CEDH · CASELAW;REPORTS;ENG — 2 septembre 1992

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                               SECOND CHAMBER                          Application No. 16226/90                                     S.                                   against                                   SWEDEN                          REPORT OF THE COMMISSION                        (adopted on 2 September 1992)   TABLE OF CONTENTS                                                                    Page I.      INTRODUCTION        (paras. 1 - 14). . . . . . . . . . . . . . . . . . . . . . . 1          A.    The application             (paras. 2 - 4). . . . . . . . . . . . . . . . . . . . . 1          B.    The proceedings             (paras. 5 - 9). . . . . . . . . . . . . . . . . . . . . 1          C.    The present Report             (paras. 10 - 14). . . . . . . . . . . . . . . . . . . . 2   II.     ESTABLISHMENT OF THE FACTS        (paras. 15 - 33) . . . . . . . . . . . . . . . . . . . . . . 3          A.    The particular circumstances of the case             (paras. 15 - 24). . . . . . . . . . . . . . . . . . . . 3          B.    Relevant domestic law and practice             (paras. 25 - 33). . . . . . . . . . . . . . . . . . . . 4   III.    OPINION OF THE COMMISSION        (paras.   34 - 43). . . . . . . . . . . . . . . . . . . . . . 6          A.    Complaints declared admissible             (para. 34). . . . . . . . . . . . . . . . . . . . . . . 6          B.    Points at issue             (para. 35). . . . . . . . . . . . . . . . . . . . . . . 6          C.    Article 6 para. 1 of the Convention             (paras. 36 - 43). . . . . . . . . . . . . . . . . . . . 6   APPENDIX I:     HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . . 8   APPENDIX II:    DECISION ON THE ADMISSIBILITY. . . . . . . . . . . . 9   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is a Swedish citizen of Sami descent, born in 1925. He is a reindeer breeder by profession. In the proceedings before the Commission the applicant is represented by Mr. Johan Cahp, a lawyer practising in Stockholm.   3.     The application is directed against Sweden. The respondent Government were represented by their Agents, first Mr. Håkan Berglin, succeeded by Ms. Eva Jagander, both of the Ministry for Foreign Affairs.   4.     The case relates to the refusal by the Swedish Government of the applicant's request to keep 400 reindeer. He complains of a violation of Article 6 para. 1 of the Convention as he could not obtain a court examination of the decision to refuse his request.   B.     The proceedings   5.     The application was introduced on 20 May 1987 and registered on 28 February 1990. On 7 November 1990 the Commission decided in accordance with Rule 48 para. 2 (b) of its Rules of Procedure to give notice of the application to the respondent Government and to invite them to present, before 8 February 1991, their observations in writing on the admissibility and merits of the application.   6.     The Government submitted their observations on 22 February 1991 having been granted an extension of the time-limit. The applicant's written observations in reply were submitted on 24 April 1991.   7.     On 28 May 1991 the plenary Commission decided to refer the application to the Second Chamber.   8.     On 8 July 1991 the Commission (Second Chamber) decided to declare the application admissible and furthermore provided the parties with the opportunity to submit any additional observations on the merits which they wished to make. No further observations on the merits were received from the parties.   9.     After declaring the case admissible the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case. Active consultations with the parties took place between 15 July 1991 and 6 March 1992. In the light of the parties' reactions, the Commission now finds that there is no basis upon which such a settlement can be effected.   C.     The present Report   10.    The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                    MM.   S. TRECHSEL, President of the Second Chamber                       G. JÖRUNDSSON                       A. WEITZEL                       J.-C. SOYER                       H.G. SCHERMERS                       H. DANELIUS                  Mrs. G.H. THUNE                  MM.   F. MARTINEZ                       L. LOUCAIDES                       J.-C. GEUS   11.    The text of this Report was adopted on 2 September 1992 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   12.    The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)     to establish the facts, and   ii)    to state an opinion as to whether the facts found disclose a       breach by the State concerned of its obligations under the       Convention.   13.    A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decision on the admissibility of the application as APPENDIX II.   14.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   15.    On 16 December 1985 the County Agricultural Board (lantbruks- nämnden) in the county of Norrbotten decided on the principles to be applied for the continued licensed herding of reindeer in the county.   16.    On the same day the County Agricultural Board furthermore decided on certain specific conditions concerning licensed herding of reindeer within the Sami community of Muonio to which the applicant belongs. The decision implied, inter alia, that the community could keep a total of 4.300 reindeer and would be obliged to accept responsibility for herding a total of 1.600 reindeer belonging to others.   17.    Subsequently, the County Agricultural Board received eleven requests for a permit to do licensed reindeer herding in the Sami community of Muonio as from 1 January 1986. In addition, the Board received four requests where the Sami community in which the herding was to take place had been left open.   18.    The applicant was among those who had submitted a request for a permit. He had not previously held a permit and he now requested a permit to do licensed reindeer herding in the Sami community of Muonio with 200 reindeer owned by himself.   19.    On 15 January 1986 the County Agricultural Board decided to issue eleven permits allowing, among others, the applicant to do licensed reindeer herding in the Sami community of Muonio with a total of 2.700 reindeer owned by the licence holders themselves and 1.600 reindeer belonging to others which were to be herded jointly.   20.    As regards the reindeer owned by the licence holders themselves, the applicant was granted a permit to herd 200 reindeer until the end of 1990. His application was thus granted in its entirety.   21.    In an appeal of 10 February 1986 to the National Board of Agriculture (lantbruksstyrelsen), the applicant requested that the number of reindeer that he had been permitted to herd be increased to 400. In support of his request he claimed that 200 reindeer would not be enough for him to earn his living. He also complained of the fact that certain persons not belonging to the Sami community of Muonio had received a reindeer herding permit. He considered that this was in violation of the applicable legislation and that therefore these permits should be revoked.   22.    On 21 November 1986 the National Board of Agriculture rejected the applicant's appeal. On the basis of the circumstances of the case it found no reason to increase the applicant's permit to cover 400 reindeer or to revoke the permits granted to those who did not belong to the Sami community of Muonio. Furthermore, it considered that no proposals had been submitted which could solve the questions concerning reindeer herding in Muonio in a better way than what had been decided by the County Agricultural Board.   23.    On 12 December 1986 the applicant appealed against this decision to the Government (Department of Agriculture). He maintained his request for 400 reindeer and argued that where an increase of the number of reindeer was foreseen in the area, the members of the Sami community of Muonio should benefit from this and not, as in the present case, members of another Sami community. The applicant considered this to be an unacceptable interference with his occupation as a reindeer breeder.   24.    On 29 January 1987 the Government rejected the appeal.   B.     Relevant domestic law   25.    Reindeer herding is governed by the 1971 Act on Reindeer Herding (Rennäringslag 1971:437) from which it appears that a person of Sami descent has the right to use land and water for himself and for his reindeer, i.e. a reindeer herding right (renskötselrätt), provided that reindeer herding has been the permanent occupation of his father or mother or any of his grandparents (Section 1). Reindeer herding may in some areas take place all year round, in some other areas only part of the year (Section 3).   26.    The areas within which reindeer herding may take place all year round are divided among the Sami communities in special community areas which may also comprise areas within which reindeer herding may take place only part of the year (section 6). The division into community areas is administered by the competent County Agricultural Board (Section 7).   27.    The object of a Sami community, which may acquire rights and undertake commitments, is to manage, in accordance with the Act, the reindeer herding within the pasture area of the community to the common benefit of its members (Sections 9-10). A member of a Sami community is, inter alia, a person entitled to engage in reindeer herding who participates in reindeer herding within the pasture area of the community (Section 11).   28.    A Sami community may for the common needs of its members use the pasture area of the community for reindeer herding. The competent County Agricultural Board shall decide on the number of reindeer which may be kept within the pasture area (Section 15).   29.    A Sami community shall have a board. The board shall, inter alia, direct reindeer herding operations in the community's area and ensure that the common interests of the members are protected without prejudice to any member (Section 48).   30.    Any person who is entitled to keep reindeer can obtain a licence to keep reindeer within certain areas where reindeer herding otherwise may take place only part of the year (Section 85). Such a licence includes the right to keep, not only reindeer owned by the licence holder himself, but also reindeer belonging to, inter alia, a person who owns or manages farm property which is located wholly or partially within the licensed area if he resides on that property or within the area (Section 85).   31.    A licence may only be granted if continued reindeer herding within the area is of substantial benefit locally and only if it can be assumed that the person applying for a licence will keep the reindeer in an appropriate manner (Section 85).   32.    A licence is granted for a specific period of time, not exceeding ten years. A licence specifies the licensed area, the largest number of reindeer which each licence holder may keep within the area and the largest number of reindeer belonging to others which the licence holder may accept responsibility for (Sections 85 and 88).   33.    Questions pertaining to licences are considered and decided on by the competent County Agricultural Board (Section 87). A decision of a County Agricultural Board can be appealed against to the National Board of Agriculture and a decision of the latter may be appealed against to the Government (Section 98). At the time relevant to the present application, the decision of the Government was final.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   34.    The complaint declared admissible concerns the absence of a right to a court examination of the Government's decision of 29 January 1987 to reject the applicant's request for a permit to keep 400 reindeer.   B.     Point at issue   35.    The issue to be determined is:   -      whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.     Article 6 para. 1 (Art. 6-1) of the Convention   36.    The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention reads as follows:         "In the determination of his civil rights and obligations ...,       everyone is entitled to a ... hearing ... by (a) ... tribunal..."   37.    The Commission recalls that according to the established case-law of the European Court of Human Rights the Commission must, in order to determine the issue in question, ascertain whether there was a dispute over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise, and the result of the proceedings must be directly decisive for the right in question. Finally, the right must be of a "civil" character (cf. for example Eur. Court H.R., Skärby judgment of 26 June 1990, Series A no. 180-B, pp. 36 and 37, paras. 27 and 29).   38.    When considering the facts of the present case in the light of the case-law of the European Court of Human Rights, the Government submit that the case did involve a genuine and serious dispute concerning a civil right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   39.    The Commission agrees with the Government. It recalls that under the applicable national legislation the applicant had a right to licensed reindeer herding whereas there was a serious and genuine dispute as to its scope and the manner of its exercise which was directly decisive for this right. Furthermore, the Commission considers that this right, which related to the applicant's occupation as a reindeer breeder, was of a "civil" nature. Accordingly, the Commission finds that Article 6 (Art. 6) was applicable in the present case.   40.    It remains to be determined whether the applicant had at his disposal a "tribunal" satisfying the requirements of Article 6 para. 1 (Art. 6-1) of the Convention for the determination of the dispute in question.   41.    The Government accept that the dispute was determined finally by the Government on 29 January 1987 and that, at the time the decision was taken, it was not open to review by a court or any other body which could be considered to be a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   42.    On the basis of its own examination of the case the Commission has reached the same conclusion. Accordingly Article 6 para. 1 (Art. 6-1) of the Convention has been violated.   Conclusion   43.      The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the Second Chamber   President of the Second Chamber             (K. ROGGE)                     (S. TRECHSEL)                                 APPENDIX I                         HISTORY OF THE PROCEEDINGS   Date                              Item _________________________________________________________________   20 May 1987                       Introduction of the application   28 February 1990                  Registration of the application   Examination of Admissibility   7 November 1990                   Commission's decision to invite the                                  Government to submit observations                                  on the admissibility and merits of                                  the application   22 February 1991                  Submission of the Government's                                  observations   24 April 1991                     Submission of the applicant's                                  observations   28 May 1991                       Commission's decision to refer the                                  application to the Second Chamber   8 July 1991                       Commission's decision to declare the                                  application admissible   Examination of the merits   2 April 1992                      Consideration of the state of                                  proceedings   2 September 1992                  Commission's deliberations on the                                  merits, final vote and adoption of                                  the Report