AS TO THE ADMISSIBILITY OF
Application No. 23773/94
by Knut BACK
against Finland
The European Commission of Human Rights sitting in private on
9 April 1996, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
P. LORENZEN
K. HERNDL
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 February 1994
by Knut BACK against Finland and registered on 29 March 1994 under file
No. 23773/94;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 22 December 1995, the observations in reply submitted by
the applicant on 21 February 1995, the Government's additional
observations of 29 June 1995 and the applicant's additional
observations of 18 September 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Finnish citizen, born in 1929 and resident on
the island of Bergö. He is retired.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
In the 1980s the applicant owned a leisure house located on an
island off Bergö on a real property belonging to others. Having been
asked to remove the house, he lodged, in 1990, a request with the
Building Board (rakennuslautakunta, byggnadsnämnden) of Malax
(Maalahti) for permission to move it to his property Gigbådan 10:155
situated on another island off Bergö.
On 6 June 1990 the Ministry for the Environment (ympäristö-
ministeriö, miljöministeriet; hereinafter "the Ministry") published a
draft programme for the conservation of shore areas of international
or national value (rantojensuojeluohjelma, strandskyddsprogram). 4.692
property owners made remarks on the draft.
In a decision of principle the Council of State on 20 December
1990 adopted a conservation programme including 138 shore areas.
Measures for the conservation of an area in accordance with the 1923
Nature Conservation Act (luonnonsuojelulaki 71/23, lag 71/23 om
naturskydd; hereinafter "the 1923 Act") were to be taken, inter alia,
on the property owner's initiative, if a request for a permit for
construction within a conservable area had been lodged or if other
measures damaging the conservable values would be taken. If a shore
area forming part of a private property was completely or almost
completely included in the shore conservation programme, the owner was
nevertheless to be allowed to construct leisure houses within the
conservable area on condition that the location and use of the building
would take nature conservation considerations into account.
In an opinion to the Building Board of 6 February 1991 the
Environmental Office of the County Administrative Board (läänin-
hallitus, länsstyrelsen) of Vaasa objected to a building permit being
granted to the applicant. The Board referred to the inclusion of
Gigbådan 10:155 in the shore conservation programme and stated that it
would, if necessary, take measures in order to prevent the
implementation of a possible building permit.
On 20 February 1991 the Building Board rejected the applicant's
request. On his appeal to the County Administrative Court (läänin-
oikeus, länsrätten) of Vaasa the Building Board's decision was quashed
on 2 July 1991 and the matter referred back to the Board for new
examination. The Court found that the applicant's request could not be
rejected on the ground that the building site had been included in the
shore conservation programme and on the basis of the negative opinion
of the County Administrative Board.
On 21 August 1991 the Building Board granted the applicant a
building permit for the purpose of moving his leisure house to Gigbådan
10:155.
On 11 September 1991 the County Administrative Board issued an
activity prohibition concerning the property pursuant to section 18 of
the 1923 Act. The prohibition was issued in order to ensure the aim of
a possible expropriation. It concerned construction on, and use of, the
property "in a manner jeopardising its conservable value". The
prohibition was limited to one year. The Board noted that the area at
issue had been included in the shore conservation programme. Given that
no voluntary conservation or sale of the property had been achieved,
the Board had proposed to the Ministry that it should be expropriated.
On 18 November 1992 the Supreme Administrative Court (korkein
hallinto-oikeus, högsta förvaltningsdomstolen) rejected the applicant's
appeal as far as it concerned the lawfulness of the activity
prohibition imposed on 11 September 1991. In that respect the Court
found no reason to change the decision of the County Administrative
Board. As far as the outcome of the appeal was mainly dependent on an
assessment of the expediency of the prohibition, it was not referred
to the Government (the Ministry), since the prohibition at issue was
no longer in force.
On 4 December 1992 the County Administrative Board in pursuance
of section 8 of the 1977 Act invited the applicant to comment on the
possible expropriation of Gigbådan 10:155. The applicant objected to
an expropriation.
On 12 January 1993 the County Administrative Board issued a
further activity prohibition valid for one year, basing itself on
section 18 of the 1923 Act and maintaining the reasons invoked in its
decision of 11 September 1991. The prohibition was considered as a
"prolongation" of the first prohibition issued on that date.
The applicant again appealed on 27 January 1993 to the Supreme
Administrative Court, arguing that the second activity prohibition had
been issued solely because the authorities had not been able to
conclude the expropriation procedure before the first prohibition had
expired. The issuing of a second prohibition for reasons identical to
those invoked in support of the first one was unfair and contrary to
the prevailing practice. The applicant also referred to the Council of
State's decision of principle of 20 December 1990 which had afforded
a limited right of construction to a particular group of property
owners to which he belonged.
