FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 54508/00
by SAARENPÄÄN LOMA KY
against Finland
The European Court of Human Rights (Fourth Section), sitting on 9 May 2006 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrM. Pellonpää,
MrK. Traja,
MrL. Garlicki,
MsL. Mijović, judges,
MrJ. Sikuta, substitute judge,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 3 January 2000,
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
The applicant, Saarenpään Loma Ky, is a limited partnership company registered in Finland, owned by Mr Kari Saarenpää and Mrs Eevaliisa Saarenpää, who live in Valkeala. The applicant company is represented before the Court by Mr Risto Kurki-Suonio, a lawyer practising in Helsinki. The respondent Government are represented by Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.
The circumstances of the case, as submitted by the parties, may be summarised as follows.
The applicant company’s main field of activity consists of building and hiring holiday cottages as well as providing accommodation and travel services. Four of its cottages are located in the property Penttimäki 1:464 in the Repovesi wilderness area in the municipality of Valkeala. The property consists of several pieces of land bordering a lake. Part of the property was included in a shore plan (rantakaava, strandplan) adopted in January 1986 upon Mr Kari Saarenpää’s application.
On 22 November 1993 the applicant company requested the Kyme County Administrative Board (lääninhallitus, länsstyrelse) to grant it an exemption permit (poikkeuslupa, undantagstillstånd) to erect four cabins and one sauna building on a piece of land called Mustalamminvuori, situated within the Penttimäki property. The intended cabins were to be located in an area which was not covered by a shore plan. According to the information provided by the Government, the piece of land where the applicant intended to erect the cabins was assigned to a landscape conservation area in a master plan (yleiskaava, generalplan) adopted in 1975.
The County Administrative Board refused the application in December 1994, noting, inter alia, that part of the Penttimäki property was located within an area included in the nationwide shore protection programme (rantojensuojeluohjelma, strandskyddsprogrammet), adopted on December 1990, and that the National Forestry Board had opposed the application. The intended construction would hamper significantly the implementation of a shore plan and the overall settlement of the area. It further found that all building rights attached to the piece of land in question had been established in a shore plan and that there remained no such building rights for the property as could have been granted by means of an exemption permit. The Board relied on section 123b, subsection 1, and on section 132, subsection 1, of the Building Act (rakennuslaki, byggnadslagen, Act no. 370/1958).
Among the documents which the applicant company’s representative obtained from the County Administrative Board’s registry together with the aforementioned decision was a handwritten fax message dated 17 November 1994 and signed by senior forestry official P.I. in the Ministry of the Environment (ympäristöministeriö, miljöministeriet, Ministry). The message was addressed “for information” to one of the Board’s senior inspectors, T.T., and read in extenso as follows:
“I do not know wheather you [in plural] have already decided on the exemption permissions in Repovesi. According to indications which I have received here, the negative decision should refer to the planning needs, in particular as part of the area is already governed by a [shore] plan.”
The bottom of the page contained the following text, apparently written by someone else:
“Conversation: [P.I.] and officials of [the planning department] of the Ministry of the Environment.”
On 7 December 1995 the Ministry dismissed the applicant company’s appeal, relying on essentially the same grounds as the County Administrative Board.
Following the applicant’s further appeal the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) conducted an inspection in situ as well as an oral hearing. On 24 March 1997 it quashed the lower bodies’ decisions and remitted the matter to the Environmental Centre of the South-East of Finland (Kaakkois-Suomen ympäristökeskus, Sydöstra Finlands miljöcentral) which had succeeded the County Administrative Board as the competent first-instance body. The Supreme Administrative Court noted, inter alia, the small-scale nature of the project and concluded that the intended construction would not hamper significantly the implementation of planning regulations or the overall settlement of the area. The legal conditions for granting the exemption permit had therefore existed and the Ministry’s refusal had violated the applicant company’s rights.
On 20 October 1997 the Environmental Centre nevertheless refused the applicant company the exemption permit. It considered that it was not expedient to grant an exemption permit as it was planned that a national park or a nature conservation area be established in that area. It opined that any building in the area should be decided on in conjunction with the conservation plans. The decision was based on section 123b, subsection 1, section 132, subsection 1, and section 137d, subsection 2 of the Building Act.
On the applicant company’s appeal the Ministry granted the exemption permit on 16 November 1998. It referred to the Supreme Administrative Court’s decision of 24 March 1997 and observed that the application could not be rejected on the sole ground that no final decision had been made on the plans to establish a nature conservation area. Subsequently, on 24 June 1999 the Valkeala municipality granted the requisite building permit. The last-mentioned decision acquired legal force on 13 July 1999.
On 9 July 1999, however, the Environmental Centre, of its own motion and without hearing the applicant company in advance, prohibited any activity which could jeopardise the natural state or landscape of the area. The activity prohibition (toimenpidekielto, åtgärdsförbud) was enforceable immediately and was to be in force for two years. The Environmental Centre noted the building permits which had just been granted to the applicant company but recalled the shore protection programme which the Council of State (valtioneuvosto, statsrådet) had adopted in 1990 in the form of a decision of principle. According to that decision, the authorities should attempt to preserve the areas designated in the programme - such as Repovesi - in their natural and undeveloped state. The undeveloped Repovesi area was exceptionally large for the south-east of Finland and its nature conservation values had been recognised in various national nature inventories. The Environmental Centre relied on sections 55 and 61 of the Nature Conservation Act (luonnonsuojelulaki, naturvårdslagen, Act no. 1096/1996). The decision was signed by Deputy Director E.K. and Senior Inspector T.T. The applicant could have appealed to the Administrative Court of Kymi, it however decided not to appeal.
Before the activity prohibition expired in July 2001 the Environmental Centre initiated expropriation proceedings with a view to acquire the Repovesi area. The area, consisting of 82.5 hectares belonging to the applicant, was expropriated by the state under a decision made by the Ministry on 24 July 2001. On 4 June 2002 the Supreme Administrative Court rejected the applicant’s appeal. Subsequently, the compensation proceedings began. It appears that the applicant did not appeal against the decision of the Land Court (maaoikeus, jorddomstolen) of Mikkeli, issued on 22 August 2003 in which the applicant was paid compensation for the expropriated land. On 22 September 2003 the compensation awarded was paid to the applicant.
B.Relevant domestic law and practiceThe exemption permit and the expropriation
Section 123 b, subsection 1 of the Building Act provides that when a plan is considered necessary, the authority granting a building permit shall ensure that no new building is carried out in the shore area before a shore plan has been adopted. Under section 132, subsection 1 a regional environmental centre may grant an exemption if this is not viewed as causing substantial prejudice to the implementation of planning or other regulation of housing development.
Under the established domestic case-law of the Supreme Administrative Court, the requirement of equal treatment of landowners shall be a particular concern in the legal assessment of the possibility of granting an exemption permit for building in shore areas. This requirement has in practice been taken into account by examining the number of building sites already assigned for the piece of land for which the permit is sought, in the light of the building sites located on pieces of land owned by others, at the time of entry into force of the Building Act or the shore plan. According to the Government, if it is found that the maximum number of building sites has already been used for the property in question, the application for an exemption permit is usually dismissed on the ground that granting such a permit would violate the principle of equal treatment of landowners.
Section 55 of the 1996 Nature Conservation Act provides that the regional environmental centre is empowered to prohibit for not more than two years such use of land referred to in section 10, subsection 2, as might jeopardise the conservation objectives of the site.
According to section 77 of the said Act, the provisions concerning nature conservation programmes shall also apply to an area covered by a shore conservation plan.
Under section 52, subsection 1 of the said Act the Ministry may expropriate an area covered by a nature conservation programme on which a final decision exists without the Government’s approval. The compensation to be paid for expropriated properties shall be determined in accordance with the provisions of the Act on the Redemption of Immovable Property and Special Rights (laki kiinteän omaisuuden ja erityisten oikeuksien lunastuksesta, lag om inlösen av fast egendom och särskilda rättigheter, Act no. 603/197, the Expropriation Act).Procedure
The Administrative Appeals Act (laki muutoksenhausta hallintoasioissa, lag om ändringssökande i förvaltningsärenden, Act no. 154/1950) as in force until December 1996, when the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslag, Act no. 586/1996) entered into force, provided that a party who was dissatisfied with a decision of the Government or the Ministry, alleging that the decision violated his or her rights, had a right of appeal, subject to the provisions of another applicable Act of Parliament or decree.
In the established domestic case-law section 4, subsection 1 of the Administrative Appeals Act was interpreted as meaning that an appeal could be made against a decision of the Government or the Ministry of the Environment if the decision was not in conformity with the law (laillisuusperuste, laglighetsgrund).
Under section 5 of the Supreme Administrative Court Act (laki korkeimmasta hallinto-oikeudesta, lag om högsta förvaltningsdomstolen, Act No. 22.7.1918/74B), the Supreme Administrative Court shall leave the case to the Government’s (Council of State) discretion where the appeal is found to concern a question the resolution of which depends on the assessment of whether a certain decision or measure is expedient. To the extent that the same case involves a question of lawfulness of the decision or measure, the Supreme Administrative Court shall provide an opinion on it.
The appeal procedure in the present case was based on the provisions of section 139 of the Building Act (as amended by an Act no. 245/1989). Under section 139, subsection 1 an appeal against a decision of a County Administrative Board concerning a request for an exemption permit was to be made, in the first instance, to the Ministry of the Environment. Under subsection 2, a further appeal against the Ministry’s decision was to be made to the Supreme Administrative Court.Domestic practice
An exemption permit referred to in the Building Act could be refused even if the Supreme Administrative Court had found that there were legal grounds for granting such a permit, where the granting of the permit was not found expedient for other reasons. However, as the appeal concerned the expediency of the decision, it was transferred to the Government (Supreme Administrative Court’s precedent no. KHO 1976 A II 49).
In its precedent KHO 1983 A II 88 the Supreme Administrative Court found that there were legal grounds for granting an exemption permit, as referred to in the Building Act, and referred the case back to the authority issuing the exemption permit for reconsideration. The said authority refused the request again, as the granting of the permit was not found possible for reasons of expediency. During the examination of the case by the Supreme Administrative Court, the court received new evidence on the water conditions at the building site. In the light of the new evidence, the Supreme Administrative Court considered that it was not bound by its earlier decision, and found that there were no longer were legal grounds for granting the exemption permit, as referred to in the Building Act.
In a case where an administrative authority had refused an application for an exemption permit on legal grounds, but the application was referred by the Supreme Administrative Court back to the administrative authority for reconsideration, it was not possible for the administrative authority to invoke the previous grounds as a basis for refusing the permit for reasons of expediency. For example, in the case of KHO 1984 A II 69, the administrative authority deciding on the granting of an exemption permit had refused the permit sought for a residential area for the reason that it found no legal grounds for it to exist. After the Supreme Administrative Court repealed the decision and referred the case back to the administrative authority for reconsideration, the authority refused the application again by invoking the same grounds as earlier but this time for reasons of expediency. In its subsequent decision, the Supreme Administrative Court found that the authority was not able to present any such facts as would justify it in refusing the request for reasons of expediency, taking into account its earlier decision.
The Supreme Administrative Court has also considered it necessary to examine the lawfulness of a decision where the appeal concerns an alleged improper assessment of the appropriateness of a permit, e.g. where the authority has failed to examine the existence of legal grounds for the granting of permit before assessing whether it is otherwise appropriate to grant it, where the assessment had not been based on the facts of the case (see KHO 1978 A II 61), or where the authority had failed to pay attention to the principle of equal treatment of landowners (see KHO 1979 A I 3).
COMPLAINTS
1. The applicant company complained under Article 1 of Protocol No. 1 to the Convention that since 1993 it had been effectively deprived of its property without any compensation, in that it was not entitled to any compensation for its inability to use its property as a result of the overall delay in the proceedings concerning its right to build, which lasted from 22 November 1993 until 4 June 2002.
2. The applicant further complained under Article 6 § 1 of the Convention that the proceedings were excessively lengthy due to the failure of the Environmental Centre to respect the Supreme Administrative Court’s decision of 1997. In its observations in reply to those of the Government of 26 February 2003, the applicant also invoked Article 13 as to the failure to respect.
3. Moreover, the faxed “instruction” from the Ministry of the Environment to the County Administrative Board deprived the applicant company of fair proceedings and rendered the Ministry unable to review, in an independent and impartial manner, the lawfulness of the Board’s decision of December 1994. Whenever reviewing the lawfulness of a lower body’s decision under the Building Act the Ministry’s officials were it was agreed obliged to act with judicial responsibility.
THE LAW
A.Alleged violation of Article 1 of Protocol No. 1
The applicant complained under Article 1 of Protocol No. 1 to the Convention that from 1993 until June 2002 it has been effectively deprived of its property without compensation. The provision in question 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.”
1. The parties’ submissions
The Government objected that the applicant failed to appeal against the Land Court’s decision in the compensation proceedings as well as the decision of the Environmental Centre concerning the activity prohibition and therefore failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.
As to the exemption permit the Government submitted that the application did not fall within the ambit of Article 1 of Protocol No. 1 of the Convention. In their view, as there was no right to have an exemption building permit, it was questionable whether there could be any interference with the use of the applicant’s property in this respect. In any event, the applicant was finally granted a permit. The Government further stressed that under Finnish law, compensation was not possible on the sole ground of refusal of an application for an exemption permit to build. They further emphasised that the applicant had access to effective remedies throughout the proceedings. Moreover, the pending proceedings did not in any way prevent the applicant company from using the land for other purposes.
Finally, as to the expropriation, the Government submitted that the applicant did not contest the expropriation as such but only appealed with reference to the size of the area expropriated. Furthermore, in their view the compensation proceedings were thorough and the compensation awarded was carefully examined by the Land Court. The fact that the applicant did not appeal against the decision was also in their opinion an indication that no excessive individual burden was imposed on the applicant.
The applicant contested the Government’s preliminary objection. It stressed that the application concerned the proceedings only until June 2002, the compensation proceedings being a totally separate proceedings. Further, a temporary activity prohibition was a procedural order, against which it was unnecessary to appeal. The appeals would only have increased its legal costs and might have even prolonged the matter.
The applicant emphasised that pursuant to Finnish law, the owners were not entitled to any compensation for the prohibition of building for the period prior to the expropriation. During that time, it was also impossible to sell the land at market price. It underlined that the use of four wilderness huts and a sauna by hikers wishing to stay overnight would have supported the recreational use of the area in harmony with the conservable values. In its view, the prohibition upset the fair balance between the protection of the right of property and the requirement of the general interest.
2. The Court’s assessment
Leaving aside the Government’s preliminary objection, the Court recalls that Article 1 of Protocol No. 1 guarantees in substance the right to property. It comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of the peaceful enjoyment of possessions. The second, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. However, the three rules are not “distinct” in the sense of being unconnected: the second and the third rules are concerned with particular interferences 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, among many other authorities, AGOSI v. the United Kingdom, judgment of 24 October 1986, Series A no. 108, p. 17, § 48).
Further, although Article 1 of Protocol No. 1 contains no explicit procedural requirements, the proceedings at issue must also 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 the rights guaranteed by this provision. In ascertaining whether this condition has been satisfied, a comprehensive view must be taken of the applicable procedures (see, inter alia, Jokela v. Finland, no. 28856/95, § 45, ECHR 2002-IV).
The Court notes at the outset that the exemption permit and the activity prohibition in this case falls to be considered under the second paragraph of Article 1 of Protocol No.1 as being a measure to "control the use of property" (see, inter alia, Allan Jacobsson v. Sweden (no. 1), judgment of 25 October 1989, Series A no. 163, p. 16, § 54, Hellborg v. Sweden, no. 47473/99, § 45, 28 February 2006), whereas the expropriation, constituting a lawful deprivation of possessions, falls within the second rule, "deprivation" of the property.
The Court will then examine in accordance with the principles established in its case-law (see, inter alia, Allan Jacobsson v. Sweden (no. 1), cited above, p. 17, § 55, Sporrong and Lönnroth v. Sweden, judgment, p. 26, § 69 and p. 28, § 73), whether the measures were lawful and were they in accordance with the "general interest" and whether a "fair balance" was struck between the demands of the public or general interest of the community and the requirements of the protection of the applicant’s fundamental rights.
The Court is satisfied that the decisions concerning an exemption permit, activity prohibition and an expropriation had a basis in Finnish law and therefore finds that the decisions were lawful.
As to the "general interest" pursued by the refusal of the exemption permit and subsequently by the activity prohibition and finally expropriation, the Court notes that the purpose of the decisions was to maintain the prohibition on construction in an area belonging to the shore protection programme. Although no final decision had been made on the conservation of the area at the time the exemption permits were refused, the Court is satisfied that the interests pursued by the decisions served the "general interest" (see, inter alia, Skärby v. Sweden (dec.), no. 12258/86, 9 May 1988).
As regards the proportionality between the interference with the applicant’s property rights and the general interest pursued, the Court notes that while it is true that during the years 1993 – 1999 the applicant was left in uncertainty as to its possibilities to develop the property, Mr Saarenpää, the principal owner of the applicant company, having been owner of the property at least since 1980’s, must have been aware that the constructions proposed by the applicant company did not comply with the shore plan adopted for the area in 1986. Consequently, the applicant did not have under Finnish law any legitimate expectation to obtain permission to construct. The applicant could only obtain a right to construct if it was granted an exemption permit. The environmental authorities refused such an exemption. When, on appeal, the Supreme Administrative Court found legal grounds for granting an exemption and referred the case back to the Environmental Centre for reconsideration, it rejected the application again, this time on different grounds. Finally, before the exemption permit was de facto granted, the authorities issued a temporary activity prohibition. The Court notes that all these domestic procedures provided a possibility for weighing the public interest against that of the applicant company (see, inter alia, Allan Jacobsson v. Sweden (no. 1), cited above, § 62). Furthermore, the applicant was able to continue to use its property, i.e. its business, on the same conditions as previously, during the exemption permit proceedings. Finally, the Court notes that the applicant has not submitted any evidence to support its allegation that it could not sell the land at market price (see Hiltunen v. Finland (dec.), no. 30337/96, 28 September 1999) or that the value of the property had been so substantially diminished on account of the outline objective as to result in an unfair balancing of interests (see Uuhiniemi v. Finland (dec.), no. 21343/93, 10 October 1994).
While the applicant stressed that the application did not concern the proceedings from June 2002 onwards, i.e. the compensation proceedings flowing from the expropriation, the Court finds it relevant to note that it appears that the applicant was adequately compensated, in that it did not appeal against the Land Court’s decision in this respect. The Court cannot but conclude that this deprivation of its possessions did not amount to a violation of Article 1 of Protocol No. 1.
The Court, taking into account the State’s wide margin of appreciation in the control of the use of property, concludes therefore that no such adverse effects which could render the balancing of interests unfair have been shown to exist as a result of the impugned measures. Accordingly, there is no appearance of an improper balance being struck between the protection of the applicant’s property rights and the demands of the general interest and, consequently, no appearance of a violation of the applicant’s right to the peaceful enjoyment of its possessions.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Allegedly excessive length of the proceedings
The applicant complained under Article 6 of the Convention about the length of the proceedings. Article 6 § 1, insofar as relevant, reads as follows:
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time ...”
In its further submissions it also invoked a violation of Article 13, 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.”
1. The parties’ submissions
The Government contested that the length of the proceedings were excessive. In fact, in their opinion there were various sets of proceedings, of which the first, ending in the Supreme Administrative Court’s decision of 24 March 1997, concerned the lawfulness of the exemption permit. The second set of proceedings, ending in the Ministry’s decision of 16 November 1999, concerned its expediency, which therefore, in the Government’s view, had to be excluded from the examination under Article 6. Furthermore, the proceedings from the Environmental Centre’s decision onwards of 9 July 1999 were not related to the proceedings concerning the exemption permit.
The Government further considered the case to be somewhat complex. The applicant contested this.
As to the conduct of the relevant authorities, the Government emphasised that the Supreme Administrative Court held an inspection in situ and an oral hearing, which might have contributed to the length of the proceedings before it. However, there were no periods of inactivity before that court.
As to the conduct of the applicant, the Government submitted that it could have initiated the drawing up of a plan for the area when its application for an exemption permit was rejected for the first time. Instead, it decided to seek a building right by means of an exemption permit referred to in the Building Act.
Finally, the Government noted that the applicant’s possibilities to build on the property were adequately guaranteed, given the number of building sites indicated in the shore plan already before his request for an exemption permit.
The applicant agreed with the Government that there were three separate rounds of appeals during the period 1997 – 2002. It however stressed that in each round of appeals, the facts were the same, i.e. the legal effects of the shore protection programme on its right to build on the land. In the applicant’s opinion its application for an exemption permit should have been considered only once, on the basis both of the Building Act and the Nature Conservation Act. Were the Government’s assertion correct that under the established case-law, consideration of expediency would never be possible at the same time as consideration of legal grounds, this proved that the court practice was not in compliance with the requirements of a fair trial. The applicant further questioned the "consideration of expediency" rule –decision-making which was not based on a statutory legislation – as being in itself a violation of Article 6.
In any event, the applicant maintained that the length of the proceedings had to be considered as a whole for the purposes of Article 6 § 1. In its view the proceedings lasted over eight years and six months, i.e. from November 1993 until June 2002. Having "won" the first round in the exemption permit proceedings, the environmental authorities failed to comply with the Supreme Court’s decision. Having "won" also this second round in the exemption permit proceedings before the Ministry, the environmental authorities again initiated new proceedings ex officio, this time by issuing an activity prohibition. In this way, the environmental authorities were able effectively to prohibit the applicant from building on the land during the said period of time, until the Environmental Centre finally "won" the third round of appeals. Accordingly, the total length of the proceedings could not, in any respect, be attributable to the applicant, but solely to the authorities.
Furthermore, it took over nine years and two months until the applicant was entitled to any compensation in the matter, as the compensation proceedings came to an end on 14 February 2003.
Finally, the applicant argued that the only way to obtain a building permit was by means of an exemption permit. Since the building sites at issue were not located in the shore area, it would not have been, even in theory, possible to draw up any shore plan for the area.
2. The Court’s assessment
As to the alleged violation of Article 13 the Court recalls that under Article 35 § 1 of the Convention the Court may only deal with the matter 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 or the event forming the subject-matter of the grievance took place.
The applicant complained that the environmental authority’s failure to comply with its superior’s decisions violated Article 13, the final decision being the building permit issued by the municipality on 29 June 1999. The applicant introduced this complaint in its submissions of 26 February 2003, that is to say more than six months later. It follows that the complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
As to the alleged violation of Article 6 § 1, the Court considers, in the light of the parties’ submissions, that this part of the application raises serious issues of fact and law under the Convention, including the question whether Article 6 applies to the whole set of proceedings and whether different sets of proceedings can be considered in toto for the purposes of Article 6 § 1, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
C. Alleged unfairness of the proceedings
The applicant finally complained, invoking the above-cited Article 6 § 1, that the proceedings were unfair as the Ministry had allegedly instructed the County Administrative Board in the decision-making.
1. The parties’ submissions
The Government considered that Article 6 did not apply to the proceedings before the County Administrative Board and the Ministry as neither of the authorities was a tribunal. In any event, the applicant had access to court proceedings in the Supreme Administrative Court and any possible error had been corrected before that court. Further, the Ministry finally accepted the applicant’s appeal and granted the exemption permit.
The applicant maintained its complaints and considered that both the Country Administrative Board and the Ministry lacked impartiality because of the Ministry’s fax message.
2. The Court’s assessment
The Court notes at the outset that neither the County Administrative Board nor the Ministry of the Environment can be regarded as “tribunals” within the meaning of Article 6 of the Convention. However, the Court recalls that a violation of Article 6 § 1 cannot be grounded on the alleged breach of procedural guarantees by decision-making bodies not fulfilling the requirements of a tribunal provided the decision taken is subject to subsequent control by a judicial body that has full jurisdiction and ensures respect for the guarantees laid down in that provision (see, inter alia, Helle v. Finland, judgment of 19 December 1997, Reports of Judgments and Decisions 1997‑VIII, § 46). In the present case the applicant appealed to the Supreme Administrative Court, a tribunal with jurisdiction to examine both questions of fact and law. The court held a hearing, reviewed the applicant’s case and quashed the Ministry’s decision as to its merits. The applicant was thus guaranteed a fair trial before a tribunal fulfilling the requirements of Article 6.
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 admissible, without prejudging the merits, the applicant’s complaint concerning the length of the proceedings as to the exemption permit and the activity prohibition;
Declares inadmissible the remainder of the application.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy