CEDH · CASELAW;REPORTS;ENG — 2 septembre 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. 13625/88                              Siv ÖUNAPUU                                against                                SWEDEN                       REPORT OF THE COMMISSION                     (adopted on 2 September 1992)                           TABLE OF CONTENTS   I.         INTRODUCTION           (paras. 1 - 16) . . . . . . . . . . . . . . . . . . . 1             A.    The application                (paras. 2 - 4) . . . . . . . . . . . . . . . . . 1             B.    The proceedings                (paras. 5 - 11). . . . . . . . . . . . . . . . . 1             C.    The present Report                (paras. 12 - 16) . . . . . . . . . . . . . . . . 2   II.        ESTABLISHMENT OF THE FACTS           (paras. 17 - 32). . . . . . . . . . . . . . . . . . . 3             A.    The particular circumstances of the case                (paras. 17 - 23) . . . . . . . . . . . . . . . . 3             B.    Relevant domestic law                (paras. 24 - 32) . . . . . . . . . . . . . . . . 3   III.       OPINION OF THE COMMISSION           (paras. 33 - 44). . . . . . . . . . . . . . . . . . . 6             A.    Complaint declared admissible                (para. 33) . . . . . . . . . . . . . . . . . . . 6             B.    Point at issue                (para. 34) . . . . . . . . . . . . . . . . . . . 6             C.    Article 6 para. 1 of the Convention                (paras. 35 - 43) . . . . . . . . . . . . . . . . 6             D.    Conclusion                (para. 44) . . . . . . . . . . . . . . . . . . . 7   APPENDIX I      : HISTORY OF THE PROCEEDINGS . . . . . . . . . . 8   APPENDIX II     : DECISION ON THE ADMISSIBILITY ...........       9 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 applicant is a Swedish citizen born in 1947 and resident at Malmö. She is a student. Before the Commission she was represented by Mr. Göran Ravnsborg, a university lecturer at Lund.   3.    The application is directed against Sweden. The respondent Government were represented by Mr. Carl Henrik Ehrenkrona, legal adviser at the Ministry for Foreign Affairs.   4.    The case relates to a division of building plots affecting the applicant's property. She complains that she could not obtain a court review of the pertinent administrative decisions and invokes Article 6 para. 1 of the Convention. She also alleges violations of Articles 17 and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention.   B.    The proceedings   5.    The application was introduced on 9 June 1987 and registered on 23 February 1988.   6.    On 6 September 1990 the Commission decided to bring the application to the notice of the respondent Government and invite them to submit written observations on its admissibility and merits limited to the issue under Article 6 para. 1 of the Convention.   7.    After an extension of the time-limit the Government's observations were submitted on 30 January 1991. The applicant's observations in reply were submitted on 30 March 1991.   8.    On 9 April 1991 the Commission decided to refer the application to the Second Chamber.   9.    Further observations were submitted by the Government on 22 May 1991 and by the applicant on 4 June 1991.   10.   On 14 October 1991 the Commission (Second Chamber) declared the complaint under Article 6 para. 1 of the Convention admissible and the remainder of the complaints inadmissible.   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 with the parties took place between October 1991 and July 1992. In the light of the parties' reactions, the Commission now finds that there is no basis upon which such a settlement can 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 text of this Report was adopted on 2 September 1992 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.   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.   15.   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.   16.   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   17.   The applicant was the owner of a property called Slätvaren 42 at Limhamn in the municipality of Malmö. She further owned an adjacent property called Slätvaren 2, which consisted of a narrow passage permitting access for Slätvaren 42 to Street P (Prångaregatan). Slätvaren 42 was situated alongside street S (Strandgatan).   18.   According to a town plan adopted on 18 October 1983 Slätvaren 42 was granted an extended building right along street S. The plan indicated that if Slätvaren 42 were divided the building plot situated away from street S would be given a road easement (vägservitut) to street S over the plot closer to that street.   19.   On 13 November 1985 the Building Committee (byggnadsnämnden) of Malmö adopted a proposal for division of building plots (tomtindelning). The proposal involved a division of Slätvaren 42 into two building plots, one called Slätvaren 48 and the other Slätvaren 49. The applicant's house is situated on Slätvaren 48. Having regard to the right to further construction allowed along street S Slätvaren 48 was given a road easement of a breadth of 2,5 metres and a height of 2,5 metres over Slätvaren 49 to that street. Slätvaren 2 was proposed to be added to the neighbouring property Slätvaren 1, as the passage was no longer considered necessary for Slätvaren 48.   20.   The applicant opposed the proposal. She submitted that it was inconvenient to arrange an access from plot 48 to street S. It was better to keep Slätvaren 2 as a passage for access for plots 48 and 49 to street P. The applicant invoked Section 33 of the 1959 Building Ordinance (byggnadsstadgan, hereinafter "the 1959 Ordinance").   21.   On 16 July 1986 the County Administrative Board (länsstyrelsen) of the County of Malmöhus confirmed the division of building plots pursuant to Section 33 of the 1947 Building Act (byggnadslagen, hereinafter "the 1947 Act"). It found that Section 33 of the 1959 Ordinance did not prevent the division of building plots. Further, the taking of Slätvaren 2 for the purpose of enlarging another property created a better division of the properties in the area and the applicant had been compensated as the building right on Slätvaren 42 had been extended.   22.   The applicant's appeal to the Government (Ministry of Housing) was rejected on 11 December 1986.   23.   On 12 June 1987 Slätvaren 2 was transferred and added to Slätvaren 1 in accordance with the division of building plots. Following an agreement with the owner of that property the applicant was paid 8.505 SEK in compensation.   B.    Relevant domestic law   24.   Up to 1 July 1987 division of building plots was part of the planning system under the 1947 Act and the 1959 Ordinance. Under Section 28 of the 1947 Act a building block was to be divided into plots for the appropriate development in accordance with a town plan. A division was to take place at the request of the land owner or when the Building Committee found a division necessary and provided that the landowner could not reasonably argue that a division should not take place (Section 30).   25.   Under Section 33 of the 1959 Ordinance the purpose of a division was to create a well-adapted, simple and clear division of a building block. Every property unit should have access to a street and regard was to be had to existing easements and property rights as well as to the express wishes of the property owner.   26.   Under Sections 37 and 38 of the 1947 Act construction in a block which had not been divided into plots was prohibited. If a division had been carried out construction was allowed to the extent that it complied with that division. In both cases exemptions could be made for special reasons.   27.   Under Section 34 para. 1 of the 1959 Ordinance a proposal for a division of building plots was to be made by a surveyor eligible to serve as Head of the Property Formation Authority (fastighets- bildningsmyndigheten). It was to be marked on a map and accompanied by a description. It further had to include the necessary easements. The division could be carried out provided the area was covered by a town plan and provided that it was in accordance with the conditions laid down in the 1970 Property Formation Act (fastighetsbildningslagen, hereinafter "the 1970 Act"). The division was adopted by the Building Committee and had to be confirmed by the County Administrative Board, from which an appeal lay to the Government (Sections 33 and 150 of the 1947 Act).   28.   The actual division of the property units was carried out by the Property Formation Authority. Under Chapter 3, Sections 1 and 2 of the 1970 Act property formation shall allow for each property unit to be permanently suitable for its purpose with respect to its location, size and other circumstances. Special regard should be had to the proper shape of the property and to its access to adjacent roads. The formation should correspond to the town plan or the division of building plots. However, exemptions from a town plan or a division of building plots could be allowed for special reasons provided that the derogation was in accordance with the purpose of the town plan.   29.   When the property formation consisted of property regulation (fastighetsreglering) land could be transferred from one property to another (Chapter 5, Section 1). Moreover, the properties should be composed and shaped in a way which suited their purpose equally well as before the property regulation. The property could not be changed in such a way as to decrease its value significantly (Chapter 5, Section 8).   30.   If land was transferred from a property the owner had the right to compensation in money or by receiving other pieces of land. The parties could settle the question of compensation themselves (Chapter 5, Sections 2 and 18).   31.   An easement created through a property regulation should be of essential importance to the purposeful use of the property benefiting from it. It could be created, changed or abolished without any formal request provided that this was important with regard to another measure involving a property regulation and if it was carried out in the same context (Section 10).   32.   The Property Formation Authority's decisions with regard to property regulation, including the creation of easements, could be appealed against to a Real Estate Court (fastighetsdomstol), a specially composed District Court (tingsrätt). Further appeals lay to a Court of Appeal (hovrätt) and the Supreme Court (Högsta domstolen), in the latter case provided that leave to appeal was granted.                    III.   OPINION OF THE COMMISSION   A.    Complaint declared admissible   33.   The complaint declared admissible concerns the absence of a right to a court review of the division of building plots.   B.    Point at issue   34.   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   35.   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      ..."   36.   The applicant alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that she did not have the possibility of a court review of the administrative decisions concerning the division of building plots.   37.   The Government admit a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the applicant had no access to court to challenge the decision to divide the building plots.   38.   The Commission considers that there existed a genuine dispute of a serious nature between the applicant and the authorities concerning the lawfulness of the division of building plots.   39.   Consequently, Article 6 para. 1 (Art. 6-1) of the Convention is applicable in the case.   40.   The Commission must next 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.   41.   The Commission recalls that the division of building plots was adopted by the Building Committee of Malmö on 13 November 1985 and confirmed by the County Administrative Board of the County of Malmöhus on 16 July 1986. The applicant's appeal to the Government was rejected on 11 December 1986.   42.   It follows that the dispute was determined 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 to be a "tribunal" for the purposes of Article 6 para. 1 (Art. 6-1).   43.   Consequently, the applicant did not have at her disposal a procedure satisfying the requirement of Article 6 para. 1 (Art. 6-1).   D.    Conclusion   44.     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 PROCEEDINGS   Date                           Item _________________________________________________________________   9 June 1987                   Introduction of the application   23 February 1988               Registration of the application   Examination of admissibility     6 September 1990              Commission's decision to invite the                               Government to submit observations on                               the admissibility and merits of the                               application   30 January 1991                Government's observations   30 March 1991                  Applicant's observations in reply     9 April 1991                  Application referred to the Second                               Chamber   22 May 1991                    Government's further observations     4 June 1991                   Applicant's further observations in                               reply   14 October 1991                Commission's decision to declare the                               application partly admissible and                               partly inadmissible   23 October 1991                Decision on admissibility communicated                               to the parties   Examination of the merits     1 July 1992                   Commission's consideration of the                               state of proceedings     2 September 1992              Commission's deliberations on the                               merits, final vote and adoption of                               the Report