CASE OF HANDOLSDALEN SAMI VILLAGE AND OTHERS v. SWEDEN
No violation of Art. 6-1;Violation of Art. 6-1;Pecuniary damage - award;Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
6. The applicant Sami villages are all situated in the municipality of Härjedalen in the county of Jämtland. 7. The Sami 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 sustenance and that of his reindeer. The right may only be exercised by the members of a Sami village. Such villages are both geographical grazing areas and economic entities. They do not have any public legal status (see Könkämä and 38 Other Sami Villages v. Sweden, no. 27033/95, Commission decision of 25 November 1996, Decisions and Reports 87, p. 85 in fine). 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. 8. 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 more landowners initiated a similar action against the Sami villages. The landowners sought a declaratory judgment (negativ fastställelsetalan) that the Sami villages had no right to reindeer grazing on their land without a valid contract to that effect concluded between the landowner and the village. 9. 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. 10. 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). 11. 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. Furthermore, 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. Having examined the developments of the Sami culture and reindeer herding 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 Sami to such grazing on the relevant properties and that, from the late 19th century, the actual winter grazing, as annually recorded by the socalled 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 4,000,000 Swedish kronor (SEK; about 400,000 euros (EUR)). 18. 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. 19. 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. 20. 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. 21. On 18 June 1997 the parties were ordered to complete their respective actions by the end of October 1997. 22. 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. 23. 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. 24. 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. 25. 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. 26. 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. 27. 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. 28. 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. 29. 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. 30. 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. 31. 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 SEK 2,900,000 (about EUR 290,000). 32. 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. 33. As regards prescription 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 [1971] 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, that is, 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 movement between various grazing areas. The right to winter grazing based on prescription could not require that reindeer 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. 34. The Court of Appeal examined extensive evidence dating back several hundred years and drew 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 about 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. 35. 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. 36. 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. 37. On 29 April 2004 the Supreme Court refused the applicants leave to appeal. 38. The Sami Fund (Samefonden) has granted the applicants a loan of SEK 14,700,000 (approximately EUR 1,470,000) to pay the litigation costs incurred in the domestic proceedings. The loan, which is free of interest, is due on 30 November 2010. 39. 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, inter alia, on 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. 40. 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, that is, 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. 41. 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). 42. 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). 43. 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 about 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). 44. 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. 45. The Sami Fund is regulated in sections 16-28 of the Reindeer Husbandry Ordinance (Rennäringsförordningen, 1993:384). The Fund's purpose is to subsidise and promote reindeer husbandry, Sami organisations and Sami culture. As regards the promotion of reindeer husbandry, the subsidies can be used for the purchase and lease of land for reindeer herding, rationalisation of reindeer husbandry and other measures. The means are administered by the Legal, Financial and Administrative Services Agency (Kammarkollegiet). Decisions on how the means are to be used are taken by the board of the Sami Fund, which consists of six persons of Sami origin. 46. The revenue of the Sami Fund mainly consists of charges for leases to others than reindeer owners of land belonging to the State where reindeer husbandry may be carried out all the year round. Such revenue, which includes, for instance, licensing fees for hunting and fishing, is divided equally between the Sami village concerned and the Sami Fund. 47. In its budget proposal for 2009 (Government Bill 2008/2009:1), which was approved by Parliament, the Government laid down that some of the revenue of the Sami Fund could be used to part-finance the lease of land for winter grazing in the areas concerned in the present case.