CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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. 32047/96                       by T.C.                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 16 April 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              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 17 April 1996 by T.C. against Sweden and registered on 27 June 1996 under file No. 32047/96;         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 1929 and resident in Stockholm.         The facts of the case, as submitted by the applicant, may be summarised as follows.         The applicant owns real property at Dalarö in the municipality of Haninge near Stockholm. In 1991 the municipality began planning a new pressure-based sewage disposal system for a group of properties. This system included, for each property, a pump unit with a 3-metre- deep container which was to be buried in the ground, whereas its top would remain visible. The municipality's intention formed part of an overall scheme for improving the sewage disposal in the municipality.         It appears that on 21 May 1992 the applicant and other property owners, on whose properties a pump unit was to be placed, contested the municipality's intention before the National Board for Water and Sewage (Statens va-nämnd). They argued in favour of another sewage disposal system which would be cheaper and also entail hygienic and environmental advantages. That system did not require pumps, as the sewer would follow the natural inclination of the terrain. Such a system was already in use in certain municipalities nearby. Should the Board confirm the municipality's choice of system, the applicant and others requested that the pump units should not be located on their respective properties. In the further alternative, the applicants and others requested permission to choose the type of pump unit to be located on their properties.         On 17 August 1993 the National Board for Water and Sewage, after an oral hearing and inspection, upheld the municipality's choice of system pursuant to the 1970 Act on Public Water and Sewage Systems (lag 1970:244 om allmänna vatten- och avloppsanläggningar). The Board considered that the provider of the sewage disposal system, i.e. the municipality, had to be given a certain latitude in the choice of a system. Moreover, in order for the pressure-based system to function optimally, pump units were to be placed on private properties, and the municipality was authorised to decide on the type of unit. The property owners would be responsible for the electrical running of the unit on their respective properties.         The applicant and other property owners appealed and requested an oral hearing before the Water Court of Appeal (Vattenöverdomstolen). In a letter of 8 March 1994 they were given the opportunity to make supplementary observations in writing, as the appeal could be decided without an oral hearing. In their supplementary observations of 18 March 1994 the appellants withdrew their request for such a hearing.         On 29 December 1994 the Water Court of Appeal, having dispensed with an oral hearing, in essence upheld the decision of the National Board for Water and Sewage. Both proposed systems were technically acceptable and entailed a similar financial burden, if account was taken of costs incurred both by the municipality and by the property owners. The Water Court of Appeal therefore placed decisive weight on its finding that the pressure-based system would interfere less with the natural environment in the area. However, the property owners were authorised to choose the type of pump unit to be located on their respective properties, provided that their choice did not cause harm or additional costs either to the municipality or to other property owners. On 30 October 1995 the Supreme Court (Högsta domstolen) refused the applicant and others leave to appeal.     COMPLAINTS   1.     The applicant complains that the placement of a pump unit on his property without any compensation was an unjustified interference with his rights under Article 1 of Protocol No. 1.   2.     The applicant also complains under Article 6 para. 1 of the Convention that he was denied an oral hearing before the Water Court of Appeal.   3.     Finally, the applicant complains under Article 6 para. 1 of the Convention about the length of the proceedings.     THE LAW   1.     The applicant complains that the placement of a pump unit on his property without any compensation was an unjustified interference with his rights under Article 1 of Protocol No. 1 (P1-1). This provision 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."         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. 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 (see, e.g., Eur. Court HR, Fredin v. Sweden judgment of 18 February 1991, Series A no. 192, p. 14, para. 41).         Moreover, although Article 1 (Art. 1) contains no explicit procedural requirements, the proceedings at issue must afford the individual a reasonable opportunity of putting his case to the responsible authorities for the purpose of effectively challenging the measures interfering with his rights under Article 1 of Protocol No. 1 (P1-1). In ascertaining whether this condition has been satisfied a comprehensive view must be taken of the applicable procedures (cf., e.g., Eur. Court HR, Agosi v. the United Kingdom judgment of 24 October 1986, Series A no. 108, p. 19, para. 55; Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, p. 21, para. 49).         The Commission considers that the applicant's obligation to adhere to the new sewage disposal system and to tolerate that the requisite pump unit be placed on his property amounted to a control of the use of that property. This interference with the applicant's property rights falls to be examined under the second paragraph of Article 1 of Protocol No. 1 (P1-1) as to its lawfulness, purpose and proportionality.         The Commission finds no substantiation of the applicant's assertion that the interference was not in accordance with domestic law. The Commission can furthermore accept that the purpose of the interference was to improve the sewage disposal in the relevant area of the municipality. Turning to the proportionality of the interference, the Commission notes that the applicant was eventually afforded the possibility to choose, within certain limits, the type of pump unit to be located on his property.         Furthermore, the Commission considers that the applicant had at his disposal sufficient procedural safeguards for the purpose of challenging the municipality's choice of sewage system.         Summing up, the Commission finds that the applicant was not made to carry an individual and excessive burden and that a fair balance was struck between the conflicting interests at stake. Accordingly, there is no indication of a violation of Article 1 of Protocol No. 1 (P1-1).         It follows that this complaint 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 also complains under Article 6 para. 1 (Art. 6-1) of the Convention that he was denied an oral hearing before the Water Court of Appeal.         The Commission recalls that neither the letter nor the spirit of Article 6 (Art. 6) prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public. Any such waiver must, however, be made in an unequivocal manner and must not run counter to any important public interest (see, e.g., Eur. Court HR, Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, pp. 19-20, para. 58; Håkansson and Sturesson v. Sweden judgment of 21 February 1990, Series A no. 171, p. 20, para. 67).         In the present case the applicant, in his submissions to the Water Court of Appeal dated 18 March 1994, expressly waived his right to a public hearing. This waiver did not run counter to any important public interest. Accordingly, there is no appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention on this point.         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.   3.     Finally, the applicant complains about the length of the proceedings. He again invokes Article 6 para. 1 (Art. 6-1) cited above.         The Commission notes that the period to be taken into consideration for the purpose of assessing the length of the proceedings under Article 6 para. 1 (Art. 6-1) of the Convention apparently began on 21 May 1992, when the applicant and others instituted the proceedings before the National Board for Water and Sewage. The proceedings ended on 30 October 1995, when the Supreme Court refused leave to appeal. The proceedings thus lasted approximately three years and five months.         The reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities and the importance of what is at stake for the applicant in the litigation (see, e.g., Eur. Court HR, Duclos v. France judgment of 17 December 1996, Reports of Judgments and Decisions, 1996-VI, pp. 2180-2181, para. 55).         In the present case the Commission considers it sufficient to note that the proceedings were pending before three levels of jurisdiction and involved an oral hearing before, and an inspection by, the National Board for Water and Sewage. The length of the proceedings cannot therefore be considered excessive. Accordingly, there is no appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention on this point either.         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, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.        M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber