DISSENTING OPINION OF JUDGE LAGERGREN CONCERNING ARTICLE 6 § 1 (art. 6-1) OF THE CONVENTION

As to the application of Article 6 § 1 (art. 6-1) of the Convention in this case, in my opinion no civil right was at stake nor was there any real dispute to be determined by a national tribunal.

The majority of the Commission held (paragraph 147 of the report) that the expropriation permits did not have any legal effects on the applicants ’ rights as owners of their properties. The applicants retained the legal title to their properties which implied, inter alia, that they were entitled to sell them and to inhabit or let the buildings constructed on the sites. Nevertheless, as holders of the civil right to property, the applicants were faced with a quasi-permanent threat of expropriation. In the Commission ’ s opinion the consequences suffered by the applicants as a result of the expropriation permits were of a mere indirect and factual nature which had no legal effects on the applicants ’ civil rights and obligations.

In contrast to this, Mr. Frowein in his individual opinion, joined by Mr. Trechsel, Mr. Melchior and Mr. Sampaio, came to the conclusion that Article 6 § 1 (art. 6-1) was violated since the applicants had no possibility to have the legality of the granting or extension of the expropriation permits determined by a court. Mr. Frowein stated that the granting of the permit was only the first step but it determined the legality of the expropriation under Swedish law, which could not be attacked later before the courts. That meant that it was decisive for the determination of the legality.

If the very granting of the permits had been at stake, I would be inclined to agree with the views of the minority just cited that the issuing of the permits was decisive for the property rights of the applicants and that the Swedish legislation did not afford the remedies required by paragraph 1 of Article 6 (art. 6-1).

However, as the Court has stated (paragraph 58 of the judgment), the applicants did not dispute that the expropriation permits affecting them were lawful in themselves. They complained merely of the long duration of the permits and their extension and they maintained that the long time-limits in their cases were not in accordance with the 1917 Act. Thus, the only issue on which the applicants challenged the lawfulness of the measures taken in the present case was with regard to the duration of the expropriation permits. In my opinion, the determination of the procedural or factual matter of duration does not amount to a determination of civil rights; the mere fixing of time-limits for expropriation permits is in no way decisive for such rights. This is enough to exclude the application of Article 6 § 1 (art. 6-1) without going further into the question of the existence of a "contestation" (dispute).

However, I would like to consider that latter question as well. The 1917 Act contained no provisions either on the length of the period during which the expropriating authority or person had to institute judicial proceedings for the fixing of compensation for expropriation, or on the extension of the validity of expropriation permits. The Commission stated (paragraph 107 of the report) that the initial determination of these time-limits was apparently a matter within the discretion of the Government, and that it was a natural interpretation of the said Act that the Government had also the competence to prolong their original decisions regarding such permits. Therefore, the Commission considered as lawful both the time-limits of five and ten years fixed by the Government in their decisions of 31 July 1956 and 24 September 1971, as well as the three prolongations of the expropriation permits in the case of the Sporrong Estate (see also the joint dissenting opinion of certain of my colleagues and myself with regard to Article 1 of Protocol No. 1) (P1-1).

The contentions of the applicants and the Government on this point have been stated as follows by the Court (paragraph 67 of the judgment):

"According to the Sporrong Estate and Mrs. Lönnroth, it had been the established practice since the entry into force of the Act for the normal time-limit for service of a summons to appear before the Real Estate Court to be one year. Since the time-limits in the present case were as long as five and ten years respectively, it was alleged that there was no legal basis for the original permits; the same was said to apply to the three extensions of the permit affecting the property of the Sporrong Estate.

The respondent State replied that the issue and the extension of the permits were in conformity with Swedish law: it argued that since the Government were entitled to fix the period of validity of the original permit, they were also empowered, in the absence of any provision to the contrary, to extend it."

Under the heading "The applicability of Article 6 § 1 (art. 6-1)" the Court (paragraph 81 of the judgment) states "that it does not consider that it has to resolve this difference of opinion ... However, the existence and the serious nature of that difference demonstrate that an issue did arise under Article 6 § 1 (art. 6-1)". The Court then concludes that the applicants were entitled to have this question of domestic law determined by a tribunal.

I regret that I am unable to concur in this conclusion. Of course, it is a delicate task to decide whether or not a dispute is serious or "veritable" (see the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 20, § 45), but it must in border-line cases, like this one, be faced. The arguments invoked by the Government concerning the interpretation of the 1917 Act correspond in my opinion to generally accepted norms of interpretation under Swedish law. Nor has the eminent representative of the applicants indicated any authority in support of his thesis that there was no legal basis for the original duration of the permits or for the three extensions. It is true that long-term permits - especially in Stockholm - have been strongly criticised, but no statement holding that they would be unlawful or contrary to current Swedish legislation is known to me.

The most authentic presentation of the proposition that no maximum period for the original permits exists and that the Government, under both the 1917 and the 1972 Acts, were empowered to extend such periods, is probably to be found in the travaux préparatoires to the 1972 Act. The Commission ("expropriationsutredningen") which prepared the report forming the basis for the Bill which then became the 1972 Act stated (SOU 1969: 50 p. 141 [*] ) that under Article 5, paragraph 4, of the 1917 Act it is the Government that determine the period of time within which a summons to appear before a real estate court must be served. The Commission continued:

"Normally a one-year period is fixed. There do not however exist any elucidatory statements during the preparatory work on how these periods ought to be determined. The 1908 Committee on Expropriation (1908 års expropriationskommité) only stated (p. 131) that the mere fact that a right to expropriate had been granted with respect to certain real estate caused an uncertainty for its owner which could always involve annoyance and also often lead to economic disadvantage. The Committee therefore was of the opinion that the right of expropriation should not hang over a property during an unlimited (emphasis added) period.

The Government has, in practice, been considered at liberty to prolong fixed time-limits. This has caused the period between the expropriation permit and the date of instituting court proceedings to be considerable in many cases, and it has not always been possible to avoid the inconveniences which the 1908 Committee pointed out."

The Commission further stated at p. 142:

"In our previous investigation (SOU 1964:32), we proposed inter alia a certain modification of Article 5, paragraph 4 of the 1917 Act, in the main purporting to be a codification (emphasis added) of the competence of the Government to prolong the period within which the question of expropriation must be brought before a court."

The Commission continued at p. 143:

"It would hardly be possible to prevent the party requesting an expropriation - even if a certain maximum period were prescribed in the law, possibly in combination with a prohibition against the Government prolonging that period in cases other than those where particularly strong reasons motivate a prolongation - from lodging a new request for expropriation at the expiration of the period fixed ... In view of these circumstances, one could hardly effectively protect the interests of the real estate owner on this point to a greater extent than is at present the case in the current legislation."

For these reasons, I do not consider that there was any arguable or real "contestation" (dispute) over "civil rights and obligations", and I am therefore of the opinion that Article 6 § 1 (art. 6-1) was not violated.