The chilling effect of 690, 000 euro

In the case of Handölsdalen Sami Village and Others v. Sweden the applicants argued that legal costs at a national level that amounted to 690, 000 euro were in breach of the right to access to court under Article 6.

The applicants were four Swedish Sami villages. The case concerned domestic proceedings about a disputed right of the Sami to use private land for winter grazing of their reindeer. Large numbers of landowners brought proceedings against villages, including the applicants, seeking to obtain a judgment forbidding them from using land without concluding a contract with the respective owner. The Sami villages contested the action. The District court found against the applicants. The court ordered the applicants to pay the landowners’ legal costs, amounting to approximately 400,000 euro. The applicants appealed. The court of appeal upheld the district court’s judgment and ordered the applicants to pay the landowners’ legal costs in the appeal proceedings, amounting to approximately 290,000 euro. The applicants appealed to the Supreme Court, which refused their leave to appeal.

In the proceeding before the Court in Strasbourg the applicants asserted that, given the high legal costs of the proceedings, they did not have an effective access to court. The applicants also stated that these costs can lead to bankruptcy of the villages.

The applicants lost the case in this part in Strasbourg. The Court did not find that the domestic courts had handled the issue of legal costs unreasonably. The applicant villages were legal entities with a certain number of members, therefore their situation was not comparable to that of an individual litigant. They had been represented by legal counsel throughout the proceedings and had made numerous submissions. There was no indication that they had been unable to present their case properly. The judgments at issue had been pronounced following adversarial proceedings in which the district court and the court of appeal had held lengthy oral hearings. The Court therefore concluded that there had been no violation of Article 6 §1 with regard to effective access to court.

I would like to discuss this case implicating Article 8. When the Court was called upon to decide on Gipsies’ caravan tradition in the case of Chapman and Others v. United Kingdom, the Court held that the applicant’s occupation of her caravan is an integral part of her ethnic identity as a Gypsy, reflecting the long tradition of that minority of following a travelling lifestyle, and as such is protected under Article 8 as part of her private life. This is the case even though, under the pressure of development and diverse policies or by their own choice, many Gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children. This resembles the Sami situation – according to The Reindeer Husbandry Act “[t]he reindeer herding right is a usufruct of economic value founded on prescription from time immemorial. 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“. Thus the reindeer herding tradition that is performed by Sami from time immemorial also could be considered part of their traditional lifestyle and protected under Article 8.

Does it make any difference to the costs awards? To my mind, yes! It makes a difference if the litigation in the current case was about human rights, because in that case the actions of the government are also under revision. An example can be found in a different jurisdiction – the Constitutional Court of South Africa made a landmark judgement deciding that private litigants who bring constitutional claims are given some measure of protection against exposure to adverse costs awards. In the case of Biowatch Trust v. Registrar Genetic Resources and Others a NGO filed a case against states’ agency and a private company concerning the right to access to information. In the judgments of the lower instances the NGO was ordered to pay the legal costs of the private company. The Constitutional Court reversed the judgment concerning the costs stating that no appropriate attention had been given to the fact that this was a constitutional matter in which the NGO was seeking to vindicate constitutional rights. Although the NGO and company were both private parties, the litigation was not about a dispute between them, but about the failure of state officials to meet their constitutional obligations.

Keeping that in mind and returning to the present case, it could be argued that the lack of clarity of the legislation has been the basis for the litigation between the landowners and villages, as the Court noted that the Reindeer Husbandry Act does not regulate which particular pieces of land may be used for winter grazing, but leaves it to the courts to determine disputes on the basis of the evidence presented (para.55). As a result, this extremely complex litigation started and continued for 13 years costing a fortune.

The Court should think about the arrangements of the legal costs at the national level when Convention rights are at stake, otherwise it can have a chilling effect on the protection of human rights. People who need to protect their rights but also foresee the complexity of the case can become reluctant due to the fear of legal costs.

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