NILSSON v. SWEDEN
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
The applicant, Mr Sture Nilsson, is a Swedish national who was born in 1946 and lives in Sjulsmark. He was represented before the Court by Mr Jan Södergren, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mrs Inger Kalmerborn, of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In 1973 the applicant inherited thirty-three hectares of property from his father, of which twenty-eight hectares had been included in a joint hunting area in 1952. The provisions in force at the relevant time concerning joint hunting areas and joint hunting area associations were replaced in 1980 by a Joint Hunting Areas Act and in 2000 by a Game Conservation Areas Act (Lagen om viltvårdsområden; SFS 2000:592). By the latter Act, a joint hunting area was renamed a game conservation area. The game conservation area to which the applicant’s property belonged comprised 5,567 hectares of land or 6,145 hectares including both land and water areas. Slightly more than a hundred and fifty properties or plots thereof were included in the area; many of them were very small, covering between one and three hectares. The applicant’s property was situated in the north-east corner of the area. The applicant could hunt within the game conservation area, including on his own property, but was obliged to coordinate his hunting with that of the other hunting rights holders. They were all members of the Game Conservation Area Association in Norrfjärden, (Norrfjärdens viltvårds-områdeförening), (henceforth GCAA), and took part in the decisionmaking process. The by-laws passed by the GCAA stated, among other things, that elk-hunting should usually be conducted in the form of so-called “community hunting”. On 15 January 2001 the applicant requested that the GCAA agree to the exclusion of his property from the game conservation area. He wished to have his property registered as a “one calf area” which would allow for the shooting of one elk calf each year. He submitted that being a dairy farmer he had not participated in the hunt for about eight or ten years. Moreover, he found that a hunting party consisting of fifty-five hunters was too big and, referring to his age, fiftyfive at the relevant time, he preferred hunting on a smaller scale. Since the GCAA objected to the request, the matter had to be decided by the County Administrative Board in Norrbotten County (Länsstyrelsen i Norrbottens Län), which by a decision of 9 February 2001 refused the applicant’s request and stated, in so far as relevant: “... By letters received by the County Administrative Board on 29 January and 1 February 2001 respectively, you have requested that part of your property ... be excluded from the game conservation area. In support thereof you have stated that you intend to register a licensed elk-hunting area on the property and hunt individually thereon. This would provide you with more hunting opportunities... Section 33 of the Game Conservation Areas Act is worded as follows: Upon application by the property owner or the [GCAA], the County Administrative Board may grant the exclusion from a game conservation area of: a property which due to a change in use or for other reasons lacks essential importance for the activity of the area; a property, or several properties with the same owner, which can comprise a separate unit for game conservation, if the remaining properties in the [original] game conservation area can continue to constitute a suitable area of this kind. ... [the County Administrative Board observes that] no change in the way the property is used has come to light. Nor can it be considered that the property lacks essential importance for the activity in the area, since together with a number of other properties, it forms the basis of the activity, which is to promote game conservation through coordination of hunting. In addition, the size of the property is not such as to be a reason for it to be considered to lack essential importance for the activity in question. Accordingly, exclusion cannot be granted pursuant to section 33, subsection 1.1 of the Act on Game Conservation Areas. Pursuant to section 33 of the Hunting Act (1987:259) elk may only be hunted after a licence has been issued by the County Administrative Board and within an area that the latter has registered (a licensed area). This does not apply if the hunting only concerns elk calves. The size and general nature of a licensed area must be such that it is suitable for hunting elk. The County Administrative Board may refuse to register an area as licensed ... if it does not allow for the shooting of at least one adult animal per year. The County Administrative Board considers that effective game conservation within the meaning of the Hunting Act cannot be conducted in an area smaller than what has been referred to here and referred to in section 33 of the Hunting Act. Likewise, an area of this kind cannot comprise a separate unit for game conservation pursuant to section 33, subsection 1.2. of the Act on Game Conservation Areas. The notion “game conservation” is defined in section 4 of the Hunting Act: The game must be conserved so as to protect the game species that belong to the game population in the country and naturally occurring bird species that are temporarily in the country; and promote appropriate development of game stocks, taking into account public and private interests. Game conservation includes using special measures to ensure that game receives protection and support and that hunting is adapted to the supply of game. The property owner and the person holding the hunting rights are responsible for making sure that the measures are carried out and that adaptations are followed. Of course, since your property consists of a unit that is larger than 20 hectares, it can be registered as a “one calf area” However, it cannot thereby be considered to comprise a separate unit for game conservation pursuant to the Act on Game Preservation Areas. Accordingly, [your] property] cannot be excluded pursuant to section 33, subsection 1.2. of the Act on Game Preservation Areas. As regards the question whether a decision to refuse [your request] contravenes [the proportionality principle contained in] Chapter 2, section 18 of the Instrument of Government and the European Convention on Human Rights, the County Administrative Board finds that there are strong reasons to support the view that it would be detrimental to effective game conservation, including elk hunting – which must be considered to be an important public interest – if existing game conservation areas were to be divided into smaller sections. ... You have not shown how game conservation could be improved if [your] request to exclude the property was granted. The County Administrative Board considers that even if [your] property is part of the game conservation area, game conservation can be carried out, either together with the other partners and hunters, or separately for the individual property. Thus, there are no limitations on the right of disposition over the property in question. On the contrary, there is an important public interest in retaining the property in question as part of the game conservation area. That will maintain the aim of the property owners in forming the area, namely to allow game conservation to be carried out in an efficient manner. Game conservation — primarily conservation of the elk stock — is only efficient when it can be carried out in a continuous area that is not divided. In respect of large game, hunting is an important part of game conservation. Properly conducted hunting based on biological grounds can regulate the numbers of these stocks, so that the requirements of the Hunting Act regarding preservation and promotion are fulfilled. ...” On an appeal, by a judgment of 27 June 2001 the County Administrative Court (Länsrätten i Norrbottens Län) upheld the County Administrative Board’s decision. Leave to appeal was refused on 12 February 2003 by the Administrative Court of Appeal (Kammarrätten i Sundsvall) and on 16 February 2005 by the Supreme Administrative Court (Regeringsrätten). According to Chapter 2, section 1 of the Instrument of Government (Regeringsformen), which is part of the Swedish Constitution, all citizens are guaranteed, inter alia, freedom of association in their relations with public institutions. This freedom is defined as freedom to associate with others for public or private purposes. Chapter 2, section 2 stipulates that all citizens are protected, in their relations with public institutions, against any coercion, such as to belong to a political association, religious community or other association with opinions of a political, religious, cultural or other such nature. The rights and freedoms referred to in Chapter 2, section 1 may be restricted by law to the extent provided for in Chapter 2, sections 13-46 (Chapter 2, section 12). Restrictions may only be imposed to achieve a purpose which is acceptable in a democratic society. A restriction may never go beyond what is necessary having regard to the purpose which occasioned it, nor may it be carried so far as to constitute a threat to the free formation of opinion as one of the fundaments of democracy. No restriction may be imposed solely on grounds of a political, religious, cultural or other such opinion (ibid.). According to Chapter 2, section 14, freedom of association may be restricted only in respect of organisations whose activities are of a military or quasi-military nature or constitute persecution of a population group of a particular race, colour or ethnic origin. The negative freedom of association provided for in Chapter 2, section 2 may not be restricted. The peaceful enjoyment of possessions is protected in, inter alia, the Instrument of Government. Pursuant to Chapter 2, section 18, the property of every citizen shall be so guaranteed that no one may be compelled by expropriation or other such disposition to surrender property to public institutions or to a private subject, or to tolerate restrictions by public institutions on the use of land or buildings, other than where necessary to satisfy pressing public interests. A person who is compelled to surrender property by expropriation or other such disposition shall be guaranteed compensation for the loss. Such compensation shall also be guaranteed to a person whose use of land or buildings is restricted by public institutions in such a manner that the ongoing use of land in the affected part of the property is substantially impaired, or the value of that part of the property suffers significant depreciation. Compensation shall be determined according to principles laid down by law (ibid.). Hunting is regulated in, inter alia, the 1987 Hunting Act (Jaktlagen; SFS 1987:259). The right to hunt game is attached to the ownership of real property. Thus, section 10 of the Act expresses the general principle that it is the person who owns a piece of property who has the right to hunt on that property. It is, however, possible to convey and let hunting rights, with the result that the ownership of land and the right to hunt may be vested in different persons (see sections 14-16). The right to hunt may be exercised only to the extent that hunting is acceptable from the point of view of game conservation. Thus, all game is in principle protected and may be hunted only if this is permitted under the Act or under provisions or decisions based on the Act (section 3). Specifically with respect to elk hunting, section 33 of the Act establishes the main rule that, with the exception of the hunting of elk calves, this may take place only if licensed by the relevant County Administrative Board and within an area that has been registered by the Board for this purpose (a socalled “licensed area”). Further, it follows from section 33 that a licensed area shall be of such a size and character that it is suitable for elk-hunting. The County Administrative Board may refuse to register an area as a licensed area if it does not allow for the shooting of at least one adult animal per year. However, even if these conditions are not met, an area may be registered as a licensed area if there are special reasons for this. In addition, an area may be registered as a licensed area allowing for one calf to be shot annually, if the size of the area amounts to at least 20 hectares. The right to hunt is connected with a general obligation to conserve and protect the game within one’s property. Where the right to hunt has been conveyed or let, this obligation lies with the landowner and hunting right holder together. Section 4 of the Act provides, inter alia, that measures shall be taken for the purpose of conserving existing species of wild game and in order to promote appropriate development of game stocks, taking into account both public and private interests. Game conservation includes an obligation to use special measures to ensure that game receives protection and support and to adapt hunting to the supply of game (ibid.). With the purpose of coordinating hunting and facilitating game conservation, Swedish legislation has for a long time provided land owners with the opportunity to join their properties into joint hunting areas by a unanimous or qualified majority decision. The 1938 Act on the Right to Hunt (Lagen om rätt till jakt; SFS 1938:274) contained provisions on joint hunting areas and joint hunting area associations. These provisions were replaced by a new Act which entered into force on 1 January 1981, the Joint Hunting Areas Act 1980 (Lagen om jaktvårdsområden; SFS 1980:894). This Act was in turn replaced by the Game Conservation Areas Act 2000 (Lagen om viltvårdsområden; SFS 2000:592), which entered into force on 1 January 2001. The provisions of the new Act are in many respects the same as, or similar to, the provisions contained in the old Act. A joint hunting area association existing at the time of the entry into force of the new Act shall be regarded as a game conservation area association in accordance with the new Act (see the transitional provisions of the 2000 Act). The 2000 Act provides that two or more properties or parts of properties may be joined into a game conservation area, for the purpose of promoting the conservation of game through coordination of hunting and measures to protect the game (section 1). Where this is done, the property owners concerned shall form a game conservation area association (viltvårdsområdeförening). Those who own land incorporated in such an area are members of the association (section 4). The provisions of the Act are equally applicable to publicly and privately owned land. However, according to section 2 of the Act, a game conservation area may not include certain land owned by the Swedish State where the Sami population has a right to hunt according to the Reindeer Herding Act (Rennäringslagen; SFS 1971:437). Also with respect to other land, public or private, the right of the Sami to hunt enjoys special protection. Thus, section 2 of the Act also provides that the formation of a game conservation area may not entail limitations on the hunting rights of the Sami. The relevant County Administrative Board decides on the establishment of a game conservation area upon application from one or several of the property owners concerned (sections 3 and 9). For such an area to be formed, at least four-fifths of the owners, representing at least four-fifths of the total area, must agree (section 7). Another requirement is that the creation of the area shall promote the preservation of the kind of wild game that the coordination is intended to preserve and protect. Finally, it is required that the area be suitable with regard to its size and geographical position. However, no property can be included in a game conservation area if, due to its size or use, it lacks importance for the activity within the area (section 8). Conversely, land that is capable of being retained as a separate unit for the purpose of game conservation cannot be included in the game conservation area without the owner’s consent (ibid.). As a general rule, the question of whether to form a game conservation area shall be investigated under the guidance of a person appointed by the County Administrative Board (section 11). Taking into account the application documents and other relevant information, the authorised official (förrättningsmannen) shall put forward proposals regarding which properties should be included in the area and which by-laws should apply to the association (section 12). These proposals shall be dealt with at a meeting, to which the property owners shall be summoned, and they shall be given the opportunity to submit their opinions and present their own investigations (sections 13 and 14). Thereafter, the official shall present a written statement expressing his or her opinion as to whether a game conservation area should be formed and, if this is the official’s view, propose which properties should be included in the area and also put forward proposals on by-laws for the association (section 15). The proposals and other relevant documents shall then be accessible to the property owners concerned for one month so that they may examine them and submit any views that they may have. Following the expiry of this period, the official shall provide the County Administrative Board with all the documents and such objections as may have been submitted, so that the Board may determine the matter (ibid.). The game conservation area association shall have a board (section 18). Members of the association are entitled to participate in the decision making by exercising their right to vote at general meetings (sections 19 and 20). The County Administrative Board shall confirm the by-laws of the association with regard to certain aspects (sections 3 and 16). The Board shall also confirm amendments of the by-laws with regard to those aspects (sections 16 and 17). If stipulated in the by-laws and provided it is in conformity with the hunting legislation, the association may decide that elk and certain other game may be hunted within the whole area (“area hunting”; områdesjakt) and only together with other hunting right holders within the area (“community hunting”; gemensambetsjakt), if this is deemed necessary having regard to the conservation of game (section 23). If such a decision is taken, the association may also decide on the details of the hunt, such as the number of animals that may be shot. It may also decide that participation in “area hunting” and “community hunting” shall require a hunting licence (section 25). According to section 26, if stipulated in the by-laws, the association may decide to suspend from “area hunting” and “community hunting”, for a maximum period of one year, a member or hunting right holder who has broken the rules regarding such hunting. The by-laws may contain a requirement that hunting rights may not be conveyed or let without the consent of the association (section 27). The association may decide that fees should be paid for hunting and for game that is shot (section 29). A property owner who for reasons of conscience is opposed to hunting, is entitled, upon request, to have his property exempted from “area hunting” and “community hunting” (section 28). Upon application by the board of the associations concerned, the County Administrative Board may decide to join several game conservation areas together into one area or to divide a game conservation area into several smaller areas (section 31). As regards such changes, the same conditions apply as for the formation of a game conservation area (ibid.). Further, upon application by the board of the association, the County Administrative Board may decide to join a property to the game conservation area, provided the owner of the property agrees to this (section 32). The exclusion of an individual property from a game conservation area is governed by section 33 of the Act, which deals with two types of situations. Thus, the County Administrative Board may decide to exclude a property upon application by the property owner or the association, if, as a result of a change in its use or for other reasons, it has lost its essential importance for the activity within the area (subsection 1, point 1). If the property owner and the association agree on the exclusion, the association may take the decision instead of the County Administrative Board. According to the preparatory work, this provision aims, in particular, at situations in which a fundamental change has occurred in the use of the property, for example if it has begun to be used for recreational or industrial purposes (Government Bill 1999/2000:73, p. 50). Further, upon application by the property owner or the association, the Board may decide to exclude a property from the area, provided the property is capable of forming a separate unit for game conservation and provided the other properties within the area can continue to exist as a suitable area for game conservation (sub-section 1, point 2). The possibility of excluding properties has been expanded in the 2000 Act as compared to the Joint Hunting Areas Act 1980, which it replaced. In the 1980 Act, exclusion was possible in the situations referred to in section 33, sub-section 1, point 1 of the 2000 Act, but not in the situations referred to in section 33, subsection 1, point 2. The County Administrative Board may decide, under certain conditions, that a game conservation area shall cease to exist and that the association shall be dissolved (section 34). A decision by the general meeting of the game conservation area association or by its board may be appealed against by those affected by the decision to the County Administrative Board, provided the decision relates to one of several enumerated issues, such as hunting and game conservation, membership of the association, suspension from “area hunting” and exclusion from the game conservation area in accordance with section 33, sub-section 2 (section 37). A decision by the County Administrative Board may be appealed to the relevant County Administrative Court (section 38). Subject to the grant of leave to appeal, a further appeal lies to the relevant Administrative Court of Appeal and, in the final instance, to the Supreme Administrative Court. Leave to appeal shall be granted if it is of importance for guidance on the application of the law that a superior court considers the appeal or if there are extraordinary reasons to examine the appeal. In addition, an administrative court of appeal shall grant leave to appeal if reason exists to amend the conclusion of the first instance court (sections 34 a and 36 of the Administrative Court Procedure Act; förvaltningsprocesslagen; SFS 1971:291).