Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25023/94

by STIFTELSEN ANURAG SAGAR

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 28 February 1996, the following members being present:

Mrs. G.H. THUNE, Acting President

MM. H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 11 April 1994 by

STIFTELSEN ANURAG SAGAR against Sweden and registered on 30 August 1994

under file No. 25023/94;

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 foundation established in Stockholm. Before

the Commission it is represented by a member of its board,

Mr. HÃ¥kan Berggren.

a. The particular circumstances of the case

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

summarised as follows.

On 8 April 1993 the Road Administration of the Central Region

(Vägverket, Region Mitt) adopted a working-plan (arbetsplan) for the

reconstruction of the public road no. 310 between Västbacka and Los.

It was approved on 1 June 1993 by the County Administrative Board

(Länsstyrelsen) of the County of Gävleborg. It was later submitted to

the National Road Administration (Vägverket) for approval in accordance

with Section 18 of the Public Roads Act (Väglagen, 1971:948).

The applicant foundation claimed that the road project unduly

encroached upon one of its properties. However, by decision of

19 July 1993, the National Road Administration approved the working-

plan. It considered that the proposed reconstruction achieved the

purpose of the road with the least possible interference and

inconvenience and without unreasonable costs, as required by Section

13 of the Public Roads Act.

The applicant foundation appealed to the Government, claiming

that there was no need to reconstruct the road, that the project unduly

encroached upon its property, that the reconstructed road was

unsuitable for road safety reasons and that it would cause noise.

On 24 March 1994 the Government, agreeing with the findings of

the National Road Administration, upheld its decision.

Apparently, the applicant foundation did not apply to the Supreme

Administrative Court (Regeringsrätten) for a review of the Government's

decision under the Act on Judicial Review of Certain Administrative

Decisions (Lagen om rättsprövning av vissa förvaltningsbeslut, 1988:205

- "the 1988 Act").

b. Relevant domestic law

Section 13 of the Public Roads Act provides the following:

(translation)

"When constructing a road it shall be ensured that the road

is located and designed so as to achieve the purpose of the

road with the least possible interference and inconvenience

and without unreasonable costs."

Section 18 of the Public Roads Act states that a working-plan

concerning the construction of a road is to be approved by the National

Road Administration. Its decisions may be appealed to the Government.

The Public Roads Act does not contain any provision providing for

the possibility to appeal to a court. However, under the 1988 Act, the

Supreme Administrative Court (Regeringsrätten) has jurisdiction in

certain administrative cases. Section 1 of this Act provides the

following:

(translation)

"At the request of a private party in such administrative

proceedings before the Government or an administrative

authority as pertain to any situation envisaged by Chapter

8, Sections 2 and 3, of the Instrument of Government, the

Supreme Administrative Court shall review whether the

decision in the case is contrary to any legal rule in a

manner indicated by the requesting party or otherwise

apparent from the circumstances of the case.

Judicial review may pertain only to such decisions as

- imply exercise of public authority in relation to a

private subject,

- may not otherwise be reviewed by a court except upon a

request for relief for substantive defects, and

- could not otherwise be subject to review."

According to the travaux préparatoires to the Act, the Supreme

Administrative Court's examination should concentrate on the lawfulness

of the challenged decisions, but the Court also has the power to re-

examine the facts upon which the application of the law has been based.

Furthermore, the Court should examine whether the challenged decision

is compatible with the principles of objectivity, impartiality and

equality before the law. In addition, it should examine whether there

have been any procedural errors which might have affected the outcome

of the case. If the relevant law leaves a certain discretion to the

deciding authority to make a choice between different options, all of

which must be considered lawful, the Court should examine whether the

challenged decision falls within that discretion (cf. Government Bill

1987/88:69, pp. 23-25 and 234). When examining the Government Bill, the

Council of Legislation (Lagrådet) stated that the examination of the

lawfulness of an administrative decision in some cases must include an

assessment of whether the prescribed balance of interests has been

appropriately observed.

The Supreme Administrative Court has, under the 1988 Act,

reviewed several Government decisions concerning the approval of

working-plans for road constructions (cf., e.g., Regeringsrättens

Ã¥rsbok, RÃ… 1990 not 176 and RÃ… 1993 not 168, and the Court's judgment

of 30 May 1995 in case no. 2060-1994). In case no. 2060-1994, the Court

held an oral hearing before delivering its judgment.

COMPLAINT

Invoking Article 6 para. 1 of the Convention and Article 1 of

Protocol No. 1 to the Convention, the applicant foundation claims that

it did not have a determination by a court of the decisions concerning

the approval of the working-plan and that it was denied an oral

hearing.

THE LAW

The applicant foundation complains that it did not have access

to court and that it was not given an oral hearing. The Commission

finds that the complaint falls to be considered under 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 ... hearing ... by [a] ...

tribunal ..."

The Commission notes that the applicant foundation did not attack

the decision of the Government by requesting judicial review under the

1988 Act on Judicial Review of Certain Administrative Decisions. It

appears from the case-law of the Supreme Administrative Court that that

Court has considered itself competent under the 1988 Act to review

Government decisions concerning the approval of working-plans for road

constructions and that in at least one case it has held an oral

hearing. It would thus have been possible for the applicant foundation

to obtain such a review by the Supreme Administrative Court and to

request an oral hearing. In assessing whether the scope of this review

would have been sufficient to satisfy the requirements of Article 6

para. 1 (Art. 6-1) of the Convention, the Commission notes that the

applicant foundation claimed that the road project was unnecessary and

unsuitable and that it unduly encroached upon its interests as property

owner. An application by the applicant foundation for judicial review

based on these elements could have been examined by the Supreme

Administrative Court under Section 13 of the Public Roads Act. Thus,

in the circumstances of the present case, the Commission finds no

reason to believe that the Supreme Administrative Court, in examining

an application by the applicant foundation for judicial review, would

have had to decline jurisdiction (cf. No. 18660/91, Bengtsson v.

Sweden, Dec. 7.12.94, D.R. 79-A, p. 11).

In these circumstances the Commission finds that the applicant

foundation could have obtained a court determination fulfilling the

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

It follows that the application is 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.

Secretary Acting President

to the Second Chamber of the Second Chamber

(M.-T. SCHOEPFER) (G.H. THUNE)

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STIFTELSEN ANURAG SAGAR v. SWEDEN

STIFTELSEN ANURAG SAGAR v. SWEDEN

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