THE ESTATE OF LATE MR. FRANS NESTOR HILDÉN v. FINLAND



                      AS TO THE ADMISSIBILITY OF

                      Application No. 22693/93

                      by the Estate of late Mr. Frans Nestor Hildén

                      against Finland

      The European Commission of Human Rights (First Chamber) sitting

in private on 29 November 1995, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 9 August 1993 by

the Estate of late Mr. Frans Nestor Hildén against Finland and

registered on 28 September 1993 under file No. 22693/93;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

THE FACTS

      The applicant is the undivided estate of the late Frans Nestor

Hildén. The estate, which is a legal entity, is composed of the seven

joint beneficiaries of Mr. Hildén. Before the Commission it is

represented by one of the beneficiaries, Mr. Paavo Hilke, a headteacher

in Kuivaniemi, Finland.

      On 9 July 1949 the late Mr. Hildén was registered as the

titleholder of a piece of real property (tila) known as Franssila 1:59

in Laajalahti in the municipality of Espoo. Since his death on

11 March 1958 the real property in question has been owned by the

applicant estate, which still remains undivided. The real property has

an area of 9,177 m2 and it is unbuilt. It is situated by the sea.

      It appears that in 1958 the area in question was not subject to

any plan adopted under planning legislation. It further seems, however,

that the construction of new buildings on the land in question was not

completely unregulated even in 1958.

      On 29 January 1963 the then Municipal Council (kauppalan-

valtuusto) of Espoo, now the City Council, by virtue of section 42

subsection 2 point 3 of the Building Act (rakennuslaki) issued a

building prohibition which covered inter alia the relevant area. This

meant that the construction of a new building required not only a

building permit but also an exemption from the building prohibition in

question which could be granted under section 132 of the Building Act

if this would not cause substantial prejudice to the implementation of

planning or other regulations.

      The applicant estate did not at that time appeal against the

building prohibition which, in the final resort, may be brought before

the Supreme Administrative Court (korkein hallinto-oikeus). Nor has the

applicant estate appealed against any subsequent prolongation of the

building prohibition which appears to be still in force and must be

renewed every two years, the most recent decisions thereupon having

been made in 1991 and, apparently, in 1993.

      In 1969 the applicant estate requested the competent municipal

authority to draw up a town plan for the area in question. However, the

municipal authorities seem not to have reacted to the applicant

estate's initiative. The applicant estate has subsequently had several

contacts with the planning authorities in the municipality in an

attempt to have a town plan drawn up.

      In 1974 the joint beneficiaries of the estate negotiated with an

estate agency with a view to selling the relevant real property.

According to the statement submitted on behalf of the applicant estate,

the buyer withdrew from the deal because of the building prohibition

and because the municipal authorities were not favourable to the

granting of an exemption.

      On 12 December 1977 a sectoral regional plan (seutukaavan

vaihekaava) concerning agriculture and forestry areas, recreation areas

and protection areas in the Helsinki region was adopted. The real

property in question is covered by this plan which acts as a guideline

when, inter alia, a master plan and a town plan are drawn up and

amended.

      On 12 March 1979 the City Board (kaupunginhallitus) of Espoo

decided to include the relevant area in its planning programme. The

area has been included ever since in the planning programmes adopted

yearly by the municipal authorities.

      In 1980 a draft town plan (asemakaavaluonnos) concerning the area

in question, i.e. the area of Laajaranta, was completed. The City Board

decided that the draft should be prepared together with the partial

master plan (osayleiskaava) of the nature conservation area of

Laajalahti.

      The proposal for the town plan (asemakaavaehdotus) was kept on

public display during September 1984. Because of the objections and

comments on the proposal the preparation of the town plan was suspended

pending the completion of the general schemes of the area.

      After the applicant estate realised, towards the end of 1984,

that the town plan would not be ready, it applied for an exemption from

the building prohibition for building a two-family house despite the

lack of the town plan.

      On 30 September 1985 the Ministry of the Environment (ympäristö-

ministeriö) rejected the application under section 5 subsection 2 of

the Building Act, which concerns exemption from urban development. The

Ministry of the Environment stated inter alia that a draft town plan

for the area had been drawn up, which was linked to the partial master

plan of the nature conservation area of Laajalahti in order to ensure

functional boundaries for the nature conservation area. Further,

according to the regional plan in force, part of the real estate in

question was marked as a protected area. For these reasons, and taking

into account that the municipal authorities had opposed the granting

of an exemption, the Ministry found that there was no special cause to

grant the exemption.

      An appeal against the Ministry of the Environment's decision lay

to the Supreme Administrative Court. It appears, however, that the

applicant estate did not appeal against the Ministry's decision.

      On 27 November 1990 the applicant estate's representative before

the Commission, Mr. Hilke, complained to the Chancellor of Justice

(oikeuskansleri) about the lack of a town plan.

      By decision of 28 August 1992, the Deputy Assistant Chancellor

of Justice stated inter alia that the authorities in the municipality

of Espoo had not neglected their official duty with regard to the town

plan in Laajaranta. However, with regard to the prolonged building

prohibition the Deputy Assistant Chancellor of Justice stated inter

alia that despite the opportunity of appealing against a building

prohibition and the opportunity of applying for an exemption, a lengthy

building prohibition had a considerable effect on the landowner's

ability to build on his property or to sell the real property on

reasonable terms. He further called the City Board's attention to the

fact that a slow planning process in connection with a long and

continuous building prohibition might violate not only the principles

of good administration but also the right to peaceful enjoyment of

possessions guaranteed by Protocol No. 1 to the Convention for the

Protection of Human Rights and Fundamental Freedoms.

      In the meantime the City Board had adopted, on 13 November 1990,

a planning programme for the years 1991 - 1995, according to which a

partial master plan should be drawn up and dealt with by the City

Council before the end of 1992. The preparation of the partial master

plan had been suspended pending the Decree on the Nature Conservation

Area of Laajalahti, which was issued on 10 November 1989. According to

the latest planning programme for 1994 - 1998 the City Council now

intends to deal with the town plan in 1997.

      While the above issues of town planning were being dealt with the

Council of State (valtioneuvosto) on 19 January 1989, upon application,

granted a compulsory acquisition permit (lunastuslupa) to a limited

liability company N in respect of certain estates listed in the

decision, including Franssila 1:59. The permit was granted in order to

install a pipeline for natural gas. The property to be acquired was

specified in the permit but the less important parts of the property

were left to be specified in the subsequent proceedings. The company

was also granted an advance seizure permit.

      According to a certificate of registration of title, dated

19 August 1992, the legal confirmation of possession of the real

property in question was still confirmed as belonging to Mr. Hildén

although the authorities seem to have been aware that Mr. Hildén had

died. According to a list attached to the Council of State's above

decision, the owners of Franssila 1:59 were the late Mr. Hildén's

beneficiaries, N.H., E.H., H.H. and M.H., who had, however, all died.

Thus the list was incorrect. Subsequently, the Council of State's

decision of 19 January 1989 was served on 13 March 1989 on K.H., the

widow of N.H.

      In the compulsory acquisition proceedings following the granting

of the above permit the Compulsory Acquisition Committee

(lunastustoimikunta), on 2 October 1991, ordered the company N to pay

to the applicant estate, which was legally represented in these

proceedings, compensation of FIM 250 per m2 for restriction on use over

an area of approximately 850 m2, i.e. FIM 212,500 (FIM 1 =

approximately FF 1). The compensation for restriction on use was

estimated to be as high as the compensation for the ground itself would

have been. The total compensation for the compulsory acquisition,

including inter alia loss in value, was fixed at FIM 315,679.56 with

interest at 6% per annum.

      The applicant estate appealed to the Land Court (maaoikeus) of

Southern Finland. It requested that the pipeline be ordered placed

outside the boundaries of Franssila 1:59 because the compulsory

acquisition permit had allegedly not been legally served on the

applicant estate. It further complained about the compensation terms.

      On 31 March 1992 the Land Court refused to consider the applicant

estate's claim concerning the service of the compulsory acquisition

permit on the grounds that this claim had been introduced in the Land

Court for the first time and had not already been raised before the

Compulsory Acquisition Committee. Further, the Land Court rejected the

appeal against the compensation terms.

      On 11 March 1993 the Supreme Court (korkein oikeus) refused the

applicant estate leave to appeal.

COMPLAINTS

1.    The applicant estate complains that Article 1 of Protocol No. 1

has been violated as a result of the long duration of the building

prohibition which allegedly has reduced the value of the real property

and the applicant estate's possibility to use its possessions.

2.    The applicant estate also complains that the Council of State's

decision concerning the redemption permit was not legally served on the

owner of the property Franssila. Because of this, the joint

beneficiaries of the estate were not able to have an influence on the

site of the natural gas pipeline. The applicant estate maintains that

the site of the pipeline has further reduced the value of the real

property in question.

3.    Finally, the applicant estate complains that the city authorities

as well as the state authorities have tried by their actions to make

the real property worthless to its owners in order to force them to

sell the property to the public authorities for less than the current

market value and thus avoid the obligation to expropriate the land.

THE LAW

1.    The applicant estate complains that the protracted building

prohibition on its property violates Article 1 of Protocol No. 1

(P1-1) to the Convention, which reads:

      "Every natural or legal person is entitled to the peaceful

      enjoyment of his possessions. No one shall be deprived of

      his possessions except in the public interest and subject

      to the conditions provided for by law and by the general

      principles of international law.

      The preceding provisions shall not, however, in any way

      impair the right of a State to enforce such laws as it

      deems necessary to control the use of property in

      accordance with the general interest or to secure the

      payment of taxes or other contributions or penalties."

      The Commission notes that the building prohibitions were only

valid for two years with the possibility of renewal for periods of two

years each. The Commission further recalls that the Convention entered

into force with regard to Finland on 10 May 1990. The Convention

governs, for each Contracting Party, facts subsequent to its entry into

force with respect to that Party. In so far the decisions concerning

building prohibitions were made before this date the application is

outside the competence ratione temporis of the Commission and therefore

incompatible with the provisions of the Convention within the meaning

of Article 27 para. 2 (Art. 27-2).

      As the building prohibitions were renewed at two-year intervals,

the need to maintain them was examined regularly, in this case after

the Convention entered into force with regard to Finland in 1991 and

apparently in 1993. A decision concerning the renewal of a building

prohibition may be appealed against. The court of final resort is the

Supreme Administrative Court. The applicant estate has not, however,

appealed against any of the decisions concerning the renewal of a

building prohibition.

      The Commission further notes that exemptions from the building

prohibition could be granted where the planning procedure would not be

obstructed. These procedures provided a possibility for weighing the

public interest against that of the individual. The Commission notes

that in 1984 the applicant estate applied for an exemption, but the

request was rejected under the provision concerning urban development.

An appeal against the Ministry of the Environment's decision lay to the

Supreme Administrative Court. The applicant estate did not, however,

appeal against the Ministry of the Environment's decision.

      In these circumstances the Commission finds that, in so far as

the application is not outside the competence ratione temporis of the

Commission, the condition as to the exhaustion of domestic remedies has

not been fulfilled and this part of the application must accordingly

be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

2.    The applicant estate further complains that the Council of

State's decision of 19 January 1989 was not legally served on the

applicant estate and because of this the applicant estate did not have

influence on the site of the natural gas pipeline.

      The Commission recalls once more that the Convention entered into

force with regard to Finland on 10 May 1990. Thus the notification of

the Council of State's decision had taken place before the Convention

entered into force with regard to Finland.

      It follows that this part of the application is outside the

competence ratione temporis of the Commission and therefore

incompatible with the provisions of the Convention within the meaning

of Article 27 para. 2 (Art. 27-2).

3.    Finally, the applicant estate complains that the authorities have

tried to make the relevant real property valueless to its owners and

thus tried to force the owners to sell the property to the public

authorities.

      The Commission considers that it does not emerge from the

evidence submitted that any steps have been taken since 10 May 1990,

when the Convention entered into force with regard to Finland, with the

aim or the effect of depriving the applicant estate of its property

rights over Franssila 1:59. Nor has the Commission found any other

evidence which could lead to the conclusion that the authorities have

tried to make the property valueless. In this respect the Commission

also recalls that the applicant estate received compensation in

connection with the placement of the pipeline on its property. In these

circumstances the Commission finds that this complaint does not

disclose any appearance of a violation of the Convention or its

Protocols.

      It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber        President of the First Chamber

     (M.F. BUQUICCHIO)                       (C.L. ROZAKIS)

 

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