AS TO THE ADMISSIBILITY OF
Application No. 14459/88
by H.J.
against Sweden
The European Commission of Human Rights sitting in private on
19 February 1992, the following members being present:
MM.C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs.G. H. THUNE
SirBasil HALL
MM.F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs.J. LIDDY
MM.L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
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 24 January 1988
by H.J. against Sweden and registered on 12 December 1988 under file
No. 14459/88;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 14 March 1991 and the observations in reply submitted by
the applicant on 1 September 1991;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Swedish citizen born in 1941 and resident at
Ersmark. He is a farmer. Before the Commission he is represented by
Mr. Åke Puranen, Enskede, Sweden.
A.The particular circumstances of the case
The applicant is the owner of an agricultural property, covering
approximately 406 hectares, in the municipality of Skellefteå. An area
of 195 hectares of the property is part of a 4310 hectares joint
hunting area (jaktvårdsområde), which was formed through a decision of
the County Administrative Board (länsstyrelsen) of the County of
Västerbotten on 6 April 1984 on the basis of the 1980 Act on Joint
Hunting Areas (lagen om jaktvårdsområden). The holders of the hunting
rights within that area have founded a hunting association to
administer the hunting area and according to whose by-laws the elk-
hunting was to be carried out as a joint activity. The same area has
been registered as a licence area for elk-hunting under the Hunting Act
(an "A-licence area"). On 4 June 1984 the Hunting Association decided
to join the Västerbotten County Hunting Association (Västerbottens läns
jaktförening) and the Swedish Hunting Association (Svenska
Jägareförbundet).
The applicant appealed against the decision of 6 April 1984 to
the Administrative Court of Appeal (kammarrätten) of Sundsvall, but
withdrew his appeal.
In 1986 the applicant was prosecuted for having, on his own
property, hunted and killed an elk in disregard of the rules on joint
hunting which applied to the whole joint hunting area. He was acquitted
on 17 June 1986 by the Skellefteå District Court (tingsrätt). After the
Public Prosecutor had appealed, the Court of Appeal for Upper Norrland
(hovrätten för Övre Norrland), on 10 February 1987, convicted him and
sentenced him to a fine and to payment to the hunting association of
the Joint Hunting Area of 5.358 SEK, representing the value of the elk
shot by the applicant. On 23 September 1987, the Supreme Court (Högsta
domstolen) refused leave to appeal.
In the meanwhile, the applicant had requested that his property
be registered as a separate elk-hunting area under Section 33 of the
1987 Hunting Act (jaktlagen). His request was rejected by the County
Administrative Board of the County of Västerbotten on 22 May 1987 on
the ground that such a registration could not be made, as the
applicant's property formed part of a joint hunting area.
The applicant appealed to the National Environmental Board
(statens naturvårdsverk) which, in a decision of 7 August 1987, upheld
the decision of the County Administrative Board, again referring to the
fact that the applicant's property was part of a joint hunting area.
A fresh request from the applicant that his property be
registered as a separate elk-hunting area under Section 33 of the
Hunting Act was rejected by the County Administrative Board on 18 March
1988, and the National Environmental Board rejected the applicant's
appeal on 30 May 1988 . Both authorities based themselves on the same
ground as in their previous decisions.
In separate proceedings the applicant requested that his property
be excluded from the joint hunting area. This request was refused by
the County Administrative Board on 20 May 1987. The applicant's appeal
was rejected by the Administrative Court of Appeal (kammarrätten) of
Sundsvall on 15 February 1988, and the Supreme Administrative Court
(regeringsrätten) refused leave to appeal on 30 June 1988.
B.Relevant domestic law
The application involves two sets of legislation: the 1987
Hunting Act (jaktlagen) and the 1980 Act on Joint Hunting Areas (lagen
om jaktvårdsområden).
The Hunting Act (SFS 1987:259)
The Hunting Act entered into force on 1 January 1988.
The main principle in the Hunting Act (Section 10) is that the
person who owns a property has the right to hunt on the land.
The term "hunting right" has no legal definition. However, it
appears from Section 10, compared to Section 2, that the hunting right
inter alia comprises a right to hunt game; essentially it is a right
to the catching or killing of game. A general obligation to preserve
and protect game within one's property is connected with this right.
The right to hunt may only be exercised to the extent that
hunting is consistent with the necessity of game preservation. This is
a consequence of the principle expressed in Section 3, according to
which all game is protected unless that protection is neutralised by
provisions that allow hunting.
The Hunting Act also has provisions concerning game preservation
for which the land owner and the holder of the hunting right are
responsible (Section 4).
According to Section 33, subsection 1, elk-hunting (with the
exception of elk-calf-hunting) may only take place if the County
Administrative Board has given a licence, and within an area, which has
been registered by the Board as a licence area.
The main provision concerning licence areas is Section 33,
subsection 2, which reads:
(translation)
"A licence area shall be of such a size and general
character that it is suitable for elk-hunting. The County
Administrative Board may refuse to register an area as a
licence area or decide on deregistration, if the area does
not allow for the shooting of at least one fully-grown
animal each year."
