AS TO THE ADMISSIBILITY OF
Application No. 26265/95
by Wilhelm and subsequently Gunvor GÜNTHER
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 27 November 1996, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, Secretary to the 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 1 December 1994
by Wilhelm and subsequently Gunvor Günther against Sweden and
registered on 23 January 1995 under file No. 26265/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant was a Swedish citizen, born in 1919 and resident
at Munkedal. He was the owner of "Brålands Laxfiske", an establishment
selling licences for angling of salmon and offering other services for
anglers. He had the full financial responsibility for the business
(enskild firma). The applicant died in 1996. In November 1996 the
Commission was informed that his widow, Mrs. Gunvor Günther, born in
1920, wished to take over the application.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant was the owner of real property, Bråland 3:18, this
plot having been split from a larger plot, Bråland 3:1, on account of
its suitability for recreational and notably angling purposes. Bråland
3:18 has an almost 2 km long bank stretching along the Örekil river
(Örekilsälven). The fishing rights along that bank were initially
somewhat unclear and subject to certain disputes. After extensive
research and negotiations the applicant, in the 1960's, obtained
recognition of his exclusive fishing rights and began selling licences
for angling of salmon in the area.
In 1986 the municipalities of Munkedal and Dals Ed requested the
County Administrative Board of Göteborg and Bohus län (länsstyrelsen
i Göteborgs och Bohus län) to create a fishery conservation area
(fiskevårdsområde) in the Örekil river, its tributaries and Lake
Kärnsjön. The area was to include, inter alia, Bråland 3:18. In 1988
the Board created two such areas and began planning a third area which
would have included the area where the applicant had fishing rights.
He then requested that it be excluded from the conservation area or,
alternatively, that the statutes of the fishery conservation
association (fiskevårdsområdesförening) - which by law was to be
established for the purposes of administering the area - should
guarantee his exclusive right to sell fishing licences for angling in
that area.
On 31 August 1990 the County Administrative Board created the
third fishery area. It recalled that under the 1981 Act on Fishery
Conservation Areas (1981:533) and its preparatory works such an area
could not be established, if the holders of the fishing rights more
commonly objected thereto and provided they had significant reasons
therefor. Particular regard was to be had to the opinion of those
owners who made use of the fishing for their livelihood.
The Board noted that the Örekil river was unique both for
preserving the fish stock and for angling. A conservation area was
necessary so as to further coordinate the fishing and the preservation
of the fish stock and serve the joint interests of the owners of the
fishing rights. The Board noted, inter alia, that Bråland 3:18
stretched along almost 2 kilometres of the river; that the property
boundary followed the middle of the river bed; and that it had been
questioned whether an angler on Bråland 3:18 was entitled to fish also
in the other half of the river bed. The overall circumstances warranted
the inclusion of the applicant's area in the conservation area.
The Board found that the aims which the creation of a
conservation area sought to pursue would be seriously jeopardised if
an owner of fishing rights were to be granted an exclusive right to
sell licences for angling from his area. It was true that the applicant
had been receiving a certain income from licensing angling from his
area. He had not, however, shown how significant this income had been
for his livelihood.
Adopting the statutes of the conservation area, the Board finally
noted that the applicant could veto any intended sale of fishing
licences for angling in his fishing waters. (According to section 8,
subsection 2 of the 1981 Act, a fishery conservation association cannot
give up a person's fishing rights without his consent, unless those
rights have no importance for his livelihood.)
The applicant appealed to the Administrative Court of Appeal
(kammarrätten) of Gothenburg, arguing that the decision was in
violation of chapter 2, section 18 of the Instrument of Government
(Regeringsformen) and Article 1 of Protocol No. 1 to the Convention.
According to the Instrument of Government, every citizen whose property
was taken away either through expropriation or by virtue of any other
similar interference was entitled to compensation for his loss under
terms laid down by law. He submitted that the 1986 taxation value of
Bråland 3:18 had been 841.000 SEK, of which 450.000 had corresponded
to the value of the angling of salmon. In 1986 his turnover from the
sale of licences for angling had been some 60.000 SEK. Since then it
had increased to some 100.000 SEK. The taxation value of the angling
was therefore expected to rise up to 1.000.000 SEK. For 25 years he had
invested considerable sums in order to provide the possibility of
angling from his property. In the whole river his fishing water was the
most attractive one for anglers both in terms of its accessibility and
scenery. The principal part of the angling in the river had therefore
always taken place from his property.
The applicant furthermore argued that his right to veto any sale
of licences for angling from his property was de facto meaningless, as
such a veto would not make him entitled to sell licences on his own.
Moreover, the fishing water off Bråland 3:18 could without any
difficulty be preserved and administered separately from the remaining
waters within the conservation area. Should the County Administrative
Board's decision be upheld, he would lose a significant part of his
livelihood without being entitled to any compensation.
The applicant also adduced an opinion by Professor Gunnar
Bramstång, an expert in public law. Professor Bramstång concluded,
inter alia, that the applicant was entitled to compensation for the
interference with his property rights. This could be done, for
instance, by guaranteeing to the applicant a share of the conservation
association's total income which would correspond to his previous
income from the sale of licences and his other related activities.
Professor Bramstång also questioned whether there was a sufficient
public interest in creating a conservation area under the terms
approved by the County Administrative Board, given that the public
already had significant access to the fishing waters in question and
the measures so far taken for safeguarding the fish therein had met
with no real criticism. He recalled that the creation of a conservation
area should primarily pursue the joint interests of the owners of the
fishing waters.
The National Board of Fisheries (Fiskeriverket) objected to the
applicant's appeal, recalling that it had designated the Örekil river
as one of the most important angling waters. The National Environment
Protection Board (Naturvårdsverket) had designated it as a "nationally
interesting" river. Out of public means some 20.000.000 SEK had been
invested in safeguarding the fish stock. The County Administrative
Board recalled that three further fishery areas affecting the Örekil
river had been created in the neighbouring Älvsborg County. A plan for
the regulation of the fishery was being envisaged for the whole river.
In his rejoinder the applicant recalled a significant number of
measures which he had initiated as from the late 1950's in order to
improve the conditions for the fish in the river. His activities and
investment had by no means endangered the fish stock, but on the
contrary significantly contributed to the successful return of salmon
into the river.
On 30 December 1992 the Administrative Court of Appeal rejected
the applicant's appeal after having held an oral hearing and an
inspection. The Court essentially agreed with the reasoning in the
County Administrative Board's decision. It noted, inter alia, that the
fishing rights attached to the applicant's property concerned half of
the river on a stretch of a little less than two kilometres. The
Court's inspection had revealed that along this stretch the river was
not particularly wide. It would therefore seem more or less impossible
to fish salmon and salmon-trout from the applicant's property without
violating the fishing rights attached to the properties on the opposite
side of the river. It could therefore seriously be doubted whether it
was possible for the applicant to license fishing from his property
without the consent of the holders of the last-mentioned fishing
rights. The Administrative Court of Appeal did not pronounce itself in
regard to the compensation issue, nor on the Convention issue or the
opinion submitted by Professor Bramstång.
In his request for leave to appeal to the Supreme Administrative
Court (Regeringsrätten) the applicant stressed, inter alia, that no
balancing of interests had been carried out by the Administrative Court
of Appeal. Among the holders of fishing rights within the conservation
area he was the only one to have made significant investments so as to
safeguard the fish stock and improve the fishery; the only one to have
a solid clientele of anglers and the only one to be dependent on the
sale of licences for his livelihood
On 9 June 1994 the Supreme Administrative Court refused him leave
to appeal.
Under section 6 of the 1981 Act the views of those who are most
affected by the creation of a fishery conservation area shall be given
priority, unless the creation thereof is particularly important.
COMPLAINTS
The applicant complained that the establishment of the fishery
conservation area and related association amounted to a de facto
expropriation of his possessions. His loss of the right to sell
licences for angling had deprived him of his livelihood. The fishery
conservation association's sale of fishing licences for the total
waters of the fishery area would have entitled him to a yield based on
his share of the waters, i.e. some 10 %. This was supposed to
correspond to a loss of at least 80 % of his income from his licensing
of his own fishing water. The deprivation of this licensing-right had
also considerably reduced the value of his property Bråland 3:18. He
had not been entitled to any compensation. The conservation area had
not been created in order to regulate fishery but so as to enable other
owners of fishing rights to make a larger profit at the applicant's
expense.
The applicant invoked Article 1 of Protocol No. 1 in conjunction
with Articles 17 and 18 of the Convention.
THE LAW
1. The Commission recalls that close relatives of a deceased
applicant are in principle entitled to take his or her place in the
proceedings before the Convention organs (see, e.g., Eur. Court HR,
Scherer v. Switzerland judgment of 25 March 1994, Series A no. 287,
pp. 4-15, paras. 31-32 with further references; No. 25758/94,
Dec. 7.3.96). In the circumstances of the present case the Commission
therefore accepts that Mr. Günther's wife may pursue the application
on his behalf.
2. The applicant complained that his loss of the right to sell
licences for fishing in his own waters deprived him of his livelihood
and considerably reduced the value of his property. His property had
therefore de facto been expropriated. He principally invoked 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."
The Commission recalls that Article 1 of Protocol No. 1 (P1-1)
comprises three distinct rules. The first rule, set out in the first
sentence of the first paragraph, is of a general nature and enunciates
the principle of peaceful enjoyment of property. The second rule,
contained in the second sentence of the same paragraph, covers
deprivation of possessions and makes it subject to certain conditions.
The third rule, stated in the second paragraph, recognises that
Contracting States are entitled, amongst other things, to control the
use of property in accordance with the general interest. The three
rules are not "distinct" in the sense of being unconnected: the second
and third rules are concerned with particular instances of interference
with the right to peaceful enjoyment of property and should therefore
be construed in the light of the general principle enunciated in the
first rule (see, e.g., Eur. Court HR, Fredin v. Sweden judgment of
18 February 1991, Series A no. 192, p. 14, para. 41).
Finally, the proceedings at issue must afford the individual a
reasonable opportunity of putting his or her case to the responsible
authorities for the purpose of effectively challenging the measures
interfering with his or her rights under Article 1 of Protocol No. 1
(P1-1). In ascertaining whether this condition has been satisfied a
comprehensive view must be taken of the applicable procedures (see,
e.g., Eur. Court HR, Agosi v. the United Kingdom judgment of 24 October
1986, Series A no. 108, p. 19, para. 55; Hentrich v. France judgment
of 22 September 1994, Series A no. 296-A, p. 21, para. 49).
"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 (see, e.g., Eur. Court HR, Sporrong and
Lönnroth v. Sweden judgment of 23 September 1982, Series A No. 52,
pp. 24-25, para. 63).
The Commission has held that the impossibility of excluding
others from fishing with a hand-held tackle in private waters did not
have such severe consequences for their owner that it amounted to a de
facto deprivation. Although the owner was not compensated for the
control of the use of his property, the Commission accepted that this
interference was proportionate, since his situation resulted from a
legislative measure and he had not previously derived any income from
hand-held tackle fishing. If he had derived such income from the
fishing, he would also have had a remedy for seeking compensation (see
No. 11763/85, Dec. 9.3.89, D.R. 60 pp. 128, 140-143).
The Commission notes that the applicant lost his right to license
fishing in his waters, though having been recognised by the authorities
as being dependent on the income from that licensing for his
livelihood. He was not formally deprived of his property nor of his
right to fish within his own part of the river. However, his right to
licence fishing was one facet of his property rights and in his
particular case the related economic interests arguably constituted -
together with his clientele - "possessions" for the purposes of
Article 1 of the Protocol No. 1 (P1-1) (cf., Eur. Court HR, Van Marle
and Others v. the Netherlands judgment of 26 June 1986, Series A no.
101, p. 13, paras. 41-42).
The Commission observes, however, that as a member of the fishery
conservation association the applicant became entitled to receive a
yield on the association's sale of fishing-licences which is
proportionate to his respective share of the overall conservation area.
The interference in question did not restrict any of the other rights
stemming from his ownership of the property. Thus the interference at
issue did not deprive him of all meaningful use of his property
(see Eur. Court HR, Tre Traktörer AB v. Sweden judgment of 7 July 1989,
Series A No. 159, pp. 21-22, paras. 52-53; the above-mentioned Fredin
judgment, p. 15, paras. 45-47; Pine Valley Developments Ltd and Others
v. Ireland judgment of 29 November 1991, Series A No. 222, p. 25,
para. 56; a contrario, Papamichalopoulos and Others v. Greece judgment
of 24 June 1993, Series A No. 260-B, p. 70, para. 45).
In these circumstances the Commission cannot find that the
applicant's loss of his right to license fishing within his own part
of the river constituted a de facto deprivation of his "possessions"
within the meaning of Article 1 of Protocol No. 1 (P1-1). The
interference is rather to be regarded as a control of the use of his
property within the meaning of the second paragraph of that provision.
The Commission recalls that its power to review compliance with
domestic law is limited (see, e.g., the above-mentioned Fredin
judgment, pp. 16-17, para. 50). It cannot find any indication that the
interference with the applicant's property rights was not in accordance
with the law.
The notion of the "general interest" leaves a wide margin of
appreciation to the national authorities. The Convention organs will
therefore respect the authorities' judgment as to what is a "general
interest" unless that judgment is manifestly without reasonable
foundation (see Eur. Court HR, James and Others v. the United Kingdom
judgment of 21 February 1986, Series A No. 98, p. 32, para. 46). For
instance, the protection of the environment is an increasingly
important consideration (see the above-mentioned Fredin judgment,
p. 16, para. 48).
The Commission finds no indication that the applicant's
licensing of fishing in his own section of the river had jeopardised
the fish stock in what eventually became the fishery conservation area.
On the contrary, he seems to have contributed to the improvement of the
fishery. The Commission can nevertheless accept that the creation of
the conservation area, including also the applicant's property, pursued
a legitimate aim in the general interest as it sought to coordinate the
fishery and the selling of fishing licences.
When assessing the proportionality of the interference, a fair
balance must be struck between the demands of the general interest of
the community and the requirements of the protection of the
individual's fundamental rights (see, e.g., the above-mentioned Fredin
judgment, pp. 17 et seq., paras. 51 et seq.). The requisite balance
will not be found if the person has to bear an individual and excessive
burden (see, e.g., the above-mentioned James and Others judgment,
p. 34, para. 50). The Commission would not exclude that although a
right to compensation is not inherent in the second paragraph of
Article 1 (Art. 1-2), such compensation could nevertheless be called
for in a case where the control of use has sufficiently severe economic
consequences for the property owner.
The Commission notes that Swedish law would not have prevented
the adoption of statutes entitling the applicant to a proportionately
higher share of the yield on the income from the association's
licensing of fishing within the whole conservation area. Nor would it
have prevented guaranteeing him his continued right to license angling
from his own property. Such a measure could effectively have amounted
to "compensation" for the interference. However, the Commission accepts
that such a solution was rejected by the national authorities on
arguable grounds, a measure which must be considered to remain within
the respondent State's margin of appreciation (cf. Eur. Court HR,
Mellacher and Others v. Austria judgment of 19 December 1989, Series
A No. 169, p. 28, para. 53).
It is true that, although having found it inappropriate to
exclude the applicant's property from the conservation area or to
guarantee his right to continue licensing the fishing within his area,
the national authorities did not pronounce themselves on his
entitlement to compensation. Their reference to his right to veto the
association's licensing of fishing within his fishing waters would not
appear to have answered his compensation claim as such a veto would not
have entitled him to license fishing in his own waters. However, in the
circumstances of the case the Commission cannot find it established
that the measure complained of placed an excessive burden on the
applicant.
The Commission finally considers that the proceedings viewed as
a whole afforded the applicant a reasonable opportunity of putting his
case to the responsible authorities with a view to establishing a fair
balance between the conflicting interests at stake. Having regard to
its considerations above, the Commission is further satisfied that such
a balance was struck in his case. Accordingly, the interference with
his property rights was proportionate to the aim pursued.
In these circumstances there is no appearance of any violation
of Article 1 of Protocol No. 1 (P1-1) or of Article 17 or 18
(Art. 17, 18) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy