Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14083/88

by Knut Alfred ANDERSSON and others

against Sweden

The European Commission of Human Rights sitting in private

on 7 January 1991, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, 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 1 July 1987

by Knut Alfred ANDERSSON and others against Sweden and registered

on 1 August 1988 under file No. 14083/88;

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 applicants, may be

summarised as follows.

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

Annex. Before the Commission, they are represented by Mr. Per

Svensson, a lawyer practising in Sundsvall.

The applicants own a number of agricultural properties in the

area of Dala Järna. Following initiatives from the Agricultural

Committee (lantbruksnämnden) and the County Administrative Board

(länsstyrelsen) the applicants' properties have been the objects of a

redistribution of land under the Property Formation Act

(fastighetsbildningslagen).

On 9 April 1985 the Property Formation Authority (fastighets-

bildningsmyndigheten) in the County of Kopparberg gave permission to a

property reformation of an area covering some 10.000 hectares of

land.

Some of the applicants appealed to the Falu District Court

(tingsrätten) claiming that the permission be quashed or that their

properties be excluded from the future property formation. On

3 December 1985 the District Court rejected the appeal.

Some applicants appealed to the Svea Court of Appeal (Svea

hovrätt) which rejected the appeal on 5 May 1986.

The Supreme Court (Högsta domstolen) refused leave to appeal

on 10 December 1986.

The property reformation was ordered pursuant to Chapter 5

Sections 4 and 5 of the Property Formation Act. The provisions in the

Act can be summarised as follows.

Property reformation involves the transfer of land from one

property to another. Land which is being taken away from one property

shall be compensated either in the form of other land or monetary

compensation. Property reformation may take place on the condition

that a more suitable division of properties or otherwise a more

suitable usage of the land is obtained and the advantages outweighs

the costs and inconveniences involved. The property reformation in the

present case could under Chapter 5 Section 5 para. 2 of the Act not

take place if the property owners which have a considerable interest

in the matter more generally opposed the reformation and the reasons

therefor were justified. When examining such an issue regard should in

particular be had to the opinion of those who have the greatest

interest in the reformation.

COMPLAINTS

The applicants allege a violation of Article 1 of Protocol No. 1

to the Convention on the ground that the permission to reform the

properties results in land being taken away from them and given to

other private subjects. This results in the big landowner becoming

bigger and the small landowner becoming smaller. The applicants submit

that the "public interest" in Article 1 cannot justify a compulsory

redistribution of land between private individuals.

THE LAW

1. The Commission does not find it necessary to examine whether

each of the applicants can claim to be a "victim" of a violation

within the meaning of Article 25 (Art. 25) of the Convention and

whether each applicant has complied with the condition in Article 26

(Art. 26) of the Convention as to the exhaustion of domestic remedies

with regard to the procedure concerning the permission to the land

redistribution.

2. The applicants 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 applicants submit that land is being taken away from them

and given to other private subjects and that Article 1 of Protocol No. 1

(P1-1) does not permit such a transfer of property between private

subjects.

The Commission notes that the applicants are entitled to

compensation, but that they have not informed the Commission of the

outcome on this point. Nor have they indicated the extent of the area

of land of which they have been deprived.

As regards the notion of "public interest" in Article 1 of

Protocol No. 1 (P1-1), the Court has stated as follows (cf. Eur. Court

H.R., James and Others judgment of 21 February 1986, Series A no. 98,

p. 32, para. 46):

"Because of their direct knowledge of their society and its

needs, the national authorities are in principle better

placed than the international judge to appreciate what is

"in the public interest". Under the system of protection

established by the Convention, it is thus for the national

authorities to make the initial assessment both of the

existence of a problem of public concern warranting measures

of deprivation of property and of the remedial action to be

taken (see, mutatis mutandis, the Handyside judgment of

7 December 1976, Series A no. 24, p. 22, para. 48). Here, as in

other fields to which the safeguards of the Convention

extend, the national authorities accordingly enjoy a certain

margin of appreciation.

Furthermore, the notion of "public interest" is necessarily

extensive. In particular, as the Commission noted, the

decision to enact laws expropriating property will commonly

involve consideration of political, economic and social

issues on which opinions within a democratic society may

reasonably differ widely. The Court, finding it natural that

the margin of appreciation available to the legislature in

implementing social and economic policies should be a wide

one, will respect the legislature's judgment as to what is

'in the public interest' unless that judgment be manifestly

without reasonable foundation. In other words, although the

Court cannot substitute its own assessment for that of the

national authorities, it is bound to review the contested

measures under Article 1 of Protocol No. 1 (P1-1) and, in so

doing, to make an inquiry into the facts with reference to which

the national authorities acted."

