AS TO THE ADMISSIBILITY OF
Application No. 19761/92
by Sulo ESKELINEN and 54 others
against Finland
The European Commission of Human Rights sitting in private on
10 October 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
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 29 January 1991
by Sulo ESKELINEN and 54 others against Finland and registered on
24 March 1992 under file No. 19761/92;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on
5 April 1993 and the observations in reply submitted by the
applicants on 12 July and 10 October 1993 as well as on
15 June and 5 September 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are set out in the Annex to the decision. They are
owners of properties in the area of Koli. All individuals are Finnish
citizens. Before the Commission the applicants are represented by the
association "Pohjois-Karjalan Talous ja Luonto".
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
At its unofficial evening session on 13 June 1990 the Government
decided "in principle" (periaatepäätös, principbeslut) to create a
natural park in an area of over 20 km2 within the boundaries of the
city of Lieksa and, more precisely, the hills between Koli and
Vesivaara as well as the islands in the lake of Purjeselkä in the
Pielinen lake district.
On 22 November 1990 the Government, sitting in their capacity as
Council of State (valtioneuvosto, statsrådet), decided to propose to
the President of the Republic that he present a Government Bill
regarding the establishment of the park. A draft Bill had been
submitted for comments to, inter alia, the municipalities concerned.
The municipalities had furthermore been requested to provide the owners
of properties within the proposed so-called outline objective (tavoite-
rajaus, åsyftad gränsdragning), i.e. the areas intended to be acquired
for inclusion in the park, with an opportunity to submit their
comments.
In the preamble to the relevant Bill submitted to Parliament by
the President of the Republic on 23 November 1990 (hallituksen
esitys 307/90, regeringens proposition 307/90) the Government stated,
inter alia:
(translation from Finnish)
"It is proposed to create the Koli natural park ... within
an area of 1.135 hectares. ... The area to be protected is
owned by the State ... It is intended to extend the park to
about 2.500 hectares at a later stage. The final extent of
the park appears from the map annexed to this Bill. ..."
In the commentary to the Bill the Government referred to a
regional plan (seutukaava, regionplan) confirmed by the Council of
State in 1979, reserving 975 hectares of the Koli hill area and the
islands in the Pielinen lake district as an area conservable in
accordance with the 1923 Conservation Act (luonnonsuojelulaki 71/23,
lag 71/23 om naturskydd; hereinafter "the 1923 Act"). Moreover, the
Ministry for the Environment (ympäristöministeriö, miljöministeriet)
had, in 1987, confirmed a decision by the City Council (kaupungin-
valtuusto, stadsfullmäktige) of Lieksa to adopt a partial general plan
(osayleiskaava, delgeneralplan) for the Koli hill area. The conservable
area had, with the exception of the islands, been included in that
plan.
In the commentary to the Bill the Government further stated,
inter alia:
(translation from Finnish)
"... The Koli natural park is intended to be extended to
about 2.500 hectares in accordance with the map enclosed
with the Bill. This presupposes the acquisition of about
1.500 hectares of areas by the State ... It is ... the
intention to see to it that no activities significantly
affecting the natural state ... are being carried out
within the area to be acquired. In this respect it is
intended to apply the same practice as in respect of
private properties protected for natural park purposes on
the basis of other decisions of principle made by the
Government. The acquisition of the properties on which no
activities of the above-mentioned kind are being carried
out will take place at a later stage according to a
schedule separately agreed to by the conservation
authorities and the property owner. ..."
The map indicating the so-called outline objective did not
specify the properties concerned.
According to the applicants, the outline objective covers an area
forming part not only of the city of Lieksa, but also of the
municipalities of Kontiolahti and Eno. With the exception of certain
islands the area within the outline objective has not been reserved in
the regional plan of 1979 as conservable areas. Moreover, apart from
three property units and one island the partial general plan of 1987
only includes State properties. The area belonging to the city of
Lieksa is covered by a partial general plan adopted by the City Council
in 1986, the decision not having been confirmed by the Ministry for the
Environment, and thus constitutes a so-called general plan of the first
degree (for the legal effects of such a plan, see the jurisprudence of
the Supreme Administrative Court below under "Relevant domestic law and
practice", para. 5). In that plan only two sub-areas, namely the
islands in the Purjeselkä lake district and a grove at Murhivaara have
been reserved as conservable areas, the islands on the basis of the
so-called ridge protection programme adopted by the Council of State
in 1984 and the grove on the basis of the so-called grove protection
programme adopted by the Council of State in 1989. A further area
within the outline objective near the hill of Paimenenvaara is covered
by a shore plan (rantakaava, strandplan) adopted by the City Assembly
of Lieksa in July 1990. This plan reserves part of the area as a
conservable one. As finally regards the areas within the outline
objective situated in the municipalities of Kontiolahti and Eno, a
partial general plan is being drawn up. In January 1991 there were five
leisure houses within the outline objective.
In the course of the consideration of the Bill by Parliament both
the Standing Parliamentary Committee for Constitutional Affairs
(perustuslakivaliokunta, grundlagsutskottet) and the then Standing
Parliamentary Committee for Legal and Economic Affairs (laki- ja
talousvaliokunta, lag- och ekonomiutskottet) considered that the
commentary to the Bill expressing the Government's intentions to extend
the park area by acquiring private properties was not legally binding.
By a letter of 23 November 1990 to the County Administrative
Board (lääninhallitus, länsstyrelsen) of Northern Karelia the Ministry
for the Environment drew the Board's attention to Bill no. 307/90,
according to which about 1.500 hectares of private properties were
intended to be acquired in order for the park to achieve its final
size. The Ministry therefore wished that the Board would promote
voluntary property sales. Reference was also made to the Government's
intention, as expressed in the Bill, to prevent any activity within the
outline objective that would significantly change the natural state of
the area. The Ministry continued:
(translation from Finnish)
"...In the extension of [the park area] [the County
Administrative Board] should (in Finnish "tulisi")
therefore rely on the principles applied with regard to the
implementation of other natural parks including private
properties [and established by] decisions of principle of
the Council of State. In this respect the Ministry refers
to the circular letter of the Ministry of Agriculture and
Forestry (maa- ja metsätalousministeriö, jord- och
skogsbruksministeriet) of 14 April 1983 to the County
Administrative Boards. The Ministry [for the Environment]
is of the opinion that in the implementation of the Koli
Natural Park the principles stated in [that] letter shall
(in Finnish "tulee") be applied. As regards construction
within the proposed park area, sections 52 and 124 of the
1959 Building Decree [rakennusasetus 266/59,
byggnadsförordning 266/59; hereinafter "the 1959 Decree"],
as amended by Decree no. 480/90, shall be applied (in
Finnish "on noudatettava")...."
In its circular letter of 14 April 1983 the Ministry of
Agriculture and Forestry had stated, inter alia, the following:
(translation from Finnish)
"... In practice cases have appeared where drainage has
been carried out on private land [proposed to form part of
a natural park or a protected swamp]. In such cases it is
evident that the property owner will not take any measures
in order to have his property protected [under section 9 of
the 1923 Act] and that the property cannot be bought from
the owner before its value as a property to be protected
has significantly decreased. Such properties are therefore
normally to be acquired by means of expropriation under
section 18 para. 1 of [the 1923 Act]. ... Accordingly, also
the conditions for issuing an activity prohibition
(toimenpidekielto, åtgärdsförbud) under section 18,
subsection 2 are fulfilled. The County Administrative
Boards should (in Finnish "tulisi") therefore, having been
informed of ... drainage [taking place on a property],
immediately issue an activity prohibition. In respect of
properties located within the boundaries of a national park
an activity prohibition should (in Finnish "tulisi") also
be issued in situations where logging, taking of gravel or
construction not agreed to by [the Ministry] is being
carried out. [The Ministry] shall immediately be informed
of any prohibition on activity and will proceed to having
the property expropriated.
...
Finally, the Ministry draws the Boards' attention to the
fact that, in the absence of an explicit request by [the
Ministry], the conditions under section 18, subsection 2 of
[the 1923 Act] warranting an activity prohibition are not
normally fulfilled in respect of any other areas than those
stated in the above [programmes for nature conservation]."
In a further circular letter of 3 October 1986 from the Ministry
for the Environment to all County Administrative Boards, Municipal
Boards (kunnanhallitukset, kommunstyrelser) and Regional Planning
Authorities the Ministry had stated that conservation programmes
adopted by the Council of State shall (in Finnish "tulee") be taken
into account in the planning in order to further the realisation of the
programmes.
In February 1991 all applicants except applicant no. 15 lodged
both an ordinary and an extraordinary appeal (kantelu, klagan) with the
Supreme Administrative Court (korkein hallinto-oikeus, högsta
förvaltningsdomstolen) against Bill no. 307/90. They submitted, in
essence, that a prohibition on construction and other activities within
the outline objective had entered into effect immediately upon the
Government's decision of principle to establish the Koli Natural Park.
The restrictions on the use of their properties had caused the
appellants considerable financial damage. The inclusion of private
properties in the park had only been mentioned in the Government's
commentary to the Bill. The Parliament had, however, not been competent
to examine the commentary to the Bill, but only the provisions of the
proposed statute. Moreover, the ministerial "order" of 23 November 1990
had been written in an imperative form, leaving no room for discretion.
Any subsequent measure taken by the regional and local administrative
authorities could only amount to an enforcement of the decision of the
Council of State to establish the outline objective. The legal effects
of the outline objective were somewhat similar to those of certain
planning decisions made in accordance with the 1958 Building Act
(rakennuslaki 370/58, byggnadslag 370/58; hereinafter "the 1958 Act")
and entailing an immediate de jure prohibition on construction.
Considering all the elements together, the outline objective and the
related restrictions on the applicants' use of their properties had
become de facto binding on 23 November 1990, although in the absence
of any legal basis. Finally, despite its alleged effects on their
properties the applicants had neither been heard prior to the decision
nor had they received subsequent notification of it.
On 6 February 1991 applicants nos. 14 and 15 informed the
authorities of their intention to log forest on their property Erämaa
28:18 at Kontiolahti which is located within the outline objective.
On 15 February 1991 the Act on the Koli Natural Park (laki 581/91
Kolin kansallispuistosta, lag 581/91 om Koli nationalpark; "the 1991
Act") was enacted by Parliament.
On 14 March 1991 the County Administrative Board issued an
activity prohibition with regard to Erämaa 28:18, apparently valid for
one year. The Board stated, inter alia:
(translation from Finnish)
"... The extension of the ... park is intended to take
place either through voluntary sales or property exchanges.
It is furthermore intended that no activities significantly
changing the natural state be carried out within the ...
outline objective. The logging planned [by applicants nos.
14 and 15] must be considered to significantly change the
natural state of the area. [Applicants nos. 14 and 15] have
... stated their unwillingness to sell [their property] to
the State or to exchange it [for another property] ... and
have stated that they are unwilling to postpone the logging
pending negotiations. A question of expropriation for
conservation purposes must therefore be considered to have
arisen. ..."
In a resolution (ponsi, kläm) adopted on 27 March 1991 Parliament
(eduskunta, riksdagen) presupposed that the Council of State would
ensure that the legal status and protection of the private property
owners affected by the 1991 Act were not jeopardised. Parliament
further required that the park area only be extended through voluntary
property sales or exchanges. Resolutions of this character are not
legally binding.
Following the expiry of the activity prohibition concerning the
property Erämaa 28:18 the County Administrative Board on 9 November
1992 decided to grant applicants nos. 14 and 15 compensation for the
losses suffered by them on account of the prohibition.
On 10 April 1991 the 1991 Act entered into force. A Decree
(asetus 674/91 Kolin kansallispuistosta, förordning 674/91 om Koli
nationalpark; hereinafter "the 1991 Decree") was issued on
12 April 1991 and entered into force on 1 May 1991, but it applies only
to State-owned land within the park area.
On 17 May 1991 the Supreme Administrative Court dismissed the
appeals lodged by all applicants except applicant no. 15, finding that
it had no competence to examine a legislative matter.
In a letter of 21 May 1991 to the association representing the
applicants before the Commission the Ministry for the Environment
considered the outline objective to be valid as it appeared from Bill
no. 307/90. The Ministry referred to the Supreme Administrative Court's
decision and its own letter of 23 November 1990.
The association representing the applicants has unsuccessfully
attempted to obtain confirmation from the County Administrative Board
and the Ministry for the Environment of the properties included in the
outline objective. The County Administrative Board itself has also
requested the Ministry to clarify the legal situation in respect of the
private properties to be included in the park. With the exception of
the above-mentioned ministerial letter of 21 May 1991 no such
clarification has been provided.
On 30 November 1992 the Parliamentary Ombudsman (eduskunnan
oikeusasiamies, riksdagens justitieombudsman) rendered his decision in
response to complaints lodged by, inter alia, the association
representing the applicants before the Commission. The Ombudsman
considered as regards, inter alia, the letter from the Ministry for the
Environment on 23 November 1990
- that the Ministry had incorrectly considered the outline
objective referred to in the commentary to Bill no. 307/90
to be on an equal footing with nature conservation
programmes adopted by the Council of State through
decisions "of principle";
- that the outline objective could not be placed on an
equal footing with areas to which sections 52 and 124 of
the 1959 Building Decree are applicable;
- that as a result the Ministry had incorrectly ordered the
municipal Building Boards (rakennuslautakunnat,
byggnadsnämnderna) to hear the County Administrative Board
in accordance with those provisions, when considering a
request for a permit for construction;
- that no actual decision had been made by the Council of
State in regard to the outline objective;
- that the Ministry's letter was only an internal
administrative letter containing a directive (toimiohje,
direktiv) to a lower-ranking authority;
- that the Ministry's view expressed in the Government's
commentary to Bill no. 307/90 to the effect that the
private properties within the outline objective should be
acquired by the State, did not constitute a redemption
decision and thus did not as such grant the State any right
to proceed to redemption of properties without a redemption
permit issued in accordance with the 1977 Redemption Act
(laki 603/77 kiinteän omaisuuden ja erityisten oikeuksien
lunastuksesta, lag 603/77 om inlösen av fast egendom och
särskilda rättigheter; hereinafter "the 1977 Act");
- that the Ministry's view that the properties within the
outline objective fulfilled the requirements for areas
prescribed in section 1 of the 1923 Act created the
conditions for interfering with the rights of the affected
property owners, albeit in subsequent proceedings under the
1923, 1958 or 1977 Acts;
- that, although the Ministry's intention to maintain the
areas within the outline objective in their natural state
did not prohibit the use of the properties, the outline
objective was causing de facto restrictions on the property
owners' right to use their properties similar to those
caused by the so-called shore conservation programme
(rantojensuojeluohjelma, strandskyddsprogrammet) adopted in
principle by the Council of State on 20 December 1990;
- that the outline objective had thus created a de facto
threat of expropriation which was forcing an affected
property owner to abstain from using his property contrary
to the aim of the outline objective;
- that this de facto threat could not be considered as a
deprivation of property, but as an interference with the
owner's right to the peaceful enjoyment of his possessions,
as enshrined in the first sentence of the first paragraph
of Article 1 of Protocol No. 1 to the Convention;
- that it was questionable whether this interference could
be considered justified by the second paragraph of Article
1, as the outline objective did not appear in the 1991 Act
and there was no appeal against it;
- that under the relevant laws, however, court remedies
were available to property owners wishing to challenge an
activity prohibition, a building prohibition, a redemption
permit or the compensation amount received in redemption
proceedings; and, in conclusion,
- that the outline objective could not be considered to be
clearly in breach of section 6 of the Constitution Act nor
of Article 6 of the Convention or Article 1 of Protocol
No. 1; but
- that, considering the factual effects which the outline
objective was causing to the property owners, it should
have been prescribed by law; and
- that the outline objective should at least have been
formally decided by the Council of State and not have been
imposed by a decision of principle, the possibility of
making decisions of the last-mentioned character not being
prescribed by law.
Prior to 23 November 1990 the first applicant and applicants
nos. 20-23, whose property Tarhalahti 18:12 is not located within the
area covered by the outline objective, was granted a permit for the
construction of a leisure house on that property. The house was also
built prior to 23 November 1990.
Applicant no. 11, whose property is located within the area
covered by the outline objective, has also been granted a permit for
the construction of a leisure house. It is unknown whether the permit
was granted before or after 23 November 1990.
By a letter of 14 December 1992 to the County Administrative
Board the Ministry for the Environment stated that it had incorrectly
placed the outline objective on an equal footing with a conservation
programme adopted by the Council of State.
On 12 January 1993 the Building Board of Lieksa ordered the
State-owned Forest Research Institute (metsäntutkimuslaitos,
skogsforskningscentralen) to accept that the first applicant and
applicants nos. 20-23 dig a cable for electricity into the ground of
a property owned by the Institute and located within the original park
area. The cable was intended to serve those applicants' leisure house
located on the property Tarhalahti 18:12. The Institute had rejected
a request by the applicants at issue in October 1991 and December 1992,
referring to an opinion of the Ministry for the Environment of November
1992. The Ministry had underlined that any electrification within the
park area would have to comply with the limitations on the use of the
property prescribed in section 1 of the 1991 Decree.
An appeal lodged by the Forest Research Institute against the
decision of the Building Board was rejected by the County
Administrative Court (lääninoikeus, länsrätten) of Northern Karelia on
7 May 1993. The Court noted that under section 8 of the 1923 Act the
relevant conservation measures did not limit an already acquired
private right. According to the plan of the area confirmed by the
Ministry for the Environment in 1987, the applicants at issue had been
granted a right in principle to construct a leisure house. The right
to obtain electrification for the house was considered as part and
parcel of the right of the applicants at issue to use their house. The
applicants had therefore already prior to the entry into force of the
1991 Decree acquired a right to dig, if necessary, an electricity cable
on the Institute's property. The Court further noted that no steps had
been taken by the State to expropriate the property Tarhalahti 18:12
or any of the rights pertaining to it.
In a further appeal to the Supreme Administrative Court the
Forest Research Institute maintained that the 1923 and 1991 Acts
superseded the 1958 Act. The Institute further referred to
"conservation decisions on a national level" in regard to the use of
"the area of Koli" which deviated from the plan confirmed by the
Ministry in 1987. The appeal is still pending.
Relevant domestic law and practice
1. The 1991 Act on the Koli Natural Park
Section 2 para. 1 of the 1991 Act reads:
"The area of the Koli natural park amounts to about 1.135
hectares and its boundaries are marked on the map enclosed
with this Act."
2. The conditions for the establishment of conservation areas
Section 1 of the 1923 Act (as amended by Act no. 399/41) concerns
State-owned real property. Such property may be reserved as a general
conservation area for the purpose of protecting it from interferences
by man (subsection 1). A specific conservation area may also 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 (subsection 2). A conservation order made in
accordance with the above-mentioned provisions shall not limit a right
of a private party which was acquired prior to the conservation
(section 8).
Section 9 of the 1923 Act (as amended by Act no. 672/91) concerns
private properties. On request by the property owner the County
Administrative Board may declare a property of significant importance
from the point of view of nature conservation as a specific
conservation area pursuant to section 1, subsection 2 (subsection 1).
3. Expropriation
Under the 1919 Constitution Act (hallitusmuoto 94/19,
regeringsform 94/19) the right of Finnish citizens to their possessions
shall be secured by law (section 6, subsection 1). Expropriation of
property in the public interest against full compensation shall be
governed by law (subsection 3).
In accordance with the 1977 Act the State may expropriate real
property for the purpose of creating a conservation area (section 18,
subsection 1 of the 1923 Act, as amended by Act no. 672/91).
A property may be expropriated if there is a general need
therefor. Expropriation shall, however, not be resorted to, if its aim
may also be achieved in another manner or if the inconvenience caused
to a private interest is more significant than the benefit to the
general interest (section 4, subsection 1 of the 1977 Act).
Expropriation permits are granted by the Council of State or, in
certain cases, by the competent County Administrative Board or another
administrative authority (section 5, subsection 1 of the 1977 Act). A
permit is not needed if another decision already entails a right to
proceed to expropriation (subsection 2, as amended by Act no. 1110/82).
A property owner is entitled to full compensation for the
economic losses caused by the expropriation. The sum shall be fixed on
the basis of the market price of the property (sections 29 and 30 of
the 1977 Act).
4. Restrictions on the use of real property
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 an expropriation in accordance
with the 1923 and 1977 Acts. The prohibition is immediately enforceable
irrespective of appeal proceedings, unless the appeal body decides
otherwise. If no expropriation takes place a compensation shall be
fixed by the Board for any damage or inconvenience caused by the
prohibition (section 18, subsection 2 of the 1923 Act, as amended by
Act no. 672/91).
If an expropriation permit has been granted the property at issue
shall not be used in a manner which could jeopardise the aim of the
expropriation. This prohibition is in force until the expropriation
proceedings have terminated or until the moment when the expropriation
matter is struck off. In the last-mentioned case compensation for
losses or inconvenience caused by the prohibition shall be paid by the
State (section 18, subsection 3 of the 1923 Act, as amended by Act
no. 672/91).
The competent County Administrative Board shall be heard by the
local Building Board in respect of a request for a building permit
pertaining to a property located, inter alia, within an area included
in a conservation programme adopted by the Council of State. The County
Administrative Board's opinion shall be given within six months
(section 52, subsection 3 of the 1959 Decree, as amended by Decree
no. 480/90 which entered into force on 1 June 1990). Section 124,
subsection 3 of the 1959 Decree (as amended by Decree no. 480/90)
provides for similar conditions in respect of a request for a building
permit pertaining to a property covered by a building plan
(rakennuskaava, byggnadsplan). Finally, section 137 (as amended by
Decree no. 480/90) provides for a similar procedure with regard to a
request for a building permit within an area not covered by a town plan
(asemakaava, stadsplan), building plan or shore plan. The Ministry for
the Environment may, if it deems it necessary, order a municipality to
adopt or amend a certain plan within a fixed period of time. The order
entails a building prohibition and an activity prohibition applicable
to the area indicated in the order. If necessary, the Ministry may
proceed to having the municipality comply with the order under threat
of an administrative fine (uhkasakko, vite) (section 143,
subsection 1 of the 1958 Act, as amended by Act no. 626/69, and
subsection 7, as amended by Act no. 556/81).
The use of the State-owned properties included in the Koli
Natural Park is governed by section 1 of the 1991 Decree which
prohibits certain activities which could adversely affect the
conservable values on the properties.
5. Case-law of the Supreme Administrative Court
In a judgment of 22 June 1992 the Supreme Administrative
Court considered an appeal lodged by owners of properties against
the so-called national shore conservation programme (rantojensuojelu-
ohjelma, strandskyddsprogrammet) adopted by the Council of State on
20 December 1990. The Court considered that due to the actual effects
of the programme owners of properties within the area covered by the
programme had a locus standi as appellants. Their appeals were,
however, rejected after an examination on the merits.
In a judgment of 1974 (no. II 66) the Supreme Administrative
Court found that a so-called general plan of the first degree was
considered appealable in view of its immediate legal effect. This view
was confirmed by the Supreme Administrative Court in a 1978 judgment
(no. II 37).
COMPLAINTS
1. The applicants complain that they were never heard during the
procedure for creating the park and that they had no possibility of
obtaining a court review of the restrictions on the use of their
properties resulting from the inclusion of their properties in the
outline objective and the relevant ministerial "orders". They invoke
Article 6 para. 1 of the Convention.
2. The applicants further complain that as a result of the outline
objective, as included in the commentary to the Bill no. 307/90, and
the related ministerial "order" of 23 November 1990 their properties
are being subjected to a de facto activity prohibition or at least to
a de facto restriction on their right to use the properties. This
constitutes an unjustified interference with their property rights. The
outline objective allegedly lacks a legal basis. Moreover, together
with the ministerial "order" it is preventing almost any use of their
properties for an unlimited period of time and is subjecting them to
an expropriation threat. At the same time, however, the applicants are
taxed for their properties. Finally, the applicants are unable to
receive compensation for their alleged financial losses suffered as a
result of the ongoing situation. The applicants invoke Article 1 of
Protocol No. 1 to the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 29 January 1991 and registered
on 24 March 1992.
On 30 November 1992 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on its admissibility and merits.
The observations were submitted by the respondent Government on
5 April 1993 following two extensions of their time limit. Observations
in reply were submitted by the applicants on 12 July 1993. Additional
observations were submitted by them on 10 October 1993 and
15 June 1994.
THE LAW
1. The applicants complain that they were never heard during the
procedure for creating the park and that they had no possibility of a
court review of the restrictions on the use of their properties
resulting from the inclusion of their properties in the outline
objective and the relevant ministerial "order". They invoke Article 6
para. 1 (Art. 6-1) of the Convention which, insofar 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 an independent and impartial tribunal established by
law. ..."
The Government consider that those of the applicants who have
sold their properties or who have received compensation for an activity
prohibition issued under section 18 of the 1923 Act cannot claim to
have the status of "victim[s]" within the meaning of Article 25
(Art. 25) of the Convention. As far as the complaint has been lodged
by those applicants, it should therefore be considered incompatible
ratione personae with the provisions of the Convention. As far as the
remaining applicants are concerned, the Government argue that Article
6 para. 1 (Art. 6-1) is not applicable to the complaint. The
presentation of Bill no. 307/90 to Parliament on 23 November 1990 was
not, even if considered in combination with the letter from the
Ministry for the Environment of the same day, decisive for the
applicants' "civil rights". The measures were of public law character
and only subsequent proceedings under special legislation would
determine the applicants' "civil rights". On the one hand, the
decisions which could be made by the authorities in such proceedings
do not presuppose the publication of an outline objective. On the other
hand, a request for a building permit could not be rejected solely on
the basis of an outline objective, since the legal conditions for
granting a permit are to be examined in pursuance of the 1958 Act. In
conclusion, no measures have been taken in the applicants' case which
would not have been possible to take already without the outline
objective.
The applicants maintain that they can all claim to be "victim[s]"
within the meaning of Article 25 (Art. 25) of the Convention. Faced
with the choice of selling their properties or not using them in a
profitable manner the property owners who have sold their properties
have de facto been forced to do so.
The applicants further maintain that their "civil rights" within
the meaning of Article 6 para. 1 (Art. 6-1) were determined already as
a result of the inclusion of their properties in the outline objective
through the commentary to Bill no. 307/90 and as a result of the
ministerial "order" of 23 November 1990 formally confirming the
existence of the outline objective. Reference is made, inter alia, to
the Ministry's letter of 21 May 1991 in which this position was upheld.
The de facto repercussions on the applicants' properties resulting from
the outline objective have forced the applicants to abstain from
construction, forestry measures and practically all use of their
properties in order to avoid activity prohibitions being issued on the
basis of the outline objective. The threat of such prohibitions being
issued is a real one, as shown by the prohibition issued in regard to
the property belonging to applicants nos. 14 and 15.
The Commission considers it unnecessary to determine whether for
the purposes of the present complaint the applicants can all claim to
be "victim[s]" within the meaning of Article 25 (Art. 25) of the
Convention, as the complaint is in any event inadmissible for the
following reasons.
The Commission must first ascertain whether Article 6 para. 1
(Art. 6-1) 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 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., Oerlemans judgment of
27 November 1991, Series A no. 219, pp. 20-21, paras. 45-49).
In the present case the Commission considers that there existed
a dispute concerning the lawfulness of the outline objective and the
allegedly related restrictions on the applicants' use of their
properties, the right of property clearly being a "civil right" within
the meaning of Article 6 para. 1 (Art. 6-1) (e.g. Eur. Court H.R.,
Zander judgment of 25 November 1993, Series A no. 279-B, p. 40,
para. 27; cf. also O. v. Austria, Comm. Report 14.5.93, para. 34,
pending before the European Court of Human Rights and to be published
in Series A).
The Commission finds that the outline objective as such, as
expressed in the commentary to Bill no. 307/90 and the ministerial
letter of 23 November 1990, did not in itself entail any de jure
activity prohibition served on individualised property owners and
restricting the applicants' right to use their properties without
seeking prior authorisation (cf., a contrario, the above-mentioned
Oerlemans judgment, p. 10, para. 16; Eur. Court H.R., de Geouffre de
la Pradelle judgment of 16 December 1992, Series A no. 253-B,
pp. 42-43, para. 33; Eur. Court H.R., Allan Jacobsson judgment of
23 October 1989, Series A no. 163, pp. 19-20, paras. 68-71). Nor did
the outline objective entail a refusal to authorise certain use of the
properties (cf., a contrario, Eur. Court H.R., Skärby judgment of
8 June 1990, Series A no. 180-B, pp. 36-37, para. 28) or a revocation
of any permit already permitting certain use of the properties
(cf., a contrario, Fredin v. Sweden (no. 1), Comm. Report 6.11.89,
paras. 90-91, Eur. Court H.R., Series A no. 192, p. 34, and the
above-mentioned de Geouffre de la Pradelle judgment, p. 43, para. 34).
Finally, the outline objective neither constituted the issuing of an
expropriation permit nor did it amount to an amendment of a plan
capable of otherwise extinguishing any of the applicants' property
rights (cf., a contrario, Eur. Court H.R., Sporrong and Lönnroth
judgment of 23 September 1982, Series A no. 52, pp. 29-30, para. 80,
and Eur. Court H.R., Mats Jacobsson judgment of 28 June 1990, Series A
no. 180-A, pp. 13-14, para. 33).
The Commission considers that the non-binding character of the
outline objective as a mere declaration of the Government's intentions
is further supported by the lack of individualisation even of the
property units affected. Indeed, the association representing the
applicants before the Commission and even the competent County
Administrative Board appear to have been unsuccessful in attempting to
clarify which properties should be considered as included in the
outline objective.
The Commission therefore accepts that in the particular
circumstances of the present case the dispute at issue was not directly
decisive for the applicants' "civil rights". Accordingly, Article 6
para. 1 (Art. 6-1) of the Convention is not applicable.
It follows that the 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 applicants further complain that the restrictions on the use
of their properties resulting from their inclusion in the outline
objective and the relevant ministerial "orders" interfere with their
rights in an unjustified manner. They invoke 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."
The Government again object to some of the applicants claiming
to have status of "victim[s]" within the meaning of Article 25
(Art. 25) of the Convention. As regards the applicants who have not
sold their properties, the Government argue that the provision is not
applicable, since the applicants' property rights have not been
interfered with. In practice, the applicants have retained all rights
relating to the ownership of their properties. Their assertion that
practically any activity on their properties would automatically result
in an activity prohibition is groundless. The applicants are completely
free to use and sell their properties. In this respect the Government
refer to the situation of the first applicant together with applicants
nos. 20-23, and to that of applicant no. 11. These applicants have been
granted permits for the construction of leisure houses. The Government
claim that in April 1993 applicant no. 11 had already proceeded to the
logging of forest in order to facilitate transportation to the
construction site. Moreover, a permit was granted for the digging of
an electric cable serving the leisure house on the property of the
first applicant and applicants nos. 20-23. Other permits have also been
issued, allowing construction on properties within the outline
objective. Forestry measures have also been carried out within the
outline objective. An activity prohibition has been issued only in
regard to the property owned by applicants nos. 14 and 15. This
prohibition was upheld on their appeal, but compensation was duly
granted to them for the inconvenience caused by the prohibition.
The Government emphasise that uncertainty among property owners
due to planning intentions on the part of public authorities is not
sufficient to constitute an interference with their property rights.
Should the Commission, however, find that the measures complained of
amount to an interference with the applicants' right to the peaceful
enjoyment of their possessions, the Government consider the complaint
to be manifestly ill-founded. The interference has been of a merely
indirect character and very limited, in particular in time. In
April 1993 over 1.000 hectares, i.e. about 80 per cent of the surface
within the outline objective, had already been sold voluntarily to the
State.
The Government conclude that any interference has been
proportionate to the aim of nature conservation, particularly in the
light of the wide margin of appreciation afforded to Contracting States
in the field of property rights. Finally, the applicants have had, and
continue to have, remedies at their disposal enabling them to challenge
the restrictions on the use of their properties as well as the amount
of compensation granted therefor.
The applicants maintain that as from 23 November 1990 they have
been unable peacefully to enjoy their possessions. The appeals lodged
by the Institute for Forest Research against the decisions granting the
first applicant and applicants nos. 20-23 a right to dig an electricity
cable over State-owned property shows that even properties adjacent to
the outline objective, "may face difficulties". Moreover, the Ministry
for the Environment has allegedly attempted to prevent the same
applicants from using their lawful right of way to their property.
Finally, although it is true that applicant no. 11 has been granted a
building permit he has abstained from availing himself of it for fear
of expropriation proceedings being instituted by the County
Administrative Board on the basis of the ministerial "order" of
23 November 1990.
For the purposes of the present complaint the Commission does not
consider it necessary to determine whether all applicants can claim
status as "victim[s]" within the meaning of Article 25 (Art. 25) of the
Convention, since the complaint is in any event inadmissible for the
following reasons.
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., the above-mentioned Allan Jacobsson judgment, p. 16,
para. 53).
The Commission is satisfied that the situation complained of did
not amount to a deprivation of possessions within the meaning of the
second sentence of the first paragraph of Article 1 (Art. 1-1-2).
Referring to its above conclusion with regard to the complaint under
Article 6 para. 1 (Art. 6-1) of the Convention, the Commission further
finds that the situation complained of does not constitute a control
of the use of the applicants' properties to be examined under the
second paragraph of Article 1 (Art. 1).
The Commission does not consider it necessary to determine
whether the situation complained amounts to an interference with the
right guaranteed in the first sentence of the first paragraph of
Article 1 (Art. 1-1-2), as, even if it did, a fair balance has been
struck between the various public and private interests involved (cf.,
a contrario, the above-mentioned Sporrong and Lönnroth judgment, p. 24
et seq., para. 61 et seq.).
The Commission accepts that the creation of the outline objective
was aimed at conserving nature on private properties adjacent to the
State-owned park area established by the 1991 Act. 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 (Eur. Court
H.R., Fredin judgment of 18 February 1991 (no. 1), Series A no. 192,
p. 16, para. 48). The decision to adopt the outline objective was,
moreover, made by the Council of State on the basis of its general
competence according to the Constitution Act. The Commission cannot
find that domestic law has thereby been breached.
In so far as the applicants' properties may have been adversely
affected by the outline objective, the Commission notes that the
applicants have not submitted any evidence showing that the value of
their properties has been so substantially diminished on account of the
outline objective as to result in an unfair balancing of interests
(cf., mutatis mutandis, No. 9310/81, Dec. 16.7.86, D.R. 47 pp. 5-15,
at p. 14). With reference to the ever increasing importance attached
to nature conservation the Commission considers that some repercussions
on landowners' property rights cannot in themselves prevent the
publication of a conservation intention such as the outline objective
at issue in the present case.
The Commission further finds it unsubstantiated that the use of
any of the applicants' properties has been restricted solely on the
basis of the outline objective without sufficient compensation having
been granted. Moreover, in the proceedings apparently still pending and
initiated by the first applicant and applicants nos. 20-23 those
applicants have successfully defended their right to make extended use
of the leisure house on their property. In the light of these
proceedings it cannot be excluded that the right of construction
granted to applicant no. 11 could also be enforced without an activity
prohibition being issued. The Commission finally observes that the
assumed inclusion of all applicants' properties in the outline
objective was regarded by the Ministry for the Environment as entailing
an obligation pursuant to sections 52, 124 and 137 of the 1959 Decree
on the part of the relevant municipal Building Boards to hear the
County Administrative Board in regard to proposed construction within
the area included in the objective. It has not been shown, however,
that this caused any substantial adverse effects on any of the
applicants' properties. Moreover, this consultation obligation has
subsequently been found by the Ombudsman to lack a legal basis. This
finding has further been accepted by the Ministry for the Environment.
The Commission concludes therefore that no such adverse effects
which could render the balancing of interests unfair have been shown
to exist as a result of the outline objective and the related
ministerial letters. Accordingly, there is no appearance of an improper
balance between the protection of the applicants' property rights and
the demands of the general interest and, consequently, no appearance
of a violation of the applicants' right to the peaceful enjoyment of
their possessions.
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 Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
ANNEX
The applicants are:
1. Mr. Sulo Eskelinen, a foreman born in 1948 and resident at Koli;
2. Ms. Sinikka Hassinen, a property owner born in 1946 and resident
at Haapalahti;
3. Mr. Asko Turunen, a wholesaler born in 1962 and resident at
Joensuu;
4. Mr. Kalevi Turunen, a principal born in 1932 and resident at
Lieksa;
5. Mr. Veikko Tolvanen, a pensioner born in 1918 and resident at
Ahveninen;
6. Mr. Onni Karttunen, a pensioner born in 1925 and resident at
Lieksa;
7. Mr. Antti Nevalainen, a farmer born in 1930 and resident at Koli;
8. Ms. Iida Karttunen, a pensioner born in 1927 and resident at
Lieksa;
9. Mr. Armas Nevalainen, a construction worker born in 1943 and
resident at Eno;
10. Mr. Raimo Piironen, a lecturer born in 1937 and resident at
Savonlinna;
11. Mr. Veikko Welin, a farmer born in 1927 and resident at
Kontiolahti;
12. Ms. Aini Elviira Welin, a nurse born in 1932 and resident at
Kontiolahti;
13. Mr. Esko Nuutinen, a porter born in 1954 and resident at Joensuu;
14. Ms. Sylvi Nevalainen, a cook born in 1945 and resident at Koli;
15. Mr. Mikko Nevalainen, a construction worker resident at Koli;
16. Mr. Armas Nuutinen, a pensioner born in 1916 and resident at
Koli;
17. Mr. Kauko Nuutinen, an adviser born in 1948 and resident at
Polvijärvi;
18. Mr. Teuvo Muikku, a merchant born in 1944 and resident at
Pankakoski;
19. Mr. Kauko Turunen, a carpenter born in 1946 and resident at
Lahti;
20. Ms. Martta Eskelinen, a housewife born in 1920 and resident at
Koli;
21. Ms. Raija de Gritz, a restaurant manager born in 1950 and
resident at Espoo;
22. Mr. Reino Eskelinen, an agricultural adviser born in 1942 and
resident at Lieksa;
23. Mr. Reijo Eskelinen, a forestry technician born in 1952 and
resident at Lieksa;
24. Ms. Hanna Nevalainen, a pensioner born in 1925 and resident at
Koli;
25. Mr. Veijo Kukkonen, a sorter born in 1937 and resident at Kuopio;
26. Mr. Pertti Kukkonen, a shopkeeper born in 1955 and resident at
Koli;
27. Ms. Eija Kukkonen, a shopkeeper born in 1955 and resident at
Koli;
28. Ms. Anneli Puoskari, a clerk born in 1945 and resident at Juuka;
29. Mr. Hannu Puoskari, a mechanic born in 1945 and resident at
Juuka;
30. Ms. Sirpa Sutinen, a property owner born in 1963 and resident at
Kontiolahti;
31. Rakennus-Myller Ky, a limited partnership company represented by
Mr. Esko Myller, a managing director born in 1946 and resident
at Joensuu;
32. Mr. Erkki Korhonen, a shopkeeper born in 1941 and resident at
Joensuu;
33. Mr. Erkki Turunen, a distribution manager born in 1946 and
resident at Joensuu;
34. Mr. Hugo Lehtinen, a farmer born in 1920 and resident at Koli;
35. Mr. Teuvo Saarelainen, a farmer born in 1925 and resident at
Koli;
36. Mr. Martti Nuutinen, a lumberman born in 1945 and resident at
Koli;
37. Ms. Tarja Nuutinen, a housewife born in 1960 and resident at
Koli;
38. Mr. Erkki Lampinen, a pensioner born in 1923 and resident at
Koli;
39. Mr. Heikki Lampinen, a contractor born in 1918 and resident at
Koli;
40. Mr. Arvo Ryynänen, a master mechanic born in 1928 and resident
at Vihti;
41. Mr. Antti Ryynänen, a farmer born in 1955 and resident at Koli;
42. Ms. Marita Ryynänen, a housewife born in 1960 and resident at
Koli;
43. Mr. Veikko Hakkarainen, a lecturer born in 1938 and resident at
Lieksa;
44. Paimenvaara Oy, a limited liability company represented by
Mr. Jorma Miettinen, a managing director born in 1949 and
resident at Ämmänsaari;
45. The reparcelling association (jakokunta, skifteslag) of Koli,
represented by applicants nos. 1 and 26;
46. The fishery association (kalastuskunta, fiskelag) of Koli,
represented by applicants nos. 1 and 26;
47. Ms. Annikki Kinnunen, a pensioner born in 1929 and resident at
Joensuu;
48. Ms. Maija Hyrkäs, a housewife born in 1950 and resident at
Iisalmi;
49. Mr. Ahti Karessuo, a pensioner born in 1919 and resident at
Joensuu;
50. Ms. Liisa Vänskä, a insurance clerk born in 1948 and resident at
Espoo;
51. Mr. Kyösti Nevalainen, a farmer born in 1951 and resident at
Vuonislahti;
52. Mr. Heino Laamanen, a pensioner born in 1934 and resident at
Ukkola;
53. Ms. Toini Simanainen, a forest owner born in 1916 and resident
at Vuonislahti;
54. Mr. Johannes Simanainen, a forest owner born in 1922 and resident
at Vuonislahti; and
55. Mr. Aulis Kinnunen, a manager born in 1930 and resident at
Lieksa.
Full & Egal Universal Law Academy