CASE OF MATS JACOBSSON v. SWEDEN

1. The case was referred to the Court on 12 April 1989 by the
European Commission of Human Rights ("the Commission") and on
23 May 1989 by the Government of the Kingdom of Sweden ("the
Government"), within the three-month period laid down in
Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention.
It originated in an application (no. 11309/84) against Sweden lodged
with the Commission under Article 25 (art. 25) by Mr Mats Jacobsson,
a Swedish citizen, on 5 August 1984.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) of the Convention 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 the
facts of the case disclosed a breach by the respondent State of its
obligations under Articles 6 and 13 (art. 6, art. 13) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he
wished to take part in the proceedings and designated the lawyer who
3. 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 § 3 (b)). On 29 April 1989, in the presence of the
Registrar, the President drew by lot the names of the other five
members, namely Mrs D. Bindschedler-Robert, Mr B. Walsh,
Mr J. De Meyer, Mr N. Valticos and Mr I. Foighel (Article 43 in fine
of the Convention and Rule 21 § 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 § 5) and, through the Registrar, consulted the Agent of the
Government, the Delegate of the Commission and the representative of
the applicant on the need for a written procedure (Rule 37 § 1). In
accordance with his order, the Government's memorial and the
applicant's memorial were received by the registry, on 1 and
11 December 1989, respectively. On 16 January 1990 the Secretary to
the Commission notified the Registrar that the Delegate would submit
her observations at the hearing.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 26 January 1990
that the oral proceedings should open on 20 February 1990 (Rule 38).
6. The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
There appeared before the Court:
Mr H. Corell, Ambassador, Under-Secretary
for Legal and Consular Affairs, Ministry of
Mr S. Tell, District Court Judge, former Legal
Adviser to the Ministry of Housing and Planning,
Mr H. Lagergren, Legal Adviser, Ministry of Housing
Mr P. Boqvist, Legal Adviser, Ministry of Foreign
Mr H. W. Tullberg, lawyer, Counsel,
Mr U. Brunfelter, lawyer, Adviser.
The Court heard addresses by Mr Corell for the Government, by
Mrs Thune for the Commission and by Mr Tullberg for the applicant, as
well as their replies to its questions. On the day of the hearing,
counsel for the applicant lodged, with the President's authorisation,
a number of documents (Rule 37 § 1, second sub-paragraph).
7. Mr Mats Jacobsson owns a property, Tullinge 17:289 (previously
stadsäga, "Stg", 3594), situated in the municipality of Botkyrka, a
suburb south of Stockholm. On the property, which has an area of
2,079 m2, there is a small house.
8. When the applicant acquired the property in 1973, it was
subject to a building plan dating from 1938 ("the 1938 plan") which
provided that, in principle, no building plot should be less than
1,500 m² in area; as an exception a plot of at least 1,000 m² could be
permitted in a locality where adequate sewage and water-supply systems
9. Since June 1954 the property has for most of the time been
subject to a series of temporary building prohibitions, lasting one or
two years each, issued under section 109 of the Building Act 1947
(byggnadslagen 1947:385 - "the 1947 Act"; see paragraph 23 below)
pending an amendment of the building plan in force. Since the same
date construction has also been prohibited in the area under
section 110 of the 1947 Act (see paragraph 24 below), pending the
building of adequate roads and the installation of water-supply and
10. After the applicant, amongst others, had complained about the
inconveniences resulting from the existing sewage system in the area
where his property is situated, the County Administrative Board
(länsstyrelsen - "the Board") ordered in June 1981 that the
municipality should install sewage pipes there before the end of 1982,
11. On 16 December 1982 the Municipal Council (kommunfullmäktige)
adopted a proposal to amend the 1938 plan, notably so as to provide
that in future all building plots would have to have an area of at
least 1,500 m2, irrespective of whether or not water-supply and sewage
systems had been installed. The proposal also sought to prohibit all
constructions on the site of the applicant's existing house.
12. Mr Mats Jacobsson objected to the proposal. He alleged that
the amendments would unlawfully restrict construction and would
wrongfully take away the right to build a second house that previously
attached to properties such as his own under the 1938 plan.
However, the amended building plan was approved by the Board on
4 July 1983 pursuant to section 108 of the 1947 Act (see paragraph 21
below). In its decision the Board found, inter alia, that the
Municipality's policy of allowing only a low degree of exploitation
was acceptable and could not be considered to contravene the 1947 Act.
