AS TO THE ADMISSIBILITY OF
Application No. 29069/95
by Nadesta HIIPAKKA and Others
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 15 May 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
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 17 May 1994 by
Nadesta HIIPAKKA and Others against Finland and registered on
3 November 1995 under file No. 29069/95;
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 applicants are four Finnish citizens, listed in the Appendix
in alphabetical order.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants are owners of real property in the village of
Kuninkaanjoki, in the municipality of Soini.
It appears that since the 1960s, some property owners in the
relevant area have wanted to build a new forest road. In the 1970s and
1980s, some property owners took a total of three initiatives to this
effect, but these initiatives did not lead to a concrete project.
In May 1988 certain property owners requested the Forestry Board
(metsälautakunta, skogsnämnden) of Southern Ostrobotnia to draw up a
road construction plan (tiesuunnitelma, vägplan). As it was estimated,
on the basis of this request, that the majority of the property owners
were in favour of building the road, the Forestry Board began the
planning work. In the autumn of 1988 on-site planning work took place.
Later in 1988 the Forestry Board drew up the road construction plan for
building a forest road approximately 9 kilometres long.
At the request of a property owner in the relevant area,
administrative proceedings (tietoimitus, vägförrättning) before the
Expert and Trustees (toimitusmiehet, sysslomän) were instituted in
accordance with the 1962 Act on Private Roads (laki yksityisistä
teistä, lagen om enskilda vägar) for the road construction plan to be
put into effect. A public notice concerning the forthcoming proceedings
was placed on the bulletin board of the municipality on 16 January 1990
and registered letters were sent to the property owners concerned,
including the applicants.
The administrative proceedings began with a meeting on 2 February
1990. A further meeting, of which notice was given by public notice and
by sending registered letters to the property owners, was held on
13 June 1990. The planned road would affect 29 pieces of real property,
of which 18 were represented in these proceedings. The applicants, save
for the third applicant, were also represented.
In the above-mentioned administrative proceedings it was decided
to confirm the road construction plan. The confirmation entailed, inter
alia, the approval of the proposed location of the road and the so-
called road units (tieyksikkö, vägenhet) indicating the relative
distribution of the road costs between the property owners, the
establishing of rights of way (14 metres wide road) pertaining to the
encumbered properties and the founding of a road maintenance
association (tiekunta, väglag - "the Association"). In the proceedings
the question of compensation was discussed but no requests for
compensation were made and, consequently, no decision as regards
compensation was made. The applicants' shares of the road costs,
totalling nearly FIM 500,000, were 3.74 %, 6.37 %, 5.85 % and 9.37 %
respectively. The road was supposed to cover 1,700 m2 of the second
applicant's land and 2,100 m2 of the third applicant's land. The
planned road would also run over the first and fourth applicants'
properties.
The second applicant appealed to the Land Court (maaoikeus, jord-
domstolen) of Vaasa in relation to the road construction plan and the
distribution of the road costs, stating that the road construction plan
was not appropriate and that there were more efficient ways of building
a forest road. He stated, furthermore, that the method of dividing the
costs was inappropriate since it was based on forest taxation and not
on ton-kilometres. The second applicant did not appeal on the question
of compensation.
On 11 October 1990 the Land Court, after arranging a site
inspection, rejected the appeal as regards both the road construction
plan and the distribution of the road costs.
On 18 February 1991 the Supreme Court (korkein oikeus, högsta
domstolen) refused the second applicant leave to appeal.
On 5 March 1991 the administrative proceedings for the execution
of the relevant road construction plan were noted on the Land Register
(maarekisteri, jordregistret).
On 2 May 1991 the applicants requested the Supreme Court to re-
open the case. They maintained, inter alia, that certain parts of the
road were unnecessary for them because there were alternative
connections with their property. As the construction of the road was
supposed to begin in the autumn, they requested the Supreme Court to
suspend the road construction works. Their request for a re-opening of
the case did not raise the question of compensation.
On 5 September 1991 the Supreme Court decided to suspend the
execution of the Land Court's above-mentioned judgment of 11 October
1990.
On 4 May 1993 the Supreme Court rejected the applicants' request
for the case to be re-opened, whereupon its decision as regards the
suspension of the road construction works lapsed. The Supreme Court had
at its disposal an opinion given by the National Survey Board
(maanmittaushallitus, lantmäteristyrelsen), which was based, inter
alia, on a site inspection.
