European Court of Human Rights

The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. As regards the facts, reference should be made to paragraphs 9 to 52 of the above-mentioned judgment (ibid., pp. 9-21).

In its judgment of 23 September 1982, the Court reserved the question. It invited the Commission to submit, within the coming two months, its written observations and, in particular, to notify the Court of any friendly settlement at which the Government and the applicants might have arrived. Finally, the Court delegated to its President power to fix the further procedure if need be (ibid., paragraph 89 of the reasons and point 6 of the operative provisions).

- on 20 May 1983, through the Secretary to the Commission, a memorial of the applicants;

- on 4 October 1983, observations of the Government on that memorial;

- on 16 January 1984, comments of the Commission’s Delegates and further observations by the applicants;

- on 8, 13 and 20 February 1984, telexes and two documents from the applicants’ representative;

- on 21 February and 15 March 1984, a letter and certain observations from the Agent of the Government;

- on 21 June 1984, through the Commission’s Secretariat, observations by the expert acting for the applicants.

These various documents revealed that it had not been possible to arrive at a friendly settlement. As regards the observations received on 21 June 1984, which were considered by the Government to have been filed too late, the Court has taken account of them only to the extent that they were repeated at the hearings.

On 30 March, the Registrar sent to those appearing before the Court a list of questions put by it. He received the applicants’ replies on 15 May, through the Delegates, and the Government’s on 21 May.

There appeared before the Court:

- for the Government

       Mr. H. Corell, Principal Legal Adviser

                            at the Ministry of Justice,                                            Agent,

       Mr. B. Hall, Real Estate Judge,

                            Svea Court of Appeal,

       Mr. B. Malmström, advokat,                                                 Advisers;

- for the Commission

       Mr. J. Frowein,                                                                        Delegate,

       Mr. H. Tullberg, the applicants’ lawyer

                            before the Commission,

       Mr. E. Ahrenby,

       Mr. M. Levin, assisting the Delegate

                            (Rule 29 para. 1, second sentence, of the Rules of Court).

The Court heard addresses by Mr. Corell and Mr. Hall for the Government and by Mr. Frowein, Mr. Tullberg and Mr. Ahrenby for the Commission, as well as their replies to the questions put by two of its members. The Commission’s Delegate filed various documents.

- on 29 June 1984, a copy of a letter from the Agent of the Government to the applicants’ representative;

- on 2 July 1984, a copy of a letter from the said representative to the Agent;

- on 27 September 1984, through the Deputy Secretary to the Commission, further comments by the applicants, together with details of their expenses;

- on 22 October 1984, observations of the Government, concerning the expenses;

- on 6 November 1984, remarks by the Commission’s Delegate.

The Court has taken account of the document received on 27 September 1984 only to the extent that it relates to expenses.

AS TO THE LAW

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

The Sporrong Estate and Mrs. Lönnroth claimed just satisfaction for pecuniary and non-pecuniary damage and for costs and expenses.

I.  DAMAGE

A. Arguments of those appearing before the Court

1. The applicants

Secondly, the market value of those properties had fallen, so much so that it was today very low. The applicants also complained of the fact that they had not been able to invest in their properties, since the Stockholm City Council would never have given permission for a full-scale redevelopment, which would have been the only reasonable course in financial terms; in the unlikely event of the Council’s having granted them the authorisation required for that purpose, they would have received, had there been expropriation, no compensation for the investments effected. In the applicants’ submission, they should have been offered a choice between, on the one hand, putting their properties to a normal use (in which event they would have erected new buildings on their land in accordance with the city plans) and, on the other hand, having the possibility of selling them at a reasonable price (in which event they would have been able to reinvest just as profitably in other ways and probably to buy similar property that was free of restrictions). In short, they had been deprived of the capital gain they would have realised under either of these alternatives.

Each of these amounts was made up of pecuniary loss as at 31 December 1980 (8,400,000 SEK for the Sporrong Estate and 6,900,000 SEK for Mrs. Lönnroth) and interest (4,884,540 SEK and 4,012,303 SEK). The pecuniary loss represented "compound net operational income loss" (10,900,000 SEK and 3,600,000 SEK) and the "market value on the hypothesis that the property had been redeveloped" (8,700,000 SEK and 11,250,000 SEK), after deduction of the "market value at actual use" (1,200,000 SEK and 2,400,000 SEK) and of "compounded building costs" (10,000,000 SEK and 5,550,000 SEK). The interest was computed in accordance with the Swedish Interest Act and related to the period from 1 January 1981 to 1 July 1984.

