AS TO THE ADMISSIBILITY OF
Application No. 11763/85
by Sten BANÉR
against Sweden
The European Commission of Human Rights sitting in private on
9 March 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
M. F. MARTINEZ
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 September
1985 by Sten BANER against Sweden and registered on 12 September 1985
under file No. 11763/85;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to the observations submitted by the Government
on 14 October 1987 and 28 March 1988 and the applicant's observations
of 8 January 1988 and 4 January 1989 as well as the submissions of the
parties at the hearing held on 9 March 1989;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is a Swedish citizen, born in 1920. He is an
estate owner. He is represented before the Commission by
Mr. Michaël Hernmarck, a lawyer practising at Danderyd, outside
Stockholm.
The applicant is the owner of an estate called the Sjöö
Estate. It is an overall name for an agricultural estate which
consists of several registered properties.
The properties are located in the municipality of Enköping in
the county of Uppsala and cover an area of 1,000 hectares. The estate
also includes water areas which cover some 600 hectares of the lake of
Mälaren. Since 1964 the water areas have no longer been leased to
professional fishermen. At that time two tenants earned their living
on fishing in the waters of the Sjöö Estate. No fishing licences have
been sold to the public by the applicant. Such fishing as has taken
place has been for household purposes by the holder of the Estate.
In addition, the employees of the Estate are allowed to fish for
household purposes without payment of compensation. The fish, which
can be caught in the waters with hand-held tackle, consist principally
of pike, pike-perch and perch. White fish, burbot and eel are also
found.
On 1 May 1985 new legislation entered into force which made
fishing with hand-held tackle (handredskapsfiske) licence-free for
everybody. Thereby the applicant's exclusive right to such fishing in
his waters has been transformed so that everybody is now entitled to
fish with hand-held tackle in these waters. The applicant states
that, as a result, the number of fishermen increased significantly.
The people who visit these waters in pleasure boats or go ashore on
the beaches have with them, and use, casting rods and the like. The
number of fishermen during the summer has increased considerably
compared to the situation before 1 May 1985. There has also been an
increase in illegal fishing. Previously, some people used to "poach"
using hand-held tackle when they were visiting in order to sunbathe or
swim or for other recreational purposes. Now, when this type of
fishing has been made legal, nets are also being laid along the side
of boats, especially when people stay overnight. The fishing waters
are attractively located some sixty minutes by car from the centre of
Stockholm and close to other towns which surround the lake of Mälaren.
These waters are now subject to great pressure from sporting
fishermen.
The 1985 legislation involved in essence an amendment of the
Fishing Rights Act (lagen om rätt till fiske) and a new Act on
Compensation for Interferences with Private Fishing Rights (lagen om
ersättning för intrång i enskild fiskerätt; hereinafter referred to as
"the Compensation Act").
The amendment of the Fishing Rights Act consisted essentially
of the introduction of a Section 20 a which reads as follows :
(Swedish)
"Vid kusten av Östhammars kommun i Uppsala län, Stockholms
län, Södermanlands län, Östergötlands län, Kalmar län,
Gotlands län och Blekinge län samt i Vänern, Vättern,
Mälaren, Hjälmaren och Storsjön i Jämtland får svenska
medborgare, utöver vad som följer av 7-11 och 14-20 §§, fiska
i enskilt vatten med metspö, kastspö, pilk och liknande
handredskap som är utrustat med lina och krok. Redskapet får
dock inte ha mer än tio krokar. Ej heller får fiskemetoden
som sådan kräva användning av båt.
(English translation)
"Along the coast of the municipality of Östhammar of the
county of Uppsala, the county of Stockholm, the county of
Östergötland, the county of Kalmar, the county of Gotland,
the county of Blekinge and in the lakes of Vänern, Vättern,
Mälaren, Hjälmaren and Storsjön of Jämtland, Swedish citizens
may, subject to the provisions of Sections 7-11 and 14-20,
fish in private waters with rod, casting rod, jig and similar
hand-held tackle equipped with line and hook. The tackle may
however not include more than ten hooks. The fishing method
may also not require the use of a boat."
Section 1 para. 1 of the Compensation Act provides as follows:
(Swedish)
"Medför bestämmelserna om handredskapsfiske enligt 20 a §
lagen (1950:596) om rätt till fiske ett inkomstbortfall för
den som är innehavare av enskild fiskerätt, har han enligt
denna lag rätt till ersättning av staten för
inkomstbortfallet."
(English translation)
"If the provisions on fishing with hand-held tackle under
Section 20 a of the Fishing Rights Act involve a loss of
income for the proprietor of a private fishing right he is
entitled under this Act to compensation from the State for
the loss of income."
A transitional provision to the Compensation Act provides
that income received as a result of measures taken after 1 March 1984
shall not be the basis for the calculation of compensation under the
Act.
In the Government Bill 1984/85:107 (pp. 42-43), the Minister of
Agriculture made inter alia the following statements:
The purpose of making fishing with hand-held tackle free was to
meet the public's interest in leisure activities. In most cases no
damage would be done to the fishing rights owner if fishing with
hand-held tackle was made free. However, in some special cases there
ought to be a possibility for the fishing rights owner to receive
compensation. For a right to compensation it ought to be required that
the interference was somewhat substantial. Everyone must be prepared
to accept a certain interference in the public interest without
compensation. Since free fishing with hand-held tackle would not
affect the use of the water for other purposes than fishing the
compensation rule could be restricted to cover interferences which
resulted in ongoing use of fishing in private waters being rendered
considerably more difficult. Compensation should not be paid for other
interferences than in ongoing use of water for fishing. If the waters
had not previously been used for fishing there could be no
compensation. Expectation values should thus not be compensated. The
compensation should be assessed on the basis of actual loss of income
suffered by the individual fishing rights owner as a result of the
free fishing with hand-held tackle. For a right to compensation it
ought to be required that the damage did not appear to be
insignificant seen in absolute figures.
Before the Government's proposal was submitted to Parliament,
it was examined by the Law Council (lagrådet), composed of two judges
of the Supreme Court (högsta domstolen) and one judge of the Supreme
Administrative Court (regeringsrätten). The Law Council found,
although proposing a certain increase in the right to compensation,
that the proposed legislation did not violate the Swedish
Constitution.
When the proposed legislation was examined in Parliament the
Standing Committee on Agriculture (jordbruksutskottet) made the
following statement (JoU 1984/85:20, page 15):
"The Committee supports the statement made by the Minister of
Agriculture that this is not a question of such transfer of
property which is covered by the provision in Chapter 2
Section 18 of the Instrument of Government on expropriation.
However, the Committee also shares the view of the Minister of
Agriculture that it is important that the question of
compensation is given a satisfactory solution with regard to
the protection of the individual at which the said
constitutional provision is aiming. For that reason those
private fishing rights owners who suffer financial losses
as a result of the free fishing with hand-held tackle, should
be entitled to compensation for such losses in accordance with
grounds laid down in the law. It is reasonable that this right
to compensation covers every personal financial loss which the
fishing rights owners may suffer."
Claims for compensation should be submitted to the National
Board of Fisheries (fiskeristyrelsen) before the end of 1989. The
National Board of Fisheries decides on issues of compensation. No
appeal lies against this decision. However, a property owner who is
not satisfied with a decision of the National Board of Fisheries can
institute proceedings before the Real Estate Court
(fastighetsdomstolen).
The applicant states that, since he has not suffered any
financial loss in the sense that he has lost income as a result of
the new legislation, he has no right to compensation under the
Compensation Act and he has thus not submitted any claim for such
compensation.
The background and reasons for the 1985 legislation are
described as follows by the Government (with reference to the
Government Bill 1984/85:107):
The reform constitutes a part of the public recreation policy.
From the social aspect it is important for people to have
opportunities for relaxation and activities in their leisure time.
This need increases as leisure time increases and daily work requires
less physical effort. There are numerous obstacles limiting
opportunities for utilising leisure time. Many leisure activities
require expensive equipment. One's own holiday cottage, a craft or
caravan and access to a car are often required to get to recreation
areas. People living in large towns often live far from unexploited
countryside and the recreation facilities offered thereby.
Furthermore, many people who have moved to the towns previously had a
natural and spontaneous contact with unspoiled nature which is now
lost. Recreational fishing means a great deal to these people. All
three of the big-city areas in Sweden are located close to the sea
coast. Two of them also offer suitable lakes in the immediate vicinity
of residential areas. Distance therefore does not have to be a problem
for those who wish to go fishing in their leisure time. However,
recreational fishing requires access to suitable fishing waters in the
big-city areas. In the Gothenburg and Malmö areas it was possible for
everyone to fish on the coast, but in the Stockholm area this was
prevented by the fishery legislation which meant that fishing near the
beaches and in most of the archipelago area was an exclusive right of
the owner of the fishing rights.
Furthermore, an important task for society is to make a wide
range of leisure activities available to all. This is particularly
important since the opportunity of leisure activities and exercise is
of great significance to health, adjustment and well-being in society.
Recreational fishing offers unique opportunities for contact with
nature, exercise and relaxation and it is open to anyone. It activates
people from all groups of society. The social bias often evident in
other leisure activities does not exist in recreational fishing. It is
also an important supplement to other leisure activities such as
boating, hiking, holiday trips and camping. Recreational fishing can
also provide an added source of livelihood, enabling settling in
sparsely populated areas where other sources of livelihood are
limited. An important task for society is to contribute to offering
the public a rich and varied range of leisure opportunities.
Experience shows that active recreational fishing plays an important
part in the social recreation policy.
In the Bill submitted to Parliament, in which the reform was
proposed, the Minister of Agriculture stated the following:
"It is unusually difficult to obtain any clear picture of the
current legislation on fishing rights. This is evident from
the summary of the system of regulations given in the
memorandum. Regulations which at the time they were issued may
have seemed reasonable and fair, now appear difficult to
understand, complicated and sometimes illogical. One of the
most striking examples of this is that on certain stretches of
the coast the public may fish freely with nets but may not use
hand-held tackle. The provisions of the Fishing Act are
supplemented by provisions concerning conservation and
operation of fishing issued by the Government in the Ordinance
on Fishery and other provisions notified by the National Board
of Fisheries or by the County Administrative Boards. This
accumulation of regulations is extremely extensive and
contains such a multitude of detail that it is difficult for
an individual to acquire adequate information as to where,
when and how he may fish. The fact that the regulations are
often considered complicated or are misunderstood entails an
apparent risk of even regulations which are well-motivated
from the conservation aspect being disregarded.
Even today the owners of fishing rights do not make full claim
to their rights, but allow the public to fish with hand-held
tackle and even with nets along large parts of the coastal
stretches now under discussion.
In the light of this I look upon the proposal to increase the
public's opportunities to fish freely with hand-held tackle
as a natural and essential step towards simplification. If it
is implemented, this will allow fishing with hand-held tackle
in both public and private waters along all coasts and in the
large lakes. The only limitation remaining will be the
exclusion of salmon fishing along the coast of Norrland (from
Östhammar municipality to the Finnish border). As long as only
hand-held tackle are used, the reform will relieve both the
public and the authorities of keeping track of where the
boundary lies between public and private waters. Besides the
other reasons favouring the reform, I also consider this
simplification to have a considerable intrinsic value.
As appears from what I have already submitted, Parliament on
two previous occasions, by requesting a proposal from the
Government, has already reached a decision in principle to
allow fishing with hand-held tackle to be free. The task of
the Government now, therefore, is to draw up the legislative
proposals required to implement the reform. Replacing this
reform by forming fishery conservation areas within all
private waters in the areas under discussion is, for several
reasons, not a realistic alternative. Fishery conservation
areas cannot simply replace free fishing with hand-held
tackle. The formation of such conservation areas aims
primarily at improving fishery conservation and not at giving
the public free access to fishing. Furthermore, in my opinion,
fishery conservation areas formed compulsorily, as they often
would be, would constitute a far greater interference with the
individual's rights than the free fishing with hand-held
tackle. Voluntary formation of fishery conservation areas
which can give the public access to fishing-grounds to the
same extent as free fishing with hand-held tackle cannot be
expected within a reasonable time.
However, the reform should not entail any new obstacles to the
formation of fishery conservation areas."
The Standing Committee on Agriculture made the following
statement (JoU 1984/85:26 p. 10):
"The Government's proposal... means that Parliament's
wish, expressed two years ago, is now satisfied. An important
recreational political reform is implemented since fishing
with hand-held tackle, in the future, will be free along all
coasts of Sweden and in the large lakes... It is a strong
public interest to make possible, in this way, an increased
offer of leisure activities to the population in for instance
the metropolitan areas... The Committee also finds it
valuable that the fishing legislation is considerably
simplified by the proposal."
The applicant has submitted an estimate of the financial
losses he has suffered as a result of the 1985 reform. On the basis of
an income of 35 SEK per hectare fishing water area the applicant has
calculated that his loss per 1 April 1985 with a discount rate of 4%,
capitalised for all time, amounts to 525,000 SEK.
Chapter 2 Section 18 of the Instrument of Government
(regeringsformen) reads:
(Swedish)
"Varje medborgare vilkens egendom tages i anspråk genom
expropriation eller annat sådant förfogande skall vara
tillförsäkrad ersättning för förlusten enligt grunder som
bestämmes i lag."
(English translation)
"Every citizen whose property is taken through expropriation
or other similar use shall be entitled to compensation for the
loss according to rules laid down by law."
Chapter 11 Section 14 of the Instrument of Government reads:
(Swedish)
"Finner domstol eller annat offentligt organ att en föreskrift
står i strid med bestämmelse i grundlag eller annan överordnad
författning eller att stadgad ordning i något väsentligt
hänseende har åsidosatts vid dess tillkomst, får föreskriften
icke tillämpas. Har riksdagen eller regeringen beslutat
föreskriften, skall tillämpning dock underlåtas endast om
felet är uppenbart."
(English translation)
"If a court or other public authority finds that a regulation
is in conflict with a provision in the Constitution or other
superior legislation or that the prescribed procedure in some
significant respect has not been observed when it was adopted,
the regulation may not be applied. However, if Parliament or
the Government have issued the regulation, it shall be
applied unless the irregularity is manifest."
COMPLAINTS
1. The applicant complains that, as a result of the 1985
legislation concerning the right of the public to fish with hand-held
tackle in his waters without the payment of compensation, there has
been a breach of Article 1 of Protocol No. 1 to the Convention. The
applicant submits that the interference with his right of property
must be characterised as a "deprivation of possessions" and not as
"control of use" of his property. The applicant further submits that,
as he receives no compensation for this deprivation of possessions,
there is no reasonable proportion between the public interest pursued
and the protection of his fundamental rights.
2. The applicant also submits that there has been a violation
of Article 14 of the Convention taken together with Article 1 of
Protocol No. 1 in that equal persons are treated unequally as regards
compensation under the new Act. The interference, which the
licence-free fishing involves for the fishing right owners, is of the
same character and has the same effect for all of them. They should
therefore be treated equally as regards compensation for their losses.
However, since only one category of fishing right owners can obtain
compensation, while other categories, to which the applicant belongs,
are entirely excluded from the opportunity even to claim or bring a
case for compensation, there is a discrimination in conflict with
Article 14 of the Convention.
3. The applicant also claims that there has been a violation of
Article 6 para. 1 of the Convention since he cannot bring before any
court the dispute as to whether the new legislation is in conflict
with the Swedish Constitution and Article 1 of Protocol No. 1.
4. The applicant also submits that he has no effective remedies
for the alleged violations of the Convention and that therefore
Article 13 of the Convention has been violated.
5. Finally, the applicant complains that Article 17 of the
Convention has been violated.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 September 1985 and
registered on 12 September 1985.
On 4 May 1987 the Commission decided to communicate the
application to the respondent Government and to invite them to
submit written observations on the admissibility and merits of the
application.
The Government's observations were received by letter dated
14 October 1987 and the applicant's observations were dated
8 January 1988. The Government submitted supplementary observations by
letter dated 28 March 1988. On 4 January 1989 the applicant submitted
an estimate of the financial losses he had suffered as a result of
the 1985 reform.
On 10 October 1988 the Commission decided to invite the
parties to a hearing on the admissibility and merits of the
application.
The hearing was held on 9 March 1989. It was a joint hearing
involving also Applications Nos. 11764/85, 11765/85, 11766/85,
11767/85, 11830/85 and 12091/86. At the hearing the parties were
represented as follows:
The Government
Mr. Hans CORELL Ambassador, Under-Secretary for
Legal and Consular Affairs, Ministry
for Foreign Affairs, Agent
Mr. Ulf ANDERSSON Assistant Under-Secretary, Ministry
for the Environment and Energy, Adviser
Mr. Carl Henrik EHRENKRONA Legal Adviser, Ministry for Foreign
Affairs, Adviser
Mr. Pär BOQVIST Legal Adviser, Ministry for Foreign
Affairs, Adviser
The Applicants
Mr. Michaël HERNMARCK (Applications Nos. 11763 and 11764/85), Lawyer
Mr. Bo NILSSON (Applications Nos. 11765 - 11767/85), Chief Legal Adviser
Mr. Lars-Åke LINDBERG (assisting Mr. Bo Nilsson), Legal Adviser
Mr. Bertil GRENNBERG (Application No. 11830/85), Patent Attorney
Mr. Jan AXELSSON (Application No. 12091/86), Lawyer
THE LAW
1. The applicant complains that the new legislation which was
introduced on 1 May 1985 and gave everybody a right to licence-free
fishing with hand-held tackle in the applicant's fishing waters
involved a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention.
Article 1 of Protocol No. 1 (P1-1) reads as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to
the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with
the general interest or to secure the payment of taxes or
other contributions or penalties."
The Government submit that the application should be rejected
for failure to exhaust domestic remedies or, alternatively, as being
manifestly ill-founded.
2. As to the condition of exhaustion of domestic remedies in Article 26
(Art. 26) of the Convention, the Government submit that the applicant has
failed to apply to the National Board of Fisheries for compensation under the
Compensation Act. If such an application were unsuccessful the applicant could
bring an action against the State before the Real Estate Court. In such
proceedings he could argue that the 1985 legislation is contrary to Chapter 2
Section 18 of the Instrument of Government and, if such an argument were
accepted, the Court could refuse to apply the legislation in application of
Chapter 11 Section 14 of the Instrument of Government.
The applicant replies that, under the Compensation Act, the right to
compensation is so restricted that it does not cover the applicant's claim and
the courts can only refuse to apply the legislation if it is proven that the
law is "manifestly" contrary to the Instrument of Government, which is not
possible to prove since the Act has been examined by the Law Council and not
been declared unconstitutional.
Article 26 (Art. 26) of the Convention provides that the Commission may
only deal with a matter "after all domestic remedies have been exhausted,
according to the generally recognised rules of international law, and within a
period of six months from the date on which the final decision was taken". It
is established case-law that "the final decision" refers only to domestic
remedies which can be considered to be "effective and sufficient" for the
purpose of rectifying the subject-matter of the complaint (see, inter alia, No.
9599/81, Dec. 11.3.85, D.R. 42 p. 33). In a recent case against Sweden (No.
12810/87, Dec. 18.1.89, not yet published) the Commission found that a
compensation claim based on Chapter 2 Section 18 of the Instrument of
Government was not an "effective remedy" in the circumstances of that case.
The issue of non-exhaustion in the present case is twofold; on the one
hand, whether the applicant could secure compensation under the Compensation
Act and, on the other hand, whether he could secure compensation under Chapter
2 Section 18 of the Instrument of Government.
The applicant does not allege that he has lost any actual income as a
result of the new law, but that the result of the law is that he has been
deprived of property. He has lost the potential opportunity to make profitable
use of his former exclusive right to fish and has therefore suffered a value
loss since he can no longer sell fishing permits. The loss can be estimated,
on the basis of possible income from fishing permit sales, at 525.000 SEK.
There is no case-law showing that the applicant could secure
compensation on this basis under the Compensation Act. Furthermore, having
regard to the text of the Compensation Act including its transitional provision
and the preparatory works, the Commission finds that the Government have failed
to show that the Compensation Act could possibly secure the applicant any
compensation for the alleged financial losses.
As regards compensation on the basis of the constitutional provision in
the Instrument of Government, the Commission notes that a court could only
grant compensation under that provision if it found that the Compensation Act
was "manifestly" contrary to the Constitution. In view of the fact that the
Compensation Act was examined by the Law Council, composed of two judges of the
Supreme Court and one judge of the Supreme Administrative Court, which found
that its provisions did not violate the Constitution, it cannot be held that a
compensation claim based on Chapter 2 Section 18 is an "effective" remedy in
the circumstances.
Consequently, the application cannot be rejected, under Article 27
para. 3 (Art. 27-3) in conjunction with Article 26 (Art. 26) of the Convention,
for failure to exhaust domestic remedies.
3. The Commission has next examined whether the application is manifestly
ill-founded, as claimed by the Government. It here notes that, prior to the
introduction of the new legislation in 1985, the applicant had an exclusive
right to use his own waters for fishing. The new provision in Section 20 a of
the Fishing Rights Act implies that the applicant no longer has an exclusive
right to fishing with hand-held tackle. In this respect, everybody has
henceforth the right to fish in his waters. The applicant submits that as a
result of the new legislation the public has, to a considerable extent, started
fishing with hand-held tackle in his waters, both from the shore and from
boats.
The Commission considers that the introduction of the new legislation
in 1985 and its effects constitute an interference with the applicant's right
to the peaceful enjoyment of his possessions as guaranteed by Article 1 of
Protocol No. 1 (P1-1). It must therefore be examined whether this interference
was justified under the terms of Article 1 (Art. 1).
Article 1 of Protocol No. 1 (P1-1) guarantees the right of property. It
comprises three rules. The first rule which is set out in the first sentence
of the first paragraph is of a general nature and enunciates the principle of
the peaceful enjoyment of property. The second rule, which is set out in the
second sentence of the first paragraph, covers deprivation of possessions and
subjects it to certain conditions. The third rule, which is set out in the
second paragraph, recognises that the Contracting States are entitled, amongst
other things, to control the use of property in accordance with the general
interest. The three rules are connected. The second and third rules are
concerned with particular instances of interference with the right to peaceful
enjoyment of property and are therefore to be construed in the light of the
general principle enunciated in the first rule.
A preliminary issue under Article 1 (Art. 1) is whether in the present
case the interference with the right to peaceful enjoyment of possessions is to
be regarded as a deprivation of possessions (the second rule), control of the
use of property (the third rule) or a third form of interference to be
considered under the first rule.
4. In order to determine this issue, it is appropriate to recall the
general legal situation concerning fishing rights and the particular situation
of the applicant as well as the public's rights before and after the 1985 law
reform.
Before the 1985 reform the regulations concerning fishing rights were
very complicated and differed according to the geographical area concerned.
For instance, the three big-city areas of Sweden (Stockholm, Gothenburg and
Malmö) are situated close to water areas. In the Gothenburg and Malmö areas
fishing with hand-held tackle on the coast was open to everybody also before
the 1985 reform. However, in the Stockholm area such fishing near the shores,
in the archipelago area and in the lake of Mälaren, was the exclusive right of
the fishing rights owner. On some stretches of the coast outside Gotland and
Blekinge fishing with nets was free but not with hand-held tackle. The result
of the 1985 reform was that fishing with hand-held tackle was free along all
coasts and in the large lakes in both public and private waters, apart from
salmon fishing along the northeast coast.
The public's right of access to private land (allemansrätten) implies
that any land owner in Sweden must accept that everybody uses his land in
certain manners. As regards water areas everybody is entitled to travel by
boat or swim across and temporarily stay in private waters, and, in the winter
time, to walk or otherwise move around on the ice provided that serious
inconveniences are not caused to the owner. As regards the use of land
everybody may pass over private land by foot. It is permitted to camp for a
short while, to swim and to make picnics.
The 1985 reform gave the public a right to fish in private waters.
This fishing right was however limited to fishing with hand-held tackle. The
property owner retained the exclusive right to other manners of fishing, for
instance with net. The result of the reform was, consequently, that the land
owner was deprived of his previous exclusive right to fish with hand-held
tackle. The essential economical significance of this was that the land owner
could no longer make any profit from this sort of fishing by selling fishing
cards or otherwise.
The 1985 reform was not limited to a restricted number of properties,
but covered all properties on the Swedish east coast from the municipality of
Östhammar in the County of Uppsala to Blekinge County and all the properties in
or around the five largest lakes, including the lake of Mälaren.
5. As regards the question whether the applicant has been deprived of
property, the Commission recalls that, according to the established case-law,
deprivation of property within the meaning of Article 1 of Protocol No. 1
(P1-1) is not limited to cases where property is formally expropriated, i.e.
where there is a transfer of the title to the property. "Deprivation" may also
exist where the measure complained of affects the substance of the property to
such a degree that there has been a de facto expropriation or where the measure
complained of "can be assimilated to a deprivation of possessions" (cf. Eur.
Court H.R., Sporrong and Lönnroth judgment of 23 September 1982, Series A no.
52, p. 24, para. 63).
It is clear that the applicant has not been formally deprived of his
property. He still retains the title to it. The applicant has also not been
deprived of his right to fish, including the right to fish with hand-held
tackle. What he has lost is his right to exclude others from fishing with
hand-held tackle.
Legislation of a general character affecting and redefining the rights
of property owners cannot normally be assimilated to expropriation even if some
aspect of the property right is thereby interfered with or even taken away.
There are many examples in the Contracting States that the right to property is
redefined as a result of legislative acts. Indeed, the wording of Article 1
para. 2 (Art. 1-2) shows that general rules regulating the use of property are
not to be considered as expropriation. The Commission finds support for this
view in the national laws of many countries which make a clear distinction
between, on the one hand, general legislation redefining the content of the
property right and expropriation, on the other.
The Commission has for the same reasons in cases concerning rent
regulations, which have seriously affected the right to property, nevertheless
held that such regulations fall to be considered under the "control of use"
rule (cf. Mellacher and others v. Austria, Comm. Rep. 11.7.88, at present
pending before the European Court of Human Rights).
The Commission observes in the present case that the aim of the 1985
reform was to extend the public's right to fish with hand-held tackle. This
right had existed in large areas of Sweden already before 1985. In those areas
the property owners could not exclude fishing with hand-held tackle. This
shows that the restrictions at issue were not alien to the property of fishing
waters in Sweden even before 1985. The restrictions which this reform entailed
on the applicant's right to his property cannot be assimilated to expropriation
or be said to have had such severe consequences that they affected the
substance of the right to property.
Consequently, the Commission finds that the applicant was not deprived
of his possessions and the second sentence of the first paragraph of Article 1
of Protocol No. 1 (P1-1) does not apply.
6. The Commission considers that the restrictions on the applicant's
property must be examined under the "control of use" rule in the second
paragraph of Article 1 (Art. 1).
The applicant argues that the second paragraph cannot apply since the
1985 reform does not involve any true "control" of any "use" which he has made
of his property. However, the French text speaks of "réglementer l'usage des
biens", which more accurately describes what, in the Commission's view, must be
the purpose of the second paragraph. This provision must be understood to
permit the enforcement of laws which are deemed necessary to regulate the use
of property.
The Commission considers that the 1985 reform was a law which was
enforced to regulate the use of property. The question of the justification of
the interference created by the 1985 reform must therefore be examined under
the second paragraph of Article 1 of Protocol No. 1 (P1-1), to establish
whether the interference was "lawful", whether it pursued a "general interest",
and whether it was proportionate and therefore could be "deemed necessary".
The Commission here notes that the interference with the
applicant's fishing rights was provided for by the set of provisions
contained in the 1985 legislative reform, notably Section 20 a of the
Fishing Rights Act and the Compensation Act. It is true that,
according to the applicant, the interference with his rights was
unlawful under the Swedish Constitution. The Commission, however,
having regard to the background of the 1985 legislation and the
finding of the Law Council, concerning the compatibility of the new
legislation with the Constitution, cannot find that the 1985
legislation failed to meet the requirement in Article 1 of being
"lawful".
The condition of "general interest" leaves a wide margin of
appreciation to the national legislation. The Convention organs will
respect the legislator's judgment as to what is a "general interest"
unless that judgment be "manifestly without reasonable foundation"
(cf. Mellacher Report, loc. cit., para. 206).
The applicant contests that the interference was in the
"general interest" arguing inter alia that the new Act was based on
political considerations with the purpose of charming part of the
electorate.
The Commission notes that the aim of the 1985 Act was to make
recreational fishing with hand-held tackle available to everybody. The
Parliamentary Standing Committee on Agriculture stated as its opinion
that the legislation was an important recreational political reform.
It considered that it was a strong public interest to provide, in this
way, for an increased opportunity of leisure activities for the public
inter alia in the metropolitan areas. It was also valuable that the
provisions concerning fishing rights were considerably simplified by
the reform.
The Swedish Parliament's opinion that such a reform was in
"the general interest" cannot in the Commission's view be considered
to transgress the margin of appreciation left to the democratic
institutions when regulating the rights of property owners and finding
the right balance between the individual and the public interests. The
Commission again notes in this context that the right of the public to
fish with hand-tackle existed in large areas of Swedish waters already
before the reform of 1985.
As regards proportionality, the Commission recalls that, under
paragraph 2 of Article 1 (Art. 1-2), the State may enforce such laws as it
"deems necessary". In the application of this test of necessity regard must be
had to the principle of respect for peaceful enjoyment of possessions which is
enunciated in the opening sentence of Article 1 (Art. 1). For this reason the
Commission must also examine "whether a reasonable relationship of
proportionality existed between the means employed and the aim sought to be
realised", or in other words, "whether a fair balance was struck between the
demands of the general interest in this respect and the interest of the
individual or individuals concerned" (Eur. Court H.R., Agosi judgment of 24
October 1986, Series A no. 108, p. 18, para. 52 and Sporrong and Lönnroth
judgment, loc. cit., p. 26, para. 69).
The applicant stresses that since he did not receive any compensation
the requirement of proportionality was not met.
It follows from the case-law of the Convention organs that as regards
deprivation of possessions there is normally an inherent right to compensation
(Eur. Court H.R., James and Others judgment of 21 February 1986, Series A no.
98, p. 36, para. 54 and Lithgow and Others judgment of 8 July 1986, Series A
no. 102, p. 51, para. 122). However, in the Commission's view such a right to
compensation is not inherent in the second paragraph. The legislation
regulating the use of property sets the framework in which the property may be
used and does not, as a rule, contain any right to compensation. This general
distinction between expropriation and regulation of use is known in many, if
not all, Convention countries.
This does not exclude that the law may provide for compensation in
cases where a regulation of use may have severe economic consequences to the
detriment of the property owner. The Commission is not required to establish
in the abstract under which circumstances Article 1 (Art. 1) may require that
compensation be paid in such cases. When assessing the proportionality of the
regulation in question it will be of relevance whether compensation is
available and to what extent a concrete economic loss was caused by the
legislation.
The 1985 legislation comprises a special Compensation Act which
provided a right for the fishing rights owner to claim compensation for loss of
income resulting from the free fishing with hand-held tackle. There is a
dispute between the parties as to the interpretation of the right to
compensation under the Compensation Act and as to whether the applicant would
have any right to compensation thereunder. It seems to be uncontested,
however, that the applicant is not entitled to any compensation for an alleged
reduction of the value of his property or for any estimated value of the income
he could have had if he had, for instance, sold fishing permits before the 1985
reform.
The Commission recalls that the applicant owns a large property
including large areas of fishing waters. He can therefore be said to have
suffered more than many others from the new Act. Nevertheless, the Commission
accepts the opinion of the Swedish Parliament that the interference created by
the introduction of free fishing with hand-held tackle may in general be
regarded as a comparatively minor interference. It also accepts that it may be
regarded as an important "general interest" to make fishing waters available
for everybody.
The Commission further recalls that the interference with the
applicant's property right was limited to one form of fishing in his waters,
namely fishing with hand-held tackle. The applicant had not before the reform
derived any income from such fishing. He cannot, therefore, claim any direct
loss of income from the reform. As to the allegation that the value of his
property was reduced, the Commission notes that the legislation affected many
fishing properties all over Sweden and it is not easy to see how a specific and
concrete reduction in value could result from this general legislation. Even
assuming that some theoretical loss in value could be established, the
Commission cannot find that such a loss caused by general legislation must
necessarily be compensated on the basis of Article 1 of Protocol No. 1 (P1-1).
Given the State's wide margin of appreciation in this domain
the Commission considers that the interference with the applicant's
property right cannot be held to be disproportionate. Consequently,
the Swedish State was entitled under the second paragraph of Article 1 (Art. 1)
to "deem necessary" the enforcement of the 1985 legislation with the
effects it had on the applicant's property right.
Accordingly, the interference with the applicant's property
right was justified under the terms of the second paragraph of Article
1 of Protocol No. 1 (P1-1).
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
7. The applicant claims that he has been a victim of
discrimination in the enjoyment of his possessions under Article 1 of
Protocol No. 1 (P1-1). He alleges a breach of Article 14 (Art. 14) of the
Convention which provides:
"The enjoyment of the rights and freedoms set forth in
this Convention shall be secured without discrimination
on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social
origin, association with a national minority, property,
birth or other status."
According to the applicant persons in an equal position are
treated unequally as regards compensation under the 1985 Compensation
Act. The Government argue that the fishing rights owners belonged to
two different categories according to whether or not they had
previously had an income from their waters. Furthermore, they were
not subject to differential treatment as the same compensation rules
applied to all of them.
The Commission does not find that differential treatment is
excluded because the legislation applies to all fishing rights owners.
The criterion is whether the legislation effectively entailed
differences of treatment in regard to the fishing rights owners. The
Commission finds that there was a difference of treatment as one group
of owners received no compensation at all, namely those who had
previously not had any income from their fishing waters.
However, for the purpose of Article 14 (Art. 14) a difference of
treatment is only discriminatory if it does not pursue a legitimate
aim and there is no reasonable relationship of proportionality between
the means employed and the aim sought to be realised (see, inter alia,
Eur. Court H.R., Belgian Linguistic judgment of 23rd July 1968,
Series A no. 6, pp. 33-34, paras. 9-10).
An examination of the complaint under Article 14 (Art. 14) thus amounts
in substance to an examination similar to the one carried out above under
Article 1 of Protocol No. 1 (P1-1), and the Commission sees no reason to
diverge from its previous conclusion. The aim pursued by the legislation was a
legitimate one in the general interest and having regard to the State's margin
of appreciation the principle of proportionality was not infringed. The
provisions in the Compensation Act restricted the right to compensation to
"loss of income", thereby excluding the fishing rights owners who had not
previously had an income from leasing or selling. This distinction has a
reasonable and objective justification and is consequently not discriminatory.
The Commission therefore finds that the facts of the case do not
disclose a violation of Article 14 (Art. 14) of the Convention taken in
conjunction with Article 1 of Protocol No. 1 (P1-1) to the Convention.
It follows that this aspect of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
8. The applicant further alleges a violation of Article 6 para. 1 (Art.
6-1) , first sentence of the Convention which provides:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
The applicant complains that the 1985 Act, without further
implementing measures, interfered with his private property right and hence
his "civil rights". The interference, in the applicant's opinion,
amounts to a violation of the Swedish Constitution. However, he
cannot bring this claim before any court in Sweden since Parliament is
the supreme body as regards the interpretation of the Constitution and
a court may only set aside the law if the law is considered to be
"manifestly" in conflict with the Constitution.
The Government argue that Article 6 para. 1 (Art. 6-1) does not grant a
right of access to court in order to challenge a law.
The Commission recalls that in the James and Others judgment
(loc. cit., p. 46, para. 81) the Court stated:
"Confirmation of this analysis is to be found in the fact
that Article 6 § 1 (Art. 6-1) does not require that there be a national
court with competence to invalidate or override national law.
In the present case, the immediate consequence of the British
legislation in issue is that the landlord cannot challenge
the tenant's entitlement to acquire the property compulsorily
in so far as the acquisition is in conformity with the
legislation."
The Commission considers that the "right" to exclusive fishing
with hand-held tackle, which the applicant had prior to the
law, was taken away from him by the new law adopted by Parliament
without any further implementing measures. A Swedish court could
only examine a claim of a breach of the Constitution if it had
competence to invalidate or set aside a law adopted by Parliament.
However, it follows from what has been said above that Article 6 para.
1 (Art. 6-1) does not guarantee access to court for such a claim.
Accordingly, the application is, in this respect, manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
9. The applicant also alleges a violation of Article 13 (Art. 13) of the
Convention which provides:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an
official capacity."
Article 13 (Art. 13) does not guarantee a remedy whereby a Contracting
State's laws as such can be challenged before a national authority on
the ground of being contrary to the Convention or to corresponding
domestic legal norms (James and Others judgment, loc. cit., p. 47,
para. 85).
The applicant's allegations of violations of the rights of the
Convention are directed at the effects of the Fishing Rights Act and
the Compensation Act.
It follows from what has been said above that Article 13
(Art. 13) does not entitle the applicant to any remedy for such allegations.
Accordingly, there is no appearance of a violation of
Article 13 (Art. 13) of the Convention.
It follows that the application is also in this respect manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
10. The applicant finally alleges a breach of Article 17 (Art. 17) of the
Convention which provides:
"Nothing in this Convention may be interpreted as
implying for any State, group or person any right to engage
in any activity or perform any act aimed at the destruction
of any of the rights and freedoms set forth herein or at
their limitation to a greater extent than is provided for in
the Convention."
Referring to its considerations above the Commission finds
no issue under Article 17 (Art. 17) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)