Lexploria

In the Mats Jacobsson case*,

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* Note by the Registrar: This case is numbered 11/1989/171/227. The

first number is the case's position on the list of cases referred to

the Court in the relevant year (second number). The last two numbers

indicate the case's position on the list of cases referred to the

Court since its creation and on the list of the corresponding

originating applications to the Commission.

_______________

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of the Rules of Court*, as a Chamber composed of the

following judges:

_______________

* Note by the Registrar: The amendments to the Rules of Court which

entered into force on 1 April 1989 are applicable to this case.

_______________

Mr R. Ryssdal, President,

Mrs D. Bindschedler-Robert,

Mr B. Walsh,

Mr J. De Meyer,

Mr N. Valticos,

Mrs E. Palm,

Mr I. Foighel,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 22 February and on 21 May 1990,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The case was referred to the Court on 12 April 1989 by the

European Commission of Human Rights ("the Commission") and on

23 May 1989 by the Government of the Kingdom of Sweden ("the

Government"), within the three-month period laid down in

Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention.

It originated in an application (no. 11309/84) against Sweden lodged

with the Commission under Article 25 (art. 25) by Mr Mats Jacobsson,

a Swedish citizen, on 5 August 1984.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) of the Convention and to the declaration whereby

Sweden recognised the compulsory jurisdiction of the Court

(Article 46) (art. 46). The purpose of the request and of the

Government's application was to obtain a decision as to whether the

facts of the case disclosed a breach by the respondent State of its

obligations under Articles 6 and 13 (art. 6, art. 13) of the Convention.

2. In response to the enquiry made in accordance with

Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he

wished to take part in the proceedings and designated the lawyer who

would represent him (Rule 30).

3. The Chamber to be constituted included ex officio Mrs E. Palm,

the elected judge of Swedish nationality (Article 43 of the

Convention) (art. 43), and Mr R. Ryssdal, the President of the Court

(Rule 21 § 3 (b)). On 29 April 1989, in the presence of the

Registrar, the President drew by lot the names of the other five

members, namely Mrs D. Bindschedler-Robert, Mr B. Walsh,

Mr J. De Meyer, Mr N. Valticos and Mr I. Foighel (Article 43 in fine

of the Convention and Rule 21 § 4) (art. 43).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 § 5) and, through the Registrar, consulted the Agent of the

Government, the Delegate of the Commission and the representative of

the applicant on the need for a written procedure (Rule 37 § 1). In

accordance with his order, the Government's memorial and the

applicant's memorial were received by the registry, on 1 and

11 December 1989, respectively. On 16 January 1990 the Secretary to

the Commission notified the Registrar that the Delegate would submit

her observations at the hearing.

5. Having consulted, through the Registrar, those who would be

appearing before the Court, the President directed on 26 January 1990

that the oral proceedings should open on 20 February 1990 (Rule 38).

6. The hearing took place in public in the Human Rights Building,

Strasbourg, on the appointed day. The Court had held a preparatory

meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr H. Corell, Ambassador, Under-Secretary

for Legal and Consular Affairs, Ministry of

Foreign Affairs, Agent,

Mr S. Tell, District Court Judge, former Legal

Adviser to the Ministry of Housing and Planning,

Mr H. Lagergren, Legal Adviser, Ministry of Housing

and Planning,

Mr P. Boqvist, Legal Adviser, Ministry of Foreign

Affairs, Advisers;

(b) for the Commission

Mrs G. Thune, Delegate;

(c) for the applicant

Mr H. W. Tullberg, lawyer, Counsel,

Mr U. Brunfelter, lawyer, Adviser.

The Court heard addresses by Mr Corell for the Government, by

Mrs Thune for the Commission and by Mr Tullberg for the applicant, as

well as their replies to its questions. On the day of the hearing,

counsel for the applicant lodged, with the President's authorisation,

a number of documents (Rule 37 § 1, second sub-paragraph).

AS TO THE FACTS

I. Circumstances of the case

7. Mr Mats Jacobsson owns a property, Tullinge 17:289 (previously

stadsäga, "Stg", 3594), situated in the municipality of Botkyrka, a

suburb south of Stockholm. On the property, which has an area of

2,079 m2, there is a small house.

