AS TO THE ADMISSIBILITY OF
Application No. 12740/87
by Bror MUOTKA and Erik PERÄ
against Sweden
The European Commission of Human Rights sitting in private
on 7 October 1988, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C. L. ROZAKIS
Mrs. J. LIDDY
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
25 October 1986 by Bror MUOTKA and Erik PERÄ against Sweden and
registered on 16 February 1987 under file No. 12740/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they appear from the applicants'
submissions, may be summarised as follows.
The applicants are Swedish citizens born in 1913 and 1920
respectively. They are resident at Övertorneå.
Both applicants own property adjacent to Haapakylänpudas on
the Torne river. The power to permit constructions in or adjacent to
the Torne river is entrusted to an inter-state body, the Finnish-
Swedish Frontier River Commission (finsk-svenska gränsälvskommissionen),
created by an agreement between Finland and Sweden which was concluded
in September 1971.
On 12 March 1984 the Frontier River Commission granted
permission to the Haapakylänsaari road association (vägförening) to
construct, on certain conditions, a road with culverts over
Haapakylänpudas. According to the decision, questions of compensation
as a result of the taking of land were to be resolved by agreement
between the parties concerned. Failing agreement, the issue was to be
referred to the Frontier River Commission. Questions of compensation
as a result of the construction at issue may be raised until
30 September 1995.
The applicants complained to the County Administrative Board
(länsstyrelsen) of the County of Norrbotten requesting that the Board
stop the activities of the Haapakylänsaari road association and order
that the association restore the river.
On 10 April 1984 the County Administrative Board refused to
examine the merits of the applicants' request on the ground that the
decision of the Frontier River Commission was not subject to appeal.
The applicants appealed to the Government. On 7 June 1984, the
Government (the Ministry of Agriculture) rejected the appeal stating
that, under Chapter 8 Section 15 of the Frontier River Agreement
(gränsälvsöverenskommelsen), decisions by the Frontier River
Commission become effective immediately except for issues concerning
compensation for land taken or for losses, damages or interferences or
for legal costs, and the applicants' appeal did not concern such
compensation.
The applicants then reported to the public prosecutor that the
Haapakylänsaari road association had violated the Water Act
(vattenlagen) in connection with the construction of the road. After
examination and appeals from the applicants, the Regional Prosecutor's
Office (regionåklagarmyndigheten) of Luleå decided, on 10 September 1986,
not to institute any criminal proceedings.
The applicants complained to the Chancellor of Justice
(justitiekanslern) who in a decision of 8 December 1986 found that the
Frontier River Commission was an inter-state organ not subject to the
supervision of the Chancellor of Justice, but that the Swedish members
of the said Commission were subject to his supervision. The Chancellor
of Justice then examined the applicants' separate complaints. As
regards the complaint that the Frontier River Commission had not
submitted the issue of the construction of the road to the
Governments of Sweden and Finland, the Chancellor of Justice found
no reason to criticise the Frontier River Commission's assessment.
Regarding the complaints about the Commission's determination of the
applicants' reports on the construction, the Chancellor of Justice
noted that it was not the task of the Commission, but of the competent
state authorities, to interfere and take steps if measures were taken
in conflict with the relevant provisions.
COMPLAINTS
The applicants complain that the provisions of the Frontier
River Agreement and the exercise of power by the Frontier River
Commission are incompatible with the Convention. In particular, the
Frontier River Commission's decisions are not subject to appeal to a
body satisfying the conditions of Article 6 of the Convention.
The applicants also allege a violation of Article 13 of the
Convention, in that they do not have any effective remedy for alleged
violations of their Convention rights.
Finally, the applicants maintain that the Frontier River
Agreement mainly affects the population in the Torne valley, which is
a Finnish speaking minority, and that, consequently, there has been a
breach of Article 14 of the Convention.
THE LAW
1. In accordance with its case-law the Commission may only
examine an application insofar as the applicants themselves can be
said to have been the victims of the facts they complain about. The
Commission cannot examine general complaints on behalf of the
population of the Torne Valley (cf. No. 9297/81, Dec. 1.3.82, D.R. 28
p. 204).
2. The applicants' personal complaints are directed against the
decisions taken by, and the activities or inactivity of, the
Finnish-Swedish Frontier River Commission. The said Commission is an
inter-state body created by an Agreement between Finland and Sweden.
The decisions of the Frontier River Commission are, insofar as
relevant in the present case, not subject to appeal to any Swedish
court or other authority.
The Commission considers that it can leave open the question
as to whether or to what extent the Swedish Government can be held
responsible under the Convention for decisions or measures taken by
the Frontier River Commission. Even assuming that the Government could
be held responsible the application is inadmissible for the following
reasons.
Article 26 (Art. 26) of the Convention provides that the
Commission "may only deal with the matter after all domestic remedies
have been exhausted, ..., and within a period of six months from the
date on which the final decision was taken."
The Commission considers that the applicants' complaints to
the public prosecutor, the Regional Prosecutor's Office and the
Chancellor of Justice cannot in the circumstances of the present case
be regarded as such "remedies" which should be taken into account when
calculating the six months period laid down in Article 26 (cf.
No. 9959/82 and 10357/83, Dec. 14.3.84, D.R. 37, p. 87).
Consequently, even if it were accepted that the applicants'
appeal to the Government was a "remedy" for the purposes of Article 26
(Art. 26), the application has nevertheless been lodged out of time
since the Government's decision was dated 7 June 1984 and the
application was introduced on 25 October 1986.
It follows that the application must be rejected pursuant to
Article 27 para. 3 (Art. 27-3) of the Convention for failure to comply
with the six months rule.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRUGER) (C. A. NØRGAARD)