FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 11401/03
by Juhani TAIVALAHO
against Finland
The European Court of Human Rights (Fourth Section), sitting on 12 December 2006 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrM. Pellonpää,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mr T.L. Early, Registrar,
Having regard to the above application lodged on 29 March 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Juhani Taivalaho, is a Finnish national who was born in 1946 and lives in Rovaniemi. He is represented before the Court by Ms Kaisa Korpijaakko-Labba, Docent at the Universities of Helsinki and Lappland. 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, may be summarised as follows.
The applicant is an owner of real properties Tsahaltsokka Rn:o 34:7 and Aatasalmi Rn:o 34:8 in the municipality of Utsjoki, which lies in Lapland. He acquired the plots of land in 1987 and 1996, respectively. The properties included water areas in the Teno River, which is a border river between Finland and Norway, and its lower course is located in Norwegian territory. The applicant is resident in Rovaniemi, a town situated outside the Teno River valley.
Since 1873 Finland and Norway have concluded treaties on fishing in the fishing area (in Finnish “kalastuspiiri”, in Norwegian “fiskeområde”) of the Teno River. The Treaty currently in force was concluded on 1 March 1989 (Treaty on the Mutual Fishing Regulations regarding the Fishing Area of the Teno River, “the 1989 Treaty”; sopimus Tenojoen kalastuspiirin yhteisestä kalastussäännöstä, överenskommelsen angående gemensam fiskeristadga för Tana älvs fiskeområde; Finnish Treaty Series no. 94/1989), and it was adopted by an Act of 1 December 1989 (Act no.1197/89). The Treaty was accompanied by the Fishing Regulation (kalastussääntö, fiskeristadgan) of Teno River (“the Fishing Regulation”). The 1989 Treaty and the Fishing Regulation were incorporated into Finnish law by an Act enacted according to the order prescribed for the enactment of constitutional legislation. They entered into force on 1 January 1990.
Under Article 1 of the 1989 Treaty its aim is to protect and maintain the natural stocks of anadromous salmonoids (salmon, sea trout and Arctic sea char) and freshwater fishes, so as to preserve local biodiversity and natural productivity. The Fishing Regulation is applicable to those parts of the Teno, Inari and Skietsham Rivers which belong to Finland and constitute part of the border between the two States.
The rights of ownership and the fishing rights in the Teno River are arranged differently in the two countries: the Finnish parts of the Teno River waters are mainly privately owned by partnership of joint owners, and each joint owner of fishing waters is entitled to pursue fishing up to the extent of his share in the joint fishing waters. In Norway, fishing rights are based on the use of land, and the Norwegian parts of the Teno River are owned by the State.
According to the Fishing Regulation persons who have fishing rights in their capacity as owners of the water area and who have a permanent residence in the Teno River valley, are in a privileged position compared to those land owners who live outside the river valley with respect to the price of the fishing licence and the fishing equipment allowed.
In March 1991 the Act on Compensation for the Losses Caused by the 1989 Treaty and by the corresponding Fishing Regulation entered into force (“the 1991 Compensation Act”; laki Tenojoen kalastussääntöä koskevan sopimuksen ja kalastussäännön eräiden määräysten aiheuttamien menetysten korvaamisesta, lag om ersättande av förluster på grund av vissa bestämmelser i överenskommelsen angående fiskeristadgan för Tana älv och i den därtill anslutna fiskeristadgan; Act no. 501/1991). Under the said Act a holder of fishing rights shall be paid full compensation for any losses that are caused by the 1989 Treaty or the accompanying Fishing Regulation and prevent him from using his fishing rights. Corresponding compensation is also paid for losses caused by the previous Treaties.
Apparently a redemption procedure prescribed in the 1991 Compensation Act for the determination of compensation for the losses caused to the applicant was initiated on 30 April 1992 before the Rovaniemi District Survey Office (maanmittaustoimisto, lantmäteribyrån). The procedure is still pending. According to the Government the proceedings were suspended because, inter alia, the shareholder lists for the fishing places outside the reparcelling unit have not yet been confirmed.
On 30 July 1998 the applicant fished with a rod and artificial lure in his waters, without having paid for the fishing licence required for those who were not resident in the Teno River valley.
On 5 February 1999 the public prosecutor preferred charges against the applicant for fishing in violation of the 1989 Treaty, the Fishing Regulation and the Fishing Act (kalastuslaki, lag om fiske) as the applicant had been fishing without a required fishing licence and had used a prohibited lure.
On 3 September 1999 the Lapland District Court (käräjäoikeus, tingsrätt) convicted him of breaching the 1989 Treaty, the Fishing Regulation and the Fishing Act and ordered him to pay five day-fines. It found that the fishing restrictions were not in breach of the applicant’s right to use his property, given that the Fishing Regulation had been adopted in order to safeguard future fish stocks and the rights and culture of the local residents. It further ruled that any losses caused by the fishing restrictions could be compensated under the 1991 Compensation Act.
The applicant appealed to the Court of Appeal (hovioikeus, hovrätt) of Rovaniemi, claiming that the restrictions on fishing based on residence violated his right to use his possessions and his freedom of movement and were furthermore discriminatory. He further alleged that the compensation provided by the 1991 Compensation Act was meaningless as the compensation proceedings had already begun on 30 April 1992 but were still pending.
On 11 June 2001 the Court of Appeal issued its judgment, rejecting the applicant’s appeal. It found that the provisions of the Fishing Regulation and the 1989 Treaty were not in obvious conflict with the Constitution of Finland (Suomen perustuslaki, Finlands grundlag) within the meaning of section 106 of the Constitution, and therefore found that they were applicable. It concluded that the impugned provisions of the 1989 Treaty and the Fishing Regulation did not violate the applicant’s right to use his possessions, nor his freedom of movement.
On 10 August 2001 the applicant applied to the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal, complaining, inter alia, that the domestic courts had not taken into account the requirements of section 106 of the Constitution, namely the direct applicability of fundamental rights. He further claimed that the 1989 Treaty and the Fishing Regulation had entered into force in Finland before the Convention and thus the said provisions should not have been applied, as they were contrary to Convention rights.
On 18 October 2002 the Supreme Court refused the applicant leave to appeal.
B. Relevant domestic law
Constitution of Finland
According to the Constitution Act of 1919 (Suomen hallitusmuoto, Regeringsform för Finland; Act no. 94/1919) as amended by Act 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). A judge or other officer was under an obligation not to apply a provision in a decree which conflicted with constitutional or other Acts of Parliament (section 92, subsection 2). The Convention has been incorporated into Finnish law by an Act of Parliament with the status of ordinary law (Act no. 438/1990).
Chapter 2 (“Basic rights and liberties”) of the Constitution Act has 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 current Constitution a court of law must give precedence to a provision therein if the application of a provision of ordinary law was 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).
“The 1989 Treaty and the Fishing Regulation”
According to Article 1 of the 1989 Treaty its aim is to protect and maintain fish stocks in the Teno River. Under section 2 of the Fishing Regulation anyone who intends to fish on the parts of the Teno, Inari and Skietsham Rivers constituting part of the border between Finland and Norway shall pay a fishing licence before fishing. Persons who live permanently in the river valley shall pay 5 euros (EUR) per calendar year. This also applies to persons who have inherited their fishing rights directly from a person who resided permanently in the Teno River valley. Those who do not have a residence in the river valley shall pay EUR 10 – 35 per day for a fishing licence, depending on the area.
Section 3 prescribes that local residents are also in a privileged position compared to others with respect to the methods they are allowed to use for fishing: they are entitled to use, subject to the restrictions laid down in the Regulation, barriers with bag nets, barriers with baskets, stationary nets, surrounding nets, seines, and rods and lures for catching salmon. Other persons may fish only with rods and lures, with the exception of those who have inherited the fishing rights. Such persons are, irrespective of their permanent place of residence, entitled to use barriers with bag nets, barriers with baskets, surrounding nets, stationary nets and seines.
The Fishing Regulation further prescribes that only boats owned by local residents may be used for fishing.
COMPLAINTS
The applicant complained under Article 1 of Protocol No. 1 to the Convention that the 1989 Treaty and the Fishing Regulation violated his right to the peaceful enjoyment of his possessions since he could not freely use his fishing rights, based on his ownership of property, as he was not resident in the Teno River valley.
The applicant further complained, invoking Article 14 of the Convention, that the provisions of the 1989 Treaty and the Fishing Regulation discriminated against him as regards his freedom to choose his residence.
THE LAW
The applicant complained that the 1989 Treaty and the Fishing Regulation violated his property rights under Article 1 of Protocol No. 1 and further discriminated against him in comparison with those landowners who had a permanent residence in the Teno River valley. The 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 admitted that the applicant’s right to fish was restricted by virtue of the 1989 Treaty and the Fishing Regulation and amounted to a control of the use of his possessions, within the meaning of the second paragraph of Article 1 of Protocol No. 1. They submitted that the interference was however based on Articles 2 and 3 of the Fishing Regulation and pursued the general interest. The aim of the 1989 Treaty was not only to maintain and increase the salmon stocks in the Teno River, but also to safeguard the livelihood of the permanent residents derived from salmon fishing and to reserve a part of the salmon fishing for sports fishers. It further aimed to secure equal rights for the permanent residents in both Finland and Norway.
As to proportionality, the Government considered that the burden placed on the applicant could not be considered excessive in the circumstances. They submitted that as the Teno River was a popular fishing area, fishing restrictions concerning fishing gear and different licence fees were necessary in order to control the impact of fishing on the fish stocks. In principle, it was possible to use different criteria for distinguishing between local residents (entitled to enjoy the benefits connected with their local residence) and others. In the Government’s view the distinction between residents and non-residents was made with the necessary clarity.
