Porlakur Orn BERGSSON and Others v Iceland - 46461/06 [2008] ECHR 1174 (23 September 2008)

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The European Court of Human Rights (Fourth Section), sitting on 23 September 2008 as a Chamber composed of:

The applicants are Mr Þorlákur Örn Bergsson (born in 1952), Mr Guðjón Bergsson (1939), Mrs Anna Sigríður Jóhannsdóttir (1949) of Hverhamri, Mr Knútur Bruun (1935), Mrs Ásdis Gunnarsdóttir (1944), Mr Sigurður Magnússon (1948), Mr Sigríður Stefánsdóttir (1916), Mr Sigurjón Gunnarsson (1943) and Mr Gunnar Sigurjónsson (1966). They are the respective owners of estates described as Hof, Hof I and II and of Litla-Hof, located in Öræfum, and of Hverhamri in Hveragerði. They claim to be the owners of an estate named Fjall, which is the subject of their application under the Convention.

A further applicant is Kvísker ehf. (Ltd.0, a private limited-liability company, incorporated under the laws of Iceland, registered at Kvisker, in Öræfum, and whose executive director is Mr Gisli Sigurjón Jónsson (1955), Öræfum. The applicant company's complaints under the Convention relate to its claim to be the owner of ½ of an estate named Breiðamörk.

The applicants are represented by Mr Ragnar Aðalsteinsson and Mr Ólafur Björnsson, who are both lawyers practising in Selfoss.

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 1 July 1998 a new Act (no. 58/1998) on public lands and the determination of the boundaries of private land, public land and upland ranges (hereinafter referred to as the “1998 Act”), entered into force. Prior to this all land that had not been subject to private ownership was regarded as res nullius. The purpose of the 1998 Act was to change this. Thus, its section 2 provided that the Icelandic State was the sole owner of any land which was not the private property of any natural or legal person. Moreover, a Wasteland Commission (Óbyggðanefnd) was established (section 6), vested with powers to determine the boundaries between land that was regarded as the private property of a natural or legal person and land that was not therefore in the property of the State. In the latter event the Commission would also rule on whether a natural or legal person had any rights of use in respect of the land in question.

On 13 July 2000 the Wasteland Commission announced its intention to examine a certain area within the commune of Hornafjörður. Subsequently the Minister of Finance published the claims of the Icelandic State to all land that the Minister of Finance regarded as not being private property owned by any natural or legal person.

In the proceedings before the Wasteland Commission, the applicants claimed that they were the legal owners of the disputed land, arguing:

(i) that the disputed land was their property and was protected by Article 72 of the Icelandic Constitution and Article 1 of Protocol No. 1 to the Convention;

(ii) that the disputed land had been the private property of individuals since the settlement of Iceland in the 9th and 10th centuries and therefore the conditions of section 2 of the 1998 Act had not been fulfilled;

(iii) that their ownership, or the ownership of former owners, had never been challenged by the Icelandic State or others. On the contrary, before the entry into force of the 1998 Act, the Icelandic State had on several occasions treated the applicants and former owners of the disputed land as being the private owners of the land in question; in particular they had paid taxes in respect of their properties and they held written title deeds for the properties which had been acknowledged by the Icelandic State;

(iv) that they and the former owners of the land had for many centuries made use of the disputed land by all feasible means at any given time, e.g. herding sheep out on to the disputed land to graze.

In the alternative, the applicants relied on adverse possession as a means of establishing their ownership.

In the further alternative the applicants called for a declaratory decision to the effect that they owned the grazing rights to the disputed land.

On 14 November 2003 the Wasteland Commission found in favour of the applicants and held that the boundaries of public lands and private lands in the region should follow the edge of the glacier Vatnajökull in its state on the entry into force of the 1998 Act and that all land above this limit should be considered as public land and all land below as private land.

Subsequently, the Icelandic State, appealed against the Wasteland Commission's decision to the District Court of Austurland (Héraðsdómur Austurlands), claiming that the disputed land should be regarded as State property in accordance with section 2 of the 1998 Act.

In a judgment of 26 July 2005, the District Court upheld the Wasteland Commission's decision. Although it did not find it established that the applicants held direct title to the land at issue, the District Court was satisfied that they had fulfilled the conditions for adverse possession in respect of the land (section 2 of the Act No. 46/1905 on Adverse Possession).

The Icelandic State appealed against the District Court's judgment to the Supreme Court, which by a judgment of 11 May 2006 overturned the District Court's finding that the applicants had acquired ownership of the land in question by way of adverse possession, but held that they possessed the right to customary use of grazing land in the disputed areas (section 5 of the 1998 Act).

In its examination of the case, the Supreme Court relied on its earlier case-law expounded in a judgment of 21 October 2004 (case No. 48/2004). According to that judgment, it was not in the power of land owners to use a boundary deed to extend their land or other rights; a boundary deed was therefore not in itself sufficient but had to be supported by other evidence in order for ownership to be established.

Thus, in relation to one group of respondents before it (other than the applicants), the Supreme Court found that their title to a specific area of disputed land, in addition to being supported by a boundary deed from 1890, was corroborated by certain public acts. This included a deed of conveyance, issued by owners to the Minister for Education in 1966 in connection with the creation of a national park and the determination of boundaries for division of land by an arbitration tribunal in 1969, according to which a large part of the disputed land was allocated to the owners (and where the State, as a party, had not made objections to title). It also comprised a declaration of 1987 by the Council of Nature Conservation in connection with the establishment of a new farm in the area. The Supreme Court therefore upheld the District Court's finding that the respondents in question should be exempted from the State's claim in respect of the relevant land.

As regards the first nine applicants' claim regarding the farm Fjall, the Supreme Court extensively considered a number of sources, notably accounts in the Book of Settlements (Landnámabók - old Icelandic manuscript describing in detail the settlement of Iceland by the Norse in the 9th and 10th centuries A.D), chartularies of Klemens Church at Hof from 1343 and 1570; entries made in 1641, 1706 and 1748 in episcopal visitations books; the Farm Register of a Mr Ísleifur Einarsson of 1709, Farm Register Jarðatal á Íslandi by a Mr Jón Johnsen, published in 1847; the book of records of the land assessors in the Skaftafell counties dating from 1849; an official declaration of title by the owners of Hof dated 7 April 1851, the protest by the owners of the farm Fell in Suðursveit and the ensuing settlement of 8 June 1854 between the owners of Hof and Fell respectively.

The Supreme Court also took note of the records of the Real Estate Assessment Committee in Austur Skaftafellssýsla from 1916 stating the following about Hof:

“The farm owns grazing land [Upprekstrarland]: Breiðamerkurfjall, which is far away, rising up from central Breiðamerkursandur, surrounded by glacier. ... “The farm owns driftage shores: The shores of Hof and Tangi, and in addition the shore of Fjall below Breiðamerkursandur.”

In addition, the Supreme Court had regard to a boundary deed of 1922 and reasoned as follows:

“A boundary deed was then prepared for Hof on 15 July 1922, which stated, inter alia, the following: 'Furthermore the farm owns all of Breiðamerkurfjall and land on the Breiðármörk Sand, in the west the boundaries are as follows: The top of the peak Miðaftanstindur on Breiðamerkurfjall to bear on the cleft in Eiðnatindur on the same mountain.' It also says: 'The farm owns these shores: ... The shore of Fjall between these boundaries: In the west: The top of the peak Miðaftanstindur on Breiðamerkurfjall shall bear on the cleft in Eiðnatindur on the said mountain. In the east: The higher mound of Mávabyggðir shall bear east on Múlahöfuð which is foremost to the east on Breiðamerkurfjall and the land boundaries shall be the same.' This boundary deed was endorsed as regards 'the shore and boundary between Tvísker and the land of Fjall' by an Ari Hálfdánarson, who at that time appears to have been the head of the Parish of Hofshreppur, together with two men who are said to be 'the owners of 5/6 of Kvísker' and by the said Ari 'as regards the eastern boundary between the lands of Fjall and Breiðamörk.'

In the case there are no further earlier or more recent officially registered sources of evidence concerning title to this land other than the last-mentioned boundary deed for Hof dating from 1922. The value of such sources as evidence is discussed earlier in this judgment as regards the boundaries of private land with other land, and the same must apply to the value of boundary deeds as evidence of title to land. In assessing whether any other factors have emerged which could support the claim of the respondents in this part of the case to Fjall, it should be noted that in their pleadings before the court it was maintained that the church at Hof was from the beginning a farm-owned church and therefore subject to the custodianship of the landowners, but that its possessions accrued to the farm no later than 1916, when the church as such became the possession of the congregation. As this was not contested by the appellant, equal account must be taken of the cited sources concerning the ownership rights of the Hof Church and the owners of the farm in the land of Fjall.

When the sources concerning the ownership rights to this land are considered it can be assumed from the cited chartularies for the Hof Church from the years 1343 and 1387 that it came into the possession of the farm of Fjall during this period and this may have occurred at about the time that the farm was abandoned, as surmised pursuant to the above. It can only be assumed from the phrasing of the earlier chartulary that direct ownership of the farm was involved. After the writing of this chartulary, however, almost two centuries passed until the next available source of evidence, Gíslamáldagi, was written. It includes no reference to the ownership by the church at Hof of the farm of Fjall, but it is specified that the church owned driftage and other easements from ancient times. The cited phrasing in the visitation book of Bishop Brynjólfur Sveinsson dating from 1641 can only be understood to mean that it is discussing only the easements of Hofskirkja in the land of Fjall, which, more specifically, included the littoral rights, together with grazing rights in Fjallsfit [the Fjall meadow] and Breiðamerkurfjall. The two later visitations, dating from 1706 and 1748, cite the earliest visitation record to the effect that Hofskirkja 'owns' Fjallsfit and Breiðamerkurfjall, in addition to littoral rights. In light of the fact that these are based on the substance of the earliest visitation record, which in this context referred to easements, it cannot be maintained that the later sources provide independent support for the direct ownership rights of the Church at Hof. In this context it must also be kept in mind that the rights are said to concern two delimited parts of the land together with the shore, not the land as a whole, as would have been most logical if the farm as such had been considered the property of the church. The same applies to the discussion of the abandoned farm of Fjall in the Farm Register of 1709, although it says that 'its entire property' accrued to the church at Hof, but that of this property only Breiðamerkurfjall remained, surrounded by glacier and of little use, together with Fjallsfit and Fjallsfjara [the Fjall meadow and shore]. The Farm Register also says of the farm Hof, that to it was attributed 'Fjall and Fjallsfit in the land of Breiðármörk', together with Fjallsfjara [the Fjall shore], but from the context it can only be surmised that 'fjall' [mountain] in that context referred to the mountain Breiðamerkurfjall. The Farm Register dating from 1847 referred to the fact that a Farm Register dating from 1805 referred to Fjall as 'an abandoned smallholding' of Hof. This account can hardly have any significant value as evidence when it is kept in mind that it is clear from the Farm Register of 1709 that houses and cultivated land at Fjall had at that time already disappeared and that use of other land was virtually non-existent, and from the available information it can only be surmised that the glacier advanced still further after that down to the end of the 19th century. When the owners of Hof publicly declared their rights of title in 1851, their rights to the land of Fjall were entered among easements, but their agreement with the owners of Fell in 1854 said that the former should 'enjoy the full use' of that land 'as far west as they trust themselves to stake a claim'. These last cited words are not consistent with the assumption that the discussion concerns the use of land which is subject to the direct ownership of the owners of Hof. Finally, it should be noted that in 1890, the boundary deed for Kvísker was endorsed for the owners of Hof as regards the approval of littoral boundaries, but not the boundaries of Kvísker and Fjall, and that a real estate assessment in 1916 refers only to the grazing rights [uppresktrarrétt]of Hof on Breiðamerkurfjall and the littoral rights to Fjallsfjara, as in the land assessment of 1849.

Even though it can be regarded as adequately demonstrated that the farm Fjall came into the possession of the church at Hof during the period between 1343 and 1387, there is in general principle no firm evidence of anything other than easements belonging to the church or the owners of Hof after that time until a boundary deed was prepared for Hof in 1922. The possibility cannot be excluded that in the period from 1387 to 1570 the church may have divested itself of the farm Fjall while retaining littoral and grazing rights. Whatever the case may be, sources dating from about 1570 down to the third decade of the last century can only be understood to mean that the owners of Hof themselves, for a number of centuries, considered themselves only to possess rights of use to the land of Fjall and ceased to assume direct ownership of the land and thereby relinquished it, if indeed the ownership was not disposed of in another manner. For this reason, the boundary deed of 15 July 1922 cannot be said to provide sound evidence of the direct title of the respondents in this part of the case to the land in question. There is no evidence to support the contention that these respondents had any possession of the land of Fjall which could result in their direct title through adverse possession. Since no other parties have made any claim to such rights to the land, and nothing in the documents of the case gives any indication that any such claim could be made by anyone, it must be assumed that pursuant to section 1 of Act No. 58/1998 the land is public land subject, however, to the customary grazing and littoral use by the respondents of the land in accordance with section 5 of the same Act. As regards the boundaries of the public land, this is laid down in the adjudication, but in light of the limited rights of use declared in favour of the respondents, there is no reason to specify its boundary with the public land on the glacier.”

As regards the tenth applicant's claim regarding half of the farm of Breiðamörk, the Supreme Court again extensively assessed the evidence before it, including a number of items, notably the Njáls saga (Icelandic epic from the 13th century) containing the earliest accounts of habitation at Breiðamörk, the Book of Settlements, chartularies of the church of Maríukirkja at Breiðá from 1343 and 1387. The Supreme Court further observed that one half of the farm had apparently accrued to the King, according to a judgment of the court of law, Lögrétta, in 1646. Regard was also had to a Farm Register of a Mr Ísleifur Einarsson of 1709, another Farm Register of 1805, a Farm Register of a Mr Jón Johnsen of 1847, records of the land assessors in the counties of Skaftafell dating from 1849; the above-mentioned public declaration made by owners of Hof on 7 April 1851 and the subsequent settlement of 8 June 1854, a deed of conveyance of 1670 and another such deed of 7 March 1857 issued on behalf of the owners of “Skálholt Church and lands by a Mr Vilhjálmur Finsen (who held the combined offices of Country and County Sherriff [Land- og bæjarfógeti]); and a deed of conveyance of 31 May 1891.

“Included in the case documents is a boundary record for the farm Fell, prepared by the aforementioned Eyjólfur on 1 May 1922, where boundaries and shore boundaries in the west were described as being located on a further specified parish boundary. These are the same boundaries as those referred to as the eastern boundary of the farm Breiðármörk. This boundary record was not endorsed as regards the boundaries with Breiðármörk. Also included in the case documents is a 'boundary record between Fell in the Parish of Borgarhöfn and Breiðamörk in the Parish of Hof', which is signed on 13 May 1922 by the heads of both parishes, Ari Hálfdanarson and Stefán Jónsson. In this record the boundary of land and shore between Fell and Breiðármörk is once again described in the same manner, and it is stated that the boundaries of the two parishes are also the same. This document is not endorsed by any other parties.

A deed of conveyance was issued on 26 February 1937 for half of Breiðármörk and half of the Breiðármörk shore, which includes the following passage: 'In that I, the undersigned, former commissioner Björgvin Vigfússon of Efri-Hvoll, have since 1910, without objection, collected rent from the land of half of Breiðamörk in the Parish of Hof in the County of Austur-Skaftafellssýsla, as it was in ancient times, as well as rent from half of the Breiðamörk shore, which is nine hundred [i.e. 1080] fathoms in length – from the tenant, Björn Pálsson at Kvísker, an agreement has been reached between myself and him last year that he should come into possession of this land, together with half of the shore of Breiðármörk with driftage rights, for the sum of 100 – one hundred – krónur.' The persons who appear to have derived their rights from Björn Pálsson issued on 20 June 2002 a deed of conveyance for the same property to the defendant Kvísker ehf.

According to the documents of the case, the cited boundary records dating from 1922 were officially registered, as well as the deeds of conveyance dating from 1937 and 2002, on which the defendant Kvísker ehf. bases its rights. From the ruling of the Wasteland Commission it can be inferred that the cited deed of conveyance to Eyjólfur Runólfsson for the shares of his cousins in the Breiðamerkur shore was officially registered with a proviso relating to title rights to the sold property. It can also be inferred that the descendants of Eyjólfur [Runólfsson] and the parties deriving their rights from him officially registered certain declarations concerning rights to the Breiðamörk shore, and to some extent the land of Breiðármörk, in the years from 1933 to 1997, but these documents were variously registered with a proviso concerning defects in rights of title or without such provisos. Evidence of this is not available in the case in other respects. The respondents in this part of the case, other than Kvísker ehf., as recounted earlier, apparently derive their rights from Eyjólfur Runólfsson. This has not been specifically contested by the appellant, even though there is no evidence in the case in support of this contention. The respondents have also submitted documents confirming that they are registered as the owners of the Breiðamörk shore in the Iceland Land Registry.

Looking at the evidence concerning the title to the land of Breiðármörk it is clear that the farm was for a long time a possession of the Church and that it was administered by the Bishop at Skálholt until it was sold in 1525. On that sale, a part of the littoral rights relating to major driftage was separated from the land and retained for the Episcopal See at Skálholt, while minor driftage remained attached to the farm. Before the farm was abandoned in 1698, half of it had become a possession of the king, while the other half was referred to as a farmers' holding. The share of the king is believed to have been sold in 1836, but there is no record of who might have come into possession of it. From the mid-19th century there are records that a half share of Breiðármörk was believed to be attached to Hof, and it appears to have been surmised that his part was previously the king's possession. A public declaration of title to Hof dating from 1851, however, referred to the right to Breiðármörk only in the enumeration of easements. In a settlement made in 1854 for the resolution of a dispute resulting from this declaration of title, the boundaries between the land of Breiðármörk and the farm Fell in Suðursveit were determined. Since the time of the conclusion of this settlement there is no evidence that the owners of Hof claimed title to the land or interests in the land. No evidence has been submitted in the case to indicate that the owners of Fell felt that by this settlement they came into possession of a part of Breiðármörk from the owners of Hof, and indeed later sources do not indicate that the former conducted themselves as if they were the owners of the land in part or in full. There is therefore no further evidence in the case concerning the fate of the half of the land which purportedly belonged to the king until the year 1836.

In 1857, the owners of Fell, the Reverend Þorsteinn Einarsson and Gísli Þorsteinsson purchased the major driftage rights from the Church at Skálholt. It must be assumed that Eyjólfur Runólfsson later, by contract with the descendants of Þorsteinn Einarsson and Gísli Þorsteinsson in the closing decade of the 19th century, came into possession of the major driftage rights, but there is no evidence that he thereby acquired any other rights to the land of Breiðármörk, as it is clear from the letter from Einar Gíslason of 31 March 1876 that the attempts of Gísli Þorsteinsson to purchase such rights several decades earlier had proved fruitless. The respondents in this part of the case, other than Kvísker ehf., derive their rights from Eyjólfur Runólfsson. Accordingly, they cannot claim the rights to the land of Breiðármörk other than a part of the Breiðamörk shore, and it appears to be undisputed in the case that this corresponds to a half share.

It then remains to be resolved what became of the rights to the half of Breiðármörk which apparently continued to be farmer-owned after the other half accrued to the king. Following the sale of the major driftage rights from the Church at Skálholt, where Vilhjálmur Finsen, Country and County Sherriff, had represented the seller, he recounted in the letter cited above to the Reverend Þorsteinn Einarsson of 6 September 1858 that he could not provide 'the least information' who could have owned half of the land against the king, then or later. As recounted earlier, it is specified in the land assessment of 1804-1805 that this half was owned by Gísli Halldórsson. From the cited letter from Einar Gíslason of 31 March 1876, it does not appear to have been regarded as certain that Gísli did not subsequently dispose of this share, but, on the other hand, it can be inferred from the letter that his descendants still believed themselves to own rights to the land, which were referred to as an easement. There is no further information as to who these descendants were. Björgvin Vigfússon, who issued the cited deed of conveyance to the owners of Kvísker on 26 February 1937 for half of the land of Breiðármörk and half of the shore of Breiðármörk, apparently was Einar Gíslason's son in law. There is no evidence available that Björgvin owned any rights to the sold property, nor that his wife, who was not involved in the contract, could in this respect have had any precedence over other descendants of Gísli Halldórsson. Accordingly, this proof of title, to which the defendant Kvísker ehf. traces its rights, is entirely untenable. For all of these reasons it cannot be seen that anyone can claim direct title to this half of the Breiðármörk, and there is no evidence to support the contention that the owners of Kvísker must be regarded as having had the control of it which could lead to such ownership by adverse possession. The appellant, on the other hand, has not protested that the defendant, Kvísker ehf., and the parties from whom Kvísker ehf. derives its right, have had the use of half of the Breiðamörk shoreline in addition to using the land of Breiðármörk for grazing for the time required to acquire ownership of these rights by adverse possession. It must therefore be assumed that the defendant owns such rights of use to the land, as there is no evidence that any other parties could have earned such rights.

According to the above, and with reference to Article 1 of Act No. 58/1998, the land of Breiðármörk is public land, but subject to the rights of the defendant Kvísker ehf. to its customary use of the land as grazing land and subject to the littoral rights of all the respondents, as provided in Article 5 of the same Act. As regards the delimitation of the public land, this is laid down in the adjudication, but in light of the limited rights of use declared for the respondents, there is no reason to specify its boundary with the public land on the glacier.”

Article 72 of the Constitution of the Republic of Iceland no. 33, 17 June 1944, as amended on 5 July 1995, stated:

“The right of private ownership shall be inviolate. No one may be obliged to surrender his property unless required by public interests. Such a measure shall be provided for by law, and full compensation shall be paid.

The right of foreign parties to own real property interests or shares in business enterprises in Iceland may be limited by law.”

2. Act on public lands and the determination of the boundaries of private land, public land and upland ranges no 58/1998 (the 1998 Act)

Private land: An area of land subject to the right of private ownership, to which the owner has all regular property rights within the limits imposed by the law at any time.

Public land: An area of land outside private lands, even though private individuals or legal persons may enjoy limited rights of ownership there.

Upland range: An area of land in an uninhabited area, which has generally been used as summer pasture for livestock.”

“In public lands, the Icelandic State is the owner of the land and of all entitlements and natural harvests from it that are not governed by property law.

The Prime Minister is responsible for matters involving public lands which are not assigned to other ministries by law.”

“Those who have utilised land within a public land area as pasture for livestock or had other traditional use of it which is attached to the ownership of upland ranges shall retain such rights in accordance with the provisions of law in that respect.”

a. To examine and rule on which land constitutes public lands, and where their boundaries with private lands lie.

b. To rule on the boundaries of any part of public land which is utilised as an upland range.

The 1919 Act (which replaced the Act on land boundaries etc. no. 5/1882), as amended by Act no. 92/1991, provided in relevant parts:

“The owner or administrator of a land shall prepare a clear record of boundaries to the best of his knowledge. The record shall specify easements and benefits on the land, as well as any attached easements and benefits in the land of others. This boundary description shall be presented to anyone owning or administering land adjacent to his land, as well as parties to the easements and benefits pursuant to the above. They shall enter their consent on the boundary record unless they consider it to be wrong, in which case it shall be stated if any of them refuses to grant his consent. Thereafter the boundary record shall be delivered to the head of the parish together with a registration and stamp tax. The head of the parish shall ascertain whether all the parties have entered their consent and note this in the record. The head of the parish shall promptly send the record to the Commissioner for official registration.

If a boundary record has been lawfully prepared and registered prior to the entry into force of this Act, the record need not be prepared again, provided that the boundaries then established were clear and undisputed.”

“Immediately on the entry into force of this Act, [Commissioners], in their respective districts, shall ascertain whether the boundary records there have been officially registered. If it is revealed that boundary records have not been officially registered, or the consent of any parties is missing on an officially recorded boundary record, the [Commissioner] shall invite the land owner, or his administrator, to prepare a boundary record within a specified time and have it officially registered pursuant to this Act.

Commissioners and heads of parishes shall monitor compliance with the provisions of this Act concerning the establishment of boundaries, boundary records and maintenance of boundaries. If a parish head becomes aware of any discrepancies in this regard he shall notify the Commissioner.

When a Commissioner receives notification pursuant to Paragraph 2, he shall summon the person or persons involved and instruct them to make amends. If it is revealed that there is a dispute concerning boundaries the Commissioner shall seek to achieve a reconciliation of the dispute. If the lands subject to uncertainty as regards boundaries are located on the borders of Commissioners' districts, or the boundaries lie through more than one district, the Minister of Justice shall decide which of them shall undertake the task.”

The applicants complained under Article 1 of Protocol No. 1 that as a result of the Supreme Court's judgment of 11 May 2006 they had been unjustifiably and without compensation deprived of their respective properties. They in addition relied on Article 14 of the Convention taken in conjunction with this provision and on Article 6 of the Convention.

The applicants complained that as a result of the Supreme Court's judgment of 11 May 2006 they had been prevented from peacefully enjoying their possessions, in violation of Article 1 of Protocol No. 1. This Article provides:

“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 applicants maintained that it had been undisputed that both the farm Fjall and the farm Breiðamörk had been claimed in ancient times and that thereby full private ownership of the farms had been established. All this land had been generally utilised to the extent feasible at any time. It was irrelevant whether use had been discontinued during certain periods as a result of encroachment by glaciers and glacial streams. Because of this it could be reasoned that in the late 19th century the potential for use of the farms consisted primarily of grazing as well as driftage and other littoral rights. All evidence concerning the ownership of the applicants' farms ought to be construed in this light.

The applicants pointed out that the concept of “possessions” in the first part of Article 1 had an autonomous meaning which was independent of the formal classification in domestic law. The Icelandic State had repeatedly treated the disputed land as private land belonging to the applicants and former owners of the farms of Hof and Breiðamörk, respectively.

As regards the farm Fjall, the first nine applicants pointed out that the Farm Register Jarðatal á Íslandi by Jón Johnsen, published in 1847, had stated that in the Farm Register of 1805 Fjall was mentioned as an abandoned smallholding from Hof. The records of the Real Estate Assessment Committee in Austur Skaftafellssýsla from 1916 had clearly referred to the farm Fjall. On the basis of this valuation, both former owners of the farm Fjall and the first nine applicants had paid their taxes. Furthermore, as stated above, the owners of Hof had asserted their title to Fjall by a public declaration of 1851; the registration had been made without any objection in this regard. The title of Hof to Fjall had then been reiterated in contracts with the owners of Fell in 1854, as recounted earlier.

As regards the one half of Breiðamörk claimed by the tenth applicant, the latter submitted that both the deeds of conveyance dating from 1937 and 2002 had been officially registered without objection.

In the light of the above text concerning the respective boundaries of the farm of Fjall and Breiðamörk, the applicants submitted that they had justifiable and legitimate expectations concerning their titles to the land in question, and that these expectations were based on a reasonably justified reliance on legal acts (e.g. the boundary deeds from 1922), which had a sound legal basis and which bore on their property rights. These expectations were protected by Article 1 of Protocol No. 1 (see Pine Valley Developments Ltd and Others v. Ireland, judgment of 29 November 1991, Series A no. 222, and Stretch v. the United Kingdom, no. 44277/98, 24 June 2003).

In addition the applicants argued that the respective written boundary deeds from 1922 for the relevant properties had been acknowledged by the Icelandic State and had never been questioned until the moment of their claim filed at the end of 2000 on the basis of the 1998 Act. Therefore, the applicants submitted that the circumstances of the case, considered as a whole, conferred on them titles to pecuniary interests which were protected by Article 1 of Protocol No. 1. In this regard the applicants prayed in aid the Court's judgments in Beyeler v. Italy [GC], no. 33202/96, ECHR 2000 I; Former King of Greece and Others v. Greece [GC], no. 25701/94, ECHR 2000 XII; and Papamichalopoulos and Others v. Greece, judgment of 24 June 1993, Series A no. 260 B.

The applicants emphasised that they and the former owners of the respective properties had for many centuries made use of the disputed land by all means they had regarded as feasible at any given time, e.g. herding sheep out on the disputed land to graze as well as the exercise of driftage and other littoral rights. No other farm had ever made any claim to this land.

In the alternative, the applicants relied on adverse possession as a means of establishing their ownership. They pointed out that in the region land had generally been claimed from the shoreline to the edges of the glacier as they existed at that time. In light of the fact that the disputed land had been occupied for so long, even in the absence of legal title, the period of possession required for adverse possession to be relied upon, both against the Icelandic State and against third parties, had certainly been completed by the time the 1998 Act came into force. On this point the applicants relied on Holy Monasteries (The) v. Greece, judgment of 9 December 1994, Series A no. 301 A.

In the light of the above considerations, the first nine and the tenth applicants submitted that the land at issue was their respective “possessions” within the meaning of Article 1 of Protocol No. 1.

The applicants further submitted that, as a result of the Supreme Court's judgment, they had been prevented from peacefully enjoying their possessions. This interference amounted to a “deprivation of possessions” within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1. This interference had not been justified.

The applicants argued that the interference failed to fulfil the requirement of lawfulness enshrined in that provision. The notes to the legislative bill that became the 1998 Act, which constituted the sole legal basis for the impugned interferences, had clearly indicated that it was not the intention of the legislature to deprive landowners of ownership rights acquired and enjoyed without protest for centuries by imposing on them the obligation to demonstrate an uninterrupted history of title since the Age of Settlement and imposing on them the burden of any doubt in this regard. Moreover, the 1998 Act lacked the essential requirement of a “law” in that it breached the requirements in Article 72 of the Constitution that a taking of property should be in the public interest and against the payment of full compensation.

Furthermore, the taking of their property did not pursue any national economic or social interest or benefit the community generally.

Nor did the interference strike a fair balance between any demands of the general interest of the community and the requirements of the protection of the applicants' fundamental rights. Apart from the fact that the respondent had failed to explain how the public interest had been served by the taking of their land, there had been a disproportionate interference with their peaceful enjoyment of their possessions.

From the outset the Court observes that, while the national Supreme Court was satisfied that the applicants by means of adverse possession had become entitled to use the pieces of land in question, it did not find it established that they had ever possessed direct title to the land. Moreover, since no other private party had made such claims to the disputed land, the latter fell to be considered as State property in accordance with the 1998 Act. The applicants' complaint under Article 1 of Protocol No. 1 essentially related to the refusal by the Supreme Court to recognise them as the owners of the disputed land.

Therefore, the Court must first determine whether Article 1 of Protocol No. 1 is applicable in the instant case. It reiterates that this provision protects “possessions”, which can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. It does not, however, guarantee the right to acquire property (see J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 61, ECHR 2007 ... Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004 IX). Where a proprietary interest is in the nature of a claim, the person in whom it is vested may be regarded as having a “legitimate expectation” if there is a sufficient basis for the interest in national law, for example where there is settled case-law of the domestic courts confirming its existence (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007 ...; and Kopecký, cited above, § 52). No legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant's submissions are subsequently rejected by the national courts (Anheuser-Busch Inc., cited above, ibidem; Kopecký, cited above, § 50).Where there is a dispute as to whether an applicant has a property interest which is eligible for protection under Article 1 of Protocol No. 1, the Court is required to determine the legal position of the applicant (see J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd, cited above, ibidem; Beyeler v. Italy [GC], no. 33202/96, § 99, ECHR 2000 I,).

The Court observes that the applicants' complaint related both to the terms of the 1998 Act and its application to their case by the Icelandic authorities, notably the Supreme Court.

As regards the first aspect, the Court observes that the Wasteland Commission set up under the Act was vested with powers to examine and determine which land constituted public land and to ascertain the boundaries of public land so determined with private land (section 7 of the 1998 Act). Unlike the position under the national legislation at issue in Holy Monasteries (The) v. Greece, judgment of 9 December 1994, Series A no. 301 A, pp. 32, § 58), the provisions of the 1998 Act that were applied in the present case contained no express or implicit presumption of ownership in favour of the Icelandic State to the disadvantage of private property owners. Nor had it been intended, which the applicants pointed out, that the 1998 Act should have the effect of transferring private land to the State (cf. ibidem, pp. 32-33, § 61).

As to the second aspect, the Supreme Court's application of the 1998 Act to the applicant's case, the Court notes that in its examination of the first nine and the tenth applicants' claims of ownership of respectively the farms of Fjall and Breiðamörk, the Supreme Court carried out a detailed and carefully reasoned review of a wide range of documentary evidence adduced before it. This included ancient sources going as far back as the Book of Settlement (9^th and 10^th centuries), several chartularies from the Middle Ages, specific entries made in farm registers from the 17^th, 18^th and the 19^th centuries, an official declaration of title from 1851 and a related settlement of dispute from 1854, various deeds of conveyance (from 1670, 1857, 1891, 1937 and 2002 in the case of Breiðamörk) as well as boundary deeds from 1922.

As to the latter, the Supreme Court followed its own case-law (judgment of 21 October 2004 in case no. 48/2004), according to which a boundary deed could not of itself suffice to prove direct title to a land since it was not for landowners to use this as an instrument for extending their land. It is to be noted that, with regard to the ownership claim in respect of other land made by another group of land owners, the Supreme Court did find that the boundary deed in question was supported by sufficient corroborative evidence to prove ownership. In contrast, it did not find this to be the case of the claims made by the applicants, considering that there was insufficient evidence of direct title to the land at issue and that there was no evidence to support their contention that they had exercised any possession or control of the land which could result in their acquiring a direct title through adverse possession.

The Court, for its part, finds no indication that the conclusions of the Supreme Court in the applicants' case - albeit different from those reached by the Wasteland Commission and the District Court on the issue of adverse possession - were arbitrary or contrary to the relevant provisions of national law (see Anheuser-Busch Inc., cited above, § 83; Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000 XII). Nor is it convinced by the applicants' argument, submitted in the context of their complaint under Article 14 of the Convention (see below), that they had been required to bear an excessive burden of proof.

Against this background, the Court is unable to accept that the applicants had a sufficiently established proprietary interest to which a “legitimate expectation” could be attached. It finds that, in relation to their claim of ownership of the land at issue, they did not have a “possession” within the meaning of the first sentence of Article 1 of Protocol No. 1. Therefore the guarantees of that provision do not apply to the present case (Kopecký, cited above, § 50).

It follows that the applicants' complaint under Article 1 of Protocol No. 1 must be rejected in accordance with Article 35 § 3 of the Convention as being incompatible, ratione materiae, with the provisions of the Convention (see Malhous, cited above).

B. Complaint under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1

The applicants further complained that the disputed national decision entailed discrimination in breach of Article 14 of the Convention taken together with Article 1 of Protocol No. 1. They argued that they were part of relatively small group of property owners in Iceland who shared their farm boundaries with public land or upland ranges. The 1998 Act and the subsequent claims of the Minister of Finance, on behalf of the Icelandic State, and then the interpretation of the 1998 Act by the Wasteland Commission and the Icelandic courts had imposed on them an excessive burden of proof, beyond that required of other property owners in Iceland. Despite the fact that the notes to the legislative bill that became the 1998 Act had clearly indicated that this was not the intention of the legislature, both the Wasteland Commission and the courts had imposed on the applicant the obligation to demonstrate an uninterrupted history of title since the Age of Settlement and the burden of removing any doubt in this regard. This particular distinction had no clear objective and reasonable justification and was discriminatory.

However, having regard to the material in its possession and to its findings above in relation to the complaint under Article 1 of Protocol No. 1 and even assuming that the disputed matters fell within the ambit of the latter, the Court finds that the complaint under this provision and Article 14 together does not disclose any appearance of a violation.

It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

The applicants further complained of a violation of Article 6 § 1 of the Convention, which in relevant parts read:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

The applicants maintained that the imposition on them of an excessive burden of proof requiring them, in practice, to demonstrate an uninterrupted history of title since the Age of Settlement was not only unrealistic but also failed to respect the principle of equality of arms. No such burden of proof had ever been placed on the respondent.

However, the Court, referring to its findings above, reiterates that no express or implicit presumption of ownership in favour of the Icelandic State to the disadvantage of private property owners was contained in the provisions of the 1998 Act that were applied in the instant case. Moreover, in its application of those provisions to the particular facts of the case, the Supreme Court thoroughly reviewed the documentary evidence adduced by the applicants. This examination included the question whether the relevant boundary deeds – a form of evidence which, according to its case-law, could not of itself prove direct title - were supported by sufficient corroborative evidence to prove ownership in this case. Unlike in another case concerning claims by a different group of land owners in respect of other land, the Supreme Court did not find sufficient corroborative evidence to prove title in the case at hand. Having regard to the circumstances of the case as a whole, the Court finds nothing to indicate that the Supreme Court transgressed the normal discretion enjoyed by national courts in assessing the admissibility and relevance of evidence in cases before them and making findings of facts (see, for example, Sara Lind Eggertsdóttir v. Iceland, no. 31930/04, § 44, ECHR 2007 ...; Eskelinen and Others v. Finland, [GC], no. 43803/98, § 31, ECHR 2006-). There is no appearance therefore of a breach of Article 6 fairness requirements.

It follows that this part too of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Porlakur Orn BERGSSON and Others v Iceland - 46461/06 [2008] ECHR 1174 (23 September 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1174.html Cite as: [2008] ECHR 1174