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You are here: BAILII >> Databases >> European Court of Human Rights >> HÅKANSSON AND STURESSON v. SWEDEN - 11855/85 [1990] ECHR 1 (21 February 1990)
URL: http://www.bailii.org/eu/cases/ECHR/1990/1.html
Cite as: [1990] ECHR 1, (1991) 13 EHRR 1
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In the case of Håkansson and Sturesson*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr C. Russo,
Mr R. Bernhardt,
Mrs E. Palm,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 29 September 1989 and
23 January 1990,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
* Note by the Registrar: This case is numbered 15/1988/159/215.
The second figure indicates the year in which the case was referred
to the Court and the first figure its place on the list of cases
referred in that year. The last two figures indicate,
respectively, the case's order on the list of cases and of
originating applications (to the Commission) referred to the Court
since its creation.
_______________
PROCEDURE
1. The case was brought before the Court on 14 December 1988
by the European Commission of Human Rights ("the Commission") and
on 27 January 1989 by the Government of the Kingdom of Sweden
("the Government"), within the period of three months laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. The case originated in an application (no. 11855/85)
against Sweden lodged with the Commission in 1984 by
Mr Gösta Håkansson and Mr Sune Sturesson, both Swedish
citizens, under Article 25 (art. 25).
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Sweden recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
purpose of the request and of the Government's application was to
obtain a decision as to whether or not the facts of the case
disclosed a breach by the respondent State of its obligations under
Articles 6, 13 and 14 (art. 6, art. 13, art. 14) of the Convention
and Article 1 of Protocol No. 1 (P1-1).
2. In response to the inquiry made in accordance with Rule 33
para. (d) of the Rules of Court, the applicants stated that they
wished to take part in the proceedings and designated the lawyer
who would represent them (Rule 30).
3. The Chamber to be constituted included, as ex officio
members, Mrs E. Palm, the elected judge of Swedish nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 26 January 1989
the President of the Court drew by lot, in the presence of the
Registrar, the names of the five other members, namely
Mr Thór Vilhjálmsson, Mr L.-E. Pettiti, Mr B. Walsh,
Mr R. Bernhardt and Mr S. K. Martens (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43). Subsequently
Mr C. Russo, substitute judge, replaced Mr Martens, who was unable
to attend (Rule 22 para. 1 and Rule 24 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5). He ascertained, through the Registrar, the
views of the Agent of the Government, the Delegate of the
Commission and the lawyer for the applicants regarding the need for
a written procedure (Rule 37 para. 1). Thereafter, in accordance
with the President's Order, the registry received the memorials of
the Government and of the applicants on 31 July and 4 August 1989,
respectively; in a letter of 5 September, the Secretary to the
Commission informed the Registrar that the Delegate did not wish to
file a memorial.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 29 June 1989
that the oral proceedings should open on 25 September 1989
(Rule 38). On 22 September the Commission produced various
documents requested by the Registrar upon instructions from the
President of the Court.
6. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. Immediately prior to
its opening, the Court had held a preparatory meeting.
There appeared before the Court:
(a) for the Government
Mr H. Corell, Ambassador, Under-Secretary
for Legal and Consular Affairs, Agent,
Mr R. Strömberg, Permanent Under-Secretary
and Chief Legal Officer, Ministry of Environment
and Energy,
Mr L. Lindström, Legal Adviser, Ministry of Justice,
Mr P. Boqvist, Legal Adviser, Ministry of Foreign
Affairs, Advisers;
(b) for the Commission
Mr C. L. Rozakis, Delegate;
(c) for the applicants
Mr G. Ravnsborg, Lecturer in Law at the Counsel.
University of Lund,
The Court heard addresses by Mr Corell for the Government, by
Mr Rozakis for the Commission and by Mr Ravnsborg for the
applicants, as well as the Government's replies to its questions.
The applicants' replies were received at the registry on
20 October 1989 and the Government's comments thereon
on 20 November 1989. On 4 December 1989 the President rejected an
application from the Government to file additional evidence and on
23 January 1990 the Chamber rejected a similar application from the
applicant (Rule 40 para. 1).
AS TO THE FACTS
I. Particular circumstances of the case
A. The 1979 compulsory auction
7. Mr Gösta Håkansson is resident at Höör and a police officer
by profession, and Mr Sune Sturesson is resident at Skånes
Fagerhult and a farmer by profession.
8. On 4 December 1979 the applicants bought for
240,000 Swedish crowns (SEK) at a compulsory sale by auction
(exekutiv auktion; "the 1979 auction") an agricultural estate
called Risböke 1:3 in the municipality of Markaryd. Their main
competitors at the auction, Mr Bertil Bjarnhagen and
Mr Michael Borg, bid 235,000 and 220,000 SEK, respectively. The
property had been seized in July 1979 in order to secure the
payment of the previous owners' debts to three banks. According to
a valuation made public before the auction, the market value
(saluvärde) of the property was estimated at 140,000 SEK.
9. At the auction the public was, according to the minutes
drafted by the representative of the County Administrative Board
(länsstyrelsen) of the County of Kronoberg, informed of the
regulations contained in section 2, sub-section 10, and section 16
of the Land Acquisition Act 1979 (jordförvärvslagen 1979:230; "the
1979 Act"), whereby a purchaser would have to resell the property
within two years unless he had obtained in the meantime from the
County Agricultural Board (lantbruksnämnden) of the same County a
permit to retain it or fell under one of the listed exceptions from
the permit requirement (see paragraphs 28 and 32 below).
The applicants maintained that a representative of the County
Administrative Board had stated, at the public viewing of the
property on 27 November 1979, that, in this case, the requisite
permit would certainly be granted speedily; they further claimed
that this had been confirmed by the County Administrative Board at
the auction. In support of these allegations, the applicants
submitted three affidavits, each of which was signed in 1989 by a
person who had been present either at the auction or at the public
viewing.
B. The applications for a permit to retain the estate
10. On 7 January 1980 the County Administrative Board drew up
a sale contract (köpebrev) in which the applicants were reminded of
the wording of section 16 para. 1 of the 1979 Act. On the same day
the applicants submitted a request to the County Agricultural Board
for a permit to retain the estate Risböke 1:3.
11. By letter of 5 February 1980, the County Agricultural Board
informed the applicants that the estate had, in view of its size,
situation and nature, to be considered as a "rationalisation unit"
(rationaliseringsfastighet) which ought to be used for the purpose
of consolidating other properties in the area that were capable of
further development. It added that, as neighbours were interested
in acquiring the property, the request might be refused under
section 4 para. 1, sub-section 3, of the 1979 Act (see paragraph 30
below). The County Agricultural Board also indicated that there
were reasons to believe that the price paid was too high for
redemption (inlösen - see paragraph 34 below).
On 15 February 1980 the County Agricultural Board rejected the
applicants' request on the ground that the estate was a
"rationalisation unit".
12. The applicants appealed to the National Board of
Agriculture (lantbruksstyrelsen), which rejected the appeal
on 5 September 1980.
In its decision the National Board of Agriculture noted the
following. Risböke 1:3 had an area of 41 hectares of which
18 hectares were forest and 8 hectares pasture. There were no
buildings on the property. Mr Sturesson's estate, which comprised
63 hectares of forest and 10 of pasture, was 25 kilometres away.
Through their purchase the applicants had intended to build up
units which would, in the short run, create opportunities for
employment and, in the long run, become financially sound
properties to be exploited by their children. The Board noted
however that in the opinion of the County Agricultural Board, there
was only room for one active farmer in the region. Finally,
Mr Michael Borg, who leased two neighbouring properties, one of
which was owned by his father, had shown a great interest in
acquiring the applicants' property. The Board concluded:
"The National Board of Agriculture finds, as did the County
Agricultural Board, that the real estate at issue lacks the
prerequisites for remaining as a separate cultivation unit.
Moreover, the National Board considers that a new establishment on
the property would be likely to make it more difficult for the
active farmer in the area to develop his business."
13. The applicants appealed to the Government (Ministry of
Agriculture), which rejected the appeal on 26 February 1981.
14. A new request, dated 4 January 1982, for a permit to retain
Risböke 1:3 was rejected by the County Agricultural Board on
25 January 1982. The Board stated that the estate was considered
to be a unit suitable for rationalisation purposes, which ought to
be used to consolidate properties within the area that were capable
of further development. It furthermore stated that it was not
prepared to redeem the estate at the price of 240,000 SEK.
15. The applicants appealed to the National Board of
Agriculture. After inspecting the property, it rejected the appeal
on 15 November 1982, on the ground that there were no new
circumstances justifying a departure from its previous decision.
16. The applicants' further appeal to the Government was
dismissed on 27 October 1983.
17. In a letter of 11 January 1985 the applicants requested the
Government to reconsider their decision of 27 October 1983. The
Government, recalling that the case had been finally settled by
them on the latter date, decided on 14 March 1985 not to take any
further action in respect of the request.
C. The redemption proceedings
18. The applicants brought proceedings before the Real Estate
Court (fastighetsdomstolen) of Växjö requesting that the State
redeem the Risböke 1:3 in accordance with section 14 of the
1979 Act (see paragraph 34 below). In a judgment of
11 December 1981 the court rejected the claim, stating that in view
of the clear wording of section 14 this provision could not be
applied by analogy to the applicants' situation. The applicants
appealed to the Göta Court of Appeal (Göta hovrätt), which
on 1 July 1982 confirmed the judgment of the Real Estate Court.
On 14 July 1983 the Supreme Court (högsta domstolen) refused leave
to appeal.
D. The 1985 compulsory resale by auction
19. At the request of the County Agricultural Board, the County
Administrative Board ordered, on 10 November 1983, the compulsory
resale by auction of Risböke 1:3 in accordance with the provisions
of sections 16 and 17 of the 1979 Act (see paragraphs 36-38 below).
The Enforcement Office (kronofogdemyndigheten) in Växjö was
responsible for arranging the auction.
20. In February and March 1984 the National Board of Forestry
(skogsvårdsstyrelsen) assessed the value of the property in
accordance with the price-control regulations (that is, in
principle, by reference to its yield) at 100,000 SEK and its market
value as not exceeding 200,000 SEK. In April 1984 the Senior Land
Surveyor (överlantmätaren) of the County of Kronoberg made a new
valuation of the property, resulting in an estimated market value
of 125,000 SEK.
21. On 19 April 1984 the Enforcement Office determined that the
estate had a value of 125,000 SEK. The applicants challenged this
before the Göta Court of Appeal but the court dismissed the action
on 4 June 1984, stating that it was not possible to appeal against
such a determination as it was only a preparatory step for a
subsequent decision on the sale of the estate (see paragraph 39
below). The applicants appealed against this decision to the
Supreme Court, which on 23 August 1984 refused leave to appeal.
On 26 June 1984, at the applicants' request, the County
Administrative Board appointed two special valuers (see
paragraph 37 below). In their report of October 1984, the valuers
concluded that the property had an estimated market value of
172,000 SEK, taking into account certain expenditure deemed
necessary for thinning out trees (mainly Christmas trees) that had
been newly planted by the applicants.
22. The auction took place on 18 June 1985 ("the 1985
auction"). The Enforcement Office noted that the estate had an
estimated market value of 172,000 SEK and a taxable value of
107,000 SEK. It decided that the lowest bid which could be
accepted would be 172,000 SEK. At the auction, there was, in fact,
only one bid. It was an offer of 172,000 SEK made by the County
Agricultural Board and it was accepted by the Enforcement Office.
After the costs of the valuation and the auction had been deducted
the applicants received 155,486.50 SEK.
23. Prior to the auction in June 1985, five requests for
advance permits (förhandstillstånd) to acquire the property had
been filed with the County Agricultural Board (see paragraph 36
below). On 10 April 1984 the Board granted the request filed
by Mr Michael Borg and Mr Thorwald Borg on condition that they
applied, within two months from the public auction, for a merger of
Risböke 1:3 and the two neighbouring properties which they now
owned (cf. paragraph 12 above). The other requests were rejected
by the Board on 10 and 14 June 1985.
24. On 19 June 1985 the applicants appealed to the Göta Court
of Appeal requesting that the compulsory sale be annulled. They
argued that the property had not been sold at the market price, as
required by law, since the valuation which had arrived at the
figure of 172,000 SEK had been based only on an assessment of the
yield from the property. The applicants stated that they intended
to submit to the court a new valuation report. However, on
3 July 1985 the Court of Appeal dismissed the appeal.
25. The applicants filed a further appeal with the Supreme
Court, in which they also challenged the impartiality of the two
special valuers on the ground that they had had a duty, under
section 6 of the Land Acquisition Ordinance 1979 (see paragraph 37
below), to consult with the County Agricultural Board - which had
in the event been the buyer of the estate - when making their
valuation. They did not raise any complaint in respect of the
absence of any public hearing before the Court of Appeal.
On 20 August 1985 the Supreme Court refused to grant leave to
appeal.
26. On 17 December 1985 the County Agricultural Board sold the
property to Mr Michael Borg and Mr Thorwald Borg for 125,000 SEK.
On 17 January 1986 they applied for its merger with their two
properties as required in their acquisition permit (see
paragraph 23 above) and on 11 April 1986 the merger was accepted
by the local property formation agency
(fastighetsbildningsmyndigheten).
II. Relevant domestic law
27. The Land Acquisition Act 1979 was enacted in order to
implement the agricultural guidelines adopted by the Riksdag in
1977 and also to meet the policy goals of forestry and regional
planning. Among the aims to be specially furthered by the Act are
the creation and preservation of viable family holdings so as to
strengthen the connection between cultivation and ownership, and
also the promotion of a continuous structural rationalisation of
agriculture and forestry.
28. Under section 1 of the Act, a permit is required for the
acquisition of real estate assessed for tax purposes as an
agricultural holding. Section 2 lists a number of exceptions: for
example, no permit is required when the property is acquired by a
State authority other than a commercial undertaking (sub-section 2)
or at a compulsory sale by auction (sub-section 10) other than such
as take place in accordance with section 17 of the Act (see
paragraph 36 below).
29. When deciding on an application for a permit, the
authorities shall take into account that the setting up and
development of rational enterprises in agriculture, forestry and
horticulture should be promoted (section 3).
30. Section 4 para. 1 provides that a permit to acquire a
property shall be refused, inter alia:
"1. If the price or other consideration exceeds, to an extent
which is not insignificant, the value of the property in view of
its yield and other circumstances,
2. if it can be assumed that the acquisition is effected mainly as
an investment,
3. if the property is required for the rationalisation of
agriculture or forestry,
..."
Paragraph 2 of this section provides inter alia that sub-section 1
of the first paragraph does not apply to the acquisition of real
estate at a compulsory sale by auction under section 17 of the Act
(see paragraph 36 below).
31. Section 12 specifies that the acquisition permit shall, in
principle, be applied for within three months of the purchase.
Under this section the question whether or not to grant the permit
may not be examined before the acquisition, except in certain
circumstances, none of which obtained at the 1979 auction.
However, in the case of a public auction under section 17 (see
paragraph 36 below), such as the one held in 1985, the acquisition
permit shall be issued before the auction.
32. Under section 16 para. 1, a property acquired at a
compulsory auction in circumstances which, in case of an ordinary
purchase (see paragraph 28 above), would have required a permit
shall be re-sold within two years, unless the said circumstances
have by then ceased to exist or unless the purchaser has obtained
a permit from the County Agricultural Board to retain the property.
The granting of such a permit is subject inter alia to the
provisions of sections 3 and 4, with the exception of section 4,
sub-section 1.
The sale contract issued after the compulsory auction shall contain
a note recalling the regulations laid down in section 16.
33. A decision by the County Agricultural Board not to grant
permission to retain property acquired at a compulsory auction may
be appealed to the National Board of Agriculture and ultimately to
the Government.
34. "If a purchase becomes invalid because the necessary permit
is refused as a result of the application of section 4 para. 1,
sub-section 3", i.e. on the ground that the property is required
for the rationalisation of agriculture or forestry, the State is,
according to section 14, "obliged to redeem the property at the
agreed purchase price if the seller so requests". However, under
the same section, no such obligation exists if the purchase price
exceeds, to an extent which is not insignificant, the value of the
property in view of its yield and other circumstances, or if the
terms are unreasonable in other respects.
There is no obligation on the State to redeem property acquired at
a compulsory auction as in such a case a permit is not required for
a valid acquisition of the property (see paragraphs 18 and 28
above).
35. Under section 14 para. 2, applications for redemption shall
be filed with the Real Estate Court, whose decisions may be
appealed to a Court of Appeal and ultimately, if leave to appeal is
granted, to the Supreme Court.
36. If, in a case where this is required under section 16
(see paragraph 32 above), the property has not been re-sold within
the prescribed time-limit, the County Administrative Board shall,
according to the same section and on application by the County
Agricultural Board, order that the property be sold at a compulsory
auction by the Enforcement Office in accordance with the provisions
of section 17. At such an auction the property may only be sold to
someone who has received an acquisition permit (see paragraph 31
above) or who is, like the County Agricultural Board, exempted from
the permit requirement by virtue of section 2 of the 1979 Act
(see paragraph 28 above).
37. Section 17 specifies that no sale at a compulsory auction
may take place unless the purchase price offered amounts at least
to the value to be attributed to the property in accordance with
the provisions of Chapter 12 of the Code of Enforcement
(utsökningsbalken, see in particular section 3). Under section 17
of the 1979 Act this estimated value is to be fixed by the
Enforcement Office or, if the owner of the property makes a timely
request for a special valuation, by valuers appointed by the County
Administrative Board. In both cases the valuation shall be made in
consultation with the County Agricultural Board (section 6 of the
Land Acquisition Ordinance 1979, jordförvärvsförordningen 1979:231,
enacted by the Government).
38. Section 17 also provides that, if the property is not sold
at the auction, the County Agricultural Board may, within a period
of two years, request the County Administrative Board to hold a new
auction. If no such request is made, or if no acceptable bid is
made at the second auction, the owners are no longer required to
sell the property.
39. The Enforcement Office's decisions in respect of a
compulsory auction may, according to Chapter 18, section 1, of the
Code of Enforcement, be brought before a Court of Appeal and
ultimately, with leave to appeal, before the Supreme Court.
However, according to section 6 (2) of the same Chapter, an appeal
against a decision that is merely a preparatory step for a final
decision may, in general, be lodged only in connection with an
appeal against the latter.
Appeals follow the rules of the 1942 Code of Judicial Procedure
(rättegångsbalken), as far as these are relevant (Chapter 18,
section 1, of the Code of Enforcement). Chapter 52, section 10, of
the Code of Judicial Procedure specifies that:
"Where it is necessary for the purposes of the investigation of a
case that a party or other person be heard orally by the Court of
Appeal, the Court of Appeal shall decide on such a hearing as it
finds appropriate."
If the Court of Appeal decides to hold such a hearing, the hearing
is open to the public under Chapter 5, section 1, of the Code of
Judicial Procedure.
PROCEEDINGS BEFORE THE COMMISSION
40. In their application of 3 April 1984 to the Commission
(no. 11855/85), Mr Håkansson and Mr Sturesson complained of alleged
violations of Articles 6, 13 and 14 (art. 6, art. 13, art. 14) of
the Convention and of Article 1 of Protocol No. 1 (P1-1).
41. On 15 July 1987 the Commission declared the application
admissible, save as regards two complaints under Article 6 (art. 6)
of the Convention: the first concerned the fact that the State was
not ordered by the competent courts to redeem the estate and the
second related to the absence of a public hearing before the
Supreme Court when it decided in 1985 not to grant the applicants
leave to appeal against the compulsory auction held that year.
In its report (Article 31) (art. 31) of 13 October 1988, the
Commission expressed the opinion that:
(a) there had been no violation of Article 1 of Protocol No. 1
(P1-1), taken alone (ten votes to two) or in conjunction with
Article 14 (art. 14+P1-1) of the Convention (unanimous), in respect
of the applicants' complaint that the State had sold the estate to
them at a compulsory auction in December 1979 for 240,000 SEK, then
had refused them a permit to retain the property and finally had
bought it back in June 1985 at a new compulsory auction for
172,000 SEK;
(b) there had been two violations of Article 6 (art. 6) of the
Convention: firstly, as a result of the absence of a procedure
satisfying this provision with respect to the dispute over the
refusal to grant the applicants a permit to retain the property
(unanimous); secondly, as regards the absence of a public hearing
before the Göta Court of Appeal when it determined the applicants'
appeal against the 1985 auction (seven votes to five);
(c) it was not necessary to examine the case also under Article 13
(art. 13) of the Convention (unanimous).
The full text of the Commission's opinion and of the partly
dissenting opinions contained in the report is reproduced as an
annex to the present judgment*.
_______________
* Note by the Registrar: For practical reasons, this annex will
appear only with the printed version of the judgment (volume 171 of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)
42. According to the applicants, the refusal to grant them the
permit required to retain Risböke 1:3, the compulsory sale by
auction of the estate in 1985, and the conditions of this sale,
constituted a serious violation of their right under Article 1 of
Protocol No. 1 (P1-1), which reads:
"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."
Both the Government and the Commission contested this allegation.
43. It was not in dispute that the impugned measures
constituted an interference with the applicants' right to the
peaceful enjoyment of their possessions or that this interference
amounted to a deprivation of property and thus fell to be
considered under the second sentence of the first paragraph of the
Article (P1-1).
A. Lawfulness and purpose of the interference
44. The stated aim of the interference in this case was that
described in section 4 para. 1, sub-section 3, of the 1979 Act,
that is to promote the rationalisation of agriculture (see
paragraphs 11-17 and 30 above). This is undoubtedly a legitimate
"public interest" for the purposes of Article 1 of Protocol No. 1
(P1-1), even to the extent that it may imply the compulsory
transfer of property from one individual to another (see, mutatis
mutandis, the James and Others judgment of 21 February 1986,
Series A no. 98, pp. 30-32, paras. 39-45).
45. The applicants did not challenge the aim of the law itself.
However, they maintained that the Swedish legislation was defective
because "the whole system of bureaucratic price assessment, as
provided for in the Land Acquisition Act together with the Land
Acquisition Ordinance and as used after a public auction with a
free market bidding, as in the case of Mr Håkansson and
Mr Sturesson, seems completely unacceptable from a rule-of-law
point of view." Furthermore, the applicants alleged that the
impugned measures (see paragraph 42 above) in their case did not
pursue any genuine "public interest" as this term is to be
understood under Article 1 of Protocol No. 1 (P1-1) and that they
constituted serious instances of abuse of power; above all, they
denied that their property was in fact a "rationalisation unit"
within the meaning of the relevant law (see paragraphs 11-17
and 30 above) and that the compulsory resale in 1985 and its terms
were lawful.
46. In proceedings originating in an application lodged under
Article 25 (art. 25) of the Convention the Court has to confine
itself, as far as possible, to an examination of the concrete case
before it. It is accordingly not called upon to review the system
of the 1979 Act in abstracto, but to determine whether the manner
in which this system was applied to or affected the applicants gave
rise to any violations of the Convention (see, inter alia, the
Eriksson judgment of 22 June 1989, Series A no. 156, p. 23,
para. 54).
47. Regarding the lawfulness of the impugned measures, the
Court would recall that its power to review compliance with
domestic law is limited (see, inter alia, the Allan Jacobsson
judgment of 25 October 1989, Series A no. 163, p. 17, para. 57,
and, mutatis mutandis, the above-mentioned Eriksson judgment,
Series A no. 156, p. 25, para. 65). In the present case, it does
not emerge from the evidence that the authorities' real concern was
not to rationalise agriculture by consolidation of the estate in
question with a neighbouring property: in fact, the County
Agricultural Board eventually sold Risböke 1:3 to the Borg brothers
on condition that they merged it with their own estates - which
they have done (see paragraph 26 above). Furthermore, the
decisions regarding the compulsory resale in 1985 were upheld by
the Göta Court of Appeal and the Supreme Court did not grant leave
to appeal (see paragraphs 24-25 above). The Court thus accepts,
like the Commission, that the impugned measures were in accordance
with Swedish law, in particular the provisions of the 1979 Act.
48. The applicants also disputed the acceptability from a
rule-of-law point of view of some of the administrative practices
followed in implementing the 1979 Act in their case. According to
them, the representatives of the County Administrative Board had
confirmed at the 1979 auction that the buyer should not have any
difficulties in obtaining the necessary permit to retain the
property, whereas, eventually, the County Agricultural Board had
refused the applicants this permit: this, they claimed, was
"double-talk" on the part of the administration.
The Court is not convinced by this argument. Even assuming that
some statement to the effect alleged was made in connection with
the 1979 auction, the Court is not satisfied that the applicants
could reasonably have considered it binding as a matter of Swedish
law: rather to the contrary, the minutes of that auction show
unequivocally that the public was warned of the permit requirement
and the applicants, furthermore, signed a contract which made it
clear that the right of property conferred was subject to the same
requirement (see paragraphs 9 and 10 above).
49. As to the actual price assessment made under the 1979 Act,
the Court finds no reason to doubt the impartiality of the two
special valuers who made the final estimate of SEK 172,000 (see
paragraphs 21 and 37 above).
50. The impugned measures thus had a legitimate aim and were
lawful for the purposes of Article 1 of Protocol No. 1 (P1-1).
B. Proportionality of the interference
51. Article 1 of Protocol No. 1 (P1-1) also requires that there
be a reasonable relationship of proportionality between the means
employed and the aim sought to be realised. The requisite
proportionality will not be found if the person concerned has had
to bear "an individual and excessive burden" (see, inter alia, the
Lithgow and Others judgment of 8 July 1986, Series A no. 102,
p. 50, para. 120).
52. In this connection the applicants first contended that, by
its very nature, the price-control system established by the
1979 Act violated the principle of proportionality, since a person
who bought an agricultural estate at a compulsory auction had no
possibilities in law to protect himself against the authorities'
assessment of the resale price, should they refuse him the
necessary permit to retain the property. This lack of protection
was, so the applicants claimed, the more serious because of the
alleged misrepresentation (see paragraph 48 above) and the
provisions of section 6 of the 1979 Ordinance, according to which
the assessment of the property's value for the purposes of the
compulsory resale had to be made in consultation with the County
Agricultural Board (see paragraph 37 above).
On this point, the Court would recall that it is not its task to
review the price-control system in abstracto (see paragraph 46
above).
53. As to whether the price-control system as applied in the
present case raised an issue of proportionality, the Court observes
the following. The applicants decided in 1979 to bid 240,000 SEK
for the estate, whereas its market value was assessed only at
140,000 SEK (see paragraph 8 above). Furthermore, the 1979 Act
made it quite clear that a person buying an agricultural estate
(with certain exceptions which are not relevant here - see
paragraph 32 above) at a compulsory auction needed a permit in
order to be able to keep the estate for more than two years. It
was not possible to obtain prior to the auction any binding
declaration as to the likelihood of obtaining this permit (see
paragraph 31 above). Prospective buyers thus had to bear in mind
the risk that they might have to resell the estate within two years
on the conditions laid down in the 1979 Act. The applicants
claimed that they should not have run any such risk having regard
to the authorities' alleged assurances in connection with the 1979
auction (see paragraph 9 above). This allegation has, however,
already been rejected by the Court (see paragraph 48 above).
54. In exchange for their property the applicants eventually
received 155,486.50 SEK (see paragraph 22 above), a sum
considerably less than the purchase price they had paid. This
figure represented the estate's estimated market value of
172,000 SEK, as assessed by two specially appointed valuers, less
the costs of the valuation and the compulsory sale. There is no
substantiated allegation that the valuation, or any other decision
regarding the 1985 auction, was not in accordance with the 1979 Act
(see paragraph 47 above). Having regard to the margin of
appreciation enjoyed by the national authorities under Article 1 of
Protocol No. 1 (P1-1), the Court therefore agrees with the
Commission that the price received by the applicants can be
considered to have been reasonably related to the value of the
estate.
55. In sum, and particularly in view of the risks deliberately
taken by them when they bought Risböke 1:3, the applicants have not
been made to carry an individual and excessive burden in this case.
C. Conclusion
56. Having regard to the foregoing, the Court concludes that
there has been no violation of Article 1 of Protocol No. 1 (P1-1).
II. THE ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION,
TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 14+P1-1)
57. Invoking Article 14 of the Convention, taken together with
Article 1 of Protocol No. 1 (art. 14+P1-1), the applicants
maintained that they had been victims of discrimination as compared
with the seller of the estate at the 1979 auction, with the County
Agricultural Board as the buyer of the estate at the 1985 auction
and with the final purchasers, the Borg brothers.
The Court does not accept this argument, which is not supported by
any material before it.
III. ALLEGED VIOLATIONS OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
58. The applicants also complained of the absence of any remedy
before a court to challenge the Government's decisions not to grant
the permit to retain the property and of the lack of any public
hearing before the Court of Appeal. They saw this as a twofold
breach of Article 6 para. 1 (art. 6-1), which reads:
"In the determination of his civil rights and obligations (...)
everyone is entitled to a fair and public hearing (...) by an
independent and impartial tribunal established by law. Judgment
shall be pronounced publicly but the press and public may be
excluded from all or part of the trial in the interests of morals,
public order or national security in a democratic society, where
the interests of juveniles or the protection of the private life of
the parties so require, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would
prejudice the interests of justice."
A. Applicability of Article 6 para. 1 (art. 6-1)
59. The Government contested the applicability of Article 6
para. 1 (art. 6-1). They contended firstly that the applicants'
right to the estate was limited to two years not only by law but
also by consent, as the applicants had accepted the terms of the
auction in 1979. Thus neither the decisions regarding the permit
to retain the property nor those concerning the compulsory resale
in 1985 could be regarded as concerning the applicants' "civil
rights".
In the alternative, the Government submitted that, by subscribing
to the conditions of the 1979 auction, the applicants had waived
their right to a court and accepted that their possibilities of
obtaining the required permit were to be examined only by the
administrative authorities as provided by the law.
60. The Court, like the Commission, is unable to share these
views.
