Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24191/94

by Lars-Göran BERGLUND and Others

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 19 October 1995, the following members being present:

MM. G. JÖRUNDSSON, Acting President

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 19 May 1994 by

Lars-Göran Berglund and Others against Sweden and registered on

25 May 1994 under file No. 24191/94;

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 26 applicants (see Annex I) are Swedish citizens and reside

at Sölvesborg. Before the Commission they are represented by

Staffan Michelson, a lawyer practising in Stockholm.

A. The particular circumstances of the case

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

summarised as follows.

In 1988, the road administrations (vägförvaltningarna) of the

Counties of Blekinge and Kristianstad adopted a working-plan

(arbetsplan) for the reconstruction of a highway - the E22 - and some

other roads outside of Sölvesborg. For several years before the

adoption of the plan, the administrations had considered alternative

proposals and had taken into account, inter alia, environmental

effects, construction costs, traffic safety and accessibility before

deciding on the location of the highway. After its adoption, the

working-plan was publicised and the public was given an opportunity to

comment on the project. Several authorities, organisations and

individuals, including some of the applicants, submitted their

observations. On 8 June 1989 the respective County Administrative

Boards (länsstyrelserna) submitted the working-plan to the National

Road Administration (Vägverket) for approval in accordance with Section

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

By decision of 2 July 1990, the National Road Administration

approved the working-plan. It considered that the proposed location of

the highway was the most appropriate alternative with respect to the

effects on land, waters and the environment in general. It further

found that the proposed reconstructions achieved the purpose of the

roads with the least possible interference and inconvenience and

without unreasonable costs, as required by Section 13 of the Public

Roads Act.

Several people, among them some of the applicants, appealed to

the Government, claiming that the working-plan was unlawful under,

inter alia, the Public Roads Act and the Environmental Protection Act

(Miljöskyddslagen, 1969:387) and that alternative locations of the

highway, including the one advocated by the majority of the appellants,

had not been sufficiently investigated.

On 2 May 1991 the Government, agreeing with the findings of the

National Road Administration, upheld its decision. The applicants did

not apply to the Supreme Administrative Court for a review of the

Government's decison under the Act on Judicial Review of Certain

Administrative Decisions (Lagen om rättsprövning av vissa

förvaltningsbeslut, 1988:205 - "the 1988 Act").

47 inhabitants of Sölvesborg, including all the applicants, later

brought an action against the State through the National Road

Administration in the Real Estate Court (Fastighetsdomstolen) of

Karlskrona, requesting the Court to prohibit further construction work.

They contended that the road project was unlawful under Section 4 of

the Environmental Protection Act, as, allegedly, it did not meet the

requirement of achieving its purpose with the least possible

interference and inconvenience and without unreasonable costs. Instead,

the plaintiffs suggested an alternative location of the highway which,

they claimed, would be more appropriate.

In reply, the National Road Administration claimed that the

Government's decision of 2 May 1991 prevented an examination by the

Real Estate Court, for which reason the case should be dismissed. On

17 February 1992 the Court rejected this claim. No appeal was made

against this decision.

With respect to the merits of the case, the Court delivered its

judgment on 18 June 1993. It rejected the plaintiff's action, finding

that a comparison between the two remaining road location alternatives

showed that the costs were equivalent but that the alternative approved

by the National Road Administration caused less interference and

inconvenience.

The plaintiffs appealed to the Court of Appeal (Hovrätten) of

Skåne and Blekinge. They further requested that the Court, as an

interim measure, should prohibit further construction work while the

case was pending. On 9 September 1993 the Court rejected this request,

as the plaintiffs had not shown probable cause for their appeal to

succeed.

After the plaintiffs had appealed against the Court of Appeal's

decision, the Supreme Court (Högsta domstolen), on 11 October 1993,

granted leave to appeal with respect to the question whether a

working-plan approved under the Public Roads Act hindered a court

examination of the road project under Section 4 of the Environmental

Protection Act. By decision of 30 November 1993, the Supreme Court

found that the approved working-plan hindered such an examination. The

Court, inter alia, noted that the examination carried out by the

National Road Administration and the Government under Section 13 of the

Public Roads Act included an assessment of the environmental effects

which, to a great extent, corresponded to an examination under the

Environmental Protection Act.

As the Supreme Court's decision excluded a further examination

of the plaintiffs' case, it was later withdrawn.

B. Relevant domestic law

Provisions on the construction of public roads are contained in

the Public Roads Act. According to Section 15, a working-plan for the

road construction shall be drawn up. The plan shall include, inter

alia, a description of the environmental effects of the construction

(miljökonsekvensbeskrivning). In this respect, Section 13 is of

importance. It states 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."

A similar provision is to be found in Section 4 of the

Environmental Protection Act. It reads as follows:

(translation)

"Undertakings which are hazardous to the environment should

be located so that its purpose can be achieved with the

least possible interference and inconvenience and without

unreasonable costs."

Section 1 of the Environmental Protection Act defines which

undertakings are considered as hazardous to the environment. Road

traffic is covered by that definition.

Under Section 34 of the Environmental Protection Act, an

individual may bring a claim in the Real Estate Court that a certain

undertaking should be prohibited due to its hazardous nature. The Real

Estate Court's decisions and judgments may be appealed to the Court of

Appeal and, with leave to appeal, the Supreme Court.

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

concerning the construction of a road is approved by the National Road

Administration. Its decisions may be appealed to the Government.

Thus, unlike the Environmental Protection Act, 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 otherwise be reviewed by a court only following a

request for relief for substantive defects, and

- which 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).

COMPLAINTS

1. The applicants claim that, as a consequence of the Supreme

Court's decision, they were denied access to court. They invoke

Article 6 para. 1 of the Convention.

2. Further under Article 6 para. 1 the applicants contend that the

Supreme Court was not impartial when taking its decision of

30 November 1993, as it promoted the interests of the State.

3. The applicants also claim that the road project at issue violated

their right to respect for their private life under Article 8 of the

Convention and their property rights under Article 1 of Protocol No. 1

to the Convention.

4. The applicants finally complain, under Article 13 of the

Convention, that, as a consequence of the Supreme Court decision, they

had no remedy against the judgment of the Real Estate Court.

THE LAW

1. The applicants complain that they were denied access to court.

They invoke 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 an

independent and impartial tribunal ..."

The Commission recalls that the applicants, in the Real Estate

Court, claimed that the road project was unlawful under Section 4 of

the Environmental Protection Act. The Commission further recalls that

the Supreme Court, when it later dismissed the case, stated that the

examination carried out by the National Road Administration and the

Government under Section 13 of the Public Roads Act included an

assessment of the environmental effects which, to a great extent,

corresponded to an examination under the Environmental Protection Act.

The Commission notes that the wordings of the relevant

provisions - Section 13 of the Public Roads Act and Section 4 of the

Environmental Protection Act - are almost identical. Having regard to

this and to the above statement of the Supreme Court, the Commission

considers that, in so far as the proceedings involved a determination

of the applicants' civil rights, their right of access to court under

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

guaranteed if they were able to obtain an examination by a court of the

Government's decision of 2 May 1991.

In this respect, the Commission notes that the Supreme

Administrative Court, under the 1988 Act, has reviewed several

Government decisions concerning the approval of working-plans for road

constructions. It was thus possible for the applicants to obtain such

a review by the Supreme Administrative Court. In assessing whether this

review would have fulfilled the requirements of Article 6 para. 1

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

claimed that the road construction was unlawful, as it did not meet the

requirement of achieving its purpose with the least possible

interference and inconvenience and without unreasonable costs. This

claim could have been examined by the Supreme Administrative Court

under Section 13 of the Public Roads Act. Thus, confining itself as far

as possible to examining the question raised by the case before it, the

Commission finds no evidence in this case which would lead to the

conclusion that the Supreme Administrative Court, in examining an

application by the applicants, 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 applicants

could have obtained a court determination fulfilling the requirements

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

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. Further under Article 6 para. 1 (Art. 6-1) the applicants contend

that the Supreme Court was not impartial when taking its decision of

30 November 1993, as it promoted the interests of the State. In this

respect, the applicants argue that the Court examined a question which

neither party had submitted to it and which had been finally decided

by the Real Estate Court on 17 February 1992. Furthermore, the Court

allegedly disregarded the wording of the applicable provisions of the

Environmental Protection Act and instead based its decision on the

travaux préparatoires to the Act.

The Commission, however, finds that the applicants' submissions

fail to show any partiality on the part of the Supreme Court.

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.

3. The applicants also claim that the road project at issue violated

their right to respect for their private life under Article 8 (Art. 8)

of the Convention and their property rights under Article 1 of Protocol

No. 1 (P1-1) to the Convention.

The Commission is, however, not required to decide whether or not

the facts alleged by the applicants disclose any appearance of a

violation of the Article invoked as, under Article 26 (Art. 26) of the

Convention, it "may only deal with the matter after all domestic

remedies have been exhausted, according to the generally recognised

rules of international law ...". In this respect, the Commission

recalls its above conclusion that the applicants could have obtained

a court determination of their case by applying to the Supreme

Administrative Court for a review, under the 1988 Act, of the

Government's decision of 2 May 1991. The applicants, however, failed

to lodge such an application. Furthermore, the Commission finds that

an examination of the complaint does not disclose the existence of any

special circumstance which might have absolved the applicants from

exhausting the remedies at their disposal.

It follows that this part of the application must be rejected for

non-exhaustion of domestic remedies under Article 27 para. 3

(Art. 27-3) of the Convention.

4. The applicants finally complain that, as a consequence of the

Supreme Court decision, they had no remedy against the judgment of the

Real Estate Court, which concerned their property rights and their

right to respect for their private life. They invoke Article 13

(Art. 13) of the Convention, which reads as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

The Commission notes that the applicants have not claimed that

the Real Estate Court's judgment, as such, violated any of the rights

and freedoms guaranteed by the Convention. With regard to possible

violations of the applicants' property rights and their right to

respect for their private life, the Commission recalls its above

conclusion that the applicants could have obtained a court

determination of their case. Thus, in this respect, they had an

effective remedy under Article 13 (Art. 13). The Commission therefore

considers that the applicants' submissions fail to substantiate the

present complaint.

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.

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. JÖRUNDSSON)

ANNEX

The applicants are:

1. Mr. Lars-Göran Berglund;

2. Ms. Siv Berndsson;

3. Mr. Uno Berntsson;

4. Mr. Helge Bjerstedt;

5. Ms. Ann-Britt Borgström;

6. Ms. Margrethe Brynolf;

7. Mr. Peter Erlandsson;

8. Ms. Acki Erlandsson;

9. Mr. Bengt Fröberg;

10. Ms. Margita Fröberg;

11. Ms. Karin Greek;

12. Mr. Börje Hector;

13. Mr. Bo Johansson;

14. Mr. Bengt-Åke Karlsson;

15. Mr. Bengt-Göran Nilsson;

16. Mr. Niclas Nilsson;

17. Mr. Ingvar Persson;

18. Ms. Kerstin Persson;

19. Mr. Raoul Persson;

20. Ms. Margareta Kulldorf;

21. Mr. Bengt Stensson;

22. Mr. Willy Söderdahl;

23. Ms. Viveka Söderdahl;

24. Ms. Ingela Söderholm;

25. Mr. Peter Peters;

26. Mr. Göran Warnefors.

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BERGLUND AND OTHERS v. SWEDEN

BERGLUND AND OTHERS v. SWEDEN