FIFTH SECTION

DECISION

Application no . 51454/11 Greger CARPELAN against Sweden

The European Court of Human Rights ( Fifth Section ), sitting on 21 April 2015 as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Vincent A. D e Gaetano , André Potocki , Helena Jäderblom , Aleš Pejchal , judges, and Milan Bla š ko , Deputy Section Registrar ,

Having regard to the above application lodged on 15 June 2011 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Greger Carpelan , is a Swedish national, who was born in 1923 and lives in Stockholm . He was represented before the Court by Ms G. Högberg Björck , a lawyer practising in Bro . The Swedish Government (“the Government”) were represented by their Agent, M s G. Isaksson of the Ministry for Foreign Affairs .

A. The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

1 . Background

3. Since 1958 the applicant has resided in a flat located in a building in Bellevue Park in Stockholm : first due to his employment at the property and, as from 1982, on the basis of a rental agreement with the City of Stockholm (the owner of the property and the building ). The Bellevue area is considered to be cultural heritage of national interest and has been recognised as such by the National Heritage Board ( Riksantikvarieämbetet ).

4. In 1996 the applicant appealed against a detailed development plan ( detaljplan ) adopted by the Municipal Council ( kommunfullmäktige ) of Stockholm which would allow for the construction of a tunnel under Bellevue Park as part of a motorway project called “ Norra Länken ”. The appeal was rejected by the Government , for which reason the applicant applied for judicial review before the Supreme Administrative Court ( Högsta förvaltningsdomstolen ). He claimed, inter alia , that he, and others living within or close to the area, would be negatively affected by the construction of the tunnel as it would cause various disturbances, particularly during the construction. Moreover, he contended that the nature and landscape of the park would be affected in violation of the Law on Natural Resources ( lag om hushållning med naturresurser m.m. , 1987:12, which was subsequently replaced by the Environmental Code [ Miljöbalken , 1998:808 ] ). On 31 January 1997 the Supreme Administrative Court repealed the Government ’ s decision, finding that the planned construction would constitute a breach of the law invoked in that the construction would encroach upon an area classified as a National City Park ( nationalstadspark ) .

5. Consequently, the Government annulled the detailed development plan in question and, later, the Municipal Council adopted a new detailed development plan which gained legal force in April 2006 . Subsequently, the Municipal Council adopted an amendment to this detailed development plan. However, t he amendment required changes to the Environmental Code and, in May 2009, such changes were adopted.

2 . The proceedings relating to the amendment of the detailed development plan

6. On 11 May 2009 the Municipal Council adopted the amendment to the detailed development plan concerning Norra Länken . The amendment allowed for the construction from above ground of a tunnel through Bellevue Park. The Municipal Council noted that the amendments were focused on the method of constructing the tunnel. It further stressed that the effects on the environment would be essentially temporary as the park would be completely restored after construction had finished. Thus, there would be no considerable impact on the environment, nature, cultural heritage or people ’ s health and, hence, a formal environmental evaluation would not be necessary.

7. The applicant appealed against the decision to the County Administrative Board ( länsstyrelsen ), claiming essentially that the amendment was not in accordance with the Environmental Code and that a formal environmental evaluation should have been carried out. In his opinion, the negative effects on the environment and nature outweighed the benefits of the construction of the tunnel.

8. On 17 June 2009 the County Administrative Board rejected the appeal. It agreed with the Municipal Council that there was no need for a formal environmental evaluation. Moreover, having weighed the applicant ’ s individual interests against the general interests that the amendment sought to protect, the Board concluded that the applicant ’ s submissions did not suffice to repeal the decision of the Municipal Council. Lastly, it found that no other circumstances had been presented which could lead it to repeal the decision.

9. The applicant appealed against the Board ’ s decision to the Government. He noted that he had not claimed that his individual interests were of any significance. However, he stressed the general interest in preserv ing the park and in particular a number of trees in the park. In his view, t hese general interests had not been considered properly and the Board had completely ignored his claim that the decision breached certain provisions in the Environmental Code.

10. On 15 October 2009 the Government rejected the appeal. It first observed that the purpose of the amendment to the detailed development plan was to render possible the construction of the tunnel from above ground and, at the same time, to e ns ure that the intrusion would be temporary and limited to the period of the actual construction. The landscape was to be restored immediately afterwards according to an adopted quality program me which was based on an historical park plan from the 18 th century . The Government then observed that , although the area affected by the amendment was part of a National City P ark , the amendments to the Environmental Code of May 2009 allowed for certain measures that would cause only temporary encroachment or damage to the park. Having regard to all the circumstances of the case , the Government found no reason to depart from the Board ’ s assessment that the plan complied with the provisions of the Environmental Code. As concerned the applicant ’ s other submissions, the Government considered that they did not give reason to alter or repeal the Board ’ s decision .

11. The applicant then requested a review of the Government ’ s decision by the Supreme Administrative Court under the Act on Judicial Review of Certain Government Decisions ( lagen om rättsprövning av vissa regeringsbeslut , 2006:304; hereafter “the 2006 Act”). He submitted that the Government ’ s decision violated the Environmental Code as well as the Constitutio n. He particularly stressed that the c onstruction of the tunnel meant that several old trees in the park would be cut down, causing irreparable harm .

12. On 17 December 2010, the Supreme Administrative Court dismissed the applicant ’ s request for judicial review. The court noted that , according to Section 1 of the 2006 Act, an individual may apply for judicial review of such decisions by the Government that concern the individual ’ s civil rights or obligations within the meaning of Article 6 § 1 of the Convention. It then observed that the property where the applicant resided was located outside the area covered by the detailed development plan. H e also did not own property within or adjacent to the area covered by the plan. T he court concluded that the Government ’ s decision did not concern the applicant ’ s civil rights or obligations within the meaning of Article 6 § 1 of the Convention and, therefore, he did not have locus standi before the court.

B. Relevant domestic law

The judicial review procedure

13. On 1 July 2006, t he 2006 Act replaced the Act on Judicial Review of Certain Administrative Decisions ( l agen om rättsprövning av vissa förvaltningsbeslut, 1988:205 , here after “ the 1988 Act ” ).

14. According to the preparatory wo rk to the 2006 Act, the purpose of judicial review wa s to provide a ccess to court as regards decisions which should be subject to judicial review under the Convention, but where Swedish national law d id not provide such a right beyond the possibility to apply for the extraordinary remedy of relief fo r substantive defects (Government Bill 2005/06:56 p. 10 ). The preparatory works further noted that the scope of application of the 1988 Act had been too narrow in some cases , while in other cases its application went further than required by the Conve ntion in relation to “civil rights and obligations” (ibid. , p. 12). Thus, the provision on right of action was formulated differently in the 2006 Act compared to the 1988 Act.

15. Consequently, u nder Section 1 of the 2006 Act, an individual can only apply for judicial review of decisions by the Government when they involve a determination of the individual ’ s civil rights or obligations within the meaning of Article 6 § 1 of the Convention.

16. Section 7 of the 2006 Act states that the Supreme Administrative Court shall annul the Government ’ s decision if th e decision cont ravenes a legislative provision either in the way alleged by the complainant or in a way that is clearly apparent from the circumstances. However, this does not apply if the error obviously lacks significance for the decision.

COMPLAINT S

17. The applicant complain ed under Article 6 of the Convention that he had been refused access to court since the Supreme Administrative Court dismissed his request for judic ial review. He further complained that his right s under Article 8 of the Convention had been violated through the construction from above ground of the tunnel since it had had a negative impact on his home environment and private life.

THE LAW

18. The applicant complained under Article 6 § 1 and Article 8 of the Convention which, in relevant parts, read as follows:

Article 6

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 8

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

19. The Government submitted that the applicant had failed to exhaust domestic remedies since he had not raised in substance his complaints before the domestic courts before complaining to the Court.

20. The Government noted that the applicant claimed before the Court that the detailed development plan significantly interfered with his home and private life while, before the Supreme Administrative Court, he had only claimed that the Government ’ s decision violated certain provisions of the Constitution and domestic legislation, none of which conferred any rights on him. The essence of the applicant ’ s claims on the domestic level had been that the detailed development plan caused excessive damage to Bellevue Park. The Government further observed that, in its decision to dismiss the applicant ’ s request, the Supreme Administrative Court had noted that the applicant lived outside the area of the detailed development plan and that he did not appear to own any property within or adjacent to the detailed development plan area. Furthermore, the Government contended that, in his request for judicial review, the applicant had not clarified how the proceedings regarding the amendment to the detailed development plan were directly decisive for any of his civil rights or obligations as was required in order for a request for judicial review to be granted. The applicant had thus failed to adduce any circumstances which could lead the Supreme Administrative Court to find that his civil rights and obligations were affected and he had thereby, according to the Government, not exhausted domestic remedies.

21. The applicant disagreed and maintained that he had exhausted domestic remedies as required. While he had not explicitly referred to the Convention, he considered it clear from his appeals and submissions that his civil rights had been affected. Moreover, he pointed to the fact that he had been granted legal standing by the Supreme Administrative Court in 1997 when he had requested legal review concerning the first detailed development plan.

22. The Court reiterates that the purpose of the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put right matters through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in the domestic system in respect of the alleged breach. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national protection safeguarding human rights (see, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, with further references).

23. While Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of effective remedies designed to cha llenge decisions already given. It normally requires also that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law ( see, a mong other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 142 , ECHR 2010 , and Elçi and Others v. Turkey , nos. 23145/93 and 25091/94 , §§ 604 and 605, 13 November 2003).

24. Consequently, domestic remedies have not been exhausted when an appeal is not accepted for examination because of a procedural mistake by the applicant. However, non-exhaustion of domestic remedies cannot be held against him if, in spite of his failure to observe the forms prescribed by law, the competent authority has nevertheless examined the substance of the appeal ( Gäfgen , cited above, § 143, with further references) .

25. Turning to the present case, the Court notes that when applying for judicial review to the Supreme Administrative Court the applicant neither explicitly relied on the Convention nor implicitly claimed that his right to his private life or home had been violated. Moreover, he did not submit before the Supreme Administrative Court that his civil rights and obligations had been affected in the proceedings or through the amendment to the detailed development plan. On the contrary, the Court observes that the applicant ’ s submissions concentrated on alleged violat ions of, in particular, the Environmental Code and the negative effects that the construction of the tunnel would have on Bellevue Park, and he set out in detail the consequences for various old trees in the park which would be felled or risk destruction. Thus, his request for judicial review was motivated by the general interest to preserve the park.

26. Indeed, the Court observes that the preservation of the park and its nature formed the basis of the applicant ’ s arguments throughout the proceedings and that he even stated in his appeal against the County Administrative Board ’ s decision to the Government that his individual interests were of no significance. Furthermore, since in his request for judicial review to the Supreme Administrative Court the applicant did not claim that the amendment to the detailed development plan had had a negative effect on his private life or affected his civil rights and obligations, that court did not examine the request in substance but merely noted that the Government ’ s decision had not concerned his civil rights or obligations within the meaning of Article 6 § 1 of the Convention and therefore dismissed the request for judicial review.

27. Against this background, the Court finds that the applicant failed to raise in the domestic proceedings, at least in substance, the complaints that he is now presenting before the Court.

28 . In so far as concerns the applicant ’ s submission that he had been granted legal standing before the Supreme Administrative Court in 1997, when he had requested legal review concerning the first detailed development plan, the Court notes that the provision on right of action was changed through the 2006 Act so that only Government decisions that involve a determination of an individual ’ s civil rights or obligations within the meaning of Article 6 § 1 of the Convention can be examined. Prior to the entry into force on 1 July 2006 of the 2006 Act, the 1988 Act had had a somewhat different scope of application (see above paragraph 14) which may explain why the applicant was granted loc us standi before the Supreme Administrative Court in 1997. Moreover, the Court notes that, contrary to the proceedings in 2009, the applicant expressly relied on his individual interests before the Supreme Administrative Court in 1997. Consequently, the Court finds that these two sets of proceedings are not comparable.

29. It follows from the above that the Government ’ s objection must be accepted and the application be declared inadmissible for non ‑ exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention .

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 May 2015 .

Milan Bla Å¡ ko Mark Villiger Deputy Registrar President