AS TO THE ADMISSIBILITY OF

                      Application No. 12033/86
                      by Anders and Maria FREDIN
                      against Sweden


        The European Commission of Human Rights sitting in private
on 14 December 1987, the following members being present:

              MM. C.A. NØRGAARD, President
                  S. TRECHSEL
                  F. ERMACORA
                  G. SPERDUTI
                  E. BUSUTTIL
                  A. WEITZEL
                  J.-C. SOYER
                  H.G. SCHERMERS
                  H. DANELIUS
                  J. CAMPINOS
             Mrs.  G.H. THUNE
             Sir  Basil HALL
             MM.  F. MARTINEZ
                  C.L. ROZAKIS
             Mrs.  J. LIDDY

             Mr.  H.C. KRÜGER Secretary to the Commission


        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 5 March 1986
by Anders and Maria Fredin against Sweden and registered on 10 March
1986 under file N° 12033/86;

        Having regard to:

    _   the first report provided for in Rule 40 of the Rules of
        Procedure of the Commission;

    _   the Commission's decision of 13 October 1986 to invite the
        Government to submit written observations on the admissibility
        and merits;

    -   the Government's written observations dated 11 February 1987
        and the applicants' observations in reply dated 28 April 1987;

    -   the second report provided for in Rule 40 of the Rules of
        Procedure.


        Having deliberated;

        Decides as follows:

THE FACTS

        The facts of the case, as they appear from the parties'
submissions, may be summarised as follows.

        The applicants are Mr.  Anders Fredin and his wife, Mrs.  Maria
Fredin, born in 1944 and 1946 respectively.  They are Swedish citizens
resident at Grödinge.  Mr.  Fredin is an agricultural engineer by
profession.  The applicants are represented before the Commission by
Mr.  Jan Axelsson, a lawyer practising in Stockholm.

The particular circumstances of the case

        The applicants own a parcel of land called Ström 1:3 situated
in the municipality of Botkyrka.  The piece of land has no economic
value except as a gravel pit.  It has been exploited as such for more
than one hundred years.  The present quantity of exploitable gravel is
calculated at approximately 20 million tonnes with a total exploitable
value of 30 million SEK.

        On 11 December 1963 Mr.  Fredin's parents, who were then the
owners of the property, were granted a permit to exploit gravel on the
property.   The permit was required under the then applicable
legislation and it was valid for a period of 30 years as from the date
of its issue.  At that time, an owner of a gravel pit was entitled to
compensation if a permit to exploit gravel from the property was
refused.

        The right to take gravel from the land was, at the time, let
to a company.  The contract allowed the land-owners to take gravel for
their own use.

        Mr.  Anders Fredin acquired a fifth of the property on
4 September 1969 by gift from his mother, as did his sister and his
brother.

        By an Act (1973:311) which came into force on 1 July 1973 the
County Administrative Board (länsstyrelsen) was empowered to cancel
permits more than ten years old.  By the same Act, the right to
compensation was abolished.

        On 31 July 1977, the applicants acquired the entire property
in question.  The County Administrative Board was informed of the
change in ownership.  The lease of the right to take gravel was still
in force, but it ceased on 1 October 1979.  On 3 October 1979, the
applicants reported to the County Administrative Board that they
possessed the gravel exploitation rights and they asked for the
permit to take gravel to be formally transferred to them.

        On 30 May 1980, the County Administrative Board issued a
permit allowing Mr.  Fredin to install shiploading equipment on the
seashore adjacent to the gravel pit.  Mr.  Fredin built a quay with
equipment at a cost of 1 million SEK.

        On 1 June 1981, the County Administrative Board asked the
applicants to pledge a financial security.

        On 14 April 1983 the County Administrative Board of the
Stockholm County transferred the exploitation permit to the
applicants.

        On 19 December 1984 the County Administrative Board, in view
of the damages on the land and the environment, ordered that the
exploitation of the gravel should cease as soon as possible.  The
Board found however that a closing down period of three years was
reasonable, and it fixed the permit to be valid until the end of 1987.
It was stated that all the works on the gravel should be terminated
and the area in question should be restored by the end of 1987.  The
Board also ordered that the applicants should deposit a security of
200,000 SEK to safeguard restoration costs.

        The applicants appealed to the Government.  In a decision of
12 December 1985 the Government rejected the appeal stating that they
concurred with the County Administrative Board's assessment that the
exploitation of the gravel at issue should be terminated and the
gravel pit restored.  The Government ordered that the permit should
be valid until 1 June 1988 and that the security for costs should be
submitted to the County Administrative Board at the latest on
1 March 1986.

Relevant domestic law

        The basic regulations on the protection of nature are laid
down in the 1964 Nature Conservation Act (naturvårdslag).

        It appears from Section 1 of the Act that the legislation is
based on the Swedish legal principle that nature is accessible to
everybody by virtue of the right of common access (allemansrätten) and
that everybody must show due regard and circumspection in their
dealings with nature.

        Section 1 para. 3 provides that, if damage to nature is
bound to result from an enterprise or in any other way, the necessary
measures shall be taken to limit or counteract the damage.

        Section 3 provides that, when deciding on questions relating
to nature conservation, other public and private interests must be duly
considered.

        According to Section 18 of the Act, extraction of gravel
(grustäkt) for other purposes than the domestic needs of the landowner
may not be carried out without a permit (täkttillstånd) from the
County Administrative Board.  The Board may require a party applying
for an extraction permit to submit material showing the need for the
exploitation as well as a properly detailed extraction plan
(täktplan).

        When issuing a permit, the Board shall prescribe the
conditions required to restrict or counteract harmful effects of the
enterprise upon the natural environment.  In order to ensure that the
conditions prescribed will actually be fulfilled, the validity of a
permit shall, in the absence of reasons to the contrary, be made
conditional upon the pledging of a financial security.

        If ten years have passed from the day on which an extraction
permit acquired legal force, the Board may, according to Section 18
para. 4 of the Act, revoke the permit completely or in part or may
combine it with revised conditions.  This provision was introduced by
an amendment to the Act on 1 July 1973.  According to the transitional
provisions, in respect of extraction permits existing at the time the
amendment entered into force, i.e. on 1 July 1973, the ten years
period was to be calculated as from that date.  By the same amendment,
then existing provisions were also abolished, according to which a
landowner, under certain circumstances, could be granted compensation
in case he was refused an extraction permit.

        Section 18 of the Act reads as follows:

(Swedish)

"Täkt av sten, grus, sand, lera, jord, torv eller andra
jordarter för annat ändamål än markinnehavarens husbehov
får ej ske utan länsstyrelsens tillstånd.  Vad nu sagts avser
dock ej  ... .

Länsstyrelsen får förelägga den som söker täkttillstånd att,
vid äventyr att ansökningen avvisas, lägga fram utredning
som belyser behovet av täkten samt en täktplan av
erforderlig omfattning.  Tillståndet skall förenas med
de villkor som behövs för att begränsa eller motverka
företagets menliga inverkan på naturmiljön.  Om ej särskilda
skäl föranleder annat, skall tillstånd för sin giltighet
göras beroende av att säkerhet ställs för sålunda föreskrivna
villkor.  Visar sig sådan säkerhet otillräcklig, får
länsstyrelsen föreskriva att tillståndet skall gälla endast
om ytterligare säkerhet ställs.

Om fullgörandet av föreskriven åtgärd ankommer på annan än
markens innehavare, är innehavaren skyldig tåla att åtgärden
vidtages.

Har tio år förflutit från det täkttillstånd har vunnit laga
kraft, får länsstyrelesen upphäva tillståndet helt eller
delvis eller förena tillståndet med ändrade villkor.  Visar
det sig att föreskrivna villkor inte i den utsträckning som behövs
begränsar eller motverkar företagets menliga inverkan på
naturmiljön, får länsstyrelsen före utgången av den angivna
tiden förena tillståndet med de ytterligare villkor som behövs."

(English translation)

"Quarrying of stone, extraction of gravel, sand, clay, top
soil, peat, or other types of earth for other purposes than
domestic needs of the landowner may not be carried out
without a permit from the County Administrative Board.
The aforesaid shall not apply to ... .


The County Administrative Board may require a party
applying for a quarrying or extraction permit to submit,
on pain of the application being rejected, material
showing the need for the quarrying or extraction and a
properly detailed quarrying or extraction plan.  The permit
shall be combined with the conditions necessary to restrict
or counteract harmful effects of the enterprise upon the
natural environment.  In the absence of special reasons to
the contrary, the validity of a permit shall be conditional
upon the pledging of a financial security, so as to ensure
that the conditions prescribed are actually fulfilled.  If
the security given proves to be inadequate, the County
Administrative Board may order that the permit will become
effective only if additional security is pledged.

If the fulfilment of a prescribed condition is incumbent on
another party than the landowner, the latter must tolerate
the measure being taken.

If ten years have passed from the day on which a quarrying
or extraction permit acquired legal force, the County
Administrative Board may revoke the permit completely or
in part or may combine its renewal with revised conditions.
If it becomes apparent that the conditions set do not
sufficiently restrict or counteract the damaging effects
that the activities may have on the natural environment,
the County Administrative Board may, before the expiry of the
stated period, make the permit subject to such additional
conditions as may be necessary."

        From Section 40 para. 2 of the Act, it appears that a
decision taken by the County Administrative Board may be appealed
to the Government.  No appeal lies against a decision of the
Government.


COMPLAINTS

1.      The applicants submit that the decision of the County
Administrative Board, as upheld by the Government, constitutes an
infringement of the applicants' rights to peaceful enjoyment of their
possessions.  Since the property was made totally worthless by the
cancellation of the exploitation permit, the order is tantamount to a
deprivation of property rights, not the mere control of the use of
that property.  In the applicants' opinion the order constitutes a
deprivation of all fruitful and gainful use of the property without
any compensation.  They allege a violation of Article 1 of Protocol
No. 1.

2.      The applicants submit that the right to take gravel from their
property is a civil right and the obligation to deposit a bank
guarantee is a civil obligation.  Since their only right of appeal was
to the Government the applicants submit that they have been denied the
right to a hearing by an independent tribunal as guaranteed by Article 6
of the Convention.

3.      In their written observations of 28 April 1987 the applicants
have further submitted that they were the victims of discrimination
since the County Administrative Board treated their case differently
from other cases concerning gravel pits in the region, allegedly on
the ground that the applicants are the only independent operators in
this area.  The applicants invoke Article 14 of the Convention together
with Article 1 of Protocol No. 1.


PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 5 March 1986 and registered
on 10 March 1986.

        On 13 October 1986 the Commission decided to invite the respondent
Government to submit written observations on the admissibility and merits
of the application.

        The Government's observations were received by letter of
11 February 1987 after an extension of the time-limit for reply until
16 February 1987 and the applicants' observations in reply were dated
28 April 1987 after an extension of the time-limit until 30 April 1987.


SUBMISSIONS OF THE PARTIES

A.      The Government

1.      The facts

        The Government recall that the extraction permit was granted
to the then owners of the property and, accordingly, not the
applicants.  By a decision of the County Administrative Board on 14
April 1983, the permit was transferred to the applicants and also made
conditional upon the pledging of a financial security to the amount of
75.000 SEK. Furthermore, by the same decision the applicants were
notified, among other things, that in the course of 1983 the Board
intended to reconsider the extraction permit and consider the
cessation of the exploitation in view of the amendment of 1 July 1973
to the Nature Conservation Act.

        On 25 August 1983 the Board notified the applicants that, due
to the interest of preserving nature in the area and, in addition,
since there was no need for pursuing the exploitation, it intended to
reconsider the extraction permit.  The applicants were accordingly
ordered to provide a revised extraction plan, and certain instructions
were given as to the cessation of the exploitation.

        During the autumn of 1983, an inspection on the spot was made
of the applicants' exploitation enterprise.  According to the minutes
of the inspection, dated 26 October 1983, some of the instructions
mentioned above had not been complied with.

        In a memorandum issued on 14 May 1984, the County
Administrative Board presented two possible alternatives for the
cessation of the applicants' exploitation enterprise.  According to
one of the alternatives, the extraction was to be discontinued as soon as
possible.  The other alternative envisaged the exploitation to continue
for another couple of years.  The first applicant, Mr.  Fredin, and the
National Environment Protection Board (naturvårdsverket), among
others, were given an opportunity of commenting on the memorandum.  In
its comments of 18 September 1984, the National Environment Protection
Board, being responsible on the national level for the supervision of
nature conservation, stated that, in view of the harmful effects of the
enterprise upon the natural environment, the exploitation should be
discontinued as soon as possible.  Despite this opinion, which was
also the view held by the County Administrative Board itself, the
Board decided, referring to, among other things, the view of the
applicants, that they should be granted another three years in order
to afford them reasonable time for the winding up of the enterprise.

2.      The admissibility

        The Government have no objection to make as far as the domestic
remedies rule and the six months rule of Article 26 of the Convention are
concerned.

        However, the Government submit that the complaint under
Article 6 of the Convention should be rejected as being incompatible
ratione materiae with the Convention for falling outside the scope of
the Convention and that the complaint under Article 1 of Protocol No.
1 should be rejected for being manifestly ill-founded.  The reasons
are set out below.

3.      The merits

        3.1  Article 6 para. 1 of the Convention

        When acceding to the Convention, the Government were
convinced that proceedings, like the present ones, in the field of
public or administrative law, which are dominated by considerations
of public interest and determined principally by considerations of
policy, would not come within the scope of Article 6 para. 1.  In
the Government's view such an interpretation is well in line with
the wording of the text and is also supported by the travaux
préparatoires.  Furthermore, in view of the legal systems of many
States Party to the Convention, there are good reasons for assuming
that Article 6 para. 1 was not intended to encompass proceedings of
the kind now considered.

        However, the majority of the members of the Court has taken a
different view.  By gradually widening the scope of Article 6 para. 1,
this majority has construed wide areas of what has traditionally been
recognised as public or administrative law to involve the
"determination of civil rights".  In the course of this development,
the Court has been faced with a number of cases that have concerned
activities entirely or partly carried on in the private sector
although carefully regulated and supervised by the State in the public
interest.  Although this development has yielded a few guidelines for
the interpretation of the concept of "the determination of civil
rights", the Court has not yet laid down a general and all-encompassing
definition of the concept.  Instead, the Court has solved the issues
presented on a case-by-case basis, essentially by considering the
particulars of each case in view of a few vague and generally phrased
principles and, on occasions, by engaging in an over-all evaluation of
the relative cogency of the features of public law and private law
present in the case.

        In the Government's opinion, the Court's approach has left
the Contracting States with a considerable uncertainty as to what will
ultimately be the scope of Article 6 para. 1 of the Convention.

        The Government are well aware that precedents could easily be
referred to which at first glance would seem to suggest that also the
present case would come within the scope of Article 6 para. 1.  It may
suffice to refer to the Court's reasoning in the Benthem case (Eur.
Court H.R., Benthem judgment of 23 October 1985, Series A no. 97).
However, having considered the particulars of the present case in the
light of previous case-law, the Government have come to the
conclusion that the facts of the case warrant a different outcome,
i.e. that Article 6, para. 1 be found not to be applicable.

        At the outset, the Government observe that Article 6 para. 1
does not apply to the determination of civil rights and obligations
which are not recognised under domestic law.  Consequently, it does not
offer any guarantee as to the content of such rights and obligations
in the substantive law of the Contracting States, and it does not
require that there be a national court with competence to invalidate
or override national law (see Eur.  Court H.R., James and Others
judgment of 21 February 1986, Series A no. 98, p. 46, para. 81).
Accordingly, in case of the taking of property or the imposition of
restrictions on the use of property, Article 6 para. 1 does not
require a court review of the very entitlement to take the property or
to restrict the use of it in so far as the taking and the restrictions
are in conformity with the national legislation.

        Furthermore, the European Court of Human Rights has
consistently held that for a case to come within the scope of Article
6 para. 1, it has to involve a "contestation" (dispute) within the
meaning of that Article.  The dispute must concern "civil rights and
obligations", i.e. such rights and obligations "must be the object -
or one of the objects - of the dispute", "a tenuous connection" being
insufficient.  Furthermore, the dispute must be "genuine and of a
serious nature" and may concern "questions of fact" or "questions of
law" (see e.g. the Benthem case, loc. cit., p. 15, para. 32).  While
further clarification would seem desirable as to the requirements that
"civil rights and obligations (be) the object - or one of the objects
- of the dispute" and that the dispute be "genuine and of a serious
nature", the meaning of the requirement that the dispute concern
"questions of fact" or "questions of law" would seem to be reasonably
clear.  In the Government's opinion, this could only mean that, for
Article 6 to be applicable, at least one of two conditions need to be
met:  either there has to be a disagreement as to the facts on which
the disputed decision is based, or there has to be a disagreement
concerning the legal basis for the decision.

        Consistent with this conclusion, where the Court has not found
such a disagreement on questions of fact or questions of law to be
present, it has held Article 6 para. 1 not to be applicable (see Eur.
Court H.R., van Marle and Others judgment of 26 June 1986, pp. 11-12,
paras. 33 - 37).  Furthermore, when considering the character of the
disagreements involved, i.e.  whether they concern "questions of fact"
or "questions of law", only such disagreements which are explicitly
invoked before the Convention institutions would appear to be
relevant.

        In the present case, the complaint under Article 6 of the
Convention is based on mere statements that "the right to take gravel
from (the) property is a civil right" and "the obligation to deposit a
bank guarantee is a civil obligation".  Furthermore, the only facts
invoked in respect of the disputed decision are the legislation that
entered into force on 1 July 1973 and the orders that the exploitation
be discontinued and that a bank guarantee be pledged.

        Accordingly, it does not appear from the application whether
it is based on an assumption that Article 6 para. 1 guarantees a right
to have any infringement on the right of property examined by a court,
regardless of the national legislation, or if the applicants consider
the orders that the exploitation be discontinued and a bank guarantee
be pledged unjustified under Swedish law.

        If the application is based on the first assumption, the
Government submit that it falls outside the scope of this provision,
since the scope of this provision extends only to disputes over rights
and obligations which are recognised under domestic law.  To take
another view would in the Government's opinion lead to unreasonable
consequences.  Thus, the justification of any legal provision
affecting in one way or another the right of use of property would
need to be subject to court review.  No such requirement could be read
into Article 6 para. 1.

        Also in case the complaint is viewed as being based on the
other line of reasoning indicated above, the Government take the
position that it falls outside the scope of Article 6 para. 1.  For a
case to come within the scope of this provision, it has to involve a
dispute concerning "questions of fact" or "questions of law".
Furthermore, this dispute has to be "genuine and of a serious nature",
and "civil rights and obligations must be the object - or one of the
objects - of the dispute".  As follows from what has been said above,
no "dispute" appears to have been invoked in the complaint as
submitted to the Commission.  Moreover, even if one were to assume the
existence of a "dispute", there is nothing in the complaint brought
before the Commission that would justify the conclusion that this
"dispute" concerns "questions of fact" or "questions of law", that it
is "genuine and of a serious nature" and that "civil rights and
obligations are the object - or one of the objects - of the dispute".
Admittedly, in the disputed decision by the Government of 12 December
1985, there is an indication as to the existence of disagreements on
questions of law in respect of "certain instructions" contained in the
decision of the County Administrative Board of 19 December 1984.
However, these points are not pursued before the Commission and,
therefore, should not be of any relevance for the consideration of the
present issue.  Besides, there is nothing in the Government's decision
as such, or in any other document submitted to the Commission, which
could yield any conclusion as to whether the dispute was "genuine and
of a serious nature" as required under Article 6 para. 1.  Moreover,
there is nothing that points to the relation between the disagreements
indicated and the rights and obligations invoked before the Commission.
In other words, in the Government's opinion there is no basis for
concluding that the rights and obligations referred to in the
complaint were indeed "the object - or one of the objects -" of the
disagreements as is required under Article 6 para. 1.

        In this context the Government add that the complaint would
in their opinion seem to concern, in essence, what the applicants
consider to be an incorrect assessment of the interest of preserving
nature at the expense of their own interests.  Such an assessment is
closely intertwined with and, moreover, directly dependent on policy
considerations as regards, among other things, the future location of
for instance residential areas, industrial plants and parks or other
facilities for outdoor recreation activities of the public.  Although
an assessment of this kind may also touch on questions of fact and of
law susceptible of judicial scrutiny, there is in the Government's
opinion nothing to indicate that this is so in the present case.  This
being so, the Government submit that the assessment made by the
authorities in this case is as "far removed from the exercise of the
normal judicial function" as was the assessment involved in the case
of van Marle and Others, and disagreements which the European Court
found not to be covered by the safeguards of Article 6 para. 1
of the Convention.

        To sum up, the Government submit that this part of the
complaint falls outside the scope of Article 6 para. 1 of the
Convention since it does not involve any "contestation" (dispute) over
"civil rights and obligations" within the meaning of this provision.

        In case the Commission would consider Article 6 para. 1 to be
applicable, the Government admit that the applicants did not have the
benefit of a procedure meeting the requirements of this provision.

        3.2  Article 1 of Protocol No. 1

        The Government admit that the disputed decision amounted to an
interference with the applicants' right to the peaceful enjoyment of
their property.  The legislation applied and the measures taken
constitute in the Government's view a control of the use of property
within the meaning of the second paragraph of Article 1.  The
Government do not share the applicants' view that the second sentence
of the first paragraph is applicable, i.e. that the applicants were
deprived of the property.  The Court has explicitly found the scope of
that provision to be limited to the situation where someone is
"deprived of ownership" (see Eur.  Court H.R., Handyside judgment of 7
December 1976, Series A no. 24, p. 29, para. 62).  Furthermore, the
Court found the second paragraph, but not the second sentence of the
first paragraph, applicable in a situation involving a deprivation of
property since the deprivation "formed a constituent element of the
procedure for the control of the use" of the property (Eur.  Court
H.R., Agosi judgment of 24 October 1986, Series A no. 108, p. 17,
para. 51).

        In the present case it is clear that the relevant legislation
was enacted for the only purpose of controlling the use of property
and also that no other reasons were behind the measures actually
taken.  Accordingly, the only issue before the Commission is whether
the measures taken are justified under the second paragraph as
construed in light of the general principle of the peaceful enjoyment
of possessions contained in the first sentence of the first paragraph.

        Under the second paragraph, a State is entitled to "enforce
such laws as it deems necessary to control the use of property in
accordance with the general interest".  This paragraph, unlike a
number of other provisions of the Convention, sets the Contracting
States up as sole judges of the "necessity" for an interference (see
e.g. the Handyside judgment, loc. cit., p. 29, para. 62).  Thus, in
respect of the second paragraph, the only questions to be considered
by the Commission are whether the measures taken constituted law
enforcement and, if so, whether the law enforced was dictated by "the
general interest".  The disputed measures were taken in accordance
with Section 18 of the Nature Conservation Act and, furthermore, the
policy goal underlying the Act is to preserve nature in the interest
of the public.  In view of this, the Government maintain that both
questions have to be answered in the affirmative.  The Government also
observe that no other opinion seems to have been expressed by the
applicants before the Commission.

        The requirement that the second paragraph be construed in the
light of the general principle of the peaceful enjoyment of property
has been construed by the Court to mean that there must also exist "a
reasonable relationship of proportionality between the means employed
and the aim sought to be realised" (Agosi judgment, loc. cit., p. 18,
para. 52).  In other words, an interference will not be found
justified unless a "fair balance" has been struck between the demands
of the general interest at stake and the interest of the individual or
individuals concerned.

        When considering the requirement of a "fair balance" in the
context of the deprivation of property, the Court has construed it to
mean that any interference, in order to be justified under the second
sentence of the first paragraph, need to be "both appropriate for
achieving its aim and not disproportionate thereto" and that,
accordingly, the balance will not be found in case the individual
concerned would have to bear "an individual and excessive burden"
(James and Others judgment, loc. cit., p. 34, para. 50).  In the
Government's opinion this reasoning would seem to be relevant also in
respect of the concept of "the general interest", at least in the
sense that the State should not be afforded less latitude to control
the use of an individual's property than to take it away from him.  As
for the present case, this would appear to call for an examination of,
firstly, whether the measures taken in themselves were appropriate in
view of the aim sought to be achieved and, secondly, whether the
interest of the applicants was sufficiently taken into account.

        The Government firstly observe that the interest of
preserving nature as a national asset is commonly recognised in all
Contracting States.  Evidently, such a policy could scarcely be pursued
without imposing appropriate restrictions on the use of property.
The framing and administration of such restrictions naturally offers
a variety of possible measures to be taken, some of which necessarily
imply even serious interferences with the individual's right to
property.

        As regards the choice between such possible measures, the
concept "in accordance with the general interest" clearly suggests
that the discretion afforded to the States is considerably wider in
scope than under other similar provisions of the Convention, for
instance Articles 8 - 10, employing the notion "necessary in a
democratic society".  The Court has also explicitly recognised that in
respect of such choices the Contracting States enjoy "a wide margin of
appreciation" (Agosi judgment, loc. cit., p. 18, para. 52).

        Given the wide discretion thus afforded to the Contracting
States as regards the particular measures to be taken in order to
implement legitimate policy goals, it could not, in the Government's
opinion, reasonably be questioned that the measures taken in the
present case were not appropriate in view of the goals sought to be
achieved.

        What remains to be considered is the question whether the
measures taken could be considered disproportionate in view of the
policy goals sought to be achieved or, in other words, whether in
the circumstances the interest of the applicants was insufficiently
taken into account.  For the following reasons, the Government
maintain that this was not the case.

        The implementation of policy goals such as those now in
question is bound almost by necessity to affect in one way or another
individuals' rights to their property and on occasions even place
considerable restrictions on their right to use their property.  Also
in this respect, the Court has granted the State concerned "a wide
margin of appreciation" in ascertaining whether such restrictions are
justified in view of the general interest concerned (Agosi judgment,
loc. cit., p. 18, para. 52).  Again, in the Government's opinion,
the Court's reasoning in dealing with the concept of "the public
interest", referred to in the second sentence of the first paragraph
of Article 1, is relevant also in the present context.  In construing
that concept, the Court has recognised that it is for the national
legislator to take the policy decision as to what burdens should
ultimately be placed on its citizens for the benefit of society at
large, and also that this implies that on occasions some "anomalies"
must be accepted.  Against this background the Court has viewed its
function as being limited merely to reassuring that the measures taken
will not be "so unreasonable as to be outside the State's margin of
appreciation" (James and Others judgment, loc. cit., p. 42, para. 69).

        The Government maintain that, given the general interest at
stake, the measures taken are justified under the terms of the second
paragraph of Article 1 of Protocol No. 1.  In particular, the
Government point to the extent to which the interest of the individual
has been taken into account both in the legislation as such and in its
application to the present case.  The provision according to which a
permit could be revoked, if ten years had passed from the day on which
it acquired legal force, entered into force on 1 July 1973.  However,
those holding a permit at that time were already by the legislator
given a transitional period of ten years during which they could make
use of the permit.  Furthermore, when deciding on 19 December 1984
that the exploitation on the applicants' property was to cease, the
County Administrative Board fixed the permit to expire by the end of
1987, a date subsequently changed by the Government to 1 June 1988,
although in the Board's opinion, which was shared by the National
Environment Protection Board, it would have been preferable in view of
the interest of preserving nature to have the exploitation discontinued
in accordance with the more speedy alternative considered.

        In the Government's opinion what has been said above
demonstrates the justification of the measures taken under the
terms of the second paragraph of Article 1 of Protocol No. 1.  The
Government add that, when considering whether the interest of the
individual has sufficiently been taken into account, due weight
should also be placed on the reasonable and legitimate expectations
of the individual in respect of the future use of his property.  It
almost goes without saying that in order for such expectations to be
"reasonable and legitimate", they have to be the result of
considerations not only of the actual potential of the property as
such and the interest of the individual himself, but also of the
relevant legislation and the interest of others.

        In the present case, the relevant legislation had been in
force for several years when the applicants acquired the property.
Accordingly, they could not have been unaware of the uncertainty as to
whether they would be allowed to continue the exploitation subsequent
to the expiration of the transitional period.  Furthermore, when the
permit was transferred to them, only some two months remained of that
period, and they were promptly notified that within a short time the
holding of the permit was to be reconsidered.  Under these circumstances,
the Government maintain that the measures taken by the authorities can-
not be considered to have frustrated any reasonable and legitimate
expectations of the applicants in respect of the future use of the
property.

        The Government submit for these reasons that the interference
was justified under the conditions laid down in the second paragraph
of Article 1 of Protocol No. 1.  Consequently, the Government maintain
that, viewed under this provision, the complaint is manifestly ill-founded.

        In case the Commission would consider the second sentence of
the first paragraph, rather than the second paragraph, of Article 1 of
Protocol No. 1 to be applicable, the Government add the following.  The
measures concerned have been taken in the public interest and subject
to conditions provided for by law.  As in respect of the second
paragraph, the European Court of Human Rights, when construing the
second sentence of the first paragraph in the light of the general
principle of the peaceful enjoyment of property, has concluded that an
interference would not be found justified unless a "fair balance" has
been struck between the demands of the public interest concerned and
the requirements of protecting the individual's fundamental rights.
In principle the same standards are to be applied when considering
whether a fair balance has been struck in case of the deprivation of
property as in the case of controlling the use of property.  It is for
the national legislator to take the policy decision as to what burdens
should ultimately be placed on its citizens for the benefit of society
at large and, accordingly, the function of the Convention institutions
is limited to ensuring that the measures taken will not be "so
unreasonable as to be outside the State's margin of appreciation".  In
view of this, the Government submit that the complaint is manifestly
ill-founded even if considered on the basis of the conditions laid down
in the second sentence of the first paragraph of Article 1.

4.      Conclusions

        The position of the Government is

        concerning the admissibility:

        that the application should be declared inadmissible, in so
far as it concerns Article 6 of the Convention, for falling outside the
scope of the Convention, and in so far as it concerns Article 1 of
Protocol No. 1, for being manifestly ill-founded, and

        concerning the merits:

        that there has been no violation of the Convention or of
Protocol No. 1.

B.      The applicants

        1.  The facts

        The applicants observe that, before Swedish law introduced the
obligation to obtain a permit in order to extract gravel, an owner of a
property could not be prevented from taking gravel from his property as
long as he did not dispose of his property or was deprived of it.

        After the introduction of an obligation to obtain permit to
extract gravel, the law was based on the principle that a refusal of such
a permit implied a deprivation of a property right.  This is the
reason for the provision that an owner was entitled to compensation
for the loss of income, even prospective income, if a permit was
refused.

        However, a new approach was brought into Swedish legislation
with regard to compensation in case of restrictions placed on the use
of property or the taking of property.  A common feature of this new
legislation was that, in principle, a land-owner should not be able
to claim compensation for such value of his property as related
exclusively to the prospects of future development or other changes
in the use of land.  The applicants agree that it was in keeping with
this new approach that the 1973 amendments to the Act abolished the
right to compensation when a land-owner was refused a permit to start
up a gravel pit.  Without expressing themselves on the question as to
whether such a refusal of compensation is in compliance with the
Convention, the applicants contend that the refusal of compensation in
the case where a valid permit is revoked is a different matter.  The
owner of the gravel pit does not regard "such value of his property as
related exclusively to the prospects of future development or other
changes in the use of land".  It is on the contrary a question of a
loss of the value of investment already made and of income from an
existing business enterprise into which he has already put that
investment.  The applicants observe that, while reasons for not
granting compensation to land-owners who had been refused a permit are
elaborately stated in the Government's Bill, no corresponding reasons
are stated with regard to the case where a valid permit is revoked,
causing loss of investments and a going business enterprise.

        On two occasions, on 8 October 1981 and 2 April 1982, the
County Administrative Board made an inspection of the applicant's
gravel pit.  At no time was there any mention of an intention to
revoke the permit.

        On 14 April 1983, the County Administrative Board changed the
decision issuing the original permit making the applicants holders of
the permit.  That meant that their parents were released from all
responsibilities for the extraction of gravel and that the applicants
could continue to take gravel without needing the consent of their
parents as holders of the permit.  Up to the date of this decision,
the applicants were able, without contravening the law, to exploit
the gravel pit under the permit granted to their parents since the
activity was carried out with their parents' consent.

        In June 1983, the County Administrative Board advised the
applicants about the installation of very expensive asphalt works.
On 25 August 1983, the Board invited the applicants to comment on a
letter stating for the first time during the procedure that the Board
wanted the gravel pit to be closed down.

        Since 1973, the applicants earn their living from their farm
of Kagghamra.  Mr.  Fredin runs the farm, doing all the various kinds
of farm work with the help of one employee and extra help in busy
periods.  The gravel pit is run by Mr.  Fredin with three employees
during the warm season, when the pit is running.  The investment by
Mr.  Fredin in the gravel exploitation enterprise is about 4 million
SEK.  More than 90 % is borrowed money.

        2.  Article 6 para. 1 of the Convention

        The applicants object to the statement of the Government that
the case-law of the Court is unclear and "unprincipled".  They cannot
share the opinion of the Government that Contracting States are left
with a considerable uncertainty as to the scope of Article 6 para. 1
of the Convention.

        The applicants contend that Article 6 para. 1 stems from the
fundamental principle of the Rule of Law and that, seen in that light,
the main scope of the Article in the case-law of the Court is fairly
clear (Eur.  Court H.R., Golder judgment of 21 February 1975, Series A
no. 18, pp. 16 - 17, paras. 34 - 36).

        In a society, where the Rule of Law prevails, the civil rights
and obligations of its members are based on law.  Disputes over the
existence of a right, its scope or the manner in which it may be
exercised are determined by independent tribunals (Eur.  Court H.R.,
Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A
no. 43, p. 22, para. 49) competent to decide all the aspects of the
matter, questions of fact as well as questions of law.  The
independence from the executive of the tribunal, its judicial function
and the guarantees afforded by its procedure is a protection against
arbitrariness.  The determination of civil rights and obligations will
be based on the judge's interpretation of all the legally relevant
facts of the matter, be they questions of fact or questions of law.

        By definition, all relevant questions of the matter are either
questions of fact or questions of law as long as the Rule of Law
prevails, since the Rule of Law has no place for irrelevant
considerations.  Le fait du prince, quod placuit principi, what the
prince pleases, can never be a basis for the determination of civil
rights and obligations as long as the Rule of Law prevails.  To allow
civil rights and obligations to be determined by bodies dependent on
the Government, or indeed by the Government themselves, carries a
considerable risk of arbitrary decisions, decisions that are not based
on questions of fact and questions of law, but on the wishes and the
ambitions of political power.

        It is a serious matter that the Government do not understand
or do not want to understand their duties under the Convention and as
a member of the Council of Europe with regard to the prevalence of the
Rule of Law and to the determination of civil rights and obligations.
To contend, as the Government do, that proceedings of the kind here
in question could reasonably be expected to be outside the scope of
the Convention and that they could be determined principally by
"considerations of policy", is tantamount to condoning an infringement
of the Rule of Law.

        These principles have been clearly spelt out by the Court in
the Golder case (loc. cit.).  The Court also clearly explained that
these principles are not the result of an extensive interpretation of
Article 6 para. 1 but based on the very terms of the first sentence of
Article 6 para. 1 read in its context and having regard to the object
and purpose of the Convention, a law-making treaty, and to general
principles of law.

        The Court stated in the Delcourt case (Eur.  Court H.R.,
Delcourt judgment of 17 January 1970, Series A no. 11, p. 13, para.
25), that, in a democratic society within the meaning of the
Convention, the right to a fair administration of justice holds such a
prominent place that a restrictive interpretation of Article 6 para. 1
would not correspond to the aim and purpose of that provision.

        It is the view of the applicants that the interpretation of
the Government is over-restrictive.

        The applicants consider that a genuine and serious dispute
(contestation) as to the actual existence of the right to take gravel
claimed by them arose between them and the Swedish authorities at
least after the decision by the County Administrative Board of
19 December 1984, ordering i.a. the closure of the gravel pit at the
end of 1987.  This is shown especially by the fact that the applicants
have been and still are able, without contravening the law, to exploit
their gravel pit up to the date of 1 June 1988.  The result of the
proceedings complained of was directly decisive for the right at issue.

        The Government thus determined by their decision of 12 December
1985 a serious dispute concerning a right claimed by the applicants.

        In their appeal to the Government, the applicants alleged that
the decision of the County Administrative Board was not in compliance
with the law and that on certain points it was based on a misconception
or faulty appraisal of the facts.  They further complained that the
decision was arbitrary, that parts of the decision were ultra vires
and that there were several procedural irregularities.

        It was the view of the applicants, and still is, that the
decision to revoke the permit to take gravel was not in compliance
with relevant Swedish law and that it caused them unreasonable
hardships.  They tried to argue their case before the Government to
no avail.  They now complain that they had no access to a tribunal
competent to determine all the aspects of the matter, questions of
fact as well as questions of law.  Thus, their complaint is not the
absence of a court to override Swedish legislation.  They complain of
the absence of a court to hear their case for not revoking their
permit to take gravel from the pit, a case of utmost importance to
them and of a most genuine and serious nature.

        3.  Article 1 of Protocol No. 1

        The applicants note the Government's submission that the
disputed decision amounted to an interference with the applicants'
right to the peaceful enjoyment of their property.  They take the view
that the property right which is primarily affected consists of the
acquired right of the applicants with respect to their permit to take
gravel and the assets of a going business that they have built up
based on the commercial activities carried out under that permit,
constituting a possession within the meaning of the first sentence
of Article 1.  This corresponds to a broader concept of property as
understood by acquired rights in international law.

        It is a question of a final deprivation of property, not a
provisional seizure for a limited period of time as in the Handyside
case referred to by the Government.  Nor does it form a constituent
element of the procedure for the control of the use of that property.
Although the prohibition to take gravel without a permit could be
argued to constitute a control of the use of property, the
cancellation of the permit was not a measure taken for the enforcement
of that prohibition.  By virtue of the permit, the applicants were
and are able, without contravening the law, to take gravel.  Thus
there is no prohibition and consequently no room for an enforcement of
such a prohibition.  On the contrary, the permit and the business
assets built up under that permit constitute in themselves an acquired
right of property and a possession of the applicants.  Thus, the Agosi
case, as referred to by the Government, does not apply.

        In the view of the applicants, the provision allowing the
County Administrative Board to revoke a permit - Section 18 para. 4 of
the Nature Conservation Act - was introduced to enable the deprivation
of property, while the provision allowing the attachment of revised
conditions was enacted for the purpose of controlling the use of
property.  The applicants further contend that the reasons behind
the measure actually taken was not or, at least, not solely the
preservation of nature.  In the view of the applicants, the deprivation
rule (second sentence of first paragraph) is applicable.

        The applicants accept that the aim of the Nature Conservation
Act, namely the protection of nature, is a legitimate aim in the
public interest.  They contend, however, that there is no reasonable
relationship of proportionality or a fair balance between the means
employed and the aim sought to be realised.  The applicants contend
that they have to bear an individual and excessive burden.  They have
been deprived of their property without compensation.  They maintain
that the taking of their property without compensation would be
considered justifiable only in exceptional circumstances not relevant
for present purposes.

        The applicants earn their living from their farm of Kagghamra,
getting their incomes from farming and the exploitation of their
gravel pit.  Particularly in view of the investment made in the gravel
pit mostly with borrowed capital, a cessation of the income of the
gravel pit would force the applicants into bankruptcy.  In this
respect reference is made to a certificate issued by Mr.  L. C. of the
Agricultural Committee (lantbruksnämnden) of the Stockholm County
stating that, if the applicants were to lose the income from their
gravel pit, their entire business would immediately go bankrupt.  For
this reason, there can be no doubt that the applicants have to bear an
individual and excessive burden.

        The applicants maintain that the deprivation of their property
was not made subject to the conditions provided by law.  They recall
that the term "law" does not merely refer back to domestic law but
also relates to the quality of law, requiring it to be compatible with
the Rule of Law.  That requires in the first place the existence of
and compliance with adequately accessible and sufficiently precise
domestic legal provisions.  The applicants underline that the statute
empowers the County Administrative Board to revoke permits, without
setting out under what conditions that can be done.  They contend
that the present legislation makes decisions unforeseeable and
unpredictable, leaving the field open to arbitrary decisions.  There
are no adequately accessible and sufficiently precise conditions spelt
out by the statute and the decision of the County Administrative Board
came as a great shock to the applicants, who had no chance to foresee the
decision.  The only thing they could know was that the Board had a
power to revoke permits, but there was no way for them, e.g. by
taking legal advice, to find out if and under what conditions they
could be deprived of their own permit.  This situation of total
insecurity as to the applicants' legal rights runs contrary to the
very essence of the principle of the Rule of Law.

        The Government seem to argue that, since the applicants were
not formally deprived of the land where the gravel pit is situated,
they were not deprived of their possessions.  In addition to the
argument about an acquired right regarding a business asset put
forward by the applicants above, they would like to refer to a
statement by the Court in the Sporrong and Lönnroth case.  In the
absence of a formal expropriation, that is to say a transfer of
ownership, the Court considers that it must look behind the
appearances and investigate the realities of the situation complained
of.  Since the Convention is intended to guarantee rights that are
"practical and effective", it has to be ascertained whether that
situation amounted to a de facto expropriation, as was argued by the
applicants in that case (Eur.  Court H.R., Sporrong and Lönnroth
judgment of 23 September 1982, Series A no. 52, p. 24, para. 63).  In
the present case, the applicants are disallowed to use their property
in the only economically viable way.  The land being mortgaged, has
strictly speaking a negative value in economic terms.  Thus, the
formal right to sell, devise, donate or mortgage is completely devoid
of substance.  The right has in fact disappeared.

        Should the Commission find that the infringements complained
of constitute a control of use of property, the applicants contend
that the control of use was not by the enforcement of a law
sufficiently foreseeable and certain to satisfy the requirements of
law in Article 1.  They further contend, for reasons given above, that
the control of use was not proportionate.  When considering the
measure applied to control the use, the Commission ought, in the view
of the applicants, to take into consideration that the property could
no longer be used for any gainful purpose, the only profitable way of
using it having been forbidden.

        The applicants further contend that the aim of the decision by
the County Administrative Board was not solely the preservation of
nature but also considerations concerning the supply of gravel within
the region.  The fact is that the gravel industry in the region of
Southern Stockholm area is dominated by one single company, which
enjoys almost a monopoly within the region.  That company is identical
to the original lease-holder of the applicants' gravel exploitation
rights.  In fact, apart from one gravel pit, run by a large building
company, Kagghamra is now the only independent operator in the region.
The applicants maintain that when dealing with their case, particularly
with questions regarding gravel supply, the County Administrative
Board has paid undue consideration to the interests of the large
company.  They further contend that the way their case was treated
compared to those of others in the region amounts to a discrimination.
They refer to a report by Mr.  D. K., a consultant.

        The applicants allege that, consequently,  there has also
been a violation of Article 14 of the Convention taken together with
Article 1 of Protocol No. 1.

THE LAW

1.      The applicants own a real estate on which they exploit gravel
under a permit issued by the County Administrative Board.  In December
1984 the County Administrative Board decided that exploitation of the
gravel must terminate before the end of 1987.  On the applicant's
appeal, the time-limit was subsequently extended by the Government to
1 June 1988.  To safeguard the restoration of the area the applicants
have been ordered to deposit a bank guarantee.

        The applicants complain that the decision of the County
Administrative Board, as upheld by the Government, has made their
property totally worthless and is therefore tantamount to a
deprivation of property rights.  Since no compensation was paid
the applicants allege a violation of Article 1 of Protocol No. 1 (P1-1).

        As regards Article 6 (Art. 6) of the Convention the applicants
complain that the case concerns civil rights and obligations and
that they have not had the right to have their case examined by an
independent tribunal.

        The Government submit that the application is manifestly
ill-founded as regards Article 1 of Protocol No. 1 (P1-1) since the
interference with the applicants' property rights was justified under
the second paragraph of that provision.  Alternatively, the Government
maintain that the interference is justified under the second sentence
of the first paragraph of Article 1 of Protocol No. 1 (P1-1) as being taken
in the public interest and subject to conditions provided for by law.

        As regards Article 6 (Art. 6) of the Convention the Government submit
that the application should be declared inadmissible as falling outside
the scope of Article 6 (Art. 6), since there was no "contestation" (dispute)
over "civil rights and obligations" within the meaning of this
provision.

2.      Article 1 of Protocol No. 1 (P1-1) 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."

        Article 6 para. 1 (Art. 6-1) first sentence of the Convention reads as
follows:

        "In the determination of his civil rights and obligations
        or of any criminal charge against him, everyone is entitled
        to a fair and public hearing within a reasonable time by
        an independent and impartial tribunal established by law."

        In respect of Article 1 of Protocol No. 1 (P1-1), the first issue to
be examined is whether the circumstances of the case constitute an
interference with the applicants' right to the peaceful enjoyment of
their possessions as guaranteed by Article 1 of Protocol No. 1 (P1-1).  In
the affirmative, it would then have to be examined whether the
interference is justified under the terms of the second sentence of
the first paragraph or under the second paragraph of Article 1 of
Protocol No. 1 (P1-1).

        As regards Article 6 (Art. 6) of the Convention, the issues to be
decided are whether the Government's decision of 12 December 1985 was
a "determination" of a dispute with regard to the applicants' "civil rights and
obligations" within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.  If so, it would then have to be examined whether the applicants
had at their disposal a procedure satisfying the requirements of Article 6
para. 1 (Art. 6-1) in regard to that dispute.

        The Commission has made a preliminary examination of the above
issues in the light of the submissions of the parties.  It considers
that these issues raise questions of fact and law which are so
important and complex that their determination should depend upon an
examination of the merits.  These complaints must therefore be
declared admissible, no other ground for declaring them inadmissible
having been established.

3.      The applicants finally complain that they have been
discriminated against and that there has been a violation of Article 14 (Art.
14) of the Convention in conjunction with Article 1 of Protocol No. 1 (P1-1).

        Article 14 (Art. 14) of the Convention provides:

"The enjoyment of the rights and freedoms set forth in
this Convention shall be secured without discrimination
on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social
origin, association with a national minority, property,
birth or other status."

        This complaint is closely linked to the facts which the
Commission has found to be admissible above.  It must therefore also
be declared admissible.

        For these reasons, the Commission


        DECLARES THE APPLICATION ADMISSIBLE, without prejudging
        the merits.


        Secretary to the Commission      President of the Commission




              (H.C. KRÜGER)                    (C.A. NØRGAARD)