Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12887/87

by H.M.

against Sweden

The European Commission of Human Rights sitting in private

on 7 June 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

H. DANELIUS

G. BATLINER

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

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 6 April 1987

by H.M. against Sweden and registered on 4 May 1987 under file

No. 12887/87;

Having regard to the reports provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to the Government's written observations of

17 April and 17 August 1989 and the applicant's observations of 9 June

and 29 September 1989;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they appear from the parties'

submissions, may be summarised as follows.

The applicant is a Swedish citizen, born in 1931 and resident

at Uppsala. He is a manager by profession.

The applicant is the owner of a property, Fålhagen 37:2. On

22 March 1984 the Building Committee (byggnadsnämnden) of Uppsala

granted the applicant's neighbour a permit to build a house

(ateljébyggnad) on his property, Fålhagen 37:6; it accorded an

exemption from the provisions of Sections 39 and 67 of the Building

Ordinance (byggnadsstadgan) and Section 34 of the Building Act

(byggnadslagen).

The applicant appealed against this decision to the County

Administrative Board (länsstyrelsen) of the Uppsala County. In his

appeal the applicant alleged that the building would have negative

consequences for his property (insight) and that the Building

Committee had dealt with the matter incorrectly. On 25 February 1985

the County Administrative Board rejected the appeal. From the Board's

decision it appears that the neighbour's house is located 25 metres

from the applicant's. In conclusion the Board found that the

neighbour's building could not involve such considerable disadvantages

for the applicant's property that it would not have to be accepted in

central town blocks.

The applicant appealed to the Administrative Court of Appeal

(kammarrätten) of Stockholm which, on 18 April 1986, decided that,

since the case concerned not only the question of a building permit but

also the question of exemption from building prohibitions, the entire

case should be determined by the Government. As regards the building

permit, the Court expressed the opinion that the applicant had

submitted no valid reason for a refusal of the building permit.

On 23 October 1986 the Government (the Ministry of Housing)

rejected the applicant's appeal.

COMPLAINTS

1. The applicant submits that the decision of the Building

Committee is an interference with his civil rights. The decision was

arrived at in manifest breach of the applicable town plan and the

building legislation. Since the dispute over the neighbour's building

permit cannot be examined by a court there has been a violation of

Article 6 of the Convention.

2. The applicant also alleges a violation of Article 13 of the

Convention since no effective remedy was available to him.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 April 1987 and registered

on 4 May 1987.

On 13 December 1988 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the application.

The Government's observations were received by letter dated

17 April 1989 after an extension of the time limit and the applicant's

observations were dated 9 June 1989.

The Government submitted further comments by letter dated

17 August 1989 and a further letter from the applicant was dated

29 September 1989.

THE LAW

The applicant complains that he did not have access to court

for determination of the dispute which arose over the neighbour's

building permit, which implied an exception from the relevant rules.

He invokes Article 6 (Art. 6) of the Convention, which in its first

sentence of the first paragraph (Art. 6-1) 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 applicant also invokes Article 13 (Art. 13) of the

Convention, which guarantees the right to a effective remedy in

respect of alleged violations of the rights and freedoms set forth in

the Convention or its Protocols.

The Government submit that no "right" of the applicant was

affected by the decision to grant his neighbour a building permit. The

decision did not determine any of the applicant's "civil rights" and

hence Article 6 para. 1 (Art. 6-1) of the Convention did not apply to the

proceedings. Consequently, the complaint under Article 6 (Art. 6) is

incompatible ratione materiae with the provisions of the Convention.

The Commission considers that the issues to be decided are

whether the decision to grant the neighbour an exemption from certain

provisions of the building legislation and a building permit was

decisive for a "civil right" of the applicant and, if so, whether a

dispute arose between the applicant and the Swedish authorities in

relation to these questions. In the affirmative, it would have to be

determined whether the applicant had at his disposal a procedure

satisfying the requirements of Article 6 para. 1 (Art. 6-1) in regard

to that dispute.

After an examination of these issues in the light of the parties'

submissions, the Commission considers that they raise questions of fact

and law which are of such a complex nature that their determination

requires an examination of the merits. The application cannot therefore

be declared inadmissible as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention and no

other ground for declaring it inadmissible has been established.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRUGER) (C.A. NØRGAARD)

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H.M. v. SWEDEN

H.M. v. SWEDEN

LEXI