The licence areas described above - "A-licence areas" -
correspond essentially to such elk-hunting areas as, according to the
legislation in force prior to 1 January 1988, were called "licence
areas". According to that legislation, smaller land areas, which did
not fulfil the prerequisites for a licence area, could be registered
for a "general elk allowance" which meant that one fully-grown animal
and one calf could be shot during a very short hunting season.
According to the Hunting Act, such "general areas" can be registered
as special licence areas allowing for one fully-grown animal or one
calf to be shot - "B-licence areas" - if there are special reasons
(Section 33, subsection 3).
According to the travaux préparatoires to Section 33, subsection
3 (JoU 1986/87:15), an essential prerequisite for the registration of
a B-licence area is that the holder of the hunting right has shown his
willingness to co-ordinate his hunting with that of his neighbours. The
Government have stated that generally, this implies that the owner of
a small land area, who is a member of a joint hunting area association,
can hardly have his land registered as a licence area of its own if he
decides to leave the association without valid reasons.
The decisions of the County Administrative Board with regard to
licence areas may be appealed against to the National Environmental
Board. No appeal lies against that Board's decisions in such matters
(Section 54).
The Act on Joint Hunting Areas (SFS 1980:894)
The Act on Joint Hunting Areas provides, as a general rule, that
for the purpose of promoting the preservation of game and the hunting
right holders' common interests through co-ordination of the game
preservation, two or more properties or pieces of properties may be
joined to one joint hunting area and that, where this is done, the
hunting right holders within this area will form an association to
administer the joint hunting area (Section 1).
According to Section 3, a person whose land is incorporated in
a joint hunting area is a member of the joint hunting area association.
The County Administrative Board decides on the establishment of
a joint hunting area upon an application from one of the property
owners concerned. For such an area to be formed, at least two thirds
of the owners, representing at least half of the total area must agree
(Section 7). Moreover, the area has to be suitable with regard to inter
alia the stock of game (Section 8). The Board also confirms the by-laws
of the association with regard to certain aspects (Section 4). One of
those aspects is the extent to which joint hunting is to take place
within the area (Section 21).
The County Administrative Board may decide to dissolve a joint
hunting area association under certain conditions (Section 26).
A specific property may be excluded from the joint hunting area
if, as a result of a change in its use or for other reasons, it has
lost its importance with regard to game preservation. The association
itself may decide to exclude the property if it agrees with the
property owner. Otherwise, the County Administrative Board decides the
issue (Section 29).
According to Section 32, subsection 1, a person entitled to hunt
within a joint hunting area, who acts in violation of the provisions
of the by-laws adopted by the general meeting (jaktstämma) of the joint
hunting area association, may be fined. The offence has to be reported
by a plaintiff, inter alia the association, in order for prosecution
to take place (Section 32, subsection 2).
Decisions made by the general meeting or the board of the
association may be appealed against to the County Administrative Board
by a member of the association affected by the decision (Section 33).
An appeal against the decisions of the County Administrative
Board may be lodged with the Administrative Court of Appeal (Section
34). The decisions of the Court may be appealed against to the Supreme
Administrative Court.
COMPLAINTS
The applicant complains that he has been refused the right to
hunt elk on his property and that he has not had access to a court in
regard of these hunting rights. He invokes Article 1 of Protocol No. 1
to the Convention and Article 6 of the Convention.
The applicant also complains that the hunting association, which
administers the joint hunting area, has affiliated him to the
Västerbotten County Hunting Association and the Swedish Hunting
Association. He invokes Article 11 of the Convention.
Finally the applicant refers to Article 17 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 January 1988 and registered
on 12 December 1988.
On 3 December 1990 the Commission decided to bring the
application to the notice of the respondent Government, inviting them
to submit written observations on the admissibility and merits of the
case.
The Government's observations were submitted on 14 March 1991.
The applicant's observations in reply were submitted on 1 September
1991.
Legal aid under the Addendum to the Commission's Rules of
Procedure was granted to the applicant on 14 October 1991.
THE LAW
1.The applicant complains that he has been denied the right to hunt
elk on his property. He invokes Article 1 of Protocol No. 1 (P1-1) to
the Convention, 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 the
payment of taxes or other contributions or penalties."
According to the case-law of the European Court of Human Rights,
Article 1 (Art. 1) in substance guarantees the right to property. It
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 the peaceful enjoyment of property; the second rule,
in the second sentence of the first paragraph, covers deprivation of
possessions and subjects it to certain conditions; the third rule,
stated in the second paragraph, recognises that the Contracting States
are entitled, amongst other things, to control the use of property by
enforcing such laws as they deem necessary in the general interest.
However, these 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 (Eur. Court H.R., Tre Traktörer
judgment of 7 July 1989, Series A no. 159, pp. 21-22, para. 54, with
further references).
The Commission finds that the applicant's right to peaceful
enjoyment of his possessions was interfered with when his property
became part of the joint hunting area against his wish. It considers,
however, that he has not been deprived of his property and that the
second sentence of the first paragraph is therefore not applicable in
the present case.
The Commission finds that the fact that the applicant's property
was included in the joint hunting area constitutes a measure of
controlling the use of property, to be considered under the second
paragraph of Article 1 (Art. 1), which recognises the right of the
Contracting States to enforce such laws as they deem necessary for
controlling the use of property in accordance with the general
interest. As this provision is to be construed in the light of the
general principle enunciated in the first sentence of the first
paragraph, there must exist a reasonable relationship of
proportionality between the means employed and the aim pursued. In
striking a fair balance between the general interest of the community
and the requirement of the protection of the individual's fundamental
rights, the authorities enjoy a wide margin of appreciation (Eur. Court
H.R., Allan Jacobsson judgment of 25 October 1989, Series A no. 163,
p. 17, para. 55, with further references).
In the present case, the creation of the joint hunting area was
aimed at promoting the game preservation and the hunting right holders'
common interests. The Commission considers this to be a legitimate aim
in the general interest. As regards the proportionality between the
interference with the applicant's property rights and the aim pursued,
the Commission notes that the applicant had the right to hunt within
the joint hunting area, including his own property, but that he was
obliged to co-ordinate his hunting with the other hunting right
holders. Furthermore, nothing in the case indicates that he would not
have hunting rights in relation to his property's share of th
he join
hunting area. Having regard to the wide margin of appreciation enjoyed
by the Contracting States, the Commission cannot find that the decision
to form a joint hunting area was disproportionate to the aim pursued.
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.
2.The applicant also complains that he has not had access to a
court in regard to his hunting rights. He invokes Article 6 (Art. 6),
which in the relevant part of its first paragraph reads as follows:
"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 Commission first notes that the decision to form the joint
hunting area and the decision not to exclude the applicant's property
from the hunting area were both taken by the County Administrative
Board. The decisions could be appealed against to the Administrative
Court of Appeal and subsequently to the Supreme Administrative Court,
which clearly are tribunals within the meaning of Article 6 (Art. 6)
of the Convention. As far as the complaint refers to these decisions,
it is thus manifestly ill-founded.
With regard to the complaint in relation to the applicant's
requests to have his property registered as a separate elk area under
Section 33 of the Hunting Act, the Government argue that no serious
dispute over the applicant's civil rights is raised and that the
complaint is therefore incompatible with the Convention. The applicant
states that there is no legal rule which would have made it impossible
to register his property as a separate elk-hunting area.
The Commission recalls the case-law of the European Court of
Human Rights according to which Article 6 para. 1 (Art. 6-1) extends
only to disputes ("contestations") over "civil rights and obligations"
which can be said, at least on arguable grounds, to be recognised under
domestic law; it does not in itself guarantee any particular content
for "civil rights and obligations" in the substantive law of the
Contracting States. Furthermore, the dispute must be genuine and of a
serious nature (cf. Eur. Court H.R., Pudas judgment of 27 October 1987,
Series A no. 125-A, pp. 13 and 14, paras. 30 and 31, with further
references).
The Commission notes that when the applicant requested his
property to be registered as an elk-hunting area under the 1987 Act,
the property was part of the joint hunting area formed under the 1980
Act and registered as such. The request could therefore not be granted
since recognition of the property as a separate elk-hunting area would
be inconsistent with its status as part of a joint hunting area. The
Commission notes in this regard that both the County Administrative
Board in its decisions of 22 May 1987 and 18 March 1988 and the
National Environmental Board in its decisions of 7 August 1987 and
30 May 1988 indicated as a reason for rejecting the applicant's request
the fact that his property was part of a joint hunting area. The
applicant has not referred to any particular grounds on the basis of
which he could nevertheless reasonably claim to be entitled to a
separate registration of his property in this regard.
In these circumstances the Commission is of the opinion that
there was no genuine and serious dispute concerning the applicant's
civil rights in regard to his request to have his property registered
as a separate elk-hunting area.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention and must be
rejected under Article 27 para. 2 (Art. 27-2).
3.The applicant also alleges that the hunting association, which
administers the joint hunting area, has, without his consent,
affiliated him to the Västerbotten County Hunting Association and the
Swedish Hunting Association. He invokes Article 11 (Art. 11) of the
Convention.
The Commission notes that the applicant has not shown that he
himself became a member of the two associations, but rather that the
association administering the joint hunting area decided to request
membership on its own behalf. However, the Commission does not find it
necessary to examine this question as the complaint is in any case
inadmissible for the following reasons.
The decision to join the two associations was taken by the
hunting association on 4 June 1984. According to Sections 33 and 34 of
the Act on Joint Hunting Areas such a decision could be appealed
against to the County Administrative Board and subsequently to the
Administrative Court of Appeal and to the Supreme Administrative Court.
As the applicant did not avail himself of this possibility it
follows that this complaint must be rejected in accordance with Article
27 para. 3 (Art. 27-3) of the Convention for non-compliance with the
requirement of exhaustion of domestic remedies under Article 26
(Art. 26) of the Convention.
4.The applicant's reference to Article 17 (Art. 17) of the
Convention does not raise any issue which the Commission has to
determine separately.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy