PARTLY DISSENTING OPINION OF JUDGE ZIEMELE

1. I consider that there was a violation with regard to both effective access to court and the length of proceedings in the circumstances of this case. Accordingly, in my view, the decision under Article 41 should have reflected this.

2. The case has arisen in the context of the dispute between the Sami, an indigenous people, and landowners in Sweden . In the last ten to twenty years, significant developments have taken place as far as the rights of indigenous peoples in international human rights law are concerned. As a result of new instruments (including the 1989 ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries and the 2007 UN Declaration on the Rights of Indigenous Peoples), old and new monitoring institutions (including the UN Working Group on Indigenous Populations, the UN Special Rapporteur on the Rights of Indigenous Peoples and the UN Expert Mechanism on the Rights of Indigenous Peoples), and concluding observations on State reports, general comments and case-law from existing UN human rights treaty bodies (including General Comment No. 23 and several cases examined by the Human Rights Committee under the International Covenant on Civil and Political Rights), special rights and special measures have been introduced in an attempt to overcome discrimination against indigenous peoples and thus to achieve equal rights. With the stated purpose of guaranteeing their cultural identities and other cultural rights, these special steps include the right of indigenous peoples to own the land which such groups have traditionally used and to engage in traditional economic activities.

3. In this regard, two Articles of the 2007 Declaration, as adopted by General Assembly Resolution 61/295, are noteworthy:

Article 26

“1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.”

Article 27

“States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples ' laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.”

4. Thus, the particular feature of this case is that it involves the Swedish Sami people or, to be precise, the Sami villages which were respondents in civil proceedings in the Swedish courts. They were taken to court by Swedish landowners who disputed the rights of Sami to winter grazing on certain lands. The dispute was settled in accordance with the rule that the burden of proof regarding these property rights lies with the Sami. It was the Sami who had to produce documentary and other evidence to the court to show that they had been winter grazing on the disputed land from time immemorial since the Swedish landowners ' title to the land was presumed to be valid.

5. In my view, in considering the rights of indigenous peoples, the Chamber based its reasoning on two false premises. First, it accepted as incontestable the fact that the plaintiffs in the domestic proceedings had valid title to the land. Second, it accepted that the rules on the burden of proof, as laid down in Sweden in the old Land Code of 1734, that is, long before any recognition of indigenous peoples emerged, were perfectly able to govern the situation. This approach excluded considerations relating to the specific context of the situation and rights of indigenous peoples in so far as it could be relevant to the issue of effective access to court.

6. According to the standard set by the legislation and explained by the domestic courts, the Sami villages were required to produce “old letters and writings deemed sufficient in law” or evidence by witnesses that they had used the land from time immemorial for winter grazing (see paragraph 33 of the judgment). The Court of Appeal went further and said that “it must be required in addition (italics added – IZ) that the results of the investigation indicate with sufficient strength that Sami have used the lands in question or parts of them for winter grazing for their reindeer with at least some regularity without hindrance ...” (ibid.). Apart from the question whether it is appropriate and fair to place such a burden on the Sami, it is clear that this process required extensive research and contributed to the legal costs of the proceedings. So that the Sami could participate in the proceedings, they had to borrow a considerable amount of money from the Sami Fund. According to Swedish law, Sami villages are not entitled to legal aid. Interestingly, it is the Kingdom of Sweden that has imposed this model of Sami villages, without considering its consequences, for example with regard to legal-aid issues.

7. I note that the UN Committee on the Elimination of Racial Discrimination (CERD) stated in its 2008 concluding observations regarding the periodic reports of Sweden under the International Convention on the Elimination of All Forms of Racial Discrimination: “While noting the State party ' s stated intention to address the reports of various inquiries regarding Sami land and resource rights in a bill to be submitted to Parliament in March 2010, the Committee reiterates its concern about the limited progress achieved in resolving Sami rights issues. ... [T]he Committee reiterates its concern regarding ... land disputes. ... It is also concerned about de facto discrimination against the Sami in legal disputes, as the burden of proof for land ownership rests exclusively with the Sami, and about the lack of legal aid provided to Sami villages as litigants” (UN Doc. CERD/C/SWE/CO/18, §§ 19-20).

8. It is true that the main issues raised in the present case were declared inadmissible by the majority of the Chamber in the decision adopted on 17 February 2009. Thus, the complaints concerning the alleged violation of the right to use land for winter grazing and the excessive burden of proof in so far as it related to equality of arms in the court proceedings were declared inadmissible. Only a very limited range of issues was left for the merits stage. Nevertheless, the Chamber declared admissible the issue of effective access to court, at least as far as the high legal costs incurred by the Sami villages in the proceedings were concerned. In the circumstances of this case, and given the burden of proof that the Sami had to satisfy, as well as the number of years spent in the domestic courts, it is no surprise that the legal costs reached such a level. The legal costs incurred show the unfairness of the approach adopted in Sweden as concerns land disputes between the Sami people and Swedish landowners. In the view of the CERD, this amounted to de facto discrimination. The European Court of Human Rights was not asked to deal with a claim of discrimination. However, from the Court ' s perspective this should have been seen as a case of ineffective access to court, especially as one party appears to have been obviously disadvantaged.

9. In the light of the above, it is unclear to me what conclusions are to be inferred when in paragraph 56 of the judgment the Court draws a comparison with an individual litigant. If the Court means to say that Sami villages are better off or in some other way stronger than individual litigants in Sweden , this ignores the realities described above.

10. The Court has explained its approach, as cited in paragraph 51, as concerns effective access to court. The standard is that parties are afforded a reasonable opportunity to present their case under conditions that do not place them at a substantial disadvantage with respect to the adversary. In cases where one party by definition is disadvantaged, proper access to court is ensured by adopting such procedures and safeguards as indeed enable that party to enjoy the same opportunities. This is what the CERD meant when criticising the fact that the burden of proving the right rests exclusively with the Sami, because the whole system presumes that the landowners have the right and they do not have to prove anything. There is therefore no doubt in my mind that the applicants ' access to court was not effective. It could not be effective until and unless the entire approach to land disputes of this kind is revised to take account of the rights and particular circumstances of indigenous peoples. The excessive legal costs and the fact that the applicants had to borrow money from their own Fund are elements of the overall unfairness.