CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1995

.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. 22231/93                       by Tönnes and Karin ROSENBORG                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 11 January 1995, the following members being present:              Mrs.   G.H. THUNE, Acting President            MM.    H. DANELIUS                  G. JÖRUNDSSON                  S. TRECHSEL                  J.-C. SOYER                  F. MARTINEZ                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              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 4 March 1993 by Tönnes and Karin ROSENBORG against Sweden and registered on 13 July 1993 under file No. 22231/93;         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 applicants, a married couple, are Swedish citizens born in 1924 and 1927, respectively. They are pensioners and reside at Hässelby, Sweden.         The facts of the case, as submitted by the applicants, may be summarised as follows.         In 1972 the applicants bought a piece of property (Tvärnö 6:15) with appurtenant fishing rights in Östhammar, Sweden, where they live in the summer. In 1988, by decision of the Real Estate Formation Authority (Fastighetsbildningsmyndigheten) of Östhammar, an association of joint property owners (samfällighetsförening - "the Association") was formed to administer jointly-owned land, roads and fishing-waters in the region. The association decided to regulate certain aspects of the fishing (Case no. 1). In 1990 the Real Estate Formation Authority decided that some roads in the neighbourhood be upgraded and maintained as jointly-owned facilities (gemensamhetsanläggning) (Case no. 2).   Case no. 1         At a meeting on 28 August 1988 the Association decided to divide certain parts of the joint fishing waters between the different properties involved and to designate other parts as common waters.         The applicants, who had not been present at the meeting, later received a copy of the decision by mail. Discontent with the decision, they contacted the land surveyor who had been in charge of the formation of the Association and inquired on how to appeal. The land surveyor advised them to wait while he asked the Association to repeal its decision. However, on 3 October 1988, he informed them that the Association would not repeal the decision. Thus, on 5 October 1988, the applicants appealed to the Real Estate Court (Fastighetsdomstolen) of Uppsala, claiming, inter alia, that their fishing rights had been considerably restricted contrary to the statute of the Association and that the decision was a nullity as the Association had exceeded its powers.         On 17 May 1990 the Real Estate Court, considering that the decision was not a nullity, rejected the appeal as it had been lodged out of time, Section 53, subsection 2 of the Act on the Administration of Associations of Joint Property Owners   (Lagen om förvaltning av samfälligheter, 1973:1150) stating that the time-limit for lodging an appeal was four weeks from the date of the decision.         On 9 August 1990 the Svea Court of Appeal (Svea hovrätt) upheld the Real Estate Court's decision. On 31 January 1991 the Supreme Court (Högsta domstolen) refused leave to appeal.         The applicants, claiming to have been misled by the land surveyor, requested the expired time for appeal to be restored (återställande av försutten tid). The request was, however, dismissed by the Court of Appeal on 6 March 1991.         By letter of 26 February 1991 the applicants requested the Association to set aside the 1988 decision. At its annual meeting on 5 May 1991, the Association, however, decided not to grant the request. On 21 November 1991, the Real Estate Court rejected the applicants' appeal, as their submissions failed to show that the 1991 decision contravened the Association's statute or was unlawful. On 12 June 1992 the applicants' further appeal was rejected by the Court of Appeal and on 16 February 1993 the Supreme Court refused leave to appeal.   Case no. 2         On 17 September 1990, on application by a neighbour of the applicants', the Real Estate Formation Authority, consisting of the above-mentioned land surveyor, decided that three roads in the neighbourhood, used for forestry transports and as access roads for different properties, should be upgraded and maintained as jointly-owned facilities. It was further decided that the properties in the neighbourhood should contribute to the construction and maintenance costs according to fixed shares. The three roads are situated near to the applicants' property. A fourth road, on their property, was on their request excluded from the undertaking.         The applicants appealed to the Real Estate Court, requesting, in the first place, that the decision be set aside, and, in the second place, that the shares be fixed in a different way and that their number of shares of the maintenance costs be reduced. They alleged that prior agreements between the property owners sufficiently ensured that the roads were properly maintained and that they only used two of the roads, exclusively in the summer. During the Court's hearing, the applicants further requested that the third road be excluded from the undertaking, as the property owners at the meeting preceding the Real Estate Formation Authority's decision allegedly had agreed to exclude this road.         By decision of 17 December 1991, the Real Estate Court dismissed the request for the exclusion of the third road, as it had been lodged out of time. Furthermore, except for some changes as to the apportionment of costs, the Court upheld the decision of the Real Estate Formation Authority. The Court noted that all participating properties had to share the snow-clearance costs, if one property owner requested the roads to be kept open for motor traffic during the winter.         The applicants appealed to the Court of Appeal, requesting, in the first place, that the decisions by the Real Estate Formation Authority and the Real Estate Court be set aside or, in the second place, that the third road be excluded from the undertaking or that they be relieved of their duty to contribute to the costs of this road. They submitted, inter alia, that their request for the exclusion of the third road formed part of their first-hand claim, for which reason the Real Estate Court should not have dismissed it. They further alleged that the undertaking did not meet the requirements of the Construction Act (Anläggningslagen, 1973:1149). As concerns snow-clearance, they maintained that it was of no benefit to them, but that it, on the contrary, was to their disadvantage, as the cleared roads would make their house accessible to burglars.         On 12 June 1992 the Court of Appeal rejected the appeal and on 12 January 1993 the Supreme Court refused leave to appeal.   COMPLAINTS   1.     The applicants contend that the decision to divide the lavaret fishing waters has infringed their right to the peaceful enjoyment of their possessions. They invoke Article 1 of Protocol No. 1 to the Convention.   2.     The applicants further claim that their rights under Article 1 of Protocol No. 1 have been violated by the decision obliging them to contribute to the costs of upgrading and maintaining a road which they do not use and of clearing the roads of snow although they do not occupy their property in the winter.   3.     The applicants finally allege that their appeals have not been heard by an impartial tribunal within the meaning of Article 6 of the Convention.   THE LAW   1.     The applicants contend that the decision to divide the lavaret fishing waters violated their rights under Article 1 of Protocol No. 1 (P1-1) to the Convention.         However, the Commission is not required to decide whether or not the facts submitted by the applicants in support of this particular complaint disclose any appearance of a violation of the invoked provision as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with a matter ... within a period of six months from the date on which the final decision was taken".         The Commission recalls that the applicants twice sought to have the Association's 1988 decision set aside. First, they appealed the 1988 decision to the Real Estate Court. The Court, however, rejected the appeal for failure to comply with the applicable time-limit. The rejection was upheld on appeal. Second, they requested, in 1991, the Association to set aside its earlier decision. The Association, however, refused the request, and subsequent appeals to the different courts were unsuccessful.         The Commission finds that the proceedings following the Association's 1991 decision only determined whether the Association had been entitled, under its statute and the law, to decide not to set aside its 1988 decision. Thus, it did not examine the contents of the 1988 decision or determine whether this decision was in conformity with the statute and the law. The Commission therefore finds that the appeals against the Association's 1991 decision did not constitute an effective remedy, under Article 26 (Art. 26) of the Convention, against the 1988 decision.         In view of the above, the Commission considers that the examination of the 1988 decision ended with the conclusion of the first set of proceedings, either on 31 January 1991, when the Supreme Court refused leave to appeal, or, at the latest, on 6 March 1991, when the Court of Appeal refused to restore the expired time for appeal. The present application was introduced on 4 March 1993, about two years after the final decision. Consequently, even assuming that the land surveyor's conduct absolved the applicants from the obligation to comply with the domestic time-limit for appeal against the 1988 decision, the applicants have not respected the time-limit laid down in Article 26 (Art. 26) of the Convention.         It follows that this part of the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.     The applicants further claim that the decision obliging them to contribute to the costs of upgrading and maintaining a road which they do not use and of clearing the roads of snow although they do not occupy their property in the winter constitutes an infringement of their right to the peaceful enjoyment of their possessions. Also in respect of this complaint they invoke Article 1 of Protocol No. 1 (P1-1), which reads as follows:         "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."         The Commission first notes that the applicants have not been deprived of their possessions as a result of the decisions concerning the roads in question. The alleged interference with their property rights, therefore, falls under the second paragraph of the above provision. However, the Commission does not find it necessary to determine whether there has been such an interference in the present case, because, even assuming this to be the case, the Commission considers that the interference has been permissible under the second paragraph.         Under the second paragraph, the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose. However, as this provision is to be construed in the light of the general principle enunciated in the first sentence of the first paragraph, there must exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised. In striking the fair balance thereby required 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 (cf. Eur. Court H.R., Allan Jacobsson judgment of 25 October 1989, Series A no. 163, p. 17, para. 55).         In the present case, the Commission sees no reason to doubt that the alleged interference was in accordance with Swedish law. The Commission further notes that the roads are, inter alia, needed for transport of forestry products, which undoubtedly is a legitimate general interest within the meaning of the second paragraph of Article 1 of Protocol No. 1 (P1-1). Moreover, having regard to the above- mentioned margin of appreciation, the Commission does not consider the applicants' obligation to contribute to the costs, including the snow- clearance costs, of all three roads at issue to be disproportionate to the requirements of the general interest.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicants finally allege that their appeals have not been heard by an impartial tribunal within the meaning of Article 6 (Art. 6) of the Convention, which, in relevant parts, reads as follows:         "1. In the determination of his civil rights and       obligations ..., everyone is entitled to a ... hearing ...       by an ... impartial tribunal ..."         The Commission notes that the applicants' appeals in the two cases have been heard by the Real Estate Court, the Court of Appeal and, in deciding whether to grant leave to appeal, by the Supreme Court. The Commission further notes that the applicants have not stated any grounds for finding that these courts have not been impartial. Moreover, nothing in the file suggests any reasons to call in question the impartiality of the courts.         It follows that also this part of the application is 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 Second Chamber   Acting President of the Second Chamber             (K. ROGGE)                            (G.H. THUNE)