CASE OF SPORRONG AND LÖNNROTH v. SWEDEN
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions);No violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations;Fair hearing;Public hearing);Just satisfaction reserved (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
C. Russo
9. The two applications relate to the effects of long-term expropriation permits and prohibitions on construction on the Estate of the late Mr. Sporrong and on Mrs. Lönnroth, in their capacity as property owners. 10. The Sporrong Estate, which has legal personality, is composed of Mrs. M. Sporrong, Mr. C.-O. Sporrong and Mrs. B. Atmer, the joint heirs of the late Mr. E. Sporrong; they reside in or near Stockholm. They own a property, situated in the Lower Norrmalm district in central Stockholm and known as "Riddaren No. 8", on which stands a building dating from the 1860’s. In the 1975 tax year the rateable value of the property was 600,000 Swedish crowns. 11. On 31 July 1956, acting pursuant to Article 44 of the Building Act 1947 (byggnadslagen - "the 1947 Act"), the Government granted the Stockholm City Council a zonal expropriation permit (expropriationstillstånd) covering 164 properties, including that owned by the Sporrong Estate. The City intended to build, over one of the main shopping streets in the centre of the capital, a viaduct leading to a major relief road. One of the viaduct’s supports was to stand on the "Riddaren" site, the remainder of which was to be turned into a car park. Under the Expropriation Act 1917 (expropriationslagen - "the 1917 Act"), the Government set at five years the time-limit within which the expropriation might be effected; before the end of that period the City Council had to summon the owners to appear before the Real Estate Court (fastighetdomstolen) for the fixing of compensation, failing which the permit would lapse. 12. In July 1961, at the request of the City, the Government extended this time-limit to 31 July 1964. Their decision affected 138 properties, including "Riddaren No. 8". At that time, the properties in question were not the subject of any city plan (stadsplan). 13. On 2 April 1964, the Government granted the City Council a further extension of the expropriation permit; this extension was applicable to 120 of the 164 properties originally concerned, including "Riddaren No. 8", and was valid until 31 July 1969. The City had prepared for Lower Norrmalm a general development plan, known as "City 62", which gave priority to street-widening for the benefit of private traffic and pedestrians. Subsequently, "City 67", a revised general development plan for Lower Norrmalm and Östermalm (another district in the city centre), stressed the need to improve public transport by means of a better network of roads. Some of the sites involved were to be used for street-widening, but any final decision had to await a decision as to the utilisation of the orders. It was estimated that the revised plan, which was of the same type as "City 62", should be implemented before 1985. 14. In July 1969, the City Council requested a third extension of the expropriation permit as regards certain properties, including "Riddaren No. 8", pointing out that the reasons for expropriation given in the "City 62" and "City 67" plans were still valid. On 14 May 1971, the Government set 31 July 1979, that is to say ten years from the date of the request, as the time-limit for the institution of the judicial proceedings for the fixing of compensation. In May 1975, the City Council put forward revised plans according to which the use of "Riddaren No. 8" was not to be modified and the existing building was not to be altered. On 3 May 1979, the Government cancelled the expropriation permit at the Council’s request (see paragraph 29 below). 15. The Sporrong Estate has never attempted to sell its property. 16. On 11 June 1954, the Stockholm County Administrative Board (länsstyrelsen) had imposed a prohibition on construction (byggnadsförbud) on "Riddaren No. 8", on the ground that the proposed viaduct and relief road would affect the use of the property. The prohibition was subsequently extended by the Board to 1 July 1979. 17. In 1970, the Sporrong Estate obtained an exemption from the prohibition in order to widen the front door of the building. It never applied for any other exemptions. 18. The expropriation permit and the prohibition on construction affecting; "Riddaren No. 8" were in force for total periods of twenty-three and twenty-five years respectively. 19. Mrs. I. M. Lönnroth lives in Stockholm, where she owns three-quarters of a property situated at "Barnhuset No. 6", in the Lower Norrmalm district; it is occupied by the two buildings erected in 1887-1888, one of which faces the street and the other the rear. In the 1975 tax year the rateable value of the applicant’s share of the property was 862,500 Swedish crowns. 20. On 24 September 1971, the Government authorised the Stockholm City Council to expropriate 115 properties, including "Barnhuset No. 6", and set 31 December 1979, that is to say ten years from the date of the Council request, as the time-limit for the institution of the judicial proceedings for the fixing of compensation. They justified their decision by reference to the "City 67" plan which envisaged that a multi-storey car park would be erected on the site of the applicant’s property. 21. However, work in this district was postponed and new plans were prepared for consideration. Believing her property to be in urgent need of repair, Mrs. Lönnroth requested the Government to withdraw the expropriation permit. The City Council replied that the existing plans did not allow any derogation to be made, and on 20 February 1975 the Government refused the request on the ground that the permit could not be revoked without the express consent of the City Council. On 3 May 1979, the Government cancelled the permit at the Council’s request (see paragraph 29 below). 22. Mrs. Lönnroth’s financial situation obliged her to try to sell her property. She made seven attempts to do so between 1970 and 1975, but the prospective buyers withdrew after they had consulted the city authorities. In addition, she sometimes had difficulty in finding tenants. 23. On 29 February 1968, the Stockholm County Administrative Board decided to impose a prohibition on construction on "Barnhuset No. 6", on the ground that the site was to be turned into a car park. The prohibition was subsequently extended by the Board to 1 July 1980. 24. In 1970, Mrs. Lönnroth was granted an exemption in order to make alterations to the third floor of her premises; she never sought any other exemptions. She failed to obtain a loan when, in the early 1970’s, one of the property’s major mortgagees demanded that the façade be renovated. 25. To sum up, Mrs. Lönnroth’s property was subject to an expropriation permit and a prohibition on construction for eight and twelve years respectively. 26. For several decades, spectacular changes have been taking place in the centre of Stockholm, comparable to those which have occurred in many cities which were reconstructed after being destroyed or severely damaged during the second world war. 27. Lower Norrmalm is a district where most of the capital’s important administrative and commercial activities used to be concentrated. Around 1945, the view was taken that the district should be restructured so that those activities could be carried on satisfactorily. For instance, a proper network of roads was needed. Furthermore, most of the buildings were decrepit and in a poor state of repair. A large-scale redevelopment scheme was necessary in order to provide suitable premises for offices and shops as well as to create a healthy and hygienic working environment. Zonal expropriation, introduced by an Act of 1953 which amended, inter alia, Article 44 of the 1947 Act, became the key instrument for implementing the City Council’s plans. In less than ten years more than one hundred buildings were demolished. Some of the vacant sites thereby created were used to make new roads and others were integrated into larger and more functional complexes. 28. During the 1970’s, town-planning policy in Stockholm evolved considerably. Far from being in favour of opening access roads to the centre, the city authorities were now trying to reduce the number of cars in the capital. This new policy was reflected in the "City 77" plan, which was adopted on 19 June 1978. It makes provision for urban renovation based above all on gradual rebuilding that takes account of the present urban fabric and it envisages the preservation and restoration of most of the existing buildings. 29. On 3 May 1979, the Government, granting a request submitted by the City Council in October 1978, cancelled, as regards about seventy properties including those of the applicants, the expropriation permits issued in 1956 and 1971. This was because it was by then considered unlikely that the City would need to acquire these properties in order to implement its new town-planning scheme. 30. Notwithstanding the difficulties occasioned by the existence of zonal expropriation permits, it has proved possible to sell sixty-six properties in Stockholm affected by such permits. 31. The 1947 Act is the main legal instrument of town-planning policy in Sweden. For this purpose, it provides for the drawing up of master plans and city plans. 32. A master plan (generalplan) will be drawn up by the municipality concerned in so far as this may be required in order to establish a framework for more detailed plans. Its adoption is a matter for the municipal council (kommunfullmäktige), which may refer the plan to the County Administrative Board - before 1 January 1973, to the Government - for approval (Article 10). 33. City plans are prepared for those urban areas in which this is deemed necessary (Article 24). A city plan is more detailed than a master plan: it will indicate the purposes for which the various areas may be utilised - housing, roads, squares, parks, etc. - and may also include more specific provisions on their use (Article 25). After adoption by the municipal council, it must be approved by the County Administrative Board. In the course of this procedure, property owners have various opportunities to submit their views to several agencies and they may, in the last resort, challenge the decision adopting the plan. 34. In some cases master plans and city plans will be submitted to the Government for a decision. 35. In conjunction with - or independently of - these plans, the Swedish authorities may resort to expropriations and to prohibitions on construction, measures between which there is not necessarily any legal connection. 36. As regards expropriation, the law applicable in the present case was mainly that contained in the 1917 Act, which was replaced with effect from 1 January 1973 by the Expropriation Act 1972 ("the 1972 Act"). Some additional matters were dealt with in the 1947 Act. 37. It is for the Government to decide whether expropriation should be authorised. Their decision takes the form of an expropriation permit and is based on the various conditions laid down in the Act. Issue of the permit does not automatically lead to an expropriation; it simply entitles a given public authority (or, in exceptional cases, a private individual or a company) to effect the expropriation if necessary. It leaves intact the owner’s right to sell, let or mortgage his property, and is subject to a time-limit within which the expropriating authority must initiate judicial proceedings for the fixing of compensation, failing which the permit will lapse. The 1917 Act was silent as to the length of this time-limit and as to the extension of the validity of permits. The official statement of reasons accompanying the Bill in which the 1972 Act originated drew attention to the disadvantages which expropriation permits occasion for property owners - uncertainly, restriction of the possibility of disposing of their property, difficulty in deciding whether to incur expenditure -, disadvantages which become more serious with the passage of time. For this reason Article 6 par. 1 of Chapter 3 of the 1972 Act provides (translation from the Swedish): "Expropriation permits shall set a time-limit for service of a summons to appear for the purposes of judicial proceedings. The time-limit may be extended if there are special reasons. Requests for extension shall be submitted before the time-limit expires. If the owner establishes that the fact that the question of expropriation remains pending has occasioned significantly more serious prejudice, the time-limit may, at his request, be reduced. No decision to reduce the time-limit can be taken until one year has elapsed since the issue of the expropriation permit." The expropriation is not completed until compensation has been fixed and paid. The Real Estate Court has jurisdiction in the matter; its decisions may be challenged in the Court of Appeal and, in the final instance, the Supreme Court. 38. Before 1 July 1953, expropriation related only to individual properties; each request for an expropriation permit described in detail the use to which the expropriating authority intended to put the premises concerned. The present applications involve another kind of expropriation, known as zonal expropriation. The relevant provision was introduced in 1953, by means of an amendment to Article 44 of the 1947 Act, and was repealed in 1971 with effect from 1 January 1972. It was as follows (translation from the Swedish): "If it is deemed necessary, for the purposes of public transport or town planning, to carry out a complete redevelopment of a densely-populated district and if such redevelopment can be effected only by means of rebuilding the entire district, the King may - where the redevelopment measures involve the adoption or modification of a city plan for the district concerned - grant the municipality the right to buy up the land needed for the redevelopment and also any land which is situated in the same district or in the immediate vicinity and whose value is likely to increase considerably as a result of the implementation of the plan ..." Between 1 January and 31 December 1972, provisions corresponding to this Article 44 were incorporated in the 1917 Act; they now appear in the 1972 Act (Chapter 2, Article 1). Zonal expropriations were thus designed as an instrument for major town-planning schemes. The permits which they entail may be issued as soon as a new city plan is under consideration, that is to say even before detailed arrangements for its implementation have been worked out. 39. Under Article 11 of the transitional provisions of the 1972 Act, requests for expropriation permits submitted before this new Act came into force continue to be subject to the old Act. 40. Like the 1917 Act, the 1972 Act does not provide for any possibility of compensation for prejudice resulting from the length of the validity of, or failure to utilise, an expropriation permit. It does, however, contain one exception (Chapter, 5, Article 16): compensation is payable for prejudice occasioned by the issue of an expropriation permit if the authority or person to whom it was granted has instituted, but subsequently abandoned, proceedings for the fixing of compensation. 41. The 1947 Act prohibits any new construction that is not in conformity with the city plan (Article 34). It permits, even before, and until, such a plan has been adopted by the municipal authorities and approved by the regional authorities, the prohibition as an interim measure of any construction work (Article 35 combined with Articles 14 and 15 of the 1947 Act). Article 15 of the Act provides as follows (translation from the Swedish): "If a question is raised concerning a request for the adoption of a master plan for a certain zone or for the amendment of a master plan that has already been approved, the County Administrative Board may, at the request of the municipality, prohibit all new construction (nybyggnad) in that zone. The prohibition shall remain in force until a decision in the matter has been taken by the municipal council, but not for more than one year. Where necessary, the County Administrative Board may, at the request of the municipality, extend the validity of the prohibition on contruction by a maximum of two years at a time. Exemptions form the prohibition on construction referred to in the preceding paragraph may be granted by the County Administrative Board or, in accordance with rules laid down by the Government, by the building Board (byggnadsnämnd)." The same principle applies where the authorities contemplate adopting a new city plan or amending an existing one (Article 35 of the 1947 Act). The principle concerns only new constructions, but Article 158 of the 1947 Act states that the provisions on new constructions shall extend "to such alterations to existing premises as may be classified as new construction under rules laid down by the Government". A rule to this effect appears in Article 75 of the 1959 Building Ordinance (byggnadsstadgan), which reads as follows (translation from the Swedish): "The expression ‘new construction’ shall mean: (a) the erection of entirely new premises; (b) the horizontal or vertical extension of existing premises; (c) any rebuilding of the exterior or interior of premises or any alteration thereto which, on account of its scale, may be equated to rebuilding; (d) the complete or partial conversion of premises for a use substantially different from their previous one; (e) such alteration to premises as results in their no longer being in conformity with the adopted master plan, city plan or building plan (byggnadsplan) or the regulations on building activities in zones situated outside the areas covered by city plans or building plans: and (f) any other alteration to premises which, in their present state, are not in conformity with the above-mentioned plans or regulations, except in the case of residential premises comprising not more than two dwellings or of outbuildings belonging to such premises. However, for the purposes of the present Article, the expression "new construction" shall not include the installation of central heating, water closets or other sanitary amenities in premises which, even if such installation has not been authorised, are expected to remain in their present state for a considerable length of time." 42. In his report of 1967, the Parliamentary Ombudsman (Justitieombudsmannen) referred to the consequences of long-term prohibitions on construction and envisaged certain solutions (translation from the Swedish): "As for as can be ascertained from the facts, the property owners in the Borås and Östersund cases cannot have expected to reap any advantages from the town-planning scheme. This means that the scheme could not provide them with any compensation for the prejudicial effects that were clearly occasioned by the long-term prohibitions. If in such cases one does not institute some means of protecting property owners against the prejudicial effect of long-term prohibitions, then - in order to render the implementation of town-planning schemes less expensive for municipalities - one or more property owners will themselves have to bear the prejudicial effects of a prohibition which has been imposed mainly in the interests of the community to settle questions of town planning within a reasonable time. Such a system is irreconcilable with the position that should obtain in a State governed by the rule of law. What arrangements should be made to protect a property owner against the prejudicial effects of temporary prohibitions on construction that remain in force for a lengthy period can hardly be stated without a thorough study of the problem. However, one possibility would be to set a maximum time-limit for the validity of temporary prohibitions. Nevertheless, such a solution could hardly be regarded as compatible with current requirements, for difficulties over determining what form future development should take mean that long delays cannot always be avoided. A preferable method would be to introduce a right for the property owner to seek compensation from the municipality for any loss he may establish or to require that it purchase the land once the prohibition has been in force for more than a certain period. There should, however, be a condition that the prohibition has been in force for quite a long time and has occasioned significant prejudicial effects that cannot be compensated by the advantages which the owners could be expected to gain through the town-planning scheme. In view of the foregoing, my opinion is that there should be a study of the question of introducing protection for private landowners against the prejudicial effects of unreasonably long temporary prohibitions on construction." (Justitieombudsmannens ämbetsberättelse 1967, pp. 478-479). 43. At the time when the applicants referred the matter to the Commission, the Municipal Act 1953 and, in the case of the capital, the City of Stockholm Act 1957 provided for and regulated a right of appeal (kommunalbesvär) against decisions by municipalities. These Acts enabled any local resident - with certain exceptions - to challenge a municipal council’s decisions before the County Administrative Board. Such an appeal could be based on the following grounds only: failure to observe the statutory procedures, infringement of the law, ultra vires conduct, violation of the appellant’s own rights or application of powers for an improper purpose. The appeal had to reach the County Administrative Board within three weeks of the date on which approval of the minutes of the decision had been announced on the municipal notice-board; the place where the minutes might be consulted was also indicated on the notice-board. Unless otherwise provided, the County Administrative Board’s decision could, within three weeks from its notification to the appellant, be the subject of an appeal to the Supreme Administrative Court (regeringsrätten). Almost identical provisions now appear in Chapter 7 of the Municipal Act 1977 (kommunallagen). They were slightly amended in 1980, with effect from 1 January 1981, in that the appeal now has to be made to the Administrative Court of Appeal (kammarrätten) and not to the County Administrative Board. 44. The above-mentioned rules apply to a municipal council’s decision to request the Government to issue or extend an expropriation permit. On the other hand, they do not apply to a decision to request the County Administrative Board to issue or extend a prohibition on construction: such a decision is, in fact, not open to any appeal to an administrative court. 45. In Sweden, administrative functions devolve largely on administrative authorities whose decision-making machinery is independent of the Government: such authorities do not come under any Ministry, and neither the Government nor the various Ministries may give them orders or instructions on how they should apply the law in this or that case. 46. It is often possible, however, to appeal to the Government against administrative authorities’ decisions. Thus, a decision by the County Administrative Board to issue or extend a prohibition on construction may be challenged by means of an appeal to the Government (Article 150 par. 2 of the 1947 Act). 47. Generally speaking, the Swedish administration is not subject to supervision by the ordinary courts. Those courts hear appeals against the State only in contractual matters, on questions of extra contractual liability and, under some statutes, in respect of administrative decisions. 48. Judicial review of the administration’s acts is, therefore, primarily a matter for administrative courts. These courts, which had their origin within the administration itself, comprise three levels: the County Administrative Court (länsrätterna); the Administrative Courts of Appeal; and the Supreme Administrative Court, which was set up in 1909 on the pattern of certain foreign institutions, such as the French Conseil d’État, but differs therefrom in certain fundamental respects. These courts are composed of independent judges appointed for life and, as a rule, they enjoy wide powers which enable them not only to set aside administrative acts but also to modify or replace them. In practice, it is very common for the lawfulness of such acts to be challenged. There is, however, an important exception to this principle, in that no appeal may be made against decisions of the Government. 49. Certain administrative cases - those with the most important political or financial implications - are reserved for decision by the Government as the first and last instance. Expropriation permits fall within this category (see paragraph 37 above). Although the Public Administration Act 1971 (förvaltningslagen) is not formally applicable to proceedings before the Government, they must be conducted in compliance with a number of principles: the right of the person concerned to have access to all the documents in the case; an obligation on the authority to inform him of any document added to the file and to give him an opportunity of stating his opinion thereon; the right of the person concerned to express his views orally if he so wishes. Before the Government take a decision on a request for an expropriation permit, the request will be submitted to the County Administrative Board which will prepare the file. The Board must, notably, give the property owner an opportunity to present his views on the request; it will also hear such public authorities as may have an interest in the matter. After collecting the necessary data, the Board will transmit them to the Government which will then be in a position to arrive at their decision. 50. Cases examined by the Government give rise to decisions which, as a rule, are not open to appeal. However, in special cases it is possible to lodge an extraordinary appeal, of limited scope, known as an application for re-opening of the proceedings (resningsansökan). Prior to 1 January 1975 such applications - which may also relate to a decision taken by the Government in an appellate capacity - were made to the Supreme Court. Since that date they are made to the Supreme Administrative Court (Chapter 11, Article 11, of the Constitution). The grounds for re-opening proceedings are to be found - although the provision is not formally binding on the Supreme Administrative Court - in Chapter 58, Article 1, of the Code of Judicial Procedure (rättegångsbalken), which reads (translation from the Swedish): "Once a judgment in a civil case has acquired the authority of res judicata, the re-opening of the proceedings in the interests of any of the parties may be ordered: 1. if a member or an official of the court has been guilty of a criminal offence or of misconduct in connection with the litigation or if an offence in connection with the litigation has been committed by a lawyer or legal representative, and if such offence or misconduct can be assumed to have affected the outcome of the case; 2. if a document submitted in evidence was forged or if a party examined on oath, a witness, an expert or an interpreter made false statements, and if such document or statements can be assumed to have affected the outcome of the case; 3. if there have come to light facts or evidence which, had they been put before the court previously, would probably have led to a different outcome; or 4. if the application of the law underlying the judgment is manifestly inconsistent with the law itself. Re-opening of the proceedings on the ground referred to in paragraph 3 above may not be ordered unless the party concerned establishes that in all probability he was unable to put the facts or evidence before the first instance or a superior court or that he had some other valid reason for not doing so." If, in a case like the present one, the Supreme Administrative Court accepts that the proceedings should be re-opened, it may either re-examine the whole case itself or refer it back to the Government. The very numerous decisions taken by the Government each year in fact give rise to very few applications for re-opening of the proceedings. 51. In the past, State and municipal bodies incurred no liability in respect of decisions which they took in the exercise of public authority, and no compensation could therefore be awarded for damage resulting from such decisions, although there were some doubts about the scope of this immunity. Swedish law on this subject was derived from case-law, specific statutes and unwritten principles. 52. The same law still applies on many points, but on 1 July 1972 the Civil Liability Act (skadeståndslagen) entered into force. This Act consolidates and develops a branch of the law governing compensation for damage in extra-contractual matters. It provides that the State and the municipalities are not civilly liable for damage caused by their acts. It does, however, make one radical change: the acts of the public authorities may now give rise to an entitlement to compensation in the event of fault or negligence (Chapter 3, Article 2). However, the legislature imposed an important restriction on this new principle, in that, save where the decisions in question have been set aside or modified, an action for damages "may not lie" in respect of decisions taken by Parliament, the Government, the Supreme Court, the Supreme Administrative Court and the National Social Security Court (Chapter 3, Article 7). According to authoritative commentaries, the court must, of its own motion, declare the action inadmissible in such case.