On 30 March 2010 the Third Section of the European Court of Human Rights (‘ECtHR’), sitting as a Chamber, issued its judgement in the case Handölsdalen Sami Village and Others v. Sweden. The case concerns the rights of the Sami to use privately owned land for winter grazing of their reindeers in the municipality of Härjedalen. The case originates in proceedings before Swedish courts that were initiated by a large number of private landowners against the Sami villages, and which were concluded in substance with a Court of Appeal judgment prohibiting the villages from using land without previously concluding a contract with the affected landowners. The ECtHR in a decision of 17 February 2009 declared inadmissible inter alia the complaint by the Sami villages that a violation had occurred of their property rights under Art. 1 of Additional Protocol No. 1 of the ECHR. As a consequence the new judgment merely deals with the procedural aspects of the cases before the national courts, namely the alleged excessiveness of the costs and length of those proceedings. However, as I will demonstrate those questions in themselves add some important points to the contentious question of Sami land and resource rights in Sweden. It is therefore justified to take a closer look at the judgment of the ECtHR and to analyse its ramifications for the underlying disputes. I will hence just shortly refer to the substantive details of the judgment and instead focus on outlining the overall importance of the ruling for the fundamental dispute regarding Sami land rights and the future situation of the Sami villages.
1. Background of the Case – The Proceedings before National Courts
On 20 September 1990 a large number of private land owners instituted proceedings against five Sami villages, seeking a declaratory judgement (negativ fastställelsetalan) to the effect that the Sami villages do not have the right to reindeer grazing on their lands without a valid contract concluded between the landowners and the village(s). The villages, instead, claimed that they had the right to winter grazing within their respective areas based on (I) prescription from time immemorial (urminnes hävd); (II) the provisions of the applicable reindeer husbandry act; (III) custom; and (IV) public international law in the form of Art. 27 UN Covenant on Civil and Political Rights. Between 1992-1995 the parties presented vast amounts of evidence in support of their claims. The case was also joined with two other actions brought by landowners, resulting in the final judgment affecting the property of 571 landowners. A judgment was rendered by the District Court on 21 February 1996, finding that there had not been, between the 16th and the late 19th century, any winter grazing that could result in an existing right of the Sami to such grazing on private properties on the basis of prescription from time immemorial; such prescription requiring at least 90 years of usage. The Reindeer Husbandry Act, which also presupposes prescription from time immemorial (see Section 1 subsection 2 in fine), could not yield a different conclusion. The court furthermore found that a right to real property could not be established on custom and that the claimed right could also not be based on the ICCPR. Hence the court found in favor of the plaintiffs. The judgement was appealed by the Sami villages on 15 March 1996. Following numerous submissions from the parties, decisions on procedural issues and the withdrawal of some landowners from the case, the court of appeal (Hovrätten över Nedre Norrland) upheld the district court’s judgement on 15 February 2002. The applicants on 19 March 2002 appealed to the Supreme Court (Högsta Domstolen) which, however, on 29 April 2004 refused leave of appeal.
2. Proceedings Before the ECtHR
On 29 October 2004 four Sami villages submitted an application under Art. 34 ECHR (Individual Applications) requesting the ECtHR to declare that (I) the limitations regarding the Sami villages’ rights to winter grazing following from the domestic procedures did not meet the requirement in Art. 1 Protocol No. 1 ECHR that no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law; (II) that the limitations were not proportionate to the aim sought (hence in violation of Art. 1 Protocol No. 1 ECHR); (III) that the costs of the procedure effectively prevents the villages from protecting their rights through court procedures (i.e. a violation of Art. 6 ECHR); (IV) and that the time of the procedures before the national judiciary was unreasonable and in violation of Art. 6(1) ECHR.
The ECtHR issued its decision on the admissibility of the application on 17 February 2009, holding it admissible only with regard to the claim of lack of access to court, given the high costs and the unreasonable length of the proceedings.
2. a. The Substantive Issue – Is the Right to Reindeer Grazing a Protected Property/Possession?
Although the question if the right to reindeer grazing is a protected property was not subject of the present judgment, as it was considered inadmissible, it is of some importance, for the understanding of the case as a whole, to touch upon some of the legal arguments in this regard. The applicants alleged a violation of the right to property/possessions, as protected under Art. 1 Protocol No. 1. The Court thus firstly had to determine if there was a “possession” in the sense of Art. 1 Protocol No. 1, which could be either in the form of an “existing possession” or assets, including claims, in respect of which the applicant has a legitimate expectation of obtaining effective enjoyment of a property right.
(I) According to Section 3 Reindeer Husbandry Act the winter grazing may be carried out in areas outside the reindeer grazing mountains, which is the core area of the Sami, if since time immemorial such reindeer grazing has occurred during certain times of the year. Whether or not this right exists has to be determined by the courts on the basis of evidence of prescription of time immemorial. This implies that the interest of the Sami villages is only in the form of a claim, not as an “existing possession”. (II) Whether or not the applicants had a legitimate expectation with regard to obtaining an asset in the form of winter grazing rights is according to the case-law of the ECtHR determined by if the right has sufficient basis in national law; for example where national courts have confirmed or rejected it in their case-law. A look at such case law of the Swedish courts reveals that the existence of any right to reindeer husbandry has always been made dependent on sufficient evidence provided by the applicants in support of a right based on time immemorial. In the present case the ECtHR did not find any reason to criticize the assessment made in this regard by the Swedish District Court or the Court of Appeal. The Court thus merely acknowledges the system established by the Reindeer Husbandry Act and states that only in very exceptional cases, namely where an appearance of arbitrariness in the national courts’ determination of the applicants’ claim is revealed, can the Strasbourg Court provide a remedy for violations of a right.
With these findings the ECtHR put the Sami villages in a difficult situation: it had been confirmed that the national courts must make a decision in every individual case based on evidence presented. The villages had not reached, however, that the situation for the Sami under the Swedish legislation (the Reindeer Husbandry Act), was criticized as being too burdensome for the Sami, in particular as regards their obligation to prove prescription of time immemorial. The only remaining way to criticize this issue in the continuing proceedings was to stress the violation of Art. 6 ECHR due to the length of proceedings and high costs that were a necessary outcome of the Reindeer Husbandry Act and the burden of proof on the villages.
2. b. Violation of Art. 6 ECHR with Regard to Effective Access to Court
With regard to the claim that the high procedural costs barred the applicants from presenting their case effectively, inter alia because the applicants as legal entities did not qualify for legal aid under the Legal Aid Act, the Court held that Art. 6(1) ECHR shall guarantee practical and effective rights but that States have a free choice of the means to guarantee litigants that right. This choice may e.g. include the institution of legal aid schemes or the simplification of applicable court procedures. The need to provide (financial) support is reliant on the importance of what is at stake for the applicants, the complexity of the applicable law, and the applicants’ capacity to represent themselves effectively. The court found that the issue to be determined was of considerable importance for the applicants and that the case as a whole was of a complex nature. Yet the ECtHR also concluded that the applicants’ conduct of their defense did not indicate that they were unable to present their case properly (they had legal counsel throughout the proceedings in the national courts, were able to present large amounts of material in support of their claims etc.); hence there was not considered to be any inequality of arms involving a violation of Art. 6(1) ECHR.
2. c. Violation of Art. 6 ECHR in Regard to the Length of Proceedings
As concerns the length of the proceedings, possibly constituting a violation of Art. 6 ECHR, the ECtHR stated that the reasonableness of the duration must be determined in the individual case with regard to (I) the complexity of the case, (II) the conduct of the applicants and relevant authorities, and (III) what was at stake for the applicants. The case at hand was deemed to be of great complexity but the ECtHR considered that the overall duration of the proceedings – 13 years and 7 months – were not sufficiently expeditious. Especially there were unnecessary delays which ultimately lead to the proceedings being excessive and hence in violation of Art. 6(1) ECHR.
2. d. Just Satisfaction under Art. 41 ECHR
All four Sami villages were awarded a joint sum of 14,000 EUR for non-pecuniary damage; no compensation was awarded to individual Sami for distress (the prolonged proceedings and the high costs were claimed to have lead to emotional distress and suicides). By way of costs and expenses (cf. Art. 41 ECHR) the Court awarded the applicants satisfaction with a joint sum of 15,000 EUR, corresponding to the costs that were actually and necessarily caused in relation to the excessive length of the national proceedings, which were mainly caused by the Supreme Court.
Notwithstanding the recognized violation of Art. 6(1) ECHR due to the excessive length of proceedings before the Swedish courts, the judgment is only a minor victory for the Sami villages. The applicants had hoped that, despite the decision on inadmissibility from February 2009, the adverse situation of the Sami in Sweden would have been highlighted again by showing that the Sami had an excessive burden of proof to satisfy the requirement of prescription from time immemorial. Indeed the decision did go against the applicants in the sense that the ECtHR determined that there was no inequality of arms vis-à-vis the landowners under the Reindeer Husbandry Act; at least no inequality amounting to a violation of Art. 6(1) ECHR. Hence the Sami villages, in order to have their right to use winter grazing areas acknowledged, have to continue to provide extensive evidence in support of an area having traditionally been used for winter grazing.
Another auxiliary concern that is underlined with the judgement in this case is the precarious economic situation of the Sami villages. According to the Reindeer Husbandry Act the Sami villages are prohibited from exercising any other economic business than reindeer husbandry. Although this does not prevent individual Sami from running businesses, it nevertheless makes it difficult for the villages, as those with the interest in the land rights, to initiate any legal proceedings against a large number of land owners. This financial inequality between the parties should have been highlighted more by the ECtHR: whereas surely the ECtHR considered that the villages had legal counsel throughout the proceedings in the national courts and were able to present large amounts of material in support of their claims, it should e.g. have been recognized that the length of proceedings was also caused by the difficulty of the villages to produce the necessary evidence. Furthermore, a large number of legal proceedings against Sami villages in the past years (not only in Sweden but also in Norway and Finland) have contributed to a very insecure financial situation of the Sami.
The case must be seen in light of the fact that Sweden has not yet ratified the ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries. And there are “good” reasons for Sweden’s inaction: Art. 14 of the Convention would not only demand Sweden to recognize “[t]he rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy” but demand positive action from the Government in the sense that it
“shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.”
In other words, the Convention would take away the burden of proof from the Sami and instead put it on the Government. Moreover, the UN Committee on the Elimination of Racial Discrimination (CERD) reiterated in its 2008 concluding observations regarding the periodic report of Sweden under the International Convention on the Elimination of All Forms of Racial Discrimination
“its concern regarding … land disputes [and the] de facto discrimination against the Sami in legal disputes, as the burden of proof for land ownership rests exclusively with the Sami, and about the lack of legal aid provided to Sami villages as litigants.”
The CERD recommended that Sweden grant necessary legal aid to Sami villages in court disputes concerning land and grazing rights and invited Sweden to introduce legislation providing for a shared burden of proof in cases regarding Sami land and grazing rights. Judge Ziemle from Latvia, in her partly dissenting opinion in the case before the ECtHR also underlined this and stated that although the substantive issue of the Sami’s property rights was not part of the present case – as the case had been declared inadmissible on this question – and although the ECtHR did not have to rule on a claim of discrimination, the Court should nevertheless have seen the de facto discrimination as the main reason behind the ineffective access to court.
According to the legal counsel of the Sami villages, the applicants will seek a referral of the case to the Grand Chamber pursuant to Art. 43 ECHR. Especially the counsel representing the villages wants to get the Grand Chamber to review the question that was declared inadmissible by the Chamber in its decision of February 2009 (the violation of right to property), something that will be difficult, or to at least have the Grand Chamber discuss the question of the insufficient wording of the Swedish legislation, the Reindeer Husbandry Act, under the heading of access to court (i.e. length of the procedure) or the costs of the proceedings. The reason is to be found in the current negotiations between the Sami villages and the private land owners (and the Government) on their right to let their reindeers graze on larger areas. The Government on its part has stated that it is not interested in referring the case to the Grand Chamber. However, the Government is under increased pressure to solve the disputes between itself and private landowners on the one side and Sami villages on the other. Only some weeks ago Sweden was criticized for its relations with the Sami in the Universal Periodic Review conducted by the Working Group of the Human Rights Council. The main suggestion to remedy the situation was to adopt the ILO Convention No. 169 and to amend the Reindeer Husbandry Act.
 Handölsdalen Sami Village and Others v. Sweden, Application No. 39013/04, Judgment of 30 March 2010 (hereinafter: Handölsdalen Judgement), available at <http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=39013/04&sessionid=52273189&skin=hudoc-en>.
 The Sami are an indigenous people of northern Europe inhabiting Sápmi, which today encompasses parts of northern Sweden, Norway, Finland and the Kola Peninsula of Russia but also in the border area between south and middle Sweden.
 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11, Paris, 20 March 1952, available at <http://conventions.coe.int/Treaty/en/Treaties/Html/009.htm>. Art. 1 Protocol No. 1:
Article 1 – Protection of property
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.
 The latest and current one being the Rennäringslag, SFS 1971:437 (Reindeer Husbandry Act).
 Article 27
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.
 Cf. B. Bengtsson, Samerätt – En översikt, at 79 (2004).
 Cf. above note 3.
 Decision as to the Admissibility of Application No. 39013/04, Handölsdalens Sami Village and Others v. Sweden, 17 February 2009 (hereinafter: Decision as to the Admissibility), available at <http://www.ere.se/doc/ptbeslut.pdf>. The Court here referred to its judgement in Kopecký v. Slovakia [GC], Application No. 44912/98, ECHR 2004-IX, para. 35.
 Decision as to the Admissibility, para. 50.
 Besides Kopecký v. Slovakia [GC] the ECtHR referred to Eskelinen and Others v. Finland [GC], Application No. 63235/00, 19 April 2007, para. 94.
 Decision as to the Admissibility, para. 54 in fine.
 On the limited power of the ECtHR to deal with alleged errors of fact or law committed by the national courts, see García Ruiz v. Spain [GC], Application No. 30544/96, ECHR 1999-I, para. 28.
 Rättshjälpslag, SFS 1972:429 (Legal Aid Act). Pursuant to Section 6 only physical persons may be eligible for aid under the legal aid act.
 Handölsdalen Judgement, para. 51.
 Id. para. 54. Referring inter alia to the fact that winter grazing on the land of 571 landowners was at question.
 Id. para. 55. Referring inter alia to the analysis of reindeer husbandry over several centuries and the need gfor the applicants to show that the right to winter grazing was unchallenged for 90 years.
 Id. para. 57.
 Id. para. 59 in fine.
 The ECHR here referred to its judgement in Frydlander v. France [GC], Application No. 30979/96, ECHR 2000-VII, para. 43.
 E.g. it took the Supreme Court one year and two and a half months to refuse the applicants leave to appeal in regard to the procedural questions and two years to refuse leave to appeal based on the substance of the case. Cf. Handölsdalen Judgement, para. 65.
 Handölsdalen Judgement, para. 66.
 This is based on the earlier case-law of the ECHR in the case T.P. and K.M. v. the United Kingdom [GC] (Application No. 28945/95, 10 May 2001, para. 120) according to which only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable was to the quantum are recoverable under Art. 41 ECHR.
 §9(3) Rennäringslag, SFS 1971:437
 Convention concerning Indigenous and Tribal Peoples in Independent Countries (adopted 27 June 1989, entered into force 5 September 1991) (1989) 28 ILM 1382.
 International Convention on the Elimination of all Forms of Racial Discrimination (opened for signature 7 March 1966, entered into force 4 January 1969) 660 UNTS 195.
 Consideration of Reports Submitted by States Parties Under Article 9 of the Convention, Concluding observations of the Committee on the Elimination of Racial Discrimination: Sweden (23 September 2008) UN Doc CERD/C/SWE/CO/18, paras. 18-19.
 The CERD also encouraged Sweden to consider other means of settling land disputes, such as mediation; UN Doc CERD/C/SWE/CO/18, para. 20.
 Lawyer Jan Södergren, Stockholm, who has specialized in EU law and the ECHR.
 Draft report of the Working Group on the Universal Periodic Review, Sweden, Human Rights Council Working Group on the Universal Periodic Review, Eighth Session, Geneva, 3-14 May 2010, submitted 14 May 2010, UN Doc. A/HRC/WG.6/8/L.10, hereinafter: Draft report, available at <http://lib.ohchr.org/HRBodies/UPR/Documents/Session8/SE/A_HRC_WG.6_8_L.10_Sweden.pdf>.
I don’t see how privately-owned land can be forced for use by the public without somehow at least compensating the land owner.