CASE OF SKÄRBY v. SWEDENDISSENTING OPINION OF JUDGE PINHEIRO FARINHA
Doc ref: • ECHR ID:
Document date: June 28, 1990
- Inbound citations: 0
- •
- Cited paragraphs: 0
- •
- Outbound citations: 0
DISSENTING OPINION OF JUDGE PINHEIRO FARINHA
(Translation)
1. I voted against finding a violation of Article 6 (art. 6)
of the Convention. I did so for the following reasons.
(a) In my view Article 6 (art. 6) is not applicable. The case did
not concern a civil right. The right of ownership is not at this
stage in our history an absolute right; although the property owner
has powers to use and dispose of his property (jus utendi et fruendi),
he does not have the right to do whatever he wants with it (jus
abutendi). A social function also attaches to ownership and the
property must be used in a way which is in conformity and compatible
with the general interest. In the present case, the refusal to grant
a building permit did not deprive the applicants of the ownership or
the use of Flundrarp 12:1; the Höganäs Building Committee rejected the
application for planning permission for a house and two garages in an
area designated as a nature park (see paragraph 13 of the judgment)
because the proposed buildings did not conform to the building plan in
force.
It did so in the exercise of a discretionary power vested in the
authorities to protect the general interest and no civil right
pertaining to the applicant was thereby called in question.
(b) If Article 6 (art. 6) is not applicable, there can be no
violation in this instance.
2. For the sake of consistency, since I voted against finding a
violation, I also have to refuse in the same judgment to award
compensation arising from a violation which in my view - whether I am
right or wrong - never occurred.
3. On the other hand, the costs and expenses do not derive from
the violation of the Convention, but are the result of procedural
activities in a case in which the applicants were successful; for this
reason, I voted with the majority on point 4 of the operative
provisions.