BODÉN v. SWEDEN - 10930/84 [1987] ECHR 26 (27 October 1987)

judgment of 23 October 1985 (Series A no. 97, pp. 14-15, § 32): (a) Conformity with the spirit of the Convention requires that the word "contestation" (dispute) should not be construed too technically and should be given a substantive rather than a formal meaning. (b) The "contestation" (dispute) may relate not only to the actual existence of a right but also to its scope or the manner in which it may be exercised. It may concern both questions of fact and questions of law. (c) It must be genuine and of a serious nature. (d) The expression "contestations sur (des) droits et obligations de caractère civil" (disputes over civil rights and obligations) covers all proceedings the result of which is decisive for such rights and obligations. However, a tenuous connection or remote consequences do not suffice for Article 6 § 1 (art. 6-1): civil rights and obligations must be the object - or one of the objects - of the "contestation" (dispute); the result of the proceedings must be directly decisive for such a right. 31. The Government maintained that the issue of the expropriation permit was purely a policy decision and that there was consequently no genuine "contestation" (dispute) concerning questions of law or of fact susceptible of judicial assessment; what was involved was rather an assessment "so far removed from the exercise of the normal judicial function that the safeguards in Article 6 (art. 6) cannot be taken as covering resultant disagreements". The Government in this respect referred to the van Marle and Others judgment of 26 June 1986 (Series A no. 101, p. 12, § 36). 32. The Court does not share this view. According to his pleadings before the Commission, Mr. Gunnar Bodén's allegations were, inter alia, that the application of the 1972 Act was arbitrary in his case and that the responsible authorities had not properly appreciated the public interest in expropriating his properties. More importantly, the Government informed the Court that before the permit was issued, the applicant had submitted arguments contesting that his properties were needed for the development contemplated and contending that, when working out and adopting the area plan, the Municipal Council had not taken his interests sufficiently into account (see paragraph 9 above). This being so, it appears that there existed a serious disagreement between Mr. Gunnar Bodén and the Swedish authorities which raised questions going to the lawfulness, under the applicable Swedish legislation, of the issue of the permit (see paragraph 14 above). Furthermore, the expropriation permit was decisive for the applicant's property rights. It affected the very substance of ownership in that it authorised the Municipality of Falun to expropriate at any moment within the time-limit set in the permit. Mr. Gunnar Bodén's right of property thereby became precarious and defeasible (see the above-mentioned Sporrong and Lönnroth judgment, Series A no. 52, p. 23, § 60). The objections lodged by the applicant with the Government against the Municipal Council's request for an expropriation permit thus gave rise to a "contestation" (dispute) over one of his "civil rights", as those expressions are understood for the purposes of Article 6 § (art. 6-1). This provision is therefore applicable to the present case. B. Compliance with Article 6 § 1 (art. 6-1) 33. The Government admitted, should the Court find Article 6 § (art. 6-1) to be applicable, that the applicant was not afforded the safeguards it sets out. The Court nevertheless has to ascertain whether the applicant enjoyed the "right to a court", guaranteed to him under Article 6 § 1 (art. 6-1) (see the Golder judgment of 21 February 1975, Series A no. 18, p. 18, § 36). 34. The Government pointed out that both the Falun Municipal Council's decision to adopt an area plan and its decision to request an expropriation permit could be challenged before the County Administrative Board and, subsequently, the Supreme Administrative Court (see paragraph 19 above). However, these two decisions were only preparatory steps which, in themselves, did not at that stage interfere with the applicant's civil rights (see the above-mentioned Sporrong and Lönnroth judgment, Series A no. 52, pp. 30-31, § 85). This being so, the Court finds no reason to undertake a further examination of these remedies. 35. The Government's decision as to the issue of the permit was not open to appeal before either the ordinary or the administrative courts, or before any other body which could be considered to be a "tribunal" for the purposes of Article 6 § 1 (art. 6-1) (see paragraphs 18 and 20 above). Admittedly, the applicant could have challenged the lawfulness of such a decision by requesting the Supreme Administrative Court to re-open the proceedings. However, this extraordinary remedy does not, for the reasons set out in the above-mentioned Sporrong and Lönnroth judgment (p.31, § 86), meet the requirements of Article 6 § 1 (art. 6-1). 36. Nor would the requirements of Article 6 § 1 (art. 6-1) have been satisfied by any possibility which the applicant might have had of seeking compensation for prejudice (see paragraphs 21-22 above). Such an action would have concerned only certain effects of the expropriation permit and would not have determined the lawfulness of its issue. C. Conclusion 37. There was accordingly a violation of Article 6 § 1 (art. 6-1). II. APPLICATION OF ARTICLE 50 (art. 50) 38. Article 50 (art. 50) of the Convention provides: "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." In letters received on 12 and 18 February 1987, the applicant sought by way of just satisfaction financial compensation for prejudice allegedly suffered and reimbursement of costs and expenses incurred. At the hearing on 23 March 1987, the Government stated that the applicant had not provided the Court with any precise information as to damage. As to his costs and expenses, they suggested that the Court should ask him to furnish further particulars, which he did on 24 April 1987. The Government and the Commission have not submitted any further comments. The Court considers that in the circumstances the question of just satisfaction is ready for decision (Rule 53 § 1 of the Rules of Court). A. Damage 39. The applicant claimed 100,000 Swedish crowns (SEK) as compensation for pecuniary damage attributable to the increase in building costs over ten years. The Government disputed that any issue of compensation for pecuniary damage arose in the present case under Article 50 (art. 50). 40. The breach found by the Court consists of the absence of a court remedy for the applicant to challenge the lawfulness of the issue of the expropriation permit. However, the applicant has not adduced sufficient evidence to establish that, had such a remedy been available to him, the domestic court would have arrived at a decision in his favour. Neither is it for the Court to inquire into the merits, under Swedish law, of the issue of the permit. It must also be observed that the parties concerned finally reached agreement as to the transfer of the properties in 1984 and as to their re-purchase in 1986. Consequently, the Court sees no cause to award the applicant any compensation in respect of pecuniary damage. 41. The applicant also sought 85,000 SEK for non-pecuniary damage. As regards this claim, the Court shares the view of the Commission and the Government that, in the particular circumstances, the finding of a violation constitutes in itself adequate just satisfaction for the purposes of Article 50 (art. 50). B. Costs and expenses 42. The applicant claimed: (a) 5,400 SEK in respect of legal fees referable to the Strasbourg proceedings; (b) 7,000 SEK for miscellaneous expenses (translation, typing, telephone, postage, etc.); (c) 7,710 SEK for the costs of registering ownership of the re-purchased properties; (d) 2,000 SEK for loss of earnings occasioned by his having been obliged to visit the offices of various Swedish authorities; (e) 7,000 SEK for his own work in preparing the case. The Government expressed their readiness to reimburse, in the event of the Court finding a violation of the Convention, all costs and expenses reasonably incurred by the applicant in connection with his case. 43. (a) It was not disputed, and the Court considers, that the legal fees claimed were actually and necessarily incurred and reasonable as to quantum (see, inter alia, the Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66, p. 14, § 36). (b) Although the applicant did not supply any vouchers, the Court is also satisfied that he incurred certain miscellaneous expenses with a view to obtaining redress of the violation by the Convention institutions. It finds it equitable to award 3,500 SEK under this head. (c) On the other hand, the costs of registering ownership of the re-purchased properties are not attributable to the absence of a court remedy. There is consequently no causal link between the violation found by the Court and these costs. (d) It has not been established that there is a sufficient connection between the visits alleged to have occasioned a loss of earnings and the matter held by the Court in the present judgment to be in breach of Article 6 § 1 (art. 6-1). (e) Since the applicant was assisted by a lawyer before the Commission and did not take part in the proceedings before the Court (see paragraph 2 above), the Court does not consider that the item of 7,000 SEK claimed for his own work can be regarded as "necessary" for the purposes of Article 50 (art. 50). Mr. Gunnar Bodén is consequently entitled to be reimbursed, for costs and expenses, the sum of 8,900 SEK, from which must be deducted the amount of 3,410 French francs already paid in respect of legal costs by the Council of Europe. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that Article 6 § 1 (art. 6-1) applied in the instant case; 2. Holds that Article 6 § 1 (art. 6-1) has been violated; 3. Holds that the respondent State is to pay to the applicant in respect of costs and expenses the sum of 8,900 (eight thousand nine hundred) Swedish crowns, less 3,410 (three thousand four hundred and ten) French francs to be converted into Swedish crowns at the rate applicable on the date of delivery of the present judgment; 4. Rejects 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 27 October 1987. Signed: Rolv RYSSDAL President Signed: Marc-André EISSEN Registrar In accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 52 § 2 of the Rules of Court, the separate opinion of Mr. De Meyer, joined by Mr. Pettiti, is annexed to the present judgment. Initialled: R. R. Initialled: M.-A. E. SEPARATE OPINION OF JUDGE DE MEYER JOINED BY JUDGE PETTITI My remarks concerning paragraphs 30 and 31 of the judgment of today's date in the Pudas case (1) also apply to paragraphs 28 and 30 of the judgment in the present case. The reasons set forth in paragraphs 29 and 32 of the present judgment suffice to establish that "the instant case involved the 'determination' of a 'civil right'" (2). Those in paragraph 32 furthermore suffice to establish, as far as necessary, that there was a dispute ("contestation") concerning that right. _______________ (1) Judgment of today, Series A no. 125-A, p. 21. (2) Paragraph 27 in fine of the judgment, p. 39 above. _______________ BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII