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FIFTH
SECTION
DECISION
Application no.
59122/08
Annika JACOBSON
against Sweden
The
European Court of Human Rights (Fifth Section), sitting on 22 May
2012 as a Chamber composed of:
Dean
Spielmann, President,
Elisabet Fura,
Boštjan
M. Zupančič,
Ann Power-Forde,
Ganna
Yudkivska,
Angelika Nußberger,
André
Potocki, judges,
and Claudia Westerdiek,
Section Registrar,
Having
regard to the above application lodged on 27 November 2008,
Having
regard to the decision of 12 January 2010,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Ms Annika Jacobson, is a Swedish national, who was born in
1961 and lives in Hammenhög. She was represented by
Mr P. Sjödin, a lawyer practising in Stockholm.
- The
Swedish Government (“the Government”) were represented by
their Agent, Ms G. Isaksson, of the Ministry for Foreign Affairs.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- In
September 1997 the applicant bought, together with another person,
the vacant lot Sandby 66:3 in the municipality of Simrishamn for
725,000 Swedish kronor (SEK). She is now the sole owner of the
property, which covers about 33.6 hectares. It is leased to a
forestry company, P7G Österlens Natur & Träförädling
AB (hereafter “the company”), a family company owned by
the applicant and Mr Göran Jacobson.
- By
a decree of 6 May 1974 the County Administrative Board
(länsstyrelsen) had issued, under section 19 of the
Nature Conservation Act (Naturvårdslagen, SFS 1964:822),
several restrictions on the use of certain land, which included the
property later bought by the applicant. For example, the decree
prohibited, without the Board’s permssion, the erection of new
buildings or fundamental alterations of existing buildings,
excavations, fillings and tippings of any kind, the collection of
soil, stone, gravel, sand or clay, certain forest cultivation, and
permanent camping or parking of a caravan.
- With
the purpose of creating a nature reserve, the County Administrative
Board, by an interim decision of 17 November 1998, issued
prohibitions pursuant to section 11 of the Nature Conservation Act
against taking certain measures on a large part of the applicant’s
property. The Board noted that the land formed part of a larger area
of national interest for public outdoor life and that there were
species of animals and plants in need of long-term protection. It
found that the land’s natural assets were under threat from
felling and other exploitation. Among other things, the decision made
it unlawful, without the Board’s permission, to undertake any
works that would modify the topography or general character of the
land, extract or collect materials, plant trees or bushes, put up
fences in order to restrict the movement of wild animals or the
public, construct roads, park caravans, and erect buildings or other
constructions. The decision’s three-year validity was later
extended for an additional two years.
- By
a decision of 5 May 2003 the Board decided to establish a nature
reserve, Mälarhusen, in accordance with Chapter 7, section 4 of
the Environmental Code (Miljöbalken, SFS 1998:808). It
covered 45 hectares, including 27.5 hectares of the applicant’s
property. The purposes, similar to the above interim decision, were
the development of biological diversity on the land and the
preservation of an area of importance to public outdoor life.
Pursuant to Chapter 7, sections 5, 6 and 30 of the Code, the Board
imposed extensive restrictions on the use of the property, including
the prohibitions already in force under the interim decision. (The
latter decision ceased to be vaild through the establishment of the
nature reserve.) In the decision on the nature reserve, the Board
noted that provisions regarding protected forest land (skyddsskog)
applied to the applicant’s property, pursuant to the Forestry
Act (Skogsvårdslagen, SFS 1979:429). The Board further
described the area as follows:
“The whole area around Sandhammaren, of which
Mälarhusen is a part, is of geoscientific value as an
extensive coastal dune area with active dune-building processes that
are unique in Sweden. Mälarhusen itself consists primarily of
pine forest on fossil sand dunes with elements of grey hair-grass and
heather heath, dune wetlands overgrown with wet birch forest and
wind-blown dunes. The variety of different biotopes helps create the
conditions for a high level of biological diversity in the
area. The area is important for outdoor activities and also
has a land history value in that ‘protective forests’
were planted in parts of the area in different periods to bind the
sand and prevent it from drifting.
The area as a whole is of national interest as a coastal
zone and for outdoor activities (F5 Mälarhusen), whereas the
common beach and the water area off the beach are of national
interest for nature conservation (N72 Coastal area Nybrostrand –
Simrishamn). The area borders the Sandhammaren nature reserve which
is a Natura 2000 site. The Sandhammaren nature reserve has been
declared by the Government a special protected area under Council
Directive 79/409/EEC on the conservation of wild birds (the Birds
Directive) and the Government has also proposed that it be included
in Natura 2000 in line with Council Directive 92/43/EEC on the
conservation of natural habitats and of wild fauna and flora (the
Habitats Directive).
Most of the area in question contains natural habitats
as defined in the Habitats Directive, for which protective measures
are needed to protect their nature conservation value in the long
term. The Mälarhusen nature reserve can therefore be seen to
strengthen these natural habitats within Sandhammaren. This applies
to habitats such as tree-covered sand dunes, shifting dunes with
Ammophila arenaria and sublittoral sandbanks.”
- In
connection with the establishment of the nature reserve, the
applicant was offered SEK 275,000 as compensation for the
encroachment of her property. No agreement on compensation was
reached, however, and the applicant and the company, in 2002,
instituted compensation proceedings under the Environmental Code
against the State at the Environmental Court (miljödomstolen)
in Växjö (see further below at § 12).
- The
applicant and the company appealed against the County Administrative
Board’s decision of 5 May 2003 to the Government which, on 23
October 2003, upheld the appealed decision.
- The applicant and the company then requested a review
of the Government’s decision by the Supreme Administrative
Court (Regerings-rätten) under the Act on Judicial Review
of Certain Administrative Decisions (Lagen om rättsprövning
av vissa förvaltningsbeslut, SFS 1988:205; hereafter “the
1988 Act”). They claimed that the property did not have such
nature values that the establishment of a nature reserve was
justified under the conditions of the Environmental Code. The
existing values could instead be protected through a nature
conservation agreement (naturvårdsavtal). Nor was the
property of importance to public outdoor life, as it was difficult to
access. The appellants further argued that the impugned decision
limited the right of ownership to such a far-reaching extent that it
was to be equated with an expropriation and could not be considered
as reaching a reasonable balance between public and private
interests. Although the taxation value of the property was SEK
1,100,000 and the market value probably considerably higher, only SEK
275,000 had been offered as compensation by the State. Allegedly,
while an expropriation under the Expropriation Act would have met the
conditions regarding the protection of property under the Convention,
the measures taken pursuant to Chapter 7 of the Environmental Code
did not. Instead, the impugned decision circumvented both the
Expropriation Act and the Convention.
- The
Supreme Administrative Court held an oral hearing, at which it heard
two experts on behalf of the complainants. The two experts stated
that the land was not of such importance that it merited the creation
of a nature reserve. However, by a judgment of 2 June 2008 the court
upheld the Government’s decision, finding that the
establishment of a nature reserve was in conformity with the relevant
provisions of the Environmental Code (Miljöbalken), that
there had not been any procedural irregularities that could have had
a bearing on the decision and that there were no other reason to find
that it contravened the law.
- In
the compensation proceedings before the Environmental Court, the
applicant and the company have requested that the State be obliged to
purchase the property for, in the first place, SEK 30,000,000 or be
ordered to pay compensation with a similar amount for the
depreciation of the property’s market value, allegedly caused
by the establishment of the nature reserve. They have also claimed
interest as from 17 November 1998, the date of the County
Administrative Board’s interim decision. The State, represented
by the Legal, Financial and Administrative Services Agency
(Kammarkollegiet), has opposed a forced purchase and the
claimed compensation for value depreciation. It has accepted that the
company be compensated with SEK 440,000 for an infringement of its
alleged business activities. In February 2004, at the applicant’s
request, the compensation case was adjourned pending the outcome of
the Supreme Administrative Court’s review of the decision to
establish a nature reserve. The proceedings before the Environmental
Court recommenced in June 2008 and the court held a preparatory
hearing in the case on 17 June 2009. The parties have submitted
several affidavits concerning the value of the land. The case is
still pending.
