AS TO THE ADMISSIBILITY OF

                      Application No. 13625/88

                      by Siv ÖUNAPUU

                      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 9 June 1987 by

Siv ÖUNAPUU against Sweden and registered on 23 February 1988 under

file No. 13625/88;

        Having regard to:

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

of the Commission;

-       the Commission's decision of 6 September 1990 to bring the

application to the notice of the respondent Government and invite them

to submit written observations on its admissibility and merits limited

to the issue under Article 6 para. 1 of the Convention;

-       the observations submitted by the respondent Government on 30

January and 22 May 1991 and the observations in reply submitted by the

applicant on 30 March and 4 June 1991;

-       the Commission's decision of 9 April 1991 to refer the

application to the Second Chamber;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a Swedish citizen, born in 1947 and resident

at Malmö.  She is a university student.  Before the Commission the

applicant is represented by Mr. Göran Ravnsborg, a university lecturer

at Lund.

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

summarised as follows.

Particular circumstances of the case

        The applicant was the owner of a property called Slätvaren 42

at Limhamn in the municipality of Malmö. She further owned an adjacent

property called Slätvaren 2, which consisted of a narrow passage

permitting access for Slätvaren 42 to street P (Prångaregatan).

Slätvaren 42 was situated alongside street S (Strandgatan).

        According to a town plan adopted on 18 October 1983 Slätvaren

42 was granted an extended building right along street S.  The plan

indicated that if Slätvaren 42 was divided the building plot situated

away from street S would be given a road easement (vägservitut) to

street S over the plot closer to that street.

        On 13 November 1985 the Building Committee (byggnadsnämnden)

of Malmö adopted a proposal for division of building plots

(tomtindelning).  The proposal involved a division of Slätvaren 42 into

two building plots, one called Slätvaren 48 and the other Slätvaren 49.

The applicant's house is situated on Slätvaren 48. Having regard to the

right to further construction allowed along street S Slätvaren 48 was

given a road easement of a breadth of 2,5 metres and a height of 2,5

metres over Slätvaren 49 to that street. Slätvaren 2 was proposed to

be added to the neighbouring property Slätvaren 1, as the passage was

no longer considered necessary for Slätvaren 48.

        The applicant opposed the proposal.  She submitted that it was

inconvenient to arrange an access from plot 48 to street S.  It was

better to keep Slätvaren 2 as a passage for access for plots 48 and 49

to street P.  The applicant invoked Section 33 of the 1959 Building

Ordinance (byggnadsstadgan, hereinafter "the 1959 ordinance").

        On 16 July 1986 the County Administrative Board (läns-

styrelsen) of the County of Malmöhus confirmed the division of building

plots pursuant to Section 33 of the 1947 Building Act (byggnadslagen,

hereinafter "the 1947 Act").  It found that Section 33 of the 1959

Ordinance did not prevent the division of building plots.  Further, the

taking of Slätvaren 2 for the purpose of enlarging another property

created a better division of the properties in the area and the

applicant had been compensated as the building right on Slätvaren 42

had been extended.

        The applicant's appeal to the Government (Ministry of Housing)

was rejected on 11 December 1986.

        On 12 June 1987 Slätvaren 2 was transferred and added to

Slätvaren 1 in accordance with the division of building plots.

Following an agreement with the owner of that property the applicant

was paid 8.505 SEK in compensation.

Relevant domestic law

        Up to 1 July 1987 division of building plots was part of the

planning system under the 1947 Act and the 1959 Ordinance. Under

Section 28 of the 1947 Act a building block was to be divided into

plots for the appropriate development in accordance with a town plan.

A division was to take place at the request of the land owner or when

the Building Committee found a division necessary and provided that the

landowner could not reasonably argue that a division should not take

place (Section 30).

        Under Section 33 of the 1959 Ordinance the purpose of a

division was to create a well-adapted, simple and clear division of a

building block. Every property unit should have access to a street and

regard was to be had to existing easements and property rights as well

as to the express wishes of the property owner.

        Under Sections 37 and 38 of the 1947 Act construction in a

block which had not been divided into plots was prohibited. If a

division had been carried out construction was allowed to the extent

that it complied with that division. In both cases exemptions could be

made for special reasons.

        Under Section 34 para. 1 of the 1959 Ordinance a proposal for

a division of building plots was to be made by a surveyor eligible to

serve as Head of the Property Formation Authority. It was to be marked

on a map and accompanied by a description. It further had to include

the necessary easements. The division could be carried out provided the

area was covered by a town plan and provided that it was in accordance

with the conditions laid down in the 1970 Property Formation Act

(fastighetsbildningslagen, hereinafter "the 1970 Act"). The division

was adopted by the Building Committee and had to be confirmed by the

County Administrative Board, from which an appeal lay to the

Government.

        The actual division of the property units was carried out by

the Property Formation Authority (fastighetsbildningsmyndigheten).

Under Chapter 3, Sections 1 and 2 of the 1970 Act property formation

shall allow for each property unit to be permanently suitable for its

purpose with respect to its location, size and other circumstances.

Special regard should be had to the proper shape of the property and

to its access to adjacent roads. The formation should correspond with

the town plan or the division of building plots. However, exemptions

from a town plan or a division of building plots could be allowed for

special reasons provided that the derogation was in accordance with the

purpose of the town plan.

        When the property formation consisted of property regulation

(fastighetsreglering) land could be transferred from one property to

another (Chapter 5, Section 1). Moreover, the properties should be

composed and shaped in a way which suited their purpose as well as

before the property regulation. The property could not be changed in

such a way as to decrease its value significantly (Chapter 5, Section

8).

        If land was transferred from a property the owner had the right

to compensation in money or by receiving other pieces of land. The

parties could settle the question of compensation themselves (Chapter

5, Sections 2 and 18).

        An easement created through a property regulation should be of

essential importance to the purposeful use of the property benefiting

from it. It could be created, changed or abolished without any formal

request provided that this was important with regard to another measure

involving a property regulation and if it was carried out in the same

context (Section 10).

        The Property Formation Authority's decisions with regard to

property regulation, including the creation of easements, could be

appealed against to a Real Estate Court (fastighetsdomstol), a

specially composed District Court (tingsrätt). Further appeals lay to

a Court of Appeal (hovrätt) and the Supreme Court (Högsta domstolen),

in the latter case provided that leave to appeal was granted.

COMPLAINTS

1.      The applicant alleges violations of Article 1 of Protocol No.

1 to the Convention on the ground that she has been forced to sell

Slätvaren 2 without any "real" compensation and on the ground that

Slätvaren 49 has been encumbered with an easement.

2.      The applicant also alleges a violation of Article 6 para. 1 of

the Convention on the ground that she has not had the possibility of

a court review of the administrative decisions.

3.      Finally, the applicant alleges violations of Articles 17 and

18 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 9 June 1987 and registered

on 23 February 1988.

        On 6 September 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 limited

to the issue under Article 6 para. 1 of the Convention.

        After an extension of the time-limit the Government's

observations were submitted on 30 January 1991. The applicant's

observations in reply were submitted on 30 March 1991.

        On 9 April 1991 the Commission decided to refer the application

to the Second Chamber.

        Further observations were submitted by the Government on 22 May

1991 and by the applicant on 4 June 1991.

THE LAW

1.      The applicant complains that she has been forced to sell her

property Slätvaren 2 without any "real" compensation and that her

property Slätvaren 49 has been encumbered with an easement. She alleges

violations of Article 1 of Protocol No. 1 (P1-1) to the Convention,

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."

    (a) Insofar as the complaint relates to Slätvaren 2 the Government

submit that the transfer of this property to Slätvaren 1 amounted to a

deprivation of the applicant's property. However, the complaint is

manifestly ill-founded, as the deprivation was carried out in accordance

with Swedish law and pursued a legitimate aim, that is to create a

sensible division of the building block for the purpose of development,

and as the applicant has not been made to carry an individual and

excessive burden. Slätvaren 2 was so narrow that it could not serve as

a passage for cars. A widening of Slätvaren 2 would have had negative

effects for other property owners. Both Slätvaren 48 and 49 were owned

by the applicant, who, through the town plan, was allowed to erect a

further building on the last-mentioned property. It seemed natural to

arrange for both her properties to have the same access to a street.

Moreover, in 1987 the applicant received compensation for Slätvaren 2 in

the amount of 8.505 SEK. This sum was considerably higher than the

purchase price paid by her in 1983, namely 4.200 SEK, and must be

regarded as reasonably related to the value of the property.

        The applicant contends that Slätvaren 2 has always served a road

function naturally and frequently used by the owners of Slätvaren 42.

The width of the passage was quite enough for pedestrians.

        The Commission recalls that Article 1 of Protocol No. 1 (P1-1)

comprises three distinct rules.  The first rule, set out in the first

sentence of the first paragraph, is of a general nature and enunciates

the principle of peaceful enjoyment of property; the second rule,

contained in the second sentence of the same paragraph, covers

deprivation of possessions and makes it subject to certain conditions;

and the third rule, stated in the second paragraph, recognises that

Contracting States are entitled, amongst other things, to control the

use of property in accordance with the general interest.  The three

rules are not "distinct" in the sense of being unconnected:  the second

and third rules are concerned with particular instances of interference

with the right to peaceful enjoyment of property and should therefore be

construed in the light of the general principle enunciated in the first

rule (Eur. Court H.R., Allan Jacobsson judgment of 25 October 1989,

Series A No. 163, p. 16, para. 53).

        The Commission considers that the transfer of Slätvaren 2 to

Slätvaren 1 was a deprivation of the applicant's property which should

be examined under the second sentence of the first paragraph of Article

1 of Protocol No. 1 (P1-1). The Commission must examine whether this

deprivation was "in the public interest" and "subject to the conditions

provided for by law" and "by the general principles of international

law".

        As regards the general principles of international law the

Commission recalls that this condition does not apply to the taking by

a State of the property of its own nationals (Eur. Court H.R., Lithgow

and Others judgment of 8 July 1986, Series A No. 102, p. 50, para. 119).

Consequently, this condition is not applicable in the present case since

the applicant, who was deprived of her property by Sweden, is of Swedish

nationality. It remains to be examined whether the interference

satisfied the other two conditions.

        As regards the question whether the deprivation was carried out

in the "public interest" the Commission observes that the purpose of the

deprivation, as stated in Section 28 of the 1947 Act and Section 33 of

the 1959 Ordinance, was to create a well-adapted division of the

building block for the purpose of development. This is a legitimate

public interest for the purposes of the first paragraph of Article 1 of

Protocol No. 1 (P1-1), even to the extent that it may imply the

compulsory transfer of property from one individual to another (cf. Eur.

Court H.R., HÃ¥kansson and Sturesson judgment of 21 February 1990, Series

A No. 171, p. 15, para. 44, with further reference).

        As regards the lawfulness of the deprivation the Commission

recalls that its power to review compliance with domestic law is limited

(see e.g. above-mentioned HÃ¥kansson and Sturesson judgment, p. 16, para.

47). It observes that the transfer of Slätvaren 2 to Slätvaren 1 was

carried out in accordance with the 1970 Act. The measure thus had a

basis in Swedish law. The Commission is therefore satisfied that the

deprivation was lawful.

        Finally, as regards the proportionality of the interference,

Article 1 of Protocol No. 1 (P1-1) requires a reasonable relationship of

proportionality between the means employed and the aim pursued. This

implies that the owner shall not have to bear "an individual and

excessive burden" (above-mentioned HÃ¥kansson and Sturesson judgment, p.

17, para. 51, with further reference). The Commission observes that the

applicant in 1987 received 8.505 SEK for Slätvaren 2, while the price

paid by her in 1983 was 4.200 SEK. The price received by her must be

considered reasonable in relation to the value of the property (cf.

above-mentioned HÃ¥kansson and Sturesson judgment, p. 18, para. 54). In

these circumstances, and having regard to the wide margin of

appreciation enjoyed by Contracting States under Article 1 of Protocol

No. 1 (P1-1), the Commission concludes that the applicant has not been

made to carry an individual and excessive burden.

        Consequently, the interference with the applicant's right to

peaceful enjoyment of her possessions was justified under the terms of

the second sentence of the first paragraph of Article 1 of Protocol No.

1 (P1-1).

        It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

(b)     Insofar as the complaint relates to the easement established on

Slätvaren 49 the Government submit that it is manifestly ill-founded.

The easement constitutes a measure to control the use of the applicant's

property and was a prerequisite for the transfer of Slätvaren 2 to

Slätvaren 1. Therefore, the reasons justifying that transfer also

justify the easement, which was established in the general interest.

Moreover, there was a reasonable relationship of proportionality between

the means employed and the aim sought to be realised.

        The applicant contends that because of the easement the future

building on Slätvaren 49 will have to include a 17 metres long tunnel

highly disproportionate to that building as a whole. The annual costs

for the tunnel will amount to 30.000 SEK. Had the applicant been allowed

to keep and even widen Slätvaren 2 the neighbours would not have been

burdened with any comparable costs or inconveniences.

        The Commission considers that the easement established on

Slätvaren 49 constitutes a measure of control of the use of the

applicant's property which falls to be examined under the second

paragraph of Article 1 of Protocol No. 1 (P1-1).

        Under the second paragraph of Article 1 of Protocol No. 1

(P1-1) 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,

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

(above- mentioned Allan Jacobsson judgment, p. 17, para. 55).

        As regards the "general interest" served by the easement, the

Commission notes that the easement served an aim under the 1947 Act,

that is to create a well-adapted division of the building block for the

purpose of development. This is a legitimate general interest for the

purpose of the second paragraph of Article 1 of Protocol No. 1 (P1-1).

        As regards the lawfulness of the easement the Commission notes

that the easement was established in accordance with the 1970 Act and

thus had a basis in Swedish law. The Commission is therefore satisfied

that the easement is lawful.

        As regards the proportionality of the interference, the

Commission observes that both the property encumbered by the easement

and the property which benefited from the easement belong to the

applicant who previously, in the town plan, had been granted an extended

building right on the first-mentioned property. However, under Section

37 of the 1947 Act such further construction was, in principle,

dependent on whether a division of building plots had been carried out.

As regards the tunnel which allegedly would have to be created in the

case of future construction, the Commission cannot speculate on the

possible inconveniences or costs caused by such an obligation.

        In these circumstances, and having regard to the wide margin of

appreciation enjoyed by the Contracting States under Article 1 of

Protocol No. 1 (P1-1), the Commission finds that the interference with

the applicant's right to the peaceful enjoyment of her possessions was

justified under the second paragraph of Article 1 of Protocol No. 1

(P1-1).

        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.

2.      The applicant further complains that she could not obtain a

court review of the administrative decisions. She alleges 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, although the ownership of Slätvaren

2 was not transferred to the owner of Slätvaren 1 merely as a result of

the division of building plots, this was decisive for the subsequent

property formation proceedings which led to that transfer of ownership.

The Government therefore do not contest the admissibility of this

complaint and admit a violation of Article 6 para. 1 (Art. 6-1) of the

Convention in that the applicant had no access to court to challenge the

division of building plots.

        The Commission finds that this complaint is not manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. As no other ground for declaring it inadmissible has been

established the complaint must be admitted.

3.      The applicant finally alleges violations of Articles 17 and 18

(Art. 17, 18) of the Convention.

        Article 17 (Art. 17) of the Convention reads:

"Nothing in this Convention may be interpreted as implying for

any State, group or person any right to engage in any activity

or perform any act aimed at the destruction of any of the rights

and freedoms set forth herein or at their limitation to a greater

extent than is provided for in the Convention."

        Article 18 (Art. 18) of the Convention reads:

"The restrictions permitted under this Convention to the said

rights and freedoms shall not be applied for any purpose other

than those for which they have been prescribed."

        The Commission finds no appearance of any violation of Articles

17 or 18 (Art. 17, 18) of the Convention.

        It follows that this complaint 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 ADMISSIBLE, without prejudging the merits of the case,

        the complaint under Article 6 para. 1 (Art. 6-1) of the

        Convention;

        DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber         President of the Second Chamber

         (K. ROGGE)                             (S. TRECHSEL)