AS TO THE ADMISSIBILITY OF
Application No. 22025/93
by Arto KETO-TOKOI and Others
against Finland
The European Commission of Human Rights sitting in private on
3 March 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. J. LIDDY
MM. G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
C.L. ROZAKIS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. BÉKÉS
J. MUCHA
D. SVÁBY
A. PERENIC
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 May 1993 by
Arto KETO-TOKOI and Others against Finland and registered on 9 June
1993 under file No. 22025/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
15 January 1996 and the observations in reply submitted by the
applicants on 15 March 1996 and 17 February 1997;
- the parties' oral submissions at the hearing on 3 March 1997;
Having deliberated;
Decides as follows:
THE FACTS
The names and particulars of the applicants are set out in the
Annex. They are represented by Ms. Pirjo-Riitta Oinaala, lawyer of the
Finnish Association for Nature Conservation ("Suomen luonnon-
suojeluliitto r.y. - Finlands naturskyddsförbund r.f.") and Mr Juhani
Kortteinen, a legal researcher at the University of Helsinki.
A. Particular circumstances of the case
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicants are owners of properties in the municipality of
Pelkosenniemi near the river Vuotos in the County of Lapland in
northern Finland.
After an informal meeting on 15 September 1982 the Government
made known that an artificial lake and related facilities such as a
hydro-electric power station should not be constructed in the Vuotos
area. Plans for such a lake had been under discussion since the 1960's.
It appears that in 1986 the Ministry for Trade and Industry again
began to plan the lake. In the summer of 1991 the limited liability
company Kemijoki Oy began an extensive survey of the Vuotos area. The
company's purpose is to own and manage hydro-electric power stations
and lines and to produce electricity for its shareholders. The Finnish
State owns roughly 78 per cent of the shares.
The surveying entailed, among other measures, the felling of
trees with a view to creating three 70-126 metres long and 2 metres
wide openings in the forest on the applicants' properties. Three such
openings were created on each property. Excavation took place with the
help of explosives. The surveyed area measured some 18 kilometres in
length. The surveying affected between 0.011 and 0.019 hectares of the
applicants' respective properties.
The main part of the surveyed area belonged to Kemijoki Oy
itself. As for the remainder, the company tried to obtain the property
owners' consent to the surveying. According to the Government, the
applicants expressed such consent and an agreement was reached
concerning the compensation to be paid to them. According to the
applicants, they never consented to the measures taken on their
properties.
On 2 September 1991 the Ministry for Trade and Industry (kauppa-
ja teollisuusministeriö, handels- och industriministeriet) found that
the Vuotos area did not contain any mineral resources of such an amount
as to render their exploitation profitable. This finding was apparently
based on surveying carried out in the late 1980's.
In a notification published in the regional daily "Koillis-Lappi"
on 13 September 1991 Kemijoki Oy stated that it would commence
"supplementary" geological surveying on 16 September 1991.
On 30 October 1991 Kemijoki Oy requested permission to conduct
a survey of the Vuotos area in order to determine the layout of the
artificial lake and the location of a pump station and power lines. The
request apparently concerned some 240 km² intended to be submerged in
the lake. A permit was granted by the County Administrative Board
(lääninhallitus, länsstyrelsen) of Lapland on 11 November 1991 in
pursuance of the 1977 Act on Compulsory Acquisition of Real Property
and Particular Rights (laki kiinteän omaisuuden ja erityisten
oikeuksien lunastuksesta, lag om inlösen av fast egendom och särskilda
rättigheter 603/1977; "the 1977 Act"). The survey was to be concluded
by the end of 1993 and was to be conducted without causing unnecessary
damage and harm. Any damage or harm was to be repaired or compensated.
Provided their addresses were known the company was ordered to notify
all property owners (and holders of any related right) individually of
the surveying at least seven days before commencing it. Otherwise the
notification was to be of a general character, which normally entails
that it is posted on the municipal notice board. No property owner or
holder of a related right was heard by the County Administrative Board.
In 1991 the applicants received the following sums from the
company in compensation for damage resulting from the survey of their
properties preceding the County Administrative Board's decision:
Mr Keto-Tokoi: 15.000,00 FIM
Mr and Mrs Poikela: 4.000,50 FIM
Ms Tannervo: 5.000,00 FIM
Ms Vesanen: 3.030,00 FIM
According to the applicants, these payments were based on an
agreement according to which the company undertook not to carry out any
further surveying of their properties.
On 7 January 1992 the company, relying on section 7 of the 1965
Mining Act (kaivoslaki, gruvlag 503/1965), reserved the right to lodge
mining claims concerning minerals potentially to be exploited in the
area affected by the permit issued on 11 November 1991.
In a notification published in "Koillis-Lappi" on 25 March 1992
the company, referring to the permission granted on 11 November 1991,
stated its intention to "commence" the survey. According to the
applicants, they did not at that time receive knowledge of the intended
surveying.
On 13 May 1992 the State Institute for Economic Research (Valtion
taloudellinen tutkimuskeskus, Statens ekonomiska forskningsanstalt)
published a survey of the financial implications of the lake project.
The survey had been ordered by the Government and concluded, in
essence, that the project would not be profitable.
On 17 June 1992 the Government, sitting in its capacity as
Council of State (valtioneuvosto, statsrådet), instructed the State
representatives at Kemijoki Oy's shareholders' meeting not to object
to an intended request for permission to construct an artificial lake
and a power station in the Vuotos area. The State representatives were
also instructed to permit the company to take any other measures deemed
necessary for the realisation of the project.
The construction of the artificial lake and related facilities
requires permission by the Water Court of Northern Finland (Pohjois-
Suomen vesioikeus, Norra Finlands vattendomstol) in pursuance of the
1961 Water Act (vesilaki, vattenlag 264/1961). Such a permit was
requested by Kemijoki Oy on 25 September 1992 and the proceedings are
still pending. An appeal lies with the Water Court of Appeal
(vesiylioikeus, vattenöverdomstolen) following which the Supreme
Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-
domstolen) may grant leave to appeal.
In the proceedings before the Water Court the company has also
requested permission to take various preparatory measures (such as
extraction with a view to creating dams). Permission may be granted
only if and when the actual construction permit is issued and would
enable partial commencement of the lake project before such a permit
might acquire legal force (chapter 2, section 26 of the Water Act).
On 3 December 1992 Ms Tannervo acknowledged receipt of a
notification by Kemijoki Oy as follows:
(translation from Finnish)
"Kemijoki Oy
RECEIPT OF NOTIFICATION
I have received a notification delivered by representatives
of Kemijoki Oy concerning (the) surveying to be carried out
in the area of the planned artificial lake of Vuotos.
..."
The receipt was countersigned by a representative of Kemijoki Oy.
According to the Government, all applicants received, on 3 or
4 December 1992, "a personal and reasonable notice" of the County
Administrative Board's decision of 11 November 1991 with a notice of
appeal annexed thereto.
The applicants, however, state that in December 1992 Mr Keto-
Tokoi, Ms Tannervo and Ms Vesanen received only informal knowledge of
the Board's decision, while Mr and Mrs Poikela were informed thereof
in January 1993. Having allegedly been misled by the terms of the
document notified to her on 3 December 1992, Ms Tannervo signed it,
although it did not correspond to a formal notification pursuant to
domestic law. Most likely it contained neither the permit itself nor
a formal notice of appeal.
On 7 January 1993 the company requested the Ministry for Trade
and Industry to grant it five claims (valtaus, inmutning) concerning
minerals potentially to be exploited in certain areas within the
municipalities of Pelkosenniemi and Savukoski, including the
applicants' properties. The surface claimed totalled some 4,5 km².
On 5 February 1993 the applicants lodged a complaint with the
police concerning the measures taken on their properties by Kemijoki
Oy. On 11 February 1993 they requested the Supreme Administrative Court
to stay enforcement of and annul (purkaa, återbryta) the County
Administrative Board's decision of 11 November 1991. They essentially
argued that they had neither been heard by the Board nor properly
notified of the intended surveying. Given that they had not been
formally notified of the Board's decision, they had been unable to
lodge an ordinary appeal. They also argued that the Board's decision
had been based on a manifestly wrong application of domestic law. The
1982 Act on Administrative Procedure (hallintomenettelylaki, lag
598/1982 om förvaltningsförfarande) had warranted the hearing of the
applicants and the essence of the matter should rather have been
examined by the Water Court in pursuance of the Water Act.
By decisions of 14 April 1993 the Ministry for Trade and Industry
granted the mining claims requested by the company. The claims
authorise it to take various geological surveying measures with a view
to verifying the extent of any mineral findings.
