Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11844/85

by Gunnar ERIKSSON and Others

against Sweden

The European Commission of Human Rights sitting in private

on 29 February 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

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 11 June 1985

by Gunnar Eriksson and Others against Sweden and registered on

30 October 1985 under file N° 11844/85;

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 applicants who are all Swedish citizens are the following:

1. Mr. Gunnar Eriksson, born in 1937 and resident at Storsätern.

He is a farmer and engineer.

2. Mrs. Stina Ohlsson, born in 1941 and resident at Idre.

She is a bank employee.

3. Mrs. Mariann Eriksson, born in 1936 and resident at Storsätern.

She is a factory employee.

4. Mr. Sture Foglé, born in 1923 and resident in Stockholm.

He is a mining engineer.

Before the Commission the applicants are represented by

Mr. Engel Galtung who is a retired engineer residing at Sundbyberg,

Sweden.

The applicants own a piece of land at Storsätern, called

Floåsen 11:13. In 1973 a building plan for the area including Floåsen

11:13 was adopted. This plan was amended on 14 March 1978. A building

plan for the adjoining area including a piece of land called Floåsen

20:99 was adopted by the Government on 16 October 1980. The two areas

are separated from each other by the river Grövlan. According to the

building plans it was envisaged that a road and a bridge be

constructed in order to link Floåsen 20:99 with a highway. This

involved the applicants' property through which the road would be

built.

A construction plan for the road in question was set up by the

Property Formation Authority (fastighetsbildningsmyndigheten) of Mora

on 6 October 1978.

On 22 September 1981 the owner of the area Floåsen 20:99

applied for permission to construct the road as set out in the

construction plan of 1978 and the building plan of 1973 as amended in

1978. The Property Formation Authority examined the application and

the property owners involved, including the applicants, were heard.

On 12 November 1981 the Property Formation Authority decided

to grant the permission requested. It was furthermore decided that

the owners of Floåsen 11:13 should be awarded 11.000 Swedish crowns

(SEK) in compensation for the land and the applicant no. 2 should be

awarded 27.000 SEK in compensation for the loss of a cottage owned by

her which was to be demolished according to the decision. The

Authority decided that the road should be constructed before

31 December 1986.

The applicants lodged an appeal against this decision with the

District Court of Falun (Falu tingsrätt). They claimed that the

decision should be quashed and in the alternative that compensation

should be paid, not only for the market value of the land to be taken

for the road construction, but also for other losses such as

inconveniences relating to noise and dust caused by the future

increase of traffic. The second applicant claimed compensation in

the amount of 734.571 SEK.

In its judgment of 14 September 1984 the District Court stated

inter alia:

"According to Section 49 of the Construction Act

(anläggningslagen) a right may be granted to a property to

construct a road over another property provided the need of

the road is of considerable importance for the first

property and provided substantial inconveniences do not

arise for the latter. The District Court finds it obvious

that it is of considerable importance to grant the right to

construct a road over the property Floåsen 11:13 in

order to satisfy the needs of the property mentioned in the

decision of the Property Formation Authority of an exit to

the public road 1058. Such a permission is in accordance

with the building plan of 1973 and 1978 concerning the village

of Storsätern. The examination of the case does not support

the allegation that the construction of the road and the

traffic which may follow will give rise to substantial

inconveniences for Floåsen 11:13. For these reasons the

plaintiffs' request to quash the decision shall be

rejected."

Furthermore the District Court examined the applicants'

request for compensation. The Court first noted that the applicants

had declared that they were satisfied with the compensation awarded

for the land which was to be taken from them (11,000 SEK) and that the

decision had acquired legal force in that respect. As regards the

claim for compensation for inconveniences resulting from the future

traffic the Court found no reason to award any compensation. The

compensation to be awarded to the second applicant for the destruction

of her cottage was increased to 32.000 SEK.

The applicants appealed against this judgment to the Svea

Court of Appeal (Svea hovrätt) which upheld the judgment on

21 December 1984. Leave to appeal to the Supreme Court (högsta

domstolen) was refused by the Supreme Court on 17 June 1985.

Whilst the above proceedings were pending the owner of Floåsen

20:99 submitted an application requesting permission to construct a

bridge over the river Grövlan in order to connect the property with

the road to be constructed. This question was examined by the Water

Court of Stockholm (Stockholms tingsrätt, vattendomstolen). Before

this Court the first applicant objected to such construction.

On 6 December 1984 the Water Court dismissed the applicant's

objections and granted permission to construct the bridge since no

obstacles according to Chapter 2 of the Water Act (vattenlagen) were

present. The construction thus permitted shall, according to the

judgment, be terminated within five years from the date of the

judgment.

The first applicant appealed against this judgment to the

Water Court of Appeal (vattenöverdomstolen) which upheld the judgment

on 6 March 1985. Leave to appeal to the Supreme Court was refused by

the Supreme Court on 17 June 1985.

The first applicant submitted a request for re-opening of the

above proceedings. This request was rejected by the Supreme Court on

26 March 1987.

On 1 December 1981 the Building Committee (byggnadsnämnden)

of Älvdalen decided, following a request from the applicants, not to

change the building plan. Similar decisions were taken by the

Building Committee on 31 May 1983 and 23 April 1985 following letters

from the applicants' representative.

By letter of 17 February 1983 the applicants' representative,

inter alia, requested the Government to reconsider their decision of

16 October 1980 relating to the adoption of the building plan.

On 24 March 1983 the Government decided not to examine the

request since the matter had been finally determined on 16 October

1980. At present neither the bridge nor the road has been constructed.

The time-limit set for the construction of the road, 31 December 1986,

has expired.

COMPLAINTS

1. The applicants allege a violation of Article 1 of Protocol

No. 1 to the Convention in that a part of their property will be taken

away in order to construct a private road from Floåsen 20:99 to the

public road. They submit that the private road is not in the public

interest.

Even if the land and the cottage will not be taken from them

the applicants allege that Article 1 of Protocol No. 1 has been

violated in that they have, for a very long period of time, lived in

uncertainty as to the future of their property. This uncertainty

involves inter alia damages to the applicants since they cannot

repair the cottage and connect it with the water and sewage system.

2. Furthermore the applicants invoke Article 6 para. 1 and

Article 13 of the Convention. They complain that the courts ignored

their request for compensation and furthermore applied the wrong law

when considering the matter. In particular under Article 13 of the

Convention the applicants submit that the Building Committee's

decisions on building plans are not subject to any appeal.

3. The applicants also allege that the owner of Floåsen 20:99,

a large company, is given undue advantages, and that there has been

discrimination against the applicants.

THE LAW

As to Article 1 of Protocol No. 1 (P1-1)

1. The applicants complain that they will be deprived of property

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

Even if the property will not be taken away from them, they submit

that the uncertainty created by the authorities' decisions violates

the said provision. 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 Commission observes that the construction of the road and

the bridge which is envisaged by the building plans has not yet taken

place, and it is uncertain whether it will ever take place.

The decision of the Property Formation Authority of

12 November 1981, which inter alia gave the owner of Floåsen 20:99 the

right to build a road over the applicants' property and to demolish

the second applicant's cottage, provided that the constructions should

have been terminated before 31 December 1986. Accordingly this

decision can no longer be executed.

The decision of the Water Court of 6 December 1984, which inter

alia gave the owner of Floåsen 20:99 the right to construct a bridge

over the river Grövlan and on the applicants' property, provides that

the constructions should be terminated within five years from the date

of the judgment, i.e. before 6 December 1989.

Consequently, there exists a building plan according to which

a road may be constructed over the applicants' property and a bridge

may be constructed from the applicants' property over the river

Grövlan. There are also two decisions implementing the building plan

one of which, concerning the construction of the bridge, may still be

executed. If land will be taken from the applicants there are rules

guaranteeing compensation as appears from the decision of the Property

Formation Authority.

The building plans at issue were adopted on 14 March 1978

(regarding the land east of the river Grövlan) and on 16 October

1980 (regarding the land west of the river Grövlan). The applicants'

subsequent efforts to obtain a change of the building plans cannot be

regarded as effective remedies for the purpose of Article 26 (Art. 26)

of the Convention. The Commission is consequently prevented by the

six months rule from examining the adoption of those building plans if

it is assumed that the applicants have exhausted domestic remedies in

that respect. The fact that the building plans have remained in force

after they were adopted cannot be considered separately by the

Commission.

It follows that, insofar as the applicants complain about the

adoption and effects of the building plans, this complaint does not

satisfy the conditions of Article 26 (Art. 26) of the Convention and

is consequently inadmissible under Article 27 para. 3 (Art. 27-3).

2. However, the decisions relating to the implementation of the

plans, by the construction of the road and the bridge, have created

an interference with the applicants' right to the peaceful enjoyment

of their possessions as guaranteed by Article 1 of Protocol No. 1

(Art. P1-1). The Commission must therefore examine whether these

decisions constituted deprivation, or only control of the use, of the

applicants' property.

The Commission here notes that the building plans can no

longer be implemented on the basis of the decision of the Property

Formation Authority concerning the construction of a road, a decision

which was not enforced within its stipulated time-limit. It follows

that the applicants cannot be considered to have been "deprived", by

the above decision, of their property within the meaning of the second

sentence of the first paragaraph of Article 1 (P1-1). The Commission next

notes that it is still legally possible to implement the decision

authorising the construction of the bridge, but it considers that the

factual situation is such that also this interference with the

applicants' property right cannot be characterised as deprivation, but

only as "control (of) the use of property". Consequently, the

interferences complained of fall to be considered under the second

paragraph of Article 1 of Protocol No. 1 (P1-1).

The Commission must therefore examine whether the

interferences with the applicants' right to the peaceful enjoyment of

possessions were justified under the second paragraph of Article 1 of

Protocol No. 1 (P1-1). This means that it must consider whether the

decisions concerning the implementation of the building plans were

"necessary to control the use of property in accordance with the

general interest". The task of the Convention organs in this context

is to supervise the lawfulness, purpose and proportionality of the

decisions taken by the domestic authorities (cf. e.g. No. 10378/83,

Dec. 7.12.83, D.R. 35 p. 235). The question of proportionality

requires a determination as to whether a fair balance has been struck

between the demands of the general interest and the interest of the

individual. In determining whether a fair balance exists, the

Contracting State enjoys a wide margin of appreciation with regard

both to choosing means of enforcement and to ascertaining whether the

consequences of enforcement are justified in the general interest for

the purpose of achieving the object of the measure in question (Eur.

Court H.R., Agosi judgment of 24 October 1986, Series A No. 108,

p. 18, para. 52).

The Commission is satisfied that the decisions taken by the

Swedish authorities were lawful. It is also satisfied that they

served the "general interest". A decision authorising the owner of a

property in a development area to construct a bridge and a road in

order to give him access to the public road can be regarded as being

in the "general" interest.

As regards the proportionality between the interference with

the applicants' property rights and the general interest pursued, the

Commission recalls that the road and the bridge were to be constructed

in order to provide access from an area, which was intended to be

developed with leisure houses, to the public road. If this area is

developed according to the plan, it is thus envisaged that land will

be taken from the applicants for the construction of the road and

the bridge.

Although the Commission understands that the uncertainty as

to the implementation of the plans affects and restricts the

applicants in the use of their property, it finds, in view of the wide

margin of appreciation enjoyed by the Contracting States in this area,

that the decisions taken cannot be considered to be disproportionate

to their legitimate purpose. Consequently, the interference with the

applicants' right to the peaceful enjoyment of their possessions was

justified under the terms of the second paragraph of Article 1 of

Protocol No. 1 (P1-1).

The Commission finds no indication of any other issue under

Article 1 of Protocol No. 1 (P1-1).

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.

As to Articles 6 and 13 (Art. 6, 13) of the Convention

3. The applicants also allege violations of Article 6 (Art. 6) and

Article 13 (Art. 13) of the Convention.

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."

Article 13 (Art. 13) of the Convention guarantees to everyone,

whose rights and freedoms in the Convention are violated, the right to

an effective remedy before a national authority.

The applicants' complaints in this respect relate, on the one

hand, to the proceedings concerning the construction of the road and,

on the other hand, to the applicants' efforts to obtain a change of

the building plan.

As regards the proceedings relating to the construction of the

road the applicants submit that the domestic law has been incorrectly

applied and that the decisions on compensation were incorrect.

The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its constant

case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;

No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18 pp. 31, 45).

However, from the applicants' submissions there is no

indication of a possible violation of Articles 6 or 13 (Art. 6, 13) of

the Convention in respect of the proceedings relating to the road and

bridge construction.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4. Insofar as the applicants complain under Articles 6 and 13

(Art. 6, 13) of the Convention of the procedure whereby the building

plans were adopted, the Commission recalls that these plans acquired

legal force in 1978 and 1980 respectively. If it is assumed that the

applicants have exhausted domestic remedies, it follows that the

applicants have not complied with the six months rule in Article 26

(Art. 26) of the Convention and this complaint is consequently

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

5. It is true that the applicants have subsequently tried to

obtain an amendment of the building plans. They have addressed

themselves to the Building Committee which on 1 December 1980,

31 May 1983 and 23 April 1985 decided not to amend the plans.

On 24 March 1983 the Government decided not to examine a request from

Mr. Galtung for reconsideration of the Government's adoption of the

building plan on 16 October 1980.

However, the Commission considers that the above decisions

to reject the applicants' requests to have the building plan amended

cannot be considered to involve a determination of the applicants'

"civil rights" within the meaning of Article 6 (Art. 6) of the

Convention. Nor do they involve any determination of the applicants'

rights and freedoms guaranteed by the Convention.

It follows that in these respects the application is

incompatible ratione materiae with the provisions of the Convention

within the meaning of Article 27 para. 2 (Art. 27-2).

6. The applicants' allegation that Article 1 of Protocol 1 No. 1

(P1-1) was violated as a result of the duration and the uncertainty as to the

implementation of the building plan relates to the adoption of the

building plan and its legal consequences. Accordingly, no separate

issues arise under Articles 6 or 13 (Art. 6, 13) of the Convention in

this respect.

As to Article 14 (Art. 14) of the Convention

7. The applicants have also referred to Article 14 (Art. 14) of

the Convention which prohibits discrimination in the enjoyment of the

rights and freedoms of the Convention. However, in view of its

considerations above the Commission finds no separate issue in this

respect.

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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ERIKSSON and Others v. SWEDEN

ERIKSSON and Others v. SWEDEN