Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12585/86

by K.L.

against Sweden

The European Commission of Human Rights sitting in private

on 13 April 1989, the following members being present:

MM. S. TRECHSEL, Acting President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

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 28 October 1986

by K.L. against Sweden and registered on 5 December 1986

under file No. 12585/86;

Having regard to:

- the first report provided for in Rule 40 of the Rules of

Procedure of the Commission;

- the Commission's decision of 4 July 1988 to invite the

parties to submit written observations on the admissibility

and merits;

- the Government's written observations dated 12 October 1988

and the applicant's observations in reply dated 30 November 1988;

- the second report provided for in Rule 40 of the Rules of

Procedure.

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 1932 and resident

at Mellerud, Sweden. She is a farmer by profession. She is represented

before the Commission by Mr. Rune Lanestrand, who is a farmer and a

journalist.

The particular circumstances of the case

The applicant and her brothers own an agricultural property

called H. 1:23 in the municipality of V.. They have

tried to sell the property three times since 1983, but on each

occasion the Agricultural Committee (lantbruksnämnden) of the province

of Älvsborg has considered the purchase sum to be too high and

rejected the buyers' request for a permit to acquire the property.

Such a permit is needed, according to Section 1 No. 1 of the 1979

Land Acquisition Act (jordförvärvslagen), for the acquisition of

real estate, which is assessed for tax purposes as agricultural

property. If a permit is refused the purchase becomes void.

On 30 August 1985 H. 1:23 was bought by Stefan

Jonasson and Katarina Lewander for 300,000 SEK. According to the

purchase contract the purchase price was to be paid in cash at the

latest when the buyers took possession of the property. The purchase

was made on the condition that the buyers obtained a permit to acquire

the property. On 15 October 1985 the buyers submitted a request for a

permit to acquire H. 1:23 to the Agricultural Committee.

Following investigations by the Agricultural Committee the

buyers were informed by a letter of 7 November 1985 that a refusal of

the request for a permit could be envisaged since the purchase sum was

too high according to the norms of the Agricultural Committee and since

the real estate was needed for rationalisation purposes. According to

the valuation of the Agricultural Committee the price of H. 1:23

should be 255,000 SEK.

The buyers were given the opportunity to comment upon the letter

of the Committee.

On 19 November 1985 the Agricultural Committee rejected the

request for a permit to acquire the property on the ground that the

real estate was needed for rationalisation of forestry. The Committee

referred to Section 4 para. 1 (3) of the Land Acquisition Act.

Stefan Johansson appealed to the National Board of Agriculture

(lantbruksstyrelsen) which in a decision of 20 March 1986 referred to

Section 4 para. 1 (1) and (3) of the Land Acquisition Act and rejected

the appeal, stating inter alia as follows:

"The Agricultural Committee has assessed the real estate at a

value of 255.000 SEK. Since the valuation includes a

reasonable safety margin the Board finds that the purchase sum

considerably exceeds the property's value having regard to its

return and all other circumstances. The Board also finds that

the purchased property is needed for purposes of

rationalisation. It is appropriate to unite it with the real

estate H. 1:28. In that case the purchased property

would be joined together with a farm which can be further

developed and which is run by a full-time farmer, who has

reported need for more land to the Agricultural Committee."

The applicant and the buyers appealed to the Government

(Ministry of Agriculture). The applicant argued inter alia that the

price agreed was not unreasonable and that the owner of H. 1:28

was in fact not interested in buying the property. In a decision of

18 June 1986 the Government rejected the appeal on the same grounds as

those referred to by the National Board of Agriculture. In its decision

the Government reminded the sellers of the possibility to make a

request under Section 14 of the Land Acquisition Act that the State

redeem the property.

Relevant domestic law

The acquisition of real property, which is assessed for tax

purposes as an agricultural holding, is subject to the regulations of

the 1979 Land Acquisition Act. The Act was enacted in 1979 -

replacing an Act of 1965 - in order to implement new agricultural

guidelines adopted by the Riksdag in 1977, and also to meet the policy

goals of forestry and regional planning. Among the aims which, in

particular, were to be promoted by the Act are the creation and

preservation of effective family holdings so as to strengthen the

connection between cultivation and ownership, and also the promotion

of a continuous structural rationalisation of agriculture and

forestry.

Under Section 1 of the Act, a permit is required for the

acquisition of a property assessed for tax purposes as an

agricultural holding. Section 2 enumerates a number of exceptions,

none of which is relevant to the present case. A request for a permit

to acquire a real estate should be made within three months after the

purchase (Section 12).

When deciding on an application for a permit, the desirability

of encouraging the creation and development of rational holdings in

agriculture, forestry and horticulture (farm holdings) shall be taken

into account (Section 3). Furthermore, according to Section 4 an

application for a permit shall be refused inter alia if the price or

other compensation for the property significantly exceeds the value of

the property or if the property is needed for the rationalisation of

agriculture or forestry.

If an application for a permit to acquire agricultural

property has not been made within the time-limit and in the manner

prescribed, or if the permit has been refused, the purchase becomes

void (Section 13).

In case the purchase of agricultural property becomes invalid

as a result of a refusal of permission to acquire the property on the

ground that it is needed for the rationalisation of agriculture and

forestry, the State is, according to Section 14 of the Act, obliged to

redeem the property at the purchase price agreed upon in the invalid

sale if the seller requests it. However, under the same Section no

such obligation exists, in case the purchase price considerably

exceeds the value of the property in view of its yield and other

circumstances, or if the terms are unreasonable in other respects. A

request for redemption should be made to the Agricultural Committee.

If the request is refused an action for redemption may be brought

before the Real Estate Court (fastighetsdomstolen). The decision of

that Court can be appealed to the Court of Appeal (hovrätten) and from

there an appeal lies to the Supreme Court (högsta domstolen).

COMPLAINTS

1. The applicant alleges a violation of Article 6 of the

Convention in that the Agricultural Committee, which is a politically

elected body, first determined the value of her property at a meeting

where neither she nor the buyers could be present and then refused a

permit to acquire the property, and in that no court review was

available in regard to these decisions of the committee.

2. The applicant also complains that the price determined by the

Agricultural Committee was an artificial market price since it was

based on the return of the property and that this price could only be

insignificantly exceeded when the property was sold. In the

applicant's view, this is in violation of Article 1 of Protocol No. 1

to the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 October 1986 and

registered on 5 December 1986.

On 4 July 1988 the Commission decided to communicate the

application to the respondent Government and to invite them to submit

written observations on the admissibility and merits of the

application.

The Government's observations were received by letter dated

12 October 1988 and the applicant's observations in reply were dated

30 November 1988.

THE LAW

1. The applicant complains of the artificial market price which

was determined for her property by the Agricultural Committee and

which could only be insignificantly exceeded in a sale. She considers

this to be a violation of Article 1 of Protocol No. 1 (P1-1) to the

Convention.

Article 1 of Protocol No. 1 (P1-1) reads as follows:

"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 Government submit that this part of the application should

be declared inadmissible for failure to exhaust domestic remedies as

the applicant has not requested the State to redeem the property.

They contend that a redemption procedure might lead to a different

valuation of the property and that the effect, as concerns the

sellers, of the decision not to grant the buyers the permit to acquire

the property, can be estimated only after the redemption proceedings.

The Government contend that the applicant's right to the

purchase price is not covered by Article 1 of Protocol No. 1 (P1-1), but

admit that there has been an interference with the applicant's right

to the peaceful enjoyment of her possessions. This interference

should be considered to be in the nature of control of the use of the

property and should therefore be examined under the second paragraph

of Article 1 of Protocol No. 1 (P1-1). The nature of the decisions complained

of were taken in the general interest, the aim of the Land Acquisition

Act being to develop rational and effective farm holdings, and the

decisions were lawful.

The Government further submit that a fair balance has been struck

between the public interest and the protection of the applicant's

right. Given the wide margin of appreciation afforded to the State as

regards measures implementing legitimate policy goals, the measures

taken in the case must be considered appropriate. The applicant

did not suffer an undue economic burden as a result of the refusal to

grant the buyers a permit to acquire the property. The system of

valuation, based on the property's return and not the market

conditions, must also fall within the State's margin of appreciation.

The allegation that the valuation was incorrect is unsubstantiated and

the price was not the only reason for refusing the permit. Finally, in

view of the State's wide margin of appreciation, the applicant was not

entitled to any compensation for the interference with her property

rights. She could have obtained compensation by requesting that the

property be redeemed.

The Commission considers that the redemption procedure

referred to by the Government cannot be regarded as a legal remedy within the

meaning of Article 26 (Art. 26) of the Convention in relation to the

applicant's complaint of the price restrictions which were imposed on her sale

of the property to the envisaged buyers. Consequently, this complaint cannot

be rejected for failure to exhaust domestic remedies.

The issue to be examined by the Commission is whether in the

circumstances of the case the decision to refuse the buyer a permit to

acquire the property constitutes a violation of the applicant's right

to the peaceful enjoyment of her possessions as guaranteed by Article

1 of Protocol No. 1 (P1-1) to the Convention.

The Commission has made a preliminary examination of this

issue in the light of the submissions of the parties. It considers

that it raises questions of fact and law which are of such a

complex nature that their determination requires an examination of the

merits. The complaint cannot therefore be declared inadmissible as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention, but must be declared admissible, no other ground

for declaring it inadmissible having been established.

2. The applicant alleges a violation of Article 6 para. 1 (Art. 6-1) of

the Convention in that no court review was available in regard to the decisions

of the Agricultural Committee to determine the value of her property and to

refuse the buyers of the property a permit to acquire it.

Article 6 para. 1 (Art. 6-1) first sentence reads as follows:

"In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to

a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

The Government submit that this part of the application should

be declared inadmissible for failure to exhaust domestic remedies, for

the same reasons as the complaint under Article 1 of Protocol No. 1 (P1-1) to

the Convention, or for being manifestly ill-founded.

As regards the merits of the complaint the Government point

out that the purchase contract deals with the procedure to obtain a

permit to acquire the property and refers specifically to the

possibility of the permit being refused. The Government observe that

conditional rights have not been considered as property rights in the

case-law of the Commission (cf. No. 7775/77, Dec. 5.10.78, D.R. 15 p.

143) and allege that no property right is at issue in the case. They

maintain that in view of this and of the possibility to request the

redemption of the property, the decision complained of had only

marginal effects on the applicant's civil rights and could not be considered to

affect civil rights in the sense of Article 6 para. 1 (Art. 6-1) of the

Convention. The Government further maintain that the applicant has waived her

rights under Article 6 para. 1 (Art. 6-1) of the Convention as a result of her

acceptance in the purchase contract of the permit procedure.

If Article 6 para. 1 (Art. 6-1) is found to be applicable, the

Government concede that there was no procedure available to the applicant

satisfying the conditions of that provision.

The Commission considers that the redemption procedure

referred to by the Government cannot be considered to constitute a

legal remedy within the meaning of Article 26 (Art. 26) of the Convention in

regard to the applicant's complaint that no court procedure was

available to review the decisions of the Agricultural Committee

determining the value of the property and refusing a permit for the

buyers to acquire the property. Consequently, this complaint cannot

be rejected for failure to exhaust domestic remedies.

The issues to be decided are: whether the decisions of the

Agricultural Committee were a determination of the applicant's "civil rights"

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention; if so,

whether the applicant can be said to have waived her rights under Article 6

para. 1 (Art. 6-1) and, if not, whether she had at her disposal a procedure

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

dispute which arose over the determination of the price and the refusal of the

permit.

The Commission has made a preliminary examination of these issues in

the light of the submissions of the parties. It 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 complaint cannot

therefore be declared inadmissible as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention, but must be

declared admissible, no other ground for declaring it inadmissible having been

established.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE, without prejudging

the merits.

Secretary to the Commission Acting President of the Commission

H. C. KRÜGER S. TRECHSEL

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