AS TO THE ADMISSIBILITY OF
Application No. 27894/95
by Helena BÄCKSTRÖM
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 11 September 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 February 1995
by Helena BÄCKSTRÖM against Finland and registered on 19 July 1995
under file No. 27894/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of the United States of America, born
in 1941 and resident in Närpes, Finland. She is a photographer by
profession. Before the Commission she is represented by Mr. Jan Hanses,
a lawyer in Mariehamn, the Åland Islands, Finland.
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant and her two cousins are joint owners of a coastline
property (Kalhamn 6:42) in Tjärlax in the city of Närpes (formerly a
municipality). In 1989 the Planning Engineer of the then municipality
apparently informed the applicant that a shore plan covering her
property had to be adopted for any construction thereon exceeding one
house with a private shore, alternatively two houses with access to a
shared shore. Subject to the adoption and confirmation of a shore plan,
the construction of two houses with private shores, alternatively four
houses with a shared shore could be permitted.
The applicant requested that a surveyor be appointed to draw up
a shore plan for an area of some 12 hectares, the length of the
shoreline amounting to some 500 metres. The request was refused by the
County Administrative Board (lääninhallitus, länsstyrelsen) of Vaasa
on 27 November 1989, as the area was not considered sufficiently large
for appropriate planning. The Board noted that the shoreline was about
470 metres long.
The applicant appealed to the Ministry for the Environment
(ympäristöministeriö, miljöministeriet), referring to areas of a
similar character and size for which shore plans had been adopted and
confirmed. The appeal was refused on 22 March 1991. The Ministry noted,
among other things, that the shoreline to be covered by the plan
foreseen by the applicant was some 500 metres long and that a shore
plan had also been requested for another area in the vicinity. The area
which the applicant had proposed for shore planning did not therefore
in itself constitute an appropriate entity for such purposes.
The applicant and others then requested that a surveyor be
appointed to draw up a shore plan for an area covering some
190 hectares, the length of the shoreline amounting to some
3,5 kilometres. Previously some 20 leisure houses had been erected
within the area. The request was granted by the County Administrative
Board on 20 March 1992.
A nature inventory of the area supported the intended plan. On
the basis of the inventory it was also found that the area was of no
particular value for nature conservation or public recreation purposes.
The plan was adopted by the City Assembly (kaupunginvaltuusto, stads-
fullmäktige) of Närpes on 12 March 1993. On average, the plan permitted
the construction of eight leisure houses per kilometre of shoreline.
Alternatively, this number could be doubled if the houses were to be
situated farther away from the shoreline, thus having access to a
shared shore. As regards the applicant's property, the plan permitted
the construction of four houses with access to a shared shore. In
determining the permissible construction potential on the property the
City Assembly had regard to the previous construction of two houses
with their own shore on two adjoining properties which had previously
formed part of Kalhamn 6:42 but had not been included in the plan.
Those properties were not owned by the applicant. The construction
potential of the applicant's property was below the average for the
overall area covered by the plan.
On 18 August 1993 the County Administrative Board declined to
confirm the plan in so far as it covered, inter alia, two building
sites on the applicant's property. The Board recalled that a shore plan
could be left unconfirmed if it sought to create urban development.
Given the length of the shoreline for the whole area covered by the
plan (some 3,2 kilometres), the Board considered that the number of
construction sites included therein was too high and "neither furthered
an appropriate use of the use of the area (sic) nor the equal treatment
of property owners both within and outside the area". The County
Administrative Board gave no reasons pertaining specifically to the
individual properties in respect of which the plan was not confirmed.
The applicant appealed to the Supreme Administrative Court on
points of law and fact. She stressed that the construction potential
of her property as adopted by the City Assembly was below both the
average for the whole area covered by the plan and the average for
shoreline properties in the county. In refusing to confirm part of the
plan the County Administrative Board had discriminated against her
without specifying any reasons therefor and had exceeded its statutory
competence to review matters of expediency. Moreover, by failing to
provide adequate reasons, contrary to section 24 of the 1982 Act on
Administrative Procedure (hallintomenettelylaki, lag om förvaltnings-
förfarande 598/1992), the Board had rendered it impossible for her to
challenge its decision effectively.
In an opinion to the Supreme Administrative Court the County
Administrative Board explained in detail how it had reached its
decision of 18 August 1993. It considered, among other things, that the
discrepancies between the Board's and the applicant's views were partly
due to differing methods of calculating the length of the shoreline
directly forming part of her property. The Board essentially stated
that her private shore was in fact only some 200 metres long, whereas
the remainder of the shoreline taken into account in fixing the
construction potential of her property actually formed part of
neighbouring properties.
In her rejoinder the applicant recalled that in its decision of
22 March 1991 the Ministry for the Environment had found that the
relevant shoreline (including the shoreline which formed part of
neighbouring properties) had been some 500 metres long. The County
Administrative Board had been informed that the owners of the
neighbouring properties had consented to the shore plan. Moreover, the
County Administrative Board had not previously relied upon the reasons
which it had now presented to the Supreme Administrative Court.
The applicant's appeal was refused on 24 August 1994. The Supreme
Administrative Court, invoking section 123a, subsection 3 of the
Building Act (rakennuslaki, byggnadslag 370/1958), found no reason to
amend the County Administrative Board's conclusion. The Supreme
Administrative Court noted that the shoreline on the applicant's
property was encumbered by the two already constructed real properties
which had previously formed part of her property but had not been
included in the plan. The Supreme Administrative Court also took into
account the length of the shoreline (though without specifying it), the
total construction potential permitted on the relevant properties and
the need for equal treatment of the property owners. According to the
1958 Building Act, a property owner is entitled to have a shore plan
adopted and confirmed if it has been drawn up according to requirements
of the Act. A plan may nevertheless be left without approval and
confirmation if it is aimed at creating urban development (section
123d, subsection 2). In the preparation of a shore plan particular
regard shall be had to creating an appropriate planning entity and
ensuring construction adapted to the shore area and the use of the land
in adjacent areas (section 123a, subsection 3).
In examining whether the conditions for confirming a plan are
met, the county administrative boards review both the lawfulness and
the expediency of the municipality's or the city's decision to adopt
the plan. According to the Act on Administrative Procedure, the
reasoning of an administrative decision shall contain the main facts
and the legal provisions or other rules on which it is based. The
decision need not be reasoned if, for instance, this would be clearly
unnecessary (section 24).
COMPLAINTS
1. The applicant complains that the dispute regarding the terms of
the shore plan was not fully examined by an impartial tribunal within
the meaning of Article 6 of the Convention. The question of permissible
construction on her property being considered a matter of expediency,
it was finally decided by the County Administrative Board, whereas the
Supreme Administrative Court could only examine the lawfulness of the
Board's decision.
2. The applicant furthermore complains that her property rights have
been interfered with in a disproportionate manner. The intended further
construction on her property would have been clearly below the average
permitted for shoreline properties within the county. No precise
reasons were advanced in support of the County Administrative Board's
derogation both from that average and the average construction
potential permitted by the shore plan in question. Due to the
effectively denied construction rights the applicant's property has
allegedly become impossible to sell. It has not been expropriated and
she has not received any compensation for the lost construction
potential.
The applicant invokes Article 1 of Protocol No. 1 and Article 6
of the Convention.
THE LAW
1. The applicant complains that the dispute regarding the terms of
the shore plan was not examined in full by an impartial tribunal. The
question of permissible construction on her property being considered
a matter of expediency, it was finally decided by the County
Administrative Board, whereas the Supreme Administrative Court could
only examine the lawfulness of the Board's decision.
The Commission has examined this complaint under Article 6
para. 1 (Art. 6-1) of the Convention which, in so far as relevant,
reads as follows:
"In the determination of his civil rights ..., everyone is
entitled to a fair ... hearing ... by an independent and
impartial tribunal established by law. ..." The
Commission considers that the applicant's right to develop
her property in accordance with the applicable laws and
regulations was "civil" within the meaning of Article 6
para. 1 (Art. 6-1) (see, e.g., Eur. Court HR, Fredin v.
Sweden judgment of 18 February 1991, Series A no. 192, p.
20, para. 63). There was furthermore a "genuine and
serious" dispute between the applicant and the authorities
regarding the lawfulness of the impugned decision of the
County Administrative Board. The outcome of this dispute
was directly decisive for the applicant's right to
construct leisure houses on her property. Article 6 para.
1 (Art. 6-1) accordingly applies.
(a) Access to court
The Commission has first examined whether the applicant had
sufficient access to court within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention. This provision does not oblige the
Contracting States to submit disputes over civil rights to a procedure
which at each stage meets the requirements of that provision, provided
it eventually may be determined by a body which does (cf., e.g., Eur.
Court HR, Le Compte, Van Leuven and De Meyere v. Belgium judgment of
23 June 1984, Series A no. 43, pp. 22-23, para. 51). It is sufficient
that decisions taken by administrative authorities which do not
themselves satisfy the requirements of that provision be subject to
subsequent control by an independent judicial body with sufficient
jurisdiction and which itself provides the safeguards required by
Article 6 para. 1 (Art. 6-1) (see, e.g., Eur. Court HR, Fischer v.
Austria judgment of 26 April 1995, Series A no. 312, p. 17, para. 28).
The Commission notes that before the Supreme Administrative
Court the applicant challenged the lawfulness of the County
Administrative Board's decision and its appreciation of the facts. She
essentially argued that the Board had exceeded its competence to
examine matters of expediency. Having examined the merits of her
appeal, the Supreme Administrative Court, adding its own reasons, found
no grounds for amending the County Administrative Board's conclusion.
The Supreme Administrative Court did not have to decline jurisdiction
on any of the points raised by the applicant and there is no indication
that it was unable fully to re-examine the facts (cf. Eur. Court HR,
Zumtobel v. Austria judgment of 21 September 1993, Series A no. 268-A,
pp. 19 et seq., paras. 69 et seq.).
In these circumstances the Commission does not find that the
applicant was denied access to a tribunal within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention for the purposes of
challenging the County Administrative Board's decision. Accordingly,
there is no indication of a violation of Article 6 (Art. 6) on this
point.
It follows that this aspect of the complaint must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
(b) Fairness of the proceedings
The applicant also complains about the insufficient reasoning
adduced in support of the partial non-confirmation of the shore plan
as far as covering her property. This is an issue going to the fairness
of the proceedings.
Article 6 para. 1 (Art. 6-1) places the "tribunal" under a duty
to conduct a proper examination of the submissions, arguments and
evidence adduced by the parties, without prejudice to its assessment
of whether they are relevant to its decision. It also obliges the
courts to give reasons for their judgments, but cannot be understood
as requiring a detailed answer to every argument. Nor are the
Convention organs called upon to examine whether arguments are
adequately met (see, e.g., Eur. Court HR, Van de Hurk v. the
Netherlands judgment of 19 April 1994, Series A no. 288, pp. 19-20,
paras. 59-61). The question whether a court has failed to fulfil the
obligation to state reasons can only be determined in the light of the
circumstances of the case (see, e.g., Eur. Court HR, Ruiz Torija v.
Spain judgment of 9 December 1994, Series A no. 303-A, p. 12,
para. 29).
In assessing their fairness the Commission must take a
comprehensive view of the proceedings. It can accept that the reasons
put forward in the County Administrative Board's decision of 18 August
1993 were summary and indeed extensively supplemented in the Board's
opinion to the Supreme Administrative Court following the applicant's
appeal. The Commission notes, however, that in the course of the
proceedings before the Supreme Administrative Court the applicant was
able to comment on the County Administrative Board's opinion and thus
challenge whatever further reasons advanced by the Board. Moreover, the
decision of the Supreme Administrative Court mentioned the facts, the
relevant legal provision applied as well as its reasons for upholding
the County Administrative Board's conclusion.
In these circumstances there is no indication that the
proceedings considered as a whole were unfair and thereby contrary to
Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this aspect of the complaint is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains that her property rights have been
interfered with in a disproportionate manner. The intended further
construction on her property would have been clearly below the average
permitted for shoreline properties within the county. On the one hand,
the applicant's property has allegedly become impossible to sell due
to the denied construction rights, whereas, on the other hand, her
property has not been expropriated and she has not received any
compensation for the lost construction potential.
The Commission has examined this complaint under Article 1 of
Protocol No. 1 (P1-1) to the Convention which 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."
Article 1 of Protocol No. 1 (P1-1) comprises three distinct
rules. The first rule, set out in the first sentence of the first
paragraph, is of a general nature and enunciates the principle of
peaceful enjoyment of property. The second rule, contained in the
second sentence of the same paragraph, covers deprivation of
possessions and makes it subject to certain conditions. The third rule,
stated in the second paragraph, recognises that Contracting States are
entitled, amongst other things, to control the use of property in
accordance with the general interest. The three rules are not
"distinct" in the sense of being unconnected: the second and third
rules are concerned with particular instances of interference with the
right to peaceful enjoyment of property and should therefore be
construed in the light of the general principle enunciated in the
first rule (see, e.g., the above-mentioned Fredin judgment, p. 14,
para. 41).
Moreover, although Article 1 (Art. 1) contains no explicit
procedural requirements, the proceedings at issue must afford the
individual a reasonable opportunity of putting his or her case to the
responsible authorities for the purpose of effectively challenging the
measures interfering with his rights under Article 1 of Protocol No.
1 (P1-1). In ascertaining whether this condition has been satisfied a
comprehensive view must be taken of the applicable procedures (see,
e.g., Eur. Court HR, Agosi v. the United Kingdom judgment of 24 October
1986, Series A no. 108, p. 19, para. 55; Hentrich v. France judgment
of 22 September 1994, Series A no. 296-A, p. 21, para. 49).
The Commission considers that the County Administrative Board's
partial refusal to confirm the shore plan in so far as it covered the
applicant's property amounted to a control of the use of that property.
This interference with her property rights falls to be examined under
the second paragraph of Article 1 of Protocol No. 1 (P1-1) as to its
lawfulness, purpose and proportionality.
As regards the lawfulness of the interference, the Commission
notes that pursuant to section 123d of the 1958 Building Act a shore
plan may be left unconfirmed by a County Administrative Board if the
plan is found to aim at creating urban development. In refusing to
confirm part of the shore plan in so far as covering the applicant's
property the County Administrative Board explicitly invoked this
provision.
The Commission accepts that the purpose of the County
Administrative Board's decision was to restrict construction along the
shore. This aim must be considered as reflecting the demands of the
general interest of the community, the protection of the environment
constituting an increasingly important consideration in today's society
(see, e.g., the above-mentioned Fredin judgment, p. 16, para. 48).
As regards the proportionality, the Commission recalls that a
fair balance must be struck between the demands of the general interest
of the community and the requirements of the protection of the
individual's fundamental rights (ibid.). The Commission notes that the
shore plan as confirmed by the County Administrative Board and the
Supreme Administrative Court permits the construction of two new
leisure houses on the applicant's property. In these circumstances it
cannot be said that the plan has rendered the property so useless as
to constitute a de facto expropriation for which compensation is due.
Finally, recalling also its considerations above with regard to
the fairness of the proceedings, the Commission considers that the
applicant had at her disposal sufficient procedural safeguards for the
purposes of challenging the County Administrative Board's decision of
18 August 1993.
Summing up, the Commission finds that the applicant has not been
made to carry an individual and excessive burden and that a fair
balance has been struck between the conflicting interests at stake,
regard also being had to the procedural safeguards afforded to her.
Accordingly, there is no appearance of a violation of Article 1 of
Protocol No. 1 (P1-1).
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy