Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 16226/90

S.

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 2 September 1992)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 14). . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2 - 4). . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5 - 9). . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 10 - 14). . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 15 - 33) . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 15 - 24). . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law and practice

(paras. 25 - 33). . . . . . . . . . . . . . . . . . . . 4

III. OPINION OF THE COMMISSION

(paras. 34 - 43). . . . . . . . . . . . . . . . . . . . . . 6

A. Complaints declared admissible

(para. 34). . . . . . . . . . . . . . . . . . . . . . . 6

B. Points at issue

(para. 35). . . . . . . . . . . . . . . . . . . . . . . 6

C. Article 6 para. 1 of the Convention

(paras. 36 - 43). . . . . . . . . . . . . . . . . . . . 6

APPENDIX I: HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . . 8

APPENDIX II: DECISION ON THE ADMISSIBILITY. . . . . . . . . . . . 9

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Swedish citizen of Sami descent, born in 1925.

He is a reindeer breeder by profession. In the proceedings before the

Commission the applicant is represented by Mr. Johan Cahp, a lawyer

practising in Stockholm.

3. The application is directed against Sweden. The respondent

Government were represented by their Agents, first Mr. HÃ¥kan Berglin,

succeeded by Ms. Eva Jagander, both of the Ministry for Foreign

Affairs.

4. The case relates to the refusal by the Swedish Government of the

applicant's request to keep 400 reindeer. He complains of a violation

of Article 6 para. 1 of the Convention as he could not obtain a court

examination of the decision to refuse his request.

B. The proceedings

5. The application was introduced on 20 May 1987 and registered on

28 February 1990. On 7 November 1990 the Commission decided in

accordance with Rule 48 para. 2 (b) of its Rules of Procedure to give

notice of the application to the respondent Government and to invite

them to present, before 8 February 1991, their observations in writing

on the admissibility and merits of the application.

6. The Government submitted their observations on 22 February 1991

having been granted an extension of the time-limit. The applicant's

written observations in reply were submitted on 24 April 1991.

7. On 28 May 1991 the plenary Commission decided to refer the

application to the Second Chamber.

8. On 8 July 1991 the Commission (Second Chamber) decided to declare

the application admissible and furthermore provided the parties with

the opportunity to submit any additional observations on the merits

which they wished to make. No further observations on the merits were

received from the parties.

9. After declaring the case admissible the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case. Active consultations with the parties took

place between 15 July 1991 and 6 March 1992. In the light of the

parties' reactions, the Commission now finds that there is no basis

upon which such a settlement can be effected.

C. The present Report

10. The present Report has been drawn up by the Commission (Second

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

11. The text of this Report was adopted on 2 September 1992 and is

now transmitted to the Committee of Ministers of the Council of Europe,

in accordance with Article 31 para. 2 of the Convention.

12. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found disclose a

breach by the State concerned of its obligations under the

Convention.

13. A schedule setting out the history of the proceedings before the

Commission is attached hereto as APPENDIX I and the Commission's

decision on the admissibility of the application as APPENDIX II.

14. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

15. On 16 December 1985 the County Agricultural Board (lantbruks-

nämnden) in the county of Norrbotten decided on the principles to be

applied for the continued licensed herding of reindeer in the county.

16. On the same day the County Agricultural Board furthermore decided

on certain specific conditions concerning licensed herding of reindeer

within the Sami community of Muonio to which the applicant belongs. The

decision implied, inter alia, that the community could keep a total of

4.300 reindeer and would be obliged to accept responsibility for

herding a total of 1.600 reindeer belonging to others.

17. Subsequently, the County Agricultural Board received eleven

requests for a permit to do licensed reindeer herding in the Sami

community of Muonio as from 1 January 1986. In addition, the Board

received four requests where the Sami community in which the herding

was to take place had been left open.

18. The applicant was among those who had submitted a request for a

permit. He had not previously held a permit and he now requested a

permit to do licensed reindeer herding in the Sami community of Muonio

with 200 reindeer owned by himself.

19. On 15 January 1986 the County Agricultural Board decided to issue

eleven permits allowing, among others, the applicant to do licensed

reindeer herding in the Sami community of Muonio with a total of 2.700

reindeer owned by the licence holders themselves and 1.600 reindeer

belonging to others which were to be herded jointly.

20. As regards the reindeer owned by the licence holders themselves,

the applicant was granted a permit to herd 200 reindeer until the end

of 1990. His application was thus granted in its entirety.

21. In an appeal of 10 February 1986 to the National Board of

Agriculture (lantbruksstyrelsen), the applicant requested that the

number of reindeer that he had been permitted to herd be increased to

400. In support of his request he claimed that 200 reindeer would not

be enough for him to earn his living. He also complained of the fact

that certain persons not belonging to the Sami community of Muonio had

received a reindeer herding permit. He considered that this was in

violation of the applicable legislation and that therefore these

permits should be revoked.

22. On 21 November 1986 the National Board of Agriculture rejected

the applicant's appeal. On the basis of the circumstances of the case

it found no reason to increase the applicant's permit to cover 400

reindeer or to revoke the permits granted to those who did not belong

to the Sami community of Muonio. Furthermore, it considered that no

proposals had been submitted which could solve the questions concerning

reindeer herding in Muonio in a better way than what had been decided

by the County Agricultural Board.

23. On 12 December 1986 the applicant appealed against this decision

to the Government (Department of Agriculture). He maintained his

request for 400 reindeer and argued that where an increase of the

number of reindeer was foreseen in the area, the members of the Sami

community of Muonio should benefit from this and not, as in the present

case, members of another Sami community. The applicant considered this

to be an unacceptable interference with his occupation as a reindeer

breeder.

24. On 29 January 1987 the Government rejected the appeal.

B. Relevant domestic law

25. Reindeer herding is governed by the 1971 Act on Reindeer Herding

(Rennäringslag 1971:437) from which it appears that a person of Sami

descent has the right to use land and water for himself and for his

reindeer, i.e. a reindeer herding right (renskötselrätt), provided that

reindeer herding has been the permanent occupation of his father or

mother or any of his grandparents (Section 1). Reindeer herding may in

some areas take place all year round, in some other areas only part of

the year (Section 3).

26. The areas within which reindeer herding may take place all year

round are divided among the Sami communities in special community areas

which may also comprise areas within which reindeer herding may take

place only part of the year (section 6). The division into community

areas is administered by the competent County Agricultural Board

(Section 7).

27. The object of a Sami community, which may acquire rights and

undertake commitments, is to manage, in accordance with the Act, the

reindeer herding within the pasture area of the community to the common

benefit of its members (Sections 9-10). A member of a Sami community

is, inter alia, a person entitled to engage in reindeer herding who

participates in reindeer herding within the pasture area of the

community (Section 11).

28. A Sami community may for the common needs of its members use the

pasture area of the community for reindeer herding. The competent

County Agricultural Board shall decide on the number of reindeer which

may be kept within the pasture area (Section 15).

29. A Sami community shall have a board. The board shall, inter alia,

direct reindeer herding operations in the community's area and ensure

that the common interests of the members are protected without

prejudice to any member (Section 48).

30. Any person who is entitled to keep reindeer can obtain a licence

to keep reindeer within certain areas where reindeer herding otherwise

may take place only part of the year (Section 85). Such a licence

includes the right to keep, not only reindeer owned by the licence

holder himself, but also reindeer belonging to, inter alia, a person

who owns or manages farm property which is located wholly or partially

within the licensed area if he resides on that property or within the

area (Section 85).

31. A licence may only be granted if continued reindeer herding

within the area is of substantial benefit locally and only if it can

be assumed that the person applying for a licence will keep the

reindeer in an appropriate manner (Section 85).

32. A licence is granted for a specific period of time, not exceeding

ten years. A licence specifies the licensed area, the largest number

of reindeer which each licence holder may keep within the area and the

largest number of reindeer belonging to others which the licence holder

may accept responsibility for (Sections 85 and 88).

33. Questions pertaining to licences are considered and decided on

by the competent County Agricultural Board (Section 87). A decision of

a County Agricultural Board can be appealed against to the National

Board of Agriculture and a decision of the latter may be appealed

against to the Government (Section 98). At the time relevant to the

present application, the decision of the Government was final.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

34. The complaint declared admissible concerns the absence of a right

to a court examination of the Government's decision of 29 January 1987

to reject the applicant's request for a permit to keep 400 reindeer.

B. Point at issue

35. The issue to be determined is:

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention.

C. Article 6 para. 1 (Art. 6-1) of the Convention

36. The relevant part of Article 6 para. 1 (Art. 6-1) of the

Convention reads as follows:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing ... by (a) ... tribunal..."

37. The Commission recalls that according to the established case-law

of the European Court of Human Rights the Commission must, in order to

determine the issue in question, ascertain whether there was a dispute

over a "right" which can be said, at least on arguable grounds, to be

recognised under domestic law. 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 the result of the

proceedings must be directly decisive for the right in question.

Finally, the right must be of a "civil" character (cf. for example Eur.

Court H.R., Skärby judgment of 26 June 1990, Series A no. 180-B, pp.

36 and 37, paras. 27 and 29).

38. When considering the facts of the present case in the light of

the case-law of the European Court of Human Rights, the Government

submit that the case did involve a genuine and serious dispute

concerning a civil right within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

39. The Commission agrees with the Government. It recalls that under

the applicable national legislation the applicant had a right to

licensed reindeer herding whereas there was a serious and genuine

dispute as to its scope and the manner of its exercise which was

directly decisive for this right. Furthermore, the Commission considers

that this right, which related to the applicant's occupation as a

reindeer breeder, was of a "civil" nature. Accordingly, the Commission

finds that Article 6 (Art. 6) was applicable in the present case.

40. It remains to be determined whether the applicant had at his

disposal a "tribunal" satisfying the requirements of Article 6 para. 1

(Art. 6-1) of the Convention for the determination of the dispute in

question.

41. The Government accept that the dispute was determined finally by

the Government on 29 January 1987 and that, at the time the decision

was taken, it was not open to review by a court or any other body which

could be considered to be a "tribunal" within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention.

42. On the basis of its own examination of the case the Commission

has reached the same conclusion. Accordingly Article 6 para. 1

(Art. 6-1) of the Convention has been violated.

Conclusion

43. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

20 May 1987 Introduction of the application

28 February 1990 Registration of the application

Examination of Admissibility

7 November 1990 Commission's decision to invite the

Government to submit observations

on the admissibility and merits of

the application

22 February 1991 Submission of the Government's

observations

24 April 1991 Submission of the applicant's

observations

28 May 1991 Commission's decision to refer the

application to the Second Chamber

8 July 1991 Commission's decision to declare the

application admissible

Examination of the merits

2 April 1992 Consideration of the state of

proceedings

2 September 1992 Commission's deliberations on the

merits, final vote and adoption of

the Report

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S. v. SWEDEN

S. v. SWEDEN

LEXI