CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 décembre 1993

.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. 21328/93                       by Barbro JOHANSSON                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 1 December 1993, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO              Mr.    K. ROGGE, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 20 May 1992 by Barbro JOHANSSON against Sweden and registered on 4 February 1993 under file No. 21328/93;         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 applicant is a Swedish citizen born in 1932. She is a nurse resident at Mörlunda. Before the Commission she is represented by Mr. Göran Ravnsborg, a lecturer at the University of Lund. She has previously submitted complaints to the Commission which were registered as Application No. 14006/88. That application was declared partly admissible but was later subject to a friendly settlement.         The facts of the case, as submitted on behalf of the applicant, may be summarised as follows.   Particular circumstances of the case         In 1971 the applicant's husband bought an agricultural property called Brånstorp 1:6 in the municipality of Nässjö from Mrs. E.J.   His subsequent request for a permit to acquire the property was rejected by the County Agricultural Board (lantbruksnämnden) of the County of Jönköping on the ground that the property was needed to promote the establishment of functional farm holding units. The purchase was therefore considered void.         In 1982 the District Court (tingsrätten) of Eksjö found that Mrs. E.J. was only the dummy-owner of the property and that the real owner was the applicant's husband.         In 1983 the Enforcement Office (kronofogdemyndigheten) decided that the property was to be sold at a compulsory sale by auction (exekutiv auktion).         In 1984 the property was sold to the applicant for 100,000 SEK at such an auction, regarded as a compulsory one under the 1979 Land Acquisition Act (jordförvärvslag 1979:230, hereinafter "the 1979 Act").         In 1986 the County Agricultural Board reminded the applicant of the conditions under the 1979 Act attaching to her purchase, namely her obligation under Section 16 of the 1979 Act to obtain a permit to retain the property within two years in order to avoid a compulsory re-sale of the property. The applicant then submitted a request for such a permit.         In 1987 the County Agricultural Board rejected the applicant's request, considering that the property was needed for the rationalisation of agriculture and forestry.         Her subsequent appeals to the National Board of Agriculture (lantbruksstyrelsen) and the Government were rejected on 20 May and 10 September 1987 respectively.          In 1988 the County Administrative Board (länsstyrelsen) of the County of Jönköping ordered that the property be sold compulsorily by auction in accordance with Section 16 of the 1979 Act.         The applicant's appeal to the Government was rejected on 8 September 1988.         On 11 April 1990 the applicant requested inter alia that the Government reconsider its decision of 8 September 1988 concerning the sale of the property. She also requested that the Government order the suspension of the sale.         On 19 April 1990 the Government decided to take no further action, as it had already taken a final position on the sale of the property.         The public auction took place on 27 April 1990 and the property was sold to the County Agricultural Board for 300,000 SEK.         The applicant appealed on 14 May 1990 against the auction to the Göta Court of Appeal (Göta hovrätt), requesting inter alia that it set aside the sale of the property and declare void the administrative decisions resulting in the sale.         On 21 May 1990 the applicant received the purchase-price.         On 8 June 1990 the Court of Appeal decided that the case should be considered on the basis of written submissions (föredragning).         On 26 June 1990 the Court of Appeal rejected the applicant's appeal, stating inter alia that it had no jurisdiction to review the decisions of the administrative authorities concerning the retention permit or the decisions ordering the compulsory sale of the property.         On 3 December 1990 the Supreme Court (Högsta domstolen) granted leave to appeal. On 11 March 1991 it quashed the decisions by the Court of Appeal of 8 and 26 June 1990 and referred the case back to that court, considering inter alia that the applicant should have been granted an oral hearing.   The Supreme Court stated inter alia:         (translation)         "[The applicant's] appeal raises the question to what       extent an administrative decision taken on the basis of       [the 1979 Act] can be reviewed or annulled in subsequent       execution proceedings.         This question is connected with the general question to       what extent executable deeds can be annulled in execution       proceedings. This problem has been noted both in the case-       law and in the doctrine. It has been considered that the       execution authorities - both the Enforcement Offices and       the superior organs - have a right of review but that this       right is very limited. However, according to what has been       stated in one case, there may be good reasons to extend the       review of executable deeds somewhat more than usual when       the deeds are administrative decisions, in particular when       these decisions cannot be appealed to an administrative       court. ...         