Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34776/97

by Halvar FROM

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 4 March 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 September 1996

by Halvar FROM against Sweden and registered on 5 February 1997 under

file No. 34776/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Swedish citizen born in 1924. He resides in

Sorsele.

The facts of the present case, as submitted by the applicant, may

be summarised as follows.

a. The particular circumstances of the case

By decision of 26 May 1988, the County Administrative Board

(länsstyrelsen) of the County of Västerbotten registered an elk-hunting

area (licensområde) for the Sami village (sameby) of Ran. The area

comprised the village's pastures above the cultivation line

(odlingsgränsen) in the county, including the property owned by the

applicant. As the applicant also held a licence to hunt elk on his

property, the result was a double registration of hunting licences.

The Board's decision was based on Section 10 of the Hunting Act

(Jaktlagen, 1987:259) and Section 25 of the Reindeer Herding Act

(Rennäringslagen, 1971:437).

In 1995 and 1996 the applicant complained to the Prosecutor-

General (Riksåklagaren) and the Parliamentary Ombudsman

(Justitieombudsmannen) that the County Administrative Board had acted

arbitrarily in allowing the Sami village to hunt on his property. By

decisions of 26 June and 19 July 1996, respectively, the Prosecutor-

General and the Ombudsman decided not to take any action in the matter.

In January 1997 the applicant requested the County Administrative

Board to exclude his property from the elk-hunting area registered for

the Sami village. However, by decision of 7 January 1997, the Board

rejected the request. It found that the double registration was in

accordance with applicable law, in particular the above-mentioned

provisions. The Board also referred to the travaux préparatoires to

the Hunting Act (Government Bill 1986/87:58, p. 56), according to which

the entire pastures of a Sami village above the cultivation line,

including privately-owned land, should be registered as the village's

elk-hunting area.

The applicant appealed to the County Administrative Court

(länsrätten) of the County of Västerbotten. By judgment of

20 May 1997, the court, agreeing with the reasons given by the Board,

upheld the appealed decision.

The applicant has not indicated whether he has made an appeal

against the County Administrative Court's judgment.

b. Relevant domestic law

Section 10 of the Hunting Act provides that a property owner

normally has the right to hunt on the land of his property. In

subsection 3 it is noted, however, that there are special provisions

governing the Sami's right of hunting.

Such special provisions are found in the Reindeer Herding Act.

Under Section 1 of this Act, a person of Sami extraction has a right

based on custom from time immemorial (urminnes hävd) to use land and

waters in designated areas of northern Sweden for reindeer herding.

Section 25 provides that a member of a Sami village may, with certain

restrictions, hunt on land allocated to the village. This particular

section is placed under the heading "The Exercise of the Reindeer

Herding Act", indicating that the right to hunt is part of the Sami's

immemorial right to herd reindeer.

Under Section 33 of the Hunting Act, the competent County

Administrative Board registers elk-hunting areas. According to

Section 54, its decisions may be appealed against to the administrative

courts. Leave to appeal is required in the Administrative Court of

Appeal.

COMPLAINTS

The applicant complains that the registration of his property as

part of the elk-hunting area of the relevant Sami village violates his

property rights, including his right of ownership and his hunting

right. He does not invoke any provisions of the Convention or its

Protocols.

THE LAW

The applicant complains that the registration of his property as

part of the elk-hunting area of the relevant Sami village violates his

property rights.

The Commission finds that the complaint should be examined under

Article 1 of Protocol No. 1 (P1-1) to the Convention which provides 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."

The Commission first notes that it is not clear whether the

applicant has exhausted domestic remedies, as required by Article 26

(Art. 26) of the Convention, in the present case. The Commission

finds, however, that there is no need to resolve this question as, in

any event, the application is inadmissible for the following reasons.

The Commission considers that the registration in question

constituted a measure of controlling the use of the applicant's

property falling under the second paragraph of the above provision.

Such a measure is permissible in the general interest if there exists

a reasonable relationship of proportionality between the means employed

and the aim pursued. In striking a fair balance between the general

interest of the community and the requirement of protection of the

individual's fundamental rights, the authorities enjoy a wide margin

of appreciation (cf., e.g., Eur. Court HR, Allan Jacobsson v. Sweden

judgment of 25 October 1989, Series A no. 163, p. 17, para. 55).

In the present case, the Commission recalls that the decision to

include the applicant's property in the relevant Sami village's

elk-hunting area was taken in accordance with the provisions of the

Hunting Act and the Reindeer Herding Act. Under the latter Act, the

Sami's right to hunt - which is connected with their right to herd

reindeer - in the areas of northern Sweden where the applicant's

property is situated is considered to be based on custom from time

immemorial. The Commission finds it to be in the general interest that

the special culture and way of life of the Sami be respected, and it

is clear that reindeer herding and hunting are important parts of that

culture and way of life. The Commission is therefore of the opinion

that the challenged decision was taken in the general interest.

Moreover, noting that the applicant was also licensed to hunt on the

property and having regard to the authorities' margin of appreciation,

the Commission does not consider the decision to be disproportionate

to the requirements of the general interest.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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