H. v. FINLAND
Doc ref: 18507/91 • ECHR ID: 001-45715
Document date: April 5, 1995
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EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 18507/91
H.
against
Finland
REPORT OF THE COMMISSION
(adopted on 5 April 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-20) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-15). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 16-20) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 21-87). . . . . . . . . . . . . . . . . . . . . . . . 4
A. The particular circumstances of the case
(paras. 21-49) . . . . . . . . . . . . . . . . . . . . . 4
B. Relevant domestic law and practice
(paras. 50-87) . . . . . . . . . . . . . . . . . . . . . 7
1. General provisions on the construction
and the maintenance of a private road
(paras. 50-60) . . . . . . . . . . . . . . . . . . 7
2. The proceedings before the Forestry Board
(paras. 61-62) . . . . . . . . . . . . . . . . . . 8
3. The proceedings before the Expert and Trustees
(paras. 63-75) . . . . . . . . . . . . . . . . . . 9
4. The proceedings before the Land Court
(paras. 76-85) . . . . . . . . . . . . . . . . . .12
5. Supreme Court practice
(paras. 86-87) . . . . . . . . . . . . . . . . . .14
III. OPINION OF THE COMMISSION
(paras. 88-152) . . . . . . . . . . . . . . . . . . . . . . .15
A. Complaints declared admissible
(para. 88) . . . . . . . . . . . . . . . . . . . . . . .15
B. Points at issue
(para. 89) . . . . . . . . . . . . . . . . . . . . . . .15
TABLE OF CONTENTS
Page
C. As regards Article 6 para. 1 of the Convention
(paras. 90-114). . . . . . . . . . . . . . . . . . . . .15
1. The Commission's competence ratione temporis
(paras. 99-101). . . . . . . . . . . . . . . . . .17
2. The Commission's competence ratione materiae
(paras. 102-103) . . . . . . . . . . . . . . . . .17
3. Did the applicant have access to a court ?
(paras. 104-113) . . . . . . . . . . . . . . . . .18
CONCLUSION
(para. 114). . . . . . . . . . . . . . . . . . . . . . .19
D. As regards Article 1 of Protocol No. 1
to the Convention
(paras. 115-145) . . . . . . . . . . . . . . . . . . . .19
1. The deprivation of the applicant's property
(paras. 122-134) . . . . . . . . . . . . . . . . .20
CONCLUSION
(para. 134). . . . . . . . . . . . . . . . . . . .23
2. The applicant's obligation to participate
in the road costs
(paras. 135-145) . . . . . . . . . . . . . . . . .23
CONCLUSION
(para. 145). . . . . . . . . . . . . . . . . . . .25
E. As regards Article 13 of the Convention
(paras. 146-148) . . . . . . . . . . . . . . . . . . . .25
CONCLUSION
(para. 148). . . . . . . . . . . . . . . . . . . . . . .25
F. Recapitulation
(paras. 149-152) . . . . . . . . . . . . . . . . . . . .25
DISSENTING OPINION OF MRS. J. LIDDY JOINED BY
MR. A. GÖZÜBÜYÜK AS REGARDS ARTICLE 6 PARA. 1
OF THE CONVENTION . . . . . . . . . . . . . . . . . . . . . . . . .27
APPENDIX: DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY
OF THE APPLICATION. . . . . . . . . . . . . . . . . . . . . . . . .30
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Swedish citizen, born in 1947 and resident
at Storvik, Sweden. He was represented before the Commission by
Mr. Peter Westdahl, a lawyer practising in Gothenburg, Sweden.
3. The application is directed against Finland. The respondent
Government were represented by their agent, Ambassador Tom Grönberg,
then Director-General for Legal Affairs, Ministry for Foreign Affairs,
and by their co-agent, Mr. Arto Kosonen, legal adviser of the said
Ministry.
4. The case concerns administrative and court proceedings with a
view to establishing a private road crossing over the applicant's
property. It raises issues in regard to his right of access to a court
and the justification of the interference with his property rights. The
applicant invokes Article 6 para. 1, Article 13 of the Convention as
well as Article 1 of Protocol No. 1 to the Convention.
B. The proceedings
5. The application was introduced on 22 April 1991 and registered
on 15 July 1991.
6. On 1 July 1992 the Commission (First Chamber) decided, pursuant
to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on the admissibility and merits thereof
with the exception of the complaint under Article 1 of Protocol No. 1.
7. The Government's observations were submitted on 22 October 1992
and the applicant's observations in reply on 4 January 1993.
8. On 11 January 1994 the Commission decided to invite the parties
to a hearing on the admissibility and merits of the applicant's
complaints under Article 6 para. 1 of the Convention. It further
decided to invite the respondent Government to submit written
observations on the admissibility and merits of the complaints under
Article 1 of Protocol No. 1.
9. The Government's observations on the complaints under Article 1
of Protocol No. 1 were submitted on 22 February 1994 and the
applicant's observations on 6 and 16 March 1994.
10. On 8 March 1994 the Commission granted the applicant legal aid
for the representation of his case as from and including counsel's
preparations for the hearing.
11. On 13 April 1994 the Commission decided to extend the scope of
its hearing to include the question of the admissibility and merits of
the applicant's complaints under Article 1 of Protocol No. 1.
12. At the hearing which was held on 12 May 1994 the Government were
represented by their agent, Mr. Grönberg, their co-agent, Mr. Kosonen,
as well as their expert, Mrs. Leea Vikman, land surveyor of the
District Surveying Office of Southern Savo. The applicant was
represented by his counsel, Mr. Westdahl, assisted by Mr. Roger Loo,
an engineer.
13. On 12 May 1994 the Commission declared admissible the applicant's
complaint concerning the composition of a court dealing with his case,
his access to that court as well as the fairness of the proceedings as
a whole. The Commission further declared admissible one of his
complaints relating to the interference with his property rights caused
by the construction of the road and the lack of an effective remedy in
this respect. It declared inadmissible the remainder of the
application.
14. The text of the Commission's decision on admissibility was sent
to the parties on 25 May 1994 and they were invited to submit further
observations on the merits. Such observations were submitted by the
Government on 2 July and 26 August 1994 and by the applicant on 1 July
and 8 September 1994.
15. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
16. The present Report has been drawn up by the Commission (First
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
17. The text of this Report was adopted on 5 April 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
18. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
19. The Commission's decision on the admissibility of the application
is appended to the Report.
20. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
21. The applicant is the owner of the real property Tuntskog 4:43 at
Iskmo in the municipality of Korsholm (Mustasaari) in Finland. He has
been the owner of the property as from 1959.
22. In 1979 certain property owners requested the Forestry Board
(metsälautakunta, skogsnämnden) of Ostrobotnia to draw up a plan for
the construction of a private forestry road in the area of Iskmo.
23. At a meeting organised by the Forestry Board on 3 June 1988 and
attended by certain property owners and others a road construction plan
drawn up by the Board was adopted. According to the plan, the road was
to cross over the applicant's property.
24. On the same day the Executor of the road construction project
(toimitusmies, syssloman), who had been elected at the meeting,
requested the District Surveying Office (maanmittauskonttori,
lantmäteribyrån) of Vaasa to institute proceedings (tietoimitus,
vägförrättning) with a view to approving and implementing the Forestry
Board's plan in accordance with the 1962 Act on Private Roads (laki
358/62 yksityisistä teistä, lag 358/62 om enskilda vägar, hereinafter
"the 1962 Act").
25. A further meeting with certain property owners was organised by
the Forestry Board presumably in the summer of 1988. At this meeting
the planned road was apparently extended.
26. The applicant was not summoned to the above meetings and did not
attend any of them, as he was allegedly unaware of them. According to
him, only some 10 to 15 persons were heard by the Forestry Board,
whereas the total number of property owners to be affected by the road
amounted to approximately 120.
27. After its plan had been adopted the Forestry Board, in the summer
of 1988, had certain logging carried out on the applicant's property
in order to stake out the intended location of the road.
28. On 18 October 1988 the Head of the District Surveying Office
appointed M.P. Expert (toimitusinsinööri, förrättningsingenjör) to
conduct the proceedings under the 1962 Act.
29. On 15 November 1989 the Environmental Office (ympäristötoimisto,
miljövårdsbyrån) of the County Administrative Board (lääninhallitus,
länsstyrelsen) of Vaasa favoured the Forestry Board's plan.
30. On 16 May 1990 T.K., Head of the District Surveying Office, took
over the Expert's duties.
31. On 30 May 1990 the Expert summoned the applicant to a hearing of
property owners on 27 June 1990 by way of a registered letter sent to
Sweden to the address of his father at which the applicant had lived
until 1983.
32. According to the applicant, the letter was never received by him,
as his father, born in 1900, was in bad health and therefore unable to
take care of the correspondence addressed to the applicant.
33. According to a list drawn up by the Forestry Board on
19 June 1990, the total area of the properties to be affected by the
road amounted to 1.312,50 hectares. The size of the applicant's
property was 4,1 hectares, corresponding to 0,31 per cent of the total
area. The total cost of the road construction was estimated at
1.695.000 FIM. The applicant's share was proposed to amount to
5.933 FIM, corresponding to 0,35 per cent of the total cost. The
applicant's address at the time was indicated in the list.
34. On 27 June 1990 the hearing was held before the Expert, assisted
by two Trustees (uskottu mies, gode man). The applicant did not attend
the hearing, as he was allegedly unaware of it. At the hearing it was
decided to approve the plan drawn up by the Forestry Board. This
entailed, inter alia, the approval of the proposed location of the road
except for certain points not relevant for the present case, the
approval of the cost estimation, the establishment of rights of way
(tieoikeudet, vägrätter) encumbering certain properties and favouring
others, the approval of the so-called road units (tieosuus, vägenhet)
indicating the relative distribution of the road costs between its
owners and the founding of an association of road owners (tiekunta,
väglag). It was further decided that no property owner should receive
compensation, as the benefit of the road was considered to compensate
the interference with the owners' rights. The decision was given in
writing on the same day.
35. On 30 August 1990 the applicant and certain others, including
his father, signed a submission in support of an appeal to the Land
Court (maaoikeus, jorddomstolen) of Vaasa dated 23 July 1990 and lodged
on 26 July 1990. In this appeal it had been requested that only part
of the Forestry Board's plan be confirmed by the Land Court and that
part of it be replaced by already existing roads. This alternative
solution would allegedly have lowered the cost of the road project from
approximately 1,7 million FIM to 0,8 million FIM and required
significantly less interference with the natural habitat.
36. The submission signed by the applicant and others read as
follows:
(translation from Swedish)
"Further support for the appeal concerning the Iskmo
forestry road ... of 23 July 1990:
We undersigned parties to the case in our capacity of
owners of forest properties fully support the above-
mentioned appeal.
As we have received complete information about the project
only after the expiry of the time-limit for appealing,
these submissions are actually belated, but we hope that
the Land Court will understand that we are also entitled to
express our opinion. ..."
37. On 21 August 1990 the applicant's father and certain others,
excluding the applicant, had authorised, among others, two of the
signatories of the appeal of 23 July 1990 to act on their behalf in the
proceedings before the Land Court.
38. Notification of the Land Court's hearing on 16 October 1990 was
given by an announcement placed on the notice board of the Municipal
Hall of Korsholm (Mustasaari) on 18 September 1990. It was also
announced in Swedish in the local newspaper "Vasabladet" on
29 September 1990. The applicant was not individually summoned to, and
did not attend, this hearing.
39. On 16 October 1990 the Land Court heard, among others, one of the
signatories of the appeal of 23 July 1990, who also presented the
supporting submission of 30 August 1990 as a representative of its
signatories with the exception of the applicant. The Land Court then
decided to hold a further hearing on 24 October 1990 in connection with
which it would carry out an inspection of the area (katselmus, syn).
The applicant was not individually summoned to this hearing either, nor
did he attend it.
40. At it second hearing the Land Court heard certain appellants as
well as fourteen property owners none of whom were appellants but who
had intervened in the proceedings in accordance with section 322,
subsection 1 of the 1951 Partition Act (jakolaki 604/51, lag 604/51 om
skifte, hereinafter "the 1951 Act"). It further heard the now three
Executors as well as the Expert and two representatives of the Forestry
Board.
41. In its judgment the Land Court dismissed the appeal of
23 July 1990 without examining it on its merits as far it had been
lodged or supported by, among others, the applicant. The Land Court
considered that he had not been properly represented. The Land Court
furthermore examined and rejected the appeal as far as it had been
lodged by a number of other persons. It found that the road would not
create any significant inconvenience for the property owners and that
there were no weighty reasons for changing the proposed location.
Regard was had to the opinion by the Environmental Office of the County
Administrative Board. The Land Court further noted that none of the
appellants had questioned the need for a road to the area.
42. The Land Court was presided by a judge and further consisted of
four members, namely the Head of the County Surveying Office
(lääninmaanmittausinsinööri, länslantmäteriingenjören), a Land Court
Surveyor (maaoikeusinsinööri, jordrättsingenjör) and two lay judges.
43. On 25 March 1991 the Supreme Court (korkein oikeus, högsta
domstolen) refused the applicant leave to appeal.
44. In a letter of 9 January 1992 addressed to the Forestry Board the
applicant requested, pursuant to section 28, subsection 2 of the 1962
Act, to be excluded from the association of road owners and exempted
from his obligation to participate in the road maintenance costs.
45. In a letter of 16 January 1992 the Forestry Board informed the
applicant that a road agreement (tiesopimus, vägavtal) had been signed
by all affected by the road except for the applicant and one further
property owner (the applicant in Application No. 18595/91). The Board
recalled that the proceedings before the Expert and Trustees had
determined the location and width of the road as well as the relative
financial responsibility of each party. As all relevant decisions had
acquired legal force, the plan, including its financial implications,
could no longer be amended. Accordingly, the Board had no competence
to amend the applicant's share of the road costs.
46. On 16 January 1992 the applicant authorised one of the Executors
to sign the road agreement on his behalf, although reserving his
position stated in his application to the Commission. The acceptance
of the agreement qualified the applicant for a State subsidy and low-
interest loan related to his share of the road costs.
47. On 30 March 1992 the Supreme Court rejected the applicant's
request for an annulment of the Land Court's judgment.
48. The road construction works commenced in the summer of 1991.
49. On 1 October 1991 the Forestry Board adopted a forestry
improvement plan pertaining to the road. On 21 January 1992 it decided
to grant the applicant a State forestry improvement subsidy
(metsän-parannusvarat, skogsförbättringsunderstöd) in the amount of
1.186 FIM and a low-interest forestry improvement loan by the State
(metsän-parannuslaina, skogsförbättringslån) in the amount of
4.747 FIM, the sums equalling his share of the road construction costs.
It further disregarded the applicant's reservations to his authority
of 16 January 1992.
B. Relevant domestic law and practice
1. General provisions on the construction and the
maintenance of a private road
50. A road shall be constructed so as to achieve the purpose of the
road in an optimal manner while at the same time not causing more than
necessary damage or harm to anyone. A road shall not be constructed,
if it cannot be regarded as necessary, having regard to the use of
existing private and public roads and other important general
considerations. The above considerations shall also apply to other
measures taken in connection with a road construction (section 7,
subsections 1 to 3 of the 1962 Act, as amended by Act no. 521/75).
51. If the proper use of a property requires that a road be
established over a property owned by someone else and provided this
does not cause significant harm to the last-mentioned property, an area
of that property shall be given up for road purposes. The area is to
be determined in proceedings before an Expert and Trustees. Such a
permanent right of usufruct relating to an area forming part of another
property is called a right of way (section 8, subsection 1).
52. If the proper use of a property requires it to be served by an
already existing road in respect of which a right of way has not yet
been granted to the property, such a right shall be granted provided
this does not cause significant harm to the property on which the road
is located or to other holders of a right of way. Such a right of way
shall be granted in proceedings before an Expert and Trustees or by
decision of the municipal Road Board (tielautakunta, vägnämnd) or the
association of joint road owners (section 9).
53. Anyone who has been given permission to use a road or whose
property is located either partly or completely within the area which
the road must be considered to serve shall participate in the
construction and maintenance costs for the road (section 22,
subsection 1).
54. If a significant number of those who would be obliged to
participate in the costs for the maintenance of the road oppose its
construction and provided the road would clearly serve only a minor
purpose for several properties, it may be decided to construct the road
only at the expense of those who wish to have it constructed
(section 22, subsection 2).
55. If the road to be constructed would only serve a property to a
limited extent, due to, for instance, another already existing road
serving the property, the owner shall be exempted from participating
in the costs for the new road provided he states that he will abstain
from using it (section 22, subsection 3).
56. The financial responsibility for the road shall be distributed
between the participants in the road construction according to their
individual benefit from the road. In this assessment regard should be
had to, among other things, the size of the properties and to what
extent the road will be used by each participant (section 23,
subsection 1).
57. The proposed location of the road shall, as far as necessary,
also be marked in the terrain pursuant to the 1962 Ordinance on Private
Roads (asetus 690/62 yksityisistä teistä, förordning 690/62 om enskilda
vägar) (section 48, subsection 2 of the 1962 Act, as amended by Act
no. 521/75).
58. A road owner may request to be excluded from the association of
road owners and exempted from his obligation to participate in the road
maintenance costs if the road is no longer needed by the property at
issue (section 28, subsection 2 of the 1962 Act).
59. If the circumstances affecting his obligation to participate in
the maintenance of the road or his share of the maintenance costs have
considerably changed, the relative distribution of those costs between
the road owners shall be revised on request. Regardless of such
circumstances he may request a revision of the cost responsibility if
it has remained unchanged during at least five years (section 29).
60. The above requests shall be examined at the general meeting of
the association of road owners (section 64, subsection 2, para. 2). The
decision of the meeting can be appealed to the Road Board (section 70,
subsection 1). The decision of the Road Board may be appealed to the
Land Court (section 55, as amended by Act no. 521/75). Leave to appeal
to the Supreme Court may subsequently be requested (section 333,
subsection 2 of the 1951 Act, as amended by Act no. 509/84).
2. The proceedings before the Forestry Board
61. The Forestry Board is a public body governed by the 1987 Act on
the Central Forestry Boards and Forestry Boards (laki 139/87 keskus-
metsälautakunnista ja metsälautakunnista, lag 139/87 om centralskogs-
nämnder och skogsnämnder) and, as from 1 March 1991, by the 1991 Act
on Forestry Centres and Forestry Boards (laki 265/91 metsäkeskuksista
ja metsälautakunnista, lag 265/91 om skogscentraler och skogsnämnder).
62. Under both Acts the members of the Forestry Boards shall be
appointed by the Ministry of Agriculture and Forestry. The meetings
held at the initial stage of the proceedings with a view to outlining
a road construction plan are governed by the 1987 Forest Improvement
3. The proceedings before the Expert and Trustees
63. Proceedings for the execution of a road construction plan may be
instituted by the property owner or municipality concerned or by the
relevant association of road owners (section 39, subsection 1 of the
1962 Act, as amended by Act no. 498/82, and subsection 4, as amended
by Act no. 521/75). Others who have been allowed to use a road for
economic purposes as well as possessors of rights of usufruct may
express their opinions during the proceedings (section 39,
subsection 2).
64. The proceedings are conducted by an Expert assisted by two
Trustees (section 43, subsection 1 of the 1951 Act, as amended by Act
no. 321/72). The Expert is normally an official of the District
Surveying Office, either the Head of the Office or another land
surveyor appointed by him.
65. The Trustees are appointed by the Expert from a list of at least
six persons adopted by the relevant Municipal Council (kunnanvaltuusto,
kommunfullmäktige) for a period of four years (section 43, subsection
1 of the 1951 Act, as amended by Act no. 321/72, and section 44, as
partly amended by Act no. 321/72). Instead of appointing the Trustees
the Expert may choose to be assisted by two members of the Road Board
(section 40, subsection 1 of the 1962 Act, as amended by 322/72). The
Trustees shall be acquainted with property matters and fulfil the
conditions of lay judges sitting on District Courts (kihlakunnanoikeus,
häradsrätt; section 45, subsection 1 of the 1951 Act, as in force at
the relevant time). There is no requirement that the Expert or any of
the Trustees should be a lawyer.
66. The request for proceedings to be instituted before the Expert
and Trustees shall, as far as possible, contain a list of all those
affected by the proceedings as well as a sufficiently detailed map
showing the location of the road. The request shall further contain the
addresses of those applying for proceedings to be instituted and, as
far as possible, the addresses of all those affected by the proceedings
(section 41, subsection 2 of the 1962 Act, as amended by Act
no. 521/75).
67. If the Expert is of one opinion and the Trustees jointly of
another, the Trustees' opinion shall prevail. If all three disagree,
the Expert's opinion shall prevail (section 49 of the 1951 Act).
68. If the proceedings concern a forestry road, the Expert shall
inform the Central Forestry Board which shall, if necessary, appoint
an expert to represent the Board in the proceedings (section 42,
subsection 1 of the 1962 Act, as amended by Act no. 521/75).
69. Section 43, subsections 1, 2, 6 and 7 of the 1962 Act, as amended
by Act no. 521/75, read, as far as relevant, as follows:
(Finnish)
"Toimitusinsinöörin on kutsuttava asianosaiset
tietoimitukseen tiedottamalla kokouksen ajasta ja paikasta
kuulutuksella kunnan ilmoitustaululla vähintään neljätoista
päivää ennen kokousta.
Tietoimituksesta on lisäksi kuulutettava yhdessä tai
kahdessa paikkakunnalla leviävässä sanomalehdessä vähintään
neljätoista päivää ennen kokousta sekä ilmoitettava
kutsukirjeellä ... sellaiselle toisesta kunnasta olevalle
asianosaiselle, jonka osoite on asiakirjoissa mainittu tai
muutoin toimitusinsinöörin tiedossa. ...
...
Tässä pykälässä tarkoitettu kutsukirje on vähintään
neljätoista päivää ennen kokousta kirjattuna annettava
postin kuljetettavaksi. ...
Jos kaikki asianosaiset ovat saapuneet toimitukseen tai
saaneet vähintään neljätoista päivää ennen sen alkamista
toimitusinsinööriltä todistettavasti kehotuksen saapua
siihen, voidaan toimitus suorittaa vaikka kokouksesta ei
ole tässä pykälässä säädetyllä tavalla kuulutettu ja
ilmoitettu."
(Swedish)
"Förrättningsingenjören skall kalla sakägarna till
vägförrättning genom att tillkännagiva tiden och platsen
för sammanträdet medels kungörelse på kommunens
anslagstavla minst fjorton dagar före sammanträdets början.
Vägförrättning skall dessutom kungöras i en eller två på
orten spridda tidningar minst fjorton dagar före
sammanträdets början samt genom kallelsebrev meddelas ...
sådan sakägare från annan kommun, vars adress är nämnd i
handlingarna eller eljest är av förrättningsingenjören
känd. ...
...
I denna paragraf avsett kallelsebrev skall minst fjorton
dagar före sammanträdet såsom rekommenderat inlämnas till
posten för befordran. ...
Ha alla de som äro sakägare vid förrättning kommit
tillstädes eller minst fjorton dagar före förrättningens
början bevisligen av förrättningsingenjören erhållit
uppmaning att infinna sig, kan förrättningen verkställas
även om sammanträdet icke blivit kungjort och delgivet på
sätt i denna paragraf är stadgat."
(English)
"The parties to the proceedings shall be summoned by the Expert
at least fourteen days in advance by means of a public notice on
the municipal notice board indicating the hour and venue of the
hearing.
Notification of the proceedings shall further be given in
one or two local newspapers. ... [A] party [to the
proceedings] resident in another municipality and whose
address is indicated in the documents or otherwise known to
the Expert shall be summoned by mail. ...
...
[Such a] summons shall be handed over to the postal service
at least fourteen days prior to the day of the hearing with
a view to being sent as a registered letter. ...
The hearing before the Expert may be held despite a failure
to comply with the requirements concerning the public
notification and summoning, on the condition that all
parties attend the hearing or, if a party does not attend
the hearing, provided there is evidence that he has
received an invitation to the hearing from the Expert at
least fourteen days in advance."
70. Section 45, subsection 2 of the 1962 Act, as amended by Act no.
521/75, reads, as far as relevant, as follows:
(Finnish)
"Jollei kaikille niille, joille tietoimituksesta on
lähetettävä kutsukirje sen mukaan kuin 43 §:ssä on
säädetty, ole sitä tomitettu, eivätkä he ole saapuneet
toimitukseen, on toimitus ... siirrettävä ja sellainen
kutsu toimitettava. ..."
(Swedish)
"Har ej kallelsebrev om förrättning tillställts alla dem
som enligt vad i 43 § är stadgat skall tillsändas sådant
och ha dessa icke kommit tillstädes, skall förrättningen
uppskjutas ... och sådan kallelse utgå. ..."
(English)
"If all parties indicated in section 43 have not been
summoned to the hearing and provided these do not attend
the hearing nevertheless, the proceedings shall be
suspended ... and a summons be sent in accordance with
section 43. ..."
71. At the hearing the Expert and Trustees shall decide, among other
matters,
- whether a road serving a certain property may be
constructed over another property and whether a right of
way to an already existing road shall be granted;
- the location and width of the road;
- those financially responsible for the construction and
maintenance of the road;
- how this responsibility is to be distributed between the
participants; and
- whether compensation shall be granted, to whom, in what
amount and whether the compensation shall be paid by all or
only some of the participants (section 48, subsection 1 of
the 1962 Act).
72. If a decision has been made to construct a road, a map and a road
description and, if necessary, a cost estimation shall be drawn up.
The location of the road shall further be marked in the terrain
(section 48, subsection 2, as amended by Act no. 521/75).
73. If the parties have reached an agreement on questions regarding
the right of way as well as its maintenance, the Expert and Trustees
shall consider whether that agreement or part of it can be confirmed
(section 49, subsection 1). If the agreement is contrary to the
requirements in section 7, subsections 2 and 3, or would clearly
encumber a property significantly more than allowed by the Act, these
parts of the agreement shall not be confirmed (section 49,
subsection 2, as amended by Act no. 521/75).
74. Section 49, subsection 3 of the 1962 Act was repealed by Act
no. 217/95 which entered into force on 1 March 1995. As amended by Act
no. 521/75 it read, as far as relevant, as follows:
(Finnish)
"Milloin tietoimitus koskee ... metsätietä, jota varten on
asianmukaisessa järjestyksessä hyväksytty valtion varoilla
laadittu suunnitelma, älköön suunnitelman mukaista tien
asemaa muutettako, jollei siihen ole painavia syitä. ..."
(Swedish)
"Avser förrättning ... skogsväg, för vilken med statsmedel
utarbetad plan i vederbörlig ordning godkänts, får vägens
planenliga läge ej ändras, såframt icke vägande skäl
därtill föreligga. ..."
(English)
"If the administrative proceedings concern a ... forestry
road planned with State funds and provided the road
construction plan has been properly approved, the location
of the road shall not be altered unless there are weighty
reasons therefor. ..."
75. The notice of appeal against decisions made by the Expert and
Trustees shall be read out to the parties attending the proceedings,
handed over to a representative of theirs as well as to any party on
request (section 51, subsection 3 of the 1962 Act and section 316 of
the 1951 Act). The appeal shall be lodged within thirty days from the
date when the proceedings were announced to be terminated or the
decision was given. The notice of appeal or a copy thereof shall be
appended to the appeal (sections 313 and 314 of the 1951 Act, the
last-mentioned as amended by Act no. 509/84).
4. The proceedings before the Land Court
76. Up to the entry into force of Act no. 506/91 on 1 September 1991
amending the 1951 Act the Land Court was presided by a professional
judge and further consisted of the Head of the County Surveying Office
ex officio, a Land Court Surveyor and two lay judges appointed by the
President of the Land Court (section 293, subsection 1, as amended by
Act no. 263/79 and section 294, subsection 3, as amended by 267/78).
77. The President of the Land Court and the Land Court Surveyor are
both permanently appointed (subsection 294, subsection 1 of the 1951
Act, as amended by Act no. 638/87, and sections 88 and 89 of the 1919
Constitution Act (Suomen hallitusmuoto 94/19, Regeringsform för Finland
94/19) as amended by Act no. 637/87). The two lay judges are appointed
by the President of the Land Court for a particular case from a list
of at least four persons drawn up by the relevant Municipal Council for
a period of four years (section 294, subsection 3 of the 1951 Act, as
amended by Act no. 267/78).
78. If the Head of the County Surveying Office was prevented from
performing the tasks incumbent on him as a member of the Land Court,
he was to be replaced by a substitute in the Office assigned to take
over such duties. If an urgent duty in office or other particular
grounds so required, the Head of the County Surveying Office or his
substitute on the Land Court could appoint another land surveyor of the
County or District Surveying Office to take over the duties as a member
of the Land Court (section 295, as amended by Act no. 321/72).
79. All members of the Land Court shall have sworn a judicial oath
before taking up their duties (section 298, as amended by Act no.
321/72). The rules governing disqualification of a member of a Land
Court in a particular case are the same as those applicable to other
professional and lay judges (section 299, subsection 1, as amended by
Act no. 321/72, and chapter 13, section 1 of the Code on Judicial
Procedure (Oikeudenkäymiskaari, Rättegångsbalk)). However, as long as
the Head of the County Surveying Office sat on the Land Court he was
not considered biased for having performed tasks incumbent on the
Office in relation to the administrative proceedings in a particular
case (section 299, subsection 2 of the 1951 Act, repealed by Act
no. 506/91).
80. As from 1 September 1991, when an overall restructuring of the
county surveying administration entered into force, the Land Court
consists of only four members, the Head of the County Surveying Office
no longer sitting on the Court (section 293, subsection 1, as amended
by Act no. 506/91).
81. In the Government Bill to Parliament proposing the
above-mentioned 1991 amendments to the 1951 Act it was stated that the
Land Court should be an impartial and independent tribunal and that the
participation of the Head of the County Surveying Office on that court
"constituted an exception from the general practice" (Bill No. 199/90,
p. 3). Following the amendments the members of the Land Court would be
"totally independent from the county surveying authority responsible
for the administrative proceedings" (ibid., p. 9).
82. The notification of a hearing before the Land Court shall be
placed on the municipal notice board and appear in one or two local
newspapers at least fourteen days before the hearing. Appellants whose
addresses are known to the Court should further be summoned in writing
at least fourteen days beforehand (section 320 of the 1951 Act, as
amended by Act no. 321/72).
83. The Expert shall attend the Land Court's hearing in order to
reply to its questions regarding the administrative proceedings
conducted by him. He shall further be heard in regard to the
submissions made by the parties. The Expert's absence shall, however,
not prevent the Land Court from examining and deciding the case
(section 324, as amended by Act 321/72). If considered necessary, the
Land Court may invite other experts to submit information at its
hearing (section 300, as amended by Act no. 321/72).
84. If a matter has been brought before the Land Court by way of an
appeal, a party who is not an appellant shall nevertheless be allowed
to present claims before the court on the ground that the matter also
affects his rights (section 322, subsection 1, as amended by Act
no. 321/72).
85. Subject to its territorial competence the County Surveying Office
keeps a register of the private roads for which an association of joint
road owners has been established. The register contains, for instance,
the name and address of the Executor. Part of the information shall be
sent to, among other authorities, the Road Board for information
(section 51a of the 1962 Act, as amended by Act no. 521/75).
5. Supreme Court practice
86. In a case decided by the Supreme Court (No. 1983 II 169) a Land
Court's judgment was quashed on the ground that a party to proceedings
under the 1962 Act who had appealed to the Land Court had not been
summoned to attend its hearing, even though his address had been known
to the Court and despite the fact that his representative had been
summoned.
87. In another case (No. 1983 I 2) a party to similar proceedings had
appealed to the Land Court but without appending a notice of appeal or
a copy thereof to his appeal. The President of the Land Court had
declined to present the appeal to the full court. The Supreme Court
quashed the President's decision, considering that the omission of a
notice of appeal should not immediately result in the appellant's lack
of legal standing, but that the appellant should be given an
opportunity to supplement his appeal by submitting the notice within
a certain time-limit. The Supreme Court considered that the notice
could also be obtained ex officio by the President.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
88. The Commission has declared admissible:
- the applicant's complaint concerning the presence of the Head
of the County Surveying Office on the Land Court, the applicant's
access to the Land Court as well as the fairness of the proceedings;
and
- his complaint concerning the allegedly unjustified interference
with his property rights as caused by the construction of the road,
excluding the logging on his property as carried out by the Forestry
Board in 1988, and the lack of an effective remedy.
B. Points at issue
89. The issues to be determined are:
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention and/or Article 13 (Art. 13); and
- whether there has been a violation of Article 1 of Protocol
No. 1 (P1-1) to the Convention and/or Article 13 (Art. 13) of the
Convention.
C. As regards Article 6 para. 1 (Art. 6-1) of the Convention
90. In so far as it is relevant Article 6 para. 1 (Art. 6-1) of the
Convention reads as follows:
"In the determination of his civil rights ..., everyone is
entitled to a fair ... hearing ... by an ... impartial
tribunal established by law. ..."
91. The applicant complains that the Land Court was partial, one of
its members being the Head of the County Surveying Office and thereby
a superior of the Expert. The proceedings were, moreover, unfair in
several respects. To begin with, he was not summoned to any of the
hearings before the Forestry Board, the Expert and Trustees or the Land
Court, although his present address was known to the authorities. In
particular, the Government have not shown that he received a summons
to the hearing before the Expert and Trustees. Even if his address had
been unknown it could easily have been obtained by the authorities.
92. The applicant allegedly joined the appeal of 23 July 1990 as soon
as he had been informed about the outcome of the proceedings before the
Expert and Trustees and despite the fact that no notice of appeal had
been served on him. His knowledge about the road construction plan and
the outcome of those proceedings was consequently very limited. By
considering, however, that he had not been properly represented, the
Land Court wrongly dismissed the appeal as far as joined by him. In the
light of the fairness requirement in Article 6 para. 1 (Art. 6-1) and
certain judgments of the Supreme Court (referred to above under
"Relevant domestic law and practice") the Land Court should instead
have given him an opportunity to correct any procedural deficiency in
his submissions. In any case, given that he had not been summoned to
the Land Court's hearings, he could not have been granted legal
standing before it even if he had ensured his representation.
93. The Government contend that Article 6 para. 1 (Art. 6-1) has not
been violated. In their submissions at the hearing before the
Commission they stated that the applicant had been summoned to the
proceedings before the Forestry Board by a letter sent to his father
living at the applicant's former address in Sweden. In their subsequent
further observations on the merits, however, the Government submit that
the applicant was not summoned by a letter, but only by an announcement
in a local newspaper, given the significant number of parties to the
proceedings.
94. The Government emphasise that in the proceedings before the
Forestry Board the applicant had no right under domestic law to be
heard. In any case, the proceedings before the Forestry Board fall
outside the Commission's competence ratione temporis and materiae,
given that they took place prior to the entry into force of the
Convention with regard to the respondent State and since they did not
determine any civil rights or obligations of the applicant.
95. As for the proceedings before the Expert and Trustees, the
Government contend that the applicant was notified of the date of the
hearing by a registered letter sent to the address available to the
Expert. They furthermore maintain that the letter was collected at the
competent post office. In addition, the hearing before the Expert and
Trustees was announced in a local newspaper and on the municipal notice
board.
96. The Government admit that no notice of appeal was served on the
applicant following the proceedings before the Expert and Trustees, but
maintain that he nevertheless had an opportunity to appeal, since he
became aware of the outcome of those proceedings before an appeal would
have become time-barred. The Government consider this to be shown by
the fact that the applicant signed the joint appeal which was, however,
not submitted as an appeal within that time-limit. As he did not lodge
any formal appeal, he was not summoned to the Land Court's hearing on
16 October 1990. The submission to the Land Court signed by the
applicant on 30 August 1990 and relating to the appeal of 23 July 1990
did not have the effect of making him a party to the proceedings as an
appellant. The Government emphasise, however, that all those who were
interested in the matter before the Land Court had the right to appear
before it.
97. The Government furthermore submit that the judgments of the
Supreme Court cited by the applicant are irrelevant, since they could
not, at the time when the Land Court considered his case, be
interpreted so as to oblige it to provide an appellant with an
opportunity to correct any deficiency in his or her submissions. The
1950 Act was amended in 1992 and 1993 so as to expressly include such
a duty. The Government admit, however, that according to general legal
rules, an appellant should be informed of any shortcoming in his or her
appeal and be invited to supplement it.
98. Summing up, the Government consider that the applicant was not
placed at a substantial disadvantage in the proceedings as a whole.
1. The Commission's competence ratione temporis
99. The Commission recalls that, in accordance with the generally
recognised rules of international law, the Convention only governs, for
each Contracting Party, facts subsequent to the entry into force of the
Convention with regard to that Party. Where a court decision has been
made subsequent to the entry into force of the Convention in the
respondent State, the Commission is competent to examine the
proceedings leading up to that decision, as the proceedings before a
court are embodied in its final decision which thus incorporates any
defect by which they may have been affected (see, e.g., No. 11306/84,
Dec. 16.10.86, D.R. 50 p. 162).
100. In the present case the Commission will limit its examination to
whether the facts occurring after 10 May 1990, the date when the
Convention entered into force with regard to Finland, disclosed a
breach of Article 6 para. 1 (Art. 6-1) of the Convention. Events prior
to 10 May 1990 will be taken into account merely as a background to the
issues before the Commission (cf. Eur. Court H.R., Hokkanen v. Finland
judgment of 23 September 1994, para. 53, to be published in Series A
no. 299-A).
101. The Commission observes that the applicant's case was decided by
a court in October 1990, that is after the entry into force of the
Convention and after the matter had been dealt with by the Forestry
Board and the Expert and Trustees, the proceedings before the last-
mentioned body having ended after 10 May 1990. The Commission therefore
considers itself competent ratione temporis to take into account the
proceedings before both those bodies as a background in determining
whether Article 6 para. 1 (Art. 6-1) has been complied with.
2. The Commission's competence ratione materiae
102. The Commission notes that, in so far as the complaint concerns
the proceedings before the Land Court, the parties agree that the
applicant's "civil rights" were determined. The Commission finds,
however, that in dismissing, for procedural reasons, the applicant's
submissions of August 1990 the Land Court did not determine any civil
rights within the meaning of Article 6 para. 1 (Art. 6-1) (cf. No.
6916/75, Dec. 8.10.76, D.R. 6 p. 107). The same is true in regard to
decision of the Supreme Court to refuse him leave to appeal, as such
an examination does not amount to an examination of the merits of the
appeal (No. 19823/92, Dec. 9.2.93, not published).
103. The question arising under Article 6 para. 1 (Art. 6-1) is,
however, as indicated by the Commission in its decision on the
admissibility of the application, whether the Land Court's dismissal
of the applicant's submissions amounted to a denial of his right of
access to that court for the purpose of challenging the outcome of the
proceedings before the Expert and Trustees. The Commission finds that
the Land Court's judgment on his appeal would undoubtedly have
concerned his property rights, these being "civil rights" within the
meaning of Article 6 para. 1 (Art. 6-1) (cf. the above-mentioned
No. 6916/75, loc.cit. and, as regards the "civil" character of property
rights, e.g., Eur. Court H.R., Zander v. Sweden judgment of 25 November
1993, Series A no. 279-B, p. 40, para. 27). Accordingly, Article 6
para. 1 (Art. 6-1) is applicable for the purposes of examining whether
the applicant had access to a court in order to challenge the outcome
of the proceedings before the Expert and Trustees.
3. Did the applicant have access to a court ?
104. The Commission reiterates that Article 6 para. 1 (Art. 6-1) of
the Convention first secures to everyone the right to have any claim
relating to his or her civil rights brought before a "tribunal", as the
fair, public and expeditious character of judicial proceedings are of
no value at all in the absence of such proceedings (cf. e.g., Eur.
Court H.R., Golder judgment of 21 February 1975, Series A no. 18,
pp. 17-18, paras. 35-36 and Eur. Court H.R., Ashingdane judgment of
28 May 1985, Series A no. 93, pp. 24-25, para. 57). The Convention is
intended to guarantee rights which are not theoretical and illusory but
practical and effective. This is particularly true in regard to the
right of access to a "tribunal", having regard to the prominent place
held in a democratic society by the right to a fair trial (cf., e.g.,
Eur. Court H.R., Airey judgment of 9 October 1979, Series A no. 32,
pp. 12-13, para. 24). The right of access therefore implies that the
person concerned has a clear, practical and effective opportunity to
challenge an administrative act with a direct impact on a civil right
of his (cf., Eur. Court H.R., de Geouffre de la Pradelle v. France
judgment of 16 December 1992, Series A no. 253-B, p. 41, para. 28 and
p. 43, paras. 34-35).
105. The Commission further recalls that fulfilment of the State's
duty to provide effective access to a "tribunal" may occasionally
necessitate positive action on the part of the State, as represented
by its authorities (cf. the above-mentioned Airey judgment, loc.cit.,
p. 14, para. 25). However, in, for instance, a criminal case where the
applicant had failed to ensure receipt of his mail, although he must
have foreseen that proceedings would be brought against him, the
authorities could not be held responsible for barring his access
to a court (Eur. Court H.R., Hennings v. Germany judgment of
16 December 1992, Series A no. 251-A, pp. 11-12, paras. 26-27).
106. In the present case the question to be examined is whether the
applicant had a clear, practical and effective opportunity of
challenging, before the Land Court, the outcome of the proceedings
before the Expert and Trustees.
107. It is disputed whether the petition signed by the applicant in
August 1990 in support of the appeal lodged on 23 July 1990 equally
constituted an appeal. The Government argue in the negative, stating
that the reason why the applicant was not summoned to the Land Court's
first hearing was the finding of its President that the applicant had
not lodged any formal appeal.
108. The Commission observes that the outcome of the proceedings
before the Expert and Trustees could, in principle, be appealed against
within thirty days from 27 June 1990, when the proceedings were
announced to be terminated and the decision was given. On the basis of
the file it cannot find it established that the applicant joined the
appeal of 23 July 1990 prior to the expiry of that time-limit or that
he otherwise received knowledge of the outcome of the proceedings
before the Expert and Trustees within the prescribed thirty days from
their decision.
109. The Commission observes, however, that the applicant, on
30 August 1990, signed a submission in support of the appeal of
23 July 1990. The co-signatories of the submission of 30 August 1990,
including the applicant's father, had, on 21 August 1990, authorised
certain appellants to represent them in the proceedings before the Land
Court. At its hearing on 16 October 1990 these co-signatories were
represented by one of the appellants authorised to appear on their
behalf and were therefore accepted by the Land Court as parties.
110. The Commission, moreover, observes that according to section 322
of the 1951 Act a party who is not an appellant shall be allowed to
present claims before the court on the ground that the matter in which
an appeal has been lodged also affects his rights. Bearing this in
mind, the Commission cannot subscribe to the applicant's assertion that
his individual summoning was a prerequisite for his enjoyment of legal
standing as a party before the Land Court and that, accordingly, the
question of his representation was irrelevant.
111. The Commission notes that the applicant's submission of
30 August 1990 was presented only at the Land Court's hearing on
16 October 1990. On the first-mentioned date he was thus already aware
of the appeal pending before that court. He was therefore in no way
prevented from informing himself of the date of its hearing and also
had ample time to ensure his representation (cf., mutatis mutandis, the
above-mentioned Hennings v. Germany judgment, loc. cit., paras. 26-27).
112. The Commission concludes that, had the applicant, as the
co-signatories of the submission of 30 August 1990, ensured his
representation before the Land Court, he could effectively have availed
himself of his right of access to a court. Consequently, the Land
Court's dismissal of the applicant's submission of 30 August 1990 for
his failure to ensure such representation was imputable to himself. It
follows that Article 6 para. 1 (Art. 6-1) has not been violated in this
respect.
113. The Commission has found above that the Land Court and the
Supreme Court did not determine the applicant's civil rights within the
meaning of Article 6 para. 1 (Art. 6-1). The Commission need not
therefore examine whether the Land Court complied with the requirements
of a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) as
to its independence and impartiality and, in the affirmative, whether
the applicant was denied a fair hearing of his case.
CONCLUSION
114. The Commission concludes, by 7 votes to 2, that in the present
case there has been no violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
D. As regards Article 1 of Protocol No. 1 (P1-1) to the Convention
115. Article 1 of Protocol No. 1 (P1-1) 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."
116. The Commission recalls that in its decision on the admissibility
of the application it found that in so far as the present complaint
concerned the logging on the applicant's property carried out by the
Forestry Board in 1988 it was incompatible ratione temporis with the
provisions of the Convention within the meaning of Article 27 para. 2
(Art. 27-2) and therefore inadmissible.
117. The applicant has also complained that the other interference
with his property rights resulting from the construction of the road
interfered in an unjustified manner with his property rights. He
estimates that the road construction damaged his property by removing
forest and land valued at 3.800 FIM. His need of a road for forestry
transports was already met by another right of way favouring his
property. Moreover, since the new road was a private one, it did not
pursue any general interest. The alternative road plan supported by him
would furthermore have been a considerably cheaper solution and would
not have entailed as serious consequences for his property. He finally
claims that his responsibility for the road costs is excessive.
118. The Government concede that the road construction constituted an
interference with the applicant's rights under Article 1 of
Protocol No. 1 (P1-1) amounting to a control of the use of his
property. The interference was justified, however, since the costs for
which he became responsible were not excessive and given the States'
wide margin of appreciation in the field of property rights. Reference
is made, in particular, to the importance of forestry both for the
economy of individual owners of forest and the country as a whole.
119. The Government further consider that by authorising the signing
of the road agreement the applicant must be considered to have waived,
at the latest on 16 January 1992, his right to compensation for the
damage caused to his property. Having accepted the road agreement, the
applicant also received a state subsidy and was granted a low-interest
loan, both intended to facilitate his participation in the road costs.
120. The Government finally submit that the proceedings for the
construction of the road were fair and did not therefore prevent the
applicant from putting his case to the relevant authorities.
121. Having regard to its competence ratione temporis, the Commission
will limit its examination to whether the facts occurring after
10 May 1990 disclosed a breach of Article 1 of Protocol No. 1 (P1-1).
Events prior to 10 May 1990 will be taken into account merely as a
background to the issues before the Commission (cf. paras. 99-101
above).
1. The deprivation of the applicant's property
122. The Commission recalls that Article 1 of Protocol No. 1 (P1-1)
comprises three distinct rules. The first rule, set out in the first
sentence of the first paragraph, is of a general nature and enunciates
the principle of peaceful enjoyment of property. The second rule,
contained in the second sentence of the same paragraph, covers
deprivation of possessions and makes it subject to certain conditions.
The third rule, stated in the second paragraph, recognises that
Contracting States are entitled, amongst other things, to control the
use of property in accordance with the general interest. The three
rules are not "distinct" in the sense of being unconnected: the second
and third rules are concerned with particular instances of interference
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 (e.g., Eur. Court H.R., Fredin judgment of 18 February 1991,
Series A no. 192, p. 14, para. 41).
123. The Commission furthermore recalls that although Article 1
(Art. 1) contains no explicit procedural requirements, the proceedings
at issue must afford the individual with a reasonable opportunity of
putting his or her case to the responsible authorities for the purpose
of effectively challenging the measures interfering with his rights
under Article 1 of Protocol No. 1 (P1-1). In ascertaining whether this
condition has been satisfied a comprehensive view must be taken of the
applicable procedures (cf., e.g., Eur. Court H.R., Agosi judgment of
24 October 1986, Series A no. 108, p. 19, para. 55; Eur. Court H.R.,
Hentrich v. France judgment of 22 September 1994, para. 49, to be
published in Series A no. 296-A).
124. The Commission observes that a road was constructed over the
applicant's property by virtue of a right of way encumbering his
property and favouring certain other properties. For this purpose the
applicant had to give up land on a permanent basis. Although this did
not take place by way of expropriation proceedings leading to the
transfer of a formal title of ownership, in the circumstances of the
case the creation of the right of way constituted a deprivation of the
applicant's property to the extent that this property was encumbered
by the right of way (cf., e.g., the above-mentioned Agosi judgment,
pp. 17-18, para. 51). Whilst this deprivation did not transfer property
from the applicant to the State, it resulted from a plan adopted by the
Forestry Board. The Commission therefore considers that, regardless of
the fact that a private road was at issue, the deprivation incurred
State responsibility (cf., mutatis mutandis, No. 12570/86, Dec.
18.1.89, D.R. 59 p. 127; a contrario, No. 9781/82, Dec. 14.5.84,
D.R. 37 p. 42).
125. The Commission recalls that a deprivation of possessions
constitutes an interference with property rights which is to be
examined under the second sentence of the first paragraph of Article
1 (Art. 1) (cf., Eur. Court H.R., Papamichalopoulos and Others
v. Greece judgment of 24 June 1993, Series A no. 260-B, pp. 69-70,
paras. 41-46). Such a deprivation must, firstly, pursue a legitimate
aim in the public interest. This requirement may be fulfilled even if
the community at large has no direct use or enjoyment of the property
deprived from the applicant (cf., mutatis mutandis, Eur. Court H.R.
James and Others judgment of 21 February 1986, Series A no. 98,
pp. 30-32, paras. 39-45). Secondly, there must also be a reasonable
relationship of proportionality between the means employed and the aim
sought to be realised (ibid., p. 34, para. 50).
126. The Commission furthermore reiterates that the requirement that
a deprivation be "subject to the conditions provided for by law"
presupposes the existence of and compliance with adequately accessible
and sufficiently precise domestic legal provisions (Eur. Court H.R.,
Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 47,
para. 110). Deprivation of property belonging to a non-national is,
moreover, subject to the conditions provided for "by the general
principles of international law" (ibid., p. 47, para. 112).
127. The Commission considers that the deprivation of part of the
applicant's property had the legitimate aim of facilitating and
stimulating forestry in the area served by the road. It is true that
the road was private and could therefore only be used by a limited
number of property owners and others. The Commission observes, however,
that under section 22 of the 1962 Act also others than the property
owners in the area may be allowed to use the road, provided they
participate in its maintenance costs. In these circumstances and having
regard to State's margin of appreciation the Commission accepts that
the deprivation took place in the public interest.
128. As for the requirement that a deprivation be "subject to the
conditions provided for by law", the Commission recalls that its power
to review compliance with domestic law is limited (cf. the
above-mentioned Fredin judgment, pp. 16-17, para. 50). In interpreting
and applying the above phrase the Commission must take into account the
principles concerning the interpretation of other references to the
"law" in the Convention, but it must also take account of the
differences in the wording of the different provisions (the
above-mentioned James and Others judgment, pp. 40-41, para. 67; James
and Others v. the United Kingdom, Comm. Report 11.5.84, para. 141, Eur.
Court H.R., Series A no. 98, pp. 68-69).
129. The Commission considers that the phrase "conditions provided for
by law" refers primarily to such matters as the power to expropriate
(or otherwise take property) and compensation terms which, accordingly,
must be defined by the law with reasonable precision. Although the
second sentence of the first paragraph or any other provision of
Article 1 of Protocol No. 1 (P1-1), unlike Article 5 para. 1 (Art. 5-1)
of the Convention which refers to "a procedure prescribed by law", does
not contain any explicit procedural requirement, the prohibition of
arbitrariness is inherent in the provision in question. A manifest
violation of the national procedural rules governing the taking of
property can therefore, either alone or in combination with other
circumstances, amount to a violation of the requirement that a
deprivation of property be subject to the conditions provided for by
law.
130. In the present case the national courts held that the deprivation
of the property had taken place in accordance with the relevant
provisions of the 1962 Act. Recalling its limited power to review
compliance with domestic law, the Commission considers that it has no
reason to dispute those findings in so far as the substantive
conditions of the deprivation of property are concerned. The Commission
also accepts that the relevant domestic legal provisions fulfil the
requirements of accessibility and foreseeability.
131. In so far as the procedure is concerned the Commission, however,
notes that it follows from the original Finnish and Swedish texts of
section 43, subsection 7 and section 45, subsection 2 of the 1962 Act
(paras. 69-70) that the hearing before the Expert and Trustees could
only be held provided there was evidence that a non-attending party
such as the applicant had received an invitation to the hearing from
the Expert at least fourteen days in advance. If this condition had not
been met, the hearing was to be suspended and the non-attending party
to be notified of the hearing in accordance with section 43.
132. The Commission finds it established that the applicant did not
receive notification of the hearing in accordance with sections 43 and
45 of the 1962 Act, regardless of the fact that a summons had been sent
on 30 May 1990 to his father's address. As the hearing fixed for
27 June 1990 was not suspended, the domestic procedural rules do not
appear to have been complied with.
133. The Commission, however, cannot conclude on this basis that the
proceedings were arbitrary. In this respect it notes its earlier
finding that by ensuring his representation before the Land Court the
applicant could have had access to that court (see paras. 110-112). It
furthermore recalls its finding that there is no indication that the
deprivation of his property was otherwise illegal under domestic law
(see para. 130). Moreover, taking into account the forestry improvement
subsidy and the low-interest loan granted to the applicant (para. 49),
the Commission finds no indication that the way in which he was
compensated for the deprivation of his property (see also para. 34 in
fine) was not in reasonable relation to its value or in violation of
the general principles of international law. Accordingly, Article 1 of
Protocol No. 1 (P1-1) has not been violated as regards the deprivation
of property.
CONCLUSION
134. The Commission concludes, by 8 votes to 1, that in the present
case there has been no violation of Article 1 of Protocol No. 1 (P1-1)
to the Convention as regards the deprivation of part of the applicant's
property.
2. The applicant's obligation to participate in the road costs
135. Recalling its finding as regards State responsibility for the
deprivation of part of the applicant's property (para. 124), the
Commission observes that, although the road costs were not levied by
the State, these equally resulted from the plan adopted by the Forestry
Board. The obligation imposed on the applicant, as an owner of property
through which the road was constructed, to participate in these costs
thus also incurred State responsibility.
136. The Commission considers that the applicant's obligation to
participate in these costs constituted an interference with his
property rights which falls to be examined under the second paragraph
of Article 1 of Protocol No. 1 (P1-1) as to its lawfulness, purpose and
proportionality. As regards the proportionality, a fair balance must
be struck between the demands of the general interest of the community
and the requirements of the protection of the individual's fundamental
rights (e.g., the above-mentioned Fredin judgment, pp. 16 et seq.,
paras. 48 et seq.).
137. The Commission considers that this interference had the same
legitimate aim as the deprivation of his property, namely to facilitate
and stimulate forestry in the area affected by the road. This purpose
was, moreover, in the general interest.
138. As for the question of proportionality, the Commission finds it
established that the applicant's share of the road construction costs
was somewhat more significant than the size of his property would have
called for. It observes, however, that he was granted a State forestry
improvement subsidy and a low-interest forestry improvement loan by the
State in amounts equalling his share of those costs. Moreover, it is
still open to him to request an exemption from the maintenance costs
for the road, since his request of 9 January 1992 was not addressed to
the association of road owners, as prescribed in section 28, subsection
2 of the 1962 Act. Finally, the Commission would not exclude that the
value of the remaining part of the applicant's property actually
increased as a result of the new road connection.
139. The Commission observes, however, that the applicant has
complained not only that his responsibility for the road costs was
excessive but also, albeit under Article 6 para. 1 (Art. 6-1) of the
Convention, that the proceedings were unfair, since he was not at any
stage summoned to take part in the proceedings up to and including the
Land Court.
140. The Commission has recalled above (para. 123) that in assessing
whether a fair balance was struck in accordance with Article 1 of
Protocol No. 1 (P1-1) between the conflicting interests at stake, it
must also satisfy itself that the applicant was afforded a reasonable
opportunity of putting his objections to the Forestry Board's road
construction plan to the responsible authorities. These authorities
need not be "tribunals" within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention. To this end the Commission must therefore
take into account the whole of the proceedings in the course of which
the Forestry Board's plan was drawn up and approved as well as the
subsequent appeal proceedings, bearing in mind its competence ratione
temporis (para. 121 with further reference).
141. The Commission thus considers that the aspect of the applicant's
complaint under Article 6 para. 1 (Art. 6-1) of the Convention
concerning his inability to influence the proceedings in substance
falls to be examined under Article 1 of Protocol No. 1 (P1-1). A
preliminary question arising is whether the applicant had, on
10 May 1990, been afforded an opportunity of effectively opposing the
plan drawn up by the Forestry Board and adopted at the meeting on
3 June 1988. A further question is whether, after 10 May 1990, he had
the opportunity of presenting to the Expert and Trustees and the Land
Court any weighty reason which could have led to the rejection or
amendment of the Forestry Board's plan and possibly to the approval of
the alternative plan supported by him.
142. The Commission cannot find it established that the applicant had,
on 10 May 1990, received knowledge of the proceedings before the
Forestry Board, regardless of the manner in which the Government claim
he was summoned. Nor can the Commission find that the applicant
received knowledge of the proceedings before the Expert and Trustees
prior to their termination on 27 June 1990. It recalls its above
finding (para. 132) that in respect of the deprivation of the
applicant's property the proceedings before the Expert and Trustees do
not appear to have fully complied with the procedural requirements of
national law. This finding is equally relevant in respect of the
interference with the applicant's property rights now under
examination, given that his obligation to participate in the road costs
was decided in the same proceedings.
143. Above (para. 108) the Commission has not found it established
that the applicant received knowledge of the outcome of the proceedings
before the Expert and Trustees prior to the expiry of the time-limit
for appealing to the Land Court. It has concluded, however, that he
could nevertheless have been heard as an intervening party, had he
ensured his representation before the Land Court (paras. 110-112). Had
he done this, he would also have had an opportunity to seek, after the
Land Court proceedings, leave to appeal to the Supreme Court.
144. In these circumstances the Commission concludes that the
proceedings viewed as a whole afforded the applicant a reasonable
opportunity of putting his case to the responsible authorities with a
view to establishing a fair balance between the conflicting interests
at stake. Having regard to its considerations above (paras. 137-138),
the Commission is further satisfied that such a balance was struck in
his case. Accordingly, the interference with his property rights by
virtue of his obligation to participate in the road costs was
proportionate to the aim pursued. Article 1 of Protocol No. 1 (P1-1)
has therefore not been violated in this respect either.
CONCLUSION
145. The Commission concludes, by 8 votes to 1, that in the present
case there has been no violation of Article 1 of Protocol No. 1 (P1-1)
to the Convention as regards the applicant's obligation to participate
in the road costs.
E. As regards Article 13 (Art. 13) of the Convention
146. Article 13 (Art. 13) of the Convention reads as follows:
"Everyone whose rights and freedoms as set forth in this
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."
147. Having regard to its findings in regard to the complaints under
Article 6 para. 1 (Art. 6-1) of the Convention and Article 1 of
Protocol No. 1 (P1-1), the Commission finds that no further issue
arises under Article 13 (Art. 13).
CONCLUSION
148. The Commission concludes, unanimously, that no further issue
arises under Article 13 (Art. 13) of the Convention.
F. Recapitulation
149. The Commission concludes, by 7 votes to 2, that in the present
case there has been no violation of Article 6 para. 1 (Art. 6-1) of the
Convention (para. 114).
150. The Commission concludes, by 8 votes to 1, that in the present
case there has been no violation of Article 1 of Protocol No. 1 (P1-1)
to the Convention as regards the deprivation of part of the applicant's
property (para. 134).
151. The Commission concludes, by 8 votes to 1, that in the present
case there has been no violation of Article 1 of Protocol No. 1 (P1-1)
to the Convention as regards the applicant's obligation to participate
in the road costs (para. 145).
152. The Commission concludes, unanimously, that no further issue
arises under Article 13 (Art. 13) of the Convention (para. 148).
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C. L. ROZAKIS)
(Or. English)
DISSENTING OPINION OF MRS. J. LIDDY, JOINED BY
MR. A. GÖZÜBÜYÜK AS REGARDS ARTICLE 6 PARA. 1
OF THE CONVENTION
As regards Article 6 para. 1 of the Convention
1. The applicant complains about the presence of the Head of the
County Surveying Office on the Land Court, the applicant's lack of
access to the Land Court and the allegedly unfair proceedings.
2. The Land Court was dealing with an appeal against the decision
of the Expert and Trustees of 27 June 1990. The Head of the County
Surveying Office participated in the examination of and decision on the
appeal. The close relationship between him and the Expert is evidenced
by Section 295 of the 1951 Partition Act, as amended by Act no. 267/78.
The Expert was a member of the District Surveying Office. Section 295
enabled the Head of the County Surveying Office to appoint another land
surveyor of the District Surveying Office to sit on the Land Court in
the event that the Head of the County Surveying Office was unable to
sit. As the Commission has unanimously found in the case of L.
v. Finland (Comm. Rep. 5.4.95), this circumstance meant that the
impartiality of the Land Court was capable of appearing open to doubt,
contrary to Article 6 para. 1.
3. Thus, even if the applicant had been properly notified of the
proceedings from the outset, and even if consequently he had been
enabled to appeal with due formality, such access as would in that
hypothesis have been available to him would have been to a court
lacking the quality of impartiality required by the Convention.
4. For these reasons I voted for a violation of Article 6 para. 1
of the Convention.
As regards Article 1 of Protocol No. 1 to the Convention
5. The applicant had a road built on his property against his will
but for the benefit of neighbouring private individuals, who were given
a right of way over his property. He did not receive any financial
compensation, it being considered that he also would benefit from the
road (para. 34 of the Report). On the contrary he was obliged to
contribute to the costs of the road. When all avenues of appeal were
exhausted he signed, under protest, the relevant road agreement in
order to reduce the extent of his financial contribution because
signature of the agreement qualified him for a small subsidy and
low-interest loan.
6. A first preliminary question is whether the construction of the
road and creation of the right of way can be categorised as a
deprivation of possessions under paragraph 1 of Article 1 of
Protocol No. 1 or whether it was a control of the use of property
within the meaning of paragraph 2 of that Article. On balance, I agree
with the majority that the measure more closely resembles a
deprivation. This was not a measure enabling a public authority to have
occasional access to a structure built on the land (such as an
electricity pylon) in the public interest. It was, rather, the
deprivation of an essential attribute of private ownership, the right
to refuse entry to private individuals. At the same time it was a
transfer to those private individuals of the right to use the land for
the purpose of passage subject to the applicant's right to use the land
for that purpose and no other purpose.
7. A second preliminary question is whether the Commission's
case-law to the effect that an obligation to contribute to road costs
is a "contribution" within the meaning of paragraph 2 of Article 1
(Application No. 7489/76, D.R. 9 p. 114) is still valid. The Court has
recently, in the case of Gasus Dosier- und Fördertechnik GmbH v. the
Netherlands (Eur. Court H.R., judgment of 23 February 1995, to be
published in Series A no. 306-B), left open a particular question. That
question is whether the right of States to enact such laws as they deem
necessary for the purpose of "securing the payment of taxes" is, as the
wording may suggest, limited to procedural tax laws (that is to say:
laws which regulate the formalities of taxation, including the
enforcement of tax debts) or whether it also covers substantive tax
laws (that is to say: laws which lay down the circumstances under which
tax is due and the amounts payable) (para. 60 of the judgment). The
same question would appear to arise in relation to the State's right
to "secure" the payment of "other contributions". In my opinion the
word "secure" covers not only technical devices to make certain
("assurer" in the French text) that payment is made. It also carries
the broader meaning of obtaining, or satisfying oneself that one has
not only the means but the legal right to have the payment made.
Accordingly, the applicant's obligation to participate in the road
costs falls to be examined under paragraph 2 of Article 1.
8. It is then necessary to examine in relation to both measures
(the deprivation of a property right and the obligation to make
contributions) whether a fair balance has been struck between the
demands of the general interest of stimulating forestry in the area and
the interest of the individual. In particular it is necessary to
examine whether the procedures in question afforded the applicant a
reasonable opportunity of putting his case to the responsible
authorities (Eur. Court H.R., Hentrich v. France judgment of 22
September 1994, paras. 44 and 49, to be published in Series A
no. 296-A; Agosi v. the United Kingdom judgment of 24 October 1986,
Series A no. 108, paras. 52 and 55; the above-mentioned Gasus
Dosier-und Fördertechnik GmbH judgment, paras. 62 and 73).
9. The following features of the procedures occurring after
10 May 1990 seem relevant to this assessment:-
(i) The proceedings before the Expert and Trustees and before the
Land Court took place against the background that the applicant
had not been summonsed to the meetings arranged by the Forestry
Board, although his address was known. The address was
indicated on the list drawn up by the Forestry Board on
19 June 1990.
(ii) The Forestry Board's plan had a significant bearing on the
final outcome of the proceedings before the Expert and Trustees
and the Land Court, because only "weighty" reasons could lead
to its amendment.
(iii) The applicant did not have an identifiable opponent at any
stage. Before the Land Court his de facto opponents were the
Forestry Board and the Expert, who had drawn up or upheld the
plan and list of contributions. However, they were not seen as
opposing parties. The Expert was heard as an independent expert
rather than as an interested party.
(iv) The applicant had no minutes of the proceedings that had been
arranged by the Forestry Board, notwithstanding that he needed
"weighty" reasons to upset the Board's plan.
(v) The applicant was given no written notice of the list of
contributions.
(vi) The Land Court did not satisfy the requirement of impartiality
contained in Article 6 para. 1 of the Convention.
10. Taking "a comprehensive view of the applicable procedures" (the
above-mentioned Agosi judgment, para. 55), it appears to me that the
applicant's original disadvantage in not being summonsed to the
meetings arranged by the Forestry Board was exacerbated by numerous
features of the proceedings that followed. I cannot conclude that he
had a reasonable opportunity of putting his case to the competent
authorities.
11. Accordingly, the procedural requirements of Article 1 of
Protocol No. 1 were not observed, with the consequence that no fair
balance was struck between the demands of the general interest and the
interest of the individual. For these reasons I voted for violations
of the Convention on both aspects of the issue under that provision.