CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 janvier 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                          Application No. 12570/86                             by Martin DENEV                             against SWEDEN         The European Commission of Human Rights sitting in private on 18 January 1989, the following members being present:              MM.    C. A. NØRGAARD, President                  J. A. FROWEIN                    G. SPERDUTI                  E. BUSUTTIL                  G. JÖRUNDSSON                  A. WEITZEL                  J. C. SOYER                  H.G. SCHERMERS                  H. DANELIUS                  G. BATLINER                  H. VANDENBERGHE            Mrs.   G. H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY              Mr.    H. C. KRÜGER, Secretary to the Commission,         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms ;         Having regard to the application introduced on 22 July 1986 by Martin DENEV against Sweden and registered on 19 November 1986 under file No. 12570/86;         Having regard to:   -      the first report provided for in Rule 40 of the Rules of Procedure of the Commission;   -      the Commission's decision of 3 May 1988 to invite the Government to submit written observations on the admissibility and merits of the application limited to the issue under Article 6 para. 1 of the Convention;   -      the Government's observations dated 11 August 1988 and the applicant's reply dated 3 October 1988;   -      the second report provided for in Rule 40 of the Rules of Procedure;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as they appear from the parties' submissions, may be summarised as follows.         The applicant is a Swedish and Bulgarian citizen, born in 1938 and resident at Saltsjöbaden, Sweden.   He is a scientist and forest owner.         In January 1977 the applicant was granted a patent concerning certain methods for forestry.   On 8 August 1983, he bought a real estate called Skattungbyn 18:3 in the county of Kopparberg.   Two areas of forest land forming part of that property, on of 2.8 hectares and the other of 2 hectares, had previously been subject to final fellings in 1978 and 1981 respectively.         In a letter to the applicant entitled "Advice and Directions with respect to establishing of new stands" and dated 18 January 1982, the Forestry Board (skogsvårdsstyrelsen) of the County of Kopparberg indicated that certain measures were to be taken subsequent to the final felling on the area of 2.8 hectares in order to comply with the requirements of the Forestry Act (skogsvårdslagen).   These measures consisted in clearance and planting operations to be undertaken in 1982, 1983 and 1984 in respect of the area of 2 hectares and indicating that such measures were to be undertaken during 1984.         Following an objection by the County Forestry Board in January 1985 to the applicant's failure to carry out the above measures, the applicant informed the National Board of Forestry (skogsstyrelsen) that he intended to plant, inter alia, mountain ash (rönn), a type of pine (cembra pine), plum trees (plompon), hazel (hassel) and dog rose (nypon) in both areas during the period 1985-1986.         On 1 August 1985 the County Forestry Board issued an injunction under Sections 7 and 24 of the Forestry Act obliging the applicant to undertake a clearing of his forest, preparation of the land and the planting of 2.500 Swedish pine plants per hectare evenly distributed over the entire 4.8 hectares of forest land on his property.   The order was to be complied with before 1 October 1986 under a penalty of 25,000 SEK.         In an appeal to the National Board of Forestry against this decision, the applicant questioned the lawfulness of the County Forestry Board's decision arguing that, as he had acquired the property in 1983, the three year time-limit for planting new trees under Section 4 (1) of the Forestry Ordinance (skogsvårdsförordningen) should be calculated not from the time of the fellings but from the time of his acquisition.   The applicant also maintained that his intention to plant other types of tree was a continuation of scientific experiments which he had been conducting on a small scale for seven years.         On 14 March 1986 the National Board decided to quash the decision insofar as it concerned the area of 2.8 hectares on the grounds that the prerequisite laid down in the Forestry Act that an injunction be preceded by "advice and direction from the public authority" could not be said to have been complied with where the applicant had acquired the property only after such advice and directions had been issued.   In its decision the National Board stated that the obligation to plant new trees applied to the property as such, and the time-limit was therefore not influenced by a change of ownership.   Furthermore, it had not been shown that the area was used or about to be used for purposes other than the production of timber and as Swedish pine was the kind of tree best suited for planting in the forest land concerned, the applicant's appeal was dismissed with respect to the area of 2 hectares.   The amount of the penalty was reduced to 10,000 SEK, however, and the deadline for performing the regeneration measures was postponed until 1 October 1987.   In so deciding, the National Board pointed out that its assessment did not prevent the property owner from using the land for purposes other than timber production before the expiration of the above time-limit.         The applicant appealed to the Government and claimed that the decision should be quashed or, alternatively, that the time-limit within which the order should be complied with be prolonged until 18 April 1987 on the grounds, inter alia, that he needed to use the property for seedling cultivation as part of research.   The applicant further claimed damages in the amount of 10,000 SEK.         Before the Government the National Board of Forestry submitted an opinion on 21 May 1986 and the applicant submitted observations in reply.         On 18 June 1986 the Government rejected the appeal and decided not to take any measures in respect of the claim for damages.         In the meantime, on 18 April 1986, the applicant submitted an application to the Property Formation Authority (fastighetsbildnings- myndigheten) at Mora requesting permission to use the land for purposes other than forestry.   The applicant's request was refused by the Property Formation Authority on the grounds that it was contrary to the pursued policy to separate forest land from agricultural land where it was possible to keep such land together.   COMPLAINTS   1.     The applicant submits that there has been a violation of Article 1 of Protocol No. 1 to the Convention which provides that the owner has the right to use his property in a peaceful way.   He finds it unacceptable that a democratic State prevents him from planting the trees and other species which he wishes to cultivate on his land.   2.     The applicant also considers that the decisions of the forestry authorities defame him as a violator of the Forestry Act.   He submits that this is degrading treatment contrary to Article 3 of the Convention.   3.     The applicant complains that he cannot bring his case before an independent and impartial tribunal, contrary to Article 6 para. 1 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 22 July 1986 and registered on 19 November 1986.         On 3 May 1988 the Commission decided to communicate the application to the Government and to invite them to submit written observations on the admissibility and merits of the application limited to the issue under Article 6 para. 1 of the Convention.         The Government's observations were received by letter dated 11 August 1988 and the applicant's observations in reply were dated 3 October 1988.   SUBMISSIONS OF THE PARTIES   A.     The Government   1.     Swedish legislation         The legal basis for the achievement of the aims of Swedish forestry policy is the 1979 Forestry Act, as supplemented by the 1979 Forestry Ordinance and the directions and advice issued by the National Forestry Board.         Section 1 of the 1979 Act defines the global aim of forest policy as follows:         "Forest land and the forest on it shall, by means of a       suitable use of the wood producing capacity of the land, be       managed so as to provide a permanently high and valuable       timber yield.   This management should pay heed to nature       conservation and other public interests."         Section 2 (1) of the 1979 Act defines forest land, inter alia, as land which is suited for the production of timber and which is not used to any large extent for other purposes.   The general advice issued by the National Board of Forestry with respect to Section 2 is that land which is being used for plant growing or seed growing cannot be regarded as forest land.         Section 3 of the 1979 Act provides that forest land may be used for purposes other than the production of timber, and the general advice issued in respect of this provision establishes that, for conversion of forest land to use for other purposes to be considered to have occurred, the land must be utilised to an extent that reasonably corresponds to normal exploitation of land.   This means that the requirements of the 1979 Act apply until the land has been put to use for other purposes or, in some instances, when a conversion is close at hand.   In most cases, a conversion period of three years is regarded as sufficient for conversion for both building and agricultural purposes, and if such conversion is not complete within reasonable time, the duties inherent in the notion of forest land again become applicable.         Under Section 5 of that Act, new trees shall be planted on forest land, inter alia, if the timber-producing capacity of the land is unused.   Section 4 (1) of the 1979 Ordinance provides that in these cases, measures for planting of seeds and seedlings or transplants or measures to obtain a natural regeneration are to be taken without delay and to be carried out within a period of three years from the year when the duty to plant new trees comes into being.         Section 7 of the 1979 Act provides that when new trees are planted on forest land such regeneration measures are to be undertaken as may be required to safeguard the growth of new forest which is satisfactory in terms of density and general composition.   Regulations on methods of regeneration, clearance, planting of seeds and seedlings, transplants, tending of newly planted areas, and other such measures are issued by the Government or by an authority designated by the Government.   Section 7 of the 1979 Ordinance indicates when natural regeneration may be used.   Rules on supplementary planting, etc, are to be found in Section 8 of the 19791 Ordinance.         According to Section 9 of the 1979 Ordinance, the National Board of Forestry issues directives on the following matters:   a.     The smallest quantity of seedlings/transplants that should exist       on a given regeneration surface, considering the yielding       capacity of the land and the distribution of these plants that       will be most favourable to a satisfactory regeneration;   b.     The time-limits within which measures to bring about satisfactory       regeneration are to have been accomplished when using different       methods of regeneration.         Section 8 of the 1979 Act contains certain provisions regarding forest reproductive material.         According to the same Section, the Government or such public authority as the Government decide may issue regulations prohibiting or making subject to certain conditions inter alia the use of certain kinds of forest reproductive materials of indigenous or foreign origin, when new trees are being planted on forest land.   Under Section 10 of the 1979 Ordinance, the Government have authorised the National Board of Forestry to issue regulations as to what forest reproductive material may be used in different areas.   Such regulations may lay down what kinds of trees may be used and their origin and establish conditions applicable to the use of regeneration material.         The regulations established by the National Board of Forestry pertaining to Sections 7 and 8 of the 1979 Act provide that new trees may be planted on forest land only be means of such reproductive material as, by virtue of its origin, variety and other qualities, has good possibilities to develop and put the land to use for a high production of valuable timber.         In the general advice it is pointed out that, when considering what kinds of trees are suitable, the main concern should be the productivity of the land, the kind of forest suited to it and its climate.   Normally, new trees should be planted with a view to production of softwood.         The owner of forest land is, under Section 10 of the 1979 Act, responsible for planting and tending new trees.         According to Section 11 of the 1979 Act the County Forestry Board may, in special cases, grant exemptions from Sections 5, 7 and 9.         Under Section 22 of the 1979 Act the National Board of Forestry performs supervision of the compliance with the 1979 Act and of the regulations issued according to that Act.   The County Forestry Boards perform more detailed supervision of compliance at county level.         Under Section 24 of the 1979 Act the supervisory authorities may, under the threat of a penalty of a fine, prescribe or prohibit certain acts, when this is required to assure compliance with the 1979 Act or with any regulation issued under the provisions of that Act.         A prescription or a prohibition may, however, not be issued until it has become clear that the advice and directions of the supervisory authority have not been complied with.         If a person fails to comply with a prescription, the supervisory authority may order the measure prescribed to be undertaken at the expense of the person at fault.         The decisions taken under the 1979 Act by the County Forestry Boards may be appealed to the National Board of Forestry.   The decisions of the National Board of Forestry may be appealed to the Government.   2.     Article 6 of the Convention         As regards the question of whether the decisions at issue concerned the applicant's civil rights, it is to be noted that the applicant was in fact at liberty to use the land for purposes other than forestry or to make preparations for using the land in such a way. This appears clearly from Section 3 of the 1979 Act as well as from the decision of the National Board of Forestry.   Had the applicant turned the land to use for such other purposes before the expiration of the time-limits laid down in the injunctions, the basis for those injunctions would have become null and void, since the land in question would then, technically, no longer have been forest land and the forestry legislation would therefore no longer be applicable.         Consequently, the decisions here at issue should be regarded as decisions of a mere police character relating to the way the land was actually being used by the applicant, a situation which could have been changes by the applicant himself.   In these circumstances, measures applying regulations of a public policy character did not give rise to legal relations between property owners and the State which could be termed civil rights and obligations within the meaning of Article 6 para. 1 of the Convention (e.g. No. 9607/81, Dec. 6.5.82, D.R. 28, p. 248).         Furthermore, the applicant has not contested that the land in question is suitable as forest land and since the decisions at issue were aimed at bringing about the most profitable and rational methods of exploitation of such land, they cannot have affected in any negative way an conceivable civil right of the applicant.   It is submitted in this connection that the right at issue for the purposes of Article 6 must be shown to have a certain importance for the use of the property or must have economically perceptible effects for the owner (Eur. Court H.R., Benthem judgment of 23 October 1985, Series A no. 97, p. 16, paras. 34-36).         As regards the applicant's intention to cultivate other types of tree, this could have been achieved within the framework of the forestry legislation through the granting of an exemption by the County Forestry Board under Section 11 of the 1979 Act.   It is submitted that the margin of appreciation enjoyed by the competent authority in this respect is so wide that no right to obtain an exemption may be said to exist.         Finally, the Government point our that the applicant has made no serious allegation regarding any faulty application of the law, which is clearly set out in the provisions of the 1979 Act and the 1979 Ordinance.         For these reasons the Government contest that there exists a serious dispute (contestation) over a civil right.         If the Commission were to consider, however, that such a dispute does exist, the Government admit that there was no procedure available to the applicant satisfying the requirements of Article 6 para. 1 of the Convention for the determination of his claims.         The Government maintain that the application should be declared inadmissible as being incompatible ratine materiae with the Convention or as being manifestly ill-founded.   B.     The applicant         The applicant states that part of his work as a scientist is to perform research concerning forestry.   For that purpose it is necessary to use part of his land.   The total area of this property is just under 5 hectares but the applicant owns altogether 1,000 hectares in this part of Sweden.   The applicant considers that Section 3 of the Forestry Act gives a right to the applicant to plant what he wants on his land. This provision provides that the land may be used for a purpose other than forestry and it is not said that the land must remain unused.   The applicant submits that he needs more than three years' preparation for his experiment.         The Swedish authorities, in refusing to allow the applicant to plant cembra pine (pinus cembra) and obliging him to plant traditional pine (pinus silvestris) instead, are in violation of the Forestry Act which allows for planting of trees which produce a high quantity and high quality of timber.   Cembra pine produces a comparable quantity and a high quality of timber than traditional pine, and this is proved by its use in the Alps as well as by the fact that the National Forest Enterprise (domänverket) is itself selling cembra pine seeds to forest owners.         Cembra pines, unlike traditional pine, also produces nuts which are a well-established food for humans.   The applicant intended to exploit the lack of any commercial production of these nuts in Sweden by farming the nuts from the cembra pine on his land.   Although he only wished to plant cembre pine on a small scale, the commercial value of these nuts was important to the applicant.   Furthermore, the applicant points out that he is obliged, as a result of the decisions, to plant traditional pine to the value of 40,000 SEK on the same land where he wished to plant other trees.         The applicant therefore submits that the facts disclose a genuine dispute of a serious nature over a civil right within the meaning of Article 6 para. 1 and that he clearly has had no access to q tribunal satisfying the requirements of that provision.   THE LAW   1.     The applicant complains that the decisions taken by the Swedish forestry authorities constitute an unjustified interference with his right to the peaceful enjoyment of his property, contrary to Article 1 of Protocol No. 1 (P1-1) to the Convention, which 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."         As a result of the decision taken, the applicant was required to plant 2,500 Swedish pine plants per hectare on an area of his forest land comprising two hectares, before 1 October 1987 and under a penalty of 10,000 SEK.   The Commission considers that these decisions constitute an interference with the applicant's right under Article 1 of Protocol No. 1 (P1-1).   This interference was a measure of control of the use of property and the question whether it was a justified interference must therefore be examined under the second paragraph of Article 1 (Art. 1-2).         The Commission notes that the decisions taken were based on the provisions of the 1979 Forestry Act and Ordinance, notably Sections 7 and 24 of the Act and Section 9 of the Ordinance.   Under those provisions the applicant as an owner of forest land is subject to certain duties.   These duties are laid down with the aim of ensuring the protection of the environment and other public interests, notably that of providing a permanently high and valuable timber yield.   If a forest owner does not comply with the advice and directives from the forestry authorities he may, as in the present case, be ordered to carry out specific measures on the forest land, under the penalty of a fine.   The Commission is satisfied that the decisions of which the applicant complains were lawful and that they were taken in accordance with the "general interest" within the meaning of the second paragraph of Article 1 of Protocol No. 1 (P1-1) to the Convention.         The Commission also notes that it follows from Sections 2 and 3 of the 1979 Act that there was no absolute obligation on the applicant to cultivate trees on the property concerned.   His land could have been used for other purposes.   However, he had not shown that his land was so used.   Furthermore, the Swedish authorities were obliged to issue advice and directives to the applicant and only if he failed to comply with those instructions could they issue a valid order under penalty of a fine.   Having found that the applicant had not complied with the instructions issued, they were consequently entitled to issue such an order.   Moreover, the authorities have examined the cultivation proposed by the applicant, but they found that it did not meet the condition of high production of valuable timber, as did the cultivation of Swedish pine.   In these circumstances, the Commission finds that the orders complained of were not disproportionate to the legitimate aims pursued thereby (cf. Jacobsson v. Sweden, Comm. Report   8.10.87).         It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant complains that the decisions taken by the Swedish forestry authorities in respect of his property "defame" him as a property owner and constitute degrading treatment, contrary to Article 3 (Art. 3) of the Convention, which prohibits torture, inhuman and degrading treatment or punishment.         The Commission finds that the above decisions do not disclose any appearance of a breach of Article 3 (Art. 3) of the Convention.         It follows that this complaint is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant complains further of a violation of Article 6 (Art. 6) of the Convention in that he cannot bring his case before an independent and impartial tribunal. Article 6 para. 1 (Art. 6-1) first sentence reads as follows:         "In the determination of his civil rights and obligations or of       any criminal charge against him, everyone is entitle to a fair       and public hearing within a reasonable time by an independent and       impartial tribunal established by law."         The Government submit that the decisions taken by the competent authorities did not involve the determination of a dispute which related to the applicant's "civil rights and obligations" within the meaning of this provision and that this part of the application should therefore be declared inadmissible as being incompatible ratione materiae with the provisions of the Convention.   If Article 6 para. 1 (Art. 6-1) is found to be applicable, the Government concede that there was no procedure available to the applicant satisfying the conditions of Article 6 para. 1 (Art. 6-1) for the determination of his claims.         The issues to be decided are whether the decisions taken by the forestry authorities in respect of the applicant's property, notably the Government's decision of 18 June 1986, were decisive for a "civil right" of the applicant and, if so, whether a genuine dispute of a serious nature arose between the applicant and the Swedish authorities in relation to those decisions.   In the affirmative, it would have to be determined whether the applicant had at his disposal a procedure satisfying the requirements of Article 6 para. 1 (Art. 6-1) in regard to that dispute.         The Commission has made a preliminary examination of these issues in the light of the parties' submissions.   It considers that these issues raise questions of fact and law which are of such a complex nature that their determination requires an examination on the merits. This complaint cannot therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, but it must be declared admissible, no other ground for declaring it inadmissible having been established.         For these reasons, the Commission         DECLARES ADMISSIBLE, without rejudging the merits,       the complaint of absence of a court determination (Article 6       para. 1 (Art. 6-1) of the Convention)         DECLARES INADMISSIBLE the remainder of the application   Secretary to the Commission             President of the Commission        (H.C. KRÜGER)                           (C.A. NØRGAARD)