CEDH · CASELAW;REPORTS;ENG — 3 juillet 1990

.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 }  Application No. 12585/86   L.   against   SWEDEN   REPORT OF THE COMMISSION   (adopted on 3 July 1990)                                   TABLE OF CONTENTS     I.       INTRODUCTION         (paras. 1-19) ......................................   1           A.       The application                 (paras. 2-4) ...............................   1           B.       The proceedings                 (paras. 5-14 ) .............................. 1           C.       The present Report                 (paras. 15-19) .............................. 2     II.      ESTABLISHMENT OF THE FACTS         (paras. 20-31) ...................................... 3           A.       The particular circumstances of the case                 (paras. 20-26) .............................. 3           B.       Relevant domestic law                 (paras. 27-31) .............................. 4   III.     OPINION OF THE COMMISSION         (paras. 32-50) ...................................... 5           A.       Points at issue                 (para. 32) .................................. 5           B.       Article 1 of Protocol No. 1 to the Convention                 (paras. 33-42) .............................. 5           C.       Article 6 of the Convention                 (paras. 43-49) .............................. 7           D.       Recapitulation                 (para. 50) .................................. 7   APPENDIX I       :   HISTORY OF THE PROCEEDINGS ............... 9   APPENDIX II      :   DECISION ON THE ADMISSIBILITY ............ 10     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 a Swedish citizen born in 1932 and resident at Mellerud.   She is a farmer by profession.   She is represented before the Commission by Mr.   Rune Lanestrand who is a farmer and journalist.   3.       The application is directed against Sweden.   The Government are represented by their Agent, Mr.   Hans Corell, Ambassador, Under-Secretary at the Ministry for Foreign Affairs, Stockholm.   4.       The case concerns the refusal to grant the buyers of an agricultural property sold by the applicant a permit to acquire the property.   It raises issues under Article 1 of Protocol No. 1 to the Convention and Article 6 of the Convention.   B.       The proceedings   5.       The application was introduced on 28 October 1986 and registered on 5 December 1986.   On 4 July 1988 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 14 October 1988 their observations in writing on the admissibility and merits of the application.   6.       The Government's observations were dated 12 October 1988 and the applicant's observations in reply were dated 30 November 1988.   7.       On 13 April 1989 the Commission declared the application admissible.   8.       The parties were then invited to submit any additional observations on the merits of the application which they wished to make.   9.       The applicant submitted observations by letter of 21 June 1989 and the Government submitted further observations on 18 July 1989.   10.      On 7 October 1989 the Commission decided to adjourn the examination of the case pending judgment of the European Court of Human Rights in the case of Håkansson and Sturesson.   The Court delivered judgment in that case on 21 February 1990 (Eur.   Court H.R., Håkansson and Sturesson judgment of 21 February 1990, Series A No. 171).   The parties were then invited to submit comments in the light of this judgment.   11.      The applicant submitted comments by letter dated 3 April 1990 and, on 4 April 1990, the Government submitted further observations in the light of the Court's judgment.   12.      On 12 May 1990 the Commission considered the state of proceedings of the case.   13.      On 3 July 1990 the Commission deliberated on the merits of the application and took the final votes in the case.   14.      After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.       The present Report   15.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                MM.   C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES   16.      The text of this Report was adopted on 3 July 1990 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   17.      The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention.   18.      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 as Appendix II.   19.      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.       The particular circumstances of the case   20.      The applicant and her brothers own an agricultural property called Hinsetakan 1:23 in the municipality of Vänersborg.   They have tried to sell the property three times since 1983, but on each occasion the Agricultural Committee (lantbruksnämnden) of the County 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 (1) of the 1979 Land Acquisition Act (jordförvärvslagen, in its wording before 1 July 1987), for the acquisition of real estate, which is assessed for tax purposes as agricultural property.   If a permit is refused the purchase becomes void.   21.      On 30 August 1985 Hinsetakan 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 Hinsetakan 1:23 to the Agricultural Committee.   22.      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 Hinsetakan 1:23 should be 255,000 SEK.   23.      The buyers were given the opportunity to comment upon the letter of the Committee.   24.      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.   25.      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 Hinsetakan 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."   26.      