FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28222/95 by Muonio Saami Village against Sweden

The European Court of Human Rights ( First Section ) sitting on 15 February 2000 as a Chamber composed of

Mrs E. Palm, President , Mr J. Casadevall, Mr L. Ferrari Bravo, Mr Gaukur Jörundsson, Mr C. Bîrsan, Mrs W. Thomassen, Mr T. Panţîru, judges ,

and Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 October 1994 by Muonio Saami Village against Sweden and registered on 16 August 1995 under file no. 28222/95;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 10 April 1997 and the observations in reply submitted by the applicant on 22 August 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Swedish Saami village ( sameby ).  Before the Court it is represented by Mr Johan Cahp , a lawyer practising in Stockholm.

A. Particular circumstances of the case

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

On 17 December 1991 the County Administrative Board ( länsstyrelsen ) of Norrbotten granted nine persons permits for licensed reindeer herding ( koncessions ­ renskötsel ) in the applicant Saami village during 1992.  At the same time, five persons were refused permits. The permits allowed the permit holders to herd a total of 2,300 reindeer owned by themselves.  Three of the permits were, contrary to a request made by the Saami village, granted to the brothers S.  The Board further attached certain conditions to the permits, inter alia , that the permit holders were obliged to jointly herd 1,600 reindeer belonging to others ( skötesrenar ).

The applicant Saami village, the permit holders, except for the three brothers S., and the five persons who had been refused permits appealed against the decision to the National Board of Agriculture ( Statens jordbruksverk ), claiming that the permits granted to the brothers S. and the obligation for permit holders to herd reindeer belonging to others should be revoked.  It was further requested that the five persons refused herding permits should be granted such permits and that the appellant permit holders should be allowed to herd a higher number of reindeer owned by themselves.  The appellants stated, inter alia , that the brothers S. were not members of the applicant village and thus could not be granted permits for reindeer herding within that village.  Furthermore, the obligations to herd reindeer belonging to others had allegedly no basis in law.

By decision of 16 September 1992 the National Board of Agriculture rejected the appeal.  The Board noted, inter alia , that the Government on many occasions had rejected claims concerning the revocation of the permits held by the brothers S.  The Board did not find any reason to come to a different conclusion.  As regards the challenged conditions, the National Board of Agriculture noted that the County Administrative Board, under Section 88 of the Reindeer Herding Act ( rennäringslagen , 1971:437), had a wide discretion to stipulate conditions for the herding.  The decision to oblige permit holders to herd reindeer belonging to others was within that discretion and did not require the consent of the Saami village. Finally, the National Board of Agriculture considered that no permit holders could be allowed to herd a higher number of their own reindeer, as there were already too many reindeer in the village.

Upon further appeal the Government on 19 May 1993 considered that the County Administrative Board’s decision on permits for 1992 was, in all respects, well-balanced. However, noting that the Board on 15 December 1992 had decided to extend the validity of the 1992 permits to 1993, the Government decided to strike the case out of its list of cases.

The applicant Saami village and seven individual appellants then applied to the Supreme Administrative Court ( Regeringsrätten ) for a review of the Government’s decision under the Act on Judicial Review of Certain Administrative Decisions ( lagen om rättsprövning av vissa förvaltningsbeslut , 1988:205).  In addition to the claims made before the administrative authorities, the appellants stated that the Government should have examined the case on its merits.  As it failed to do so, there was no legally binding decision on the permits for 1992.  As permits for herding in the applicant village were normally granted for one year at a time, the consequence of the Government’s decision was that appeals against the relevant decisions could not be examined by the final instance.

By judgment of 14 July 1994 the Supreme Administrative Court upheld the Government’s decision.  The court found that it could only examine whether that decision was unlawful.  In this respect the court noted that according to general legal principles a case may be struck out if the claim becomes void as a consequence of, inter alia , the expiration of a permit.

B. Relevant domestic law

a. The Reindeer Herding Act

Reindeer herding is governed by the 1971 Reindeer Hunting Act.  The main part of the Act concerns provisions establishing who has the right to carry on reindeer herding, where and when such rights may be exercised and how the activities are to be organised and carried on.

According to Section 1 of the Act, a person who is of Saami descent (a Saami ) has the right to use land and water for his own maintenance and that of his reindeer, reindeer herding right ( renskötselrätt ).  This right belongs to all Saamis but may only be exercised by those who are members of a Saami village.  A Saami village is a geographical grazing area and an economic entity.  The object of a Saami village, which may acquire rights and undertake commitments, is to manage, in accordance with the Act, the reindeer herding within the pasture area of the village to the common benefit of its members (Sections 9–10).  A member of a Saami village is, inter alia , a Saami who participates in reindeer herding within the pasture area of the village (Section 11).  The County Administrative Board shall decide the largest number of reindeer that may be kept grazing within the pasture area (Section 15).

Any person who is entitled to herd reindeer can obtain permission (a licence) to carry on reindeer herding within certain areas where reindeer herding otherwise may be carried on only part of the year.  Such a licence includes the right to herd not only reindeer owned by the licence holder but also reindeer belonging to, inter alia , a person who owns or manages farm property, which is located wholly or partially within the licensed area, if he resides at the property within the area.  A licence may only be granted if continued reindeer herding within the area is of substantial benefit locally and only if it can be assumed that the person applying for a licence will carry on reindeer herding in an appropriate manner (Section 85).

The Act further contains provisions under which certain rights to carry on reindeer herding may be granted (licensed reindeer hunting).  A licence may only be granted if continued reindeer herding within the area is of substantial benefit locally and only if it can be assumed that the person applying for a licence will carry on reindeer herding in an appropriate manner (Section 85).

A licence is granted for a specific period of time, at most ten years.  In decisions whereby licences are granted, the following, inter alia , shall be specified:  The licensed area, the largest number of reindeer which each licence holder may herd within the area, and the largest number of reindeer belonging to others for which the licence holder may accept responsibility (Sections 85 and 88).

As in the case of reindeer herding in general, there shall be Saami villages for licensed herding of reindeer.  Once a licence is granted, the licence holder automatically becomes a member of the village.  With a few exceptions the general provisions on Saami villages and their administration are valid, where applicable, also as regards a Saami village for licensed reindeer herding (Section 86).

Questions pertaining to licences are considered and decided on by the County Administrative Board (Section 87).  At the time of the decision taken by the Board in the present case, a decision of such character should be appealed to the National Board of Agriculture and a decision of the latter to the Government (Section 99 in its wording before 1 January 1997).  As of 1 January 1997, however, decisions of the same character are open for examination by the administrative courts.

b. The Act on Judicial Review of Certain Administrative Decisions

A decision as in the present case taken by the Government under the 1971 Reindeer Herding Act in its wording before 1 January 1997 was open to court review by the Supreme Administrative Court in accordance with the 1988 Act on Judicial Review of Certain Administrative Decisions.

The Supreme Administrative Court’s examination is in principle limited to the question whether the challenged decision is contrary to any legal provisions.  According to the travaux préparatoires to the 1988 Act (cf. Government Bill 1987/88:69, pp. 23–25), the examination shall be concentrated on the lawfulness of the challenged decisions.  But the competence of the court should not be restricted only to an examination of the application of the relevant law in the particular case.  The court also has the power to re-examine the facts upon which the application of the law has been based.  Furthermore, the court should examine whether the challenged decision is compatible with the constitutional principles set out in Chapter 1, Section 9 of the Instrument of Government: objectivity, impartiality and the principle of equality before the law.  In addition, it should examine whether errors in the procedure have occurred that might have affected the outcome of the case.  In case the authority responsible for the challenged decision has had the discretion under the relevant law to make a choice between a number of different options, all which must be considered  lawful, the court’s examination should be restricted to the question whether the challenged decision falls within the discretion thus afforded to the authority concerned under the law in question.

If the court were to find that an administrative decision is contrary to a certain legal provision, it shall quash the decision.  If the quashed decision ought to be replaced by another decision, the court shall refer the case back to the administrative authority that made the challenged decision.  If the court finds the decision lawful, it will stand valid.

An examination under the 1988 Act does not prevent the enforcement of the challenged decision, unless the court decides otherwise.

COMPLAINTS

Invoking Article 6 of the Convention, the applicant Saami village complains that there was no determination of the village’s rights in respect of reindeer herding by an independent tribunal.

PROCEDURE

The application was introduced on 7 October 1994 and registered on 16 August 1995.

On 27 November 1996 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 10 April 1997, after an extension of the time-limit fixed for that purpose. The applicant village replied on 22 August 1997, also after an extension of the time-limit.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant Saami village complains that its rights were not determined by an independent tribunal.

Article 6 § 1 of the Convention reads as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

The Government maintain that reindeer herding must be said to constitute a right recognised under national law which subject to certain conditions are afforded members of a Saami village, and that this right must be considered to be a civil right within the meaning of Article 6 of the Convention.  The Government’s decision on 19 May 1993 was not open to a review on the merits by a court of law or any other body which could be considered as a “tribunal” for the purposes of Article 6 § 1 of the Convention.  The Government do not argue that there were circumstances justifying that there was in this case no court examination of the applicant Saami village’s case on the merits.  In view thereof, the Government accept that the case is admissible and admit that there has been a violation of Article 6 § 1 of the Convention.

The Court considers, in the light of the Government’s submission, that the case raises issues of fact and law under the Convention, the determination of which should depend on an examination of the merits of the application.  The Court concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention.  No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Michael O’Boyle Josep Casadevall Registrar President