AS TO THE ADMISSIBILITY OF
Application No. 12570/86
by Martin DENEV
against SWEDEN
The European Commission of Human Rights sitting in private on
18 January 1989, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J. C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 22 July 1986 by
Martin DENEV against Sweden and registered on 19 November 1986 under
file No. 12570/86;
Having regard to:
- the first report provided for in Rule 40 of the Rules of
Procedure of the Commission;
- the Commission's decision of 3 May 1988 to invite the Government
to submit written observations on the admissibility and merits of the
application limited to the issue under Article 6 para. 1 of the
Convention;
- the Government's observations dated 11 August 1988 and the
applicant's reply dated 3 October 1988;
- the second report provided for in Rule 40 of the Rules of
Procedure;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they appear from the parties'
submissions, may be summarised as follows.
The applicant is a Swedish and Bulgarian citizen, born in 1938
and resident at Saltsjöbaden, Sweden. He is a scientist and forest
owner.
In January 1977 the applicant was granted a patent concerning
certain methods for forestry. On 8 August 1983, he bought a real
estate called Skattungbyn 18:3 in the county of Kopparberg. Two areas
of forest land forming part of that property, on of 2.8 hectares and
the other of 2 hectares, had previously been subject to final fellings
in 1978 and 1981 respectively.
In a letter to the applicant entitled "Advice and Directions with
respect to establishing of new stands" and dated 18 January 1982, the
Forestry Board (skogsvårdsstyrelsen) of the County of Kopparberg
indicated that certain measures were to be taken subsequent to the
final felling on the area of 2.8 hectares in order to comply with the
requirements of the Forestry Act (skogsvårdslagen). These measures
consisted in clearance and planting operations to be undertaken in
1982, 1983 and 1984 in respect of the area of 2 hectares and indicating
that such measures were to be undertaken during 1984.
Following an objection by the County Forestry Board in January
1985 to the applicant's failure to carry out the above measures, the
applicant informed the National Board of Forestry (skogsstyrelsen) that
he intended to plant, inter alia, mountain ash (rönn), a type of pine
(cembra pine), plum trees (plompon), hazel (hassel) and dog rose
(nypon) in both areas during the period 1985-1986.
On 1 August 1985 the County Forestry Board issued an injunction
under Sections 7 and 24 of the Forestry Act obliging the applicant to
undertake a clearing of his forest, preparation of the land and the
planting of 2.500 Swedish pine plants per hectare evenly distributed
over the entire 4.8 hectares of forest land on his property. The order
was to be complied with before 1 October 1986 under a penalty of
25,000 SEK.
In an appeal to the National Board of Forestry against this
decision, the applicant questioned the lawfulness of the County
Forestry Board's decision arguing that, as he had acquired the property
in 1983, the three year time-limit for planting new trees under Section
4 (1) of the Forestry Ordinance (skogsvårdsförordningen) should be
calculated not from the time of the fellings but from the time of his
acquisition. The applicant also maintained that his intention to plant
other types of tree was a continuation of scientific experiments which
he had been conducting on a small scale for seven years.
On 14 March 1986 the National Board decided to quash the decision
insofar as it concerned the area of 2.8 hectares on the grounds that
the prerequisite laid down in the Forestry Act that an injunction be
preceded by "advice and direction from the public authority" could not
be said to have been complied with where the applicant had acquired the
property only after such advice and directions had been issued. In its
decision the National Board stated that the obligation to plant new
trees applied to the property as such, and the time-limit was therefore
not influenced by a change of ownership. Furthermore, it had not been
shown that the area was used or about to be used for purposes other
than the production of timber and as Swedish pine was the kind of tree
best suited for planting in the forest land concerned, the applicant's
appeal was dismissed with respect to the area of 2 hectares. The
amount of the penalty was reduced to 10,000 SEK, however, and the
deadline for performing the regeneration measures was postponed until
1 October 1987. In so deciding, the National Board pointed out that
its assessment did not prevent the property owner from using the land
for purposes other than timber production before the expiration of the
above time-limit.
The applicant appealed to the Government and claimed that the
decision should be quashed or, alternatively, that the time-limit
within which the order should be complied with be prolonged until
18 April 1987 on the grounds, inter alia, that he needed to use the
property for seedling cultivation as part of research. The applicant
further claimed damages in the amount of 10,000 SEK.
Before the Government the National Board of Forestry submitted
an opinion on 21 May 1986 and the applicant submitted observations in
reply.
On 18 June 1986 the Government rejected the appeal and decided
not to take any measures in respect of the claim for damages.
In the meantime, on 18 April 1986, the applicant submitted an
application to the Property Formation Authority (fastighetsbildnings-
myndigheten) at Mora requesting permission to use the land for purposes
other than forestry. The applicant's request was refused by the
Property Formation Authority on the grounds that it was contrary to the
pursued policy to separate forest land from agricultural land where it
was possible to keep such land together.
COMPLAINTS
1. The applicant submits that there has been a violation of Article
1 of Protocol No. 1 to the Convention which provides that the owner has
the right to use his property in a peaceful way. He finds it
unacceptable that a democratic State prevents him from planting the
trees and other species which he wishes to cultivate on his land.
2. The applicant also considers that the decisions of the forestry
authorities defame him as a violator of the Forestry Act. He submits
that this is degrading treatment contrary to Article 3 of the
Convention.
3. The applicant complains that he cannot bring his case before an
independent and impartial tribunal, contrary to Article 6 para. 1 of
the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 July 1986 and registered on
19 November 1986.
On 3 May 1988 the Commission decided to communicate the
application to the Government and to invite them to submit written
observations on the admissibility and merits of the application limited
to the issue under Article 6 para. 1 of the Convention.
The Government's observations were received by letter dated
11 August 1988 and the applicant's observations in reply were dated
3 October 1988.
SUBMISSIONS OF THE PARTIES
A. The Government
1. Swedish legislation
The legal basis for the achievement of the aims of Swedish
forestry policy is the 1979 Forestry Act, as supplemented by the 1979
Forestry Ordinance and the directions and advice issued by the National
Forestry Board.
Section 1 of the 1979 Act defines the global aim of forest policy
as follows:
"Forest land and the forest on it shall, by means of a
suitable use of the wood producing capacity of the land, be
managed so as to provide a permanently high and valuable
timber yield. This management should pay heed to nature
conservation and other public interests."
Section 2 (1) of the 1979 Act defines forest land, inter alia,
as land which is suited for the production of timber and which is not
used to any large extent for other purposes. The general advice issued
by the National Board of Forestry with respect to Section 2 is that
land which is being used for plant growing or seed growing cannot be
regarded as forest land.
Section 3 of the 1979 Act provides that forest land may be used
for purposes other than the production of timber, and the general
advice issued in respect of this provision establishes that, for
conversion of forest land to use for other purposes to be considered
to have occurred, the land must be utilised to an extent that
reasonably corresponds to normal exploitation of land. This means that
the requirements of the 1979 Act apply until the land has been put to
use for other purposes or, in some instances, when a conversion is
close at hand. In most cases, a conversion period of three years is
regarded as sufficient for conversion for both building and
agricultural purposes, and if such conversion is not complete within
reasonable time, the duties inherent in the notion of forest land again
become applicable.
Under Section 5 of that Act, new trees shall be planted on forest
land, inter alia, if the timber-producing capacity of the land is
unused. Section 4 (1) of the 1979 Ordinance provides that in these
cases, measures for planting of seeds and seedlings or transplants or
measures to obtain a natural regeneration are to be taken without delay
and to be carried out within a period of three years from the year when
the duty to plant new trees comes into being.
Section 7 of the 1979 Act provides that when new trees are
planted on forest land such regeneration measures are to be undertaken
as may be required to safeguard the growth of new forest which is
satisfactory in terms of density and general composition. Regulations
on methods of regeneration, clearance, planting of seeds and seedlings,
transplants, tending of newly planted areas, and other such measures
are issued by the Government or by an authority designated by the
Government. Section 7 of the 1979 Ordinance indicates when natural
regeneration may be used. Rules on supplementary planting, etc, are
to be found in Section 8 of the 19791 Ordinance.
According to Section 9 of the 1979 Ordinance, the National Board
of Forestry issues directives on the following matters:
a. The smallest quantity of seedlings/transplants that should exist
on a given regeneration surface, considering the yielding
capacity of the land and the distribution of these plants that
will be most favourable to a satisfactory regeneration;
b. The time-limits within which measures to bring about satisfactory
regeneration are to have been accomplished when using different
methods of regeneration.
Section 8 of the 1979 Act contains certain provisions regarding
forest reproductive material.
According to the same Section, the Government or such public
authority as the Government decide may issue regulations prohibiting
or making subject to certain conditions inter alia the use of certain
kinds of forest reproductive materials of indigenous or foreign origin,
when new trees are being planted on forest land. Under Section 10 of
the 1979 Ordinance, the Government have authorised the National Board
of Forestry to issue regulations as to what forest reproductive
material may be used in different areas. Such regulations may lay down
what kinds of trees may be used and their origin and establish
conditions applicable to the use of regeneration material.
The regulations established by the National Board of Forestry
pertaining to Sections 7 and 8 of the 1979 Act provide that new trees
may be planted on forest land only be means of such reproductive
material as, by virtue of its origin, variety and other qualities, has
good possibilities to develop and put the land to use for a high
production of valuable timber.
In the general advice it is pointed out that, when considering
what kinds of trees are suitable, the main concern should be the
productivity of the land, the kind of forest suited to it and its
climate. Normally, new trees should be planted with a view to
production of softwood.
The owner of forest land is, under Section 10 of the 1979 Act,
responsible for planting and tending new trees.
According to Section 11 of the 1979 Act the County Forestry Board
may, in special cases, grant exemptions from Sections 5, 7 and 9.
Under Section 22 of the 1979 Act the National Board of Forestry
performs supervision of the compliance with the 1979 Act and of the
regulations issued according to that Act. The County Forestry Boards
perform more detailed supervision of compliance at county level.
Under Section 24 of the 1979 Act the supervisory authorities may,
under the threat of a penalty of a fine, prescribe or prohibit certain
acts, when this is required to assure compliance with the 1979 Act or
with any regulation issued under the provisions of that Act.
A prescription or a prohibition may, however, not be issued until
it has become clear that the advice and directions of the supervisory
authority have not been complied with.
If a person fails to comply with a prescription, the supervisory
authority may order the measure prescribed to be undertaken at the
expense of the person at fault.
The decisions taken under the 1979 Act by the County Forestry
Boards may be appealed to the National Board of Forestry. The
decisions of the National Board of Forestry may be appealed to the
Government.
2. Article 6 of the Convention
As regards the question of whether the decisions at issue
concerned the applicant's civil rights, it is to be noted that the
applicant was in fact at liberty to use the land for purposes other
than forestry or to make preparations for using the land in such a way.
This appears clearly from Section 3 of the 1979 Act as well as from the
decision of the National Board of Forestry. Had the applicant turned
the land to use for such other purposes before the expiration of the
time-limits laid down in the injunctions, the basis for those
injunctions would have become null and void, since the land in question
would then, technically, no longer have been forest land and the
forestry legislation would therefore no longer be applicable.
Consequently, the decisions here at issue should be regarded as
decisions of a mere police character relating to the way the land was
actually being used by the applicant, a situation which could have been
changes by the applicant himself. In these circumstances, measures
applying regulations of a public policy character did not give rise to
legal relations between property owners and the State which could be
termed civil rights and obligations within the meaning of Article 6
para. 1 of the Convention (e.g. No. 9607/81, Dec. 6.5.82,
D.R. 28, p. 248).
Furthermore, the applicant has not contested that the land in
question is suitable as forest land and since the decisions at issue
were aimed at bringing about the most profitable and rational methods
of exploitation of such land, they cannot have affected in any negative
way an conceivable civil right of the applicant. It is submitted in
this connection that the right at issue for the purposes of Article 6
must be shown to have a certain importance for the use of the property
or must have economically perceptible effects for the owner (Eur. Court
H.R., Benthem judgment of 23 October 1985, Series A no. 97, p. 16,
paras. 34-36).
As regards the applicant's intention to cultivate other types of
tree, this could have been achieved within the framework of the
forestry legislation through the granting of an exemption by the County
Forestry Board under Section 11 of the 1979 Act. It is submitted that
the margin of appreciation enjoyed by the competent authority in this
respect is so wide that no right to obtain an exemption may be said to
exist.
Finally, the Government point our that the applicant has made no
serious allegation regarding any faulty application of the law, which
is clearly set out in the provisions of the 1979 Act and the 1979
Ordinance.
For these reasons the Government contest that there exists a
serious dispute (contestation) over a civil right.
If the Commission were to consider, however, that such a dispute
does exist, the Government admit that there was no procedure available
to the applicant satisfying the requirements of Article 6 para. 1 of
the Convention for the determination of his claims.
The Government maintain that the application should be declared
inadmissible as being incompatible ratine materiae with the Convention
or as being manifestly ill-founded.
B. The applicant
The applicant states that part of his work as a scientist is to
perform research concerning forestry. For that purpose it is necessary
to use part of his land. The total area of this property is just under
5 hectares but the applicant owns altogether 1,000 hectares in this
part of Sweden. The applicant considers that Section 3 of the Forestry
Act gives a right to the applicant to plant what he wants on his land.
This provision provides that the land may be used for a purpose other
than forestry and it is not said that the land must remain unused. The
applicant submits that he needs more than three years' preparation for
his experiment.
The Swedish authorities, in refusing to allow the applicant to
plant cembra pine (pinus cembra) and obliging him to plant traditional
pine (pinus silvestris) instead, are in violation of the Forestry Act
which allows for planting of trees which produce a high quantity and
high quality of timber. Cembra pine produces a comparable quantity and
a high quality of timber than traditional pine, and this is proved by
its use in the Alps as well as by the fact that the National Forest
Enterprise (domänverket) is itself selling cembra pine seeds to forest
owners.
Cembra pines, unlike traditional pine, also produces nuts which
are a well-established food for humans. The applicant intended to
exploit the lack of any commercial production of these nuts in Sweden
by farming the nuts from the cembra pine on his land. Although he only
wished to plant cembre pine on a small scale, the commercial value of
these nuts was important to the applicant. Furthermore, the applicant
points out that he is obliged, as a result of the decisions, to plant
traditional pine to the value of 40,000 SEK on the same land where he
wished to plant other trees.
The applicant therefore submits that the facts disclose a genuine
dispute of a serious nature over a civil right within the meaning of
Article 6 para. 1 and that he clearly has had no access to q tribunal
satisfying the requirements of that provision.
THE LAW
1. The applicant complains that the decisions taken by the Swedish
forestry authorities constitute an unjustified interference with his
right to the peaceful enjoyment of his property, contrary to Article
1 of Protocol No. 1 (P1-1) to the Convention, which 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."
As a result of the decision taken, the applicant was required to
plant 2,500 Swedish pine plants per hectare on an area of his forest
land comprising two hectares, before 1 October 1987 and under a penalty
of 10,000 SEK. The Commission considers that these decisions
constitute an interference with the applicant's right under Article 1
of Protocol No. 1 (P1-1). This interference was a measure of control
of the use of property and the question whether it was a justified
interference must therefore be examined under the second paragraph of
Article 1 (Art. 1-2).
The Commission notes that the decisions taken were based on the
provisions of the 1979 Forestry Act and Ordinance, notably Sections 7
and 24 of the Act and Section 9 of the Ordinance. Under those
provisions the applicant as an owner of forest land is subject to
certain duties. These duties are laid down with the aim of ensuring
the protection of the environment and other public interests, notably
that of providing a permanently high and valuable timber yield. If a
forest owner does not comply with the advice and directives from the
forestry authorities he may, as in the present case, be ordered to
carry out specific measures on the forest land, under the penalty of
a fine. The Commission is satisfied that the decisions of which the
applicant complains were lawful and that they were taken in accordance
with the "general interest" within the meaning of the second paragraph
of Article 1 of Protocol No. 1 (P1-1) to the Convention.
The Commission also notes that it follows from Sections 2 and 3
of the 1979 Act that there was no absolute obligation on the applicant
to cultivate trees on the property concerned. His land could have been
used for other purposes. However, he had not shown that his land was
so used. Furthermore, the Swedish authorities were obliged to issue
advice and directives to the applicant and only if he failed to comply
with those instructions could they issue a valid order under penalty
of a fine. Having found that the applicant had not complied with the
instructions issued, they were consequently entitled to issue such an
order. Moreover, the authorities have examined the cultivation
proposed by the applicant, but they found that it did not meet the
condition of high production of valuable timber, as did the cultivation
of Swedish pine. In these circumstances, the Commission finds that the
orders complained of were not disproportionate to the legitimate aims
pursued thereby (cf. Jacobsson v. Sweden, Comm. Report
8.10.87).
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant complains that the decisions taken by the Swedish
forestry authorities in respect of his property "defame" him as a
property owner and constitute degrading treatment, contrary to Article
3 (Art. 3) of the Convention, which prohibits torture, inhuman and
degrading treatment or punishment.
The Commission finds that the above decisions do not disclose any
appearance of a breach of Article 3 (Art. 3) of the Convention.
It follows that this complaint is also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant complains further of a violation of Article 6
(Art. 6) of the Convention in that he cannot bring his case before an
independent and impartial tribunal. Article 6 para. 1 (Art. 6-1) first
sentence reads as follows:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitle to a fair
and public hearing within a reasonable time by an independent and
impartial tribunal established by law."
The Government submit that the decisions taken by the competent
authorities did not involve the determination of a dispute which
related to the applicant's "civil rights and obligations" within the
meaning of this provision and that this part of the application should
therefore be declared inadmissible as being incompatible ratione
materiae with the provisions of the Convention. If Article 6 para. 1
(Art. 6-1) is found to be applicable, the Government concede that there
was no procedure available to the applicant satisfying the conditions
of Article 6 para. 1 (Art. 6-1) for the determination of his claims.
The issues to be decided are whether the decisions taken by the
forestry authorities in respect of the applicant's property, notably
the Government's decision of 18 June 1986, were decisive for a "civil
right" of the applicant and, if so, whether a genuine dispute of a
serious nature arose between the applicant and the Swedish authorities
in relation to those decisions. In the affirmative, it would have to
be determined whether the applicant had at his disposal a procedure
satisfying the requirements of Article 6 para. 1 (Art. 6-1) in regard
to that dispute.
The Commission has made a preliminary examination of these issues
in the light of the parties' submissions. It considers that these
issues raise questions of fact and law which are of such a complex
nature that their determination requires an examination on the merits.
This complaint cannot therefore be declared inadmissible as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention, but it must be declared admissible, no
other ground for declaring it inadmissible having been established.
For these reasons, the Commission
DECLARES ADMISSIBLE, without rejudging the merits,
the complaint of absence of a court determination (Article 6
para. 1 (Art. 6-1) of the Convention)
DECLARES INADMISSIBLE the remainder of the application
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)