It is quite clear that the applicants considered themselves
entitled, under the relevant statutory provisions, to the grant of
the necessary permit. In the light of the Court's established
case-law, "civil rights and obligations" were at stake in the
ensuing disputes before the administrative authorities on the
permit issue and before the Göta Court of Appeal on the lawfulness
of the terms of the 1985 auction (see, inter alia, on the first
point, the Sramek judgment of 22 October 1984, Series A no. 84,
p. 17, para. 34, and, on the second, the Ettl and Others judgment
of 23 April 1987, Series A no. 117, p. 16, para. 32). In addition,
nothing suggests that the applicants had waived their right to a
court, even assuming that this would have been permissible.
61. Article 6 para. 1 (art. 6-1) is accordingly applicable to
both sets of proceedings.
B. Compliance with Article 6 para. 1 (art. 6-1)
1. The proceedings concerning the permit to retain the
property
62. The Government conceded that, should the Court find that
the proceedings concerning the permit to retain the property fell
under Article 6 para. 1 (art. 6-1), the applicants were not
afforded the safeguards set out therein. The Court nevertheless
has to ascertain whether they enjoyed the "right to a court", as
guaranteed to them under this provision (see, as the most recent
authority, the above-mentioned Allan Jacobsson judgment, Series A
no. 163, p. 21, para. 75).
63. According to Swedish law, the dispute in question could be
determined only by the Government as the final instance (see
paragraph 33 above). The Government's decisions were not open to
review as to their lawfulness by either the ordinary courts or the
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).
There was thus a violation of Article 6 para. 1 (art. 6-1) on this
point.
2. The absence of any public hearing before the Göta Court
of Appeal
64. The Göta Court of Appeal was the first and only tribunal to
deal with all aspects of the applicants' complaint against the
compulsory auction in 1985. The applicants were accordingly
entitled to a public hearing before that court, as none of the
exceptions laid down in the second sentence of Article 6 para. 1
(art. 6-1) applied.
65. The Government submitted that the requirements of Article
6 para. 1 (art. 6-1) on the point at issue had been satisfied, in
particular as the applicants had not requested any public hearing,
thereby waiving any right thereto.
66. The public character of court hearings constitutes a
fundamental principle enshrined in paragraph 1 of Article 6
(art. 6-1). Admittedly neither the letter nor the spirit of this
provision prevents a person from waiving of his own free will,
either expressly or tacitly, the entitlement to have his case heard
in public (see, inter alia, the Le Compte, Van Leuven and De Meyere
judgment of 23 June 1981, Series A no. 43, p. 25, para. 59, and the
H. v. Belgium judgment of 30 November 1987, Series A no. 127,
p. 36, para. 54). However, a waiver must be made in an unequivocal
manner and must not run counter to any important public interest.
67. No express waiver was made in the present case. The
question is whether there was a tacit one. While in some earlier
cases dealt with by the Court the confidentiality of the
proceedings at issue stemmed from legislation (see the
above-mentioned Le Compte, Van Leuven and De Meyere judgment,
Series A no. 43, and the Albert and Le Compte judgment of
10 February 1983, Series A no. 58) or practice (see the
above-mentioned H. v. Belgium judgment, Series A no. 127), in the
present case the Swedish law expressly provided for the possibility
of holding public hearings: the Code of Judicial Procedure gave the
Göta Court of Appeal power to hold public hearings "where [this
was] necessary for the purposes of the investigation" (see
paragraph 39 above).
Since the applicants' appeal mainly challenged the lawfulness of
the 1985 auction and since in Sweden such proceedings usually take
place without a public hearing, the applicants could have been
expected to ask for such a hearing if they had found it important
that one be held. However, they did not do so. They must thereby
be considered to have unequivocally waived their right to a public
hearing before the Göta Court of Appeal. Their misgivings as to
their treatment before that court only seem to have emerged in the
course of the proceedings before the Convention organs; in their
application to the Supreme Court for leave to appeal, no complaint
was raised in this respect (see paragraph 25 above). Furthermore,
it does not appear that the litigation involved any questions of
public interest which could have made a public hearing necessary.
68. There has accordingly been no violation of the
public-hearing requirement in Article 6 para. 1 (art. 6-1).
IV. ALLEGED BREACH OF ARTICLE 13 (art. 13) OF THE CONVENTION
69. The applicants claimed that they were deprived of any
"effective remedy before a national authority" in respect of the
matters of which they complained.
Having regard to its decisions on Article 6 para. 1 (art. 6-1), the
Court, like the Commission, does not find it necessary to consider
the case also under Article 13 (art. 13); this is because its
requirements are less strict than, and are here absorbed by, those
of Article 6 para. 1 (art. 6-1) (see, as the most recent authority,
the above-mentioned Allan Jacobsson judgment, Series A no. 163,
p. 21, para. 78).
V. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
70. Article 50 (art. 50) of the Convention reads:
"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 applicants sought compensation for damage and reimbursement of
their costs and expenses.
A. Damage
71. The applicants stated that their claim for compensation
would be based on:
(a) the free market value of the estate (estimated by them at
365,000 SEK), increased to take account of the annual price index;
(b) the costs of the valuation and the auction (16,513.50 SEK;
see paragraph 22 above);
(c) the allegedly unjustified reduction for the cost of
thinning-out trees (22,000 SEK; see paragraph 21 above);
(d) loss of income due to their inability to sell the Christmas
trees they had planted on the estate (675,000 SEK; ibid.).
However, they would reduce this claim to 84,513.50 SEK, i.e. the
difference between the 240,000 SEK which they had paid for the
property and the 155,486.50 SEK they had eventually received for
it, should the Court not find any violation of Article 1 of
Protocol No. 1 (P1-1).
In either case, interest calculated in accordance with the Swedish
Interest Act (räntelagen) should be added to the amount claimed.
72. The Court agrees with the Commission and the Government
that no causal link can be established between the violation of
Article 6 para. 1 (art. 6-1) of the Convention found in this
judgment and any of the alleged prejudice. The refusal to grant
the necessary permit to retain the property may have caused the
applicants some economic loss, but the Court cannot speculate as to
what result they would have achieved had they been able to bring
their complaints before a court.
No award can therefore be made under this head.
B. Costs and Expenses
73. The applicants claimed 151,960 SEK in respect of their
costs and expenses in the domestic proceedings and before the
Convention institutions.
The Government left the matter to the discretion of the Court.
74. Taking into account all relevant circumstances, in
particular the fact that the present judgment has found no
violation on the main aspect of the case, i.e. the complaint under
Article 1 of Protocol No. 1 (P1-1), the Court considers that the
applicants are entitled, on an equitable basis, to be reimbursed
the sum of 60,000 SEK under this head.
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been no violation of
Article 1 of Protocol No. 1 (P1-1), taken alone or together with
Article 14 (art. 14+P1-1) of the Convention;
2. Holds unanimously that there has been a violation of
Article 6 para. 1 (art. 6-1) of the Convention as a result of the
absence of any court remedy to challenge the decisions refusing the
applicants the permit to retain Risböke 1:3;
3. Holds by six votes to one that there has been no violation
of Article 6 para. 1 (art. 6-1) as regards the proceedings before
the Göta Court of Appeal;
4. Holds unanimously that it is not necessary to examine the
case also under Article 13 (art. 13) of the Convention;
5. Holds unanimously that Sweden is to pay to the applicants,
for costs and expenses, 60,000 (sixty thousand) Swedish crowns;
6. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 21 February 1990.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention
and Rule 52 para. 2 of the Rules of Court, the partly dissenting
opinion of Mr Walsh is annexed to this judgment.
Initialled: R.R.
Initialled: M.-A.E.
PARTLY DISSENTING OPINION OF JUDGE WALSH
1. I regret that I do not find myself in agreement with the
majority of the Court in their conclusion that there has been no
violation of the public-hearing requirement of Article 6 para. 1
(art. 6-1).
2. The Court has held that Article 6 para. 1 (art. 6-1) of the
Convention is applicable to the case and that as Swedish law did
not permit the judicial review of the relevant decisions of the
Swedish Governemnt there has been a violation of Article 6 para. 1
(art. 6-1). On that point the Court has rejected the Government's
plea that the applicants had waived their right to a court by
subscribing to the conditions of the auction of 1979 as there was
nothing in the evidence to suggest that the applicants had waived
their right to a court.
3. It appears to me that once it has been held that there was
a right to a court in accordance with Article 6 para. 1 (art. 6-1)
it must follow, in the absence of evidence of a waiver, that the
hearing must be a public hearing. The norm is a public hearing.
The Code of Judicial Procedure provided for public hearings "where
[this was] necessary for the purposes of the investigation". Such
a discretion is not compatible with Article 6 para. 1 (art. 6-1)
save in the particular exceptions specified in that provision.
This case does not fall within any of those exceptions.
4. It is agreed that there was no express waiver. The fact
that there was no express request for a public hearing does not, in
my opinion, amount to a tacit waiver of a public hearing. The
proof of a waiver lies upon those asserting the existence of a
waiver. The absence of an express objection to a departure from
the norm cannot amount to the acceptance of such a departure. In
my opinion it would radically alter the interpretation of
Article 6 para. 1 (art. 6-1) to hold that the mandatory requirement
of a public hearing is to be interpreted as meaning that it is
qualified to the extent of being dependent upon an express or tacit
request. The public-hearing requirement of Article 6 para. 1
(art. 6-1) is enshrined in the Convention because the Contracting
States thought it was important, not because a party may think that
it is important. The administration of justice in public is a
matter of paramount importance in every democracy and is one of the
cornerstones put in place by the Convention to guarantee the
impartial administration of justice and the defence of the rights
guaranteed by the Convention. The fact that the public may not
manifest any particular interest in a given case is not a
consideration. Equally a lack of interest in having a hearing in
public on the part of one or both parties to a suit does not alter
the matter. Only where both parties agree to a hearing other than
in public can the mandatory provisions of Article 6 para. 1
(art. 6-1) be waived. Any such waiver of a guaranteed right must
be manifested by clear and unambiguous words or by conduct from
which the only reasonable inference to be drawn is that both
parties were so agreed. There is no such evidence in the present
case. In my opinion silence cannot amount to such waiver,
particularly, as in this case, where there is no evidence that the
applicants ever contemplated a joint or several waiver.
In my opinion there was a breach of the public-hearing requirement
of Article 6 para. 1 (art. 6-1) of the Convention.