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FIFTH SECTION

Application no. 29878/09
Karin ANDERSSON and others
against Sweden
lodged on 4 June 2009

STATEMENT OF FACTS

The applicants, Ms Karin Andersson (born in 1963), Mr Per Bernhardsson (1954), Ms Gunilla Bring (1942), Mr Ulf Bäcklund (1946), Mr Berndt Eriksson (1942), Ms Carina Granberg (1960), Ms Agneta Holmström (1949), Mr Gustaf Härestål (1948), Mr Björn Höjer (1925), Ms Inga-Britt Höjer (1927), Mr Christer Johansson (1964), Mr Curt Lindgren (1943), Mr Håkan Olsson (1952), Mr Roger Olsson (1946), Mr Göran Osterman (1935), Mr Lars Sjöstedt (1938), Mr Christer Skoog (1963) and Mr Olle Stenlund (1950) are Swedish nationals who live in Umeå. They were represented before the Court by Mr J. Ebbesson and Mr B. Rosengren, two lawyers practising in Stockholm.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 15 October 1999, the Swedish National Rail Administration (Banverket; hereinafter “SNRA”) applied to the Government to build a railway in a “corridor” of a certain stretch in the north of Sweden. In the application, SNRA presented some alternative railway stretches, but recommended the one presented as “alternative East”. The proposed railway construction concerned areas which were or were going to be part of Natura 2000, the European net of “Special Areas of Conservation”.

On 12 June 2003 the Government, after having heard the European Union Commission, granted the application and permitted the railway to be located in the proposed “corridor” under the condition, inter alia, that SNRA adopt a railway plan before 1 July 2009 and also a specific plan for the realisation of the necessary compensation measures in the Natura 2000 areas. The plan on compensation measures had to be presented to the Swedish Government before the railway plan was adopted. The Government stated that a construction could be permitted, despite its harmful effect on the environment in a Natura 2000 area, if there were no alternative solutions and the construction had to be implemented due to reasons of public interest.

A number of private property owners, some of whom are applicants in the present case, applied to the Supreme Administrative Court (Regeringsrätten) for a full legal review of the case and requested that the Government’s decision be annulled. The property owners argued that the decision contradicted Swedish law as well as applicable European Union law. It was argued, firstly, that the decision contravened the general rule in the Environmental Code on the site to be chosen for activities and installations that may affect human health or the environment. This aspect had a direct and clear bearing on the civil rights of the applicants. Secondly, the applicants argued that the Government’s decision violated Swedish regulations on nature conservation, by failing to consider relevant alternative sites for the railway.

On 1 December 2004 the Supreme Administrative Court dismissed the request for a legal review as it could not, at that stage of the railway planning, be determined who would finally be considered concerned as parties since the exact stretch of the railway construction would not finally be established until the railway plan had been set. The applicants were, thus, refused locus standi before the court. Furthermore, the court held that the parties concerned would have the possibility to bring about a full trial and full review in connection with the subsequent decision on the railway plan. Thus, according to the court, their rights would be fully considered by courts at a later stage in the proceedings.

Subsequently, SNRA applied to the County Administrative Board (länsstyrelsen) for separate permission to build the railway in the Natura 2000 area and to the Environmental Court (Miljödomstolen) in Umeå for permission to build required bridges over a certain river.

The Environmental Court decided to merge the applications into one procedure. On 24 May 2005 and 13 June 2005, considering itself bound by the Government’s decision, the court decided to grant all the permits requested by SNRA.

The applicants appealed to the Environmental Court of Appeal (Miljööverdomstolen) in Stockholm, which on 15 June 2006 decided to refer the case back to the Environmental Court, without deciding on its merits.

On 26 April 2007, the Environmental Court decided again to grant the permits requested by Banverket. The court considered itself bound by the Government’s decision on permissibility and competent only to determine the compensation measures necessary due to environmental interference.

The applicants appealed anew to the Environmental Court of Appeal.

On 6 December 2007, the Environmental Court of Appeal approved the railway construction with certain added conditions. It did not, however, decide on a specific site for the railway.

On 9 May 2009 the Supreme Court (Högsta Domstolen) refused leave to appeal and, thus, the Environmental Court of Appeal’s decision became final.

On 12 June 2005, SNRA adopted a railway plan for the area in question.

The applicants appealed to the Government against the railway plan and requested an oral hearing. They essentially complained of site and the specific stretch of the railway as it interfered on their property rights.

On 28 June 2007, the Government considered themselves bound by their decision on permissibility of 12 June 2003. They found that the specific stretch in the railway plan was situated within the permitted “corridor” and rejected the applicants’ appeals.

The applicants turned to the Supreme Administrative Court and requested a trial and a full review of the Government’s decision, demanding that the Government’s decision be annulled. They claimed, inter alia, that their civil rights were affected by the planned railway, but they had not had these rights considered and determined by a court.

On 10 December 2008 the Supreme Administrative Court rejected the applicants’ request and considered that the railway plan was in line with the Government’s decision of 12 June 2003. The court considered that the decision in question concerned the last of three stages in the planning and permission process based on the Government’s decision on permissibility. The court found that a permissibility decision in general concerned public interests, such as industrial, economic and environmental policy, and if individuals would be affected by such a decision, they would have the possibility to request a legal review. It was held that the fact that the Supreme Administrative Court on 1 December 2004, when considering the legal review, had denied the applicants locus standi did not imply that the court in this case should consider the stretch of the railway. The court rejected the applicants’ appeal.

In the judgment before the Supreme Administrative Court, one judge was of a dissenting opinion and argued that the applicants had been entitled to have their complaints tried and determined in the process and that it should have been presumed that the Government had considered the specific stretch of the railway and the applicants’ objections in this regard.

COMPLAINTS

The applicants complain under Articles 6 and 8 of the Convention that they have been deprived of their right to a fair trial and the right to respect for private and family life. They complain, in particular, that they were denied a legal review of the decision to permit the construction of a railway on their property to the detriment of their civil rights. The applicants also complain that they were not able to appeal to any court about the Government’s decision of 12 June 2003 and that their interests were ignored by the Supreme Administrative Court.

QUESTIONS TO THE PARTIES

1.  Did the applicants, with regard to their property rights, have effective access to a court in the present case as required by Article 6 § 1 of the Convention?

2.  Similarly, has there been an interference with the applicants’ right to respect for private and family life, home or correspondence, within the meaning of Article 8 § 1 of the Convention?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?