Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12835/87

by W. and Others

against Sweden

The European Commission of Human Rights (Second Chamber)

sitting in private on 5 March 1991, the following members being

present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ RUIZ

Mrs. J. LIDDY

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 15 July 1985

by W. and Others against Sweden and registered on

2 April 1987 under file No. 12835/87;

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

Rules of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 19 May 1989 and the observations in reply submitted by

the applicant on 8 July 1989;

Having regard to the Commission's decision of 8 January 1991

to refer the application to the Second Chamber;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicants, all Swedish citizens, are set out in the

Annex.

Before the Commission the first applicant, Mr. P.W.,

represents the other applicants.

Particular circumstances of the case

The applicants are owners of properties in the area of Värnäs.

In 1978 the National Road Administration (Vägverket; hereinafter "the

NRA") announced that it planned to reconstruct the existing road

between the villages Värnäs and Ljusnästorp, the distance between

the villages being about three kilometres.

Two alternative stretches for the reconstruction were

considered, a new bypass around Värnäs or a through-way, the latter

alternative implying the repair and reconstruction of the existing

road through Värnäs.

On 4 September 1980 the NRA adopted a working-plan for the

bypass, which was regarded as the more favourable alternative in view

of traffic, environmental and cost aspects. The decision was taken

after consultations with property owners and following the exhibition

of the working-plan, as prescribed in the Roads Act (väglagen,

hereinafter "the Act").

The applicants appealed to the Government (Ministry of

Transport and Communication) which, on 2 April 1981, quashed the

decision and referred the matter back to the NRA for re-examination

on the ground that it had not been shown that the bypass could be

constructed in such a way that its purpose could be achieved with the

least possible interference and inconvenience and without unreasonable

costs, this being a requirement under Section 13 of the Act.

The NRA drew up an alternative working-plan for the

through-way and re-examined the bypass alternative. Both alternatives

were examined together, including consultations with the property

owners and the exhibition of the plans. The estimated cost for the

bypass was 7,2 million SEK and for the through-way 8 million SEK.

On 1 July 1983 the NRA adopted an amended working-plan for the

bypass, stating inter alia that the road connection at issue was the

most important transportation way in the northern part of the County

of Värmland; that its reconstruction was of importance with regard to

traffic safety, environmental protection and the flow of traffic; that

the through-way was in bad condition; and that the aim to reconstruct

the road connection would best be achieved by the bypass alternative,

which also would be 0,8 million SEK cheaper than the through-way

alternative. The NRA noted that, as a result of the bypass, 3,4

hectares of farming land would disappear and that questions of

redemption of land and compensation would be examined in separate

proceedings.

The applicants appealed to the Government, alleging inter alia

that the bypass would run straight through their farming land and

seriously diminish the possibilities to use the properties for farming

in the future.

On 31 January 1985 the Government rejected the applicants'

appeals, noting that this time two alternative working-plans had been

drawn up and examined. It thus had been established that by choosing

the bypass alternative the purpose of the road could be achieved with

the least possible interference and inconvenience and without

unreasonable costs.

During 1986 and 1987 an agreement was reached between the

applicants and the NRA concerning the compensation for the right of

way gained by the NRA. Compensation was paid to the applicants in the

following amounts: P.W. and four other joint owners 45.000

SEK, Gudmund Olofsson 5.800 SEK, Bengt Sonesson 17.000 SEK, Märtha

Haglund 4.700 SEK, Olle and Hildur Nygren 5.000 SEK, Axel Nordqvist

29.509 SEK and Elle and Frida Nilsson 12.500 SEK.

In October 1987 the bypass was opened for traffic.

Relevant domestic law and practice

According to Section 10 of the Act a road may be constructed

if it is needed for public traffic or may be assumed to be of

particular importance to the community. The construction of a road in

a new direction, including the repair of a road, may take place when

it is required in the general public interest.

Section 15 of the Act provides that, for the construction of a

road, a so called working-plan shall be drawn up. The plan shall

inter alia specify the land needed for the road. When the plan is

drawn up there shall be consultations with inter alia the property

owners concerned (Section 16). It shall also be exhibited for

inspection in a way similar to that regarding a building plan. The

plan is adopted by the NRA after consultations with the County

Administrative Board (Section 17). If the NRA and the County

Administrative Board have different views on the matter, it shall be

referred to the Government (Section 18).

Section 48 first paragraph of the Act provides that,

from the moment a decision to adopt a working-plan has gained legal

force until the road construction work is finished, no building may be

erected or any other measure be taken within the road area specified

in the working-plan, if this could subsequently obstruct the use of

the area for road purposes. Such measures may only be taken with the

permission of the County Administrative Board.

According to Section 31 of the Act a right of way (vägrätt)

arises when the authority responsible for the road starts using the

land specified in the working-plan, that is when the stretch of the

road across the property has been clearly marked on the land and

the construction work has commenced. Under Section 32 of the Act the

right of way ceases to exist when the road is withdrawn. The right of

way authorises the maintainer of the road to determine the use of land

needed for the road, notwithstanding the right of any other party with

regard to the property. The right of way also includes the right to

make use of resources that can be extracted from the land.

Under Section 55 of the Act the property owner or any other

party who has a right of usufruct is entitled to compensation for

the right of way gained by the maintainer of the road. If the

maintainer of the road and the property owner cannot agree on the

amount of compensation, it is decided by the Real Estate Court

(fastighetsdomstolen) in application of relevant parts of the 1972

Expropriation Act (expropriationslagen).

COMPLAINTS

1. The applicants complain that the decision to construct a road

over their properties was not taken in accordance with Swedish law.

They allege a violation of Article 1 of Protocol No. 1 to the

Convention.

2. The applicants further complain that they could not obtain a

court examination of the decision to construct the road. They allege

a violation of Article 6 para. 1 of the Convention.

3. The applicants finally complain that they did not have an

effective remedy before a national authority for the above violations

of their rights under the Convention. They allege a violation of

Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 July 1985 and registered

on 2 April 1987.

On 13 March 1989 the Commission decided that notice of the

application should be given to the respondent Government and that the

parties should be invited to submit written observations on the

admissibility and merits of the application limited to the issue

under Article 6 of the Convention.

The Government's observations were submitted on 19 May 1989.

The applicants' observations in reply were submitted on 8 July 1989.

On 8 January 1991 the plenary Commission decided to refer the

application to the Second Chamber.

THE LAW

1. The applicants complain that the decision to construct a road

over their properties was not taken in accordance with Swedish law.

They allege a violation of Article 1 of Protocol No. 1 (P1-1) to the

Convention, which reads:

"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 Government submit that the adoption of the working-plan had

the effect of obliging the applicants to give up parts of their properties

in a way similar to expropriation. However, the decisions at issue

were taken in accordance with domestic law. The Government refer to

the wide margin of appreciation conferred on the authorities in

matters of this kind.

The applicants contend that, when the Government quashed the

first decision regarding a working-plan, the matter involved prestige.

The Government's decision had no effect, since nothing essential was

changed in the new plan subsequently drawn up and adopted.

The Commission observes that the decision to adopt the

working-plan had the temporary effect that the applicants, within a

specified area of their properties, were prohibited from erecting

buildings or taking any other measures which could substantially

obstruct the use of this area for road purposes. This prohibition

was in force from the moment the decision to adopt the working-plan

gained legal force until the road construction work was finished.

The Commission notes that the right of way, authorising the

NRA to make use of the applicants' property, insofar as it was needed

for the road, only arose when the road construction work commenced.

The applicants reached an agreement with the NRA as to the amount of

compensation. In this respect no issue arises under Article 1 (Art. 1).

However, the adoption of the working-plan interfered with the

applicants' right to the peaceful enjoyment of their possessions, in

that it restricted the use of their properties. It constituted a

measure to control the use of property which must be examined under

the second paragraph of Article 1 (Art. 1) as to its lawfulness,

purpose and proportionality (cf. Eur. Court H.R., Tre Traktörer AB

judgment of 7 July 1989, Series A No. 159, pp. 22-24, paras. 55-62).

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. The requirement of

lawfulness includes that the impugned measure should have a basis

in domestic law. Furthermore, the law must have a certain quality,

that is it must be accessible, foreseeable and compatible with the

rule of law. A law which confers a discretion on the authorities must

indicate the scope of that discretion. The degree of precision

required will depend on the particular subject-matter (cf. Eur. Court

H.R., Huvig judgment of 24 April 1990, Series A No. 176, pp. 52-55,

paras. 26, 28-29).

As to the lawfulness of the the working-plan the Commission

observes that, apart from the requirements under Section 13 of the

Act, the domestic law leaves some discretion to the authorities in

choosing the working-plan to be adopted. It further notes that the

first working-plan was quashed by the Government; that the NRA then

drew up alternative working-plans on which the applicants were

consulted and which were exhibited for public inspection, as provided

for in the Act; and that the decision adopting the new working-plan,

taken after comprehensive investigation, contained detailed reasons.

The Commission is therefore satisfied that the decision complained of

had a basis in Swedish law.

As to the purpose of the interference, the Commission observes

that the aim of the working-plan was to improve the condition of the

road connection with regard to traffic safety, environmental

protection and the flow of traffic. The Commission considers this to

be a legitimate aim in the general interest.

As regards the proportionality between the interference with

the applicants' property rights and the aim pursued, the Commission

observes that according to the working-plan the bypass would run

straight through the applicants' farming-land. However, in view of

the aim of the decision to adopt the working-plan for the bypass and

having regard to the wide margin of appreciation enjoyed by the

Contracting States in this area, the Commission cannot find that the

decision was disproportionate to the aim pursued.

Consequently the interference was justified under the terms of

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

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.

2. The applicants furthermore complain that they could not obtain

a court examination of the decision to construct the road. They

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 [a] ... tribunal..."

The issues to be decided are whether the working-plan was

decisive for the applicants' "civil rights and obligations" and, if

so, whether a genuine dispute of a serious nature arose between the

applicants and the authorities in relation to this plan. In the

affirmative, it would have to be determined whether the applicants had

at their disposal a procedure satisfying the conditions of Article 6

para. 1 (Art. 6-1) of the Convention with regard to the dispute.

The Government admit the admissibility of this complaint and

state that it was not at the time possible under Swedish law to have

the working-plan 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 and that no other ground for declaring it inadmissible

has been established.

3. The applicants finally allege a violation of Article 13

(Art. 13) of the Convention, which reads:

"Everyone whose rights and freedoms as set forth in

this Convention are violated shall have an effective

remedy before a national authority notwithstanding that

the violation has been committed by persons acting in an

official capacity."

The Commission considers that the issue under Article 13

(Art. 13) of the Convention is closely linked to the corresponding

issue under Article 6 (Art. 6) of the Convention which the Commission

has found above to be admissible.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits of the

case, the applicants' complaints under Article 6 para. 1

(Art. 6-1) and Article 13 (Art. 13) of the Convention;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

ANNEX

The applicants:

1. Mr. W., a Bachelor of Arts born in 1950

and resident at T. ;

2. Mr. O., an engineer born in 1934 and resident at K. ;

3. Mr. S., a farmer born in 1919 and resident at St; .

4. Mrs. H., born in 1934 and resident at St. ;

5. Mr. N., a farmer born in 1919 and resident at St. ;

6. Mrs. N., a farmer born in 1917 and resident at St. ;

7. Mr. N., a farmer born in 1905 and resident at St. ;

8. Mrs. N., a farmer born in 1927 and resident at St. ; and

9. Mrs. N., born in 1897 and resident at St.

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W. and OTHERS v. SWEDEN

W. and OTHERS v. SWEDEN