CASE OF ALLARD v. SWEDEN
Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
Nicolas Bratza
9. The applicant was born in 1947 and lives in Spånga. 10. In 1935 the applicant’s mother and her four siblings jointly inherited two estates – Marum 1:6 and Marum 1:8 – from their father. The ownership of the estates, consisting of several islands in the archipelago of Stockholm, was over the years partly transferred to other members of the family. Disagreements arose between the family members. Some of them wished to divide the property (klyvning) and thus dissolve the joint ownership, but the applicant’s mother opposed this idea. 11. On the land managed by the applicant’s mother – which formed part of Marum 1:8 – the mother owned a number of houses. Two of the houses were used by the applicant’s two sisters. A third house situated on the property was considered too small for the applicant’s needs and it was therefore decided to enlarge it. The applicant applied for a building permit to the Österåker Building Committee (byggnadsnämnden). On 9 September 1987, finding that the enlargement could not be approved as the house in question was situated too close to the shore, the committee nevertheless granted a permit for the building of a new house further away from the shore. The new house was built in 1988. 12. On 4 August 1989 the applicant’s mother died, leaving four children, namely the applicant, her brother and her two sisters. However, no distribution of the mother’s estate was made before 1991. By a partial division on 29 June 1991, the new house was transferred to the applicant. 13. On 21 December 1989 practically all the other joint owners of the two estates brought proceedings against the applicant in the District Court (tingsrätten) of Södra Roslag, requesting that she be ordered to remove the new house on Marum 1:8 as it had been built without their consent, contrary to the requirements of the Joint Ownership Act (Lagen om samäganderätt, 1904:48 – “the 1904 Act”). The applicant disputed this and argued, inter alia, that it was her mother who had built the house and that accordingly it belonged to her mother’s estate. Thus, she was not the proper defendant in the case. 14. By a judgment of 10 May 1990 (“the removal judgment”) the District Court declared that the applicant was to remove the house, or risk having it demolished at her expense. The court stated, inter alia, that it was the applicant who owned the house and that she had built it without the necessary consent of all the other joint owners. 15. In 1991 one of the joint owners applied for the sale of Marum 1:6 and Marum 1:8 at a public auction. On 22 May 1992 the District Court decided to stay those proceedings. 16. On 22 February 1994 the District Court’s removal judgment was upheld on appeal by the Svea Court of Appeal (Svea hovrätt). 17. The applicant appealed to the Supreme Court (Högsta domstolen). She later requested, inter alia, that no further action be taken on the case pending the outcome of division proceedings which she had begun in October 1990. In these proceedings, the applicant claimed that the joint ownership of the two estates should be dissolved and individual plots be assigned to the family members. Following several decisions taken by the Real Estate Formation Authority (Fastighetsbildningsmyndigheten – “the REFA”) and the courts, the case had to be referred back by the Court of Appeal to the REFA for re-examination as the latter had made procedural errors. Subsequently, by a decision of 1 December 1995, the REFA allowed the creation of four individual plots on Marum 1:8 but rejected the applicant’s request for the creation of an individual plot around the new house on account of the Court of Appeal’s ruling that that house be removed. The applicant appealed against the REFA’s decision to the Real Estate Court (fastighetsdomstolen) in Stockholm. As an alternative ground for staying the proceedings before the Supreme Court, the applicant pleaded that, in March 1995, she had requested that the District Court give a declaratory judgment on the question of ownership of the new house. 18. By a decision of 4 March 1996 the Supreme Court rejected the applicant’s request to have the removal proceedings stayed and refused her leave to appeal against the Court of Appeal’s ruling. 19. Following the Supreme Court’s decision, several family members requested that the Enforcement Office (kronofogdemyndigheten – “the Office”) enforce the removal judgment. On 7 March 1996 the Office ordered the applicant to remove the house before 3 April 1996 or risk having it demolished by the Office at her own expense. By a later decision the time-limit was extended until 19 April 1996. 20. On 14 March 1996, at the Real Estate Court’s request, the Central Office of the National Land Survey (Lantmäteriverket – “the Central Office”) gave its opinion in the division proceedings. It considered that the removal judgment did not prevent the creation of an individual plot around the house in issue. On the contrary, this could preserve the house and reduce the risk of adverse consequences for the applicant. Thus, the Central Office recommended that the applicant be assigned an individual plot. 21. However, on 3 April 1996 the Enforcement Office refused the applicant a further postponement of the enforcement of the removal judgment. On 15 May 1996 the District Court upheld the Enforcement Office’s decisions and rejected the applicant’s request for a stay of the enforcement. Subsequently, the Enforcement Office, on 20 May 1996, decided that the house was to be demolished by a construction firm on 3 June 1996. 22. The applicant appealed to the Court of Appeal, requesting an immediate stay of the demolition order. She submitted that enforcement of the removal judgment should be stayed until the division proceedings or, in the alternative, until the ownership proceedings had been concluded. She also claimed that she had not been given the opportunity to remove the house herself in accordance with the District Court’s judgment of 10 May 1990. She stated that she had started to dismantle the house but was not able to complete the work before 3 June 1996. Furthermore, the applicant requested a three-week respite in order to substantiate her appeal. 23. By a decision of 31 May 1996 the Court of Appeal ordered the applicant to complete her appeal by 12 midnight on 5 June 1996. On the same day, that is on 31 May, the Court of Appeal received a letter from the applicant in which she requested an immediate stay of the demolition order. She submitted, inter alia, that enforcement of the removal judgment should be stayed until the division proceedings had been concluded or, in the alternative, until the Real Estate Court had decided the question. She also requested a three-week respite to substantiate her appeal. 24. The appellate court’s order for the completion of the appeal – which was sent to the applicant’s address at the time in Spånga – was allegedly not received by the applicant until the evening of 5 June, as she had been at the site of the house in issue. On the morning of 6 June she sent a fax to the appellate court, asking for a ten-day respite for the completion of her appeal. 25. However, at a session held on 3 June 1996 the Court of Appeal had already examined the case and, by a decision delivered the following day, refused the applicant leave to appeal against the District Court’s decision of 15 May 1996. Thus, no further stay of the enforcement proceedings was granted. It appears from the court files that the applicant called the Court of Appeal on 6 June and was told that the case had already been examined and that regard had been had to the contents of her letter of 31 May. On 5 July 1996 the Supreme Court refused leave to appeal against the appellate court’s decision. 26. The house in issue was therefore demolished by a construction firm. The applicant had claimed that her appeal against the District Court’s decision of 15 May 1996 prevented the enforcement of the removal judgment. However, this claim was rejected by the Enforcement Office on 31 May 1996, referring to Chapter 3, section 21, of the Enforcement Code (Utsökningsbalken). The demolition of the house began on 3 June 1996 and was concluded ten days later. On 25 June 1996 the Enforcement Office declared that the house had been demolished and that accordingly the removal judgment had been duly enforced. However, this decision was appealed against by the other joint owners on the ground that the building material had not been removed from the property. On 13 September 1996 the District Court, finding in favour of the appellants, quashed the Enforcement Office’s decision that the enforcement had been finalised and referred the matter back to the Office. Leave to appeal against the District Court’s decision was refused by the Court of Appeal and the Supreme Court on 30 September and 25 October 1996 respectively. On 27 September 1996 the Enforcement Office ordered the applicant to remove the building material from the property before 29 October 1996. 27. On 6 August 1996 the Enforcement Office ordered the applicant to pay the enforcement costs of 114,796 kronor. The applicant appealed and applied for legal aid in the matter. By a decision of 9 September 1996 the District Court rejected the applicant’s application for legal aid on the ground that she did not have a legitimate interest in having the case heard as the enforcement had been concluded. The applicant’s further appeal was rejected by the Court of Appeal on 13 December 1996. On 28 April 1997 the Supreme Court refused leave to appeal. 28. On 22 November 1996 the Real Estate Court gave judgment in the division proceedings. It decided that Marum 1:8 should be divided into six individual plots and one common plot. The applicant was assigned a plot where the now demolished house had been situated. In this respect, the Real Estate Court thus agreed with the opinion given by the Central Office of the National Land Survey on 14 March 1996. The Real Estate Court’s judgment was upheld on appeal by the Court of Appeal on 2 November 1998. On 14 April 2000 the Supreme Court refused leave to appeal. 29. By a judgment of 26 November 1996 the District Court decided another removal case which had been brought by the applicant and her sister in 1994. Apparently in response to the removal proceedings brought against the applicant, they had claimed that several other joint owners of Marum 1:6 and 1:8 should remove buildings they had erected on the estates. However, the District Court rejected the claims, finding that the buildings had been erected before 1991 – when the applicant and her sister, through the partial division of their mother’s estate, had become joint owners of the two properties – and that the other joint owners at the time had expressly or impliedly consented to the various building projects. Furthermore, considering that the claimants did not have a legitimate interest in having their cases heard, the court also decided that further litigation in this respect should not be paid for through public legal aid. Thus, with effect from the date of the judgment, the legal aid previously awarded was withdrawn. The applicant and her sister appealed against the judgment, submitting, inter alia, that the District Court’s decision on legal aid should be quashed. However, on 3 October 1997 the Court of Appeal upheld the legal-aid decision. On 16 January 1998 the Supreme Court refused leave to appeal. Stating that they were unable to plead their case properly without legal aid, the applicant and her sister, by a letter to the Court of Appeal of 1 November 1999, withdrew most of their claims in the removal case. 30. By a declaratory judgment of 10 July 1997 in proceedings concerning the ownership of the house in issue, the District Court agreed with the applicant’s argument, submitted to the court in March 1995, that the house had been erected on her mother’s behalf and thus formed part of the latter’s estate. Accordingly, at the time of the District Court’s removal judgment of 10 May 1990, the house had not belonged to the applicant. Thus, in this respect, the court came to a different conclusion from the one reached in the removal judgment. Following an appeal, the declaratory judgment was upheld by the Court of Appeal on 26 February 1998. No further appeal was lodged and the appellate court’s judgment consequently acquired legal force. 31. By decisions of 4 February 1997 and 29 February 2000, the Building Committee granted the applicant building permits for the reconstruction of the demolished house and the construction of two smaller outbuildings. 32. Domestic provisions of relevance in the present case are found in the Joint Ownership Act (“the 1904 Act”), the Administration of Certain Jointly Owned Agricultural Property Act (Lagen om förvaltning av vissa samägda jordbruksfastigheter, 1989:31 – “the 1989 Act”), the Real Estate Formation Act (Fastighetsbildningslagen, 1970:988 – “the 1970 Act”), the Enforcement Code and the Code of Judicial Procedure (Rättegångsbalken). 33. At the time of the building of the house in issue, the ownership of Marum 1:6 and 1:8 was governed by the 1904 Act. Section 2 provided that a joint owner wishing to dispose of real estate must have the consent of all the other joint owners. According to the Supreme Court case-law, a joint owner who was of the opinion that another joint owner had acted in a way which conflicted with section 2 – that is had not had the necessary consent – could challenge the action in court (Nytt juridiskt arkiv (“NJA”) 1990, p. 184; the same right to bring proceedings is afforded to a joint owner under the 1989 Act – see NJA 1992, p. 769). Under section 3, a joint owner who disagreed with the administration or use of real estate could request the court to appoint an administrator. Further, under section 6, a joint owner had the right to apply for a sale of real estate at public auction. The only way for another joint owner to prevent such a sale was to request division proceedings in accordance with section 7. If such proceedings had been started, the court could not decide on the question of a sale until the division proceedings had been concluded. 34. As the real estate in the present case is assessed, for tax purposes, as agricultural property, the provisions of the 1989 Act are applicable as from 1 July 1989. The relevant provisions of that Act are essentially the same as in the 1904 Act. Thus, section 5(2) of the 1989 Act contains a rule that corresponds to section 2 of the 1904 Act. 35. Under Chapter 11, section 1, of the 1970 Act, jointly owned real estate may, on application by a joint owner to the Real Estate Formation Authority (“the REFA”), be divided into individual plots, provided that each plot created is deemed permanently suitable for its purpose in accordance with Chapter 3, section 1. Chapter 11, section 3(4), provides that if a court has ordered real estate to be offered for sale at a public auction, the estate may be divided only if no sale has taken place. 36. The enforcement rules are laid down in the Enforcement Code. According to Chapter 3, sections 1 and 3, a court judgment may be enforced as soon as it has acquired legal force. Section 21 of the same chapter deals with objections against enforcement. Such objections may only be raised in respect of circumstances that have occurred after the delivery of the enforceable judgment, and the Enforcement Office is accordingly not entitled to reconsider the judgment itself. Thus, under section 21(1) enforcement cannot take place if the defendant shows that he or she has fulfilled the obligation set forth in the judgment in question. Furthermore, according to section 21(2), enforcement cannot take place if the defendant claims that there are other circumstances which hinder enforcement, provided that the court finds that the objection cannot be dismissed. This rule concerns substantive objections, for example an objection that property which the defendant is obliged to deliver has been conveyed or encumbered. 37. Under Chapter 16, section 12a, of the Enforcement Code, an application for enforcement becomes void if the applicant in the enforcement proceedings grants the defendant a respite which lasts more than six months from the date of the application. However, there are no rules empowering the Enforcement Office to grant the defendant a respite at his or her own request. A decision by the Office to refuse a stay of the enforcement proceedings is, in accordance with Chapter 18, section 1, of the Code, subject to appeal before a court. 38. When it is of utmost importance for deciding a case that a question subject to other court proceedings be determined first, the court may, under Chapter 32, section 5, of the Code of Judicial Procedure, order a stay of proceedings (vilandeförklaring). According to the preparatory documents (NJA II 1943, p. 417), the relationship between the two court cases may be such that the decision in one set of proceedings has a binding effect on the outcome of the other set of proceedings. An action for pecuniary compensation for damage to real property and another action concerning the ownership of the property is given as an example. The outcome of one set of proceedings may also have evidential significance in another set of proceedings. In these situations the relevant court has to decide whether it is in the interests of all parties concerned to stay the proceedings or not.