L. v. Finland
Doc ref: 18595/91 • ECHR ID: 001-45716
Document date: April 5, 1995
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EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 18595/91
L.
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. 21-91). . . . . . . . . . . . . . . . . . . . . . . . 4
A. The particular circumstances of the case
(paras. 21-53) . . . . . . . . . . . . . . . . . . . . . 4
B. Relevant domestic law and practice
(paras. 54-91) . . . . . . . . . . . . . . . . . . . . . 8
1. General provisions on the construction
and the maintenance of a private road
(paras. 54-64) . . . . . . . . . . . . . . . . . . 8
2. The proceedings before the Forestry Board
(paras. 65-66) . . . . . . . . . . . . . . . . . . 9
3. The proceedings before the Expert and Trustees
(paras. 67-79) . . . . . . . . . . . . . . . . . . 9
4. The proceedings before the Land Court
(paras. 80-89) . . . . . . . . . . . . . . . . . .13
5. Supreme Court practice
(paras. 90-91) . . . . . . . . . . . . . . . . . .14
III. OPINION OF THE COMMISSION
(paras. 92-160) . . . . . . . . . . . . . . . . . . . . . . .16
A. Complaints declared admissible
(para. 92) . . . . . . . . . . . . . . . . . . . . . . .16
B. Points at issue
(para. 93) . . . . . . . . . . . . . . . . . . . . . . .16
C. As regards Article 6 para. 1 of the Convention
(paras. 94-115). . . . . . . . . . . . . . . . . . . . .16
CONCLUSION
(para. 115). . . . . . . . . . . . . . . . . . . . . . .20
TABLE OF CONTENTS
Page
D. As regards Article 1 of Protocol No. 1
to the Convention
(paras. 116-153) . . . . . . . . . . . . . . . . . . . .20
1. The deprivation of the applicant's property
(paras. 126-137) . . . . . . . . . . . . . . . . .22
CONCLUSION
(para. 137). . . . . . . . . . . . . . . . . . . .24
2. The applicant's obligation to participate
in the road costs
(paras. 138-153) . . . . . . . . . . . . . . . . .24
CONCLUSION
(para. 153). . . . . . . . . . . . . . . . . . . .27
E. As regards Article 13 of the Convention
(paras. 154-156) . . . . . . . . . . . . . . . . . . . .27
CONCLUSION
(para. 156). . . . . . . . . . . . . . . . . . . . . . .27
F. Recapitulation
(paras. 157-160) . . . . . . . . . . . . . . . . . . . .27
PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY . . . . . . . . . . .28
APPENDIX: DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY
OF THE APPLICATION. . . . . . . . . . . . . . . . . . . . . . . . .31
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 1942 and resident at
Västerås, 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 mainly in regard to the composition of a
tribunal and the justification of the interference with the applicant's
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 himself was
present, assisted by his counsel, Mr. Westdahl.
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 to the lack of an effective remedy
in this respect. The Commission 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
observation 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 Bjurträsk 1:214
at Iskmo in the municipality of Korsholm (Mustasaari) in Finland.
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. According to him, only some 10 to 15 persons were
heard by the Forestry Board, whereas the total of 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. According to the applicant, he received information about the
location of the proposed road on his property before the logging took
place but subsequent to the meeting on 3 June 1988. In a letter of
18 November 1991 to the Forestry Board the applicant referred to his
and his wife's conversation with a representative of the Board soon
after the meeting on 3 June 1988. The representative had given them a
copy of the map indicating the planned location of the road, but had
allegedly stated that they "had no say" in the matter.
29. Having been informed about the logging, the applicant also
reported it to the National Forestry Board (metsähallitus, forst-
styrelsen), alleging that it had been carried out illegally. In a
letter of 29 November 1988 to the applicant the National Forestry Board
found no reason to take measures, having heard the Forestry Board. The
National Forestry Board recommended the applicant to present his claims
in the forthcoming administrative proceedings.
30. 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.
31. On 15 November 1989 the Environmental Office (ympäristötoimisto,
miljövårdsbyrån) of the County Administrative Board (lääninhallitus,
länsstyrelsen) of Vaasa favoured the Forestry Board's plan.
32. On 16 May 1990 T.K., Head of the District Surveying Office, took
over the Expert's duties.
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 8 hectares, corresponding to 0,61 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
19.154 FIM, corresponding to 1,13 per cent of the total cost. The
applicant's address was indicated in the list.
34. On 27 June 1990 a hearing was held before the Expert, assisted
by two Trustees (uskottu mies, gode man). The applicant had not been
summoned to the hearing, but attended it nevertheless, having received
information about it from relatives. 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 establishing of road rights pertaining to the
encumbered properties, 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.
35. According to the applicant, the property owners attending the
hearing were not provided with detailed plans of the location of the
road and the related easements. The property owners were simply
informed that the Forestry Board's plan "had to be approved". No
information was allegedly given in regard to their respective shares
of the road costs. The parties could only submit their remarks
concerning their respective properties in private to the Expert and
Trustees.
36. According to the applicant, he unsuccessfully objected to the
proposed location of the road. His wife, moreover, requested
compensation on his behalf for the interference to be caused thereby.
This request was immediately rejected. The applicant allegedly attended
the whole hearing, but not the subsequent meeting of property owners
at which the association of road owners was founded. He further claims
that no notice of appeal was either read out or served on him.
37. According to the Government, the applicant was present when the
notice of appeal was read out and handed over to one of the Executors.
He did not request to receive an individual notice of appeal.
38. According to the minutes from the hearing, a notice of appeal was
given to one of the Executors at the end of the hearing. In addition,
the minutes and the notice were read out and a copy of the notice was
enclosed to the file. No remarks were made against the minutes.
39. From the minutes it also appears that a proposal by the Forestry
Board for the relative distribution of road costs was read out at the
hearing. The proposal was based on a number of factors such as the
annual average production of timber in respect of each property and the
calculated advantage of a shorter distance for transporting the timber
from a property to a public road. Certain property owners, excluding
the applicant, objected to the proposal.
40. The applicant subsequently lodged an appeal with the Land Court
(maaoikeus, jorddomstolen) of Vaasa claiming, inter alia, that the
road, if it were to be constructed in accordance with the plan approved
by the Expert and Trustees, would considerably decrease the value of
his property. He also joined another appeal lodged on 23 July 1990. In
that appeal it was requested that only part of the adopted plan be
confirmed by the Land Court and that its remaining part be replaced by
already existing roads. This alternative solution would allegedly have
lowered the cost of the road from approximately 1,7 million FIM to
0,8 million FIM and required significantly less interference with the
natural habitat.
41. By a letter of 10 September 1990 the Land Court summoned the
applicant to a hearing on 16 October 1990. Notification of the hearing
was, moreover, 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.
42. In so far as the applicant had lodged a separate appeal he was
represented at the hearing by one of the signatories of the appeal of
23 July 1990. In so far as he had also signed that appeal he was
represented by another of its signatories. These were both heard by the
Land Court which 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).
43. At it second hearing the Land Court again heard the applicant's
respective representatives. It also heard other 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.
44. In its judgment the Land Court without examining the merits
thereof dismissed the applicant's separate appeal in so far as it
concerned the refusal of his alleged compensation claim. The applicant
was considered estopped from making such a claim to the Land Court,
since he had not made such a claim before the Expert and Trustees. The
Land Court rejected the remainder of his separate appeal, considering
it established that he had been present at the hearing on 27 June 1990,
when a notice of appeal had been read out and given to the property
owners.
45. The Land Court furthermore rejected the appeal of 23 July 1990
as lodged by, among others, the applicant. It found that the proposed
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.
46. The Land Court was presided by a judge and further consisted of
four members, namely the Head of the County Surveying Office (läänin-
maanmittausinsinööri, länslantmäteriingenjören), a Land Court Surveyor
(maaoikeusinsinööri, jordrättsingenjör) and two lay judges.
47. On 25 March 1991 the Supreme Court (korkein oikeus, högsta
domstolen) refused the applicant leave to appeal.
48. On 26 September 1991 the Supreme Court rejected the applicant's
request for an annulment of the Land Court's judgment.
49. In letters of 18 and 26 November 1991 addressed to the Forestry
Board the applicant requested, among other things, 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.
50. In letters of 25 November 1991 and 7 January 1992 the Forestry
Board informed the applicant that a road agreement (tiesopimus,
vägavtal) had been signed by all affected by it except for the
applicant and one further property owner (the applicant in Application
No. 18507/91). 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.
51. On 12 January 1992 the applicant authorised one of the Executors
to sign the road agreement on his behalf, although reserving his
position as 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.
52. The road construction works commenced in the summer of 1991.
53. 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 3.830 FIM
and a low-interest forestry improvement loan by the State (metsän-
parannuslaina, skogsförbättringslån) in the amount of 15.324 FIM. It
further disregarded the applicant's reservations to his authority of
12 January 1992.
B. Relevant domestic law and practice
1. General provisions on the construction and the
maintenance of a private road
54. 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).
55. 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).
56. 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).
57. 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).
58. 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).
59. 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).
60. 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).
61. The proposed location of the road shall, as far as necessary,
also be marked in the terrain pursuant to the 1962 Decree 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).
62. 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).
63. 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).
64. 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
65. 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).
66. 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
67. 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).
68. 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.
69. 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.
70. 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).
71. 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).
72. 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).
73. 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 address 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."
74. 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 kursukirje sen mukaan kuin 43 §:ssä on
säädetty, ole sitä toimitettu, 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. ..."
75. 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).
76. 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).
77. 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).
78. 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. ..."
79. 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
80. 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 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).
81. 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).
82. 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).
83. 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).
84. 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).
85. 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).
86. 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).
87. 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).
88. 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).
89. 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
90. In a case decided by the Supreme Court (No. 1986 II 127) a party
to proceedings under the 1962 Act had been absent from the hearing
before the Expert and Trustees, where none of the attending parties had
requested compensation for the interference with their property rights
to be caused by the planned road and where no right to compensation had
therefore been granted. An absent party's appeal to the Land Court in
which he requested compensation was dismissed without an examination
of its merits, since no compensation claim had been made by him in the
proceedings before the Expert and Trustees. The Supreme Court observed
that pursuant to section 48, subsection 1 of the 1962 Act the
compensation matter was to be examined by the Expert and Trustees ex
officio. As the absent party had therefore not lost his right to
request compensation before the Land Court, the court should not have
dismissed his appeal. The matter was therefore returned to the Expert
and Trustees.
91. The above-mentioned judgment confirmed the principle adopted in
a previous judgment of 1981, no. II 139.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
92. 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 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
93. 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
94. 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. ..."
95. The applicant complains that the Land Court was not objectively
impartial, one of its members being the Head of the County Surveying
Office and thereby a superior of the Expert. This official was to some
extent the Expert's superior and to some extent responsible for the
proceedings conducted before the Expert and Trustees.
96. The applicant furthermore complains that the proceedings as a
whole were unfair in several respects and makes the following
allegations. He was not summoned to any of the meetings or hearings
before the Forestry Board, the Expert and Trustees or the Land Court,
although his address was known to the authorities. Although he attended
the hearing before the Expert and Trustees, he had been informed about
it at a very short notice and was thus not sufficiently prepared for
it. Those attending were never asked whether they considered the
meeting to have been lawfully called, although such a statement appears
in the minutes. Those who had instituted the proceedings remained
unknown. Contrary to domestic law no estimation of the total road costs
was presented prior to or at the hearing. Nor was the relative
distribution of the road costs properly examined. At this hearing the
Forestry Board's plan was presented to the applicant for the first time
and he was not afforded sufficient time to study it. No general
discussion concerning the plan was allowed. The parties could only
submit their opinions one by one, other parties being unable to
overhear them. They were not allowed to propose a change of the
location of the road. The Forestry Board, however, was allowed to
submit its opinion in public. The applicant's compensation claim was
rejected without a fair consideration. No notice of appeal was read
out or given to him at the close of the meeting.
97. The applicant, moreover, alleges that the proceedings before the
Land Court were also unfair in that it wrongly declined to examine his
compensation claim on its merits. Nor did it properly hear any of
opponents of the Forestry Board's plan, but merely its proponents,
including the Executors of the plan and the Forestry Board itself. In
so far as his appeals were examined on their merits he maintains that
not all parties were treated equally. Although the alternative plan
supported by him had been presented at the Land Court's first hearing,
it was no longer considered at the second one, where the Land Court
considered itself limited either to confirming or quashing the Forestry
Board's plan. Accordingly, although a majority of all those affected
by the road had objected to the Forestry Board's plan, the Forestry
Board was de facto the only party heard at the Land Court's second
hearing. Had the proceedings been fair, the road costs could, pursuant
to section 22, subsection 2 of the 1962 Act, have been imposed solely
on its proponents.
98. The applicant finally submits that the proceedings were also
unfair in that he was unable to obtain knowledge of the number and
respective identities of the proponents of the Forestry Board's plan.
The proponents were de facto represented by the Forestry Board itself,
although its role, in particular in the proceedings before the Land
Court, should have been limited to that of an independent expert.
Consequently, the opponents of the Forestry Board's plan, allegedly
constituting a clear majority of those to be affected by the road, were
not placed on an equal footing with its proponents.
99. The Government maintain that there has been no violation of
Article 6 para. 1 (Art. 6-1). They emphasise that under domestic law
at the relevant time the Head of the County Surveying Office was not
biased as a member of the Land Court even if he had performed tasks
incumbent on his Office in relation to the administrative proceedings
in the applicant's case. This was so because his Office was merely
responsible for registering the proceedings and keeping their records.
He did not appoint the officials of the District Surveying Office,
notably the Expert in the present case, and had no right to influence
the outcome of the proceedings before the Expert and Trustees.
Moreover, the Expert was not a party to the case before the Land Court.
Finally, although he was lower in rank than the Head of the County
Surveying Office, the Expert was not subordinated to that official but
acted completely independently.
100. As regards the fairness of the proceedings, the Government admit
that the applicant was not summoned to the meetings arranged by the
Forestry Board, although his address was known. In those proceedings,
however, he had no right under domestic law to be heard. In any case,
those proceedings 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.
101. Whilst further admitting that the applicant was not summoned to
the proceedings before the Expert and Trustees either, the Government
underline that he nevertheless attended the hearing which was,
moreover, fair. They refer to the minutes from the hearing which, for
instance, do not support the applicant's contention that he requested
compensation. In any event, the question of compensation was considered
ex officio by the Expert and Trustees. Although admittedly the Forestry
Board's plan was introduced only at the hearing, the hearing was
suspended for a sufficiently lengthy period so as to enable it to be
studied. The Government finally refer to the Land Court's finding that
the applicant had attended the hearing, where a notice of appeal had
been read out and a copy handed over to one of the Executors.
102. As for the fairness of the proceedings before the Land Court, the
Government explain that part of the applicant's separate appeal was
dismissed without examination because his compensation request had not
been made before the Expert and Trustees. The Government concede that,
according to case-law of the Supreme Court, a compensation claim under
the 1962 Act shall be examined ex officio by the Land Courts. The
practice of the Land Courts when dealing with fresh compensation claims
appears, however, to be varying.
103. As far as the applicant's appeals were examined on their merits
and rejected, the Government refer to the Land Court's judgment which
shows that it also gave opponents of the Forestry Board's plan a
possibility to express their opinion. The role of the Forestry Board
in the proceedings before the Land Court was merely to put its
expertise at the disposal of, in principle, both the proponents and the
opponents of its plan and the road construction project as a whole.
104. In their submissions at the hearing before the Commission the
Government conceded that, whilst the Forestry Board's plan was not
binding under the 1962 Act, it had a significant bearing on the final
outcome of the proceedings, given that section 49, subsection 3 of the
1962 Act presupposes weighty reasons for its amendment. The Expert and
Trustees were therefore to a great extent bound by it. Nor could the
Land Court immediately have approved a plan significantly different
from that of the Forestry Board.
105. In their subsequent further observations on the merits, however,
the Government emphasise that the Land Court had the appropriate
jurisdiction as regards both points of facts and points of law raised
in the appeal proceedings. It could thus have rejected the Forestry
Board's plan as a whole or have amended it, having regard to sections
7 to 9 in the 1962 Act.
106. Summing up, the Government consider that the applicant was not
placed at a substantial disadvantage in the proceedings as a whole.
107. The Commission observes that except for the compensation claim
made in his separate appeal the applicant's appeals to the Land Court
were examined on their merits and rejected. To this extent there was
a determination by a "tribunal" of his property rights, these being
"civil rights" within the meaning of Article 6 para. 1 (Art. 6-1) (cf.,
e.g., Eur. Court H.R., Zander v. Sweden judgment of 25 November 1993,
Series A no. 279-B, p. 40, para. 27). It is undisputed that the Land
Court was "established by law".
108. As regards the question whether the Land Court was an "impartial
tribunal", the Commission recalls that the existence of impartiality
for the purposes of Article 6 para. 1 (Art. 6-1) must be determined
according to a subjective test, that is on the basis of the personal
conviction of a particular judge in a given case, and also according
to an objective test, that is ascertaining whether the judge offered
guarantees sufficient to exclude any legitimate doubt in his respect
(e.g., Eur. Court H.R., Fey v. Austria judgment of 24 February 1993,
Series A no. 255-A, p. 12, para. 28). In the administration of justice
even appearances are of importance, although the standpoint of the
persons concerned is not in itself decisive. The misgivings of the
individuals before the courts must in addition be capable of being held
to be objectively justified (cf., e.g., Eur. Court H.R., Kraska v.
Switzerland judgment of 19 April 1993, Series A no. 254-B, p. 50,
para. 32). A tribunal found to be partial can, in principle, not
guarantee a fair hearing to the individuals involved in proceedings
before it (cf. Nos. 15530/89 and 15531/89, Mitap and Müftüoglu v.
Turkey, Comm. Report 8.12.94, para. 109).
109. The Commission observes that the impartiality of the President
of the Land Court and the Land Court Surveyor is not in issue. The
Commission has, moreover, declared inadmissible the applicant's
complaint concerning the impartiality of the lay judges appointed by
the President of the Land Court from the list drawn up by the
municipality. Finally, as regards the Head of the County Surveying
Office only his objective impartiality has been questioned by the
applicant.
110. The Commission further observes that the Head of the County
Surveying Office was, albeit also a State land surveyor, not attached
to the same Office as the Expert. It is undisputed, however, that once
an association of joint road owners has been founded for the
administration of a private road certain administrative tasks were
incumbent on the County Surveying Office pursuant to section 51a of the
1962 Act. The objectively close relationship between the District and
County Surveying Office was further borne out by section 295 of the
1951 Act, according to which the Head of the County Surveying Office
or his substitute at that Office could, in certain situations, if
prevented from carrying out his duties as a member of the Land Court,
appoint another land surveyor of the County or District Surveying
Office to sit on the Land Court.
111. It is true that the Head of the County Surveying Office had to
swear a judicial oath before taking up his duties as a member of the
Land Court. Moreover, the rules governing his disqualification as a
member of that Court in a particular case were, in principle, the same
as those generally applicable to professional and lay judges. Domestic
law at the time, however, expressly exempted him from disqualification
for having performed tasks related to the administrative proceedings
in a particular case such as that involving the applicant. Certain
doubts about the compatibility of the position of the Head of the
County Surveying Office as a member of the Land Court with the notion
of an independent and impartial tribunal were raised in the
Government's Bill proposing a legislative change in this regard (see
para. 85). Thus the applicant's case was heard by a tribunal whose
impartiality seems to have been recognised by national law to be open
to doubt (cf. Eur. Court H.R., Oberschlick judgment of 23 May 1991,
Series A no. 204, p. 23, para. 50).
112. It is furthermore true that under domestic law the Expert was,
strictly speaking, not a party to the proceedings before the Land
Court. This, however, is not of decisive importance, since the Land
Court was called upon to examine the applicant's appeal against the
outcome of the proceedings before that very Expert and the Trustees
assisting him.
113. In these circumstances and regardless of whether the Head of the
County Surveying Office personally performed the tasks incumbent on his
Office the Commission finds that the impartiality of the Land Court was
capable of appearing open to doubt on account of his presence on the
bench. The applicant's fears in this respect were thus objectively
justified. Accordingly, Article 6 para. 1 (Art. 6-1) has been violated
in this respect.
114. In the light of its above conclusion the Commission considers
that the Land Court could not have guaranteed the applicant a fair
hearing in any respect of his appeals. The Commission need not
therefore examine the further issues raised by the applicant in this
complaint.
CONCLUSION
115. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention in that the applicant did not receive a fair hearing before
an impartial tribunal.
D. As regards Article 1 of Protocol No. 1 (P1-1) to the Convention
116. 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."
117. 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.
118. The applicant has also complained that the construction of the
road interfered in an unjustified manner with his property rights. It
did not pursue any general interest, as it was an exclusively private
road. Moreover, the alternative road plan supported by him would have
been a considerably cheaper solution and would not have affected his
property in as serious a way. He finally claims that his responsibility
for the road costs is excessive and disproportional to the benefits
from the road, in particular since his property was already served by
another road and since his share of the costs for the construction of
the new road allegedly equal the total value of the potential timber
from the forest on his property.
119. The applicant contends that the Government have not shown any
document indicating the relative distribution of the road costs
between the road participants. He asserts that not all identities of
the participants have been made known and that the Forestry Board has
not properly dealt with his request for an exemption from participating
in the road and its costs.
120. The applicant finally repeats that he was unaware of the
proceedings before the Forestry Board, as he had not been summoned to
any of its hearings. In his further observations on the merits,
however, he states having been informed about the planned location of
the road prior to the logging which took place in 1988.
121. The Government submit 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.
122. 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 12 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.
123. The Government submit that the proceedings as a whole were fair
and afforded the applicant a reasonable opportunity of putting his case
to the relevant authorities. In particular, he had received knowledge
of the Forestry Board's plan before the proceedings before the Expert
and Trustees commenced. Whilst conceding that the Expert and Trustees
were to a great extent bound by the plan, the Government underline that
opponents of a plan approved by that body may later be exempted from
its maintenance costs pursuant to section 22, subsection 3 of the 1962
Act. Moreover, whilst the applicant was admittedly not summoned to the
hearing before the Expert and Trustees, he nevertheless attended it,
as he attended the subsequent hearings before the Land Court.
124. The Government finally refer to a general recommendation
according to which the Forestry Board can begin planning a road if and
when 70 per cent of the property owners support a proposal to that
effect. This was, however, not a requirement by law to be followed in,
for instance, the applicant's case.
125. 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 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.
Eur. Court H.R., Hokkanen v. Finland judgment of 23 September 1994,
para. 53, to be published in Series A no. 299-A).
1. The deprivation of the applicant's property
126. 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).
127. 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).
128. 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).
129. 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).
130. 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).
131. 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.
132. 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 this 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).
133. 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.
134. 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.
135. In so far as the procedure is concerned the Commission, however,
notes the Government's concession that according to the Supreme Court's
interpretation of the 1962 Act, as shown by its judgments no. 1981 II
139 and 1986 II 127, claims for compensation were to be considered ex
officio by the Land Courts. The applicant's claim, as referred to in
its judgment, was nevertheless dismissed by the competent Land Court
without an examination of its merits on the ground that compensation
had not been claimed in the proceedings before the Expert and Trustees.
It thus appears that the procedural requirements of domestic law have
not been complied with.
136. The Commission, however, cannot conclude on this basis that the
proceedings were arbitrary. In this respect it notes that the applicant
could explicitly have raised the above issue of non-compliance with
domestic law in his request for leave to appeal to the Supreme Court,
but failed to do so. It furthermore recalls its finding that there is
no indication that the deprivation of his property was otherwise
illegal under domestic law (see para. 134). Moreover, taking into
account the forestry improvement subsidy and the low-interest loan
granted to the applicant (para. 53), 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
137. 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
138. Recalling its finding as regards State responsibility for the
deprivation of part of the applicant's property (para. 128), 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.
139. 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.).
140. 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.
141. As for the question of proportionality, the Commission finds it
established that the applicant's share of the road construction costs
was 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 requests of November 1991 were 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.
142. 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
sufficiently involved in the proceedings up to and including the Land
Court.
143. The Commission has recalled above (para. 127) 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 "impartial 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. 125).
144. 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.
145. It is undisputed that the applicant had not been summoned to the
Forestry Board's meeting on 3 June 1988, where the road construction
plan had been adopted in so far as affecting, inter alia, his property.
The Commission cannot find it established that he had nevertheless
received prior information about the meeting and therefore could have
ensured his attendance or representation at it. Before the Commission
he has nevertheless conceded having received knowledge of the plan soon
after the meeting and prior to the logging on his property. At the
latest in November 1988 he had been informed by the National Forestry
Board of his possibility to challenge the plan in the proceedings
before the Expert and Trustees. The Commission therefore finds that,
although, on 10 May 1990, he had not yet had an opportunity of
effectively opposing the Forestry Board's plan, he had become fully
aware of the proceedings pending before the Expert and Trustees and of
the plan which was to be reviewed in those proceedings. He had thus
been afforded an ample opportunity to prepare himself for the hearing
before that body.
146. As for the period starting on 10 May 1990, it is undisputed that
the applicant had not been summoned to the hearing before the Expert
and Trustees but that he nevertheless attended it. The minutes from the
hearing do not support the applicant's contention that he was prevented
from challenging the Forestry Board's plan in so far as it was to
affect his property.
147. The Commission, moreover, observes that irrespective of whether
or not he received a notice of appeal at the close of the hearing
before the Expert and Trustees he nevertheless appealed to the Land
Court which accepted him as an appellant both in respect of his
separate appeal and in respect of the joint appeal of 23 July 1990.
148. The Commission further finds it established that the Land Court
duly summoned the applicant to its hearing on 16 October 1990, where
he was represented by two different persons due to his two appeals.
Both of his representatives availed themselves of the opportunity to
argue his respective appeals. Also at the second hearing both of them
were heard.
149. The Commission finds that the requirement in section 49,
subsection 3 of the 1962 Act according to which the Forestry Board's
plan could only be amended for weighty reasons did not as such prevent
the applicant from putting his case to the authorities reviewing it.
In these circumstances it can be left open whether the Land Court
could, in principle, have adopted the alternative plan supported by
him.
150. The Commission furthermore observes that under section 22,
subsection 2 of the 1962 a private road shall not be constructed if a
significant number of those obliged to participate in its costs oppose
its construction. The Commission cannot find it established that the
applicant would have been prevented from verifying the identities and
respective number of proponents and opponents of the Forestry Board's
plan in order to challenge the plan on the grounds of insufficient
support.
151. Nor can the Commission find that the applicant was prevented due
to insufficient information about the other road participants from
challenging, under section 23, subsection 1 of the 1962 Act, the
assessment of his share of the road costs. The Commission notes the
Forestry Board's list of 19 June 1990 setting out the size of each
property and each owner's share of the costs. It further notes that,
according to the minutes from the hearing before the Expert and
Trustees, a proposal by the Forestry Board for the relative
distribution of road costs was read out and not opposed by the
applicant.
152. In the above 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. 140-141),
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
153. 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
154. 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."
155. 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
156. The Commission concludes, unanimously, that no further issue
arises under Article 13 (Art. 13) of the Convention.
F. Recapitulation
157. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention in that the applicant did not receive a fair hearing before
an impartial tribunal (para. 115).
158. 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. 137).
159. 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)
as regards the applicant's obligation to participate in the road costs
(para. 153).
160. The Commission concludes, unanimously, that no further issue
arises under Article 13 (Art. 13) of the Convention (para. 156).
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
(Or. English)
PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY
As regards Article 6 para. 1 of the Convention
1. I agree that there has been a violation of the Convention in
that the applicant did not receive a fair hearing before an impartial
tribunal.
As regards Article 1 of Protocol No. 1 to the Convention
2. 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.
3. 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.
3. 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.
4. 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).
5. 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.
(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, as conceded by the Government
(para. 104 of the Report), 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.
6. 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.
7. 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.