CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 octobre 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. 21073/92                       by S.J., B.J. and G.J.                       against Sweden           The European Commission of Human Rights (Second Chamber) sitting in private on 16 October 1996, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  L. LOUCAIDES                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA              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 25 November 1991 by S.J., B.J. and G.J. against Sweden and registered on 15 December 1992 under file No. 21073/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the respondent Government on 17 February 1995 and the observations in reply submitted by the applicants on 6 April 1995;         Having deliberated;         Decides as follows:   THE FACTS         The applicants, A, B and C, three brothers, are Swedish citizens born in 1936, 1943 and 1939 respectively. B is a farmer, which also used to be his brothers' occupation. Before the Commission they are represented by Mr. Anders Delphin, a lawyer practising at Marstrand, Sweden.         The facts of the case, as submitted by the parties, may be summarised as follows.         The applicants own one third each of two pieces of agricultural property (Vara Faleberg 2:3 and Vara Faleberg 2:12) in Vedum, Sweden. A and B reside on the property. C emigrated from Sweden in January 1985 and is now living in Dublin, Ireland. On 25 November 1980 C issued a power of attorney for A and B or a lawyer appointed by A or B to represent him in disputes and negotiations with regard to roads and other encroachments on the above property.         By contract of 30 November 1985, the property is leased by two lessees to be used for training of hunting dogs. The rent is 5000 SEK per year. It was paid for the first time in 1989. The lease states, as a condition for its validity, that the property will not be encumbered with a right for anyone to travel on it. Accordingly, the applicants have agreed not to construct any roads on the property. The lessees have obtained a permit from the County Administrative Board (Länsstyrelsen) of the County of Skaraborg to fence in the property.         After the applicants had started legal proceedings against two neighbours for unauthorised use of a road on the applicants' property, a friendly settlement was reached in court on 30 October 1987 according to which the neighbours agreed not to use the road.         In a petition dated the same day, 30 October 1987, to the Real Estate Formation Authority (Fastighetsbildningsmyndigheten) of Mariestad one of the parties to the friendly settlement agreement and another neighbour requested that a road be constructed and that administrative proceedings (anläggningsförrättning) be instituted for this purpose. Almost half of the length of the proposed road is situated on the applicants' property, mainly taking up the space of the already existing road, but also requiring some logging.         On 26 November 1987 a bailiff (stämningsman) handed over a summons in the administrative proceedings to A. At the same time, the bailiff also handed over a summons for C to A, in accordance with Chapter 4, Section 21 of the Real Estate Formation Act (Fastighetsbildningslagen, 1970:988), which provides that if a property owner permanently resides abroad and service cannot be effected with a known representative in Sweden, the document in question may be handed over to the administrator or user of the property. According to the applicants, C was at the time living in England, but A and B did not know his address.         On 30 November 1987 the Real Estate Formation Authority, consisting of a land surveyor, held proceedings at the location of the proposed road. The property owners concerned had been summoned, and apparently, most of them, including A and B, were present, either in person or through their representatives. Those present were heard on the different aspects of the undertaking. C was, however, absent. According to the minutes of the proceedings, A and B refused to state C's address.         On the same day, 30 November 1987, the Real Estate Formation Authority decided that the proposed road should be constructed, as the benefits of the road outweighed the inconveniences and costs of it and as the construction fulfilled all other requirements of the Construction Act (Anläggningslagen, 1973:1149). It further decided that 17 properties in the area would benefit from the road, that the road should be jointly owned by these properties, that an association of joint property owners (samfällighet) should be founded to construct and maintain the road, and that the costs of construction and maintenance should be distributed among the 17 properties. The applicants' properties' total share of the costs was fixed at 13.7 per cent. Moreover, the Authority decided that the applicants should receive compensation in the amount of 800 SEK for the use of their land. A and B opposed all the decisions taken.         A and B appealed to the Real Estate Court (Fastighetsdomstolen) of Mariestad, requesting the Court to quash the decision of the Real Estate Formation Authority, in the first place, because C had not been properly summoned to the administrative proceedings and, in the second place, because the requirements of the Construction Act had not been met. They submitted that the road in question was not of essential importance to the neighbouring properties, as there was an alternative road, not involving the applicants' property, which could be used by these properties. They further maintained that the road to be constructed would affect the leasehold and that this had not been taken into account by the Real Estate Formation Authority. Finally, they claimed that the two neighbours who were parties to the friendly settlement agreement should not, in accordance with the terms of the said agreement, in any case be allowed to use the road to be constructed.         On 24 January 1989 the Real Estate Court held a hearing, at which it inspected the locus in quo (syn). A and B appeared and were represented by a lawyer, but, again, C was absent. Prior to the hearing, the Court had investigated C's whereabouts, but had not been able to find out his address. It had, inter alia, contacted A and B who had replied that they did not know C's address and that, in any case, he had requested that his address not be revealed. A had later told a court clerk by telephone that he would provide the Court with C's address or a power of attorney for him. A, however, failed to do so. The court, therefore, sent a summons for C to A who, however, refused to sign the receipt, as he was allegedly not authorised to sign receipts for mail addressed to C. The other property owners and the two lessees had been summoned to appear at the hearing.         By decision of 7 February 1989, the Real Estate Court rejected the appeal, stating that C had been summoned to the proceedings of the Real Estate Formation Authority in accordance with the applicable rules, that the road in question was important for forestry purposes, that the costs of putting the alternative road in order for the use of transport of forestry products would exceed the costs of constructing the road in question and that the existence of the leasehold, which the lessees had not yet made use of, did not invalidate the land surveyor's assessment of the advantages and disadvantages of the construction. The Court further noted that the road in question was constructed for the benefit of the properties involved and not the property owners. For this reason, the friendly settlement agreement was of no importance to the case in question.         A, B and the two lessees appealed to the Göta Court of Appeal (Göta hovrätt), which on 5 June 1989 quashed the decision of the Real Estate Court and referred the case back to that Court for re- examination. The Court of Appeal found that the rules on how to serve a summons in the proceedings of the Real Estate Court were different from the rules applicable to the proceedings of the Real Estate Formation Authority and required, according to Section 15 of the Act on Service of Documents (Delgivningslagen, 1970:428), in this particular case where the whereabouts of C were unknown, that the summons be served by publication. As this had not been done, the Real Estate Court had made a grave procedural error. The Court of Appeal, however, concurred with the Real Estate Court's finding that C had been served a proper summons in the administrative proceedings.         On 26 September 1989 the Real Estate Court held a second combined hearing and inspection, at which A and B and their lawyer were present. C did not appear. He had, however, been summoned by publication; the summons had been available at the Court for a period of 20 days and a notice of the summons had been published in five daily papers. At the hearing, a member of the general public who was in favour of the road construction was allowed to speak. Furthermore, the land surveyor was heard. During the inspection, the presiding judge and another member of the court were given a lift by one of the opposing parties.         On 31 October 1989 the Real Estate Court again rejected the appeal. In addition to its findings of 7 February 1989, the Court found that, in accordance with a 1923 agreement to allow the property owners in the neighbourhood to travel on each other's properties, these property owners had, in the 1940's, put the road on the applicants' property in order and had, thereafter, maintained it to stand heavy transports. Thus, the Court concluded that the existence of the more recent leasehold was not of decisive importance to the case.         A, B and the two lessees again appealed to the Court of Appeal. In submissions filed with the appellate court by A's and B's lawyer on 28 November 1989 and 9 January 1990, A and B claimed that the 1923 agreement did not apply to the road on the applicants' property, as the road did not exist at the time of the agreement, and that the road had not been used by the neighbours until the 1960's. They also referred to the alternative road and to the leasehold, and notified the Court of C's address in Dublin. In a further letter, filed with the Court by A and B themselves on 7 May 1990, they requested that an oral hearing be held and that they be given an opportunity to complete their appeal before the court decided on the case. They did not, however, indicate the nature of the further submissions they wished to make.         The Court of Appeal did not consider the requests for an oral hearing and an opportunity to complete the appeal. Moreover, it appears that it did not notify C in any way before its decision, although, at this time, his address was known to the Court. By decision of 6 June 1990, the appeal was rejected.         A, B and C applied for leave to appeal to the Supreme Court (Högsta domstolen). In addition to what they had stated in their appeals to the lower courts, A and B alleged that, as the Court of Appeal had disregarded their requests for an oral hearing and an opportunity to complete their appeal, they had not been able to complain about the events of the second hearing of the Real Estate Court. C, for his part, asserted that the Real Estate Formation Authority and the different courts had failed to notify him of the proceedings, although his foreign address had been known. He further stated that the economic loss sustained due to the decision to construct the road in question was not insignificant and referred, in this respect, to his brothers' submissions in the case.         On 14 June 1991 the Supreme Court refused leave to appeal.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 25 November 1991 and registered on 15 December 1992.         On 30 November 1994 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure. The Government were requested to limit their observations to the complaints submitted under Article 6 of the Convention and deal with the questions whether A and B had a fair and public hearing having regard in particular to the fact that they were denied an oral hearing and an opportunity to complete their appeal to the Court of Appeal and whether C received a fair and public hearing given that he was not summoned at his own address and that he therefore did not participate in the various court proceedings.         The Government's written observations were submitted on 17 February 1995. The applicant replied on 6 April 1995.   COMPLAINTS   1.     The applicants claim that the decisions to construct the road constitute an unjustified interference with their right to the peaceful enjoyment of their possessions. They invoke Article 1 of Protocol No. 1 to the Convention.   2.     A and B assert that the proceedings of the Real Estate Formation Authority have violated their right to a fair hearing by an impartial tribunal under Article 6 of the Convention.   3.     A and B assert that the proceedings of the Real Estate Court have also violated their right to a fair hearing by an impartial tribunal under Article 6 of the Convention. They submit that the judge presiding over the first hearing of the Real Estate Court made remarks that showed his partiality. During its second hearing, the partiality of the Court was allegedly shown, inter alia, when the presiding judge and another member of the Court rode in the car of one of the opposite parties and when a member of the general public who was in favour of the road construction was allowed to speak. Furthermore, the land surveyor was heard during the Court's second hearing. The applicants claim that he was not heard only by way of information, but that he was allowed to hold a speech in defence of the decision he had taken on behalf of the Real Estate Formation Authority. They find that the presence of a representative of the decision-making administrative authority at the Real Estate Court's hearing undermines confidence in the impartiality of the Court.   4.     A and B submit that they did not have an effective remedy against the Real Estate Court's decision to let a member of the general public speak during its proceedings or against the allegedly unfair proceedings of that Court. They invoke Article 13 of the Convention.   5.     A and B further complain that, in the second proceedings before the Court of Appeal, they were denied an oral hearing as well as an opportunity to complete their appeal. They invoke Article 6 of the Convention.   6.     C claims that he was denied the opportunity to plead against the proposal to construct the road, as he was not informed of the proceedings before the Real Estate Formation Authority and the courts. He claims that his foreign address was to be found in official national registers, to which the Authority and the courts had access, and that the Court of Appeal had been notified of his address in Dublin. A summons could therefore not have been served by publication, but should have been served by mail or through the Ministry of Foreign Affairs. He invokes Article 13 of the Convention.   THE LAW   1.     The applicants claim that the decisions to construct the road constitute an unjustified interference with their right to the peaceful enjoyment of their possessions. They invoke Article 1 of Protocol No. 1 (P1-1) to the Convention, 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 applicants maintain that they have sustained considerable economic loss, as the conditions of the leasehold could not be met. They further submit that an alternative road could be used, and that therefore they should not have to endure the interference at issue. They also argue that the courts have disregarded the principle of "pacta sunt servanda" by not taking into account the friendly settlement agreement.         The Commission first notes that the applicants have not been deprived of their possessions as a result of the decisions concerning the road in question. The Commission, however, finds that the decisions complained of constituted a measure of controlling the use of their property falling under the second paragraph of the above provision. Such a measure is permissible in the general interest if there exists a reasonable relationship of proportionality between the means employed and the aim pursued. In striking a fair balance between the general interest of the community and the requirement of protection of the individual's fundamental rights, the authorities enjoy a wide margin of appreciation (cf. Eur. Court HR, Allan Jacobsson v. Sweden judgment of 25 October 1989, Series A no. 163, p. 17, para. 55).         In the present case, the Commission recalls the judgment of the Real Estate Court of 31 October 1989 in which the Court, inter alia, referred to its findings of 7 February 1989 that the road in question was important for forestry purposes and that the alternative road would be more costly. The Commission, therefore, finds that the construction of the road was in the 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 relevant decisions, including the applicants' obligation to contribute to the costs of construction and maintenance of the road, 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.   2.     A and B assert that the proceedings of the Real Estate Formation Authority have violated their right to a fair hearing by an impartial tribunal. They invoke Article 6 (Art. 6) of the Convention which, in so far as relevant, provides as follows:         "1. In the determination of his civil rights and       obligations ..., everyone is entitled to a fair and public       hearing ... by an ... impartial tribunal ..."         The applicants submit, inter alia, that the land surveyor did not impartially weigh the advantages and disadvantages of the proposed road construction, that his investigation was inadequate, not including an estimate of the total costs of the construction, and that he applied the relevant law incorrectly. They claim that these mistakes favoured the opposite parties.         The Commission first notes that the dispute in the present case concerned measures which affected the applicants' right to use their property. The proceedings in the case thus determined the applicants' civil rights within the meaning of Article 6 (Art. 6) of the Convention. The Commission, however, recalls that Article 6 (Art. 6) does not oblige the Contracting States to submit disputes over civil rights to a procedure conducted at each of its stages before tribunals meeting the requirements of that Article. If a dispute is determined at the first stage by an administrative authority which does not meet these requirements, Article 6 (Art. 6) requires that the authority's decision is subject to subsequent control by a judicial body that has full jurisdiction (cf. Eur. Court HR, Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, p. 23, para. 51, and Albert and Le Compte v. Belgium judgment of 10 February 1983, Series A no. 58, p. 16, para. 29).           The Commission recalls that, in the present case, the decision of the Real Estate Formation Authority was appealed against to the Real Estate Court, the Court of Appeal and the Supreme Court, tribunals with full jurisdiction in the case.         Thus, even assuming that the proceedings before the Real Estate Formation Authority did not comply with the requirements under Article 6 (Art. 6) of the Convention, the Commission does not consider it necessary to examine the applicant's complaints in so far as they concern these proceedings.   3.     A and B assert that the proceedings of the Real Estate Court have also violated their right to a fair hearing by an impartial tribunal under Article 6 (Art. 6) of the Convention. They submit that the judge presiding over the first hearing of the Real Estate Court made remarks that showed his partiality. During its second hearing, the partiality of the Court was allegedly shown, inter alia, when the presiding judge and another member of the Court rode in the car of one of the opposite parties and when a member of the general public who was in favour of the road construction was allowed to speak. Furthermore, the land surveyor was heard during the Court's second hearing. The applicants claim that he was not heard only by way of information, but that he was allowed to hold a speech in defence of the decision he had taken on behalf of the Real Estate Formation Authority. They find that the presence of a representative of the decision-making administrative authority at the Real Estate Court's hearing undermines confidence in the impartiality of the Court.         The Commission first considers that it was reasonable to hear the land surveyor, as he had extensive knowledge of the case. In this connection, the Commission notes that the land surveyor was not a party to the dispute, the parties being the applicants and the other property owners, and that nothing suggests that A and B or their lawyer, who were all present at the hearing, were prevented from questioning the land surveyor or submit such evidence and arguments as they saw fit (cf. Eur. Court HR, Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, p. 39, para. 89).         With respect to the applicant's other complaints in regard to the proceedings before the Real Estate Court, the Commission considers that they fail to substantiate that the Court was not impartial or, in other respects, failed to meet the requirements under Article 6 (Art. 6) of the Convention.         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.   4.     A and B submit that they did not have an effective remedy against the Real Estate Court's decision to let a member of the general public speak during its proceedings or against the allegedly unfair proceedings of that court. They invoke Article 13 (Art. 13) of the Convention.         The Commission first recalls that Article 6 (Art. 6) of the Convention is applicable to the proceedings in question. The present complaint should thus first be examined under that Article.         The Commission finds that A and B could have raised their complaints in their appeal to the Court of Appeal which, if it had considered that the particular circumstances constituted a grave procedural error, could have quashed the Real Estate Court's judgment and referred the case back to that Court for re-examination.         The Commission therefore considers that the present complaint does not reveal any appearance of a violation of Article 6 (Art. 6). Noting that the requirements of Article 13 (Art. 13) are less strict than those of Article 6 (Art. 6), the Commission further finds that no separate issue arises under Article 13 (Art. 13).         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.   5.     A and B further complain that, in the second proceedings before the Court of Appeal, they were denied an oral hearing as well as an opportunity to complete their appeal. They invoke Article 6 (Art. 6) of the Convention.         The respondent Government submit that this complaint should be declared admissible and leave it to the Commission to decide whether there has been a violation of Article 6 (Art. 6) of the Convention. In this respect, they note, inter alia, that A's and B's arguments were included already in the appeal petition initiating the second set of proceedings before the Court of Appeal. Moreover, when they requested to be given an opportunity to complete the appeal, A and B did not specify what kind of further observations they intended to submit or how much time they would need for the submission of these observations.         The Commission considers, after a preliminary examination of this complaint in the light of the parties' submissions, that it raises questions of fact and law which require an examination of the merits. This part of the application cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.   6.     C claims that he was denied the opportunity to plead against the proposal to construct the road, as he was not informed of the proceedings before the Real Estate Formation Authority and the courts. He claims that his foreign address was to be found in official national registers, to which the Authority and the courts had access, and that the Court of Appeal had been notified of his address in Dublin. A summons could therefore not have been served by publication, but should have been served by mail or through the Ministry of Foreign Affairs. He invokes Article 13 (Art. 13) of the Convention, which reads as follows:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy       before a national authority notwithstanding that the       violation has been committed by persons acting in an       official capacity."         The Government, acknowledging that Article 6 (Art. 6) of the Convention is applicable per se to the present complaint, first questions whether C can claim to be a victim, within the meaning of Article 25 (Art. 25) of the Convention, of the alleged violation of Article 6 (Art. 6). In this respect, the Government submit that, as one of three owners of the property in question, C can be presumed to have had the same interests in the proceedings as the other owners. Furthermore, A and B based their appeals to the different courts partly on their contention that C had not been properly summoned to the various proceedings.         In the alternative, the Government submit that C's complaint is manifestly ill-founded. They maintain that C, when leaving Sweden, appears to have left the administration of the property in question to his brothers. He furthermore provided them with a power of attorney to enable them to act on his behalf. All procedural acts performed by A and B concerned the jointly owned property and operated to the advantage of all property owners, including C. As stated by C in his appeal to the Supreme Court, he had the same interests as his brothers. Moreover, C was summoned to the proceedings before the Real Estate Formation Authority and the Real Estate Court in accordance with relevant domestic legislation. In the Government's view, there are also good reasons to believe that C was aware of the proceedings in the case and that he decided of his own volition not to take part in the proceedings.         The Commission considers, after a preliminary examination of this complaint in the light of the parties' submissions, that it raises questions of fact and law which require an examination of the merits. This part of the application cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.         For these reasons, the Commission, unanimously,         DECLARES ADMISSIBLE without prejudging the merits of the case,       the applicants' complaints that A and B were denied an oral       hearing and an opportunity to complete their appeal to the Court       of Appeal and that C was not informed of the proceedings in the       case; and         DECLARES INADMISSIBLE the remainder of the application.        M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber