JOHTTI SAPMELACCAT RY AND OTHERS v. FINLAND

FORMER FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42969/98
by JOHTTI SAPMELACCAT RY and Others
against Finland

The European Court of Human Rights (Fourth Section), sitting on 18 January 2005 as a Chamber composed of

SirNicolas Bratza, President,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego,
MrsE. Fura-Sandström, judges,
MrL. Lehtimaja, ad hoc judge,
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 30 June 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

There are five applicants in the present case. The first applicant, Johtti Sapmelaccat r.y., is an association promoting Sámi culture. The other applicants, Juhan Taneli Magga, Ristenrauna Magga, Nils-Henrik Valkeapää and Anni Näkkäläjärvi, are Finnish nationals of Sámi origin and living in Nunnanen, Vuotisjärvi and Enontekiö, respectively. They are all members of the first applicant association. They are represented before the Court by Mr Heikki J. Hyvärinen, Legal Secretary, Sámi Parliament, and Mrs Kaisa Korpijaakko-Labba, Docent at the Universities of Helsinki and Rovaniemi. The respondent Government are represented by their Agent, Mr Arto Kosonen, Director, Ministry for Foreign Affairs.

A. The circumstances of the case

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

According to the Finnish Constitution, the Sámi, as an indigenous people, have the right to maintain and develop their own language and culture. The definition of culture includes their traditional sources of livelihood, that is to say reindeer herding, fishing and hunting.

In Finland a fishing right can be a so-called “private fishing right”, connected to the ownership of land. The properties in any one village have fishing rights in the common water-areas of that village. There are also “specific private fishing rights”, which some properties have within the water-areas of other villages or within the State-owned water-areas. All these rights, as rights connected to the ownership of land, enjoy the constitutional protection of property.

In addition to private fishing rights, there are public fishing rights which are usually based on membership of a public community, for example a municipality, on the basis of public law. Such a fishing right does not enjoy the constitutional protection of property.

In the municipalities of Enontekiö, Inari and Utsjoki, that is to say in the Sámi Home District, there were no public fishing rights before 1998.

As mentioned above, Sámi landowners have fishing rights in connection with their land ownership and the State owns the fishing rights in the State-owned water-areas. The fishing rights of Sámi people who do not own any land has been based on custom from time immemorial (ylimuistoinen nautinta, urminnes hävd). It entitles them to fish within the State-owned water-areas in the municipalities of Enontekiö, Inari and Utsjoki. The right is based on civil law and enjoys, as such, the constitutional protection of property.

The Fishing Act (kalastuslaki, lagen om fiske; 1212/1997), as amended on 19 December 1997, entered into force on 1 January 1998. According to the Act, public fishing rights were extended to apply also in the municipalities of Enontekiö, Inari and Utsjoki. It was guaranteed by the amendment that the people living permanently in the municipality were entitled to enjoy public fishing rights within the State-owned water-areas.

Prior to the 1997 amendment, the 1951 Fishing Act (503/1951) had been applied in the above-mentioned municipalities regardless of the fact that the 1982 Fishing Act (286/1982) applied to all other parts of Finland. The 1982 amendment did not affect the position in the municipalities of Enontekiö, Inari and Utsjoki as, according to the Committee for Constitutional Law (perustuslakivaliokunta, grundlagsutskottet) of the Finnish Parliament (eduskunta, riksdagen), questions concerning special fishing rights which enjoyed the constitutional protection of property and which mainly belonged to the Sámi people had to be settled before the law could be amended. Therefore the 1982 Fishing Act did not apply in the above-mentioned municipalities.

As from 1 January 1998, the public fishing right was extended to the area of the above-mentioned municipalities, maintaining “the ancient right of the local people to fish within the State-owned water-areas without consideration”. According to the applicants, the 1951 Fishing Act did not, however, guarantee such a right to the “local people”, including also non-Sámi residents, as it was only granted to them by the 1997 amendment.

The 1997 amendment also includes provisions concerning restrictions on hooks allowed in the area. Those restrictions entered into force at the beginning of 2001.

B. Relevant domestic law and practice

The 1919 Constitution (Suomen hallitusmuoto, regeringsformen för Finland; 94/1919) as in force at the relevant time

Section 5, subsections 1 and 2 (969/1995)

“Everyone is equal before the law. No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person. Children shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development.”

Section 12 (969/1995) reads as follows:

“The property of everyone is protected. Provisions on the expropriation of property, for public needs and against full compensation, are laid down by an Act.”

Section 14, subsection 3 (969/1995) reads as follows:

“The Sámi, as an indigenous people, as well as the Roma and other groups, have the right to maintain and develop their own language and culture. Provisions on the right of the Sámi to use the Sámi language before the authorities are laid down by an Act. The rights of persons using sign language and of persons in need of interpretation or translation aid owing to disability shall be guaranteed by an Act.”

The provisions above are equivalent, respectively, to Sections 6 and 15 and Section 17, subsection 3, of the present Constitution of 2000 (perustuslaki, grundlagen; 731/1999).

The 1951 Fishing Act (kalastuslaki, lagen om fiske; 503/1951)

Section 6 reads as follows:

“A private right to use a fishing site or a right to fish within the boundaries of another village or outside the boundaries of the village, based on custom from time immemorial, shall remain valid. The right to use a fishing site on the basis of custom from time immemorial shall, however, only be valid if the boundaries of the site have been clearly established.

If a right to use a fishing site or a right to fish in waters located in another village has not been recognised in proceedings for the establishment of the boundaries of those waters, any claim thereto must be brought to the competent district court within three years from the date on which the decision on the boundaries has become final.”

Section 54 reads as follows:

“Further provisions on the use of the state's fishing rights and on fishing in state-owned waters, as well as on the management of such waters, shall be given by Decree, and in this respect the interests of the local population shall be a primary concern.

The fishing arrangements referred to in subsection 1 above must nevertheless not endanger fish or prawn stock.”

The Decree on the Use of State's Fishing Rights and on Fishing in State-owned Waters (asetus valtion yksityisten kalastusten käyttämisestä ja kalastamisesta valtiolle kuuluvissa kalavesissä, förordningen om nyttjande av statens enskilda fisken och fiske i staten tillhöriga fiskevatten; 322/1953)

Section 3 reads as follows:

“A local inhabitant, especially where he or she has otherwise no fishing right, has the right to obtain a licence for fishing for personal or recreational purposes in waters administered by the National Park and Forestry Service. Such a licence may also be issued to other persons where this is possible without weakening the possibilities of the local inhabitants to fish.

Where found appropriate by the National Park and Forestry Service, a licence may also be issued for purposes other than those referred to in subsection 1 above.

The fishing licences referred to in subsections 1 and 2 above shall not be so extensive in scope and number that the fish or prawn stock is endangered.”

The Decree Implementing the 1951 Fishing Act (asetus vuonna 1951 annetun kalastuslain täytäntöönpanosta, förordningen angående verkställighet av den år 1951 utfärdade lagen om fiske; 1117/1982)

Section 1 reads as follows:

“The provisions of this Decree shall apply in the municipalities of Enontekiö, Inari and Utsjoki.

For the purposes of this Decree, "the Fishing Act" means the Fishing Act of 28 September 1951 (503/1951), as amended.”

Section 10 reads as follows:

“The state provincial office shall set up an advisory board for each of the three municipalities for a period of one year at a time, to discuss fishery matters relating to the water areas referred to in section 9, subsection 1 above. The advisory boards shall have as their duties, within the limits of their competence, to give opinions, make proposals and take initiatives, as well as to perform other duties assigned to it in this Chapter.

Each year, the National Park and Forestry Service and the Finnish Forest Research Institute shall request an opinion from each advisory board on the principles to be applied to fishing arrangements and to the issue of fishing licences. The opinion may only be derogated from by the authorities for special reasons. Each advisory board shall also be requested to provide an annual report on plans concerning the management of fishing sites.”

Section 11 reads as follows:

“An advisory board shall consist of five members and their personal deputies. The National Park and Forestry Service, the Sámi Delegation (saamelaiskäräjät, sametinget), the fishing districts, the municipality and the local associations of professional fishermen shall each appoint one member and his or her personal deputy. Where the professional fishermen have not created any association, or the associations are not able to agree on the member representing them jointly, the municipality shall appoint one of the candidates. The advisory board shall elect one of its members as president and one as vice-president.

The advisory board shall be convened by the president or, in his absence, by the vice-president, and its quorum is constituted by the president or vice-president and at least two other members.

The work of the advisory boards shall otherwise be governed by the provisions on government committees.”

Section 12 reads as follows:

“Permanent residents of the municipality carrying out professional fishing, fishing for personal purposes or other traditional means of livelihood have the right to obtain a fishing licence free of charge for fishing in state-owned waters referred to in section 9, subsection 1 above, located in their municipality of residence. Such a licence may also be issued, subject to a charge, to other persons where it is possible without weakening the fishing possibilities of the local inhabitants referred to above.

A licence may be withdrawn or fishing carried out under a licence may be prohibited for a given period of time where it is necessary for the purposes of planting of fish, fish culture, scientific research or other use or management of fishing sites.”

The 1982 Fishing Act (kalastuslaki, lagen om fiske; 286/1982)

Section 12 (1212/1997) reads as follows:

“The state's fishing sites (valtion yksityiset kalastukset, statens enskilda fisken) shall remain in the possession of the state in those areas where they have customarily been and still are in the state's possession. Further provisions on the use of those sites and on the use of the fishing rights belonging to the state in state-owned waters shall be given by decree, and in this respect the interests of professional fishermen and the local population shall be a primary concern. Permanent residents of the municipalities of Enontekiö, Inari and Utsjoki, carrying out professional fishing, fishing for personal purposes or other traditional means of livelihood, have nevertheless a right to obtain a fishing licence free of charge for fishing in state-owned waters located in the said municipalities.

