Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12521/86

by ASSARGENERATOR HB

and ASSAR NORDEBO

against Sweden

The European Commission of Human Rights sitting in private

on 12 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. J. RAYMOND, Deputy 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 15 October 1986

by Assargenerator HB and Assar Nordebo against Sweden and registered

on 7 November 1986 under file No. 12521/86;

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 they appear from the applicants'

submissions, may be summarised as follows.

The applicants are Assargenerator (handelsbolag), a company

with its seat at Kalix (the first applicant), and Mr. Assar Nordebo

(the second applicant), a Swedish citizen born in 1926 and resident at

Vitvattnet, Kalix. Mr. Nordebo is one of the owners of Assargenerator.

On 4 January 1982 the first applicant applied to the Water

Court (vattendomstolen) of the District Court (tingsrätten) of Luleå

for permission to construct a small power station (minikraftverk) to

make use of the water power in the river Kattån. The Court considered

that the question whether the proposed project should be permitted or

not was an issue to be determined by the Government. In an opinion

submitted to the Government (the Ministry of Agriculture) and dated 11

October 1982 the Court referred, pursuant to Chapter 4 Section 20 of

the Water Act (vattenlagen), the issue of a permission to be

determined by the Government. The Court stated, as its opinion, that

it saw no reason to refuse the permission on the basis of the

provisions of the Water Act.

On 4 January 1982 the second applicant applied to the Water

Court for permission to use, at the most, half of the water power of

the river Vistån and to construct and run a mini power station. The

Court considered that the question whether the proposed project should

be permitted or not was an issue to be determined by the Government.

In an opinion submitted to the Government and dated 11 September 1983

the Court referred the issue of a permission to be determined by the

Government. The Court stated, as its opinion, that it saw no reason,

on the basis of the provisions of the Water Act, not to permit the

proposed enterprise.

On 23 May 1985 the Government refused to grant the permissions

requested and rejected a claim for compensation for loss of income

from the first applicant. In its decision relating to Kattån, the

Government stated:

"The Government consider that the provisions of Chapter 2 of

the Water Act (1918:523) do not prevent the requested project.

The project concerns the river Kattån which is part of the

tributaries of the river Kalix. These inland waters are

regulated by the parliamentary decision of 1977 concerning the

guidelines of the national planning of the inland waters in

Northern Svealand and Norrland. According to this decision, no

power station shall be constructed in the river Kalix or its

tributaries. However, it appears from the parliamentary

resolution concerning the above-mentioned guidelines that they

may not constitute an obstacle to small measures relating,

for example, to constructions already made. The river Kattån

is not affected by such constructions. The project is not

required for the local supply of energy.

The Government consider that the proposed development cannot

be considered as such a small measure as would be compatible

with the decision concerning the guidelines for the national

planning. The development is therefore incompatible with

general planning policy.

The Government find that the project is contrary to Chapter 4

Section 18 para. 2 of the Water Act (1918:523).

The request for compensation for loss of income from energy

production is rejected."

The Government's decision relating to Vistån contained similar

reasoning, but for the fact that Vistån was part of the tributaries to

the Pite river.

The applicants pursued their applications before the Water

Court. They argued inter alia that the Parliament's decision

concerning the above-mentioned guidelines did not apply to the

tributaries to the Kalix and Pite rivers and that, consequently, the

Government's decision was based on incorrect assumptions. In judgments

dated 5 September 1985 the Water Court rejected the applications on

the ground that the permissibility of the proposed enterprises had

been finally determined by the Government.

The applicants appealed to the Water Court of Appeal

(vattenöverdomstolen) which confirmed the judgments of the Water Court

on 20 January 1986 since the proposed projects were not permissible

following the Government's decision.

The applicants lodged a further appeal with the Supreme Court

(högsta domstolen) which refused to grant leave to appeal on

24 September 1986.

Later the applicants applied for re-opening (resning) of the

proceedings. The application was rejected by the Supreme Court on

5 October 1987. A further application for re-opening of the

proceedings was lodged with the Supreme Court on 23 April 1988.

COMPLAINTS

1. The applicants complain that as a result of the judgments in

the case they have been deprived of their sources of energy and their

claims for compensation have been rejected. They allege that Article 1

of Protocol No. 1 to the Convention has been violated.

2. The authorities involved in the case have not applied the law

in a manner compatible with the public interest. The courts have

accepted the false descriptions of the relevant Bill given by the

Government. The applicants' right to an impartial and public hearing

within a reasonable time before an impartial and independent court, as

guaranteed by Article 6 of the Convention, has not been respected.

THE LAW

1. The applicants complain that they have been deprived of their

sources of energy in breach of Article 1 of Protocol No. 1 (P1-1) to

the Convention, which protects the right to property.

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

Commission may only deal with an application if it has been submitted

within a period of six months from the date on which the final

decision was taken. Here, the question arises as to which decision is

to be regarded as the "final decision". The Commission notes in this

context that in its opinions to the Government of 11 October 1982 and

11 September 1983 the Water Court considered that, under the relevant

provisions, the Government were the competent body to determine the

question whether the applicants' projects were to be permitted under

the Water Act. The Commission also notes that in the judgments of 5

September 1985 the Water Court found that the Government's decisions

of 23 May 1985 had finally settled the question of whether the

proposed constructions could be permitted. The Water Court of Appeal

found that the proposed projects were not permissible following the

Government's decision and confirmed the judgments of the Water Court.

The Commission considers that it follows from the above that

the question whether the proposed projects were permissible was

finally decided by the Government on 23 May 1985. Consequently, this

decision must be regarded as "the final decision" for the purpose of

calculating the six months period. It follows that, since the

application was introduced on 15 October 1986 - which is more than six

months after 23 May 1985 - this complaint has been raised out of

time.

Accordingly, this part of the application must be rejected

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

2. The applicants also complain that they have not been accorded

a fair and public hearing satisfying the conditions or Article 6

para. 1 (Art 6-1) of the Convention.

In view of its consideration above under No. 1 the Commission

considers that any allegation relating to the proceedings before the

Government must also be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention as being out of time.

3. Insofar as the applicants maintain that the proceedings before

the Water Court and the Water Court of Appeal did not meet the

requirements of Article 6 (Art. 6) of the Convention, the Commission

considers that it is not necessary to decide whether any "civil right"

of the applicants was determined in those proceedings. Even if this

were so, the Commission finds no appearance of any violation of

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

It follows that, in this respect, the application is

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

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C. A. NØRGAARD)

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ASSARGENERATOR AB and NORDEBO v. SWEDEN

ASSARGENERATOR AB and NORDEBO v. SWEDEN

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