Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14225/88

by Ulla-Brita NORDH and others

against Sweden

The European Commission of Human Rights sitting in private

on 3 December 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

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 27 July 1988

by Ulla-Brita Nordh against Sweden and registered on 20 September 1988

under file No. 14225/88;

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 are the following Swedish citizens:

1. Ulla-Brita Nordh, born in 1926 and resident at Västra

Frölunda;

2. Sune Nordh, born in 1926 and resident at Västra Frölunda;

3. Carl Swenson, born in 1927 and resident in Gothenburg.

The applicants are represented by Mr. Carl-Einar Mellander,

a lawyer practising in Gothenburg.

On 30 November 1977 a natural disaster occurred in a

residential area at Tuve outside Gothenburg when a large area of earth

slipped and 67 houses, including the applicants' houses, were

destroyed. The applicants' buildings were insured but the land was

not insured.

After the disaster, the Government announced that the State

would compensate the property owners. On 1 March 1978 a press release

from the Ministry of Local Government announced that the State would

compensate the land in the area destroyed. In the Government Bill

(p. 96) it was said that the compensation which would have to be paid by

the State essentially concerned the land. In March 1978 Parliament

allocated funds for the compensation. On 1 June 1978 the Government

established a "market value" for the different properties. As regards

the property owned jointly by the first and second applicants the

value was set at 810.000 SEK and the third applicant's property was

evaluated at 510.000 SEK.

By agreements of 18 March and 3 May 1978 the municipality of

Gothenburg took possession of the applicants' properties stating that:

"the State has declared its intention to give the victims

the same financial situation as before the disaster.

Within the Government the work is guided by the principle

that a generous assessment shall be made as regards

compensation to (the victims)".

Subsequently, the State and the insurance companies made an

agreement according to which the insurance companies would pay 70 %

and the State 30 % of the compensation to the victims.

The applicants obtained compensation from their insurance

companies at a level which slightly exceeded the "market value"

established by the Government. But this compensation did not comprise

the land. The applicants are of the opinion that the State is obliged

to compensate them also for the market value of the land under the

decision made by Parliament. The Government, however, took the view

that the State should only compensate the property owners for the

amount which corresponded to the established market value after

deduction of the amount paid by the insurance companies.

The applicants state that as a result of the agreement between

the State and the insurance companies and the view taken by the

Government, it became meaningless to complain about the compensation

received from the insurance company since, if the compensation

exceeded 70 % of the Government's "market value", the State's share of

the compensation would be reduced correspondingly.

By a subsequent agreement, the applicants surrendered their

ownership of the properties to the Gothenburg municipality

for 100 SEK. The applicants submit that they did not surrender their

properties freely because, if they had not signed the agreement, they

would have been struck off the priority list for receiving new

building plots in the Gothenburg area. Moreover, the compensation of

100 SEK constituted payment for a building plot, which in the

applicants' view had a value exceeding 100,000 SEK, and, as regards

the third applicant, the payment also covered compensation for a

garage which was not destroyed.

Following refusals by the Government to grant the applicants

any compensation, the applicants brought proceedings against the State

before the District Court (tingsrätten) of Stockholm claiming

compensation for the land. On 22 February 1982 the District Court

dismissed the applicants' claims, inter alia, on the ground that

Parliament's decision to allocate funds was of a public law

character and could not directly be the basis for a claim of a civil

right character. On 15 February 1985 the Svea Court of Appeal (Svea

hovrätt) confirmed the District Court's findings. The applicants

lodged a further appeal with the Supreme Court (Högsta domstolen)

which on 1 February 1988 confirmed the Court of Appeal's finding. The

Supreme Court considered that the applicants' claims were based on the

allegation that the Government had refused to implement Parliament's

decision about compensation to the victims of the disaster and, in

that context, had introduced conditions for compensation which had not

been put by Parliament. The issue was whether an ordinary court had

jurisdiction to examine a claim on such a ground. The Supreme Court

found that an ordinary court did not have jurisdiction. It referred

to the fact that Parliament decided about the State's expenses and the

Government had the task of implementing those decisions. A court was

not suitable - where the decision to allocate resources had not been

regulated in a legal text - to determine matters concerning the

implementation of such a decision.

