AS TO THE ADMISSIBILITY OF

                      Application No. 12033/86

                      by Anders and Maria FREDIN

                      against Sweden

        The European Commission of Human Rights sitting in private

on 14 December 1987, the following members being present:

              MM. C.A. NØRGAARD, President

                  S. TRECHSEL

                  F. ERMACORA

                  G. SPERDUTI

                  E. BUSUTTIL

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  J. CAMPINOS

             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 5 March 1986

by Anders and Maria Fredin against Sweden and registered on 10 March

1986 under file N° 12033/86;

        Having regard to:

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

        Procedure of the Commission;

    _   the Commission's decision of 13 October 1986 to invite the

        Government to submit written observations on the admissibility

        and merits;

    -   the Government's written observations dated 11 February 1987

        and the applicants' observations in reply dated 28 April 1987;

    -   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 applicants are Mr.  Anders Fredin and his wife, Mrs.  Maria

Fredin, born in 1944 and 1946 respectively.  They are Swedish citizens

resident at Grödinge.  Mr.  Fredin is an agricultural engineer by

profession.  The applicants are represented before the Commission by

Mr.  Jan Axelsson, a lawyer practising in Stockholm.

The particular circumstances of the case

        The applicants own a parcel of land called Ström 1:3 situated

in the municipality of Botkyrka.  The piece of land has no economic

value except as a gravel pit.  It has been exploited as such for more

than one hundred years.  The present quantity of exploitable gravel is

calculated at approximately 20 million tonnes with a total exploitable

value of 30 million SEK.

        On 11 December 1963 Mr.  Fredin's parents, who were then the

owners of the property, were granted a permit to exploit gravel on the

property.   The permit was required under the then applicable

legislation and it was valid for a period of 30 years as from the date

of its issue.  At that time, an owner of a gravel pit was entitled to

compensation if a permit to exploit gravel from the property was

refused.

        The right to take gravel from the land was, at the time, let

to a company.  The contract allowed the land-owners to take gravel for

their own use.

        Mr.  Anders Fredin acquired a fifth of the property on

4 September 1969 by gift from his mother, as did his sister and his

brother.

        By an Act (1973:311) which came into force on 1 July 1973 the

County Administrative Board (länsstyrelsen) was empowered to cancel

permits more than ten years old.  By the same Act, the right to

compensation was abolished.

        On 31 July 1977, the applicants acquired the entire property

in question.  The County Administrative Board was informed of the

change in ownership.  The lease of the right to take gravel was still

in force, but it ceased on 1 October 1979.  On 3 October 1979, the

applicants reported to the County Administrative Board that they

possessed the gravel exploitation rights and they asked for the

permit to take gravel to be formally transferred to them.

        On 30 May 1980, the County Administrative Board issued a

permit allowing Mr.  Fredin to install shiploading equipment on the

seashore adjacent to the gravel pit.  Mr.  Fredin built a quay with

equipment at a cost of 1 million SEK.

        On 1 June 1981, the County Administrative Board asked the

applicants to pledge a financial security.

        On 14 April 1983 the County Administrative Board of the

Stockholm County transferred the exploitation permit to the

applicants.

        On 19 December 1984 the County Administrative Board, in view

of the damages on the land and the environment, ordered that the

exploitation of the gravel should cease as soon as possible.  The

Board found however that a closing down period of three years was

reasonable, and it fixed the permit to be valid until the end of 1987.

It was stated that all the works on the gravel should be terminated

and the area in question should be restored by the end of 1987.  The

Board also ordered that the applicants should deposit a security of

200,000 SEK to safeguard restoration costs.

        The applicants appealed to the Government.  In a decision of

12 December 1985 the Government rejected the appeal stating that they

concurred with the County Administrative Board's assessment that the

exploitation of the gravel at issue should be terminated and the

gravel pit restored.  The Government ordered that the permit should

be valid until 1 June 1988 and that the security for costs should be

submitted to the County Administrative Board at the latest on

1 March 1986.

Relevant domestic law

        The basic regulations on the protection of nature are laid

down in the 1964 Nature Conservation Act (naturvårdslag).

        It appears from Section 1 of the Act that the legislation is

based on the Swedish legal principle that nature is accessible to

everybody by virtue of the right of common access (allemansrätten) and

that everybody must show due regard and circumspection in their

dealings with nature.

        Section 1 para. 3 provides that, if damage to nature is

bound to result from an enterprise or in any other way, the necessary

measures shall be taken to limit or counteract the damage.

        Section 3 provides that, when deciding on questions relating

to nature conservation, other public and private interests must be duly

considered.

        According to Section 18 of the Act, extraction of gravel

(grustäkt) for other purposes than the domestic needs of the landowner

may not be carried out without a permit (täkttillstånd) from the

County Administrative Board.  The Board may require a party applying

for an extraction permit to submit material showing the need for the

exploitation as well as a properly detailed extraction plan

(täktplan).

        When issuing a permit, the Board shall prescribe the

conditions required to restrict or counteract harmful effects of the

enterprise upon the natural environment.  In order to ensure that the

conditions prescribed will actually be fulfilled, the validity of a

permit shall, in the absence of reasons to the contrary, be made

conditional upon the pledging of a financial security.

        If ten years have passed from the day on which an extraction

permit acquired legal force, the Board may, according to Section 18

para. 4 of the Act, revoke the permit completely or in part or may

combine it with revised conditions.  This provision was introduced by

an amendment to the Act on 1 July 1973.  According to the transitional

provisions, in respect of extraction permits existing at the time the

amendment entered into force, i.e. on 1 July 1973, the ten years

period was to be calculated as from that date.  By the same amendment,

then existing provisions were also abolished, according to which a

landowner, under certain circumstances, could be granted compensation

in case he was refused an extraction permit.

        Section 18 of the Act reads as follows:

(Swedish)

"Täkt av sten, grus, sand, lera, jord, torv eller andra

jordarter för annat ändamål än markinnehavarens husbehov

får ej ske utan länsstyrelsens tillstånd.  Vad nu sagts avser

dock ej  ... .

Länsstyrelsen får förelägga den som söker täkttillstånd att,

vid äventyr att ansökningen avvisas, lägga fram utredning

som belyser behovet av täkten samt en täktplan av

erforderlig omfattning.  Tillståndet skall förenas med

de villkor som behövs för att begränsa eller motverka

företagets menliga inverkan på naturmiljön.  Om ej särskilda

skäl föranleder annat, skall tillstånd för sin giltighet

göras beroende av att säkerhet ställs för sålunda föreskrivna

villkor.  Visar sig sådan säkerhet otillräcklig, får

länsstyrelsen föreskriva att tillståndet skall gälla endast

om ytterligare säkerhet ställs.

Om fullgörandet av föreskriven åtgärd ankommer på annan än

markens innehavare, är innehavaren skyldig tåla att åtgärden

vidtages.

Har tio år förflutit från det täkttillstånd har vunnit laga

kraft, får länsstyrelesen upphäva tillståndet helt eller

delvis eller förena tillståndet med ändrade villkor.  Visar

det sig att föreskrivna villkor inte i den utsträckning som behövs

begränsar eller motverkar företagets menliga inverkan på

naturmiljön, får länsstyrelsen före utgången av den angivna

tiden förena tillståndet med de ytterligare villkor som behövs."

(English translation)

"Quarrying of stone, extraction of gravel, sand, clay, top

soil, peat, or other types of earth for other purposes than

domestic needs of the landowner may not be carried out

without a permit from the County Administrative Board.

The aforesaid shall not apply to ... .

The County Administrative Board may require a party

applying for a quarrying or extraction permit to submit,

on pain of the application being rejected, material

showing the need for the quarrying or extraction and a

properly detailed quarrying or extraction plan.  The permit

shall be combined with the conditions necessary to restrict

or counteract harmful effects of the enterprise upon the

natural environment.  In the absence of special reasons to

the contrary, the validity of a permit shall be conditional

upon the pledging of a financial security, so as to ensure

that the conditions prescribed are actually fulfilled.  If

the security given proves to be inadequate, the County

Administrative Board may order that the permit will become

effective only if additional security is pledged.

If the fulfilment of a prescribed condition is incumbent on

another party than the landowner, the latter must tolerate

the measure being taken.

If ten years have passed from the day on which a quarrying

or extraction permit acquired legal force, the County

Administrative Board may revoke the permit completely or

in part or may combine its renewal with revised conditions.

If it becomes apparent that the conditions set do not

sufficiently restrict or counteract the damaging effects

that the activities may have on the natural environment,

the County Administrative Board may, before the expiry of the

stated period, make the permit subject to such additional

conditions as may be necessary."

        From Section 40 para. 2 of the Act, it appears that a

decision taken by the County Administrative Board may be appealed

to the Government.  No appeal lies against a decision of the

Government.

COMPLAINTS

1.      The applicants submit that the decision of the County

Administrative Board, as upheld by the Government, constitutes an

infringement of the applicants' rights to peaceful enjoyment of their

possessions.  Since the property was made totally worthless by the

cancellation of the exploitation permit, the order is tantamount to a

deprivation of property rights, not the mere control of the use of

that property.  In the applicants' opinion the order constitutes a

deprivation of all fruitful and gainful use of the property without

any compensation.  They allege a violation of Article 1 of Protocol

No. 1.

2.      The applicants submit that the right to take gravel from their

property is a civil right and the obligation to deposit a bank

guarantee is a civil obligation.  Since their only right of appeal was

to the Government the applicants submit that they have been denied the

right to a hearing by an independent tribunal as guaranteed by Article 6

of the Convention.

3.      In their written observations of 28 April 1987 the applicants

have further submitted that they were the victims of discrimination

since the County Administrative Board treated their case differently

from other cases concerning gravel pits in the region, allegedly on

the ground that the applicants are the only independent operators in

this area.  The applicants invoke Article 14 of the Convention together

with Article 1 of Protocol No. 1.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 5 March 1986 and registered

on 10 March 1986.

        On 13 October 1986 the Commission decided to invite the respondent

Government to submit written observations on the admissibility and merits

of the application.

        The Government's observations were received by letter of

11 February 1987 after an extension of the time-limit for reply until

16 February 1987 and the applicants' observations in reply were dated

28 April 1987 after an extension of the time-limit until 30 April 1987.

SUBMISSIONS OF THE PARTIES

A.      The Government

1.      The facts

        The Government recall that the extraction permit was granted

to the then owners of the property and, accordingly, not the

applicants.  By a decision of the County Administrative Board on 14

April 1983, the permit was transferred to the applicants and also made

conditional upon the pledging of a financial security to the amount of

75.000 SEK. Furthermore, by the same decision the applicants were

notified, among other things, that in the course of 1983 the Board

intended to reconsider the extraction permit and consider the

cessation of the exploitation in view of the amendment of 1 July 1973

to the Nature Conservation Act.

        On 25 August 1983 the Board notified the applicants that, due

to the interest of preserving nature in the area and, in addition,

since there was no need for pursuing the exploitation, it intended to

reconsider the extraction permit.  The applicants were accordingly

ordered to provide a revised extraction plan, and certain instructions

were given as to the cessation of the exploitation.

        During the autumn of 1983, an inspection on the spot was made

of the applicants' exploitation enterprise.  According to the minutes

of the inspection, dated 26 October 1983, some of the instructions

mentioned above had not been complied with.

        In a memorandum issued on 14 May 1984, the County

Administrative Board presented two possible alternatives for the

cessation of the applicants' exploitation enterprise.  According to

one of the alternatives, the extraction was to be discontinued as soon as

possible.  The other alternative envisaged the exploitation to continue

for another couple of years.  The first applicant, Mr.  Fredin, and the

National Environment Protection Board (naturvårdsverket), among

others, were given an opportunity of commenting on the memorandum.  In

its comments of 18 September 1984, the National Environment Protection

Board, being responsible on the national level for the supervision of

nature conservation, stated that, in view of the harmful effects of the

enterprise upon the natural environment, the exploitation should be

discontinued as soon as possible.  Despite this opinion, which was

also the view held by the County Administrative Board itself, the

Board decided, referring to, among other things, the view of the

applicants, that they should be granted another three years in order

to afford them reasonable time for the winding up of the enterprise.

2.      The admissibility

        The Government have no objection to make as far as the domestic

remedies rule and the six months rule of Article 26 of the Convention are

concerned.

        However, the Government submit that the complaint under

Article 6 of the Convention should be rejected as being incompatible

ratione materiae with the Convention for falling outside the scope of

the Convention and that the complaint under Article 1 of Protocol No.

1 should be rejected for being manifestly ill-founded.  The reasons

are set out below.

3.      The merits

        3.1  Article 6 para. 1 of the Convention

        When acceding to the Convention, the Government were

convinced that proceedings, like the present ones, in the field of

public or administrative law, which are dominated by considerations

of public interest and determined principally by considerations of

policy, would not come within the scope of Article 6 para. 1.  In

the Government's view such an interpretation is well in line with

the wording of the text and is also supported by the travaux

préparatoires.  Furthermore, in view of the legal systems of many

States Party to the Convention, there are good reasons for assuming

that Article 6 para. 1 was not intended to encompass proceedings of

the kind now considered.

        However, the majority of the members of the Court has taken a

different view.  By gradually widening the scope of Article 6 para. 1,

this majority has construed wide areas of what has traditionally been

recognised as public or administrative law to involve the

"determination of civil rights".  In the course of this development,

the Court has been faced with a number of cases that have concerned

activities entirely or partly carried on in the private sector

although carefully regulated and supervised by the State in the public

interest.  Although this development has yielded a few guidelines for

the interpretation of the concept of "the determination of civil

rights", the Court has not yet laid down a general and all-encompassing

definition of the concept.  Instead, the Court has solved the issues

presented on a case-by-case basis, essentially by considering the

particulars of each case in view of a few vague and generally phrased

principles and, on occasions, by engaging in an over-all evaluation of

the relative cogency of the features of public law and private law

present in the case.

        In the Government's opinion, the Court's approach has left

the Contracting States with a considerable uncertainty as to what will

ultimately be the scope of Article 6 para. 1 of the Convention.

        The Government are well aware that precedents could easily be

referred to which at first glance would seem to suggest that also the

present case would come within the scope of Article 6 para. 1.  It may

suffice to refer to the Court's reasoning in the Benthem case (Eur.

Court H.R., Benthem judgment of 23 October 1985, Series A no. 97).

However, having considered the particulars of the present case in the

light of previous case-law, the Government have come to the

conclusion that the facts of the case warrant a different outcome,

i.e. that Article 6, para. 1 be found not to be applicable.

        At the outset, the Government observe that Article 6 para. 1

does not apply to the determination of civil rights and obligations

which are not recognised under domestic law.  Consequently, it does not

offer any guarantee as to the content of such rights and obligations

in the substantive law of the Contracting States, and it does not

require that there be a national court with competence to invalidate

or override national law (see Eur.  Court H.R., James and Others

judgment of 21 February 1986, Series A no. 98, p. 46, para. 81).

Accordingly, in case of the taking of property or the imposition of

restrictions on the use of property, Article 6 para. 1 does not

require a court review of the very entitlement to take the property or

to restrict the use of it in so far as the taking and the restrictions

are in conformity with the national legislation.

        Furthermore, the European Court of Human Rights has

consistently held that for a case to come within the scope of Article

6 para. 1, it has to involve a "contestation" (dispute) within the

meaning of that Article.  The dispute must concern "civil rights and

obligations", i.e. such rights and obligations "must be the object -

or one of the objects - of the dispute", "a tenuous connection" being

insufficient.  Furthermore, the dispute must be "genuine and of a

serious nature" and may concern "questions of fact" or "questions of

law" (see e.g. the Benthem case, loc. cit., p. 15, para. 32).  While

further clarification would seem desirable as to the requirements that

"civil rights and obligations (be) the object - or one of the objects

- of the dispute" and that the dispute be "genuine and of a serious

nature", the meaning of the requirement that the dispute concern

"questions of fact" or "questions of law" would seem to be reasonably

clear.  In the Government's opinion, this could only mean that, for

Article 6 to be applicable, at least one of two conditions need to be

met:  either there has to be a disagreement as to the facts on which

the disputed decision is based, or there has to be a disagreement

concerning the legal basis for the decision.

        Consistent with this conclusion, where the Court has not found

such a disagreement on questions of fact or questions of law to be

present, it has held Article 6 para. 1 not to be applicable (see Eur.

Court H.R., van Marle and Others judgment of 26 June 1986, pp. 11-12,

paras. 33 - 37).  Furthermore, when considering the character of the

disagreements involved, i.e.  whether they concern "questions of fact"

or "questions of law", only such disagreements which are explicitly

invoked before the Convention institutions would appear to be

relevant.

        In the present case, the complaint under Article 6 of the

Convention is based on mere statements that "the right to take gravel

from (the) property is a civil right" and "the obligation to deposit a

bank guarantee is a civil obligation".  Furthermore, the only facts

invoked in respect of the disputed decision are the legislation that

entered into force on 1 July 1973 and the orders that the exploitation

be discontinued and that a bank guarantee be pledged.

        Accordingly, it does not appear from the application whether

it is based on an assumption that Article 6 para. 1 guarantees a right

to have any infringement on the right of property examined by a court,

regardless of the national legislation, or if the applicants consider

the orders that the exploitation be discontinued and a bank guarantee

be pledged unjustified under Swedish law.

        If the application is based on the first assumption, the

Government submit that it falls outside the scope of this provision,

since the scope of this provision extends only to disputes over rights

and obligations which are recognised under domestic law.  To take

another view would in the Government's opinion lead to unreasonable

consequences.  Thus, the justification of any legal provision

affecting in one way or another the right of use of property would

need to be subject to court review.  No such requirement could be read

into Article 6 para. 1.

        Also in case the complaint is viewed as being based on the

other line of reasoning indicated above, the Government take the

position that it falls outside the scope of Article 6 para. 1.  For a

case to come within the scope of this provision, it has to involve a

dispute concerning "questions of fact" or "questions of law".

Furthermore, this dispute has to be "genuine and of a serious nature",

and "civil rights and obligations must be the object - or one of the

objects - of the dispute".  As follows from what has been said above,

no "dispute" appears to have been invoked in the complaint as

submitted to the Commission.  Moreover, even if one were to assume the

existence of a "dispute", there is nothing in the complaint brought

before the Commission that would justify the conclusion that this

"dispute" concerns "questions of fact" or "questions of law", that it

is "genuine and of a serious nature" and that "civil rights and

obligations are the object - or one of the objects - of the dispute".

Admittedly, in the disputed decision by the Government of 12 December

1985, there is an indication as to the existence of disagreements on

questions of law in respect of "certain instructions" contained in the

decision of the County Administrative Board of 19 December 1984.

However, these points are not pursued before the Commission and,

therefore, should not be of any relevance for the consideration of the

present issue.  Besides, there is nothing in the Government's decision

as such, or in any other document submitted to the Commission, which

could yield any conclusion as to whether the dispute was "genuine and

of a serious nature" as required under Article 6 para. 1.  Moreover,

there is nothing that points to the relation between the disagreements

indicated and the rights and obligations invoked before the Commission.

In other words, in the Government's opinion there is no basis for

concluding that the rights and obligations referred to in the

complaint were indeed "the object - or one of the objects -" of the

disagreements as is required under Article 6 para. 1.

        In this context the Government add that the complaint would

in their opinion seem to concern, in essence, what the applicants

consider to be an incorrect assessment of the interest of preserving

nature at the expense of their own interests.  Such an assessment is

closely intertwined with and, moreover, directly dependent on policy

considerations as regards, among other things, the future location of

for instance residential areas, industrial plants and parks or other

facilities for outdoor recreation activities of the public.  Although

an assessment of this kind may also touch on questions of fact and of

law susceptible of judicial scrutiny, there is in the Government's

opinion nothing to indicate that this is so in the present case.  This

being so, the Government submit that the assessment made by the

authorities in this case is as "far removed from the exercise of the

normal judicial function" as was the assessment involved in the case

of van Marle and Others, and disagreements which the European Court

found not to be covered by the safeguards of Article 6 para. 1

of the Convention.

        To sum up, the Government submit that this part of the

complaint falls outside the scope of Article 6 para. 1 of the

Convention since it does not involve any "contestation" (dispute) over

"civil rights and obligations" within the meaning of this provision.

        In case the Commission would consider Article 6 para. 1 to be

applicable, the Government admit that the applicants did not have the

benefit of a procedure meeting the requirements of this provision.

        3.2  Article 1 of Protocol No. 1

        The Government admit that the disputed decision amounted to an

interference with the applicants' right to the peaceful enjoyment of

their property.  The legislation applied and the measures taken

constitute in the Government's view a control of the use of property

within the meaning of the second paragraph of Article 1.  The

Government do not share the applicants' view that the second sentence

of the first paragraph is applicable, i.e. that the applicants were

deprived of the property.  The Court has explicitly found the scope of

that provision to be limited to the situation where someone is

"deprived of ownership" (see Eur.  Court H.R., Handyside judgment of 7

December 1976, Series A no. 24, p. 29, para. 62).  Furthermore, the

Court found the second paragraph, but not the second sentence of the

first paragraph, applicable in a situation involving a deprivation of

property since the deprivation "formed a constituent element of the

procedure for the control of the use" of the property (Eur.  Court

H.R., Agosi judgment of 24 October 1986, Series A no. 108, p. 17,

para. 51).

        In the present case it is clear that the relevant legislation

was enacted for the only purpose of controlling the use of property

and also that no other reasons were behind the measures actually

taken.  Accordingly, the only issue before the Commission is whether

the measures taken are justified under the second paragraph as

construed in light of the general principle of the peaceful enjoyment

of possessions contained in the first sentence of the first paragraph.

        Under the second paragraph, a State is entitled to "enforce

such laws as it deems necessary to control the use of property in

accordance with the general interest".  This paragraph, unlike a

number of other provisions of the Convention, sets the Contracting

States up as sole judges of the "necessity" for an interference (see

e.g. the Handyside judgment, loc. cit., p. 29, para. 62).  Thus, in

respect of the second paragraph, the only questions to be considered

by the Commission are whether the measures taken constituted law

enforcement and, if so, whether the law enforced was dictated by "the

general interest".  The disputed measures were taken in accordance

with Section 18 of the Nature Conservation Act and, furthermore, the

policy goal underlying the Act is to preserve nature in the interest

of the public.  In view of this, the Government maintain that both

questions have to be answered in the affirmative.  The Government also

observe that no other opinion seems to have been expressed by the

applicants before the Commission.

        The requirement that the second paragraph be construed in the

light of the general principle of the peaceful enjoyment of property

has been construed by the Court to mean that there must also exist "a

reasonable relationship of proportionality between the means employed

and the aim sought to be realised" (Agosi judgment, loc. cit., p. 18,

para. 52).  In other words, an interference will not be found

justified unless a "fair balance" has been struck between the demands

of the general interest at stake and the interest of the individual or

individuals concerned.

        When considering the requirement of a "fair balance" in the

context of the deprivation of property, the Court has construed it to

mean that any interference, in order to be justified under the second

sentence of the first paragraph, need to be "both appropriate for

achieving its aim and not disproportionate thereto" and that,

accordingly, the balance will not be found in case the individual

concerned would have to bear "an individual and excessive burden"

(James and Others judgment, loc. cit., p. 34, para. 50).  In the

Government's opinion this reasoning would seem to be relevant also in

respect of the concept of "the general interest", at least in the

sense that the State should not be afforded less latitude to control

the use of an individual's property than to take it away from him.  As

for the present case, this would appear to call for an examination of,

firstly, whether the measures taken in themselves were appropriate in

view of the aim sought to be achieved and, secondly, whether the

interest of the applicants was sufficiently taken into account.

        The Government firstly observe that the interest of

preserving nature as a national asset is commonly recognised in all

Contracting States.  Evidently, such a policy could scarcely be pursued

without imposing appropriate restrictions on the use of property.

The framing and administration of such restrictions naturally offers

a variety of possible measures to be taken, some of which necessarily

imply even serious interferences with the individual's right to

property.

        As regards the choice between such possible measures, the

concept "in accordance with the general interest" clearly suggests

that the discretion afforded to the States is considerably wider in

scope than under other similar provisions of the Convention, for

instance Articles 8 - 10, employing the notion "necessary in a

democratic society".  The Court has also explicitly recognised that in

respect of such choices the Contracting States enjoy "a wide margin of

appreciation" (Agosi judgment, loc. cit., p. 18, para. 52).

        Given the wide discretion thus afforded to the Contracting

States as regards the particular measures to be taken in order to

implement legitimate policy goals, it could not, in the Government's

opinion, reasonably be questioned that the measures taken in the

present case were not appropriate in view of the goals sought to be

achieved.

        What remains to be considered is the question whether the

measures taken could be considered disproportionate in view of the

policy goals sought to be achieved or, in other words, whether in

the circumstances the interest of the applicants was insufficiently

taken into account.  For the following reasons, the Government

maintain that this was not the case.

        The implementation of policy goals such as those now in

question is bound almost by necessity to affect in one way or another

individuals' rights to their property and on occasions even place

considerable restrictions on their right to use their property.  Also

in this respect, the Court has granted the State concerned "a wide

margin of appreciation" in ascertaining whether such restrictions are

justified in view of the general interest concerned (Agosi judgment,

loc. cit., p. 18, para. 52).  Again, in the Government's opinion,

the Court's reasoning in dealing with the concept of "the public

interest", referred to in the second sentence of the first paragraph

of Article 1, is relevant also in the present context.  In construing

that concept, the Court has recognised that it is for the national

legislator to take the policy decision as to what burdens should

ultimately be placed on its citizens for the benefit of society at

large, and also that this implies that on occasions some "anomalies"

must be accepted.  Against this background the Court has viewed its

function as being limited merely to reassuring that the measures taken

will not be "so unreasonable as to be outside the State's margin of

appreciation" (James and Others judgment, loc. cit., p. 42, para. 69).

        The Government maintain that, given the general interest at

stake, the measures taken are justified under the terms of the second

paragraph of Article 1 of Protocol No. 1.  In particular, the

Government point to the extent to which the interest of the individual

has been taken into account both in the legislation as such and in its

application to the present case.  The provision according to which a

permit could be revoked, if ten years had passed from the day on which

it acquired legal force, entered into force on 1 July 1973.  However,

those holding a permit at that time were already by the legislator

given a transitional period of ten years during which they could make

use of the permit.  Furthermore, when deciding on 19 December 1984

that the exploitation on the applicants' property was to cease, the

County Administrative Board fixed the permit to expire by the end of

1987, a date subsequently changed by the Government to 1 June 1988,

although in the Board's opinion, which was shared by the National

Environment Protection Board, it would have been preferable in view of

the interest of preserving nature to have the exploitation discontinued

in accordance with the more speedy alternative considered.

        In the Government's opinion what has been said above

demonstrates the justification of the measures taken under the

terms of the second paragraph of Article 1 of Protocol No. 1.  The

Government add that, when considering whether the interest of the

individual has sufficiently been taken into account, due weight

should also be placed on the reasonable and legitimate expectations

of the individual in respect of the future use of his property.  It

almost goes without saying that in order for such expectations to be

"reasonable and legitimate", they have to be the result of

considerations not only of the actual potential of the property as

such and the interest of the individual himself, but also of the

relevant legislation and the interest of others.

        In the present case, the relevant legislation had been in

force for several years when the applicants acquired the property.

Accordingly, they could not have been unaware of the uncertainty as to

whether they would be allowed to continue the exploitation subsequent

to the expiration of the transitional period.  Furthermore, when the

permit was transferred to them, only some two months remained of that

period, and they were promptly notified that within a short time the

holding of the permit was to be reconsidered.  Under these circumstances,

the Government maintain that the measures taken by the authorities can-

not be considered to have frustrated any reasonable and legitimate

expectations of the applicants in respect of the future use of the

property.

        The Government submit for these reasons that the interference

was justified under the conditions laid down in the second paragraph

of Article 1 of Protocol No. 1.  Consequently, the Government maintain

that, viewed under this provision, the complaint is manifestly ill-founded.

        In case the Commission would consider the second sentence of

the first paragraph, rather than the second paragraph, of Article 1 of

Protocol No. 1 to be applicable, the Government add the following.  The

measures concerned have been taken in the public interest and subject

to conditions provided for by law.  As in respect of the second

paragraph, the European Court of Human Rights, when construing the

second sentence of the first paragraph in the light of the general

principle of the peaceful enjoyment of property, has concluded that an

interference would not be found justified unless a "fair balance" has

been struck between the demands of the public interest concerned and

the requirements of protecting the individual's fundamental rights.

In principle the same standards are to be applied when considering

whether a fair balance has been struck in case of the deprivation of

property as in the case of controlling the use of property.  It is for

the national legislator to take the policy decision as to what burdens

should ultimately be placed on its citizens for the benefit of society

at large and, accordingly, the function of the Convention institutions

is limited to ensuring that the measures taken will not be "so

unreasonable as to be outside the State's margin of appreciation".  In

view of this, the Government submit that the complaint is manifestly

ill-founded even if considered on the basis of the conditions laid down

in the second sentence of the first paragraph of Article 1.

4.      Conclusions

        The position of the Government is

        concerning the admissibility:

        that the application should be declared inadmissible, in so

far as it concerns Article 6 of the Convention, for falling outside the

scope of the Convention, and in so far as it concerns Article 1 of

Protocol No. 1, for being manifestly ill-founded, and

        concerning the merits:

        that there has been no violation of the Convention or of

Protocol No. 1.

B.      The applicants

        1.  The facts

        The applicants observe that, before Swedish law introduced the

obligation to obtain a permit in order to extract gravel, an owner of a

property could not be prevented from taking gravel from his property as

long as he did not dispose of his property or was deprived of it.

        After the introduction of an obligation to obtain permit to

extract gravel, the law was based on the principle that a refusal of such

a permit implied a deprivation of a property right.  This is the

reason for the provision that an owner was entitled to compensation

for the loss of income, even prospective income, if a permit was

refused.

        However, a new approach was brought into Swedish legislation

with regard to compensation in case of restrictions placed on the use

of property or the taking of property.  A common feature of this new

legislation was that, in principle, a land-owner should not be able

to claim compensation for such value of his property as related

exclusively to the prospects of future development or other changes

in the use of land.  The applicants agree that it was in keeping with

this new approach that the 1973 amendments to the Act abolished the

right to compensation when a land-owner was refused a permit to start

up a gravel pit.  Without expressing themselves on the question as to

whether such a refusal of compensation is in compliance with the

Convention, the applicants contend that the refusal of compensation in

the case where a valid permit is revoked is a different matter.  The

owner of the gravel pit does not regard "such value of his property as

related exclusively to the prospects of future development or other

changes in the use of land".  It is on the contrary a question of a

loss of the value of investment already made and of income from an

existing business enterprise into which he has already put that

investment.  The applicants observe that, while reasons for not

granting compensation to land-owners who had been refused a permit are

elaborately stated in the Government's Bill, no corresponding reasons

are stated with regard to the case where a valid permit is revoked,

causing loss of investments and a going business enterprise.

        On two occasions, on 8 October 1981 and 2 April 1982, the

County Administrative Board made an inspection of the applicant's

gravel pit.  At no time was there any mention of an intention to

revoke the permit.

        On 14 April 1983, the County Administrative Board changed the

decision issuing the original permit making the applicants holders of

the permit.  That meant that their parents were released from all

responsibilities for the extraction of gravel and that the applicants

could continue to take gravel without needing the consent of their

parents as holders of the permit.  Up to the date of this decision,

the applicants were able, without contravening the law, to exploit

the gravel pit under the permit granted to their parents since the

activity was carried out with their parents' consent.

        In June 1983, the County Administrative Board advised the

applicants about the installation of very expensive asphalt works.

On 25 August 1983, the Board invited the applicants to comment on a

letter stating for the first time during the procedure that the Board

wanted the gravel pit to be closed down.

        Since 1973, the applicants earn their living from their farm

of Kagghamra.  Mr.  Fredin runs the farm, doing all the various kinds

of farm work with the help of one employee and extra help in busy

periods.  The gravel pit is run by Mr.  Fredin with three employees

during the warm season, when the pit is running.  The investment by

Mr.  Fredin in the gravel exploitation enterprise is about 4 million

SEK.  More than 90 % is borrowed money.

        2.  Article 6 para. 1 of the Convention

        The applicants object to the statement of the Government that

the case-law of the Court is unclear and "unprincipled".  They cannot

share the opinion of the Government that Contracting States are left

with a considerable uncertainty as to the scope of Article 6 para. 1

of the Convention.

        The applicants contend that Article 6 para. 1 stems from the

fundamental principle of the Rule of Law and that, seen in that light,

the main scope of the Article in the case-law of the Court is fairly

clear (Eur.  Court H.R., Golder judgment of 21 February 1975, Series A

no. 18, pp. 16 - 17, paras. 34 - 36).

        In a society, where the Rule of Law prevails, the civil rights

and obligations of its members are based on law.  Disputes over the

existence of a right, its scope or the manner in which it may be

exercised are determined by independent tribunals (Eur.  Court H.R.,

Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A

no. 43, p. 22, para. 49) competent to decide all the aspects of the

matter, questions of fact as well as questions of law.  The

independence from the executive of the tribunal, its judicial function

and the guarantees afforded by its procedure is a protection against

arbitrariness.  The determination of civil rights and obligations will

be based on the judge's interpretation of all the legally relevant

facts of the matter, be they questions of fact or questions of law.

        By definition, all relevant questions of the matter are either

questions of fact or questions of law as long as the Rule of Law

prevails, since the Rule of Law has no place for irrelevant

considerations.  Le fait du prince, quod placuit principi, what the

prince pleases, can never be a basis for the determination of civil

rights and obligations as long as the Rule of Law prevails.  To allow

civil rights and obligations to be determined by bodies dependent on

the Government, or indeed by the Government themselves, carries a

considerable risk of arbitrary decisions, decisions that are not based

on questions of fact and questions of law, but on the wishes and the

ambitions of political power.

        It is a serious matter that the Government do not understand

or do not want to understand their duties under the Convention and as

a member of the Council of Europe with regard to the prevalence of the

Rule of Law and to the determination of civil rights and obligations.

To contend, as the Government do, that proceedings of the kind here

in question could reasonably be expected to be outside the scope of

the Convention and that they could be determined principally by

"considerations of policy", is tantamount to condoning an infringement

of the Rule of Law.

        These principles have been clearly spelt out by the Court in

the Golder case (loc. cit.).  The Court also clearly explained that

these principles are not the result of an extensive interpretation of

Article 6 para. 1 but based on the very terms of the first sentence of

Article 6 para. 1 read in its context and having regard to the object

and purpose of the Convention, a law-making treaty, and to general

principles of law.

        The Court stated in the Delcourt case (Eur.  Court H.R.,

Delcourt judgment of 17 January 1970, Series A no. 11, p. 13, para.

25), that, in a democratic society within the meaning of the

Convention, the right to a fair administration of justice holds such a

prominent place that a restrictive interpretation of Article 6 para. 1

would not correspond to the aim and purpose of that provision.

        It is the view of the applicants that the interpretation of

the Government is over-restrictive.

        The applicants consider that a genuine and serious dispute

(contestation) as to the actual existence of the right to take gravel

claimed by them arose between them and the Swedish authorities at

least after the decision by the County Administrative Board of

19 December 1984, ordering i.a. the closure of the gravel pit at the

end of 1987.  This is shown especially by the fact that the applicants

have been and still are able, without contravening the law, to exploit

their gravel pit up to the date of 1 June 1988.  The result of the

proceedings complained of was directly decisive for the right at issue.

        The Government thus determined by their decision of 12 December

1985 a serious dispute concerning a right claimed by the applicants.

        In their appeal to the Government, the applicants alleged that

the decision of the County Administrative Board was not in compliance

with the law and that on certain points it was based on a misconception

or faulty appraisal of the facts.  They further complained that the

decision was arbitrary, that parts of the decision were ultra vires

and that there were several procedural irregularities.

        It was the view of the applicants, and still is, that the

decision to revoke the permit to take gravel was not in compliance

with relevant Swedish law and that it caused them unreasonable

hardships.  They tried to argue their case before the Government to

no avail.  They now complain that they had no access to a tribunal

competent to determine all the aspects of the matter, questions of

fact as well as questions of law.  Thus, their complaint is not the

absence of a court to override Swedish legislation.  They complain of

the absence of a court to hear their case for not revoking their

permit to take gravel from the pit, a case of utmost importance to

them and of a most genuine and serious nature.

        3.  Article 1 of Protocol No. 1

        The applicants note the Government's submission that the

disputed decision amounted to an interference with the applicants'

right to the peaceful enjoyment of their property.  They take the view

that the property right which is primarily affected consists of the

acquired right of the applicants with respect to their permit to take

gravel and the assets of a going business that they have built up

based on the commercial activities carried out under that permit,

constituting a possession within the meaning of the first sentence

of Article 1.  This corresponds to a broader concept of property as

understood by acquired rights in international law.

        It is a question of a final deprivation of property, not a

provisional seizure for a limited period of time as in the Handyside

case referred to by the Government.  Nor does it form a constituent

element of the procedure for the control of the use of that property.

Although the prohibition to take gravel without a permit could be

argued to constitute a control of the use of property, the

cancellation of the permit was not a measure taken for the enforcement

of that prohibition.  By virtue of the permit, the applicants were

and are able, without contravening the law, to take gravel.  Thus

there is no prohibition and consequently no room for an enforcement of

such a prohibition.  On the contrary, the permit and the business

assets built up under that permit constitute in themselves an acquired

right of property and a possession of the applicants.  Thus, the Agosi

case, as referred to by the Government, does not apply.

        In the view of the applicants, the provision allowing the

County Administrative Board to revoke a permit - Section 18 para. 4 of

the Nature Conservation Act - was introduced to enable the deprivation

of property, while the provision allowing the attachment of revised

conditions was enacted for the purpose of controlling the use of

property.  The applicants further contend that the reasons behind

the measure actually taken was not or, at least, not solely the

preservation of nature.  In the view of the applicants, the deprivation

rule (second sentence of first paragraph) is applicable.

        The applicants accept that the aim of the Nature Conservation

Act, namely the protection of nature, is a legitimate aim in the

public interest.  They contend, however, that there is no reasonable

relationship of proportionality or a fair balance between the means

employed and the aim sought to be realised.  The applicants contend

that they have to bear an individual and excessive burden.  They have

been deprived of their property without compensation.  They maintain

that the taking of their property without compensation would be

considered justifiable only in exceptional circumstances not relevant

for present purposes.

        The applicants earn their living from their farm of Kagghamra,

getting their incomes from farming and the exploitation of their

gravel pit.  Particularly in view of the investment made in the gravel

pit mostly with borrowed capital, a cessation of the income of the

gravel pit would force the applicants into bankruptcy.  In this

respect reference is made to a certificate issued by Mr.  L. C. of the

Agricultural Committee (lantbruksnämnden) of the Stockholm County

stating that, if the applicants were to lose the income from their

gravel pit, their entire business would immediately go bankrupt.  For

this reason, there can be no doubt that the applicants have to bear an

individual and excessive burden.

        The applicants maintain that the deprivation of their property

was not made subject to the conditions provided by law.  They recall

that the term "law" does not merely refer back to domestic law but

also relates to the quality of law, requiring it to be compatible with

the Rule of Law.  That requires in the first place the existence of

and compliance with adequately accessible and sufficiently precise

domestic legal provisions.  The applicants underline that the statute

empowers the County Administrative Board to revoke permits, without

setting out under what conditions that can be done.  They contend

that the present legislation makes decisions unforeseeable and

unpredictable, leaving the field open to arbitrary decisions.  There

are no adequately accessible and sufficiently precise conditions spelt

out by the statute and the decision of the County Administrative Board

came as a great shock to the applicants, who had no chance to foresee the

decision.  The only thing they could know was that the Board had a

power to revoke permits, but there was no way for them, e.g. by

taking legal advice, to find out if and under what conditions they

could be deprived of their own permit.  This situation of total

insecurity as to the applicants' legal rights runs contrary to the

very essence of the principle of the Rule of Law.

        The Government seem to argue that, since the applicants were

not formally deprived of the land where the gravel pit is situated,

they were not deprived of their possessions.  In addition to the

argument about an acquired right regarding a business asset put

forward by the applicants above, they would like to refer to a

statement by the Court in the Sporrong and Lönnroth case.  In the

absence of a formal expropriation, that is to say a transfer of

ownership, the Court considers that it must look behind the

appearances and investigate the realities of the situation complained

of.  Since the Convention is intended to guarantee rights that are

"practical and effective", it has to be ascertained whether that

situation amounted to a de facto expropriation, as was argued by the

applicants in that case (Eur.  Court H.R., Sporrong and Lönnroth

judgment of 23 September 1982, Series A no. 52, p. 24, para. 63).  In

the present case, the applicants are disallowed to use their property

in the only economically viable way.  The land being mortgaged, has

strictly speaking a negative value in economic terms.  Thus, the

formal right to sell, devise, donate or mortgage is completely devoid

of substance.  The right has in fact disappeared.

        Should the Commission find that the infringements complained

of constitute a control of use of property, the applicants contend

that the control of use was not by the enforcement of a law

sufficiently foreseeable and certain to satisfy the requirements of

law in Article 1.  They further contend, for reasons given above, that

the control of use was not proportionate.  When considering the

measure applied to control the use, the Commission ought, in the view

of the applicants, to take into consideration that the property could

no longer be used for any gainful purpose, the only profitable way of

using it having been forbidden.

        The applicants further contend that the aim of the decision by

the County Administrative Board was not solely the preservation of

nature but also considerations concerning the supply of gravel within

the region.  The fact is that the gravel industry in the region of

Southern Stockholm area is dominated by one single company, which

enjoys almost a monopoly within the region.  That company is identical

to the original lease-holder of the applicants' gravel exploitation

rights.  In fact, apart from one gravel pit, run by a large building

company, Kagghamra is now the only independent operator in the region.

The applicants maintain that when dealing with their case, particularly

with questions regarding gravel supply, the County Administrative

Board has paid undue consideration to the interests of the large

company.  They further contend that the way their case was treated

compared to those of others in the region amounts to a discrimination.

They refer to a report by Mr.  D. K., a consultant.

        The applicants allege that, consequently,  there has also

been a violation of Article 14 of the Convention taken together with

Article 1 of Protocol No. 1.

THE LAW

1.      The applicants own a real estate on which they exploit gravel

under a permit issued by the County Administrative Board.  In December

1984 the County Administrative Board decided that exploitation of the

gravel must terminate before the end of 1987.  On the applicant's

appeal, the time-limit was subsequently extended by the Government to

1 June 1988.  To safeguard the restoration of the area the applicants

have been ordered to deposit a bank guarantee.

        The applicants complain that the decision of the County

Administrative Board, as upheld by the Government, has made their

property totally worthless and is therefore tantamount to a

deprivation of property rights.  Since no compensation was paid

the applicants allege a violation of Article 1 of Protocol No. 1 (P1-1).

        As regards Article 6 (Art. 6) of the Convention the applicants

complain that the case concerns civil rights and obligations and

that they have not had the right to have their case examined by an

independent tribunal.

        The Government submit that the application is manifestly

ill-founded as regards Article 1 of Protocol No. 1 (P1-1) since the

interference with the applicants' property rights was justified under

the second paragraph of that provision.  Alternatively, the Government

maintain that the interference is justified under the second sentence

of the first paragraph of Article 1 of Protocol No. 1 (P1-1) as being taken

in the public interest and subject to conditions provided for by law.

        As regards Article 6 (Art. 6) of the Convention the Government submit

that the application should be declared inadmissible as falling outside

the scope of Article 6 (Art. 6), since there was no "contestation" (dispute)

over "civil rights and obligations" within the meaning of this

provision.

2.      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."

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

        In respect of Article 1 of Protocol No. 1 (P1-1), the first issue to

be examined is whether the circumstances of the case constitute an

interference with the applicants' right to the peaceful enjoyment of

their possessions as guaranteed by Article 1 of Protocol No. 1 (P1-1).  In

the affirmative, it would then have to be examined whether the

interference is justified under the terms of the second sentence of

the first paragraph or under the second paragraph of Article 1 of

Protocol No. 1 (P1-1).

        As regards Article 6 (Art. 6) of the Convention, the issues to be

decided are whether the Government's decision of 12 December 1985 was

a "determination" of a dispute with regard to the applicants' "civil rights and

obligations" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.  If so, it would then have to be examined whether the applicants

had at their disposal a procedure satisfying the requirements of Article 6

para. 1 (Art. 6-1) in regard to that dispute.

        The Commission has made a preliminary examination of the above

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

that these issues raise questions of fact and law which are so

important and complex that their determination should depend upon an

examination of the merits.  These complaints must therefore be

declared admissible, no other ground for declaring them inadmissible

having been established.

3.      The applicants finally complain that they have been

discriminated against and that there has been a violation of Article 14 (Art.

14) of the Convention in conjunction with Article 1 of Protocol No. 1 (P1-1).

        Article 14 (Art. 14) of the Convention provides:

"The enjoyment of the rights and freedoms set forth in

this Convention shall be secured without discrimination

on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social

origin, association with a national minority, property,

birth or other status."

        This complaint is closely linked to the facts which the

Commission has found to be admissible above.  It must therefore also

be declared admissible.

        For these reasons, the Commission

        DECLARES THE APPLICATION ADMISSIBLE, without prejudging

        the merits.

        Secretary to the Commission      President of the Commission

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