CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 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 }                        AS TO THE ADMISSIBILITY OF                         Application No. 12585/86                       by K.L.                       against Sweden             The European Commission of Human Rights sitting in private on 13 April 1989, the following members being present:                 MM. S. TRECHSEL, Acting President                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   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 28 October 1986 by K.L. against Sweden and registered on 5 December 1986 under file No. 12585/86;           Having regard to:   -        the first report provided for in Rule 40 of the Rules of         Procedure of the Commission;   -        the Commission's decision of 4 July 1988 to invite the         parties to submit written observations on the admissibility         and merits;   -        the Government's written observations dated 12 October 1988         and the applicant's observations in reply dated 30 November 1988;   -        the second report provided for in Rule 40 of the Rules of         Procedure.           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as they appear from the parties' submissions, may be summarised as follows.           The applicant is a Swedish citizen, born in 1932 and resident at Mellerud, Sweden.   She is a farmer by profession.   She is represented before the Commission by Mr.   Rune Lanestrand, who is a farmer and a journalist.   The particular circumstances of the case           The applicant and her brothers own an agricultural property called H. 1:23 in the municipality of V..   They have tried to sell the property three times since 1983, but on each occasion the Agricultural Committee (lantbruksnämnden) of the province of Älvsborg has considered the purchase sum to be too high and rejected the buyers' request for a permit to acquire the property. Such a permit is needed, according to Section 1 No. 1 of the 1979 Land Acquisition Act (jordförvärvslagen), for the acquisition of real estate, which is assessed for tax purposes as agricultural property.   If a permit is refused the purchase becomes void.           On 30 August 1985 H. 1:23 was bought by Stefan Jonasson and Katarina Lewander for 300,000 SEK.   According to the purchase contract the purchase price was to be paid in cash at the latest when the buyers took possession of the property.   The purchase was made on the condition that the buyers obtained a permit to acquire the property.   On 15 October 1985 the buyers submitted a request for a permit to acquire H. 1:23 to the Agricultural Committee.           Following investigations by the Agricultural Committee the buyers were informed by a letter of 7 November 1985 that a refusal of the request for a permit could be envisaged since the purchase sum was too high according to the norms of the Agricultural Committee and since the real estate was needed for rationalisation purposes.   According to the valuation of the Agricultural Committee the price of H. 1:23 should be 255,000 SEK.           The buyers were given the opportunity to comment upon the letter of the Committee.           On 19 November 1985 the Agricultural Committee rejected the request for a permit to acquire the property on the ground that the real estate was needed for rationalisation of forestry.   The Committee referred to Section 4 para. 1 (3) of the Land Acquisition Act.           Stefan Johansson appealed to the National Board of Agriculture (lantbruksstyrelsen) which in a decision of 20 March 1986 referred to Section 4 para. 1 (1) and (3) of the Land Acquisition Act and rejected the appeal, stating inter alia as follows:   "The Agricultural Committee has assessed the real estate at a value of 255.000 SEK.   Since the valuation includes a reasonable safety margin the Board finds that the purchase sum considerably exceeds the property's value having regard to its return and all other circumstances.   The Board also finds that   the purchased property is needed for purposes of rationalisation.   It is appropriate to unite it with the real estate H. 1:28.   In that case the purchased property would be joined together with a farm which can be further developed and which is run by a full-time farmer, who has reported need for more land to the Agricultural Committee."           The applicant and the buyers appealed to the Government (Ministry of Agriculture).   The applicant argued inter alia that the price agreed was not unreasonable and that the owner of H. 1:28 was in fact not interested in buying the property.   In a decision of 18 June 1986 the Government rejected the appeal on the same grounds as those referred to by the National Board of Agriculture.   In its decision the Government reminded the sellers of the possibility to make a request under Section 14 of the Land Acquisition Act that the State redeem the property.   Relevant domestic law           The acquisition of real property, 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 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.           Under Section 1 of the Act, a permit is required for the acquisition of a property 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 a real estate should be made within three months after the purchase (Section 12).           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 taken into account (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 or if the property is needed for the rationalisation of agriculture or forestry.           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).           In case the purchase of agricultural property becomes invalid as a result of a refusal of permission to acquire the property on the ground that it is needed for the rationalisation of agriculture and forestry, the State is, according to Section 14 of the Act, obliged to redeem the property at the purchase price agreed upon in the invalid sale if the seller requests it.   However, under the same Section no such obligation exists, in case the purchase price considerably exceeds the value of the property in view of its yield and other circumstances, or if the terms are unreasonable in other respects.   A request for redemption should be made to the Agricultural Committee. If the request is refused an action for redemption may be brought before the Real Estate Court (fastighetsdomstolen).   The decision of that Court can be appealed to the Court of Appeal (hovrätten) and from there an appeal lies to the Supreme Court (högsta domstolen).     COMPLAINTS   1.       The applicant alleges a violation of Article 6 of the Convention in that the Agricultural Committee, which is a politically elected body, first determined the value of her property at a meeting where neither she nor the buyers could be present and then refused a permit to acquire the property, and in that no court review was available in regard to these decisions of the committee.   2.       The applicant also complains that the price determined by the Agricultural Committee was an artificial market price since it was based on the return of the property and that this price could only be insignificantly exceeded when the property was sold.   In the applicant's view, this is in violation of Article 1 of Protocol No. 1 to the Convention.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 28 October 1986 and registered on 5 December 1986.           On 4 July 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 12 October 1988 and the applicant's observations in reply were dated 30 November 1988.     THE LAW   1.       The applicant complains of the artificial market price which was determined for her property by the Agricultural Committee and which could only be insignificantly exceeded in a sale.   She considers this to be a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention.           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 Government submit that this part of the application should be declared inadmissible for failure to exhaust domestic remedies as the applicant has not requested the State to redeem the property. They contend that a redemption procedure might lead to a different valuation of the property and that the effect, as concerns the sellers, of the decision not to grant the buyers the permit to acquire the property, can be estimated only after the redemption proceedings.           The Government contend that the applicant's right to the purchase price is not covered by Article 1 of Protocol No. 1 (P1-1), but admit that there has been an interference with the applicant's right to the peaceful enjoyment of her possessions.   This interference should be considered to be in the nature of control of the use of the property and should therefore be examined under the second paragraph of Article 1 of Protocol No. 1 (P1-1).   The nature of the decisions complained of were taken in the general interest, the aim of the Land Acquisition Act being to develop rational and effective farm holdings, and the decisions were lawful.           The Government further submit that a fair balance has been struck between the public interest and the protection of the applicant's right.   Given the wide margin of appreciation afforded to the State as regards measures implementing legitimate policy goals, the measures taken in the case must be considered appropriate.   The applicant did not suffer an undue economic burden as a result of the refusal to grant the buyers a permit to acquire the property.   The system of valuation, based on the property's return and not the market conditions, must also fall within the State's margin of appreciation. The allegation that the valuation was incorrect is unsubstantiated and the price was not the only reason for refusing the permit.   Finally, in view of the State's wide margin of appreciation, the applicant was not entitled to any compensation for the interference with her property rights.   She could have obtained compensation by requesting that the property be redeemed.           The Commission considers that the redemption procedure referred to by the Government cannot be regarded as a legal remedy within the meaning of Article 26 (Art. 26) of the Convention in relation to the applicant's complaint of the price restrictions which were imposed on her sale of the property to the envisaged buyers.   Consequently, this complaint cannot be rejected for failure to exhaust domestic remedies.           The issue to be examined by the Commission is whether in the circumstances of the case the decision to refuse the buyer a permit to acquire the property constitutes a violation of the applicant's right to the peaceful enjoyment of her possessions as guaranteed by Article 1 of Protocol No. 1 (P1-1) to the Convention.           The Commission has made a preliminary examination of this issue in the light of the submissions of the parties.   It considers that it raises questions of fact and law which are of such a complex nature that their determination requires an examination of the merits.   The complaint cannot therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, but must be declared admissible, no other ground for declaring it inadmissible having been established.   2.       The applicant alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that no court review was available in regard to the decisions of the Agricultural Committee to determine the value of her property and to refuse the buyers of the property a permit to acquire it.           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."           The Government submit that this part of the application should be declared inadmissible for failure to exhaust domestic remedies, for the same reasons as the complaint under Article 1 of Protocol No. 1 (P1-1) to the Convention, or for being manifestly ill-founded.           As regards the merits of the complaint the Government point out that the purchase contract deals with the procedure to obtain a permit to acquire the property and refers specifically to the possibility of the permit being refused.   The Government observe that conditional rights have not been considered as property rights in the case-law of the Commission (cf.   No. 7775/77, Dec. 5.10.78, D.R. 15 p. 143) and allege that no property right is at issue in the case.   They maintain that in view of this and of the possibility to request the redemption of the property, the decision complained of had only marginal effects on the applicant's civil rights and could not be considered to affect civil rights in the sense of Article 6 para. 1 (Art. 6-1) of the Convention.   The Government further maintain that the applicant has waived her rights under Article 6 para. 1 (Art. 6-1) of the Convention as a result of her acceptance in the purchase contract of the permit procedure.           If Article 6 para. 1 (Art. 6-1) is found to be applicable, the Government concede that there was no procedure available to the applicant satisfying the conditions of that provision.           The Commission considers that the redemption procedure referred to by the Government cannot be considered to constitute a legal remedy within the meaning of Article 26 (Art. 26) of the Convention in regard to the applicant's complaint that no court procedure was available to review the decisions of the Agricultural Committee determining the value of the property and refusing a permit for the buyers to acquire the property.   Consequently, this complaint cannot be rejected for failure to exhaust domestic remedies.           The issues to be decided are: whether the decisions of the Agricultural Committee were a determination of the applicant's "civil rights" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention; if so, whether the applicant can be said to have waived her rights under Article 6 para. 1 (Art. 6-1) and, if not, whether she had at her disposal a procedure satisfying the requirements of Article 6 para. 1 (Art. 6-1) in regard of the dispute which arose over the determination of the price and the refusal of the permit.           The Commission has made a preliminary examination of these issues in the light of the submissions of the parties.   It considers that they raise questions of fact and law which are of such a complex nature that their determination requires an examination of the merits.   The complaint cannot therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, but must be declared admissible, no other ground for declaring it inadmissible having been established.             For these reasons, the Commission           DECLARES THE APPLICATION ADMISSIBLE, without prejudging         the merits.       Secretary to the Commission          Acting President of the Commission                H. C. KRÜGER                            S. TRECHSEL