AS TO THE ADMISSIBILITY OF
Application No. 22030/93
by D.S.
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 August 1992 by
D.S. against Finland and registered on 10 June 1993 under file
No. 22030/93;
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 Swiss citizen, born in 1962 and resident at
Kuopio, Finland. He is an engineer by profession.
On 18 February 1991 the Office for Motor-Vehicles Inspection
(katsastuskonttori, besiktningskontoret; hereinafter "the Inspection
Office") of Kuopio granted the applicant a permit to reconstruct his
car so that it would correspond to another model of the same brand.
According to the terms of the permit, the allowed weight on the axles
of the reconstructed car could not exceed that stipulated for the model
already in the applicant's possession. For the purpose of having his
reconstructed car registered, the applicant was also ordered to have
the position of the wheels inspected.
On 7 May 1991 the National Motor-Vehicle Registration Centre
(autorekisterikeskus, bilregistercentralen; hereinafter "the National
Centre") rejected the applicant's appeal against the decision of
18 February 1991 concerning the above-mentioned conditions. The Centre
had obtained the Kuopio Inspection Office's opinion on the appeal. This
had not been communicated to the applicant for possible comments before
the Centre had examined his appeal. The applicant's subsequent attempts
to obtain a copy of the opinion from the Centre were unsuccessful.
In rejecting his appeal the Centre noted that in spite of its
requests the applicant had not submitted certain technical
clarification. According to the applicant, he had received the
clarification request about a month prior to the Centre's decision
without any time-limit having been fixed for his response. At the time
of the Centre's decision he was attempting to find an expert who could
submit the clarification needed.
On 8 May 1992 the Ministry of Transport and Communications
(liikenneministeriö, trafikministeriet) rejected the applicant's appeal
against the decision of 7 May 1991. The Ministry had obtained opinions
on the appeal from the National Centre as well as from the importer of
the car brand. These had not been communicated to the applicant for
comments before the Ministry had examined his appeal. The applicant
subsequently obtained a copy from the Ministry of the relevant
opinions. In the Ministry's letter to the applicant dated
10 August 1992 it was explained that the opinions had not been decisive
for the outcome of his appeal. No further appeal lay open to the
applicant.
On 23 December 1992 the applicant's reconstructed car was
approved and registered. The allowed total weight on the axles of the
car was, however, further restricted and the allowed number of
passengers reduced. The applicant's objected to this condition,
referring to a certificate by the importer of the car brand. This
objection was apparently left without action by the National Centre.
According to the 1982 Decree on Vehicles (ajoneuvoasetus 233/82,
fordonsförordning 233/82; later replaced by Decree no. 1256/92), the
reconstruction of a vehicle which is subject to inspection shall be
permitted only upon a decision made by the National Centre or an
Inspection Office (section 16, as amended by Decree no. 547/87).
The 1981 Road Traffic Act (tieliikennelaki 267/81, vägtrafiklag
267/81) and the 1989 Decree on the Registration of Vehicles (asetus
842/89 ajoneuvojen rekisteröinnistä, förordning 842/89 om registrering
av fordon; now replaced by Decree no. 1703/92) as well as the 1989
Decree on the Inspection of Vehicles (asetus 843/89 ajoneuvojen
katsastuksesta, förordning 843/89 om besiktning av fordon; now replaced
by Decree no. 1702/92) require that a vehicle normally be inspected and
registered before it can be lawfully used in traffic (section 84 of the
1981 Act, as amended by Act no. 818/89, section 8 of Decree no. 842/89
as well as section 17 of Decree no. 843/89). At the relevant time an
appeal against a decision of an Inspection Office lay to the National
Centre and from there to the competent Ministry (section 36(2) of
Decree no. 843/89).
COMPLAINTS
1. The applicant complains that he was denied a fair and impartial
hearing in the proceedings before the National Centre and the relevant
Ministry concerning the conditions attached to the reconstruction
permit. He considers that the proceedings involved a determination of
his civil right to make use of his possessions and submits that the
authorities based their decisions on material which had not been
communicated to him in advance and which he could not therefore
challenge. He was, moreover, refused access to the material even after
the respective authorities had made their decisions. The National
Centre made its decision without affording him reasonable time to
obtain the clarification requested and took his failure to submit such
clarification into account when rejecting his appeal. He invokes
Article 6 para. 1 of the Convention.
2. The applicant also complains that the restrictions on the allowed
total weight on the axles of his reconstructed car violated his
property rights. This weight should have corresponded to that of the
brand model into which he had been permitted to change his car. The
restrictions did not pursue any public interest and were imposed
without any attention having been paid to the views of the importer of
the car brand. In this respect the applicant invokes Article 1 of
Protocol No. 1.
THE LAW
1. The applicant complains that he was denied a fair and impartial
hearing in the proceedings before the National Centre and the relevant
Ministry concerning the conditions attached to the reconstruction
permit. He invokes Article 6 para. 1 (Art. 6-1) of the Convention
which, in so far as it is relevant, reads as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ...
by [a] ... tribunal established by law. ..."
The Commission has first ascertained whether Article 6 para. 1
(Art. 6-1) of the Convention is applicable in the instant case and,
notably, whether there was a dispute over a "civil right" which can be
said, at least on arguable grounds, to be recognised or imposed under
domestic law. The dispute must be genuine and serious and its outcome
must be directly decisive for the "right" in question (e.g., Eur. Court
H.R., Zander v. Sweden judgment of 25 November 1993, Series A no. 279-
B, p. 38, para. 22).
The Commission recalls that Article 6 para. 1 (Art. 6-1) is not
aimed at creating new substantive rights without a legal basis in the
Contracting State, but at providing procedural protection of rights
already recognised in domestic law (e.g., Eur. Court H.R., W. v.
the United Kingdom judgment of 8 July 1987, Series A no. 121-A, p. 32-
33, para. 73). Nevertheless, the notion of "civil rights and
obligations" cannot be interpreted solely by reference to the domestic
law of the respondent State (e.g., Eur. Court H.R., König judgment of
28 June 1978, Series A no. 27, pp. 29-30, paras. 88-89).
The Commission notes that the reconstruction permit was granted
to the applicant on certain conditions. Among other requirements, it
imposed an obligation on him to have the modified car inspected and
registered before it could be lawfully used in traffic. The dispute at
the core of the proceedings referred to in the present complaint did
not concern the subsequent further restriction imposed at the time of
the registration of the modified car. The Commission notes that this
restriction appears to have been separately challenged by the applicant
as going beyond the conditions prescribed in the reconstruction permit
which he apparently considered himself to have complied with.
The Commission therefore finds that the applicant could not
arguably claim that a "right" of his was at stake already in the
proceedings concerning the conditions attached to the reconstruction
permit (cf., e.g., the above-mentioned Zander v. Sweden judgment,
p. 40, para. 25). Accordingly, Article 6 para. 1 (Art. 6-1) of the
Convention is not applicable in the particular circumstances of the
case.
It follows that this complaint must be rejected as being
incompatible ratione materiae with the Convention within the meaning
of Article 27 para. 2 (Art. 27-2).
2. The applicant also complains that the restrictions on the allowed
total weight on the axles of his reconstructed car violated his
property rights. In this respect he invokes Article 1 of Protocol No. 1
(P1-1) 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."
The Commission recalls that 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 (e.g., Eur. Court H.R., Allan Jacobsson judgment of
23 October 1989, Series A no. 163-A, p. 16, para. 53).
The Commission finds that the conditions attached to the
reconstruction permit and the subsequent further restriction on the
allowed weight on the axles of the applicant's car constituted a
control of the use of his possessions which is to be examined under the
second paragraph of Article 1 of Protocol No. 1 (P1-1). Under this
provision the Contracting States are entitled, amongst other things,
to control the use of property in accordance with the general interest
by enforcing such laws as they deem necessary for the purpose. However,
there must exist a reasonable relationship of proportionality between
the means employed and the aim sought to be realised. In striking the
fair balance thereby required between the general interest of the
community and the requirements of the protection of the individual's
fundamental rights, the authorities enjoy a wide margin of appreciation
(ibid., p. 17, para. 55).
The applicant has not alleged that the restrictions were not in
accordance with domestic law and the Commission finds no reason to
conclude otherwise. The Commission finds it reasonable to conclude that
the restrictions were based on traffic security considerations.
Finally, bearing in mind the State's margin of appreciation, it finds
no indication that the restrictions were disproportionate to that
purpose. Accordingly, there is no appearance of a violation of
Article 1 of Protocol No. 1 (P1-1).
It follows that this complaint must 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, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy