Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14282/88

by Lennart and Gunny ZANDER

against Sweden

The European Commission of Human Rights (Second Chamber)

sitting in private on 14 October 1991, the following members being

present:

MM. S. TRECHSEL, President of the Second Chamber

G. SPERDUTI

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

Mr. M.P. PELLONPÄÄ

Mr. K. ROGGE, Secretary to the Second 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 2 September 1988

by Lennart and Gunny ZANDER against Sweden and registered on

12 October 1988 under file No. 14282/88;

Having regard to:

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

of the Commission;

- the Commission's decision of 5 November 1990 to bring the

application to the notice of the respondent Government and invite them

to submit written observations on its admissibility and merits;

- the observations submitted by the respondent Government on

23 January and 25 April 1991 and the observations in reply submitted

by the applicant on 22 March 1991;

- the Commission's decision of 9 April 1991 referring the

application to the Second Chamber;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Swedish citizens, resident at Västerås.

Before the Commission they are represented by Mr. Staffan Michelson, a

lawyer practising in Stockholm.

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

summarised as follows.

Particular circumstances of the case

The applicants own a property in Gryta in the municipality of

Västerås adjacent to a property on which a company takes care of and

treats refuse from inter alia households and industries. A permit for

such activities was granted to the company by the National Licensing

Board for Environment Protection (koncessionsnämnden för miljöskydd,

hereinafter "the Licensing Board") on 1 July 1983 under the 1969

Environment Protection Act (miljöskyddslagen, hereinafter "the 1969

Act").

In 1979 it had been discovered in a police investigation that

refuse containing cyanide had been tipped on the dump. Following

analyses of the drinking water showing excessive occurrence of cyanide

in a well adjacent to the dump the Health Care Board (hälsovårds-

nämnden) of Västerås prohibited the property owner from using the

water. He was then provided with drinking water by the municipality.

New analyses of the water were carried out in 1983 showing excessive

occurrence of cyanide also in other wells around the dump. In October

1983 the Environment and Health Care Board (miljö- och hälsoskydds-

nämnden) of Västerås prohibited the water in the wells from being used

for drinking and preparation of food. In June 1984 the limit of

cyanide allowed was raised and in February 1985 the property owners

stopped receiving municipal drinking water.

By decision of 13 March 1987 the Licensing Board granted the

company a permit to take care of untreated household refuse also after

1986. The company was furthermore allowed to store ashes and slag from

three further refuse combustion plants. The previous permit allowed

the storing of such refuse from one plant. Finally, the company was

allowed to extend the area for storing cinders. Being of the opinion

that the increased activities involved a risk that their drinking-

water would be polluted in particular by cyanide because of leakage

from the dump, the applicants together with other property owners had

requested that the permit contain a condition or precautionary measure

under Section 5 of the 1969 Act to the effect that the company be

obliged to supply eleven property owners with municipal drinking-

water.

This request was rejected, as the alleged connection between

the activities on the dump and the occurrence of cyanide was

considered unlikely. The Licensing Board further considered that,

notwithstanding the possible risk of pollution, it would have been

unreasonable to order the company to take such a general precautionary

measure. However, the Licensing Board ordered that the water in the

wells should be continuously analysed and the owners be informed of

the results. If suspicions would arise that the water was being

polluted by the dump the company was immediately to comply with any

orders issued by the County Administrative Board (länsstyrelsen) to

supply the property owners with drinking water.

The applicants appealed to the Government which rejected the

appeal on 17 March 1988.

Relevant domestic law

According to Section 1 of the 1969 Act any use of land that

may cause pollution of inter alia water or air is defined as

environmentally hazardous activity. Section 5 imposes an obligation on

those who carry out or intend to carry out such an activity to prevent

or remedy, by taking protective or precautionary measures or by

tolerating restrictions, detrimental effects of that activity. Regard

should be had to both public and private interests. According to

Section 10 the Government may decide that certain types of

environmentally hazardous activity shall not be allowed and that an

already established activity may not be altered in a way which could

cause increased or new detriment or significant disturbance unless the

Licensing Board has issued a permit under the 1969 Act. Such a

requirement may be found in Sections 3 and 5 of the 1989 Environment

Protection Ordinance (miljöskyddsförordningen, hereinafter "the 1989

Ordinance).

The Licensing Board is composed of a chairman and three other

members. The chairman shall be well-versed in legal matters and

experienced in performing judicial tasks. The other members must have

experience from matters falling within the sphere of the National

Environment Protection Board's (Naturvårdsverket) activities, of

technical matters and of industrial operations, respectively. All

members are nominated by the Government (Section 11 of the 1969 Act).

When a permit is issued according to Section 10 of the 1969

Act the environmentally hazardous activity itself and the conditions

prescribed for the activity shall be specified in detail (Section 18).

Any concerned party may lodge an appeal with the Government against

the decisions of the Licensing Board (Section 48).

