CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 juillet 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. 12452/86                       by C. W. and others                       against Sweden             The European Commission of Human Rights sitting in private on 5 July 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   G. BATLINER                   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 22 April 1986 by C. W. and others against Sweden and registered on 10 October 1986 under file No. 12452/86;           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 submitted by the applicants, may be summarised as follows.           The application has been introduced by the owners of 65 properties in Stockholm.   They are inter alia insurance companies, real estate companies and individuals.   Their particulars are set out in Appendix 1 attached hereto.   Before the Commission the applicants are represented by Mr.   Ingvar Lindqvist, a lawyer and director of the Stockholm Property Owners' Association (Stockholms fastighets- ägareförening).           The applicants' properties have been subjected to zonal expropriation permits (expropriationstillstånd) granted by the Government to the Stockholm City Council in accordance with Section 44 of the 1947 Building Act (byggnadslagen - hereinafter "the 1947 Act"). The reason for the expropriation permits was an urban redevelopment planned by the City Council.           The applicants' properties can be divided into four groups according to the different expropriation permits they were affected by.   The time-limits for the original expropriation permits were between five and ten years and for two of the groups the time-limits were extended by three to ten years.   The periods in which the expropriation permits were valid appear below:   Group     Expropriation permits      Extension of validity of        Termination of                issued                 expropriation permits      expropriation per     I         31 July 1956            13 July 1961, 2 April 1965,         1976-1979                                   14 May 1971     II         24 September 1971                      -                    1976-1979   III          2 April 1965           28 June 1979                        1975-1980     IV         26 November 1971                       -                    1979           The 1947 Act prohibits any new construction that is not in conformity with the city plan.   It permits, even before, and until, such a plan has been adopted by the municipal authorities and approved by the regional authorities, the prohibition as an interim measure of any construction work (Section 35 combined with Sections 14 and 15 of the 1947 Act).   Section 15 of the Act provides as follows:   "If a question is raised concerning a request for the adoption of a master plan for a certain zone or for the amendment of a master plan that has already been approved, the County Administrative Board may, at the request of the municipality, prohibit all new construction (nybyggnad) in that zone.   The prohibition shall remain in force until a decision in the matter has been taken by the municipal council, but not for more than one year.   Where necessary, the County Administrative Board may, at the request of the municipality, extend the validity of the prohibition on construction by a maximum of two years at a time. Exemptions from the prohibition on construction referred to in the preceding paragraph may be granted by the County Administrative Board or, in accordance with rules laid down by the Government, by the Building Committee (byggnadsnämnd)."           A decision by the County Administrative Board to issue or extend a prohibition on construction may be challenged by means of an appeal to the Government (Section 150 para. 2 of the 1947 Act).           Long-term prohibitions on construction were imposed on the applicants' properties for the larger part of the periods in which the expropriation permits were valid.   For all except ten properties the building prohibitions expired between 25 March 1976 and 16 September 1985.   The building prohibitions concerning the remaining properties expired as follows:   Sperlingens Backe 29, 30.31         28 August 1986 Sumpen 10, 14                      16 February 1987 Lagern 4, 5, 6, 9, 10               9 June 1987 Pilen 18                            1 July 1987           Two of the zonal expropriation permits, affecting 37 of the properties owned by applicants in the present case (see Appendix 2) were at issue in the case of Sporrong and Lönnroth (Eur.   Court H.R., Sporrong and Lönnroth judgment of 23 September 1982, Series A No. 52). The property owners, whose properties were affected by expropriation permits and prohibitions on construction of long duration, had agreed that the Sporrong Estate's and Mrs.   Lönnroth's cases should be brought before the Convention organs.   The assumption of the owners was that, if a favourable result was reached in those proceedings, the State would accept that result and all the property owners in a similar situation would be compensated.           In its judgment the Court concluded that there had been a violation of Article 1 of Protocol No. 1 to the Convention as the expropriation permits, in combination with the long-term prohibitions on construction imposed on the properties of the applicants in that case, created a situation which upset the fair balance which should be struck between the protection of the right of property and the requirements of the general interest.   The Court considered that the applicants bore an individual and excessive burden which could have been rendered legitimate only if they had had the possibility of seeking a reduction of the time-limits or of claiming compensation (cf. Sporrong and Lönnroth judgment, loc. cit., p. 21, para. 73).   The Court also found a violation of Article 6 of the Convention on the ground that the case of the Sporrong Estate and Mrs.   Lönnroth could not be heard by a tribunal competent to determine all the aspects of the matter (cf.   Sporrong and Lönnroth judgment, loc. cit., p. 25, para. 87).           In a judgment of 18 December 1984 under Article 50 of the Convention the Court afforded the Sporrong Estate and Mrs.   Lönnroth satisfaction assessed at 800.000 SEK and 200.000 SEK, respectively (Eur. Court H.R., Sporrong and Lönnroth judgment of 18 December 1984, Series A No. 88, p. 11, para. 32).           On 17 December 1985 all the applicants except the partnership Klockan 1 made a request to the Government that they be afforded compensation amounting in total to 86.194.834 SEK. They submitted that they had been subjected to the same violations of their rights under the Convention as the Sporrong Estate and Mrs. Lönnroth.   They referred to the fact that the Government had paid damages amounting to 66.667 SEK to a Mr. Andersson, who owned a fourth of Mrs. Lönnroth's property. The requested compensation had been calculated according to the principles applied by the Court when establishing the satisfaction afforded to the Sporrong Estate and Mrs.   Lönnroth.   The remaining applicant, the partnership Klockan 1, made a similar request on 8 August 1986 asking for 9.823.097 SEK.           On 20 February and 9 October 1986 the Government rejected the requests.   They stated that Swedish law does not provide for compensation for expropriation permits.   The Government furthermore stated that the above judgments of the European Court of Human Rights do not oblige the State to compensate the present applicants.   COMPLAINTS   1.       The applicants submit that it is implied in the Convention system that decisions of the Convention organs should be respected by the responding State when dealing with identical cases.   The applicants maintain that, as Sweden has accepted to abide by the judgments of the Court, the Swedish State should, in accordance with the judgments given in the case of Sporrong and Lönnroth, afford an equal compensation to all the property owners whose rights have been interfered with in the same way.   The applicants complain that the Government rejected their requests for compensation.   They allege that there has been a violation of Article 46 of the Convention.   2.       The applicants complain that between 8 and 23 years have passed without their compensation claims being examined by a court. They submit that this delay is unreasonable and contrary to Article 6 para. 1 of the Convention.   3.       Under Article 1 of Protocol No. 1 to the Convention the applicants complain:         - that compensation for the property of which they have been         deprived has not been paid "promptly" in accordance with         general principles of international law;         - that the "public interest", e.g. the original grounds for         the expropriation, which was an urban redevelopment planned         by the Municipality of Stockholm, no longer applied after         the Municipality had changed its plans;         - that the consequences of the long-term expropriation permits         in combination with the building prohibitions deprive them of         their right to peaceful enjoyment of their possessions;         - that the expropriation permits were prolonged without any         legal authority and that they therefore were deprived         of their property under conditions not provided by law;         - that the lack of compensation for loss of a great part of         their right to dispose of the property is contrary         to general principles of international law concerning         "just compensation".   4.       The applicants maintain that, in comparison with property owners who were not affected by long-term expropriation permits and building prohibitions, they were subject to far-reaching discrimination.   They invoke Article 14 of the Convention.   5.       The applicants complain that the public expropriation powers have been misused to limit the rights inherent in ownership to a far greater extent than was necessary in order to effect the expropriation. They allege a violation of Article 17 of the Convention.   6.       The applicants maintain that, as the Government in their decisions of 20 February and 9 October 1986 stated that the State has no obligation to compensate them for the alleged violations of their rights under the Convention, they have no effective remedy as regards their claim for compensation or some other form of redress.   They invoke Article 13 of the Convention.   