CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 février 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                           AS TO THE ADMISSIBILITY OF                              Application No. 11844/85                          by Gunnar ERIKSSON and Others                          against Sweden             The European Commission of Human Rights sitting in private on 29 February 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 11 June 1985 by Gunnar Eriksson and Others against Sweden and registered on 30 October 1985 under file N° 11844/85;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:     THE FACTS             The facts of the case, as submitted by the applicants, may be summarised as follows.           The applicants who are all Swedish citizens are the following:           1.   Mr.   Gunnar Eriksson, born in 1937 and resident at Storsätern.             He is a farmer and engineer.         2.   Mrs.   Stina Ohlsson, born in 1941 and resident at Idre.             She is a bank employee.         3.   Mrs.   Mariann Eriksson, born in 1936 and resident at Storsätern.             She is a factory employee.         4.   Mr.   Sture Foglé, born in 1923 and resident in Stockholm.             He is a mining engineer.           Before the Commission the applicants are represented by Mr.   Engel Galtung who is a retired engineer residing at Sundbyberg, Sweden.           The applicants own a piece of land at Storsätern, called Floåsen 11:13.   In 1973 a building plan for the area including Floåsen 11:13 was adopted.   This plan was amended on 14 March 1978.   A building plan for the adjoining area including a piece of land called Floåsen 20:99 was adopted by the Government on 16 October 1980.   The two areas are separated from each other by the river Grövlan.   According to the building plans it was envisaged that a road and a bridge be constructed in order to link Floåsen 20:99 with a highway.   This involved the applicants' property through which the road would be built.           A construction plan for the road in question was set up by the Property Formation Authority (fastighetsbildningsmyndigheten) of Mora on 6 October 1978.           On 22 September 1981 the owner of the area Floåsen 20:99 applied for permission to construct the road as set out in the construction plan of 1978 and the building plan of 1973 as amended in 1978.   The Property Formation Authority examined the application and the property owners involved, including the applicants, were heard.           On 12 November 1981 the Property Formation Authority decided to grant the permission requested.   It was furthermore decided that the owners of Floåsen 11:13 should be awarded 11.000 Swedish crowns (SEK) in compensation for the land and the applicant no. 2 should be awarded 27.000 SEK in compensation for the loss of a cottage owned by her which was to be demolished according to the decision.   The Authority decided that the road should be constructed before 31 December 1986.           The applicants lodged an appeal against this decision with the District Court of Falun (Falu tingsrätt).   They claimed that the decision should be quashed and in the alternative that compensation should be paid, not only for the market value of the land to be taken for the road construction, but also for other losses such as inconveniences relating to noise and dust caused by the future increase of traffic.   The second applicant claimed compensation in the amount of 734.571 SEK.           In its judgment of 14 September 1984 the District Court stated inter alia:     "According to Section 49 of the Construction Act (anläggningslagen) a right may be granted to a property to construct a road over another property provided the need of the road is of considerable importance for the first property and provided substantial inconveniences do not arise for the latter.   The District Court finds it obvious that it is of considerable importance to grant the right to construct a road over the property Floåsen 11:13 in order to satisfy the needs of the property mentioned in the decision of the Property Formation Authority of an exit to the public road 1058.   Such a permission is in accordance with the building plan of 1973 and 1978 concerning the village of Storsätern.   The examination of the case does not support the allegation that the construction of the road and the traffic which may follow will give rise to substantial inconveniences for Floåsen 11:13.   For these reasons the plaintiffs' request to quash the decision shall be rejected."           Furthermore the District Court examined the applicants' request for compensation.   The Court first noted that the applicants had declared that they were satisfied with the compensation awarded for the land which was to be taken from them (11,000 SEK) and that the decision had acquired legal force in that respect.   As regards the claim for compensation for inconveniences resulting from the future traffic the Court found no reason to award any compensation.   The compensation to be awarded to the second applicant for the destruction of her cottage was increased to 32.000 SEK.           The applicants appealed against this judgment to the Svea Court of Appeal (Svea hovrätt) which upheld the judgment on 21 December 1984.   Leave to appeal to the Supreme Court (högsta domstolen) was refused by the Supreme Court on 17 June 1985.           Whilst the above proceedings were pending the owner of Floåsen 20:99 submitted an application requesting permission to construct a bridge over the river Grövlan in order to connect the property with the road to be constructed.   This question was examined by the Water Court of Stockholm (Stockholms tingsrätt, vattendomstolen).   Before this Court the first applicant objected to such construction.           On 6 December 1984 the Water Court dismissed the applicant's objections and granted permission to construct the bridge since no obstacles according to Chapter 2 of the Water Act (vattenlagen) were present.   The construction thus permitted shall, according to the judgment, be terminated within five years from the date of the judgment.           The first applicant appealed against this judgment to the Water Court of Appeal (vattenöverdomstolen) which upheld the judgment on 6 March 1985.   Leave to appeal to the Supreme Court was refused by the Supreme Court on 17 June 1985.           The first applicant submitted a request for re-opening of the above proceedings.   This request was rejected by the Supreme Court on 26 March 1987.           On 1 December 1981 the Building Committee (byggnadsnämnden) of Älvdalen decided, following a request from the applicants, not to change the building plan.   Similar decisions were taken by the Building Committee on 31 May 1983 and 23 April 1985 following letters from the applicants' representative.           By letter of 17 February 1983 the applicants' representative, inter alia, requested the Government to reconsider their decision of 16 October 1980 relating to the adoption of the building plan.           On 24 March 1983 the Government decided not to examine the request since the matter had been finally determined on 16 October 1980.           At present neither the bridge nor the road has been constructed. The time-limit set for the construction of the road, 31 December 1986, has expired.     COMPLAINTS   1.       The applicants allege a violation of Article 1 of Protocol No. 1 to the Convention in that a part of their property will be taken away in order to construct a private road from Floåsen 20:99 to the public road.   They submit that the private road is not in the public interest.           Even if the land and the cottage will not be taken from them the applicants allege that Article 1 of Protocol No. 1 has been violated in that they have, for a very long period of time, lived in uncertainty as to the future of their property.   This uncertainty involves inter alia damages to the applicants since they cannot repair the cottage and connect it with the water and sewage system.   2.       Furthermore the applicants invoke Article 6 para. 1 and Article 13 of the Convention.   They complain that the courts ignored their request for compensation and furthermore applied the wrong law when considering the matter.   In particular under Article 13 of the Convention the applicants submit that the Building Committee's decisions on building plans are not subject to any appeal.   3.       The applicants also allege that the owner of Floåsen 20:99, a large company, is given undue advantages, and that there has been discrimination against the applicants.     THE LAW           As to Article 1 of Protocol No. 1 (P1-1)   1.       The applicants complain that they will be deprived of property contrary to Article 1 of Protocol No. 1 (P1-1) to the Convention. Even if the property will not be taken away from them, they submit that the uncertainty created by the authorities' decisions violates the said provision.   Article 1 of Protocol No. 1 (P1-1) reads as follows:   "Every natural or legal person is entitled to the peaceful enjoyment of his possessions.   No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.   The preceding provisions shall not, however, 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 or to secure the payment of taxes or other contributions or penalties."           The Commission observes that the construction of the road and the bridge which is envisaged by the building plans has not yet taken place, and it is uncertain whether it will ever take place.           The decision of the Property Formation Authority of 12 November 1981, which inter alia gave the owner of Floåsen 20:99 the right to build a road over the applicants' property and to demolish the second applicant's cottage, provided that the constructions should have been terminated before 31 December 1986.   Accordingly this decision can no longer be executed.           The decision of the Water Court of 6 December 1984, which inter alia gave the owner of Floåsen 20:99 the right to construct a bridge over the river Grövlan and on the applicants' property, provides that the constructions should be terminated within five years from the date of the judgment, i.e. before 6 December 1989.           Consequently, there exists a building plan according to which a road may be constructed over the applicants' property and a bridge may be constructed from the applicants' property over the river Grövlan.   There are also two decisions implementing the building plan one of which, concerning the construction of the bridge, may still be executed.   If land will be taken from the applicants there are rules guaranteeing compensation as appears from the decision of the Property Formation Authority.           The building plans at issue were adopted on 14 March 1978 (regarding the land east of the river Grövlan) and on 16 October 1980 (regarding the land west of the river Grövlan).   The applicants' subsequent efforts to obtain a change of the building plans cannot be regarded as effective remedies for the purpose of Article 26 (Art. 26) of the Convention.   The Commission is consequently prevented by the six months rule from examining the adoption of those building plans if it is assumed that the applicants have exhausted domestic remedies in that respect.   The fact that the building plans have remained in force after they were adopted cannot be considered separately by the Commission.           It follows that, insofar as the applicants complain about the adoption and effects of the building plans, this complaint does not satisfy the conditions of Article 26 (Art. 26) of the Convention and is consequently inadmissible under Article 27 para. 3 (Art. 27-3).   2.       However, the decisions relating to the implementation of the plans, by the construction of the road and the bridge, have created an interference with the applicants' right to the peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1 (Art. P1-1). The Commission must therefore examine whether these decisions constituted deprivation, or only control of the use, of the applicants' property.           The Commission here notes that the building plans can no longer be implemented on the basis of the decision of the Property Formation Authority concerning the construction of a road, a decision which was not enforced within its stipulated time-limit.   It follows that the applicants cannot be considered to have been "deprived", by the above decision, of their property within the meaning of the second sentence of the first paragaraph of Article 1 (P1-1).   The Commission next notes that it is still legally possible to implement the decision authorising the construction of the bridge, but it considers that the factual situation is such that also this interference with the applicants' property right cannot be characterised as deprivation, but only as "control (of) the use of property".   Consequently, the interferences complained of fall to be considered under the second paragraph of Article 1 of Protocol No. 1 (P1-1).           The Commission must therefore examine whether the interferences with the applicants' right to the peaceful enjoyment of possessions were justified under the second paragraph of Article 1 of Protocol No. 1 (P1-1).   This means that it must consider whether the decisions concerning the implementation of the building plans were "necessary to control the use of property in accordance with the general interest".   The task of the Convention organs in this context is to supervise the lawfulness, purpose and proportionality of the decisions taken by the domestic authorities (cf. e.g.   No. 10378/83, Dec. 7.12.83, D.R. 35 p. 235).   The question of proportionality requires a determination as to whether a fair balance has been struck between the demands of the general interest and the interest of the individual.   In determining whether a fair balance exists, the Contracting State enjoys a wide margin of appreciation with regard both to choosing means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the measure in question (Eur. Court H.R., Agosi judgment of 24 October 1986, Series A No. 108, p. 18, para. 52).           The Commission is satisfied that the decisions taken by the Swedish authorities were lawful.   It is also satisfied that they served the "general interest".   A decision authorising the owner of a property in a development area to construct a bridge and a road in order to give him access to the public road can be regarded as being in the "general" interest.           As regards the proportionality between the interference with the applicants' property rights and the general interest pursued, the Commission recalls that the road and the bridge were to be constructed in order to provide access from an area, which was intended to be developed with leisure houses, to the public road.   If this area is developed according to the plan, it is thus envisaged that land will be taken from the applicants for the construction of the road and the bridge.           Although the Commission understands that the uncertainty as to the implementation of the plans affects and restricts the applicants in the use of their property, it finds, in view of the wide margin of appreciation enjoyed by the Contracting States in this area, that the decisions taken cannot be considered to be disproportionate to their legitimate purpose.   Consequently, the interference with the applicants' right to the peaceful enjoyment of their possessions was justified under the terms of the second paragraph of Article 1 of Protocol No. 1 (P1-1).           The Commission finds no indication of any other issue under Article 1 of Protocol No. 1 (P1-1).           It follows that in this respect the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           As to Articles 6 and 13 (Art. 6, 13) of the Convention   3.       The applicants also allege violations of Article 6 (Art. 6) and Article 13 (Art. 13) of the Convention.           Article 6 para. 1 (Art. 6-1) first sentence reads as follows:   "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."           Article 13 (Art. 13) of the Convention guarantees to everyone, whose rights and freedoms in the Convention are violated, the right to an effective remedy before a national authority.           The applicants' complaints in this respect relate, on the one hand, to the proceedings concerning the construction of the road and, on the other hand, to the applicants' efforts to obtain a change of the building plan.           As regards the proceedings relating to the construction of the road the applicants submit that the domestic law has been incorrectly applied and that the decisions on compensation were incorrect.           The Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant case-law (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).           However, from the applicants' submissions there is no indication of a possible violation of Articles 6 or 13 (Art. 6, 13) of the Convention in respect of the proceedings relating to the road and bridge construction.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       Insofar as the applicants complain under Articles 6 and 13 (Art. 6, 13) of the Convention of the procedure whereby the building plans were adopted, the Commission recalls that these plans acquired legal force in 1978 and 1980 respectively.   If it is assumed that the applicants have exhausted domestic remedies, it follows that the applicants have not complied with the six months rule in Article 26 (Art. 26) of the Convention and this complaint is consequently inadmissible under Article 27 para. 3 (Art. 27-3) of the Convention.   5.       It is true that the applicants have subsequently tried to obtain an amendment of the building plans.   They have addressed themselves to the Building Committee which on 1 December 1980, 31 May 1983 and 23 April 1985 decided not to amend the plans. On 24 March 1983 the Government decided not to examine a request from Mr.   Galtung for reconsideration of the Government's adoption of the building plan on 16 October 1980.           However, the Commission considers that the above decisions to reject the applicants' requests to have the building plan amended cannot be considered to involve a determination of the applicants' "civil rights" within the meaning of Article 6 (Art. 6) of the Convention. Nor do they involve any determination of the applicants' rights and freedoms guaranteed by the Convention.           It follows that in these respects the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   6.       The applicants' allegation that Article 1 of Protocol 1 No. 1 (P1-1) was violated as a result of the duration and the uncertainty as to the implementation of the building plan relates to the adoption of the building plan and its legal consequences.   Accordingly, no separate issues arise under Articles 6 or 13 (Art. 6, 13) of the Convention in this respect.           As to Article 14 (Art. 14) of the Convention   7.       The applicants have also referred to Article 14 (Art. 14) of the Convention which prohibits discrimination in the enjoyment of the rights and freedoms of the Convention.   However, in view of its considerations above the Commission finds no separate issue in this respect.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE           Secretary to the Commission       President of the Commission                     (H. C. KRUGER)                    (C. A. NØRGAARD)