THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 11811/05 by Sture NILSSON against Sweden

The European Court of Human Rights (Third Section), sitting on 26 February 2008 as a Chamber composed of:

Josep Casadevall , President, Elisabet Fura-Sandström , Corneliu Bîrsan , Boštjan M. Zupančič , Alvina Gyulumyan , Egbert Myjer , Ineta Ziemele , judges, and Santiago Quesada, Section Registrar ,

Having regard to the above application lodged on 14 March 2005,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Sture Nilsson, is a Swedish national who was born in 1946 and lives in Sjulsmark. He was represented before the Court by Mr Jan S ödergren, a lawyer practising in Stockholm . The Swedish Government (“the Government”) were represented by their Agent, Mrs Inger Kalmerborn, of the Ministry for Foreign Affairs.

A. The circumstances of the case

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

In 1973 the applicant inherited thirty-three hectares of property from his father, of which twenty-eight hectares had been included in a joint hunting area in 1952. The provisions in force at the relevant time concerning joint hunting areas and joint hunting area associations were replaced in 1980 by a Joint Hunting Areas Act and in 2000 by a Game Conservation Areas Act ( Lagen om viltvårdsområden ; SFS 2000:592). By the latter Act, a joint hunting area was renamed a game conservation area.

The game conservation area to which the applicant ’ s property belonged comprised 5,567 hectares of land or 6,145 hectares including both land and water areas. Slightly more than a hundred and fifty properties or plots thereof were included in the area; many of them were very small, covering between one and three hectares. The applicant ’ s property was situated in the north-east corner of the area.

The applicant could hunt within the game conservation area, including on his own property, but was obliged to coordinate his hunting with that of the other hunting rights holders. They were all members of the Game Conservation Area Association in Norr fjärden , ( Norrfjärdens viltvÃ¥rds-omrÃ¥deförening ), (henceforth GCAA), and took part in the decision ‑ making process.

The by-laws passed by the GCAA stated, among other things, that elk-hunting should usually be conducted in the form of so-called “community hunting”.

On 15 January 2001 the applicant requested that the GCAA agree to the exclusion of his property from the game conservation area. He wished to have his property registered as a “one calf area” which would allow for the shooting of one elk calf each year. He submitted that being a dairy farmer he had not participated in the hunt for about eight or ten years. Moreover, he found that a hunting party consisting of fifty-five hunters was too big and, referring to his age, fifty ‑ five at the relevant time, he preferred hunting on a smaller scale.

Since the GCAA objected to the request, the matter had to be decided by the County Administrative Board in Norrbotten County ( Länsstyrelsen i Norrbottens Län ), which by a decision of 9 February 2001 refused the applicant ’ s request and stated, in so far as relevant:

“... By letters received by the County Administrative Board on 29 January and 1 February 2001 respectively, you have requested that part of your property ... be excluded from the game conservation area. In support thereof you have stated that you intend to register a licensed elk-hunting area on the property and hunt individually thereon. This would provide you with more hunting opportunities...

Section 33 of the Game Con servation Areas Act is worded as follows:

Upon application by the property owner or the [GCAA], the County Administrative Board may grant the exclusion from a game conservation area of:

... [the County Administrative Board observes that] no change in the way the property is used has come to light . Nor can it be considered that the property lacks essential importance for the activity in the area, since together with a number of other properties, it forms the basis of the activity, which is to promote game con servation through coordination of hunting. In addition, the size of the property is not such as to be a reason for it to be considered to lack essential importance for the activity in question. Accordingly, exclusion cannot be granted pursuant to section 33, subsection 1.1 of the Act on Game Con servation Areas.

Pursuant to section 33 of the Hunting Act (1987:259) elk may only be hunted after a licence has been issued by the County Administrative Board and within an area that the latter has registered (a licensed area). This does not apply if the hunting only concerns elk calves. The size and general nature of a licensed area must be such that it is suitable for hunting elk. The County Administrative Board may refuse to register an area as licensed ... if it does not allow for the shooting of at least one adult animal per year. The County Administrative Board considers that effective game conservation within the meaning of the Hunting Act cannot be conducted in an area smaller than what has been referred to here and referred to in section 33 of the Hunting Act. Likewise, an area of this kind cannot comprise a separate unit for game conservation pursuant to section 33, subsection 1.2. of the Act on Game Conservation Areas.

The notion “game conservation” is defined in section 4 of the Hunting Act:

The game must be conserved so as to

Game con servation includes using special measures to ensure that game receives protection and support and that hunting is ad apted to the supply of game. The property owner and the person holding the hunting rights are responsible for making sure that the measures are carried out and that ad aptation s are followed.

Of course, since your property consists of a unit that is larger than 20 hectares, it can be registered as a “one calf area” However, it cannot thereby be considered to comprise a separate unit for game conservation pursuant to the Act on Game Preservation Areas.

Accordingly, [your] property] cannot be excluded pursuant to section 33, subsection 1.2. of the Act on Game Preservation Areas.

As regards the question whether a decision to refuse [your request] contravenes [the proportionality principle contained in] Chapter 2, section 18 of the Instrument of Government and the European Convention on Human Rights, the County Administrative Board finds that there are strong reasons to support the view that it would be detrimental to effective game conservation, including elk hunting – which must be considered to be an important public interest – if existing game conservation areas were to be divided into smaller sections. ...

You have not shown how game conservation could be improved if [your] request to exclude the property was granted. The County Administrative Board considers that even if [your] property is part of the game con servation area, game con servation can be carried out, either together with the other partners and hunters, or separately for the individual property. Thus, there are no limitations on the right of disposition over the property in question. On the contrary, there is an important public interest in retaining the property in question as part of the game conservation area. That will maintain the aim of the property owners in forming the area, namely to allow game conservation to be carried out in an efficient manner. Game conservation — primarily conservation of the elk stock — is only efficient when it can be carried out in a continuous area that is not divided. In respect of large game, hunting is an important part of game conservation. Properly conducted hunting based on biological grounds can regulate the numbers of these stocks, so that the requirements of the Hunting Act regarding preservation and promotion are fulfilled. ...”

On an appeal, by a judgment of 27 June 2001 the County Administrative Court ( Länsrätten i Norrbottens Län ) upheld the County Administrative Board ’ s decision.

Leave to appeal was refused on 12 February 2003 by the Administrative Court of Appeal ( Kammar r ätten i Sundsvall ) and on 16 February 2005 by the Supreme Administrative Court ( Regeringsrätten ).

B. Relevant domestic law and practice

The Instrument of Governmen t

According to Chapter 2, section 1 of the Instrument of Government ( Regeringsformen ), which is part of the Swedish Constitution , all citizens are guaranteed, inter alia, freedom of association in their relations with public institutions. This freedom is defined as freedom to associate with others for public or private purposes. Chapter 2, section 2 stipulates that all citizens are protected, in their relations with public institutions, against any coercion, such as to belong to a political association, religious community or other association with opinions of a political, religious, cultural or other such nature.

The rights and freedoms referred to in Chapter 2, section 1 may be restricted by law to the extent provided for in Chapter 2, sections 13-46 (Chapter 2, section 12). Restrictions may only be imposed to achieve a purpose which is acceptable in a democratic society. A restriction may never go beyond what is necessary having regard to the purpose which occasioned it, nor may it be carried so far as to constitute a threat to the free formation of opinion as one of the fundaments of democracy. No restriction may be imposed solely on grounds of a political, religious, cultural or other such opinion (ibid.). According to Chapter 2, section 14, freedom of association may be restricted only in respect of organisations whose activities are of a military or quasi-military nature or constitute persecution of a population group of a particular race, colour or ethnic origin. The negative freedom of association provided for in Chapter 2, section 2 may not be restricted.

The peaceful enjoyment of possessions is protected in, inter alia , the Instrument of Government. Pursuant to Chapter 2, section 18, the property of every citizen shall be so guaranteed that no one may be compelled by expropriation or other such disposition to surrender property to public institutions or to a private subject, or to tolerate restrictions by public institutions on the use of land or buildings, other than where necessary to satisfy pressing public interests.

A person who is compelled to surrender property by expropriation or other such disposition shall be guaranteed compensation for the loss. Such compensation shall also be guaranteed to a person whose use of land or buildings is restricted by public institutions in such a manner that the ongoing use of land in the affected part of the property is substantially impaired, or the value of that part of the property suffers significant depreciation. Compensation shall be determined according to principles laid down by law (ibid.).

The Hunting Act

Hunting is regulated in, inter alia , the 1987 Hunting Act ( Jaktlagen ; SFS 1987:259). The right to hunt game is attached to the ownership of real property. Thus, section 10 of the Act expresses the general principle that it is the person who owns a piece of property who has the right to hunt on that property. It is, however, possible to convey and let hunting rights, with the result that the ownership of land and the right to hunt may be vested in different persons (see sections 14-16).

The right to hunt may be exercised only to the extent that hunting is acceptable from the point of view of game conservation. Thus, all game is in principle protected and may be hunted only if this is permitted under the Act or under provisions or decisions based on the Act (section 3).

Specifically with respect to elk hunting, section 33 of the Act establishes the main rule that, with the exception of the hunting of elk calves, this may take place only if licensed by the relevant County Administrative Board and within an area that has been registered by the Board for this purpose (a so ‑ called “licensed area”). Further, it follows from section 33 that a licensed area shall be of such a size and character that it is suitable for elk-hunting. The County Administrative Board may refuse to register an area as a licensed area if it does not allow for the shooting of at least one adult animal per year. However, even if these conditions are not met, an area may be registered as a licensed area if there are special reasons for this. In addition, an area may be registered as a licensed area allowing for one calf to be shot annually, if the size of the area amounts to at least 20 hectares.

The right to hunt is connected with a general obligation to conserve and protect the game within one ’ s property. Where the right to hunt has been conveyed or let, this obligation lies with the landowner and hunting right holder together. Section 4 of the Act provides, inter alia , that measures shall be taken for the purpose of conserving existing species of wild game and in order to promote appropriate development of game stocks, taking into account both public and private interests. Game conservation includes an obligation to use special measures to ensure that game receives protection and support and to adapt hunting to the supply of game (ibid.).

The Act on Game Preservation Areas

With the purpose of coordinating hunting and facilitating game conservation, Swedish legislation has for a long time provided land owners with the opportunity to join their properties into joint hunting areas by a unanimous or qualified majority decision. The 1938 Act on the Right to Hunt ( Lagen om rätt till jakt; SFS 1938:274) contained provisions on joint hunting areas and joint hunting area associations. These provisions were replaced by a new Act which entered into force on 1 January 1981, the Joint Hunting Areas Act 1980 ( Lagen om jaktvårdsområden ; SFS 1980:894). This Act was in turn replaced by the Game Conservation Areas Act 2000 ( Lagen om viltvårdsområden ; SFS 2000:592), which entered into force on 1 January 2001. The provisions of the new Act are in many respects the same as, or similar to, the provisions contained in the old Act. A joint hunting area association existing at the time of the entry into force of the new Act shall be regarded as a game conservation area association in accordance with the new Act (see the transitional provisions of the 2000 Act).

The 2000 Act provides that two or more properties or parts of properties may be joined into a game conservation area, for the purpose of promoting the conservation of game through coordination of hunting and measures to protect the game (section 1). Where this is done, the property owners concerned shall form a game conservation area association ( viltvårdsområdeförening ). Those who own land incorporated in such an area are members of the association (section 4).

The provisions of the Act are equally applicable to publicly and privately owned land. However, according to section 2 of the Act, a game conservation area may not include certain land owned by the Swedish State where the Sami population has a right to hunt according to the Reindeer Herding Act ( Rennäringslagen ; SFS 1971:437). Also with respect to other land, public or private, the right of the Sami to hunt enjoys special protection. Thus, section 2 of the Act also provides that the formation of a game conservation area may not entail limitations on the hunting rights of the Sami.

The relevant County Administrative Board decides on the establishment of a game conservation area upon application from one or several of the property owners concerned (sections 3 and 9). For such an area to be formed, at least four-fifths of the owners, representing at least four-fifths of the total area, must agree (section 7). Another requirement is that the creation of the area shall promote the preservation of the kind of wild game that the coordination is intended to preserve and protect. Finally, it is required that the area be suitable with regard to its size and geographical position. However, no property can be included in a game conservation area if, due to its size or use, it lacks importance for the activity within the area (section 8). Conversely, land that is capable of being retained as a separate unit for the purpose of game conservation cannot be included in the game conservation area without the owner ’ s consent (ibid.).

As a general rule, the question of whether to form a game conservation area shall be investigated under the guidance of a person appointed by the County Administrative Board (section 11). Taking into account the application documents and other relevant information, the authorised official ( förrättningsmannen ) shall put forward proposals regarding which properties should be included in the area and which by-laws should apply to the association (section 12). These proposals shall be dealt with at a meeting, to which the property owners shall be summoned, and they shall be given the opportunity to submit their opinions and present their own investigations (sections 13 and 14). Thereafter, the official shall present a written statement expressing his or her opinion as to whether a game conservation area should be formed and, if this is the official ’ s view, propose which properties should be included in the area and also put forward proposals on by-laws for the association (section 15). The proposals and other relevant documents shall then be accessible to the property owners concerned for one month so that they may examine them and submit any views that they may have. Following the expiry of this period, the official shall provide the County Administrative Board with all the documents and such objections as may have been submitted, so that the Board may determine the matter (ibid.).

The game conservation area association shall have a board (section 18). Members of the association are entitled to participate in the decision making by exercising their right to vote at general meetings (sections 19 and 20).

The County Administrative Board shall confirm the by-laws of the association with regard to certain aspects (sections 3 and 16). The Board shall also confirm amendments of the by-laws with regard to those aspects (sections 16 and 17).

If stipulated in the by-laws and provided it is in conformity with the hunting legislation, the association may decide that elk and certain other game may be hunted within the whole area (“area hunting”; område s jakt ) and only together with other hunting right holders within the area (“community hunting”; gemensambetsjakt ), if this is deemed necessary having regard to the conservation of game (section 23). If such a decision is taken, the association may also decide on the details of the hunt, such as the number of animals that may be shot. It may also decide that participation in “area hunting” and “community hunting” shall require a hunting licence (section 25). According to section 26, if stipulated in the by-laws, the association may decide to suspend from “area hunting” and “community hunting”, for a maximum period of one year, a member or hunting right holder who has broken the rules regarding such hunting. The by-laws may contain a requirement that hunting rights may not be conveyed or let without the consent of the association (section 27). The association may decide that fees should be paid for hunting and for game that is shot (section 29).

A property owner who for reasons of conscience is opposed to hunting, is entitled, upon request, to have his property exempted from “area hunting” and “community hunting” (section 28).

Upon application by the board of the associations concerned, the County Administrative Board may decide to join several game conservation areas together into one area or to divide a game conservation area into several smaller areas (section 31). As regards such changes, the same conditions apply as for the formation of a game conservation area (ibid.).

Further, upon application by the board of the association, the County Administrative Board may decide to join a property to the game conservation area, provided the owner of the property agrees to this (section 32).

The exclusion of an individual property from a game conservation area is governed by section 33 of the Act, which deals with two types of situations. Thus, the County Administrative Board may decide to exclude a property upon application by the property owner or the association, if, as a result of a change in its use or for other reasons, it has lost its essential importance for the activity within the area (subsection 1, point 1). If the property owner and the association agree on the exclusion, the association may take the decision instead of the County Administrative Board. According to the preparatory work, this provision aims, in particular, at situations in which a fundamental change has occurred in the use of the property, for example if it has begun to be used for recreational or industrial purposes (Government Bill 1999/2000:73, p. 50). Further, upon application by the property owner or the association, the Board may decide to exclude a property from the area, provided the property is capable of forming a separate unit for game conservation and provided the other properties within the area can continue to exist as a suitable area for game conservation (sub-section 1, point 2).

The possibility of excluding properties has been expanded in the 2000 Act as compared to the Joint Hunting Areas Act 1980, which it replaced. In the 1980 Act, exclusion was possible in the situations referred to in section 33, sub-section 1, point 1 of the 2000 Act, but not in the situations referred to in section 33, subsection 1, point 2.

The County Administrative Board may decide, under certain conditions, that a game conservation area shall cease to exist and that the association shall be dissolved (section 34).

A decision by the general meeting of the game conservation area association or by its board may be appealed against by those affected by the decision to the County Administrative Board, provided the decision relates to one of several enumerated issues, such as hunting and game conservation, membership of the association, suspension from “area hunting” and exclusion from the game conservation area in accordance with section 33, sub-section 2 (section 37).

A decision by the County Administrative Board may be appealed to the relevant County Administrative Court (section 38). Subject to the grant of leave to appeal, a further appeal lies to the relevant Administrative Court of Appeal and, in the final instance, to the Supreme Administrative Court . Leave to appeal shall be granted if it is of importance for guidance on the application of the law that a superior court considers the appeal or if there are extraordinary reasons to examine the appeal. In addition, an administrative court of appeal shall grant leave to appeal if reason exists to amend the conclusion of the first instance court (sections 34 a and 36 of the Administrative Court Procedure Act; förvaltningsprocesslagen ; SFS 1971:291).

COMPLAINTS

The applicant complain ed that the refusal to exclude his property from the game conservation area imposed an excessive burden on him, in violation Article 1 of Protocol No. 1 to the Convention . He also invoked Articles 8, 11 and 14 of the Convention.

THE LAW

I. T he applicant complain ed that the refusal to exclude his property from the game conservation area imposed an excessive burden on him, in violation of Article 1 of Protocol No. 1 to the Convention , which read s 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.”

T he Government submitted that the interference at issue had to be regarded as a measure of control over the use of the property in question, to be examined under the second paragraph of Article 1 of Protocol No. 1, which was explicitly provided for by legislation and in accordance with the general interest.

They pointed out that on numerous points the case diverged from Chassagnou and Others v. France ([GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-III ), notably because there were important differences between the Swedish legal framework governing game con servation areas and the provisions governing the compulsory transfer of hunting rights at issue in the said case.

F inally, the Government maintained that both the County Administrative Board and the Administrative Court of Appeal in their decisions had struck a fair balance between the demands of the general interest and the protection of the applicant ’ s right to property, and the refusal to exclude the applicant ’ s property from the game con servation area did not impose an excessive burden on him in violation of Article 1 of Protocol No. 1 to the Convention.

With regard to the applicant ’ s submission that his property lacked essential importance for the activity of the area as set out in section 33 of the Game Con servation Areas Act, notably because it was a relatively small part of the game con servation area and situated o n its outskirts, the Government asserted that although account should be taken of a property ’ s size and geographical position, th ose factors were not decisive in the assessment of the property ’ s importance for game con servation. T he main purpose of forming the game con servation area in question was to protect and preserve the stock of elks , which require d large and stable areas and exist ed over a long period of time . It could t herefore be incompatible with the aim of the legislation on game con servation to exclude a small area regardless of where it was located. A llowing this could gradually lead to disruption of the area, which would be detrimental to the con servation of the stock of elks. The risk thereof was particularly strong in the present case, where the game conservation area was made up of a large number of properties, some of them very small. Accordingly, the County Administrative Board, with which the County Administrative Court concurred, found that the applicant ’ s property did not lack essential importance for the activity within the area since, together with a number of other properties, it was part of the foundation of game conservation through the coordination of hunting.

The applicant maintained that he had borne an unreasonable burden, disproportionate to the aim, arising from the infringement of his property rights in violation of Article 1 of Protocol 1 to the Convention.

He did not as such dispute that the refusal to exclude his property from the game conservation area was prescribed by law and served the general interest. Nevertheless, he alleged that it had been far from evident that a system of compulsory game conservation should remain during the preparatory work for the Game Conservation Areas Act 2000; that various institutions had serious doubts as to the compatibility with the Swedish Constitution of the delegation of normative powers to a private subject set out in the Act; that the goals of keeping the compulsory game conservation system in the Game Conservation Areas Act had been not only to conserve game, but also to increase hunting opportunities; and that subsequently the efficiency of the system had been questioned, which again rendered it doubtful whether, in practice, there was a general interest or a pressing social need to uphold it.

In any event, taking these elements into account, and recalling that “the right or freedom to hunt” was not guaranteed by the Convention, in the applicant ’ s view only indisputable imperatives could justify interference in his full enjoyment of his land, and the Government should be afforded a very limited margin of appreciation in this respect.

The applicant reiterated that he wanted to hunt at most one elk calf a year on his property under calm conditions. Thus, his primary purpose was not even to prevent others from hunting on his small piece of land, but rather to be able to hunt alone and according to his own schedule.

As to the specific decision to refuse the exclusion of the property from the game conservation area, the applicant reiterated that his piece of land consisted of a tiny part of the whole area, and also that it was situated on the outskirts. Thus, its exclusion would have very little effect on the game conservation area.

He referred to the County Administrative Board ’ s reasoning that “it would be detrimental to effective game conservation if existing game conservation areas were to be divided into smaller sections” and noted that the Board had not referred to any specific circumstances indicating that the exclusion of the applicant ’ s property could be regarded as detrimental. He was thus convinced that the decision was motivated by a mere wish to avoid setting a precedent. However, such an argument would render the proportionality test devoid of any importance and make the right at issue “theoretical and illusory”.

Finally, the applicant submitted that there was no risk of creating a precedent by granting his request for exclusion of the property, since it was highly unlikely that smaller estates would also apply for their properties to be excluded. He observed in this respect that it was primarily the smaller estates that benefited from membership of a GCAA, since it allowed them to hunt over a substantially greater area than their own.

T he Court finds that the fact that the applicant ’ s property could not be excluded from the game con servation area constitutes a measure controlling the use of property in the general interest under the second paragraph of Article 1 of Protocol No. 1. According to its well-established case-law, the second paragraph of Article 1 of Protocol No. 1 must be construed in the light of the principle laid down in the first sentence of the Article. Consequently, any interference must achieve a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights. The search for this balance is reflected in the structure of Article 1 as a whole, and therefore also in the second paragraph thereof: there must be a reasonable relationship of proportionality between the means employed and the aim pursued. In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object ive of the law in question . It also finds that the maintenance of an area aimed a t promot ing game con servation and the common interests of hunting right holders is a legitimate aim in the general interest (see Chassagnou and Others v. France ([GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-III, §§ 75 and 79; Fredin v. Sweden (no. 1), Series A no. 192, p. 17, 51 ; Piippo v. Sweden (dec.), 70518/01, 21 March 2006 ; Jakobsson v. Sweden , no. 14459/88, Commission decision of 19 February 1992; and J ohansson v. Sweden , no. 14444/88, Commission decision of 1 April 1992 ).

As to the question whether there was a reasonable relationship of proportionality between the means employed and the aim pursued, the Court refers to its finding in the case Chassagnou and Others v. France (cited above, § 85), that notwithstanding the legitimate aims of the Loi Verdeille when it was adopted, the result of the compulsory transfer system which it laid down had been to place the applicants in a situation which upset the fair balance to be struck between protection of the right of property and the requirements of the general interest. Compelling small landowners to transfer hunting rights over their land so that others could make use of them, in a way which was totally incompatible with their beliefs, imposed a disproportionate burden which was not justified under the second paragraph of Article 1 of Protocol No. 1.

The Court finds that the present case differs from Chassagnou and Others v. France (cite d above) on several points, notably the following.

Firstly, un der Swedish legislation, the establishment of a game con servation area (previously called a joint hunting area) always require d the agreement of a qualified majority of the property owners concerned. By contrast, according to the said Loi Verdeille , twenty-nine d é part e ments had been made subject to the regime of compulsory creation of approved municipal hunters ’ associations.

Secondly, the Swedish legislation applied to publicly and privately owned land alike, whereas the French legislation applied only to private land.

Thirdly, whereas the mandatory applicability of the legislation at issue in the Chassagnou case was restricted to landholdings smaller than a certain fixed size, thus affecting only small landholders, the legislation relevant to the present case provided for what may be called a functional test, in that it stated that no property could be included in a game conservation area if it lacked importance for the activities within the area due to its size or use. Likewise, land that was capable of being retained as a single unit for the purpose of game conservation could not be included in the area without the owner ’ s consent. Further, under the Swedish legislation, the authorities were to apply a similar functional test when deciding whether a property could be excluded from a game conservation area.

Fourthly, while the legislation at issue in the Chassagnou case under certain circumstances vested considerable supervisory powers relating to the regulation of hunting in the Prefect, the formation of a game conservation area entailed the creation of an association of hunting right holders responsible for achieving the desired coordination of the conduct of the hunt and of the necessary measures for the protection and conservation of game. Members of the association possessed the right to vote and were able to influence the decisions of the association on equal terms.

Fifthly, and m ost importantly, however, under the Swedish legislation a property owner who for reasons of conscience was opposed to hunting was entitled to have his property excluded from the hunt. Accordingly, the very specific situation at issue in the Chassagnou case , where small landowners were compelled to transfer hunting rights over the ir land so that others could make use of them in a way which was totally incompatible with their beliefs was one which would not arise under the Swedish legislation (see, a contrario , Baudiniere and Vauzelle v. France (dec.), nos. 25708/03 and 25719/03, 6 December 2007) .

Turning to the specific facts of the present case, the property in question had been included in the joint hunting area in 1952. The applicant inherited the property from his father in 1973. Twenty-eight years later, in 2001, he sought the exclusion of the property from the renamed game conservation area. Referring among other things to his age, fifty ‑ five at the relevant time, he submitted that he preferred hunting alone and on a smaller scale and therefore wished to have his property registered as a “one calf area” allowing him to shoot one elk calf per year.

The applicant ’ s property of twenty-eight hectares was situated in the north-east corner of the game conservation area comprising 5,567 hectares of land or 6,145 hectares including both land and water areas. Slightly more than a hundred and fifty properties or plots thereof were included in the area, many of them covering between one and three hectares.

In a decision of 9 February 2001 the County Administrative Board examined the applicant ’ s request for exclusion of his property under s ection 33 of the Game Con servation Areas Act 2000 , which provide d for exclusion on two separate grounds . It concluded that the applicant ’ s property could not be excluded on either of those grounds .

With respect to the first ground, the County Administrative Board observed that the use of the property was unchanged . Moreover, it could not be considered that the property lacked essential importance for the activity in the area, since together with a number of other properties it formed the basis of the activity, which was to promote game con servation through the coordination of hunting.

With respect to t he second ground, the County Administrative Board expressed the view that effective game con servation in the sense referred to in the Hunting Act could not be conducted in an area too small to allow the shooting of at least one adult elk per year. Similarly, an area of that kind could not constitute a separate unit for game con servation.

Finally, the County Administrative Board considered that a decision to refuse the applicant ’ s request was in conformity with the proportionality principle contained in the Instrument of Government and the Convention, inter alia because there were strong reasons to support the view that it would be detrimental to effective game conservation if existing game conservation areas were divided into smaller sections. It noted that game conservation of the elk stock was only efficient when it could be carried out in a continuous area and that properly conducted hunting based on biological grounds could regulate the numbers of large game, so that the requirements of the Hunting Act regarding conservation and promotion could be fulfilled.

The grounds were concurred with by the County Administrative Court and subsequently both the Administrative Court of Appeal and the Supreme Administrative Court refused leave to appeal.

The applicant ’ s property thus remained part of the game conservation area, which entailed that hunting thereon continued to be subject to the decisions of the GCAA and to be carried out as community hunting.

The Court notes that the applicant is not opposed to hunting and that he does not wish to prevent others from hunting on his land. Moreover, for twenty-eight years he benefited from his property ’ s inclusion in the game conservation area and he still has the right to hunt within that area, including on his own property , although he has to do so in compliance with the GCAA ’ s decisions, provided that those are in conformity with the relevant hunting legislation.

T he Court does not consider that the inconvenience caused to the applicant – namely, the fact that he is unable to hunt in the manner which h e personal ly prefer s – as a result of the refusal to exclude his property from the game conservation area is of such a level that it can be regarded as imposing an excessive burden on him .

Finally, it appears that the applicant may convey or let his hunting rights, although with the consent of the GCAA pursuant to section 27 of the Game Preservation Areas Act.

In the light of these considerations, and having regard to the wide margin of appreciation enjoyed by the Contracting States, the Court cannot find that the decision to refuse to exclude the applicant ’ s property from the game conservation area was disproportionate to the aim pursued.

I t follows that th is part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

II . Moreover, when lodging his application on 14 March 2005, the applicant alleged that the Swedish authorities ’ refusal to exclude his property from the game conservation area infringed his rights guaranteed under Articles 11 (freedom of association) and 14 (prohibition of discrimination) of the Convention.

When submitting his observations on 19 July 2007, the applicant submitted that instead the matter should be dealt with under Article 8 (respect for private life) of the Convention. He submitted that he had already referred to the “privacy” aspect in the case before the domestic authorities.

In so far as the applicant has not withdrawn his complaints, and has complied with the six-month time-limit set out in Article 35 § 1, the Court reiterates that the latter provision also sets out the rule on exhaustion of domestic remedies, which is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, inter alia, Selmouni v. France [GC] , no. 25803/94, § 74, ECHR 1999-V).

In the Court ’ s view the applicant failed to raise, either in form or substance, before the County Administrative Board or the Administrative Court , the complaints made to it. It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.

For these reasons, the Cou rt unanimously

Declares the application inadmissible.

             Santiago Quesada Josep Casadevall Registrar President