FIFTH SECTION

Application no. 51454/11 Greger CARPELAN against Sweden lodged on 15 June 2011

STATEMENT OF FACTS

The applicant, Mr Greger Carpelan , is a Swedish national, who was born in 1923, and lives in Stockholm. He is represented before the Court b y Ms G. Högberg Björck , a lawyer practising in Bro.

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

A. Background

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

In 1996 the applicant appealed against a detailed development plan ( detaljplan ) adopted by the Municipal Council ( kommunfullmäktige ) of Stockholm which would allow for the construction of a tunnel under Bellevue Park as part of a motorway project called “ Norra Länken ”. The appeal was rejected by the Government for which reason the applicant applied for judicial review before the Supreme Administrative Court ( Högsta förvaltningsdomstolen ). He claimed, inter alia , that he, and others living within or close to the area, would be negatively affected by the construction of the tunnel as it would cause various disturbances, particularly during the construction of the tunnel. Moreover, he contended that the nature and landscape of the park would be affected in violation of the Environmental Code ( Miljöbalken , 1998:808). On 31 January 1997 the Supreme Administrative Court repealed the Government ’ s decision, finding that the planned construction would constitute a breach of the Environmental Code.

Consequently, the Government annulled the detailed development plan in question and, later, the Municipal Council adopted a new detailed development plan. However, due to technical difficulties that plan was never realised. Subsequently, the Municipal Council adopted an amendment to the original detailed development plan. The amendment required, however, changes to the Environmental Code and, in May 2009, such changes were adopted.

On several occasions, the applicant has requested judicial review before the Supreme Administrative Court on matters concerning Bellevue Park and, on all of these occasions, he has been granted locus standi .

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

On 11 May 2009 the Municipal Council adopted the amendment to the detailed development plan concerning Norra Länken . The amendment allowed for the construction from above ground of a tunnel through Bellevue Park. The Municipal Council noted that the amendments were focused on the method of constructing the tunnel. It further stressed that the effects on the environment would be essentially temporary as the park would be completely restored after construction had finished. Thus, in the opinion of the Municipal Council, there would not be any considerable effects on the environment, nature, cultural heritage or people ’ s health and, hence, a formal environmental evaluation would not be necessary.

The applicant appealed against the decision to the County Administrative Board ( länsstyrelsen ), claiming inter alia that the amendment was not in accordance with the Environmental Code and that a formal environmental evaluation should have been carried out.

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

The applicant appealed against the Board ’ s decision to the Government. He stressed that his own individual interests were of minor importance compared to the general interests to preserve the park. These general interests had not been considered properly and the Board had completely ignored his claims that the decision breached certain provisions in the Environmental Code.

On 15 October 2009 the Government rejected the appeal. It first observed that the purpose of the amendment was to render possible the construction of the tunnel from above ground and, at the same time, to secure that the intrusion would be temporary and limited to the period of the actual construction. The landscape was to be immediately restored afterwards according to an adopted quality program. It further noted that the park ’ s function from an ecological point of view would not be affected by the construction of the tunnel, nor would the ground water be affected. The Government then observed that the area affected by the amendment was part of an area classified as a national city park ( nationalstadspark ) and, thus, that construction was allowed only if it could be carried out without damaging the environment or the natural and cultural heritage of the park. However, according to the amendments to the Environmental Code of May 2009, measures that would cause only temporary encroachment or damage to the park were allowed, if the measure would enhance the park ’ s natural and cultural values or meet any other pressing general interest, and if the park would be restored so that only an insignificant encroachment or damage remained. Having regard to all of the above, the Government found no reason to depart from the assessment made by the Board that the plan was in accordance with the provisions of the Environmental Code. As concerned the applicant ’ s other submissions, the Government considered that they did not give reason to alter or repeal the Board ’ s decision .

The applicant then requested a review of the Government ’ s decision by the Supreme Administrative Court under the Act on Judicial Review of Certain Government Decisions ( lagen om rättsprövning av vissa regeringsbeslut , 2006:304; hereafter “the 2006 Act”). He submitted that the Government ’ s decision violated the Environmental Code as well as the Constitution. He particularly stressed the effects that the construction of the tunnel would have on the trees in the park.

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

COMPLAINTS

The applicant complains under Article 6 of the Convention that he was refused access to court since the Supreme Administrative Court dismissed his application for judicial review. He further complains that, as a result of the decisions by the domestic authorities, his right to respect for his home and private life under Article 8 of the Convention has been violated.

QUESTION S TO THE PARTIES

1. Since the Supreme Administrative Court expressly dealt with the question whether the applicant ’ s rights under Article 6 of the Convention was affected in the present case, can the applicant be said to have exhausted domestic remedies even though he has not turned to the civil courts or requested the Chancellor of Justice to grant him compensation for the alleged violation of his Convention rights?

2. Was A rticle 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case?

3. If so, was the applicant denied access to court contrary to Article 6 § 1 of the Convention?