8. When the applicant acquired the property in 1973, it was

subject to a building plan dating from 1938 ("the 1938 plan") which

provided that, in principle, no building plot should be less than

1,500 m² in area; as an exception a plot of at least 1,000 m² could be

permitted in a locality where adequate sewage and water-supply systems

had been installed.

9. Since June 1954 the property has for most of the time been

subject to a series of temporary building prohibitions, lasting one or

two years each, issued under section 109 of the Building Act 1947

(byggnadslagen 1947:385 - "the 1947 Act"; see paragraph 23 below)

pending an amendment of the building plan in force. Since the same

date construction has also been prohibited in the area under

section 110 of the 1947 Act (see paragraph 24 below), pending the

building of adequate roads and the installation of water-supply and

sewage systems.

10. After the applicant, amongst others, had complained about the

inconveniences resulting from the existing sewage system in the area

where his property is situated, the County Administrative Board

(länsstyrelsen - "the Board") ordered in June 1981 that the

municipality should install sewage pipes there before the end of 1982,

which it did.

11. On 16 December 1982 the Municipal Council (kommunfullmäktige)

adopted a proposal to amend the 1938 plan, notably so as to provide

that in future all building plots would have to have an area of at

least 1,500 m2, irrespective of whether or not water-supply and sewage

systems had been installed. The proposal also sought to prohibit all

constructions on the site of the applicant's existing house.

12. Mr Mats Jacobsson objected to the proposal. He alleged that

the amendments would unlawfully restrict construction and would

wrongfully take away the right to build a second house that previously

attached to properties such as his own under the 1938 plan.

However, the amended building plan was approved by the Board on

4 July 1983 pursuant to section 108 of the 1947 Act (see paragraph 21

below). In its decision the Board found, inter alia, that the

Municipality's policy of allowing only a low degree of exploitation

was acceptable and could not be considered to contravene the 1947 Act.

As regards the right to build the Board observed:

"Stg 3594 has an area of 2,079 m2. The existing plan of 1938

provides for building plots of at least 1,500 m2. However, if the

property is situated in an area where water and sewage pipes are

installed before or in connection with the construction and in

accordance with a plan approved by the Health Care Board

(hälsovårdsnämnden), it is permitted to reduce the area of the

building plots, but not to less than 1,000 m2. This condition must

presuppose some sort of private initiative for a common

installation for several properties in order to build on them.

Since 1954, when the building prohibition under section 110 of the

Building Act was issued, no measures have been taken by the

property owners with a view to arranging any water or sewage

installations. The water and sewage pipes which have now been

installed became necessary only in order to remedy the sanitary

inconveniences which had arisen in the area despite the fact that

the building plots are large. The conditions in the plan, subject

to which building plots of less than 1,500 m2 may be permitted,

cannot therefore be considered to be fulfilled. The County

Administrative Board accordingly finds that there is no obvious

right under the plan in force to divide Stg 3594. In view of this

and having regard to the general interest of not prejudging future

town planning, the County Administrative Board considers that the

decision of the municipality not to agree to Mr Jacobsson's claim

for further building rights is acceptable."

13. The applicant's appeal to the Government against the Board's

decision was rejected on 19 January 1984 on all counts but one. The

Government accepted only that demolition of the applicant's existing

house should no longer be a condition for allowing any further

construction on his property (see paragraph 11 above).

14. The applicant applied to the Supreme Administrative Court

(regeringsrätten) for the reopening of proceedings, submitting that

the Government's decision was based on false premises and that the

proposed plan was contrary to the law. In a decision of 5 June 1984

the Supreme Administrative Court rejected the application.

II. Relevant domestic law and practice

A. Legislation on construction and urban planning

15. Until 30 June 1987 a property owner's right to build on his

own land was governed by the 1947 Act and by a Government Ordinance

adopted in 1959 in pursuance of that Act (byggnadsstadgan - "the 1959

Ordinance"). On 1 July 1987 the Plan and Building Act 1987 (plan- och

bygglagen) replaced the 1947 Act. However, the new Act is not

relevant in the present case.

16. Section 1 of the 1947 Act provided that construction on

property required a building permit under conditions to be laid down

by the Government. Section 54 of the 1959 Ordinance specified that a

permit was required for all new constructions, except for certain

buildings for public use, or small additions to existing residences

and farms.

17. The examination of an application for a building permit

involved ascertaining that the proposed building did not contravene

any plan in force (or, where applicable, the regulations for

non-planned areas) or a building prohibition, and that it satisfied

the relevant technical requirements. If there were no such obstacles,

a permit had to be granted.

18. Before a building could be erected on a property, section 5 of

the 1947 Act called for an examination of whether the property was

suitable from a general point of view for this purpose. Such an

examination was in general to be effected by planning procedure.

B. Building plans

19. The 1947 Act prescribed that the detailed regulations on the

development of land were to be contained in either town plans

(stadsplaner) or building plans (byggnadsplaner).

20. A building plan had to state the limits of areas intended for

different purposes (section 107 of the 1947 Act). Any special

regulations relating to the development or the use of the areas

concerned, such as a ban on the development of a certain part of the

land, had to be incorporated in the plan.

21. According to section 108 of the 1947 Act, building plans (and

also changes to such plans - see section 23 of the 1959 Ordinance) had

to be adopted by the Municipal Council and thereafter approved by the

County Administrative Board before they acquired legal force. Under

section 150 of the Act, a landowner who was adversely affected by the

Board's decision to approve a plan could appeal to the Government as

the first and final instance.

22. The 1947 Act did not contain any provisions concerning the

material conditions for changing or approving a building plan.

However, when considering whether an owner's right to build according

to an existing plan might be limited or withdrawn by a change of that

plan, the authorities concerned had to weigh the public interest in

such a change against the infringement of the private interests

involved (section 4 of the 1947 Act and section 9 of the 1959

Ordinance).

C. Building prohibitions

23. If the question of drawing up or altering a building plan had

been raised, the Board could, under section 109 of the Act and at the

request of the municipality, prohibit new constructions in the area.

Such a prohibition could be issued for a maximum of one year but could

be extended by the Board for not more than two years at a time.

24. Section 110, paragraph 1, of the 1947 Act prohibited any new

construction that was not in conformity with a building plan. Under

paragraph 2, the Board was empowered to proscribe all new

constructions in an area covered by such a plan before adequate roads

had been built and water-supply and sewage systems installed.

25. Exemptions from the above-mentioned building prohibitions

could be granted by the Board in individual cases. However if it was

sought to depart from a building plan, an exemption therefrom could

not be granted by the Board without the approval of the Building

Committee (byggnadsnämnden) of the municipality (section 110

of the 1947 Act). The Building Committee could itself grant the

exemption at first instance if the Government had delegated such

competence to it.

If an exemption from a building prohibition was refused, an appeal lay

to the Government as the first and final instance. However, a

building committee's refusal to approve a departure from the building

plan was not subject to appeal (section 71 of the 1959 Ordinance).

PROCEEDINGS BEFORE THE COMMISSION

26. Mr Mats Jacobsson lodged his application with the Commission

on 5 August 1984 (no. 11309/84). He alleged violations of

Article 6 § 1 and Article 13 (art. 6-1, art. 13) of the Convention, in

that his rights under the 1938 building plan could not be examined by

any court. He also complained of a breach of Article 1 of

Protocol No. 1 (P1-1) on the ground that his right to use his property

according to the 1938 building plan had been revoked without any

general interest having been established.

27. On 8 October 1985 the Commission declared the application

inadmissible. However, on 8 March 1988 it concluded, after having

reopened the proceedings, that the complaints were admissible except

for those under Article 1 of Protocol No. 1 (P1-1).

In its report adopted on 16 March 1989 (Article 31 of the Convention)

(art. 31), the Commission expressed the opinion that there had been a

violation of Article 6 § 1 (art. 6-1) (by fourteen votes to three) and

that it was not necessary to examine separately the complaint under

Article 13 (art. 13) (unanimously). The full text of the Commission's

opinion and the dissenting opinions contained in the report is

reproduced as an annex to this judgment.*

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* Note by the Registrar. For practical reasons this annex will appear

only with the printed version of the judgment (volume 180-A of Series A of

the Publications of the Court), but a copy of the Commission's report is

obtainable from the registry.

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AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1) OF THE CONVENTION

28. The applicant complained that Swedish law did not provide him

with adequate access to a court to challenge the decision to amend the

1938 building plan covering his property. He invoked Article 6 § 1

(art. 6-1) of the Convention according to which

"In the determination of his civil rights and obligations ... everyone

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

The Commission agreed with this contention.

A. Applicability of Article 6 § 1 (art. 6-1)

29. The Government, for their part, pleaded that Article 6 § 1

(art. 6-1) was not applicable in this case.

1. Existence of a dispute ("contestation") over a "right"

30. In order to decide this question, the Court has first to

ascertain whether there was a dispute ("contestation") over a "right"

which can be said, at least on arguable grounds, to be recognised

under domestic law. According to the principles enunciated in its

case-law (see, inter alia, the Pudas judgment of 27 October 1987,

Series A no. 125-A, p. 14, § 31), the dispute must be genuine and

serious; it may relate not only to the actual existence of a right but

also to its scope and the manner of its exercise; and, finally, the

result of the proceedings must be directly decisive for the right in

question.

31. The Government contended that the normative or general

character of the amendment to the plan was so strong that no right on

the part of the applicant could be said to have been at issue.

Admittedly, the Court has held in its James and Others judgment

(21 February 1986, Series A no. 98), on which the Government relied,

that Article 6 § 1 (art. 6-1) does not in itself guarantee any

particular content for (civil) "rights and obligations" in the

substantive law of the Contracting States (p. 46, § 81). In that case

no dispute could therefore have been said to exist regarding the

existence of the right claimed by the applicants, as parliamentary

legislation had unequivocally taken it away. However, in the present

instance the rights asserted by the applicant were recognised by

national law, though their exercise was subjected to a number of

conditions in the 1947 Act, many of which the administration had

received authority to fix, in some cases by decisions of general

applicability (see paragraphs 15-25 above). Accordingly, a dispute

within the meaning of Article 6 (art. 6) regarding the continued

existence of these rights might well arise if such decisions were

alleged to be in contravention of the law.

32. The Government also maintained that, in view of the wide

discretion left by the Swedish Parliament to the administrative

authorities in this area, there could not be any serious and genuine

dispute as to the applicant's rights to build and divide his property

before a building permit had been issued. They added that, as the

rights claimed had in fact never been exercised, they were not

relevant for the purposes of Article 6 § 1 (art. 6-1).

In the circumstances the Court finds it clear, however, that, subject

to meeting the requirements laid down by law (in particular by the

1947 Act and the enactments made thereunder - see paragraphs 16-25

above), Mr Mats Jacobsson could arguably have asserted that, by virtue

of the provisions of the 1938 plan, he had inter alia a right to build

a second house on his property and to obtain the necessary permit. It

is true that the decision to adopt the amendment to the plan involved

the exercise of a certain discretion on the part of the competent

authorities, but their discretion was not unfettered: they were bound

by generally recognised legal and administrative principles (see, for

example, the Allan Jacobsson judgment of 25 October 1989, Series A

no. 163, p. 20, § 69).

In view of this, it is not material that Mr Mats Jacobsson had not in

fact, as stressed by the Government, exercised his disputed rights

under the plan, for example by building a second house on his

property.

The dispute which arose between Mr Jacobsson and the authorities

concerned the lawfulness of the amendments to the plan. In

particular, the authorities were alleged to have departed from a

long-established practice, resulting from section 4 of the 1947 Act

(see paragraph 22 above), whereby, the applicant claimed, new plans

were approved only if they conferred a right to compensation for

losses of more than 20% of existing building rights; in addition, it

appears that Mr Mats Jacobsson raised the question of lawfulness

before the Supreme Administrative Court also, when he applied for the

reopening of the proceedings (see paragraph 14 above).

The Government sought to infer from, inter alia, the rejection of that

application that Mr Mats Jacobsson's complaints were not arguable. The

Supreme Administrative Court's judgment is, however, not decisive for

this question: the possibility of seeking the reopening of proceedings

is too circumscribed under Swedish law to provide adequate access to a

court for the purposes of Article 6 § 1 (art. 6-1) (see, for example,

the above-mentioned Pudas judgment, Series A no. 125-A, p. 17, § 41)

and, thus, the Supreme Administrative Court may well have been obliged

to dismiss the applicant's complaint even though it challenged the

lawfulness of the decision to amend the plan.

Having regard to the foregoing and to the facts of the case, the Court

finds that the above-mentioned dispute between the applicant and the

authorities was of a genuine and serious nature.

33. The Government further contended that the dispute did not

concern any proceedings whose outcome was decisive for the rights

claimed by the applicant to build a second house and to divide his

property: the amendments to the plan were only one of several factors

which had a bearing on the possibilities which he had of exercising

these rights and, in addition, the purpose of the amendments was not

to affect his rights specifically but to regulate the situation of a

great number of property owners.

The Court finds, however, that the decision to amend the plan was

capable of extinguishing the alleged rights. Thus, whatever other

conditions the applicant may have had to comply with, the amendments

put in issue the very existence of these rights. The mere fact that

other property owners may also have been affected is of no consequence

in this respect (see the above-mentioned Allan Jacobsson judgment,

Series A no. 163, p. 20, § 70). There was also a sufficient

connection, for the purposes of Article 6 § 1 (art. 6-1), between the

dispute and the applicant's rights, since it concerned the validity of

the amendments as they applied to his property.

There was accordingly a "determination" of the applicant's "rights".

2. The "civil" character of the "right" in issue

34. There can be no doubt that the applicant's disputed "rights"

to build on and to divide his property were "civil rights" within the

meaning of Article 6 § 1 (art. 6-1); this is confirmed by the Court's

established case-law (see, as the most recent authority, the

Allan Jacobsson judgment cited above, Series A no. 163, pp. 20-21,

§§ 72-73). In the present case this finding is affected neither by

the Government's argument that the planning decision itself was

motivated mainly by considerations of public interest, nor by the

general character of the plan.

3. Conclusion

35. In sum, Article 6 § 1 (art. 6-1) is applicable.

B. Compliance with Article 6 § 1 (art. 6-1)

36. According to Swedish law, the dispute in question could be

determined only by the Government as the final instance (see

paragraph 21 above). The Government's decisions were not, in

principle, open to review as to their lawfulness by either the

ordinary courts or the administrative courts, or by any other body

which could be considered to be a "tribunal" for the purposes of

Article 6 § 1 (art. 6-1).

As shown by the present case, the applicant could challenge the

decision to amend the plan by requesting the Supreme Administrative

Court to reopen the proceedings. However, for the reasons set out in

the Sporrong and Lönnroth judgment of 23 September 1982 (Series A

no. 52, p. 31, § 86), this extraordinary remedy does not meet the

requirements of Article 6 § 1 (art. 6-1) (see also paragraph 32 above).

37. There has thus been a violation of Article 6 § 1 (art. 6-1).

II. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION

38. The applicant claimed that he was deprived of any "effective

remedy before a national authority" in respect of the matters of which

he complained.

Having regard to its decision on Article 6 § 1 (art. 6-1), the Court,

like the Commission, does not find it necessary to consider the case

also under Article 13 (art. 13); this is because its requirements are

less strict than, and are here absorbed by, those of Article 6 § 1

(art. 6-1) (see, for example, the above-mentioned Allan Jacobsson

judgment, Series A no. 163, p. 21, § 76).

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE

CONVENTION (P1-1)

39. In his memorial to the Court, the applicant also maintained that

the decision to change the plan breached Article 1 of Protocol No. 1

(P1-1). At the hearing he reiterated this contention, relying on the

lack of any compensation for the loss of building rights which he

alleged had ensued.

40. This is a separate complaint since it is not based on the same

facts as those underlying the grievance under Article 6 § 1 (art. 6-1)

of the Convention, namely the lack of adequate access to a court to

challenge the lawfulness of the decision in question. It was declared

inadmissible by the Commission as being manifestly ill-founded (see

paragraph 27 above). Consequently, the Court has no jurisdiction to

deal with the matter (see, as the most recent authority, the Powell

and Rayner judgment of 21 February 1990, Series A no. 172, pp. 13-14,

§§ 28-29).

IV. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

41. Article 50 (art. 50) provides:

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising

from the (...) Convention, and if the internal law of the said

Party allows only partial reparation to be made for the

consequences of this decision or measure, the decision of the Court

shall, if necessary, afford just satisfaction to the injured

party."

The applicant sought compensation for pecuniary and non-pecuniary

damage and reimbursement of his costs and expenses.

A. Pecuniary damage

42. The applicant asked primarily that the Government should be

compelled to buy his estate at its market value calculated on the

basis that the 1938 plan was still in force. At 1990 prices this gave

a market value of 1,400,000 Swedish crowns. Alternatively, if the

Court were to find that such a transaction could not be ordered by way

of just satisfaction, the applicant claimed compensation for the loss

in value of the property occasioned by the amended plan. This loss

was estimated at 1,000,000 crowns. In any event, he sought

compensation for the loss he had suffered as a result of the building

prohibitions imposed on the property between 1974 and 1984. At 1990

prices this was calculated at 400,000 crowns. The applicant

maintained that all sums should be paid free of local tax or other

contributions in Sweden.

43. The decision to amend the plan certainly had negative effects

upon the applicant's possibilities of using and developing his

property. Nevertheless, the Court cannot speculate as to what the

result of the applicant's challenge would have been if he had been

able to bring his complaints before a "tribunal" having the

supervisory powers required by Article 6 § 1 (art. 6-1).

The Court thus agrees with the Government's contention that no causal

link is established between the violation of Article 6 § 1 (art. 6-1)

found in this judgment and any of the alleged pecuniary damage.

No award can therefore be made under this head.

B. Non-pecuniary damage

44. The applicant also sought at least 10,000 crowns as

compensation for non-pecuniary damage. This claim was supported by

the Delegate of the Commission. The Government left the matter to the

Court's discretion.

The Court agrees with the Delegate that, by reason of the absence of

an adequate court remedy, the applicant suffered some non-pecuniary

damage which would not be redressed merely by a finding of a

violation. Deciding on an equitable basis, the Court awards

10,000 crowns as just satisfaction under this head.

C. Costs and expenses

45. The applicant sought 393,874 crowns in respect of costs and

expenses. Of this sum, 150,960 crowns constituted Mr Tullberg's fees

for 251 hours of work and 239,888 crowns his expenses for outside

legal advice, for the translation of various documents and for travel.

The remaining 3,026 crowns related to a number of miscellaneous items.

46. The Court notes that a large part of the costs and expenses in

question were incurred in respect of the complaint under Article 1 of

Protocol No. 1 (P1-1), which complaint was declared inadmissible by the

Commission. Considering this and other relevant circumstances,

including the legal aid payments from the Council of Europe, and

making an assessment on an equitable basis, as is required by

Article 50 (art. 50) of the Convention, the Court considers that the

applicant is entitled to be reimbursed the sum of 80,000 crowns.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 6 § 1

(art. 6-1) of the Convention;

2. Holds that it is not necessary to examine the case under

Article 13 (art. 13);

3. Holds that it does not have jurisdiction to examine the

applicant's complaint under Article 1 of Protocol No. 1 (P1-1);

4. Holds that Sweden is to pay the applicant 10,000

(ten thousand) Swedish crowns for non-pecuniary damage and 80,000

(eighty thousand) crowns for costs and expenses;

5. Rejects the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in

the Human Rights Building, Strasbourg on 28 June 1990.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 § 2 (art. 51-2) of the Convention and

Rule 53 § 2 of the Rules of Court, a separate opinion of Mr De Meyer

is annexed to this judgment.

Initialled: R.R.

Initialled: M.-A.E.

SEPARATE OPINION OF JUDGE DE MEYER

Here again, as in the previously decided case of Allan Jacobsson, an

issue was raised concerning the determination of a person's rights of

property, as affected by planning and construction legislation and by

the implementation thereof. That sufficed, in my view, to render

Article 6 § 1 (art. 6-1) of the Convention applicable (1).

_______________

(1) See further my concurring opinion in the Allan Jacobsson case,

Series A no. 163, p. 24.

_______________

I also feel that the Court was not precluded from considering the

applicant's contention under Article 1 of the First Protocol (P1-1).

I still believe that, once a case is brought before it, the Court's

jurisdiction extends to all questions of fact and of law arising in

that case (2).

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(2) See the judgment in the cases of De Wilde, Ooms and Versyp,

18 June 1971, Series A no. 12, p. 29, §§ 47-49, and the Handyside

judgment, 7 December 1976, Series A no. 24, p. 20, § 41. See further

my separate opinions in the cases of W. v. the United Kingdom,

Series A no. 121-A, p. 42, and of Boyle and Rice, Series A no. 131,

p. 35, at II.

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CASE OF MATS JACOBSSON v. SWEDEN

CASE OF MATS JACOBSSON v. SWEDEN