Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26105/95

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 3 November 1994

by STIFTELSEN ANURAG SAGAR against Sweden and registered on

3 January 1995 under file No. 26105/95;

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 the foundation 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 2 December 1992 the applicant foundation applied to the

Building Committee (Byggnadsnämnden) of the Municipality of Ljusdal for

a preliminary decision (förhandsbesked) under the Plan and Building Act

(Plan- och bygglagen, 1987:10) concerning the admissibility of certain

construction work on the applicant's property, including the erection

of buildings and the dredging of a small part of the adjoining lake.

The Building Committee noted that the buildings would be situated

within 100 metres from the lake. In order to secure public access to

beaches, Section 16 of the Nature Conservation Act (Naturvårdslagen,

1964:822) provides that no buildings may be erected in such areas

(strandskyddsområden), unless, inter alia, they are required for

farming purposes. However, under Section 16 a, the County

Administrative Board (Länsstyrelsen) may grant an exemption from the

building ban, if there are special reasons. On 16 December 1992 the

Building Committee therefore decided to submit the applicant's

application to the Board of the County of Gävleborg and to recommend

that an exemption be granted. As a consequence, the request for a

preliminary decision was adjourned.

On 20 April 1993 the County Administrative Board decided not to

grant an exemption from the building ban. It found that the buildings

in question could be situated on other parts of the applicant's

property and that there were therefore no special reasons for granting

the exemption.

The applicant foundation appealed to the Government. It claimed,

firstly, that the projected construction work was not covered by the

building ban as the buildings were to be used in the applicant's

farming business and, secondly, if the ban applied, that an exemption

should be granted as the buildings caused a mere insignificant

interference with the public's access to the beach and this interest

was thus outweighed by the public interests of creating jobs and

promoting agricultural research and development.

On 6 October 1994 the Government rejected the appeal.

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

Decisions taken by the County Administrative Board pursuant to

Section 16 a of the Nature Conservation Act may, in accordance with

Section 40, be appealed to the Government.

The Nature Conservation 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 Government decisions concerning exemptions from Section 16 of

the Nature Conservation Act (cf., e.g., Regeringsrättens årsbok,

RÃ… 1991 not 240). In a case reviewed under the 1988 Act, the Court,

basing itself on the case-law of the European Court of Human Rights,

decided to hold an oral hearing before delivering its judgment (the

Court's judgment of 30 May 1995 in case no. 2060-1994).

COMPLAINT

Invoking Article 6 para. 1 of the Convention, the applicant

foundation claims that it did not have a determination by a court of

the decisions refusing the requested exemption and that it was denied

an oral hearing. The applicant contends that the judicial review

available under the 1988 Act does not meet the requirements of

Article 6 para. 1.

THE LAW

The applicant foundation complains that it did not have access

to court and that it was not given an oral hearing. It invokes 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 exemptions from Section 16 of the

Nature Conservation Act. It would thus have been possible for the

applicant foundation to obtain such a review by the Supreme

Administrative Court. In assessing whether the scope of this review

would have been sufficient to satisfy the requirements of Article 6

para. 1 of the Convention, the Commission notes that, in its appeal to

the Government, the applicant foundation claimed, firstly, that the

projected construction work was not covered by the building ban in

Section 16 and, secondly, that, if the ban applied, an exemption should

be granted as the public interests of creating jobs and promoting

agriculture outweighed the interest of public access to the beach. An

application by the applicant foundation for judicial review based on

these elements could have been examined by the Supreme Administrative

Court under Sections 16 and 16 a of the Nature Conservation 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).

The Commission further observes that in judicial review

proceedings before the Supreme Administrative Court the applicant

foundation could have requested an oral hearing.

In these circumstances the Commission finds that the applicant's

right under Article 6 para. 1 (Art. 6-1) to a court determination has

not been violated.

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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