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 Hinsetakan 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 their 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.   B.       Relevant domestic law   27.      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.   28.      Under Section 1 of the Act, in its wording before 1 July 1987, 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).   29.      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.   30.      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).   31.      In the event that 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, where 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).   III.   OPINION OF THE COMMISSION   A.       Points at issue   32.      The principal issues to be determined are:           -        whether there has been a violation of the applicant's                 property rights as guaranteed by Article 1 of Protocol                 No. 1 (P1-1) of the Convention;           -        whether Article 6 para. 1 (Art. 6-1) of the Convention                 was applicable to the dispute which arose over the                 question whether the buyers of the applicant's                 property should be granted a permit to retain the                 agricultural property they had bought and, if so,                 whether there has been a violation of this                 provision.   B.       Article 1 of Protocol No. 1 (P1-1) to the Convention   33.      Article 1 of Protocol No. 1 (P1-1) provides:           "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."   34.      The applicant has complained of being prevented from selling her property by the refusal of a permit by the Agricultural Committee and of the artificial market price which has been determined for her property.   She submits that this is in violation of the above provision.   35.      The Government submit that the applicant has not been deprived of her property, but subject to a control of the use of property which is necessary in the general interest of the rationalisation of agriculture.   They refer to the wide margin of appreciation accorded to Contracting States and submit that the system does not impose an undue burden on the applicant.   36.      The Commission considers that in principle the right guaranteed by Article 1 of Protocol No. 1 (P1-1) includes the owner's right to sell the property.   Consequently, the refusal in the present case to grant the buyers of the property at issue a permit to acquire it constituted an interference with the applicant's right to the peaceful enjoyment of her possessions as guaranteed by Article 1 of Protocol No. 1 (P1-1).   However, although the applicant was prevented from selling her property at a certain price to the buyers of her choice, she was not prevented from keeping it.   In the Commission's view, the interference complained of cannot be characterised as a deprivation of property, but as a control of the use of property.   The question whether it was justified must therefore be examined under the second paragraph of Article 1 of Protocol No. 1 (P1-1) to the Convention.   37.      The Commission must determine whether the control was "in the general interest", which requires an examination of the lawfulness and purpose of the interference and the proportionality of the inter- ference (see e.g. Eur. Court H.R., Tre Traktörer AB judgment of 7 July 1989, Series A. No. 159, p. 22-24, paras. 56-62).   38.      The Commission notes that the decisions taken were based on the provisions of the 1979 Land Acquisition Act, notably Sections 1 and 4 of the Act.   The Commission further recalls that certain aspects of the price-control system on the sale of land established under that Act were examined by the Court in the case of Håkansson and Sturesson (Eur. Court H.R., Håkansson and Sturesson judgment of 21 February 1990, Series A No. 171) and that the Court did not find any conflict to exist between that system as applied in the said case and Article 1 of Protocol No. 1 (P1-1) (loc. cit., paras. 52-54).   In the case of Håkansson and Sturesson, the issue arising under that Article was one of deprivation of property, while the present case concerns "control" of "the use of property" within the meaning of the second paragraph of the Article.   39.      The objectives of the Land Acquisition Act are, in particular, to create and preserve effective family holdings so as to strengthen the connection between cultivation and ownership, and also to promote rationalisation of agriculture and forestry.   The control of prices is an important element to promote these aims.   The Commission considers these aims to be legitimate for the purpose of Article 1 of Protocol No. 1 (P1-1).   It is satisfied that the decisions of which the applicant complains were taken in order to promote the aims of the Land Acquisition Act and that they were lawful.   40.      As regards the proportionality of the interference the Commission recalls that the second paragraph of Article 1 of the Protocol (P1-1) has to be construed in the light of the general principle set out in the first sentence of this Article (P1-1) (Eur. Court H.R., James and Others judgment of 21 February 1986, Series A No. 98, p. 17, para. 37).   This sentence has been interpreted by the Court as including the requirement that a measure of interference should strike a "fair balance" between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September 1982, Series A No. 52, p. 26, para. 69).   The search for this balance is reflected in the structure of Article 1 (Art. 1) as a whole and hence also in the second paragraph.   There must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised (James and Others judgment, loc.cit., p. 22, para. 50).   41.      The Commission has taken into account that a wide margin of appreciation is enjoyed by the State when choosing means to control property in the general interest.   The system of control of purchase prices of agricultural property established under the Land Acquisition Act cannot be considered to go beyond that margin of appreciation.   As regards the application of that system to the present case the Commission notes that the purchase price of the applicant's property was 300,000 SEK whereas its value according to the assessment made by the Agricultural Committee was 255,000 SEK.   It has not been shown that this valuation was unreasonable.   Considering that the applicant could presumably have sold the property to someone else, or could have had it redeemed by the State under Section 14 of the Land Acquisition Act, at a price reasonably related to its value, and that in any case she could keep the property, the Commission finds that the decisions complained of were not disproportionate to the legitimate aims pursued.   Conclusion   42.      The Commission concludes unanimously that there has been no violation of Article 1 of Protocol No. 1 (P1-1);   C.       Article 6 (Art. 6) of the Convention   a.       Applicability of Article 6 para. 1 (Art. 6-1) of the Convention   43.      Article 6 para. 1 (Art. 6-1) first sentence reads, insofar as relevant, as follows:           "In the determination of his civil rights and obligations         ... everyone is entitled to a fair and public hearing within         a reasonable time by an independent and impartial tribunal         established by law."   44.      The Government have recognised the similarity of the present case with the case of Håkansson and Sturesson (Eur. Court H.R., loc.cit.), in which the Court found that "civil rights and obligations" were at stake in the disputes before the administrative authorities concerning the permit issue.   The Commission finds that in the present case the refusal to grant the buyer a permit to acquire the applicant's property, including the valuation of the property, concerned the applicant's "civil rights".   Furthermore, the Commission considers that there was a dispute concerning the lawfulness under Swedish law of the decisions taken (cf para. 26).   45.      Consequently, Article 6 para. 1 (Art. 6-1) of the Convention applied to the dispute over the refusal to grant the buyer a permit to acquire the property.   46.      The Government argue that the applicant has waived her right 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.   47.      The Commission disagrees.   The fact that in the purchase contract the permit procedure is foreseen cannot be interpreted as a waiver by the applicant of the rights guaranteed to her by Article 6 para. 1 (Art. 6-1) in the case of a dispute over the lawfulness under Swedish law of the decision to refuse the permit.   b.       Compliance with Article 6 para. 1 (Art. 6-1) of the Convention   48.      The Commission recalls that the dispute in question, as in the Håkansson and Sturesson case (loc.cit., para 63) was decided by the administrative authorities, including the Government at final instance. It finds that these decisions were not open to review before the ordinary courts or the administrative courts, or any other body which could be considered to be a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   Conclusion   49.      The Commission concludes unanimously that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   D.       Recapitulation   50.   -        The Commission concludes unanimously that there has been no violation of Article 1 to Protocol No. 1 (P1-1) to the Convention (para. 42)   -        The Commission concludes unanimously that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 49).     Secretary to the Commission                 President of the Commission            (H.C. KRÜGER)                              (C.A. NØRGAARD)                                   APPENDIX I                           HISTORY OF PROCEEDINGS   Date                             Item   ______________________________________________________________________     28.10.86                         Introduction of the application   05.12.86                         Registration of the application   Examination of Admissibility   04.07.88                         Commission's deliberations and                                 decision to invite the Government to                                 submit observations in writing   12.10.88                         Government's observations   30.11.88                         Applicant's observations in reply   13.04.89                         Commission's deliberation                                 and decision to declare the                                 application admissible   Examination of the merits   21.06.89                         Applicant's observations on the merits   18.07.89                         Government's observations on the merits   07.10.89                         Commission's decision to adjourn the                                 case pending the case of Håkansson                                 and Sturesson before the European                                 Court of H.R.   21.02.90                         Court's judgment in the case of                                 Håkansson and Sturesson   03.04.90                         Applicant's letter   04.04.90                         Government's further observations   12.05.90                         Commission's consideration of the                                 state of proceedings   03.07.90                         Commission's deliberations on the                                 merits, final votes and adoption of                                 the Report