CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 janvier 1989

.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. 12810/87                       by Lars Lorenius                       against Sweden             The European Commission of Human Rights sitting in private on 18 January 1989, the following members being present:                   MM. C. A. NØRGAARD, President                   J. A. FROWEIN                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   J.-C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   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 22 December 1986 by Lars Lorenius against Sweden and registered on 16 March 1987 under file No. 12810/87;           Having regard to:         - the first report provided for in Rule 40 of the Rules of         Procedure of the Commission;         - the Commission's decision of 9 December 1987 to invite the         Government to submit written observations on the admissibility         and merits of the application;        - the Government's written observations dated 17 March 1988 and          the applicant's reply dated 30 June 1988;         - the second report provided for in the Rules of Procedure.           Having deliberated;           Decides as follows:   THE FACTS           The facts, which are not in dispute between the parties, may be summarised as follows.           The applicant is a Swedish citizen born in 1942 and resident at Bettna.   He was formerly a farmer.   Before the Commission the applicant is represented by Mr.   Sten Blomqvist, a lawyer practising at Lidingö.   Particular circumstances of the case           In April 1979 the applicant acquired an agricultural property in the municipality of Flen, Forsnäs 1:11 and other units of land, for 4,500,000 SEK.           On 13 October 1981 he sold the property to a company, Diplo, for 4,150,000 SEK.   In accordance with the provisions of the Land Acquisition Act (jordförvärvslagen) the buyer applied for a permit to acquire the property.   Following indications to the effect that the Government might not grant a permit because the price was too high, the applicant and the buyer decided to reduce the price to 3,600,000 SEK.           On 27 May 1982 the Government decided to reject the application for a permit pursuant to Section 4 para. 1 (1) and (4) of the Land Acquisition Act.   In their decision the Government stated the following reasons:   "The Government find that the price exceeds, not only insignificantly, the value of the property in view of its return and other circumstances.   However, the neighbouring properties, owned by Diplo, and the property at issue must be regarded as capable of development as separate agricultural enterprises.   These enterprises should remain independent. There are no reasons why the purchase should nevertheless be accepted."           The applicant submits that as a result of the Government's decision, which was not subject to appeal, he suffered a financial loss amounting to 2,439,000 SEK.   In a letter to the Government of 11 September 1984 the applicant requested compensation for his loss. On 28 February 1985 the Government decided that there was no basis for paying compensation to the applicant.           The applicant summoned the State before the District Court (tingsrätten) of Stockholm claiming compensation for the loss on the ground that the basis for the Government's decision was deficient and that, consequently, the decision was wrong.   He claimed to be entitled to compensation under Chapter 2 Section 18 of the Instrument of Government (regeringsformen).           The District Court dismissed the applicant's action, without having served the summons on the State, by a decision of 26 March 1986, mainly for the following reasons:   "Under Chapter 3 Section 7 of the Tort Liability Act (skadeståndslagen) an action for compensation for damages caused by mistake or negligence in the exercise of public   power may not be brought on the basis of a decision of the Government, unless the decision has been quashed or amended.   It has not been argued that the Government's decision of 27 May 1982 has been quashed or amended.           The provisions in Chapter 2 Section 18 of the Instrument of Government about protection for persons who are deprived of their property by expropriation or other similar measures are not applicable to the seller of a property who retains his property because the buyer is refused a permit to acquire it...".           The applicant appealed to the Svea Court of Appeal (hovrätt) which in a decision of 9 October 1985 rejected the appeal.           The applicant appealed to the Supreme Court (högsta domstolen) which, on 22 August 1986, refused leave to appeal.   One of the Justices of the Supreme Court stated in a concurring opinion:   "It could be argued that leave to appeal should be granted in view of the question whether the provision in Chapter 3 Section 7 of the Tort Liability Act constitutes a procedural obstacle to the extent that the victim bases his claim for compensation not on a wrongful decision by the Government, but on the principles of expropriation law, as expressed in Chapter 2 Section 18 of the Instrument of Government.   In the present case it seems, however, that the lower courts have also examined the substance of such a claim.   In view hereof and of the other circumstances of the case I am satisfied that leave to appeal should not be granted."           On 11 June 1986, the applicant asked the Government to reconsider their decision of 28 February 1985 and grant him compensation for the loss he had suffered as a result of the Government's decision of 27 May 1982.           On 9 October 1986, the Government stated that the applicant had not invoked any such circumstances as might cause the Government to take a different view of the matter from the one that appears in their decision of 28 February 1985, and that the Government would take no action on the basis of this new request.   Relevant domestic law           The acquisition of agricultural properties is subject to provisions set forth in the 1979 Land Acquisition Act.   The Act aims at furthering the creation and preservation of effective family holdings so as to strengthen the connection between cultivation and ownership, and also the promotion of a continuous structural rationalisation of agriculture and forestry.           Under Section 1 of the Act, a permit is required for the purchase of agricultural properties.   Section 2 enumerates a number of exceptions to the main rule.   A request for permission to acquire the real estate shall be submitted within three months after it was acquired (Section 12).           When deciding on an application for a permit, account shall be taken of the desirability of promoting the creation and development of rational holdings in agriculture, forestry and horticulture (farm holdings).   Furthermore, under Section 4 first paragraph, an application for a permit shall be rejected, inter alia, if the sales price or other compensation for the property considerably exceeds the value of the property with regard to its yield and other circumstances, if the property is needed for the rationalisation of agriculture or forestry or if the acquisition would appear to bring about the merger of two or more farm holdings which are developed or capable of development and which should remain separate.           If an application for a permit has not been submitted within the time-limit and in the manner prescribed, or if permission to acquire the property has been refused, the acquisition will be annulled.           Chapter 3 Section 7 of the Tort Liability Act restricts the possibility of bringing an action for compensation on the basis of a decision taken by the Government.           Chapter 2 Section 18 of the Instrument of Government guarantees compensation for the loss suffered by a citizen, whose property is requisitioned by expropriation or by any other similar disposition.   Compensation is guaranteed in accordance with principles governed by law.   Chapter 2 Section 18 of the Instrument of Government reads as follows:   "Every citizen whose property is requisitioned by expropriation or by any other similar disposition shall be guaranteed compensation for his loss in accordance with principles governed by law."     COMPLAINTS   1.       The applicant complains that Article 1 of Protocol No. 1 to the Convention has been violated.   As a result of the Government's refusal to grant the buyer a permit to acquire the property, the applicant has been deprived of his right to the purchase price.   The examination which preceded the decision has not been conducted in a way which effectively secured the applicant's rights.   There was, for instance, no valuation which could support the opinion that the price was too high.   2.       The applicant also alleges a violation of Article 6 of the Convention in that he was not permitted to bring an action before the courts for compensation for the losses he suffered as a result of the Government's decision.   The action brought by the applicant was rejected on formal grounds since the original decision had been taken by the Government.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 22 December 1986 and registered on 16 March 1987.           On 9 December 1987 the Commission decided to communicate the application to the respondent Government and to invite them to submit written observations on the admissibility and merits.           The Government's observations were dated 17 March 1988 and the applicant's observations in reply were dated 30 June 1988.     SUBMISSIONS OF THE PARTIES   A.       The Government           In the opinion of the Government there are two sets of proceedings to be considered in this case.   One of those pertains to the refusal to grant the buyer (Diplo) a permit to acquire the property, allegedly leading to deprivation of the applicant's right to the purchase price.   The other set of proceedings concerns the applicant's allegation that he was not permitted to bring an action before a court regarding compensation for his alleged loss.   Article 1 of Protocol No. 1 to the Convention           As regards the refusal to grant the buyer a permit to acquire the property, allegedly depriving the applicant of his right to the purchase price, the Government submit that only the decision refusing a permit is invoked.   The wording of the application on this point clearly indicates that only that decision is invoked in support of the submissions regarding Article 1 of Protocol No.1.   This means that the domestic remedies on this point were exhausted by the Government's decision of 27 May 1982.   Since the application was lodged with the Commission on 22 December 1986, the applicant has failed to comply with the six months rule in Article 26 of the Convention as regards this issue.           As regards the decisions regarding the applicant's request for damages, the Government contend that they have not been invoked as a ground for claiming a violation under Article 1 of Protocol No. 1.           However, if the Commission were to consider these decisions, the Government contend that the six months period in regard to Article 1 of Protocol No. 1 should be calculated as from the Government's decision of 28 February 1985.   The Government decision of 9 October 1986 does not, in the Government's opinion, constitute an effective remedy since it only refers back to the decision of February 1985.   The same is the case with the court procedure, leading up to the decision by the Supreme Court of 22 August 1986, which was not an effective remedy in regard to the complaint under Article 1 of Protocol No. 1 since, mainly in view of the provisions of the Instrument of Government, the courts could never come to deal with the merits of the application to acquire the property.   Thus, counting from the Government's decision of 28 February 1985, the six months rule has not been complied with.   Article 6 of the Convention   a.       Admissibility           As regards the complaint under Article 6, the Government accept that the applicant has complied with the six months rule in Article 26 of the Convention.   The Government are of the opinion that the date of the decision by the Supreme Court, i.e. 22 August 1986, should be considered to be the starting point for calculating the six months period.   b.       Merits           As regards the question of whether the applicant was denied access to the courts on a contestation regarding his civil rights, the Government first point out that the substance of the applicant's submissions before the national courts concerned the question of whether he was entitled to compensation for a measure that he alleged to be tantamount to expropriation of his property.   The essential basis for the applicant's allegations was that he considered the valuation of the property undertaken by the authorities to be unsatisfactory.   The applicant alleged that the estimated value of the property was too low, which had caused the appreciation of the sales price to be faulty.   This issue, in the Government's opinion, is a question of appreciation of fact.   While it is true that disputes over facts may indeed constitute a dispute (contestation) regarding a civil right in the sense of Article 6, the Government contend that, for this to be the case, a civil right in the sense of the Convention must be at hand.           The essential issue brought before the national Swedish courts by the applicant was whether he was entitled to compensation for the alleged expropriation of his property, and the appreciation made by the Government when applying the Land Acquisition Act.   The legality as such of the measure taken does not, in the Government's opinion, seem to have been contested by the applicant, only the appreciations on the basis of which the Government's decision was taken and the way in which the property's value was established.           It appears from the jurisprudence of the European Court of Human Rights that Article 6 para. 1 extends only to contestations (disputes) over (civil) rights and obligations which can be said, at least on arguable grounds, to be recognised under domestic law. Article 6 para. 1 does not in itself guarantee any particular content for (civil) rights and obligations in the substantive law of the Contracting States, nor does it require that there be a national court with competence to invalidate or override national law.   In the present instance the grant of an acquisition permit and the appreciations on the basis of which the decision regarding that permit was to be taken were under the sole jurisdiction of the Government. The Land Acquisition Act did not in this instance afford any right of compensation, and the courts considered themselves incompetent to examine the compensation issue.   In view of this, and in view of the fact that the applicant has not contended before the Swedish courts that the Government's decision on the acquisition issue was incompatible with the laws of Sweden, the Government maintain that there was no contestation over a civil right in the sense of Article 6 of the Convention.   The Government contend that the position of Swedish law on this issue is not incompatible with the Convention. Consequently, the application should be declared manifestly ill-founded.           In case the Commission were to find that there was a contestation over civil rights in the sense of Article 6 of the Convention, the Government submit the following.           The applicant's allegation that he was not permitted to bring before a court the merits of an action regarding compensation for his alleged loss is correct.   It should, however, be pointed out that the question whether he had the right to institute litigation against the Government was examined by the courts, in fact by the court of first instance, by the Court of Appeal and by the Supreme Court.   The reason why the courts found themselves not competent to deal with the matter is that under the Tort Liability Act no action for compensation can be brought against the State under Section 7 of Chapter 3 (e.g. liability for financial loss) on account of a decision rendered by the Government, unless the decision has been reversed or amended.           Since Article 6 para. 1 does not in itself guarantee any particular content for (civil) rights and obligations in the substantive law of the Contracting States, there is nothing in the Convention to prevent Sweden from enacting a tort law with this particular limitation.   The Government, therefore, contend that the applicant had access to court, namely for the assessment of the question whether the State was liable for the effects of the Government decision not to grant the buyer a permit to acquire the property.   The courts ruled that no such liability existed under Swedish law.   The fact that this ruling had the form of a rejection on formal grounds does not alter this conclusion.   The Government thus contend that the applicant had access to court in accordance with Article 6 para. 1 of the Convention.           Furthermore, according to the jurisprudence of the Court the right of access to a court secured by Article 6 para. 1 is not absolute.   Exceptions are considered to be permitted by implication since the right of access by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals.   While stating that Contracting States enjoy a certain margin of appreciation in laying down such regulations, the European Court of Human Rights has nevertheless pointed out that it must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.   The Court has furthermore stated that a limitation will not be compatible with Article 6 para. 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.           The Government contend that in the present instance the aim of the limitation in question must be considered as being legitimate. That aim was to exclude the possibility of requesting compensation for certain decisions taken by the Government, particularly those of a political character, whereas there was no intention of excluding the possibility to request damages in court for an administrative decision by the Government of the kind now in question.   The way this aim was brought about, i.e. making the reversal or amendment of the Government decision in question a condition for claiming compensation from the State because of that decision, clearly lies within the Government's margin of appreciation.   The Government also contend that this limitation of access to court does not impair the essence of the   individual's right of access to a court.   Consequently, in the Government's opinion, there has been no violation of Article 6 para. 1 of the Convention.   With reference to this reasoning the Government maintain that the application is manifestly ill-founded.   Conclusions           The Government conclude concerning the admissibility that the application should be declared inadmissible, as regards the complaint under Article 1 of Protocol No. 1, for failure to comply with the six months rule of Article 26 of the Convention, alternatively, as regards the whole application, for being manifestly ill-founded, and concerning the merits, that there has been no violation of the Convention or Protocol No. 1.     B.       The applicant   a.       Article 26 of the Convention           The applicant submits that the examination of the request for a permit to acquire the agricultural property and the question of compensation for the unlawful refusal of the permit are closely linked.   In order to properly exhaust all remedies the applicant has felt obliged to try before a civil court to obtain compensation under the provisions of the Instrument of Government.           The fact that his "action" has been dismissed by the courts was not foreseeable.   This particular provision of the Instrument of Government was enacted in 1979 and has in practice seldom been applied.   It was therefore necessary for the applicant to have this fact established before turning to the Commission.   The six months period should consequently be calculated from the date of the Supreme Court's decision on 22 August 1986.   b.        Article 1 of Protocol No. 1 to the Convention           The applicant alleges that the unlawful application of the relevant Act has caused him great financial losses which have not been foreseen by the law.   The balance of interest, required by the law, particularly concerning the price control, has been neglected in a way which has made the applicant suffer losses which he cannot be obliged to accept in a State governed by the rule of law.   c.       Article 6 of the Convention           It has not been possible for the applicant to have examined before a court the effects of the incorrect application of Swedish law which has resulted in violations of his civil right to property.   The extraordinary remedies which exist have been without any prospect and even formally excluded for the applicant.           The applicant submits that, for such serious interferences in the civil law sphere as the quashing of ordinary contracts, there must exist proper procedures securing an impartial and objective examination of all the aspects of a case.   No such procedure has been available to the applicant.           Moreover, the fact that the provisions of the Convention are not applied by Swedish courts imply that they are irrelevant.   This is, in the applicant's view, in breach of Article 13 of the Convention.     THE LAW   1.       The applicant complains that, as a result of the Government's refusal to grant the buyer a permit to acquire the property, he has been deprived of his right to the purchase price and there has, consequently, been a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention, which reads:   "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 Government submit that this complaint is inadmissible for failure to observe the six months rule laid down in Article 26 (Art. 26) of the Convention.           Article 26 (Art. 26) of the Convention provides that the Commission may only deal with a matter "after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken".   It is established case-law that "the final decision" refers only to domestic remedies which can be considered to be "effective and sufficient" for the purpose of rectifying the complaint made (see, inter alia, No. 9599/81, Dec. 11.3.85, D.R. 42 p. 33).           The applicant's complaint is that the refusal to grant the buyer a permit to acquire the property violated Article 1 of Protocol No. 1 (P1-1).   The issue concerning the permit was finally decided by the Government on 27 May 1982, a decision which was not subject to appeal.           The applicant argues that, in order to comply with Article 26 (Art. 26) of the Convention, he had to try to secure compensation for the alleged violation on the basis of Chapter 2 Section 18 of the Instrument of Government.   He maintains that the decision of the Supreme Court of 22 August 1986 was "the final decision" for the purposes of Article 26 (Art. 26) of the Convention.           The Commission first observes that under Chapter 3 Section 7 of the Tort Liability Act the State is exempt from liability if the claim for compensation is based on a Government decision, unless the decision has been quashed or amended.   Consequently, an action based on the Tort Liability Act was not an "effective" remedy for the purposes of Article 26 (Art. 26).           The question then arises whether a compensation claim based on Chapter 2 Section 18 of the Instrument of Government can be regarded as an "effective remedy".   The Commission recalls that the said provision guarantees compensation to everyone whose property is   "requisitioned by expropriation or by any other similar disposition". The District Court held in the present case that this provision did not apply to the seller of a property who retains the property because the buyer is refused a permit to acquire it.   Consequently, the District Court, without having served a summons on the State or further examined the merits of the claim, dismissed the applicant's action.   This decision was upheld on appeal.   The Commission further finds no indication that this provision could possibly be considered applicable to the present situation which differs essentially from expropriation.           In these circumstances the action brought by the applicant cannot reasonably be considered to have had any prospects of success. Consequently, it cannot be regarded as an "effective" remedy and cannot be taken into account when calculating the six months rule in Article 26 (Art. 26) of the Convention.           The Government submit that the six months period started to run from the Government's decision of 28 February 1985, when they decided that there was no basis for paying compensation to the applicant.           The Commission considers that, even if the Government could have granted the applicant compensation, such a decision would have been one of pure discretion.   A request for such a discretionary decision cannot be regarded as a remedy which should be exhausted for the purposes of Article 26 (Art. 26) (cf.   No. 10530/83, Dec. 16.6.85, D.R. 42 p. 171).           The starting point for calculating the six months period is therefore, in the Commission's opinion, the Government's decision of 27 May 1982.   Since the application was not introduced with the Commission until 22 December 1986 it follows that it has been introduced out of time and must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   2.       The applicant complains under Article 6 (Art. 6) of the Convention that he was not allowed to bring an action before the court as the action he brought was dismissed on formal grounds.   Article 6 para. 1 (Art. 6-1) first sentence reads:   "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."           The Commission first observes that it is not here faced with a complaint of absence of a procedure satisfying the conditions of Article 6 para. 1 (Art. 6-1) in respect of the Government's decision to refuse the buyer a permit to acquire the property.           The applicant's complaint is merely that his action before the courts was dismissed on formal grounds rather than after an examination of the merits of the action.   In the proceedings the applicant sought to establish whether on the basis of the provisions of Chapter 2 Section 18 of the Instrument of the Government he was entitled to compensation for the refusal to grant the buyer a permit to acquire the property.           Article 6 para. 1 (Art. 6-1) applies to disputes over "rights" which can be said, at least on arguable grounds, to be recognised under domestic law.   It applies not only to disputes over well established "rights" but also to disputes as to whether a particular "right" exists under domestic law (cf.   Eur.   Court H.R., Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 70, para. 192).   However, such a dispute about the existence of a right must be "genuine and of a serious nature" (see Eur.   Court H.R., Benthem judgment of 23 October 1985, Series A No. 97, p. 14, para. 32).           The Commission considers that the applicant was seeking to obtain a right to compensation which he clearly had no basis for under Swedish law.   In fact, there is no provision which, in a case like that of the applicant, entitles the seller to be compensated for any alleged financial loss resulting from a denial to grant the buyer a permit to acquire a property.   It is also clear that the applicant did not even allege such a right under the Land Acquisition Act.   Nor did he seek to obtain compensation on the basis of the Tort Liability Act. He chose to rely on the Instrument of Government, which provides for compensation in case of expropriation or other similar interferences with property rights.   As is shown by the decisions of the Swedish courts this was such a far-fetched argument that the District Court did not even summon the State, but dismissed the action without having heard the State.           The Commission finds that the applicant's action was so clearly without basis in Swedish law that there was no serious dispute about the existence of a right under Swedish law.   Consequently, he was not seeking the determination of any "right" under Swedish law and Article 6 para. 1 (Art. 6-1) of the Convention is therefore inapplicable.           It follows that, in this respect, the application is incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 27 para. 2 (Art. 27-2).     3.       The Commission finds no issue under Article 13 (Art. 13) of the Convention, to which the applicant referred in his pleadings.             For these reasons, the Commission             DECLARES THE APPLICATION INADMISSIBLE       Secretary to the Commission          President of the Commission             (H. C. KRÜGER)                        (C. A. NØRGAARD)