply submitted

by the applicants on 6 April 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, A, B and C, three brothers, are Swedish citizens

born in 1936, 1943 and 1939 respectively. B is a farmer, which also

used to be his brothers' occupation. Before the Commission they are

represented by Mr. Anders Delphin, a lawyer practising at Marstrand,

Sweden.

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

summarised as follows.

The applicants own one third each of two pieces of agricultural

property (Vara Faleberg 2:3 and Vara Faleberg 2:12) in Vedum, Sweden.

A and B reside on the property. C emigrated from Sweden in January 1985

and is now living in Dublin, Ireland. On 25 November 1980 C issued a

power of attorney for A and B or a lawyer appointed by A or B to

represent him in disputes and negotiations with regard to roads and

other encroachments on the above property.

By contract of 30 November 1985, the property is leased by two

lessees to be used for training of hunting dogs. The rent is 5000 SEK

per year. It was paid for the first time in 1989. The lease states, as

a condition for its validity, that the property will not be encumbered

with a right for anyone to travel on it. Accordingly, the applicants

have agreed not to construct any roads on the property. The lessees

have obtained a permit from the County Administrative Board

(Länsstyrelsen) of the County of Skaraborg to fence in the property.

After the applicants had started legal proceedings against two

neighbours for unauthorised use of a road on the applicants' property,

a friendly settlement was reached in court on 30 October 1987 according

to which the neighbours agreed not to use the road.

In a petition dated the same day, 30 October 1987, to the Real

Estate Formation Authority (Fastighetsbildningsmyndigheten) of

Mariestad one of the parties to the friendly settlement agreement and

another neighbour requested that a road be constructed and that

administrative proceedings (anläggningsförrättning) be instituted for

this purpose. Almost half of the length of the proposed road is

situated on the applicants' property, mainly taking up the space of the

already existing road, but also requiring some logging.

On 26 November 1987 a bailiff (stämningsman) handed over a

summons in the administrative proceedings to A. At the same time, the

bailiff also handed over a summons for C to A, in accordance with

Chapter 4, Section 21 of the Real Estate Formation Act

(Fastighetsbildningslagen, 1970:988), which provides that if a property

owner permanently resides abroad and service cannot be effected with

a known representative in Sweden, the document in question may be

handed over to the administrator or user of the property. According to

the applicants, C was at the time living in England, but A and B did

not know his address.

On 30 November 1987 the Real Estate Formation Authority,

consisting of a land surveyor, held proceedings at the location of the

proposed road. The property owners concerned had been summoned, and

apparently, most of them, including A and B, were present, either in

person or through their representatives. Those present were heard on

the different aspects of the undertaking. C was, however, absent.

According to the minutes of the proceedings, A and B refused to state

C's address.

On the same day, 30 November 1987, the Real Estate Formation

Authority decided that the proposed road should be constructed, as the

benefits of the road outweighed the inconveniences and costs of it and

as the construction fulfilled all other requirements of the

Construction Act (Anläggningslagen, 1973:1149). It further decided that

17 properties in the area would benefit from the road, that the road

should be jointly owned by these properties, that an association of

joint property owners (samfällighet) should be founded to construct and

maintain the road, and that the costs of construction and maintenance

should be distributed among the 17 properties. The applicants'

properties' total share of the costs was fixed at 13.7 per cent.

Moreover, the Authority decided that the applicants should receive

compensation in the amount of 800 SEK for the use of their land. A and

B opposed all the decisions taken.

A and B appealed to the Real Estate Court (Fastighetsdomstolen)

of Mariestad, requesting the Court to quash the decision of the Real

Estate Formation Authority, in the first place, because C had not been

properly summoned to the administrative proceedings and, in the second

place, because the requirements of the Construction Act had not been

met. They submitted that the road in question was not of essential

importance to the neighbouring properties, as there was an alternative

road, not involving the applicants' property, which could be used by

these properties. They further maintained that the road to be

constructed would affect the leasehold and that this had not been taken

into account by the Real Estate Formation Authority. Finally, they

claimed that the two neighbours who were parties to the friendly

settlement agreement should not, in accordance with the terms of the

said agreement, in any case be allowed to use the road to be

constructed.

On 24 January 1989 the Real Estate Court held a hearing, at which

it inspected the locus in quo (syn). A and B appeared and were

represented by a lawyer, but, again, C was absent. Prior to the

hearing, the Court had investigated C's whereabouts, but had not been

able to find out his address. It had, inter alia, contacted A and B who

had replied that they did not know C's address and that, in any case,

he had requested that his address not be revealed. A had later told a

court clerk by telephone that he would provide the Court with C's

address or a power of attorney for him. A, however, failed to do so.

The court, therefore, sent a summons for C to A who, however, refused

to sign the receipt, as he was allegedly not authorised to sign

receipts for mail addressed to C. The other property owners and the two

lessees had been summoned to appear at the hearing.

By decision of 7 February 1989, the Real Estate Court rejected

the appeal, stating that C had been summoned to the proceedings of the

Real Estate Formation Authority in accordance with the applicable

rules, that the road in question was important for forestry purposes,

that the costs of putting the alternative road in order for the use of

transport of forestry products would exceed the costs of constructing

the road in question and that the existence of the leasehold, which the

lessees had not yet made use of, did not invalidate the land surveyor's

assessment of the advantages and disadvantages of the construction. The

Court further noted that the road in question was constructed for the

benefit of the properties involved and not the property owners. For

this reason, the friendly settlement agreement was of no importance to

the case in question.

A, B and the two lessees appealed to the Göta Court of Appeal

(Göta hovrätt), which on 5 June 1989 quashed the decision of the Real

Estate Court and referred the case back to that Court for re-

examination. The Court of Appeal found that the rules on how to serve

a summons in the proceedings of the Real Estate Court were different

from the rules applicable to the proceedings of the Real Estate

Formation Authority and required, according to Section 15 of the Act

on Service of Documents (Delgivningslagen, 1970:428), in this

particular case where the whereabouts of C were unknown, that the

summons be served by publication. As this had not been done, the Real

Estate Court had made a grave procedural error. The Court of Appeal,

however, concurred with the Real Estate Court's finding that C had been

served a proper summons in the administrative proceedings.

On 26 September 1989 the Real Estate Court held a second combined

hearing and inspection, at which A and B and their lawyer were present.

C did not appear. He had, however, been summoned by publication; the

summons had been available at the Court for a period of 20 days and a

notice of the summons had been published in five daily papers. At the

hearing, a member of the general public who was in favour of the road

construction was allowed to speak. Furthermore, the land surveyor was

heard. During the inspection, the presiding judge and another member

of the court were given a lift by one of the opposing parties.

On 31 October 1989 the Real Estate Court again rejected the

appeal. In addition to its findings of 7 February 1989, the Court found

that, in accordance with a 1923 agreement to allow the property owners

in the neighbourhood to travel on each other's properties, these

property owners had, in the 1940's, put the road on the applicants'

property in order and had, thereafter, maintained it to stand heavy

transports. Thus, the Court concluded that the existence of the more

recent leasehold was not of decisive importance to the case.

A, B and the two lessees again appealed to the Court of Appeal.

In submissions filed with the appellate court by A's and B's lawyer on

28 November 1989 and 9 January 1990, A and B claimed that the 1923

agreement did not apply to the road on the applicants' property, as the

road did not exist at the time of the agreement, and that the road had

not been used by the neighbours until the 1960's. They also referred

to the alternative road and to the leasehold, and notified the Court

of C's address in Dublin. In a further letter, filed with the Court by

A and B themselves on 7 May 1990, they requested that an oral hearing

be held and that they be given an opportunity to complete their appeal

before the court decided on the case. They did not, however, indicate

the nature of the further submissions they wished to make.

The Court of Appeal did not consider the requests for an oral

hearing and an opportunity to complete the appeal. Moreover, it appears

that it did not notify C in any way before its decision, although, at

this time, his address was known to the Court. By decision of 6 June

1990, the appeal was rejected.

A, B and C applied for leave to appeal to the Supreme Court

(Högsta domstolen). In addition to what they had stated in their

appeals to the lower courts, A and B alleged that, as the Court of

Appeal had disregarded their requests for an oral hearing and an

opportunity to complete their appeal, they had not been able to

complain about the events of the second hearing of the Real Estate

Court. C, for his part, asserted that the Real Estate Formation

Authority and the different courts had failed to notify him of the

proceedings, although his foreign address had been known. He further

stated that the economic loss sustained due to the decision to

construct the road in question was not insignificant and referred, in

this respect, to his brothers' submissions in the case.

On 14 June 1991 the Supreme Court refused leave to appeal.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 November 1991 and registered

on 15 December 1992.

On 30 November 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48 para.

2 (b) of the Rules of Procedure. The Government were requested to limit

their observations to the complaints submitted under Article 6 of the

Convention and deal with the questions whether A and B had a fair and

public hearing having regard in particular to the fact that they were

denied an oral hearing and an opportunity to complete their appeal to

the Court of Appeal and whether C received a fair and public hearing

given that he was not summoned at his own address and that he therefore

did not participate in the various court proceedings.

The Government's written observations were submitted on

17 February 1995. The applicant replied on 6 April 1995.

COMPLAINTS

1. The applicants claim that the decisions to construct the road

constitute an unjustified interference with their right to the peaceful

enjoyment of their possessions. They invoke Article 1 of Protocol No. 1

to the Convention.

2. A and B assert that the proceedings of the Real Estate Formation

Authority have violated their right to a fair hearing by an impartial

tribunal under Article 6 of the Convention.

3. A and B assert that the proceedings of the Real Estate Court have

also violated their right to a fair hearing by an impartial tribunal

under Article 6 of the Convention. They submit that the judge presiding

over the first hearing of the Real Estate Court made remarks that

showed his partiality. During its second hearing, the partiality of the

Court was allegedly shown, inter alia, when the presiding judge and

another member of the Court rode in the car of one of the opposite

parties and when a member of the general public who was in favour of

the road construction was allowed to speak. Furthermore, the land

surveyor was heard during the Court's second hearing. The applicants

claim that he was not heard only by way of information, but that he was

allowed to hold a speech in defence of the decision he had taken on

behalf of the Real Estate Formation Authority. They find that the

presence of a representative of the decision-making administrative

authority at the Real Estate Court's hearing undermines confidence in

the impartiality of the Court.

4. A and B submit that they did not have an effective remedy against

the Real Estate Court's decision to let a member of the general public

speak during its proceedings or against the allegedly unfair

proceedings of that Court. They invoke Article 13 of the Convention.

5. A and B further complain that, in the second proceedings before

the Court of Appeal, they were denied an oral hearing as well as an

opportunity to complete their appeal. They invoke Article 6 of the

Convention.

6. C claims that he was denied the opportunity to plead against the

proposal to construct the road, as he was not informed of the

proceedings before the Real Estate Formation Authority and the courts.

He claims that his foreign address was to be found in official national

registers, to which the Authority and the courts had access, and that

the Court of Appeal had been notified of his address in Dublin. A

summons could therefore not have been served by publication, but should

have been served by mail or through the Ministry of Foreign Affairs.

He invokes Article 13 of the Convention.

THE LAW

1. The applicants claim that the decisions to construct the road

constitute an unjustified interference with their right to the peaceful

enjoyment of their possessions. They invoke Article 1 of Protocol No. 1

(P1-1) to the Convention, which 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."

The applicants maintain that they have sustained considerable

economic loss, as the conditions of the leasehold could not be met.

They further submit that an alternative road could be used, and that

therefore they should not have to endure the interference at issue.

They also argue that the courts have disregarded the principle of

"pacta sunt servanda" by not taking into account the friendly

settlement agreement.

The Commission first notes that the applicants have not been

deprived of their possessions as a result of the decisions concerning

the road in question. The Commission, however, finds that the decisions

complained of constituted a measure of controlling the use of their

property falling under the second paragraph of the above provision.

Such a measure is permissible in the general interest if there exists

a reasonable relationship of proportionality between the means employed

and the aim pursued. In striking a fair balance between the general

interest of the community and the requirement of protection of the

individual's fundamental rights, the authorities enjoy a wide margin

of appreciation (cf. Eur. Court HR, Allan Jacobsson v. Sweden judgment

of 25 October 1989, Series A no. 163, p. 17, para. 55).

In the present case, the Commission recalls the judgment of the

Real Estate Court of 31 October 1989 in which the Court, inter alia,

referred to its findings of 7 February 1989 that the road in question

was important for forestry purposes and that the alternative road would

be more costly. The Commission, therefore, finds that the construction

of the road was in the general interest within the meaning of the

second paragraph of Article 1 of Protocol No. 1 (P1-1). Moreover,

having regard to the above-mentioned margin of appreciation, the

Commission does not consider the relevant decisions, including the

applicants' obligation to contribute to the costs of construction and

maintenance of the road, to be disproportionate to the requirements of

the general interest.

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. A and B assert that the proceedings of the Real Estate Formation

Authority have violated their right to a fair hearing by an impartial

tribunal. They invoke Article 6 (Art. 6) of the Convention which, in

so far as relevant, provides as follows:

"1. In the determination of his civil rights and

obligations ..., everyone is entitled to a fair and public

hearing ... by an ... impartial tribunal ..."

The applicants submit, inter alia, that the land surveyor did not

impartially weigh the advantages and disadvantages of the proposed road

construction, that his investigation was inadequate, not including an

estimate of the total costs of the construction, and that he applied

the relevant law incorrectly. They claim that these mistakes favoured

the opposite parties.

The Commission first notes that the dispute in the present case

concerned measures which affected the applicants' right to use their

property. The proceedings in the case thus determined the applicants'

civil rights within the meaning of Article 6 (Art. 6) of the

Convention. The Commission, however, recalls that Article 6 (Art. 6)

does not oblige the Contracting States to submit disputes over civil

rights to a procedure conducted at each of its stages before tribunals

meeting the requirements of that Article. If a dispute is determined

at the first stage by an administrative authority which does not meet

these requirements, Article 6 (Art. 6) requires that the authority's

decision is subject to subsequent control by a judicial body that has

full jurisdiction (cf. Eur. Court HR, Le Compte, Van Leuven and De

Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, p. 23,

para. 51, and Albert and Le Compte v. Belgium judgment of 10 February

1983, Series A no. 58, p. 16, para. 29).

The Commission recalls that, in the present case, the decision

of the Real Estate Formation Authority was appealed against to the Real

Estate Court, the Court of Appeal and the Supreme Court, tribunals with

full jurisdiction in the case.

Thus, even assuming that the proceedings before the Real Estate

Formation Authority did not comply with the requirements under Article

6 (Art. 6) of the Convention, the Commission does not consider it

necessary to examine the applicant's complaints in so far as they

concern these proceedings.

3. A and B assert that the proceedings of the Real Estate Court have

also violated their right to a fair hearing by an impartial tribunal

under Article 6 (Art. 6) of the Convention. They submit that the judge

presiding over the first hearing of the Real Estate Court made remarks

that showed his partiality. During its second hearing, the partiality

of the Court was allegedly shown, inter alia, when the presiding judge

and another member of the Court rode in the car of one of the opposite