European Court of Human Rights

G and E v NORWAY [1983] ECHR 16 (03 October 1983)

(1983) 35 DR 30

APPLICATION No 9278/81 & 9415/81 (joined)

DECISION of 3 October 1983 on the admissibility of the applications DECISION du 3 octobre 19S3 sur la rcccvabilitii des rcquetes

Article 1 of the Convention: In guaranteeing certain rights to "everyone" within the jurisdiction of the High Contracting Parties, the Convention does not recognise specific rights for minorities.

Article 8 of the Convention: A minority's life style may, in principle, fall under the protection of private life, family life or the home.

The submersion of a very small area of land because of the construction of a hydroelectric plant', in a vast region populated by shepherds, hunters and fishermen, does not constitute an interference with the population's private life.

Even if there were an interference, it would be justified as being necessary, particularly for the economic well-being of the country.

Articles 10 and 11 of the Convention: When authorised to demonstrate in a public place for five hours, the participants demonstrated for four days. Their forced removal by the police, and the fines imposed, were measures in accordance with the law, and necessary for the prevention of disorder.

Article 1 of the First Protocol: Traditional use of vast territories for grazing, hunting and fishing, not a property right. Possible claims for compensation for reduction of business interests. No appearance of a violation of Article I.

THE FACT

The facts, as they appear from the applicants' submissions, may be summarised as follows:

The applicants are two Norwegian Lapps. The first applicant was born in 1950 and is residing at E., Alta. He is a reindeer shepherd. The second applicant was born in 1944 and is residing at M., Alta. He is a fisherman and hunter.

The applicants are assisted before the Commission by Mr Digemes, a lawyer practising in Oslo.

On 15 June 1979 the Norewegian Government decided after consent from the Parliament to commence works in the Alia Valley for the purpose of erecting a hydroelectric power station in the valley. These works would eventually put parts of the Valley under water.

As a protest against this project and against the treatment of the Lapps in general, an independent group of Lapps, including the applicants, decided to protest outside the Parliament (Stortinget) in Oslo.

Following an application, the group received an interim permission by the Police authority to hold a demonstration ("med stands") in the Stortings place on Monday 8 October 1979 from II to 16 o'clock.

However, the morning of 8 October the group erected a Lapp tent in the Eids-volls place, which is situated outside the main entrance to the Parliament. They stayed in this tent and demonstrated until II October 1979. On this day the Police removed them, and the tent, by force, after the Lapps had refused to comply with a Police order that they should leave the site.

In the meantime, they had received permission to demonstrate in the Stonings place, but only during the day time. It appears that from 13 October 1979 the applicants continued their demonstration lawfully in the Stortings place.

On 21 March 1980 the Police of Oslo (Oslo politikammer), at the demand of the Public Prosecutor of Eidsivating —offered to settle the matter by imposing upon each applicant a fine of 1 000 Norwegian Crowns, or, failing that, 10 days' detention, for having

a. in the period from Monday 8 October until Thursday 11 October 1979 at approximately 13.00 hours at Eidsvolls Place in Oslo, refused to obey an order from the police to leave the site (an order given from the purposes of safeguarding public order and traffic) so that the police had to remove them by force,

b. put up, on Monday 8 October 1979, a Lapp tent on Eidsvolls Place in Oslo and left it standing until 11 October the same year, when it was removed by the police.

The applicants did not accept the settlement offer and the case was consequently referred to the City Court (Byrelt) of Oslo.

The trial took place from 2 until 4 June 1980.

By a judgment of the City Court of Oslo of 12 June 1980, six Lapps (including the applicants) were sentenced to a fine of 500 Norwegian Crowns, or, failing that, to a sentence of 5 days' detention.

All the convicted Lapps appealed to the Supreme Court which by a decision of 13 January 1981, apart from a minor pan, upheld the judgment of the City Court.

The Supreme Court stated, inter alia, that the provisions on which the convictions were based clearly aim at upholding public order and that it was not disputed that the police action had been dictated by such purposes. It was also stated that it had been established that the unlawful demonstration had caused great attention, and gathered lots of people. Different demonstrations had taken place, some of which were more aggressive than that of the convicted persons, which was calm.

The applicants draw attention to the fact that by birth they belong to a minority group, the Lapps.

For hundreds of years their kinsfolk have been working with reindeer, fishing and hunting. Every year they move their herd of deer around, and, therefore, there is a great demand for space. The Lapps have their own culture and language, far apart from the other Scandinavian languages. Until recently they were not given any education in (heir own language, and, in the applicants' opinion, the education they are at present receiving is very poor. Many of their people can neither read nor write Norwegian.

It is estimated that the Lapps number altogether about fifty thousand. Of these, about thirty thousand are living in Norway. The rest are living in Sweden, Finland and the-Soviet Union. The history of the Lapps is known several thousand years back.

About 1300 the Norwegians colonised the North, and the first church was buill there in Vardo in 1307. Over the centuries, more and more people have invaded what the Lapps call Samiaenan (the land of the Lapps).

During the last years, and especially after the Second World War, they have seen the land taken away from them and their culture slowly being destroyed.

Following the Government's decision to start the works in the Alia Valley, ihe responsible State authority brought an action before the Alia District Court to determine the compensation to be paid and measures to be ordered in connection with the project (skj6nn).The Lapps and the associations, who were parties to these proceedings (the applicants were not parties), submitted that the Government's decision to start the works in the Alta Valley was void, inter alia, on the ground that the Government had not taken proper account of the obligation towards the Lapps, as a minority, which the Government had under the rules of international law.

The District Court of Alta delivered its judgment on 5 December 1980. It declared, with dissenting opinion, that the decision of 15 June 1975 by the Government was valid. The Court then awarded compensation.

The Court's judgment was subsequently reviewed by the Supreme Court in plenary session.

The Supreme Court delivered its judgment on 26 February 1982, by which, in essence, it confirmed the judgment of the District Court.

The Court stated in its judgment that il has been established by case-law that the Lapps enjoy protection for their business (naeringsutbvelse), in the same way as other rights are protected against expropriation. The Court did not find it appropriate to determine how far that protection extended, since that was an issue to be determined in subsequent cases on compensation (skjbnn). As regards the resolution of 15 June 1979, the Court stated that the domestic legal position was clear. Any possible rights of the Lapps would—similar to others' rights—have to yield to the decision on expropriation, in exchange for pecuniary compensation.

-In respect of the submission from the Lapps that rules of international law were an obstacle to the Norwegian State's adopting the decisions in question, the Court stated as follows:

There could be no doubt that there were no limits to Norwegian sovereignty in respect of the regulated area. Nor could the invoked minority rights imply thai the decision was doubtful. The decisive point for the Court was the factual extent of the interference with the interests of the Lapps. The Court stated that a condition for there being any international law issue at all was if the decision implied substantial and very damaging interferences with such interests. The Court recalled that an area of 2,8 km² would be covered by water, and, accordingly, be lost as pasture land. In addition, a permanent road would be built for traffic to the electricity plant. However, the road was not supposed to be open to public transport. Although the damage would be greater during the building period, the Court concluded that the reindeer business would not be damaged in a manner raising issues as to the protection of minority interests under international law.

COMPLAINTS

1. The applicants point out that very few people understand the language of the Lapps. They wanted to protest against the Norwegian Government taking away their land, but since nobody has listened to the Lapps for years, they state that they had no other choice but to demonstrate outside the Parliament (Stortingct) by putting up the tent in front of it. They see this as their right to freedom of expression guaranteed by Article 10 of the Convention. Since they were arrested for doing so, they maintain that it constituted a violation of the right to freedom of expression, guaranteed by Article 10 of the Convention.
2. The applicants submit that as members of a minority group, they are not able to defend their rights under Article I of the First Protocol. The authorities have already started the works, which means that the valley where they were born and where they intended to work will be partly under water.
3. The applicants state that when the demonstrations took place, the Norwegian Government had already decided to start the works. They submit that it would have been impossible for them to institute court proceedings claiming that they were the legal possessors of this particular pan of Norway. Even if they had instituted such proceedings, the applicants submit that the works would probably have been finished by the time the final court decisions would have been taken or, at least, much damage would have been done. Hence the applicants submit that they had no effective remedy under Norwegian law, in contravention of Article 13 of the Convention.
4. If the basis of the Lapps' existence is taken away, it also means that they will have to be incorporated into a society which they do not understand, and which does not understand them. It is a society where, according to the applicants, they have met little understanding, but much discrimination. They maintain that they will not only lose the land, but also their identity. The applicants see this as discrimination, in violation of Article 14 of the Convention.

THE LAW

5. The applicants allege that the Lapps, as a minority, are discriminated against, and that their rights have not been sufficiently protected.

The Commission observes that the Convention does not guarantee specific rights to minorities. The rights and freedoms set forth in the Convention are, according to Article 1 of the Convention, guaranteed to "everyone" within the jurisdiction of a High Contracting Party. The enjoyment of the rights and freedoms in the Convention shall, according to Article 14, be secured without discrimination on any ground such as, inter alia, association with a national minority.

The applicants are Norwegian citizens, living in Norway, and under Norwegian jurisdiction. They have, as other Norwegians, the right to vote and to stand for election to the Norwegian Parliament. They are thus democratically represented in Parliament, although the Lapps have no secured representation for themselves.

The applicants are thus entitled to enjoy the guarantees of the Convention. They are also bound by Norwegian law and obliged to comply with decisions lawfully taken.

6. The Commission considers that the applicants' complaints must partly be examined under Article 8 of the Convention, which guarantees the right to respect for private life, family life and home.

The Commission is of the opinion that, under Article 8, a minority group is, in principle, entitled to claim the right to respect for the particular life style it may lead as being "private life", "family life" or "home".

The Commission finds that the manner in which the applicants demonstrated outside the Parliament cannot raise an issue under Article 8 (as regards the issues under Articles 10 and 11, see below). In respect of the applicants' allegation that land is being taken away from them, the Commission must limit its examination to the project in the Altariver. Here, the Commission notes that the applicants do not appear to have any "property rights" to this area in the traditional sense of that concept. Nor have they claimed compensation for any such rights (cf. below).

The applicants claim that the valley where they were born, and where they intended to live, will be partly under water. They do not allege that they will be unable to continue their life as a reindeershepherd and a fisherman and hunter respectively.

The Commission is prepared to accept that the consequences, arising for the applicants from the construction of the hydroelectric plant, constitute an interference with their private life, as members of a minority, who move their herds and deer around over a considerable distance. It is recalled thai an area of 2,8 km² will be covered by water as a result of the plant. In addition, il must be acknowledged that the environment of the said plant will be affected. This could interfere with the applicants' possibilities of enjoying the right to respect for their private life. Nevertheless, in comparison with the vast areas in northern Norway which are used for reindeer breeding and fishing, the Commission considers that it is only a comparatively small area which will be lost for the applicants, for such purposes, as a result of the Alia river project. ...

Furthermore, under the terms of Article 8, para. 2 of the Convention, an interference with the rights set out in Article 8, para. 1 is permissible if it is in accordance with the law and necessary in a democratic society for one of the purposes enumerated, inter alia, the economic well-being of the country.

The Commission finds that, without ascertaining the exact extent and nature of the interference with the applicants' rights under Article 8, para. 1, after the careful consideration of the necessity of the project by the national organs, the interference could reasonably be considered as justified under Article 8, para. 2, as being in accordance with law, and necessary in a democratic society in the interests of the economic well-being of the country.

It follows that this part of the applications is manifestly ill-founded, within the meaning of Article 27, para. 2.

3. The applicants have invoked Article I of the First Protocol and complained that their land has been taken away from them, and that the taking away of this land also affects their way of life.

Article 1 of the First Protocol guarantees to everyone the peaceful enjoyment of his possessions.

However the applicants have in no way substantiated that they have any property rights or claims, as guaranteed by Article 1 of the First Protocol to the land in question. The Commission, furthermore, notes that, under Article 105 of the Norwegian'Constitution, individuals are guaranteed compensation if rights of theirs are being expropriated. The applicants have not shown that they have instituted any proceedings for the establishment of whether they were entitled to such compensation.

It follows that the applicants' complaints under Article I of the First Protocol are manifestly ill-founded, within the meaning of Article 27, para. 2, even assuming that the applicants have exhausted domestic remedies, as required by Article 26 of the Convention.

7. The applicant have complained that their arrest, when they demonstrated from a tent outside the Norwegian Parliament, constituted a violation of their right to freedom of expression, protected by Article 10 of the Convention.

Article 10 provides that everyone has the right of freedom of expression. The demonstration, by setting up the lent in front of the Parliament, was certainly an expression of opinion. However, according to Article 10, para. 2 the exercise of this freedom, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law, and are necessary in a democratic society, inter alia, in the interests of public safety, or for the prevention of disorder and crime.

The Commission finds it established that the arrest and the subsequent conviction were lawful under Norwegian law, and that they were based on the aim of maintaining public order.

It is to be noted thai the applicants had been given permission to demonstrate on 8 October 1979 from II lo 16 o'clock, but that they erected the tent and stayed there day and night until II October. Under these circumstances, the Commission finds that the interference with their right lo freedom of expression can be reasonably considered to be necessary to protect the public order. A demonstration by setting up a tent for several days in an area open to public traffic must necessarily cause disorder.

It follows thai (his part of the applications is manifestly ill-founded within the meaning of Article 27, para. 2 of the Convention.

8. Insofar as the applicants' complaint about the interference with the demonstration might raise an issue under Article II (the right to freedom of peaceful assembly) the Commission is of the opinion that similar considerations as those under Article 10 apply.
9. The applicants have also invoked Article 13 of the Convention and submitted that they did not have an effective remedy.

The Commission recalls that, as a result of the Government's decision to implement the Alta project, the responsible State authority brought the necessary action before the Alta District Court, for determination of the compensation lo be paid, and other measures to be ordered. In these proceedings the applicants could have presented any claims they may have had in connection with the Alia river projeci. It would also have been open to them to institute separate Court proceedings in regard to such claims.

Consequently, the applicants had an effective remedy within the meaning of Article 13 of the Convention.