CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 1996

.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. 25023/94                       by STIFTELSEN ANURAG SAGAR                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 28 February 1996, the following members being present:              Mrs.   G.H. THUNE, Acting President            MM.    H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, 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 11 April 1994 by STIFTELSEN ANURAG SAGAR against Sweden and registered on 30 August 1994 under file No. 25023/94;         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 foundation established in Stockholm. Before the Commission it is represented by a member of its board, Mr. Håkan Berggren.   a.     The particular circumstances of the case         The facts of the case, as submitted by the applicant, may be summarised as follows.         On 8 April 1993 the Road Administration of the Central Region (Vägverket, Region Mitt) adopted a working-plan (arbetsplan) for the reconstruction of the public road no. 310 between Västbacka and Los. It was approved on 1 June 1993 by the County Administrative Board (Länsstyrelsen) of the County of Gävleborg. It was later submitted to the National Road Administration (Vägverket) for approval in accordance with Section 18 of the Public Roads Act (Väglagen, 1971:948).         The applicant foundation claimed that the road project unduly encroached upon one of its properties. However, by decision of 19 July 1993, the National Road Administration approved the working- plan. It considered that the proposed reconstruction achieved the purpose of the road with the least possible interference and inconvenience and without unreasonable costs, as required by Section 13 of the Public Roads Act.         The applicant foundation appealed to the Government, claiming that there was no need to reconstruct the road, that the project unduly encroached upon its property, that the reconstructed road was unsuitable for road safety reasons and that it would cause noise.         On 24 March 1994 the Government, agreeing with the findings of the National Road Administration, upheld its decision.         Apparently, the applicant foundation did not apply to the Supreme Administrative Court (Regeringsrätten) for a review of the Government's decision under the Act on Judicial Review of Certain Administrative Decisions (Lagen om rättsprövning av vissa förvaltningsbeslut, 1988:205 - "the 1988 Act").   b.     Relevant domestic law         Section 13 of the Public Roads Act provides the following:   (translation)         "When constructing a road it shall be ensured that the road       is located and designed so as to achieve the purpose of the       road with the least possible interference and inconvenience       and without unreasonable costs."         Section 18 of the Public Roads Act states that a working-plan concerning the construction of a road is to be approved by the National Road Administration. Its decisions may be appealed to the Government.         The Public Roads Act does not contain any provision providing for the possibility to appeal to a court. However, under the 1988 Act, the Supreme Administrative Court (Regeringsrätten) has jurisdiction in certain administrative cases. Section 1 of this Act provides the following:   (translation)         "At the request of a private party in such administrative       proceedings before the Government or an administrative       authority as pertain to any situation envisaged by Chapter       8, Sections 2 and 3, of the Instrument of Government, the       Supreme Administrative Court shall review whether the       decision in the case is contrary to any legal rule in a       manner indicated by the requesting party or otherwise       apparent from the circumstances of the case.         Judicial review may pertain only to such decisions as       - imply exercise of public authority in relation to a       private subject,       - may not otherwise be reviewed by a court except upon a       request for relief for substantive defects, and       - could not otherwise be subject to review."         According to the travaux préparatoires to the Act, the Supreme Administrative Court's examination should concentrate on the lawfulness of the challenged decisions, but the Court also has the power to re- examine the facts upon which the application of the law has been based. Furthermore, the Court should examine whether the challenged decision is compatible with the principles of objectivity, impartiality and equality before the law. In addition, it should examine whether there have been any procedural errors which might have affected the outcome of the case. If the relevant law leaves a certain discretion to the deciding authority to make a choice between different options, all of which must be considered lawful, the Court should examine whether the challenged decision falls within that discretion (cf. Government Bill 1987/88:69, pp. 23-25 and 234). When examining the Government Bill, the Council of Legislation (Lagrådet) stated that the examination of the lawfulness of an administrative decision in some cases must include an assessment of whether the prescribed balance of interests has been appropriately observed.         The Supreme Administrative Court has, under the 1988 Act, reviewed several Government decisions concerning the approval of working-plans for road constructions (cf., e.g., Regeringsrättens årsbok, RÅ 1990 not 176 and RÅ 1993 not 168, and the Court's judgment of 30 May 1995 in case no. 2060-1994). In case no. 2060-1994, the Court held an oral hearing before delivering its judgment.   COMPLAINT         Invoking Article 6 para. 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant foundation claims that it did not have a determination by a court of the decisions concerning the approval of the working-plan and that it was denied an oral hearing.   THE LAW         The applicant foundation complains that it did not have access to court and that it was not given an oral hearing. The Commission finds that the complaint falls to be considered under Article 6 para. 1 (Art. 6-1) of the Convention which, in relevant parts, reads as follows:         "In the determination of his civil rights and obligations       ..., everyone is entitled to a ... hearing ... by [a] ...       tribunal ..."         The Commission notes that the applicant foundation did not attack the decision of the Government by requesting judicial review under the 1988 Act on Judicial Review of Certain Administrative Decisions. It appears from the case-law of the Supreme Administrative Court that that Court has considered itself competent under the 1988 Act to review Government decisions concerning the approval of working-plans for road constructions and that in at least one case it has held an oral hearing. It would thus have been possible for the applicant foundation to obtain such a review by the Supreme Administrative Court and to request an oral hearing. In assessing whether the scope of this review would have been sufficient to satisfy the requirements of Article 6 para. 1 (Art. 6-1) of the Convention, the Commission notes that the applicant foundation claimed that the road project was unnecessary and unsuitable and that it unduly encroached upon its interests as property owner. An application by the applicant foundation for judicial review based on these elements could have been examined by the Supreme Administrative Court under Section 13 of the Public Roads Act. Thus, in the circumstances of the present case, the Commission finds no reason to believe that the Supreme Administrative Court, in examining an application by the applicant foundation for judicial review, would have had to decline jurisdiction (cf. No. 18660/91, Bengtsson v. Sweden, Dec. 7.12.94, D.R. 79-A, p. 11).         In these circumstances the Commission finds that the applicant foundation could have obtained a court determination fulfilling the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.         It follows that 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                        Acting President       to the Second Chamber               of the Second Chamber           (M.-T. SCHOEPFER)                      (G.H. THUNE)