B. Relevant domestic law and practice
- The
Environmental Code lays down the conditions under which a nature
reserve may be created. According to Chapter 7, section 4,
subsection 1, a land or water area may be declared a nature
reserve by a county administrative board or a municipality for the
purpose of preserving biological diversity, protecting and preserving
valuable natural environments or satisfying the need of areas for
outdoor recreation. According to subsection 2 of the same provision,
any area that is needed for the purpose of protecting, restoring or
establishing valuable natural environments or habitats for species
that are worthy of preservation may also be designated a nature
reserve.
- The
second paragraph of the aforementioned provision has been drawn up to
achieve coherence with the Birds Directive and the Habitats
Directive. According to the preparatory works to the provision
(Government Bill 1997/98:45, part 2, pp. 71-73), the creation of
nature reserves presupposes that there are strong public interests in
favour of such a measure. The fact that the preservation of
biological diversity is a valid ground for creating a nature reserve
emphasises that a comprehensive view should characterise the
application of the provisions on the creation of a nature reserve.
When determining the boundaries of a nature reserve, consideration
should be had to the possible need of creating a “buffer zone”
to achieve the purpose of preserving biological diversity. Hence, a
larger nature reserve than the area in immediate need of protection
may be created.
- A
decision establishing a nature reserve shall contain a statement of
the reasons for the decision. The decision shall also specify any
restrictions on the right to use land and water areas that are
necessary in order to achieve the purpose of the reserve, such as
prohibitions against development, the erection of fences, landfill
sites, excavation, quarries, cultivation, ditching, planting,
logging, hunting, fishing and the use of pesticides. Such
restrictions may include prohibition of access to the area throughout
the year or during parts of the year (Chapter 7, section 5 of the
Code).
- Where
it is necessary in order to fulfil the purpose of a nature reserve,
the county administrative board or the municipality may require
owners of property and holders of special rights thereto to tolerate
the following intrusions in the area (Chapter 7, section 6):
1. the building of roads, car parks, trails,
rest hostels, camping sites, bathing places, sanitary facilities or
similar amenities;
2. public access to land in places where the
public does not normally have a right of access;
3. thinning, clearing, haymaking, planting,
grazing, the erection of barriers or similar measures; or
4. studies of animal and plant species and of
soil and water conditions.
- A
county administrative board or municipality may in special
circumstances grant exemptions from the rules it has issued for a
nature reserve (Chapter 7, section 7).
- When
the creation of a nature reserve is considered, private interests
shall be taken into account. Restrictions on the rights of private
individuals to use land or water issued pursuant to Chapter 7 of the
Code must therefore not be more stringent than necessary for the
achievement of the purpose of the protection (Chapter 7, section 25).
- Chapter
7, section 24 of the Code contains provisions on temporary
prohibitions. Following a proposal that an area be protected as a
nature reserve, a municipality or a county administrative board may
impose a prohibition for a specified period of not more than three
years against measures without prior permission which would affect
the area and conflict with the purpose of the intended protection. A
prohibition may be extended for a maximum period of two years.
Similar rules applied under section 11 of the Nature
Conservation Act (which was repealed at the time of the enactment of
the Environmental Code).
- Chapter
31 of the Code contains rules concerning the right to compensation
for intrusions on property. It does not require the issue of
compensation to have been resolved prior to a decision to create a
nature reserve. Property owners are entitled to compensation when
land is requisitioned or when the current use of the land is
significantly hindered, if the decision contains restrictions issued,
inter alia, pursuant to Chapter 7, section 5 or 6 (Chapter 31,
section 4). Such compensation shall be reduced by an amount
corresponding to the extent to which the property owner is obliged to
accept the measure without compensation (Chapter 31, section 6).
Compensation shall be paid by the State if the county administrative
board has taken the decision for which the property owner is to be
compensated (Chapter 31, section 7). If the creation of a nature
reserve causes exceptional inconvenience for the current use of the
property, the property owner may, instead of compensation, require
that the property be bought in a compulsory purchase (inlösen;
Chapter 31, section 8).
- The
county administrative board, acting on behalf of the State, shall aim
to reach agreements with property owners who request compensation or
claim that their property should be subject to compulsory purchase
(section 34 of the Ordinance Concerning Area Protection Pursuant to
the Environmental Code, Etc. – Förordningen om
områdesskydd enligt miljöbalken m.m., SFS 1998:1252).
If no such agreement is concluded, a person who wishes to claim
compensation or demand compulsory purchase shall – with certain
exceptions irrelevant to the present application – bring an
action before an environmental court against the party liable to pay
compensation or purchase the property (Chapter 31, section 13 of the
Code). An appeal against the judgment of the environmental court lies
to the Environmental Court of Appeal (Miljööverdomstolen;
Chapter 23, section 1).
- The
right of common access to land (allemansrätten) is a
general principle in Swedish law, based on custom. It is not
regulated in any specific provision, but references are made to the
principle in, inter alia, the Instrument of Government
(Regeringsformen; Chapter 2, section 18) and the Environmental
Code (Chapter 7, section 1). The exact scope of the right is not
completely clear. In general terms, it comprises the right of the
public to remain on properties of land and water which belong to
others and to perform certain activities there, such as walking,
picking of mushrooms and berries, making a fire or riding a horse, as
long as these activities do not take place on land adjacent to houses
or are carried out in a manner which ruins the property. It is a
general limitation of the right of common access that its utilisation
must not cause the property owners considerable damage or
inconvenience.
COMPLAINT
- The
applicant complained under Article 1 of Protocol No. 1 to the
Convention that the decision to establish a nature reserve violated
her property rights.
THE LAW
- The
applicant complained that her property rights had been violated. She
relied on Article 1 of Protocol No. 1 to the Convention, which reads
as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.
- The
Government contested the applicant’s claim and submitted that
the application was manifestly ill-founded. They argued that, as the
applicant remained the owner of the property in question, she
retained the right to use, lease and sell it, for which reason no
deprivation of property had occurred. Moreover, the consequences
which the establishment of the nature reserve entailed for the
applicant were not so serious as to amount to a de facto
deprivation. Instead, the measures in question had been enforced
to control the use of the property, within the meaning of the second
paragraph of Article 1 of Protocol No. 1. In the Government’s
view, the decision to establish a nature reserve fulfilled all the
conditions laid down in the Environmental Code and was thus lawful.
As its purpose was to protect and preserve the biological diversity
of the area and valuable natural environments and to satisfy the need
of areas for outdoor recreation, it served legitimate aims in
accordance with the general interest. Furthermore, the restrictions
on the applicant’s freedom to use her property imposed by the
impugned decision had been limited as compared with what otherwise
applied.
- In
the alternative, the Government maintained that the application was
inadmissible for non-exhaustion of domestic remedies, referring to
the ongoing compensation proceedings. They asserted that the
compensation proceedings, which had been adjourned at the applicant’s
request pending the Supreme Administrative Court’s review under
the 1988 Act, had been delayed mainly due to the applicant’s
conduct in the review proceedings. She had made repeated requests for
extensions of time-limits, including extensions for the submission of
her additional observations which, in the end, totalled one year and
nine months.
- The
applicant asserted that she had been deprived of practically all
rights as owner of the property by virtue of the decision to
establish a nature reserve and its far-reaching restrictions on use.
Her right of use was no different from the right of common access
pertaining to any member of the public. Through the decision and its
restrictions the property had lost all economic value. In her view,
the establishment of the nature reserve was tantamount to an
expropriation, and the State should thus have expropriated the
property and compensated her for its full value.
- The
applicant further contested that she had failed to exhaust domestic
remedies. The judgment of the Supreme Administrative Court in regard
to the establishment of the nature reserve was the final decision in
the case. In any event, the compensation proceedings before the
Environmental Court had taken a very long time, partly due to nine
extensions of time-limits granted to the State in 2008-2011.
- At
the outset, the Court points out that the existence of the
compensation proceedings before the Environmental Court was not
mentioned by the applicant in the original application, although they
had been initiated six years before the application was lodged. The
Court became aware of these proceedings through the respondent
Government’s observations.
- The
Court reiterates that the purpose of Article 35 of the Convention is
to afford the Contracting States the opportunity of preventing or
putting right the violations alleged against them before those
allegations are submitted to the Convention institutions. In this
way, it is an important aspect of the principle that the machinery of
protection established by the Convention is subsidiary to the
national systems safeguarding human rights (see Selmouni v. France
[GC], no. 25803/94, § 74, ECHR 1999-V, with further references).
- Moreover,
the Court has set out the general principles pertaining to the
exhaustion of domestic remedies in a number of judgments. In Akdivar
and Others v. Turkey ([GC], 16 September 1996, Reports of
Judgments and Decisions 1996-IV) it held as follows (further case
references – in brackets – deleted):
“66. Under Article [35] normal recourse
should be had by an applicant to remedies which are available and
sufficient to afford redress in respect of the breaches alleged. The
existence of the remedies in question must be sufficiently certain
not only in theory but in practice, failing which they will lack the
requisite accessibility and effectiveness (...).
Article [35] also requires that the complaints intended
to be made subsequently at Strasbourg should have been made to the
appropriate domestic body, at least in substance and in compliance
with the formal requirements and time-limits laid down in domestic
law and, further, that any procedural means that might prevent a
breach of the Convention should have been used (...).
67. However, there is, as indicated above, no
obligation to have recourse to remedies which are inadequate or
ineffective. In addition, according to the “generally
recognised rules of international law” there may be special
circumstances which absolve the applicant from the obligation to
exhaust the domestic remedies at his disposal (...). ...
68. In the area of the exhaustion of domestic
remedies there is a distribution of the burden of proof. It is
incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one available in theory and in
practice at the relevant time, that is to say, that it was
accessible, was one which was capable of providing redress in respect
of the applicant’s complaints and offered reasonable prospects
of success. However, once this burden of proof has been satisfied it
falls to the applicant to establish that the remedy advanced by the
Government was in fact exhausted or was for some reason inadequate
and ineffective in the particular circumstances of the case or that
there existed special circumstances absolving him or her from the
requirement (...). ...
69. The Court would emphasise that the
application of the rule must make due allowance for the fact that it
is being applied in the context of machinery for the protection of
human rights that the Contracting Parties have agreed to set up.
Accordingly, it has recognised that Article [35] must be applied with
some degree of flexibility and without excessive formalism (...). It
has further recognised that the rule of exhaustion is neither
absolute nor capable of being applied automatically; in reviewing
whether it has been observed it is essential to have regard to the
particular circumstances of each individual case (...). This means
amongst other things that it must take realistic account not only of
the existence of formal remedies in the legal system of the
Contracting Party concerned but also of the general legal and
political context in which they operate as well as the personal
circumstances of the applicants.”
- In
the present case, the applicant claims that the establishment of a
nature reserve on a large part of her property (27.5 out of a total
of 33.6 hectares) has caused her economic damage as the property
has lost all or almost all of its value. Accordingly, the heart of
the matter is the issue of compensation for the alleged infringement
of her rights as owner of the property.
- In
2002 the applicant – together with the company – sued the
State before the Environmental Court. These proceedings concern the
right to compensation for intrusions on property in accordance with
Chapter 31 of the Environmental Code (see § 20 above). These
proceedings are clearly of relevance to the examination of the
present case, partly because they provide a national remedy for a
potential violation of the applicant’s rights under Article 1
of Protocol No. 1 and partly because the possible compensation
awarded could have a bearing on the question whether the alleged
infringement of that provision was proportional or not.
- The
applicant has stated that the proceedings, which are still ongoing,
have taken a very long time. While this is true, the Court notes that
the proceedings are quite complex, as they involve a difficult
assessment of the value of the property – for which many expert
opinions have been submitted – and as they have been
interrelated with the Supreme Administrative Court’s review of
the decision to establish the nature reserve. Moreover, substantial
delays in the proceedings have been caused by the applicants
themselves. In the Court’s view, therefore, the compensation
proceedings must be considered as offering an effective remedy within
the meaning of Article 13 of the Convention for the violation alleged
by the applicant. There are no special circumstances capable of
exempting her from the obligation to exhaust that remedy.
- The
Government’s objection must therefore be accepted and the
complaint be declared inadmissible for non-exhaustion of domestic
remedies within the meaning of Article 35 §§ 1 and 4 of the
Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Dean Spielmann
Registrar President
