THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 33538/96
by Paavo ALATULKKILA and Others
against Finland
The European Court of Human Rights (Third Section), sitting on 27 March 2003 as a Chamber composed of
MrG. Ress, President,
MrL. Caflisch,
MrP. Kūris,
MrR. Türmen,
MrJ. Hedigan,
MrsH.S. Greve, judges,
MrE.-J. Taipale, ad hoc judge,
and Mr M. Villiger, Deputy Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 17 October 1996,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants are listed in the Annex. They are represented before the Court by Mr Veikko Hyvönen, professor emeritus in land and water law at the University of Helsinki and resident in Espoo. The respondent Government were represented by their Agent, Mr Holger Rotkirch, then Director-General for Legal Affairs in the Ministry for Foreign Affairs, and subsequently by Mr Arto Kosonen, Agent and Director in the same Ministry.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are owners of water areas, or fishermen, in the Gulf of Bothnia. They are also elected representatives of their respective local fishing co-operative (kalastuskunta, fiskelag) or association for joint ownership (jakokunta, osakaskunta; samfällighet, delägarlag).
By decision of 26 April 1996 and in application of the Fishing Regulation (kalastussääntö, fiskestadgan) for the Tornio River (Torniojoki) Area, the Finnish-Swedish Frontier Rivers Commission (suomalais-ruotsalainen rajajokikomissio, finsk-svenska gränsälvskommissionen) prohibited inter alia all fishing of salmon and salt-water trout in the relevant waters in the open sea during 1996 and 1997. Fishing other species in the relevant sea area with fixed equipment was prohibited during the periods 1 May-5 July 1996 and 1 May-5 July 1997.
The Commission further prohibited all fishing of salmon and salt-water trout in the river area, except for fishing with hand-held equipment which was authorised on certain days of the week during the period 1 May-15 August 1996 and 1 May-15 August 1997. With some minor exceptions, all fishing in the river area was prohibited during the periods 15 September-15 November 1996 and 15 September-15 November 1997.
The Commission’s decision was announced publicly on 29 April 1996.
The Fishing Regulation was issued following the enactment of Act no. 902/1971 incorporating the Finnish-Swedish Frontier Rivers Agreement (as far as Finland was concerned). A subsequent agreement to amend Annex B of the Agreement was incorporated into Finnish law by Decree no. 67/1987, entitling the Frontier Rivers Commission to decide on the protection of a particular fish species or on the prohibition or restriction of fishing with equipment which had proved harmful for the species either in the entire fishing area or in a specific part thereof, provided such a measure was deemed necessary for the preservation of the species in question for a maximum period of two years at a time (section 22, subsection 2 of the Regulation).
The applicants, as indicated at no. 10 in the annex, received FIM 14,183.75 (EUR 2,385.54) in 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 imposed by the Frontier Rivers Commission. The relevant Government decision (no. 328/1996) was applicable to professional fishermen fishing in the sea area adjacent to the Tornio river.
Meanwhile, on 13 June 1996 the Supreme Court of Sweden (högsta domstolen) dismissed charges concerning fishing in violation of the prohibition which the Frontier Rivers Commission had imposed on fishing with certain equipment The Supreme Court held that the Commission’s order issued by virtue of section 22, subsection 2 of the Fishing Regulation could not be applied, since the Agreement and the Regulation had not been brought into force and implemented as required by the Swedish Constitution, namely by an Act of Parliament (decision No. DB 118; NJA 1996 p. 370).
In the beginning of 1997 Finland and Sweden declared that certain provisions of the Fishing Regulation, including section 22, subsection 2 of the Regulation, should not be applied.
Thereafter Finland enacted the Act on Fishing in the Tornio River Fishing Area (494/1997) which entered into force on 5 June 1997. The Act entitles the Ministry of Agriculture and Forestry to issue rules concerning fishing on the Finnish side of the Tornio river. A decision to that effect (496/1997) entered into force at the same time as the Act. The decision was essentially identical to the Frontier Rivers Commission’s decision of 26 April 1996. In 1998 the Ministry issued a new decision (319/1998).
Meanwhile, on 5 August 1997 the Court of Appeal of Rovaniemi (Finland) found that the sections of the Fishing Regulation concerning prohibited fishing equipment and applicable sanctions fell within the scope of legislation. As Annex B (containing the Fishing Regulation) had been brought into force by a Decree, the Court of Appeal decided not to apply certain sections of the Regulation by virtue of section 92, subsection 2 of the Constitution Act of Finland (Suomen hallitusmuoto, Regeringsformen för Finland, 94/1919) which was in force at the material time (decisions nos. 625-628).
On 31 December 1998 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) dismissed a request lodged by, among others, the associations represented by applicants nos. 7-10 and whereby they sought to have the Frontier Rivers Commission’s decision 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 No. 1 as incorporated). Furthermore, the Commission had allegedly failed to hear the associations in a matter affecting the civil rights both of individual owners of fishing waters and of fishermen entitled to the continued enjoyment of the compensation in natura which had been awarded by the Water Court of Northern Finland in 1979.
In its submissions to the Supreme Administrative Court the Frontier Rivers Commission stated, inter alia, that it was hardly for an organ established by a bilateral agreement to examine whether the Fishing Regulation contravened the Finnish Constitution. The fishing restriction addressed in the annulment request had been imposed of the Rivers Commission’s own motion after it had afforded the known parties an opportunity to comment in writing on the fishing restrictions proposed by the Finnish and the Swedish expert whom the Rivers Commission was regularly consulting. According to the dispatching list, all those who had sought an annulment – except for the Laivaniemi association for joint ownership (one of the applicants stated at 9 in the Annex) – had been so consulted and had also commented on the proposal. The nature of the matter had not been such that an oral hearing could have been expected to further the examination thereof.
The Rivers Commission further opined that the prohibition in question had only concerned salmon and trout and had been consistent with the restriction imposed simultaneously in respect of the Swedish coastal waters. Moreover, as the Commission’s decision of 26 April 1996 was to be considered administrative in nature, the Fishing Agreement did not provide for any ordinary appeal against it, nor for any extraordinary remedy.
The Supreme Administrative Court also obtained opinions on the annulment request from the Ministry for Foreign Affairs and the Ministry for Agriculture and Forestry. The applicants commented on the aforementioned three opinions.
In its decision the Supreme Administrative Court noted that domestic law was applicable to matters arising under the Frontier Rivers Agreement, unless the treaty itself stipulated otherwise. This was not the case with respect to the prohibitions ordered by the Commission. According to section 116, subsections 2 and 3, of the Fishing Act (kalastuslaki, lag om fiske 286/1982), provisions restricting fishing within or outside the territorial waters of Finland could be given by Decree for the purpose of fulfilling obligations set out in an international agreement binding on Finland, for safeguarding fish stocks or for any other comparable special reason. The 1987 treaty amendment had therefore been lawfully incorporated into domestic law by virtue of Decree no. 667/1987.
The Supreme Administrative Court further noted that, on 12 April 1996, all of the associations seeking the annulment had been able to submit their written views on the fishing prohibitions under consideration in the Commission.
The Supreme Administrative Court recalled that according to the 1961 Water Act (vesilaki, vattenlag 264/1961), the receiver of a construction permit relating to a water area may, if the construction would clearly damage the fish stocks, be ordered to restock the area and take other necessary measures in order to safeguard the fish stocks in the affected waters (chapter 2, section 22, subsection 1). In the court’s opinion, however, such measures were not principally aimed at ensuring a certain quantity of catches but at safeguarding the future fish stocks in the affected waters. The Commission’s decision had sought to safeguard the future stocks of salmon and salt-water trout.
The Supreme Administrative Court concluded that the Commission’s decision had not been contrary to Article 6 of the Convention or sections 5 and 12 of the Constitution. The conditions for annulling the decision in pursuance of section 63 of the Act on Administrative Court Procedure (hallintolainkäyttölaki, förvaltningsprocesslag 586/1996) had therefore not been met.
Informal negotiations between Finland and Sweden on further amendments to the Agreement began in June 1999.
In a judgment of 6 April 2001 the Swedish Supreme Court ordered the State to compensate fishermen for economic losses suffered as a result of the fishing restrictions imposed in the Tornio river area on the basis of the Frontier Rivers Agreement at the time when it had been implemented by a Government Decree delegating to the Rivers Commission, without a basis in an Act of Parliament, the power to restrict fishing (case no. T 3310-00).
B.Relevant law and practice
According to the Constitution of 1919, as in force up to 1 March 2000, everyone was to be equal before the law and his or her property was to be protected (sections 5 and 6). A judge or other official was under an obligation not to apply a provision in a Decree which conflicted with constitutional or other laws of Parliament (section 92, subsection 2). The Convention has been incorporated into Finnish law by an Act of Parliament with the status of ordinary law (438/1990).
Under the 1919 Constitution anyone who had suffered an infringement of his rights, or damage, through an illegal act or negligence on the part of a civil servant, was entitled to demand that the civil servant be convicted and held liable for damages, or to report him for the purpose of having charges brought (section 93, subsection 2). A similar provision appears in section 118, subsection 3, of the Constitution of 2000 (Suomen perustuslaki, Finlands grundlag 731/1999). Chapter 2 (“Basic rights and liberties”) of the 1919 Constitution was amended by Act no. 969/1995 which entered into force on 1 August 1995. The new chapter 2 includes, inter alia, the right to property (section 12; as from 1 March 2000 section 15) and has been incorporated as such into the Constitution of 2000. Under the current Constitution a court of law shall give primacy to a provision therein, if the application of a provision of ordinary law would be in evident conflict with the Constitution. If a provision in a Decree or any other statute of lower rank than an Act of Parliament is in conflict with the Constitution or ordinary law, that provision shall not be applied by a court of law or any other public authority (sections 106-107).
According to the Water Act, the holder of a construction permit relating to a water area may, if the construction would clearly damage the fish stocks, be ordered to restock the area and take other necessary measures in order to safeguard the fish stocks in the affected waters (chapter 2, section 22, subsection 1).
A claim concerning a measure alleged to be in violation of the Water Act and whereby it is sought to have such a measure prohibited, the previous conditions re-established or damage compensated may be lodged with the competent water court (chapter 16, section 33, subsection 1).
The general right to fish in public water areas and within the Finnish fishing zone does not include the right to fish salmon and salt-water trout (see, for example, section 6, subsection 3, and section 12 of the Fishing Act). Restrictions on fishing with certain gear may be issued in the form of a decree (section 31). Restrictions on fishing within or outside the territorial waters of Finland may likewise be imposed by decree for the purpose of fulfilling obligations set in an international agreement binding on Finland, for safeguarding fish stocks or for any other comparable special reason. Domestic law shall apply to watercourses located in frontier areas, unless otherwise agreed on in an agreement between Finland and another state (section 116). Non-compliance with a fishing restriction may be subject to prosecution (sections 107-109).
A State Committee Report concerning fishing legislation (no. 1977:47) suggested, in 1977, that limited rights in rem be abolished. However, in the Government Bill for a new Fishing Act (no. 214/1980), it was suggested that these rights of the State be maintained as being relevant for the protection of the salmon stocks. The provisions concerning the State’s fishing waters and fishing rights can now be found in chapter 5 of the Fishing Decree (1116/1982).
In a judgment of 9 June 1982 (no. 33/1982) the Supreme Water Court (vesiylioikeus, vattenöverdomstolen) found that since time immemorial the owners of fishing waters in the Kemi river (Kemijoki) and its estuary had been engaged in fishing of salmon and salt-water trout without any State interference and with its de facto consent. Compensation for the loss of fishing benefits resulting from permitted construction should therefore be awarded to all individuals who had been engaged in such fishing in the area, provided they had been using legal fishing gear. The Supreme Water Court further found that the State too was entitled to compensation for the permanent loss of the use of its limited right in rem in respect of the fishing waters. In addition, compensation was awarded to the State for its loss of income from leasing out those waters.
The Supreme Court (korkein oikeus, högsta domstolen) found in its decision of 3 February 1983 (no. 1983 II 29) that the damage which a company had caused by setting up timber floating routes in the Simo river (Simojoki) had engendered effects on private owners of water areas, causing them losses which were to be compensated by virtue of the Water Act. The State, which traditionally had the right to fish salmon in the river, had not used that right for decades, either by leasing out its waters or in any other way.
By judgment of 7 September 1995 (no. 133/1995) the Supreme Water Court upheld a decision of the Water Court of Northern Finland of 14 April 1994 which had dismissed various fishery associations’ claims for compensation for the allegedly failed restocking of the estuary of the Kemi river as ordered on 28 December 1979. The Water Court had found that the defendants had complied with the obligations imposed on them in 1979 for the purpose of safeguarding the relevant fish stocks. In such circumstances the defendants could not be held responsible for the diminution in catches for which compensation had been sought.
In its precedent 2000:97 the Supreme Court examined an action for damages which a hydro-electric power company had brought against the State on the grounds that a contract between the two with a view to establishing three power plants along the Kyrö river (Kyrönjoki) could not be implemented in full, as Parliament had enacted legislation for the protection of the river (1139/1991). The company had sought compensation for wasted planning costs in so far as those had exceeded the amount paid out following the assessment procedure provided for in the Act on the Redemption of Immovable Property and Special Rights (603/1977). The Supreme Court declined to examine this part of the claim, as the costs to be compensated had already been finally determined in the procedure under the 1977 Act.
In so far as the company had claimed compensation for projected profit and related losses the Supreme Court dismissed the action after having examined its merits. The Supreme Court reasoned, inter alia, as follows:
“... The contract did not bind the legislative arm. Possible legislative changes and the possibility that no construction permit would be granted were specifically taken into account in the contract. The Government is therefore under no obligation to compensate for the economic losses suffered by the company due to the fact that the contract for the construction of the power plant was never implemented. The company is therefore not entitled to any compensation ... other than that stipulated in the [specific Act 1139/1991 on the protection of the river]. ...”
An account of domestic law can also be found in the Court’s judgment in Posti and Rahko v. Finland (no. 27824/95, §§ 18-30, 24 September 2002).
COMPLAINTS
1.The applicants complain that they were unable to have the Frontier Rivers Commission’s decision reviewed by a tribunal within the meaning of Article 6 § 1 of the Convention.
2.The applicants further complain that the fishing prohibitions imposed in the Frontier Rivers Commission’s decision violated their property rights under Article 1 of Protocol No. 1. The applicants were not sufficiently involved in the decision-making and the prohibition also discriminated against them in comparison with fishermen in adjacent waters.
THE LAW
A. The Government’s preliminary objections
1. “Victim” status
The Government note that the applicants indicated at no. 10 in the Annex received compensation out of a supplementary State budget with a view to covering losses caused by the restrictions imposed by the Frontier Rivers Commission. The compensation paid covered 85 per cent of the losses which they had indicated having suffered during the 1996 fishing season. As those applicants had received proper reparation they could not claim to be “victims” of a Convention violation within the meaning of Article 34.
In the applicants’ opinion the fact that the two applicants indicated in no. 10 of the Annex received compensation for some of their losses does not bar them from claiming to be “victims” for the purposes of Article 34. The compensation covered a maximum of 85 per cent of their losses during 1996, whereas their grievance under the Convention relates to an ongoing deprivation of their possessions. The amount which those two applicants received corresponded to about five per cent of their alleged accumulated loss over the relevant years. Moreover, compensation was payable only to certain professional fishermen and provided they met a number of conditions.
Under Article 34 of the Convention the Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.
The Court finds it undisputed that the compensation afforded to the applicants set out at no. 10 in the Annex did not cover the whole period during which the fishing restrictions were in force and did not amount to full compensation for their losses. In these circumstances the Court concludes that all applicants may claim status as “victims” for the purposes of Article 34 of the Convention.
2.Compliance with the six-month rule
The Government observe that the Frontier Rivers Commission’s decision was made on 26 April 1996 and announced publicly on 29 April 1996. The six-month period stipulated by Article 35 § 1 of the Convention commenced from the latter date. The applicants indicated at no. 11 in the annex joined the other applicants on 4 November 1996 and have therefore failed to comply with the six-month rule.
The applicants contend that all of them lodged their application within six months from the date when the Frontier Rivers Commission’s decision was rendered public (i.e. on 29 April 1996). The submissions subsequent to their application of 7 October 1996 were only of supplementary nature.
Under Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.
The Court notes that the application dated 7 October 1996 and received on 17 October 1996 was not lodged on behalf of the applicants set out in no. 11 of the Annex, nor was any reference made to those applicants in the text of the application. The Court notes that the applicants in question signed an authority form on 17 October 1996. Their representative’s letter stating their intention to join the other applicants and enclosing the said authority was nevertheless dated only on 4 November 1996 and received on 12 November 1996, which is more than six months after the Frontier Rivers Commission’s decision was rendered public. It has not been argued that those applicants were notified of the decision only subsequent to 29 April 1996.
It follows that, in so far as the application has been lodged by the applicants set out in no. 11 of the Annex, it has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
3.Exhaustion of domestic remedies
The Government further object that the applicants indicated at no. 10 in the Annex failed to appeal, in the last resort to the Supreme Administrative Court, even though they were allegedly of the view that the compensation awarded to them for the losses suffered in 1996 was insufficient. The applicants indicated at nos. 7-9 and 11 likewise failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention as they did not apply for any compensation at all, although as professional fishermen fishing in the sea area adjacent to the Tornio river they would have qualified for such compensation out of the 1996 supplementary budget.
The applicants contend that they had no adequate remedy at their disposal which they ought to have used in order to comply with the exhaustion requirement in Article 35 § 1. In its submissions to the Supreme Administrative Court the Frontier Rivers Commission explained that it had issued the 1996 fishing restriction of its own motion, regarding it as an administrative matter against which there was no appeal. The Commission further explained that its decisions were made on the basis of the Fishing Regulation applicable to the area, and that it was not required to examine the constitutionality of the provisions therein. The Commission moreover stated to the Supreme Administrative Court that the institution of extraordinary proceedings was also not possible in the matter.
The applicants underline that at any rate, under section 92 of the then Constitution, the Supreme Administrative Court was unable to review whether a law was in conflict with the Constitution or even with the Act incorporating the Convention.
As to the Government’s argument that all applicants should have sought compensation for their losses, they repeat their aforementioned arguments with respect to the “victim” question.
The Court has already rejected as belated the application as lodged by the applicants set out at no. 11 in the Annex. It notes that this preliminary objection concerns the availability of court remedies which the applicants claim would not have been effective in their specific circumstances. The Court joins this objection to the merits of the complaint under Article 6 § 1 of the Convention in so far as lodged by applicants nos. 1-10 (see below).
B.Merits
1. Article 6 § 1 of the Convention
The applicants have complained of being unable to have the Frontier Rivers Commission’s decision reviewed by a tribunal within the meaning of Article 6 § 1 of the Convention. This provision reads, in its relevant parts, as follows:
“In the determination of his civil rights ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ...”
The Government contest the applicability of Article 6 § 1. In light of section 12 of the Fishing Act, other legislation and various jurisprudence they argue that the prohibition and restrictions imposed by the Frontier Rivers Commission did not affect a “right” of the applicants within the meaning of Article 6 § 1. The right to fish salmon belongs primarily to the State. The right to fish salmon and salt-water trout in the coastal waters of the Gulf of Bothnia and in the rivers emptying into the Gulf of Bothnia is independent from the ownership of the water areas. No person has a subjective right to the fishing of those species. Private persons may be entitled to fish salmon and salt-water trout where, as an exception to the State’s limited right in rem, that right belongs to the owner of the sea-bed. The applicants do not, however, fall within that category.
Were the Court to have another view on the question of applicability, the Government consider the complaint manifestly ill-founded. The Convention has been incorporated into Finnish law by an Act of Parliament with the status of ordinary law. Even assuming that the Frontier Rivers Commission’s decision affected a “right” of the applicants within the meaning of Article 6 § 1, the applicants were properly heard in the annulment proceedings before the Supreme Administrative Court.
The applicants maintain that Article 6 § 1 is applicable. In conceding that the right to fish belongs to the owner of the waters the Government recognise that the applicants enjoy a “right” within the meaning of Article 6 § 1. The affected water areas are owned by the respective fishing co-operatives or associations for joint ownership which appear as co-applicants before the Court and to which the physical applicants belong.
In the applicants’ opinion the Government misrepresent domestic law in so far as it is purported to afford to the State a general right to fish salmon. On the contrary, this fishing right has always belonged to the owner or other lawful beneficiary of a water area, just like the right to fish any other species. It is true that pursuant to section 6, subsection 3, and section 12, of the Fishing Act the State enjoys a right to fish salmon in certain designated areas such as the Simo river, as confirmed by the Supreme Court in its decision of 3 February 1983 (see “Relevant domestic law”). Those areas – which are normally leased out to fishermen – are not at issue in the applicants’ case.
