Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13034/87

by H.

against Sweden

The European Commission of Human Rights (Second Chamber)

sitting in private on 31 May 1991, the following members being

present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

H. G. SCHERMERS

Mrs. G. H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. J.-C. GEUS

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 6 April 1987

by H. against Sweden and registered on 22 June 1987

under file No. 13034/87;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having regard to the written observations submitted by the

Government on 15 November 1990 and by the applicant on 7 January 1991;

Having regard to the Commission's decision of 26 February 1991

to refer the application to the Second Chamber;

Having deliberated;

Decides as follows:

THE FACTS

Particular circumstances of the case

The facts, as submitted by the parties, may be summarised as

follows.

The applicant is a Swedish citizen born in 1924 and resident

at Mora. She is represented before the Commission by Mr. Erik Hedvalls,

a lawyer practising in Uppsala.

In 1974 the applicant inherited a property situated at Mora.

The applicant asked for a permit to reconstruct and extend the

building on the property to arrange for a toilet and washing

facilities.

On 29 November 1984 the Building Committee (byggnadsnämnden)

of the municipality of Mora rejected the application.

The applicant appealed to the County Administrative Board

(länsstyrelsen) of the County of Kopparberg which on 11 March 1985

rejected the appeal for the following reasons:

"A town plan (stadsplan) confirmed by the County

Administrative Board on 9 May 1983 is applicable to the

area. According to the enclosed site plan the extension

would be situated four metres from the neighbouring

property ... . An exemption would thus be required from the

provision in Section 39 of the [1959] Building Ordinance

(byggnadsstadgan, hereinafter 'the 1959 Ordinance')

regarding the shortest distance from a building to the

boundary of a site. However, after measuring on the spot

the distance appeared to be more than 4,5 metres. A division

of building plots (tomtindelning) has not taken place. It

follows that there is a building prohibition pursuant to

Section 37 of the [1959] Ordinance.* The Building

Committee's decision must be considered to involve the

refusal of a permit under the said provision. From the

documents it appears that a division of building plots has

been requested, but has not yet been carried out. Provided

that there are special reasons a permit to construct a new

building may be granted irrespective of the said

prohibition. Since the requested extension may be of

significance for the future division of building plots, a

permit should not be granted."

The applicant appealed to the Administrative Court of Appeal

(kammarrätten) of Sundsvall, which on 9 June 1986 referred the case

to the Government.

On 23 October 1986 the Government rejected the appeal.

Relevant domestic law

Up to 1 July 1987 a property owner's right to erect buildings

on his property was regulated in the 1947 Act and the 1959 Ordinance.

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* Note: Should be the [1947] Building Act (byggnadslagen,

hereinafter "the 1947 Act").

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According to Section 1 of the 1947 Act and Section 54 of the

1959 Ordinance, any person wishing to construct a building had to

apply to the Building Committee. A permit was required to allow

constructions, except certain buildings for public use, or smaller

additions to existing residences and farms or smaller houses on such

estates.

The examination of an application involved ascertaining that

the proposed building did not contravene a plan in force (or, where

applicable, regulations for non-planned areas), or a building

prohibition, and that it satisfied the relevant technical

requirements. If there were no such obstacles, a permit had to be

granted.

If the application was incompatible with a current plan or if

it related to a property covered by a building prohibition, it was,

in practice, regarded as a request for an exemption.

The person concerned could appeal to the County

Administrative Board against the refusal to issue a building permit

or to grant an exemption. The Board's decisions could in turn be

challenged before the Government, as far as exemptions were

concerned, and in the Administrative Court of Appeal, in respect of

permits. In the latter case, a further appeal lay on a point of law

to the Supreme Administrative Court, subject to the granting of

leave. Where the County Administrative Board dealt with both

questions simultaneously, the appeal had to be lodged with the

Administrative Court of Appeal. If that court considered that the

proposed building did not require an exemption, it continued the

examination of the question of the permit. Otherwise, it referred

the case to the Government, together with its opinion on the grant of

a permit.

When the Building Committee examined an application for a

permit or an exemption, it was under a duty to comply with certain

legal and administrative principles. Consequently, it was bound to

have regard to various public and private interests, as well as the

overall objective of the applicable legislation in the field in

question. It had to decide on this basis whether there were

sufficient grounds for allowing the application. At the same time,

it was under a duty not to allow itself to be influenced by

irrelevant considerations and to give its decision after fair

proceedings, in conformity with the general principles of law, such

as the principle that all citizens are equal before the law.

Section 37 of the 1947 Act prohibited new construction within

blocks of buildings (byggnadskvarter) where the land had not been

divided into building plots. However, the County Administrative Board

or the Building Committee were authorised under that provision to

permit new construction, if there were special reasons for it.

COMPLAINTS

1. The applicant complains that she could not obtain a court

examination of her request for an exemption from the building

prohibition under Section 37 of the 1947 Act. She alleges a

violation of Article 6 para. 1 of the Convention.

2. The applicant further complains that the building prohibition

on her property pending the division of building plots made it

impossible for her to sell the property and radically diminished its

value. After three years no division of building plots had yet been

carried out, thereby preventing the applicant from all construction

on her property. She alleges a violation of Article 1 of Protocol

No. 1.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 April 1987 and registered

on 22 June 1987.

On 6 July 1989 the Commission decided to communicate the

application to the respondent Government without inviting them to

submit written observations on the admissibility and merits of the

application at that stage. It adjourned the further examination

of the application until the European Court of Human Rights had

delivered judgment in the Skärby case.

On 28 June 1990 the Court delivered judgment in that case

(Eur. Court H.R., Skärby judgment of 28 June 1990, Series A No.

180-B).

On 7 September 1990 the Commission invited the parties to

submit written observations on the admissibility and the merits of

the application, limited to the complaint under Article 6 para. 1 of

the Convention.

The Government's observations were submitted on 15 November

1990 and the applicant's observations in reply on 7 January 1991.

On 26 February 1991 the Commission decided to refer the

application to the Second Chamber.

THE LAW

1. The applicant complains that she could not obtain a court

examination of her request for an exemption from the building

prohibition under Section 37 of the 1947 Act. 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 waive objections against the admissibility of

this complaint and admit that it was not at the time possible under

Swedish law to have the Building Committee's decision reviewed by a

court.

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, this complaint is admissible.

2. The applicant further complains that the building prohibition

on her property pending the division of building plots made it

impossible for her to sell the property and radically diminished its

value. After three years no division of building plots had yet been

carried out, thereby preventing her from all construction on the

property. She alleges a violation 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."

According to the Court's case-law, Article 1 of Protocol No. 1

(Art. 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 building prohibition under

Section 37 of the 1947 Act constituted a measure of control of the use

of the applicant's property and thus falls to be examined under the

second paragraph of Article 1 of Protocol No. 1 (P1-1) (cf. above-mentioned

Allan Jacobsson judgment, p. 16, para. 54).

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).

The Commission recalls that the Convention organs' power to

review compliance with domestic law is limited: it is in the first

place for the national authorities to interpret and apply that law

(see e.g. Eur. Court H.R., Tre Traktörer AB judgment of 7 July 1989,

Series A No. 154, p. 23, para. 58).

The Commission notes that the building prohibition at issue

was based on Section 37 of the 1947 Act. It thus had a basis in

Swedish law. The Commission is therefore satisfied that the building

prohibition was lawful.

The Commission further recalls that, in the increasingly

complex and ever developing society of today, it is indispensable

that the use of land be regulated by detailed and careful planning.

It follows that States must have instruments at hand in order to plan

or regulate building activities (Sporrong and Lönnroth v. Sweden,

Comm. Report 8.10.80, para. 111, Eur. Court H.R., Series B No. 46, p.

50). The 1947 Act and the planning procedure under it are in

principle measures serving the general interest. The Commission

therefore concludes that the building prohibition under Section 37 of

the 1947 Act served the general interest.

As regards the proportionality between the interference with

the applicant's property rights and the aim pursued, the Commission

recalls that town planning, including division into building plots,

is a complex procedure which requires considerable time. The

maintenance of a building prohibition during such procedures

constitutes an important measure to facilitate the planning and

division into building plots. In the interest of proper planning

such a building prohibition may have to be maintained for a

considerable period (cf. Allan Jacobsson v. Sweden, Comm. Report

8.10.87, para. 135, Eur. Court H.R., Series A No. 163, p. 28).

The Commission notes that exemptions from the building

prohibition under Section 37 of the 1947 Act could be granted where

there were special reasons for it. This procedure provided a

possibility for weighing the public interest against that of the

individual (above-mentioned Allan Jacobsson judgment, pp. 18-19,

para. 62). The Commission considers, in view of the wide margin of

appreciation enjoyed by the Contracting States in this area, that in

the circumstances of the case the prohibition was not disproportionate

to its legitimate purpose.

In view of the above considerations 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 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 applicant's complaint under Article 6 para. 1 of

(Art. 6-1) the Convention;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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H. v. SWEDEN

H. v. SWEDEN

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