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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> ZANDER v. SWEDEN - 14282/88 [1993] ECHR 59 (25 November 1993)
URL: http://www.bailii.org/eu/cases/ECHR/1993/59.html
Cite as: [1993] ECHR 59, 18 EHRR 175, (1994) 18 EHRR 175
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In the case of Zander v. Sweden*,
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 R. Bernhardt,
Mr B. Walsh,
Mr A. Spielmann,
Mrs E. Palm,
Mr I. Foighel,
Mr A.N. Loizou,
Mr M.A. Lopes Rocha,
Mr D. Gotchev,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 24 June and 25 October 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 45/1992/390/468. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 11 December 1992, within the
three-month period laid down in Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 14282/88) against the Kingdom of Sweden lodged with
the Commission under Article 25 (art. 25) by two Swedish nationals,
Mr Lennhart and Mrs Gunny Zander, on 12 September 1988.
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
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 (art. 6-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (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 ex officio 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 29 January 1993, the Vice-President, Mr R. Bernhardt,
drew by lot, in the presence of the Registrar, the names of the other
seven members, namely Mr Bernhardt, Mr B. Walsh, Mr A. Spielmann,
Mr I. Foighel, Mr A.N. Loizou, Mr M.A. Lopes Rocha and Mr D. Gotchev
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the Swedish Government ("the Government"), the applicants' lawyer and
the Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the applicants' memorial on 4 May 1993 and the
Government's memorial on 5 May. On 18 May the Secretary to the
Commission informed the Registrar that the Delegate did not intend to
file a memorial in reply.
On various dates between 18 May and 21 June 1993 the Commission
produced a number of documents, which the Registrar had requested from
it on the President's instructions, and the applicants filed some
documents.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
22 June 1993. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr C.H. Ehrenkrona, Assistant Under-Secretary
for Legal Affairs, Ministry for
Foreign Affairs, Agent,
Mr U. Andersson, Under-Secretary for
Legal Affairs, Ministry of Environment, Adviser;
(b) for the Commission
Mr F. Martinez, Delegate;
(c) for the applicants
Mr S. Michelson, advokat, Counsel,
Mr S. Hemrå, Adviser.
The Court heard addresses by Mr Ehrenkrona, Mr Martinez and
Mr Michelson as well as replies to its questions.
AS TO THE FACTS
I. The particular circumstances of the case
6. Mr Lennhart and Mrs Gunny Zander, who are husband and wife, are
Swedish citizens and live in Gryta in the municipality of Västerås.
7. Since 1966 the applicants have owned a property in Gryta,
adjacent to land on which a company - Västmanlands Avfallsaktiebolag
(VAFAB) - takes delivery of and treats household and industrial waste,
amongst other things. VAFAB has been authorised to engage in this
activity on the land in question since 1 July 1983, when the National
Licensing Board for Protection of the Environment (koncessionsnämnden
för miljöskydd - "the Licensing Board") first issued it with a permit
to this effect under the provisions of the 1969 Environment Protection
Act (miljöskyddslagen 1969:387 -"the 1969 Act").
8. Prior to this, it had been discovered in 1979 that refuse
containing cyanide had been left on the dump and analyses of
drinking-water emanating from a nearby well had shown excessive levels
of cyanide in the water. The Health Care Board (hälsovårdsnämnden,
later named miljö - och hälsoskyddsnämnden) of Västerås had prohibited
the use of the water and had provisionally supplied the property owner
dependent on the well with municipal drinking-water.
Further analyses effected in October 1983 showed excessive
levels of cyanide in six other wells near the dump, one of which was
on the applicants' property. As a result, the use of the water from
these wells too was prohibited and the landowners concerned, including
the applicants, were temporarily provided with municipal
drinking-water.
However, in June 1984 the National Food Agency
(livsmedelsverket) recommended that the maximum permitted level of
cyanide be raised from 0.01 mg to 0.1 mg per litre. As a result, as
of February 1985, the municipality stopped supplying the
above-mentioned landowners with water.
9. In July 1986 VAFAB asked the Licensing Board to renew its
permit and to allow it to expand its activities on the dump. The
applicants together with other landowners demanded that the request
should not be granted without an obligation being imposed on VAFAB, by
way of precautionary measure under section 5 of the 1969 Act (see
paragraph 12 below), to supply drinking-water free of charge to the
owners concerned, as the proposed activity entailed and would continue
to entail a risk of polluting their water.
10. By decision of 13 March 1987, the Licensing Board granted
VAFAB's request and dismissed the applicants' and the other owners'
claim, on the ground that there was no likely water connection between
the dump and the wells. It further stated that, notwithstanding a
possible risk of pollution, it would be unreasonable to make the
authorisation in question conditional upon such a general measure as
that suggested by the claimants.
On the other hand, the Board attached a number of conditions
to the granting of the permit, including the requirement that the water
in the wells be carefully analysed at regular intervals and that the
owners be informed of the results. Should the analyses give reason to
suspect that the dump was causing pollution of the water, VAFAB would
be under an obligation to take immediately any such action to supply
the owners with water as deemed appropriate by the County
Administrative Board (länsstyrelsen).
11. The applicants appealed to the Government, challenging the
conditions set for the permit. The Government, as the final instance
of appeal (see paragraph 13 below), upheld these and dismissed the
appeal on 17 March 1988.
II. The relevant domestic law
A. The 1969 Act
12. According to section 1 of the 1969 Act, any use of land that
may cause, inter alia, water pollution is considered an environmentally
hazardous activity for the purposes of the Act.
Section 5 provides:
"A person who engages in or intends to engage in an
environmentally hazardous activity shall take such protective
action, comply with such restrictions on the activity and take
such other precautionary measures as may reasonably be
required in order to prevent or remedy its detrimental
effects. The duty to remedy detrimental effects continues to
apply after the activity has ceased.
In assessing the extent of obligations imposed under the
first paragraph, regard should be had to what is technically
feasible for the activity in question as well as to the public
and private interests involved.
In striking a balance between the various interests,
particular weight should be attached, on the one hand, to the
nature of the area that may be subjected to disturbance and to
the impact of the disturbance and, on the other hand, to the
usefulness of the activity, the costs of protective action and
other financial implications of the precautionary measures in
issue."
13. A decision by the Licensing Board authorising an
environmentally hazardous activity must specify what activity is being
permitted and on what conditions (section 18). It may be appealed
against to the Government by any person concerned (section 48). At the
time of the Government's dismissal of the applicants' appeal (see
paragraph 11 above), its decisions were not subject to judicial review
(for further details on this point, see, in particular, the Sporrong
and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52,
pp. 19-20, para. 50). Since the entry into force, on 1 June 1988, of
the Act on Judicial Review of certain Administrative Decisions, the
lawfulness of a number of decisions by the Government may be challenged
before the Supreme Administrative Court. However, it was not possible
for the applicants to avail themselves of this remedy in respect of the
Government's decision as the Act did not have retroactive effect.
14. The Licensing Board is composed of a chairman and three other
members, all of whom are appointed by the Government. The chairman is
required to be well-versed in legal matters and experienced in
performing judicial tasks; in addition, one of the three members must
have expertise and experience in technological matters, the second must
have experience in activities falling within the competence of the
National Environment Protection Board (naturvårdverket) and the third
in industrial operations (section 11 of the 1969 Act).
15. Pursuant to section 34, a claim relating to an environmentally
hazardous activity may be filed with the Real Estate Court
(fastighetsdomstolen), a specially composed chamber of the District
Court (tingsrätten). Such a claim may, for instance, seek to have the
activity made conditional upon protective or precautionary measures
being taken.
On the other hand, section 22 provides that the holder of a
permit granted under the 1969 Act may not be ordered to discontinue the
activity in question or to take precautionary measures other than
those, if any, specified in the permit. The exceptions to this rule,
contained in sections 23-25, 29 and 40, are not relevant to the present
case.
B. The 1986 Environmental Damage Act
16. Under section 3 of the 1986 Environmental Damage Act
(miljöskadelagen 1986:225 - "the 1986 Act"), a person who has suffered
damage or injury as a result of pollution of groundwater or
watercourses may lodge a claim for compensation with the Real Estate
Court. The claim may be brought against the person or persons who have
caused the deleterious activity to be carried on (section 6).
A condition for compensation is that there be a substantial
probability of a causal link between the impugned activity and the
damage or injury (section 3). The fact that the activity has been
authorised under the 1969 Act is not a bar to liability under the 1986
Act.
A decision by the Real Estate Court on a compensation claim as
mentioned above may be appealed against to the Court of Appeal
(hovrätten) and, with leave, to the Supreme Court (Högsta domstolen).
PROCEEDINGS BEFORE THE COMMISSION
17. In their application (no. 14282/88) to the Commission
of 2 September 1988, Mr and Mrs Zander alleged a violation of
Article 6 para. 1 (art. 6-1) of the Convention in that it was not
possible for them to have the decision authorising VAFAB to increase
its activities on the dump reviewed by a court.
18. By decision of 14 October 1991, the Commission declared the
application admissible. In its report of 14 October 1992 (Article 31)
(art. 31), it expressed the unanimous view that there had been a
violation of Article 6 para. 1 (art. 6-1). The full text of the
Commission's opinion is reproduced as an annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 279-B of
Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
_______________
FINAL SUBMISSIONS MADE BY THE GOVERNMENT TO THE COURT
19. At the hearing on 22 June 1993, the Government invited the
Court to hold, as submitted in their memorial of 5 May 1993, that there
had been no violation of the Convention in the present case.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
20. The applicants complained that at the material time it had not
been open to them under Swedish law to seek judicial review of the
Government's decision of 17 March 1988, upholding the Licensing Board's
decision of 13 March 1987 (see paragraph 11 above). They alleged a
violation of Article 6 para. 1 (art. 6-1), which, in so far as
relevant, provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing ... by [a] ... tribunal
..."
21. The Government contested the applicability of this provision
to the proceedings in issue, whereas the Commission upheld the
applicants' view.
A. Applicability of Article 6 para. 1 (art. 6-1)
1. Existence of a dispute ("contestation") over a "right"
22. The Court reiterates that, according to the principles
enunciated in its case-law (see, amongst other authorities, the Skärby
v. Sweden judgment of 28 June 1990, Series A no. 180-B, p. 36,
para. 27; and the Kraska v. Switzerland judgment of 19 April 1993,
Series A no. 254-B, p. 48, para. 24), it has first to ascertain whether
there was a dispute (contestation) over a "right" which can be said,
at least on arguable grounds, to be recognised under domestic law. The
dispute must be genuine and serious; it may relate not only to the
actual existence of a right but also to its scope and the manner of its
exercise; and, finally, the result of the proceedings must be directly
decisive for the right in question.
23. The Government maintained that the case differed in significant
respects from previous cases where the Court has found the existence
of a dispute (contestation) over a civil right. These differences were
such as to warrant a contrary conclusion.
In the first place, the proceedings now before the Court
concerned the granting of a licence by the public authorities to a
third party, rather than a dispute between the authorities and a person
claiming entitlement to the licence.
Moreover, despite their allegations that the value of their
property had decreased and that they had suffered various other
inconveniences as a result of the alleged pollution of their
drinking- water, the applicants did not avail themselves of the
possibility open to them of obtaining judicial review under the 1986
Act by filing a claim for compensation in the Real Estate Court
(see paragraph 16 above), this being a remedy that satisfied the
requirements of Article 6 para. 1 (art. 6-1). They would have been
entitled to compensation under the above-mentioned Act had they been
able to establish damage - for instance in the form of loss of property
value - as a consequence of VAFAB's activities on the dump. Possibly
in order to avoid legal costs or because it was difficult to prove
damage, they chose instead to ask the Licensing Board, under the
1969 Act, to make VAFAB's licence conditional upon precautionary
measures, which matter was not subject to judicial review.
The Licensing Board's function in relation to the applicants'
request was simply to assess whether the activity in respect of which
VAFAB had sought the Board's authorisation would entail a significant
risk of damaging the water in their well and whether the requested
conditions were called for. The Government contested that the mere
evaluation by the Board of the existence of such a risk involved a
determination of the applicants' "rights" under domestic law. In their
view, the applicants could not maintain, on arguable grounds, that they
were vested with any entitlement under Swedish law to protection from
the kind of risk in issue; nor, on the facts, was there any such risk
affecting their property interests.
Finally, the Government were concerned that if Article 6
para. 1 (art. 6-1) were to be found applicable to the proceedings under
the 1969 Act at issue in the present case, a foreseeable consequence
might be an obligation for States to introduce a multitude of
comprehensive court remedies, covering a wide range of environmental
matters, in order to deal with complaints by large numbers of
plaintiffs about exposure to potential, not just actual, risks of
damage. This would be far more costly and cumbersome than the present
procedure under the 1969 Act, which in the Government's view adequately
protects not only the public interest but also individual interests,
such as those of a potentially affected landowner. In the instant
case, precautionary measures had been taken, though not to the extent
demanded by the applicants.
24. The Court observes that the claim made by the applicants to the
administrative authorities was based on section 5 of the 1969 Act.
This provision lays down certain obligations incumbent upon a person
who engages or intends to engage in an environmentally hazardous
activity, without however specifying who is the beneficiary of those
obligations.
On the other hand, it is to be noted that the applicants, as
owners of land adjacent to the dump, had standing under Swedish law to
ask the Licensing Board to require VAFAB to take certain precautionary
measures under section 5 as a condition for granting the permit. In
addition they could appeal to the Government against the Licensing
Board's decision in this respect.
Furthermore, whilst the Licensing Board refused the requests
for precautionary measures submitted by the applicants, its decision
of 13 March 1987 none the less made VAFAB's permit conditional upon an
obligation, apparently based on section 5, to supply water as deemed
reasonable by the County Administrative Board to affected well owners,
including the applicants, if future analyses of the wells were to give
reason to suspect that the dump was causing pollution of the water.
Having regard to the foregoing, the Court is satisfied that the
applicants could arguably maintain that they were entitled under
Swedish law to protection against the water in their well being
polluted as a result of VAFAB's activities on the dump.
25. In their appeal to the Government the applicants challenged the
Board's assessment that the activities on the dump were unlikely to
cause pollution of their well and that the measures requested were
unreasonable. Any discretion enjoyed by the competent administrative
authorities in this regard was limited both by the terms of section 5,
including the requirement of preventing or remedying detrimental
effects, and by the generally recognised principles of administrative
law that such discretion is not unfettered. There was thus a serious
disagreement between the applicants and the authorities raising issues
capable of going to the lawfulness of the conditions attached by the
Board, in the exercise of its discretionary power, to VAFAB's licence.
Finally, the outcome of the dispute was directly decisive for
the applicants' entitlement to protection against pollution of their
well by VAFAB. The appeal lodged by the applicants with the Government
thus involved a "determination" of one of their "rights" for the
purposes of Article 6 para. 1 (art. 6-1).
2. Whether the applicants' right was a "civil right"
26. The Government maintained that, unlike the 1986 Act which
governs compensation for damage of property resulting from
environmentally hazardous activities, the 1969 Act regulates such
activities primarily in relation to the general public interest.
Whilst the former Act dealt mainly with civil-law issues, the latter
Act was predominantly of public-law character.
27. The Court notes that the applicants' claim was directly
concerned with their ability to use the water in their well for
drinking purposes. This ability was one facet of their right as owners
of the land on which it was situated. The right of property is clearly
a "civil right" within the meaning of Article 6 para. 1 (art. 6-1)
(see, inter alia, the Tre Traktörer AB v. Sweden judgment of
7 July 1989, Series A no. 159, p. 19, para. 43; and the Oerlemans
v. the Netherlands judgment of 27 November 1991, Series A no. 219,
pp. 20-21, para. 48). Consequently, notwithstanding the public-law
aspects invoked by the Government, the Court, like the applicants and
the Commission, considers that the entitlement in issue was a "civil
right".
3. Conclusion
28. In sum, Article 6 para. 1 (art. 6-1) applies to the present
case.
B. Compliance with Article 6 para. 1 (art. 6-1)
29. Under Swedish law it was not possible at the material time for
the applicants to have the Government's decision of 17 March 1988,
upholding the Licensing Board's decision of 13 March 1987, reviewed by
a court (see paragraphs 11 and 13 above), and the Government admitted
this.
Accordingly, there has been a violation of Article 6 para. 1
(art. 6-1) in the present case.
II. APPLICATION OF ARTICLE 50 (art. 50)
30. Mr and Mrs Zander sought just satisfaction under Article 50
(art. 50), according to which:
"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."
A. Non-pecuniary damage
31. The applicants did not seek compensation for pecuniary damage,
but each claimed 250,000 Swedish kronor for non-pecuniary damage. They
maintained that, through fear of pollution of the well, they had to
collect drinking-water elsewhere - in buckets, cans and bottles - and
they feared that the value of their property had fallen considerably;
their being denied access to a court had aggravated the distress which
they had suffered for over ten years as a result of fear of pollution.
32. The Government objected to the applicants' claim in that it
seemed to imply that they had sustained actual damage in the form of
pollution caused by VAFAB. If so, they had failed to pursue their
claim before the Real Estate Court, which they could have done under
the 1986 Act (see paragraph 16 above). Consequently, any compensation
to be awarded under this head should not be based on an assumption that
the water had been polluted as a result of VAFAB's activities. In any
event, the amount should not exceed what had been awarded by the Court
or the Committee of Ministers in similar cases.
33. The Court considers that the applicants suffered some
non-pecuniary damage as a result of the absence of judicial review and,
unlike the Delegate of the Commission, that sufficient just
satisfaction would not be provided solely by the finding of a
violation. Deciding on an equitable basis, it awards each of the
applicants 30,000 Swedish kronor in this respect.
B. Costs and expenses
34. The applicants also claimed reimbursement of costs and
expenses, totalling 239,980 kronor, in respect of the following items:
(a) 94,120 kronor to cover legal costs referable to the
proceedings before the Licensing Board and the Government;
(b) 120,000 kronor for legal costs for the proceedings before
the Commission and Court;
(c) 25,860 kronor for expenses incurred in travelling to
Strasbourg.
35. The Court shares the view of the Delegate and the Government
that item (a) must be rejected, as the costs in question cannot be said
to have been incurred in order to prevent or obtain redress for the
violation found by the Court.
As regards item (b), the Court disagrees with the Government
that the amount claimed is excessive. It considers that both this and
item (c) should be reimbursed in their entirety, less the sum paid by
the Council of Europe by way of legal aid, namely 16,626 French francs.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that Article 6 para. 1 (art. 6-1) applies to the present
case and has been violated;
2. Holds that Sweden is to pay, within three months, to each of
the applicants 30,000 (thirty thousand) Swedish kronor for
non-pecuniary damage; and to the applicants jointly 145,860
(one hundred and forty-five thousand, eight hundred and sixty)
kronor for costs and expenses, less 16,626 (sixteen thousand,
six hundred and twenty-six) French francs to be converted into
kronor at the rate applicable on the date of delivery of the
present judgment;
3. Dismisses 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 25 November 1993.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar