Alatulkkila and Others v. Finland

Information Note on the Court’s case-law No. 77

July-August 2005

Alatulkkila and Others v. Finland - 33538/96

Judgment 28.7.2005 [Section III]

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Prohibition on the right to fish in water areas owned by the applicants but which ownership, the State argued, did not afford them the right to fish certain species: Article 6 § 1 applicable

Access to court

Scope of review of the Supreme Administrative Court in annulment proceedings concerning fishing prohibition imposed by Finnish-Swedish Frontier Rivers Commission: no violation

Article 1 of Protocol No. 1

Article 1 para. 2 of Protocol No. 1

Control of the use of property

Fishing prohibitions allegedly violating property rights: no violation

Facts: The applicants were owners of water areas, or fishermen, and also represented various fishing co-operatives or associations for joint ownership. In 1996 the Finnish-Swedish Frontier Rivers Commission prohibited inter alia all fishing of salmon and sea trout in specified water areas during the 1996 and 1997 seasons. The restrictions were based on a fishing regulation and subsequent instruments issued following the enactment of legislation incorporating the Finnish-Swedish Frontier Rivers Agreement which authorised the Frontier Rivers Commission to restrict fishing in order to preserve the species in question. Some of the applicants (professional fishermen fishing in a specific area) received compensation paid out of the supplementary State budget for 1996 with a view to covering economic losses which they suffered during the 1996 fishing season due to the restrictions.

In 1998 the Supreme Administrative Court dismissed a request lodged by, among others, the associations represented by some of the applicants, and whereby they sought to have the Frontier Rivers Commission's decision of 1996 annulled. The associations had argued that the decision was contrary to the Constitution and ordinary law (including Article 6 of the Convention and Article 1 of Protocol N° 1 as incorporated). Furthermore, the Commission had allegedly failed to hear the associations in a matter affecting the civil rights of individual owners of fishing waters as well as of fishermen affected by the restriction. In its decision the Supreme Administrative Court considered that all the applicants for annulment had been made aware of the plans to restrict the fishing in question and had had the opportunity to make known their opinions on the matter before the Frontier Rivers Commission had issued the restriction. The restriction had sought to strengthen fish stocks and thus ensure fishing opportunities in the future. The decision of the Frontier Rivers Commission could not be held to be contrary either to Article 6 of the European Convention or of the Constitution. In sum, the decision sought to be annulled had not been based on manifestly incorrect application of the law, nor had a procedural error occurred that might have fundamentally affected the decision.

Law – Applicability of Article 6 § 1: The Government had contested the applicability on the basis that the right to fish salmon and sea trout in the water areas owned by the applicants had belonged to the State independently of that ownership, on the basis of a restricted right in rem as a matter of public law. Hence domestic law did not recognise that the applicants had any “right” to fish those two species, although they did enjoy rights in respect of other types of fish. The Court noted that it had not been disputed that the applicants were owners of water areas and enjoyed rights to fish those waters. Neither had the Government disputed that the applicants had been fishing salmon and sea trout prior to the 1996 prohibition. It had not been asserted that the applicants had carried out fishing under lease granted by a state authority or under any express agreement or that they had made any payment to the state authorities in respect of any catches. Notwithstanding the restricted right in rem over salmon and sea trout vested in the State relied on by the Government, the applicants could claim to have exerted rights over the fishing stocks in general linked to their ownership of the waters that arguably gave rise to a “right” which was civil in nature. This view was reinforced by the fact that some of the applicants had received compensation for loss of income arising from their inability to continue to fish the species in question. Since the Frontier Rivers Commission's decisions had impinged on the previously exercised fishing rights of the applicants, a genuine and serious dispute had arisen over the existence and scope of the applicants' civil right to fish for certain species within their waters arose.

Compliance with Article 6 § 1:  In Posti and Rahko v. Finland (N° 27824/95, ECHR 2002‑VII) the Court had already had occasion to consider whether access to court concerning disputes about fishing rights had been provided. It had found that a claim for damages in tort would only succeed against the State if the applicants succeeded in showing that a representative of the executive branch had failed in his or her duty to take a measure or perform a task that could have reasonably been required in the light of the nature and purpose of the activity in question. No prospect of such a possibility existed where the impugned measures were undoubtedly based on statutory law. The same considerations applied in the present case.  Some of the applicants had nevertheless contested the decision of the Frontier Rivers Commission before the Supreme Administrative Court in the context of an application for annulment. While the examination of an annulment or reopening request will not generally satisfy the requirements of Article 6 § 1 where such is an extraordinary remedy with limited scope of review and not involving an examination of the merits, a certain respect had to be accorded to decisions taken by administrative authorities in particular in specialised areas of the law, such as planning which involved the exercise of discretion involving a multitude of local factors inherent in the choice and implementation of policies. Similar considerations arose in the field of environmental protection, where there were important conflicting considerations and interests and, as in this case, a wider international context in the form of a co-operation agreement with a neighbouring State. In the present case the Supreme Administrative Court had considered the lawfulness of the fishing prohibition and its conformity with the Constitution as well as Article 6 of the Convention. While Not expressly referring to Article 1 of Protocol N° 1, the reasoning had given attention to the fairness of the procedure, finding that the applicants had been given an adequate opportunity to put their objections to the Frontiers River Commission. The Supreme Administrative Court had also considered the necessity and proportionality of the prohibition in reaching the conclusion that it had been necessary for safeguarding fish stocks. It had not at any point declined jurisdiction in answering the applicants' points. Having regard to the context – the implementation of an international agreement geared to the general preservation of fishing stocks over an extensive area – the proceedings available before the Supreme Administrative Court had provided the applicants with effective access to court for review of their claims.

Conclusion: no violation (unanimously).

Article 1 of Protocol N° 1 in isolation: The applicants had enjoyed fishing rights linked to their ownership of the waters. The limitation of those rights through the decision of the Frontier Rivers Commission had amounted to a control of the use of their possessions. This interference with the applicants' property rights had been justified, being lawful and pursuing, by means proportionate to that aim, the legitimate and important general interest in protecting the fish stocks. Noting the margin of appreciation accorded to Contracting States in such matters, the Court had no reason to doubt that the state of fish stocks required conservation measures and that the timing and application of the measures had been geared to local conditions. Moreover, the interference had not completely extinguished the applicants' right to fish in the relevant waters. Professional fishermen, whose livelihood had been affected by the ban, had been able to apply for compensation and some of the applicants had made use of this. Insofar as compensation had not been available for loss of leisure or sporting possibilities, the national authorities had to enjoy a wide margin of appreciation in determining not only the necessity of the measure of control concerned but also the types of loss resulting from the measure for which compensation was to be made. It had not been unreasonable for the authorities to distinguish between losses linked to livelihood and the effects on enjoyment of property which had not been so connected. Accordingly, the control of use had been compatible with the requirements of Article 1 of Protocol N° 1.

Conclusion: no violation (unanimously).

Article 1 of Protocol N° 1 read in conjunction with Article 14 of the Convention: The complaint that the fishing prohibition had discriminated against the applicants in comparison with fishermen in adjacent waters fell within the ambit of Article 1 of Protocol N° 1. However, on the material submitted, the Court did not doubt that there had been sufficient justification for the different timing of restrictions applied in the various water areas as well as for differing prohibitions of fishing gear in particular locations, namely to take into account the spawning routes of the salmon and the more confined nature of coastal, estuary and river waters. To the extent therefore that the applicants had been treated differently from those with fishing rights in other areas, it could be regarded as having objective and reasonable justification. For the reasons given with regard to Article 1 of Protocol N° 1, the principle of proportionality had also been respected.

Conclusion: no violation (unanimously).

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This summary by the Registry does not bind the Court.

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