AS TO THE ADMISSIBILITY OF
Application No. 25155/94
by Jalkalan kalastuskunta 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
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 8 June 1994 by
Jalkalan kalastuskunta and Others against Finland and registered on
15 September 1994 under file No. 25155/94;
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 first applicant is a statutory local fishing association
(kalastuskunta, fiskelag), registered in Finland. By virtue of the
Fishing Act (kalastuslaki, lagen om fiske), it is represented by its
chairman (esimies, förman), Mr. Veikko Suihkonen. The other five
applicants, including Mr. Veikko Suihkonen personally, are Finnish
citizens residing in Suonenjoki, Finland. These applicants are listed
in the Appendix in alphabetical order. They are all members of the
applicant association. Before the Commission the applicants are
represented by Mr. Risto Airikkala, a lawyer at the Central Union of
Agricultural Producers and Forest Owners in Helsinki.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The individual applicants own real property in the municipality
of Suonenjoki. The individual applicants are joint owners of a total
of 355 hectares of fishery waters in seven lakes. By virtue of section
3 of the Fishing Act, the individual applicants, together with the
other joint owners of the fishery waters, form a fishing association,
namely the first applicant, hereinafter "the applicant association".
Fishing associations are members of Fishing Areas (kalastusalue,
fiskeområde). Activities of Fishing Areas are directed and supervised
by Fishing Districts (kalastuspiiri, fiskeridistrikt), which are
authorities subject to the Ministry of Agriculture and Forestry (maa-
ja metsätalousministeriö, jord- och skogsbruksministeriet) (sections
71 and 86 of the Fishing Act).
On 6 May 1984 the applicant association adopted its rules,
hereinafter "the 1984 Rules". By virtue of section 49 of the Fishing
Act, the rules of a fishing association shall be submitted for the
approval of a Fishing District. The 1984 Rules of the applicant
association were approved by the Fishing District of Kuopio on
18 February 1985.
Under section 1 of the 1984 Rules, which corresponds to section
1 of the Fishing Act, the applicant association shall arrange fishing
so as to maximise the permanent productivity of the relevant water
area. The fish stocks shall be utilized rationally and taking into
account factors relevant to the fishing industry. Under section 2 of
the 1984 Rules, fishing in the applicant association's fishing waters
shall be practised in a manner which is prescribed in the Fishing Act
and, in greater detail, in the applicant association's rules. The
latter provision corresponds to section 48 of the Fishing Act,
according to which a fishing association shall, in arranging fishing
and maintenance of the fish stocks, take into account the provisions
of the Fishing Act. In addition, a fishing association is to perform
other tasks prescribed by the Fishing Act.
Under section 3 of the 1984 Rules, which also corresponds to the
Fishing Act, the right to fish in the joint fishery waters is
determined on the basis of trap units (pyydysyksikkö, redskapsenhet).
According to the 1984 Rules, there is a total of 600 trap units, of
which 550 are to be divided between the joint owners of the relevant
water areas according to their share of the water areas. A so-called
unit value for traps, reflecting the capacity of the traps, is also
defined. A certain share of the trap units is reserved for professional
fishermen.
On 19 May 1992 the applicant association requested, under section
49 of the Fishing Act, the Fishing District to approve the following
amendments to its rules: 1) a change in the manner of dividing the trap
units; 2) an increase in the unit value of a trawl and 3) abolition of
the provision reserving a share of trap units for professional
fishermen.
On 23 September 1992 the Fishing District of Kuopio decided not
to approve the proposed amendments. By virtue of an amendment to the
Fishing Act (4.12.1992/1204), Fishing Districts were changed to
Agricultural Industry Districts. However, the former name "the Fishing
District" is used throughout this text.
The applicant association appealed to the Ministry of Agriculture
and Forestry. It stated that the amendments to its rules strengthened
the equality between the members of the association without violating
the rights of professional fishermen. They referred to an expert
opinion on the use of trawl and on fish stocks in the relevant water
areas. According to this opinion the catch of fish by trawl was about
7,000 kilograms per summer.
By virtue of the Act on the Appellate Board for the Agricultural
Industry (4.12.1992/1203), which came into force on 1 January 1993, the
appeal was dealt with by the Appellate Board for the Agricultural
Industry (maaseutuelinkeinojen valituslautakunta, landbruksnäringarnas
besvärsnämnd), hereinafter "the Board". The Board functions in
connection with the Ministry of Agriculture and Forestry. It consists
of three members, who act judicially. The Board may hold an oral
hearing or arrange an inspection. The procedural rules applicable to
ordinary courts, i.e. the Code of Judicial Procedure (oikeudenkäymis-
kaari, rättegångsbalken), in principle also apply to the Board. The
cases before the Board are decided on the basis of a report by a
reporting officer (esittelijä, föredragande). The reporting officers
are civil servants at the Ministry. The reporting officer must report
on the facts of the case and the relevant law and prepare a draft
decision. The reporting officer is not a member of the Board.
On 23 June 1993 the Board rejected the applicant association's
appeal by virtue of, inter alia, section 1 of the Fishing Act. The
Board had at its disposal, inter alia, an expert opinion from the Game
and Fishery Research Institute. Also the applicant association had
submitted further information to the Board. As regards the first
amendment, the Board stated that the amendment would violate a joint
owner's right to use the whole joint water area for fishing. As regards
the second amendment, it stated that the permanent productivity and
rational utilization of the relevant water areas did not require the
proposed increase. Finally, as regards the third amendment, it stated
that the reservation of trap units for professional fishermen was
necessary for the effective utilization of fish stocks.
The applicant association appealed to the Supreme Administrative
Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). By
virtue of section 15 of the Supreme Administrative Court Act, the
Supreme Administrative Court may hold an oral hearing. However, the
applicant association did not request an oral hearing.
On 4 February 1994 the Supreme Administrative Court, without
holding an oral hearing, upheld the Board's decision.
COMPLAINTS
1. The individual applicants complain that the authorities' refusal
to approve the proposed amendments to the applicant association's rules
violated their right to freedom of association. They invoke Article 11
of the Convention.
2. The individual applicants complain further that, as the proposed
amendments regulated the economic relations between the members of the
applicant association, the refusal to approve the amendments violated
their right to peaceful enjoyment of possessions. In this respect they
invoke Article 1 of Protocol No. 1 to the Convention.
3. The individual applicants complain, finally, that the
authorities' refusal to approve the relevant amendments resulted in
discrimination based on status since the applicants, as joint owners
of the water areas, were discriminated against in comparison with
professional fishermen. In this respect they invoke Article 14 of the
Convention.
4. As regards the procedure, the applicants maintain that the
reporting officer at the Board had also acted as a reporting officer
at the Ministry of Agriculture and Forestry in relation to an
administrative complaint (hallintokantelu, förvaltningsklagan) lodged
by the applicant association and that, therefore, the Board's status
as an independent tribunal was questionable. They also maintain that
there were pencilled remarks on the documents, which apparently meant
that the Board's reporting officer had received some pieces of
information by telephone. The applicants allege that the applicant
association was not given an opportunity to comment on these remarks.
Finally, they maintain that there was no oral hearing at any appellate
level. The applicants complain that these aspects of the proceedings
resulted in a breach of Article 6 of the Convention.
THE LAW
1. The individual applicants complain that their right to freedom
of association was violated since they, as members of the applicant
association, were prevented from amending its rules. They invoke
Article 11 (Art. 11) of the Convention which reads:
"1. Everyone has the right to freedom of peaceful assembly
and to freedom of association with others, including the
right to form and to join trade unions for the protection
of his interests.
2. No restrictions shall be placed on the exercise of
these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of
national security or public safety, for the prevention of
disorder or crime, for the protection of health or morals
or for the protection of the rights and freedoms of others.
This Article shall not prevent the imposition of lawful
restrictions on the exercise of these rights by members of
the armed forces, of the police or of the administration of
the State."
The Commission recalls the established case-law according to
which public-law institutions cannot be considered as associations
within the meaning of Article 11 (Art. 11) of the Convention (cf., for
example, Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment
of 23 June 1981, Series A no. 43, pp. 26-27, paras. 64-65).
In the instant case the Commission notes that the foundation of
a fishing association is governed by legislation, namely by section 3
of the Fishing Act, according to which joint owners of fishery waters
form a fishing association. A fishing association remains integrated
within the structures of the State in the light of the supervisory
powers of Fishing Districts, which, for their part, are authorities
subject to the Ministry of Agriculture and Forestry. A fishing
association pursues aims which are in the general interest, namely the
protection and development of fish stocks. It must perform tasks
prescribed by the Fishing Act and in performing its tasks it must take
into account the provisions of the Fishing Act. In the light of these
factors the Commission concludes that a fishing association is to be
considered a public-law institution.
In these circumstances the Commission finds that the relevant
Fishing Association cannot be considered as an association within the
meaning of Article 11 (Art. 11). This provision of the Convention hence
does not apply and consequently, the Commission finds that it is not
necessary to decide whether the question of amending the rules of an
association would as such fall under Article 11 (Art. 11) of the
Convention.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention and must be
rejected under Article 27 para. 2 (Art. 27-2) of the Convention.
2. The individual applicants complain further that the refusal to
approve the proposed amendments to the applicant association's rules,
which regulate the economic relations between its members, involved a
violation of the right to peaceful enjoyment of possessions.
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."
The Commission notes that, in the instant case, the Fishing
Association proposed three amendments to its rules changing the
division of the trap units (which, naturally, corresponded to the real
catch of fish) to the benefit of the joint owners of the water areas.
At the same time, however, professional fishermen's share of trap units
would have been reduced.
The Commission recalls that Article 1 of Protocol No. 1 (P1-1)
comprises three rules. The first rule is of a general nature and
enunciates the principle of the peaceful enjoyment of property. The
second rule covers deprivation of possessions and subjects it to
certain conditions. The third rule recognises that the Contracting
States are entitled, amongst other things, to control the use of
property in accordance with the general interest. The three rules are
connected. The second and third rules are concerned with particular
instances of interference with the right to peaceful enjoyment of
property and are therefore to be construed in the light of the general
principle enunciated in the first rule (see, for example, Eur. Court
H.R., Lithgow and Others judgment of 8 July 1986, Series A no. 102, p.
46, para. 106).
The Commission notes that the applicants' possession rights under
the applicant association's 1984 rules have not been altered.
Therefore, the Commission finds that the applicants have not been
deprived of their property within the meaning of Article 1 of Protocol
No. 1 (P1-1). However, the Commission finds that the refusal to approve
the relevant amendments involves a "control of use" of property.
Accordingly, the Commission considers that it must examine whether the
requirements set out in the second paragraph of Article 1 of Protocol
No. 1 (P1-1) are met.
The Commission recalls that the interference must achieve a "fair
balance" between the demands of the general interest of the community
and the requirements of the protection of the individual's fundamental
rights. The concern to achieve this balance is reflected in the
structure of Article 1 (Art. 1) as a whole, including the second
paragraph: there must therefore be a reasonable relationship of
proportionality between the means employed and the aim pursued (see,
for example, Eur. Court H.R., Air Canada judgment of 5 May 1995, Series
A no. 316, p. 12, para. 36).
The Commission notes that the proposed amendments would not have
affected the number of trap units to be divided between the joint
owners of the water areas, but mainly concerned professional
fishermen's opportunities to use what was probably the most effective
fishing method in the relevant environment. The Commission finds that
the competent authorities carefully considered the applicant
association's request for amendments to its rules. They came, however,
to the conclusion that, taking into account the rights of others,
namely the right to use the whole joint water area instead of a limited
area for fishing, and the protection of the fish stocks, the proposed
amendments could not be accepted. In assessing the fair balance between
the means chosen and the aim pursued the Commission cannot, in these
circumstances, find that the chosen measure was inappropriate or
disproportionate to the aim pursued.
The Commission finds that the interference with the applicant's
right, as guaranteed by Article 1 of Protocol No. 1 (P1-1) to the
Convention, 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.
3. The individual applicants complain further that they have been
discriminated against with comparison to professional fishermen on the
grounds of their status. They invoke Article 14 (Art. 14) of the
Convention which reads:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or
other status."
The Commission recalls that Article 14 (Art. 14) of the
Convention complements the other substantive provisions of the
Convention and the Protocols. It may be applied in an autonomous manner
as a breach of Article 14 (Art. 14) does not presuppose a breach of
those other provisions. On the other hand, it has no independent
existence since it has effect solely in relation to "the enjoyment of
the rights and freedoms" safeguarded by the other substantive
provisions (see Eur. Court H.R., Van der Mussele judgment of 29
September 1983, Series A no. 70, p. 22, para. 43).
The Commission considers that it must examine this complaint in
conjunction with Article 1 of Protocol No. 1 (P1-1) to the Convention.
In so doing it recalls that Article 14 (Art. 14) does not forbid every
difference in treatment in the exercise of the rights and freedoms
recognised by the Convention. It safeguards persons who are "placed in
analogous situations" against discriminatory differences of treatment.
For the purposes of Article 14 (Art. 14), a difference of treatment is
discriminatory if it "has no objective and reasonable justification".
Furthermore, the Contracting States enjoy a certain margin of
appreciation in assessing whether and to what extent differences in
otherwise similar situations justify a different treatment in law (see
the above-mentioned Lithgow judgment, p. 66, para. 177).
The Commission finds that the applicants cannot be regarded as
being "placed in analogous situation" with the professional fishermen
to whom the allegation of discrimination refers. Consequently, the
Commission finds that the case does not disclose any appearance of a
violation of Article 14 of the Convention taken in conjunction with
Article 1 of Protocol No. 1 (Art. 14+P1-1) to 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.
4. Finally, the applicants complain that their right to a fair
hearing has been violated. They invoke Article 6 (Art. 6) of the
Convention which reads, as far as relevant, as follows:
"1. 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 Commission notes, firstly, that the basic dispute concerned
the rules of the applicant association. In the proceedings the
applicant association was the sole party. The Commission finds that it
is questionable whether the proposed amendments to the applicant
association's rules determined directly the applicants' "civil rights"
as regards their possessions. However, the Commission finds that this
question can be left open since it considers that the complaint under
Article 6 (Art. 6) of the Convention is in any event inadmissible for
the following reasons.
The Commission notes that the applicant association's appeal was,
in the first instance, examined by the Appellate Board for the
Agricultural Industry. As regards this body the applicants complain,
firstly, that its status as an independent tribunal was questionable
since its reporting officer had dealt with the applicant association's
administrative complaint at the Ministry of Agriculture and Forestry.
The Commission recalls the case-law of the Convention organs as
regards the meaning of an "independent and impartial tribunal"
according to which in determining whether a body can be considered to
be an "independent" tribunal regard must be had to various criteria,
for example the manner of appointment, as regards its members (cf.,
Eur. Court H.R., Langborger judgment of 22 June 1989, Series A no. 155,
pp. 28-29, paras. 115-119).
The Commission will confine its examination to the specific
complaint of the applicants relating to the reporting officer of the
Board.
The Commission notes that a reporting officer is not a member of
the Board, but it is the task of the reporting officer to report on the
facts and the relevant law to the Board and to prepare a draft
decision. In these circumstances the Commission finds that the
independence of the Board is not affected by the fact that it decides
cases on the basis of a report by a reporting officer who is a civil
servant at the relevant Ministry.
The Commission considers, however, that it must examine whether
the fact complained of, namely the reporting officer having dealt with
the applicant association's administrative complaint at the Ministry,
affected the impartiality of the Board.
Even assuming that the reporting officer's possible bias could
influence the impartiality of the Board, the Commission finds that, in
the instant case, there is no reason to cast doubt on the reporting
officer's impartiality on the grounds that she had reported on the
applicant association's other case, which was of a different nature
from the relevant appeal, to another body (cf. 11831/85, Dec. 9.12.87,
D.R. 54 p. 144).
The applicants complain, secondly, that the reporting officer at
the Board had received pieces of information which the applicant
association had not had an opportunity to express its opinion on.
In this respect the Commission notes, on the basis of the Board's
reasoning in the case, that there is no indication that the Board based
its decision on facts that were unknown to the applicant association
as the appellant party in the case. Furthermore, even assuming that
there were relevant new facts, the applicant association had, at least
when appealing to the Supreme Administrative Court, the opportunity to
express its opinion on such possible information. Consequently, the
Commission finds that the proceedings before the Board and the Supreme
Administrative Court, taken as a whole, were such as to allow proper
participation of the applicant association (cf., Eur. Court H.R.,
Kerojärvi judgment of 19 July 1995, Series A no. 322, para. 42).
Finally, the applicants complain that there was no oral hearing
at any appellate level.
As regards the question of an oral hearing the Commission recalls
that Finland has made a reservation concerning Article 6 para. 1
(Art. 6-1) which reads, in so far as relevant, as follows:
"For the time being, Finland cannot guarantee a right to an
oral hearing in so far as the current Finnish laws do not
provide such a right. This applies to:
...
2. proceedings before ... the Supreme Administrative
Court in accordance with ... Section 15 of the Supreme
Administrative Court Act;
..."
The Commission finds that the Finnish reservation expressly
covers the lack of an oral hearing before the Supreme Administrative
Court.
As regards the oral hearing before the Appellate Board for the
Agricultural Industry, the Commission recalls that this body may hold
oral hearings but is not, under the current Finnish laws, obliged to
hold such a hearing. The Commission finds that it is not necessary to
examine, in the instant case, whether the Finnish reservation covers
this body since it finds that this part of the application is in any
event inadmissible for the following reasons.
The Commission recalls that public character of court hearings
constitutes a fundamental principle enshrined in Article 6 para. 1
(Art. 6-1) of the Convention. This provision does not prevent a person
from waiving of his own free will, either expressly or tacitly, the
entitlement to have his case heard in public. Any such waiver must,
however, be made in an unequivocal manner and must not run counter to
any important public interest (cf., Eur. Court H.R. Schuler-Zgraggen
judgment of 24 June 1993, Series A no. 263, pp. 19-20, para. 58).
In the instant case the Commission notes that the applicant
association appealed to the Ministry of Agriculture and Forestry.
However, while the appeal was pending at the Ministry the relevant
legislation was amended and, subsequently, the appeal was dealt with
by the Board. In these circumstances the Commission finds that the
applicant association could not be expected to have requested an oral
hearing when it lodged the appeal with the Ministry. However, its
appeal was pending for almost six months before the Board after 1
January 1993, i.e. after the new Act on the Board had come into force.
The applicant association submitted further statements to the Board
while the appeal was pending. It has not been alleged that the
applicant association requested an oral hearing before the Board, and
the applicant association did not appeal to the Supreme Administrative
Court on account of the lack of an oral hearing. Furthermore, the
applicant association did not request the Supreme Administrative Court
to remedy the lack of an oral hearing by holding an oral hearing
itself, as it had the opportunity to do under section 15 of the Supreme
Administrative Court Act.
The Commission finds that if the applicant association, as a
party before the Board, considered it important to have an oral
hearing, it could be expected to apply for one since an opportunity for
an oral hearing existed, but an oral hearing was not, under the current
Finnish laws, the general rule before the Board. As the applicant
association did not request an oral hearing, and did not appeal on this
basis, it may reasonably be considered that it unequivocally waived its
opportunity to have an oral hearing before the Board. Furthermore, it
does not appear that the dispute raised issues of public importance
such as to make a hearing necessary. The evaluation of the dispute over
the applicant association's rules was based on different written expert
opinions on the question of how the proposed measures would have
affected the productivity of the water areas and the fish stocks.
Consequently, the Commission finds that, in the instant case,
there is no appearance of a violation of Article 6 (Art. 6) of the
Convention in respect of the oral and public nature of the proceedings.
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.
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)
Full & Egal Universal Law Academy