CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 mars 1991

.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. 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)