CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 décembre 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. 12521/86                       by ASSARGENERATOR HB                          and ASSAR NORDEBO                       against Sweden             The European Commission of Human Rights sitting in private on 12 December 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   J. RAYMOND, Deputy 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 15 October 1986 by Assargenerator HB and Assar Nordebo against Sweden and registered on 7 November 1986 under file No. 12521/86;           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 they appear from the applicants' submissions, may be summarised as follows.           The applicants are Assargenerator (handelsbolag), a company with its seat at Kalix (the first applicant), and Mr.   Assar Nordebo (the second applicant), a Swedish citizen born in 1926 and resident at Vitvattnet, Kalix.   Mr.   Nordebo is one of the owners of Assargenerator.           On 4 January 1982 the first applicant applied to the Water Court (vattendomstolen) of the District Court (tingsrätten) of Luleå for permission to construct a small power station (minikraftverk) to make use of the water power in the river Kattån.   The Court considered that the question whether the proposed project should be permitted or not was an issue to be determined by the Government.   In an opinion submitted to the Government (the Ministry of Agriculture) and dated 11 October 1982 the Court referred, pursuant to Chapter 4 Section 20 of the Water Act (vattenlagen), the issue of a permission to be determined by the Government.   The Court stated, as its opinion, that it saw no reason to refuse the permission on the basis of the provisions of the Water Act.           On 4 January 1982 the second applicant applied to the Water Court for permission to use, at the most, half of the water power of the river Vistån and to construct and run a mini power station.   The Court considered that the question whether the proposed project should be permitted or not was an issue to be determined by the Government. In an opinion submitted to the Government and dated 11 September 1983 the Court referred the issue of a permission to be determined by the Government.   The Court stated, as its opinion, that it saw no reason, on the basis of the provisions of the Water Act, not to permit the proposed enterprise.           On 23 May 1985 the Government refused to grant the permissions requested and rejected a claim for compensation for loss of income from the first applicant.   In its decision relating to Kattån, the Government stated:   "The Government consider that the provisions of Chapter 2 of the Water Act (1918:523) do not prevent the requested project.   The project concerns the river Kattån which is part of the tributaries of the river Kalix.   These inland waters are regulated by the parliamentary decision of 1977 concerning the guidelines of the national planning of the inland waters in Northern Svealand and Norrland.   According to this decision, no power station shall be constructed in the river Kalix or its tributaries.   However, it appears from the parliamentary resolution concerning the above-mentioned guidelines that they may not constitute an obstacle to small measures relating, for example, to constructions already made.   The river Kattån is not affected by such constructions.   The project is not required for the local supply of energy.   The Government consider that the proposed development cannot be considered as such a small measure as would be compatible with the decision concerning the guidelines for the national planning.   The development is therefore incompatible with general planning policy.   The Government find that the project is contrary to Chapter 4 Section 18 para. 2 of the Water Act (1918:523).   The request for compensation for loss of income from energy production is rejected."           The Government's decision relating to Vistån contained similar reasoning, but for the fact that Vistån was part of the tributaries to the Pite river.           The applicants pursued their applications before the Water Court.   They argued inter alia that the Parliament's decision concerning the above-mentioned guidelines did not apply to the tributaries to the Kalix and Pite rivers and that, consequently, the Government's decision was based on incorrect assumptions.   In judgments dated 5 September 1985 the Water Court rejected the applications on the ground that the permissibility of the proposed enterprises had been finally determined by the Government.           The applicants appealed to the Water Court of Appeal (vattenöverdomstolen) which confirmed the judgments of the Water Court on 20 January 1986 since the proposed projects were not permissible following the Government's decision.           The applicants lodged a further appeal with the Supreme Court (högsta domstolen) which refused to grant leave to appeal on 24 September 1986.           Later the applicants applied for re-opening (resning) of the proceedings.   The application was rejected by the Supreme Court on 5 October 1987.   A further application for re-opening of the proceedings was lodged with the Supreme Court on 23 April 1988.   COMPLAINTS   1.       The applicants complain that as a result of the judgments in the case they have been deprived of their sources of energy and their claims for compensation have been rejected.   They allege that Article 1 of Protocol No. 1 to the Convention has been violated.   2.       The authorities involved in the case have not applied the law in a manner compatible with the public interest.   The courts have accepted the false descriptions of the relevant Bill given by the Government.   The applicants' right to an impartial and public hearing within a reasonable time before an impartial and independent court, as guaranteed by Article 6 of the Convention, has not been respected.     THE LAW   1.       The applicants complain that they have been deprived of their sources of energy in breach of Article 1 of Protocol No. 1 (P1-1) to the Convention, which protects the right to property.           Article 26 (Art. 26) of the Convention provides that the Commission may only deal with an application if it has been submitted within a period of six months from the date on which the final decision was taken. Here, the question arises as to which decision is to be regarded as the "final decision".   The Commission notes in this context that in its opinions to the Government of 11 October 1982 and 11 September 1983 the Water Court considered that, under the relevant provisions, the Government were the competent body to determine the question whether the applicants' projects were to be permitted under the Water Act.   The Commission also notes that in the judgments of 5 September 1985 the Water Court found that the Government's decisions of 23 May 1985 had finally settled the question of whether the proposed constructions could be permitted.   The Water Court of Appeal found that the proposed projects were not permissible following the Government's decision and confirmed the judgments of the Water Court.           The Commission considers that it follows from the above that the question whether the proposed projects were permissible was finally decided by the Government on 23 May 1985.   Consequently, this decision must be regarded as "the final decision" for the purpose of calculating the six months period.   It follows that, since the application was introduced on 15 October 1986 - which is more than six months after 23 May 1985 - this complaint has been raised out of time.           Accordingly, this part of the application must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   2.       The applicants also complain that they have not been accorded a fair and public hearing satisfying the conditions or Article 6 para. 1 (Art 6-1) of the Convention.           In view of its consideration above under No. 1 the Commission considers that any allegation relating to the proceedings before the Government must also be rejected under Article 27 para. 3 (Art. 27-3) of the Convention as being out of time.   3.       Insofar as the applicants maintain that the proceedings before the Water Court and the Water Court of Appeal did not meet the requirements of Article 6 (Art. 6) of the Convention, the Commission considers that it is not necessary to decide whether any "civil right" of the applicants was determined in those proceedings.   Even if this were so, the Commission finds no appearance of any violation of Article 6 para. 1 (Art. 6-1) of the Convention.             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.             For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE         Deputy Secretary to the Commission          President of the Commission                    (J. RAYMOND)                           (C. A. NØRGAARD)