Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13724/88

by Brita KJELLBERG

against Sweden

The European Commission of Human Rights sitting in private

on 5 March 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

Mr. J. RAYMOND, Deputy 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 12 December 1987

by Brita Kjellberg against Sweden and registered on 30 March 1988

under file No. 13724/88;

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

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is a Swedish citizen, born in 1919. She resides

at Ärla, Sweden.

The applicant moved to her present residence at Ärla in 1968.

The residence is situated at the Ärla ridge (Ärlaåsen) which contains

several million cubic metres of valuable gravel. It appears that the

competent authorities, in accordance with the applicable legislation,

intended to grant permission to exploit gravel from the area to a

number of firms and certain correspondence followed between the

authorities and the applicant who wanted to preserve the area in order

to protect nature. Nevertheless it appears that a number of permits to

exploit gravel were granted.

In 1975 the applicant complained to the Parliamentary

Ombudsman (JO) that certain machines were used in a gravel pit without

permission, but JO dismissed the case as the applicant's complaints

were being examined by the competent authorities. On 18 December 1975

the Government (Ministry of Agriculture) rejected the applicant's

various complaints against the gravel exploitation as she was not

considered a party to the case.

In 1976 the applicant tried to buy a certain piece of land

from her neighbour, who had permission to extract gravel in the area,

as she wanted to preserve it, but apparently the neighbour did not

want to sell the land.

In 1978 the applicant then instituted proceedings in the Real

Estate Court (fastighetsdomstolen) maintaining that the gravel

exploitation should stop as it caused noise and pollution and

threatened the existing water resources. The applicant withdrew the

case from the Court on 18 January 1980 as she found it did not proceed

with the necessary speed.

The applicant, however, pursued her case against the gravel

exploitation with the competent administrative authorities, but on

several occasions the County Administrative Board (länsstyrelsen) or

the Government rejected her complaints having found that appropriate

measures had been taken, and complied with, in order to protect the

environment.

On 19 August 1986 the Municipality of Eskilstuna extended the

permission to extract gravel provided a number of requirements in

accordance with the existing legislation were fulfilled. The applicant

complained thereof to the County Administrative Board which decided,

after visiting the site and the applicant, that the applicable

legislation for the protection of the environment had been complied

with.

The applicant's subsequent complaint to the Government was

rejected on 11 February 1988.

COMPLAINTS

The applicant complains of "sanitary inconveniences" caused by

the nearby gravel pit and that its presence is a violation of the

right to respect for her home and her private life. She also complains

that in so far as the authorities' decisions state that she cannot

complain about the matters this amounts to a violation of her right to

freedom of expression.

THE LAW

1. The applicant has complained of the gravel exploitation which

the Swedish authorities permit and which is carried out close to her

home. She maintains that this amounts to an unjustified interference

with her right to respect for her private life and her home.

The Commission has considered this complaint under Article 8

(Art. 8) of the Convention which reads as follows:

"1. Everyone has the right to respect for his private

and family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public safety

or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

The Commission considers that this provision cannot be

interpreted so as to apply only with regard to direct measures taken

by the authorities against the privacy and/or home of an individual.

It may also cover indirect intrusions which are unavoidable

consequences of measures not at all directed against private

individuals (cf. No. 9310/81, Dec. 16.7.86, D.R. 47 p. 5). For example

considerable noise nuisance can undoubtedly affect the physical

well-being of a person and thus interfere with his private life, and

it may also deprive a person of the possibility of enjoying the

amenities of his home.

In the present case the Commission recalls that the applicant

has tried at least for the last 15 years to bring the gravel

exploitation at the Ärla ridge to an end as this in her opinion

creates "sanitary inconveniences" and ruins the environment.

The Commission finds that it can leave open the question

whether the gravel exploitation and its consequences as regards noise

and other inconveniences near the applicant's home at all constitute

an interference with her right to respect for her private life and her

home as, even assuming this to be the case, such an interference is

justified under Article 8 para. 2 (Art. 8-2) of the Convention for the

following reasons.

The Commission is satisfied that the operation of the gravel

pits is lawful under Swedish law and that the alleged interference is

"in accordance with the law". Furthermore, the operation is aimed at

protecting the rights of others, i.e. the rights of gravel pit owners

to enjoy their property.

The Commission furthermore finds that the alleged interference

is proportionate to the legitimate aim pursued and notes in particular

that the gravel exploitation is under constant supervision by the

competent authorities which control that it is carried out in

accordance with the applicable legislation, inter alia enacted for the

protection of the environment.

In these circumstances the alleged interference with the

applicant's right under Article 8 para. 1 (Art. 8-1) of the

Convention is justified under the terms of its paragraph 2

(Art. 8-2).

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 applicant has also complained that the various decisions

made by the authorities involved violated her rights under Article 10

(Art. 10) of the Convention which secures the right to freedom of

expression. However, the Commission finds no issue under this

provision which would merit any further examination.

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.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C. A. NØRGAARD)

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KJELLBERG v. SWEDEN

KJELLBERG v. SWEDEN

LEXI