PROCEDURE

The case was brought before the Court on 14 December 1988 by the European Commission of Human Rights (“the Commission“) and on 27 January 1989 by the Government of the Kingdom of Sweden (“the Government“), within the period of three months laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. The case originated in an application (no. 11855/85) against Sweden lodged with the Commission in 1984 by Mr Gösta Håkansson and Mr Sune Sturesson, both Swedish citizens, under Article 25 (art. 25). 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 purpose of the request and of the Government’s application was to obtain a decision as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6, 13 and 14 (art. 6, art. 13, art. 14) of the Convention and Article 1 of Protocol No. 1 (P1-1).

In response to the inquiry made in accordance with Rule 33 para. (d) of the Rules of Court, the applicants stated that they wished to take part in the proceedings and designated the lawyer who would represent them (Rule 30).

The Chamber to be constituted included, as ex officio members, 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 26 January 1989 the President of the Court drew by lot, in the presence of the Registrar, the names of the five other members, namely Mr Thór Vilhjálmsson, Mr L.-E. Pettiti, Mr B. Walsh, Mr R. Bernhardt and Mr S. K. Martens (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). Subsequently Mr C. Russo, substitute judge, replaced Mr Martens, who was unable to attend (Rule 22 para. 1 and Rule 24 para. 1).

Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5). He ascertained, through the Registrar, the views of the Agent of the Government, the Delegate of the Commission and the lawyer for the applicants regarding the need for a written procedure (Rule 37 para. 1). Thereafter, in accordance with the President’s Order, the registry received the memorials of the Government and of the applicants on 31 July and 4 August 1989, respectively; in a letter of 5 September, the Secretary to the Commission informed the Registrar that the Delegate did not wish to file a memorial.

Having consulted, through the Registrar, those who would be appearing before the Court, the President directed on 29 June 1989 that the oral proceedings should open on 25 September 1989 (Rule 38). On 22 September the Commission produced various documents requested by the Registrar upon instructions from the President of the Court.

The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. Immediately prior to its opening, the Court had held a preparatory meeting. There appeared before the Court:

for the Government Mr H. Corell, Ambassador, Under-Secretary for Legal and Consular Affairs, Agent, Mr R. Strömberg, Permanent Under-Secretary and Chief Legal Officer, Ministry of Environment and Energy, Mr L. Lindström, Legal Adviser, Ministry of Justice, Mr P. Boqvist, Legal Adviser, Ministry of Foreign Affairs, Advisers;

for the Commission Mr C. L. Rozakis, Delegate;

for the applicants Mr G. Ravnsborg, Lecturer in Law at the Counsel, University of Lund. The Court heard addresses by Mr Corell for the Government, by Mr Rozakis for the Commission and by Mr Ravnsborg for the applicants, as well as the Government’s replies to its questions. The applicants’ replies were received at the registry on 20 October 1989 and the Government’s comments thereon on 20 November 1989. On 4 December 1989 the President rejected an application from the Government to file additional evidence and on 23 January 1990 the Chamber rejected a similar application from the applicant (Rule 40 para. 1).

AS TO THE FACTS

I. PARTICULAR CIRCUMSTANCES OF THE CASE

A. The 1979 compulsory auction

Mr Gösta Håkansson is resident at Höör and a police officer by profession, and Mr Sune Sturesson is resident at Skånes Fagerhult and a farmer by profession.

On 4 December 1979 the applicants bought for 240,000 Swedish crowns (SEK) at a compulsory sale by auction (exekutiv auktion; “the 1979 auction“) an agricultural estate called Risböke 1:3 in the municipality of Markaryd. Their main competitors at the auction, Mr Bertil Bjarnhagen and Mr Michael Borg, bid 235,000 and 220,000 SEK, respectively. The property had been seized in July 1979 in order to secure the payment of the previous owners’ debts to three banks. According to a valuation made public before the auction, the market value (saluvärde) of the property was estimated at 140,000 SEK.

At the auction the public was, according to the minutes drafted by the representative of the County Administrative Board (länsstyrelsen) of the County of Kronoberg, informed of the regulations contained in section 2, sub-section 10, and section 16 of the Land Acquisition Act 1979 (jordförvärvslagen 1979:230; “the 1979 Act“), whereby a purchaser would have to resell the property within two years unless he had obtained in the meantime from the County Agricultural Board (lantbruksnämnden) of the same County a permit to retain it or fell under one of the listed exceptions from the permit requirement (see paragraphs 28 and 32 below). The applicants maintained that a representative of the County Administrative Board had stated, at the public viewing of the property on 27 November 1979, that, in this case, the requisite permit would certainly be granted speedily; they further claimed that this had been confirmed by the County Administrative Board at the auction. In support of these allegations, the applicants submitted three affidavits, each of which was signed in 1989 by a person who had been present either at the auction or at the public viewing.

B. The applications for a permit to retain the estate

On 7 January 1980 the County Administrative Board drew up a sale contract (köpebrev) in which the applicants were reminded of the wording of section 16 para. 1 of the 1979 Act. On the same day the applicants submitted a request to the County Agricultural Board for a permit to retain the estate Risböke 1:3.

By letter of 5 February 1980, the County Agricultural Board informed the applicants that the estate had, in view of its size, situation and nature, to be considered as a “rationalisation unit“ (rationaliseringsfastighet) which ought to be used for the purpose of consolidating other properties in the area that were capable of further development. It added that, as neighbours were interested in acquiring the property, the request might be refused under section 4 para. 1, sub-section 3, of the 1979 Act (see paragraph 30 below). The County Agricultural Board also indicated that there were reasons to believe that the price paid was too high for redemption (inlösen - see paragraph 34 below). On 15 February 1980 the County Agricultural Board rejected the applicants’ request on the ground that the estate was a “rationalisation unit“.

The applicants appealed to the National Board of Agriculture (lantbruksstyrelsen), which rejected the appeal on 5 September 1980. In its decision the National Board of Agriculture noted the following. Risböke 1:3 had an area of 41 hectares of which 18 hectares were forest and 8 hectares pasture. There were no buildings on the property. Mr Sturesson’s estate, which comprised 63 hectares of forest and 10 of pasture, was 25 kilometres away. Through their purchase the applicants had intended to build up units which would, in the short run, create opportunities for employment and, in the long run, become financially sound properties to be exploited by their children. The Board noted however that in the opinion of the County Agricultural Board, there was only room for one active farmer in the region. Finally, Mr Michael Borg, who leased two neighbouring properties, one of which was owned by his father, had shown a great interest in acquiring the applicants’ property. The Board concluded: “The National Board of Agriculture finds, as did the County Agricultural Board, that the real estate at issue lacks the prerequisites for remaining as a separate cultivation unit. Moreover, the National Board considers that a new establishment on the property would be likely to make it more difficult for the active farmer in the area to develop his business.“

The applicants appealed to the Government (Ministry of Agriculture), which rejected the appeal on 26 February 1981.

A new request, dated 4 January 1982, for a permit to retain Risböke 1:3 was rejected by the County Agricultural Board on 25 January 1982. The Board stated that the estate was considered to be a unit suitable for rationalisation purposes, which ought to be used to consolidate properties within the area that were capable of further development. It furthermore stated that it was not prepared to redeem the estate at the price of 240,000 SEK.

The applicants appealed to the National Board of Agriculture. After inspecting the property, it rejected the appeal on 15 November 1982, on the ground that there were no new circumstances justifying a departure from its previous decision.

The applicants’ further appeal to the Government was dismissed on 27 October 1983.

In a letter of 11 January 1985 the applicants requested the Government to reconsider their decision of 27 October 1983. The Government, recalling that the case had been finally settled by them on the latter date, decided on 14 March 1985 not to take any further action in respect of the request.

C. The redemption proceedings

The applicants brought proceedings before the Real Estate Court (fastighetsdomstolen) of Växjö requesting that the State redeem the Risböke 1:3 in accordance with section 14 of the 1979 Act (see paragraph 34 below). In a judgment of 11 December 1981 the court rejected the claim, stating that in view of the clear wording of section 14 this provision could not be applied by analogy to the applicants’ situation. The applicants appealed to the Göta Court of Appeal (Göta hovrätt), which on 1 July 1982 confirmed the judgment of the Real Estate Court. On 14 July 1983 the Supreme Court (högsta domstolen) refused leave to appeal.

D. The 1985 compulsory resale by auction

At the request of the County Agricultural Board, the County Administrative Board ordered, on 10 November 1983, the compulsory resale by auction of Risböke 1:3 in accordance with the provisions of sections 16 and 17 of the 1979 Act (see paragraphs 36-38 below). The Enforcement Office (kronofogdemyndigheten) in Växjö was responsible for arranging the auction.

In February and March 1984 the National Board of Forestry (skogsvårdsstyrelsen) assessed the value of the property in accordance with the price-control regulations (that is, in principle, by reference to its yield) at 100,000 SEK and its market value as not exceeding 200,000 SEK. In April 1984 the Senior Land Surveyor (överlantmätaren) of the County of Kronoberg made a new valuation of the property, resulting in an estimated market value of 125,000 SEK.

On 19 April 1984 the Enforcement Office determined that the estate had a value of 125,000 SEK. The applicants challenged this before the Göta Court of Appeal but the court dismissed the action on 4 June 1984, stating that it was not possible to appeal against such a determination as it was only a preparatory step for a subsequent decision on the sale of the estate (see paragraph 39 below). The applicants appealed against this decision to the Supreme Court, which on 23 August 1984 refused leave to appeal. On 26 June 1984, at the applicants’ request, the County Administrative Board appointed two special valuers (see paragraph 37 below). In their report of October 1984, the valuers concluded that the property had an estimated market value of 172,000 SEK, taking into account certain expenditure deemed necessary for thinning out trees (mainly Christmas trees) that had been newly planted by the applicants.

The auction took place on 18 June 1985 (“the 1985 auction“). The Enforcement Office noted that the estate had an estimated market value of 172,000 SEK and a taxable value of 107,000 SEK. It decided that the lowest bid which could be accepted would be 172,000 SEK. At the auction, there was, in fact, only one bid. It was an offer of 172,000 SEK made by the County Agricultural Board and it was accepted by the Enforcement Office. After the costs of the valuation and the auction had been deducted the applicants received 155,486.50 SEK.

Prior to the auction in June 1985, five requests for advance permits (förhandstillstånd) to acquire the property had been filed with the County Agricultural Board (see paragraph 36 below). On 10 April 1984 the Board granted the request filed by Mr Michael Borg and Mr Thorwald Borg on condition that they applied, within two months from the public auction, for a merger of Risböke 1:3 and the two neighbouring properties which they now owned (cf. paragraph 12 above). The other requests were rejected by the Board on 10 and 14 June 1985.

On 19 June 1985 the applicants appealed to the Göta Court of Appeal requesting that the compulsory sale be annulled. They argued that the property had not been sold at the market price, as required by law, since the valuation which had arrived at the figure of 172,000 SEK had been based only on an assessment of the yield from the property. The applicants stated that they intended to submit to the court a new valuation report. However, on 3 July 1985 the Court of Appeal dismissed the appeal.

The applicants filed a further appeal with the Supreme Court, in which they also challenged the impartiality of the two special valuers on the ground that they had had a duty, under section 6 of the Land Acquisition Ordinance 1979 (see paragraph 37 below), to consult with the County Agricultural Board - which had in the event been the buyer of the estate - when making their valuation. They did not raise any complaint in respect of the absence of any public hearing before the Court of Appeal. On 20 August 1985 the Supreme Court refused to grant leave to appeal.

On 17 December 1985 the County Agricultural Board sold the property to Mr Michael Borg and Mr Thorwald Borg for 125,000 SEK. On 17 January 1986 they applied for its merger with their two properties as required in their acquisition permit (see paragraph 23 above) and on 11 April 1986 the merger was accepted by the local property formation agency (fastighetsbildningsmyndigheten).