AS TO THE ADMISSIBILITY OF

                      Application No. 13572/88

                      by Tage ÖSTERGREN and others

                      against Sweden

        The European Commission of Human Rights sitting in private

on 1 March 1991, the following members being present:

             MM.  C. A. NØRGAARD, President

                  S. TRECHSEL

                  F. ERMACORA

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J. C. SOYER

                  H. DANELIUS

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             MM.  L. LOUCAIDES

                  J.-C. GEUS

                  M.P. PELLONPÄÄ

             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 20 October 1984

by Tage Östergren and others against Sweden and registered on 28

January 1988 under file No. 13572/88;

        Having regard to the Government's written observations of

18 April 1990 and the applicants' observations in reply of 1 July

1990;

        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 facts, as they appear from the parties' submissions, may

be summarised as follows:

        The applicants are three members of the Sami community in

northern Sweden who are reindeer owners and herders.  The first

applicant, Tage Östergren, was born in 1931, the second applicant, Per

Martin Israelsson, in 1959, and the third applicant, Tomas Gunnar

Stångberg, in 1952.  They are all resident in Tärnaby.

        The applicants are represented before the Commission by Tomas

Cramér, a Swedish lawyer.

        Under Swedish law, a Sami village (sameby) is a special unit

having a territory of its own where reindeer grazing rights as well as

hunting and fishing rights are in principle reserved for the members

of the village.  The legal rules are laid down in the 1971 Reindeer

Herding Act (rennäringslagen) which replaced an older Act of 1928 and

which also defines who is to be regarded as a member of a Sami village.

        The applicants claim that they are holders of hunting and

fishing rights by reason of immemorial usage (urminnes hävd).  They

also consider themselves to be members of the Vapsten Sami village in

whose territory their forefathers have lived for many generations.

However, their membership was not accepted, and by letter of 1

September 1982 they were informed by the Agricultural Committee

(lantbruksnämnden) of the County of Västerbotten that they had no land

rights in the area of the Vapsten Sami village.

        Subsequently the applicants were prosecuted before the

Lycksele District Court (tingsrätt) for letting their reindeer graze

on the land of the Sami village in 1981 and 1982.  The first applicant

was also prosecuted for unlawful elk hunting on that land in 1981 and

1982.  The first applicant admitted that he had shot the elks at issue.

        The applicants based their defence on their claim to be

entitled to hunt by right of immemorial usage.  They were assisted by a

lawyer, Stig Renström, who had been appointed ex officio to defend

them.  They wished to have Mr.  Renström replaced by Mr.  Cramér, but

this was refused by the Court.  They did, however, instruct Mr.  Cramér

also to assist them in the court proceedings.

        On 8 June 1983 the applicants were convicted on all charges by

the District Court.  The first applicant was sentenced to one month's

imprisonment for unlawful hunting which had occurred after he had

been informed by the Agricultural Committee on 1 September 1982 that

he had no hunting rights in the village.  No sanction was imposed for

the hunting which had taken place before that date or for the reindeer

grazing.  Nor was any sanction imposed on the second and the third

applicants.

        The applicants, through Mr.  Renström, as well as the public

prosecutor appealed to the Court of Appeal for Northern Norrland

(hovrätten för Övre Norrland).  Mr.  Renström informed the Court of

Appeal that the applicants would not call any witnesses.  However,

Mr.  Cramér asked for the hearing of two witnesses, an expert on Sami

genealogy and an expert on Sami migration, on the applicants' behalf,

but the Court refused to call these witnesses on 25 January 1984 on

the ground that the proposed evidence was without significance in the

case.

        At the same time the Court of Appeal considered a request from

the applicants that Mr.  Renström should be replaced by Mr.  Cramér as

official defence counsel.  Mr.  Renström asked that his appointment as

official counsel be revoked.

        The Court of Appeal, in its decision of 25 January 1984, found

no indication that Mr.  Renström had not fulfilled his task as counsel.

Nor was there any other valid reason for permitting a change of official

defence counsel.  The applicants' request was therefore refused.  In

view of the fact that the applicants had appointed Mr.  Cramér as their

counsel, the Court of Appeal found that Mr.  Renström should be

relieved of his duty as offical defence counsel.  Consequently, the

Court of Appeal dismissed him as official counsel.

        The applicants appealed against the decision not to appoint

Mr.  Cramér as official defence counsel.  On 31 August 1984, the

Supreme Court (Högsta domstolen) refused leave to appeal.

        The applicants then lodged a fresh request with the Court of

Appeal that Mr.  Cramér be appointed official defence counsel and that the

two witnesses be heard.  On 21 November 1984 (one week before the

hearing) the Court rejected this request, finding no reason to depart

from its previous ruling.  On 19 November 1985, the Supreme Court

refused leave to appeal against this decision.

        At the hearing before the Court of Appeal on 28 November 1984,

the public prosecutor called as a witness a director of the

Agricultural Committee, but the applicants were allegedly unable to

cross-examine him, because they were not assisted by counsel.

        In its judgment of 19 December 1984, the Court of Appeal

considered that the applicants, until they received the letter from the

Agricultural Committee of 1 September 1982, had had a valid excuse for

believing that they were members of the Sami village.  On this ground,

the applicants were acquitted of the charges against them, with the

exception that the first applicant's conviction and sentence for unlawful

hunting after 1 September 1982 were upheld.  It appears from the

judgment of the Court of Appeal that the applicants were able to

explain the legal grounds on which they based their claim to have

hunting rights in the area.

        All three applicants, represented by Mr.  Cramér, appealed to the

Supreme Court.  They submitted that, although they had been totally or

partially acquitted, the Court of Appeal had wrongly considered them not

to be members of the Sami village.  The Supreme Court, in a decision of

19 November 1985, dismissed their appeals insofar as they had been

acquitted, since it was not permissible to appeal only against the

reasons given for the acquittal.  In a second decision of the same date,

the Supreme Court refused leave to appeal against the first applicant's

conviction and sentence.

COMPLAINTS

1.      The applicants complain that the denial of defence counsel, of

the opportunity to present witnesses and of the possibility to

cross-examine the witness for the prosecution at the hearing before the

Court of Appeal constituted degrading treatment contrary to Article 3 of

the Convention.

2.      The applicants complain under Article 6 para. 1 of the Convention

that they did not receive a fair hearing by an impartial tribunal in the

determination of their civil rights to use the land in the Vapsten Sami

village.

        The applicants complain that they were denied defence counsel,

as well as the opportunity to present witnesses and to cross-examine

the prosecution witness at the hearing before the Court of Appeal,

contrary to the provisions of Article 6 para. 3 of the Convention.

3.      The applicants also complain that the effect of the Court of

Appeal's decision was to enforce against them a closed shop of

reindeer farming under the Sami village system contrary to Article 11

of the Convention.  They find it to be a violation of that Article

when membership of the Sami village is considered to override their

traditional and longstanding rights.

4.      The applicants complain further that they have been

unjustly deprived of their customary rights to reindeer breeding,

hunting and fishing, contrary to Article 1 of Protocol No. 1 to the

Convention.

5.      The applicants complain that the effect of the finding that

the 1971 Act prevails over their customary rights in Vapsten is to

unjustly deny them, by means of an effective policy of forced

dislocation, the right to liberty of movement and freedom to choose

residence, contrary to Article 2 of Protocol No. 4 to the Convention.

6.      The applicants complain further that they have no effective

remedy in Swedish law for the above violations of their rights,

contrary to Article 13 of the Convention.

7.      The applicants invoke Article 14 of the Convention in

conjunction with all the above complaints, and submit that they are

the object of discrimination on the grounds of their Sami race and of

their status as members of a poor national minority.

8.      They further invoke Articles 17 and 18 of the Convention in

connection with the above complaints on the ground that Sweden has

acted in bad faith in the exercise of its Sami policy.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 20 October 1984 and

registered on 28 January 1988.

        On 5 February 1990 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application limited to the complaint by Mr. Östergren under Article 6

para. 3 (c) of the Convention.

        The Government's observations were received by letter dated

18 April 1990 and the first applicant's observations, after an

extension of the time-limit, were dated 1 July 1990.

THE LAW

1.      The applicants complain that they did not receive a fair

hearing contrary to Article 6 para. 1 (Art. 6-1) of the Convention.

They further complain that they were denied defence counsel with the

effect of not being able to cross-examine a witness at the hearing

before the Court of Appeal.  They also allege that they had no

opportunity to present witnesses at that hearing.  They allege

violations of Article 6 para. 3 (Art. 6-3) of the Convention.

        Article 6 para. 1 (Art. 6-1) first sentence provides:

        "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."

        Article 6 para. 3 (c) and (d) (Art. 6-3-c, 6-3-d) provides:

        "Everyone charged with a criminal offence has the

        following minimum rights:

        ...

        (c) to defend himself in person or through legal

        assistance of his own choosing or, if he has not

        sufficient means to pay for legal assistance, to

        be given it free when the interests of justice so

        require;

        (d) to examine or have examined witnesses against him

        and to obtain the attendance and examination of witnesses

        on his behalf under the same conditions as witnesses

        against him ..."

2.      The Commission recalls that the second and third applicants

were acquitted by the Court of Appeal.  In such circumstances, the

Commission considers that any defects which may have existed in the

course of the proceedings against them must be regarded as having been

rectified by the acquittal (cf.  No. 8083/77, Dec. 13.3.80, D.R. 19 p.

223).  It follows that these applicants can no longer claim to be

"victims" of a violation of the Convention within the meaning of

Article 25 (Art. 25) and their complaints are therefore manifestly

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

the Convention.

3.      As regards the first applicant's complaint that he did not

receive a fair hearing the Commission recalls that, in accordance with

Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the

Convention.  In particular, the Commission is not competent to deal

with an application alleging that errors of law or fact have been

committed by domestic courts, except where it considers that such

errors might have involved a possible violation of any of the rights

and freedoms set out in the Convention.  On this point the Commission

refers to its established case-law (see e.g.  No. 7987/77, Dec.

13.12.79, D.R. 18 p. 31).

4.      The first applicant complains under Article 6 para. 3 (d)

(Art. 6-3-d). This provision does not require the attendance and

examination of every witness on the accused's behalf.  It leaves it to

the competent national authorities to decide upon the relevance of

proposed evidence insofar as this is compatible with the concept of a

fair trial which is the predominant element in the whole of Article 6

(Art. 6) (cf.  Bönisch v.  Austria, Comm.  Report 12.3.84, para. 94,

Eur.  Court H.R., Series A no. 92, p. 22). In the present case, the

Court of Appeal found that the proposed evidence was without

significance in the case.  The Commission finds that this assessment

was not arbitrary or unreasonable.  In these circumstances the refusal

of the Court of Appeal to hear the two new witnesses proposed by the

first applicant cannot be considered to be in conflict with Article 6

para. 3 (d) (Art. 6-3-d).

        Consequently, an examination of the first applicant's above

complaints discloses no appearance of a violation of Article 6 paras.

1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention.  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.

5.      The first applicant further complains under Article 6 para. 3

(c) (Art. 6-3-c) of the Convention that he was not given free legal

assistance before the Court of Appeal.  He submits that the judgment

in the present case was of considerable importance since it resolved a

conflict of civil law between, on the one hand, the applicants' claim

based on immemorial usage and, on the other hand, the impact of the

1971 Act on that right.  In fact, the result of the judgment was in

the applicant's view a life sentence which deprived him of his right

to practise his culture.

        The Government argue that the first applicant's right to

defend himself in person was observed by the Court of Appeal and he

also had the right to be represented by a defence counsel.  The

question whether free legal assistance was required is, in the

Government's view, primarily a question for the domestic courts to

determine.  The District Court had appointed a public defence counsel,

but as the applicants appointed a private defence counsel the Court

should under Swedish law revoke the appointment of the public defence

counsel.  This is what happened before the Court of Appeal.  A change of

the public defence counsel can only be accepted if there are valid

reasons.  The rules for a change of counsel cannot be circumvented by

the defendant's choice of a private defence counsel.

        The Government observe that the District Court and the Court

of Appeal both found that the applicants were in need of a defence

counsel considering the character of the matter at stake.  The District

Court also took the view that such assistance should be given them

freely in accordance with the Swedish rules concerning the right to a

public defence counsel.  However, when the question arose in the Court

of Appeal whether the public defence counsel already appointed should

be replaced, this Court found that there was nothing in his way of

conducting the applicants' defence that could justify a revocation of

his appointment.  In this context it should be recalled that the

witnesses which the applicants wished to have heard were not admitted

as evidence since the facts about which they were supposed to give

evidence were of no significance to the case in the Court's opinion.

The fact that Mr.  Renström had not requested the hearing of these

witnesses was one of the main reasons for the applicants to request

his replacement.  Thus, the reason why the Court chose to revoke Mr.

Renström's appointment was only the fact that the applicants had

appointed Mr.  Cramér as their private counsel and consequently that

there was no longer a need for a public defence counsel.  In other

words the Court of Appeal was of the opinion that the interests of

justice did not require that free legal assistance was given to the

applicants any longer.

        The Government consider that this assessment by the Swedish

courts must clearly, in view of the circumstances in this particular

case, be considered as falling within the margin of appreciation

afforded to a Contracting State when examining a question of this

character.  The first applicant's case is concerned mainly with unlawful

hunting.  Although of some complexity in view of the objections raised,

it was not of such a character that it can be said that the interests

of justice necessarily required that he be given an unconditional right

under the Convention to free legal assistance.  Such a right could of

course be claimed in other more serious cases, e.g. concerning murder,

rape and other serious crimes where the suspect risks a long term

prison sentence, but not in the present case.

        In addition, the Government point out that the fact that Mr.

Östergren and the other applicants lacked legal assistance when the

hearing before the Court of Appeal was about to take place was

primarily a result of their own conduct.  In their attempt to have Mr.

Renström replaced by Mr.  Cramér as their public defence counsel they

had to take into account that the Court might refuse postponement of

the hearing and not grant their request.  Mr. Östergren as well as the

other applicants are thus themselves to a great extent responsible for

the situation of which they complain before the Commission.

        The Government conclude that there is no appearance of a

violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.

        The Commission first recalls that the right to free legal

assistance guaranteed by Article 6 para. 3 (c) (Art. 6-3-c) is subject

to two conditions; that the individual concerned does not have

sufficient means to pay for legal assistance and that "the interests

of justice" require it.  It is not in dispute that the first condition

was satisfied in the present case.  The only issue is whether "the

interests of justice" required that the applicants be granted legal

aid and counsel appointed ex officio by the court in the proceedings

before the Court of Appeal.

        In the Monnell and Morris judgment (Eur.  Court H.R., Monnell

and Morris judgment of 2 March 1987, Series A no. 115, p. 25, para.

67) the European Court stated as follows:

        "The interests of justice cannot ... be taken to require

        an automatic grant of legal aid whenever a convicted

        person, with no objective likelihood of success, wishes to

        appeal after having received a fair trial at first instance

        in accordance with Article 6 (Art. 6)."

        When determining whether "the interests of justice" requires

legal representation, the Commission must examine each case on its

facts.  While the likelihood of success and the availability of legal

assistance at other stages of the proceedings are significant factors

to be taken into account, they are not the sole criteria.  Other

factors in assessing the requirements of "the interests of justice"

include the importance of what is at stake for the applicant, in

particular the severity of the sentence, as well as the personal

ability of the applicant and the nature of the proceedings, e.g.

complexity or importance of the issues or procedures involved (cf.

Eur.  Court H.R., Artico judgment of 13 May 1980, Series A no. 37 and

Pakelli judgment of 25 April 1983, Series A no. 64).

        As regards the likelihood of success the Commission recalls

that the main legal issue in the case was whether the first applicant,

who had admitted having shot the elks at issue, had had the right to

hunt in the area.  According to the Reindeer Herding Act, his hunting

rights depended on whether he was a member of the Vapsten Sami

village.  In September 1982, the Agricultural Committee had informed

the first applicant that he had no hunting rights and the applicant's

sentence only related to hunting which had taken place after the

applicant had received that information.  In these circumstances, and

notwithstanding the fact that the applicant disputed the correctness

of the Agricultural Committee's statement, the applicant's appeal

would not seem to have been likely to succeed.

        As regards the availability of legal assistance at other

stages of the proceedings, the Commission recalls that the applicant

had a defence counsel officially appointed by the court in the

proceedings before the District Court.  In addition, the applicant was

also assisted, at his own request, by Mr.  Cramér in those

proceedings.

        As regards the severity of the sentence, the Commission notes

that the District Court's sentence was one month's imprisonment.  There

was no reason to believe that, in case of conviction for one or more

of the offences charged, the sentence in the Court of Appeal would be

more than a term of imprisonment of short duration.  In reality, the

sentence of one month's imprisonment was upheld by the Court of

Appeal.

        As regards the first applicant's personal ability to defend

himself, the Court of Appeal's judgment shows that he, together with

the second and the third applicants, was apparently able to explain to

the court the legal grounds upon which they based their claim to have

hunting rights in the area.

        As regards finally the nature of the proceedings, the

Commission notes that, whereas the question as to whether the first

applicant had hunting rights under the Reindeer Hunting Act would not

seem to have been of a particularly complex nature, the first

applicant's defence which was based on a claim to have historical

rights irrespective of that legislation did raise certain complicated

issues.

        Although the proceedings before the Court of Appeal also

concerned certain other offences, the Commission does not find it

necessary to take them into account, since in respect of these

offences no sentence had been imposed by the District Court and a full

acquittal was pronounced by the Court of Appeal.

        In considering whether the applicant was entitled to legal

assistance under Article 6 para. 3 (c) (Art. 6-3-c), the Commission

further notes that that provision cannot be interpreted as securing a

right to change the official counsel once appointed (No. 6946/75, Dec.

6.7.76, D.R. 6 p. 114).

        In the Granger case (Eur.  Court H.R., judgment 28 March 1990,

Series A no. 174), the European Court of Human Rights found that the

refusal of legal aid for a criminal appeal violated Article 6 para. 3

(c) (Art. 6-3-c) of the Convention.  However, in that case the

applicant had been sentenced to five years' imprisonment, the

Solicitor General, who conducted the prosecution, had made lengthy

speeches before the court which the applicant had not been able fully

to comprehend and he would not have been able to comment on the

difficult legal points which were at issue.

        In the present case, Mr.  Renström had been appointed official

counsel and it was the first applicant's own decision to appoint

Mr.  Cramér his private counsel which was the reason for the Court of

Appeal to dismiss Mr.  Renström.  The fact that in the proceedings

before the Court of Appeal the first applicant did not have the

services of a lawyer could therefore to a considerable degree be

attributed to his own action.  In view of this fact and having regard

to the applicant's ability to present the case himself and the short

duration of the sentence, this case can be distinguished from the

Granger case.

        In the particular circumstances referred to above, the

Commission finds the complaint under Article 6 para. 3 (c)

(Art. 6-3-c) of the Convention to be manifestly ill-founded within the

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

6.      The applicants also complain that the result of the judgment

of the Court of Appeal was to enforce against them a closed shop

contrary to Article 11 (Art. 11) of the Convention.

        Article 11 para. 1 (Art. 11-1) provides:

        "Everyone has the right to freedom of peaceful assembly

        and to freedom of association with others, including

        the right to form and join trade unions for the protection

        of his interests."

        The Commission observes that the Sami village is not a private

organisation but rather an institution created by legislation and the

1971 Reindeer Herding Act regulates membership of the Sami village.

Such institutions of public law cannot be considered as associations

within the meaning of Article 11 (Art. 11) of the Convention (No. 6094/73,

Dec. 6.7.77, D.R. 9 p. 5, and Eur.  Court H.R., Le Compte, Van Leuven

and De Meyere judgment of 23 June 1981, Series A No. 43, pp. 26-27,

paras. 64-65).

        It follows that this complaint is manifestly ill-founded

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

7.      The applicants complain that they were deprived of property in

violation of Article 1 of Protocol No. 1 (P1-1) to the Convention as a

result of the proceedings ending in the Supreme Court's decision of 19

November 1985.

        Article 1 of Protocol No. 1 (P1-1) protects the right to the

peaceful enjoyment of possessions and provides that no one shall be

deprived of his possessions except under certain conditions.

        However, the Commission considers that the applicants were not

deprived of any property right as a result of the proceedings which

are the object of the present case.  If they were at all deprived of

any property this deprivation took place, at the latest, when the 1971

Reindeer Herding Act entered into force on 1 July 1971.  It is

therefore from that date that the time limit of six months laid down

in Article 26 (Art. 26) for lodging an application with the Commission

must be calculated.  Consequently, since the present application was

introduced on 20 October 1984, this part of the application is out of

time and must be rejected under Articles 26 (Art. 26) and 27 para. 3

(Art. 27-3) of the Convention.

8.      The applicants also allege violations of Articles 3, 13, 14,

17 and 18 (Art. 3, 13, 14, 17, 18) of the Convention and of

Article 2 of Protocol No. 4 (P4-2) to the Convention.

        The Commission has examined these complaints as they have been

submitted by the applicants.  However, they do not disclose any

appearance of violations of the rights and freedoms invoked by the

applicants.

        It follows that these parts of the application are again

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

        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)