CEDH · CASELAW;REPORTS;ENG — 5 mars 1991

.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   SECOND CHAMBER   Application No. 12318/86   Rolf WOLLART   against   SWEDEN   REPORT OF THE COMMISSION   (adopted on 5 March 1991)   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. 11-13) ...................................    2     II.   ESTABLISHMENT OF THE FACTS (paras. 14-29) ............    3        A.   The particular circumstances of the case          (paras. 14-20) ...................................    5        B.   Relevant domestic law          (paras. 21-29) ...................................    5     III. OPINION OF THE COMMISSION (paras. 30-45) .............    7        A.   Complaints declared admissible (para. 30) ........    7        B.   Points at issue          (para. 31) .......................................    7        C.   Article 6 of the Convention          (paras. 32-40) ...................................    7        D.   Article 13 of the Convention (paras. 41-43).......    8        E.   Recapitulation (paras. 44-45) ....................    8     APPENDIX I   :   HISTORY OF THE PROCEEDINGS .................    9   APPENDIX II :   PARTIAL DECISION ON THE ADMISSIBILITY ......   10   APPENDIX III:   FINAL DECISION ON THE ADMISSIBILITY ........   16   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 1931 and resident in Stockholm.   He is represented before the Commission by Mr.   Olof Nyström, a lawyer practising in Stockholm.   3.       The application is directed against Sweden.   The Government are represented by their Agent, Mr.   Carl Henrik Ehrenkrona, Legal Adviser at the Ministry for Foreign Affairs, Stockholm.   4.       The case relates to the absence of a court review with regard to a dispute over a refusal to grant the applicant a building permit.   It raises issues under Articles 6 para. 1 and 13 of the Convention.     B.       The proceedings   5.       The application was introduced on 30 May 1986 and registered on 5 August 1986.   The Commission decided on 8 September 1988 to adjourn the examination of the applicant's procedural complaint regarding the Government's decision of 16 January 1986 and to declare inadmissible the remainder of the application (see Appendix II).   The adjourned part of the application was communicated to the Government for written observations on the admissibility and merits of the complaints under Articles 6 and 13 of the Convention.           The Government's observations were dated 2 December 1988 and the applicant's observations in reply were dated 5 April 1989.   6.       On 10 July 1989 the Commission declared the remainder of the application admissible.   The Commission also decided to adjourn the further examination of the case until the European Court of Human Rights had delivered judgment in the case of the Estates of Mr. and Mrs.   Skärby and their heirs and children.   On 28 June 1990 the Court delivered judgment in the Skärby case (Eur.   Court H.R., Skärby judgment of 28 June 1990, Series A no 180-B).   7.        On 5 July 1990 the parties were invited to submit any additional observations they wished to put before the Commission.   The Government submitted observations by letter dated 30 August 1990 and the applicant submitted a letter dated 11 September 1990.   Further observations from the applicant were received on 19 November 1990 and from the Government on 20 December 1990.   8.      On 25 February 1991 the Commission decided to refer the case to the Second Chamber. 9.      After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (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   10.      The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                  MM.   S. TRECHSEL, President of the Second Chamber                   G. JÖRUNDSSON                   A. WEITZEL                   H. G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              MM.   F. MARTINEZ              Mrs.   J. LIDDY                   J.-C. GEUS                   M.P. PELLONPÄÄ             The text of the Report was adopted by the Commission on 5 March 1991 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   11.      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.   12.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decisions on the admissibility of the application form Appendices II and III.   13.      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   14.      The applicant owns the property Oppsätra 1:5 situated approximately 50 kilometres outside Stockholm in the Municipality of Österåker (previously the Municipality of Vaxholm).   Having obtained a building permit in 1979, he built a leisure house of 60 square metres on the property.   The house was inspected and approved by the municipality in February 1982 in spite of the fact that the applicant had in some respects deviated from the building permit.   15.       A few months later the applicant applied to the Building Committee (byggnadsnämnden) of Vaxholm for a new building permit.   On 16 November 1982 the Building Committee rejected that application finding no reason to grant exemption from the applicable prohibition of urban development.   It further ordered the applicant under the threat of a penalty of 40,000 SEK to alter the building so that it conformed with the building permit issued in 1979.   The Committee also decided, in accordance with the Act on Penalties and Interventions in Cases of Illegal Construction etc. (lagen om påföljder och ingripanden vid olovligt byggande m.m.), to impose on the applicant a building fee of 8,800 SEK and, in accordance with the same Act, to transmit to the public prosecutor for examination the question of a supplementary fee.   The decision of the Building Committee states inter alia the following:   " On the property there is a leisure house with a building area of 95 square metres and a gross area of 119 square metres.   The building has been erected on the basis of a building permit issued on 15 May 1979.   When the building was erected the building permit was not respected in the sense that the roof of the building was prolonged, a five metre long wall was erected as a terrace, a cellar was created with a window and inside staircase.   As a result of the illegal measures, the gross area of the building has been increased by 59 square metres in excess of what was permitted under the building permit.   Consequently, the building is now in conflict with the guidelines in the municipality's area plan concerning restrictions of building areas with the aim of preventing permanent settlement within areas which are not planned for this.   The building has been made considerably more suited for permanent living than foreseen in the building permit.   The applicant has even stated that he now lives permanently in the building.   In these circumstances the Building Committee finds that the building is to be considered as a completely new construction when examining the question of a supplementary fee under the Act on Penalties and Interventions in Cases of Illegal Construction etc.   The property owner has been given an opportunity to correct what he has done and to avoid penalties under the said Act.   He has, however, requested that his pending application for a building permit, which inter alia covers some of the unlawful constructions, shall be dealt with immediately.   He requests permission to alter the construction and to add a living room and the previously mentioned cellar with an inside staircase and window. ...   The proposed constructions comprise 85 square metres gross area of which 59 square metres concern the cellar.   The construction proposed is to be regarded as urban development.   Exemption from the prohibition against urban development under Section 56 of the Building Ordinance (byggnadsstadgan) is therefore required.   According to the guidelines for the examination of questions of building permits in the area plan adopted by the municipality, the prohibition of urban development should be applied restrictively so as to limit the gross areas of buildings to, at the most, 60 square metres for leisure houses and 30 square metres for out-houses in cases where exemption from the prohibition is granted.   The aim of the restrictions is to prevent permanent living in areas which have not been planned for this.   The constructions are in conflict with the guidelines of the area plan of the municipality."   16.      As a result of a letter from the applicant dated 10 January 1983, the Building Committee reconsidered the previous decision of 16 November 1982.   However, on 22 March 1983 the Building Committee decided to maintain its previous decision and ordered that the applicant should have the construction altered within five months from receipt of the decision.   17.      The applicant appealed to the County Administrative Board (länsstyrelsen) of the Stockholm County.   He claimed that the Board should quash the decision to refuse a building permit, grant him exemption from the prohibition of urban development and quash the order under the threat of a penalty to change the building in accordance with the building permit previously granted.   In support of his appeal, the applicant submitted that the municipality's area plan did not have any legal effect and that permanent living in a leisure house was not unlawful.   On 30 November 1983 the County Administrative Board upheld the Building Committee's decision.   It stated inter alia:   "The measures under examination   - both those which have been carried out and those for which permission is requested - are to be considered as erection of new buildings (Section 54 para. 1 and Section 75 of the Building Ordinance) and involve urban development within the meaning of the Building Act (byggnadslagen) in view of the fact that by the measures the leisure house would be transformed into a permanent dwelling in particular as a result of the considerable addition of living area.   There are no special reasons justifying an exemption in order to allow these measures.   The County Administrative Board therefore finds that the Building Committee's order under penalty of 40,000 SEK to modify the construction so as to comply with the building permit of 15 May 1979 shall be upheld.   Thus the cellar should be refilled... the staircase should be taken away and the opening as well as the windows in the cellar shall be taken away.   The terrace and the roof shall be reduced."   18.      The applicant lodged a further appeal with the Administrative Court of Appeal (kammarrätten) of Stockholm.   On 30 May 1985, the Administrative Court of Appeal decided that since the appeal included the question of an exemption from certain regulations concerning urban development the appeal should, as a whole, be examined by the Government.   In accordance with Section 9 of the Act on Administrative Courts (lagen om allmänna förvaltningsdomstolar), the Administrative Court of Appeal decided to transmit the appeal to the Government.   In the decision the Administrative Court of Appeal stated as its opinion that, provided that the Government granted the required exemption, it had no objection to a building permit being granted.   