The Government also pointed out that the present applicant was not a professional fisherman and therefore not dependent on fishing. Further, when he acquired his properties, he was aware of the fishing restrictions imposed in the area.
As to the alleged discrimination, the Government reiterated that there was a reasonable justification for the preferential treatment of the local residents: one of the aims of the restrictions was to secure the livelihood of the permanent residents both in Finland and Norway. They argued that in peripheral regions, such as in the Teno River valley, the residents had considerably weaker opportunities as regards their livelihood, earnings and employment than in other parts of the country. The Government stated that in the treaty negotiations conducted between Finland and Norway in 1999-2001 the question of non-residents’ fishing rights was one of the core issues. However, it was not possible to enlarge the fishing rights for non-residents in Finland and, consequently, no amendments to the Treaty were made. For the time being no further negotiations were foreseen.
The Government finally maintained that the applicant was in an equal position to those landowners with fishing rights by the Teno River who resided elsewhere and who had not inherited a real estate from a person who was resident in the area. Finally, the current situation did not in any way restrict the applicant’s freedom to choose his residence.
The applicant, for his part, submitted that although the fishing rights of non-resident landowners were first restricted in the Treaty concluded in 1953, the restrictions had not been registered in the Finnish land register. He had acquired his plots of land together with the right to the water area and the right to fish there. He had every right to rely on the content of the contracts of sale. In Norway land ownership did not contain a right to a joint water area or to fish there. Accordingly, it had been decided in the treaty negotiations that fishing rights should be awarded according to the place of residence, an arrangement which was unfamiliar to the Finnish land register system.
Further, restricting non-residents’ right to fish did not, in his view, contribute considerably to the preservation of fish stocks, especially given the number of sports fishers visiting the area annually. Sports fishing could not be seen as an important public interest.
The applicant further submitted that until 2001 the Finnish Government had been active in the treaty negotiations with Norway in seeking to amend the provisions placing restrictions on non-resident landowners. He was astonished that in their observations on the present application the Government now considered that the restrictions were in conformity with the Constitution and necessary in order to secure an important public interest.
He also referred to the opinion of the Committee for Constitutional Law (perustuslakivaliokunta, grundlagutskottet) of the Finnish Parliament (eduskunta, riksdagen; PeVL 13/1989). That Committee had taken the view that the status of non-resident landowners should have been arranged in a reasonable way and, in addition, their losses compensated. Consequently, a Compensation Act was introduced. The applicant argued that since 1991 the compensation proceedings concerning his property have been suspended. In any event, those proceedings were inadequate for correcting the violation, given that the Committee required not only that losses be compensated but that other arrangements be made in order to ensure the fishing rights of non-residents.
The Court’s assessment
Assuming that the application is not substantially the same as a matter previously examined (see Porsanger and Others v. Finland (dec.), no. 23048/93, 17 January 1996), to which the applicant was a party), the Court finds at the outset that Article 1 of Protocol No. 1 applies to the facts of the case. The applicant enjoyed a fishing right linked to his ownership of the waters in issue. The restriction of that right by means of the 1989 Treaty and the accompanying Fishing Regulation amounted to a control of the use of his possessions, within the meaning of the second paragraph of Article 1 of Protocol No. 1.
There is no doubt that the interference was lawful. Further, the Court is satisfied that the interests pursued by the restrictions served the "general interest", namely to protect and preserve the natural stocks of salmon and to safeguard the local population’s livelihood derived from salmon fishing.
As regards the proportionality between the interference with the applicant’s property rights and the general interest aim pursued, the Court notes that the restrictions flowing from the 1989 Treaty and the Fishing Regulation did not completely extinguish the applicant’s right to fish for salmon in the relevant waters. He was, however, required to obtain a fishing licence which was more expensive for non-residents of the Teno River valley.
The Court further finds that the applicant had acquired his land in 1987 and 1996, respectively. In his observations in reply, he stated that the fishing rights of non-resident landowners were first restricted in the Treaty of 1953. It follows that the applicant must already have been aware of these restrictions when he bought the land. Even if compensation for any losses suffered by the applicant as a result of the fishing restrictions has not yet been paid, the Court finds in the circumstances of the case that the interference with the applicant’s property rights was justified, being lawful and pursuing, in a proportionate manner, the legitimate general interest in protecting fish stocks.
Turning 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, essentially for the reasons invoked by the Government, no reason to doubt that there was a reasonable and objective justification for the difference in treatment between non-residents and residents of the Teno River valley as regards both the cost of a fishing licence and fishing methods. 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 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 the application inadmissible.
T.L. EarlyNicolas Bratza
RegistrarPresident
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