Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11830/85

by Rune WIKSTRÖM

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 29 October

1985 by Rune WIKSTRÖM against Sweden and registered on 31 October 1985

under file No. 11830/85;

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 the applicant's observations of 7 December 1987

and 12 and 26 February 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 1948 and resident

at Möja. He is a fisherman by profession. Before the Commission he is

represented by Mr. Bertil Grennberg, a patent attorney practising in

Stockholm.

The applicant is the owner of a property called Ramsmora 1:28

situated in the municipality of Värmdö in the county of Stockholm. The

property comprises one island in the archipelago of Stockholm. It has

a surface of 9 hectares and the fishing waters around the island are

included in the property. The applicant exploits the property himself,

being a fisherman. He has the right to fish in an area of 750

hectares. 50 hectares belong to him, whereas he rents the fishing

rights in the remaining 700 hectares.

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 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. 42-44), 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. The Minister also indicated

that professional fishermen were one group which could be entitled to

compensation.

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, although

proposing a certain increase in the right to compensation, found 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."

Before coming to that conclusion and when summarising the

Minister's reasoning in the Government Bill, the Standing Committee

stated (at p. 13) that compensation should be paid if it could be

established in some case that the fishing rights owner's own catches

have been reduced as a direct consequence of the free fishing with

hand-held tackle and that, as a result, he has had less income.

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 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."

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 he is the victim of a violation

of Article 1 of Protocol No. 1 to the Convention. His property has

been expropriated. The applicant has no right to compensation under

the legislation which was introduced because only actual financial

losses will be compensated and the applicant has not lost any income

since he has not leased out his fishing waters but used them in his

profession as a fisherman.

2. The applicant also alleges a violation of Article 6 of the

Convention, in that there is no court which could determine whether he

should keep his fishing rights around the island for himself.

3. The applicant further alleges a breach of Article 13 of the

Convention in that there exists no effective remedy for the above

alleged violations of the Convention.

4. Finally, the applicant alleges a breach of Article 14 of the

Convention, in that he has been deprived of his property without any

compensation for the reason that he exploits his fishing rights

himself instead of having leased them to others against compensation.

In the applicant's opinion this distinction between individuals is

arbitrary.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 October 1985 and

registered on 31 October 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

6 December 1987. On 12 and 26 February 1989 the applicant submitted an

estimate of the 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. 11763/85, 11764/85, 11765/85,

11766/85, 11767/85 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 applicant also alleges a violation of Article 14 (Art. 14) of the

Convention which prohibits discrimination in the enjoyment of the

rights and freedoms guaranteed by the Convention.

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 cannot be

proved since the Act has been examined by the Law Council and not been declared

unconstitutional.

The applicant has developed his reasoning in the following way when

asked to clarify his financial losses resulting from the 1985 reform.

It is very difficult to quantify the applicant's losses. His

agricultural activities on the island are limited. It is the fishing he lives

on, and the family sells the fish themselves. It is true that the proprietor

of the rented fishing waters has agreed to a reduction of the rent. The

applicant alleges that the Act does not grant a right to compensation if the

loss of catches can be compensated by an increased working effort. The

applicant's waters are situated near Stockholm and therefore attract many

leisure fishermen. One effect of the public's increased fishing in his waters

is that they leave a number of hooks in the applicant's nets. As a result the

applicant has had to give up fishing in the summer time in large areas of water

because he has to take up the fish before dawn when he cannot see the hooks.

Moreover, the applicant's main objective is to have the public's right to fish

in his waters abolished. In effect, the new law may spoil the family's

possibilities to continue to live as they have done before.

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). Where there is doubt as to the

effectiveness of a given remedy, it must nevertheless be tried before an

applicant can be said to have fulfilled the condition of exhaustion of domestic

remedies. 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 Commission considers it clear that some of the applicant's claims

are such that he could not secure compensation for them under the Compensation

Act. The same is however not true for the claims relating to the reduction of

catches in fish and the claim that the applicant has been obliged to give up

fishing in certain areas during the summer period. In these respects, the

Commission notes that the Compensation Act entitles the applicant to

compensation for loss of income resulting from the public's fishing with

hand-held tackle under the new law. It further notes that there is no case-law

supporting the argument that such claims cannot be considered as "loss of

income" within the meaning of the Compensation Act. Moreover, it is still open

to the applicant to introduce an action for compensation on that basis. The

Commission cannot ascertain, in the preparatory works, any conclusive evidence

that compensation for such claims is excluded.

The Commission therefore finds that the applicant has not satisfied the

condition of exhaustion of domestic remedies in this respect. Although some of

the applicant's claims cannot give rise to compensation under the Compensation

Act it is not possible, in the Commission's view, to sever some of the

applicant's claims from the others when examining the case under Article 1 of

Protocol No. 1 (P1-1). This is so since the question of compensation is an

element in the examination of the justification of any interference with the

rights under Article 1 of Protocol No. 1 (P1-1).

Consequently, this part of the application is inadmissible under

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

Convention.

3. 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" and that no court can determine whether he should

keep his fishing rights around the island for himself.

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 (Eur. Court H.R.,

judgment of 21 February 1986, Series A no. 98, 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.

The Commission further considers that, insofar as the

applicant can be said to claim loss of income as a result of the

fishing reform, he has access to court.

Accordingly, the application is, in this respect, manifestly

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

Convention.

4. 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.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRUGER) (C. A. NØRGAARD)

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WIKSTRÖM v. SWEDEN

WIKSTRÖM v. SWEDEN