CEDH · CASELAW;REPORTS;ENG — 14 octobre 1992

.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. 14282/88                          Lennart and Gunny ZANDER                                   against                                   SWEDEN                          REPORT OF THE COMMISSION                        (adopted on 14 October 1992)   TABLE OF CONTENTS                                                                    Page I.          INTRODUCTION            (paras. 1 - 15). . . . . . . . . . . . . . . . . . . . . 1              A.     The application                  (paras. 2 - 4) . . . . . . . . . . . . . . . . . . 1              B.     The proceedings                  (paras. 5 - 11). . . . . . . . . . . . . . . . . . 1              C.     The present Report                  (paras. 12 - 15) . . . . . . . . . . . . . . . . . 2   II.         ESTABLISHMENT OF THE FACTS            (paras. 16 - 31) . . . . . . . . . . . . . . . . . . . . 3              A.     The particular circumstances of the case                  (paras. 16 - 23) . . . . . . . . . . . . . . . . . 3              B.     Relevant domestic law and practice                  (paras. 24 - 31) . . . . . . . . . . . . . . . . . 4   III.        OPINION OF THE COMMISSION            (paras. 32 - 49) . . . . . . . . . . . . . . . . . . . . 6                    A.    Complaint declared admissible                       (para. 32). . . . . . . . . . . . . . . . . . 6                    B.    Point at issue                       (para. 33). . . . . . . . . . . . . . . . . . 6                    C.    Article 6 para. 1 of the Convention                       (paras. 34 - 48). . . . . . . . . . . . . . . 6                    D.    Conclusion                       (para. 49). . . . . . . . . . . . . . . . . . 8   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 applicants are husband and wife and both Swedish citizens. Before the Commission they are represented by Mr. Staffan Michelson, a lawyer practising in Stockholm.   3.     The application is directed against Sweden.   The respondent Government are represented by Mr. Carl Henrik Ehrenkrona, legal adviser at the Ministry for Foreign Affairs.   4.     The case concerns the absence of a right to a court review of a decision granting an extended right to treat refuse on a property adjacent to the one owned by the applicants.   The applicants invoke Article 6 para. 1 of the Convention.   B.     The proceedings   5.     The application was introduced on 2 September 1988 and registered on 12 October 1988.   6.     On 5 November 1990 the Commission decided to bring the application to the notice of the respondent Government and invite them to submit written observations on the admissibility and merits.   7.     The Government's observations were submitted on 23 January 1991. Following an extension of the time-limit the applicants' observations in reply were submitted on 22 March 1991.   8.     On 9 April 1991 the Commission decided to refer the application to the Second Chamber.   On 25 April 1991 the Government submitted additional observations.   9.     On 14 October 1991 the Commission (Second Chamber) declared the application admissible and invited the parties to submit further observations on the merits.   10.    Further observations were submitted by the Government on 3 December 1991 and by the applicants by an undated letter of December 1991.   11.    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.   Active consultations took place between December 1991 and February 1992.   In the light of the parties' reactions, the Commission now finds that there is no basis upon which such a settlement could be effected.   C.     The present report   12.    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                   J.-C. SOYER                   H. G. SCHERMERS                   H. DANELIUS              Mrs. G. H. THUNE              MM.   F. MARTINEZ                   L. LOUCAIDES                   J.-C. GEUS   13.    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.   14.    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.   15.    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   16.    The applicants own a property in Gryta in the municipality of Västerås adjacent to a property on which a company (VAFAB) takes care of and treats refuse from inter alia households and industries. A permit for such activities was granted to the company by the National Licensing Board for Environment Protection (koncessionsnämnden för miljöskydd, hereinafter "the Licensing Board") on 1 July 1983 under the 1969 Environment Protection Act (miljöskyddslagen, hereinafter "the 1969 Act").   17.    In 1979 it was discovered that refuse containing cyanide had been tipped on the dump. Analyses of drinking-water emanating from a well adjacent to the dump showed excessive occurrence of cyanide. The Health Care Board (hälsovårdsnämnden) of Västerås then prohibited the use of the water and provisionally supplied the property owner dependent on that water with municipal drinking-water transported to him by truck.   18.    Further analyses carried out in October 1983 showed excessive occurrence of cyanide also in six further wells around the dump. The Environment and Health Care Board (miljö- och hälsoskyddsnämnden) of Västerås then prohibited the use of the water in those wells and provisionally supplied the dependent property owners (including the applicants) with municipal drinking-water.   19.    In June 1984 the limit of cyanide allowed was raised and from February 1985 the property owners no longer received municipal drinking-water.   20.    In July 1986 VAFAB requested a permit to, inter alia, take care of untreated household refuse also after 1986, to store ashes and slag from three further refuse combustion plants (the previous permit allowed the storing of such refuse from one plant) and to extend the area for storing cinders.   21.    In the proceedings before the Licensing Board the applicants argued that the proposed increase in activities on the dump involved a risk of further pollution of their drinking-water. In view of this they requested that the permit contain a precautionary measure under Section 5 of the 1969 Act to the effect that VAFAB be obliged to supply the eleven property owners dependent on the wells with municipal drinking-water.   22.    By decision of 13 March 1987 the Licensing Board granted VAFAB's request and rejected the applicants' request under Section 5, finding that there was no likely connection between the activities on the dump and any pollution of the drinking-water. Notwithstanding a possible risk of pollution the Board found it unreasonable to order the company to take such a general precautionary measure as the one requested by the applicants. It ordered, however, that the water in the wells should be analysed at regular intervals and the owners be informed of the results. If suspicions were to arise that the dump was polluting the water the company was immediately to comply with any orders issued by the County Administrative Board (länsstyrelsen) to the effect that the property owners be supplied with municipal drinking-water.   23.    The applicants appealed to the Government, which rejected the appeal on 17 March 1988.   B.     Relevant domestic law and practice   24.    According to Section 1 of the 1969 Act any use of land that may cause pollution of inter alia water or air is defined as environmentally hazardous activity. Section 5 imposes an obligation on those who carry out or intend to carry out such an activity to prevent or remedy detrimental effects of that activity by taking reasonable protective or precautionary measures or by tolerating reasonable restrictions. Regard should be had to both public and private interests.   25.    When a permit is issued by the Licensing Board according to Section 10 of the 1969 Act the environmentally hazardous activity itself and the conditions prescribed for the activity shall be specified in detail (Section 18). Any party concerned may lodge an appeal with the Government (Section 48).   26.    The Licensing Board is composed of a chairman and three other members. The chairman shall be well-versed in legal matters and experienced in performing judicial tasks. The other members must have experience of matters falling within the sphere of the National Environment Protection Board's (naturvårdsverket) activities, of technical matters and of industrial operations, respectively. All members are nominated by the Government (Section 11 of the 1969 Act).   27.    Section 34 provides a possibility to file a claim with a Real Estate Court (fastighetsdomstol), a specially composed District Court (tingsrätt), on the grounds of environmentally hazardous activity. Such a claim may aim at obtaining a ruling obliging the person or company concerned to take protective or precautionary measures in order to continue the activity in question.   28.    Under Section 22 an activity which has been permitted under the 1969 Act may not be ordered to be discontinued under a provision in that Act, neither may precautionary measures be imposed to a further extent than what has been stated in the permit. Thus, if a permit has been issued under the 1969 Act a claim under Section 34 cannot be considered. Exceptions are to be found in Sections 23-25, 29 and 40. None of those provisions are relevant in the present case.   29.    According to Section 3 of the 1986 Environmental Damage Act (miljöskadelagen, hereinafter "the 1986 Act") damage or injury caused inter alia by pollution of ground water and water courses entitles the damaged or injured party to compensation provided that a substantial probability of a causal connection has been established. The liability to pay compensation is imposed on those who carry on or cause deleterious activities to be carried on (Section 6). The Real Estate Court may grant a claim for compensation, even if the activity has been permitted under the 1969 Act. The decision of that court can be brought before a Court of Appeal (hovrätt) and ultimately, with leave to appeal, before the Supreme Court (Högsta domstolen).   30.    On 18 August 1986 the Supreme Court rendered a judgment (NJA 1986 p. 422) concerning the refusal of public legal assistance to a property owner requesting under Section 5 that the use of pesticides on an adjacent property be restricted, alternatively that protective measures be taken by the owner of that property. In rejecting the request a Real Estate Court had revoked the order granting legal assistance, considering that the measure requested could only be ordered under very exceptional circumstances and, therefore, the property owner could not be considered to have a sufficient legal interest in pursuing his request. The refusal of further legal assistance was upheld by a Court of Appeal. In reversing that decision the Supreme Court found that the property owner's request under Section 5 of the 1969 Act was a remedy prescribed under that very Act to be used in respect of environmentally hazardous activities of a neighbour, in particular in situations where no permit under the 1969 Act is necessary. The property owner, therefore, did have a sufficient legal interest in pursuing the request.   31.    In a decision of 1977 (KN no. 36/77) the Licensing Board refused a licence for a latex emulsion plant, finding that, although the plant would not cause any objective and considerable risk of damage, it could not be excluded that there could, at least during a transition period, remain a significant feeling of uncertainty among the neighbours as to risks caused by the plant. Such uncertainty could also affect the value of the properties in the vicinity and was to be taken into account when considering the licence matter.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   32.    The complaint declared admissible concerns the absence of a right to have the applicants' civil rights determined by a court.   B.     Point at issue   33.    The issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.     Article 6 para. 1 (Art. 6-1) of the Convention   34.    Article 6 para. 1 (Art. 6-1) of the Convention reads, insofar as it is relevant, as follows:         "In the determination of his civil rights and obligations       ..., everyone is entitled to a ... hearing ... by [a] ...       tribunal ..."   35.    The applicants allege a violation of Article 6 para. 1 (Art. 6-1) in that they had no possibility of a court review of the decision to grant a permit to a neighbour to increase the activities on the dump.   36.    The Commission must, in order to determine the issue in question, ascertain whether there was a dispute over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be a genuine and serious one; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise, and the result of the proceedings must be directly decisive for the right in question. Finally, the right must be of a "civil" character (cf. e.g. Eur. Court H.R., Skärby judgment of 28 June 1990, Series A no. 180-B, pp. 36 and 37, paras. 27 and 29).   37.    The Commission first finds that there was a genuine and serious dispute with regard to the right of protection from the risk of pollution claimed by the applicants under Section 5 of the 1969 Act.   38.    The Commission must next determine whether the dispute related to a right of a "civil" character. It first recalls that the concept of "civil rights and obligations" is not to be interpreted solely by reference to the respondent State's domestic law and that Article 6 para. 1 (Art. 6-1) applies irrespective of the parties' status, be it public or private, and of the nature of the legislation governing the manner in which the dispute is to be determined. It is sufficient that the action was "pecuniary" in nature and that the action was founded on an alleged infringement of rights which were likewise pecuniary rights (Eur. Court H.R., Editions Périscope judgment of 26 March 1992, to be published in Series A no. 234-B, para. 40) or that the outcome of the proceedings should be "decisive for private rights and obligations" (Eur. Court H.R., X v. France judgment of 31 March 1992, to be published in Series A no. 236, para. 30).   39.    The applicants have objected to the Licensing Board's finding that no risk of pollution was at hand. They contend that the dispute did regard their civil right under Section 5 of the 1969 Act to obtain protection from that risk, in particular as under Section 22 the issuing of a permit under the 1969 Act prevented them from submitting a claim for precautionary measures to a Real Estate Court. They further refer to the judgment by the Supreme Court of 18 August 1986 recognising a general right to lodge a request under Section 5 of the 1969 Act in order to have detrimental effects of an environmentally hazardous activity prevented.   40.    The Government have refuted the applicants' assertion that a civil right of theirs was determined when the Licensing Board and the Government considered the licence matter. The applicants could not maintain, on arguable grounds, that they were entitled to have the risk of any environmentally hazardous activity excluded, nor was there any risk at hand affecting their interests as property owners. Had the applicants been injured or their property been damaged they would have had a right to compensation under the 1986 Act in accordance with a procedure satisfying the requirements in Article 6 para. 1 (Art. 6-1) of the Convention.   41.    The Commission first notes that if, as a result of VAFAB's activities, the applicants had suffered actual damage by pollution of their drinking-water, they would have had a right to compensation under Section 3 of the Environmental Damage Act (see para. 29 above) and to a court determination of any claim for such compensation. However, the question which has to be considered in the present case is whether, although no such damage had occurred, the applicants' civil rights were already at issue at the time when a permit was granted to VAFAB to carry on activities which in the applicants' view involved a risk for damage.   42.    The domestic proceedings in the present case would seem to show that the applicants were in fact recognised as having a certain right which had to be taken into account by the authorities. It is clear that the applicants were allowed to present their objections in the proceedings before the Licensing Board, and the examination of these objections was in fact an important element in the reasoning contained in the Board's decision. Moreover, the applicants were considered to have competence to appeal against the Board's decision, and the Government considered their appeal admissible and examined the substance of their arguments.   43.    The Commission has also noted that, according to certain Swedish case-law referred to by the applicants (see paras. 30 and 31 above), it would seem to be recognised in Swedish law that a property-owner may be considered to enjoy a certain right to have his interests taken into account already at the stage when a decision is taken on a request for a permit to carry on an environmentally hazardous activity in the neighbourhood.   44.    The Commission is therefore of the opinion that the applicants could arguably claim that the Licensing board's decision of 13 March 1986 affected their rights under Swedish law.   45.    As regards the character of the right at issue, the Commission notes that the right related to the environmental conditions of the applicants' property and that the existence of environmental inconveniences or risks might well be a factor which affects the value of a property. Consequently the right at issue must be considered to be a civil right to which Article 6 para. 1 (Art. 6-1) of the Convention applies.   46.    The Commission must finally determine whether the applicants had at their disposal a procedure satisfying the conditions of Article 6 para. 1 (Art. 6-1) of the Convention with regard to the dispute.   47.    The Commission recalls that the applicants' appeal against the Licensing Board's decision was examined by the Government in the final resort. Their decision was not open to review as to its lawfulness by either ordinary or administrative courts, or by any other body which could be considered a "tribunal" for the purposes of Article 6 para. 1 (Art. 6-1).   48.    Consequently, the applicants did not have at their disposal a procedure satisfying Article 6 para. 1 (Art. 6-1).   D.     Conclusion   49.   The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the Second Chamber        President of the Second Chamber            (K. ROGGE)                           (S. TRECHSEL)                                 APPENDIX I                         HISTORY OF THE PROCEEDINGS   Date                              Item _________________________________________________________________   2 September 1988                  Introduction of the application   12 October 1988                   Registration of the application   Examination of admissibility   5 November 1990                   Commission's decision to invite the                                  Government to submit observations on                                  the admissibility and merits of the                                  application   23 January 1991                   Government's observations   22 March 1991                     Applicant's observations in reply   9 April 1991                      Application referred to Second Chamber   25 April 1991                     Government's additional observations   14 October 1991                   Commission's deliberations and                                  decision to declare the application                                  admissible   23 October 1991                   Decision on admissibility transmitted                                  to the parties   Examination of the merits   2 April 1992                      Commission's consideration of the                                  state of proceedings   2 September 1992                  Commission's consideration of the                                  state of proceedings   14 October 1992                   Commission's deliberations on the                                  merits, final vote and adoption of the                                  Report