AS TO THE ADMISSIBILITY OF
Application No. 13572/88
by Tage ÖSTERGREN and others
against Sweden
The European Commission of Human Rights sitting in private
on 1 March 1991, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
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 20 October 1984
by Tage Östergren and others against Sweden and registered on 28
January 1988 under file No. 13572/88;
Having regard to the Government's written observations of
18 April 1990 and the applicants' observations in reply of 1 July
1990;
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 facts, as they appear from the parties' submissions, may
be summarised as follows:
The applicants are three members of the Sami community in
northern Sweden who are reindeer owners and herders. The first
applicant, Tage Östergren, was born in 1931, the second applicant, Per
Martin Israelsson, in 1959, and the third applicant, Tomas Gunnar
Stångberg, in 1952. They are all resident in Tärnaby.
The applicants are represented before the Commission by Tomas
Cramér, a Swedish lawyer.
Under Swedish law, a Sami village (sameby) is a special unit
having a territory of its own where reindeer grazing rights as well as
hunting and fishing rights are in principle reserved for the members
of the village. The legal rules are laid down in the 1971 Reindeer
Herding Act (rennäringslagen) which replaced an older Act of 1928 and
which also defines who is to be regarded as a member of a Sami village.
The applicants claim that they are holders of hunting and
fishing rights by reason of immemorial usage (urminnes hävd). They
also consider themselves to be members of the Vapsten Sami village in
whose territory their forefathers have lived for many generations.
However, their membership was not accepted, and by letter of 1
September 1982 they were informed by the Agricultural Committee
(lantbruksnämnden) of the County of Västerbotten that they had no land
rights in the area of the Vapsten Sami village.
Subsequently the applicants were prosecuted before the
Lycksele District Court (tingsrätt) for letting their reindeer graze
on the land of the Sami village in 1981 and 1982. The first applicant
was also prosecuted for unlawful elk hunting on that land in 1981 and
1982. The first applicant admitted that he had shot the elks at issue.
The applicants based their defence on their claim to be
entitled to hunt by right of immemorial usage. They were assisted by a
lawyer, Stig Renström, who had been appointed ex officio to defend
them. They wished to have Mr. Renström replaced by Mr. Cramér, but
this was refused by the Court. They did, however, instruct Mr. Cramér
also to assist them in the court proceedings.
On 8 June 1983 the applicants were convicted on all charges by
the District Court. The first applicant was sentenced to one month's
imprisonment for unlawful hunting which had occurred after he had
been informed by the Agricultural Committee on 1 September 1982 that
he had no hunting rights in the village. No sanction was imposed for
the hunting which had taken place before that date or for the reindeer
grazing. Nor was any sanction imposed on the second and the third
applicants.
The applicants, through Mr. Renström, as well as the public
prosecutor appealed to the Court of Appeal for Northern Norrland
(hovrätten för Övre Norrland). Mr. Renström informed the Court of
Appeal that the applicants would not call any witnesses. However,
Mr. Cramér asked for the hearing of two witnesses, an expert on Sami
genealogy and an expert on Sami migration, on the applicants' behalf,
but the Court refused to call these witnesses on 25 January 1984 on
the ground that the proposed evidence was without significance in the
case.
At the same time the Court of Appeal considered a request from
the applicants that Mr. Renström should be replaced by Mr. Cramér as
official defence counsel. Mr. Renström asked that his appointment as
official counsel be revoked.
The Court of Appeal, in its decision of 25 January 1984, found
no indication that Mr. Renström had not fulfilled his task as counsel.
Nor was there any other valid reason for permitting a change of official
defence counsel. The applicants' request was therefore refused. In
view of the fact that the applicants had appointed Mr. Cramér as their
counsel, the Court of Appeal found that Mr. Renström should be
relieved of his duty as offical defence counsel. Consequently, the
Court of Appeal dismissed him as official counsel.
The applicants appealed against the decision not to appoint
Mr. Cramér as official defence counsel. On 31 August 1984, the
Supreme Court (Högsta domstolen) refused leave to appeal.
The applicants then lodged a fresh request with the Court of
Appeal that Mr. Cramér be appointed official defence counsel and that the
two witnesses be heard. On 21 November 1984 (one week before the
hearing) the Court rejected this request, finding no reason to depart
from its previous ruling. On 19 November 1985, the Supreme Court
refused leave to appeal against this decision.
At the hearing before the Court of Appeal on 28 November 1984,
the public prosecutor called as a witness a director of the
Agricultural Committee, but the applicants were allegedly unable to
cross-examine him, because they were not assisted by counsel.
In its judgment of 19 December 1984, the Court of Appeal
considered that the applicants, until they received the letter from the
Agricultural Committee of 1 September 1982, had had a valid excuse for
believing that they were members of the Sami village. On this ground,
the applicants were acquitted of the charges against them, with the
exception that the first applicant's conviction and sentence for unlawful
hunting after 1 September 1982 were upheld. It appears from the
judgment of the Court of Appeal that the applicants were able to
explain the legal grounds on which they based their claim to have
hunting rights in the area.
All three applicants, represented by Mr. Cramér, appealed to the
Supreme Court. They submitted that, although they had been totally or
partially acquitted, the Court of Appeal had wrongly considered them not
to be members of the Sami village. The Supreme Court, in a decision of
19 November 1985, dismissed their appeals insofar as they had been
acquitted, since it was not permissible to appeal only against the
reasons given for the acquittal. In a second decision of the same date,
the Supreme Court refused leave to appeal against the first applicant's
conviction and sentence.
COMPLAINTS
1. The applicants complain that the denial of defence counsel, of
the opportunity to present witnesses and of the possibility to
cross-examine the witness for the prosecution at the hearing before the
Court of Appeal constituted degrading treatment contrary to Article 3 of
the Convention.
2. The applicants complain under Article 6 para. 1 of the Convention
that they did not receive a fair hearing by an impartial tribunal in the
determination of their civil rights to use the land in the Vapsten Sami
village.
The applicants complain that they were denied defence counsel,
as well as the opportunity to present witnesses and to cross-examine
the prosecution witness at the hearing before the Court of Appeal,
contrary to the provisions of Article 6 para. 3 of the Convention.
3. The applicants also complain that the effect of the Court of
Appeal's decision was to enforce against them a closed shop of
reindeer farming under the Sami village system contrary to Article 11
of the Convention. They find it to be a violation of that Article
when membership of the Sami village is considered to override their
traditional and longstanding rights.
4. The applicants complain further that they have been
unjustly deprived of their customary rights to reindeer breeding,
hunting and fishing, contrary to Article 1 of Protocol No. 1 to the
Convention.
5. The applicants complain that the effect of the finding that
the 1971 Act prevails over their customary rights in Vapsten is to
unjustly deny them, by means of an effective policy of forced
dislocation, the right to liberty of movement and freedom to choose
residence, contrary to Article 2 of Protocol No. 4 to the Convention.
6. The applicants complain further that they have no effective
remedy in Swedish law for the above violations of their rights,
contrary to Article 13 of the Convention.
7. The applicants invoke Article 14 of the Convention in
conjunction with all the above complaints, and submit that they are
the object of discrimination on the grounds of their Sami race and of
their status as members of a poor national minority.
8. They further invoke Articles 17 and 18 of the Convention in
connection with the above complaints on the ground that Sweden has
acted in bad faith in the exercise of its Sami policy.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 October 1984 and
registered on 28 January 1988.
On 5 February 1990 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the
application limited to the complaint by Mr. Östergren under Article 6
para. 3 (c) of the Convention.
The Government's observations were received by letter dated
18 April 1990 and the first applicant's observations, after an
extension of the time-limit, were dated 1 July 1990.
THE LAW
1. The applicants complain that they did not receive a fair
hearing contrary to Article 6 para. 1 (Art. 6-1) of the Convention.
They further complain that they were denied defence counsel with the
effect of not being able to cross-examine a witness at the hearing
before the Court of Appeal. They also allege that they had no
opportunity to present witnesses at that hearing. They allege
violations of Article 6 para. 3 (Art. 6-3) of the Convention.
Article 6 para. 1 (Art. 6-1) first sentence provides:
"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."
Article 6 para. 3 (c) and (d) (Art. 6-3-c, 6-3-d) provides:
"Everyone charged with a criminal offence has the
following minimum rights:
...
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to
be given it free when the interests of justice so
require;
(d) to examine or have examined witnesses against him
and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses
against him ..."
2. The Commission recalls that the second and third applicants
were acquitted by the Court of Appeal. In such circumstances, the
Commission considers that any defects which may have existed in the
course of the proceedings against them must be regarded as having been
rectified by the acquittal (cf. No. 8083/77, Dec. 13.3.80, D.R. 19 p.
223). It follows that these applicants can no longer claim to be
"victims" of a violation of the Convention within the meaning of
Article 25 (Art. 25) and their complaints are therefore manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
3. As regards the first applicant's complaint that he did not
receive a fair hearing the Commission recalls that, in accordance with
Article 19 (Art. 19) of the Convention, its only task is to ensure the
observance of the obligations undertaken by the Parties in the
Convention. In particular, the Commission is not competent to deal
with an application alleging that errors of law or fact have been
committed by domestic courts, except where it considers that such
errors might have involved a possible violation of any of the rights
and freedoms set out in the Convention. On this point the Commission
refers to its established case-law (see e.g. No. 7987/77, Dec.
13.12.79, D.R. 18 p. 31).
4. The first applicant complains under Article 6 para. 3 (d)
(Art. 6-3-d). This provision does not require the attendance and
examination of every witness on the accused's behalf. It leaves it to
the competent national authorities to decide upon the relevance of
proposed evidence insofar as this is compatible with the concept of a
fair trial which is the predominant element in the whole of Article 6
(Art. 6) (cf. Bönisch v. Austria, Comm. Report 12.3.84, para. 94,
Eur. Court H.R., Series A no. 92, p. 22). In the present case, the
Court of Appeal found that the proposed evidence was without
significance in the case. The Commission finds that this assessment
was not arbitrary or unreasonable. In these circumstances the refusal
of the Court of Appeal to hear the two new witnesses proposed by the
first applicant cannot be considered to be in conflict with Article 6
para. 3 (d) (Art. 6-3-d).
Consequently, an examination of the first applicant's above
complaints discloses no appearance of a violation of Article 6 paras.
1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention. 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.
5. The first applicant further complains under Article 6 para. 3
(c) (Art. 6-3-c) of the Convention that he was not given free legal
assistance before the Court of Appeal. He submits that the judgment
in the present case was of considerable importance since it resolved a
conflict of civil law between, on the one hand, the applicants' claim
based on immemorial usage and, on the other hand, the impact of the
1971 Act on that right. In fact, the result of the judgment was in
the applicant's view a life sentence which deprived him of his right
to practise his culture.
The Government argue that the first applicant's right to
defend himself in person was observed by the Court of Appeal and he
also had the right to be represented by a defence counsel. The
question whether free legal assistance was required is, in the
Government's view, primarily a question for the domestic courts to
determine. The District Court had appointed a public defence counsel,
but as the applicants appointed a private defence counsel the Court
should under Swedish law revoke the appointment of the public defence
counsel. This is what happened before the Court of Appeal. A change of
the public defence counsel can only be accepted if there are valid
reasons. The rules for a change of counsel cannot be circumvented by
the defendant's choice of a private defence counsel.
The Government observe that the District Court and the Court
of Appeal both found that the applicants were in need of a defence
counsel considering the character of the matter at stake. The District
Court also took the view that such assistance should be given them
freely in accordance with the Swedish rules concerning the right to a
public defence counsel. However, when the question arose in the Court
of Appeal whether the public defence counsel already appointed should
be replaced, this Court found that there was nothing in his way of
conducting the applicants' defence that could justify a revocation of
his appointment. In this context it should be recalled that the
witnesses which the applicants wished to have heard were not admitted
as evidence since the facts about which they were supposed to give
evidence were of no significance to the case in the Court's opinion.
The fact that Mr. Renström had not requested the hearing of these
witnesses was one of the main reasons for the applicants to request
his replacement. Thus, the reason why the Court chose to revoke Mr.
Renström's appointment was only the fact that the applicants had
appointed Mr. Cramér as their private counsel and consequently that
there was no longer a need for a public defence counsel. In other
words the Court of Appeal was of the opinion that the interests of
justice did not require that free legal assistance was given to the
applicants any longer.
The Government consider that this assessment by the Swedish
courts must clearly, in view of the circumstances in this particular
case, be considered as falling within the margin of appreciation
afforded to a Contracting State when examining a question of this
character. The first applicant's case is concerned mainly with unlawful
hunting. Although of some complexity in view of the objections raised,
it was not of such a character that it can be said that the interests
of justice necessarily required that he be given an unconditional right
under the Convention to free legal assistance. Such a right could of
course be claimed in other more serious cases, e.g. concerning murder,
rape and other serious crimes where the suspect risks a long term
prison sentence, but not in the present case.
In addition, the Government point out that the fact that Mr.
Östergren and the other applicants lacked legal assistance when the
hearing before the Court of Appeal was about to take place was
primarily a result of their own conduct. In their attempt to have Mr.
Renström replaced by Mr. Cramér as their public defence counsel they
had to take into account that the Court might refuse postponement of
the hearing and not grant their request. Mr. Östergren as well as the
other applicants are thus themselves to a great extent responsible for
the situation of which they complain before the Commission.
The Government conclude that there is no appearance of a
violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.
The Commission first recalls that the right to free legal
assistance guaranteed by Article 6 para. 3 (c) (Art. 6-3-c) is subject
to two conditions; that the individual concerned does not have
sufficient means to pay for legal assistance and that "the interests
of justice" require it. It is not in dispute that the first condition
was satisfied in the present case. The only issue is whether "the
interests of justice" required that the applicants be granted legal
aid and counsel appointed ex officio by the court in the proceedings
before the Court of Appeal.
In the Monnell and Morris judgment (Eur. Court H.R., Monnell
and Morris judgment of 2 March 1987, Series A no. 115, p. 25, para.
67) the European Court stated as follows:
"The interests of justice cannot ... be taken to require
an automatic grant of legal aid whenever a convicted
person, with no objective likelihood of success, wishes to
appeal after having received a fair trial at first instance
in accordance with Article 6 (Art. 6)."
When determining whether "the interests of justice" requires
legal representation, the Commission must examine each case on its
facts. While the likelihood of success and the availability of legal
assistance at other stages of the proceedings are significant factors
to be taken into account, they are not the sole criteria. Other
factors in assessing the requirements of "the interests of justice"
include the importance of what is at stake for the applicant, in
particular the severity of the sentence, as well as the personal
ability of the applicant and the nature of the proceedings, e.g.
complexity or importance of the issues or procedures involved (cf.
Eur. Court H.R., Artico judgment of 13 May 1980, Series A no. 37 and
Pakelli judgment of 25 April 1983, Series A no. 64).
As regards the likelihood of success the Commission recalls
that the main legal issue in the case was whether the first applicant,
who had admitted having shot the elks at issue, had had the right to
hunt in the area. According to the Reindeer Herding Act, his hunting
rights depended on whether he was a member of the Vapsten Sami
village. In September 1982, the Agricultural Committee had informed
the first applicant that he had no hunting rights and the applicant's
sentence only related to hunting which had taken place after the
applicant had received that information. In these circumstances, and
notwithstanding the fact that the applicant disputed the correctness
of the Agricultural Committee's statement, the applicant's appeal
would not seem to have been likely to succeed.
As regards the availability of legal assistance at other
stages of the proceedings, the Commission recalls that the applicant
had a defence counsel officially appointed by the court in the
proceedings before the District Court. In addition, the applicant was
also assisted, at his own request, by Mr. Cramér in those
proceedings.
As regards the severity of the sentence, the Commission notes
that the District Court's sentence was one month's imprisonment. There
was no reason to believe that, in case of conviction for one or more
of the offences charged, the sentence in the Court of Appeal would be
more than a term of imprisonment of short duration. In reality, the
sentence of one month's imprisonment was upheld by the Court of
Appeal.
As regards the first applicant's personal ability to defend
himself, the Court of Appeal's judgment shows that he, together with
the second and the third applicants, was apparently able to explain to
the court the legal grounds upon which they based their claim to have
hunting rights in the area.
As regards finally the nature of the proceedings, the
Commission notes that, whereas the question as to whether the first
applicant had hunting rights under the Reindeer Hunting Act would not
seem to have been of a particularly complex nature, the first
applicant's defence which was based on a claim to have historical
rights irrespective of that legislation did raise certain complicated
issues.
Although the proceedings before the Court of Appeal also
concerned certain other offences, the Commission does not find it
necessary to take them into account, since in respect of these
offences no sentence had been imposed by the District Court and a full
acquittal was pronounced by the Court of Appeal.
In considering whether the applicant was entitled to legal
assistance under Article 6 para. 3 (c) (Art. 6-3-c), the Commission
further notes that that provision cannot be interpreted as securing a
right to change the official counsel once appointed (No. 6946/75, Dec.
6.7.76, D.R. 6 p. 114).
In the Granger case (Eur. Court H.R., judgment 28 March 1990,
Series A no. 174), the European Court of Human Rights found that the
refusal of legal aid for a criminal appeal violated Article 6 para. 3
(c) (Art. 6-3-c) of the Convention. However, in that case the
applicant had been sentenced to five years' imprisonment, the
Solicitor General, who conducted the prosecution, had made lengthy
speeches before the court which the applicant had not been able fully
to comprehend and he would not have been able to comment on the
difficult legal points which were at issue.
In the present case, Mr. Renström had been appointed official
counsel and it was the first applicant's own decision to appoint
Mr. Cramér his private counsel which was the reason for the Court of
Appeal to dismiss Mr. Renström. The fact that in the proceedings
before the Court of Appeal the first applicant did not have the
services of a lawyer could therefore to a considerable degree be
attributed to his own action. In view of this fact and having regard
to the applicant's ability to present the case himself and the short
duration of the sentence, this case can be distinguished from the
Granger case.
In the particular circumstances referred to above, the
Commission finds the complaint under Article 6 para. 3 (c)
(Art. 6-3-c) of the Convention to be manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
6. The applicants also complain that the result of the judgment
of the Court of Appeal was to enforce against them a closed shop
contrary to Article 11 (Art. 11) of the Convention.
Article 11 para. 1 (Art. 11-1) provides:
"Everyone has the right to freedom of peaceful assembly
and to freedom of association with others, including
the right to form and join trade unions for the protection
of his interests."
The Commission observes that the Sami village is not a private
organisation but rather an institution created by legislation and the
1971 Reindeer Herding Act regulates membership of the Sami village.
Such institutions of public law cannot be considered as associations
within the meaning of Article 11 (Art. 11) of the Convention (No. 6094/73,
Dec. 6.7.77, D.R. 9 p. 5, and Eur. Court H.R., Le Compte, Van Leuven
and De Meyere judgment of 23 June 1981, Series A No. 43, pp. 26-27,
paras. 64-65).
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
7. The applicants complain that they were deprived of property in
violation of Article 1 of Protocol No. 1 (P1-1) to the Convention as a
result of the proceedings ending in the Supreme Court's decision of 19
November 1985.
Article 1 of Protocol No. 1 (P1-1) protects the right to the
peaceful enjoyment of possessions and provides that no one shall be
deprived of his possessions except under certain conditions.
However, the Commission considers that the applicants were not
deprived of any property right as a result of the proceedings which
are the object of the present case. If they were at all deprived of
any property this deprivation took place, at the latest, when the 1971
Reindeer Herding Act entered into force on 1 July 1971. It is
therefore from that date that the time limit of six months laid down
in Article 26 (Art. 26) for lodging an application with the Commission
must be calculated. Consequently, since the present application was
introduced on 20 October 1984, this part of the application is out of
time and must be rejected under Articles 26 (Art. 26) and 27 para. 3
(Art. 27-3) of the Convention.
8. The applicants also allege violations of Articles 3, 13, 14,
17 and 18 (Art. 3, 13, 14, 17, 18) of the Convention and of
Article 2 of Protocol No. 4 (P4-2) to the Convention.
The Commission has examined these complaints as they have been
submitted by the applicants. However, they do not disclose any
appearance of violations of the rights and freedoms invoked by the
applicants.
It follows that these parts of the application are again
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
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