Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18928/91

by Anders FREDIN

against Sweden

The European Commission of Human Rights sitting in private on

12 October 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 April 1991 by

Anders FREDIN against Sweden and registered on 9 October 1991 under

file No. 18928/91;

Having regard to

- the report provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the written observations submitted by the respondent Government

on 7 May 1992 and the applicant's observations in reply submitted

on 5 June 1992;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Swedish citizen, born in 1944 and resident at

Grödinge, Sweden. He is an agricultural engineer by profession and is

represented before the Commission by Mr. Jan Axelsson, a lawyer

practising in Stockholm.

The applicant and his wife have previously lodged with the

Commission application No. 12033/86 regarding the withdrawal of a

permit to exploit a gravel pit and the absence of a court remedy in

this regard. The proceedings ended with the judgment of the European

Court of Human Rights of 18 February 1991, in which the Court concluded

that Article 6 para. 1 of the Convention had been violated but that

there was no breach of Article 1 of the First Protocol either taken

alone or in conjuntion with Article 14 of the Convention.

The facts of the present case, as submitted by the parties, are

as follows.

The applicant and his wife own several parcels of land in the

municipality of Botkyrka. On the land there is a farm and a gravel pit.

On 11 December 1963 the applicants' parents had been granted a

permit to extract gravel from the pit, subject to certain conditions.

On 4 September 1969 the applicant acquired a fifth of the

property. On 31 July 1977 the applicant and his wife acquired the

remainder of the property, which thenceforth belonged as to two-thirds

to the applicant and as to one-third to his wife.

On 14 April 1983 the County Administrative Board (länsstyrelsen)

of Stockholm County transferred the exploitation permit to the

applicant and his wife, while indicating that it intended to re-examine

the permit question in 1983 with a view to a possible termination of

the activities.

On 25 August 1983 the County Administrative Board notified the

applicant and his wife that it was contemplating amending the permit

so as to provide that exploitation of the gravel pit should cease by

1 June 1984.

On 19 December 1984 the County Administrative Board ordered,

inter alia, that

(a) the exploitation of gravel should cease within three years,

i.e. by the end of 1987, by which time the area should also be

restored,

(b) as from the day of the decision further extraction from

certain parts of the pit be prohibited.

On 12 December 1985 the Government (Ministry of Agriculture)

dismissed an appeal against the County Administrative Board's decision.

However, the validity of the permit was extended to 1 June 1988.

On 9 March 1987 the County Administrative Board adopted a

restoration plan for the pit.

On 18 May 1987 The County Administrative Board rejected a new

application made by the applicant for extraction of gravel. The

decision was appealed to the Government which on 9 June 1988 dismissed

the appeal. The Government ordered that the permit to extract gravel

from the pit should be prolonged until 1 December 1988, at which date

all activities should be terminated and the land be restored.

On 1 December 1988 extraction of gravel from the pit ceased.

The applicant applied for a special extraction permit in order

to enable him to comply with the plan for the restoration of the

ground. This request was rejected on 14 March 1989 by the County

Administrative Board and his appeal against this decision was rejected

on 21 June 1989 by the Government (Ministry of Environment and

Energy).

The applicant then applied for a judicial review under the 1988

Act on Judicial Review of Certain Administrative Decisions (lag

1988:205 om rättsprövning av vissa förvaltningsbeslut). He argued that

the Government's decision violated several rules of law. He had needed

a permit in order to be able to comply with the restoration plan, and

the refusal of a permit had prevented him from restoring the ground.

The decision was therefore in conflict with Chapter 1 Section 9 of the

Instrument of Government (regeringsformen) and the principle of

objectivity contained therein. The decision of the County

Administrative Board was also in conflict with the Nature Protection

Act (naturvårdslagen) and with the principle of proportionality.

Moreover, as the County Administrative Board had failed to answer his

question as to what action he should take, he was a victim of denial

of justice.

In the proceedings before the Supreme Administrative Court

(regeringsrätten) he requested a public hearing which was refused by

the Court. This decision was taken by three votes to two. The two

dissenting judges stated, inter alia, that the Act on Judicial Review

of Certain Administrative Decisions had been enacted in order to ensure

that Swedish law complied with the requirements of the European

Convention on Human Rights and that account should therefore be taken

of the case-law of the European Court of Human Rights in regard to the

requirement of a public hearing in Article 6 of the Convention. The two

judges referred in this respect to the cases of Ekbatani (judgment of

26 May 1988, Series A No. 134) and HÃ¥kansson and Sturesson (judgment

of 21 February 1990, Series A No. 171).

On 13 December 1990 the Supreme Administrative Court, basing

itself on the applicant's written submissions and on a written

declaration by the County Administrative Court, found that the

Government's decision was not unlawful and rejected the applicant's

request for the annulment of that decision.

COMPLAINT

The applicant complains that he was not afforded a fair and

public hearing before the Supreme Administrative Court and alleges a

violation of Article 6 of the Convention.

PROCEDURE BEFORE THE COMMISSION

The application was lodged with the Commission on 9 April 1991

and registered on 9 October 1991.

On 6 January 1992 the Commission decided to communicate the

application to the respondent Government and to invite them to submit

written observations on the admissibility and merits of the

application.

The Government submitted their observations on 7 May 1992. The

applicant's observations in reply were submitted on 5 June 1992.

THE LAW

The applicant complains that he was not afforded a fair and

public hearing before the Supreme Administrative Court and alleges a

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

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

relevant, reads as follows:

"In the determination of his civil rights and obligations

... everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial

tribunal established by law ..."

The Government do not object to the case being declared

admissible. As regards the merits of the case, the Government leave it

to the Commission to clarify whether or not the way Swedish procedural

law was applied in this case should be regarded as a violation of

Article 6 (Art. 6) of the Convention.

The Commission has made a preliminary examination of the case and

considers that the application raises issues of such complexity as to

justify an examination of the case on the merits. The application

cannot therefore be rejected as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

reason for declaring the application inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

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FREDIN v. SWEDEN

FREDIN v. SWEDEN

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