COMPLAINTS

1. The applicants complain that they have not had a court

examination of the merits of their claim against the State within a

reasonable time. They allege violations of Article 6 of the

Convention.

2. The applicants also allege violations of Article 1 of Protocol

No. 1 to the Convention, inter alia, on the ground that they

were dispossessed of their properties on conditions which were

subsequently not respected and on the ground that no compensation has

been paid for the land.

3. The applicants also allege violations of Articles 8 and 13 of

the Convention.

4. Finally, the applicants allege that they have been

discriminated against contrary to Article 14 of the Convention in that

they have not received any compensation from the State as offered to

the other victims and on the ground that there has been discrimination

in the proceedings between the State and the applicants.

THE LAW

1. The applicants allege violations of Article 6 para. 1

(Art. 6-1) of the Convention, the first sentence of which reads:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial

tribunal established by law."

The Commission has first examined whether this provision is

applicable to the dispute between the applicants and the State.

Article 6 para. 1 (Art. 6-1) applies to disputes over "rights"

which can be said, at least on arguable grounds, to be recognised

under domestic law. It applies not only to disputes over well

established "rights" but also to disputes as to whether a particular

"right" exists under domestic law (cf. Eur. Court H.R., Lithgow and

Others judgment of 8 July 1986, Series A No. 102, p. 70, para. 192).

Moreover, Article 6 para. 1 (Art. 6-1) only applies if the "right" is

"civil" in character (see Eur. Court H.R., Benthem judgment of 23

October 1985, Series A No. 97, p. 14, para. 32).

The Commission first observes that there is no provision in

Swedish law according to which the State is obliged to pay

compensation to victims of a natural disaster. Moreover, the

Parliamentary decision of 1978 did not result in any Act or other

legal provision regulating the right to compensation. The decision

simply concerned the allocation of funds to compensate the victims of

the Tuve disaster. The payment of compensation to the victims of

the disaster was consequently a unilateral decision of the State of

a public law character. The Commission considers, irrespective of

whether the applicants could claim that a "right" followed from the

State's decision, that any such "right" was of a public law nature and

cannot be characterised as a "civil" right (cf. No. 10612/83, Dec.

10.12.84, D.R. 40 p. 276). Article 6 para. 1 (Art. 6-1) of the

Convention is therefore not applicable to this dispute.

It follows that, in this respect, the application is

incompatible ratione materiae with the provisions of the Convention

and must be rejected under Article 27 para. 2 (Art. 27-2).

As regards any dispute over the agreements entered into

between the applicants and the Gothenburg municipality, the Commission

observes that the applicants could have brought any such dispute

before the ordinary courts. However, they do not allege any violation

of Article 6 para. 1 (Art. 6-1) in this respect.

2. The applicants also allege violations of Article 1 of

Protocol No. 1 (P1-1) to the Convention, which provides:

"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 Commission recalls that the applicants' ownership was

transferred by agreement to the municipality of Gothenburg after the

Tuve disaster. It further recalls that there is no right under

Swedish law to compensation for the effects of a natural disaster

and the Parliament's decision to allocate certain funds to compensate

the victims did not create any right under Swedish law for the

applicants. Nor can such a right be derived from Article 1 of

Protocol No. 1 (P1-1). The Commission further recalls that the

applicants received compensation from their insurance company for the

loss of the buildings, but they did not receive any compensation for

the land. Nevertheless, according to the Government, the compensation

for the buildings covered the value of the properties, including the

land.

The Commission finds, in view of the above, that the facts of

the case do not disclose an interference by the State with the

applicants' right to the peaceful enjoyment of their possessions.

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.

3. The Commission finds no appearance of a violation of the other

provisions invoked by the applicants. The remainder of the

application is therefore also manifestly ill-founded within the meaning

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C.A. NØRGAARD)

Menu

NORDH v. SWEDEN

NORDH v. SWEDEN

LEXI