By a letter of 4 May 1993, i.e. after the expiry of the time-
limit for the applicant's appeal against the activity prohibition, the
County Administrative Board proposed to the Ministry that the Council
of State should issue a permit for the expropriation of
Gigbådan 10:155. Reference was made to the particular features of the
forest and bird life on the property.
On 31 August 1993 the Supreme Administrative Court rejected the
applicant's appeal as far as it concerned the lawfulness of the
activity prohibition. As far as the appeal mainly concerned the
expediency of the prohibition it was referred to the Government (the
Ministry).
On 8 September 1993 the Ministry, deciding on behalf of the
Government, rejected the remainder of the applicant's appeal. The
Ministry considered that the relevant part of the applicant's property
contained such "significant conservable values" that an activity
prohibition was justified so as to prepare and carry out the
conservation thereof. The conservable values were not substantiated.
In its opinion submitted on 27 October 1993 to the Parliamentary
Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) in
reply to a petition lodged, inter alia, by the applicant the Ministry
stated, inter alia, that his property was to be considered as a
conservable area described in section 1, subsection 2 of the 1923 Act.
The Ministry referred to the inclusion of the property in the shore
conservation programme which had indicated areas "of national
importance for nature conservation". Reference was further made to a
decision rendered by the Supreme Administrative Court on 22 June 1992
in which it had held that the decision by the Council of State to adopt
the shore conservation programme had been lawful (see para. 4 of
"Relevant domestic law and practice"). In addition, the 1923 Act
contained no provisions prescribing how the need for an activity
prohibition should be investigated. On the basis of the shore
conservation programme and the decision of the Supreme Administrative
Court of 22 June 1992 the Ministry therefore considered that the
investigation of the possible existence of a conservable value of the
applicant's property had been sufficient.
In his decision of 5 August 1994 the Ombudsman found, inter alia,
that the County Administrative Board's activities in regard to the
applicant's property had been based solely on the Council of State's
decision of principle and not on the underlying facts and legal norms
upon which the measures taken by the Board should have been based. In
particular, its decision to issue the activity prohibition on the
applicant's property should have stated the conservable values
justifying the prohibition. The Board was therefore admonished by the
Ombudsman.
Following the expiry of the second activity prohibition the
applicant was able to make use of his building permit.
On the applicant's request the County Administrative Board, on
22 February 1994, ordered that another part of his property should be
conserved. On 27 May 1994 the Ministry compensated him for the
interference with his property rights caused by that conservation
measure. A further conservation request by the applicant still appears
to be pending.
On 4 July 1994 the applicant requested the Environmental Centre
of Western Finland (Länsi-Suomen ympäristökeskus, Västra Finlands
miljöcentral; formerly the Environmental Office) to grant him
compensation for the interference with his property rights caused by
the activity prohibitions. In these proceedings the Ministry referred
to a decision of the Supreme Administrative Court of 21 April 1995
(no. 5301/4/94; no. 1761 in its collection) in which a similar request
had been rejected.
On 26 June 1995 the Environmental Centre rejected the applicant's
request, considering, inter alia, that neither of the activity
prohibitions had prevented him from using his leisure house which
meanwhile had remained on his other property. The applicant did not
appeal to the Supreme Administrative Court against this decision.
Relevant domestic law and practice
1. The establishment of conservation areas on private
properties and related restrictions
Under the 1919 Constitution Act (Suomen Hallitusmuoto 94/19,
Regeringsform för Finland 94/19), as in force at the relevant time, the
right of Finnish citizens to their possessions was to be secured by law
(section 6, subsection 1). As of 1 August 1995, everyone's property
rights are guaranteed by section 12 of the Constitution Act (as amended
by Act no. 969/95).
At the owner's request the County Administrative Board may
establish a conservation area on a property of significant importance
from the point of view of nature conservation (sections 1 and 9 of the
1923 Act). Such areas may be established in order to protect a place
of great natural beauty or with otherwise remarkable nature or in order
to protect a particular animal or plant species (section 1, subsection
2). To this end the State may expropriate real property (section 18,
subsection 1). The County Administrative Board may, provisionally and
for a maximum period of two years, prohibit an area from being used in
a manner which could jeopardise the aim of such an expropriation. The
prohibition is immediately enforceable irrespective of appeal
proceedings, unless the appeal body decides otherwise. If no
expropriation takes place, compensation shall be granted by the Board
for any damage or inconvenience caused by the prohibition (section 18,
subsection 2).
2. The reasoning required in administrative decisions
According to the 1982 Act on Administrative Procedure (hallinto-
menettelylaki 598/82, lag om förvaltningsförfarande 598/82), an
authority shall see to it that a matter is being investigated before
a decision is made. While a party to the proceedings shall present the
grounds for his or her claim, it is up to the authority to obtain any
other information (section 17).
The reasoning of an administrative decision shall contain the
main facts and the legal provisions or other rules upon which it is
based (section 24, subsection 1). The decision need not be reasoned if,
inter alia, this would be clearly unnecessary or if the reasoning
cannot be produced without the notification of the decision being
significantly delayed (subsection 2).
Pursuant to section 24, subsection 1 the Supreme Administrative
Court, in 1987, quashed a County Administrative Board's decision and
referred the matter back for new examination. The Board had refused to
grant a licence for an ambulating sales activity, considering that a
granting of the request would not have been appropriate. The Court
considered itself unable to review the matter judicially, since the
Board's decision had not included the principal facts upon which the
refusal had been based (decision of 17 February 1987; published as
no. 73 in the Court's annual A, at p. 186).
3. Rules governing the formulation of appeals
According to the 1950 Act on the Right of Appeal in
Administrative Matters (laki 154/50 muutoksenhausta hallintoasioissa,
lag 154/50 om ändringssökande i förvaltningsärenden), the petition of
appeal shall include, inter alia, the grounds for the appeal, unless
they are apparent from the appellant's previous submissions (section
9 a).
4. Practice regarding the lawfulness of the shore conservation
programme
In a decision of 22 June 1992 (published as no. 1 in the Court's
annual A) the Supreme Administrative Court found, inter alia, that the
Council of State had been competent to adopt the conservation
programme, having regard to, inter alia, the general competence
afforded to it by the Constitution Act. The Court furthermore had
regard to the aim of the programme, i.e. to protect nationally valuable
areas by resorting, in order to further the aims of the conservation,
to measures provided for by current legislation which in an individual
case would be at the authorities' disposal even in the absence of a
programme. The Court therefore considered that the programme had not
imposed such unreasonable limitations on the property owners and
holders of a right of usufruct as to render the decision of principle
unlawful in general terms.
The Court nevertheless considered that the decision of principle
could be unreasonable or otherwise unlawful with regard to an owner of
an individual area or a holder of a right of usufruct to such an area,
if it contained, for instance, shore areas which due to their character
did not fulfil the conditions for a conservable area or which were too
large, in particular having regard to the aim of the programme, namely
the conservation of nature on the shore. Although the decision-making
concerning such questions would only take place during the
implementation of the programme, it was not justified to retain a
clearly non-conservable area in the programme with its de facto
restrictions on the use of the area.
The Court finally examined the lawfulness of the decision of
principle in regard to a property belonging to certain appellants, who
had argued that it presented no conservable values within the meaning
of section 1, subsection 2 of the 1923 Act. The Court carried out a
detailed examination of the conservable values on the property, noting
its particular geographical features, vegetation and bird life. It
found that sufficient reasons had been shown for reserving the property
as a conservable area. Accordingly, the Council of State's decision did
not violate the applicants' rights and their appeal was rejected.
On 20 October 1992 the Ombudsman rendered his decision in
response to a petition relating to the adoption of the shore
conservation programme. He considered, inter alia, that it could be
questioned whether in the light of Article 1 of Protocol No. 1 to the
Convention it was sufficient that decisions of principle for the
adoption of nature conservation programmes were made on the basis of
the general competence of the Council of State. He nevertheless
concluded that its decision to adopt the shore conservation programme
could not be considered as clearly violating section 6 of the
Constitution Act or Article 1 of Protocol No. 1 to the Convention.
Considering, however, the de facto effects of the decision of
principle, the shore conservation programme should, for good reasons,
have been prescribed by law.
COMPLAINTS
1. The applicant complains that neither the decision of the Council
of State with preparatory documents nor the activity prohibition of
1993 contained any information as to the conservable values on his
property Gigbådan 10:155. He was therefore unable to challenge the
material basis for that prohibition which interfered with his already
acquired right to move his leisure house to that property. He invokes
Article 6 para. 1 of the Convention.
2. The applicant further complains that the activity prohibition
issued in 1993 was unlawful, as it was merely based on the fact that
his property had been included in the shore conservation programme.
This programme only amounted to a declaration by the Council of State
of its intention to have certain areas conserved. It could not in
itself justify the activity prohibition, since it had not specified any
conservation values on his property. Nor were any such values referred
to in the Ministry's decision upholding the prohibition. In any case,
the shore conservation programme had already afforded the applicant a
limited right of construction and he had already been granted a
building permit in accordance therewith. He invokes Article 1 of
Protocol No. 1 to the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 February 1994 and registered
on 29 March 1994.
On 10 October 1994 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
22 December 1995. The applicant replied on 21 February 1995. Additional
observations were submitted by the Government on 29 June 1995 and by
the applicant on 18 September 1995.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that neither the decision of the Council of State nor the
activity prohibition of 1993 contained any information as to the
conservable values on his property. He was therefore unable to
challenge the material basis for that prohibition which interfered with
his already acquired right to move his leisure house to that property.
Under Article 1 of Protocol No. 1 (P1-1) he further complains that the
prohibition was unlawful, as it was merely based on the fact that his
property had been included in the shore conservation programme. This
programme could not in itself justify the prohibition, since it had not
specified any conservation values on his property. Nor were any such
values referred to in the Ministry's decision upholding the
prohibition. In any case, the shore conservation programme had already
afforded the applicant a limited right of construction and he had
already been granted a building permit in accordance therewith.
Article 6 para. 1 (Art. 6-1) of the Convention reads, in so far
as it is relevant, 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. ..."
Article 1 of Protocol No. 1 (Art. P1-1) to the Convention 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 Government question whether the applicant can claim to be a
"victim" within the meaning of Article 25 (Art. 25) of the Convention,
considering that he has agreed to conservation of part of his property,
for which he has also received compensation. Moreover, he could
eventually avail himself of his building permit and was able to seek
compensation for any damage caused by the activity prohibition.
The Government furthermore submit that domestic remedies have not
been exhausted, since the applicant did not, in his appeal to the
Supreme Administrative Court, at least in substance refer to the
allegedly deficient reasoning in the County Administrative Board's
decision to issue the activity prohibition. Had he done so, the Supreme
Administrative Court might have referred his case back to the County
Administrative Board for reconsideration.
In the alternative, the Government submit that the application
is manifestly ill-founded. Although the reasons advanced for the
activity prohibition were admittedly not very extensive, the Supreme
Administrative Court's decision was not arbitrary and thus not in
violation of the applicant's right to a fair hearing under Article 6
para. 1 (Art. 6-1) of the Convention. In so far as the application
concerns Article 1 of Protocol No. 1 (P1-1), the Government concede
that the activity prohibition interfered with the applicant's right to
the peaceful enjoyment of his possessions. This interference was
nevertheless justified, since it was clearly based on section 18 of the
1923 Act and served the legitimate aim of facilitating the conservation
of the relevant shore area. As to the proportionality of the
interference, the Government underline that the prohibition at issue
was in force only during one year and did not prevent the applicant
from using his property in other ways. In addition, he must reasonably
have expected not to be able to make use of his building permit
immediately. Nor will he suffer any financial losses because of the
prohibition, regard being had to the compensation procedure stipulated
in section 18, subsection 2 of the 1923 Act. The proceedings relating
to the activity prohibition also afforded him a reasonable opportunity
of putting his case to the responsible authorities. Finally, he was not
left in complete uncertainty as to the final fate of his property.
Recalling the Contracting States' wide margin of appreciation in this
field, the Government conclude that a fair balance was struck between
the applicant's rights and the general interest.
The applicant maintains that he can still claim status as a
"victim" as regards the activity prohibition and the related procedure.
He further contends that he has exhausted domestic remedies in this
respect. His appeal of 27 January 1993 referred to the Council of
State's decision of principle of 20 December 1990 which afforded
certain property owners a limited right of construction. Both the
question whether the activity prohibition was consistent with the
Council of State's decision and the expediency assessment of the
prohibition were referred for examination by the Government. The
question whether there were conservable values on his property was thus
expressly addressed in the Ministry's decision of 8 September 1993.
As regards particularly the interference with his property
rights, the applicant contends that it had no basis in domestic law.
Instead it was exclusively based on an interpretation of the shore
conservation programme to the effect that the Council of State's
decision of principle already in itself contained sufficient
substantiation of the conservable values on his property. This
interpretation was incorrect, since under domestic law a decision of
principle could not have such far-reaching effects.
The applicant furthermore submits that nothing in the draft shore
conservation programme indicated that the adopted programme would
constitute final proof of the existence of conservable values within
the meaning of the Nature Conservation Act on individual properties
located within the area to be conserved. The draft programme was so
disputed that it would never have been approved, had it not been
modified by a political agreement so as to guarantee a limited building
right to certain groups of property owners such as himself. This
building right was an administrative directive which implementing
authorities had to respect.
The applicant also refers to the decision of the Supreme
Administrative Court of 22 June 1992 according to which the question
whether conservable values existed on individual properties included
in the shore conservation programme was to be finally examined during
the implementation thereof. When considering the activity prohibition,
both the County Administrative Board and the Ministry were not only
bound by the Nature Conservation Act. Under sections 17 and 24 of the
Act on Administrative Procedure they were also under a duty properly
to investigate the matter. However, they did not at all examine whether
the applicant was among those entitled to a limited building right nor
whether - and, if so, which - conservable values existed on his
property. Instead it was implicitly accepted that the Council of
State's decision of principle constituted final proof of the existence
of such values. The absence of a proper investigation effectively
circumvented the applicant's limited building right.
The Commission finds it appropriate to examine the applicant's
complaints taken together. It observes that the voluntary conservation
measures and the related compensation paid to the applicant concerned
a part of his property other than that affected by the activity
prohibition challenged in the present case. As regards this
prohibition, the Commission notes that the applicant has eventually
been able to avail himself of his building permit. However, this was
only after the expiry of the prohibition. The Commission therefore
considers that, as regards this prohibition and the related procedure,
the applicant can still claim to be a "victim" of a violation of the
provisions invoked by him.
The Commission nevertheless recalls that under Article 26
(Art. 26) of the Convention it may only deal with an application after
all domestic remedies have been exhausted, according to the generally
recognised rules of international law. An applicant must make normal
use of remedies likely to be effective and adequate in respect of the
matters of which he complains (cf., e.g., Eur. Court H.R., Eckle
judgment of 15 July 1982, Series A no. 51, p. 30, para. 66). The burden
of proving the existence of available and sufficient remedies lies upon
the State (Eur. Court H.R., Deweer judgment of 27 February 1980, Series
A no. 35, p. 15, para. 26).
The object of the present application is essentially the
allegedly deficient reasoning in support of the County Administrative
Board's decision to issue a second activity prohibition. The Commission
cannot find that the applicant at least in substance raised this issue
in his appeal to the Supreme Administrative Court. It is true that the
Court was competent to examine proprio motu the facts underlying the
activity prohibition and, if necessary, refer the matter back to the
County Administrative Board. It is also true that the Convention has
been incorporated into Finnish law and was directly applicable in the
appeal proceedings.
The Commission must, however, also bear in mind the state of
domestic law and practice when the second activity prohibition was
issued in regard to the applicant's property. When reviewing the
lawfulness of the inclusion of certain other property owners' property
in the shore conservation programme the Supreme Administrative Court
had, in a precedent of 1992, reviewed the existence of possible
conservable values within the meaning of the Nature Conservation Act.
It had requested the Ministry for the Environment to clarify the
existence of conservable values on the property and the appellants had
been able to challenge the Ministry's reference to such particular
values (see "Relevant domestic law and practice", para. 4). Moreover,
in a precedent of 1987 the Supreme Administrative Court had referred
a matter back for new examination, considering itself unable to perform
a judicial review, since the appealed decision had not included the
principal facts upon which it had been based (see "Relevant domestic
law and practice", para. 2). Finally, pursuant to section 9a of the Act
on the Right of Appeal in Administrative Matters the applicant was
under an obligation to state the grounds for his appeal to the Supreme
Administrative Court.
The Commission therefore considers that the applicant was not,
for the reasons referred to by him, absolved from the requirement to
challenge the allegedly deficient reasons for the activity prohibition
at least in substance in the proceedings before the Supreme
Administrative Court (cf., e.g., Cardot judgment of 19 March 1991,
Series A no. 200, pp. 18-19, paras. 34-36; No. 11244/87, Dec. 2.3.87,
D.R. 55 pp. 98; No. 11921/86, Dec. 12.10.88, D.R. 57 p. 81).
The Commission furthermore observes that the applicant did not
appeal to the Supreme Administrative Court against the refusal to grant
him compensation for the damage allegedly caused by the activity
prohibition. It is true that the same court's decision of 21 April 1995
in regard to a compensation request by another property owner might
have left the applicant with the impression that an appeal in his own
case would have lacked any prospects of success. The Commission
recalls, however, that where doubts exist as to the effectiveness of
a domestic remedy that remedy must be tried (e.g., No. 13669/88,
Dec. 7.3.90, D.R. 65 p. 245).
Having regard to the above-mentioned particular elements, the
Commission cannot but conclude hat the applicant did not exhaust the
remedies available to him under Finnish law. Moreover, an examination
of the application does not disclose the existence of any special
circumstance which might have absolved him, according to the generally
recognised rules of international law, from exhausting those remedies.
It follows that the application must be rejected for
non-exhaustion of domestic remedies under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy