Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26367/95

by Pentti LOIKKANEN, Markku LOIKKANEN and

the Estate of late Ms. Mirja Liisa ATTILA

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 November 1994

by Pentti LOIKKANEN, Markku LOIKKANEN and the Estate of late Ms. Mirja

Liisa ATTILA against Finland and registered on 31 January 1995 under

file No. 26367/95;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first and second applicants are Finnish citizens, born in

1935 and 1948 respectively. The first applicant is a professor residing

in Espoo and the second applicant is an airline pilot residing in

Helsinki. The third applicant is the undistributed estate of the late

Mirja Liisa Attila. The estate, which has legal personality, is

represented by one of the heirs, Mr. Mikko Attila. Before the

Commission the applicants are represented by Mr. Markku Fredman, a

lawyer practising in Helsinki.

The facts of the case, as submitted by the applicants, may be

summarised as follows.

The applicants are joint owners of a piece of real property known

as Salmi 9:32 in Savonlinna, which has an area of 55.8 hectares. The

neighbouring piece of property, known as Salmenranta 9:39, was owned

by a person named T. The latter property had a right of way (tieoikeus,

vägrätt) over a six-metre-wide road encumbering the applicants'

property.

On 20 April 1990 a person named G bought a parcel (määräala,

område) of T's original estate (kantatila, stamlägenhet), i.e. of

Salmenranta. On 7 September 1990 G's spouse became a joint owner of the

parcel.

At the end of August 1990 G, with the help of a person named P,

felled about 200 trees situated on the applicants' property within the

six-metre-wide area covered by the right of way. Furthermore, in the

middle of September 1990, when the road was used for bringing building

materials to G's parcel, a bridge belonging to the applicants' property

collapsed. G and his wife subsequently replaced the bridge with another

construction.

In September 1990 administrative proceedings began before an

Expert (toimitusinsinööri, syssloman) with a view to separating

(lohkominen, styckning) G's parcel from the original estate. On

19 November 1990 the separation was terminated and G's parcel was

transformed into an independent piece of real property. It was also

decided that the already-existing right of way over a six-metre-wide

road, encumbering the applicants' property, would benefit G's land.

Later, in administrative proceedings on 17 May 1991, the location

of the road was transferred to another place in accordance with the

applicants' request and the existing right of way encumbering the

applicants' property was accordingly transferred to that area.

Due to the fact that the applicants had reported the felling of

timber to the police, the police conducted a preliminary investigation.

As a result of the preliminary investigation G and P were charged with

reckless felling of timber (haaskaaminen, åverkansbrott) as well as

unauthorised building on another person's property (luvaton

rakentaminen toisen maalla, olovlig byggande på mark som är i en annans

besittning) contrary to chapter 33 sections 1 and 5 of the Criminal

Code as it stood. Furthermore, the applicants sued G and P for damages.

The case was heard by the City Court (raastuvanoikeus,

rådstuvurätten) of Savonlinna. The applicants were assisted or

represented by counsel. The City Court heard evidence from the parties

and from one witness called by the applicants and from one witness

called by the accused. The parties did not call any further witnesses.

On 6 August 1992 the City Court found G and P guilty on the

charges against them and sentenced both of them to 55 day-fines,

totalling FIM 1,815 and FIM 4,785 respectively. Furthermore, the City

Court obliged them to pay compensation of FIM 7,004 as regards the

trees and of FIM 1,000 as regards the bridge. The City Court found

that, under the Act on Private Roads, G, as the owner of the parcel,

had had the right temporarily to use the six-metre-wide road over which

T's original property had a right of way. It found, however, that this

right of use did not include the right to fell the trees growing on the

road area. It found that G and P had felled the trees without being

authorised to do so.

The applicants as well as the accused appealed to the Court of

Appeal (hovioikeus, hovrätten) of East Finland.

On 21 January 1994 the Court of Appeal acquitted G and P on the

charges brought against them. It found that there was no reason to link

a parcel-owner's right to make use of his possessions to the separation

process. As G's property had had the right to be served by the relevant

road in its entirety, i.e. in a width of six metres, he and P had not

committed a crime by felling the trees growing on the road area.