The applicants appealed to the Supreme Administrative Court,
arguing, in essence, that the claims concerned mainly those parts of
the Vuotos area upon which the company intended to construct the
artificial lake and related facilities. In addition, the company's
statutes did not permit it to prospect and make use of mineral
findings. The claims allegedly enabled the company to circumvent the
requirements of the Water Act, according to which even preparatory
measures with a view to establishing an artificial lake required
permission by the competent water court. The applicants finally
recalled the previous geological survey which had shown that the area
contained an insufficient amount of minerals for any exploitation to
be profitable. The company was therefore not in need of the mining
claims.
In a newspaper interview published on 23 April 1993 a
representative of Kemijoki Oy stated that the company did not expect
any significant mineral findings in the Vuotos area. It had
nevertheless requested mining claims in the light of certain
indications of valuable minerals. The representative furthermore
acknowledged that the company might not be able to start exploiting
possible findings in its own name.
On 24 November 1993 the Supreme Administrative Court rejected the
applicants' annulment request of 11 February 1993 after an examination
of its merits. It considered that the County Administrative Board had
been competent to grant the surveying permit pursuant to the 1977 Act.
Such a permit concerned merely preparatory measures. The 1977 Act
required that a property owner be notified of the commencement of the
survey. It also stipulated how any damage caused by a survey should be
compensated. In these circumstances the granting of the permit had not
presupposed the hearing of parties within the meaning of the 1982 Act
on Administrative Procedure (such as the applicants). No procedural
error of sufficient significance had therefore been made. Nor did the
Supreme Administrative Court find any other grounds for annulling the
County Administrative Board's decision.
In response to the applicants' complaint of 5 February 1993 the
Public Prosecutor of Pelkosenniemi, on 17 February 1994, found that
Kemijoki Oy had, in the autumn of 1991 and in December 1992,
accidentally surveyed Ms Vesanen's and Mr Keto-Tokoi's properties. The
survey had entailed, inter alia, felling of trees and the use of
explosives. In the police investigation a company representative had
stated that, on 3 December 1992, all applicants had been formally
notified of the permission granted on 11 November 1991 but had refused
to acknowledge receipt thereof in writing. The Prosecutor decided not
to press charges, considering that no criminal offence had been
committed.
In 1994 the applicants received the following compensation from
the company for the damage resulting from the survey of their
properties after the County Administrative Board's decision of
11 November 1991:
Mr Keto-Tokoi: 615,40 FIM
Mr and Mrs Poikela: 1.329,00 FIM
Ms Tannervo: 1.104,00 FIM
Ms Vesanen: 1.774,00 FIM
Part of the compensation was later returned to the company which
then deposited it on the County Administrative Board's account in
accordance with domestic law.
On 30 August 1994 the Supreme Administrative Court rejected the
applicants' appeal against the Ministry's decisions of 14 April 1993.
The Court noted that the 1965 Mining Act exhaustively enumerated the
impediments to granting claims. Since no such impediment had been shown
to exist, the Ministry had been under an obligation to grant the
claims.
In an agreement with the company dated 3 July 1995 Mr and
Mrs Poikela declared having received 4.000 and 1.329 FIM in
compensation for all damage caused by the surveying of their property.
They also renounced any further claim in respect of the surveying
related to the lake project and were afforded a right to collect fallen
trees from certain parts of the company's property.
According to the Government, Kemijoki Oy has paid the applicants
annual compensation pursuant to the Mining Act for the existence of the
mining claims. Part of the money has been deposited on the County
Administrative Board's account following certain applicants' refusal
to accept the payments.
According to the applicants, they have not received any
compensation for "the mining".
B. Relevant domestic law and practice
Before proceedings are instituted for the purpose of requesting
a right of compulsory acquisition of real property a permission to
carry out a geological survey of the property in question may be
requested. A successful applicant shall notify every property owner and
holder of a right of usufruct individually of the commencement of the
survey, if their addresses are known. Otherwise a public notice will
suffice. Notification shall take place at the latest seven days before
the commencement of the survey. The surveying permission must be
presented on request (sections 84-85 of the 1977 Act).
As in force at the relevant time the 1977 Act contained no
provision requiring that the property owners and others affected by the
requested surveying should be heard in advance and/or be notified of
the County Administrative Board's decision to grant permission to this
effect. According to the 1982 Act on Administrative Procedure, a party
within the meaning of that Act shall be given an opportunity to be
heard in regard to submissions by others provided this material could
influence the outcome of the matter. If, for instance, previously
enacted legislation contains provisions which deviate from those in the
1982 Act, that legislation shall be applied (sections 2 and 15).
As from 1 September 1996 the 1977 Act stipulates that only
absolutely necessary measures shall be taken on the basis of a
surveying permission. If necessary, the County Administrative Board
shall set out in detail the permitted measures as well as any
restrictions. In certain cases a property owner or a holder of a
related right shall now be notified both of a request for permission
and of a decision to grant one (section 84, as amended by Act no.
476/96).
According to the 1977 Act, as in force prior to 1 September 1996,
compensation for damage caused by the surveying of a property was, if
no settlement had been reached, to be requested in court proceedings
instituted within a year from the expiry of the surveying permit. If
the compulsory acquisition of a surveyed property had been permitted,
compensation for the surveying was to be claimed in the proceedings
pertaining to the actual acquisition (section 86, subsection 3 of the
1977 Act). As from 1 September 1996 requests for compensation shall no
longer be examined by civil courts but by an ad hoc commission (section
86, as amended by Act no. 476/96).
According to the 1950 Act on the Right of Appeal in
Administrative Matters (laki muutoksenhausta hallintoasioissa, lag om
ändringssökande i förvaltningsärenden 154/1950), an appeal could be
lodged with the Supreme Administrative Court against a decision of, for
instance, a County Administrative Board provided the right of appeal
has not been removed or restricted by law. An appeal was to be lodged
within thirty days from the day when the appellant was notified of the
decision at issue (sections 2, 4 and 8). In its decision No. 1970 II
116 the Supreme Administrative Court considered that this period began
only on the day when the appeal was lodged, since the appellant had not
been formally notified of the appealed decision.
According to the 1966 Act on Extraordinary Remedies against
Administrative Decisions (laki ylimääräisestä muutoksenhausta
hallintoasioissa, lag om extraordinärt ändringssökande i
förvaltningsärenden 200/1966), annulment of an administrative decision
which had acquired legal force could be requested with reference to,
inter alia, an alleged procedural error which might have had a
significant influence on the decision (section 2). Annulment could not
take place unless the decision at issue violated the right of an
individual or an annulment was in the public interest. An annulment
request could not be examined, if certain other remedies mentioned in
the Act were still available (section 6). In its decision No. 1979 II
628 the Supreme Administrative Court declined to examine a request for
annulment, since the time-limit for lodging an ordinary appeal had not
yet expired.
The 1950 Act and the 1966 Act have been repealed by the 1996
Administrative Judicial Procedure Act (hallintolainkäyttölaki,
förvaltningsprocesslag 586/1996) which entered into force on 1 December
1996.
If a request for a mining claim meets the requirements set out
in sections 8 and 10 of the Mining Act and provided it is not to be
rejected on any of the grounds enumerated in section 6, the claim shall
be granted. The right to seek such a claim may be reserved for one year
(section 7). A claim entitles the holder to carry out geological
surveys and test exploitation (sections 4 and 12). The holder of the
claim shall pay the affected property owners compensation (fixed by
Decree) either per annum or more frequently. Any damage or harm caused
to the property owner by measures taken on the basis of a mining claim
must be fully compensated (section 15). Further compensation shall be
paid to the property owner both for a right of extraction and the
actual extraction of minerals (sections 44-45). Should payment of any
such compensation not occur, the property owner may request that the
mining claim or right of extraction be forfeited (section 64).
Compensation for any unforeseen damage or harm caused by actual
extraction may be claimed in civil proceedings (section 46).
COMPLAINTS
1. The applicants complain that they were denied a fair hearing in
the proceedings resulting in the granting of the surveying permit to
Kemijoki Oy. Although their addresses were known, they were neither
heard in respect of the company's request nor properly notified of the
County Administrative Board's decision. The non-hearing of the
applicants allegedly also discriminated against them. They invoke
Articles 6 and 14 of the Convention.
2. The applicants also complain that the measures which the company
has taken on their properties have violated their right to the peaceful
enjoyment of their possessions. These activities commenced already
before the surveying permit had been granted. The Board's decision to
grant such a permit did not pursue any general interest, since the
Government's own investigations had already shown that the artificial
lake project would not be profitable. The mining claims granted to the
company concern land which it envisages to submerge rather than use for
mining purposes. These claims therefore restrict the applicants'
property rights for purposes not allowed by the Convention. The
measures taken by the company have been disproportionate to any general
interest pursued, since they have limited the applicants' possibility
of pursuing agricultural and forestry activities. The company is in
effect pursuing its aim to construct the artificial lake and related
facilities, although no permit to this effect has been granted so far.
The conduct of the authorities seen as a whole has been and continues
to be aimed at depriving the applicants of their right peacefully to
enjoy their possessions.
The applicants furthermore complain that the surveying and
related measures have also violated their right to respect for their
private life and homes. Notably, the possibility that their properties
may be submerged in the lake has caused them mental distress.
The applicants also complain that they have had no effective
remedy at their disposal against the above-mentioned violations.
The applicants invoke Article 1 of Protocol No. 1 as well as
Articles 8, 13, 17 and 18 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 May 1993 and registered on
9 June 1993.
On 18 October 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
15 January 1996, after an extension of the time-limit fixed for that
purpose. The applicants replied on 15 March 1996, also after an
extension of the time-limit.
On 5 March 1996 the Commission granted the applicants legal aid.
On 15 October 1996 the plenary Commission ordered the transfer
of the application to itself. On 24 October 1996 it decided to hold a
hearing on the admissibility and merits of the application.
In February 1997 the Commission was informed that the applicant
Tauno Poikela had died and that his widow, Mrs. Helmi Poikela, wished
to take over the application on his behalf.
The Commission's hearing was held on 3 March 1997, the parties
being represented as follows:The Government
Mr Holger Rotkirch Director-General for Legal Affairs,
Ministry for Foreign Affairs, Legal
Department, Agent
Mr Arto Kosonen Head of Unit, Ministry for Foreign
Affairs, Legal Department, Co-Agent
Mr Erkki Kourula Deputy Director-General for Legal Affairs,
Ministry for Foreign Affairs, Adviser
Mr Seppo Oikarinen Chief Inspector, Ministry of Trade and
Industry, Adviser
Mrs Eija Siitari-Vanne Legislative Counsellor, Ministry of
Justice, Adviser
The applicants
Ms. Pirjo-Riitta Oinaala Lawyer of the Finnish Association for
Nature Conservation ("Suomen luonnon-
suojeluliitto r.y. - Finlands naturskydds-
förbund r.f.")
Mr Juhani Kortteinen LL.M., Researcher, University of Helsinki,
Faculty of Law
THE LAW
1. The Commission first notes that the applicant Tauno Poikela has
died in the course of the Commission proceedings and that his widow,
the applicant Helmi Poikela, has indicated that she wishes to pursue
the application also on his behalf.
Close relatives of a deceased applicant are in principle entitled
to take his or her place in the proceedings before the Convention
organs (see, e.g., Eur. Court HR, Scherer v. Switzerland judgment of
25 March 1994, Series A no. 287, pp. 14-15, paras. 31-32 with further
references). In the circumstances of the present case the Commission
therefore accepts that Mrs. Poikela may pursue the application as
regards Mr Poikela.
2. The applicants complain that they were denied a fair hearing in
the proceedings resulting in the granting of the surveying permit to
Kemijoki Oy. Although their addresses were known, they were neither
heard in respect of the company's request nor properly notified of the
County Administrative Board's decision. The non-hearing of the
applicants allegedly also discriminated against them. They invoke
Articles 6 and 14 (Art. 6, 14) of the Convention.
Article 6 (Art. 6) of the Convention reads, in so far as
relevant, as follows:
"1. In the determination of his civil rights ..., everyone
is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law. ..."
Article 14 (Art. 14) reads as follows:
"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 Government essentially submit that the applicants have failed
to exhaust domestic remedies, since they have not lodged an ordinary
appeal against the County Administrative Board's decision of
11 November 1991. Their unequivocal request for an annulment of that
decision indicates that they accepted that the time-limit for lodging
an ordinary appeal had expired. Given that the Supreme Administrative
Court accepted that the applicants had standing to lodge the annulment
request, it would also have examined an ordinary appeal lodged by them.
Such an appeal might also have been given suspensive effect. The
applicants could still lodge an ordinary appeal, arguing that for want
of formal notification of the Board's decision it is not belated.
In the alternative, the Government consider the complaint to be
manifestly ill-founded. Nothing would have prevented the applicants
from consulting the courts' case file and lodging an ordinary appeal
with the Supreme Administrative Court so as to obtain an examination
of all arguments. Such an examination would have met the requirements
of Article 6 para. 1 (Art. 6-1) of the Convention. The applicants were
not discriminated against, since no property owner was individually
notified of the company's request to the County Administrative Board.
The applicants submit that, since none of them were formally
notified of the County Administrative Board's decision, they were
unable to lodge an ordinary appeal against it. The fact that the
Supreme Administrative Court examined their annulment request precisely
as such an extraordinary remedy shows that in its view there was no
longer any ordinary remedy available to them. At any rate, the
effectiveness of an ordinary appeal could be questioned, given that
part of the surveying had already been carried out at the time when
that remedy could have been tried.
(i) In the Commission's view the question principally arising in the
context of this complaint is whether the applicants have had access to
a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention for the purpose of challenging the County Administrative
Board's decision to issue Kemijoki Oy with a surveying permit.
Article 6 para. 1 (Art. 6-1) does not oblige the Contracting
States to submit disputes over civil rights to a procedure which at
each stage meets the requirements of that provision, provided it
eventually may be determined by a body which does (cf., e.g., Eur.
Court HR, Le Compte, Van Leuven and De Meyere v. Belgium judgment of
23 June 1984, Series A no. 43, pp. 22-23, para. 51). It is sufficient
that, in the determination of "civil rights and obligations", decisions
taken by administrative authorities which do not themselves satisfy the
requirements of that provision be subject to subsequent control by an
independent judicial body with sufficient jurisdiction and which itself
provides the safeguards required by Article 6 para. 1 (Art. 6-1) (see,
e.g., Eur. Court HR, Fischer v. Austria judgment of 26 April 1995,
Series A no. 312, p. 17, para. 28).
The Commission notes that, on 11 February 1993, the applicants
requested the Supreme Administrative Court to annul the County
Administrative Board's decision of 11 November 1991. It is thus clear
that they had become aware of that decision at the latest in February
1993, whatever the exact date and manner of the communication thereof.
In spite of this the applicants have never lodged an ordinary appeal
with the Supreme Administrative Court with reference to the alleged
failure by Kemijoki Oy formally to notify them of the Board's decision.
However, in the absence of such a notification an ordinary appeal would
not, according to the Supreme Administrative Court's practice, be
belated. There is no indication that the Supreme Administrative Court's
examination of an ordinary appeal would have failed to meet the
requirements of Article 6 para. 1 (Art. 6-1) of the Convention.
In these circumstances the Commission does not find that the
applicants have been denied access to a tribunal within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention for the purposes of
challenging the County Administrative Board's decision. Accordingly,
there is no indication of a violation of Article 6 (Art. 6) in this
particular case.
(ii) In the light of the foregoing the Commission does not find any
indication of a violation of Article 14 of the Convention in
conjunction with Article 6 (Art. 14+6).
It follows that the whole of this complaint must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicants also complain that the measures which Kemijoki Oy
has taken on their properties have violated their right to the peaceful
enjoyment of their possessions. The interference with their property
rights has been excessive and is in effect pursuing the company's aim
to construct the artificial lake and related facilities, although no
permit to this effect has been granted so far. The mining claims
granted to the company have restricted their rights for purposes not
allowed by the Convention. The conduct of the authorities seen as a
whole has been and continues to be aimed at completely depriving the
applicants of their right peacefully to enjoy their possessions. The
measures have also violated the applicants' right to respect for their
private life and homes. Finally, the applicants have not had any
effective remedy at their disposal against the above-mentioned
violations. The applicants invoke Article 1 of Protocol No. 1 (P1-1)
as well as Articles 8, 13, 17 and 18 (Art. 8, 13, 17, 18) of the
Convention.
Article 1 of Protocol No. 1 (P1-1) 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."
Article 8 (Art. 8) of the Convention reads, insofar as relevant,
as follows:
"1. Everyone has the right to respect for his private ...
life, his home ...
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."
Article 13 (Art. 13) reads as follows:
"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."
Article 17 (Art. 17) reads as follows:
"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."
Article 18 (Art. 18) reads as follows:
"The restrictions permitted under this Convention to the
said rights and freedoms shall not be applied for any
purpose other than those for which they have been
prescribed."
The Government submit that, since the State's ownership of
Kemijoki Oy is not coupled with any specific Government control, the
respondent State cannot be held directly responsible for Kemijoki Oy's
acts. At the very least the State cannot assume responsibility for
measures which have not been sanctioned by the authorities by virtue
of permits.
The Government furthermore submit that the applicants cannot
claim to be "victims" within the meaning of Article 25 para. 1
(Art. 25-1) of the Convention of a violation of Article 1 of Protocol
No. 1 (P1-1), considering that they have been fully compensated for the
damage and inconvenience caused by the surveying of their properties.
Kemijoki Oy has also been paying them annual compensation for its
mining claims. Whenever the applicants have refused to accept the
company's payments, the money has been deposited pursuant to domestic
law.
Alternatively, the Government argue that the applicants have not
exhausted domestic remedies, since they failed to seize an ordinary
court with a claim pursuant to section 86, subsection 3 of the 1977 Act
for further compensation for the surveying. They also failed to
complain to the County Prosecutor against the local prosecutor's
decision not to bring charges for the surveying preceding the permit
granted in 1991. The applicants themselves could also have brought
criminal proceedings against those responsible for that surveying.
Finally, the applicants could have sought to have the company's mining
claims forfeited.
As for the surveying in 1991, the Government furthermore submit
that the complaint has been lodged belatedly, given that this activity
ended more than six months before the complaint was introduced.
In the further alternative, the Government consider the complaint
to be manifestly ill-founded. The interference with the applicants'
property rights resulting from the surveying permit and the mining
claims granted to the company was clearly based on domestic law.
Although opinions may vary as to the profitability of the lake project,
the measures taken have pursued a general interest within the meaning
of the second paragraph of Article 1 of Protocol No. 1 (P1-1). The
surveying permission was in force for about a year only. No measures
have yet been taken on the applicants' properties on the basis of the
mining claims. With these claims the company is securing its right to
extract any valuable minerals which might be discovered in connection
with the possible construction of the hydro-electric power station. The
applicants' right to make use of their properties has not been hampered
and the value of the properties has not been affected. The applicants
have thus not been made to carry an individual and excessive burden and
a fair balance has been struck between the conflicting general and
individual interests. As for the procedural guarantee inherent in
Article 1 of Protocol No. 1 (P1-1), the Government consider that the
domestic proceedings have afforded the applicants a reasonable
opportunity to put their case to the relevant authorities.
Insofar as the applicants invoke Articles 8, 13, 17 and 18
(Art. 8, 13, 17, 18) of the Convention, the Government consider that
the complaint has remained unsubstantiated. In any case, no separate
issue arises under Article 8 or 13 (Art. 8, 13).
The applicants contend that the measures taken by Kemijoki Oy are
imputable to the respondent State, as the company is in effect managed
by the State. As regards their status as "victims" within the meaning
of Article 25 (Art. 25), they stress that the 1991 compensation was
accepted on condition that the company would no longer conduct surveys
of their properties. The compensation does not correspond to the normal
level and could not afford them sufficient redress. The final agreement
signed by Mr and Mrs Poikela concerns merely the damage resulting from
the surveying and does not affect their status as "victims" in any
other respect.
At the Commission's hearing the applicants accepted that the
company's activities on their properties have not exceeded the terms
of either the surveying permit or the mining claims. They also conceded
that the measures so far taken on their properties could scarcely be
said to have hampered their use of their properties for their
livelihood. They contended, however, that on the basis of the mining
claims Kemijoki Oy may take extensive measures on their properties at
any time in the future. The mining claims thus constitute a de jure
limitation of the applicants' property rights which renders their
ownership precarious.
As regards Article 18 (Art. 18) of the Convention, the applicants
consider that the company's failure to begin any prospecting for
minerals on their property shows that the mining claims are aimed
solely at enabling it to prepare the foundations of the artificial lake
before any permit to that effect has been granted under the Water Act.
For the reasons below, the Commission does not find it necessary
to determine either the extent of the respondent State's responsibility
for the acts complained of or the respective applicants' status as
"victims" within the meaning of Article 25 (Art. 25) of the Convention.
Nor is it necessary to determine, for the purposes of Article 26
(Art. 26), whether the domestic remedies have been exhausted as regards
all aspects of this complaint and whether all aspects have been raised
within the six months' period.
(i) 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 (see, e.g., Eur. Court HR, Fredin v. Sweden judgment of 18
February 1991, Series A no. 192, p. 14, para. 41).
Moreover, although Article 1 (Art. 1) contains no explicit
procedural requirements, the proceedings at issue must afford the
individual a reasonable opportunity of putting his or her case to the
responsible authorities for the purpose of effectively challenging the
measures interfering with his rights under Article 1 of Protocol No.
1 (P1-1). In ascertaining whether this condition has been satisfied a
comprehensive view must be taken of the applicable procedures (cf.,
e.g., Eur. Court HR, Agosi v. the United Kingdom judgment of 24 October
1986, Series A no. 108, p. 19, para. 55; Hentrich v. France judgment
of 22 September 1994, Series A no. 296-A, p. 21, para. 49).
Adopting a global point of view, the Commission considers that
Kemijoki Oy's surveying of the applicants' properties as well as its
mining claims relating to those properties have amounted to an
interference with the applicants' right to the peaceful enjoyment of
their possessions. For the purposes of the first sentence of the first
paragraph of Article 1 (Art. 1) the Commission must determine whether
a fair balance has been struck between the demands of the general
interest of the community and the requirements of the protection of the
individuals' fundamental rights (see, e.g., Eur. Court HR, Sporrong and
Lönnroth v. Sweden judgment of 23 September 1982, p. 26, para. 69).
The Commission accepts that the surveying permit pursued a
general interest, as it allowed Kemijoki Oy to survey the applicants'
properties with a view possibly to requesting permission to construct
a lake for hydro-electric production purposes. The Commission has just
found with regard to Article 6 (Art. 6) of the Convention that the
applicants had at their disposal sufficient procedural safeguards for
the purposes of challenging the decision to permit the surveying. The
applicants have furthermore accepted that the company's activities on
their properties have not exceeded the terms of the surveying permit.
Moreover, there is no indication that the compensation paid by the
company for the surveying preceding the permit was insufficient. The
applicants were also compensated for the subsequent surveying and it
was open to them to seek further compensation through civil
proceedings.
The Commission furthermore accepts that the mining claims granted
to Kemijoki Oy also pursue a general interest, there being no
indication that they are aimed at circumventing the procedure under the
Water Act for examining the company's request for permission to
construct the lake and the power station. Rather the claims must be
regarded as subsidiary to that request, as they secure the company's
right to extract minerals in the course of the possible construction
of the power station. The applicants were able to appeal to the Supreme
Administrative Court against the decision to grant the claims. They
have furthermore accepted that the company's activities on their
properties have not gone beyond the terms of those claims and that they
have not significantly hampered the applicants' use of their
properties. In addition, the Commission notes that the applicants are
free to request forfeiture of the claims for any failure by the company
to meet its legally prescribed financial obligations towards them.
Finally, it has not been alleged that in the current proceedings
before the Water Court the applicants have been prevented from
objecting to Kemijoki Oy's request for permission to construct the
artificial lake. Although noting that these proceedings have already
lasted some five years at one court level, the Commission does not find
that in the overall circumstances the applicants' ownership of their
properties has been rendered precarious to such an extent as to raise
a serious issue under Article 1 of Protocol No. 1 (P1-1).
Summing up, the Commission finds that so far the applicants have
not been made to carry an individual and excessive burden and that a
fair balance has been struck between the conflicting interests at
stake, regard also being had to the procedural safeguards afforded to
the applicants. Accordingly, there is no appearance of a violation of
Article 1 of Protocol No. 1 (P1-1).
(ii) The Commission finds no indication that the measures taken by
Kemijoki Oy on the applicants' properties have violated their right to
respect for their private life and homes within the meaning of Article
8 para. 1 (Art. 8-1) of the Convention. The same goes for the mere
possibility that their properties might in the future be submerged in
the lake.
(iii) The Commission considers that no further issues arise with regard
to Articles 13, 17 and 18 (Art. 13, 17, 18) of the Convention.
It follows that the whole of this complaint must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
ANNEX
The applicants are:
1. Mr Arto Keto-Tokoi, a farmer born in 1963;
2. Mrs Helmi Poikela, a pensioner born in 1923;
3. Mr Tauno Poikela, a pensioner born in 1927 and later
deceased;
4. Ms Eevi Tannervo, a pensioner born in 1917; and
5. Ms Rauha Vesanen, a pensioner born in 1922.
All applicants are (or were) Finnish citizens and reside (or
resided) at Pelkosenniemi.
Full & Egal Universal Law Academy