Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14459/88

by H.J.

against Sweden

The European Commission of Human Rights sitting in private on

19 February 1992, the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

MM.F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÃœGER, 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 24 January 1988

by H.J. against Sweden and registered on 12 December 1988 under file

No. 14459/88;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 14 March 1991 and the observations in reply submitted by

the applicant on 1 September 1991;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Swedish citizen born in 1941 and resident at

Ersmark. He is a farmer. Before the Commission he is represented by

Mr. Ã…ke Puranen, Enskede, Sweden.

A.The particular circumstances of the case

The applicant is the owner of an agricultural property, covering

approximately 406 hectares, in the municipality of Skellefteå. An area

of 195 hectares of the property is part of a 4310 hectares joint

hunting area (jaktvårdsområde), which was formed through a decision of

the County Administrative Board (länsstyrelsen) of the County of

Västerbotten on 6 April 1984 on the basis of the 1980 Act on Joint

Hunting Areas (lagen om jaktvårdsområden). The holders of the hunting

rights within that area have founded a hunting association to

administer the hunting area and according to whose by-laws the elk-

hunting was to be carried out as a joint activity. The same area has

been registered as a licence area for elk-hunting under the Hunting Act

(an "A-licence area"). On 4 June 1984 the Hunting Association decided

to join the Västerbotten County Hunting Association (Västerbottens läns

jaktförening) and the Swedish Hunting Association (Svenska

Jägareförbundet).

The applicant appealed against the decision of 6 April 1984 to

the Administrative Court of Appeal (kammarrätten) of Sundsvall, but

withdrew his appeal.

In 1986 the applicant was prosecuted for having, on his own

property, hunted and killed an elk in disregard of the rules on joint

hunting which applied to the whole joint hunting area. He was acquitted

on 17 June 1986 by the Skellefteå District Court (tingsrätt). After the

Public Prosecutor had appealed, the Court of Appeal for Upper Norrland

(hovrätten för Övre Norrland), on 10 February 1987, convicted him and

sentenced him to a fine and to payment to the hunting association of

the Joint Hunting Area of 5.358 SEK, representing the value of the elk

shot by the applicant. On 23 September 1987, the Supreme Court (Högsta

domstolen) refused leave to appeal.

In the meanwhile, the applicant had requested that his property

be registered as a separate elk-hunting area under Section 33 of the

1987 Hunting Act (jaktlagen). His request was rejected by the County

Administrative Board of the County of Västerbotten on 22 May 1987 on

the ground that such a registration could not be made, as the

applicant's property formed part of a joint hunting area.

The applicant appealed to the National Environmental Board

(statens naturvårdsverk) which, in a decision of 7 August 1987, upheld

the decision of the County Administrative Board, again referring to the

fact that the applicant's property was part of a joint hunting area.

A fresh request from the applicant that his property be

registered as a separate elk-hunting area under Section 33 of the

Hunting Act was rejected by the County Administrative Board on 18 March

1988, and the National Environmental Board rejected the applicant's

appeal on 30 May 1988 . Both authorities based themselves on the same

ground as in their previous decisions.

In separate proceedings the applicant requested that his property

be excluded from the joint hunting area. This request was refused by

the County Administrative Board on 20 May 1987. The applicant's appeal

was rejected by the Administrative Court of Appeal (kammarrätten) of

Sundsvall on 15 February 1988, and the Supreme Administrative Court

(regeringsrätten) refused leave to appeal on 30 June 1988.

B.Relevant domestic law

The application involves two sets of legislation: the 1987

Hunting Act (jaktlagen) and the 1980 Act on Joint Hunting Areas (lagen

om jaktvårdsområden).

The Hunting Act (SFS 1987:259)

The Hunting Act entered into force on 1 January 1988.

The main principle in the Hunting Act (Section 10) is that the

person who owns a property has the right to hunt on the land.

The term "hunting right" has no legal definition. However, it

appears from Section 10, compared to Section 2, that the hunting right

inter alia comprises a right to hunt game; essentially it is a right

to the catching or killing of game. A general obligation to preserve

and protect game within one's property is connected with this right.

The right to hunt may only be exercised to the extent that

hunting is consistent with the necessity of game preservation. This is

a consequence of the principle expressed in Section 3, according to

which all game is protected unless that protection is neutralised by

provisions that allow hunting.

The Hunting Act also has provisions concerning game preservation

for which the land owner and the holder of the hunting right are

responsible (Section 4).

According to Section 33, subsection 1, elk-hunting (with the

exception of elk-calf-hunting) may only take place if the County

Administrative Board has given a licence, and within an area, which has

been registered by the Board as a licence area.

The main provision concerning licence areas is Section 33,

subsection 2, which reads:

(translation)

"A licence area shall be of such a size and general

character that it is suitable for elk-hunting. The County

Administrative Board may refuse to register an area as a

licence area or decide on deregistration, if the area does

not allow for the shooting of at least one fully-grown

animal each year."

The licence areas described above - "A-licence areas" -

correspond essentially to such elk-hunting areas as, according to the

legislation in force prior to 1 January 1988, were called "licence

areas". According to that legislation, smaller land areas, which did

not fulfil the prerequisites for a licence area, could be registered

for a "general elk allowance" which meant that one fully-grown animal

and one calf could be shot during a very short hunting season.

According to the Hunting Act, such "general areas" can be registered

as special licence areas allowing for one fully-grown animal or one

calf to be shot - "B-licence areas" - if there are special reasons

(Section 33, subsection 3).

According to the travaux préparatoires to Section 33, subsection

3 (JoU 1986/87:15), an essential prerequisite for the registration of

a B-licence area is that the holder of the hunting right has shown his

willingness to co-ordinate his hunting with that of his neighbours. The

Government have stated that generally, this implies that the owner of

a small land area, who is a member of a joint hunting area association,

can hardly have his land registered as a licence area of its own if he

decides to leave the association without valid reasons.

The decisions of the County Administrative Board with regard to

licence areas may be appealed against to the National Environmental

Board. No appeal lies against that Board's decisions in such matters

(Section 54).

The Act on Joint Hunting Areas (SFS 1980:894)

The Act on Joint Hunting Areas provides, as a general rule, that

for the purpose of promoting the preservation of game and the hunting

right holders' common interests through co-ordination of the game

preservation, two or more properties or pieces of properties may be

joined to one joint hunting area and that, where this is done, the

hunting right holders within this area will form an association to

administer the joint hunting area (Section 1).

According to Section 3, a person whose land is incorporated in

a joint hunting area is a member of the joint hunting area association.

The County Administrative Board decides on the establishment of

a joint hunting area upon an application from one of the property

owners concerned. For such an area to be formed, at least two thirds

of the owners, representing at least half of the total area must agree

(Section 7). Moreover, the area has to be suitable with regard to inter

alia the stock of game (Section 8). The Board also confirms the by-laws

of the association with regard to certain aspects (Section 4). One of

those aspects is the extent to which joint hunting is to take place

within the area (Section 21).

The County Administrative Board may decide to dissolve a joint

hunting area association under certain conditions (Section 26).

A specific property may be excluded from the joint hunting area

if, as a result of a change in its use or for other reasons, it has

lost its importance with regard to game preservation. The association

itself may decide to exclude the property if it agrees with the

property owner. Otherwise, the County Administrative Board decides the

issue (Section 29).

According to Section 32, subsection 1, a person entitled to hunt

within a joint hunting area, who acts in violation of the provisions

of the by-laws adopted by the general meeting (jaktstämma) of the joint

hunting area association, may be fined. The offence has to be reported

by a plaintiff, inter alia the association, in order for prosecution

to take place (Section 32, subsection 2).

Decisions made by the general meeting or the board of the

association may be appealed against to the County Administrative Board

by a member of the association affected by the decision (Section 33).

An appeal against the decisions of the County Administrative

Board may be lodged with the Administrative Court of Appeal (Section

34). The decisions of the Court may be appealed against to the Supreme

Administrative Court.

COMPLAINTS

The applicant complains that he has been refused the right to

hunt elk on his property and that he has not had access to a court in

regard of these hunting rights. He invokes Article 1 of Protocol No. 1

to the Convention and Article 6 of the Convention.

The applicant also complains that the hunting association, which

administers the joint hunting area, has affiliated him to the

Västerbotten County Hunting Association and the Swedish Hunting

Association. He invokes Article 11 of the Convention.

Finally the applicant refers to Article 17 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 January 1988 and registered

on 12 December 1988.

On 3 December 1990 the Commission decided to bring the

application to the notice of the respondent Government, inviting them

to submit written observations on the admissibility and merits of the

case.

The Government's observations were submitted on 14 March 1991.

The applicant's observations in reply were submitted on 1 September

1991.Legal aid under the Addendum to the Commission's Rules of

Procedure was granted to the applicant on 14 October 1991.

THE LAW

1.The applicant complains that he has been denied the right to hunt

elk on his property. He invokes Article 1 of Protocol No. 1 (P1-1) to

the Convention, which reads:

"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."

According to the case-law of the European Court of Human Rights,

Article 1 (Art. 1) in substance guarantees the right to property. It

comprises "three distinct rules": the first rule, set out in the first

sentence of the first paragraph, is of a general nature and enunciates

the principle of the peaceful enjoyment of property; the second rule,

in the second sentence of the first paragraph, covers deprivation of

possessions and subjects it to certain conditions; the third rule,

stated in the second paragraph, recognises that the Contracting States

are entitled, amongst other things, to control the use of property by

enforcing such laws as they deem necessary in the general interest.

However, these rules are not "distinct" in the sense of being

unconnected: the second and third rules are concerned with particular

instances of interference with the right to peaceful enjoyment of

property and should therefore be construed in the light of the general

principle enunciated in the first rule (Eur. Court H.R., Tre Traktörer

judgment of 7 July 1989, Series A no. 159, pp. 21-22, para. 54, with

further references).

The Commission finds that the applicant's right to peaceful

enjoyment of his possessions was interfered with when his property

became part of the joint hunting area against his wish. It considers,

however, that he has not been deprived of his property and that the

second sentence of the first paragraph is therefore not applicable in

the present case.

The Commission finds that the fact that the applicant's property

was included in the joint hunting area constitutes a measure of

controlling the use of property, to be considered under the second

paragraph of Article 1 (Art. 1), which recognises the right of the

Contracting States to enforce such laws as they deem necessary for

controlling the use of property in accordance with the general

interest. As this provision is to be construed in the light of the

general principle enunciated in the first sentence of the first

paragraph, there must exist 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 the protection of the individual's fundamental

rights, the authorities enjoy a wide margin of appreciation (Eur. Court

H.R., Allan Jacobsson judgment of 25 October 1989, Series A no. 163,

p. 17, para. 55, with further references).

In the present case, the creation of the joint hunting area was

aimed at promoting the game preservation and the hunting right holders'

common interests. The Commission considers this to be a legitimate aim

in the general interest. As regards the proportionality between the

interference with the applicant's property rights and the aim pursued,

the Commission notes that the applicant had the right to hunt within

the joint hunting area, including his own property, but that he was

obliged to co-ordinate his hunting with the other hunting right

holders. Furthermore, nothing in the case indicates that he would not

have hunting rights in relation to his property's share of th

he join

hunting area. Having regard to the wide margin of appreciation enjoyed

by the Contracting States, the Commission cannot find that the decision

to form a joint hunting area was disproportionate to the aim pursued.

It follows that this part of the application is manifestly ill-

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

Convention.

2.The applicant also complains that he has not had access to a

court in regard to his hunting rights. He invokes Article 6 (Art. 6),

which in the relevant part of its first paragraph 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. ..."

The Commission first notes that the decision to form the joint

hunting area and the decision not to exclude the applicant's property

from the hunting area were both taken by the County Administrative

Board. The decisions could be appealed against to the Administrative

Court of Appeal and subsequently to the Supreme Administrative Court,

which clearly are tribunals within the meaning of Article 6 (Art. 6)

of the Convention. As far as the complaint refers to these decisions,

it is thus manifestly ill-founded.

With regard to the complaint in relation to the applicant's

requests to have his property registered as a separate elk area under

Section 33 of the Hunting Act, the Government argue that no serious

dispute over the applicant's civil rights is raised and that the

complaint is therefore incompatible with the Convention. The applicant

states that there is no legal rule which would have made it impossible

to register his property as a separate elk-hunting area.

The Commission recalls the case-law of the European Court of

Human Rights according to which Article 6 para. 1 (Art. 6-1) extends

only to disputes ("contestations") over "civil rights and obligations"

which can be said, at least on arguable grounds, to be recognised under

domestic law; it does not in itself guarantee any particular content

for "civil rights and obligations" in the substantive law of the

Contracting States. Furthermore, the dispute must be genuine and of a

serious nature (cf. Eur. Court H.R., Pudas judgment of 27 October 1987,

Series A no. 125-A, pp. 13 and 14, paras. 30 and 31, with further

references).

The Commission notes that when the applicant requested his

property to be registered as an elk-hunting area under the 1987 Act,

the property was part of the joint hunting area formed under the 1980

Act and registered as such. The request could therefore not be granted

since recognition of the property as a separate elk-hunting area would

be inconsistent with its status as part of a joint hunting area. The

Commission notes in this regard that both the County Administrative

Board in its decisions of 22 May 1987 and 18 March 1988 and the

National Environmental Board in its decisions of 7 August 1987 and

30 May 1988 indicated as a reason for rejecting the applicant's request

the fact that his property was part of a joint hunting area. The

applicant has not referred to any particular grounds on the basis of

which he could nevertheless reasonably claim to be entitled to a

separate registration of his property in this regard.

In these circumstances the Commission is of the opinion that

there was no genuine and serious dispute concerning the applicant's

civil rights in regard to his request to have his property registered

as a separate elk-hunting area.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention and must be

rejected under Article 27 para. 2 (Art. 27-2).

3.The applicant also alleges that the hunting association, which

administers the joint hunting area, has, without his consent,

affiliated him to the Västerbotten County Hunting Association and the

Swedish Hunting Association. He invokes Article 11 (Art. 11) of the

Convention.

The Commission notes that the applicant has not shown that he

himself became a member of the two associations, but rather that the

association administering the joint hunting area decided to request

membership on its own behalf. However, the Commission does not find it

necessary to examine this question as the complaint is in any case

inadmissible for the following reasons.

The decision to join the two associations was taken by the

hunting association on 4 June 1984. According to Sections 33 and 34 of

the Act on Joint Hunting Areas such a decision could be appealed

against to the County Administrative Board and subsequently to the

Administrative Court of Appeal and to the Supreme Administrative Court.

As the applicant did not avail himself of this possibility it

follows that this complaint must be rejected in accordance with Article

27 para. 3 (Art. 27-3) of the Convention for non-compliance with the

requirement of exhaustion of domestic remedies under Article 26

(Art. 26) of the Convention.

4.The applicant's reference to Article 17 (Art. 17) of the

Convention does not raise any issue which the Commission has to

determine separately.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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J. v. SWEDEN

J. v. SWEDEN

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