2. The Government

3. The Commission’s Delegate

On the other hand, the Delegate was in favour of some award in respect of the non-pecuniary damage occasioned by the long period during which the applicants were left in complete uncertainty as to the outcome of the proceedings concerning their properties.

B. Decision of the Court

1. Existence of damage

(a) Duration

The applicants excluded from the "periods of damage" the time during which the permits were acceptable (seventeen and fifteen months, respectively), the design phase of the "hypothetical redevelopment" (one year) and the duration of the demolition and reconstruction (one year). On the other hand, they included the time that would be required, after expiry of the permits, for preparing plans, demolishing and reconstructing (two years). They thus arrived at approximately twenty-one years for Riddaren No. 8 (1960-1980) and approximately seven years for Barnhuset No. 6 (1975-1981).

The Government, for their part, deducted from the total duration the time required by the City Council to take action (two years) and also the period that would, on the assumption that there were an expropriation, be comprised between the institution of the court proceedings and the taking-over of the property by the City (three years). Recalling, inter alia, that the Stockholm City Council had already decided on 16 October 1978 to apply for cancellation of the expropriation permits (ibid., p. 13, para. 28), the Government arrived at approximately eighteen years for Riddaren No. 8 (1961-1978) and approximately three years for Barnhuset No. 6 (1976-1978).

In the present case, four years should, in the Court’s view, have been sufficient for the Stockholm City Council to arrive at decisions. The periods of damage should therefore be taken to be nineteen years for Riddaren No. 8 (1960-1978) and four years for Barnhuset No. 6 (1975-1978).

(b) Constituent elements

There are, in fact, other factors which also warrant attention. Firstly, there are the limitations on the utilisation of the properties: the applicants could not erect any "new construction" on their own land and they would have exposed themselves to serious risks if, even with permission, they had had work carried out since they would have been obliged to undertake not to claim - in the event of expropriation - any indemnity for the resultant capital appreciation (see the judgment of 23 September 1982, Series A no. 52, pp. 22-23, para. 58). To this were added the difficulties encountered in obtaining loans secured by way of mortgage; thus, Mrs. Lönnroth failed to obtain a loan for the renovation of the façade of Barnhuset No. 6 (ibid., p. 12, para. 24).

In addition, it cannot be forgotten that during the periods of damage the value of the properties in question naturally fell; it is evident that a property which is subject to an expropriation permit and may thus be taken away from its owner at any moment will not continuously retain its former value, even though in the present case the applicants’ properties were, after the said periods, once again worth no less in real terms than they were when the measures in question were adopted. Furthermore, any scheme for the redevelopment of the properties which the applicants may have contemplated was impracticable at the time. In this respect, they may be said to have suffered a loss of opportunities of which account must be taken, notwithstanding the fact that the prospects of realisation would have been questionable.

Above all, the applicants were left in prolonged uncertainty: they did not know what the fate of their properties would be and they were not entitled to have their difficulties taken into account by the Government.

To these factors has to be added the non-pecuniary damage occasioned by the violation of Article 6 para. 1 (art. 6-1) of the Convention: the applicants’ case (in French: cause) could not be heard by a tribunal competent to determine all the aspects of the matter (ibid., p. 31, para. 87).

2. Assessment of the damage

The Court thus finds that the applicants should be afforded satisfaction assessed at 800,000 SEK for the Sporrong Estate and at 200,000 SEK for Mrs. Lönnroth.

II.  COSTS AND EXPENSES

These documents revealed that the Sporrong Estate and Mrs. Lönnroth were claiming:

(a) 469,217.25 SEK for the fees and disbursements of Mr. Hernmarck (259,110.65 SEK) and of Mr. Tullberg (210,106.60 SEK), who had acted for them before the Commission and the Court;

(b) 371,392.54 SEK for the fees and disbursements of the experts consulted by them, namely Mr. Ahrenby (182,900 SEK), Mr. Kjellson (77,762.54 SEK), Mr. Westerberg (70,750 SEK), Mr. Hellstedt (28,480 SEK), Mr. Myhrman (7,000 SEK), Mrs. Wollsén (3,500 SEK) and Mr. Sundberg (1,000 SEK);

(c) 50,581.60 SEK for translation fees;

(d) 46,984.50 SEK for travel expenses to and subsistence expenses in Strasbourg (hearings on 9 October 1979 before the Commission and on 23 February 1982 and 22 June 1984 before the Court);

(e) 25,000 SEK for estimated expenses for which bills had not yet been received.

From the total of 963,175.89 SEK, the applicants deducted 24,103 SEK, the equivalent of the amount received by Mrs. Lönnroth by way of legal aid. They thus arrived at a sum of 939,072.89 SEK, that is 307,523.14 SEK before the Commission and 631,549.75 SEK before the Court (185,204.75 SEK for the proceedings on the merits and 446,345 SEK for the proceedings concerning Article 50) (art. 50).

However, he rejected the amounts corresponding to research effected by Mr. Kjellson (77,762.54 SEK) and Mr. Westerberg (70,750 SEK) and to registration for a course on European procedure conducted by Mr. Sundberg (1,000 SEK), since the first two items had not been relied on before the Convention institutions and the third could not be regarded as attributable to a particular case; he questioned whether the fees claimed by Mr. Tullberg - especially "another" 100,000 SEK for the period up to the judgment of 23 September 1982 when the main responsibility for the case rested with Mr. Hernmarck - were reasonable as to quantum and reduced them by 5,475 SEK, based on clerical errors and on the ground that there was no reason to prepare observations (for 11,200 SEK) on the statement made by the Commission’s Delegate at the hearings on 22 June 1984; he excluded the 40% tax on translation services (13,797.60 SEK) and research work (1,000 SEK), which the applicants had not paid; finally, he considered that the costs for which bills had not yet been received (25,000 SEK) could not be taken into account.

In addition, the Government, in agreement with the applicants’ representative, requested the Court, should it not find that the foregoing suggestions with regard to Mr. Kjellson ought to be adopted, to deduct 11,345.71 SEK of his fees and disbursements.

As to the costs relating to Article 50 (art. 50), the Government reiterated their request, made at the hearings on 22 June 1984, that the Court should, depending on its decision on the just-satisfaction issue, consider whether the applicants should not bear a considerable part of those costs themselves.

The Court cannot, however, retain certain expenses which it is not persuaded were necessarily incurred: fees of Mr. Tullberg and Mr. Ahrenby for preparing documents which the Court has not taken into account (see paragraphs 4 and 7 above), estimated at 50,000 SEK; sums paid to jurists for consultations and a legal course (149,512.54 SEK); tax on translation services and research work (14,797.60 SEK); costs for which bills have not yet been received (25,000 SEK).

In these circumstances, the applicants are entitled to be reimbursed, in respect of costs and expenses, the sum of 723,865.75 SEK, less the 24,103 FF received by Mrs. Lönnroth by way of legal aid.

FOR THESE REASONS, THE COURT

1. Holds by twelve votes to five that the Kingdom of Sweden is to pay, for damage, eight hundred thousand Swedish crowns (800,000 SEK) to the Sporrong Estate and two hundred thousand Swedish crowns (200,000 SEK) to Mrs. Lönnroth;

2. Holds by thirteen votes to four that the Kingdom of Sweden is to pay, for costs and expenses, seven hundred and twenty-three thousand eight hundred and sixty-five Swedish crowns and seventy-five öre (723,865.75 SEK), less twenty-four thousand one hundred and three French francs (24,103 FF), to the Sporrong Estate and Mrs. Lönnroth jointly.

Done in English and in French, the French text being authentic, at the Human Rights Building, Strasbourg, on 18 December 1984.

For the President

Walter GANSHOF VAN DER MEERSCH

Judge

For the Registrar

Herbert PETZOLD

Deputy Registrar

In addition to a declaration by Mr. Cremona and Mr. Bernhardt, the separate opinions of the following judges are annexed to the present judgment (Article 51 para. 2 of the Convention and Rule 50 para. 2 of the Rules of Court) (art. 51-2):

- joint dissenting opinion of Mr. Thór Vilhjálmsson, Mr. Lagergren, Mr. Walsh, Sir Vincent Evans and Mr. Gersing, with regard to damage;

- joint dissenting opinion of Mr. Thór Vilhjálmsson, Mr. Lagergren, Sir Vincent Evans and Mr. Gersing, with regard to the costs of the Article 50 (art. 50) proceedings.

W. G.v.d.M.

H.P.