AS TO THE ADMISSIBILITY OF

Application No. 11763/85

by Sten BANÉR

against Sweden

        The European Commission of Human Rights sitting in private on

9 March 1989, the following members being present:

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     F. ERMACORA

                     G. SPERDUTI

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     H. VANDENBERGHE

                M.   F. MARTINEZ

                Mrs.  J. LIDDY

                Mr.  L. LOUCAIDES

                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 10 September

1985 by Sten BANER against Sweden and registered on 12 September 1985

under file No. 11763/85;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having regard to the observations submitted by the Government

on 14 October 1987 and 28 March 1988 and the applicant's observations

of 8 January 1988 and 4 January 1989 as well as the submissions of the

parties at the hearing held on 9 March 1989;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts of the case, as submitted by the parties, may be

summarised as follows.

        The applicant is a Swedish citizen, born in 1920.  He is an

estate owner.  He is represented before the Commission by

Mr.  Michaël Hernmarck, a lawyer practising at Danderyd, outside

Stockholm.

        The applicant is the owner of an estate called the Sjöö

Estate.  It is an overall name for an agricultural estate which

consists of several registered properties.

        The properties are located in the municipality of Enköping in

the county of Uppsala and cover an area of 1,000 hectares.  The estate

also includes water areas which cover some 600 hectares of the lake of

Mälaren.  Since 1964 the water areas have no longer been leased to

professional fishermen.  At that time two tenants earned their living

on fishing in the waters of the Sjöö Estate.  No fishing licences have

been sold to the public by the applicant.  Such fishing as has taken

place has been for household purposes by the holder of the Estate.

In addition, the employees of the Estate are allowed to fish for

household purposes without payment of compensation.  The fish, which

can be caught in the waters with hand-held tackle, consist principally

of pike, pike-perch and perch.  White fish, burbot and eel are also

found.

        On 1 May 1985 new legislation entered into force which made

fishing with hand-held tackle (handredskapsfiske) licence-free for

everybody.  Thereby the applicant's exclusive right to such fishing in

his waters has been transformed so that everybody is now entitled to

fish with hand-held tackle in these waters.  The applicant states

that, as a result, the number of fishermen increased significantly.

The people who visit these waters in pleasure boats or go ashore on

the beaches have with them, and use, casting rods and the like.  The

number of fishermen during the summer has increased considerably

compared to the situation before 1 May 1985.  There has also been an

increase in illegal fishing.  Previously, some people used to "poach"

using hand-held tackle when they were visiting in order to sunbathe or

swim or for other recreational purposes.  Now, when this type of

fishing has been made legal, nets are also being laid along the side

of boats, especially when people stay overnight.  The fishing waters

are attractively located some sixty minutes by car from the centre of

Stockholm and close to other towns which surround the lake of Mälaren.

These waters are now subject to great pressure from sporting

fishermen.

        The 1985 legislation involved in essence an amendment of the

Fishing Rights Act (lagen om rätt till fiske) and a new Act on

Compensation for Interferences with Private Fishing Rights (lagen om

ersättning för intrång i enskild fiskerätt; hereinafter referred to as

"the Compensation Act").

        The amendment of the Fishing Rights Act consisted essentially

of the introduction of a Section 20 a which reads as follows :

        (Swedish)

        "Vid kusten av Östhammars kommun i Uppsala län, Stockholms

        län, Södermanlands län, Östergötlands län, Kalmar län,

        Gotlands län och Blekinge län samt i Vänern, Vättern,

        Mälaren, Hjälmaren och Storsjön i Jämtland får svenska

        medborgare, utöver vad som följer av 7-11 och 14-20 §§, fiska

        i enskilt vatten med metspö, kastspö, pilk och liknande

        handredskap som är utrustat med lina och krok.  Redskapet får

        dock inte ha mer än tio krokar.  Ej heller får fiskemetoden

        som sådan kräva användning av båt.

        (English translation)

        "Along the coast of the municipality of Östhammar of the

        county of Uppsala, the county of Stockholm, the county of

        Östergötland, the county of Kalmar, the county of Gotland,

        the county of Blekinge and in the lakes of Vänern, Vättern,

        Mälaren, Hjälmaren and Storsjön of Jämtland, Swedish citizens

        may, subject to the provisions of Sections 7-11 and 14-20,

        fish in private waters with rod, casting rod, jig and similar

        hand-held tackle equipped with line and hook.  The tackle may

        however not include more than ten hooks.  The fishing method

        may also not require the use of a boat."

        Section 1 para. 1 of the Compensation Act provides as follows:

        (Swedish)

        "Medför bestämmelserna om handredskapsfiske enligt 20 a §

        lagen (1950:596) om rätt till fiske ett inkomstbortfall för

        den som är innehavare av enskild fiskerätt, har han enligt

        denna lag rätt till ersättning av staten för

        inkomstbortfallet."

        (English translation)

        "If the provisions on fishing with hand-held tackle under

        Section 20 a of the Fishing Rights Act involve a loss of

        income for the proprietor of a private fishing right he is

        entitled under this Act to compensation from the State for

        the loss of income."

        A transitional provision to the Compensation Act provides

that income received as a result of measures taken after 1 March 1984

shall not be the basis for the calculation of compensation under the

Act.

        In the Government Bill 1984/85:107 (pp. 42-43), the Minister of

Agriculture made inter alia the following statements:

        The purpose of making fishing with hand-held tackle free was to

meet the public's interest in leisure activities.  In most cases no

damage would be done to the fishing rights owner if fishing with

hand-held tackle was made free.  However, in some special cases there

ought to be a possibility for the fishing rights owner to receive

compensation.  For a right to compensation it ought to be required that

the interference was somewhat substantial.  Everyone must be prepared

to accept a certain interference in the public interest without

compensation.  Since free fishing with hand-held tackle would not

affect the use of the water for other purposes than fishing the

compensation rule could be restricted to cover interferences which

resulted in ongoing use of fishing in private waters being rendered

considerably more difficult.  Compensation should not be paid for other

interferences than in ongoing use of water for fishing.  If the waters

had not previously been used for fishing there could be no

compensation.  Expectation values should thus not be compensated.  The

compensation should be assessed on the basis of actual loss of income

suffered by the individual fishing rights owner as a result of the

free fishing with hand-held tackle.  For a right to compensation it

ought to be required that the damage did not appear to be

insignificant seen in absolute figures.

        Before the Government's proposal was submitted to Parliament,

it was examined by the Law Council (lagrådet), composed of two judges

of the Supreme Court (högsta domstolen) and one judge of the Supreme

Administrative Court (regeringsrätten).  The Law Council found,

although proposing a certain increase in the right to compensation,

that the proposed legislation did not violate the Swedish

Constitution.

        When the proposed legislation was examined in Parliament the

Standing Committee on Agriculture (jordbruksutskottet) made the

following statement (JoU 1984/85:20, page 15):

"The Committee supports the statement made by the Minister of

Agriculture that this is not a question of such transfer of

property which is covered by the provision in Chapter 2

Section 18 of the Instrument of Government on expropriation.

However, the Committee also shares the view of the Minister of

Agriculture that it is important that the question of

compensation is given a satisfactory solution with regard to

the protection of the individual at which the said

constitutional provision is aiming.  For that reason those

private fishing rights owners who suffer financial losses

as a result of the free fishing with hand-held tackle, should

be entitled to compensation for such losses in accordance with

grounds laid down in the law.  It is reasonable that this right

to compensation covers every personal financial loss which the

fishing rights owners may suffer."

        Claims for compensation should be submitted to the National

Board of Fisheries (fiskeristyrelsen) before the end of 1989.  The

National Board of Fisheries decides on issues of compensation.  No

appeal lies against this decision.  However, a property owner who is

not satisfied with a decision of the National Board of Fisheries can

institute proceedings before the Real Estate Court

(fastighetsdomstolen).

        The applicant states that, since he has not suffered any

financial loss in the sense that he has lost income as a result of

the new legislation, he has no right to compensation under the

Compensation Act and he has thus not submitted any claim for such

compensation.

        The background and reasons for the 1985 legislation are

described as follows by the Government (with reference to the

Government Bill 1984/85:107):

        The reform constitutes a part of the public recreation policy.

From the social aspect it is important for people to have

opportunities for relaxation and activities in their leisure time.

This need increases as leisure time increases and daily work requires

less physical effort.  There are numerous obstacles limiting

opportunities for utilising leisure time.  Many leisure activities

require expensive equipment.  One's own holiday cottage, a craft or

caravan and access to a car are often required to get to recreation

areas.  People living in large towns often live far from unexploited

countryside and the recreation facilities offered thereby.

Furthermore, many people who have moved to the towns previously had a

natural and spontaneous contact with unspoiled nature which is now

lost.  Recreational fishing means a great deal to these people.  All

three of the big-city areas in Sweden are located close to the sea

coast.  Two of them also offer suitable lakes in the immediate vicinity

of residential areas.  Distance therefore does not have to be a problem

for those who wish to go fishing in their leisure time.  However,

recreational fishing requires access to suitable fishing waters in the

big-city areas.  In the Gothenburg and Malmö areas it was possible for

everyone to fish on the coast, but in the Stockholm area this was

prevented by the fishery legislation which meant that fishing near the

beaches and in most of the archipelago area was an exclusive right of

the owner of the fishing rights.

        Furthermore, an important task for society is to make a wide

range of leisure activities available to all.  This is particularly

important since the opportunity of leisure activities and exercise is

of great significance to health, adjustment and well-being in society.

Recreational fishing offers unique opportunities for contact with

nature, exercise and relaxation and it is open to anyone.  It activates

people from all groups of society.  The social bias often evident in

other leisure activities does not exist in recreational fishing.  It is

also an important supplement to other leisure activities such as

boating, hiking, holiday trips and camping.  Recreational fishing can

also provide an added source of livelihood, enabling settling in

sparsely populated areas where other sources of livelihood are

limited.  An important task for society is to contribute to offering

the public a rich and varied range of leisure opportunities.

Experience shows that active recreational fishing plays an important

part in the social recreation policy.

        In the Bill submitted to Parliament, in which the reform was

proposed, the Minister of Agriculture stated the following:

"It is unusually difficult to obtain any clear picture of the

current legislation on fishing rights.  This is evident from

the summary of the system of regulations given in the

memorandum.  Regulations which at the time they were issued may

have seemed reasonable and fair, now appear difficult to

understand, complicated and sometimes illogical.  One of the

most striking examples of this is that on certain stretches of

the coast the public may fish freely with nets but may not use

hand-held tackle.  The provisions of the Fishing Act are

supplemented by provisions concerning conservation and

operation of fishing issued by the Government in the Ordinance

on Fishery and other provisions notified by the National Board

of Fisheries or by the County Administrative Boards.  This

accumulation of regulations is extremely extensive and

contains such a multitude of detail that it is difficult for

an individual to acquire adequate information as to where,

when and how he may fish.  The fact that the regulations are

often considered complicated or are misunderstood entails an

apparent risk of even regulations which are well-motivated

from the conservation aspect being disregarded.

Even today the owners of fishing rights do not make full claim

to their rights, but allow the public to fish with hand-held

tackle and even with nets along large parts of the coastal

stretches now under discussion.

In the light of this I look upon the proposal to increase the

public's opportunities to fish freely with hand-held tackle

as a natural and essential step towards simplification.  If it

is implemented, this will allow fishing with hand-held tackle

in both public and private waters along all coasts and in the

large lakes.  The only limitation remaining will be the

exclusion of salmon fishing along the coast of Norrland (from

Östhammar municipality to the Finnish border).  As long as only

hand-held tackle are used, the reform will relieve both the

public and the authorities of keeping track of where the

boundary lies between public and private waters.  Besides the

other reasons favouring the reform, I also consider this

simplification to have a considerable intrinsic value.

As appears from what I have already submitted, Parliament on

two previous occasions, by requesting a proposal from the

Government, has already reached a decision in principle to

allow fishing with hand-held tackle to be free.  The task of

the Government now, therefore, is to draw up the legislative

proposals required to implement the reform.  Replacing this

reform by forming fishery conservation areas within all

private waters in the areas under discussion is, for several

reasons, not a realistic alternative.  Fishery conservation

areas cannot simply replace free fishing with hand-held

tackle.  The formation of such conservation areas aims

primarily at improving fishery conservation and not at giving

the public free access to fishing.  Furthermore, in my opinion,

fishery conservation areas formed compulsorily, as they often

would be, would constitute a far greater interference with the

individual's rights than the free fishing with hand-held

tackle.  Voluntary formation of fishery conservation areas

which can give the public access to fishing-grounds to the

same extent as free fishing with hand-held tackle cannot be

expected within a reasonable time.

However, the reform should not entail any new obstacles to the

formation of fishery conservation areas."

        The Standing Committee on Agriculture made the following

statement (JoU 1984/85:26 p. 10):

        "The Government's proposal... means that Parliament's

        wish, expressed two years ago, is now satisfied.  An important

        recreational political reform is implemented since fishing

        with hand-held tackle, in the future, will be free along all

        coasts of Sweden and in the large lakes...  It is a strong

        public interest to make possible, in this way, an increased

        offer of leisure activities to the population in for instance

        the metropolitan areas...  The Committee also finds it

        valuable that the fishing legislation is considerably

        simplified by the proposal."

        The applicant has submitted an estimate of the financial

losses he has suffered as a result of the 1985 reform.  On the basis of

an income of 35 SEK per hectare fishing water area the applicant has

calculated that his loss per 1 April 1985 with a discount rate of 4%,

capitalised for all time, amounts to 525,000 SEK.

        Chapter 2 Section 18 of the Instrument of Government

(regeringsformen) reads:

        (Swedish)

        "Varje medborgare vilkens egendom tages i anspråk genom

        expropriation eller annat sådant förfogande skall vara

        tillförsäkrad ersättning för förlusten enligt grunder som

        bestämmes i lag."

        (English translation)

        "Every citizen whose property is taken through expropriation

        or other similar use shall be entitled to compensation for the

        loss according to rules laid down by law."

        Chapter 11 Section 14 of the Instrument of Government reads:

        (Swedish)

        "Finner domstol eller annat offentligt organ att en föreskrift

        står i strid med bestämmelse i grundlag eller annan överordnad

        författning eller att stadgad ordning i något väsentligt

        hänseende har åsidosatts vid dess tillkomst, får föreskriften

        icke tillämpas.  Har riksdagen eller regeringen beslutat

        föreskriften, skall tillämpning dock underlåtas endast om

        felet är uppenbart."

        (English translation)

        "If a court or other public authority finds that a regulation

        is in conflict with a provision in the Constitution or other

        superior legislation or that the prescribed procedure in some

        significant respect has not been observed when it was adopted,

        the regulation may not be applied.  However, if Parliament or

        the Government have issued the regulation, it shall be

        applied unless the irregularity is manifest."

COMPLAINTS

1.      The applicant complains that, as a result of the 1985

legislation concerning the right of the public to fish with hand-held

tackle in his waters without the payment of compensation, there has

been a breach of Article 1 of Protocol No. 1 to the Convention.  The

applicant submits that the interference with his right of property

must be characterised as a "deprivation of possessions" and not as

"control of use" of his property.  The applicant further submits that,

as he receives no compensation for this deprivation of possessions,

there is no reasonable proportion between the public interest pursued

and the protection of his fundamental rights.

2.      The applicant also submits that there has been a violation

of Article 14 of the Convention taken together with Article 1 of

Protocol No. 1 in that equal persons are treated unequally as regards

compensation under the new Act.  The interference, which the

licence-free fishing involves for the fishing right owners, is of the

same character and has the same effect for all of them.  They should

therefore be treated equally as regards compensation for their losses.

However, since only one category of fishing right owners can obtain

compensation, while other categories, to which the applicant belongs,

are entirely excluded from the opportunity even to claim or bring a

case for compensation, there is a discrimination in conflict with

Article 14 of the Convention.

3.      The applicant also claims that there has been a violation of

Article 6 para. 1 of the Convention since he cannot bring before any

court the dispute as to whether the new legislation is in conflict

with the Swedish Constitution and Article 1 of Protocol No. 1.

4.      The applicant also submits that he has no effective remedies

for the alleged violations of the Convention and that therefore

Article 13 of the Convention has been violated.

5.      Finally, the applicant complains that Article 17 of the

Convention has been violated.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 10 September 1985 and

registered on 12 September 1985.

        On 4 May 1987 the Commission decided to communicate the

application to the respondent Government and to invite them to

submit written observations on the admissibility and merits of the

application.

        The Government's observations were received by letter dated

14 October 1987 and the applicant's observations were dated

8 January 1988.  The Government submitted supplementary observations by

letter dated 28 March 1988.  On 4 January 1989 the applicant submitted

an estimate of the financial losses he had suffered as a result of

the 1985 reform.

        On 10 October 1988 the Commission decided to invite the

parties to a hearing on the admissibility and merits of the

application.

        The hearing was held on 9 March 1989.  It was a joint hearing

involving also Applications Nos. 11764/85, 11765/85, 11766/85,

11767/85, 11830/85 and 12091/86.  At the hearing the parties were

represented as follows:

The Government

Mr.  Hans CORELL              Ambassador, Under-Secretary for

                             Legal and Consular Affairs, Ministry

                             for Foreign Affairs, Agent

Mr.  Ulf ANDERSSON            Assistant Under-Secretary, Ministry

                             for the Environment and Energy, Adviser

Mr.  Carl Henrik EHRENKRONA   Legal Adviser, Ministry for Foreign

                             Affairs, Adviser

Mr.  Pär BOQVIST              Legal Adviser, Ministry for Foreign

                             Affairs, Adviser

The Applicants

Mr.  Michaël HERNMARCK (Applications Nos. 11763 and 11764/85), Lawyer

Mr.  Bo NILSSON (Applications Nos. 11765 - 11767/85), Chief Legal Adviser

Mr.  Lars-Åke LINDBERG (assisting Mr.  Bo Nilsson), Legal Adviser

Mr.  Bertil GRENNBERG (Application No. 11830/85), Patent Attorney

Mr.  Jan AXELSSON (Application No. 12091/86), Lawyer

THE LAW

1.      The applicant complains that the new legislation which was

introduced on 1 May 1985 and gave everybody a right to licence-free

fishing with hand-held tackle in the applicant's fishing waters

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

        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."

        The Government submit that the application should be rejected

for failure to exhaust domestic remedies or, alternatively, as being

manifestly ill-founded.

2.      As to the condition of exhaustion of domestic remedies in Article 26

(Art. 26) of the Convention, the Government submit that the applicant has

failed to apply to the National Board of Fisheries for compensation under the

Compensation Act.  If such an application were unsuccessful the applicant could

bring an action against the State before the Real Estate Court.  In such

proceedings he could argue that the 1985 legislation is contrary to Chapter 2

Section 18 of the Instrument of Government and, if such an argument were

accepted, the Court could refuse to apply the legislation in application of

Chapter 11 Section 14 of the Instrument of Government.

        The applicant replies that, under the Compensation Act, the right to

compensation is so restricted that it does not cover the applicant's claim and

the courts can only refuse to apply the legislation if it is proven that the

law is "manifestly" contrary to the Instrument of Government, which is not

possible to prove since the Act has been examined by the Law Council and not

been declared unconstitutional.

        Article 26 (Art. 26) of the Convention provides that the Commission may

only deal with a matter "after all domestic remedies have been exhausted,

according to the generally recognised rules of international law, and within a

period of six months from the date on which the final decision was taken".  It

is established case-law that "the final decision" refers only to domestic

remedies which can be considered to be "effective and sufficient" for the

purpose of rectifying the subject-matter of the complaint (see, inter alia, No.

9599/81, Dec. 11.3.85, D.R. 42 p. 33).  In a recent case against Sweden (No.

12810/87, Dec. 18.1.89, not yet published) the Commission found that a

compensation claim based on Chapter 2 Section 18 of the Instrument of

Government was not an "effective remedy" in the circumstances of that case.

        The issue of non-exhaustion in the present case is twofold; on the one

hand, whether the applicant could secure compensation under the Compensation

Act and, on the other hand, whether he could secure compensation under Chapter

2 Section 18 of the Instrument of Government.

        The applicant does not allege that he has lost any actual income as a

result of the new law, but that the result of the law is that he has been

deprived of property.  He has lost the potential opportunity to make profitable

use of his former exclusive right to fish and has therefore suffered a value

loss since he can no longer sell fishing permits.  The loss can be estimated,

on the basis of possible income from fishing permit sales, at 525.000 SEK.

        There is no case-law showing that the applicant could secure

compensation on this basis under the Compensation Act.  Furthermore, having

regard to the text of the Compensation Act including its transitional provision

and the preparatory works, the Commission finds that the Government have failed

to show that the Compensation Act could possibly secure the applicant any

compensation for the alleged financial losses.

        As regards compensation on the basis of the constitutional provision in

the Instrument of Government, the Commission notes that a court could only

grant compensation under that provision if it found that the Compensation Act

was "manifestly" contrary to the Constitution.  In view of the fact that the

Compensation Act was examined by the Law Council, composed of two judges of the

Supreme Court and one judge of the Supreme Administrative Court, which found

that its provisions did not violate the Constitution, it cannot be held that a

compensation claim based on Chapter 2 Section 18 is an "effective" remedy in

the circumstances.

        Consequently, the application cannot be rejected, under Article 27

para. 3 (Art. 27-3) in conjunction with Article 26 (Art. 26) of the Convention,

for failure to exhaust domestic remedies.

3.      The Commission has next examined whether the application is manifestly

ill-founded, as claimed by the Government.  It here notes that, prior to the

introduction of the new legislation in 1985, the applicant had an exclusive

right to use his own waters for fishing. The new provision in Section 20 a of

the Fishing Rights Act implies that the applicant no longer has an exclusive

right to fishing with hand-held tackle.  In this respect, everybody has

henceforth the right to fish in his waters.  The applicant submits that as a

result of the new legislation the public has, to a considerable extent, started

fishing with hand-held tackle in his waters, both from the shore and from

boats.

        The Commission considers that the introduction of the new legislation

in 1985 and its effects constitute an interference with the applicant's right

to the peaceful enjoyment of his possessions as guaranteed by Article 1 of

Protocol No. 1 (P1-1).  It must therefore be examined whether this interference

was justified under the terms of Article 1 (Art. 1).

        Article 1 of Protocol No. 1 (P1-1) guarantees the right of property. It

comprises three rules.  The first rule which is 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, which is set out in the

second sentence of the first paragraph, covers deprivation of possessions and

subjects it to certain conditions.  The third rule, which is set out in the

second paragraph, recognises that the Contracting States are entitled, amongst

other things, to control the use of property in accordance with the general

interest.  The three rules are connected.  The second and third rules are

concerned with particular instances of interference with the right to peaceful

enjoyment of property and are therefore to be construed in the light of the

general principle enunciated in the first rule.

        A preliminary issue under Article 1 (Art. 1) is whether in the present

case the interference with the right to peaceful enjoyment of possessions is to

be regarded as a deprivation of possessions (the second rule), control of the

use of property (the third rule) or a third form of interference to be

considered under the first rule.

4.      In order to determine this issue, it is appropriate to recall the

general legal situation concerning fishing rights and the particular situation

of the applicant as well as the public's rights before and after the 1985 law

reform.

        Before the 1985 reform the regulations concerning fishing rights were

very complicated and differed according to the geographical area concerned.

For instance, the three big-city areas of Sweden (Stockholm, Gothenburg and

Malmö) are situated close to water areas.  In the Gothenburg and Malmö areas

fishing with hand-held tackle on the coast was open to everybody also before

the 1985 reform. However, in the Stockholm area such fishing near the shores,

in the archipelago area and in the lake of Mälaren, was the exclusive right of

the fishing rights owner.  On some stretches of the coast outside Gotland and

Blekinge fishing with nets was free but not with hand-held tackle.  The result

of the 1985 reform was that fishing with hand-held tackle was free along all

coasts and in the large lakes in both public and private waters, apart from

salmon fishing along the northeast coast.

        The public's right of access to private land (allemansrätten) implies

that any land owner in Sweden must accept that everybody uses his land in

certain manners.  As regards water areas everybody is entitled to travel by

boat or swim across and temporarily stay in private waters, and, in the winter

time, to walk or otherwise move around on the ice provided that serious

inconveniences are not caused to the owner.  As regards the use of land

everybody may pass over private land by foot.  It is permitted to camp for a

short while, to swim and to make picnics.

        The 1985 reform gave the public a right to fish in private waters.

This fishing right was however limited to fishing with hand-held tackle.  The

property owner retained the exclusive right to other manners of fishing, for

instance with net.  The result of the reform was, consequently, that the land

owner was deprived of his previous exclusive right to fish with hand-held

tackle.  The essential economical significance of this was that the land owner

could no longer make any profit from this sort of fishing by selling fishing

cards or otherwise.

        The 1985 reform was not limited to a restricted number of properties,

but covered all properties on the Swedish east coast from the municipality of

Östhammar in the County of Uppsala to Blekinge County and all the properties in

or around the five largest lakes, including the lake of Mälaren.

5.      As regards the question whether the applicant has been deprived of

property, the Commission recalls that, according to the established case-law,

deprivation of property within the meaning of Article 1 of Protocol No. 1

(P1-1) is not limited to cases where property is formally expropriated, i.e.

where there is a transfer of the title to the property. "Deprivation" may also

exist where the measure complained of affects the substance of the property to

such a degree that there has been a de facto expropriation or where the measure

complained of "can be assimilated to a deprivation of possessions" (cf.  Eur.

Court H.R., Sporrong and Lönnroth judgment of 23 September 1982, Series A no.

52, p. 24, para. 63).

        It is clear that the applicant has not been formally deprived of his

property.  He still retains the title to it.  The applicant has also not been

deprived of his right to fish, including the right to fish with hand-held

tackle.  What he has lost is his right to exclude others from fishing with

hand-held tackle.

        Legislation of a general character affecting and redefining the rights

of property owners cannot normally be assimilated to expropriation even if some

aspect of the property right is thereby interfered with or even taken away.

There are many examples in the Contracting States that the right to property is

redefined as a result of legislative acts.  Indeed, the wording of Article 1

para. 2 (Art. 1-2) shows that general rules regulating the use of property are

not to be considered as expropriation.  The Commission finds support for this

view in the national laws of many countries which make a clear distinction

between, on the one hand, general legislation redefining the content of the

property right and expropriation, on the other.

        The Commission has for the same reasons in cases concerning rent

regulations, which have seriously affected the right to property, nevertheless

held that such regulations fall to be considered under the "control of use"

rule (cf.  Mellacher and others v.  Austria, Comm. Rep. 11.7.88, at present

pending before the European Court of Human Rights).

        The Commission observes in the present case that the aim of the 1985

reform was to extend the public's right to fish with hand-held tackle.  This

right had existed in large areas of Sweden already before 1985.  In those areas

the property owners could not exclude fishing with hand-held tackle.  This

shows that the restrictions at issue were not alien to the property of fishing

waters in Sweden even before 1985.  The restrictions which this reform entailed

on the applicant's right to his property cannot be assimilated to expropriation

or be said to have had such severe consequences that they affected the

substance of the right to property.

        Consequently, the Commission finds that the applicant was not deprived

of his possessions and the second sentence of the first paragraph of Article 1

of Protocol No. 1 (P1-1) does not apply.

6.      The Commission considers that the restrictions on the applicant's

property must be examined under the "control of use" rule in the second

paragraph of Article 1 (Art. 1).

        The applicant argues that the second paragraph cannot apply since the

1985 reform does not involve any true "control" of any "use" which he has made

of his property.  However, the French text speaks of "réglementer l'usage des

biens", which more accurately describes what, in the Commission's view, must be

the purpose of the second paragraph.  This provision must be understood to

permit the enforcement of laws which are deemed necessary to regulate the use

of property.

        The Commission considers that the 1985 reform was a law which was

enforced to regulate the use of property.  The question of the justification of

the interference created by the 1985 reform must therefore be examined under

the second paragraph of Article 1 of Protocol No. 1 (P1-1), to establish

whether the interference was "lawful", whether it pursued a "general interest",

and whether it was proportionate and therefore could be "deemed necessary".

        The Commission here notes that the interference with the

applicant's fishing rights was provided for by the set of provisions

contained in the 1985 legislative reform, notably Section 20 a of the

Fishing Rights Act and the Compensation Act.  It is true that,

according to the applicant, the interference with his rights was

unlawful under the Swedish Constitution.  The Commission, however,

having regard to the background of the 1985 legislation and the

finding of the Law Council, concerning the compatibility of the new

legislation with the Constitution, cannot find that the 1985

legislation failed to meet the requirement in Article 1 of being

"lawful".

        The condition of "general interest" leaves a wide margin of

appreciation to the national legislation.  The Convention organs will

respect the legislator's judgment as to what is a "general interest"

unless that judgment be "manifestly without reasonable foundation"

(cf.  Mellacher Report, loc. cit., para. 206).

        The applicant contests that the interference was in the

"general interest" arguing inter alia that the new Act was based on

political considerations with the purpose of charming part of the

electorate.

        The Commission notes that the aim of the 1985 Act was to make

recreational fishing with hand-held tackle available to everybody.  The

Parliamentary Standing Committee on Agriculture stated as its opinion

that the legislation was an important recreational political reform.

It considered that it was a strong public interest to provide, in this

way, for an increased opportunity of leisure activities for the public

inter alia in the metropolitan areas.  It was also valuable that the

provisions concerning fishing rights were considerably simplified by

the reform.

        The Swedish Parliament's opinion that such a reform was in

"the general interest" cannot in the Commission's view be considered

to transgress the margin of appreciation left to the democratic

institutions when regulating the rights of property owners and finding

the right balance between the individual and the public interests.  The

Commission again notes in this context that the right of the public to

fish with hand-tackle existed in large areas of Swedish waters already

before the reform of 1985.

        As regards proportionality, the Commission recalls that, under

paragraph 2 of Article 1 (Art. 1-2), the State may enforce such laws as it

"deems necessary".  In the application of this test of necessity regard must be

had to the principle of respect for peaceful enjoyment of possessions which is

enunciated in the opening sentence of Article 1 (Art. 1). For this reason the

Commission must also examine "whether a reasonable relationship of

proportionality existed between the means employed and the aim sought to be

realised", or in other words, "whether a fair balance was struck between the

demands of the general interest in this respect and the interest of the

individual or individuals concerned" (Eur.  Court H.R., Agosi judgment of 24

October 1986, Series A no. 108, p. 18, para. 52 and Sporrong and Lönnroth

judgment, loc. cit., p. 26, para. 69).

        The applicant stresses that since he did not receive any compensation

the requirement of proportionality was not met.

        It follows from the case-law of the Convention organs that as regards

deprivation of possessions there is normally an inherent right to compensation

(Eur.  Court H.R., James and Others judgment of 21 February 1986, Series A no.

98, p. 36, para. 54 and Lithgow and Others judgment of 8 July 1986, Series A

no. 102, p. 51, para. 122).  However, in the Commission's view such a right to

compensation is not inherent in the second paragraph.  The legislation

regulating the use of property sets the framework in which the property may be

used and does not, as a rule, contain any right to compensation.  This general

distinction between expropriation and regulation of use is known in many, if

not all, Convention countries.

        This does not exclude that the law may provide for compensation in

cases where a regulation of use may have severe economic consequences to the

detriment of the property owner.  The Commission is not required to establish

in the abstract under which circumstances Article 1 (Art. 1) may require that

compensation be paid in such cases.  When assessing the proportionality of the

regulation in question it will be of relevance whether compensation is

available and to what extent a concrete economic loss was caused by the

legislation.

        The 1985 legislation comprises a special Compensation Act which

provided a right for the fishing rights owner to claim compensation for loss of

income resulting from the free fishing with hand-held tackle.  There is a

dispute between the parties as to the interpretation of the right to

compensation under the Compensation Act and as to whether the applicant would

have any right to compensation thereunder.  It seems to be uncontested,

however, that the applicant is not entitled to any compensation for an alleged

reduction of the value of his property or for any estimated value of the income

he could have had if he had, for instance, sold fishing permits before the 1985

reform.

        The Commission recalls that the applicant owns a large property

including large areas of fishing waters.  He can therefore be said to have

suffered more than many others from the new Act. Nevertheless, the Commission

accepts the opinion of the Swedish Parliament that the interference created by

the introduction of free fishing with hand-held tackle may in general be

regarded as a comparatively minor interference.  It also accepts that it may be

regarded as an important "general interest" to make fishing waters available

for everybody.

        The Commission further recalls that the interference with the

applicant's property right was limited to one form of fishing in his waters,

namely fishing with hand-held tackle.  The applicant had not before the reform

derived any income from such fishing.  He cannot, therefore, claim any direct

loss of income from the reform.  As to the allegation that the value of his

property was reduced, the Commission notes that the legislation affected many

fishing properties all over Sweden and it is not easy to see how a specific and

concrete reduction in value could result from this general legislation.  Even

assuming that some theoretical loss in value could be established, the

Commission cannot find that such a loss caused by general legislation must

necessarily be compensated on the basis of Article 1 of Protocol No. 1 (P1-1).

        Given the State's wide margin of appreciation in this domain

the Commission considers that the interference with the applicant's

property right cannot be held to be disproportionate.  Consequently,

the Swedish State was entitled under the second paragraph of Article 1 (Art. 1)

to "deem necessary" the enforcement of the 1985 legislation with the

effects it had on the applicant's property right.

        Accordingly, the interference with the applicant's property

right was justified under the terms of the second paragraph of Article

1 of Protocol No. 1 (P1-1).

        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.

7.      The applicant claims that he has been a victim of

discrimination in the enjoyment of his possessions under Article 1 of

Protocol No. 1 (P1-1).  He alleges a breach of Article 14 (Art. 14) of the

Convention which 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."

        According to the applicant persons in an equal position are

treated unequally as regards compensation under the 1985 Compensation

Act.  The Government argue that the fishing rights owners belonged to

two different categories according to whether or not they had

previously had an income from their waters.  Furthermore, they were

not subject to differential treatment as the same compensation rules

applied to all of them.

        The Commission does not find that differential treatment is

excluded because the legislation applies to all fishing rights owners.

The criterion is whether the legislation effectively entailed

differences of treatment in regard to the fishing rights owners.  The

Commission finds that there was a difference of treatment as one group

of owners received no compensation at all, namely those who had

previously not had any income from their fishing waters.

        However, for the purpose of Article 14 (Art. 14) a difference of

treatment is only discriminatory if it does not pursue a legitimate

aim and there is no reasonable relationship of proportionality between

the means employed and the aim sought to be realised (see, inter alia,

Eur.  Court H.R., Belgian Linguistic judgment of 23rd July 1968,

Series A no. 6, pp. 33-34, paras. 9-10).

        An examination of the complaint under Article 14 (Art. 14) thus amounts

in substance to an examination similar to the one carried out above under

Article 1 of Protocol No. 1 (P1-1), and the Commission sees no reason to

diverge from its previous conclusion.  The aim pursued by the legislation was a

legitimate one in the general interest and having regard to the State's margin

of appreciation the principle of proportionality was not infringed.  The

provisions in the Compensation Act restricted the right to compensation to

"loss of income", thereby excluding the fishing rights owners who had not

previously had an income from leasing or selling.  This distinction has a

reasonable and objective justification and is consequently not discriminatory.

        The Commission therefore finds that the facts of the case do not

disclose a violation of Article 14 (Art. 14) of the Convention taken in

conjunction with Article 1 of Protocol No. 1 (P1-1) to the Convention.

        It follows that this aspect of the application is also manifestly

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

Convention.

8.      The applicant further alleges a violation of Article 6 para. 1 (Art.

6-1) , first sentence of the Convention which 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."

        The applicant complains that the 1985 Act, without further

implementing measures, interfered with his private property right and hence

his "civil rights".  The interference, in the applicant's opinion,

amounts to a violation of the Swedish Constitution.  However, he

cannot bring this claim before any court in Sweden since Parliament is

the supreme body as regards the interpretation of the Constitution and

a court may only set aside the law if the law is considered to be

"manifestly" in conflict with the Constitution.

        The Government argue that Article 6 para. 1 (Art. 6-1) does not grant a

right of access to court in order to challenge a law.

        The Commission recalls that in the James and Others judgment

(loc. cit., p. 46, para. 81) the Court stated:

        "Confirmation of this analysis is to be found in the fact

        that Article 6 § 1 (Art. 6-1) does not require that there be a national

        court with competence to invalidate or override national law.

        In the present case, the immediate consequence of the British

        legislation in issue is that the landlord cannot challenge

        the tenant's entitlement to acquire the property compulsorily

        in so far as the acquisition is in conformity with the

        legislation."

        The Commission considers that the "right" to exclusive fishing

with hand-held tackle, which the applicant had prior to the

law, was taken away from him by the new law adopted by Parliament

without any further implementing measures.  A Swedish court could

only examine a claim of a breach of the Constitution if it had

competence to invalidate or set aside a law adopted by Parliament.

However, it follows from what has been said above that Article 6 para.

1 (Art. 6-1) does not guarantee access to court for such a claim.

        Accordingly, the application is, in this respect, manifestly

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

Convention.

9.      The applicant also alleges a violation of Article 13 (Art. 13) of the

Convention which provides:

"Everyone whose rights and freedoms as set forth in

this Convention are violated shall have an effective

remedy before a national authority notwithstanding that

the violation has been committed by persons acting in an

official capacity."

        Article 13 (Art. 13) does not guarantee a remedy whereby a Contracting

State's laws as such can be challenged before a national authority on

the ground of being contrary to the Convention or to corresponding

domestic legal norms (James and Others judgment, loc. cit., p. 47,

para. 85).

        The applicant's allegations of violations of the rights of the

Convention are directed at the effects of the Fishing Rights Act and

the Compensation Act.

        It follows from what has been said above that Article 13

(Art. 13) does not entitle the applicant to any remedy for such allegations.

        Accordingly, there is no appearance of a violation of

Article 13 (Art. 13) of the Convention.

        It follows that the application is also in this respect manifestly

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

Convention.

10.     The applicant finally alleges a breach of Article 17 (Art. 17) of the

Convention which provides:

"Nothing in this Convention may be interpreted as

implying for any State, group or person any right to engage

in any activity or perform any act aimed at the destruction

of any of the rights and freedoms set forth herein or at

their limitation to a greater extent than is provided for in

the Convention."

        Referring to its considerations above the Commission finds

no issue under Article 17 (Art. 17) of the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission               President of the Commission

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