AS TO THE ADMISSIBILITY OF
Application No. 23048/93
by Uula Jooseppi PORSANGER and Others
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 17 January 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 1 December 1993
by Uula Jooseppi PORSANGER and Others against Finland and registered
on 6 December 1993 under file No. 23048/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are 46 Finnish citizens residing in various parts
of Finland and in Norway and one of them is a limited liability company
incorporated in Finland. The applicants are listed in Appendix No. 1
in alphabetical order. All the applicants own real property in the
municipality of Utsjoki, Finland, and nineteen of them also reside in
Utsjoki. Before the Commission they are represented by Mr. Veikko O.
Hyvönen, a professor at Helsinki University.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants are owners of real property in the municipality
of Utsjoki, which lies in Lapland. The properties include water areas
made up of sections of the Tenojoki river and of its tributaries. The
Tenojoki is a border river between Finland and Norway.
From 1963 to 1978 district boundaries in the relevant water areas
of the Tenojoki river were set, in the course of which it was
established that the majority of the relevant water areas in Finland
belonged to various individuals, including the applicants, instead of
the Finnish State. The State owns approximately 35 per cent of the
water areas. The district boundaries in water were finally settled by
the Supreme Court's (korkein oikeus) judgment of 27 June 1984.
Since 1873, Finland and Norway have concluded treaties on fishing
in the fishing area (in Finnish "kalastuspiiri", in Norwegian "fiske-
område") of the Tenojoki river. The treaties were made in 1873, 1920,
1938, 1953, 1960, 1972, 1979, 1982 and 1989. The treaties were
accompanied by Fishing Orders (kalastussääntö).
By the time the Convention entered into force in respect of
Finland, on 1O May 1990, the applicants' right to enjoy their
possessions in respect of fishing in their waters were regulated by the
1989 Treaty on the Mutual Fishing Rules regarding the Fishing Area of
the Tenojoki river as well as the corresponding Fishing Order. Both
these instruments entered into force on 1 January 1990 and still apply.
They contain, in so far as relevant for the instant case, the same
provisions as had already been introduced by the 1979 Treaty and
Fishing Order.
By virtue of the 1989 Treaty a fishing licence is obligatory for
everyone wishing to fish in the fishing area of the Tenojoki river. The
1989 Fishing Order prescribes that persons who have fishing rights in
their capacity as owners of the water area and who live permanently in
the river valleys are in a privileged position compared with others
with respect to the price of the fishing licence as well as to the
methods they are allowed to use for fishing. Persons who have inherited
their fishing rights from locals but who do not live in the river
valleys are in some respects on the same footing as the local
residents. Other persons are allowed to fish only with rod and line and
they pay a higher price than local residents for their fishing licence.
The Fishing Order further prescribes that only boats owned by local
residents may be used for fishing.
Furthermore, according to the 1989 Treaty, the income from the
fishing licences shall be divided between the contracting States and
the income shall be used primarily to fund the supervision of fishing
and for methods meant to improve the fish stocks in the Tenojoki river.
Finally, the 1989 Fishing Order granted the County Administrative
Board of Lapland, Finland and the Fylkesman of Finnmark, Norway, the
power to issue further regulations on fishing in certain circumstances.
On 8 March 1991 the Act on compensation for the losses caused by
the 1989 Treaty and by the corresponding Fishing Order with regard to
the Tenojoki river, hereinafter the "1991 Compensation Act", was
issued. By virtue of section 1 of this Act applicants shall be paid
full compensation if a provision of the Treaties of 1972, 1979, 1982
or 1989 or a provision of a Fishing Order based on these Treaties
prevents them from using their fishing rights or causes fundamental
prejudice to the exercise of their fishing rights. However,
compensation for the restrictions in respect of the catching device
shall not be paid in so far as the restriction concerns the design,
time of use or manner of use of the catching device, provided that the
owner of the fishing rights can use or has been able to use his
property in a normal, reasonable and sensible way in spite of the
restriction.
In the compensation proceedings, the Act on Compulsory
Acquisition of Real Property and Particular Rights (laki kiinteän
omaisuuden ja erityisten oikeuksien lunastuksesta) shall be applied.
The compensation decision may be appealed against to the Land Court
(maaoikeus) and, in the final resort, to the Supreme Court.
Compensation proceedings under the 1991 Compensation Act have not yet
begun.
As regards the applicants' right to fish with rod and line in
state-owned waters following the above-mentioned Supreme Court judgment
of 27 June 1984, their claims to such a special fishing right, based
on alleged undisturbed possession since time immemorial, was rejected
by the competent authorities on 13 November 1985.
On 4 April 1989 the Land Court of Northern Finland rejected the
appeals against the above-mentioned authorities' decision in so far as
the appeals concerned the special fishing rights in question.
Fifteen of the applicants (see. Appendix No. 2) appealed against
this judgment to the Supreme Court.
On 28 June 1993 the Supreme Court dismissed the appeal in respect
of the applicants by stating that the areas to which the claims related
were not delimited and specified in such a manner as would allow the
relevant special fishing rights to be attributed to a specific real
property.
COMPLAINTS
1. Under Article 1 of Protocol No. 1 to the Convention the
applicants complain that the requirement of obtaining a fishing licence
in respect of their own property violates their right to peaceful
enjoyment of possessions since they cannot freely use their fishing
rights, which are based on ownership of property. They also complain
that the State sells their exclusive fishing rights to tourists without
returning all the income to them as the owners of the property.
The applicants further complain that the price of the fishing
licence varies according to the criterion of residence and not
according to the criterion of ownership of the property. Even with a
fishing licence, those applicants who live outside the river valleys
have only a fishing right similar to that of any amateur fisherman. The
applicants also maintain that the requirement concerning the use of
boats owned by local residents and the distinction made between persons
who have inherited the property and persons who have obtained the
property by other means violates the right to peaceful enjoyment of
possessions and is discriminatory within the meaning of Article 14 of
the Convention.
2. As regards Article 1 of Protocol No. 1 to the Convention, the
applicants finally complain, in respect of their own property, that the
right of the County Administrative Board and of the Fylkesman to
regulate fishing violate their right to the peaceful enjoyment of their
possessions.
3. Under Article 6 of the Convention, the applicants complain that
since the alleged infringements of their property rights have been
caused by legislation, they cannot obtain a fair hearing since the
courts do not review questions concerning legislation as such.
4. The applicants also complain that their right to peaceful
enjoyment of possessions concerning the special fishing rights in
state-owned waters has been violated.
They maintain that they have, since time immemorial, had the
right to fish with rod and line in water areas which were, by the
Supreme Court's judgment of 27 June 1984, found to belong to the State.
They submit that the Supreme Court's judgment of 28 June 1993
concerning special fishing rights has therefore deprived them of about
35 per cent of the area in which they previously had the right to fish
using this method.
THE LAW
1. The applicants have raised a number of issues under Article 1 of
Protocol No. 1 (P1-1) to the Convention in respect of alleged
infringements of their right to peaceful enjoyment of their possessions
following the implementation of the 1989 Treaty and the corresponding
Fishing Order. They also invoke Article 14 (Art. 14) of the Convention.
Article 1 of Protocol No. 1 (P1-1) reads:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject
to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it
deems necessary to control the use of property in
accordance with the general interest or to secure the
payment of taxes or other contributions or penalties."
The Commission first notes that the 1989 Treaty and the Fishing
Order based thereupon entered into force on 1 January 1990. In so far
as relevant for the instant case the 1989 Treaty and Fishing Order
contain similar provisions to those of the 1979 Treaty and Fishing
Order. The Commission recalls that the Convention entered into force
with regard to Finland only on 10 May 1990. Therefore the question of
whether the application is outside the competence ratione temporis of
the Commission arises. The Commission finds, however, that this
question can be left open since it considers that this part of the
application is in any event inadmissible for the following reasons.
Article 26 (Art. 26) of the Convention provides that the
Commission may deal with a matter only after all domestic remedies have
been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on
which the final decision was taken. It is established case-law that
"the final decision" refers only to domestic remedies which can be
considered to be "effective and sufficient" for the purpose of
rectifying the subject-matter of the complaint (see, for example, No.
11763/85, Dec. 9.3.89, D.R. 60 p. 128).
The issue of non-exhaustion involves the question of whether the
applicants could secure compensation under the 1991 Compensation Act.
In this respect the Commission notes that the 1991 Compensation Act
provides for the possibility of receiving full compensation for the
losses caused by the relevant Treaties and Fishing Orders based
thereupon. The opportunity to receive compensation is not restricted
to loss of income only but also covers losses generally. The claim for
compensation shall be dealt with in a similar way to compensation
claims in relation to compulsory acquisition and may be examined,in the
final resort, in the Supreme Court. It has not been substantiated that
the applicants could not secure compensation under the 1991
Compensation Act. The Commission finds that a compensation claim based
on the 1991 Compensation Act is an "effective remedy" in the
circumstances.
Such compensation proceedings have not been instituted and
therefore the condition concerning exhaustion of domestic remedies has
not been fulfilled. It follows that this part of the application must
be rejected, under Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicants further complain that the County Administrative
Board's and the Fylkesman's right to give regulations on fishing
further violates their rights under Article 1 of Protocol No. 1
(P1-1).
Even assuming that such regulations could affect the applicants'
property rights and even assuming that the Finnish Government could be
held responsible for regulations issued by Norwegian authorities under
a treaty with Finland, the Commission notes that it does not emerge
from the documents that the relevant authorities have issued any
further regulations which might interfere with the applicants'
possessions.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicants also complain that the interference with their
private property caused by the 1989 Treaty and the 1989 Fishing Order
cannot be brought before a court since the courts do not examine cases
that concern legislation.
The Commission recalls that Article 6 para. 1 (Art. 6-1) does not
guarantee access to a court in order to challenge a law (cf. Eur. Court
H.R., James and Others judgment of 21 February 1986, Series A no. 98,
p. 46, para. 81). However, in respect of the compensation it follows
from the above that, in accordance with the 1991 Compensation Act, this
issue may be brought before a court.
It follows that the application is, in this respect, manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicants finally complain, under Article 1 of Protocol
No. 1 (P1-1) to the Convention, that their right to fish in state-owned
waters has been violated.
The Commission notes that only the applicants listed in Appendix
No. 2 have pursued the proceedings concerning the dispute over the
special fishing rights to the court of last resort, i.e. the Supreme
Court. Therefore the Commission finds that the other applicants have
in this respect failed to exhaust domestic remedies. Their application
must accordingly, in respect of this complaint, be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
As regards the other applicants the Commission recalls that a
person complaining of an interference with his right to possessions
must show that such a right existed (No. 12164/86, Dec. 12.10.88, D.R.
58 p. 63). The Commission finds, however, that the applicants have not
shown that they possess the special fishing rights referred to.
Accordingly, the Commission concludes that there has been no
interference with any of these applicants' possessions in this respect.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
APPENDIX 1
Name Place of residence
AIKIO, Aslak Ola Utsjoki
AIKIO, Josef Aslak Edvard Utsjoki
AIKIO, Klemet Jouni Utsjoki
AIKIO, Laila Kristine Utsjoki
AIKIO, Maarit Elisabet Utsjoki
AIKIO, Matti Uula Utsjoki
GUTTORM, Aimo Utsjoki
GUTTORM, Uula Aslak Utsjoki
HAKAMÄKI, Maire Sinikka Helsinki
HALLAVO, Ilkka Sakari Helsinki
HALLAVO, Olavi Eemil Hämeenlinna
HELANDER, Arvo Olavi Inari
HOLMBERG, Nils Hjalmar Fredrik Utsjoki
HÄMEENHEIMO, Pentti Juhani Helsinki
ISKU-YHTYMÄ OY, Ltd. Lahti
KATAKEETTA, Antti Utsjoki
KÄRKKÄINEN, Kaarlo Alvar Utsjoki
LAITI, Samuel A. Utsjoki
LUKKARI, Aslak Uula Utsjoki
LUKKARI, Birit Kaarina Vadsö, Norway
LUKKARI, Inga Liisa Inari
LUKKARI, Pekka Andreas Utsjoki
LUOMA, Terttu Maria Rovaniemi
LÄNSMAN, Antti Utsjoki
NENONEN, Eino Uljas Pieksämäki
NENONEN, Markku Juhani Pieksämäki
NENONEN, Saimi Marjatta Pieksämäki
NENONEN, Sakari Antero Pieksämäki
NENONEN, Tuula Anneli Pieksämäki
NILLUKKA, Elli Rauna Utsjoki
NUORGAM-POUTASUO, Helvi Utsjoki
OLLILA, Maarit Anna Helena Inari
PALTTO, Oswald Utsjoki
PEKKALA, Ellen Raudna Inari
PEKKALA, Olli Sauli Samuli Inari
PIESKI, Hans Jouni Helsinki
PORSANGER, Samuel Raisio
PORSANGER, Uula Jooseppi Utsjoki
SALMELA, Jaakko Pekka Uolevi Hämeenlinna
SALMELA, Kari Esa Juhani Hämeenlinna
SAXHOLM, Pentti Ilmari Hämeenlinna
SEPPÄLÄINEN, Vilho Olavi Espoo
TAIVALAHO, Juhani Kalervo Rovaniemi
VAHVELAINEN, Mauri Kalevi Hyvinkää
VAHVELAINEN, Ritva Liisa Irmeli Hyvinkää
YLÄTALO, Jorma Olavi Hämeenlinna
APPENDIX 2
Name Place of residence
AIKIO, Aslak Ola Utsjoki
AIKIO, Josef Aslak Edvard Utsjoki
AIKIO, Klemet Jouni Utsjoki
AIKIO, Laila Kristine Utsjoki
AIKIO, Maarit Elisabet Utsjoki
AIKIO, Matti Uula Utsjoki
GUTTORM, Aimo Utsjoki
HOLMBERG, Nils Hjalmar Fredrik Utsjoki
KATEKEETTA, Antti Utsjoki
LAITI, Samuel A. Utsjoki
LUKKARI, Aslak Uula Utsjoki
LUKKARI, Pekka Andreas Utsjoki
PALTTO, Oswald Utsjoki
PORSANGER, Uula Jooseppi Utsjoki
SEPPÄLÄINEN, Vilho Olavi Espoo
Full & Egal Universal Law Academy