FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 39559/02
by Alpo STARK and Others
against Finland
The European Court of Human Rights (Fourth Section), sitting on 5 December 2006 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrM. Pellonpää,
MrK. Traja,
MrS. Pavlovschi,
MrJ. Šikuta, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 1 November 2002,
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 applicants, Mr Alpo Stark, Mr Matti Autio and Mr Alpo Junttari are Finnish nationals who were born in 1937, 1945 and 1942, respectively. The first applicant lives in Kaakamo and the other applicants in Kittilä. They are represented before the Court by Mr Juha Kiiha, a lawyer practising in Kemi. The respondent Government are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.
The applicants are fishermen operating in the maritime area at the mouth of the Kemi River by the city of Tornio. They fish small fish and reared salmon in the flow area of the Kemi River. The first applicant is a category II fisherman (see relevant domestic law part below). He has leased the right to fish small fish from the fishing co-operative (kalastuskunta, fiskelag) of Laivaniemi-Laivajärvi and his right to fish salmon and sea trout is based on an oral agreement with the owners of the said right. The second applicant is a category I fisherman, who fishes in waters leased from the fishing co-operatives Kaakamo-Ruottala and Pirkkiö as well as the State, of which one, Pihlajakari, is situated in the Tornio River fishing area. The third applicant, being a category III fisherman, owns the fishing waters. He has been in the register of professional fishermen as of July 2001.
In 1971 Finland and Sweden concluded the Frontier Rivers Agreement (Suomen ja Ruotsin välinen rajajokisopimus, gränsälvsöverenskommelsen mellan Finland och Sverige; SopS 53-54/1971), which included provisions on the right to fish in the frontier rivers, e.g. in the Tornio River and its channels. The Fishing Regulation (kalastussääntö, fiskestadgan) was annexed to the Frontier Rivers Agreement (appendix B). The Fishing Regulation was amended in 1979 and 1987 whereby the Finnish-Swedish Frontier Rivers Commission (rajajokikomissio, gränsälvskommissionen), established under the Frontier Rivers Agreement, was given the right to preserve certain fish species, or prohibit or restrict fishing using certain equipment or gear, if this was deemed necessary in order to safeguard future fish stocks (section 22 of the Fishing Regulation). The fish to be protected in the area was the wild salmon of Tornio River.
In June 1987 Finland and Sweden decided to discontinue the application of the Fishing Regulation. Subsequently, an Act for the Fishing in the Tornio River Fishing Area (kalastuksesta Tornionjoen kalastusalueella annettu laki; lag om fiske i fiskeområden i Torne älven; 494/1997, “the Tornio Fishing Act”) was passed. According to section 3 of the said Act the Ministry of Agriculture and Forestry (“the Ministry”) was authorised to restrict fishing, inter alia, if this was deemed necessary in order to safeguard future fish stocks.
By virtue of the Tornio Fishing Act the Ministry issued a Decision no. 496/1997, which entered into force on 5 June 1997 (“the 1997 Decision”), prohibiting all salmon and trout fishing throughout the year and all fishing with stationary gear during the period from 1 May until 5 July. The decision was essentially identical to the Frontier Rivers Commission’s decision in this respect. The restrictions extended to the maritime area of the Kemi River belonging to the city of Tornio, i.e. the fishing waters of the applicants (but not to the maritime area belonging to the nearby city Kemi). The Frontier Rivers Commission was, subject to certain conditions, authorised to grant exemptions from the above prohibition covering persons holding private fishing rights in the area and professional fishermen.
The local fishing association of Kaakamo–Ruottala challenged the lawfulness of the 1997 Decision before the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). In its judgment of 15 January 1999 the court declined to examine the merits of the appeal, finding that the 1997 Decision was not in the nature of an administrative decision by which a case has been resolved or dismissed and which could have been challenged by an appeal.
By Decision no. 319/1998 (“the 1998 Decision”), which entered into force on 13 May 1998, the Ministry continued the fishing prohibition and restriction.
Despite the above-mentioned decisions, the applicants continued fishing with stationary gear. They considered the decisions unlawful as they claimed that only implanted salmon existed in their fishing waters. The first and second applicants were, however, granted an exemption permit to fish between 1 and 5 July 2000.
On an unspecified date the public prosecutor brought charges against the applicants for breaching the Tornio Fishing Act in the period between 3 June and 5 July 2001. On 21 December 2001 the Tornio District Court (käräjäoikeus, tingsrätten) dismissed the charges, ruling that the 1998 Decision violated the applicants’ constitutional right to peacefully enjoy their possessions as wild salmon existed only accidentally in their fishing waters. Thus the 1998 Decision was contrary to the Tornio Fishing Act and the Constitution. By virtue of section 107 of the Constitution, the 1997 Decision should not have been applied.
On 16 May 2002 the Ministry amended the 1998 Decision (no. 369/2002; “the 2002 Decision”), allowing professional fishermen to fish with stationary gear salmon and whitefish between 3 July and 15 September and trout between 3 July and 31 August. Furthermore, the provision on the Frontier Rivers Commission’s right to grant exemptions from the fishing prohibitions was repealed.
Following an appeal by the public prosecutor, the Rovaniemi Court of Appeal (hovioikeus, hovrätten) quashed the decision of the District Court by its judgment of 28 June 2002, finding that the applicants had breached the Tornio Fishing Act and ordered each of them to pay 20 day-fines. It found that the 1998 Decision was not in conflict with the Constitution or the Tornio Fishing Act. The applicants sought leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen), which was refused on 11 June 2003.
B. Relevant domestic law and practice
According to the Constitution Act of 1919 (Suomen hallitusmuoto, Regeringsform för Finland; Act no. 94/1919) as amended by Law no. 969/1995, which entered into force on 1 August 1995, everyone was to be equal before the law and his or her property was to be protected (sections 5 and 12). Those provisions of the Constitution Act have been incorporated as such into the new Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), in force as of 1 March 2000. Equality and property rights are guaranteed under sections 6 and 15.
Under the Constitution a court of law must give precedence to a provision therein if the application of a provision of ordinary law is in obvious conflict with the Constitution (section 106). If a provision in a decree or any other statute of lower rank than an Act of Parliament is in conflict with the Constitution or ordinary law, that provision shall not be applied by a court of law or any other public authority (section 107).
Section 3 of the Tornio Fishing Act provides that the Ministry of Agriculture and Forestry may preserve certain fish species, or prohibit or restrict fishing with a particular gear in the whole fishing area or in any part of it, if this is deemed necessary in order to safeguard future fish stocks.
According to section 5, subsection 1 of the 1997 Decision issued by virtue of the Tornio Fishing Act, the Frontier Rivers Commission may grant a permit for the fishing of species other than salmon and sea trout before 6 July using two sets of stationary gear for persons holding private fishing rights in the area. Under subsection 2, the Commission may grant a permit for the fishing of species other than salmon and sea trout before 6 July using stationary gear for professional fishermen.
Under the 2002 Decision professional fishermen referred to in section 6 a of the Fishing Act (kalastuslaki, lag om fiske; Act no. 286/1982), carrying out fishing in the sea area, were allowed to fish with stationary gear, in addition to other fish species, salmon and whitefish from 3 July until 15 September and sea trout until 31 August.
Section 6 a of the said Act (Act No. 527/1996), as in force until 2002, provided that a professional fisherman was a person who was engaged in fishing and earned his living, or a substantial part of it, from fishing. His proceeds from fishing had to be at least 30 per cent of the total amount of his/her income subject to taxation. A person whose total fishing income was less than 30 per cent but at least 15 per cent of his/her total income was considered a professional fisherman when the provisions on the declaration of the catch and regulation of fishing were applied.
The said provision was amended as of 1 January 2002 (Act no. 756/2001). The new provision provides that a person is considered a professional fisherman when he is engaged in fishing and earns his living, or a substantial part of it, from fishing and from the processing of the catch he has caught. The sales proceeds he receives from these activities (total fishing income) has to be at least 30 per cent of the total amount of his overall income. If a person’s total fishing income is less than 30 per cent but at least 15 per cent of the total amount of his overall business income, earned income and other regular overall income, he is considered a professional fisherman when section 6(4) and the provisions on the declaration of the catch and the regulation of fishing are applied.
The Employment and Economic Development Centres (TE-keskus, AT-centralen) maintain registers of fishermen belonging to different categories on the basis of section 6 a of the Fishing Act. A professional fisherman belongs to category I. Where a person’s proceeds constitute between 15 and 29.99 % of his total income, he belongs to category II. Where the proceeds constitute less than 15 %, he is considered to belong to category III.
Section 5 of the Fishing Act provides that the right to engage in fishing belongs to the owner of the waters, unless this right has been assigned to another party and unless otherwise provided in that Act. Under section 15 an owner of the waters may lease out the fishing right.
An account of domestic law can also be found in the Court’s judgments in Posti and Rahko v. Finland (no. 27824/95, §§ 18-30, ECHR 2002‑VII) and Alatulkkila and others v. Finland (no. 33538/96, §§ 25-36, 28 July 2005).
COMPLAINTS
1.The applicants complained that they had no access to a tribunal within the meaning of Article 6 § 1 of the Convention in order to challenge the fishing restriction imposed by the Ministry’s Decisions issued in 1997, 1998 and 2002.
2.The applicants also complained, invoking Article 1 of Protocol No. 1 alone and in conjunction with Article 14, that the fishing restriction imposed by the decisions violated their right to the peaceful enjoyment of their possessions, as these comprised a right to fish in the maritime area of Kemi River in the city of Tornio where wild salmon did not exist. The applicants alleged that they had been discriminated against in comparison with fishermen operating in the same maritime area but in the city of Kemi, outside the restrictions.
3.Finally, the applicants complained under Article 7 § 1 that they had been found guilty of an offence imposed by a decision with a lower status than an Act of Parliament. The Tornio Fishing Act authorised restrictions on fishing only in areas where wild salmon existed. The decisions, however, concerned fishing in areas where wild salmon did not exist contrary to the Tornio Fishing Act.
THE LAWThe Government’s preliminary objections
1. “Victim” status
The Government submitted that the first and second applicants were granted an exemption permit to fish between 1 and 5 July 2000 and, accordingly, they could not be considered to be victims within the meaning of Article 34 of the Convention during the year 2000.
Further, in the Government’s view the second applicant could not claim to be a victim within the meaning of Article 34 of the Convention in so far as he had been fishing in an area leased from the State. His lease contract with the Lapland Employment and Economic Development Centre stipulated, inter alia, that salmon fishing was allowed within the leased areas only in so far as prescribed in the relevant laws, decisions or other provisions. In the light of those explicit contractual terms, the second applicant could not arguably claim a “right” to engage in fishing in State-owned waters. The Government however observed that the second applicant also used fishing sites other than those based on lease contracts with the State.
The applicants, for their part, submitted that the fishing restrictions directly affected their rights. Further, the second applicant had been convicted of fishing in the Kiikkara water area, which he had leased from the private fishing co-operative of Kaakamo-Ruottala, not from the State.
As to the objection that the first and second applicants could not be considered victims within the meaning of Article 34 as they were granted an exemption permit to fish in 2000, the Court notes that the impugned conviction was based on the allegedly unlawful fishing which had taken place between the period of 3 June and 5 July 2001. In that year, they had not been granted an exemption permit to fish. From the year 2002 onwards, the applicants did not have the possibility to seek an exemption permit to fish under the 2002 Decision. Consequently, the first and second applicants may, for the purposes of Article 34 of the Convention, claim to be “victims” of the violations alleged in the present application. The third applicant’s victim status has not been contested. Therefore this part of the Government’s preliminary objection must be rejected.
The Court will examine the Government’s further objection concerning the second applicant below in connection with the question whether he could claim to have a “civil right” to fish within the meaning of Article 6 § 1 of the Convention.
2. Exhaustion of domestic remedies
The Government submitted in the alternative that the applicants had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. In 2001 none of the applicants had applied for an exemption permit to fish for species other than salmon and trout before 6 July from the Frontier Rivers Commission. In addition, the same was also true of the third applicant in respect of the year 2000.
The applicants stated that, in any event, the exemption permit to fish for species other than salmon and trout concerned only the first five days of July, whereas fishing remained prohibited during May and June when the largest part of the yearly catch could have been fished. In any event, the Frontier Rivers Commission was not entitled to consider the lawfulness of the decisions issued by the Ministry; nor could it overrule them or pay compensation for the loss caused by the restrictions.
The Court recalls that as of 2002 the possibility to apply for an exemption permit from the Frontier Rivers Commission was not available under the amended 2002 Decision. As to the years 2000 and 2001 the Court finds that had all the applicants sought and obtained such an exemption permit, they would still have been subject to certain restrictions on fishing. The Court does not find that an application for an exemption permit would have been an effective remedy within the meaning of Article 35 § 1. Therefore, the complaint cannot be rejected for failure to exhaust domestic remedies. Accordingly, the Government’s second preliminary objection must be rejected.
3. Compliance with the six-month rule
The Government finally submitted that the application had been lodged out of time. In their view the six-month period prescribed in Article 35 § 1 of the Convention started to run from the entry into force of the 1997 Decision in June 1997. The restrictions were maintained by the 1998 Decision, which entered into force on 13 May 1998. As the applicants had introduced their application only on 1 November 2002, it was lodged out of time in so far as it concerned the fishing restrictions resulting from the 1997 and 1998 Decisions.
The applicants disagreed. In their view the six-month period – at least regarding the 1998 Decision – did not begin to run before 11 June 2003 when the Supreme Court refused leave to appeal in the criminal proceedings. They submitted that the lawfulness of the 1998 Decision was under scrutiny in those proceedings. Regarding the 2002 Decision, the application has been undoubtedly lodged on time.
The Court recalls that it held in the case Posti and Rahko v. Finland (cited above, § 41) that the six-month period of relevance to the application concerning the ability to challenge a decree on fishing restrictions started to run from the date of the entry into force of the impugned decree, and further that no one can be required to breach the law so as to be able to have a “civil right” determined in accordance with Article 6 § 1 (§ 64). In the present case the domestic proceedings ending on 11 June 2003 concerned the applicants’ criminal liability under the Tornio Fishing Act and the 1998 Decision, not the 1997 Decision nor their access to court to determine their civil right to fish in general. Such criminal proceeding cannot be regarded as an effective domestic remedy within the meaning of Article 35 § 1 which would postpone the calculation of the six months’ period to complain under Article 6 about the denial of access to court. The Court finds that the impugned 1997 and 1998 Decisions entered into force on 5 June 1997 and 13 May 1998, respectively. The application, having been lodged on 1 November 2002, has therefore been lodged outside the six-month time-limit as far as it concerns the fishing restriction resulting from the 1997 Decision and access to court to contest the fishing restrictions resulting from the 1997 and 1998 Decisions. It follows that the Government’s preliminary objection must be partly accepted and partly rejected.
B. Other issues of admissibilityArticle 6 § 1
The applicants complained that they were unable to have the 2002 Decision restricting their fishing rights reviewed by a tribunal within the meaning of Article 6 § 1 of the Convention. The said Article reads, in so far as relevant, as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The parties’ submissions
The Government denied that there was a dispute over a “right” within the meaning of Article 6 § 1. They submitted that the first applicant, now retired, had been a category II (for some time a category III) fisherman, i.e. his proceeds from the fishery constituted between 15 and 30 % of his total income. Further, he had leased the water area from the private Laivaniemi fishing co-operative, and the relevant lease contract stipulated that he had to comply with laws and decrees.
As far as the second applicant had been fishing on sites leased from the State, the Government submitted that Article 6 § 1 did not apply. As to the other sites, the foregoing observations applied to him as well. Had he owned the waters where he fished, Article 6 § 1 would have been applicable.
As regards the third applicant, the Government agreed he was the owner of the water areas where he fished. Therefore, Article 6 § 1 seemed to apply. They noted, however, that he had been a category III fisherman, i.e. a person whose proceeds from fishing constituted less that 15 % of his yearly income and he had not been registered as a fisherman until 2001 in the register of professional fishermen. He had now retired.
The applicants contested the Government’s view. They argued that the first applicant was a professional fisherman and still actively fishing. Reaching the pension age of 65 years could not deprive him of the right to work and earn his livelihood. He had leased the right to fish small fish from the Laivaniemi-Laivajärvi fishing co-operative since 1959. The lease contract did not contain any provisions ordering fishermen to comply with laws and other decrees as the Government incorrectly claimed. As to the right to fish salmon and sea trout, he had leased that right from two private persons who owned that right.
As to the second applicant, as noted earlier, he was convicted of fishing in the Kiikkara water area, i.e. the site he had leased from the Kaakamo-Ruottala fishing co-operative. The lease contract did not contain any explicit limitations on fishing. He had also leased the right to fish small fish from the Pirkkiö fishing co-operative. That contract stipulated that he had to comply with the provisions of the Fishing Act and the Frontier Rivers Agreement. Only one site, Pihlajakari, which he had leased from the State, was situated in the Tornio River fishing area.
The applicants emphasised that as the owner of the water area the third applicant enjoyed the right to fish those waters. In the applicants’ view, it was irrelevant whether he was regarded as a professional fisherman within the meaning of the Fishing Act or whether he had been registered as a professional fisherman. Classification might have been of relevance regarding those fishermen who leased their fishing rights. In addition, had the third applicant leased his fishing right to another fisherman, the restrictions would have diminished the value of the lease. Thus the restrictions had a direct effect on his right to enjoy his property.
The applicants also considered that it would be illogical to require a person to obtain more than 15 % of his income from fishing in order to have a “right” within the meaning of Article 6 § 1. Had the State completely prohibited fishing, a person could not receive any income from that activity and, consequently, could not be considered a professional fisherman. The applicants pointed out that their income from fishing had been directly affected by the fishing restrictions. The impugned decisions prohibited fishing during two of the most important fishing months, thus diminishing their proceeds from fishing and, consequently, forcing the applicants to seek income from other sources.
The Court’s assessment
As the Court has found above that the applicants’ complaint has been lodged out of time in so far as it concerns the 1997 and 1998 Decisions, it will limit its examination to the question whether the applicants were denied access to a court within the meaning of Article 6 § 1 of the Convention in order to challenge the fishing restrictions imposed by the 2002 Decision.
Under the Court’s case-law, for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question. As the Court has consistently held, mere tenuous connections or remote consequences are not sufficient to bring Article 6 § 1 into play (see, inter alia, Le Compte, Van Leuven and De Meyere v. Belgium, judgment of 23 June 1981, Series A no. 43, p. 21, § 47 and Zander v. Sweden, judgment of 25 November 1993, Series A no. 279‑B, p. 38, § 22).
Article 6 § 1 of the Convention is not aimed at creating new substantive rights without a legal basis in the Contracting State, but at providing procedural protection of rights already recognised in domestic law (see, inter alia, Roche v. the United Kingdom [GC], no. 32555/96, § 117, ECHR 2005‑..., W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121-A, p. 32-33, § 73). The term “right” must nevertheless be given an autonomous interpretation under Article 6 § 1 of the Convention (see, inter alia, König v. Germany, judgment of 28 June 1986, Series A no. 27, pp. 29-30, §§ 88-89).
As to the second applicant, the Court notes that he had leased fishing sites from the State and two private parties, namely the fishing co-operatives of Kaakamo-Ruottala and Pirkkiö. According to the applicant only one area (Pihlajakari) leased from the State was situated in the Tornio River fishing area. The respective lease contracts with the Lapland Employment and Economic Development Centre (former Lapland District for the Economic Development of the Countryside; maaseutuelinkeinopiiri, landsbygds-näringsdistrikt), concluded for the years 2000 – 2004, stipulated that salmon fishing was allowed within the leased area only in so far as prescribed in the relevant decree on salmon fishing or other provisions. The Court finds that in the light of those explicit contractual terms the second applicant could not arguably claim a “right” to engage in fishing in that water area to an extent exceeding the limits set by law or decree (Posti and Rahko v. Finland, § 57). Consequently, Article 6 § 1 does not apply. It follows that this part of the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
As to the remainder of the complaint, the Court considers, in the light of the parties’ submissions, that it raises serious issues of fact and law under the Convention, 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.
2. Article 1 of Protocol No. 1 both in isolation and in conjunction with Article 14
The applicants further complained that the fishing restrictions violated their property rights under Article 1 of Protocol No. 1 and also discriminated against them in comparison with fishermen in adjacent waters.
Article 1 of Protocol No. 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 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The parties’ submissions
The Government submitted that, as concerns the second applicant, there had been no violation of the Articles invoked as he had a lease contract with the State in the same terms as the contract discussed in the case Posti and Rahko v. Finland. As to the other applicants, the Government admitted that the limitation of the applicants’ right to fish on account of the 1998 Decision amounted to a control of the use of their possessions, within the meaning of the second paragraph of Article 1 of Protocol No. 1.
However, this interference was justified, being lawful and pursuing, by means proportionate to that aim, the legitimate general interest in protecting future fish stocks. In the Government’s view there was sufficient justification for the restrictions applied in the various water areas as well as for differing prohibitions on the use of fishing gear in particular locations, namely the objective of preservation of wild salmon stocks, the relatively short duration of the restrictions, the possibility to obtain an exemption permit for the fishing of species other than salmon and sea trout during a limited period of time, and the fact that the fishing of other species was allowed in the maritime areas during the aforementioned periods of time with fishing gear other than stationary gear.
For the same reasons, the Government also considered that there was sufficient justification for the restrictions applied in the various water areas as well as for differing prohibitions on the use of fishing gear in particular locations.
The applicants admitted that the protection of Tornio River wild salmon was in the general interest, and further, that fishing in certain parts of the Tornio River fishing area could be restricted by section 3 of the Tornio Fishing Act. The applicants argued, however, that the legitimate general interest in preservation of Tornio River wild salmon did not justify fishing restrictions in a clearly defined area in the mouth of Kemi River where virtually only reared stock existed and where Tornio River wild salmon did not frequent. Fishing restrictions in that area – as based on scientific research and prescribed in the Decree on the Limitations Concerning Salmon Fishing in the Territorial Waters of Finland and in the Fishing Zone in the Baltic Main Basin, in the Gulf of Bothnia and the Simo River (asetus eräistä lohen kalastusta koskevista rajoituksista Suomen aluevesillä ja kalastusvyöhykkeellä Itämeren pääaltaalla ja Pohjanlahdella sekä Simojoessa, förordning om vissa inskränkningar av laxfisket inom Finlands territorialvatten och fiskezon i Östersjöns huvudbassäng och i Bottniska viken samt i Simojoki; Decree No. 231/1994) – do not contribute to the preservation of Tornio River wild salmon. Thus that area, including the part situated in the maritime area of the city of Tornio, should have been left outside the scope of the restrictions. Further, they had not received any compensation for the loss the fishing restrictions had caused to their livelihood. Although the duration of restrictions was only two months per year, they maintained that a considerable part of the yearly catch could be fished during that time. The possibility to obtain an exemption permit to fish for five days was financially irrelevant for them.
Further, in the applicants’ view the fishing restrictions were arbitrary. They pointed out that fishing in the mouth of the Kemi River in the maritime area by the city of Kemi was allowed whereas fishing in the Kemi River maritime area by the city of Tornio was restricted by virtue of the impugned decisions. They found no objective and reasonable justification for different treatment of fishermen fishing in different parts of the mouth of the Kemi River. In their opinion the Government had not presented any biological or other evidence which would justify differing fishing restrictions in this location.
The Court’s assessment
The Court recalls at the outset that it found above part of the application having been lodged out of time. The Court finds, however, that it does not need to decide whether a distinction can be made on the applicability of the six months’ rule concerning the applicants’ Article 6 complaint and their complaints under Article 1 of Protocol No. 1 and Article 14, and consequently, whether the latter complaints have been lodged on time, as it considers that those complaints are in any event manifestly ill-founded for the following reasons.
The applicants enjoyed fishing rights linked to their lease of water areas and, as regards the third applicant, his ownership of the waters. The limitation of those rights by means of the 1998 and 2002 Decisions amounted to a control of the use of possessions, within the meaning of the second paragraph of Article 1 of Protocol No. 1.
The Court finds, essentially for the reasons invoked by the Government, that this interference with the applicants’ property rights was justified, being lawful and pursuing, by means proportionate to that aim, the legitimate and important general interest in protecting fish stocks (see mutatis mutandis Posti and Rahko v. Finland, § 77). Noting the margin of appreciation accorded to Contracting States in such matters, it has no reason to doubt that the state of fish stocks required conservation measures and that the timing and application of the measures in different water areas were geared to local conditions. Moreover, the interference did not completely extinguish the applicants’ right to fish in the relevant waters (see mutatis mutandis Alatulkkila and Others v. Finland, § 67). The Court further notes that by virtue of the 2002 Decision the restrictions imposed by the 1997 and 1998 Decisions and the preceding Frontier Rivers Commission’s decision had been alleviated.
As to the alleged violation of Article 1 of Protocol No. 1 read in conjunction with Article 14, the Court notes that Article 14 has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. According to the Court’s case-law, a difference in treatment is discriminatory for the purposes of Article 14 if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a certain margin of appreciation in assessing whether or not and to what extent differences in otherwise similar situations justify a different treatment (see, among many other authorities Walker v. the United Kingdom, no. 37212/02, § 32, 22 August 2006).
In the present case it is not disputed that the allegation of discrimination falls within the ambit of Article 1 of Protocol No. 1. Having examined the material submitted, and given its findings above, the Court finds, however, no reason to doubt that there was a reasonable and objective justification for the differing application of the fishing restrictions in different water areas. The principle of proportionality has also been respected.
Accordingly, there is no appearance of any violation of Article 1 of Protocol No. 1 taken alone or in conjunction with Article 14 of the Convention. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. Alleged violation of Article 7 § 1
The applicants finally complained, under Article 7 § 1 of the Convention, that they had been found guilty of an offence imposed by a decree with a lower status than an Act of Parliament. The Tornio Fishing Act authorised the Ministry to restrict fishing only in areas where wild salmon existed. However, the Ministry’s decisions were contrary to that Act as they covered also areas where wild salmon did not exist. Article 7 § 1 reads as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
While the Court’s duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, § 45). Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, mutatis mutandis, Kopp v. Switzerland, judgment of 25 March 1998, Reports of Judgments and Decisions 1998‑II, p. 541, § 59).
Article 7 embodies, inter alia, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to the detriment of an accused, for instance by analogy. From these principles it follows that an offence and the sanctions provided for it must be clearly defined in the law. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable. When speaking of “law” Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statutory law as well as case-law and implies qualitative requirements, notably those of accessibility and foreseeability (see Baskaya and Okcuoglu v. Turkey [GC], nos. 23536/94 and 24408/94, §§ 36 and 39, ECHR 1999-IV; Fortum Oil and Gas Oy v. Finland (dec.), no. 32559/96, 12 November 2002).
As to the present case, the Court notes that the applicants were convicted by the Court of Appeal for breaching the Tornio Fishing Act. The said Act authorised the Ministry to impose restrictions on fishing. The Ministry’s 1997 and 1998 Decisions specified the prohibitions and restrictions. However, the applicants continued to fish in an area where, at least in their opinion, wild salmon did not exist. The applicant disputed the compatibility of the said decisions with the Tornio Fishing Act and the Constitution.
In the light of the above principles concerning the scope of its supervision, the Court observes that it is not its task to determine whether the applicants as individuals were guilty, that being primarily a matter for the assessment of the domestic courts, but to consider, from the standpoint of Article 7 § 1 of the Convention, whether their act, at the time when it was committed, constituted an offence defined with sufficient accessibility and foreseeability by the law of Finland.
The Court finds that the applicants’ conviction was based on legislation, which was both accessible and foreseeable. For these reasons, the Court considers that the applicants’ complaint is, essentially, that they were wrongly convicted by the Court of Appeal. The facts relied on in support of this complaint do not disclose any imposition of a criminal offence or penalty contrary to Article 7 of the Convention.
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 complaint concerning access to a court in order to challenge the 2002 Decision by the first and third applicants and the second applicant in so far as he fished in water areas not leased from the State;
Declares inadmissible the remainder of the application.
Françoise Elens-PassosNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy