Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 16970/90

Allan Jacobsson

against

Sweden

REPORT OF THE COMMISSION

(adopted on 26 November 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-17). . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-12) . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 13-17). . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 18-40) . . . . . . . . . . . . . . . . . . . . . . 4

A. The particular circumstances of the case

(paras. 18-33). . . . . . . . . . . . . . . . . . . . 4

B. Relevant domestic law

(paras. 34-40). . . . . . . . . . . . . . . . . . . . 8

III. OPINION OF THE COMMISSION

(paras. 41-49) . . . . . . . . . . . . . . . . . . . . . .10

A. Complaint declared admissible

(para. 41). . . . . . . . . . . . . . . . . . . . . .10

B. Point at issue

(para. 42). . . . . . . . . . . . . . . . . . . . . .10

C. As to the alleged violation of Article 6 para. 1

of the Convention

(paras. 43-49). . . . . . . . . . . . . . . . . . . .10

CONCLUSION

(para. 49). . . . . . . . . . . . . . . . . . . . . .11

DISSENTING OPINION OF Mrs J. LIDDY, MM. E. BUSUTTIL,

F. MARTINEZ, M.A. NOWICKI, N. BRATZA, J. MUCHA and G. RESS. . .12

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . . .14

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European

Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Swedish citizen, born in 1927. He resides in

Tullinge, Sweden.

3. The application is directed against Sweden. The respondent

Government were represented by their Agent, Mr. Carl Henrik Ehrenkrona

of the Ministry for Foreign Affairs.

4. The case concerns the proceedings in the Supreme Administrative

Court (Regeringsrätten) in which the applicant challenged the

administrative decision to revoke a detailed development plan for an area

in which he owns certain property. The applicant complains that he did

not get a "public hearing". He invokes Article 6 para. 1 of the

Convention.

B. The proceedings

5. The application was introduced on 21 July 1990 and registered on 2

August 1990.

6. On 29 March 1993 the Commission decided to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 30 August 1993. The

applicant's observations in reply were submitted on 15 November 1993.

8. On 28 November 1994 the Commission decided to obtain from the

parties further observations on the admissibility and merits of the

application.

9. The Government's further observations were submitted on

3 January 1995 and the applicant's further observations in reply were

submitted on 14 February 1995.

10. On 16 October 1995 the Commission declared the application partly

admissible and partly inadmissible.

11. The text of the Commission's decision on admissibility was sent to

the parties on 27 October 1995 and they were invited to submit further

observations on the merits as they wished. The applicant and the

Government submitted observations on the merits on 6 and 13 December 1995

respectively.

12. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a friendly

settlement. In the light of the parties' reaction, the Commission now

finds that there is no basis on which such a settlement can be effected.

C. The present Report

13. The present Report has been drawn up by the Commission in pursuance

of Article 31 of the Convention and after deliberations and votes, the

following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

14. The text of this Report was adopted on 26 November 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

15. The purpose of the Report, pursuant to Article 31 of the Convention,

is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a

breach by the State concerned of its obligations under the

Convention.

16. The Commission's decision on the admissibility of the application

is annexed hereto.

17. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

18. In 1974 the applicant bought a property of 2,644 m2, Salem 23:1, in

the centre of Rönninge in the municipality of Salem, a suburb about 20

kilometres south-west of Stockholm. On the property there is a one-family

house.

19. When the applicant bought the property it was covered by a so-called

subdivision plan (avstyckningsplan), adopted in 1938. According to this

plan no building could be constructed on a plot of less than 1,500 m2

until sufficient water and sewage facilities had been provided for. Such

facilities appear to have been built at the end of the 1960's. The

property was also covered by an area plan (områdesplan), adopted in 1972,

which described the property mainly as a public area containing open

spaces, streets and car parking, and by a building prohibition pursuant

to section 35 of the previous Building Act (byggnadslagen) of 1947,

issued on 26 August 1974.

20. The first building prohibition under the Building Act of 1947 was

issued by the County Administrative Board (länsstyrelsen, hereinafter

"the Board") of the Stockholm County already in September 1965 and was

valid for one year. This prohibition was subsequently prolonged by the

Board for one or two years each time. The last decision was taken on

11 July 1985 and was valid until 11 July 1987. On 1 July 1987, with the

entry into force of the Planning and Building Act of 1987 (Plan- och

bygglagen, hereinafter "the 1987 Act"), the existing system for

prohibition on construction was abolished and replaced by a possibility

for the Building Committee (byggnadsnämnden) to defer its decision on an

application for a building permit, or a preliminary opinion on that

issue, for a maximum period of two years.

21. Ever since he bought the property in question the applicant has

tried, in vain, to obtain from the competent authorities a permit to

divide his plot and/or to build, in addition to the existing house, more

houses on it. On 28 July 1975 the Building Committee of Botkyrka stated

in a preliminary opinion, requested by the applicant, that it was not

prepared to permit the division of his property into smaller plots,

referring inter alia to the area plan adopted in 1972.

22. On 28 June 1979 the Municipal Assembly (kommunfullmäktige) adopted

a master plan (generalplan) relating to part of the municipality of

Botkyrka, according to which the applicant's property was supposed to be

used for building blocks of flats of more than two storeys. On 15 January

1980 the Building Committee stated, in reply to a request from the

applicant, that accordingly it was not prepared to grant him an exemption

from the building prohibition or a permit to build a one-family house and

a garage on the property. The applicant appealed to the Board claiming

that the building prohibition was not valid. The Board rejected the

appeal on 25 April 1980, stating inter alia that in its opinion the

proposed buildings could be contrary to the aim of the prevailing

prohibition and hinder future town planning as indicated in the master

plan of 1979.

23. On 13 February 1984 the Municipal Council (kommunstyrelsen) adopted

an area programme according to which the area in which the applicant's

property is situated should be used for the construction of multi-family

houses in 1988. It also stated that the planning procedure should be

given priority. On 23 February 1984 the Municipal Assembly adopted a

building programme to the same effect.

24. On 12 June 1984 the Building Committee stated in a new preliminary

opinion requested by the applicant that it would not be prepared to grant

any building permit in view of the existing building prohibition. The

applicant's appeals against this were, as before, unsuccessful.

25. On 20 March 1986 the Municipal Assembly adopted a new area plan

covering inter alia the applicant's property. This plan mentioned the

possibility of using the area for single or multi-family house

development.

26. On the basis of these facts the applicant lodged an application with

the Commission (No. 10842/84) alleging violations of inter alia Article

6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

In its Report of 8 October 1987 the Commission expressed the opinion that

there had been a violation of Article 6 para. 1 of the Convention as a

result of the lack of any court remedy to challenge the lawfulness and

the compatibility with the Convention of the building prohibitions

imposed on his property. It also reached the conclusion that there had

been no violation of Article 1 of Protocol No. 1 to the Convention. The

Commission's view was subsequently upheld by the European Court of Human

Rights (Eur. Court H.R., Allan Jacobsson judgment of 25 October 1989,

Series A no. 163).

27. While his case was pending before the Commission and the Court, and

following the entry into force of the 1987 Act, the applicant filed a

request with the Building Committee on 9 July 1987 for a preliminary

opinion regarding a building permit for his property in order to build

a house thereon. On 13 October 1987 the Building Committee decided,

however, pursuant to the rules laid down in the 1987 Act, to defer its

decision on the request for a period of two years. It nevertheless

informed the applicant that a building permit could not be expected for

the time being. Before the end of the above two year period the Municipal

Assembly of the Municipality of Salem decided, on 21 June 1989, to revoke

the detailed development plan (previously called a subdivision plan)

which had been in force since 1938. Following this the Building Committee

decided, on 11 September 1990, to confirm its preliminary opinion of

13 October 1987 rejecting the applicant's request for a building permit.

In its reasons the Committee referred to the need for a new detailed

development plan and the Municipality's intention to plan the land for

single or multi-family house development in accordance with the area plan

adopted in 1986. The applicant did not appeal against this decision.

28. In the meantime, however, the applicant had lodged an appeal with

the Administrative Court of Appeal (kammarrätten) against the decision

of the Municipal Assembly of 21 June 1989 to revoke the detailed

development plan of 1938. On 6 July 1989 the Court decided not to

entertain the appeal as it had no competence to do so since such an

appeal, in accordance with the 1987 Act, was to be examined by the County

Administrative Board. Leave to appeal against this decision was refused

by the Supreme Administrative Court (Regeringsrätten) on 20 September

1989.

29. Following the above decision of the Administrative Court of Appeal

the applicant lodged his appeal with the Board. He maintained in

particular that the authorities were under an obligation, pursuant to

Chapter 1, section 5, of the 1987 Act, to take into consideration both

private and public interests and thus weigh the loss of the rights

created by the old detailed development plan against the public interest

in adopting a new detailed development plan.

30. On 7 September 1989 the Board rejected the appeal and upheld the

decision of the Municipal Assembly to revoke the detailed development

plan of 1938. In its decision the Board stated:

(Translation)

"The area is covered by a detailed development plan, approved

by the County Administrative Board on 16 September 1938.

Pursuant to Chapter 17, section 4, of the 1987 Act the

implementation period for the plan is to be considered as

having elapsed.

In such circumstances the municipality has a strong position

in respect of the right to revoke a detailed development plan,

something which has been exemplified by the fact that the

revocation may be decided without the rights which derived

from the plan being taken into consideration (chapter 5,

section 11, subsection 2, of the 1987 Act). This presupposes

that the general interest speaks in favour of a revocation.

Such a general interest has been expressed by the issuing of

an area plan for Östra Rönninge.

When examining questions under the 1987 Act both public and

individual interests must be taken into consideration unless

otherwise provided. The above provision is an example thereof.

The meaning of this provision is that the person who has

obtained a right according to the plan cannot rely thereon

during the examination of the question whether the plan should

be repealed. However, when it comes to examining the contents

of a new plan the main rule in Chapter 1, section 5,

concerning the individual's interests must obviously be

considered, but even in these circumstances it is not required

that the rights under the old plan must be respected. When it

comes to adopting a new plan it would not be contrary to the

1987 Act to let the adoption thereof be preceded by the

revocation of a detailed development plan. The possible result

of an examination of a request for a building permit in

respect of a new construction on Salem 2[3]:1 following the

revocation of the detailed development plan cannot be examined

in this case. The applicant's submissions in support of his

appeal do not provide a reason for refusing the implementation

of the decision appealed against."

31. The applicant appealed against this decision to the Government. On

14 June 1990 the Government rejected the appeal stating that they shared

the assessment made by the County Administrative Board.

32. In accordance with the provisions of the 1988 Act on Judicial Review

of Certain Administrative Decisions (Lag 1988:205 om rättsprövning av

vissa förvaltningsbeslut, hereinafter "the 1988 Act") the applicant

challenged the Government's decision in the Supreme Administrative Court.

He also requested the Court to examine a request for a building permit

and to hold an oral hearing.

33. On 11 November 1990 the Supreme Administrative Court, without

holding an oral hearing, rejected the applicant's complaints against the

Government's decision. In its decision the Court stated:

(Translation)

"According to section 1 of the 1988 Act the Supreme

Administrative Court shall, at the request of a private party

in certain administrative matters dealt with by the Government

or an administrative authority, examine whether the decision

is contrary to any legal provision.

In the present case the examination concerns the Government's

decision of 14 June 1990. In this decision the Government

rejected an appeal lodged by (the applicant) against a

decision of the County Administrative Board of Stockholm to

uphold a decision to revoke (the 1938 detailed development

plan) concerning a land area within the Municipality of Salem.

This means that the Supreme Administrative Court cannot in the

present proceedings examine (the applicant's) request to be

granted a building permit. The Supreme Administrative Court

dismisses this request and rejects the request for a public

oral hearing.

As regards the question whether the revocation of (the old

1938 plan) is contrary to any legal provision, it can be

established that the plan, according to Chapter 17, section 4,

of the 1987 Act, was to be regarded as a detailed development

plan with regard to which the implementation period had

elapsed. According to Chapter 5, section 11, of the 1987 Act

such a plan may be amended or annulled without regard to the

rights which may have accrued during the plan's existence. The

latter provision constitutes an exception to the principal

rule in Chapter 1, section 5, of the 1987 Act that

consideration shall be given to both public and private

interests when examining issues under the 1987 Act (cf.

Government Bill 1985/86:1 pp. 175 and 464). The facts of the

case do not indicate that the revocation of the plan is

contrary to Chapter 5, section 11, or Chapter 1, section 5, of

the 1987 Act or to any other provision in the law. The

decision is upheld."

B. Relevant domestic law

34. The Planning and Building Act which entered into force on

1 July 1987 contains regulations about the planning of land and water

areas as well as building. According to Chapter 1, section 1, "... the

purpose of these regulations is, with due regard to the freedom of the

individual, to promote a development of the society characterised by

equal and good living conditions for people today and for future

generations ...".

35. The provisions of the 1987 Act which have been invoked in the

present case read as follows:

(Translation)

Chapter 1 - Introductory regulations

Section 5. When issues are examined in accordance with this

Act, consideration shall be given to both public and private

interests unless otherwise prescribed.

Chapter 5 - Detailed development plans and area regulations

Section 5. The detailed development plan shall contain a time-

limit for development. This time-limit shall be fixed in such

a way that there is a reasonable chance of the plan's

implementation taking place within at least five and at most

fifteen years. ... When the time-limit expires, the plan will

continue to be valid until it is amended or annulled.

Section 11. Before the expiry of the implementation period a

detailed development plan may only be amended or annulled

contrary to the wishes of the property owners concerned when

this is required as a result of new conditions of great public

importance and which could not be foreseen when the plan was

drawn up.

When the implementation period has elapsed, the plan may be

amended or annulled without regard to the rights which may

have accrued during the plan's existence ...

Chapter 17 - Provisional regulations

Section 4. Town development plans and rural development plans

adopted under the Building Act (1947:385) or the Town Planning

Act (1931:142), older types of plans and regulations referred

to in sections 79 and 83 of the latter act as well as

subdivision plans, which are not covered by a directive issued

in accordance with section 168 of the Building Act, shall be

regarded as a detailed development plan in accordance with

this Act. Subdivision plans, to the extent they are covered by

the above-mentioned directives, will cease to be valid with

the coming into force of this Act.

With regard to town development plans and rural development

plans which have been adopted before the end of 1978, the

implementation period will be considered, in accordance with

section 5, subsection 5, to be five years from the date of

their gaining legal force. For other plans and regulations,

referred to in the first subsection, the implementation period

will be regarded as having elapsed.

Unless otherwise prescribed in a plan or regulation, which

according to the first subsection is to be regarded as a

detailed development plan in accordance with this Act,

section 39 in the Building Ordinance (1959:612) shall apply as

a regulation in the plan."

36. The 1988 Act on Judicial Review of Certain Administrative Decisions

was introduced as a result of the European Court of Human Rights'

findings in several cases, notably against Sweden, that lack of judicial

review of certain administrative decisions infringed Article 6 para. 1

of the Convention. It was enacted as a temporary law to remain in force

until 1991; its validity has subsequently been extended, as from 1 July

1996 without any limitation in time.

37. Pursuant to section 1 of this Act, a person who has been a party to

administrative proceedings before the Government or another public

authority may, in the absence of any other remedy, apply to the Supreme

Administrative Court, as the first and only court, for review of any

decisions in the case which involve the exercise of public authority

vis-à-vis a private individual. The kinds of administrative decisions

covered by the Act are further defined in Chapter 8, sections 2 and 3 of

the Instrument of Government (Regeringsformen), to which section 1 of the

1988 Act refers. Section 2 of the Act specifies several types of

decisions which fall outside its scope, none of which is relevant in the

instant case.

38. In proceedings brought under the 1988 Act, the Supreme

Administrative Court examines whether the contested decision "conflicts

with any legal rule" (section 1 of the 1988 Act). According to the

preparatory work to the Act, as reproduced in Government Bill 1987/88:69

(pp. 23-24), its review of the merits of cases concerns essentially

questions of law but may, in so far as relevant for the application of

the law, extend also to factual issues; it must also consider whether

there are any procedural errors which may have affected the outcome of

the case.

39. If the Supreme Administrative Court finds that the impugned decision

is unlawful, it must quash it and, where necessary, refer the case back

to the relevant administrative authority.

40. The procedure before the Supreme Administrative Court is governed

by the Administrative Procedure Act of 1971 (förvaltningsprocesslagen).

It is in principle a written procedure, but the Supreme Administrative

Court may decide to hold an oral hearing on specific matters if this is

likely to assist it in its examination of the case or to expedite the

proceedings (section 9). As from 1 July 1996, section 3a of the 1988 Act

provides that in matters of judicial review the Supreme Administrative

court shall hold an oral hearing if this is requested by the person

seeking judicial review and it is not manifestly unnecessary.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

41. The Commission had declared admissible the applicant's complaint

that he was refused an oral hearing in the proceedings before the Supreme

Administrative Court.

B. Point at issue

42. Accordingly, the issue to be determined is whether there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention due to the

lack of an oral hearing in the court proceedings concerned.

C. As to the alleged violation of Article 6 para. 1 (Art. 6-1) of the

Convention

43. The applicant complains that he was refused an oral hearing in the

Supreme Administrative Court and alleges a violation of Article 6 para.

1 (Art. 6-1) of the Convention which, insofar as relevant, provides:

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

everyone is entitled to a fair and public hearing ... by (a)

... tribunal."

44. Whereas the applicant considers that he was entitled to an oral

hearing in the proceedings before the Supreme Administrative Court in the

circumstances of the present case, the Government maintain that Article

6 (Art. 6) does not apply to these proceedings. In the alternative the

Government maintain that there were reasons to justify the Supreme

Administrative Court's decision to determine the case without holding an

oral hearing. They contend that the case-law of the Convention organs

cannot be interpreted as giving a party to the proceedings an

unconditional right to an oral hearing. Furthermore, in the present case

the decision to annul the detailed development plan hardly had any effect

on the applicant's rights, nor did the Supreme Administrative Court

express any opinion which involved a determination of the facts.

45. As regards the applicability of Article 6 (Art. 6-1) to the

proceedings in question the Commission refers to its decision as to the

admissibility of the present application. Accordingly, what remains to

determine is whether Article 6 (Art. 6) was complied with.

1. As regards the general scope of the right to an oral hearing in

Article 6 para. 1 (Art. 6-1) of the Convention, the Commission finds it

established under its own case-law, and that of the European Court of

Human Rights, that in proceedings before a court of first, and only,

instance the right to a "public hearing" in the sense of Article 6 (Art.

6) may entail an entitlement to an "oral hearing" (cf. for example Eur.

Court. HR, Fredin (No. 2) v. Sweden judgment of 23 February 1994, Series

A no. 283-A, p. 10, para. 21). However, in exceptional circumstances it

might be justified to dispense with a hearing, in particular when the

review de facto addressed only issues of law and where the outcome of the

proceedings would be of little or no importance to the applicant's right

involved (cf. Eur. Court HR, Fischer v. Austria judgment of 26 April

1995, Series A no. 312, p. 20, para. 44 and Schuler-Zgraggen v.

Switzerland judgment of 24 June 1993, Series A no. 263, p. 20, para. 58).

2. In the present case it is undisputed that the Supreme Administrative

Court was the first and only court in the contested proceedings. It is

likewise undisputed that its jurisdiction was not as such limited to

matters of law but, if appropriate, also extended to factual issues.

However, the Commission considers that no factual issues were considered

which would have called for an oral hearing. At the heart of the matter

was the applicant's wish to build one more house on his piece of land

but, as appears from the decision of the Supreme Administrative Court,

this was not a matter the proceedings chosen by the applicant could

determine. The issue before the Supreme Administrative Court was merely

whether the Government were entitled to revoke a detailed development

plan, the implementation period of which had already elapsed. The Court

found that the authorities were, under Swedish law, entitled to do this

without regard to the rights which might have accrued during the plan's

existence. The particular facts pertaining to the applicant's situation

were, therefore, of no importance.

3. Thus, having regard to these features the Commission finds that the

applicant's appeal in respect of the revocation of the detailed

development plan did not raise any question of fact or law which could

not be adequately resolved on the basis of the case-file and the parties'

written observations. Accordingly, the refusal by the Supreme

Administrative Court to hold an oral hearing did not violate the

applicant's right to a "public hearing" within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention.

