JOINT DISSENTING OPINION OF JUDGES ZEKIA, CREMONA, THÓR VILHJÁLMSSON, LAGERGREN, SIR VINCENT EVANS, MACDONALD, BERNHARDT AND GERSING WITH REGARD TO ARTICLE 1 OF PROTOCOL No. 1 (P1-1)

1. We regret that we do not agree with the conclusion reached by the majority of the Court that there was a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention or with the manner in which they interpret and apply that Article (P1-1) in their judgment.

2. The judgment reaches the conclusion that Article 1 of the Protocol (P1-1) has been violated in a way which does not, in our view, correspond to the underlying intention and the real meaning of that provision.

The majority first find that there was an interference with the applicants ’ exercise of the right of property within the meaning of the first sentence of Article 1 of the Protocol (P1-1). We agree that the combined effect of the expropriation permits and prohibitions on construction was to intrude on the owners ’ right "to the peaceful enjoyment of their possessions" ("droit au respect de ses biens").

The judgment then goes on to find that there was no room for the application of the second sentence of the first paragraph in the present case. On this too we agree.

However, the majority also exclude the application of the second paragraph of the Article (P1-1) (see paragraph 65 of the judgment). Their reason for doing so is, in our opinion, hardly convincing. It is simply that the expropriation permits were not intended to limit or control the use of the applicants ’ property but were an initial step in a procedure leading to deprivation of possessions. This ignores the fact, which appears to be acknowledged elsewhere in the judgment that the expropriation permits have to be considered in combination with the prohibitions on construction. As is rightly observed in paragraph 60 of the judgment, "this is because, even though there was not necessarily a legal connection between the measures ... and even though they had different periods of validity, they were complementary and had the single objective of facilitating the development of the city in accordance with the successive plans prepared for this purpose".

Having eliminated the second sentence of the first paragraph as well as the second paragraph, the majority of the Court feel free, in applying only the first sentence of the Article (P1-1), to "determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights" (paragraph 69 of the judgment). We express no view on this interpretation of the first sentence of Article 1 (P1-1), since our conclusions rest on the application of the second paragraph.

3. Our understanding of the way in which Article 1 (P1-1) should be interpreted and applied in the present case is different.

The first sentence of the Article (P1-1) contains a guarantee of private property. It is a provision in general terms protecting individuals and also private legal entities against interference with peaceful enjoyment of their possessions. However, modern States are obliged, in the interest of the community, to regulate the use of private property in many respects. There are always social needs and responsibilities relevant to its ownership and use. The ensuing provisions of Article 1 (P1-1) recognise these needs and responsibilities and the corresponding rights of the States. The very essence of city planning is to control the use of property, including private property, in the general interest.

It is obvious that, for the second paragraph to apply restrictions on the use of private possessions must leave the owner at least a certain degree of freedom, otherwise the restrictions amount to deprivation; in this case no "use" is left. But it cannot be decisive against the applicability of the second paragraph that the final outcome of the measures taken may be the expropriation of the properties concerned. Where the use of the properties is still possible although restricted, this provision remains applicable, even if the intention behind the measures is the eventual deprivation of ownership. This is confirmed in the present case by the fact that deprivation in reality never took place. The use of the property by the owner was never terminated by State action. It was temporarily restricted in view of possible expropriations in the future.

In our opinion, therefore, the second paragraph is applicable in regard to the measures complained of in the present case.

The next question is whether the measures complained of were justified under the terms of the second paragraph. This paragraph is in very emphatic terms. It states that the preceding provisions of Article 1 (P1-1) "shall not ... 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". In paragraph 64 of its judgment of 13 June 1979 in the Marckx case (Series A no. 31, p. 28) the Court said that "This paragraph thus sets the Contracting States up as sole judges of the ‘ necessity ’ for such a law". The "general interest" which gave rise to the Swedish laws relevant in the present case is evident. Legislation to facilitate town planning, particularly in big cities like Stockholm , is normal in States Party to the Convention, including provisions to enable the authorities to control the use and development of properties and for expropriation for redevelopment and other purposes in the general interest.

But of course it is the measures taken by the Swedish authorities in the enforcement of the relevant laws which are in issue in the present case. The words "shall not ... in any way impair the right of a State" were clearly intended to leave to States a wide margin of appreciation. Nevertheless, the Court must satisfy itself not only as to the lawfulness of the measures in question under Swedish law but also that they were not inconsistent with the legitimate aim of controlling the use of property in the general interest.

We share the view of the Commission that there is no good reason to doubt that the measures taken in the present case were lawful (see paragraphs 106 to 109 of the Commission ’ s report).

The applicants claim that there was no general interest to justify the duration of the measures. We do not find that their duration exceeded the periods which could reasonably be deemed by the authorities of the States to be in the general interest.

Modern town planning requires, especially in big urban areas, most difficult considerations and evaluations, and its implementation often needs considerable time. It can also hardly be denied that planning and preparations for further urban development can change in accordance with changing convictions and expectations in the community. This is illustrated in the present case by the changes in the plans for the city of Stockholm . In the course of the years the idea of broad traffic lanes through central parts of the city gave way to new ideas for pedestrian areas, reliance on public transportation, and the preservation and rehabilitation of existing buildings. Similar developments can be found in many other States and cities.

It is true that the expropriation permits and building restrictions were maintained in force for a number of years and, in the case of the Sporrrong Estate, for more than two decades, which is a long time. But, on the other hand, the Swedish Government have advanced understandable reasons for this. It is also relevant to take into account the legal and factual position of the owners during the period of the restrictions. They remained in ownership and retained the use of the properties in their existing state. They had the right to dispose of their properties, and other owners in a similar situation did so. It was possible for them to apply for permission to reconstruct and improve their properties, at least within the limits inherent in all town planning: both the Sporrong Estate and Mrs. Lönnroth in fact applied in 1970 for permission to make alterations and obtained it. Besides, it should be borne in mind that owners of property in a modern society are affected by many other factors than formal decisions of the kind here in question. Indeed, as soon as the authorities make known their intentions regarding the future use of land and properties within their area, the owners may suffer adverse effects such as the applicants complained of in the present case.

Taking all these aspects together, we cannot conclude that the measures adopted by the Swedish authorities, particularly as regards their duration, went beyond the legitimate aim permitted by the terms of the second paragraph of Article 1 (P1-1), even if their adverse effects for the owners can hardly be denied.

4. For these reasons we are of the opinion that Article 1 of Protocol No. 1 (P1-1) was not violated in the present case.