The provisions of section 8, subsection 1 above are, however, also applied to state-owned waters.”

Section 13 (286/1982) reads as follows:

“A special right to a fishing place or to fish within the boundaries of another village or outside the boundaries of the village, which has been legally acquired on the basis of undisturbed possession since time immemorial or some other reason, will remain in force as of old. Undisturbed possession of a fishing place since time immemorial, however, is valid only if the boundaries of the place may be reliably shown.

If a right to a fishing place or to fishing in the waters of another village has not been accepted when demarcating the district boundary, any action concerning the matter shall be instituted in the general court of first instance within three years of the date when the demarcation has gained legal force.

Where fishing rights have been accorded by a court decision or in some legal manner other than as provided above in this Act, such a decision shall continue to be observed.”

Section 129 (286/1982), subsections 1 and 4, read as follows:

“This Act repeals:

1. the Fishing Act (503/51) issued on 28 September 1951;

2. the Decree of 28 December 1951 on the enforcement and the application of the Fishing Act (695/51); and

3. the Decree of 9 July 1953 on the use of the private fishing grounds of the State and on fishing in fishing waters belonging to the State (322/53), as amended; as well as

4. the Land Partition Act of 14 December 1951 (604/51) § 112 paragraph 2.

What has been enacted in paragraph 1 subparagraph 1 shall not apply to the area of the               municipalities of Inari, Enontekiö and Utsjoki for which areas the Fishing Act (503/51) as amended remains in force.”

The 1982 Fishing Decree (kalastusasetus, förordningen om fiske; 1116/1982)

Section 34 (1356/1993) reads as follows:

“A person belonging to the local population who does not have fishing rights based on a proprietary right or other particular legal relationship shall be entitled to receive a licence for fishing in a water area referred to § 33 paragraph 1 belonging to the State.

When the State is a joint owner of common fishing waters, it may grant the licence referred to above concerning the fishing rights corresponding to its share. The fishing corporation concerned shall be informed by an authority of the granting of the licence. A fee fixed according to the basis confirmed by the fishing corporation shall be paid for the licence.

When the licences referred to above in this section cannot be granted to all who want them, priority shall be given to persons engaging in fishing professionally or for domestic needs.”

Section 34a (1364/1997) reads as follows:

“A licence entitling permanent residents of the municipalities of Enontekiö, Inari and Utsjoki to carry out fishing referred to in section 12, subsection 1 of the Fishing Act, shall be issued by the authority referred to in section 33, subsection 1 of the Act or, in accordance with instructions issued by it, by its subordinate regional office or other entity recognised by the said authority. The licence may not be given for more than three years at a time. A right based on a licence is not transferable.

Licences referred to in subsection 1 of section 34 above may be issued in the municipalities of Enontekiö, Inari and Utsjoki where this does not weaken the fishing possibilities of those carrying out fishing under a licence referred to in section 12, subsection 1 of the Fishing Act.”

Section 53 (1/97) reads as follows:

“The obligation to pay the fishery fee laid down in § 88 paragraph 1 of the Fishing Act shall concern all               persons between the ages 18-64 who take directly part in the catch. The fishery fee shall not be collected from those persons who participate in catch only as assistants without taking part in the handling of the fishing gear in connection with the catch.

Those under 18 or over 65 years of age who under § 88 paragraph 1 of the Fishing Act shall be allowed to engage in catching fish and crayfish without paying the statutory fishery fee or under § 88 paragraph 2 of the Fishing Act without paying the fee, shall prove their age in a reliable way, when necessary.”

In the Government Bill (hallituksen esitys, regeringens proposition; 143/1997 vp) concerning the amendment of the Fishing Act, it is stated that

“...the provisions of the 1951 Act and the 1982 Act, concerning fishing rights based on land-ownership, are similar in substance. At the time of enactment of the 1982 Fishing Act, no final court decisions had been given on the water district boundaries in the municipalities of Enontekiö, Inari and Utsjoki. Therefore, the existing specific rights to a fishing site, attached to real estates, were also unclear. For these reasons, the provisions of the 1951 Fishing Act remained in force for the three northernmost municipalities.

Thereafter, the decisions on the water district boundaries have become final and any specific fishing rights attached to real estates have been established. There are no longer any unsolved questions of ownership of water areas in respect of individual real estates, and therefore it is no longer necessary to apply the 1951 Fishing Act in the area in question.

The state-owned fishing sites are of great importance for the local population in the municipalities of Enontekiö, Inari and Utsjoki. In the absence of decisions on the establishment of water district boundaries, there were unsolved questions in respect of the ownership of the water areas. Therefore, the inhabitants of the said municipalities had a possibility to fishing free of charge in the waters located in their municipalities of residence. In the proceedings for the establishment of water district boundaries, most of the waters were established as belonging to the state. Thus, the state also held the fishing rights attached to the waters, except for certain specific fishing rights. In order to provide for the possibilities of the local inhabitants to fish, it was provided in the decree implementing the 1951 Fishing Act, which entered into force in 1983, that the local inhabitants of the three northernmost municipalities, who were carrying out professional fishing, fishing for personal purposes or other natural means of livelihood, had the right to obtain a fishing licence free of charge for fishing in the state-owned waters located in their municipalities of residence. The local inhabitants were also provided with a possibility to participate in decision-making concerning fishing and management of fish stock in respect of those waters, by means of setting up advisory boards for each of the three municipalities. These advisory boards had, inter alia, the responsibility of reviewing fishing arrangements and principles concerning the issue of fishing licences. The National Board of Forestry, the Sámi Parliament, the fishing districts, the municipality and the local associations of professional fishermen appointed members to the Advisory Board. ...

It is proposed that the possibility for the local inhabitants of Enontekiö, Inari and Utsjoki municipalities to fish in the state-owned waters be maintained. Therefore, the present proposal contains provisions which are currently included in a decree, concerning the right of the local inhabitants carrying out professional fishing, fishing for personal purposes or other traditional means of livelihood to fish free of charge in the state-owned waters (Section 12). ...

The application of the 1982 Fishing Act in the municipalities of Enontekiö, Inari and Utsjoki does not remove or change the fishing rights that their inhabitants have in the state-owned waters which have an established legal basis, such as the basis of custom "from time immemorial". Most of the local inhabitants carrying out traditional means of livelihood in the said municipalities represent the Sámi population. In order to secure the fishing rights of the local inhabitants carrying out professional fishing, fishing for personal purposes or other traditional means of livelihood, it is proposed that the Act contain those provisions on the right to fish free of charge in the state-owned waters which are now included in a decree. Thus, the existing provisions would be included in an Act of Parliament instead of a decree, but the proposal does not intend to change the substance of the provisions.

The opinion of the Constitutional Law Committee (perustuslakivaliokunnan lausunto, grundlagsutskottets utlåtande; 27/1997 vp) with reference to the above-cited Government Bill:

“On different occasions (opinions 7/1978, 5/1981 and 30/1993) the Constitutional Law Committee has found that local inhabitants of the three northernmost municipalities, who have no titles to land, have such fishing rights as enjoy the protection of possessions guaranteed by the Constitution.

In the opinion given in 1978, the Constitutional Law Committee observed that "the bill subject to debate, concerning fishing in the three northernmost municipalities, entailed weakening of the traditional fishing rights of their residents who had no titles to land but who earned a significant part of their living from traditional means of livelihood, of whom most represented the Sámi population, as a licence would thereby be necessary for fishing and it would be subject to a charge." In the Committee's view, the bill had to be considered in accordance with the procedure for the enactment of the Constitution.

The opinion given by the Constitutional Law Committee in 1981 concerned the Government Bill for the enactment of the 1982 Fishing Act. The Committee drew attention to the fact that it was necessary to separately solve the unresolved questions concerning fishing in the northernmost municipalities without delay. Thereafter, the Law and Finance Committee proposed that the fishing legislation - the 1951 Fishing Act - in force at the material time should remain in force for the said municipalities (Report of the Law and Finance Committee 18/1981). Thus, a provision based on that proposal, subsection 4 of section 129, was included in the new Fishing Act.

In 1993, the opinion of the Constitutional Law Committee concerned a Government Bill in which it was proposed, inter alia, that section subsection 4 of section 129 of the 1982 Fishing Act be repealed. On that               occasion, the Committee was of the view that the bill entailing repealing of the said provision had to be               discussed in accordance with the procedure provided for in section 67 of the Parliament Act. The Committee further noted, referring to the ILO Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries, adopted in 1989, that such an amendment should not be made even if it was made in accordance with the procedure applied to the enactment of the Constitution. ...

Extending the scope of application of the 1982 Act to concern the three northernmost municipalities entails harmonisation of legislation which can be said to be in conformity with the principles enshrined in section 5 of the Constitution Act of Finland and with the requirements of foreseeability. A general constitutional issue relating to the extension of the scope of application is the question of public fishing rights as a restriction on the enjoyment of possessions. Referring to earlier opinions, the Committee finds that in this regard the bill may be discussed in accordance with the procedure applied to the enactment of ordinary acts of Parliament (Opinions of the Constitutional Law Committee 8/1996 and 5/1981). ...

Subsection 1 of section 12 means that the local inhabitants in the three northernmost municipalities maintain their possibility to fish free of charge in the state-owned waters, based on custom. In the Committee's view, this kind of a legislative measure conforms to the requirements attached to the protection of possessions based on custom "from time immemorial" and on an extensive right of enjoyment, which have been observed in earlier opinions of the Committee, concerning the traditional rights of inhabitants who do not have titles to land. For this reason, the Committee is of the view that the bill is also acceptable in the light of the provisions in section 5 of the Constitution Act. As regards the status of the Sámi people, particularly in view of the provisions in subsection 3 of section 14 of the Constitution Act, the Committee has paid attention to the fact that fishing has been part of the traditional way of life of the Sámi without any restrictions as to their place of residence. Therefore, the Committee finds it important to clarify the last part of the provision in subsection 1 of section 12 so that the fishing right is not only dependent on the place of residence but is valid in the areas of all three northernmost municipalities where the person is resident in one of them. ...

Article 27 of the International Covenant on Civil and Political Rights provides for the rights of minorities. For example in the light of the practice of the Human Rights Committee monitoring the implementation of the Covenant, it may be observed that the exercise of fishing rights of the Sámi is part of their minority culture. The proposed amendment may not be considered to entail prevention of fishing as part of the Sámi culture in the sense of constituting a violation of Article 27 of the Covenant. In this respect, reference may be made to section 12 of the Bill, which is based on the premise that the permanent residents of the said municipalities have the right to obtain a fishing licence free of charge. ...

The Government Bill does not interfere with questions of ownership. The purpose of the proposed provisions is, inter alia, to establish the right of permanent residents of the municipalities of Enontekiö, Inari and Utsjoki to obtain a fishing licence free of charge for fishing in the state-owned waters, on certain conditions. The Bill is not restricted to the Sámi as a population group but concerns all residents of the said municipalities. Apart from permanent residence, it is further required for the existence of such a right that the residents in question carry out professional fishing, fishing for personal purposes or other traditional means of livelihood. In the Committee's view, these conditions are, however, of such a nature that they have relevance in particular for the Sámi. Therefore, it may be observed that the Bill partly contributes to the protection of the right of the Sámi to use the water areas in question.”

COMPLAINTS

1. The applicants complained under Article 1 of Protocol No. 1 to the Convention that the 1997 amendment of the Fishing Act violated their right to the peaceful enjoyment of their possessions as the property rights of Sámi people who were not landowners were not taken into account in the relevant legislation even though their right to fish had earlier been clearly established by the Committee for Constitutional Law. Moreover, the Fishing Act extended the fishing rights of the local people, weakening the legal position of the landless Sámi people with the result that their fishing rights no longer enjoyed the constitutional protection of property. Also fees charged for a fishing licence in the area had changed from being on a household basis to a personal basis, adding to the applicants' fishing expenses.

2. The applicants also complained, under Article 6 of the Convention, that they did not have a fair hearing in the determination of their civil rights as the State had diminished the rights of the Sámi people and deprived the applicants of their possessions without a trial.

3. The applicants further complained, under Article 8 of the Convention, that their right to respect for their private and family life had been violated since the Sámi people, as a national minority and an indigenous people, were entitled to request that their special way of life was respected. That way of life, which included fishing as part of the Sámi tradition, had to be regarded as “private and family life” protected by Article 8.

4. The applicants also complained that they did not have an effective remedy. They invoked Article 13 of the Convention in this respect.

5. Lastly, the applicants complained, under Article 14 of the Convention read alone or in conjunction with Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1, that the 1997 amendment of the Fishing Act was discriminatory and that they were discriminated against on the basis of their race and their association with a national minority.

THE LAW

1. The applicants complained that the 1997 amendment of the Fishing Act violated their right to the peaceful enjoyment of their possessions as the property rights of Sámi people who were not landowners were not taken into account in the relevant legislation even though their right to fish had earlier been clearly established by the Committee for Constitutional Law. Moreover, the Fishing Act had extended the fishing rights of the local people, weakening the legal position of the landless Sámi people with the result that their fishing rights no longer enjoyed the constitutional protection of property. Also fees charged for a fishing licence in the area had changed from being on a household basis to a personal basis, adding to the applicants' fishing expenses. They invoked Article 1 of Protocol No. 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.”

(a) Whether the first applicant could claim to be a “victim”

The respondent Government argue that the first applicant association, Johtti Sapmelaccat r.y., could not claim to be a “victim” within the meaning of Article 34 of the Convention. That provision entitles individuals to contend that a law in itself violates their rights, without any individual measure of implementation, if they are directly affected by it or run a risk of being directly affected by it (see, inter alia, Klass and Others v. Germany, judgment of 6 September 1976, Series A no. 28, § 33). The first applicant is a cultural association, aiming at uniting the Sámi, promoting and maintaining the Sámi culture and protecting the rights and the way of life which are necessary for the existence of the Sámi culture. For the purpose of fulfilling its aims, the association maintains contacts with similar Sámi associations, enhances the maintenance and improvement of knowledge of the Sámi language, enhances the traditional handicraft skills of the Sámi, organises counselling and provides public information. According to the Government, the amendment of the Fishing Act cannot have any such implications on the first applicant's own rights under the Convention that it could be characterised as a victim in the present case.

The applicants maintain that the Court may receive applications from any non-governmental organisation claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The wording of the Convention establishes that a non-governmental organisation, such as the first applicant association, has an unconditional right to make an application to the Court. All the other applicants are members of the first applicant association. The question of the diminution of fishing rights concerns all the members of the applicant association in concreto. According to the association's rules, it has the right and obligation to oversee its members' interests and rights in this matter.

The Court finds that it is not disputed that the first applicant association is to be regarded as a non-governmental organisation within the meaning of Article 34 of the Convention. The Court, however, notes that – unlike the villages' status in respect of the herding of reindeer in the case of Könkämä and 38 other Sámi villages v. Sweden (no. 27033/95, Commission decision of 25 November 1996) – the first applicant association is not responsible for fishing within its respective area and does not represent its members in such matters. Moreover, the rights designated in the Fishing Act can be exercised by a Sámi only as a private individual.

Therefore the Court considers that the first applicant, Johtti Sapmelaccat r.y., may not, for the purposes of Article 34 of the Convention, claim to be a “victim” of the violations alleged in the present application.

It follows that, insofar as lodged by the applicant association, this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 §§ 3 and 4 of the Convention.

(b) Exhaustion of domestic remedies

(i) The parties' submissions

The Government also invoke Article 35 § 1 of the Convention, claiming that domestic remedies have not been exhausted. The applicants' allegations concerning the fishing rights are questions which, for example, could be examined by a general court of law in proceedings for a declaratory judgment. The applicants have not instituted such proceedings before the District Court. An appeal would lie to the Court of Appeal and further, subject to leave to appeal, to the Supreme Court (see, inter alia, O.S. and Others v. Finland, inadmissibility decision of 9 July 1991 by the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights, Communication No. 432/1990, paras. 6.2., 8.1., 8.3. and 8.4.; similarly, in relation to the proceedings in Sweden; see the above-mentioned decision in Könkämä and 38 other Sámi Villages v. Sweden).

The Government submit that the Constitutional Law Committee, in its opinion (30/1993) on the Government Bill submitted to Parliament in 1993, also referred to the possibility of court proceedings, noted as follows:

“... no different provisions of law have been enacted on the existence of fishing rights independent of land ownership, and nor are there any court decisions requiring a different assessment of the matter”.

Moreover, the Government contend that the opinion of the Supreme Court in its judgment of 27 June 1984, according to which “rights to use water areas based on factors other than land ownership may not be decided in the context of the establishment of the boundaries of those water areas”, does not mean that no court decisions on them could be given in a different context. The Government is preparing legislation in order to settle the issue by legislative means. However, these legislative arrangements have not yet been completed. Should the applicants wish to make a complaint to an international court before these arrangements have been completed, they have to exhaust all available effective domestic remedies referred to above.

The applicants argue that there are no effective remedies available to them. They recall that when the subsequent water district demarcation proceedings reached the Supreme Court for the first time, Enontekiö's non-landowning Sámi had appealed to the Supreme Court in the name of the old Sàmi villages i.e. the Lapland villages of Rounala, Suonttavaara and Peltojärvi. In the water district demarcation proceedings, no separate account was taken of the demands of the villages, and the Northern Finland Land Court regarded the question as involving merely general, personal demands. The Supreme Court in turn took the view in its judgment of 27 June 1984 (no. 1329) that the demands of the Sámi villages could not be examined at all in connection with the water district demarcations. According to the judgment, the reason for this was that the demands were not based on land ownership. By this it was meant, above all, that it was not possible to confirm any special water areas or fishing rights for the land areas (whose extent was not established in the general reparcellings, and which also did not feature in the Land Register). The demands of the Sámi villages of Enontekiö, i.e. of Rounala, Suonttavaara and Peltojärvi, were rejected in the Supreme Court on this basis.

The applicants submit that the water district demarcations carried out in the municipality of Enontekiö finally achieved legal validity on 14 November 1996. According to Article 8 of the 1902 Water Boundary Act, if a demand for fishing based on custom since time immemorial is not approved in water district demarcation proceedings, the action concerning this must be brought in the court of first instance within three years of the date that the proceedings achieved legal validity. Accordingly, the proceedings should have been instituted in November 1999 at the latest. It has therefore not been possible in this case to turn to the court of first instance or to any other national court. The applicants point out that, at this stage, the question of the fishing rights of non-landowning Sámi could only be resolved in Finland by the legislative route.

According to the applicants, the repeated promises and, in certain cases, direct “demands” issued by the State concerning the improvement of the land and water rights of the Sámi population by the legislative route are, on the other hand, also the reason why the non-landowning Sámi population was, following the judgment of the Supreme Court regarding water district demarcations, satisfied with the situation as it stood. In other words, the Sámi population did not take the matter to the general court of first appeal, being confident that the State truly and sincerely intended to take steps to ratify ILO Convention 169 regarding indigenous people. On the other hand, they also claim that the demand that an entire section of the population should have this point of law decided through recourse to the courts (if the possibility of exercising national legal remedies were to exist, contrary to what is the present case) is, in itself, inequitable and contrary to the principle of equality laid down in the Constitution. Other than in the case of the currently non-landowning Sámi population, rights to land and to water are generally decided in normal land surveys, without any need to resort to expensive legal proceedings in order to implement a person's own ownership rights. This has been the case both in the three northern municipalities and in the rest of Finland.

(ii) The Court's assessment

The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitration organ to use first the remedies provided by the national legal system. The only remedies to be exhausted are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him from the requirement. In such circumstances, the burden of proof shifts once again, so that it becomes incumbent on the respondent Government to show what they have done in response to the scale and seriousness of the matters complained of.

Turning to the present case the Court notes that the applicants do not deny that the wide scope of the public fishing rights accorded to the local inhabitants in the Sámi Home District by the 1997 amendment of the Fishing Act has not as yet been challenged before a national court of law on the basis of the allegedly exclusive nature of the traditional fishing rights belonging to the non-landowning Sámi population from time immemorial.

The Government, on the other hand, have not specified what effective domestic remedies there were, in their view, at the applicants' disposal for this particular purpose at the time when the application was lodged. It seems obvious that the Supreme Court judgment of 27 June 1984 (no. 1329) ruled out the possibility of examining the claims of the landless in connection with the water district demarcation proceedings. The Government, however, refer, inter alia, to an inadmissibility finding in the case of O.S. and others v. Finland of 9 July 1991 (Communication No. 432/1990) where the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights took notice of the fact that some Finnish courts have entertained claims based directly on the minority rights enshrined in Article 27 of the said Covenant. The Court also notes that Section 14, subsection 3 of the 1919 Constitution (969/1995), as in force at the relevant time, expressly recognized that the Sámi, as an indigenous people, have the right to maintain and develop their own language and culture.

The constitutional and human rights provisions referred to above, however, remain very general in nature. At the relevant time, there was neither statutory law nor any established constitutional tradition making it possible for the Finnish courts of law to review the constitutionality of ordinary legislation or to supersede parliamentary acts on the ground that they were in conflict with constitutional provisions or international human rights law. Furthermore, in the present case, the applicants are not claiming that the 1997 amendment of the Fishing Act directly deny their traditional fishing rights. The grievance lies in the allegation that the amendment unjustifiably extends public fishing rights also to other local residents besides those of Sámi origin.

Under these circumstances, and given the substance of the application, the Government have failed to show the existence of an adequate and effective remedy under Finnish law in respect of the applicants' complaints. The Government's preliminary objection must therefore be dismissed.

(c) Existence of any interference

(i) The parties' submissions

The Government submit that the applicants' fishing rights were extended rather than reduced in the context of the 1997 amendment. It extended the right to get a fishing licence free of charge covering all three relevant municipalities instead of one.

Were the Court to find the occurrence of an interference, the Government submit that it was based on law and pursued a general interest. As to whether the alleged interference was proportionate, they re-iterate that the 1997 amendment in fact increased the applicants' fishing rights. Fishing is not a means of livelihood that exclusively belongs to the Sámi, considering that the other permanent residents have also been carrying out fishing in northern Finland. In this connection it should be noted that the Sámi Parliament participates in the decision-making concerning fishing and has the possibility to affect the regulation of fishing for example in a situation where the fish have reduced in number and it is necessary to impose restrictions in order to protect the fish stock. The applicants have not presented any evidence that they carry out fishing for example as a means of traditional livelihood, nor on their earlier catches and the allegedly restricting effect of the new provisions of law. They have not shown that the 1997 amendment implied, in balance, such a negative effect on their fishing on the basis of which the enactment could be considered to amount to a violation of Article 1 of Protocol No. 1.

The applicants submit as to the alleged lack of evidence of their fish catches and the effect of the 1997 amendment on them that the diet of the Sámi population which lives in a natural economy has always included as an essential part fish which they have caught themselves. Fish are caught with nets from the families' traditional fishing places, which hitherto have guaranteed sufficient fish for the families' needs all year round. Fish are not caught with a view to selling them. Fishing with, for example, hook or lure has in practice nothing to do with the Sámi traditional net fishing and is not the type of fishing that could materially diminish or weaken the most important yield that is to say that from the fishing with nets.

The applicants argue that the 1951 Fishing Act had expressly been left in force in the three northernmost municipalities. The Decree implementing the 1982 Fishing Act contained provisions aiming at extending the fishing rights of the local population in a material manner, but a provision which was in conflict with an Act could not be incorporated by a Decree. Thus, it was not possible to create any extension of fishing rights by the Decree implementing the 1982 Fishing Act. The extension in question was incorporated in an Act only by the 1997 amendment. The justification of the entire amendment rests on an erroneous comprehension regarding the fishing situation in the north. The 1997 amendment proceeds from the idea that when giving the right in question to every resident of the municipality, the rights based on custom from time immemorial of non-landowning Sámi will at the same time be guaranteed. However, no provision guarantees traditional fishing or fishing places to the Sámi. According to the 1997 amendment anyone can begin to use them, which amounts to a diminution of rights by legislation. The fact that the 1997 amendment diminished the traditional rights and opportunities of the non-landowning Sámi to fish is evidenced by the population structure in for example the municipality of Enontekiö. In 1999 the total number of residents was 2,225 of which 429 people were Sámi.

The applicants submit that the Government's assertion that the applicants' fishing rights were extended rather than reduced is misconceived. As the Sámi people's fishing has for generations been concentrated on certain specific fishing places, the fact that fishing could take place in another of the three relevant municipalities instead of in only one of them is lacking significance.

(ii) The Court's assessment

In order for the applicants to claim a “violation”, there has to be evidence to prove that they are directly and adversely affected by the 1997 amendment of the Fishing Act, or at least run the risk of being so affected by it. Otherwise the amendment in itself, without any individual measures of implementation, could not be said to infringe their Convention rights.

The Court notes that the precise scope of the traditional fishing and other rights belonging to the Sámi population was not determined at the relevant time. This seems to be a complex legal, historical and political issue. It is obvious, however, that the 1997 amendment of the Fishing Act was not intended by the legislator to curb the rights of the Sámi population, such as they existed at the relevant time. Judging from the travaux preparatoires, the general aim was rather to protect the rights of the Sámi, while ensuring the rights of other local residents as well. The Court also notes the Constitutional Committee's view that in the drafting of the amendment, the special conditions for the exercise of the public fishing rights were in fact formulated in a manner to ensure that they have relevance in particular for the Sámi population.

The application only concerns the 1997 amendment by which the 1982 Fishing Act was extended to cover the Sámi Home District. The applicants argue that their legal position was weakened as the public fishing rights were extended to all local inhabitants, whether or not they are of indigenous origin. They are afraid this would render the traditional Sámi culture more vulnerable than before.

The said amendment, however, does not seem to have changed the substance of the earlier regulation of the relevant fishing rights, apart from the technical difference that the traditional fishing rights were recognized on the level of a parliamentary enactment instead of a governmental decree. The only material alteration was that these rights are now applied to the Sámi Home District as a whole and not only to the municipality of residence. This in itself can hardly imply a “weakening” of the applicants' legal status. Besides, it is not clear whether even this provision meant a real change as compared to the earlier situation, rather than a clarification of the law.

In their observations in reply, the applicants argue that the relevant fishing rights of the local population were actually established as early as 1982, by means of an “illegal” decree implementing the 1951 Fishing Act. Insofar as this is to claim that the violation of the applicants' rights already took place in 1982, the Court finds the application incompatible ratione temporis with the Convention as Finland did not accede to the Convention until 1990.

The applicants have not appreciably shown the adverse impact of the 1997 amendment of the Fishing Act on their concrete possibilities to exercise their traditional fishing rights. Furthermore, the Court fails to see how the fees charged for the fishing licences could be relevant in the present context, because the fishing rights in issue were expressly guaranteed to remain free of charge. Again, as far as the restriction on the use of certain fishing equipment is concerned, the legitimate purpose was obviously to protect the fish stock.

As a result, the applicants have not satisfied the Court that there has been any interference with their property rights. On these grounds, the Court finds that this complaint is manifestly ill-founded within the meaning of Article 35 § 3. Therefore, it must be rejected in accordance with Article 35 § 4 of the Convention.

2. The applicants complained that they did not have a fair hearing in the determination of their civil rights as the State had diminished the rights of the Sámi people and deprived the applicants of their possessions without a trial. They invoke Article 6 § 1 of the Convention which reads, insofar as relevant, as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

The Court recalls the above finding in respect of the complaint made under Article 1 of Protocol No. 1 to the Convention. As the applicants' rights have not been affected, there has accordingly been no determination of their “civil rights” within the meaning of Article 6 § 1 of the Convention.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

3. The applicants further complained that their right to respect for their private and family life had been violated since the Sámi people, as a national minority and an indigenous people, were entitled to request that their special way of life was respected. That way of life, which included fishing as part of the Sámi tradition, had to be regarded as “private and family life” protected by Article 8 which reads in relevant part:

“1. Everyone has the right to respect for his private and family life ... .

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, 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.”

The Court notes its reasoning above as to the complaint under Article 1 of Protocol No. 1. Similarly, the applicants have not shown that their rights under Article 8 have been violated.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The applicants also complained that they did not have an effective remedy. They invoked Article 13 of the Convention which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] 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.”

According to the Court's case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).

The Court has above found that the applicants' complaints are manifestly ill-founded and incompatible ratione materiae with the Convention. It follows that the applicants do not have an “arguable claim” and their complaints do not attract the guarantees of Article 13. This part of the application must also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4.

5. Lastly, the applicants complained, under Article 14 of the Convention read alone or in conjunction with Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1, that the 1997 amendment of the Fishing Act was discriminatory and that they were discriminated against on the basis of their race and their association with a national minority.

Article 14 of the Convention reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] 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 Court notes that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous –, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, the Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B, § 22, and the Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports 1997-I, § 33).

The Court recalls its reasoning above as to the complaints under Article 1 of Protocol No. 1, and Articles 6 and 8 of the Convention, finding that there has been no interference with the rights invoked. Nor on the facts of the case has there been shown to be any discriminatory treatment in the enjoyment of these rights.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O'BoyleNicolas Bratza
RegistrarPresident

Full & Egal Universal Law Academy