AS TO THE ADMISSIBILITY OF
Application No. 15997/90
by O.B. and Others
against Norway
The European Commission of Human Rights (Second Chamber) sitting
in private on 8 January 1993, 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 9 November 1989
by O.B. and Others against Norway and registered on 15 January 1990
under file No. 15997/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 27 April 1992 and the observations in reply submitted by
the applicants on 20 July 1992;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicants, whose names are annexed to this decision, are of
Skolte sámi origin, an ethnic group that differs from other sámi
groups. They live at Neiden in the eastern part of Finnmark, the
northernmost county (fylke) of Norway. Before the Commission the
applicants are represented by Mr. Knut Rognlien, a lawyer practising
in Oslo.
A. The particular facts of the case
Through centuries the Skolte sámis inhabited the border districts
of Norway, Russia and Finland. They were mainly nomads living off a
combination of keeping reindeer, fishing and hunting. The importance
of these activities varied throughout history due to variations in
resources and other peoples' activities in their domain.
People of Finnish and Norwegian origin subsequently settled in
the district inhabited by the Skolte sámis which led to disputes
concerning land and reindeer herding and grazing rights. In particular
in this century such disputes were brought before various authorities
and in the 1950s and 1960s several agreements were reached between the
Skolte sámis and other sámi groups but they did not solve the problems
satisfactorily from the applicants' point of view.
On 10 May 1977 and again on 22 September 1978 the Skolte sámis
requested the County Governor (fylkesmannen) to grant them an exclusive
right to reindeer husbandry in their old area (siida) and to expel
other sámi groups from that area. Their request was based on the Act
of 12 May 1933 (hereinafter the 1933 Act) relating to reindeer
husbandry which was then in force and according to which the County
Governor could allocate districts to persons engaged in reindeer
husbandry (section 4) and refer them and their herds to other districts
(section 12). On 7 March 1979 another sámi group in the area whose
means of livelihood was reindeer husbandry submitted their
observations.
On 31 May 1979 the County Governor rejected the Skolte sámis'
request. He stated that he was not empowered by the 1933 Act to accord
exclusive rights to any group in the area in question, which covered
several districts. Moreover, the area was vast and the Skolte sámis had
no reindeer herd there at that time, and it was not realistic to expect
that they would, in the near future, raise a herd which would need such
a large area of land. On the other hand, it was stressed that according
to the 1933 Act, the Skolte sámis - like other sámi groups - had a
right to engage in reindeer husbandry in the area in question. The
County Governor also stated that it was a matter for the courts to
decide whether the Skolte sámis could claim an exclusive right to
reindeer husbandry on the basis of immemorial usage (alders tids bruk).
The 1933 Act was replaced by the Act of 9 June 1978 relating to
reindeer husbandry, entering into force on 1 July 1979 (hereinafter the
1978 Act). Under Sections 6 and 7 of that Act new bodies - the Reindeer
Husbandry Board (Reindriftstyret) and the Local Board (områdestyret) -
are empowered to make decisions in relation to reindeer husbandry.
On 22 June 1979 the Skolte sámis, including the applicants,
lodged a complaint with the Ministry of Agriculture against the County
Governor's decision. They requested that a decision be taken in the
case according to the 1978 Act. Other sámis engaged in reindeer
husbandry in the area submitted their comments on 14 September 1979.
The Ministry referred the question whether the Skolte sámis should have
a right to engage in reindeer husbandry to the Reindeer Husbandry
Board. On 2 - 3 February 1981, following further correspondence between
the Skolte sámis and the authorities concerning the history of the
current disputes in the area, the Board decided that the Skolte sámis
had a right to engage in reindeer husbandry under section 3 of the
1978 Act.
The Ministry of Agriculture then made several attempts to reach
a friendly settlement between the opposing sámi groups as to the
exercise of this right, but to no avail. On 26 May 1983 the Skolte
sámis asked the Ministry to decide the matter. On 29 July 1983 the
Ministry of Agriculture dismissed the complaint because neither the
provisions under the 1933 Act nor the 1978 Act, in its opinion,
provided for the possibility of giving a specific group an exclusive
right to reindeer husbandry. The Ministry furthermore advised the
complainants to proceed as envisaged in the 1978 Act, i.e. to request
a decision from the Local Board and, if necessary, to appeal to the
Reindeer Husbandry Board.
On 18 and 24 August 1983 the Skolte sámis complained to the King
in Council (Kongen i statsråd). The Ministry's decision was, however,
upheld by Royal Decree of 28 October 1983. The Decree stated inter alia
that the administrative authorities were not empowered to grant
exclusive herding areas as reindeer husbandry was a collective right
for everybody in the areas. It was a matter for the courts to decide
whether the Skolte sámis could, on the basis of principles of private
law, claim an exclusive right to the area.
Proceedings before the District Court (Herredsrett) of Tana and
Varanger
It does not appear from the applicants' submissions whether they
followed the advice of the Ministry of Agriculture and proceeded as
envisaged in the 1978 Act. However, by a submission dated
23 November 1984 they instituted proceedings in the District Court of
Tana and Varanger. The suit was directed against another sámi group
currently engaged in reindeer husbandry in the area and against the
Government, i.e. the Ministry of Agriculture.
On the basis of the principles of immemorial usage, the
applicants claimed an exclusive right to grazing land in their old area
and requested that other sámis herding reindeer leave that area. In
relation to the Government the applicants demanded that any decisions
of the authorities permitting others to herd reindeer in the area be
annulled. According to the applicants their exclusive right to grazing
land could not be set aside by decisions pursuant to ordinary
legislation.
On 4 December 1984 the Court ordered the defendants to submit
their reply within 21 days after receiving the summons.
On 20 December 1984 the other sámi group, which was engaged in
reindeer husbandry in the area, filed their reply, in which they
disputed the exclusive right of the applicants. Their brief submission
stated inter alia that further research was required. The Court
requested observations from the applicants and the Government by
25 January 1985.
On 3 January 1985 the applicants supplemented their first
submission and produced historical material from 1517 to 1969.
The Government which had been granted an extension of the time-
limit filed their reply on 15 February 1985. They argued inter alia
that the applicants had no exclusive right to the area. On
18 February 1985 the Court requested observations from the other two
parties by 6 March 1985.
On 4 March 1985 the applicants requested an extension, and the
Court fixed 20 March 1985 as a new time-limit.
On 6 March 1985 the other sámi group submitted their observations
and also filed historical material. They did not accept the description
of the extent to which the applicants had been engaged in reindeer
husbandry in a historical perspective. The applicants were requested
to define the exact borders of the old Skolte sámi area as compared
with their current claim and to submit certain old documents. On
8 March 1985 the Court requested observations from the applicants by
12 April 1985.
On 28 March 1985 the Court informed the parties that the main
hearing would commence on 5 November 1985 and that one week had been
reserved for that purpose.
On 14 August 1985 the other sámi group complained that the
applicants had still not complied with their requests for further
information. On 14 August 1985 the Court asked the applicants to submit
the requested information immediately. They did so on 30 August 1985.
On 2 September 1985 the Court raised the question whether it was
necessary that the Court also be composed of two lay judges. The
parties were asked to submit their comments by 12 September 1985. On
that date the Government stated that in their view lay judges were not
required.
On 11 September 1985 the other sámi group submitted additional
documentation and argued that part of the evidence adduced by the
applicants was inadmissible. On 16 September 1985 the Court requested
the applicants to comment on this matter as soon as possible. They
submitted their observations on 23 October 1985 and filed a list of
nine witnesses. As two of the witnesses spoke only Finnish, it was
suggested that an interpreter be engaged.
On 28 October 1985 the other sámi group maintained their
contention that part of the evidence was inadmissible.
The main hearing before the District Court took place from 5 to
8 November 1985. Six representatives of the parties and nine witnesses
were heard.
Judgment was pronounced on 18 November 1985. On the basis of a
study of the historical sources and after an evaluation of the other
evidence submitted, the District Court found that the applicants had
not established an exclusive right to reindeer husbandry in their old
area.
Proceedings before Hålogaland High Court (Lagmannsrett)
On 23 January 1986 the applicants lodged an appeal with the
Hålogaland High Court. They stated that there was a need to examine the
archives of one of the witnesses, and reserved their right to submit
additional historical material.
The appeal was received on 27 January 1986, and on the same day
the Court requested the other parties to submit their observations in
reply within 14 days.
The other sámi group submitted their reply as early as
28 January 1986. On 27 February 1986 the Government submitted their
observations, which were received by the District Court on
3 March 1986. The same day the Court forwarded the case to the
Hålogaland High Court which received it on 7 March 1986.
On 20 March 1986 the High Court asked the applicants to file, by
21 April 1986, a complete list of evidence and to provide the
information necessary for the preparation of the case. On that date the
Government requested to be given until 20 May 1986 to consider whether
additional evidence was necessary. On 24 April 1986 the applicants
requested an extension of the time-limit as it had not been possible
for the parties to examine the documents of one of the witnesses. They
asked the High Court not to fix a time-limit for the submission of a
complete list of evidence. Moreover, the applicants requested a special
hearing in order to hear six persons who should, for reasons of age or
health, be questioned as soon as possible. At the same time the
applicants asked the High Court to fix dates for the main hearing.
On 28 April 1986 the High Court requested the other sámi group
and the Government to file, by 20 May 1986, complete lists of evidence
and to provide the information necessary for the preparation of the
case. It asked the applicants for further information concerning the
subject matter to be dealt with by the six persons to be questioned,
and wished to know when the applicants would be in a position to
examine the archives of the witness mentioned in the appeal. The dates
of the main hearing would be fixed when the High Court's time-table so
permitted.
The Government submitted their observations on 20 May 1986. On
27 May 1986 the other sámi group asked the Court not to fix a time-
limit for the submission of a complete list of evidence. Moreover, they
stated that they also wished to question witnesses during the hearing
for the taking of evidence, and would name these witnesses at a later
stage. Furthermore, the names of two new witnesses were mentioned, and
there was also a question of summoning a third witness in addition to
those heard before the District Court. The other sámi group indicated
that January or February 1987 might be possible dates for the main
hearing.
On 6 June 1986 the High Court requested the applicants and the
other sámi group to produce the remaining evidence without undue delay.
The High Court asked for complete lists of witnesses and for more
information as to why the taking of evidence was necessary.
On 18 September 1986 the High Court ordered the parties to file
complete lists of evidence by 10 October 1986. On 1 October 1986 the
applicants informed the High Court that the lawyers had still not
received the documents from the witnesses mentioned in their appeal.
Consequently, it was impossible to file a complete list of evidence by
10 October 1986.
On 6 October 1986 the High Court extended the time-limit for a
complete list of evidence to 3 November 1986. If the documents were not
made available by 10 October, the applicants and the other sámi group
were urged to request that a hearing for the taking of evidence be held
immediately.
On 17 November 1986 the applicants submitted 16 new documents,
mainly historical material relating to reindeer husbandry in the area.
They upheld their request for a special hearing of six persons unless
a main hearing could be scheduled before the summer of 1987.
On 25 November 1986 the High Court requested final submissions
from the parties by 17 December 1986, and the applicants were ordered
to prepare excerpts from the documents necessary for the High Court's
consideration of the case by 19 January 1987. The High Court found that
there were not sufficient reasons for a special hearing for the taking
of evidence prior to the main hearing on the grounds maintained, except
for one of the applicants' witnesses, provided the main hearing would
take place after the summer of 1987.
On 1 December 1986 Counsel for the other sámi group filed 19 new
documents, mainly historical material providing further information
concerning reindeer husbandry in the area in question. Moreover, he
informed the High Court that some pages of an old protocol had been
removed. If his further attempts to find them should prove
unsuccessful, he mentioned the possibility of calling witnesses to give
evidence on the question.
On 17 December 1986 the applicants reserved their right to call
a new witness and to submit more documents, including the missing pages
from the protocol.
The above-mentioned excerpts from relevant documents which the
applicants' lawyer had been ordered to prepare were received by the
High Court on 25 May 1987.
The High Court then consulted the lawyers in order to set a date
for the main hearing, which was expected to last one week. It is not
clear when these consultations took place, but at any rate it is clear
that there was agreement on the dates in early November 1987 when it
was decided that the main hearing should start on 1 February 1988. On
16 December 1987 the parties were formally requested by the High Court
to meet on that date.
In December 1987 and January 1988 there was considerable
correspondence between the High Court and the parties concerning the
15 witnesses to be heard (problems concerning availability, need for
interpreter, etc.) and other practical arrangements. Additional
documents were also filed.
In a statement of 13 January 1988, the applicants declared that
they wished to have a new counsel. Consequently, on 15 January 1988,
the applicants' lawyer informed the High Court that he could no longer
represent them and requested that the main hearing be postponed. Other
reasons for this request were that two of the witnesses had declared
that they were unable to attend the main hearing due to illness, and
that one of the witnesses, who had undertaken to carry out a study on
the history of the Skolte sámis, had not completed his work.
The High Court tried to avoid postponing the main hearing.
However, on 22 January 1988, the High Court found that it had to accept
the request for a postponement, since the counsel for the other two
parties had supported the request. At the same time the High Court
recommended that the applicants designate a new counsel as soon as
possible and fixed 3-7 October 1988 as new dates for the main hearing.
As the High Court had not received any notification from the
applicants regarding a new counsel, it informed them on 23 June 1988
that they could not expect the Court to grant another postponement. On
7 July 1988 a new counsel informed the High Court that he was now
representing the applicants and that he would file a final list of
evidence after his meeting with the applicants. On 8 July he requested
the appointment of an expert (sakkyndig) in the case.
On 13 July 1988 the High Court asked for observations on the need
for appointing experts in the case, drawing the attention of the
parties to the fact that the expert requested was already on the list
of ordinary witnesses. On 2 August 1988 the other two parties stated
that they saw no need for experts in the case, and on 22 August 1988
the High Court decided not to appoint an expert. At the same time the
High Court informed the applicants' lawyer that the time-limit for the
submission of final observations had expired on 17 December 1987, but
set 13 September 1988 as a new time-limit.
On 13 September 1988 the applicant's lawyer informed the High
Court that because of age, two of his clients were not able to give
evidence, but suggested that the tape of a radio interview in 1974 with
one of them be played. He also requested that interpreters be provided
and that two new witnesses be heard during the main hearing.
Considerable correspondence between the High Court and the
parties followed in September and October 1988 concerning these and
other practical issues in connection with the preparation of the main
hearing, which took place from 10 to 13 October 1988. Nine witnesses
and two persons nominated by the parties were heard.
By judgment of 11 November 1988 the High Court upheld the
judgment of the District Court.
Proceedings before the Supreme Court (Høyesterett)
On 23 January 1989 the applicants lodged an appeal with the
Supreme Court. Observations in reply were submitted by the other
parties on 14 and 15 February 1989, and the High Court forwarded the
case to the Appeals Selection Committee of the Supreme Court
(Høyesteretts kjæremålsutvalg) on 20 February 1989.
On 9 March 1989 the Appeals Selection Committee informed the
parties that it was considering not to grant leave to appeal and asked
the applicant to submit observations on this issue by 30 March 1989.
On that date the applicants submitted their comments.
On 19 April 1989 the Appeals Selection Committee decided not to
grant leave to appeal since the appeal had no prospects of success.
This decision was sent to the parties on 5 May 1989.
B. Relevant domestic law
According to section 1 of the Act of 12 May 1933 relating to
reindeer husbandry, nomadic sámis (flyttlapper) who were Norwegian
nationals had the right to engage in reindeer husbandry in accordance
with the provisions of the Act. Section 84 accorded the same right to
other inhabitants of the area, including owners of reindeer having
permanent residence there (fastboende). Consequently, the Skolte sámis
were also entitled to engage in reindeer husbandry.
Section 2 of the Act provided that reindeer husbandry had to take
place in certain parts of Norway, which were divided into districts.
According to section 4 the County Governor could regulate the grazing
land within each district and allocate it to persons engaged in
reindeer husbandry. Section 12 of the Act empowered a local authority
(lappefogden) to expel a person and his herd to other districts if this
was required in order to improve grazing conditions or was considered
advisable for other reasons. However, according to subsection 2 of that
provision, persons having used the grazing land for the longest period
of time should be given preference.
According to section 3, subsection 1, of the Act of 9 June 1978
relating to reindeer husbandry, which replaced the 1933 Act, Norwegian
nationals of sámi origin have the right to engage in reindeer
husbandry. If this was not their main occupation when the Act entered
into force, it is a condition that it had been the primary means of
livelihood of their parents or grandparents. However, the right to
engage in reindeer husbandry may be given to other persons in
accordance with section 3, subsection 3, of the Act. The Reindeer
Husbandry Board has been given authority to decide on the issue.
According to section 2 the Board is also responsible for dividing
the various parts of Norway into districts and for deciding upon the
number of reindeer to be allowed in each district. It is the
responsibility of the Local Board to decide whether a person is allowed
to take up reindeer husbandry as his means of livelihood.
The right to reindeer husbandry is a right of use (bruksrett)
irrespective of the ownership of the land. The legislation is based on
the traditional understanding that it is a collective right of the sámi
people as a group.
The principles of immemorial usage are unwritten principles of
private law according to which certain rights to land may be acquired
if the use has been accepted for a long period of time. As the use is
supposed to create a right, it is a further condition that the user
cannot base it on other rights, for instance a collective right.
According to section 437 of the Code of Civil Procedure of
13 August 1915 (Tvistemålsloven), an administrative authority may
provide that legal proceedings concerning the validity of a decision
may only be instituted if the person concerned has lodged a complaint
with a superior administrative authority and after this authority has
decided upon the matter. No such regulation had, or has, been issued
in respect of the 1933 and 1978 Acts.
COMPLAINTS
The applicants complain that they did not receive a fair hearing
by an independent and impartial tribunal within a reasonable time. They
invoke in this respect Article 6 of the Convention.
Under Article 1 of Protocol No. 1 to the Convention the
applicants complain that their right to keep reindeer in the Neiden
district is not respected by the Norwegian authorities. They complain
that others now have the right to keep reindeer in the area where they
have had an exclusive right over centuries.
Furthermore, the applicants complain that they have been
discriminated against and invoke in this respect Article 14 of the
Convention in conjunction with Article 6 of the Convention and Article
1 of Protocol No. 1 to the Convention.
In their letter of 9 October 1991 the applicants finally complain
that the restrictions on their right to keep reindeer violate Article 8
of the Convention as reindeer husbandry is closely connected with their
culture and way of living.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 November 1989 and registered
on 15 January 1990.
On 13 February 1992 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on the admissibility and merits of
the application.
The Government submitted their observations on admissibility and
merits on 27 April 1992. The applicants' observations in reply were
submitted on 20 July 1992.
THE LAW
1.a. Under Article 6 para. 1 (Art. 6-1) of the Convention the
applicants complain that they did not get a fair hearing by an
independent and impartial tribunal within a reasonable time when the
dispute concerning their reindeer herding right was determined. The
provision invoked by the applicants reads in its relevant part as
follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair ... hearing within a
reasonable time by an independent and impartial tribunal
... ."
In respect of the questions of fairness, independence and
impartiality the applicants submit that the Norwegian courts are
established on the basis of Norwegian culture, values and way of life
and thinking. Therefore they are not impartial when determining the
rights of a national minority belonging to another culture and having
another way of thinking and determining natural rights. Furthermore,
they submit that the courts' independence is open to doubt, in
particular when the Norwegian State is party to a conflict with a
national minority.
The Commission recalls that the question whether a hearing
conforms with the standard laid down by Article 6 para. 1 (Art. 6-1)
of the Convention must be decided on the basis of the court proceedings
as a whole and after they have been concluded. Furthermore the
Commission recalls that the evaluation of evidence is a matter within
the appreciation of the national courts which cannot be reviewed by the
Commission unless there is an indication that the courts have drawn
grossly unfair or arbitrary conclusions from the facts before them.
This is not the case here. Indeed it appears that the Norwegian courts
in their judgments made a thorough examination of the issue before them
and that they reached their conclusions on the basis of what they
considered to be domestic law and practice. The Commission finds that
the reasons on which the courts based their judgments are sufficient
to exclude the assumption that the evaluation of the evidence was
unfair or arbitrary.
In determining whether a body can be considered to be an
independent tribunal, i.e. independent in particular of the executive
and of the parties to the case, regard must be had to the manner of
appointment of its members and the duration of their term of office,
the existence of regulations governing their removal or guarantee for
their irremovability, laws prohibiting their being given instructions
by the executive in their role as adjudicators, the existence of legal
guarantees against outside pressures, the question whether the body
presents an appearance of independence and the participation of members
of the judiciary in the proceedings (cf. for example Eur. Court H.R.,
Campbell and Fell judgment of 28 June 1984, Series A no. 80, pp. 39-41,
paras. 78-81 with further references).
As regards the question of impartiality the Commission recalls
that the existence of impartiality for the purposes of Article 6
para. 1 (Art. 6-1) must be determined according to a subjective test,
that is on the basis of the personal conviction of a particular judge
in a given case, and also according to an objective test, that is
ascertaining whether the judge offered guarantees sufficient to exclude
any legitimate doubt in this respect (see, for example, Eur. Court
H.R., Piersack judgment of 1 October 1982, Series A no. 53, p. 14,
para. 30).
When considering these elements in the circumstances of the
present case, and in the light of the applicants' submissions, the
Commission has not found any substantiated allegations which would
merit a further examination of these aspects of Article 6 para. 1
(Art. 6-1) of the Convention.
The Commission therefore concludes that the applicants'
allegations of a violation of the principles of fairness, independence
and impartiality in this case are manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
b. Under Article 6 para. 1 (Art. 6-1) of the Convention the
applicants also complain that their case was not determined within a
reasonable time. They maintain that the proceedings commenced on 10 May
1977 when they submitted a request to the County Governor, asking him
to grant them the right to reindeer herding in a specific area. These
proceedings came to an end on 5 May 1989 when they were informed that
the Appeals Selection Committee of the Supreme Court had refused leave
to appeal. In particular the applicants submit that the period from 22
June 1979, when they lodged their complaint with the Ministry of
Agriculture, until 29 July 1983, when the Ministry decided on the
matter, is unreasonable and in violation of Article 6 para. 1
(Art. 6-1) of the Convention.
The Government do not dispute that "civil rights" within the
meaning of Article 6 (Art. 6) of the Convention are at issue, but they
maintain that the period to be assessed runs from 23 November 1984 when
proceedings were instituted in the District Court until 19 April 1989
when leave to appeal was refused. They contend in particular that the
prior decisions of the administrative authorities did not relate to the
issue put before the courts for determination and it would not have
been necessary to await the outcome of the administrative proceedings
before bringing the present case before the courts.
The Commission recalls that the period to which Article 6
(Art. 6) is applicable in civil cases normally starts to run with the
issuing of the writ commencing proceedings before the court to which
the plaintiff submits the dispute. However, where such proceedings may
only be instituted after a determination of the same dispute by an
administrative authority the concept of "reasonable time" must be
applied so as to include both the administrative and the court
proceedings (cf. Eur. Court H.R., König judgment of 28 June 1978,
Series A no. 27, p. 33, para. 98).
In the present case the Commission recalls that disputes between
different sámi groups concerning reindeer herding and grazing rights
had been pending before various authorities for decades. Eventually the
question arose whether the Skolte sámis had an exclusive right to
reindeer husbandry in a specific area, and the Commission finds it
established that this was not a matter the administrative authorities
had competence to decide upon. Indeed the County Governor referred the
Skolte sámis to the courts already on 31 May 1979 and the view was
subsequently upheld by the Ministry of Agriculture and the King in
Council. The Commission furthermore finds that under domestic law the
applicants were not prevented from instituting court proceedings
concerning the exclusive right to reindeer husbandry while other issues
in this respect were pending before the administrative authorities.
In these circumstance the Commission finds that the period to the
taken into consideration starts to run from 23 November 1984 when the
applicants instituted proceedings in the District Court of Tana and
Varanger. It ended on 5 May 1989 when the applicants were informed that
the Appeals Selection Committee of the Supreme Court had refused leave
to appeal. Accordingly, the proceedings lasted approximately 4 years
and 6 months.
The Commission recalls that the reasonableness of the length of
the proceedings must be assessed in the light of the particular
circumstances of the case and with reference to the following criteria:
the complexity of the case, the conduct of the parties and the conduct
of the authorities dealing with the case (see Eur. Court H.R., Vernillo
judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).
As regards the complexity of the case the Government submit that
the issue in question had never been determined by a Norwegian court
before and involved the application of the principle of immemorial
usage which necessitated a study of historical and legal sources dating
as far back as 1517. The applicants have not expressed themselves on
this point.
The Commission recalls that various issues concerning reindeer
husbandry in northern Norway had for years caused difficulties and many
attempts to solve them had failed. The Commission considers that the
particular issue before the courts was not less difficult and therefore
accepts that it was of a complex nature.
As regards the conduct of the parties the Government submit that
the length of the proceedings was mainly attributable to the
applicants. These have not, however, expressed themselves on this
point.
The Commission recalls that the proceedings in the District Court
lasted from 23 November 1984 to 18 November 1985, i.e. approximately
one year. The applicants did not during this period contribute to
prolonging the proceedings.
The proceedings in the High Court lasted two years, nine months
and eighteen days. The Commission recalls that during this period the
applicants asked on several occasions for extensions of the time-limits
for the submission of documents and failed to comply with others.
Furthermore, they asked for a postponement of the main hearing two
weeks before the date it was scheduled in order to change counsel. In
these circumstances the Commission finds that the applicants prolonged
the proceedings in the High Court.
As regards the conduct of the judicial authorities the Government
maintain that the proceedings do not disclose negligence or
dilatoriness on the part of the courts. The applicants have not
expressed themselves on this point.
The Commission has not overlooked that the District Court fixed
the date for the hearing more than seven months in advance, and that
the High Court spent from May to November 1987 on arranging a date for
the hearing. However, although the Convention emphasises the importance
of administering justice without delays which might jeopardise its
effectiveness and credibility, the Commission is aware of the
difficulties which sometimes delay the hearing of cases by national
courts and which are due to a variety of factors which do not transpire
from the documents of a case. Furthermore, the Commission notes that
the judicial authorities, in particular the High Court, actively
pursued the case by setting time-limits and by warning the parties as
to the possibility of obtaining further postponements.
Having regard to this and to the fact that the proceedings
comprised three court levels, the Commission finds that the total
period of time was not so long as to warrant the conclusion that it was
excessive. Consequently, 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 applicants also complain that their right guaranteed to them
under Article 1 of Protocol No. 1 (P1-1) to the Convention has been
violated. This provision 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."
In so far as the applicants complain that they have been deprived
of their exclusive right to reindeer husbandry in the area in question
the Commission recalls that the courts found that they had no such
right. Furthermore, the Commission recalls that the applicants do
indeed have a right - although not an exclusive one - to reindeer
husbandry and it does not appear that this right has been interfered
with or controlled in a way not acceptable under Article 1 para. 2
of Protocol No. 1 (P1-1-2) to the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Under Article 14 (Art. 14) of the Convention the applicants
complain that they have been discriminated against in the enjoyment of
their rights under Article 6 (Art. 6) of the Convention and Article 1
of Protocol No. 1 (P1-1) to the Convention. They submit that they "are
discriminated [against] in relation to other Laps and to the Norwegian
population both because of their association with a national minority
and because of their special traditional form of property".
The Commission has not, in its examination of this particular
complaint, found any substantiation in the applicants' allegations
which would merit their further consideration. They do not disclose any
appearance of a violation of the Convention or its Protocols. It
follows that this part of the application is also manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. Finally, the applicants complain, in their letter of 9 October
1991, that the restrictions on their right to keep reindeer violate
Article 8 (Art. 8) of the Convention as reindeer husbandry is closely
connected with their culture and way of living.
The Commission is not, however, required to decide whether or not
the facts alleged by the applicants disclose any appearance of a
violation of this provision, as Article 26 (Art. 26) of the Convention
provides that the Commission "may only deal with the matter ... within
a period of six months from the date on which the final decision was
taken".
In the present case the decision of the Appeals Selection
Committee of the Supreme Court, which was the final decision regarding
the subject of this particular complaint, was sent to the applicants
on 5 May 1989, whereas the complaint under Article 8 (Art. 8) of the
Convention was submitted to the Commission on 9 October 1991, that is,
more than six months later. Furthermore, an examination of the case
does not disclose the existence of any special circumstances which
might have interrupted or suspended the running of that period.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy