European Court of Human Rights

The case originated in two applications (nos. 7151/75 and 7152/75) against Sweden lodged with the Commission in 1975 under Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by the Estate of the late Mr. E. Sporrong and by Mrs. I. M. Lönnroth, both of Swedish nationality. The Commission ordered the joinder of the applications on 12 October 1977.

The Government’s memorial was received at the registry on 31 July. On 15 September, the secretary to the Commission advised the Registrar that the Delegates would reply thereto at the hearings and asked for an extension of their time-limit until 31 October in order to allow them to file with the Registrar certain observations by the applicants. The President granted this request on 21 September.

On 18 February, he instructed the Registrar to obtain a document from the Commission; this was filed on 3 March.

There appeared before the Court:

- for the Government

       Mr H. DANELIUS, Ambassador,

                            Director of Legal and Consular Affairs, Ministry of            

                            Foreign Affairs,                                                           Agent,

       Mr. L. BECKMAN, Head of Division,

                            Ministry of Justice,

       Mr. G. REGNER, Legal Adviser,

                            Ministry of Justice,                                                  Counsel;

- for the Commission

       Mr. J. FROWEIN,

       Mr. T. OPSAHL,                                                                        Delegates,

       Mr. M. HERNMARCK and Mr. H. TULLBERG,

                            the applicants’ lawyers before the Commission, assisting    

                            the Delegates (Rule 29 par. 1, second sentence, of the         

                            Rules of Court).

The Court heard addresses by Mr. Frowein, Mr. Opsahl and Mr. Hernmarck for the Commission and by Mr. Danelius for the Government, as well as their replies to questions put by it and two of its members.

AS TO THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The sporrong estate

1. The expropriation permit

Under the Expropriation Act 1917 (expropriationslagen - "the 1917 Act"), the Government set at five years the time-limit within which the expropriation might be effected; before the end of that period the City Council had to summon the owners to appear before the Real Estate Court (fastighetdomstolen) for the fixing of compensation, failing which the permit would lapse.

Subsequently, "City 67", a revised general development plan for Lower Norrmalm and Östermalm (another district in the city centre), stressed the need to improve public transport by means of a better network of roads. Some of the sites involved were to be used for street-widening, but any final decision had to await a decision as to the utilisation of the orders. It was estimated that the revised plan, which was of the same type as "City 62", should be implemented before 1985.

In May 1975, the City Council put forward revised plans according to which the use of "Riddaren No. 8" was not to be modified and the existing building was not to be altered.

On 3 May 1979, the Government cancelled the expropriation permit at the Council’s request (see paragraph 29 below).

2. The prohibition on construction

B. Mrs. Lönnroth

1. The expropriation permit

On 3 May 1979, the Government cancelled the permit at the Council’s request (see paragraph 29 below).

2. The prohibition on construction

She failed to obtain a loan when, in the early 1970’s, one of the property’s major mortgagees demanded that the façade be renovated.

C. The town-planning policy of the city of Stockholm

Furthermore, most of the buildings were decrepit and in a poor state of repair. A large-scale redevelopment scheme was necessary in order to provide suitable premises for offices and shops as well as to create a healthy and hygienic working environment. Zonal expropriation, introduced by an Act of 1953 which amended, inter alia, Article 44 of the 1947 Act, became the key instrument for implementing the City Council’s plans. In less than ten years more than one hundred buildings were demolished. Some of the vacant sites thereby created were used to make new roads and others were integrated into larger and more functional complexes.

II. THE RELEVANT DOMESTIC LAW

A. Town-planning law

1. Expropriations

The official statement of reasons accompanying the Bill in which the 1972 Act originated drew attention to the disadvantages which expropriation permits occasion for property owners - uncertainly, restriction of the possibility of disposing of their property, difficulty in deciding whether to incur expenditure -, disadvantages which become more serious with the passage of time.

For this reason Article 6 par. 1 of Chapter 3 of the 1972 Act provides (translation from the Swedish):

"Expropriation permits shall set a time-limit for service of a summons to appear for the purposes of judicial proceedings. The time-limit may be extended if there are special reasons. Requests for extension shall be submitted before the time-limit expires. If the owner establishes that the fact that the question of expropriation remains pending has occasioned significantly more serious prejudice, the time-limit may, at his request, be reduced. No decision to reduce the time-limit can be taken until one year has elapsed since the issue of the expropriation permit."

The expropriation is not completed until compensation has been fixed and paid. The Real Estate Court has jurisdiction in the matter; its decisions may be challenged in the Court of Appeal and, in the final instance, the Supreme Court.

The present applications involve another kind of expropriation, known as zonal expropriation. The relevant provision was introduced in 1953, by means of an amendment to Article 44 of the 1947 Act, and was repealed in 1971 with effect from 1 January 1972. It was as follows (translation from the Swedish):

"If it is deemed necessary, for the purposes of public transport or town planning, to carry out a complete redevelopment of a densely-populated district and if such redevelopment can be effected only by means of rebuilding the entire district, the King may - where the redevelopment measures involve the adoption or modification of a city plan for the district concerned - grant the municipality the right to buy up the land needed for the redevelopment and also any land which is situated in the same district or in the immediate vicinity and whose value is likely to increase considerably as a result of the implementation of the plan ..."

Between 1 January and 31 December 1972, provisions corresponding to this Article 44 were incorporated in the 1917 Act; they now appear in the 1972 Act (Chapter 2, Article 1).

Zonal expropriations were thus designed as an instrument for major town-planning schemes. The permits which they entail may be issued as soon as a new city plan is under consideration, that is to say even before detailed arrangements for its implementation have been worked out.

2. Prohibitions on construction 1

"If a question is raised concerning a request for the adoption of a master plan for a certain zone or for the amendment of a master plan that has already been approved, the County Administrative Board may, at the request of the municipality, prohibit all new construction (nybyggnad) in that zone. The prohibition shall remain in force until a decision in the matter has been taken by the municipal council, but not for more than one year. Where necessary, the County Administrative Board may, at the request of the municipality, extend the validity of the prohibition on contruction by a maximum of two years at a time.

Exemptions form the prohibition on construction referred to in the preceding paragraph may be granted by the County Administrative Board or, in accordance with rules laid down by the Government, by the building Board (byggnadsnämnd)."

The same principle applies where the authorities contemplate adopting a new city plan or amending an existing one (Article 35 of the 1947 Act). The principle concerns only new constructions, but Article 158 of the 1947 Act states that the provisions on new constructions shall extend "to such alterations to existing premises as may be classified as new construction under rules laid down by the Government". A rule to this effect appears in Article 75 of the 1959 Building Ordinance (byggnadsstadgan), which reads as follows (translation from the Swedish):

"The expression ‘new construction’ shall mean:

(a) the erection of entirely new premises;

(b) the horizontal or vertical extension of existing premises;

(c) any rebuilding of the exterior or interior of premises or any alteration thereto which, on account of its scale, may be equated to rebuilding;

(d) the complete or partial conversion of premises for a use substantially different from their previous one;

(e) such alteration to premises as results in their no longer being in conformity with the adopted master plan, city plan or building plan (byggnadsplan) or the regulations on building activities in zones situated outside the areas covered by city plans or building plans: and

(f) any other alteration to premises which, in their present state, are not in conformity with the above-mentioned plans or regulations, except in the case of residential premises comprising not more than two dwellings or of outbuildings belonging to such premises.

However, for the purposes of the present Article, the expression "new construction" shall not include the installation of central heating, water closets or other sanitary amenities in premises which, even if such installation has not been authorised, are expected to remain in their present state for a considerable length of time."

"As for as can be ascertained from the facts, the property owners in the Borås and Östersund cases cannot have expected to reap any advantages from the town-planning scheme. This means that the scheme could not provide them with any compensation for the prejudicial effects that were clearly occasioned by the long-term prohibitions. If in such cases one does not institute some means of protecting property owners against the prejudicial effect of long-term prohibitions, then - in order to render the implementation of town-planning schemes less expensive for municipalities - one or more property owners will themselves have to bear the prejudicial effects of a prohibition which has been imposed mainly in the interests of the community to settle questions of town planning within a reasonable time. Such a system is irreconcilable with the position that should obtain in a State governed by the rule of law.

What arrangements should be made to protect a property owner against the prejudicial effects of temporary prohibitions on construction that remain in force for a lengthy period can hardly be stated without a thorough study of the problem. However, one possibility would be to set a maximum time-limit for the validity of temporary prohibitions. Nevertheless, such a solution could hardly be regarded as compatible with current requirements, for difficulties over determining what form future development should take mean that long delays cannot always be avoided. A preferable method would be to introduce a right for the property owner to seek compensation from the municipality for any loss he may establish or to require that it purchase the land once the prohibition has been in force for more than a certain period.

There should, however, be a condition that the prohibition has been in force for quite a long time and has occasioned significant prejudicial effects that cannot be compensated by the advantages which the owners could be expected to gain through the town-planning scheme.

In view of the foregoing, my opinion is that there should be a study of the question of introducing protection for private landowners against the prejudicial effects of unreasonably long temporary prohibitions on construction." (Justitieombudsmannens ämbetsberättelse 1967, pp. 478-479).

B. Remedies against the public authorities

1. Appeals against municipal councils’ decisions

Such an appeal could be based on the following grounds only: failure to observe the statutory procedures, infringement of the law, ultra vires conduct, violation of the appellant’s own rights or application of powers for an improper purpose. The appeal had to reach the County Administrative Board within three weeks of the date on which approval of the minutes of the decision had been announced on the municipal notice-board; the place where the minutes might be consulted was also indicated on the notice-board.

Unless otherwise provided, the County Administrative Board’s decision could, within three weeks from its notification to the appellant, be the subject of an appeal to the Supreme Administrative Court (regeringsrätten).

Almost identical provisions now appear in Chapter 7 of the Municipal Act 1977 (kommunallagen). They were slightly amended in 1980, with effect from 1 January 1981, in that the appeal now has to be made to the Administrative Court of Appeal (kammarrätten) and not to the County Administrative Board.

On the other hand, they do not apply to a decision to request the County Administrative Board to issue or extend a prohibition on construction: such a decision is, in fact, not open to any appeal to an administrative court.

2. Remedies against acts of the administration

(a) Administrative appeals

Thus, a decision by the County Administrative Board to issue or extend a prohibition on construction may be challenged by means of an appeal to the Government (Article 150 par. 2 of the 1947 Act).

(b) Judicial appeals

There is, however, an important exception to this principle, in that no appeal may be made against decisions of the Government.

3. Appeals against acts of the Government

Although the Public Administration Act 1971 (förvaltningslagen) is not formally applicable to proceedings before the Government, they must be conducted in compliance with a number of principles: the right of the person concerned to have access to all the documents in the case; an obligation on the authority to inform him of any document added to the file and to give him an opportunity of stating his opinion thereon; the right of the person concerned to express his views orally if he so wishes.

Before the Government take a decision on a request for an expropriation permit, the request will be submitted to the County Administrative Board which will prepare the file. The Board must, notably, give the property owner an opportunity to present his views on the request; it will also hear such public authorities as may have an interest in the matter. After collecting the necessary data, the Board will transmit them to the Government which will then be in a position to arrive at their decision.

"Once a judgment in a civil case has acquired the authority of res judicata, the re-opening of the proceedings in the interests of any of the parties may be ordered:

1. if a member or an official of the court has been guilty of a criminal offence or of misconduct in connection with the litigation or if an offence in connection with the litigation has been committed by a lawyer or legal representative, and if such offence or misconduct can be assumed to have affected the outcome of the case;

2. if a document submitted in evidence was forged or if a party examined on oath, a witness, an expert or an interpreter made false statements, and if such document or statements can be assumed to have affected the outcome of the case;

3. if there have come to light facts or evidence which, had they been put before the court previously, would probably have led to a different outcome; or

4. if the application of the law underlying the judgment is manifestly inconsistent with the law itself.

Re-opening of the proceedings on the ground referred to in paragraph 3 above may not be ordered unless the party concerned establishes that in all probability he was unable to put the facts or evidence before the first instance or a superior court or that he had some other valid reason for not doing so."

If, in a case like the present one, the Supreme Administrative Court accepts that the proceedings should be re-opened, it may either re-examine the whole case itself or refer it back to the Government.

The very numerous decisions taken by the Government each year in fact give rise to very few applications for re-opening of the proceedings.

C. Liability of public authorities

However, the legislature imposed an important restriction on this new principle, in that, save where the decisions in question have been set aside or modified, an action for damages "may not lie" in respect of decisions taken by Parliament, the Government, the Supreme Court, the Supreme Administrative Court and the National Social Security Court (Chapter 3, Article 7). According to authoritative commentaries, the court must, of its own motion, declare the action inadmissible in such case.

PROCEEDINGS BEFORE THE COMMISSION

The report contains three separate opinions.

AS TO THE LAW

I. THE ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)

"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."

"By recognising that everyone has the right to the peaceful enjoyment of his possessions, Article 1 (P1-1) is in substance guaranteeing the right of property. This is the clear impression left by the words ‘possessions’ and ‘use of property’ (in French: ‘biens’, ‘propriété’, ‘usage des biens’); the ‘travaux préparatoires’, for their part, confirm this unequivocally: the drafters continually spoke of "‘right of property’ or ‘right to property’ to describe the subject-matter of the successive drafts which were the forerunners of the present Article 1 (P1-1)." (Series A no. 31, p. 27, par. 63)

It has to be determined whether the applicants can complain of an interference with this right and, if so, whether the interference was justified.

1. The existence of an interference with the applicants’ right of property

Though not claiming that they had been formally and definitively deprived of their possessions, the Sporrong Estate and Mrs. Lönnroth alleged that the permits and prohibitions at issue subjected the enjoyment and power to dispose of their properties to limitations that were excessive and did not give rise to any compensation. Their right of property had accordingly, so they contended, been deprived of its substance whilst the measures in question were in force.

Although the expropriation permits left intact in law the owners’ right to use and dispose of their possessions, they nevertheless in practice significantly reduced the possibility of its exercise. They also affected the very substance of ownership in that they recognised before the event that any expropriation would be lawful and authorised the City of Stockholm to expropriate whenever it found it expedient to do so. The applicants’ right of property thus became precarious and defeasible.

The prohibitions on construction, for their part, undoubtedly restricted the applicants’ right to use their possessions.

The Court also considers that the permits and prohibitions should in principle be examined together, except to the extent that analysis of the case may require a distinction to be drawn between them. This is because, even though there was not necessarily a legal connection between the measures (see paragraph 35 above) and even though they had different periods of validity, they were complementary and had the single objective of facilitating the development of the city in accordance with the successive plans prepared for this purpose.

There was therefore an interference with the applicants’ right of property and, as the Commission rightly pointed out, the consequences of that interference were undoubtedly rendered more serious by the combined use, over a long period of time, of expropriation permits and prohibitions on construction.

2. The justification for the interference with the applicants’ right of property

That Article (P1-1) comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the 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; it is contained in the second paragraph.

The Court must determine, before considering whether the first rule was complied with, whether the last two are applicable.

(a) The applicability of the second sentence of the first paragraph

In the Court’s opinion, all the effects complained of (see paragraph 58 above) stemmed from the reduction of the possibility of disposing of the properties concerned. Those effects were occasioned by limitations imposed on the right of property, which right had become precarious, and from the consequences of those limitations on the value of the premises. However, although the right in question lost some of its substance, it did not disappear. The effects of the measures involved are not such that they can be assimilated to a deprivation of possessions. The Court observes in this connection that the applicants could continue to utilise their possessions and that, although it became more difficult to sell properties in Stockholm affected by expropriation permits and prohibitions on construction, the possibility of selling subsisted; according to information supplied by the Government, several dozen sales were carried out (see paragraph 30 above).

There was therefore no room for the application of the second sentence of the first paragraph in the present case.

(b) The applicability of the second paragraph

(c) Compliance with the first sentence of the first paragraph as regards the expropriation permits

According to the Sporrong Estate and Mrs. Lönnroth, it had been the established practice since the entry into force of the Act for the normal time-limit for service of a summons to appear before the Real Estate Court to be one year. Since the time-limits in the present case were as long as five and ten years respectively, it was alleged that there was no legal basis for the original permits; the same was said to apply to the three extensions of the permit affecting the property of the Sporrong Estate.

The respondent State replied that the issue and the extension of the permits were in conformity with Swedish law: it argued that since the Government were entitled to fix the period of validity of the original permit, they were also empowered, in the absence of any provision to the contrary, to extend it.

For the purposes of the latter provision, the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see, mutatis mutandis, the jugdment of 23 July 1968 in the "Belgian Linguistic" case, Series A no. 6, p. 32, par. 5). The search for this balance is inherent in the whole of the Convention and is also reflected in the structure of Article 1 (P1-1).

The Agent of the Government recognised the need for such a balance. At the hearing on the morning of 23 February 1982, he pointed out that, under the Expropriation Act, an expropriation permit must not be issued if the public purpose in question can be achieved in a different way; when this is being assessed, full weight must be given both to the interests of the individual and to the public interest.

The Court has not overlooked this concern on the part of the legislature. Moreover, it finds it natural that, in an area as complex and difficult as that of the development of large cities, the Contracting States should enjoy a wide margin of appreciation in order to implement their town-planning policy. Nevertheless, the Court cannot fail to exercise its power of review and must determine whether the requisite balance was maintained in a manner consonant with the applicants’ right to "the peaceful enjoyment of [their] possessions", within the meaning of the first sentence of Article 1 (P1-1).

The Courts has not overlooked the interest of the City of Stockholm in having the option of expropriating properties in order to implement its plans. However, it does not see why the Swedish legislation should have excluded the possibility of re-assessing, at reasonable intervals during the lengthy periods for which each of the permits was granted and maintained in force, the interests of the City and the interests of the owners. In the instant case, the absence of such a possibility was all the less satisfactory in that the town-planning schemes underlying the expropriation permits and, at the same time, the intended use prescribed for the applicants’ properties were modified on several occasions.

"Naturally, the mere issue of an expropriation permit often places him in a state of uncertainty. In practice, his opportunities for disposing of his property by selling it, assigning the use thereof or having premises erected thereon are considerably restricted. He may also have difficulty in deciding whether to incur expenditure on upkeep or modernisation. The disadvantages resulting from an expropriation permit are, of course, increased if the judicial proceedings are not set in motion for a long time." (Kungl. Maj:ts proposition nr. 109, 1972, p. 227)

The 1972 Act takes partial account of these problems. Admittedly, it does not provide for compensation to be granted to property owners who may have been prejudiced by reason of the length of the validity of the permit; however, it does enable them to obtain a reduction of the time-limit for service of the summons to appear before the Real Estate Court if they establish that the fact that the question of expropriation remains pending has caused significantly more serious prejudice (see paragraph 37 above). Since the Act was not applicable in the present case (see paragraph 39 above), it could not have been of assistance to the applicants in overcoming any difficulties which they might have encountered.

In the Court’s view, it is not appropriate at this stage to determine whether the applicants were in fact prejudiced (see, mutatis mutandis, the above-mentioned Marckx judgment, Series A no. 31, p. 13, par. 27): it was in their legal situation itself that the requisite balance was no longer to be found.

(d) Compliance with Article 1 (P1-1) as regards the prohibitions on construction

II. THE ALLEGED VIOLATION OF ARTICLES 17 AND 18, OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 17+P1-1, art. 18+P1-1).

The Commission concluded unanimously that there had been no violation.

Having found that there was a breach of Article 1 of Protocol No 1. (P1-1), the Court does not consider it necessary also to examine the case under Articles 17 and 18 (art. 17, art. 18) of the Convention.

III. THE ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 14+P1-1)

The Court does not accept this argument, which is not supported by any evidence in the material before it.

IV. THE ALLEGED VIOLATION OF ARTICLE 6 PAR. 1 (art. 6-1) OF THE CONVENTION

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ..."

A. The applicability of Article 6 par. 1 (art. 6-1)

The Court is unable to share this view. In its Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, it pointed out that Article 6 par. 1 (art. 6-1) "is not applicable solely to proceedings which are already in progress: it may also be relied on by anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 par. 1 (art. 6-1)" (Series A no. 43, p. 20, par. 44, with a reference to the Golder judgment of 21 February 1975, Series A no. 18). It is of little consequence that the contestation (dispute) concerned an administrative measure taken by the competent body in the exercise of public authority (see, mutatis mutandis, the Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, par. 94, and the König judgment of 28 June 1978, Series A no. 27, p. 32, par. 94).

In the present case, the applicants emphasised that they had not had the possibility of applying to a tribunal having jurisdiction to examine the situation created by the issue or extension of the expropriation permits.

B. Compliance with Article 6 par. 1 (art. 6-1)

1. Review of the lawfulness of the City Council’s decisions

It is true that, in so far as those decisions had come to the applicants’ knowledge - despite the absence, according to them, of any individual notification -, they could have referred the matter to the County Administrative Board and then, if necessary, to the Supreme Administrative Court (see paragraph 43 above). However, the requests were only preparatory steps which, in themselves, did not at that stage interfere with a civil right. Furthermore, their lawfulness did not necessarily depend on the same criteria as the lawfulness of the final decisions taken by the Government in this respect.

2. Review of the lawfulness of the Government’s decisions

Admittedly, owners can challenge the lawfulness of such decisions by requesting the Supreme Administrative Court to re-open the proceedings. However, they must in practice rely on grounds identical or similar to those set out in Chapter 58, Article 1, of the Code of Judicial Procedure (see paragraph 50 above). Furthermore, this is an extraordinary remedy - as the Government admitted - and is exercised but rarely. When considering the admissibility of such an application, the Supreme Administrative Court does not examine the merits of the case; at that stage, it therefore does not undertake a full review of measures affecting a civil right (see, mutatis mutandis, the above-mentioned Le Compte, Van Leuven and De Meyere judgment, Series A no. 43, pp. 23, 24 and 26, par. 51, 54 and 60). It is only where the Supreme Administrative Court has declared the application admissible that such a review can be effected, either by that court itself or, if it has referred the case back to a court or authority previously dealing with the matter, by the latter court or authority. In short, the said remedy did not meet the requirements of Article 6 par. 1 (art. 6-1).

V. THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION

"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."

In its report, the Commission expressed the opinion that there had been a breach of this Article (art. 13). The Government contested this opinion, especially in their memorial of 31 July 1981, which was exclusively devoted to this issue.

Having regard to its decision on Article 6 par. 1 (art. 6-1), the Court considers that it is not necessary to examine the case under Article 13 (art. 13); this is because its requirements are less strict than, and are here absorbed by, those of Article 6 par. 1 (art. 6-1) (see the above-mentioned Airey judgment, Series A no. 32, p. 18, par. 35, and, mutatis mutandis, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pl. 46, par. 95, and the above-mentioned Golder judgment Series A no. 18, pp. 15-16, par. 33).

VI. THE APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

The Government confined themselves to indicating that they reserved their position on the application of Article 50 (art. 50).

Accordingly, although it was raised under Rule 47 bis of the Rules of Court, this question is not ready for decision. The Court is therefore obliged to reserve it and fix the further procedure, taking due account of the possibility of an agreement between the respondent State and the applicants.

FOR THESE REASONS, THE COURT

1. Holds by ten votes to nine that there has been a violation of Article 1 of Protocol No. 1 (P1-1), as regards both applicants;

2. Holds unanimously that it is not necessary also to examine the case under articles 17 and 18 of the Convention, taken together with Article 1 of Protocol No. 1 (art. 17+P1-1, art. 18+P1-1);

3. Holds unanimously that there has not been a violation of Article 14 of the Convention, taken together with Article 1 of Protocol No. 1 (art. 14+P1-1);

4. Holds by twelve votes to seven that there has been a violation of Article 6 par. 1 (art. 6-1) of the Convention, as regards both applicants;

5. Holds unanimously that it is not necessary also to examine the case under Article 13 (art. 13) of the Convention;

6. Holds unanimously that the question of the application of Article 50 (art. 50) is not ready for decision;

accordingly,

(a) reserves the whole of the said question;

(b) invites the Commission to submit to the Court, within two months from the delivery of the present judgment, the Commission’s written observations on the said question and, in particular, to notify the Court of any friendly settlement at which the Government and the applicants may have arrived;

(c) reserves the further procedure and delegates to the President of the Court power to fix the same if need be.

Done in English and in French, the French text being authentic, at the Human Rights Building, Strasbourg, this twenty-third day of September, one thousand nine hundred and eighty-two.

Gérard WIARDA

President

Marc-André EISSEN

Registrar

The separate opinions of the following judges are annexed to the present judgment in accordance with Article 51 par. 2 (art. 51-2) of the Convention and Rule 50 par. 2 of the Rules of Court:

- joint dissenting opinion of Mr. Zekia, Mr. Cremona, Mr. Thór Vilhjálmsson, Mr. Lagergren, Sir Vincent Evans, Mr. Macdonald, Mr. Bernhardt and Mr. Gersing with regard to Article 1 of Protocol No. 1 (P1-1);

- concurring opinion of Mr. Cremona with regard to Article 6 par. 1 (art. 6-1) of the Convention;

- dissenting opinion of Mr. Thór Vilhjálmsson with regard to Article 6 par. 1 (art. 6-1) of the Convention;

- dissenting opinion of Mr. Lagergren concerning Article 6 par. 1 (art. 6-1) of the Convention;

- joint dissenting opinion of Mr. Pinheiro Farinha, Sir Vincent Evans, Mr. Macdonald, Mr. Bernhardt and Mr. Gersing with regard to Article 6 par. 1 (art. 6-1) of the Convention;

- partly dissenting opinion of Mr. Walsh.

G.W.

M.-A. E.

CONCURRING OPINION OF JUDGE CREMONA WITH REGARD TO ARTICLE 6 § 1 (art. 6-1) OF THE CONVENTION

I have already, in a joint opinion with other brother judges, expressed my disagreement with the majority conclusion that there is in this case a violation of Article 1 of the First Protocol (P1-1). I shall now outline my reasons for finding, with the majority, a violation of Article 6 § 1 (art. 6-1) of the Convention, and I shall endeavour to do so as briefly as possible.

The Court has already had occasion to establish that Article 6 § 1 (art. 6-1) guarantees access to a court or tribunal in cases where the determination of civil rights and obligations is at issue (Golder judgment of 21 February 1975, Series A no. 18, p. 18, § 36). It has also held that that provision may "be relied on by anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 § 1 (art. 6-1)" (Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 20, § 44).