CLAESSON AND OTHERS v. SWEDEN

AS TO THE ADMISSIBILITY OF

Application No. 13903/88

by Carl CLAESSON and Others

against Sweden

The European Commission of Human Rights sitting in private on 1 July 1992, the following members being present:

MM.S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs.G.H. THUNE

MM.F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr.  K. ROGGE, Secretary to the Second Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 May 1988 by Carl CLAESSON and Others against Sweden and registered on 7 June 1988 under file No. 13903/88;

Having regard to

-the report provided for in Rule 47 of the Rules of Procedure of the Commission;

-the observations submitted by the respondent Government on 25 February 1991 and the observations submitted by the applicants on 23 April 1991;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are 28 physical and legal persons who own properties located within nature conservation areas on the Swedish East coast. A list of the applicants is set out in the Annex. They have been represented before the Commission by Mr P. Borna, a lawyer who practised in Växjö and who died while the proceedings were pending before the Commission.

The facts of the case may be summarised as follows.

A. Particular circumstances of the case

The applicants own properties on the Swedish East coast which include private waters located in areas  where, before 1985 (see below), fishing was the exclusive right of the property owner.

Between 1965 and 1973 the County Administrative Board (läns-styrelsen) of the County of Kalmar declared ten land and water areas as nature conservation areas (naturreservat) under the 1964 Nature Conservation Act (naturvårdslagen 1964:822, hereinafter "the 1964 Act").

In 1973 the Board issued, under section 8 of the 1964 Act, regulations restricting the use of the land within these areas, inter alia regarding the right to build, to excavate and to undertake other similar activities.

At the same time the Board also issued, under section 10 of the Act, a prohibition for the general public to hunt, catch, kill or in any way hurt wild animals - including, according to the applicants, fish - within the nature conservation areas.

The applicants maintain that the official who represented the State in the elaboration of these regulations guaranteed, in the course of the rule-making process, that the property owners would keep the exclusive right to fish in their waters forever even if legislation were to be introduced granting the general public a right to fish in private waters. The applicants also claim that this guarantee was at the basis of certain agreements reached at the time regarding compensation for the restrictions imposed on the use of their properties.

On 1 May 1985 an amendment (lag 1985:138, hereinafter "the 1985 reform") to the Fishing Rights Act 1950 (lag 1950:596 om rätt till fiske) made fishing with hand-held tackle free for everybody in most Swedish waters.

On 24 March 1987 the Kalmar County Administrative Board amended the above-mentioned prohibition inter alia with regard to hunting to the effect that the general public would henceforth be prohibited only from hunting, killing, catching or hurting wild mammals (emphasis added), batrachians and birds. The applicants maintain that the killing of fish was, thus, no longer prohibited and that, since the 1985 reform was in force, the decision meant that the general public could henceforth fish with hand-held tackle in their waters.

In its decision the Board stated inter alia the following (translation from Swedish):

"In connection with the creation of a number of nature reserves comprising water areas, a regulation defining the duties of the general public was issued under section 10 of the [1964 Act]. According to its wording it prohibited the killing of animals in these areas ... .

After the introduction on 1 May 1985 of the right to free fishing with hand-held tackle ... the above-mentioned regulation has been interpreted, amongst others by certain property owners, as protecting also fish. According to these persons fishing with hand-held tackle would not be permitted for the general public within these reserves. On 12 May 1986 the National Environment Protection Board (naturvårdsverket)  has in response hereto informed the county administrative boards concerned that it is important that the boards review those nature reserve regulations which concern the general public's right to fish and also the question of how the right to free fishing with hand-held tackle interferes with the purpose underlying the creation of the reserves. The National Environment Protection Board adds that the fish fauna shall, in principle, be protected through the fishing legislation.

...

REASONS

When the reserves on the East coast were created, no right to free fishing with hand-held tackle existed and neither the property owners nor the County Administrative Board saw any reasons to decide whether such a right should be introduced in the reserves (a certain right to free fishing with nets, amongst other gear, did however exist). The question of whether or not to accept a right to free fishing with hand-held tackle within the reserves came up only after the fishing reform in 1985. In the nature reserves created from 1974 onward the scope of the regulation at issue has been limited to cover wild mammals and birds. This shows that, even at the time when fishing with hand-held tackle was the owner's exclusive right, the aim of the County Administrative Board has been not to consider fishing as covered by the regulations at issue. If this were not so, the right to free fishing with nets which existed, and still exists, in private waters would also have been prohibited or at least discussed. Accordingly, it is not required from a nature conservation point of view to protect fishes within the reserves - at least not until the right to free fishing with hand-held tackle has been in force for some time. Nevertheless, the County Administrative Board would like to clarify the scope of the present regulation in order to prevent this discussion from resurging in the future. In other counties this question has not been raised, inter alia, because of somewhat differently worded regulations. It may be felt that different regulations are in force in different counties despite the fact that basically the same rules do apply in practice. The right to free fishing with hand-held tackle is accordingly exercisable in the Counties of Stockholm, Södermanland, Östergötland and Blekinge. The County Administrative Board accordingly feels that it is important that the County of Kalmar does not appear as the only county on the East coast which upholds a prohibition against fishing within the reserves. By amending the regulation similar rules will be in force, both formally and as a matter of fact, for the exercise of the right to free fishing with hand-held tackle along the whole East coast.

If it would appear that the natural environment of some part of the coast faces degradation, other over-exploitation and/or extinction of the fish fauna, it may be necessary to introduce a local prohibition in the reserve concerned, or part thereof. The same applies if a threat to the bird-life would appear, in which case stricter rules regarding access may be envisaged. ..."

The applicants appealed to the Government against this decision arguing that the County Administrative Board had not shown that there were exceptional reasons for changing the regulations of the nature conservation  areas, despite the fact that such reasons were required under section 12 of the 1964 Act for the change to be lawful; in fact the Board had not even alleged in its decision that such reasons existed. The applicants also maintained that the decision went against the purposes behind the creation of the nature reserves and threatened the natural environment.

On 12 November 1987 the Government rejected the appeal without giving any reasons.

B. Relevant domestic law and practice

i. The Fishing Rights Act 1950

The basic rules concerning fishing in Swedish territorial waters are laid down in the Fishing Rights Act 1950.

According to section 5 of this Act the landowner has the exclusive right to fish in his waters. This rule is however subject to a number of exceptions, the scope of which depends, inter alia, on what part of the Swedish coast is concerned (sections 6 - 26).

The 1985 reform, which entered into force on 1 May 1985, introduced a new section 20 (a) to the Act authorising the general public to fish with hand-held tackle in a number of areas on the Swedish East coast and in the great lakes where such fishing had previously been the exclusive right of the landowner. As a result of the reform fishing with hand-held tackle is henceforth free in most Swedish waters.

A special law, the Fishing Rights Compensation Act 1985 (lag 1985:139 om ersättning för intrång i enskild fiskerätt) regulated the question of economic compensation. According to section 1 of this Act only losses of income could be compensated. According to the Government, compensation could be paid where the owner of the fishing rights had had a financial gain from these rights and could prove this, for instance by proving the existence of leasing agreements or the sale of fishing permits, or where it could be established that the owner's income had been reduced through a decrease of catches directly caused by the reform. Claims under the Act were to be lodged before the end of 1989 with the National Fishing Board (Fiskeristyrelsen). According to section 4, the Board's decisions could be appealed against to the real estate courts.

ii. The Nature Conservation Act 1964

Under section 7 of the Nature Conservation Act the County Administrative Board may declare as nature reserve any area which, on account of its importance for the knowledge of the country's natural history, its beauty or other distinctive features, or because of its essential importance to outdoor life, is found to deserve special protection and care.

The limitations authorised by the Act on the use of land declared a national reserve are inter alia the following.

Section 8 empowers the County Administrative Board to lay down those restrictions which are deemed necessary to achieve the aim underlying the creation of the reserve, e.g. prohibitions on hunting and fishing. The same provision specifies that if it subsequently becomes necessary to establish the reserve on a new basis or to issue further restrictions, the County Administrative Board may make appropriate amendments to the regulations.

Under section 10 the Government, or an authority appointed by them, may issue regulations to be observed by the general public within the nature reserve in order to achieve the aims of the reserve.

Under section 12 the County Administrative Board may, if there are very strong reasons for doing this, grant exemptions from reserve regulations or revoke, entirely or partly, any decision taken pursuant to sections 7-10 of the Act.

Section 40 provides, inter alia, that decisions under the Act taken by State authorities other than the Government may be appealed to the Government.

The question of the owner's right to compensation for any restrictions imposed on the use of property is dealt with in, inter alia, section 26 of the Act. This provision specifies that if regulations issued under section 8 of the Act considerably impede the current use of the land or require that land be set aside for special use the owner is entitled to compensation from the State for the loss thereby incurred. No right of compensation exists in case of regulations issued under section 10 of the Act.

iii. The 1972 Tort Act

The Tort Act 1972 (skadeståndslag 1972:207) states in Chapter 3, section 2 the principle that the State and the municipalities shall pay compensation in respect of any damage to persons, goods or wealth (ren förmögenhetsskada) caused by fault or negligence in the exercise of official power (myndighetsutövning).

The Government's responsibility for the effects of their decisions is however limited by the provisions contained in Chapter 3, section 7 of the Act. The relevant parts of this section read:

"A claim for damages under section 2 may not be brought on the basis of a decision by the ... Government ..., unless the decision has been repealed or changed. Nor may such a claim be brought on the basis of a decision of a lower authority against which an appeal has been lodged with ... the Government ... unless the lower authority's decision has been repealed or changed."

COMPLAINTS

1.The applicants allege a violation of Article 6 of the Convention as a result of the absence of any access to the courts to challenge the lawfulness of the Government's decision of 12 November 1987.

2.They also complain that this allegedly unlawful decision has authorised the general public to fish freely with hand-held tackle in their private waters without providing for any right to compensation. They maintain that this interference with their property rights violates Article 1 of Protocol No. 1.

3.They finally allege a violation of Article 13 of the Convention as they had no effective remedy before any national authority against the Government's withdrawal decision.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 May 1988 and registered on 7 June 1988.

On 3 December 1990 the Commission decided to communicate the application to the respondent Government and to invite them to submit written observations on the admissibility and merits. On 9 April 1991 the Commission decided to refer the case to a Chamber.

Observations were submitted by the Government on 25 February 1991. On 23 April 1991 the applicants submitted observations in reply.

THE LAW

1.The applicants allege a violation of Article 6 para. 1 of the Convention as a result of the absence of any possibility to challenge the lawfulness of the Government's decision of 12 November 1987 before a court. This Article reads in its relevant parts:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by [a] ... tribunal. ..."

The applicants maintain that the Government's decision deprived them of their "civil rights" without their consent. Furthermore, this decision was unlawful: first, the Government wrongly applied section 10, instead of section 8 of the Act, as the correct basis for the withdrawal of the prohibition for the general public to fish with hand-held tackle in the waters at issue; thereby the Government also deprived them of the legal basis for their compensation claims. Moreover, there were no "very special reasons" for amending the regulations as required by section 12 of the Act. Finally, the decision removed the basis for certain agreements regarding economic compensation alleged to have been concluded between the authorities and the applicants as a result of the introduction of the nature conservation regulations in 1973.

The Government submit that it was the 1985 reform and not their decision of November 1987 which was decisive for the applicants' "civil rights". In support of this view they emphasise the following.

Under Swedish law, decisions regarding fishing were primarily to be taken pursuant to the fishing legislation and not pursuant to the nature conservation legislation. Furthermore, it had never been intended that nature conservation regulations should hinder the implementation of the 1985 reform. It was in the light of these considerations that the county administrative boards had been requested to review existing nature conservation regulations. Accordingly, the County Administrative Board's decision in the present case could be said to have merely clarified the existing legal situation.

In addition, it was also clear that the withdrawal decision had not involved weighing any of the applicants' interests against the interest of preserving nature. The decision had only weighed the interest of nature conservation against that of free fishing. Finally, the impugned decision could not have taken away any right to compensation under the 1964 Act as the interference with the applicants' property rights was the result of the 1985 reform and all compensation claims arising from the implementation of this reform were to be settled under the Fishing Rights Compensation Act 1985.

The Government conclude that this part of the applicants' complaint is inadmissible, ratione materiae, with the provisions of the Convention.

The Commission notes the applicants' statement that they do not wish to challenge the constitutionality of the 1985 reform, including its  compensation terms. The Commission finds that this reform, on its face, took away the right of all water owners to prohibit the general public to fish with hand-held tackle in private waters and regulated the question of what compensation was due. The 1985 reform thus took away also the applicants' right in this respect, if any such right remained after the introduction of the nature conservation regulations in 1973. The Government's decision of November 1987 could accordingly not have been decisive for any "right", within the meaning of Article 6 para. 1 of the Convention, in this respect (see, inter alia, Eur. Court H.R., James and Others judgment of 21 February 1986, Series A no. 98, p. 46, para. 81). The question remains, however, whether the Government's decision was decisive for any other "civil right" of the applicants.

 The Commission finds that a privileged situation of the kind enjoyed by the applicants under the nature conservation  regulations issued in 1973 cannot in itself be assimilated to a "right" for the purposes of Article 6 para. 1 at least not in so far as it can be considered as a privileged situation enjoyed as a mere matter of fact, not foreseen or intended by the authorities.

The applicants allege, however, that their particular situation was the result of an explicit guarantee given by a government official as part of the compensation agreements concluded when the nature conservation regulations were introduced in 1973.

The Commission notes that, in view of the uncertainty whether this claim is based on contract or on tort liability, it is also unclear whether the applicants have any access to court under Swedish law to assert it; as opposed to actions on the basis of a contract, tort actions relating to decisions by the Swedish Government are only allowed in very limited circumstances. However, the Commission does not consider it necessary to resolve this question as it has found that, even if no court review was available, the present claim does not fall within the ambit of Article 6 para. 1 of the Convention.

The applicants have not adduced any evidence as to the existence or validity of this alleged guarantee on the part of the authorities. Furthermore, the Commission notes that the applicants have not even alleged to have relied on any such undertaking when they appealed to the Government against the County Administrative Board's withdrawal decision. In the light of these circumstances and the fact that the existence of this guarantee appears to be unknown to the Government and the County Administrative Board, the Commission cannot find that the applicants have established that they had any "right" on this point which can be said to have been recognised, on arguable grounds, by national law, or that the dispute between them and the Government on this point was "genuine and serious" (cf., inter alia, Eur. Court H.R., Fredin judgment of 18 February 1991, Series A no. 192, p. 20, para. 63).

The Commission accordingly concludes that Article 6 para. 1 is not applicable to the dispute which has arisen between the applicants and the Government following the withdrawal of the regulation prohibiting the general public from fishing with hand-held tackle in the applicants' waters. This part of the complaint has accordingly to be rejected as incompatible, ratione materiae, with the provisions of the Convention, within the meaning of Article 27 para. 2.

2.The applicants also complain that the Government's decision of 12 November 1987 to uphold the County Administrative Board's withdrawal of the prohibition for the general public to fish with hand-held tackle in their private waters violates Article 1 of Protocol No. 1 which reads:

"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 payment of taxes or other contributions or penalties."

The applicants allege that the Government's decision allowing the general public to fish freely with hand-held tackle in their waters interfered with their property rights in three ways. First, this decision implied a loss of their possibility to grant fishing rights in the future. Secondly, it violated the guarantee given by the Government representative in 1973 that they would be allowed to keep their exclusive fishing rights even if legislation were to be introduced allowing the general public to fish with hand-held tackle in private waters. Thirdly, it caused a reduction in their own catches.

As to the scope of the interference the Commission observes first that it cannot see how either the Government's decision of 12 November 1987 or the entry into force of the 1985 reform took away the applicants' right to grant fishing rights to the general public. In fact, the applicants maintain themselves that this right was taken away already by the regulations issued in 1973 pursuant to the 1964 Act and that they expected that, on this point, the regulations were to last for ever. In such circumstances, any damage caused to the applicants through the loss of their right to grant fishing rights must be considered to have arisen as a consequence of the 1973 regulations.

In these circumstances the Commission is not required to decide whether or not the prohibition to grant fishing rights can be said to disclose any appearance of a violation of the Convention as Article 26 of the Convention provides that the Commission may only deal with a matter within a period of six months from the date of the final domestic decision. In the present case, the final decision for the purposes of this Article must, in accordance with what has been stated above, be the Board's decision in 1973 to introduce this prohibition (see, inter alia, No. 11844/85, Dec. 29.2.88, D.R. 55 p. 205; No. 9303/81, Dec. 13.10.86, D.R. 49 p. 44). The applicants' complaint was lodged first in 1988, which is more than six months after the introduction of the prohibition. This part of the complaint has accordingly been introduced out of time and must be rejected under Article 27 para. 3 of the Convention. 

As to the second ground relied upon by the applicants the Commission recalls that they have not substantiated, or made plausible, their allegation that the Government had issued a guarantee of the kind at issue in connection with the creation of the reserves in 1973. This part of the complaint must accordingly be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

The third ground relied on by the applicants, their possible loss of catch, could arguably constitute an interference with their property rights, provided such a loss of catch is the result of the Government's decision of November 1987 and not the result already of the 1985 reform. In the latter case the Commission would lack competence under Article 26 of the Convention to entertain the complaint since the application was lodged more than six months after the entry into force of the 1985 reform (cf. No. 11844/85, Dec. 29.2.88, D.R. 55 p. 205;

  No. 9303/81, Dec. 13.10.86, D.R. 49 p. 44). However, the Commission does not consider it necessary to determine these issues in the circumstances of the present case as it finds that the applicants' complaint under Article 1 of Protocol No. 1 is in any case manifestly ill-founded, for the following reasons.

According to constant case-law the kind of interference here at issue falls to be considered under the second paragraph of Article 1 of Protocol No. 1 as being a control of the use of property (see, inter alia, the above-mentioned Fredin judgment of 18 February 1991, pp. 14-15, paras. 41-47, and No. 11763/85, Dec. 9.3.89, pp. 12-13, to be published in D.R.).

The applicants allege that the Government's decision of 12 November 1987 was unlawful and this for three reasons: first, very special reasons were required under section 12 of the 1964 Act for amending nature reserve regulations and in the present case neither the County Administrative Board nor the Government had alleged that such reasons existed; secondly, the withdrawal of the prohibition at issue was based, wrongly, on section 10 of the 1964 Act when it ought, rightly, to have been based on section 8 of the Act; finally, this withdrawal was in breach of certain assurances given by the Government representative in 1973 in connection with the compensation discussions following the establishment of the nature reserve.

On this point the Commission recalls that the Convention organs' possibilities of reviewing compliance with domestic law is limited  (see the above-mentioned Fredin judgment, p. 16, para. 50). The Commission does not find any evidence for the impugned decisions to be unlawful by virtue of Swedish law. Considering also the other requirements as to the quality of the law (ibid.), the Commission concludes that the interference complained of was lawful for the purposes of Article 1 of Protocol No. 1.

As regards the proportionality of the interference, the applicants complain about the fact that they were deprived of any right to compensation: they could not allege any loss of income under the Fishing Rights Compensation Act 1985 as their entitlement to grant fishing rights to the general public had been taken away by the 1973 regulations; furthermore, the Government had, through their above mentioned decision, taken away any right to compensation on the basis of the 1964 Act since they had concluded that the impugned amendment to these regulations was to be based on section 10, and not on section 8 of the Act.

The Commission recalls that the only loss which could be taken into account in the present case is the possible loss of catch occasioned by the general public's right to fish freely with hand-held tackle in the applicants' waters.

To the extent that a loss of catch would have caused a loss of income a claim for compensation would seem to have existed under the 1985 Compensation Act. To the extent that such a loss did not cause a direct loss of income the Commission accepts that no compensation was available under Swedish law. However, considering the limited scope of this interference and the fact that none of the applicants has alleged to be dependent on fishing for his or her livelihood, the Commission cannot find any indication that any of the applicants has been made to bear an excessive burden or that there has otherwise been a lack of proportionality between the means used and the undoubtedly legitimate aims sought to be achieved i.e. the preservation of nature and making fishing with hand-held tackle available to the general public (cf. the above-mentioned Fredin judgment, p. 17, para. 51).

Accordingly, the Commission finds that this complaint is  manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

3.The applicants also allege a violation of Article 13 of the Convention on the grounds that Swedish law did not provide for any remedy against the Government's decision of 12 November 1987 and that this decision was based on provisions which excluded any right of compensation. They emphasise that restrictions on the right of property should not be founded on sections 10 and 12 of the 1964 Act. Article 13 provides:

"Everyone whose rights and freeedoms as set forth in [the] 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."

According to constant case-law, Article 13 only secures an effective remedy before a national "authority" to persons claiming on arguable grounds to be victims of violations of their rights and freedoms as protected in the Convention (see, inter alia, Eur. Court H.R., Plattform judgment of 21 June 1988, Series A No. 139, p. 11, para. 25). Having regard to its conclusions above in the context of Article 1 of Protocol No. 1, the Commission does not find that the applicants' complaints could be considered as "arguable" in this sense. It follows that Article 13 does not apply in the instant case.

This part of the application must accordingly be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber    President of the Second Chamber

  (K. ROGGE) (S. TRECHSEL)

 

Full & Egal Universal Law Academy