Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12032/86

by Carsten JACOBSEN

against Sweden

The European Commission of Human Rights sitting in private

on 13 March 1989, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 19 January 1986

by Carsten Jacobsen against Sweden and registered on 10 March 1986

under file No. 12032/86;

Having regard to

- the Commission's decision of 2 May 1988 to communicate

the application to the Government for written observations

on the admissibility and merits;

- the Government's observations of 17 August 1988;

- the applicant's observations of 16 October 1988;

- the Government's further observations of 12 December 1988;

- the report provided for in Rule 40 of the Rules of

Procedure;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is a Swedish citizen born in 1920 and resident

at Falkenberg. He is retired.

Since 1963 he owns, together with his wife, a property of

12,820 m2 called Skrea 5:15. The property was created in 1935 to be

used for dwelling purposes. In 1969 to 1970 the applicant erected a

one-family house on the property.

No detailed plan had been established for the area in which

the property is situated and, consequently, regulations for

non-planned areas (utomplansbestämmelser) were applicable.

Since 1 August 1972 there has been, with some short

interruptions, a prohibition against new construction within the area

to which the applicant's property belongs. The prohibition was issued

under Section 109 of the 1947 Building Act (byggnadslagen) pending the

adoption of a building plan.

On 15 January 1985 the County Administrative Board

(länsstyrelsen) of the County of Halland decided to prolong the

building prohibition until a proposal for a building plan or an

amendment of a building plan had been adopted. However, in no case

was the prohibition valid longer than up to and including 31 December

1986. The prohibition on construction was issued under Section 109 of

the Building Act. The reasons for the building prohibition, as

submitted by the Building Committee of Falkenberg, were inter alia the

following: In the area there existed building plans which permitted

buildings exceeding 80 m2. The intention was to change all the

building plans to the effect that the regulations were in conformity

with the guidelines issued by the Building Committee on 15 March 1984.

Moreover, in certain areas planning work was going on.

The applicant appealed against the decision of the County

Administrative Board to the Government which, after having obtained

the opinion of the Building Committee and further written observations

from the applicant, decided on 17 October 1985 to reject the appeal

considering that the planning situation in the area justified a

prolongation of the building prohibition.

In his letters to the Government the applicant inter alia

complained that the Building Committee had grossly misused the

building prohibition and prevented him and his wife from peaceful

enjoyment of their property. He also submitted that the Committee

had, in its efforts to interfere with the applicant's private

property, given false information to superior authorities and courts.

COMPLAINTS

1. The applicant alleges a violation of Article 1 of Protocol No. 1

to the Convention in that since 1972 a building prohibition has been in

force which involves a restriction on his property right. He has for a

long time been prevented from the peaceful enjoyment of his

possessions.

2. The applicant also alleges a violation of Article 6 para. 1 of

the Convention. He submits that his property right is a civil right

and that the building prohibition involves financial losses for him.

There has been a serious dispute which has lasted for more than

fourteen years and this dispute cannot be examined by an impartial

and independent tribunal.

3. The applicant also alleges a violation of Article 13 of the

Convention. He submits that there is no effective remedy in respect

of the restriction of his civil rights.

4. The applicant further alleges a violation of Article 17 of the

Convention, since the aim of the building prohibition is to nullify the

applicant's civil right.

5. Finally, the applicant alleges a violation of Article 18 of

the Convention, in that the authorities have not indicated any justified

reason for the building prohibition.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 19 January 1986 and

registered on 10 March 1986.

On 2 May 1988 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.

The Government's observations were received by letter dated

17 August 1988 and the applicant's observations in reply were dated

16 October 1988. The Government submitted further observations by

letter of 12 December 1988.

On 16 December 1988 the applicant was granted legal aid.

THE LAW

1. The applicant complains that there has been a building

prohibition on his property since 1972 which has restricted his right

to property in violation of Article 1 of Protocol No. 1 (P1-1) to the

Convention. This complaint is directed against the decision of the

Government of 17 October 1985, whereby they rejected his appeal

against the decision of the County Administrative Board of

15 January 1985 to prolong the building prohibition.

The applicant further alleges that there has been a violation

of Article 6 para. 1 (Art. 6-1) of the Convention since he could not have the

dispute over the building prohibition examined by an independent and

impartial tribunal.

The applicant also invokes Articles 13, 17 and 18 (Art. 13, 17, 18°) of

the Convention.

2. The Government submit that the complaint under Article 1 of

Protocol No. 1 (P1-1) is manifestly ill-founded. They contend that the

building prohibition constitutes a control of the use of property and

is justified under the second paragraph of this Article.

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

Government submit that the complaint is incompatible ratione materiae with the

Convention, either because no "civil right" was at issue or because there was

no serious dispute over any such right. In the alternative they submit that

this complaint is manifestly ill-founded.

If the Commission were to consider that the decision of

17 October 1985 concerned a serious dispute over the applicant's civil

rights, the Government admit that no procedure satisfying the conditions of

Article 6 para. 1 (Art. 6-1) of the Convention was available to the applicant.

The Government contend that the applicant's remaining

complaints are manifestly ill-founded.

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

4. The Commission has first examined whether the applicant's

complaint under Article 1 of Protocol No. 1 (P1-1) is manifestly ill-founded

and whether the complaint under Article 6 (Art. 6) is incompatible ratione

materiae with the Convention or manifestly ill-founded, as submitted

by the Government.

The first issue to be examined under Article 1 of Protocol

No. 1 (P1-1) is whether in the circumstances of the case the building

prohibition constitutes an interference with the applicant's right

under this Article to peaceful enjoyment of his possessions. If this

were so, it would then have to be examined whether the interference is

justified under the terms of the Article.

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

decided are whether the decision to prolong the building prohibition

on the applicant's property was decisive for a "civil right" of the

applicant and, if so, whether a genuine and serious dispute arose

between the applicant and the Swedish authorities in relation to the

decision to prolong the building prohibition. In the affirmative, it

would then have to be determined whether the applicant had at his

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 these

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

these issues raise questions of fact and law which are of such a

complex nature that their determination requires an examination of the

merits. The application cannot therefore be declared inadmissible as

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

(Art. 27-2) of the Convention, and no other ground for declaring it inadmissible

has been established.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H. C. KRUGER) (C. A. NØRGAARD)

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JACOBSEN v. SWEDEN

JACOBSEN v. SWEDEN

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