The 1969 Act also provides a possibility to file a claim on

the grounds of environmentally hazardous activity (Section 34). Such

claims shall be filed with a Real Estate Court (fastighetsdomstol),

a specially composed District Court (tingsrätt), and may inter alia

aim at obtaining a ruling obliging the person or company concerned to

take protective or precautionary measures in order to continue the

activity in question. However, such a claim has no impact on the

environmentally hazardous activity as such, as under Section 22 an

activity which has been permitted under the 1969 Act may not be

ordered to be discontinued under a provision in that Act, neither may

precautionary measures be imposed to a further extent than what has

been stated in the permit. Exceptions are to be found in Sections

23-25, 29 and 40. None of those provisions are relevant in the present

case.

According to Section 3 of the 1986 Environmental Damage Act

(miljöskadelagen, hereinafter "the 1986 Act") damage or injury caused

inter alia by pollution of ground water and water courses entitles the

damaged or injured party to compensation provided that a substantial

probability of a causal connection has been established. The liability

to pay compensation is imposed on those who carry on or cause

deleterious activities to be carried on (Section 6). The Real Estate

Court may grant a claim for compensation, even if the activity has

been permitted under the 1969 Act. The decision of that court can be

brought before a Court of Appeal (hovrätt) and ultimately, with leave

to appeal, before the Supreme Court (Högsta domstolen).

COMPLAINTS

The applicants complain that they had no right to have their

civil rights determined by a court. They refer to Section 22 of the

1969 Act and allege a violation of Article 6 para. 1 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 September 1988 and

registered on 12 October 1988.

On 5 November 1990 the Commission decided to bring the

application to the notice of the respondent Government and invite them

to submit written observations on its admissibility and merits.

The Government's observations were submitted on 23 January

1991. Following an extension of the time-limit the applicants'

observations in reply were submitted on 22 March 1991. Additional

observations were submitted by the Government on 25 April 1991.

On 9 April 1991 the Commission decided to refer the

application to the Second Chamber.

THE LAW

The applicants complain that they had no right to have their

civil rights determined by a court. They refer to Section 22 of the

1969 Act and allege a violation of Article 6 para. 1 (Art. 6-1) of the

Convention, which reads, insofar as it is relevant:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing ... by an independent

and impartial tribunal ..."

The Government submit that the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2). The applicability of Article 6 para. 1 (Art. 6-1)

of the Convention extends only to disputes over "civil rights and

obligations" which can be said, at least on arguable grounds, to be

recognised under domestic law. The dispute must be genuine and of a

serious nature. The present application is based on the assumption

that a civil right of the applicants was determined when the Licensing

Board and the Government considered the license matter. However,

there is no right under Swedish law to be kept absolutely safe from or

to obtain compensation for risks caused by environmentally hazardous

activities. Had the applicants been injured or their property

damaged they would have had a right to compensation under the 1986

Act in accordance with a procedure satisfying the requirements in

Article 6 (Art. 6) of the Convention. Thus, the difference in the

assessment of the risk between, on the one hand, the applicants and,

on the other hand, the Licensing Board and the Government was not

decisive for any rights of the applicants. The applicants could not

maintain, on arguable grounds, that they were entitled to have the

risk of any environmentally hazarduous activity excluded, nor was

there any such risk at hand. Thus, there was no dispute over a

"right". Moreover, a careful consideration of the impact of the

dump on the applicants' water supply was carried out in the

administrative proceedings. In their decision of 17 March 1988 the

Government noted an opinion of the Geological Survey of Sweden

(Sveriges geologiska undersökning) according to which it did not seem

likely that water from the dump had polluted or could pollute the

drinking water. The Government further decided that there should be

continuous control by means of thorough examinations in order to

detect the possible existence of any detrimental effect on the

drinking water. If such a control gives rise to a suspicion that the

drinking water is being negatively affected by the dump, the company

has an obligation to supply the property owners with household water

acceptable from the point of view of health.

Should the Commission find that the proceedings were decisive

for any right of the applicants under Swedish law, the Government

reserve their position as to whether such a right should be considered

to be of a "civil" character.

The applicants contend that there was a concrete and genuine

dispute regarding the risk of further pollution of their drinking

water, as it had already been proved that it contained cyanide which

most likely originated from the dump. One of the most fundamental aims

of the 1969 Act is to guarantee the individuals their right to

protection from such a risk. The assessment of the risk as made by the

administrative authorities was directly decisive for the applicants'

rights. The Geological Survey of Sweden is directly subordinated to and

dependent on the Government and the investigations carried out by that

organ were rudimentary. Under Swedish law the applicants were entitled

to protection from encroachment and detriment caused by hazardous

activities. However, a permit for such activities had been granted by

the Licensing Board and, according to Section 22 of the 1969 Act, they

could not submit such a claim to a court.

The Commission considers that the issues to be determined are

whether the decision to grant a permit to increase the activities on

the dump was decisive for the applicants' "civil rights" within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention and, if so,

whether a genuine and serious dispute arose between the applicants and

the Swedish authorities in relation to that decision. In the

affirmative, it would have to be determined whether the applicants

had at their disposal a procedure satisfying the requirements of

Article 6 para. 1 (Art. 6-1) of the Convention in regard to that

dispute.

The Commission considers that these issues require an

examination of the merits of the case. It follows that the

application is not manifestly ill-founded within the meaning of

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

declaring it inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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ZANDER v. SWEDEN

ZANDER v. SWEDEN

LEXI