CONCLUSION

4. The Commission concludes, by nineteen votes to seven, that there has

been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

DISSENTING OPINION OF Mrs J. LIDDY, MM. E. BUSUTTIL,

F. MARTINEZ, M.A. NOWICKI, N. BRATZA, J. MUCHA and G. RESS

Article 6 para. 1 provides for the right to a "public hearing" by

a tribunal.

The applicant had a conditional right under the 1938 detailed

development plan to build on his property. His position was therefore

comparable to that of the applicant in Pine Valley v. Ireland (judgment

of 29 November 1991, Series A no. 222). The detailed development plan was

revoked in 1989. The applicant challenged that revocation, arguing that

the authorities were under an obligation to take into consideration the

loss of rights created by the old detailed development plan when

considering the public interest in adopting a new plan. In its decision

on admissibility the Commission rejected the applicant's complaint under

Article 1 of Protocol No. 1. It considered, however, that Article 6 was

applicable to the dispute because the repercussions on the applicant's

conditional right to build meant that the determination of a civil right

was involved. It declared admissible the applicant's complaint that he

had no oral hearing before a court.

It is undisputed that the Supreme Administrative Court was the first

and only judicial instance in the contested proceedings. Its jurisdiction

extended to factual issues as well as matters of law. There is no

question of the applicant having waived his right to an oral hearing: his

request for one was rejected.

The situation is therefore directly analogous to that in the Fischer

case (judgment of 26 April 1995 Series A no. 312). There the Court said:

"[T]here do not appear to have been any exceptional

circumstances that might have justified dispensing with a

hearing. The Administrative Court was the first and only

judicial body before which Mr Fischer's case was brought; it

was able to examine the merits of his complaints; the review

addressed not only issues of law but also important factual

questions. This being so, and having due regard to the

importance of the proceedings in question for the very

existence of Mr Fischer's tipping business, the Court

considers that his right to a 'public hearing' included an

entitlement to an 'oral hearing' ... The refusal by the

Administrative Court to hold such a hearing amounted therefore

to a violation of Article 6 § 1 of the Convention" (pp. 20-21,

para. 44).

We consider that the majority's reformulation (at para. 46 of the

Report) of the Court's reasoning as laying down an exception to the

principle of an oral hearing when "in particular" (a) the review seen

post facto addressed only issues of law and (b) the outcome of the

proceedings would be of little or no importance to the right involved

goes further than the above quoted passage warrants, having regard to the

importance of publicity of court proceedings in a democratic society.

As to (a) we consider that post facto evaluation of the domestic

court's reasoning is an inadequate legal mechanism for determining

whether a prior "right" has been violated or not. As to (b) we see no

evidence that the outcome of the proceedings was of little or no

importance to the applicant. As to both (a) and (b), we note that it is

often the case that the correct interpretation of a disputed legal

provision is understood and expressed within the context of concrete

factual circumstances.

In particular, we do not share the majority's assumption that no

factual issues called for an oral hearing. Against the background of the

Court's judgment of 29 October 1989 (Series A No. 163) concerning the

impossibility for the applicant to challenge before a court the

lawfulness and compatibility with the Convention of the building

prohibitions imposed on his property, one could not ex ante say that the

factual and legal issues were of little or no importance to the

applicant's rights. Likewise, while the Supreme Administrative Court

eventually held that there was no obligation to take into account private

interests, it was not precluded from taking into account the applicant's

particular factual situation when formulating its findings as to the

relationship between Sections 5 and 11 of Chapter 1 of the 1987 Act. It

cannot be excluded that an oral hearing would have led to a weighing of

different interests and clarification of the applicant's own legal

situation. It may seem post facto that the outcome would have made no

difference to the applicant's rights but the question has to be answered

on the basis of the different factual and legal circumstances which were

before the Supreme Administrative Court ex ante.

Finally, we consider that if there are exceptions other than those

set out in the text of Article 6 para. 1 to the principle that where only

one court can be seized of civil proceedings, its hearing must, in the

absence of a waiver, be in public, the relevant exceptional circumstances

should be clearly delineated rather than indicatively indicated by an "in

particular" formulation.

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ALLAN JACOBSSON v. SWEDEN

ALLAN JACOBSSON v. SWEDEN

LEXI