CONCURRING OPINION OF JUDGE CREMONA WITH REGARD TO ARTICLE 6 § 1 (art. 6-1) OF THE CONVENTION

I have already, in a joint opinion with other brother judges, expressed my disagreement with the majority conclusion that there is in this case a violation of Article 1 of the First Protocol (P1-1). I shall now outline my reasons for finding, with the majority, a violation of Article 6 § 1 (art. 6-1) of the Convention, and I shall endeavour to do so as briefly as possible.

The Court has already had occasion to establish that Article 6 § 1 (art. 6-1) guarantees access to a court or tribunal in cases where the determination of civil rights and obligations is at issue (Golder judgment of 21 February 1975, Series A no. 18, p. 18, § 36). It has also held that that provision may "be relied on by anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 § 1 (art. 6-1)" (Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 20, § 44).

This is in fact, as I see it, the position in the present case. Considering that (a) the applicants were disputing the legality of the taking or extension of certain measures (expropriation permits) adopted by the Swedish authorities and affecting their properties, (b) under Swedish law expropriation permits already determine the legality of the eventually ensuing expropriation, which cannot be judicially attacked later (an important point made by Mr. Frowein in his separate opinion appended to the Commission ’ s report, p. 76 [*] ) and (c) the rights thus affected were property rights and these are certainly civil rights, I come to the conclusion that the applicants were seeking a determination of their civil rights or, in other words, that there was in fact a "contestation" relative to the applicants ’ civil rights. That being so, under Article 6 § 1 (art. 6-1) they should have been able to take their claim before a tribunal satisfying all the requirements of that provision, but in fact found themselves in the impossibility of doing so.

So long as a claim of the kind aforesaid is not manifestly frivolous or vexatious, any speculation as to its possible or probable outcome (if it had been possible to take it before such a tribunal) can only constitute an idle exercise which in no way alters the position as set out above. Likewise, any opinion of our own as to the lawfulness or unlawfulness of those mesures is not really relevant to the present issue (i.e. that under Article 6 § 1) (art. 6-1). The fact remains that the applicants, directly affected by those measures and disputing their lawfulness, had a right (and should therefore have also had the opportunity, which they had not) to have that lawfulness or unlawfulness ascertained and established by a tribunal in terms of Article 6 § 1 (art. 6-1).

DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON WITH REGARD TO ARTICLE 6 § 1 (art. 6-1) OF THE CONVENTION

In this case I do not find that there was a violation of Article 1 of Protocol No. 1 (P1-1). Neither do I find a violation of Article 6 § 1 (art. 6-1) of the Convention. As to the first of these questions, I refer to the joint dissenting opinion of myself and a number of my colleagues. To my regret I have not been able to join other colleagues on the question of Article 6 § 1 (art. 6-1). My views may be briefly stated as follows.

In paragraph 79 of its judgment the majority of the Court states that the applicants ’ rights which are at issue in this case are without doubt "civil rights". On this I agree. On the other hand, I cannot see that any "determination of civil rights" is at issue.

It is clear that under Swedish law the applicants could not in practice contest before the courts the expropriation permits concerning their properties. On this I refer to paragraphs 48-50 of the judgment. If this is a violation of Article 6 § 1 (art. 6-1), it would mean that the respondent State was under an obligation to grant the applicants a hearing before a court on submissions of theirs that were without basis in law because of Swedish rules of a constitutional Government. It would also mean that Article 6 § 1 (art. 6-1), which deals with the right to trial, indirectly regulated fundamental constitutional rules. I find such an interpretation impossible. Accordingly, there was no contest or disagreement which could be resolved by a Swedish court. Article 6 § 1 (art. 6-1) does not impose on the respondent State any obligation to change that situation.

For this reason I find Article 6 § 1 (art. 6-1) not applicable.