CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 octobre 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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 14944/89                       by Bertil and Ingeborg HOLM                       against Sweden             The European Commission of Human Rights sitting in private on 17 October 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   H.G. SCHERMERS                   H. DANELIUS              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                Mr.   H.C. KRÜGER, Secretary to the Commission              Mr.   J. RAYMOND, Deputy 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 6 November 1988 by Bertil and Ingeborg HOLM against Sweden and registered on 26 April 1989;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The first applicant is a Swedish citizen born in 1932.   The second applicant is a German citizen born in 1931.   They are husband and wife and resident at Västra Frölunda.           The facts of the case, as submitted by the applicants, may be summarised as follows.   Particular circumstances of the case           The first applicant owns a property named Viken 6:18 and the second applicant owns the neighbouring property Viken 6:22.   Both properties are situated in the municipality of Kungsbacka (until 1974 Onsala).           From 1964 a building plan has been in force in the area, to the effect that the maximum building surface allowed on a property is 100 m2, 60 m2 of which may be used for the main building.   Only one-storey buildings are allowed.           On 16 August 1974 the County Administrative Board (läns- styrelsen) of Halland issued a building prohibition under Section 110 of the 1947 Building Act (byggnadslagen, hereinafter "the 1947 Act") pending the development of the water and sewage systems.   a. The first applicant's property Viken 6:18           The first applicant purchased the property Viken 6:18 in 1965. In 1967 he erected a leisure house of 49 m2 and in 1971 a garage of 18 m2 on the property.           In 1973 he requested permission by the Building Committee (byggnadsnämnden) of Onsala to construct an annex to the leisure house.   On 17 December 1973 the Building Committee asked the applicant to complement his request with a situation plan and a sketch of the annex, as well as an approval of the Health Care Board (hälsovårds- nämnden).   The Building Committee made no remark as to the total building surface requested.           On 24 June 1975 the Building Committee of Kungsbacka rejected the request, noting that it did not comply with the building plan and having regard to Section 110 para. 2 of the 1947 Act.   It noted that the existing leisure house had a surface of 62 m2, the outhouse a surface of 18 m2 and the proposed annex a surface of 34 m2, the total building surface thus amounting to 114 m2.           On 3 June 1976 the first applicant's appeal was dismissed by the County Administrative Board, noting that no appeal lay against a Building Committee's refusal of an exemption from a building plan.   Upon a further appeal by the applicant the Administrative Court of Appeal (kammarrätten) of Gothenburg on 21 October 1977 referred the matter to the Government.   On 17 November 1977 the Government (Ministry of Housing) rejected the appeal.           The applicants have submitted a copy of the sketches of the leisure house as approved by the Building Committee in 1967.   According to this document the building surface is 49 m2. b. The neighbouring property Viken 6:16           On 18 June 1973 the owner of the property Viken 6:16, a neighbouring property to Viken 6:22,   was granted an exemption from the building plan permitting him to extend his leisure house of 74,8 m2 by 31,2 m2 on two floors, the total building surface amounting to 106 m2.   The leisure house had been erected in 1965.           The second applicant appealed against this decision to the County Administrative Board, alleging inter alia that the building surface and the number of floors permitted were not compatible with the building plan.           In its opinion to the County Administrative Board the Building Committee of Kungsbacka objected to the appeal, stating that according to the decision of the Building Committee of Onsala the building surface permitted by means of the exemption amounted to only 100 m2, the surface of the main building being 60 m2 and the surface of the outhouse 40 m2.           On 2 September 1976 the appeal was rejected following an inspection on the spot.   The County Administrative Board found that the building surface of the main building on the property was a reasonably acceptable derogation from the building plan.   It noted, however, that the Building Committee should have heard the second applicant before granting the exemption.   It further found that, although a certain justification could be found for the appeal, these reasons were not sufficient for quashing the Building Committee's decision.   It further noted that it was for the Building Committee to decide whether any measures should be taken because of the alleged derogations from the building plan.           Following the second applicant's appeal the Administrative Court of Appeal referred the matter to the Government.   On 1 December 1977 the appeal was rejected.           A further appeal against the Building Committee's decision of 18 June 1973 lodged by the first applicant was rejected by the County Administrative Board on 23 November 1977.   His subsequent appeal to the Administrative Court of Appeal was referred to the Government.   On 8 February 1979 the Government rejected the appeal.           In February 1983 the applicants requested that the Building Committee take measures to make the construction on Viken 6:16 comply with the sketches of the house as approved in the building permit. They submitted inter alia that the actual total building surface amounted to 138 m2 instead of the allowed 106 m2 and that a basement floor had been constructed, this not being in accordance with the building permit.   They further alleged that after eight years from their first similar request the Building Committee had still not taken any measures.           On 1 July 1983 the Building Committee approved new sketches for the house, finding inter alia that the basement floor could be considered a storage room.   In September 1983 the second applicant lodged an appeal against this decision and requested that she be allowed to present the grounds for her appeal after the outcome of her request for an exemption from the building plan, this request being similar to the one submitted by the owner of Viken 6:16 in regard to the building surface and the number of floors.         On 8 August 1985 the County Administrative Board rejected the appeal, as the second applicant had not submitted any claims in the matter.   She appealed against this decision to the Administrative Court of Appeal.   She further alleged that no notice of appeal had been enclosed with the decision.           The second applicant subsequently reported the County Administrative Board to the Parliamentary Ombudsman (justitie- ombudsmannen).   In his decision of 4 September 1987 the Ombudsman noted inter alia that the Building Committee in its opinion of January 1985 to the County Administrative Board had stated that the file pertaining to the second applicant's appeal had disappeared from the office of the Town Architect (stadsarkitekten), following which the County Administrative Board had reconstructed the matter.   The Ombudsman strongly criticised the reconstruction, as the County Administrative Board, before concluding that the second applicant had no claims in the matter, had not asked her to submit a copy of her submissions to the Board or to make new submissions.           In November 1985 the file in the case was found and sent back to the County Administrative Board.           On 5 April 1988 the Administrative Court of Appeal dismissed the second applicant's appeal againt the decision of 8 August 1985 as being out of time.           On 2 December 1988 the Supreme Administrative Court (regeringsrätten) restored the time-limit for appeal.           On 24 April 1989 the Administrative Court of Appeal, following an inspection on the spot, rejected the second applicant's appeal against the decision of 8 August 1985, noting inter alia that, even assuming that derogations from the sketches and the building permit had taken place, any further measures were statute-barred, as the work had been carried out more than ten years ago.   It further referred to the County Administrative Board's decisions of 2 September 1976 and 23 November 1977 rejecting the applicants' respective appeals against the exemption from the building plan.           On 16 October 1989 the Supreme Administrative Court refused leave to appeal.   c. The second applicant's property Viken 6:22           On 30 April 1974 the second applicant purchased the neighbouring property Viken 6:22.           On 6 May 1976 the Building Committee under Section 110 para. 2 of the 1947 Act rejected her request for an exemption from the building prohibition for the construction of a main building of 60 m2 and a guest house of 40 m2.   Her subsequent appeal to the County Administrative Board was rejected on 15 July 1976.           On 8 February 1979 the Government quashed previous decisions in the matter, finding that the building prohibition should not prevent the examination of the second applicant's request for a building permit.   The Government referred to provisional guidelines for the consideration of requests for building permits approved by the Building Committee in May 1978 according to which the normal practice of the Building Committee had been to grant an exemption, provided that the proposed installations in the buildings had been approved by the Health Care Board (hälsovårdsnämnden).   The Government noted that the second applicant had obtained such an approval already in 1975.         On 27 March 1979 the Building Committee by way of exemption from the building prohibition granted the second applicant a permit to erect a one-storey leisure house of 60 m2 and an outhouse of maximum 40 m2.           In April 1984 the second applicant lodged a request for a permit for the erection of a leisure house including a ground floor of 104 m2 and a basement floor of 31 m2, referring to the building permit granted to the owner of Viken 6:16 and claiming that the building surface that she requested to be approved was smaller than that approved in regard to Viken 6:16.           On 10 May 1984 the Building Committee informed the second applicant that a building permit for the construction of a leisure house and an outhouse with a building surface of 100 m2 in all could be granted, provided that the sewage system on the property was approved by the Office for Environmental and Health Protection (miljö- och hälsoskyddskontoret).           In March 1988 the second applicant requested a decision in advance (förhandsbesked) from the Building Committee on a new request, including sketches similar to the ones approved for Viken 6:16, and referring to the approval of the Office for Environmental and Health Protection.           In its comments of 15 April 1988 the Office of the Town Architect stated that her request did not comply with the building plan in respect of the maximum building surface and that it should therefore not be granted.           In her subsequent submissions to the Building Committee the second applicant referred to the exemption granted in 1973 to the owner of Viken 6:16, the building surface in that case amounting to 106 m2.   She further referred to the revised sketches for the main building on Viken 6:16 approved by the Building Committee in 1983, considering the basement floor as a storage room which had been constructed in accordance with the building plan.           On 24 May 1988 the Building Committee stated that, in view of existing plans, it could not support the second applicant's request for an exemption concerning construction on a total building surface of 106 m2, thus exceeding the surface allowed in the building plan.   Relevant domestic law           A property owner's right to erect buildings on his property was up to 1 July 1987 regulated in the 1947 Act and the 1959 Building Ordinance (byggnadsstadgan, hereinafter "the 1959 Ordinance"). Section 1 of the 1947 Act provided that construction on a property required a building permit, insofar as this followed from rules laid down by the Government.   Such rules were to be found in Section 54 of the 1959 Ordinance.   A permit was required for all new constructions, except certain buildings for public use, or smaller additions to existing residences and farms or smaller houses on such estates.           Under Section 71 para. 1 of the 1947 Act no appeal lay against the Building Committee's refusal of an exemption from inter alia a building plan.   Under Section 110 para. 2, a County Administrative Board could prescribe that new constructions in an area covered by a building plan should not take place without its permission before adequate roads, water supplies and sewage systems had been provided.           On 1 July 1987 the above legislation was replaced by the 1987 Plan and Building Act (plan- och bygglagen, hereinafter "the 1987 Act").           Under Chapter 8, Sections 1 and 19 construction of inter alia a new building or an extension to an already existing building requires, with certain exceptions, a permit from the Building Committee.   Under Section 11 para. 1 a permit shall be granted provided the construction is not contrary to a detailed plan.   Under para. 5 a building permit may be granted for construction which is only in minor contravention of a detailed plan or a property unit plan (fastighetsplan), provided that the construction is compatible with the purpose of the plan.           Under Chapter 13, Section 2, para. 1 and Section 4 para. 2 of the 1987 Act a refusal to grant a building permit may be appealed against to the County Administrative Board and henceforth to the Administrative Court of Appeal.   Section 2, para. 2 provides for an exception as regards questions which have already been decided by way of certain plans or a decision in advance.     COMPLAINTS   1.       The applicants complain that they had no right to a review by an independent and impartial tribunal of the lawfulness of the Building Committee's decisions of 18 June 1973, 24 June 1975, 1 July 1983 and 24 May 1988.   They allege violations of Article 6 para. 1 of the Convention.   2.       The applicants further complain that they have been discriminated against in comparison with the owner of Viken 6:16, as they have been refused building permits for construction, in the second applicant's case for construction which was similar to the one permitted on Viken 6:16; that the Building Committee has not taken any measures against the construction on the property Viken 6:16, although this construction contravenes the conditions set out in the building permit and the approved sketches; and that the Building Committee and the County Administrative Board "made documents disappear" in order to prevent such measures from being taken.   They allege violations of Article 14 of the Convention.   3.       The applicants finally complain that their right to the peaceful enjoyment of their possessions has been violated by the construction permitted on Viken 6:16.   They complain that they have been prevented from building on their properties and, in the second applicant's case, even from construction similar to the one permitted on Viken 6:16.   They allege violations of Article 1 of Protocol No. 1 to the Convention.     THE LAW   1.       The applicants complain that they had no right to a review by an independent and impartial tribunal of the lawfulness of the Building Committee's decisions of 18 June 1973 and 1 July 1983 allowing construction on Viken 6:16, as well as of its refusals of 24 June 1975 and 24 May 1988 of an exemption from the building plan for construction on their respective properties.   They allege violations of Article 6 para. 1 (Art. 6-1) of the Convention, which reads, insofar as it is relevant:           "In the determination of his civil rights and obligations...,         everyone is entitled to a ... hearing ... by an independent         and impartial tribunal established by law..."   (a)      Insofar as the complaint refers to the Building Committee's decisions of 18 June 1973 and 24 June 1975 the Commission is not required to decide whether or not the facts alleged by the applicants disclose any appearance of a violation of the Convention, as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with the matter ... within a period of six months from the date on which the final decision was taken".           In the present case, the final decisions concerning the exemption from the building plan granted to the owner of Viken 6:16 on 18 June 1973 were given by the Government on 1 December 1977 (on the second applicant's appeal) and on 8 February 1979 (on the first applicant's appeal).   The final decision relating to the refusal of 24 June 1975 of an exemption from the building plan for construction on Viken 6:18 was given by the Government on 17 November 1977.   The application was introduced on 6 November 1988, that is more than six months after the above decisions.   Furthermore, an examination of the complaint does not disclose the existence of any special circumstances which might have interrupted or suspended the running of that period.           It follows that the complaint in this respect has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   (b)       Insofar as the complaint refers to the Building Committee's decision of 1 July 1983 approving new sketches for the house on Viken 6:16 the Commission observes that the second applicant had access to the Administrative Court of Appeal of Gothenburg.   The Commission further notes that the first applicant's property was not adjacent to Viken 6:16.   He has not shown that he had a legal interest in appealing against the Building Committee's decisions.   Consequently, he has not shown that he is a "victim" of a violation of Article 6 para. 1 (Art. 6-1) of the Convention within the meaning of Article 25 para. 1 (Art. 25-1).           It follows that the complaint in this respect is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   (c)       Insofar as the complaint refers to the Building Committee's decision of 24 May 1988, the Commission observes that that decision could be appealed against to the County Administrative Board and then to the Administrative Court of Appeal.   Consequently, the applicants had access to judicial review in accordance with Article 6 para. 1 (Art. 6-1) of the Convention also in this regard.           It follows that also in this respect the complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicants allege that they have been discriminated against in comparison with the owner of Viken 6:16, as they have been refused building permits for construction, in the second applicant's case for construction similar to the one permitted on Viken 6:16. They also complain of the Building Committee not having taken any measures against the construction on the property Viken 6:16, although this construction contravenes the conditions set out in the building permit and the approved sketches.   They finally allege that the Building Committee and the County Administrative Board "made documents disappear" in order to prevent such measures from being taken.   They allege violations of Article 14 (Art. 14) of the Convention, which reads as follows:   "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."   (a) Insofar as the complaint relates to the Building Committee's decision of 24 June 1975 refusing a building permit for further construction on the first applicant's property Viken 6:18 as well as to the alleged disappearance of the file pertaining to the second applicant's appeal against the Building Committee's decision of 1 July 1983 it has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   (b)      Insofar as the complaint relates to the Building Committee's decision of 24 May 1988 refusing a building permit for construction on the second applicant's property Viken 6:22, the Commission recalls that Article 14 (Art. 14) complements the other substantive provisions of the Convention and the Protocols.   It has no independent existence, since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions.   Although the application of Article 14 (Art. 14) does not necessarily presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see e.g.   Eur.   Court H.R., Inze judgment of 28 October 1987, Series A no. 126, p. 17, para. 14, with further references).           The Commission has examined the complaint in this respect under Article 14 (Art. 14) of the Convention in conjunction with Article 1 of Protocol No. 1 (P1-1) to the Convention.           For the purposes of Article 14 (Art. 14), a difference of treatment is discriminatory if it "has no objective and reasonable justification", that is, if it does not pursue a "legitimate aim" or if there is not a "reasonable relationship of proportionality between the means employed and the aim sought to be realised".   The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law, but it is for the Convention organs to give the final ruling in this respect (see the above-mentioned Inze judgment, p. 18, para. 41, with further references).           The Commission considers that the purpose of the refusal of the building permit - to make the construction comply with the requirements in the building plan - was lawful and in the general interest.   Furthermore, the refusal was not disproportionate to that purpose.         Having regard to the margin of appreciation enjoyed by the domestic authorities and to the subject-matter, the Commission finds no appearance of discrimination contrary to Article 14 (Art. 14) of the Convention in conjunction with Article 1 of Protocol No. 1 (P1-1) to the Convention.           It follows that the complaint in this respect is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   (c)      The complaint concerning the Building Committee's refusal to take measures against the construction on Viken 6:16 will be examined below under 3 (b).   3.       The applicants finally complain that their right to the peaceful enjoyment of their possessions has been violated by the construction permitted on Viken 6:16.   They complain that they have been prevented from building on their properties and, in the second applicant's case, even from construction similar to the one permitted on Viken 6:16.   They allege violations of Article 1 of Protocol No. 1 (P1-1) to the Convention which reads:   "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."   (a)      The Commission has first examined the applicants' complaint relating to the Building Committee's refusals to grant them building permits, in the first applicant's case by refusing an exemption from the building plan as well as from the building prohibition and, in the second applicant's case, by refusing an exemption from the building plan.   It recalls that Article 1 of Protocol No. 1 (P1-1) comprises three distinct rules.   The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property; the second rule, contained in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions; and the third rule, stated in the second paragraph, recognises that Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest.   The three rules are not "distinct" in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (Eur.   Court H.R., Allan Jacobsson judgment of 25 October 1989, Series A no. 163, p. 16, para. 53).           The Commission considers that the refusal to grant the applicants building permits may be regarded as an interference with the applicants' right to the peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1 (P1-1).   This interference falls to be considered under the second paragraph of Article 1 (Art. 1) as being a measure of control of the use of the applicants' properties.           Under the second paragraph of Article 1 of Protocol No. 1 (P1-1) the Contracting States are entitled to control the use of property in accordance with the general interest by enforcing such laws as they deem necessary for the purpose.   However, there must exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised.   In striking a fair balance between the general interest of the community and the requirements of the protection of the individual's fundamental rights, the authorities enjoy a wide margin of appreciation (above Allan Jacobsson judgment, p. 17, para. 55).           The Commission observes that the refusals of building permits were made under the 1947 Act and the 1987 Act, respectively, and thus had a basis in Swedish law.   The Commission is therefore satisfied that the interference was lawful.           As regards the "general interest" served by the refusals, the Commission recalls that, in the increasingly complex and ever developing society of today, it is indispensable that the use of land be regulated by detailed and careful planning.   It follows that States must have instruments at hand in order to plan or regulate building activities (Sporrong and Lönnroth v.   Sweden, Comm.   Report 8.10.80, para. 111, Eur.   Court H.R., Series B No. 46, p. 50).   The 1947 Act and the 1987 Act and the procedure under them are in principle measures serving the general interest.   The Commission therefore concludes that the refusals served the general interest.           As regards the proportionality between the interference with the applicants' property rights and the aim pursued, the Commission notes that under Section 1 of the 1947 Act and Section 54 of the 1959 Ordinance as well as under Chapter 8, Sections 1 and 19 of the 1987 Act, respectively, anyone wishing to construct a building, with certain exceptions, had to apply for a permit from the Building Committee.   It has not been shown that the Building Committee would have been obliged to grant the applicants building permits.   The Commission does not find it established that the Building Committee's refusals deprived the applicants of any unconditional right to further construction which they had previously enjoyed (cf. above-mentioned Allan Jacobsson judgment, p. 18, para. 60).   Moreover, in 1979 the Building Committee granted the second applicant an exemption from the building prohibition for a building surface of 100 m2, this being the maximum building surface which could be permitted under the building plan.   It appears that in 1984 the Building Committee again favoured construction of such an extent by means of a renewed exemption from the building prohibition.           In view of the wide margin of appreciation enjoyed by the Contracting State in this area the Commission considers that, in the circumstances of the case, the refusals of building permits were not disproportionate to their legitimate purpose.           It follows that the complaint in this respect is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   (b)      Insofar as the complaint relates to the construction permitted on Viken 6:16 as well as to the Building Committee's failure to take measures in order to make the owner of that property comply with the building permit and the approved sketchings the Commission finds no appearance of a violation of Article 1 of Protocol 1 (P1-1).           It follows that the complaint in this respect is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission, unanimously,           DECLARES THE APPLICATION INADMISSIBLE.        Secretary to the Commission       President of the Commission                  (H.C. KRÜGER)                     (C.A. NØRGAARD)