As regards the issue of whether Article 1 of Protocol No. 1

(P1-1) guarantees a right to compensation and the level of any such

compensation, the Court has held as follows (cf. above-mentioned James

and Others judgment, p. 36, para. 54):

"The first question that arises is whether the availability

and amount of compensation are material considerations under

the second sentence of the first paragraph of Article 1 (P1-1),

the text of the provision being silent on the point. The

Commission, with whom both the Government and the applicants

agreed, read Article 1 (Art. 1) as in general impliedly requiring the

payment of compensation as a necessary condition for the taking of

property of anyone within the jurisdiction of a Contracting State.

Like the Commission, the Court observes that under the legal

systems of the Contracting States, the taking of property in

the public interest without payment of compensation is

treated as justifiable only in exceptional circumstances not

relevant for present purposes. As far as Article 1 is

concerned, the protection of the right of property it

affords would be largely illusory and ineffective in the

absence of any equivalent principle. Clearly, compensation

terms are material to the assessment whether the contested

legislation respects a fair balance between the various

interests at stake and, notably, whether it does not impose

a disproportionate burden on the applicants (see the

above-mentioned Sporrong and Lönnroth judgment, Series A no. 52,

pp. 26 and 28, paras. 69 and 73).

The Court further accepts the Commission's conclusion as to

the standard of compensation: the taking of property without

payment of an amount reasonably related to its value would

normally constitute a disproportionate interference which

could not be considered justifiable under Article 1 (Art. 1).

Article 1 (Art. 1) does not, however, guarantee a right to full

compensation in all circumstances. Legitimate objectives of "public

interest", such as pursued in measures of economic reform or measures

designed to achieve greater social justice, may call for less than

reimbursement of the full market value. Furthermore, the Court's power

of review is limited to ascertaining whether the choice of

compensation terms falls outside the State's wide margin of

appreciation in this domain (see paragraph 46 above)."

It follows from the Court's judgment in the James and Others

case that a transfer of property from one private subject to another

private subject may as such be compatible with the "public interest".

The Commission also refers to the Court's Erkner and Hofauer judgment

of 23 April 1987 (Eur. Court H.R., Series A no. 117, p. 78, para. 131)

and to its decision on admissibility in the case of H. v. Sweden

(No. 11417/85, Dec. 9.10.85, not published) which concerned

redistribution of land to other private subjects.

In the present case, the Commission recalls that the

redistribution of land was decided in order to obtain a more suitable

division of properties or otherwise a more suitable usage of the

land.

On the basis of the above considerations and noting that the

applicants have not provided any information on the final outcome of

the redistribution of land, the Commission finds that the material

submitted by the applicants does not disclose any appearance of a

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

It follows that 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 THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

ANNEX

1. Knut Alfred Andersson, born in 1913

2. The Estate of Ilbäcks Herman Johansson

3. Hilmer Hermansson

4. Ragnar Hermansson, born in 1920

5. Ingvar Hermansson, born in 1923

6. Henry Hermansson

7. Christina Granberg, born in 1932

8. Märta Olars, born in 1920

9. Hol Ernst Persson, born in 1913

10. The Estates of Börs Erik Eriksson and Börs Katrina Eriksson

11. Ester Eriksson

12. Bernhard Eriksson

13. Britta Eriksson

14. Edvin Eriksson

15. Gunvor Andersson, born in 1939

16. Jöns Axel Nilsson, born in 1907

17. Ingrid Einarsson, born in 1942

18. Berta Larsson, born in 1914

19. The Estate of Börs Johan Mattson

20. Ingvar Johansson, born in 1914

21. Erik Johansson, born in 1919

22. Sven Ingvarsson, born in 1944

23. Kjell Ingvarsson, born in 1961

24. The Estate of Hans Einar Eriksson

25. Rut Lilja, born in 1930

26. Gustav Einarsson, born in 1936

27. Vallner Hultgren, born in 1924

28. Ingrid Hultgren, born in 1932

29. Hildur Jonsson, born in 1926

30. Mats Hultgren, born in 1952

31. The Estate of Mört Greta Andersson

32. Helmer Nilsson

33. Greta Nilsson

34. Märta Klang

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ANDERSSON and others v. SWEDEN

ANDERSSON and others v. SWEDEN

LEXI