CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 mars 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    AS TO THE ADMISSIBILITY OF     Application No. 11764/85 by Claus BRAUNERHIELM against Sweden             The European Commission of Human Rights sitting in private on 9 March 1989, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      F. ERMACORA                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      H. VANDENBERGHE                 M.    F. MARTINEZ                 Mrs.   J. LIDDY                 Mr.   L. LOUCAIDES                   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 10 September 1985 by Claus BRAUNERHIELM against Sweden and registered on 12 September 1985 under file No. 11764/85;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;     - ii -   11764/85             Having regard to the observations submitted by the Government on 14 October 1987 and 28 March 1988 and the applicant's observations of 8 January 1988 and 4 January 1989 as well as the submissions of the parties at the hearing held on 9 March 1989;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the parties, may be summarised as follows.           The applicant is a Swedish citizen, born in 1916.   He is an estate owner.   He is represented before the Commission by Mr.   Michaël Hernmarck, a lawyer practising at Danderyd, outside Stockholm.           The applicant is the owner of an estate called the Sandemar Estate.   It is an overall name for an agricultural estate which consists of several registered properties.           The properties are located in the municipality of Haninge in the county of Stockholm and cover an area of 4,698 hectares.   The estate also includes water areas which cover some 1,100 hectares of the Baltic Sea.           Since 1968 the water areas have no longer been leased to professional fishermen.   No fishing licences have been sold to the public by the applicant.   Such fishing as has taken place has been for household purposes by the holder of the estate, who found this a relaxing hobby alongside his work as a business executive.   In addition, the employees of the estate, some twenty-five families, are allowed to fish for household purposes without payment of compensation, as are some twenty families who live in recreational cottages rented from Sandemar on long-term contracts.           The fishing population which can be fished with hand-held tackle consists principally of pike and perch, but cod, bream, pike-perch and eel are also found and are a worthwhile catch for many people.   Salmon and sea trout have increased in recent years.   The applicant notes that the Sandemar Estate was recently offered 1,000 SEK per person and season by persons who wished to fish using a casting rod intended for fishing salmon and sea trout.           On 1 May 1985 new legislation entered into force which made fishing with hand-held tackle (handredskapsfiske) licence-free for everybody.   Thereby the applicant's exclusive right to such fishing in his waters has been transformed so that everybody is now entitled to fish with hand-held tackle in these waters.   The applicant states that, as a result, the number of fishermen increased significantly. The people who visit these waters in pleasure boats or go ashore on the beaches have with them, and use, casting rods and the like.   The number of fishermen during the summer has increased considerably compared to the situation before 1 May 1985.   There has also been an increase in illegal fishing.   Previously, some people used to "poach" using hand-held tackle when they were visiting in order to sunbathe or swim or for other recreational purposes.   Now, when this type of fishing has been made legal, nets are also being laid along the side of boats, especially when people stay overnight.   The fishing waters are attractively located some forty minutes by car from the centre of Stockholm.   These waters are now subject to great pressure from sporting fishermen.           The location between Dalarö, a built-up area in the southern Stockholm archipelago with its surrounding recreational areas, and the Gålö and Åva recreational areas owned by the City of Stockholm, which   means that there are some 15,000 - 20,000 pleasure boats in the vicinity.   In addition, boats are rented out and fishing trips are organised on smacks that are arranged for the purpose.           Tourist coaches registered in Germany with rubber dinghies on the roofs have been visible in the district.   So far, no such tourist has yet been found in Sandemar's waters, but the trend suggests that this will happen soon.           The 1985 legislation involved in essence an amendment of the Fishing Rights Act (lagen om rätt till fiske) and a new Act on Compensation for Interferences with Private Fishing Rights (lagen om ersättning för intrång i enskild fiskerätt; hereinafter referred to as "the Compensation Act").           The amendment of the Fishing Rights Act consisted essentially of the introduction of a Section 20 a which reads as follows :           (Swedish)           "Vid kusten av Östhammars kommun i Uppsala län, Stockholms         län, Södermanlands län, Östergötlands län, Kalmar län,         Gotlands län och Blekinge län samt i Vänern, Vättern,         Mälaren, Hjälmaren och Storsjön i Jämtland får svenska         medborgare, utöver vad som följer av 7-11 och 14-20 §§, fiska         i enskilt vatten med metspö, kastspö, pilk och liknande         handredskap som är utrustat med lina och krok.   Redskapet får         dock inte ha mer än tio krokar.   Ej heller får fiskemetoden         som sådan kräva användning av båt.           (English translation)           "Along the coast of the municipality of Östhammar of the         county of Uppsala, the county of Stockholm, the county of         Östergötland, the county of Kalmar, the county of Gotland,         the county of Blekinge and in the lakes of Vänern, Vättern,         Mälaren, Hjälmaren and Storsjön of Jämtland, Swedish citizens         may, subject to the provisions of Sections 7-11 and 14-20,         fish in private waters with rod, casting rod, jig and similar         hand-held tackle equipped with line and hook.   The tackle may         however not include more than ten hooks.   The fishing method         may also not require the use of a boat."           Section 1 para. 1 of the Compensation Act provides as follows:           (Swedish)           "Medför bestämmelserna om handredskapsfiske enligt 20 a §         lagen (1950:596) om rätt till fiske ett inkomstbortfall för         den som är innehavare av enskild fiskerätt, har han enligt         denna lag rätt till ersättning av staten för         inkomstbortfallet."           (English translation)           "If the provisions on fishing with hand-held tackle under         Section 20 a of the Fishing Rights Act involve a loss of         income for the proprietor of a private fishing right he is         entitled under this Act to compensation from the State for         the loss of income."           A transitional provision to the Compensation Act provides that income received as a result of measures taken after 1 March 1984 shall not be the basis for the calculation of compensation under the Act.           In the Government Bill 1984/85:107 (pp. 42-43), the Minister of Agriculture made inter alia the following statements:           The purpose of making fishing with hand-held tackle free was to meet the public's interest in leisure activities.   In most cases no damage would be done to the fishing rights owner if fishing with hand-held tackle was made free.   However, in some special cases there ought to be a possibility for the fishing rights owner to receive compensation.   For a right to compensation it ought to be required that the interference was somewhat substantial.   Everyone must be prepared to accept a certain interference in the public interest without compensation.   Since free fishing with hand-held tackle would not affect the use of the water for other purposes than fishing the compensation rule could be restricted to cover interferences which resulted in ongoing use of fishing in private waters being rendered considerably more difficult.   Compensation should not be paid for other interferences than in ongoing use of water for fishing.   If the waters had not previously been used for fishing there could be no compensation.   Expectation values should thus not be compensated.   The compensation should be assessed on the basis of actual loss of income suffered by the individual fishing rights owner as a result of the free fishing with hand-held tackle.   For a right to compensation it ought to be required that the damage did not appear to be insignificant seen in absolute figures.           Before the Government's proposal was submitted to Parliament, it was examined by the Law Council (lagrådet), composed of two judges of the Supreme Court (högsta domstolen) and one judge of the Supreme Administrative Court (regeringsrätten).   The Law Council found, although proposing a certain increase in the right to compensation, that the proposed legislation did not violate the Swedish Constitution.           When the proposed legislation was examined in Parliament the Standing Committee on Agriculture (jordbruksutskottet) made the following statement (JoU 1984/85:20, page 15):   "The Committee supports the statement made by the Minister of Agriculture that this is not a question of such transfer of property which is covered by the provision in Chapter 2 Section 18 of the Instrument of Government on expropriation. However, the Committee also shares the view of the Minister of Agriculture that it is important that the question of compensation is given a satisfactory solution with regard to the protection of the individual at which the said constitutional provision is aiming.   For that reason those private fishing rights owners who suffer financial losses as a result of the free fishing with hand-held tackle, should be entitled to compensation for such losses in accordance with grounds laid down in the law.   It is reasonable that this right to compensation covers every personal financial loss which the fishing rights owners may suffer."           Claims for compensation should be submitted to the National Board of Fisheries (fiskeristyrelsen) before the end of 1989.   The National Board of Fisheries decides on issues of compensation.   No appeal lies against this decision.   However, a property owner who is not satisfied with a decision of the National Board of Fisheries can institute proceedings before the Real Estate Court (fastighetsdomstolen).           The applicant states that, since he has not suffered any financial loss in the sense that he has lost income as a result of the new legislation, he has no right to compensation under the Compensation Act and he has thus not submitted any claim for such compensation.           The background and reasons for the 1985 legislation are described as follows by the Government (with reference to the Government Bill 1984/85:107):           The reform constitutes a part of the public recreation policy. From the social aspect it is important for people to have opportunities for relaxation and activities in their leisure time. This need increases as leisure time increases and daily work requires less physical effort.   There are numerous obstacles limiting opportunities for utilising leisure time.   Many leisure activities require expensive equipment.   One's own holiday cottage, a craft or caravan and access to a car are often required to get to recreation areas.   People living in large towns often live far from unexploited countryside and the recreation facilities offered thereby. Furthermore, many people who have moved to the towns previously had a natural and spontaneous contact with unspoiled nature which is now lost.   Recreational fishing means a great deal to these people.   All three of the big-city areas in Sweden are located close to the sea coast.   Two of them also offer suitable lakes in the immediate vicinity of residential areas.   Distance therefore does not have to be a problem for those who wish to go fishing in their leisure time.   However, recreational fishing requires access to suitable fishing waters in the big-city areas.   In the Gothenburg and Malmö areas it was possible for everyone to fish on the coast, but in the Stockholm area this was prevented by the fishery legislation which meant that fishing near the beaches and in most of the archipelago area was an exclusive right of the owner of the fishing rights.           Furthermore, an important task for society is to make a wide range of leisure activities available to all.   This is particularly important since the opportunity of leisure activities and exercise is of great significance to health, adjustment and well-being in society. Recreational fishing offers unique opportunities for contact with nature, exercise and relaxation and it is open to anyone.   It activates people from all groups of society.   The social bias often evident in other leisure activities does not exist in recreational fishing.   It is also an important supplement to other leisure activities such as boating, hiking, holiday trips and camping.   Recreational fishing can also provide an added source of livelihood, enabling settling in sparsely populated areas where other sources of livelihood are limited.   An important task for society is to contribute to offering the public a rich and varied range of leisure opportunities. Experience shows that active recreational fishing plays an important part in the social recreation policy.           In the Bill submitted to Parliament, in which the reform was proposed, the Minister of Agriculture stated the following:   "It is unusually difficult to obtain any clear picture of the current legislation on fishing rights.   This is evident from the summary of the system of regulations given in the memorandum.   Regulations which at the time they were issued may have seemed reasonable and fair, now appear difficult to understand, complicated and sometimes illogical.   One of the most striking examples of this is that on certain stretches of the coast the public may fish freely with nets but may not use hand-held tackle.   The provisions of the Fishing Act are supplemented by provisions concerning conservation and operation of fishing issued by the Government in the Ordinance on Fishery and other provisions notified by the National Board of Fisheries or by the County Administrative Boards.   This accumulation of regulations is extremely extensive and contains such a multitude of detail that it is difficult for an individual to acquire adequate information as to where, when and how he may fish.   The fact that the regulations are often considered complicated or are misunderstood entails an apparent risk of even regulations which are well-motivated from the conservation aspect being disregarded.   Even today the owners of fishing rights do not make full claim to their rights, but allow the public to fish with hand-held tackle and even with nets along large parts of the coastal stretches now under discussion.   In the light of this I look upon the proposal to increase the public's opportunities to fish freely with hand-held tackle as a natural and essential step towards simplification.   If it is implemented, this will allow fishing with hand-held tackle in both public and private waters along all coasts and in the large lakes.   The only limitation remaining will be the exclusion of salmon fishing along the coast of Norrland (from Östhammar municipality to the Finnish border).   As long as only hand-held tackle are used, the reform will relieve both the public and the authorities of keeping track of where the boundary lies between public and private waters.   Besides the other reasons favouring the reform, I also consider this simplification to have a considerable intrinsic value.   As appears from what I have already submitted, Parliament on two previous occasions, by requesting a proposal from the Government, has already reached a decision in principle to allow fishing with hand-held tackle to be free.   The task of the Government now, therefore, is to draw up the legislative proposals required to implement the reform.   Replacing this reform by forming fishery conservation areas within all private waters in the areas under discussion is, for several reasons, not a realistic alternative.   Fishery conservation areas cannot simply replace free fishing with hand-held tackle.   The formation of such conservation areas aims primarily at improving fishery conservation and not at giving the public free access to fishing.   Furthermore, in my opinion, fishery conservation areas formed compulsorily, as they often would be, would constitute a far greater interference with the individual's rights than the free fishing with hand-held tackle.   Voluntary formation of fishery conservation areas which can give the public access to fishing-grounds to the same extent as free fishing with hand-held tackle cannot be expected within a reasonable time.   However, the reform should not entail any new obstacles to the formation of fishery conservation areas."           The Standing Committee on Agriculture made the following statement (JoU 1984/85:26 p. 10):           "The Government's proposal... means that Parliament's         wish, expressed two years ago, is now satisfied.   An important         recreational political reform is implemented since fishing         with hand-held tackle, in the future, will be free along all         coasts of Sweden and in the large lakes...   It is a strong         public interest to make possible, in this way, an increased         offer of leisure activities to the population in for instance         the metropolitan areas...   The Committee also finds it         valuable that the fishing legislation is considerably         simplified by the proposal."           The applicant has submitted an estimate of the financial losses he has suffered as a result of the 1985 reform.   On the basis of an income of 40 SEK per hectare fishing water area the applicant has calculated that his loss per 1 April 1985 with a discount rate of 4%, capitalised for all time, amounts to 1,100,000 SEK.           Chapter 2 Section 18 of the Instrument of Government (regeringsformen) reads:           (Swedish)           "Varje medborgare vilkens egendom tages i anspråk genom         expropriation eller annat sådant förfogande skall vara         tillförsäkrad ersättning för förlusten enligt grunder som         bestämmes i lag."           (English translation)           "Every citizen whose property is taken through expropriation         or other similar use shall be entitled to compensation for the         loss according to rules laid down by law."           Chapter 11 Section 14 of the Instrument of Government reads:           (Swedish)           "Finner domstol eller annat offentligt organ att en föreskrift         står i strid med bestämmelse i grundlag eller annan överordnad         författning eller att stadgad ordning i något väsentligt         hänseende har åsidosatts vid dess tillkomst, får föreskriften         icke tillämpas.   Har riksdagen eller regeringen beslutat         föreskriften, skall tillämpning dock underlåtas endast om         felet är uppenbart."           (English translation)           "If a court or other public authority finds that a regulation         is in conflict with a provision in the Constitution or other         superior legislation or that the prescribed procedure in some         significant respect has not been observed when it was adopted,         the regulation may not be applied.   However, if Parliament or         the Government have issued the regulation, it shall be         applied unless the irregularity is manifest."   COMPLAINTS   1.       The applicant complains that, as a result of the 1985 legislation concerning the right of the public to fish with hand-held tackle in his waters without the payment of compensation, there has been a breach of Article 1 of Protocol No. 1 to the Convention.   The applicant submits that the interference with his right of property must be characterised as a "deprivation of possessions" and not as "control of use" of his property.   The applicant further submits that, as he receives no compensation for this deprivation of possessions, there is no reasonable proportion between the public interest pursued and the protection of his fundamental rights.   2.       The applicant also submits that there has been a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 in that equal persons are treated unequally as regards compensation under the new Act.   The interference, which the licence-free fishing involves for the fishing right owners, is of the same character and has the same effect for all of them.   They should therefore be treated equally as regards compensation for their losses. However, since only one category of fishing right owners can obtain compensation, while other categories, to which the applicant belongs, are entirely excluded from the opportunity even to claim or bring a case for compensation, there is a discrimination in conflict with Article 14 of the Convention.   3.       The applicant also claims that there has been a violation of Article 6 para. 1 of the Convention since he cannot bring before any court the dispute as to whether the new legislation is in conflict with the Swedish Constitution and Article 1 of Protocol No. 1.   4.       The applicant also submits that he has no effective remedies for the alleged violations of the Convention and that therefore Article 13 of the Convention has been violated.   5.       Finally, the applicant complains that Article 17 of the Convention has been violated.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 10 September 1985 and registered on 12 September 1985.           On 4 May 1987 the Commission decided to communicate the application to the respondent Government and to invite them to submit written observations on the admissibility and merits of the application.           The Government's observations were received by letter dated 14 October 1987 and the applicant's observations were dated 8 January 1988.   The Government submitted supplementary observations by letter dated 28 March 1988.   On 4 January 1989 the applicant submitted an estimate of the financial losses he had suffered as a result of the 1985 reform.           On 10 October 1988 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.           The hearing was held on 9 March 1989.   It was a joint hearing involving also Applications Nos. 11763/85, 11765/85, 11766/85, 11767/85, 11830/85 and 12091/86.   At the hearing the parties were represented as follows:   The Government   Mr.   Hans CORELL               Ambassador, Under-Secretary for                              Legal and Consular Affairs, Ministry                              for Foreign Affairs, Agent Mr.   Ulf ANDERSSON             Assistant Under-Secretary, Ministry                              for the Environment and Energy, Adviser Mr.   Carl Henrik EHRENKRONA    Legal Adviser, Ministry for Foreign                              Affairs, Adviser Mr.   Pär BOQVIST               Legal Adviser, Ministry for Foreign                              Affairs, Adviser   The Applicants   Mr.   Michaël HERNMARCK (Applications Nos. 11763 and 11764/85), Lawyer Mr.   Bo NILSSON (Applications Nos. 11765 - 11767/85), Chief Legal Adviser Mr.   Lars-Åke LINDBERG (assisting Mr.   Bo Nilsson), Legal Adviser Mr.   Bertil GRENNBERG (Application No. 11830/85), Patent Attorney Mr.   Jan AXELSSON (Application No. 12091/86), Lawyer   THE LAW   1.       The applicant complains that the new legislation which was introduced on 1 May 1985 and gave everybody a right to licence-free fishing with hand-held tackle in the applicant's fishing waters involved a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention.           Article 1 of Protocol No. 1 (P1-1) 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 Government submit that the application should be rejected for failure to exhaust domestic remedies or, alternatively, as being manifestly ill-founded.   2.       As to the condition of exhaustion of domestic remedies in Article 26 (Art. 26) of the Convention, the Government submit that the applicant has failed to apply to the National Board of Fisheries for compensation under the Compensation Act.   If such an application were unsuccessful the applicant could bring an action against the State before the Real Estate Court.   In such proceedings he could argue that the 1985 legislation is contrary to Chapter 2 Section 18 of the Instrument of Government and, if such an argument were accepted, the Court could refuse to apply the legislation in application of Chapter 11 Section 14 of the Instrument of Government.           The applicant replies that, under the Compensation Act, the right to compensation is so restricted that it does not cover the applicant's claim and the courts can only refuse to apply the legislation if it is proven that the law is "manifestly" contrary to the Instrument of Government, which is not possible to prove since the Act has been examined by the Law Council and not been declared unconstitutional.           Article 26 (Art. 26) of the Convention provides that the Commission may only deal with a matter "after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken".   It is established case-law that "the final decision" refers only to domestic remedies which can be considered to be "effective and sufficient" for the purpose of rectifying the subject-matter of the complaint (see, inter alia, No. 9599/81, Dec. 11.3.85, D.R. 42 p. 33).   In a recent case against Sweden (No. 12810/87, Dec. 18.1.89, not yet published) the Commission found that a compensation claim based on Chapter 2 Section 18 of the Instrument of Government was not an "effective remedy" in the circumstances of that case.           The issue of non-exhaustion in the present case is twofold; on the one hand, whether the applicant could secure compensation under the Compensation Act and, on the other hand, whether he could secure compensation under Chapter 2 Section 18 of the Instrument of Government.           The applicant does not allege that he has lost any actual income as a result of the new law, but that the result of the law is that he has been deprived of property.   He has lost the potential opportunity to make profitable use of his former exclusive right to fish and has therefore suffered a value loss since he can no longer sell fishing permits.   The loss can be estimated, on the basis of possible income from fishing permit sales, at 1,100,000 SEK.           There is no case-law showing that the applicant could secure compensation on this basis under the Compensation Act.   Furthermore, having regard to the text of the Compensation Act including its transitional provision and the preparatory works, the Commission finds that the Government have failed to show that the Compensation Act could possibly secure the applicant any compensation for the alleged financial losses.           As regards compensation on the basis of the constitutional provision in the Instrument of Government, the Commission notes that a court could only grant compensation under that provision if it found that the Compensation Act was "manifestly" contrary to the Constitution.   In view of the fact that the Compensation Act was examined by the Law Council, composed of two judges of the Supreme Court and one judge of the Supreme Administrative Court, which found that its provisions did not violate the Constitution, it cannot be held that a compensation claim based on Chapter 2 Section 18 is an "effective" remedy in the circumstances.           Consequently, the application cannot be rejected, under Article 27 para. 3 (Art. 27-3) in conjunction with Article 26 (Art. 26) of the Convention, for failure to exhaust domestic remedies.   3.       The Commission has next examined whether the application is manifestly ill-founded, as claimed by the Government.   It here notes that, prior to the introduction of the new legislation in 1985, the applicant had an exclusive right to use his own waters for fishing. The new provision in Section 20 a of the Fishing Rights Act implies that the applicant no longer has an exclusive right to fishing with hand-held tackle.   In this respect, everybody has henceforth the right to fish in his waters.   The applicant submits that as a result of the new legislation the public has, to a considerable extent, started fishing with hand-held tackle in his waters, both from the shore and from boats.           The Commission considers that the introduction of the new legislation in 1985 and its effects constitute an interference with the applicant's right to the peaceful enjoyment of his possessions as guaranteed by Article 1 of Protocol No. 1 (P1-1).   It must therefore be examined whether this interference was justified under the terms of Article 1 (Art. 1).           Article 1 of Protocol No. 1 (P1-1) guarantees the right of property. It comprises three rules.   The first rule which is 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, which is set out in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions.   The third rule, which is set out in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest.   The three rules are connected.   The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and are therefore to be construed in the light of the general principle enunciated in the first rule.           A preliminary issue under Article 1 (Art. 1) is whether in the present case the interference with the right to peaceful enjoyment of possessions is to be regarded as a deprivation of possessions (the second rule), control of the use of property (the third rule) or a third form of interference to be considered under the first rule.   4.       In order to determine this issue, it is appropriate to recall the general legal situation concerning fishing rights and the particular situation of the applicant as well as the public's rights before and after the 1985 law reform.           Before the 1985 reform the regulations concerning fishing rights were very complicated and differed according to the geographical area concerned. For instance, the three big-city areas of Sweden (Stockholm, Gothenburg and Malmö) are situated close to water areas.   In the Gothenburg and Malmö areas fishing with hand-held tackle on the coast was open to everybody also before the 1985 reform. However, in the Stockholm area such fishing near the shores, in the archipelago area and in the lake of Mälaren, was the exclusive right of the fishing rights owner.   On some stretches of the coast outside Gotland and Blekinge fishing with nets was free but not with hand-held tackle.   The result of the 1985 reform was that fishing with hand-held tackle was free along all coasts and in the large lakes in both public and private waters, apart from salmon fishing along the northeast coast.           The public's right of access to private land (allemansrätten) implies that any land owner in Sweden must accept that everybody uses his land in certain manners.   As regards water areas everybody is entitled to travel by boat or swim across and temporarily stay in private waters, and, in the winter time, to walk or otherwise move around on the ice provided that serious inconveniences are not caused to the owner.   As regards the use of land everybody may pass over private land by foot.   It is permitted to camp for a short while, to swim and to make picnics.           The 1985 reform gave the public a right to fish in private waters. This fishing right was however limited to fishing with hand-held tackle.   The property owner retained the exclusive right to other manners of fishing, for instance with net.   The result of the reform was, consequently, that the land owner was deprived of his previous exclusive right to fish with hand-held tackle.   The essential economical significance of this was that the land owner could no longer make any profit from this sort of fishing by selling fishing cards or otherwise.          The 1985 reform was not limited to a restricted number of properties, but covered all properties on the Swedish east coast from the municipality of Östhammar in the County of Uppsala to Blekinge County and all the properties in or around the five largest lakes, including the lake of Mälaren.   5.       As regards the question whether the applicant has been deprived of property, the Commission recalls that, according to the established case-law, 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 or where the measure complained of "can be assimilated to a deprivation of possessions" (cf.   Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September 1982, Series A no. 52, p. 24, para. 63).           It is clear that the applicant has not been formally deprived of his property.   He still retains the title to it.   The applicant has also not been deprived of his right to fish, including the right to fish with hand-held tackle.   What he has lost is his right to exclude others from fishing with hand-held tackle.           Legislation of a general character affecting and redefining the rights of property owners cannot normally be assimilated to expropriation even if some aspect of the property right is thereby interfered with or even taken away. There are many examples in the Contracting States that the right to property is redefined as a result of legislative acts.   Indeed, the wording of Article 1 para. 2 (Art. 1-2) shows that general rules regulating the use of property are not to be considered as expropriation.   The Commission finds support for this view in the national laws of many countries which make a clear distinction between, on the one hand, general legislation redefining the content of the property right and expropriation, on the other.           The Commission has for the same reasons in cases concerning rent regulations, which have seriously affected the right to property, nevertheless held that such regulations fall to be considered under the "control of use" rule (cf.   Mellacher and others v.   Austria, Comm. Rep. 11.7.88, at present pending before the European Court of Human Rights).           The Commission observes in the present case that the aim of the 1985 reform was to extend the public's right to fish with hand-held tackle.   This right had existed in large areas of Sweden already before 1985.   In those areas the property owners could not exclude fishing with hand-held tackle.   This shows that the restrictions at issue were not alien to the property of fishing waters in Sweden even before 1985.   The restrictions which this reform entailed on the applicant's right to his property cannot be assimilated to expropriation or be said to have had such severe consequences that they affected the substance of the right to property.           Consequently, the Commission finds that the applicant was not deprived of his possessions and the second sentence of the first paragraph of Article 1 of Protocol No. 1 (P1-1) does not apply.   6.       The Commission considers that the restrictions on the applicant's property must be examined under the "control of use" rule in the second paragraph of Article 1 (Art. 1).           The applicant argues that the second paragraph cannot apply since the 1985 reform does not involve any true "control" of any "use" which he has made of his property.   However, the French text speaks of "réglementer l'usage des biens", which more accurately describes what, in the Commission's view, must be the purpose of the second paragraph.   This provision must be understood to permit the enforcement of laws which are deemed necessary to regulate the use of property.           The Commission considers that the 1985 reform was a law which was enforced to regulate the use of property.   The question of the justification of the interference created by the 1985 reform must therefore be examined under the second paragraph of Article 1 of Protocol No. 1 (P1-1), to establish whether the interference was "lawful", whether it pursued a "general interest", and whether it was proportionate and therefore could be "deemed necessary".           The Commission here notes that interference with the applicant's fishing rights was provided for by the set of provisions contained in the 1985 legislative reform, notably Section 20 a of the Fishing Rights Act and the Compensation Act.   It is true that, according to the applicant, the interference with his rights was unlawful under the Swedish Constitution.   The Commission, however, having regard to the background of the 1985 legislation and the finding of the Law Council, concerning the compatibility of the new legislation with the Constitution, cannot find that the 1985 legislation failed to meet the requirement in Article 1 (Art. 1) of being "lawful".           The condition of "general interest" leaves a wide margin of appreciation to the national legislation.   The Convention organs will respect the legislator's judgment as to what is a "general interest" unless that judgment be "manifestly without reasonable foundation" (cf.   Mellacher Report, loc. cit., para. 206).           The applicant contests that the interference was in the "general interest" arguing inter alia that the new Act was based on political considerations with the purpose of charming part of the electorate.           The Commission notes that the aim of the 1985 Act was to make recreational fishing with hand-held tackle available to everybody.   The Parliamentary Standing Committee on Agriculture stated as its opinion that the legislation was an important recreational political reform. It considered that it was a strong public interest to provide, in this way, for an increased opportunity of leisure activities for the public inter alia in the metropolitan areas.   It was also valuable that the provisions concerning fishing rights were considerably simplified by the reform.           The Swedish Parliament's opinion that such a reform was in "the general interest" cannot in the Commission's view be considered to transgress the margin of appreciati