CASE OF FREDIN v. SWEDEN (No. 2)
Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
John Freeland
6. Mr Anders Fredin, an agricultural engineer, is a Swedish citizen. He lives at Grödinge, Sweden. The applicant and his wife own land in the municipality of Botkyrka, on which there is a gravel pit. They held a permit to extract gravel from the pit from 14 April 1983 until 1 December 1988, when the permit was revoked; it had previously been extended on the understanding that the activities in question would be terminated and restoration work carried out on the land by the latter date. The revocation of the permit, and the lack of a court remedy against this and a related measure, gave rise to an earlier case before the Court, which held in a judgment of 18 February 1991 (Series A no. 192) that there had been a violation of Article 6 para. 1 (art. 6-1) of the Convention, but not of Article 1 of Protocol No. 1 (P1-1) taken either alone or in conjunction with Article 14 (art. 14+P1-1) of the Convention. 7. Following the revocation on 1 December 1988, the applicant applied to the County Administrative Board (länsstyrelsen) for a special extraction permit, so that he could comply with a plan adopted by the Board on 9 March 1987 for the restoration of the pit. The application was dismissed by the Board on 14 March 1989 and an appeal by the applicant against this decision was rejected by the Government (the Ministry of Environment and Energy) on 21 June 1989. 8. The applicant, seeking the annulment of the Government’s decision of 21 June 1989, applied to the Supreme Administrative Court (regeringsrätten) for review under the 1988 Act on Judicial Review of Certain Administrative Decisions (lagen om rättsprövning av vissa förvaltningsbeslut 1988:205 - "the 1988 Act"). He alleged that, by denying him a special extraction permit, the competent authorities had prevented him from taking measures to comply with the restoration plan; the refusal contravened the principle of objectivity enshrined in Chapter 1, section 9, of the Instrument of Government (regeringsformen, which forms part of the Constitution). Moreover, contrary to the principle of proportionality and section 3 of the 1964 Nature Conservation Act (naturvårdslagen 1964:822), the authorities had gone beyond what was necessary in the interests of nature conservation, as well as other public and private interests. Their decision was also incompatible with the aim of nature conservation laid down in section 1(3) of the Act. Finally, the only reply given by the County Administrative Board to his question as to what steps he should take had been that the time-limit for restoration of the pit had expired; he had thus been the victim of a denial of justice. In addition, the applicant asked the Supreme Administrative Court to hold an oral hearing in his case. 9. In a decision (beslut) of 13 December 1990, the Supreme Administrative Court, sitting with five judges, dismissed the latter request by three votes to two, finding that there were no grounds under section 9 of the Administrative Procedure Act 1971 (förvaltningsprocesslagen 1971:291; see paragraph 14 below) for holding a hearing. As to the merits, on the basis of written observations submitted by the applicant and the County Administrative Board, it concluded unanimously that the Government’s decision was not unlawful and confirmed it. According to the minutes of deliberations on 30 October 1990, the two judges who were in favour of a hearing had regard in particular to the fact that the 1988 Act had been enacted in order to ensure that Swedish law complied with the Convention standards and also with the Strasbourg Court’s case-law in this area (see paragraph 11 below). They noted moreover that certain essential points of Mr Fredin’s case remained unclear, since there was disagreement between him and the County Administrative Board as to whether the above-mentioned restoration plan (see paragraphs 7 and 8 above) required the further extraction of gravel from the pit or simply the moving of gravel within it. In addition they drew attention to the lack of clarity in Mr Fredin’s plea against the Government. The same two judges considered that the Government, like the applicant and the County Administrative Board, should have submitted written observations on the case; apart from their reasons for rejecting the applicant’s appeal, they should have given their views on the above-mentioned issue of the need for further extraction of gravel and on whether their decision meant that Mr Fredin had been prevented from restoring the pit in the prescribed manner after 1 December 1988. 10. It was not possible under Swedish law for the applicant to appeal from the Supreme Administrative Court’s decision of 13 December 1990. 11. The 1988 Act was introduced as a result of the European Court’s findings in several cases, notably against Sweden, that lack of judicial review of certain administrative decisions infringed Article 6 para. 1 (art. 6-1) of the Convention (see, for instance, the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, pp. 29-31, paras. 78-87; the Pudas v. Sweden and the Bodén v. Sweden judgments of 27 October 1987, respectively Series A no. 125-A, pp. 13-17, paras. 28-42, and Series A no. 125-B, pp. 39-42, paras. 26-37). It was enacted as a temporary law to remain in force until 1991; its validity was subsequently extended to the end of 1994. 12. Pursuant to section 1 of this Act, a person who has been a party to administrative proceedings before the Government or another public authority may, in the absence of any other remedy, apply to the Supreme Administrative Court, as the first and only judicial instance, for review of any decisions in the case which involve the exercise of public authority vis-à-vis a private individual. The kind of administrative decision covered by the Act is further defined in Chapter 8, sections 2 and 3 of the Instrument of Government, to which section 1 of the 1988 Act refers. Section 2 of the Act specifies several types of decisions which fall outside its scope, none of which is relevant in the instant case. In proceedings brought under the 1988 Act, the Supreme Administrative Court examines whether the contested decision "conflicts with any legal rule" (section 1 of the 1988 Act). According to the preparatory work to the Act, as reproduced in Government Bill 1987/88:69 (pp. 23-24), its review of the merits of cases concerns essentially questions of law but may, in so far as is relevant for the application of the law, extend also to factual issues; it must also consider whether there are any procedural errors which may have affected the outcome of the case. 13. If the Supreme Administrative Court finds that the impugned decision is unlawful, it must quash it and, where necessary, refer the case back to the relevant administrative authority (section 5 of the 1988 Act, as applicable at the relevant time). 14. The procedure before the Supreme Administrative Court is governed by the Administrative Procedure Act 1971. It is in principle a written procedure, but the Supreme Administrative Court may decide to hold an oral hearing on specific matters if this is likely to assist it in its examination of the case or to expedite the proceedings (section 9).