AS TO THE ADMISSIBILITY OF
by HANDÖLSDALEN SAMI VILLAGE and Others
The European Court of Human Rights (Third Section), sitting on 17 February 2009 as a Chamber composed of:
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 29 October 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
1. The applicants are the following four Swedish Sami villages (samebyar): Handölsdalen, Mittådalen, Tåssåsen and Ruvhten Sijte (formerly Tännäs). They are all situated in the municipality of Härjedalen in the county of Jämtland. They are represented before the Court by Mr J. Södergren and Mr C. Crafoord, lawyers practising in Stockholm. The Swedish Government (“the Government”) are represented by their Agent, Mr C.-H. Ehrenkrona, of the Ministry for Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The Samis have since ancient times inhabited the northern parts of Scandinavia and the Kola Peninsula. Originally living by hunting, fishing and collecting, the Sami activities changed over time to concern mainly reindeer herding. Their historical use of the land has given rise to a special right to real estate, the reindeer herding right (renskötselrätten). Presently regulated in Sweden by the Reindeer Husbandry Act (Rennäringslagen, 1971:437), it comprises the right to use land and water for the Sami’s own maintenance and that of his reindeer. The right may only be exercised by the members of a Sami village. The reindeer herding area comprises approximately one-third of the surface of Sweden and is divided into all-year land and winter grazing land. In certain parts of the country, the borders of the herding area are controversial and have not been statutorily defined, especially as concerns the winter grazing land.
4. On 20 September 1990 a large number of private owners of land in the municipality of Härjedalen instituted proceedings against five Sami villages, the four applicants and the Idre Nya Sami village, before the District Court (tingsrätten) of Sveg. On 4 June 1991 further landowners initiated a similar action against the Sami villages. The landowners sought a declaratory judgment (negativ fastställelsetalan) that there was no right of the Sami villages to reindeer grazing on their land without a valid contract to that effect concluded between the landowner and the village.
5. On 26 June 1991 the District Court issued a summons and decided that the two cases were to be examined jointly. At a preparatory meeting on 16 September 1991, the court rejected the villages’ request for dismissal of the cases on procedural grounds.
6. On 25 November 1991 the Sami villages submitted their response, contesting the landowners’ action. The villages claimed that they had the right to winter grazing within their respective areas based on (1) prescription from time immemorial (urminnes hävd), (2) the provisions of the reindeer grazing and reindeer husbandry acts of 1886, 1898, 1928 and 1971, (3) custom, or (4) public international law, more specifically Article 27 of the UN Convention on Civil and Political Rights, as compared with Chapter 1, section 2 of the Instrument of Government (Regeringsformen).
7. Following three extensions of the time-limit fixed by the District Court, the landowners replied to the Sami villages’ submissions on 10 April 1992. An additional preparatory meeting was held on 27 August 1992, at which the parties discussed, inter alia, the possibility of reaching a settlement. Further, the villages were ordered to elaborate on their claim based on custom and to specify their means of evidence. They did so on 23 December 1992 following two extensions of the time-limit set. At the same time, they requested that the court inspect some of the properties concerned.
8. On 27 May 1993, having been granted several extensions, the landowners submitted a specification of the means of evidence offered. During the following months, the parties exchanged views on questions of evidence and submitted specifications of supplementary evidence. On 9 May 1994 the District Court sent a summary of the respective positions to the parties for comments. A further preparatory meeting took place on 18 May 1994.
9. During the summer and autumn of 1994, further comments were exchanged. On 26 and 27 October 1994 a preparatory meeting was held in order to plan the schedule for the main hearing. Between December 1994 and June 1995, further views were exchanged, among other things on the Sami villages’ request for an inspection.
10. By a decision of 22 June 1995, the District Court rejected the request for an inspection on the ground that the villages had not shown that an inspection of certain properties was necessary for an examination of whether they had a right to winter grazing on the land in question.
11. The parties were summoned for the main hearing at the beginning of August 1995. On 1 September 1995 some more landowners initiated a similar action against the Sami villages. This case was joined to the other two.
12. The main hearing started on 18 September and ended on 25 October 1995. It lasted for 16 days. The District Court heard a large number of experts and witnesses and had regard to substantial documentary evidence. During the hearing, as well as on seven previous occasions, the court struck out the case in regard to some of the landowners following withdrawal of the action on their part. The three joined cases eventually comprised property belonging to 571 landowners.
13. Having examined the developments of the Sami culture and the reindeer herding right since prehistoric times, the District Court issued a 192-page judgment on 21 February 1996. It found that, from the 16th to the late 19th century, there had not been any winter grazing which had established a right for the Samis to such grazing on the relevant properties and that, from the late 19th century, the actual winter grazing, as annually recorded by the so-called Lapp bailiffs (lappfogdar), had not lasted long enough in the respective parishes to create a right to grazing on those properties based on prescription from time immemorial, such prescription requiring at least 90 years’ use of the land. For these reasons, the Sami villages could not claim a right to use the properties under the various laws, including the Reindeer Husbandry Act presently in force. Moreover, the court found that a right to real property could not legally be established through “custom” and that a right to winter grazing on the properties in question could not be based on the provisions of the UN Convention and the Instrument of Government. The court therefore concluded that there was no right of the Sami villages to reindeer grazing on the plaintiffs’ land without a valid contract and accordingly gave judgment in favour of the landowners. The court ordered the Sami villages jointly to pay the plaintiffs’ legal costs, amounting to approximately 4 million Swedish kronor (SEK; about 370,000 euros (EUR)).
14. On 15 March 1996 the Sami villages appealed to the Court of Appeal (hovrätten) of Nedre Norrland. They demanded that the District Court’s judgment be quashed, that the landowners’ action be rejected and that the decision on litigation costs not be enforced. They completed their appeal on 2 September 1996.
15. On 8 November 1996 the landowners responded and requested that the Sami villages not be allowed to invoke circumstances in their defence that had not been presented to the District Court. In a submission of 20 December 1996, the villages, on their part, made an additional demand that the District Court’s judgment be set aside and the case remitted to that court on the ground that a procedural error had occurred. During the following months, the parties exchanged views on these and other matters. The landowners submitted their comments on the villages’ additional demand on 2 June 1997.
16. By a decision of 16 June 1997, the Court of Appeal ruled on twelve different procedural issues. Among other things, it rejected the Sami villages’ request that the appealed judgment be set aside and the case remitted. It also rejected the landowners’ request that the villages not be allowed to invoke certain circumstances in their defence, with one exception. Thus, the court did not allow the villages to argue that winter grazing without protests from landowners for a period of less than 90 years would qualify for a continued right to such grazing based on prescription from time immemorial or the provisions of the reindeer grazing and reindeer husbandry acts. Furthermore, the Court of Appeal rejected the Sami villages’ requests for an inspection of the locus in quo and for an order against the landowners to produce maps of the areas concerned. In its reasons for the various rulings, the court referred, inter alia, to the provisions of the Code of Judicial Procedure (Rättegångsbalken) concerning the conditions for invoking new circumstances and evidence not previously examined by the District Court.
17. On 18 June 1997 the parties were ordered to complete their respective actions by the end of October 1997.
18. On 24 September 1997 the Sami villages claimed that there was a procedural hindrance (rättegångshinder) as they lacked the capacity to act as parties in relation to the issue concerned by the proceedings in question. By a decision of 4 November 1997, the Court of Appeal rejected this claim, stating that, under the provisions of the Reindeer Husbandry Act, they had the necessary legal capacity. On 1 December 1997 the villages appealed against that decision to the Supreme Court (Högsta domstolen). At their request, the Court of Appeal granted the villages an extension of the time-limit set for the completion of their appeal until the Supreme Court had rendered its decision on the procedural issue. By a decision of 18 February 1999, the Supreme Court refused the villages leave to appeal.
19. In a submission of 4 March 1999, the Sami villages demanded that the State, through the Chancellor of Justice (Justitiekanslern), intervene on their side in the proceedings. At the end of May 1999, the Chancellor informed the Court of Appeal that he did not intend to apply to participate in the proceedings.
20. In March and July 1999 the Sami villages were ordered to complete their appeal, which they did on 11 October 1999, after having been granted extensions of the time-limits set. Shortly thereafter, the landowners were ordered to submit the means of evidence they invoked, which they did on 21 February 2000, also following time-limit extensions.
21. In January 2000 the landowners applied for the Sami villages’ appeal to be dismissed and in February 2000 the villages reiterated their demand that the District Court’s judgment be quashed and the case remitted. By a decision of 19 December 2000, the Court of Appeal rejected these requests.
22. On 7 November 2000 the Sami villages requested that the court obtain an opinion from an expert (sakkunnig). Following the landowners’ objection and the villages’ further comments, the court rejected this request on 8 March 2001.
23. In January 2001 the court ordered the parties to make submissions on the question of which landowners were to be considered opposite parties in the appellate proceedings. The Sami villages submitted several comments between January and April 2001 and the landowners made their submissions in May and August 2001, after extensions of the time-limits set.
24. On 31 May 2001, having interpreted one of the landowners’ submissions as a motion for dismissal of the Sami villages’ appeal, the Court of Appeal rejected that motion. On 18 June 2001 the villages adduced some written evidence not previously presented. The landowners objected to that evidence but, by a decision of 5 September 2001, the court allowed the villages to present it.
25. The main hearing in the Court of Appeal was held between 1 and 31 October 2001 and lasted 16 days. The appellate court heard the same evidence as the District Court and, as already mentioned, some additional written evidence introduced by the Sami villages.
26. Following some landowners’ withdrawal of their action and the Idre Nya Sami village’s withdrawal of its appeal, the Court of Appeal, by decisions of 8 October and 16 November 2001, struck out the case and set aside the District Court’s judgment – including the Idre Nya Sami village’s liability for litigation costs – in so far as it concerned these same parties.
27. By a judgment of 15 February 2002, the Court of Appeal upheld the District Court’s judgment and ordered the applicants to pay the plaintiffs’ legal costs in the appellate proceedings, amounting to approximately 2.9 million SEK (about EUR 270,000).
28. The Court of Appeal initially referred to the conclusion by the Supreme Court in the so-called “Taxed Mountains Case” (Skattefjällsmålet, NJA 1981, p. 1) that the rights pertaining to reindeer herding were exhaustively regulated by the Reindeer Husbandry Act. Consequently, the right of winter grazing was dependent on the conditions for prescription from time immemorial being met, those conditions having been regulated in the old Land Code (Jordabalken) of 1734.
29. As regards presciption from time immemorial and the burden and standard of proof in this respect, the Court of Appeal stated the following:
“Under Chapter 15, section 4 of the old Land Code, the following applied to proof of prescription from time immemorial. ‘If someone pleads prescription from time immemorial and fault is found with this claim, let him then show by means of old letters and writings deemed sufficient in law, or by means of credible men who have good local knowledge and can bear witness, on oath, that they neither know themselves nor have heard from others that the situation has ever been different. If he is unable to do this, the prescriptive right shall then be without force and effect.’ According to the preparatory works for the 1928 Reindeer Grazing Act and the  Reindeer Husbandry Act, in cases subject to dispute, the question of whether a right to winter grazing applies in a certain area is to be examined by a court on the basis of the evidence that is required under general law for proof of prescription from time immemorial (see Government Bill 1928:43, p. 71, and Government Bill 1971:51, p. 158). The burden of proof that winter grazing has taken place on the property owner’s land to such an extent that the Sami villages have a right to continued winter grazing may therefore be deemed to rest with the Sami villages.
In this case, the Sami villages claim that a right to winter grazing based on prescription from time immemorial has come into being as Sami have been in Härjedalen since prehistoric times, as reindeer were early on associated with the Sami culture, as reindeer management took on a completely nomadic form in the late sixteenth century or, at all events, during the seventeenth century, and it can be assumed that even then, in the winter, depending on the weather conditions and access to food, the reindeer belonging to the Sami wandered in search of food, and as the custom that developed at that time has endured until modern times. However, in the opinion of the Court of Appeal, for a right to winter grazing on the disputed lands to be deemed to have arisen on the basis of prescription from time immemorial, it must be required in addition that the results of the investigation indicate with sufficient strength that Sami have used the lands in question or parts of them for winter grazing for their reindeer with at least some regularity without hindrance, i.e. without objection from other holders of rights.”
The court further held that account had to be taken of the special features of reindeer husbandry. The herding required much space and necessitated movements between various grazing areas. The right to winter grazing based on presciption could not require that reindeer had grazed in a particular area every winter. However, a basic condition for that right was that the area had been used in such a way that every instance of grazing could be seen as part of a recurring pattern, although absence from the area in question could be more or less prolonged.
30. The Court of Appeal examined extensive evidence dating back several hundred years and made the following conclusions. As regards the period before the entry into force of the Reindeer Grazing Act of 1886 (most notably, the 17th, 18th and 19th centuries), it had not been shown that free winter grazing – that is, in the absence of contracts or the authorities’ permission – had taken place in Härjedalen. On the contrary, the individual landowners had protested against reindeer grazing on their land. At the time of the enactment of the 1886 and 1898 Acts, the disputes between the domiciled population and the nomadic Sami as to the use of the land at issue had been particularly sensitive in Härjedalen, and the investigation did not show that any winter grazing had occurred outside the boundaries of the “reindeer grazing mountains”. According to the evidence presented with respect to the situation in the 20th century, grazing outside these mountains had existed during wintertime only in limited areas and protests from landowners had been commonplace.
31. The appellate court thus found, in agreement with the District Court, that, before the 20th century, there had not been such winter grazing outside the reindeer grazing mountains which, together with the grazing that had taken place during the 20th century, could create a right to use the relevant properties on the basis of prescription from time immemorial. The longest period in the latter century during which winter grazing had occurred in one area without landowners’ objections was 50 years, thus insufficient to establish a right based on prescription.
32. The applicants appealed to the Supreme Court on 19 March 2002. Their appeal was completed on 22 May 2002. In the following months, they submitted documents as to the question of who was to represent them before the Supreme Court.
33. On 29 April 2004 the Supreme Court refused the applicants leave to appeal.
B. Relevant domestic law and practice
1. The Reindeer Husbandry Act
34. The nature and scope of Sami rights to land and water are governed by the Reindeer Husbandry Act. A person of Sami descent may use land and water in order to maintain himself and his reindeer (section 1). The reindeer herding right is a usufruct of economic value founded on prescription from time immemorial (section 1, subsection 2). It is to be exercised irrespective of contracts and free of charge, without limitations in time and space and on land belonging to the State as well as to private subjects, in accordance with the conditions laid down in sections 15-25 of the Act. These provisions also contain restrictions on the exercise of such rights, depending on, inter alia, whether the land belongs to the State or to private subjects. The reindeer herding right includes the right of members of a Sami village to engage in hunting and fishing, to graze reindeer and to erect certain structures and buildings needed for reindeer herding, as well as to collect wood and timber from the forests. It pertains to all Sami, but may only be exercised by members of a Sami village.
35. Section 3 of the Act defines the areas where reindeer herding may be conducted (renskötselområdet). In so far as the county of Jämtland is concerned, herding may be carried out throughout the year on the so-called “reindeer grazing mountains” (renbetesfjällen) and in those areas within the county which, at the end of June 1992, belonged to the State and were made available specifically for reindeer grazing. Winter grazing may be carried out from 1 October to 30 April in such areas outside the reindeer grazing mountains where, since time immemorial, reindeer grazing has been conducted during certain times of the year.
Section 3, subsection 2 defines “reindeer grazing land” as land that has been declared to constitute reindeer grazing land through the process of delimitation of Crown lands (avvittring, i.e. a process taking place between the 17th and the 20th centuries with the aim of separating private land from Crown land and imposing taxes on the former) or that has been used as such land since time immemorial. The notion of “reindeer grazing mountains” refers to mountains reserved for the Sami for reindeer grazing through the process of delimitation of Crown lands and the areas which have since then been made available for extension of the mountain grazing areas.
36. A Sami village is a geographical grazing area and an economic entity. Its main object is to manage reindeer herding within the grazing area of the village to the common benefit of its members (section 9). A village may acquire rights and undertake commitments and represents its members with regard to issues related to reindeer husbandry (section 10). The members of a Sami village are Sami who participate or have participated in reindeer herding within the community’s grazing area, as well as their closest family members (section 11).
2. Prescription from time immemorial
37. As mentioned above, the reindeer herding right is based on prescription from time immemorial. This was specified in the Reindeer Husbandry Act through a 1993 amendment, following the Supreme Court’s conclusion in the “Taxed Mountains Case” that the right to certain mountain areas in northern Sweden could be based on prescription from time immemorial in combination with occupation. Provisions on ownership and other, more limited, rights to land based on prescription from time immemorial are mainly found in the old Land Code of 1734. For a right of ownership or usufruct based on such prescription to arise, the land had to have been occupied or used for such a long time that nobody knew or had heard that the situation had ever been different (Chapter 15, section 1 of the old Code).
38. The qualification period required is estimated to be approximately 90 years (see Bengtsson, Samerätt, 2004, p. 79, with references). Section 6 of the Act on Implementing the new Land Code (Lagen om införande av nya jordabalken; 1970:995) stipulates that the provisions of the new Land Code are not to interfere with any rights to land based on prescription from time immemorial that have arisen before the new Land Code came into force (1 January 1972). This implies that any historical provision that could have given a person or entity rights to certain land before that date is still valid. As more specifically regards the Sami right to winter grazing based on prescription from time immemorial, the area has not been geographically demarcated in the Reindeer Husbandry Act. If there is a dispute whether a particular piece of land has traditionally been used for herding during certain times of the year – and thus may be used for winter grazing – the issue is to be decided by the courts on the basis of the evidence presented (see Government Bill 1928:43, p. 71, Government Bill 1971:51, p. 158, and the report by the Reindeer Husbandry Policy Committee, SOU 2001:101, p. 169).
3. Legal aid
39. Under section 6 of the Legal Aid Act (Rättshjälpslagen, 1972:429) in force at the material time, legal aid could be given to natural persons who fulfilled certain conditions, in particular that their financial resources were limited. A legal entity like a Sami village was thus not entitled to legal aid.
40. The applicants complain that their right to use land for winter grazing, constituting a possession within the meaning of Article 1 of Protocol No. 1 to the Convention, was violated, as the limitations resulting from the Court of Appeal judgment were not prescribed by sufficiently clear and precise domestic law, as the grazing areas remain undefined, and did not strike a fair balance between the demands of the public and the rights of the Sami villages.
41. They also claim that they were faced with an insurmountable burden and standard of proof, as the Court of Appeal’s judgment shows that very specific evidence on the frequency and location of the reindeer grazing during several hundred years was required. As the burden of proof was virtually impossible to meet, the applicants were placed at a substantial disadvantage vis-à-vis the opponent landowners and cannot be considered therefore to have had a fair hearing within the meaning of Article 6 § 1 of the Convention.
42. Further under Article 6 § 1, the applicants assert that they did not have an effective access to court. They refer to the fact that, while they did not introduce the legal proceedings in question, they had to pay the plaintiffs’ legal costs. Together with the applicants’ own legal expenses, the total costs of the proceedings allegedly amounted to 15.1 million SEK (about 1.4 million EUR). In order to pay those costs, the Sami villages had to take loans from the Sami Fund (Samefonden) which they might not be able to repay. Allegedly, in some similar land right disputes, other Sami villages have concluded that they could not afford to defend their rights. Moreover, this might have been the reason for the Idre Nya Sami village to withdraw from the domestic proceedings in the present case.
43. The applicants further maintain that the length of the domestic proceedings was not reasonable under Article 6 § 1. They state that, while the period of approximately five and a half years in the District Court could partly be explained by the extensive material that had to be examined for the first time, there was no justification for the six years spent in the Court of Appeal or for the period of more than two years spent in the Supreme Court on the issue of leave to appeal.
44. Should the circumstances invoked in relation to the complaints under Article 6 not amount to violations by themselves, the applicants finally submit that the combined effect of the burden of proof, the legal costs and the length of the proceedings involved a denial of an effective remedy, in breach of Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1.
A. As to the alleged violation of the right to property
45. The applicants complain that the Court of Appeal’s judgment involved a violation of their possessions, notably the right to use land for winter grazing, in contravention of Article 1 of Protocol No. 1 to the Convention. This provision 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.”
46. The respondent Government maintain that Article 1 of Protocol No. 1 is not applicable in the present case. While acknowledging that the right to reindeer grazing as such constitutes a possession within the meaning of that provision, they assert that, as the national courts found that no right to grazing existed on the specific property belonging to the 571 landowners, the applicants cannot successfully claim before the Court that their right to peaceful enjoyment of possessions was violated. The Government argue that the right to winter grazing in the disputed areas was not vested in the applicants without the intervention of the courts and cannot, therefore, be characterised as an “existing possession” as defined by the Court’s case-law. Furthermore, they submit that the applicants did not have a “legitimate expectation” of acquiring such a right in the areas in question and that there was not a sufficient basis in domestic law for their claim to qualify as an “asset” for the purposes of Article 1. In the latter respects, the Government point out that the national courts found that the applicants had not fulfilled their burden of proof regarding the extent and frequency of winter grazing on the landowners’ property and concluded that no such right could be deemed to exist in the disputed areas based on prescription from time immemorial or on any other ground. Allegedly, there is nothing to indicate that the courts examined the applicants’ claim in an arbitrary manner or that their application of domestic law was manifestly wrong and for this reason incompatible with the Convention. On the contrary, the courts made a careful investigation of the facts and evidence submitted by the parties, as well as of applicable law, and issued well-founded judgments containing no ambiguity about the reasoning.
47. The applicants submit that the legislator has incontestably acknowledged the Samis’ right to winter grazing, without having defined in what districts that essential tight may be exercised, and that this failure comes into conflict with the requirement of lawfulness under Article 1 of Protocol No. 1. The failure has been observed by several national and international experts and instances. The applicants claim, inter alia, that, in a statement on the Government Bill introducing the 1886 Reindeer Grazing Act, a parliamentary Special Committee expressed the opinion that the Sami held an existing and in fact inalienable right to reindeer husbandry in the County of Jämtland, encompassing Härjedalen and hence the estates in question. Allegedly, this character of the right has not been changed by later legislation, and it is argued that, in any event, the legislator had no authority to change it. Furthermore, the scheme according to which the courts should determine, on the basis of evidence relating to prescription from time immemorial, whether a right to winter grazing exists in certain areas is merely implied in the preparatory works for the 1928 and 1971 Acts and, again, it is highly doubtful whether the legislator was authorised to impose such a restriction on the right to winter grazing. The applicants therefore maintain that they have never been deprived of their inalienable right to winter grazing, and that this constitutes an exisiting property right recognised under domestic law. However, should it not be deemed as an existing right, the applicants claim that domestic law has conferred a sufficiently precise, and thus legitimate, expectation to winter grazing, within the meaning of Article 1 of Protocol No. 1. In this connection, they submit that the legislator’s omission to define the borders of the winter grazing areas and the consequences thereof are at variance with their right of property. Moreover, in their opinion, the Court of Appeal’s weighing of the evidence and methods of examining the facts, including the allegedly insurmountable burden of proof, were conspicuously arbitrary and manifestly unreasonable.
48. The Court reiterates that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his “possessions” within the meaning of this provision. Possessions can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a legitimate expectation of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a possession within the meaning of Article 1 of Protocol No. 1 (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX, with further references).
49. In the present case, the national courts were called upon to determine whether, under the law in force, the four applicant Sami villages and the Idre Nya Sami village had a right to winter grazing for their reindeer on the specific property belonging to the 571 landowners in the municipality of Härjedalen. Thus, the object of the courts’ examination was not to generally define or geographically demarcate the Sami right to such grazing.
50. As mentioned above, under section 3 of the 1971 Reindeer Herding Act, winter grazing may be carried out in such areas outside the reindeer grazing mountains where, since time immemorial, reindeer grazing has been conducted during certain times of the year. The exact delimitation of those areas not having been set out in the Act, the preparatory works of that Act and its predecessor states, as noted by the Court of Appeal in its impugned judgment, that it is for the courts to examine whether a right to winter grazing applies in a disputed area. This examination is to be made on the basis of the evidence presented concerning prescription from time immemorial. It is evident that the outcome of such examinations may differ depending on the circumstances pertaining to the area in question and the available evidence.
51. Having regard to the foregoing, the right claimed by the applicants did not vest in them without the intervention of the courts. Their property interest was accordingly in the nature of a claim and cannot therefore be characterised as an “existing possession” within the meaning of the Court’s case-law (cf. the Kopecký v. Slovakia judgment cited above, § 41).
52. It remains to be determined whether that claim constituted an “asset”, that is whether it was sufficiently established to attract the guarantees of Article 1 of Protocol No. 1. In this context, it is of relevance whether a “legitimate expectation” of obtaining effective enjoyment of the alleged asset arose for the applicants in the context of the proceedings complained of. In the above-mentioned Kopecký v. Slovakia judgment, the Court examined the concept of “legitimate expectation” according to its case-law. It concluded, inter alia, that no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicants’ submissions are subsequently rejected by the national courts (see § 50). It further stated that where the proprietary interest is in the nature of a claim it may be regarded as an “asset” only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it (§ 52). This line of reasoning has been confirmed in later judgments (see Eskelinen and Others v. Finland [GC], no. 63235/00, § 94, 19 April 2007).
53. In regard to the applicant’s claim in the present case, it should first be noted that the Supreme Court in the so-called “Taxed Mountains Case” in 1981 had concluded that the rights pertaining to reindeer herding were exhaustively regulated by the Reindeer Husbandry Act. As the right to winter grazing thus was dependent on the conditions for prescription from time immemorial being met, the claim to be examined by the courts was the applicants’ assertion that they had used the disputed land in such a way and for such a long time that a right based on prescription had arisen on the property in question.
54. In determining this issue, the District Court and the Court of Appeal had regard to extensive evidence dating back several hundred years. Reaching the conclusion that the applicants had not shown that the claimed right existed, notably that the Sami had not used the land for a sufficient length of time without objections from the landowners concerned, the courts gave detailed reasons for the different periods in time. Considering that it has only limited power to deal with alleged errors of fact or law committed by the national courts (see, inter alia, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I), the Court finds no appearance of arbitrariness in the way in which the District Court and the Court of Appeal determined the applicants’ claim.
55. While domestic law did not give indications for the applicants to know for certain whether the requisite elements for a right based on prescription from time immemorial were at hand in the instant case, the fact remains that this issue was to be determined in the judicial proceedings. Having examined the evidence, the courts found that this was not the case. In these circumstances, the Court is not satisfied that the applicants’ claim to a right to winter grazing on the disputed property was sufficiently established to qualify as an “asset” attracting the protection of Article of Protocol No. 1. Thus, the applicant did not have a “possession” within the meaning of that provision.
56. It follows that Article 1 of Protocol No. 1 is not applicable to the present complaint and that it must be rejected as being incompatible ratione materiae with the provisions of the Convention, in accordance with Article 35 §§ 3 and 4.
B. As to the principle of equality of arms and the burden of proof
57. The applicants claim that they were faced with an insurmountable burden and standard of proof in arguing their right to winter grazing on the disputed property. They were therefore placed at a substantial disadvantage vis-à-vis the opponent landowners, in breach of the principle of equality arms and their right to a fair hearing. They invoke Article 6 § 1 of the Convention which, inter alia, provides the following:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
58. While acknowledging that Article 6 § 1 is applicable to the proceedings, the Government submit that equality of arms was respected and that the proceedings were fair within the meaning of that provision. They argue, inter alia, that the Court of Appeal’s conclusion on the burden and standard of proof in cases concerning a right to reindeer grazing based on prescription from time immemorial was well-founded in national law and has been confirmed by statements in the doctrine. Its conclusion was further in accordance with general principles of law, namely that a person claiming to be in possession of a right has to present clear and convincing evidence as to the state of facts constituting the basis of the claim. Moreover, the court’s reasoning should be viewed in the light of the fact that the applicants must be considered to have had the best opportunity to collect evidence regarding the extent and frequency of reindeer grazing in the past. Against this background, the Government contest that the Court of Appeal applied an extremely high standard of proof and that the burden of proof ought to have been shifted to the landowners. Pointing out that both parties adduced a great amount of material – including written and oral evidence – before the domestic courts, which, furthermore, held preparatory meetings and oral hearings, the Government maintain that the applicants were afforded the opportunity to present and defend their case in a way that did not place them at a substantial disadvantage vis-à-vis the landowners.
59. The applicants claim that the procedure and the Court of Appeal’s methodology, especially in its evaluation of the facts and in its reasoning, lead to a virtually impossible burden of proof that upset the procedural fairness and equality of arms in the present case. Maintaining that the Court of Appeal applied double standards in examining the facts, the applicants argue that the court made far-reaching conclusions from single incidents during the last centuries to the detriment of the Sami while, at the same time, refusing to rely on general conclusions made by investigative committees of the late 19th and early 20th centuries, including the 1886 Special Committee, which spoke in favour of the applicants’ claims. The applicants further claim that the Court of Appeal in the present case did not use the same approach concerning the extent of proof necessary as a different appellate court, the Court of Appeal of Övre Norrland, in a later case concerning the right to winter grazing in another part of Sweden, adjudicated on 19 September 2007. The applicants also refer to the report of 14 February 2006 of the Boundary Delimitation Committee (SOU 2006:14), in which the Committee stated that the demands on the Sami in some recent court cases – to give an often detailed account of where they were with their reindeer in the 90 years preceding the 1886 Reindeer Grazing Act – appeared to be unreasonable.
60. The Court notes that the applicability of Article 6 § 1 to the proceedings in issue is not contested.
61. The Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. It is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, including its probative value or the burden of proof. These matters are therefore primarily for regulation by national law and the national courts (see, among other authorities, García Ruiz v. Spain, cited above; Tiemann v. France and Germany (dec.), nos. 47457/99 et 47458/99, ECHR 2000 IV, at p. 549; Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 49-50, ECHR 2001-VIII; and Markovic and Others v. Italy, no. 1398/03, §§ 107-108, 14 December 2006).
62. In the present case, the Court notes that the impugned judgments were pronounced following adversarial proceedings, in which both the District Court and the Court of Appeal held lengthy oral hearings. The Sami villages and the landowners adduced an extensive body of evidence and there is no indication that the applicants were prevented from introducing all the material and arguments they considered relevant to the case.
64. Furthermore, both the District Court and the Court of Appeal issued judgments in which the circumstances pertaining to the reindeer herding in the relevant area during several centuries were described in detail and the factual and legal reasons were set out at length. In the Court’s opinion, neither the courts’ account of the history of reindeer herding nor their findings of fact or law present any appearance of having been biased, arbitrary or unreasonable. On the contrary, they appear to have made a thorough examination of the specific case at hand, taking into account a large amount of documentary evidence and hearing several experts and witnesses. While the applicants have pointed out that the Court of Appeal of Övre Norrland, in a judgment of 19 September 2007, came to a different conclusion in regard to the right to winter grazing, it must be borne in mind that that case concerned another part of Sweden and the legal rules and principles thus had to be applied to a different set of facts. There is no indication that the appellate court in the present case used a fundamentally different approach to the issues of the burden and standard of proof.
65. Accordingly, the Court considers that the courts’ application of national law and their findings in regard to evidence were fair for the purposes of Article 6 § 1 of the Convention.
66. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
C. As to effective access to court in relation to legal costs
67. The applicants assert that, given the high legal costs of the proceedings, they did not have an effective access to court. Also in this respect, they invoke Article 6 § 1 of the Convention.
68. The Government maintain that the applicants were afforded the right of an effective defence and had the opportunity to present their case under conditions that did not place them at a substantial disadvantage vis-à-vis the landowners. The Government argue that the applicants were effectively represented by legal counsel during the entire proceedings and that the legal costs incurred did not prevent them from appealing the case to the Court of Appeal and the Supreme Court. Moreover, the applicants consented to and did not question the landowners’ claims for litigation costs and were granted advantageous interest-free loans from the Sami Fund to enable them to pursue and accomplish their action. In sum, the applicants were not deprived of the right to access to court.
69. The applicants submit that a lack of resources affected the quality of their defence in that the main responsibility for their litigation rested with the legal council of the Swedish Sami Association (Svenska samernas riksförbund), a lawyer with little experience of litigation. They further assert that the reason for the allegedly enormous legal costs for both sides in the proceedings was the legislation, which was defective in not defining the winter grazing areas and which necessitated the pursuit of deep and time-consuming historical research. The applicants thus did not have any reason to blame the landowners for making the proceedings complex, as that responsibility rested with the State. With this in mind, and having regard to the vital values at stake, the applicants submit that their right to an effective access to court and a fair hearing necessitated the grant of legal aid. The loans received from the Sami Fund will have to be repaid and are of no relevance in this respect.
70. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. Consequently, it should be declared admissible.
D. As to the length of the proceedings
71. According to the applicants, the length of the proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
72. The Government reject the allegation and instead assert that the proceedings were dealt with in an efficient and diligent manner by the courts and that there was continuous activity on the part of the District Court and the Court of Appeal. They submit that the case involved 571 complainants and five defendants, that it was of a complex legal nature, both materially and procedurally, that extensive material was submitted by both parties and that they requested and were granted extensions of the time-limits set on several occasions. Moreover, the courts had to determine not only the substance of the case but also a number of procedural issues.
73. The applicants maintain that the total duration of the proceedings breached Article 6 § 1. While acknowledging that the period before the District Court could partly be explained by the extensive material that had to be examined for the first time, they submit that there was no justification for the time spent by the Court of Appeal or the Supreme Court. They argue that the ultimate reason for the complex and difficult procedure is the applicable law, being deficient in not defining the borders of the winter grazing areas. The responsibility for the lengthy proceedings thus rests with the State.
74. The Court finds that the proceedings began on 20 September 1990, when the first action for a declaratory judgment was initiated before the District Court. The proceedings ended on 29 April 2004, when the Supreme Court refused leave to appeal. Thus, they lasted approximately 13 years and 7 months.
75. The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicants’ conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required. Consequently, it should be declared admissible.
E. As to effective remedy
76. The applicants submit that, should the Court not find violations in regard to their separate complaints under Article 6 of the Convention, the combined effect of the burden of proof, the legal costs and the length of the proceedings involved a denial of an effective remedy, in breach of Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
77. The Court reiterates that it has found above that the right to winter grazing, as claimed by the applicants, did not constitute a “possession” within the meaning of Article of Protocol No. 1. Furthermore, having had regard to the national proceedings as a whole, it has found that the issues of the burden of proof and the legal costs were handled reasonably in proceedings that were fair and afforded the applicants an effective access to court. In these circumstances, it does not find that any separate issue arises under Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1.
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
For these reasons, the Court by a majority
Declares admissible, without prejudging the merits, the applicants’ complaints that they did not have an effective access to court, given the high legal costs of the proceedings, and that the length of the proceedings was unreasonable;
Declares inadmissible the remainder of the application.
Santiago Quesada Josep Casadevall