If exemption were not granted the Administrative Court of Appeal suggested that the Government should reject the appeal and that the time-limit within which the order should be executed should be fixed at four months from receipt of the Government's decision.   19.      On 16 January 1986, after having received further arguments from the applicant, the Government (the Ministry of Housing) rejected the applicant's appeal.   The Government agreed with the assessment of the County Administrative Board and decided that the order should be executed within four months from the applicant's receipt of the Government's decision.   The Government noted that the examination in the case did not concern the extension of the roof and the terrace which had been accepted by the Building Inspector according to the minutes of 2 February 1982.   20.      Subsequently, on 10 November 1987 the applicant was granted a building permit for reconstruction of the cellar with windows and an inside staircase.   This decision was made under the 1987 Plan and Building Act (plan- och byggnadslagen).   B.       Relevant domestic law   21.      Until 1 July 1987 a property owner's rights to build on his property were regulated by the 1947 Building Act and the 1959 Building Ordinance.   On 1 July 1987 the Plan and Building Act replaced the 1947 Act.   22.      Section 1 of the 1947 Act provided that constructions on a property required a building permit to the extent laid down by the Government.   Section 54 of the 1959 Ordinance specified that a permit was required for all new constructions except for the construction of certain buildings.   23.      Before a building could be erected on a property, Section 5 of the 1947 Act called for an examination of whether the property was suitable from a general point of view for this purpose.   Such an examination was to be effected by planning procedure, except for non-urban areas where it could be made when an application for a building permit was under consideration.   24.       Regulations for non-planned areas (i.e. areas not covered by a town or a building plan) inter alia prohibited the construction of new buildings on properties which were not found to be suitable in the general interest for this purpose.   25.        Under Section 56 of the 1959 Ordinance, the authorities could not grant permits for new constructions which would result in urban development (tätbebyggelse) within an area not covered by a town plan   or a building plan.   However, under Section 67 para. 1 of the Ordinance an exemption could be granted from this prohibition if there were special reasons.   26.      Applications for building permits were to be filed with the local building committee.   If an application concerned a property subject to a building prohibition, it was in practice considered as including also an application for exemption from the prohibition.   The applicant could, however, choose to apply for an exemption only, in order to apply for a permit when the question of exemption had been resolved.   27.      The examination of an application for a building permit involved ascertaining that the intended building would not run counter to any confirmed plan, to the regulations for non-planned areas, or to a building prohibition, and that it satisfied technical demands on construction.   In the absence of such obstacles, a permit should have been granted.   28.      Decisions by the Building Committee to refuse building permits or exemptions from building prohibitions could be appealed to the County Administrative Board.   29.      Appeals against the Board's decisions lay to the Government as regards exemptions from building prohibitions and to the Administrative Court of Appeal as regards building permits.   In the latter case a further appeal to the Supreme Administrative Court (regeringsrätten) could be lodged if leave to appeal was granted.   If the Board decided both questions, appeals were to be lodged with the Administrative Court of Appeal.   If this Court found that the construction did not require any exemption from a building prohibition, it would proceed to examine the permit question. Otherwise, the Court would transfer the case to the Government for the final decision, together with an opinion on the permit issue.   III.     OPINION OF THE COMMISSION   A.       Complaints declared admissible   30.      The Commission has declared admissible the applicant's complaints regarding the absence of a court review in respect of the Government's decision of 16 January 1986 confirming the refusal of a building permit and the restoration order.   B.       Points at issue   31.      The issues to be determined are:   -        whether there has been a violation of Article 6 para. 1         (Art. 6-1) of the Convention;   -        whether there has been a violation of Article 13         (Art. 13) of the Convention.   C.       Article 6 (Art. 6) of the Convention   32.      The applicant alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention on the ground that no court review was available in respect of the Government's decision of 16 January 1986. The Government admit that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention as alleged by the applicant.   33.      Article 6 para. 1 (Art. 6-1) first sentence reads, insofar as relevant:   "In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law."   34.      The Commission recalls that the absence of the right to a court review in the context of the 1947 Building Act and the 1959 Building Ordinance has previously been examined by the Convention organs.   Reference is made in particular to the Sporrong and Lönnroth case (Eur.   Court H.R., Sporrong and Lönnroth judgment of 23 September, 1982, Series A no. 52), the Allan Jacobsson case (Eur.   Court H.R., Allan Jacobsson judgment of 25 October 1989, Series A no. 163), the Mats Jacobsson case (Eur.   Court H.R., Mats Jacobsson judgment of 28 June 1990, Series A no. 180-A) and the Skärby case (Eur.   Court H.R., Skärby judgment of 28 June 1990, Series A no. 180-B).   35.      The Commission considers that in the present case the applicant could arguably claim to have a "right" to a building permit subject to the conditions laid down in the 1947 Act and the 1959 Ordinance.   It is further of the opinion that a serious dispute of a genuine nature arose over that right.   Moreover, the right claimed was "civil" in character (see above-mentioned Skärby judgment, p. 37, para. 29).   The Commission further notes that the outcome of this dispute would also determine whether or not the restoration order would be upheld.   36.      Consequently, Article 6 para. 1 (Art. 6-1) is applicable.   37.      The Government concede that the applicant did not have available a procedure satisfying the conditions of Article 6 para. 1 (Art. 6-1) of the Convention.   38.      The Commission recalls that the Government determined the dispute in the last restort.   The proceedings before the Government did not, in the Commission's view, constitute proceedings before a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1). Furthermore, the Government's decision was not open to an ordinary review by the courts or by any other body which could be considered to be a "tribunal" for the purposes of Article 6 para. 1 (Art. 6-1).   39.      It follows that the applicant did not have at his disposal a procedure satisfying the requirements of Article 6 para. 1 (Art. 6-1) with regard to the dispute over the refusal to grant him a building permit and the restoration order.           Conclusion   40.      The Commission concludes, by a unanimous vote, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     D.     Article 13 (Art. 13) of the Convention   41.      The applicant also maintains that he had no effective remedy before a national authority.   He relies on Article 13 (Art. 13) of the Convention which provides:        "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."   42.      Having regard to its above conclusion under Article 6 para. 1 (Art. 6-1) (para. 40), the Commission considers that it is not necessary to examine the case under Article 13 (Art. 13).   The requirements of Article 13 (Art. 13) are less strict than, and are here absorbed by, those of Article 6 para. 1 (Art. 6-1) (see, inter alia the above-mentioned Sporrong and Lönnroth judgment, p. 31, para. 89).           Conclusion   43.      The Commission concludes, by a unanimous vote, that it is not necessary to examine separately whether there has been a violation of Article 13 (Art. 13) of the Convention.     E.     Recapitulation   44.      The Commission concludes, by a unanimous vote, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 40).   45.      The Commission concludes, by a unanimous vote, that it is not necessary to examine separately whether there has been a violation of Article 13 (Art. 13) of the Convention (para. 43).     Secretary to the Second Chamber          President of the Second Chamber             (K. ROGGE)                              (S. TRECHSEL) APPENDIX I     HISTORY OF PROCEEDINGS     Date                             Item   ______________________________________________________________________   30 May 1986                      Introduction of the application     5 August 1986                   Registration of the application   Examination of Admissibility     8 September 1988                Commission's decision to invite                                 the Government to submit                                 observations in writing on the                                 admissibility and merits of the                                 complaints under Articles 6 and 13                                 of the Convention relating to the                                 Government's decision of 19 January 1986                                 and decision to declare inadmissible                                 the remainder of the application.     2 December 1988                 Government's observations     5 April 1989                    Applicant's observations in reply   10 July 1989                     Decision to declare the remainder of                                 the application admissible.   Examination of the merits   10 July 1989                     Commission's decision to adjourn                                 further examination until the European                                 Court of Human Rights had delivered                                 judgment in the Skärby case.   28 June 1990                     The Court delivers judgment in the Skärby                                 case (Series A no. 180-B)     5 July 1990                     Parties invited to submit further                                 observations on the merits   30 August 1990 and               Government's further observations 20 December 1990   11 September 1990 and            Applicant's further observations 19 November 1990     6 October 1990 and              Commission's consideration of the   8 December 1990                 state of proceedings   25 February 1991                 Decision to refer the application                                 to the Second Chamber   5 March 1991                     Commission's deliberations on the                                 merits, final vote and adoption of                                 the Report