Furthermore, the Court of Appeal found that the applicants had no right

to grow trees on the relevant road area and, therefore, the felling of

the trees had not caused them damage for which compensation should be

paid. The Court of Appeal quashed the City Court's judgment as regards

the compensation for the trees. As regards the compensation for the

bridge, the Court of Appeal upheld the City Court's judgment.

On 2 May 1994 the Supreme Court (korkein oikeus, högsta

domstolen) refused the applicants leave to appeal.

COMPLAINTS

1. The applicants complain that the Court of Appeal, by its

judgment, failed to protect their right to peaceful enjoyment of their

possessions within the meaning of Article 1 of Protocol No. 1 to the

Convention. They maintain that the Court of Appeal erred in law in

holding the legal status of an owner of a parcel of land to be equal

to that of an owner of an already-separated piece of real property.

They complain that their possession rights as regards the trees growing

on their property were violated. They maintain, furthermore, that the

alleged deprivation of their possessions was not in the public interest

or lawful, since the relevant legislation was so unclear that the two

courts came to different conclusions. They maintain that the State was

obliged to enact laws clearly defining this type of action as

punishable.

2. The applicants maintain that the Court of Appeal tolerated their

neighbours' allegedly unauthorised actions although their neighbours'

right of way ought to have been confirmed only in the separation

proceedings. Therefore, the applicants complain that their civil rights

and obligations were not determined in a fair hearing within the

meaning of Article 6 of the Convention.

THE LAW

1. The applicants complain that the Finnish courts, by their

decisions in the present case, disregarded their right to peaceful

enjoyment of their possessions. Article 1 of Protocol No. 1 (P1-1) to

the Convention reads:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of

his possessions except in the public interest and subject

to the conditions provided for by law and by the general

principles of international law.

The preceding provisions shall not, however, in any way

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

deems necessary to control the use of property in

accordance with the general interest or to secure the

payment of taxes or other contributions or penalties."

The Commission notes that the dispute concerned the

interpretation of the right of way. In this respect the Commission

recalls that the dispute was examined by the Court of Appeal, which,

acting within its competence and applying what it considered to be the

relevant rules of the applicable law, found it established that G and

P had not committed a crime nor caused such damage to the applicants'

timber as should be compensated for, since the applicants had not had

the right to grow the relevant trees. The fact that the courts

acquitted the accused and that the applicants were only partly

successful in bringing compensation proceedings does not mean that the

respondent State has disregarded the applicants' rights under Article

1 of Protocol No. 1 (P1-1) to the Convention.

In these circumstances there is no basis upon which it could be

held that the applicants' rights secured to them by Article 1 of

Protocol No. 1 (P1-1) have been violated.

It follows that this part of the application is manifestly ill-

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

Convention.

2. The applicants complain, further, that their civil rights and

obligations were not determined in a fair hearing within the meaning

of Article 6 (Art. 6) of the Convention since the courts tolerated

their neighbours' actions although their neighbours' rights ought to

have been confirmed only in the separation proceedings.

Article 6 (Art. 6) of the Convention reads, in so far as

relevant, as follows:

"1. In the determination of his civil rights and

obligations ... , everyone is entitled to a fair ...

hearing ... by (a) ... tribunal ...

... "

The Commission notes that in the court proceedings complained of

the applicants were able to call all the witnesses whose evidence they

considered relevant. As regards the evaluation of the evidence the

Commission recalls that, in accordance with Article 19 (Art. 19) of the

Convention, the Commission's only task is to ensure the observance of

the obligations undertaken by the Parties in the Convention whereas it

is not competent to deal with an application alleging that errors of

law or fact have been committed by domestic courts, except where it

considers that such errors might have involved a possible violation of

any of the rights and freedoms set out in the Convention (cf., for

example, No. 21283/93, Dec. 5.4.94, D.R. 77-A p. 81).

In the instant case the Commission has not found any appearance

of a violation of the right to a fair hearing within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that this part of the application is also manifestly

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

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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LOIKKANEN AND THE ESTATE OF LATE Ms. ATTILA v. FINLAND

LOIKKANEN AND THE ESTATE OF LATE Ms. ATTILA v. FINLAND

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