PROCEDURE

The case was referred to the Court on 13 April 1993 by the European Commission of Human Rights (“the Commission“) and on 24 May 1993 by the Government of the Kingdom of Sweden (“the Government“), within the three-month period laid down in Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 18928/91) against Sweden lodged with the Commission under Article 25 (art. 25) by a Swedish national, Mr Anders Fredin, on 9 April 1991. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Sweden recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request and of the Government’s application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 para. 1 (art. 6-1) of the Convention.

In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).

The Chamber to be constituted included ex officio Mrs E. Palm, the elected judge of Swedish nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 23 April 1993 the President drew by lot, in the presence of the Registrar, the names of the other seven members, namely Mr L.-E. Pettiti, Mr B. Walsh, Mr R. Macdonald, Mr A. Spielmann, Mr I. Foighel, Sir John Freeland and Mr M. A. Lopes Rocha (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Government, the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant’s memorial on 20 August 1993 and on 23 August 1993 a letter from the Government enclosing their written observations to the Commission dated 7 May 1992. On 10 September 1993 the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing. On 10, 15 and 21 September 1993 the Commission and the Government produced various documents, as requested by the Registrar. On the latter date the applicant submitted additional details on his claims under Article 50 (art. 50).

In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 21 September 1993. The Court had held a preparatory meeting beforehand. There appeared before the Court:

for the Government Mr C.H. Ehrenkrona, Assistant Under-Secretary for Legal Affairs, Ministry for Foreign Affairs, Agent, Mr G. Regner, Under-Secretary, Ministry of Justice, Adviser;

for the Commission Mr S. Trechsel, Delegate;

for the applicant Mr J. Axelsson, advokat, Counsel. The Court heard addresses by Mr Ehrenkrona, Mr Trechsel and Mr Axelsson, as well as replies to a question put by it.

AS TO THE FACTS

I. THE PARTICULAR CIRCUMSTANCES OF THE CASE

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.

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.

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.

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.

It was not possible under Swedish law for the applicant to appeal from the Supreme Administrative Court’s decision of 13 December 1990.