As regards the right to build the Board observed:
"Stg 3594 has an area of 2,079 m2. The existing plan of 1938
provides for building plots of at least 1,500 m2. However, if the
property is situated in an area where water and sewage pipes are
installed before or in connection with the construction and in
accordance with a plan approved by the Health Care Board
(hälsovårdsnämnden), it is permitted to reduce the area of the
building plots, but not to less than 1,000 m2. This condition must
presuppose some sort of private initiative for a common
installation for several properties in order to build on them.
Since 1954, when the building prohibition under section 110 of the
Building Act was issued, no measures have been taken by the
property owners with a view to arranging any water or sewage
installations. The water and sewage pipes which have now been
installed became necessary only in order to remedy the sanitary
inconveniences which had arisen in the area despite the fact that
the building plots are large. The conditions in the plan, subject
to which building plots of less than 1,500 m2 may be permitted,
cannot therefore be considered to be fulfilled. The County
Administrative Board accordingly finds that there is no obvious
right under the plan in force to divide Stg 3594. In view of this
and having regard to the general interest of not prejudging future
town planning, the County Administrative Board considers that the
decision of the municipality not to agree to Mr Jacobsson's claim
for further building rights is acceptable."
13. The applicant's appeal to the Government against the Board's
decision was rejected on 19 January 1984 on all counts but one. The
Government accepted only that demolition of the applicant's existing
house should no longer be a condition for allowing any further
construction on his property (see paragraph 11 above).
14. The applicant applied to the Supreme Administrative Court
(regeringsrätten) for the reopening of proceedings, submitting that
the Government's decision was based on false premises and that the
proposed plan was contrary to the law. In a decision of 5 June 1984
the Supreme Administrative Court rejected the application.
II. Relevant domestic law and practice
A. Legislation on construction and urban planning
15. Until 30 June 1987 a property owner's right to build on his
own land was governed by the 1947 Act and by a Government Ordinance
adopted in 1959 in pursuance of that Act (byggnadsstadgan - "the 1959
Ordinance"). On 1 July 1987 the Plan and Building Act 1987 (plan- och
bygglagen) replaced the 1947 Act. However, the new Act is not
16. Section 1 of the 1947 Act provided that construction on
property required a building permit under conditions to be laid down
by the Government. Section 54 of the 1959 Ordinance specified that a
permit was required for all new constructions, except for certain
buildings for public use, or small additions to existing residences
17. The examination of an application for a building permit
involved ascertaining that the proposed building did not contravene
any plan in force (or, where applicable, the regulations for
non-planned areas) or a building prohibition, and that it satisfied
the relevant technical requirements. If there were no such obstacles,
18. Before a building could be erected on a property, section 5 of
the 1947 Act called for an examination of whether the property was
suitable from a general point of view for this purpose. Such an
examination was in general to be effected by planning procedure.
19. The 1947 Act prescribed that the detailed regulations on the
development of land were to be contained in either town plans
(stadsplaner) or building plans (byggnadsplaner).
20. A building plan had to state the limits of areas intended for
different purposes (section 107 of the 1947 Act). Any special
regulations relating to the development or the use of the areas
concerned, such as a ban on the development of a certain part of the
land, had to be incorporated in the plan.
21. According to section 108 of the 1947 Act, building plans (and
also changes to such plans - see section 23 of the 1959 Ordinance) had
to be adopted by the Municipal Council and thereafter approved by the
County Administrative Board before they acquired legal force. Under
section 150 of the Act, a landowner who was adversely affected by the
Board's decision to approve a plan could appeal to the Government as
22. The 1947 Act did not contain any provisions concerning the
material conditions for changing or approving a building plan.
However, when considering whether an owner's right to build according
to an existing plan might be limited or withdrawn by a change of that
plan, the authorities concerned had to weigh the public interest in
such a change against the infringement of the private interests
involved (section 4 of the 1947 Act and section 9 of the 1959
23. If the question of drawing up or altering a building plan had
been raised, the Board could, under section 109 of the Act and at the
request of the municipality, prohibit new constructions in the area.
Such a prohibition could be issued for a maximum of one year but could
be extended by the Board for not more than two years at a time.
24. Section 110, paragraph 1, of the 1947 Act prohibited any new
construction that was not in conformity with a building plan. Under
paragraph 2, the Board was empowered to proscribe all new
constructions in an area covered by such a plan before adequate roads
had been built and water-supply and sewage systems installed.
25. Exemptions from the above-mentioned building prohibitions
could be granted by the Board in individual cases. However if it was
sought to depart from a building plan, an exemption therefrom could
not be granted by the Board without the approval of the Building
Committee (byggnadsnämnden) of the municipality (section 110
of the 1947 Act). The Building Committee could itself grant the
exemption at first instance if the Government had delegated such
If an exemption from a building prohibition was refused, an appeal lay
to the Government as the first and final instance. However, a
building committee's refusal to approve a departure from the building
plan was not subject to appeal (section 71 of the 1959 Ordinance).
PROCEEDINGS BEFORE THE COMMISSION
26. Mr Mats Jacobsson lodged his application with the Commission
on 5 August 1984 (no. 11309/84). He alleged violations of
Article 6 § 1 and Article 13 (art. 6-1, art. 13) of the Convention, in
that his rights under the 1938 building plan could not be examined by
any court. He also complained of a breach of Article 1 of
Protocol No. 1 (P1-1) on the ground that his right to use his property
according to the 1938 building plan had been revoked without any
general interest having been established.
27. On 8 October 1985 the Commission declared the application
inadmissible. However, on 8 March 1988 it concluded, after having
reopened the proceedings, that the complaints were admissible except
for those under Article 1 of Protocol No. 1 (P1-1).
In its report adopted on 16 March 1989 (Article 31 of the Convention)
(art. 31), the Commission expressed the opinion that there had been a
violation of Article 6 § 1 (art. 6-1) (by fourteen votes to three) and
that it was not necessary to examine separately the complaint under
Article 13 (art. 13) (unanimously). The full text of the Commission's
opinion and the dissenting opinions contained in the report is
reproduced as an annex to this judgment.*
* Note by the Registrar. For practical reasons this annex will appear
only with the printed version of the judgment (volume 180-A of Series A of
the Publications of the Court), but a copy of the Commission's report is
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1) OF THE CONVENTION
28. The applicant complained that Swedish law did not provide him
with adequate access to a court to challenge the decision to amend the
1938 building plan covering his property. He invoked Article 6 § 1
(art. 6-1) of the Convention according to which
"In the determination of his civil rights and obligations ... everyone
is entitled to a ... hearing by [a] ... tribunal ...".
The Commission agreed with this contention.
A. Applicability of Article 6 § 1 (art. 6-1)
29. The Government, for their part, pleaded that Article 6 § 1
(art. 6-1) was not applicable in this case.
1. Existence of a dispute ("contestation") over a "right"
30. In order to decide this question, the Court has first to
ascertain whether there was a dispute ("contestation") over a "right"
which can be said, at least on arguable grounds, to be recognised
under domestic law. According to the principles enunciated in its
case-law (see, inter alia, the Pudas judgment of 27 October 1987,
Series A no. 125-A, p. 14, § 31), the dispute must be genuine and
serious; it may relate not only to the actual existence of a right but
also to its scope and the manner of its exercise; and, finally, the
result of the proceedings must be directly decisive for the right in
31. The Government contended that the normative or general
character of the amendment to the plan was so strong that no right on
the part of the applicant could be said to have been at issue.
Admittedly, the Court has held in its James and Others judgment
(21 February 1986, Series A no. 98), on which the Government relied,
that Article 6 § 1 (art. 6-1) does not in itself guarantee any
particular content for (civil) "rights and obligations" in the
substantive law of the Contracting States (p. 46, § 81). In that case
no dispute could therefore have been said to exist regarding the
existence of the right claimed by the applicants, as parliamentary
legislation had unequivocally taken it away. However, in the present
instance the rights asserted by the applicant were recognised by
national law, though their exercise was subjected to a number of
conditions in the 1947 Act, many of which the administration had
received authority to fix, in some cases by decisions of general
applicability (see paragraphs 15-25 above). Accordingly, a dispute
within the meaning of Article 6 (art. 6) regarding the continued
existence of these rights might well arise if such decisions were
alleged to be in contravention of the law.
32. The Government also maintained that, in view of the wide
discretion left by the Swedish Parliament to the administrative
authorities in this area, there could not be any serious and genuine
dispute as to the applicant's rights to build and divide his property
before a building permit had been issued. They added that, as the
rights claimed had in fact never been exercised, they were not
relevant for the purposes of Article 6 § 1 (art. 6-1).
In the circumstances the Court finds it clear, however, that, subject
to meeting the requirements laid down by law (in particular by the
1947 Act and the enactments made thereunder - see paragraphs 16-25
above), Mr Mats Jacobsson could arguably have asserted that, by virtue
of the provisions of the 1938 plan, he had inter alia a right to build
a second house on his property and to obtain the necessary permit. It
is true that the decision to adopt the amendment to the plan involved
the exercise of a certain discretion on the part of the competent
authorities, but their discretion was not unfettered: they were bound
by generally recognised legal and administrative principles (see, for
example, the Allan Jacobsson judgment of 25 October 1989, Series A
In view of this, it is not material that Mr Mats Jacobsson had not in
fact, as stressed by the Government, exercised his disputed rights
under the plan, for example by building a second house on his
The dispute which arose between Mr Jacobsson and the authorities
concerned the lawfulness of the amendments to the plan. In
particular, the authorities were alleged to have departed from a
long-established practice, resulting from section 4 of the 1947 Act
(see paragraph 22 above), whereby, the applicant claimed, new plans
were approved only if they conferred a right to compensation for
losses of more than 20% of existing building rights; in addition, it
appears that Mr Mats Jacobsson raised the question of lawfulness
before the Supreme Administrative Court also, when he applied for the
reopening of the proceedings (see paragraph 14 above).
The Government sought to infer from, inter alia, the rejection of that
application that Mr Mats Jacobsson's complaints were not arguable. The
Supreme Administrative Court's judgment is, however, not decisive for
this question: the possibility of seeking the reopening of proceedings
is too circumscribed under Swedish law to provide adequate access to a
court for the purposes of Article 6 § 1 (art. 6-1) (see, for example,
the above-mentioned Pudas judgment, Series A no. 125-A, p. 17, § 41)
and, thus, the Supreme Administrative Court may well have been obliged
to dismiss the applicant's complaint even though it challenged the
lawfulness of the decision to amend the plan.
Having regard to the foregoing and to the facts of the case, the Court
finds that the above-mentioned dispute between the applicant and the
authorities was of a genuine and serious nature.
33. The Government further contended that the dispute did not
concern any proceedings whose outcome was decisive for the rights
claimed by the applicant to build a second house and to divide his
property: the amendments to the plan were only one of several factors
which had a bearing on the possibilities which he had of exercising
these rights and, in addition, the purpose of the amendments was not
to affect his rights specifically but to regulate the situation of a
great number of property owners.
The Court finds, however, that the decision to amend the plan was
capable of extinguishing the alleged rights. Thus, whatever other
conditions the applicant may have had to comply with, the amendments
put in issue the very existence of these rights. The mere fact that
other property owners may also have been affected is of no consequence
in this respect (see the above-mentioned Allan Jacobsson judgment,
Series A no. 163, p. 20, § 70). There was also a sufficient
connection, for the purposes of Article 6 § 1 (art. 6-1), between the
dispute and the applicant's rights, since it concerned the validity of
the amendments as they applied to his property.
There was accordingly a "determination" of the applicant's "rights".
2. The "civil" character of the "right" in issue
34. There can be no doubt that the applicant's disputed "rights"
to build on and to divide his property were "civil rights" within the
meaning of Article 6 § 1 (art. 6-1); this is confirmed by the Court's
established case-law (see, as the most recent authority, the
Allan Jacobsson judgment cited above, Series A no. 163, pp. 20-21,
§§ 72-73). In the present case this finding is affected neither by
the Government's argument that the planning decision itself was
motivated mainly by considerations of public interest, nor by the
35. In sum, Article 6 § 1 (art. 6-1) is applicable.
B. Compliance with Article 6 § 1 (art. 6-1)
36. According to Swedish law, the dispute in question could be
determined only by the Government as the final instance (see
paragraph 21 above). The Government's decisions were not, in
principle, open to review as to their lawfulness by either the
ordinary courts or the administrative courts, or by any other body
which could be considered to be a "tribunal" for the purposes of
As shown by the present case, the applicant could challenge the
decision to amend the plan by requesting the Supreme Administrative
Court to reopen the proceedings. However, for the reasons set out in
the Sporrong and Lönnroth judgment of 23 September 1982 (Series A
no. 52, p. 31, § 86), this extraordinary remedy does not meet the
requirements of Article 6 § 1 (art. 6-1) (see also paragraph 32 above).
37. There has thus been a violation of Article 6 § 1 (art. 6-1).
II. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION
38. The applicant claimed that he was deprived of any "effective
remedy before a national authority" in respect of the matters of which
Having regard to its decision on Article 6 § 1 (art. 6-1), the Court,
like the Commission, does not find it necessary to consider the case
also under Article 13 (art. 13); this is because its requirements are
less strict than, and are here absorbed by, those of Article 6 § 1
(art. 6-1) (see, for example, the above-mentioned Allan Jacobsson
judgment, Series A no. 163, p. 21, § 76).
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
39. In his memorial to the Court, the applicant also maintained that
the decision to change the plan breached Article 1 of Protocol No. 1
(P1-1). At the hearing he reiterated this contention, relying on the
lack of any compensation for the loss of building rights which he
40. This is a separate complaint since it is not based on the same
facts as those underlying the grievance under Article 6 § 1 (art. 6-1)
of the Convention, namely the lack of adequate access to a court to
challenge the lawfulness of the decision in question. It was declared
inadmissible by the Commission as being manifestly ill-founded (see
paragraph 27 above). Consequently, the Court has no jurisdiction to
deal with the matter (see, as the most recent authority, the Powell
and Rayner judgment of 21 February 1990, Series A no. 172, pp. 13-14,
IV. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
41. Article 50 (art. 50) provides:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the (...) Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the Court
shall, if necessary, afford just satisfaction to the injured
The applicant sought compensation for pecuniary and non-pecuniary
damage and reimbursement of his costs and expenses.
42. The applicant asked primarily that the Government should be
compelled to buy his estate at its market value calculated on the
basis that the 1938 plan was still in force. At 1990 prices this gave
a market value of 1,400,000 Swedish crowns. Alternatively, if the
Court were to find that such a transaction could not be ordered by way
of just satisfaction, the applicant claimed compensation for the loss
in value of the property occasioned by the amended plan. This loss
was estimated at 1,000,000 crowns. In any event, he sought
compensation for the loss he had suffered as a result of the building
prohibitions imposed on the property between 1974 and 1984. At 1990
prices this was calculated at 400,000 crowns. The applicant
maintained that all sums should be paid free of local tax or other
43. The decision to amend the plan certainly had negative effects
upon the applicant's possibilities of using and developing his
property. Nevertheless, the Court cannot speculate as to what the
result of the applicant's challenge would have been if he had been
able to bring his complaints before a "tribunal" having the
supervisory powers required by Article 6 § 1 (art. 6-1).
The Court thus agrees with the Government's contention that no causal
link is established between the violation of Article 6 § 1 (art. 6-1)
found in this judgment and any of the alleged pecuniary damage.
No award can therefore be made under this head.
44. The applicant also sought at least 10,000 crowns as
compensation for non-pecuniary damage. This claim was supported by
the Delegate of the Commission. The Government left the matter to the
The Court agrees with the Delegate that, by reason of the absence of
an adequate court remedy, the applicant suffered some non-pecuniary
damage which would not be redressed merely by a finding of a
violation. Deciding on an equitable basis, the Court awards
10,000 crowns as just satisfaction under this head.
45. The applicant sought 393,874 crowns in respect of costs and
expenses. Of this sum, 150,960 crowns constituted Mr Tullberg's fees
for 251 hours of work and 239,888 crowns his expenses for outside
legal advice, for the translation of various documents and for travel.
The remaining 3,026 crowns related to a number of miscellaneous items.
46. The Court notes that a large part of the costs and expenses in
question were incurred in respect of the complaint under Article 1 of
Protocol No. 1 (P1-1), which complaint was declared inadmissible by the
Commission. Considering this and other relevant circumstances,
including the legal aid payments from the Council of Europe, and
making an assessment on an equitable basis, as is required by
Article 50 (art. 50) of the Convention, the Court considers that the
applicant is entitled to be reimbursed the sum of 80,000 crowns.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 § 1