Domestic judgments have established the principle that where a claim is made that the right to fish exceptionally belongs to someone other than the owner of the water area, the burden is on that claimant to refute the general presumption that the right belongs to the owner. If the State makes such a claim, it too must produce convincing proof to that effect. The burden is therefore not on the applicants to prove that they possess a general right to fish in the waters affected by the fishing prohibition.
The applicants add that in its judgment of 17 August 1994 the Supreme Court confirmed the absence of any State-owned water area off the city of Tornio in the northern part of the Gulf of Bothnia (Perämeri) (judgment no. M 91/202). A judgment of the Land Court of Northern Finland of 14 May 1998 furthermore confirmed that the waters surrounding some State-owned islands within the aforementioned area belonged to the applicant association indicated at no. 7 in the Annex and not to the State. Finnish legal scholars likewise agree that the State has no general right, detached from the ownership of the water or subsoil, to fish salmon. The applicants finally refer to the records of the Land Registry which confirm their ownership of the relevant water areas.
Turning to the merits of this complaint and to the question whether the procedure before the Supreme Administrative Court satisfied the requirements of effective access to a court, the applicants contest the Government’s argument that they were properly heard in the annulment proceedings. In particular, the Supreme Administrative Court held no public hearing.
The Court considers, in the light of the parties’ submissions, that the complaint as lodged by the applicants set out in nos. 1-10 of the Annex raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2.Article 1 of Protocol No. 1, both in isolation and in conjunction with Article 14 of the Convention
The applicants have further complained that the fishing prohibitions imposed in the Frontier Rivers Commission’s decision violated their property rights under Article 1 of Protocol No. 1. The applicants were not sufficiently involved in the decision-making and the prohibition also discriminated against them in comparison with fishermen in adjacent waters. Article 1 of Protocol No. 1 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.”
The complaint also raises an issue under Article 14 of the Convention which provides as follows:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, origin, association with a national minority, property, birth or other status.”
The Government contest the applicability of this provision in the instant case. Neither the Convention nor any of its Protocols protects a right to obtain possessions, Article 1 of Protocol No. 1 being limited to enshrining the right of everyone to the peaceful enjoyment of already existing possessions. The applicants cannot even rely on any special grounds entitling them to fish salmon and salt-water trout, as an exception to the State’s limited right in rem. Moreover, as the Supreme Administrative Court noted, the objective of the Frontier Rivers Commission’s decision was to increase the fish stock and to ensure future fishing possibilities.
Even assuming that the restricted fishing right did form a part of the applicants’ “possessions” for the purposes of Article 1 of Protocol No. 1, the Government submit that the contested measures amounted to a control of the use of those possessions and the second paragraph of Article 1 would be applicable. That provision entitles the States to enact such laws as they deem necessary for the control of property in accordance with the general interest. Such laws are especially necessary for the protection of salmon and salt-water trout in the conditions at hand. In order to implement such protection, the legislature must have a wide margin of appreciation in determining whether the problem warrants measures of control and in choosing how to implement such measures. The Court has acknowledged that it will respect the legislature’s judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 32, § 46).
The Frontier Rivers Commission’s decision sought to safeguard the future stocks of salmon and salt-water trout. In the Government’s view the aforesaid aim of the interference undoubtedly served the general interest, even if the fishing restrictions targeted private fishermen. Nor was the interference based on manifestly unreasonable grounds. The protection of salmon and salt-water trout in the sea and in the Tornio river fishing area and the restriction of the use of harmful fishing equipment was necessary in order to ensure the existence of natural stocks of salmon and salt-water trout. Due to the strict control of the fishing of salmon, the number of fish moving up the Tornio river has significantly increased in the past few years. The fact that the restrictions concerned different periods of time in respect of different areas was based on the migration of the salmon. The idea was not to prohibit all fishing, only the use of such fishing equipment that caught salmon too efficiently.
The Government submit, moreover, that with the exception of the applicants indicated at no. 10 of the Annex, they have not adduced evidence on any concrete economic loss or other damage caused by the impugned measures. All fishermen, who suffered economic losses as a result of the restrictions governing the salmon fishing in the open sea adjacent to the Torniojoki river, were in principle entitled to compensation within the limits of an earmarked sum in the State’s supplementary budget for 1996. The applicants indicated at 1-9 in the Annex failed to seek such compensation.
At any rate the applicants had sufficient remedies at their disposal for challenging the fishing restrictions, and accordingly also the procedural requirements inherent in Article 1 of Protocol No. 1 were fulfilled.
In light of the above considerations and having regard to the legitimate aim pursued by the legislation as well as the wide margin of appreciation allowed to States in matters relating to Article 1 of Protocol No. 1, the Government concluded that the measures taken to achieve this aim were appropriate and proportionate, and that there was a fair balance between the general interests of the community and the rights of the applicants. Accordingly, there has been no violation of Article 1 of Protocol No. 1.
In respect of the alleged discrimination the Government argue, in the first alternative, that the restricted fishing-right which the applicants were enjoying did not form part of their “possessions” for the purposes of Article 1 of Protocol No. 1. Consequently, Article 14 is not applicable.
Were the Court to have another view, the Government note that Article 14 does not prohibit every kind of difference in treatment in the exercise of the rights and freedoms recognised by the Convention. Firstly, it could be questioned whether the fishermen in adjacent waters were in such a similar position that their treatment can be compared with that afforded to the applicants. At any rate it was necessary to restrict the fishing of salmon in order to safeguard the relevant wild salmon stocks. The differences between the restrictions imposed were justified by fishery-related reasons indicated by the Frontier Rivers Commission. There was an objective and reasonable justification to restrict fishing more in the coastal waters, estuaries and rivers than, for example, in the open sea. The impugned restrictions were of a short duration. Taking also the State’s margin of appreciation into account, there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised, and the applicants were not discriminated against in the enjoyment of their assumed property rights.
The applicants contend that the complete prohibition on fishing species other than salmon and trout from 1 May to 5 July was arbitrary and unjustified. In the coastal waters other species than salmon could well be fished without jeopardising the salmon stock. This prohibition, for which the applicants received no compensation, is preventing them from exercising their profession and enjoying their possessions. Nor is a complete prohibition required by the Frontier Rivers Agreement. The restrictions imposed on the Swedish side and particularly in the Kalix river, while not as lengthy and far-reaching as those imposed on the applicants’ waters, have successfully ensured the fish stocks without placing an excessive burden on the holders of the fishing right. The restrictions on the fishing of salmon and trout were likewise excessive with a view to safeguarding the stocks.
The burden placed on the applicants has been excessive as the prohibition and restrictions effectively have deprived them of almost all of their possessions during the very period of the year when it would be possible to profit from them. Nearly all of their value has therefore been lost.
While agreeing with the Government on the necessity of salmon protection as such, the applicants note that the prohibition in question was not backed up by adequate reasoning showing its necessity in the particular areas and during the periods in question, particularly in comparison with the adjacent water areas both on the Finnish and the Swedish side, where the owners are subjected to much more lenient restrictions.
The applicants’ water areas are the only ones in the Baltic Sea and the Gulf of Bothnia to be governed by a system of complete prohibition of salmon fishing, as opposed to a quota system. By maintaining a system of complete prohibition the State is able to collect revenue through selling licences for hand-held fishing by non-residents, such fishing being permissible throughout the year. Prohibiting the very owners of the waters from fishing salmon, while non-residents may fish it at any time against payment to the State is inconsistent.
The applicants underline however that their losses consist of the loss of overall value of their water areas and not just of the losses resulting from the restricted opportunity to fish.
The applicants contest the Government’s argument that strict control of the fishing of salmon in the relevant waters has been necessary in view of the EU Salmon Action which requires that the production of fry in the Tornio river area must attain 50 % of the potential level of production by 2010. The applicants refer to a statement by the National Research Institute for Game and Fishing of 10 July 2001 to the effect that the planting of fry would be discontinued in 2003 as nearly 100 % of the potential level of production had already been attained.
The applicants also refer to the judgment of 6 April 2001 in which the Swedish Supreme Court ordered the State to compensate fishermen for economic losses suffered as a result of the fishing restrictions imposed in the Tornio river area on the basis of the Frontier Rivers Agreement. On the other hand, the judgments of the Rovaniemi Court of Appeal which have been invoked by the Government are of no relevance to the applicants’ case as they were rendered prior to the enactment of the new Constitution 1999. At the time the courts were barred from examining whether a law of ordinary rank was in conflict with the 1919 Constitution and therefore could not avoid applying Act no. 902/1971 incorporating the Finnish-Swedish Frontier Rivers Agreement and the Fishing Regulation.
The 1998 decision of the Ministry for Agriculture and Fishery (no. 319/1998) did not in substance remove the conflict between the fishing restrictions on the one hand, and the Constitution and the Convention on the other. In refusing to annul the Frontier Rivers Commission’s decision the Supreme Administrative Court failed to discuss this alleged unconstitutionality, one of the grounds on which the applicants had sought an annulment.
The applicants consider the discrimination against them obvious and contest the Government’s suggestion that the fishing restriction did not impact on them in an excessively hard manner. During the two summer months when fishing is permitted the catches are small as the fish do not move around much during that period. The waters are covered by ice during seven months of the year, when fishing is difficult and the catches are small. Accordingly, even though the restrictions last only a few months, their impact is severe in that most of the applicants’ potential catches would otherwise occur during that period. By contrast, the owners of the waters adjacent to those owned by the applicants are allowed to fish other species than salmon throughout the year and are thus able to fish most of their potential catches.
The Court has already joined to the merits of the case the Government’s preliminary objection concerning the question whether the applicants indicated at nos. 1-10 of the Annex have exhausted the domestic remedies within the meaning of Article 35 § 1. In the light of the parties’ submissions the present complaint as lodged by these applicants also raises such serious issues of fact and law under the Convention that their determination should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention either. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application inadmissible in so far as lodged by the applicants set out at no. 11 of the Annex;
Declares the application admissible, without prejudicing the merits of the case, in so far as lodged by the remaining applicants.
Mark VilligerGeorg Ress
Deputy RegistrarPresident
ANNEX
The applicants, all Finnish nationals, are:
1. Mr Paavo Alatulkkila, born in 1935 and resident in Ylitornio, both as the owner of the real properties Harju 15:124 and Töysä 16:43 in Alkkula and as Chairman of the Alkkula fishing association;
2.Mr Toivo Honkaniemi, born in 1954 and resident in Ylitornio, both as the owner of the real property Mattila 2:5 in Armassaari and as Chairman of the Armassaari fishing association;
3.Mr Aatos Korpi, born in 1957 and resident in Kainuunkylä, both as owner of the real property Marjala 19:43 in Kainuunkylä and as Chairman of the Kainuunkylä fishing association;
4.Mr Lauri Rousu, born in 1945 and resident in Karunki, both as owner of the real properties Koivuranta 9:33 and Kaivosoja 27:53 in Karunki and as Secretary to the Karunki fishing association;
5.Mr Matti Kanninen, born in 1934 and resident in Kukkola, both as owner of the real property Niskala 15:42 in Kukkola and as Chairman of the Siikala whitefish fishing association;
6.Mr Kaarlo Lampinen, born in 1934 and resident in Tornio, both as owner of the real property Kaishannu 25:33 and as Chairman of the Nuotioranta fishing association;
7.Mr Pekka Mäkinen, born in 1954 and resident in Tornio, both as owner of the real properties Luotola 1:47, Hanhisaari 1:51, Viheriälä 1:79 and Paavola 1:103 in Pirkkiö and as Chairman of the Pirkkiö association for joint ownership;
8.Mr Timo Kanniainen, born in 1949 and resident in Tornio, both as owner of the real property Kanniainen 8:21 and as Chairman of the Alaraumo association for joint ownership;
9.Mr Ville Alakuijala, born in 1941 and resident in Tornio, both as owner of the real property Rantalahti 29:36 in Laivaniemi and as Chairman of the Laivaniemi association for joint ownership;
10.Mr Antti Stark, born in 1944 and resident in Lautiosaari, both as owner of the real property Stark 33:14 in Kaakamo and as Chairman of the Kaakamo fishing association and the Kaakamo association for joint ownership; and
11.Mr Juho Harila, born in 1940 and resident in Aavasaksa, both as owner of the real property Alapäänsarka 7:52 and as Chairman of the Närki-Tengeliö-Portimojärvi fishing association (application introduced on 4 November 1996).
Full & Egal Universal Law Academy