7.       The applicants further maintain that they have been subjected to discrimination as their requests for compensation were rejected. They submit that another property owner, who owned part of the Lönnroth property but who had not made an application to the Convention organs, was afforded compensation.   They allege that, in this respect too, there has been a violation of Article 14 of the Convention.   THE LAW   1.       The applicants complain that there has been a violation of their rights under Article 1 of Protocol No. 1 (P1-1) to the Convention and Articles 6, 14 and 17 (Art. 6, 14, 17) of the Convention on account of the long-term expropriation permits in combination with the building prohibitions.           The applicants also complain under Article 13 (Art. 13) of the Convention that they had no effective remedy as regards their claim for compensation or some other form of redress based on the judgments of the Court in the case of Sporrong and Lönnroth.           Finally, the applicants complain that they have been discriminated against as their requests for compensation were rejected, while another property owner in a similar situation, who had not made an application to the Convention organs, was afforded compensation following the judgments in the case of Sporrong and Lönnroth.   They invoke Article 14 (Art. 14) of the Convention.           Under Article 26 (Art. 26) of the Convention the Commission may only deal with an application "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".           According to the Commission's case-law only a remedy which is "effective and sufficient" can be taken into account under Article 26 (Art. 26). Where no domestic remedy is available, the six months period in Article 26 (Art. 26) runs from the act or the decision which is itself alleged to be in violation of the Convention.   If the violation complained of consists of a continuing situation, against which no domestic remedy is available, the six months period runs from the end of this continuing situation (cf.   No. 6852/74, Dec. 5.12.78, D.R. 15 p. 5).           The present case has been brought on the basis that the applicants were in situations identical to those of the Estate of Sporrong and of Mrs. Lönnroth, and that the applicants have been the victims of the same violations of the Convention (cf. Sporrong and Lönnroth judgment, loc. cit.).   The Commission notes, however, that although the present applicants were in a continuing situation similar to those of the Estate of Sporrong and of Mrs. Lönnroth, this situation essentially came to an end when the expropriation permits were revoked or lifted, i.e. at the latest in 1980.           As the present application was only introduced on 22 April 1986, which is more than six months later, it has been lodged out of time insofar as it concerns the expropriation permits.   The Commission considers that the applicants' ground for not lodging their application earlier, i.e. that they awaited the outcome of the Sporrong and Lönnroth case, could not suspend the running of the six months period in their cases.   It furthermore finds that the requests for compensation which the applicants lodged with the Government, and which they based on the judgments in the Sporrong and Lönnroth case, were not effective remedies for the purpose of Article 26 (Art. 26) of the Convention.           Consequently, in this respect, the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.           Insofar as the applicants' complaints relate to the building prohibitions, the Commission notes that for all except ten properties the application was introduced more than six months after the building prohibitions had expired.   Moreover, the applicants have failed to show that, after the expropriation permits had been lifted and the Court's judgment in the Sporrong and Lönnroth case had been given, they have taken any steps to appeal against the building prohibitions. The applicants could appeal to the Government under Section 150 of the 1947 Building Act against the relevant decisions of the County Administrative Board.           It follows that here the applicants have not complied with the condition as to the exhaustion of domestic remedies, and this part of their application must also be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.       The applicants finally complain that the refusal to pay them compensation means that the Government refuse to abide by the judgments of the Court in the Sporrong and Lönnroth case.   They refer to the fact that another property owner has received compensation although he was not an applicant in the Sporrong and Lönnroth case. They allege that they have been discriminated against and invoke Article 14 (Art. 14) of the Convention.           The Commission considers however that an applicant cannot claim to have a right under the Convention to obtain compensation based on a judgment by the Court in a case concerning another applicant.           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).           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE     Secretary to the Commission                President of the Commission             (H. C. KRUGER)                              (C. A. NØRGAARD)