Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14740/89

by Arvid ANDERSSON and 28 others

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 December 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 February 1988

by Arvid ANDERSSON and 28 others against Sweden and registered on

7 March 1989 under file No. 14740/89;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 31 May 1991 and the observations in reply submitted by

the applicants on 18 August 1991;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are listed in the Annex. They are all Swedish

citizens, with the exception of applicant no. 14, who is a United

Kingdom citizen. Before the Commission the applicants are represented

by Mr. Göran Ravnsborg, an Assistant Professor resident at Lund.

The facts of the case, as submitted by the parties, may be

summarised as follows.

Particular circumstances of the case

Twenty-seven of the applicants are owners of properties in the

area of Ljungskile. The applicants nos. 5, 6 and 17 as well as nos. 19

and 20 and nos. 22 and 23, respectively, are joint property owners. The

applicants nos. 4 and 16 are lease-holders.

In October 1985 the National Road Administration (Vägverket,

hereinafter "the NRA") presented five alternative draft working-plans

(arbetsplaner) for the re-construction of the section of the motorway

E6 between Stora Höga and Bratteröd/Uddevalla. The drafts were

subsequently presented to the public.

In November 1985 the Municipal Council (kommunfullmäktige) of

Uddevalla and the County Administrative Board (länsstyrelsen) of the

County of Göteborg and Bohus submitted their opinions on the drafts.

In April 1986 the NRA presented its revised draft working-plans.

These were presented to the public in May 1986.

On 3 June 1986 the Municipal Council supported the draft

alternative B, according to which the motorway would, in the area of

Ljungskile, run through a tunnel and over a bridge.

On 9 June 1986 the County Road Administration (vägförvaltningen)

of the County of Göteborg and Bohus supported the draft alternative A,

according to which the motorway would be constructed on a road

embankment over the inner part of the bay of Ljungskile.

In its opinion of 19 June 1986 to the NRA the County

Administrative Board also supported the draft alternative A.

On 27 November 1986 the NRA adopted draft alternative A as the

official working-plan. The NRA found that by choosing alternative A the

purpose of the road could be achieved with the least possible

interference and inconvenience and without unreasonable costs. It had

particular regard to traffic safety and environmental aspects.

The decision was appealed against to the Government by a large

number of physical and legal persons, including the applicants, who

argued, inter alia, that the motorway should have been constructed east

of Ljungskile. Others argued in favour of an improvement of the already

existing road. The appeals also pertained to the cost-assessment and

the procedure terminating in the NRA's decision.

On 3 September 1987 the Government (Ministry of Transport and

Communication) rejected the appeals, having found, inter alia, that

alternative A had been drawn up in accordance with the law. Several

alternative working-plans had also been studied and their costs had

been assessed.

Applicant no. 15 sold his property in 1987.

Relevant domestic law

According to Section 10 of the 1971 Roads Act (väglag 1971:948)

a road may be constructed if it is needed for public traffic or may be

assumed to be of particular importance to the community. The

construction of a road in a new direction, including the repair of a

road, may take place when it is required in the general public

interest.

Under Section 13 it shall be ensured that the road to be

constructed is located and designed so as to achieve the purpose of the

road with the least possible interference and inconvenience and without

unreasonable costs.

Section 15 provides that, for the construction of a road, a so

called working-plan shall be drawn up. The plan shall specify the land

needed for the road and the environmental consequences of the road

construction. When the plan is drawn up there shall be consultations

with inter alia the property owners concerned (Section 16). It shall

also be exhibited for inspection in a way similar to that regarding a

building plan (Section 17). The plan is adopted by the NRA after

consultations with the County Administrative Board. If the NRA and the

County Administrative Board have different views on the matter, it

shall be referred to the Government (Section 18).

According to Section 31 a road construction right (vägrätt)

arises when the authority responsible for the road starts using the

land specified in the working-plan, that is when the stretch of the

road across the property has been clearly marked on the land and the

construction work has commenced.

The road construction right authorises the maintainer of the road

to make use of the land needed for the road, notwithstanding the right

of any other party with regard to the property. It normally also

includes the right to make use of resources that can be extracted from

the land (Section 30).

Section 48, subsection 1 provides that, from the moment a

decision to adopt a working-plan has gained legal force and until the

road construction work is finished, no building may be erected or any

other measure be taken within the road area specified in the

working-plan, if this could subsequently obstruct the use of the area

for road purposes. Such measures may only be taken with the permission

of the County Administrative Board.

Under Section 55 the property owner or any other party who has

a right of usufruct is entitled to compensation for the road

construction right gained by the maintainer of the road. If the

maintainer of the road and the property owner cannot agree on the

amount of compensation, this amount is decided by a Real Estate Court

(fastighetsdomstol) in application of the relevant parts of the 1972

Expropriation Act (expropriationslag 1972:719).

Until 1 June 1988 anybody negatively affected by the adoption of

a working-plan could lodge an appeal with the Government (Section 75).

There was no other remedy.

COMPLAINTS

1. The applicants complain that their appeals were not taken into

due consideration by the Government and that they could not obtain a

court examination of the decision to adopt a working-plan. They invoke

in this respect Article 6 para. 1 and Article 13 of the Convention.

2. Initially all of the applicants also alleged violations of

Articles 8, 17 and 18 of the Convention, Article 1 of Protocol No. 1

and Article 2 of Protocol No. 4. These complaints were, however,

withdrawn by applicants nos. 1, 4-6, 8, 10, 12-17 and 19-21 in their

observations of 18 August 1991. The remainder of the applicants pursue

their complaints, referring to the inconveniences caused by the road

and the significant decrease of the value of their properties, for

which they have not yet been compensated. They submit, in particular,

that the road runs over the properties of applicants nos. 2 and 7 and

only forty metres from the dwelling-house of applicant no. 3. They

request the Commission to postpone the examination of these complaints

until documentation can be provided about the extent of the damage they

have suffered.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 February 1989 and registered

on 7 March 1989.

On 8 April 1991 the Commission decided to communicate the

application to the respondent Government and to invite them to submit

written observations on the admissibility and merits of the application

limited to the complaint under Article 6 of the Convention.

The Government's observations were submitted on 31 may 1991 and

the applicants' observations in reply on 18 August 1991.

On 7 October 1991 the Commission decided to refer the application

to the Second Chamber.

THE LAW

1. The applicants complain, under Article 6 para. 1 and Article 13

(Art. 6-1, 13) of the Convention, that their appeals to the Government

were not duly considered and that they could not obtain a court

examination of the Government's decision. Article 6 para. 1

(Art. 6-1) of the Convention reads in its relevant part:

"In the determination of his civil rights ..., everyone is

entitled to a ... hearing by [a] ... tribunal ..."

The issues to be decided are whether the working-plan was

decisive for the applicants' "civil rights" and, if so, whether a

genuine dispute of a serious nature arose between the applicants and

the authorities in relation to this plan. In the affirmative, it would

have to be determined whether the applicants had at their disposal a

procedure satisfying the conditions of Article 6 para. 1 (Art. 6-1) of

the Convention with regard to the dispute.

The Government admit the admissibility of this complaint and

state that it was not at the time possible under Swedish law to have

the working-plan reviewed by a court.

The Commission observes that the Government's decision upholding

the working-plan does not specify the contents of the applicants'

appeals. From the terms of the decision it appears, however, that the

appeals pertained, in essence, to the lawfulness of the NRA's decision

to adopt draft alternative A of the working-plans presented.

The Commission notes the fact that applicants nos. 4 and 16 are

lease-holders and that applicant no. 15 sold his property in 1987. The

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

applicable in their cases must, however, be reserved for an examination

on the merits.

Having regard to the parties' submissions the Commission finds

that this complaint is not manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground

for declaring the complaint inadmissible has been established.

2. Applicants nos. 2-3, 7, 9, 11, 18 and 22-29 further allege

violations of Articles 8, 17 and 18 of the Convention, Article 1 of

Protocol No. 1 and Article 2 of Protocol No. 4 (Art. 8, 17, 18, P1-1,

P4-2) to the Convention. They refer to the inconveniences caused by the

road as well as the significant decrease of the value of their

properties.

(a) The Commission will first consider the complaint under Article 1

of Protocol No. 1 (P1-1), which reads:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of

his possessions except in the public interest and subject

to the conditions provided for by law and by the general

principles of international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it

deems necessary to control the use of property in

accordance with the general interest or to secure the

payment of taxes or other contributions or penalties."

The Commission finds that the adoption of the working-plan

interfered with the applicants' right to the peaceful enjoyment of

their possessions, in that it restricted the use of their properties.

It constituted a measure to control the use of property which must be

examined under the second paragraph of Article 1 (Art. 1) as to its

lawfulness, purpose and proportionality (e.g. Eur. Court H.R., Tre

Traktörer AB judgment of 7 July 1989, Series A No. 159, pp. 22-24,

paras. 55-62).

The Convention organs' power to review compliance with domestic

law is limited. It is in the first place for the national authorities

to interpret and apply that law. The requirement of lawfulness includes

that the impugned measure should have a basis in domestic law.

Furthermore, the law must have a certain quality, that is it must be

accessible, foreseeable and compatible with the rule of law. A law

which confers a discretion on the authorities must indicate the scope

of that discretion. The degree of precision required will depend on the

particular subject-matter (e.g. Eur. Court H.R., Fredin judgment of

18 February 1991, Series A no. 192, p. 16, para. 50).

As to the lawfulness of the working-plan the Commission observes

that, apart from the requirements under Section 13 of the Roads Act,

the domestic law leaves some discretion to the authorities in choosing

the working-plan to be adopted. It further notes that the NRA drew up

alternative working-plans which were exhibited for public inspection,

as prescribed in the Roads Act; and that the decision adopting

alternative A, taken after comprehensive investigation, contained

detailed reasons. The Commission is therefore satisfied that the

decision complained of had a basis in Swedish law.

As regards the purpose of the interference the Commission

observes that the aim of the working-plan was to improve the condition

of the road connection, in particular having regard to traffic safety

and environmental aspects, these being legitimate aims in the general

interest.

As regards the proportionality between the interference and the

aim pursued the Commission considers that a control of use of property

may, in certain circumstances, require compensation to be paid (Pine

Valley Developments Ltd and Others v. Ireland, Comm. Report 6.6.90,

paras. 83-84, Eur. Court H.R., Series A no. 222, p. 40). The Commission

observes that in the present case no agreements have as yet been

reached between the applicants and the maintainer of the road as to the

compensation amounts. It is also clear that if negotiations about such

compensation should not result in agreements, the applicants could

introduce proceedings to have the compensation decided by the Real

Estate Court in accordance with the Expropriation Act. It would

therefore be premature for the Commission at the present time to

examine the question of proportionality before the domestic

compensation proceedings have terminated.

In these circumstances the Commission finds that at present the

applicants have not shown that there has been a disproportionate

interference with their right under Article 1 of Protocol No. 1

(P1-1).

It follows that this complaint must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

(b) As regards the complaints under Articles 8, 17 and 18 of the

Convention and Article 2 of Protocol No. 4 (Art. 8, 17, 18, P1-1,

P4-2) to the Convention the Commission finds no separate issue.

It follows that this complaint must also be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicants' complaint that they could not obtain a court

examination of the decision to adopt a working-plan; and

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

ANNEX

The applicants are:

1. Mr. Arvid Andersson, born in 1914 and resident at

Ljungskile;

2. Mr. Evert Andersson, a farmer born in 1934 and resident at

Ödsmål;

3. Mr. Kjell Berntsson, a carpenter born in 1947 and resident

at Ödsmål;

4. Mr. Bengt-Åke Emanuelsson, born in 1943 and resident at

Ljungskile;

5. Ms. Ingegerd Hedborn, born in 1923 and resident at

Ljungskile;

6. Mr. Michael Hedborn, born in 1955 and resident at

Ljungskile;

7. Mr. Göran Hermansson, a farmer born in 1932 and resident at

Ödsmål;

8. Ms. Marianne Isaksson, born in 1945 and resident at

Svenshögen;

9. Ms. Lily Jacobsson, a cook born in 1933 and resident at

Ödsmål;

10. Ms. Agnes Johansson, born in 1901 and resident at

Ljungskile;

11. Mr. Gösta Johansson, a crane operator born in 1937 and

resident at Svenshögen;

12. Mr. Bosse Karlsson, a manager born in 1951 and resident at

Svenshögen;

13. Mr. Kjell Karlsson, a farmer born in 1953 and resident at

Ljungskile;

14. Ms. Freda Keillor, a saleswoman born in 1942 and resident

at Ljungskile;

15. Mr. Conny Krantz, an engineer born in 1951 and resident at

Ödsmål;

16. Mr. Evert Larsson, a director born in 1931 and resident at

Ljungskile;

17. Ms. Lena Lundin, born in 1961 and resident at Ljungskile;

18. Ms. Ann-Margret Massoberg, a teacher born in 1935 and

resident at Ljungskile;

19. Ms. Adele Olsson, a clerk born in 1926 and resident at

Stenungsund;

20. Mr. Gunnar Olsson, a farmer born in 1929 and resident at

Stenungsund;

21. Mr. Lars Olsson, a farmer born in 1954 and resident at

Ljungskile;

22. Mr. Lars-Eric Persson, a police inspector born in 1939 and

resident at Ljungskile;

23. Ms. Marianne Persson, a housewife born in 1939 and resident

at Ljungskile;

24. Ms. Barbro Puumalainen, a child care-taker resident at

Ödsmål;

25. Mr. Roy Rundlöf, a port dealer born in 1949 and resident at

Svenshögen;

26. Mr. Gustav Sandberg, born in 1911 and resident at

Svenshögen;

27. Mr. Ingemar Svensson, a farmer born in 1943 and resident at

Stenungsund;

28. Mr. Lars Svensson, a farmer born in 1934 and resident at

Ödsmål; and

29. Mr. Gunnar Torstensson, a manager born in 1935 and resident

at Trollhättan.

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ANDERSSON AND 28 OTHERS v. SWEDEN

ANDERSSON AND 28 OTHERS v. SWEDEN

LEXI