Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22317/93

by J.A., H.E. and L.W.

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 17 May 1995, the following members being present:

Mrs. G.H. THUNE, Acting President

MM. H. DANELIUS

G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

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 15 March 1993 by

J.A., H.E. and L.W. against Sweden and registered on 23 July 1993 under

file No. 22317/93;

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 applicants, A, B and C, Swedish citizens residing at Västra

Frölunda, were born in 1916, 1921 and 1946 respectively. Before the

Commission they are represented by their lawyer, Ms. Margareta

Andersson, Gothenburg.

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

summarised as follows.

The applicants own four properties on the island of Vessingsö in

the municipality of Gothenburg. In 1989-1990, the owners of another

property on the island built a landing-stage in the adjoining waters.

Neither this other property nor the waters border on the applicants'

properties.

Under the Water Act (Vattenlagen, 1983:291), a permission is

required for the construction of a landing-stage. As the builders had

not applied for a permission before commencing the construction work,

they applied to the Water Court (Vattendomstolen) of Vänersborg for a

declaration under Chapter 4, Section 5 of the Act that the landing-

stage was legal (lagligförklaring).

By judgment of 20 October 1990, the Water Court issued the

requested declaration. Prior to the judgment the Court heard different

property owners, including the applicants B and C who, inter alia,

requested an investigation of the title to the waters in which the

landing-stage had been constructed and claimed that the landing-stage

obstructed the thoroughfare to their berths and that the construction

work had damaged the sea bed and made the water muddy. The Court found

that the municipality of Gothenburg was the registered owner of the

waters in question and that the previous owner of the waters, by a 1934

agreement, had allowed the construction of a landing-stage. Before the

Court, the municipality confirmed that the right conferred by the

agreement applied also to the present owners of the property to which

the landing-stage was connected. The Court further found that the

landing-stage's impact on the navigability was very marginal and that

the construction work had not caused any damage for the two applicants.

All three applicants, dissatisfied with the Water Court's

declaration, lodged an appeal with the Water Court of Appeal

(Vattenöverdomstolen), claiming that the waters around the island were

jointly owned by the properties on the island and that the construction

of the landing-stage had encroached upon their rights.

The Water Court of Appeal investigated the title to the waters

in question and found that in 1909 the waters around the island had

been divided into separate properties and, thus, had not been jointly

owned by the land owners on the island. These water properties were now

owned by the municipality of Gothenburg. As the applicants had no

rights to the waters and as the landing-stage did not encroach upon any

essential interest of their properties, the Court concluded that the

applicants had no standing in the case (talerätt). By decision of

23 June 1992, the Court, therefore, dismissed the case.

On 25 September 1992 the Supreme Court (Högsta domstolen) refused

the applicants leave to appeal.

COMPLAINTS

1. The applicants complain, under Article 1 of Protocol No. 1 to the

Convention, that their rights as part-owners of the waters in question

have been violated, as the courts did not sufficiently investigate the

title to the waters.

2. The applicants further complain that their rights under Article 6

of the Convention have been violated as their appeal was dismissed

because of lack of standing.

THE LAW

1. The applicants complain that their rights as part-owners of the

waters in question have been violated, as the courts did not

sufficiently investigate the title to the waters. They invoke Article 1

of Protocol No. 1 (P1-1) to the Convention, which provides the

following:

"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 Commission recalls that the Water Court and the Water Court

of Appeal, after having investigated the matter, concluded that the

municipality of Gothenburg had the title to the waters in question and

that, thus, the applicants were not part-owners of the waters. The

Commission finds that the applicants' submissions do not give cause to

call into question this conclusion. Thus, the applicants have not

established that they have any rights to the waters. The Commission

further finds that the applicants have not shown that the construction

of the landing-stage has encroached upon the use of their properties.

The Commission therefore concludes that the applicants have

failed to establish an interference with their property rights.

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. The applicants further complain that their rights under Article 6

(Art. 6) of the Convention have been violated as their appeal was

dismissed because of lack of standing. Article 6 para. 1 (Art. 6-1)

reads, in relevant parts, as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a ... hearing ... by [a] ...

tribunal ..."

The applicants maintain that in the Water Court of Appeal's

decision to dismiss the case and the Supreme Court's later refusal of

leave to appeal the question of ownership to the waters in question was

not determined.

The Commission recalls that the court proceedings in the present

case concerned the legality of the landing-stage under the Water Act.

Even assuming that these proceedings involved a determination of the

applicants' civil rights and that thus Article 6 (Art. 6) is applicable

to the present complaint, both the Water Court and the Water Court of

Appeal investigated the applicants' claim that they were part-owners

of the waters but found that they had no rights to them. Both courts

further examined the possible encroachment of the landing-stage upon

the applicants' rights.

The Commission therefore concludes that the facts submitted do

not disclose any appearance of a violation of the applicants' rights

under Article 6 (Art. 6) of the Convention.

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.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to Acting President of

the Second Chamber the Second Chamber

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

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J.A., H.E. AND L.W. v. SWEDEN

J.A., H.E. AND L.W. v. SWEDEN

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