CEDH · CASELAW;REPORTS;ENG — 12 avril 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 }    EUROPEAN COMMISSION OF HUMAN RIGHTS   Application No. 12782/87   Erik KARLSSON   against   SWEDEN   REPORT OF THE COMMISSION   (adopted on 12 April 1989)   TABLE OF CONTENTS                                                                   page   I.     INTRODUCTION (paras. 1-14) ............................      1         A.   The application           (paras. 2-4) ......................................      1         B.   The proceedings           (paras. 5-10) ......................................     1         C.   The present Report           (paras. 11-14) ....................................      2     II.    ESTABLISHMENT OF THE FACTS   (paras. 15-25) .............     3         A.   Particular circumstances of the case           (paras. 15-21) ....................................      3         B.   Relevant domestic law           (paras. 22-25) ....................................      4     III.   OPINION OF THE COMMISSION (paras. 26-47) ..............      5         A.   Point at issue           (para. 26) ..........................................    5           B.   Article 6 of the Convention           (paras. 27-47) .......................................   5                   a.    Applicability of Article 6 para. 1 of                      the Convention                      (paras. 29-41) .......................        5                   b.    Compliance with Article 6 para. 1                      of the Convention                      (paras. 42-47) .......................        7       APPENDIX I :   HISTORY OF THE PROCEEDINGS ....................      8   APPENDIX II:   DECISION ON THE ADMISSIBILITY .................      9   I.       INTRODUCTION   1.       The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.       The application   2.       The applicant is Mr.   Erik Karlsson born in 1910.   He is a Swedish citizen resident at Sundborn.   He is a property owner and is represented before the Commission by Mr.   Per-Gunnar Viklund, a lawyer practising at Falun.   3.       The application is directed against Sweden.   The respondent Government are represented by their Agent, Mr.   Hans Corell, Ambassador, Under-Secretary at the Ministry for Foreign Affairs, Stockholm.   4.       The case relates to the refusal to grant the applicant a permit to acquire certain agricultural property.   The applicant complains that the dispute over the refusal to grant him the permit could not be brought before a court as guaranteed by Article 6 of the Convention.     B.       The proceedings   5.       The application was introduced on 12 January 1987 and registered on 2 March 1987.   On 7 October 1987 the Commission decided, in accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite them to present before 8 January 1988 their observations in writing on the admissibility and merits of the application.           The Government's observations were dated 7 January 1988.   The applicant's observations in reply were dated 7 March 1988.   6.       On 12 October 1988 the Commission declared the application admissible.   7.       The parties were then invited to submit any additional observations or further evidence they wished to put before the Commission.   Their legal submissions should in particular deal with the dispute which arose between the applicant and the Swedish authorities.   8.       The Government submitted further observations on 19 December 1988.   The Government's observations were transmitted to the applicant for information.   9.       Legal aid under the Addendum to the Commission's Rules of Procedure was granted to the applicant on 22 January 1988.   10.       After declaring the case admissible the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement   of the case.   In the light of the parties' reactions the Commission now finds that there is no basis on which a friendly settlement can be effected.     C.       The present Report   11.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes in plenary session, the following members being present:                     MM. S. TRECHSEL, Acting President                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   H. G. SCHERMERS                   H. DANELIUS                   H. VANDENBERGHE              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ              Mr.   C. L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES             The text of the Report was adopted by the Commission on 12 April 1989 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   12.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is           (1)   to establish the facts, and           (2)   to state an opinion as to whether the facts found              disclose a breach by the State concerned of its              obligations under the Convention.   13.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application forms Appendix II.   14.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.      ESTABLISHMENT OF THE FACTS   A.       Particular circumstances of the case   15.      The applicant is a real estate owner and forestry manager.   On 14 February 1986 he acquired a property, Åsen 3:8, in the municipality of Falun for 45.000 SEK.   The property is an agricultural property of 10 hectares and to acquire such a property it is necessary to obtain a permit in accordance with the 1979 Land Acquisition Act (jordförvärvslagen).   If a permit is refused the purchase becomes void.   16.      According to the first clause of the purchase contract the applicant should take over the property as soon as he had obtained the permit.   The second clause of the contract provided that the purchase sum which had been paid on 15 January 1986 would be refunded to the applicant if the permit was refused or if for some other reason the purchase would not be completed.   17.      The applicant requested permission from the Agricultural Committee (lantbruksnämnden) of the County of Kopparberg to acquire the property.   He referred to a valuation of the property according to which the property value was 49.100 SEK.   He maintained that he was working as a farmer and that he would be prepared to exchange the property for another property if this would be in the interest of a more efficient forestry.   He pointed out that the seller of the property, who was not a real farmer, preferred to keep it rather than selling it at the price offered by the owner of the surrounding properties.   18.      On 13 June 1986 the Agricultural Committee refused to grant the applicant a permit.   The Committee referred to Section 4 para. 1 (1) and (3) of the Land Acquisition Act and stated that the price significantly exceeded the property value and that the property was needed to make forestry more efficient.   19.      The applicant appealed to the National Board of Agriculture (lantbruksstyrelsen).   He recalled that the purchase sum was 45.000 SEK and that the property, according to the valuation report submitted to the Agricultural Committee, had a value of 49.100 SEK.   He further submitted that due to other circumstances, mainly the fact that the property was so narrow that he could rely on natural regeneration of the forest and would have no costs for planting pines, the value could be considered to be even higher and that the purchase sum could not be a reason for refusing the permit.   He also submitted that the permit could not be refused on the basis of the rationalisation of the forestry, as he was prepared to exchange the property for another property if this would promote the structural rationalisation of the forestry.   He pointed out that he owned a property nearby and alleged that the Committee had not offered him to buy real estate that had been for sale previously and that bordered on his property.   20.      The National Board of Agriculture rejected the appeal on 13 October 1986 on the same grounds as the Agricultural Committee.   The Board stated that the Committee had assessed the value of the property at 10.000 SEK and indicated that the property should be used for the rationalisation of the property named Åsen 4:1.   21.      The applicant's further appeal to the Government (Ministry of Agriculture), in which he referred to his submissions to the Agricultural Committee and the National Board of Agriculture, was rejected on 11 December 1986.     B.       Relevant domestic law   22.       The acquisition of real estate, which is assessed for tax purposes as an agricultural holding, is subject to the regulations of the 1979 Land Acquisition Act.   The Act was enacted in 1979 - replacing an Act of 1965 - in order to implement certain new agricultural guidelines adopted by the Riksdag in 1977, and also to meet the policy goals of forestry and regional planning.   Among the aims which, in particular, were to be promoted by the Act are 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.   23.      Under Section 1 of the Act, a permit is required for the acquisition of real estate assessed for tax purposes as an agricultural holding.   Section 2 enumerates a number of exceptions, none of which is relevant to the present case.   A request for a permit to acquire such real estate should be made within three months after the purchase (Section 12).   24.      When deciding on an application for a permit, the desirability of encouraging the creation and development of rational holdings in agriculture, forestry and horticulture (farm holdings) shall be kept in mind (Section 3).   Furthermore, according to Section 4 an application for a permit shall be refused inter alia if the price or other compensation for the property significantly exceeds the value of the property in view of its yield and other circumstances, or if the property is needed for the rationalisation of agriculture or forestry.   25.      If an application for a permit to acquire agricultural property has not been made within the time-limit and in the manner prescribed, or if the permit has been refused, the purchase becomes void (Section 13).     IV.      OPINION OF THE COMMISSION   A.       Point at issue   26.      The only issue to be determined is whether Article 6 para. 1 (Art. 6-1) of the Convention is applicable and, if so, whether or not there has been a violation of that provision.   B.       Article 6 (Art. 6) of the Convention   27.      The applicant alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention, in that he had no possibility of having examined by a court the decision whereby he was refused a permit to acquire the property.   28.      The Government submit that the complaint falls outside the scope of Article 6 para. 1 (Art. 6-1) since it does not involve any dispute ("contestation") over "civil rights and obligations" within the meaning of this provision.   In case Article 6 para. 1 (Art. 6-1) were considered applicable, the Government admit that the applicants did not have the benefit of a procedure meeting the requirements of this provision.   a.       Applicability of Article 6 para. 1 (Art. 6-1) of the Convention   29.      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."   30.      The applicability of this provision depends on whether the proceedings, by which the applicant was refused a permit to acquire the agricultural property, were decisive for a dispute (French: "contestation") which related to a "civil right" of the applicant.   31.      The Government point out that it follows, not only from the provisions of the Land Acquisition Act, but also from the first and second clauses of the contract of purchase of 14 February 1986, that the applicant's acquisition of the property depended on the permission of the Agricultural Committee.   They submit that in this respect the present case differs from the Ringeisen and Sramek cases, in that the contract itself foresees the procedure required to obtain a permit to acquire the property and expressly deals with the event of such a permit being refused (cf.   Eur.   Court H. R., Ringeisen judgment of 16 July 1971, Series A no. 19 and Sramek judgment of 22 October 1984, Series A no. 84).   They argue that the refusal of the permit in the present case did not affect any existing property right of the applicant but merely a conditional right which did not constitute a civil right (cf.   Kaplan v.   United Kingdom, Comm.   Report 17.7.80, para. 140, D.R. 21 p. 5).   32.      In the Government's opinion, the purchase contract might, moreover, be construed as an acceptance by the parties of the procedure in question and, consequently, as a waiver of their rights under Article 6 para. 1 (Art. 6-1) of the Convention (cf.   Eur.   Court H.R., Deweer judgment of 27 February 1980, Series A no. 35, p. 19, para. 49).   33.      The Government finally submit that what is at issue in the present case is the application of public law regulations regarding transactions involving agricultural land and the use of such land and they conclude that no civil right was affected.   34.      The applicant disagrees with the Government as regards the legal significance of the first and second clauses of the contract of purchase.   He maintains that when agricultural property has been sold the buyer may from the day of his purchase start exploiting the property.   He may cut down valuable trees and sell them.   If a permit to acquire the property is refused and the purchase becomes void, this could create serious problems for both parties.   Therefore a contract of purchase usually contains a clause providing that the buyer shall not take over the property until after he has obtained a permit to acquire it.   It is obvious that the purchase sum shall be refunded if the purchase of the property becomes void.   35.      The Commission recalls that, according to established case-law, a dispute as to whether a buyer of agricultural land should be granted a permit to retain that land is decisive for a "civil right" of the buyer (cf.   Ringeisen judgment, loc. cit., p. 39, para. 94, and Sramek judgment, loc. cit., p. 17, para. 34).   36.      The Commission observes that the applicant's purchase was subject to the condition under the Land Acquisition Act that he obtain a permit to acquire the property.   The examination of whether he should be granted such a permit was accordingly decisive for his property right.   The fact that the purchase contract indicated that the applicant might not be granted a permit to acquire the property cannot be considered as a waiver of his right under Article 6 (Art. 6) of the Convention to a court procedure.   37.      Article 6 para. 1 (Art. 6-1) of the Convention guarantees to everyone, who claims that an interference by a public authority with his "civil rights" is unlawful, the right to submit that claim to a tribunal meeting the requirements of this provision (see Eur.   Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 20, para. 44).   The claim or dispute 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 dispute may relate not only to the actual existence of a right but also to its scope or the manner in which it may be exercised.   The dispute may concern both questions of fact and questions of law (cf.   Eur.   Court H.R., van Marle and Others judgment of 26 June 1984, Series A no. 101, p. 11, para. 32).   38.      The Government submit, in this regard, that there was no dispute concerning the present applicant's civil rights and obligations; in particular, he has not alleged that the competent authorities acted in a way they were not legally entitled to (cf. Kaplan v. the United Kingdom, loc. cit., paras. 163-167).   39.      The Commission observes that the applicant, in his submissions to the Swedish authorities, alleged that he was wrongly refused a permit to acquire the property in question.   He considered that the authorities' finding that the purchase price was too high was based on an incorrect valuation of the property and that the refusal of the permit impeded the rationalisation of forestry as the property would remain in the hands of the seller, who was not a real farmer and who did not intend to sell it to the owner of the neighbouring properties, whereas the applicant was prepared to exchange the property for another one in the interest of a more efficient forestry.   He also submitted that the Agricultural Committee had failed to offer him property that had been for sale previously and that bordered on his property.   40.      There was thus a dispute as to whether the facts of the case were such that the authorities were justified, under Section 4 para. 1 (1) and (3) of the Land Acquisition Act, to refuse the applicant a permit to acquire the property.   In the Commission's opinion this was a "genuine" and "serious" dispute concerning the lawfulness under Swedish law of the refusal.   41.      Accordingly, the Commission finds that Article 6 para. 1 (Art. 6-1) of the Convention was applicable to the dispute over the applicant's right to acquire the property.   b.       Compliance with Article 6 para. 1 (Art. 6-1) of the Convention   42.      It must next be examined whether the applicant had the possibility of submitting the dispute regarding the refusal to grant him the permit to acquire the property to a "tribunal" satisfying the conditions of Article 6 para. 1 (Art. 6-1) of the Convention.   43.      It is recalled that the applicant appealed against the Agricultural Committee's decision of 13 June 1986 to the National Board of Agriculture.   Against the Board's decision of 13 October 1986 he lodged a further appeal to the Government.   The Government rejected the appeal on 11 December 1986.   No appeal lay against the Government's decision.   44.      In the Commission's opinion the proceedings before the Government did not constitute proceedings before a tribunal within the meaning of Article 6 para. 1 (Art. 6-1).   45.      The Commission also finds, as the Government admit, that the applicant did not have access to any court or other tribunal satisfying the requirements of this provision.   46.      It follows that the applicant did not have at his disposal a procedure satisfying the requirements of Article 6 para. 1 (Art. 6-1) in respect of the dispute over the permit to acquire the property.           Conclusion   47.      The Commission concludes, by a unanimous vote, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     Secretary to the Commission            Acting President of the Commission                (H.C. KRÜGER)                             (S. TRECHSEL)     APPENDIX I     HISTORY OF THE PROCEEDINGS     Date                             Item         12 January 1987                  Introduction of the                                 application     2 March 1987                    Registration of the                                 application   Examination of admissibility     7 October 1987                  Commission's decision to invite                                 the Government to submit                                 observations in writing     7 January 1988                  Government's observations     7 March 1988                    Applicants' reply   12 October 1988                  Commission's decision to                                 declare the application                                 admissible     Examination of the merits     19 December 1988                 Government's observations                                 on the merits   11 March 1989                    Commission's consideration of state                                 of proceedings   12 April 1989                    Commission's deliberations                                 on the merits and final votes, and                                 adoption of the Report