Furthermore, on 28 February 1994 and on 8 September 1995, the
Supreme Court rejected further requests from the applicants for a re-
opening of the case.
In the meantime, on 24 May 1993, the third applicant lodged a
complaint with the Chancellor of Justice about the Expert's actions in
the administrative proceedings in 1990 as regards, inter alia, the
question of compensation. On 12 December 1994 the Deputy Chancellor of
Justice (apulaisoikeuskansleri, justitiekanslersadjointen) criticized
the Experts's action as regards the requests for compensation. He found
that, as the Expert had not expressly asked if the third applicant, who
had not been present at the meetings, wanted to ask for compensation,
it had not been correct to conclude that no requests for compensation
had been made. He stated, furthermore, that it was open for the third
applicant to request damages directly from the relevant Ministry or to
bring an action against the State in the relevant first-instance court.
In the meantime, on 12 April 1991, the newly established
Association held its annual general meeting (vuosikokous, årsstämma).
The applicants attended the meeting. The Association confirmed the
division of the road costs (maksuunpanoluettelo, debiteringslängd)
according to the confirmed road units. The applicants' road costs were
confirmed to be FIM 18,053, FIM 30,782, FIM 18,295 and FIM 45,302
respectively. An appeal against the Association's decision lay to the
Road Board (tielautakunta, vägnämnd) and subsequently to the Land Court
and, with leave, to the Supreme Court. The Association's decision was
not appealed against.
As the applicants did not pay their contributions, the
Association lodged, in January 1994, a request for enforcement of the
payments (ulosotto, utsökning). The applicants appealed and requested
that the enforcement of the payments be suspended. Following certain
proceedings, on 27 October 1994 the Technical Board (tekninen lauta-
kunta, tekniska nämnden) of Soini, which functioned as the Road Board,
rejected the applicants' appeal.
Furthermore, in the meantime, on 27 June 1994, the Association
held its annual general meeting. It appears that the Association
decided that no changes were needed to the confirmed road construction
plan or to the distribution of the road costs. The applicants appealed
against the Association's decision to the Technical Board, stating that
the road construction plan and the distribution of the road costs ought
to be changed. The Technical Board, on 27 October 1994, dismissed the
appeal without examining it on the merits since it found that the
appeal had been lodged out of time.
The applicants appealed to the Land Court against the above-
mentioned two decisions made by the Technical Board.
On 28 February 1995 the Land Court upheld the decisions made by
the Technical Board on 27 October 1994. As regards the enforcement of
the road cost payments, it stated that the payments were based on
decisions concerning road units that had acquired legal force.
The applicants appealed against the Land Court's judgment to the
Supreme Court, which on 8 September 1995 refused them leave to appeal.
In the meantime, several of the property owners had requested the
Forestry Board to grant them a subsidy under the Act on Forest
Improvement (metsänparannuslaki, skogsförbättringslagen) to build the
relevant road. The applicants did not, however, apply for such subsidy.
On 15 August 1991 the Forest Board granted a subsidy to those
property owners who had applied for it.
The applicants appealed against the Forest Board's decision. The
appeal was dealt with by the Appellate Board of Agricultural Industry
(maaseutuelinkeinojen valituslautakunta, landbruksnäringarnas besvärs-
nämnd), hereinafter "the Appellate Board".
On 25 August 1993 the Appellate Board dismissed the appeal
without examining it on the merits. It stated that the applicants had
had the opportunity to apply for the relevant subsidy but had not done
so. Therefore, it found that the Forest Board's decision to grant a
subsidy to other property owners did not affect the applicants' rights
and, consequently, they did not have right of appeal.
The applicants appealed to the Supreme Administrative Court
(korkein hallinto-oikeus, högsta förvaltningdomstolen) as regards the
Appellate Board's decision. They requested, furthermore, the Supreme
Administrative Court to suspend the enforcement of the payments and the
building of the road.
On 17 December 1993 the Supreme Administrative Court stated that
it had no jurisdiction over the questions concerning the request for
suspension of the enforcement of the payments and the building of the
road. As regards the question of the subsidy, it stated that the
applicants had not requested the Forest Board to grant them a subsidy
although they had had the opportunity to do so. Therefore, the Forest
Board's decision did not affect the applicants' rights. The Supreme
Administrative Court upheld the Appellate Board's decision of 25 August
1993.
On 26 January 1995 the applicants requested the Supreme
Administrative Court to re-open the case as regards the subsidy and to
re-open the case decided by the Land Court on 11 October 1990.
On 7 June 1995 the Supreme Administrative Court rejected the
applicants' request for a re-opening of the case as regards the
subsidy. It did not examine their request as regards the Land Court's
judgment on the merits since it found that it had no jurisdiction as
regards that judgment.
The road construction works commenced in September 1995.
COMPLAINTS
1. The applicants complain that their right to the peaceful
enjoyment of their possessions has been violated since they have been
obliged to participate in a road construction project that is not
financially profitable for them and does not serve a general interest.
They maintain, furthermore, that the alternative road plan supported
by the applicants would not have affected their property so seriously
and would have saved, in total, about four hectares of forest in
comparison with the confirmed plan. The alternative plan would also
have been a considerably cheaper solution. In this respect they invoke
Article 1 of Protocol No. 1 to the Convention.
2. The applicants maintain, furthermore, that they have been pressed
to accept the plan by threats of future enforcement proceedings in
relation to the road costs. They also maintain that attempts to
persuade them to participate in the project have even included visits
to their homes. The applicants complain that these facts have resulted
in a violation of their right to respect for their private life and
their home. They invoke Article 8 of the Convention.
3. As regards the proceedings concerning the subsidy, i.e. the
proceedings before the Appellate Board and in the Supreme
Administrative Court, the applicants complain that neither of these
bodies gave them an opportunity to comment on the documents in the
case. In this respect they invoke Article 6 of the Convention.
4. The applicants complain, furthermore, that they have been treated
unfairly in several respects in all the proceedings related to the
construction of the forest road.
As regards the confirmation of the road construction plan and the
distribution of the road costs, they maintain that there were
procedural errors in the planning process which took place at the end
of the 1980s before the Forestry Board. They complain, furthermore,
that the summons to attend the administrative proceedings before the
Expert and Trustees in 1990 was not accurate enough. They complain,
furthermore, that the domestic courts, namely the Land Court and the
Supreme Court, did not take into account objectively conflicting
opinions and did not request expert opinions as regards the road
construction plan and distribution of the costs. They maintain that the
planned road is not appropriate and that parts of it are unnecessary
for them. They also complain that the distribution of the road costs
is not correct.
The applicants maintain that the judgments made by the courts
were unlawful. In this respect they refer also to the other sets of
proceedings linked with the road construction plan.
In the light of the above, the applicants complain that their
right to an effective remedy before a national authority as regards
their possession rights has been violated. They invoke Article 13 of
the Convention.
5. Finally, the applicants complain that their rights under Article
17 of the Convention have been violated.
THE LAW
1. The applicants complain, under Article 1 of Protocol No. 1 (P1-1)
to the Convention, that their right to the peaceful enjoyment of their
possessions has been violated. In this respect they maintain that the
road was unnecessary for them and that, furthermore, their financial
responsibility for the road costs was excessive. Article 1 of Protocol
No. 1 (P1-1) to the Convention reads:
"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."
In the present case the Commission will limit its examination to
whether the facts occurring after 10 May 1990, the date when the
Convention entered into force with regard to Finland, disclosed a
breach of Article 1 of Protocol No. 1 (P1-1) to the Convention. Events
prior to 10 May 1990 will be taken into account merely as a background
to the issues before the Commission (cf. Eur. Court H.R., Hokkanen
judgment of 23 September 1994, Series A no. 299-A, p. 19, para. 53).
a) The road construction plan
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 observes that the road, which has apparently been
at least partly constructed, has been constructed over the applicants'
properties by virtue of a right of way encumbering their properties and
favouring certain other properties. For this purpose the applicants had
to give up land on a permanent basis. Although this did not take place
by way of expropriation proceedings leading to the transfer of a formal
title of ownership, in the circumstances of the case the creation of
the right of way constituted a deprivation of the applicants' property
to the extent that this property was encumbered by the right of way.
Whilst this deprivation did not transfer property from the applicants
to the State, it resulted from a plan drawn up by the Forestry Board
and confirmed by the Experts and Trustees. The Commission therefore
considers that, regardless of the fact that a private road was at
issue, the deprivation incurred State responsibility (see H. v.
Finland, Comm. Report 5.4.1995, para. 124).
The Commission recalls that a deprivation of possessions must,
firstly, pursue a legitimate aim in the public interest. This
requirement may be fulfilled even if the community at large has no
direct use or enjoyment of the property deprived from the applicants
(cf., mutatis mutandis, Eur. Court H.R., James and Others judgment of
21 February 1986, Series A no. 98, pp. 30-32, paras. 39-45). Secondly,
there must also be a reasonable relationship of proportionality between
the means employed and the aim sought to be realised (ibid., p. 34,
para. 50). Furthermore, the requirement that a deprivation must be
"subject to the conditions provided for by law" presupposes the
existence of and compliance with adequately accessible and sufficiently
precise domestic legal provisions (Eur. Court H.R., Lithgow and Others
judgment of 8 July 1986, Series A no. 102, p. 47, para. 110).
In the present case, the Commission considers that the
deprivation of parts of the applicants' property had the legitimate aim
of facilitating and stimulating forestry in the area served by the
road. In these circumstances and having regard to the State's margin
of appreciation the Commission accepts that the deprivation took place
in the public interest.
As for the requirement that a deprivation must be "subject to the
conditions provided for by law", the Commission recalls that its power
to review compliance with domestic law is limited (cf., the above-
mentioned Fredin judgment, pp. 16-17, para. 50). The Commission
considers that the phrase "conditions provided for by law" refers
primarily to such matters as the power to expropriate (or otherwise
take) property and to compensation terms which, accordingly, must be
defined by the law with reasonable precision. Although the second
sentence of the first paragraph or any other provision of Article 1 of
Protocol No. 1 (P1-1) does not contain any explicit procedural
requirement, the prohibition of arbitrariness is inherent in the
provision in question.
The Commission recalls that the planning procedure before the
Forestry Board took place in 1988. Having regard to the Commission
competence ratione temporis, these proceedings can be taken into
account merely as a background.
As regards the subsequent domestic proceedings, the Commission
notes that the applicants were summoned to the proceedings before the
Expert and Trustees by registered letters. The applicants, save for the
third applicant, were present at these proceedings. Furthermore, the
national courts held that the relevant provisions of the Act on Private
Roads had been complied with. Recalling its limited power to review
compliance with domestic law, the Commission considers that it has no
reason to dispute those findings in so far as the substantive
conditions are concerned.
Finally, the Commission notes that the applicants had the
opportunity to receive the forestry improvement subsidy. In these
circumstances, and taking into account the fact that the applicants can
themselves make use of the road, the Commission finds that there was
a reasonable relationship of proportionality between the means employed
and the aim sought to be realised.
Consequently, the Commission finds that there is no appearance
of a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention
as regards the confirmation of the road construction plan.
b) The road costs
Recalling its finding as regards the State responsibility for the
deprivation of part of the applicants' property, the Commission
observes that, although the road costs were not levied by the State,
they nevertheless resulted from the plan adopted by State organs. The
obligation to participate in these costs thus also led to State
responsibility.
The Commission considers that the applicants' obligation to
participate in the road costs constituted an interference with their
property rights which falls to be examined under the second paragraph
of Article 1 of Protocol No. 1 (P1-1) as to its lawfulness, purpose and
proportionality (see H. v. Finland, Comm. Report 5.4.1995, para. 136).
The Commission considers that the interference complained of had
the same legitimate aim as had the confirmation of the road
construction plan: to facilitate and stimulate forestry in the area
affected by the road. This purpose was, moreover, in the general
interest.
As regards the proportionality, the Commission notes that the
applicants had the opportunity to receive forestry improvement subsidy
and that they have the opportunity to make use of the road. In these
circumstances the Commission considers, in view of the wide margin of
appreciation enjoyed by the Contracting States in the relevant area,
that the distribution of the road costs cannot be considered to be
disproportionate to the legitimate aims.
The Commission therefore finds that the interference with the
applicants' rights to peaceful enjoyment of their possessions, as
regards the road costs, was justified under the terms of the second
paragraph of Article 1 of Protocol No. 1 (P1-1) to the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicants complain, furthermore, that their right to respect
for their private life and their home has been violated through the
institution of enforcement proceedings in relation to the road costs
and through the visiting of their homes in an attempt to persuade them
to participate in the project. In this respect they invoke Article 8
(Art. 8) of the Convention.
The Commission finds, in the light of the applicants'
submissions, that there has been no interference with their rights as
guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. As regards the proceedings concerning the subsidy for the
relevant road construction works, the applicants complain that neither
the Appellate Board nor the Supreme Administrative Court gave them an
opportunity to comment on the case-documents. In this respect they
invoke Article 6 (Art. 6) of the Convention.
The Commission notes, firstly, that the applicants had not
applied for the relevant subsidy from the Forestry Board. The
Commission finds that the Forestry Board's decision to grant certain
other property owners a subsidy did not concern the applicants' civil
rights and obligations within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.
The Commission finds that this part of the application is
incompatible ratione materiae with the Convention within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicants complain, furthermore, that they have not had an
effective remedy as regards the road construction plan and the
distribution of the road costs. They invoke Article 13 (Art. 13) of the
Convention in connection with their property rights. Article 13
(Art. 13) of the Convention reads:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
4.1. The Commission notes that the question of the road construction
plan and the distribution of the road costs was decided in the
proceedings before the Expert and Trustees on 2 February 1990 and
13 June 1990, in the Land Court on 11 October 1990 and, finally, in the
Supreme Court on 18 February 1991.
It is true that Article 13 (Art. 13) of the Convention secures
to everyone whose rights as set in the Convention are violated the
right to an effective remedy before a national authority.
However, the Commission is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of this provision, as Article 26 (Art. 26) of the Convention
provides that the Commission "may only deal with the matter ... within
a period of six months from the date on which the final decision was
taken".
In the present case the decision of the Supreme Court, which was
the final decision regarding the subject of this particular complaint,
was given on 18 February 1991, whereas the application was submitted
to the Commission on 17 May 1994, that is, more than six months after
the date of this decision. The Supreme Court's subsequent judgments
concerning the requests for a re-opening of the case are irrelevant in
this respect. Furthermore, an examination of the case does not disclose
the existence of any special circumstances which might have interrupted
or suspended the running of that period.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
4.2. The applicant complain furthermore, under Article 13
(Art. 13) of the Convention, that they have not had an effective remedy
as regards the subsequent proceedings linked with the road construction
plan. They maintain that the judgments made by the courts were
unlawful.
The Commission recalls that the word "remedy" within the meaning
of Article 13 (Art. 13) of the Convention does not mean a remedy which
is bound to succeed. The applicant must have an opportunity for his
claim to be examined by a national authority conforming to the
requirements of Article 13 (Art. 13) which is able to examine the
merits of his complaint.
The Commission notes, firstly, that the division of the road
costs was confirmed on 12 April 1991 by the decision of the
Association's general meeting, which acquired legal force since it was
not appealed against.
The enforcement proceedings for payment of the road costs began
in 1994. The Commission notes that the applicants had the opportunity
to appeal against the enforcement of the road cost payments to the Land
Court, which gave its judgment on 28 February 1995, and thereafter to
apply for leave to appeal from the Supreme Court, which refused them
such leave on 8 September 1995. The Commission notes, furthermore, that
the applicants made use of these remedies. The Commission has not found
any substantiated facts which could lead to the conclusion that these
remedies were not effective remedies within the meaning of Article 13
(Art. 13) of the Convention.
As regards the Association's decision made in its general meeting
on 27 June 1994, the Commission notes that the applicants had the
opportunity to appeal against the Association's decision to the
relevant municipal board and thereafter to the Land Court. Furthermore,
with leave, the applicants could have brought the matter before the
Supreme Court.
In these circumstances, the Commission finds that the applicants
had at their disposal an effective remedy within the meaning of Article
13 (Art. 13) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
5. Finally, the applicants complain that their rights under Article
17 of the Convention have been violated. Article 17 (Art. 17) of the
Convention reads:
"Nothing in this Convention may be interpreted as implying
for any State, group or person any right to engage in any
activity or perform any act aimed at the destruction of any
of the rights and freedoms set forth herein or at their
limitation to a greater extent than is provided for in the
Convention."
Having regard to its findings above, the Commission finds no
appearance of a violation either of Article 17 in conjunction with
Article 1 of Protocol No. 1(Art. 17+P1-1) or in conjunction with
Articles 6, 8 or 13 (Art. 17+6+8+13) of the Convention.
It follows that this part of the application is 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)
APPENDIX
Name Born Residence Profession
HIIPAKKA, Nadesta 1919 Soini Pensioner
LAASASENAHO, Jouko 1941 Vantaa Assistant
professor
LEIKKARI, Ritva 1945 Ähtäri Farmer
VAKKURI, Tauno 1923 Soini Farmer
Full & Egal Universal Law Academy