It is also justified, in this context, to take into account       the provisions of the 1950 European Convention on Human       Rights as well as the case-law developed by the European       Court of Human Rights. On 21 February 1990 the European       Court decided a case against Sweden where - as in the       present case - the issue concerned a compulsory sale of       real property after a permit to acquire the property under       [the 1979 Act] had been refused (the Håkansson and       Sturesson case). In its judgment (Series A no. 171), the       Court found that questions of permits to acquire property       as well as questions of compulsory sales concerned the       individual's 'civil rights and obligations' and that the       individual who was affected had a right under the       Convention to have the issue examined by a court.         In order to satisfy fully the requirements of the European       Convention, a court review would seem to be required which       is different from that which can be effected as part of       execution proceedings. In a proposal which has recently       been submitted to the Law Council (lagrådet) it has       therefore been suggested that, in cases under [the 1979       Act], the decisions of the central agricultural authority       shall be subject to appeal to the Administrative Court of       Appeal (kammarrätten). Pending a reform of such kind the       possibility for a court review which exists at the stage of       the execution should be used as far as possible.         It follows that a review should take place of the       administrative decisions which resulted in the auction of       27 April 1990.         (The applicant) requested in the Court of Appeal that the       case should be dealt with at a main hearing       (huvudförhandling) and asked that at that hearing she       herself as well as the Chairman and/or the Vice-Chairman of       the County Agricultural Board should be heard as parties       and that some named persons should be heard as witnesses.       She has maintained this request in the Supreme Court and       has also requested the hearing of one further person. If       the case should not be referred back to the Court of Appeal       for a new examination, (the applicant) has requested a       hearing before the Supreme Court.         From the provisions of Chapters 52 and 56 of the Code of       Judicial Procedure it appears that proceedings in cases       regarding appeals against procedural or executive decisions       (besvärsmål) are in principle in writing both in the Court       of Appeal and in the Supreme Court. However, according to       Chapter 52, Section 10, first paragraph and Chapter 56,       Section 12 a hearing (förhör) may be held where it is       necessary for the investigation of the case that a party or       someone else be heard orally.         The wording of the statute shows that strong reasons are       required for the holding of a hearing in a case based on an       appeal against a decision. In practice it would also seem       to be rare that such hearings are held (cf. Lars Welamson,       Rättegång VI, 1978 p. 141).         The reasons which (the applicant) has invoked for an oral       procedure do no have such weight as is required under the       provisions of the Code of Judicial Procedure. However, the       provisions of the European Convention and the judgments of       the European Court (cf. as regards the question of a main       hearing in criminal cases NJA 1988 p. 572 and Bill       1988/89:95 p. 45 et seq.) should be taken into account also       in this respect. In the aforementioned case of Håkansson       and Sturesson the Court found that the parties concerned       had been entitled to have an oral hearing in the       proceedings before the Court of Appeal where the question       of the conditions of the public auction were examined.         In view of the said judgment by the European Court and       since there is nothing in Swedish law which prevents such       a procedure from being applied, the Supreme Court considers       that an oral hearing should be held in this case."         On 1 April 1992 the Göta Court of Appeal rejected the applicant's request that the former Chairman and Vice-Chairman of the County Agricultural Board and a real estate agent be heard as witnesses. Referring to the Supreme Court's finding in its decision of 11 March 1991 the Court found, however, that the applicant herself should be heard as well as the official of the County Agricultural Board who had been in charge of the applicant's case.         On 4 August 1992 the Göta Court of Appeal struck the appeal out of its list of cases, the applicant having withdrawn it in view of the settlement reached between her and the County Administrative Board on 30 July 1992. Under the settlement the applicant was granted a right to repurchase the property Brånstorp 1:6 under the condition that she would withdraw her appeal.   Relevant domestic law         The acquisition of agricultural real property is subject to the regulations of the 1979 Act. The aim of the 1979 Act was to implement new agricultural guidelines adopted by Parliament (Riksdagen) in 1977 and to further the policy goals of forestry and regional planning.         On 1 July 1987 amendments to the 1979 Act entered into force, the purpose of which was to make it easier to obtain a permit for the purchase of agricultural holdings. The aim of the amended 1979 Act was to support appropriate development of farm holdings in the general interest and to form well-adapted holdings in conformity with the aims of regional policy.         On 1 July 1991 further amendments to the 1979 Act entered into force. The provisions below of the 1979 Act refer to their wording up to 1 July 1991.         Under Sections 2 and 3 of the 1979 Act a permit is required for the acquisition of an agricultural holding. No permit is required inter alia if the property is acquired at a compulsory auction. A request for a permit shall in principle be made within three months from the purchase (Section 12). Under Section 4, first paragraph, a permit may be refused inter alia if it is in the general interest that the property be used for rationalisation of agriculture or forestry (sub-section 1) or if it is obvious that the purchase price or other compensation considerably exceeds the market value of the property (sub-section 4).         Under Section 16, first paragraph, a property acquired at a compulsory auction - in circumstances which in the case of an ordinary purchase would have required a permit - shall be re-sold within two years, unless the said circumstances have by then ceased to exist or the purchaser has obtained a permit from the County Agricultural Board to retain the property. The granting of such a permit is subject inter alia to the regulations in Sections 3 and 4, with the exception of Section 4, subsection 4. The sale contract established after the compulsory auction shall contain a note recalling the obligation laid down in Section 16. A decision by the County Agricultural Board not to grant permission to retain a property may be appealed to the National Board of Agriculture and ultimately to the Government (Section 18).         If, in a case where this is required under Section 16, the property has not been resold within the prescribed time-limit, the County Administrative Board shall, at the request of the County Agricultural Board, order that the property be sold at a public auction by the Enforcement Office. At such an auction the property may only be sold to someone who has received an acquisition permit or who is, like the County Agricultural Board, exempted from the permit requirement.         Section 17 specifies that no sale at an auction under that Section may take place unless the purchase price offered amounts at least to the value to be attributed to the property in accordance with the provisions of Chapter 12 of the Code of Enforcement (utsöknings- balken). This value is to be fixed by the Enforcement Office or, if the owner of the property makes a timely request for a special valuation, by valuers appointed by the County Administrative Board. In both cases the valuation shall be made in consultation with the County Agricultural Board. If the property is not sold at the auction the County Agricultural Board may, within a period of two years, request the County Administrative Board to hold a new auction. If no such request is made, or if no acceptable bid is made at the second auction, the owner is no longer required to sell the property.         The County Administrative Board's decision to order a public auction may be appealed to the Government.         The Enforcement Office's decisions in respect of an auction may, according to Chapter 18 Section 1 of the Code of Enforcement, be brought before a court of appeal and ultimately, with leave to appeal, before the Supreme Court. However, according to Section 6 para. 2 of the same Chapter, an appeal against a decision that is merely a preparatory step for a final decision may, in general, be lodged only in connection with an appeal against the latter. Appeals follow the rules of the 1986 Administrative Act (förvaltningslagen) and those of the Code of Judicial Procedure (rättegångsbalken), as far as the latter are relevant.         In the event that the purchase of agricultural property becomes void 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 1979 Act, obliged to redeem the property at the purchase price agreed upon in the invalid sale, if so requested by the seller. However, 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 County Agricultural Board. An action for redemption may be brought before the Real Estate Court (fastighetsdomstolen). The decision of that court can be appealed to a court of appeal and from there an appeal lies to the Supreme Court.         Chapter 52, Section 10 of the Code of Judicial Procedure   - which deals with appeals against procedural, executive and some other decisions (besvär) - provides as follows:         (Swedish)         "Om det är nödvändigt för utredningen i målet att en part eller       någon annan hörs muntligen, får hovrätten förordna om detta på       lämpligt sätt.         Vad som sägs i ... gäller även vid förhör entligt första stycket       ..."         (Translation)         "Where it is necessary for the purposes of the investigation of       a case that a party or other person be heard orally by the Court       of Appeal, the Court of Appeal shall decide on such a hearing as       it finds appropriate.         The provisions in ... are also applicable to a hearing referred       to in the first paragraph ..."         According to Chapter 56, Section 12 of the Code these rules also apply to the proceedings before the Supreme Court.   COMPLAINTS   1.     The applicant complains of the limitation in scope of the examination by the Court of Appeal and the insufficiency of the oral hearing before that court. She considers that the translation, which appears in the Court's judgment in the Håkansson and Sturesson case (Eur. Court H.R., judgment of 21 February 1990, Series A no. 171), is not quite exact, since the Swedish word "förhör", which appears in the original text, does not correspond to "hearing" but rather to "interrogation" or "questioning". She invokes Article 6 para. 1 of the Convention.   2.     The applicant further complains of the length of the proceedings. She refers in particular to a statement by the respondent State before the European Court of Human Rights in the above-mentioned case of Håkansson and Sturesson to the effect that cases such as the present one are being dealt with by priority by Swedish courts. Article 6 para. 1 of the Convention is again invoked.   THE LAW   1.     The applicant complains of the limitation in scope of the examination by the Court of Appeal and the insufficiency of the oral hearing before that court. She invokes Article 6 para. 1 (Art. 6-1) of the Convention, which reads, insofar as it is relevant to this complaint as well as to her second complaint:         " In the determination of his civil rights ..., everyone is       entitled to a fair and public hearing within a reasonable time       ..."         The Commission considers that it can leave open the questions whether the applicant can claim to be a "victim" in accordance with Article 25 (Art. 25) of the Convention in view of the settlement reached on 30 July 1992 or whether she can be considered to have exhausted domestic remedies as required by Article 26 (Art. 26) of the Convention despite the fact that she withdrew her appeal before the Court of Appeal, since in any case the application is inadmissible for the reasons indicated below.         The Commission has first considered whether there was a dispute over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law. Such a 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).         The Commission further recalls that the concept of "civil rights" 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, Series A no. 234-B, p. 72, para. 40) or that the outcome of the proceedings would be "decisive for private rights and obligations" (Eur. Court H.R., X v. France judgment of 31 March 1992, Series A no. 234-C, p. 90, para. 30).         In the present case the Commission observes that in her appeal to the Court of Appeal the applicant challenged the public auction at which her property had been forcibly sold. It considers that in this respect there was a dispute of a genuine and serious character between her and the authorities relating to a "right" of a "civil" character.         It remains to be examined whether the applicant had at her disposal a procedure satisfying the requirements of Article 6 para. 1 (Art. 6-1) of the Convention in regard to the dispute concerned.         The Commission first notes in this respect that the question of whether or not the applicant should get a permit to retain the property had already been determined in previous proceedings which were the subject of Application No. 14006/88. It observes that the proceedings now at issue concerned the legality of the public auction which was held on 27 April 1990 and at which the property was sold to the County Agricultural Board for 300,000 SEK. The Court of Appeal had full jurisdiction to determine this issue. Consequently, there is no indication that the scope of review was too limited to satisfy the requirements of Article 6 (Art. 6).         However, the applicant also complains that the oral hearing which could have been held would have been too restricted to satisfy the procedural requirements of Article 6 (Art. 6). She points out in this regard that the term used in the Swedish statute corresponds to "interrogation" or "questioning" and not to "hearing".         The Commission accepts that from a linguistic point of view the term used may seem to have a fairly restrictive meaning. It notes, however, that the Supreme Court, when referring to the applicant's case back to the Court of Appeal, found that the applicant should have been granted an oral hearing in the Court of Appeal in view, in particular, of the requirements of the Convention. In these circumstances, there is no reason to believe that the hearing which the Court of Appeal would subsequently have held would have been too limited to satisfy the requirements of Article 6 (Art. 6) of the Convention. The Commission also observes, in this regard, that the Court of Appeal decided on 1 April 1992 that the applicant herself as well as the official of the County Agricultural Board who had been in charge of her case should be heard before that court and that the reason why the hearing was cancelled was the settlement of the case which was subsequently reached between the applicant and the County Administrative Board.         In these circumstances, the Commission finds no indication of a violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards the proceedings before the Court of Appeal.         It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant further complains of the length of the proceedings and again invokes Article 6 para. 1 (Art. 6-1) of the Convention.         The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of each case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (e.g. Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, pp. 12-13, para. 30).         The Commission considers that the period to be considered commenced on 14 May 1990, when the applicant lodged an appeal against the public auction held on 27 April 1990, and terminated in the Court of Appeal's decision of 4 August 1992 striking the case off its list.         The Commission observes that during that period the case was dealt with, first by the Court of Appeal, then by the Supreme Court, and then again by the Court of Appeal. The initial proceedings before the Court of Appeal lasted less than two months, while the examination by the Supreme Court lasted about eight months. The subsequent proceedings before the Court of Appeal lasted about one year and five months.         The Commission considers that, although there might have been some avoidable delays, the proceedings were, taken as a whole, not so lengthy as to be in violation of Article 6 para. 1 (Art. 6-1) (cf. Eur. Court H.R., Pretto and Others judgment of 8 December 1983, Series A no. 71, p. 16, para. 37).         It follows that this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)