Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12452/86

by C. W. and others

against Sweden

The European Commission of Human Rights sitting in private

on 5 July 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 22 April 1986

by C. W. and others against Sweden and registered on 10 October 1986

under file No. 12452/86;

Having regard to the report provided for in Rule 40 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 application has been introduced by the owners of 65

properties in Stockholm. They are inter alia insurance companies, real

estate companies and individuals. Their particulars are set out in

Appendix 1 attached hereto. Before the Commission the applicants are

represented by Mr. Ingvar Lindqvist, a lawyer and director of the

Stockholm Property Owners' Association (Stockholms fastighets-

ägareförening).

The applicants' properties have been subjected to zonal

expropriation permits (expropriationstillstånd) granted by the

Government to the Stockholm City Council in accordance with Section 44

of the 1947 Building Act (byggnadslagen - hereinafter "the 1947 Act").

The reason for the expropriation permits was an urban redevelopment

planned by the City Council.

The applicants' properties can be divided into four groups

according to the different expropriation permits they were affected

by. The time-limits for the original expropriation permits were

between five and ten years and for two of the groups the time-limits

were extended by three to ten years. The periods in which the

expropriation permits were valid appear below:

Group Expropriation permits Extension of validity of Termination of

issued expropriation permits expropriation per

I 31 July 1956 13 July 1961, 2 April 1965, 1976-1979

14 May 1971

II 24 September 1971 - 1976-1979

III 2 April 1965 28 June 1979 1975-1980

IV 26 November 1971 - 1979

The 1947 Act prohibits any new construction that is not in

conformity with the city plan. It permits, even before, and until,

such a plan has been adopted by the municipal authorities and approved

by the regional authorities, the prohibition as an interim measure of

any construction work (Section 35 combined with Sections 14 and 15 of

the 1947 Act). Section 15 of the Act provides as follows:

"If a question is raised concerning a request for the

adoption of a master plan for a certain zone or for the

amendment of a master plan that has already been approved,

the County Administrative Board may, at the request of the

municipality, prohibit all new construction (nybyggnad)

in that zone. The prohibition shall remain in force until a

decision in the matter has been taken by the municipal

council, but not for more than one year. Where necessary,

the County Administrative Board may, at the request of the

municipality, extend the validity of the prohibition on

construction by a maximum of two years at a time.

Exemptions from the prohibition on construction referred to

in the preceding paragraph may be granted by the County

Administrative Board or, in accordance with rules laid down

by the Government, by the Building Committee (byggnadsnämnd)."

A decision by the County Administrative Board to issue or

extend a prohibition on construction may be challenged by means of an

appeal to the Government (Section 150 para. 2 of the 1947 Act).

Long-term prohibitions on construction were imposed on the

applicants' properties for the larger part of the periods in which the

expropriation permits were valid. For all except ten properties the

building prohibitions expired between 25 March 1976 and 16 September

1985. The building prohibitions concerning the remaining properties

expired as follows:

Sperlingens Backe 29, 30.31 28 August 1986

Sumpen 10, 14 16 February 1987

Lagern 4, 5, 6, 9, 10 9 June 1987

Pilen 18 1 July 1987

Two of the zonal expropriation permits, affecting 37 of the

properties owned by applicants in the present case (see Appendix 2)

were at issue in the case of Sporrong and Lönnroth (Eur. Court H.R.,

Sporrong and Lönnroth judgment of 23 September 1982, Series A No. 52).

The property owners, whose properties were affected by expropriation

permits and prohibitions on construction of long duration, had agreed

that the Sporrong Estate's and Mrs. Lönnroth's cases should be brought

before the Convention organs. The assumption of the owners was that,

if a favourable result was reached in those proceedings, the State

would accept that result and all the property owners in a similar

situation would be compensated.

In its judgment the Court concluded that there had been a

violation of Article 1 of Protocol No. 1 to the Convention as the

expropriation permits, in combination with the long-term prohibitions

on construction imposed on the properties of the applicants in that

case, created a situation which upset the fair balance which should be

struck between the protection of the right of property and the

requirements of the general interest. The Court considered that the

applicants bore an individual and excessive burden which could have

been rendered legitimate only if they had had the possibility of

seeking a reduction of the time-limits or of claiming compensation

(cf. Sporrong and Lönnroth judgment, loc. cit., p. 21, para. 73). The

Court also found a violation of Article 6 of the Convention on the

ground that the case of the Sporrong Estate and Mrs. Lönnroth could

not be heard by a tribunal competent to determine all the aspects of

the matter (cf. Sporrong and Lönnroth judgment, loc. cit., p. 25,

para. 87).

In a judgment of 18 December 1984 under Article 50 of the

Convention the Court afforded the Sporrong Estate and Mrs. Lönnroth

satisfaction assessed at 800.000 SEK and 200.000 SEK, respectively

(Eur. Court H.R., Sporrong and Lönnroth judgment of 18 December 1984,

Series A No. 88, p. 11, para. 32).

On 17 December 1985 all the applicants except the partnership

Klockan 1 made a request to the Government that they be afforded

compensation amounting in total to 86.194.834 SEK. They submitted that

they had been subjected to the same violations of their rights under

the Convention as the Sporrong Estate and Mrs. Lönnroth. They referred

to the fact that the Government had paid damages amounting to 66.667 SEK

to a Mr. Andersson, who owned a fourth of Mrs. Lönnroth's property.

The requested compensation had been calculated according to the

principles applied by the Court when establishing the satisfaction

afforded to the Sporrong Estate and Mrs. Lönnroth. The remaining

applicant, the partnership Klockan 1, made a similar request on

8 August 1986 asking for 9.823.097 SEK.

On 20 February and 9 October 1986 the Government rejected the

requests. They stated that Swedish law does not provide for

compensation for expropriation permits. The Government furthermore

stated that the above judgments of the European Court of Human Rights

do not oblige the State to compensate the present applicants.

COMPLAINTS

1. The applicants submit that it is implied in the Convention

system that decisions of the Convention organs should be respected by

the responding State when dealing with identical cases. The applicants

maintain that, as Sweden has accepted to abide by the judgments of the

Court, the Swedish State should, in accordance with the judgments

given in the case of Sporrong and Lönnroth, afford an equal

compensation to all the property owners whose rights have been

interfered with in the same way. The applicants complain that the

Government rejected their requests for compensation. They allege that

there has been a violation of Article 46 of the Convention.

2. The applicants complain that between 8 and 23 years have

passed without their compensation claims being examined by a court.

They submit that this delay is unreasonable and contrary to Article 6

para. 1 of the Convention.

3. Under Article 1 of Protocol No. 1 to the Convention the

applicants complain:

- that compensation for the property of which they have been

deprived has not been paid "promptly" in accordance with

general principles of international law;

- that the "public interest", e.g. the original grounds for

the expropriation, which was an urban redevelopment planned

by the Municipality of Stockholm, no longer applied after

the Municipality had changed its plans;

- that the consequences of the long-term expropriation permits

in combination with the building prohibitions deprive them of

their right to peaceful enjoyment of their possessions;

- that the expropriation permits were prolonged without any

legal authority and that they therefore were deprived

of their property under conditions not provided by law;

- that the lack of compensation for loss of a great part of

their right to dispose of the property is contrary

to general principles of international law concerning

"just compensation".

4. The applicants maintain that, in comparison with property

owners who were not affected by long-term expropriation permits and

building prohibitions, they were subject to far-reaching

discrimination. They invoke Article 14 of the Convention.

5. The applicants complain that the public expropriation powers

have been misused to limit the rights inherent in ownership to a far

greater extent than was necessary in order to effect the expropriation.

They allege a violation of Article 17 of the Convention.

6. The applicants maintain that, as the Government in their

decisions of 20 February and 9 October 1986 stated that the State has

no obligation to compensate them for the alleged violations of their

rights under the Convention, they have no effective remedy as regards

their claim for compensation or some other form of redress. They

invoke Article 13 of the Convention.

7. The applicants further maintain that they have been subjected

to discrimination as their requests for compensation were rejected.

They submit that another property owner, who owned part of the

Lönnroth property but who had not made an application to the

Convention organs, was afforded compensation. They allege that, in

this respect too, there has been a violation of Article 14 of the

Convention.

THE LAW

1. The applicants complain that there has been a violation of

their rights under Article 1 of Protocol No. 1 (P1-1) to the Convention and

Articles 6, 14 and 17 (Art. 6, 14, 17) of the Convention on account of the

long-term expropriation permits in combination with the building prohibitions.

The applicants also complain under Article 13 (Art. 13) of the

Convention that they had no effective remedy as regards their claim for

compensation or some other form of redress based on the judgments of the Court

in the case of Sporrong and Lönnroth.

Finally, the applicants complain that they have been discriminated

against as their requests for compensation were rejected, while another

property owner in a similar situation, who had not made an application to the

Convention organs, was afforded compensation following the judgments in the

case of Sporrong and Lönnroth. They invoke Article 14 (Art. 14) of the

Convention.

Under Article 26 (Art. 26) of the Convention the Commission may only

deal with an application "after all domestic remedies have been exhausted

according to the generally recognised rules of international law, and within a

period of six months from the date on which the final decision was taken".

According to the Commission's case-law only a remedy which is

"effective and sufficient" can be taken into account under Article 26

(Art. 26). Where no domestic remedy is available, the six months

period in Article 26 (Art. 26) runs from the act or the decision which

is itself alleged to be in violation of the Convention. If the

violation complained of consists of a continuing situation, against

which no domestic remedy is available, the six months period runs from

the end of this continuing situation (cf. No. 6852/74, Dec. 5.12.78,

D.R. 15 p. 5).

The present case has been brought on the basis that the

applicants were in situations identical to those of the Estate of

Sporrong and of Mrs. Lönnroth, and that the applicants have been the

victims of the same violations of the Convention (cf. Sporrong and

Lönnroth judgment, loc. cit.). The Commission notes, however, that

although the present applicants were in a continuing situation similar

to those of the Estate of Sporrong and of Mrs. Lönnroth, this

situation essentially came to an end when the expropriation permits

were revoked or lifted, i.e. at the latest in 1980.

As the present application was only introduced on 22 April

1986, which is more than six months later, it has been lodged out of

time insofar as it concerns the expropriation permits. The Commission

considers that the applicants' ground for not lodging their

application earlier, i.e. that they awaited the outcome of the

Sporrong and Lönnroth case, could not suspend the running of the six

months period in their cases. It furthermore finds that the requests

for compensation which the applicants lodged with the Government, and

which they based on the judgments in the Sporrong and Lönnroth case,

were not effective remedies for the purpose of Article 26 (Art. 26) of

the Convention.

Consequently, in this respect, the application must be

rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

Insofar as the applicants' complaints relate to the building

prohibitions, the Commission notes that for all except ten properties

the application was introduced more than six months after the building

prohibitions had expired. Moreover, the applicants have failed to

show that, after the expropriation permits had been lifted and the

Court's judgment in the Sporrong and Lönnroth case had been given,

they have taken any steps to appeal against the building prohibitions.

The applicants could appeal to the Government under Section 150 of the

1947 Building Act against the relevant decisions of the County

Administrative Board.

It follows that here the applicants have not complied with the

condition as to the exhaustion of domestic remedies, and this part of their

application must also be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

2. The applicants finally complain that the refusal to pay them

compensation means that the Government refuse to abide by the

judgments of the Court in the Sporrong and Lönnroth case. They refer

to the fact that another property owner has received compensation

although he was not an applicant in the Sporrong and Lönnroth case.

They allege that they have been discriminated against and invoke

Article 14 (Art. 14) of the Convention.

The Commission considers however that an applicant cannot

claim to have a right under the Convention to obtain compensation

based on a judgment by the Court in a case concerning another

applicant.

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).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRUGER) (C. A. NØRGAARD)

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C.W. ; AND OTHERS v. SWEDEN

C.W. ; AND OTHERS v. SWEDEN