E., I. AND M. v. FINLAND



                      AS TO THE ADMISSIBILITY OF

                      Application No. 21342/93

                      by E., I. and M.

                      against Finland

      The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 1996, 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

                 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 6 September 1992

by E., I. and M. against Finland and registered on 5 February 1993

under file No. 21342/93;

      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 27 April 1995 and the observations in reply submitted by

the applicants on 30 June and 18 October 1995;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicants, born in 1915, 1935 and 1944, respectively, are

all Finnish citizens. The first and second applicant reside at Juuka

and the third one at Kauniainen.

      The facts of the case, as submitted by the parties, may be

summarised as follows.

Particular circumstances of the case

      In 1988 the applicants were the owners of a real property,

Toivola 25:4, at Juuka. A dwelling-house and outhouses were located on

it. In the municipal building plan (rakennuskaava, byggnadsplan) the

part of the property occupied by the dwelling-house was reserved for

private construction, while the garden area of the property was

designated for public construction purposes. A further part was

reserved for road purposes.

      On 30 June 1988 the Municipal Council (kunnanvaltuusto, kommun-

fullmäktige) of Juuka decided to amend and enlarge the building plan

so as to enable construction of further municipal buildings. The

amendment and enlargement included designating, for public construction

purposes, the part of the applicants' property which had been reserved

for private construction. The first and the second applicant had

objected to the proposed amendment, arguing that the municipality

already owned enough land of comparable character in the centre of

Juuka.

      On 17 February 1989 the County Administrative Board (läänin-

hallitus, länsstyrelsen) of Northern Karelia rejected the first and the

second applicant's appeal and confirmed the Municipal Council's

decision of 30 June 1988.

      On 15 December 1989 the Supreme Administrative Court (korkein

hallinto-oikeus, högsta förvaltningsdomstolen) partly quashed the

decisions of the County Administrative Board and the Municipal Council,

considering that the designation for public construction purposes of

the part of the applicants' property which had been reserved for

private construction was not justified.

      The applicants later refused an offer by the municipality to buy

those parts of their property which had been designated for public

construction and road purposes. The municipality had offered them about

15 FIM per square metre. In August 1990 it instituted proceedings with

a view to expropriating the relevant parts of their property and, on

26 October 1990, it took possession thereof, following an authorisation

by the Compulsory Acquisition Committee (lunastustoimikunta,

inlösningskommissionen).

      In the ensuing compensation proceedings before the Committee the

applicants requested compensation in the amount of 70 FIM per square

metre. They submitted that land situated in the centre of Juuka and

reserved for business purposes had been sold for up to 130 FIM per

square metre. Their land should have been designated at least as a

densely populated dwelling area the  current price of which would be

at least 70 FIM per square metre. In support of their submissions the

applicants referred to certain sales of comparable land in the

vicinity.

      On 10 April 1991 the Compulsory Acquisition Committee fixed the

compensation to be paid to the applicants at between 19 and 25 FIM per

square metre, depending on the location of the property areas and the

designation affecting them. The Committee based its examination on the

development of, on the one hand, the prices of land as such in the

centre of Juuka and, on the other hand, of the prices of land

particularly reserved for dwelling purposes. It found that the prices

of the last-mentioned character of land were ranging between 20 and

25 FIM per square metre, depending on whether it was located nearer or

further away from the centre of Juuka.

      The Committee also noted that the estimated current sales price

of a piece of land sold in 1979 and reserved for public construction

purposes would be 24 FIM per square metre. It did not regard the

property sales referred to by the applicants as representative of the

current price level. It noted, inter alia, that one of the sales

referred to had concerned land which the municipality had previously

designed as a plot intended for the construction of a block house.

Another piece of land had previously been designed for parish buildings

and the buyer had been a bank.

      On 18 December 1991 the Land Court (maaoikeus, jorddomstolen) of

Eastern Finland amended the Committee's decision and granted the

applicants compensation in the amount of 216.400 FIM which corresponded

to an average of 25 FIM per square metre. The Expert on the Compulsory

Acquisition Committee, a land surveyor, was heard orally before the

Land Court. Contrary to the Compulsory Acquisition Committee, the Land

Court accepted that the totality of the compulsorily acquired land

should be considered as having been designated as a densely populated

dwelling area prior to the two most recent amendments to the building

plan.

      On 16 April 1992 the Supreme Court (korkein oikeus, högsta

domstolen) refused the applicants leave to appeal.

Relevant domestic law

      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). Expropriation of property in the public

interest against full compensation was to be governed by law (section

6, subsection 3). 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).

      According to the 1977 Act on Compulsory Acquisition of Real

Property and Particular Rights (laki 603/77 kiinteän omaisuuden ja

erityisten oikeuksien lunastuksesta, lag 603/77 om inlösen av fast

egendom och särskilda rättigheter), a property may be expropriated if

there is a general need therefor. Expropriation shall, however, not be

resorted to, if its aim may be achieved as well in another manner or

if the inconvenience caused to a private interest is more significant

than the benefit caused to the general interest (section 4,

subsection 1).

      According to the 1958 Building Act (rakennuslaki 370/58,

byggnadslag 370/58), a municipality may expropriate real property, for

instance, for the purpose of implementing a municipal building plan

(sections 50 and 111). Proceedings to this effect shall be instituted

before a Compulsory Acquisition Committee consisting of a presiding

land surveyor as expert and two lay members. The Committee may hear

experts (section 12 of the 1977 Act).

      A property owner is entitled to full compensation for the

economic losses caused by the expropriation (section 29). The sum shall

be fixed on the basis of the current price of the property

(section 30). When the expropriation forms part of the implementation

of, for instance, a building plan or an amendment thereto, any rise in

the value of the land occurring subsequent to the planning decision

shall be ignored. Compensation shall thus be paid for the value

increase corresponding to the rise in the general price level or

otherwise resulting from other circumstances than the planning decision

(section 31).

COMPLAINT

      The applicants complain that their right peacefully to enjoy

their property has been violated as a result of the expropriation of

part of their property Toivola 25:4. They assert that the expropriation

was not justified in the public interest, since, for the construction

purposes announced by the municipality of Juuka, it already owned

suitable and comparable land adjacent to their property. Moreover, the

compensation afforded to the applicants only amounted to 25 FIM per

square metre of expropriated land, while comparable land in the

vicinity of their property and allegedly subjected to the same planning

regulations had, in 1987-93, been sold at 100-167 FIM per square metre.

The applicants invoke Article 1 of Protocol No. 1.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 6 September 1992 and registered

on 5 February 1993.

      On 28 February 1995 the Commission (First Chamber) 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

27 April 1995. The applicants replied on 30 June and 18 October 1995.

THE LAW

      The applicants complain that the expropriation of part of their

property Toivola 25:4 was not justified in the public interest and that

the compensation paid to them did not correspond to the value of the

land. They invoke 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 Government admit that the expropriation interfered with the

applicants' property rights. It was nevertheless subject to conditions

provided for by law both as regards its legal basis as such and as

regards the compensation fixed. Under the 1977 Act the authorities were

obliged to apply the rule of full compensation in accordance with the

market value of the expropriated land. Although, admittedly, the

estimation of that value is difficult, the estimation method used was

neither incorrect nor inadequate and the price fixed lay within a

certain margin of error.

      The Government furthermore submit that the interference was

justified in the public interest, since it was aimed at acquiring an

area which had been designated by the municipality for the construction

of public facilities. The means applied to this end were not

disproportionate to that legitimate aim and a fair balance was struck

between the interests of the community and those of the applicants.

      The Government finally submit that under Finnish law a property

owner is in principle entitled to full compensation for a deprivation

of his property. The term "full" normally means that the current,

probable purchase price of the property shall be reimbursed. In the

estimation of the current value regard must be had to the purchase

prices of similar properties. If, however, a property is compulsorily

acquired for public construction purposes as a result of its inclusion

in, for instance, a municipal building plan, any increase in the

current value resulting from the adoption of, or an amendment to, the

plan shall normally be ignored. The interpretation of the compensation

rules in cases where a plan has been amended is not unambiguous. The

Government stress, however, that Article 1 of Protocol No. 1 (P1-1)

cannot be interpreted as requiring a particular method for the fixing

of compensation for a compulsory acquisition of property. In the

applicants' case the method used and the compensation fixed were not

manifestly unreasonable.

      The applicants maintain that their property rights were violated

both as a result of the expropriation in itself and on account of the

low compensation amount. As for the expropriation itself, they

underline that no regard was had to the fact that similar land

designated for public construction was already in the municipality's

possession and located next to their property.

      As regards the compensation amount, the applicants stress that

the authorities only had regard to the prices of land designated as

densely populated dwelling areas and failed to take into account the

prices concerning land designated for public construction. As is

evident also from the now completed construction on the expropriated

land, much more construction volume is allowed on such land than on

plots designated as densely populated dwelling areas. The compensation

amount should therefore have been higher.

      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., Fredin judgment of 18 February 1991,

Series A no. 192, p. 14, para. 41).

      The Commission finds that the expropriation of part of the

applicants' real property constituted a deprivation of their

possessions which is to be examined under the second sentence of the

first paragraph of Article 1 of Protocol No. 1 (P1-1) (cf. Eur. Court

H.R., Papamichalopoulos and Others v. Greece judgment of 24 June 1993,

Series A no. 260-B, pp. 69-70, paras. 41-46). Such a deprivation must

pursue a legitimate aim in the public interest and conform to the

conditions provided for by law.

      In the present case it is not in dispute that the deprivation was

"subject to the conditions provided for by law". As to the requirement

of a legitimate aim in the public interest, the Commission recalls that

because of their direct knowledge of their society and its needs the

national authorities are in principle better placed that the

international judge to appreciate what is "in the public interest". In

performing their assessment the national authorities therefore enjoy

a wide margin of appreciation (e.g., Eur. Court H.R. James and Others

judgment of 21 February 1986, Series A no. 98, p. 32, paras. 46).

      The Commission considers that the deprivation of part of the

applicants' property had the legitimate aim of implementing the

municipal building plan in which the land at issue had been reserved

for public construction purposes in accordance with the 1988 amendment

to the building plan. The Commission finds no substantiation of the

applicants' allegation that the deprivation was unnecessary,

considering the land which the municipality allegedly already owned in

the vicinity. In any case, the proper proceedings in which to put such

an argument were the planning proceedings ending with the Supreme

Administrative Court's judgment of 15 December 1989. The Commission

notes that this argument was indeed put in the first and the second

applicant's appeal to the Supreme Administrative Court against the 1988

amendment to the building plan. As a result of their appeal the

designation of part of their property as an area to be used for private

construction was retained. In these circumstances and having regard to

State's margin of appreciation the Commission accepts that the

deprivation of the remaining part of the applicants' property for the

purpose of implementing the building plan took place in the public

interest.

      There must, however, also exist a reasonable relationship of

proportionality between the means employed and the aim sought to be

realised by virtue of a deprivation of property (ibid., p. 34,

para. 50). Although Article 1 of Protocol No. 1 (P1-1) does not

guarantee a particular amount of compensation for a deprivation of

property, deprivation without a compensation "reasonably related" to

the value of a property would normally constitute a disproportionate

interference with the owner's property rights (e.g., Eur. Court H.R.,

Lithgow and others judgment of 8 July 1986, Series A no. 102, pp. 50-

51, para. 121). The Convention organs' power of review is limited,

however, to ascertaining whether the choice of compensation terms falls

outside the State's margin of appreciation (e.g., the above-mentioned

James and others judgment, p. 36, para. 54).

      The Commission observes that under domestic law the applicants

were to receive full compensation for the deprivation of their

property. It goes without saying that the value to be compensated is

not easily defined. The Commission cannot find any indication that the

relevant authorities arbitrarily failed to consider the arguments put

forward by the applicants as regards the criteria to be used for

estimating that value. Nor can it find that the compensation fixed for

the deprivation of their property was not in reasonable relation to its

value.

      The Commission finally recalls that, 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 (cf., e.g., Eur. Court H.R., Agosi judgment of 24 October

1986, Series A no. 108, p. 19, para. 55; Eur. Court H.R., Hentrich v.

France judgment of 22 September 1994, Series A no. 296-A, p. 21,

para. 49).

      In the present case the Commission finds that the proceedings

viewed as a whole afforded the applicants a reasonable opportunity of

putting their case to the responsible authorities with a view to

establishing a fair balance between the conflicting interests at stake.

Having regard to its considerations above, the Commission can accept

that such a balance was struck in their case. Accordingly, there is no

appearance of a violation of Article 1 of Protocol No. 1 (P1-1) in the

particular circumstances of this case.

      It follows that the application 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, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber       President of the First Chamber

      (M.F. BUQUICCHIO)                      (C.L. ROZAKIS)

 

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