CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 13 mars 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. 12032/86                       by Carsten JACOBSEN                       against Sweden           The European Commission of Human Rights sitting in private on 13 March 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   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.   L. LOUCAIDES                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 19 January 1986 by Carsten Jacobsen against Sweden and registered on 10 March 1986 under file No. 12032/86;           Having regard to           -   the Commission's decision of 2 May 1988 to communicate            the application to the Government for written observations            on the admissibility and merits;           -   the Government's observations of 17 August 1988;           -   the applicant's observations of 16 October 1988;           -   the Government's further observations of 12 December 1988;           -   the report provided for in Rule 40 of the Rules of            Procedure;           Having deliberated;           Decides as follows:               THE FACTS           The facts of the case, as submitted by the parties, may be summarised as follows.           The applicant is a Swedish citizen born in 1920 and resident at Falkenberg.   He is retired.           Since 1963 he owns, together with his wife, a property of 12,820 m2 called Skrea 5:15.   The property was created in 1935 to be used for dwelling purposes.   In 1969 to 1970 the applicant erected a one-family house on the property.           No detailed plan had been established for the area in which the property is situated and, consequently, regulations for non-planned areas (utomplansbestämmelser) were applicable.           Since 1 August 1972 there has been, with some short interruptions, a prohibition against new construction within the area to which the applicant's property belongs.   The prohibition was issued under Section 109 of the 1947 Building Act (byggnadslagen) pending the adoption of a building plan.           On 15 January 1985 the County Administrative Board (länsstyrelsen) of the County of Halland decided to prolong the building prohibition until a proposal for a building plan or an amendment of a building plan had been adopted.    However, in no case was the prohibition valid longer than up to and including 31 December 1986.   The prohibition on construction was issued under Section 109 of the Building Act.   The reasons for the building prohibition, as submitted by the Building Committee of Falkenberg, were inter alia the following: In the area there existed building plans which permitted buildings exceeding 80 m2.   The intention was to change all the building plans to the effect that the regulations were in conformity with the guidelines issued by the Building Committee on 15 March 1984. Moreover, in certain areas planning work was going on.           The applicant appealed against the decision of the County Administrative Board to the Government which, after having obtained the opinion of the Building Committee and further written observations from the applicant, decided on 17 October 1985 to reject the appeal considering that the planning situation in the area justified a prolongation of the building prohibition.           In his letters to the Government the applicant inter alia complained that the Building Committee had grossly misused the building prohibition and prevented him and his wife from peaceful enjoyment of their property.   He also submitted that the Committee had, in its efforts to interfere with the applicant's private property, given false information to superior authorities and courts.   COMPLAINTS   1.       The applicant alleges a violation of Article 1 of Protocol No. 1 to the Convention in that since 1972 a building prohibition has been in force which involves a restriction on his property right.   He has for a long time been prevented from the peaceful enjoyment of his possessions.   2.       The applicant also alleges a violation of Article 6 para. 1 of the Convention.   He submits that his property right is a civil right and that the building prohibition involves financial losses for him. There has been a serious dispute which has lasted for more than fourteen years and this dispute cannot be examined by an impartial and independent tribunal.   3.       The applicant also alleges a violation of Article 13 of the Convention.   He submits that there is no effective remedy in respect of the restriction of his civil rights.   4.       The applicant further alleges a violation of Article 17 of the Convention, since the aim of the building prohibition is to nullify the applicant's civil right.   5.       Finally, the applicant alleges a violation of Article 18 of the Convention, in that the authorities have not indicated any justified reason for the building prohibition.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 19 January 1986 and registered on 10 March 1986.           On 2 May 1988 the Commission decided to communicate the application to the respondent Government and to invite them to submit written observations on the admissibility and merits of the application.           The Government's observations were received by letter dated 17 August 1988 and the applicant's observations in reply were dated 16 October 1988.   The Government submitted further observations by letter of 12 December 1988.           On 16 December 1988 the applicant was granted legal aid.     THE LAW   1.       The applicant complains that there has been a building prohibition on his property since 1972 which has restricted his right to property in violation of Article 1 of Protocol No. 1 (P1-1) to the Convention.   This complaint is directed against the decision of the Government of 17 October 1985, whereby they rejected his appeal against the decision of the County Administrative Board of 15 January 1985 to prolong the building prohibition.           The applicant further alleges that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention since he could not have the dispute over the building prohibition examined by an independent and impartial tribunal.           The applicant also invokes Articles 13, 17 and 18 (Art. 13, 17, 18°) of the Convention.   2.       The Government submit that the complaint under Article 1 of Protocol No. 1 (P1-1) is manifestly ill-founded.   They contend that the building prohibition constitutes a control of the use of property and is justified under the second paragraph of this Article.           As regards Article 6 para. 1 (Art. 6-1) of the Convention the Government submit that the complaint is incompatible ratione materiae with the Convention, either because no "civil right" was at issue or because there was no serious dispute over any such right.   In the alternative they submit that this complaint is manifestly ill-founded.           If the Commission were to consider that the decision of 17 October 1985 concerned a serious dispute over the applicant's civil rights, the Government admit that no procedure satisfying the conditions of Article 6 para. 1 (Art. 6-1) of the Convention was available to the applicant.           The Government contend that the applicant's remaining complaints are manifestly ill-founded.   3.       Article 1 of Protocol No. 1 (P1-1) to the Convention 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."           Article 6 para. 1 (Art. 6-1) first sentence of the Convention 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."   4.       The Commission has first examined whether the applicant's complaint under Article 1 of Protocol No. 1 (P1-1) is manifestly ill-founded and whether the complaint under Article 6 (Art. 6) is incompatible ratione materiae with the Convention or manifestly ill-founded, as submitted by the Government.           The first issue to be examined under Article 1 of Protocol No. 1 (P1-1) is whether in the circumstances of the case the building prohibition constitutes an interference with the applicant's right under this Article to peaceful enjoyment of his possessions.   If this were so, it would then have to be examined whether the interference is justified under the terms of the Article.           As regards Article 6 (Art. 6) of the Convention the issues to be decided are whether the decision to prolong the building prohibition on the applicant's property was decisive for a "civil right" of the applicant and, if so, whether a genuine and serious dispute arose between the applicant and the Swedish authorities in relation to the decision to prolong the building prohibition.   In the affirmative, it would then have to be determined whether the applicant had at his disposal a procedure satisfying the requirements of Article 6 para. 1 (Art. 6-1) in regard to that dispute.           The Commission has made a preliminary examination of these issues in the light of the parties' submissions.   It considers that these issues raise questions of fact and law which are of such a complex nature that their determination requires an examination of the merits.   The application cannot therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established.               For these reasons, the Commission           DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.       Secretary to the Commission                President of the Commission             (H. C. KRUGER)                               (C. A. NØRGAARD)