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LORENIUS v. SWEDEN

Doc ref: 12810/87 • ECHR ID: 001-1041

Document date: January 18, 1989

  • Inbound citations: 2
  • Cited paragraphs: 0
  • Outbound citations: 2

LORENIUS v. SWEDEN

Doc ref: 12810/87 • ECHR ID: 001-1041

Document date: January 18, 1989

Cited paragraphs only



                      AS TO THE ADMISSIBILITY OF

                      Application No. 12810/87

                      by Lars Lorenius

                      against Sweden

        The European Commission of Human Rights sitting in private

on 18 January 1989, the following members being present:

              MM. C. A. NØRGAARD, President

                  J. A. FROWEIN

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. WEITZEL

                  J.-C. SOYER

                  H. G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  H. VANDENBERGHE

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C. L. ROZAKIS

             Mrs.  J. LIDDY

             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 December 1986

by Lars Lorenius against Sweden and registered on 16 March 1987 under

file No. 12810/87;

        Having regard to:

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

        Procedure of the Commission;

      - the Commission's decision of 9 December 1987 to invite the

        Government to submit written observations on the admissibility

        and merits of the application;

       - the Government's written observations dated 17 March 1988 and

         the applicant's reply dated 30 June 1988;

      - the second report provided for in the Rules of Procedure.

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts, which are not in dispute between the parties, may

be summarised as follows.

        The applicant is a Swedish citizen born in 1942 and resident

at Bettna.  He was formerly a farmer.  Before the Commission the

applicant is represented by Mr.  Sten Blomqvist, a lawyer practising at

Lidingö.

Particular circumstances of the case

        In April 1979 the applicant acquired an agricultural property

in the municipality of Flen, Forsnäs 1:11 and other units of land, for

4,500,000 SEK.

        On 13 October 1981 he sold the property to a company, Diplo,

for 4,150,000 SEK.  In accordance with the provisions of the Land

Acquisition Act (jordförvärvslagen) the buyer applied for a permit to

acquire the property.  Following indications to the effect that the

Government might not grant a permit because the price was too high,

the applicant and the buyer decided to reduce the price to

3,600,000 SEK.

        On 27 May 1982 the Government decided to reject the

application for a permit pursuant to Section 4 para. 1 (1) and (4) of

the Land Acquisition Act.  In their decision the Government stated the

following reasons:

"The Government find that the price exceeds, not only

insignificantly, the value of the property in view of its

return and other circumstances.  However, the neighbouring

properties, owned by Diplo, and the property at issue must

be regarded as capable of development as separate agricultural

enterprises.  These enterprises should remain independent.

There are no reasons why the purchase should nevertheless

be accepted."

        The applicant submits that as a result of the Government's

decision, which was not subject to appeal, he suffered a financial

loss amounting to 2,439,000 SEK.  In a letter to the Government of

11 September 1984 the applicant requested compensation for his loss.

On 28 February 1985 the Government decided that there was no basis for

paying compensation to the applicant.

        The applicant summoned the State before the District Court

(tingsrätten) of Stockholm claiming compensation for the loss on the

ground that the basis for the Government's decision was deficient and

that, consequently, the decision was wrong.  He claimed to be entitled

to compensation under Chapter 2 Section 18 of the Instrument of

Government (regeringsformen).

        The District Court dismissed the applicant's action, without

having served the summons on the State, by a decision of 26 March 1986,

mainly for the following reasons:

"Under Chapter 3 Section 7 of the Tort Liability Act

(skadeståndslagen) an action for compensation for damages

caused by mistake or negligence in the exercise of public

power may not be brought on the basis of a decision of the

Government, unless the decision has been quashed or

amended.  It has not been argued that the Government's

decision of 27 May 1982 has been quashed or amended.

        The provisions in Chapter 2 Section 18 of the

Instrument of Government about protection for persons who

are deprived of their property by expropriation or other

similar measures are not applicable to the seller of a

property who retains his property because the buyer is

refused a permit to acquire it...".

        The applicant appealed to the Svea Court of Appeal (hovrätt)

which in a decision of 9 October 1985 rejected the appeal.

        The applicant appealed to the Supreme Court (högsta domstolen)

which, on 22 August 1986, refused leave to appeal.  One of the

Justices of the Supreme Court stated in a concurring opinion:

"It could be argued that leave to appeal should be granted

in view of the question whether the provision in Chapter 3

Section 7 of the Tort Liability Act constitutes a procedural

obstacle to the extent that the victim bases his claim for

compensation not on a wrongful decision by the Government,

but on the principles of expropriation law, as expressed in

Chapter 2 Section 18 of the Instrument of Government.  In

the present case it seems, however, that the lower courts

have also examined the substance of such a claim.  In view

hereof and of the other circumstances of the case I am

satisfied that leave to appeal should not be granted."

        On 11 June 1986, the applicant asked the Government to

reconsider their decision of 28 February 1985 and grant him

compensation for the loss he had suffered as a result of the

Government's decision of 27 May 1982.

        On 9 October 1986, the Government stated that the applicant

had not invoked any such circumstances as might cause the Government

to take a different view of the matter from the one that appears in

their decision of 28 February 1985, and that the Government would take

no action on the basis of this new request.

Relevant domestic law

        The acquisition of agricultural properties is subject to

provisions set forth in the 1979 Land Acquisition Act.  The Act aims at

furthering 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

purchase of agricultural properties.  Section 2 enumerates a number of

exceptions to the main rule.  A request for permission to acquire the

real estate shall be submitted within three months after it was

acquired (Section 12).

        When deciding on an application for a permit, account shall be

taken of the desirability of promoting the creation and development of

rational holdings in agriculture, forestry and horticulture (farm

holdings).  Furthermore, under Section 4 first paragraph, an

application for a permit shall be rejected, inter alia, if the sales

price or other compensation for the property considerably exceeds the

value of the property with regard to its yield and other

circumstances, if the property is needed for the rationalisation of

agriculture or forestry or if the acquisition would appear to bring

about the merger of two or more farm holdings which are developed or

capable of development and which should remain separate.

        If an application for a permit has not been submitted within

the time-limit and in the manner prescribed, or if permission to

acquire the property has been refused, the acquisition will be

annulled.

        Chapter 3 Section 7 of the Tort Liability Act restricts the

possibility of bringing an action for compensation on the basis of a

decision taken by the Government.

        Chapter 2 Section 18 of the Instrument of Government

guarantees compensation for the loss suffered by a citizen, whose

property is requisitioned by expropriation or by any other similar

disposition.  Compensation is guaranteed in accordance with principles

governed by law.  Chapter 2 Section 18 of the Instrument of

Government reads as follows:

"Every citizen whose property is requisitioned by

expropriation or by any other similar disposition shall be

guaranteed compensation for his loss in accordance with

principles governed by law."

COMPLAINTS

1.      The applicant complains that Article 1 of Protocol No. 1 to

the Convention has been violated.  As a result of the Government's

refusal to grant the buyer a permit to acquire the property, the

applicant has been deprived of his right to the purchase price.  The

examination which preceded the decision has not been conducted in a

way which effectively secured the applicant's rights.  There was, for

instance, no valuation which could support the opinion that the price

was too high.

2.      The applicant also alleges a violation of Article 6 of the

Convention in that he was not permitted to bring an action before the

courts for compensation for the losses he suffered as a result of the

Government's decision.  The action brought by the applicant was

rejected on formal grounds since the original decision had been

taken by the Government.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 22 December 1986 and

registered on 16 March 1987.

        On 9 December 1987 the Commission decided to communicate the

application to the respondent Government and to invite them to submit

written observations on the admissibility and merits.

        The Government's observations were dated 17 March 1988 and the

applicant's observations in reply were dated 30 June 1988.

SUBMISSIONS OF THE PARTIES

A.      The Government

        In the opinion of the Government there are two sets of

proceedings to be considered in this case.  One of those pertains to

the refusal to grant the buyer (Diplo) a permit to acquire the

property, allegedly leading to deprivation of the applicant's right to

the purchase price.  The other set of proceedings concerns the

applicant's allegation that he was not permitted to bring an action

before a court regarding compensation for his alleged loss.

Article 1 of Protocol No. 1 to the Convention

        As regards the refusal to grant the buyer a permit to acquire

the property, allegedly depriving the applicant of his right to the

purchase price, the Government submit that only the decision refusing

a permit is invoked.  The wording of the application on this point

clearly indicates that only that decision is invoked in support of

the submissions regarding Article 1 of Protocol No.1.  This means that

the domestic remedies on this point were exhausted by the

Government's decision of 27 May 1982.  Since the application was

lodged with the Commission on 22 December 1986, the applicant has

failed to comply with the six months rule in Article 26 of the

Convention as regards this issue.

        As regards the decisions regarding the applicant's request for

damages, the Government contend that they have not been invoked as a

ground for claiming a violation under Article 1 of Protocol No. 1.

        However, if the Commission were to consider these decisions,

the Government contend that the six months period in regard to Article

1 of Protocol No. 1 should be calculated as from the Government's

decision of 28 February 1985.  The Government decision of 9 October

1986 does not, in the Government's opinion, constitute an effective

remedy since it only refers back to the decision of February 1985.  The

same is the case with the court procedure, leading up to the decision

by the Supreme Court of 22 August 1986, which was not an effective

remedy in regard to the complaint under Article 1 of Protocol No. 1

since, mainly in view of the provisions of the Instrument of

Government, the courts could never come to deal with the merits of the

application to acquire the property.  Thus, counting from the

Government's decision of 28 February 1985, the six months rule has not

been complied with.

Article 6 of the Convention

a.      Admissibility

        As regards the complaint under Article 6, the Government

accept that the applicant has complied with the six months rule in

Article 26 of the Convention.  The Government are of the opinion that

the date of the decision by the Supreme Court, i.e. 22 August 1986,

should be considered to be the starting point for calculating the six

months period.

b.      Merits

        As regards the question of whether the applicant was denied

access to the courts on a contestation regarding his civil rights, the

Government first point out that the substance of the applicant's

submissions before the national courts concerned the question of

whether he was entitled to compensation for a measure that he alleged

to be tantamount to expropriation of his property.  The essential

basis for the applicant's allegations was that he considered the

valuation of the property undertaken by the authorities to be

unsatisfactory.  The applicant alleged that the estimated value of the

property was too low, which had caused the appreciation of the sales

price to be faulty.  This issue, in the Government's opinion, is a

question of appreciation of fact.  While it is true that disputes over

facts may indeed constitute a dispute (contestation) regarding a civil

right in the sense of Article 6, the Government contend that, for this

to be the case, a civil right in the sense of the Convention must be

at hand.

        The essential issue brought before the national Swedish courts

by the applicant was whether he was entitled to compensation for the

alleged expropriation of his property, and the appreciation made by

the Government when applying the Land Acquisition Act.  The

legality as such of the measure taken does not, in the Government's

opinion, seem to have been contested by the applicant, only the

appreciations on the basis of which the Government's decision was

taken and the way in which the property's value was established.

        It appears from the jurisprudence of the European Court of

Human Rights that Article 6 para. 1 extends only to contestations

(disputes) over (civil) rights and obligations which can be said, at

least on arguable grounds, to be recognised under domestic law.

Article 6 para. 1 does not in itself guarantee any particular content

for (civil) rights and obligations in the substantive law of the

Contracting States, nor does it require that there be a national court

with competence to invalidate or override national law.  In the

present instance the grant of an acquisition permit and the

appreciations on the basis of which the decision regarding that permit

was to be taken were under the sole jurisdiction of the Government.

The Land Acquisition Act did not in this instance afford any right of

compensation, and the courts considered themselves incompetent to

examine the compensation issue.  In view of this, and in view of the

fact that the applicant has not contended before the Swedish courts

that the Government's decision on the acquisition issue was

incompatible with the laws of Sweden, the Government maintain that

there was no contestation over a civil right in the sense of Article 6

of the Convention.  The Government contend that the position of

Swedish law on this issue is not incompatible with the Convention.

Consequently, the application should be declared manifestly

ill-founded.

        In case the Commission were to find that there was a

contestation over civil rights in the sense of Article 6 of the

Convention, the Government submit the following.

        The applicant's allegation that he was not permitted to bring

before a court the merits of an action regarding compensation for his

alleged loss is correct.  It should, however, be pointed out that the

question whether he had the right to institute litigation against the

Government was examined by the courts, in fact by the court of first

instance, by the Court of Appeal and by the Supreme Court.  The reason

why the courts found themselves not competent to deal with the matter

is that under the Tort Liability Act no action for compensation can be

brought against the State under Section 7 of Chapter 3 (e.g. liability

for financial loss) on account of a decision rendered by the

Government, unless the decision has been reversed or amended.

        Since Article 6 para. 1 does not in itself guarantee any

particular content for (civil) rights and obligations in the

substantive law of the Contracting States, there is nothing in the

Convention to prevent Sweden from enacting a tort law with this

particular limitation.  The Government, therefore, contend that the

applicant had access to court, namely for the assessment of the

question whether the State was liable for the effects of the

Government decision not to grant the buyer a permit to acquire the

property.  The courts ruled that no such liability existed under

Swedish law.  The fact that this ruling had the form of a rejection on

formal grounds does not alter this conclusion.  The Government thus

contend that the applicant had access to court in accordance with

Article 6 para. 1 of the Convention.

        Furthermore, according to the jurisprudence of the Court the

right of access to a court secured by Article 6 para. 1 is not

absolute.  Exceptions are considered to be permitted by implication

since the right of access by its very nature calls for regulation by

the State, regulation which may vary in time and in place according to

the needs and resources of the community and of individuals.  While

stating that Contracting States enjoy a certain margin of appreciation

in laying down such regulations, the European Court of Human Rights

has nevertheless pointed out that it must be satisfied that the

limitations applied do not restrict or reduce the access left to the

individual in such a way or to such an extent that the very essence of

the right is impaired.  The Court has furthermore stated that a

limitation will not be compatible with Article 6 para. 1 if it does

not pursue a legitimate aim and if there is not a reasonable

relationship of proportionality between the means employed and the aim

sought to be achieved.

        The Government contend that in the present instance the aim of

the limitation in question must be considered as being legitimate.

That aim was to exclude the possibility of requesting compensation for

certain decisions taken by the Government, particularly those of a

political character, whereas there was no intention of excluding the

possibility to request damages in court for an administrative decision

by the Government of the kind now in question.  The way this aim was

brought about, i.e. making the reversal or amendment of the Government

decision in question a condition for claiming compensation from the

State because of that decision, clearly lies within the Government's

margin of appreciation.  The Government also contend that this

limitation of access to court does not impair the essence of the

individual's right of access to a court.  Consequently, in the

Government's opinion, there has been no violation of Article 6 para. 1

of the Convention.  With reference to this reasoning the Government

maintain that the application is manifestly ill-founded.

Conclusions

        The Government conclude concerning the admissibility that the

application should be declared inadmissible, as regards the complaint

under Article 1 of Protocol No. 1, for failure to comply with the six

months rule of Article 26 of the Convention, alternatively, as regards

the whole application, for being manifestly ill-founded, and

concerning the merits, that there has been no violation of the

Convention or Protocol No. 1.

B.      The applicant

a.      Article 26 of the Convention

        The applicant submits that the examination of the request for

a permit to acquire the agricultural property and the question of

compensation for the unlawful refusal of the permit are closely

linked.  In order to properly exhaust all remedies the applicant has

felt obliged to try before a civil court to obtain compensation under

the provisions of the Instrument of Government.

        The fact that his "action" has been dismissed by the courts

was not foreseeable.  This particular provision of the Instrument of

Government was enacted in 1979 and has in practice seldom been

applied.  It was therefore necessary for the applicant to have this

fact established before turning to the Commission.  The six months

period should consequently be calculated from the date of the Supreme

Court's decision on 22 August 1986.

b.       Article 1 of Protocol No. 1 to the Convention

        The applicant alleges that the unlawful application of the

relevant Act has caused him great financial losses which have not been

foreseen by the law.  The balance of interest, required by the law,

particularly concerning the price control, has been neglected in a way

which has made the applicant suffer losses which he cannot be obliged

to accept in a State governed by the rule of law.

c.      Article 6 of the Convention

        It has not been possible for the applicant to have examined

before a court the effects of the incorrect application of Swedish law

which has resulted in violations of his civil right to property.  The

extraordinary remedies which exist have been without any prospect

and even formally excluded for the applicant.

        The applicant submits that, for such serious interferences in

the civil law sphere as the quashing of ordinary contracts, there

must exist proper procedures securing an impartial and objective

examination of all the aspects of a case.  No such procedure has been

available to the applicant.

        Moreover, the fact that the provisions of the Convention are

not applied by Swedish courts imply that they are irrelevant.  This

is, in the applicant's view, in breach of Article 13 of the Convention.

THE LAW

1.      The applicant complains that, as a result of the Government's

refusal to grant the buyer a permit to acquire the property, he has

been deprived of his right to the purchase price and there has,

consequently, been 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 Government submit that this complaint is inadmissible for failure

to observe the six months rule laid down in Article 26 (Art. 26) of the

Convention.

        Article 26 (Art. 26) of the Convention provides that the Commission may

only deal with a matter "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".  It is established case-law that

"the final decision" refers only to domestic remedies which can be

considered to be "effective and sufficient" for the purpose of

rectifying the complaint made (see, inter alia, No. 9599/81, Dec.

11.3.85, D.R. 42 p. 33).

        The applicant's complaint is that the refusal to grant the

buyer a permit to acquire the property violated Article 1 of Protocol

No. 1 (P1-1).  The issue concerning the permit was finally decided by the

Government on 27 May 1982, a decision which was not subject to appeal.

        The applicant argues that, in order to comply with Article 26

(Art. 26) of the Convention, he had to try to secure compensation for the

alleged violation on the basis of Chapter 2 Section 18 of the

Instrument of Government.  He maintains that the decision of the

Supreme Court of 22 August 1986 was "the final decision" for the

purposes of Article 26 (Art. 26) of the Convention.

        The Commission first observes that under Chapter 3 Section 7

of the Tort Liability Act the State is exempt from liability if the

claim for compensation is based on a Government decision, unless the

decision has been quashed or amended.  Consequently, an action based

on the Tort Liability Act was not an "effective" remedy for the

purposes of Article 26 (Art. 26).

        The question then arises whether a compensation claim based on

Chapter 2 Section 18 of the Instrument of Government can be regarded

as an "effective remedy".  The Commission recalls that the said

provision guarantees compensation to everyone whose property is

"requisitioned by expropriation or by any other similar disposition".

The District Court held in the present case that this provision did

not apply to the seller of a property who retains the property

because the buyer is refused a permit to acquire it.  Consequently,

the District Court, without having served a summons on the State or

further examined the merits of the claim, dismissed the applicant's

action.  This decision was upheld on appeal.  The Commission further

finds no indication that this provision could possibly be considered

applicable to the present situation which differs essentially from

expropriation.

        In these circumstances the action brought by the applicant

cannot reasonably be considered to have had any prospects of success.

Consequently, it cannot be regarded as an "effective" remedy and

cannot be taken into account when calculating the six months rule in

Article 26 (Art. 26) of the Convention.

        The Government submit that the six months period started to

run from the Government's decision of 28 February 1985, when they

decided that there was no basis for paying compensation to the

applicant.

        The Commission considers that, even if the Government could

have granted the applicant compensation, such a decision would have

been one of pure discretion.  A request for such a discretionary

decision cannot be regarded as a remedy which should be exhausted for

the purposes of Article 26 (Art. 26) (cf.  No. 10530/83, Dec. 16.6.85, D.R. 42

p. 171).

        The starting point for calculating the six months period is

therefore, in the Commission's opinion, the Government's decision of

27 May 1982.  Since the application was not introduced with the

Commission until 22 December 1986 it follows that it has been

introduced out of time and must be rejected pursuant to Article 27

para. 3 (Art. 27-3) of the Convention.

2.      The applicant complains under Article 6 (Art. 6) of the Convention that

he was not allowed to bring an action before the court as the action he brought

was dismissed on formal grounds.  Article 6 para. 1 (Art. 6-1) first sentence

reads:

"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 Commission first observes that it is not here faced with a

complaint of absence of a procedure satisfying the conditions of

Article 6 para. 1 (Art. 6-1) in respect of the Government's decision to refuse

the buyer a permit to acquire the property.

        The applicant's complaint is merely that his action before the

courts was dismissed on formal grounds rather than after an

examination of the merits of the action.  In the proceedings the

applicant sought to establish whether on the basis of the provisions

of Chapter 2 Section 18 of the Instrument of the Government he was

entitled to compensation for the refusal to grant the buyer a permit

to acquire the property.

        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).  However, such a

dispute about the existence of a right must be "genuine and of a

serious nature" (see Eur.  Court H.R., Benthem judgment of

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

        The Commission considers that the applicant was seeking to

obtain a right to compensation which he clearly had no basis for under

Swedish law.  In fact, there is no provision which, in a case like that

of the applicant, entitles the seller to be compensated for any

alleged financial loss resulting from a denial to grant the buyer a

permit to acquire a property.  It is also clear that the applicant did

not even allege such a right under the Land Acquisition Act.  Nor did

he seek to obtain compensation on the basis of the Tort Liability Act.

He chose to rely on the Instrument of Government, which provides for

compensation in case of expropriation or other similar interferences

with property rights.  As is shown by the decisions of the Swedish

courts this was such a far-fetched argument that the District Court

did not even summon the State, but dismissed the action without having

heard the State.

        The Commission finds that the applicant's action was so

clearly without basis in Swedish law that there was no serious dispute

about the existence of a right under Swedish law.  Consequently, he

was not seeking the determination of any "right" under Swedish law and

Article 6 para. 1 (Art. 6-1) of the Convention is therefore

inapplicable.

        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).

3.      The Commission finds no issue under Article 13 (Art. 13) of the

Convention, to which the applicant referred in his pleadings.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission         President of the Commission

    (H. C. KRÜGER)                       (C. A. NØRGAARD)

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