JOINT DISSENTING OPINION OF JUDGES PINHEIRO FARINHA, SIR VINCENT EVANS, MACDONALD, BERNHARDT AND GERSING WITH REGARD TO ARTICLE 6 § 1 (art. 6-1) OF THE CONVENTION

We regret that we cannot share the opinion of the majority of the Court that there has been a violation of Article 6 § 1 (art. 6-1) of the Convention in the present case.

Article 6 § 1 (art. 6-1) provides, inter alia, that in the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The question is whether the applicants were entitled to have the legality of the decisions of the Swedish authorities in respect of their properties, particularly as regards the duration of the expropriation permits, determined by a tribunal meeting the requirements of this provision.

It is undeniable that the decisions of the Swedish authorities affected the applicants ’ rights as owners of property. Nevertheless, the question remains whether Article 6 § 1 (art. 6-1) requires that the relevant decisions could be challenged before a court.

The Court has decided that the concept of "civil rights" ("droits de caractère civil") in Article 6 § 1 (art. 6-1) must be given an autonomous meaning in the sense that it cannot be interpreted solely by reference to the domestic law of the respondent State, and has held that Article 6 § 1 (art. 6-1) applies where there is a "contestation" (dispute) the result of which is directly decisive of "civil rights" in a sense of private rights, but that a tenuous connection or remote consequences do not suffice (see, for instance, the judgment of 23 June 1981 in the case of Le Compte, Van Leuven and De Meyere, Series A no. 43, pp. 20-21, §§ 44-47).

We think that the jurisprudence developed by the Court in these respects needs further refinement. If Article 6 § 1 (art. 6-1) of the Convention were applied whenever private rights are affected by decisions taken in the public interest, this provision would contain a virtually unrestricted guarantee of judicial review of governmental and administrative acts. Such an interpretation does not, in our opinion, conform to the intention or the wording of Article 6 § 1 (art. 6-1), and it is incompatible with the legal situation in many States Party to the Convention.

The dividing line between disputes determinative of civil rights in the sense of Article 6 § 1 (art. 6-1) and those relating to acts to which this provision does not apply may sometimes be difficult to draw. We think that at least acts in the field of public or administrative law which are dominated by considerations of public interest and are determined principally by considerations of policy are outside the intended scope of Article 6 § 1 (art. 6-1). These factors are present in the case here under consideration.

The expropriation permits were wholly governed by public law and considerations of public policy. They concerned the applicants not in their private capacity but as owners of property in a given area in the city of Stockholm . They were not directly determinative of private rights, but of the rights under public law of the city of Stockholm . Judicial review, at least of the lawfulness of the measures taken, might be desirable also in such cases, but it is not required by Article 6 § 1 (art. 6-1) of the Convention.

Similar considerations apply as regards the prohibitions on construction. These restrictions must be seen in the whole context and as part of the planning process and its inherent necessities.

For these reasons we come to the conclusion that Article 6 § 1 (art. 6-1) was not violated.