Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22231/93

by Tönnes and Karin ROSENBORG

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 11 January 1995, the following members being present:

Mrs. G.H. THUNE, Acting President

MM. H. DANELIUS

G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

F. MARTINEZ

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 4 March 1993 by

Tönnes and Karin ROSENBORG against Sweden and registered on

13 July 1993 under file No. 22231/93;

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 married couple, are Swedish citizens born in

1924 and 1927, respectively. They are pensioners and reside at

Hässelby, Sweden.

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

summarised as follows.

In 1972 the applicants bought a piece of property (Tvärnö 6:15)

with appurtenant fishing rights in Östhammar, Sweden, where they live

in the summer. In 1988, by decision of the Real Estate Formation

Authority (Fastighetsbildningsmyndigheten) of Östhammar, an association

of joint property owners (samfällighetsförening - "the Association")

was formed to administer jointly-owned land, roads and fishing-waters

in the region. The association decided to regulate certain aspects of

the fishing (Case no. 1). In 1990 the Real Estate Formation Authority

decided that some roads in the neighbourhood be upgraded and maintained

as jointly-owned facilities (gemensamhetsanläggning) (Case no. 2).

Case no. 1

At a meeting on 28 August 1988 the Association decided to divide

certain parts of the joint fishing waters between the different

properties involved and to designate other parts as common waters.

The applicants, who had not been present at the meeting, later

received a copy of the decision by mail. Discontent with the decision,

they contacted the land surveyor who had been in charge of the

formation of the Association and inquired on how to appeal. The land

surveyor advised them to wait while he asked the Association to repeal

its decision. However, on 3 October 1988, he informed them that the

Association would not repeal the decision. Thus, on 5 October 1988, the

applicants appealed to the Real Estate Court (Fastighetsdomstolen) of

Uppsala, claiming, inter alia, that their fishing rights had been

considerably restricted contrary to the statute of the Association and

that the decision was a nullity as the Association had exceeded its

powers.

On 17 May 1990 the Real Estate Court, considering that the

decision was not a nullity, rejected the appeal as it had been lodged

out of time, Section 53, subsection 2 of the Act on the Administration

of Associations of Joint Property Owners (Lagen om förvaltning av

samfälligheter, 1973:1150) stating that the time-limit for lodging an

appeal was four weeks from the date of the decision.

On 9 August 1990 the Svea Court of Appeal (Svea hovrätt) upheld

the Real Estate Court's decision. On 31 January 1991 the Supreme Court

(Högsta domstolen) refused leave to appeal.

The applicants, claiming to have been misled by the land

surveyor, requested the expired time for appeal to be restored

(återställande av försutten tid). The request was, however, dismissed

by the Court of Appeal on 6 March 1991.

By letter of 26 February 1991 the applicants requested the

Association to set aside the 1988 decision. At its annual meeting on

5 May 1991, the Association, however, decided not to grant the request.

On 21 November 1991, the Real Estate Court rejected the applicants'

appeal, as their submissions failed to show that the 1991 decision

contravened the Association's statute or was unlawful. On 12 June 1992

the applicants' further appeal was rejected by the Court of Appeal and

on 16 February 1993 the Supreme Court refused leave to appeal.

Case no. 2

On 17 September 1990, on application by a neighbour of the

applicants', the Real Estate Formation Authority, consisting of the

above-mentioned land surveyor, decided that three roads in the

neighbourhood, used for forestry transports and as access roads for

different properties, should be upgraded and maintained as

jointly-owned facilities. It was further decided that the properties

in the neighbourhood should contribute to the construction and

maintenance costs according to fixed shares. The three roads are

situated near to the applicants' property. A fourth road, on their

property, was on their request excluded from the undertaking.

The applicants appealed to the Real Estate Court, requesting, in

the first place, that the decision be set aside, and, in the second

place, that the shares be fixed in a different way and that their

number of shares of the maintenance costs be reduced. They alleged that

prior agreements between the property owners sufficiently ensured that

the roads were properly maintained and that they only used two of the

roads, exclusively in the summer. During the Court's hearing, the

applicants further requested that the third road be excluded from the

undertaking, as the property owners at the meeting preceding the Real

Estate Formation Authority's decision allegedly had agreed to exclude

this road.

By decision of 17 December 1991, the Real Estate Court dismissed

the request for the exclusion of the third road, as it had been lodged

out of time. Furthermore, except for some changes as to the

apportionment of costs, the Court upheld the decision of the Real

Estate Formation Authority. The Court noted that all participating

properties had to share the snow-clearance costs, if one property owner

requested the roads to be kept open for motor traffic during the

winter.

The applicants appealed to the Court of Appeal, requesting, in

the first place, that the decisions by the Real Estate Formation

Authority and the Real Estate Court be set aside or, in the second

place, that the third road be excluded from the undertaking or that

they be relieved of their duty to contribute to the costs of this road.

They submitted, inter alia, that their request for the exclusion of the

third road formed part of their first-hand claim, for which reason the

Real Estate Court should not have dismissed it. They further alleged

that the undertaking did not meet the requirements of the Construction

Act (Anläggningslagen, 1973:1149). As concerns snow-clearance, they

maintained that it was of no benefit to them, but that it, on the

contrary, was to their disadvantage, as the cleared roads would make

their house accessible to burglars.

On 12 June 1992 the Court of Appeal rejected the appeal and on

12 January 1993 the Supreme Court refused leave to appeal.

COMPLAINTS

1. The applicants contend that the decision to divide the lavaret

fishing waters has infringed their right to the peaceful enjoyment of

their possessions. They invoke Article 1 of Protocol No. 1 to the

Convention.

2. The applicants further claim that their rights under Article 1

of Protocol No. 1 have been violated by the decision obliging them to

contribute to the costs of upgrading and maintaining a road which they

do not use and of clearing the roads of snow although they do not

occupy their property in the winter.

3. The applicants finally allege that their appeals have not been

heard by an impartial tribunal within the meaning of Article 6 of the

Convention.

THE LAW

1. The applicants contend that the decision to divide the lavaret

fishing waters violated their rights under Article 1 of Protocol No. 1

(P1-1) to the Convention.

However, the Commission is not required to decide whether or not

the facts submitted by the applicants in support of this particular

complaint disclose any appearance of a violation of the invoked

provision as Article 26 (Art. 26) of the Convention provides that the

Commission "may only deal with a matter ... within a period of six

months from the date on which the final decision was taken".

The Commission recalls that the applicants twice sought to have

the Association's 1988 decision set aside. First, they appealed the

1988 decision to the Real Estate Court. The Court, however, rejected

the appeal for failure to comply with the applicable time-limit. The

rejection was upheld on appeal. Second, they requested, in 1991, the

Association to set aside its earlier decision. The Association,

however, refused the request, and subsequent appeals to the different

courts were unsuccessful.

The Commission finds that the proceedings following the

Association's 1991 decision only determined whether the Association had

been entitled, under its statute and the law, to decide not to set

aside its 1988 decision. Thus, it did not examine the contents of the

1988 decision or determine whether this decision was in conformity with

the statute and the law. The Commission therefore finds that the

appeals against the Association's 1991 decision did not constitute an

effective remedy, under Article 26 (Art. 26) of the Convention, against

the 1988 decision.

In view of the above, the Commission considers that the

examination of the 1988 decision ended with the conclusion of the first

set of proceedings, either on 31 January 1991, when the Supreme Court

refused leave to appeal, or, at the latest, on 6 March 1991, when the

Court of Appeal refused to restore the expired time for appeal. The

present application was introduced on 4 March 1993, about two years

after the final decision. Consequently, even assuming that the land

surveyor's conduct absolved the applicants from the obligation to

comply with the domestic time-limit for appeal against the 1988

decision, the applicants have not respected the time-limit laid down

in Article 26 (Art. 26) of the Convention.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

2. The applicants further claim that the decision obliging them to

contribute to the costs of upgrading and maintaining a road which they

do not use and of clearing the roads of snow although they do not

occupy their property in the winter constitutes an infringement of

their right to the peaceful enjoyment of their possessions. Also in

respect of this complaint they invoke Article 1 of Protocol No. 1

(P1-1), 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 Commission first notes that the applicants have not been

deprived of their possessions as a result of the decisions concerning

the roads in question. The alleged interference with their property

rights, therefore, falls under the second paragraph of the above

provision. However, the Commission does not find it necessary to

determine whether there has been such an interference in the present

case, because, even assuming this to be the case, the Commission

considers that the interference has been permissible under the second

paragraph.

Under the second paragraph, the Contracting States are entitled,

amongst other things, to control the use of property in accordance with

the general interest, by enforcing such laws as they deem necessary for

the purpose. However, as this provision is to be construed in the light

of the general principle enunciated in the first sentence of the first

paragraph, there must exist a reasonable relationship of

proportionality between the means employed and the aim sought to be

realised. In striking the fair balance thereby required between the

general interest of the community and the requirements of the

protection of the individual's fundamental rights, the authorities

enjoy a wide margin of appreciation (cf. Eur. Court H.R., Allan

Jacobsson judgment of 25 October 1989, Series A no. 163, p. 17,

para. 55).

In the present case, the Commission sees no reason to doubt that

the alleged interference was in accordance with Swedish law. The

Commission further notes that the roads are, inter alia, needed for

transport of forestry products, which undoubtedly is a legitimate

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

applicants' obligation to contribute to the costs, including the snow-

clearance costs, of all three roads at issue 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.

3. The applicants finally allege that their appeals have not been

heard by an impartial tribunal within the meaning of Article 6

(Art. 6) of the Convention, which, in relevant parts, reads as follows:

"1. In the determination of his civil rights and

obligations ..., everyone is entitled to a ... hearing ...

by an ... impartial tribunal ..."

The Commission notes that the applicants' appeals in the two

cases have been heard by the Real Estate Court, the Court of Appeal

and, in deciding whether to grant leave to appeal, by the Supreme

Court. The Commission further notes that the applicants have not stated

any grounds for finding that these courts have not been impartial.

Moreover, nothing in the file suggests any reasons to call in question

the impartiality of the courts.

It follows that also 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 to the Second Chamber Acting President of the Second Chamber

(K. ROGGE) (G.H. THUNE)

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ROSENBERG v. SWEDEN

ROSENBERG v. SWEDEN

LEXI