Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23377/94

by X. and Y.

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 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

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 November 1993

by X. and Y. against Finland and registered on 2 February 1994 under

file No. 23377/94;

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 applicants are Finnish citizens residing in Helsinki and born

in 1943 and 1947 respectively. Before the Commission they are

represented by Mr. Martin Scheinin, Doctor of Laws, Helsinki.

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

summarised as follows.

In 1979 the applicants financed the purchase of a share in a

housing association with a publically-funded loan granted under the

1975 Act on Improving the Housing Conditions of the Gypsies (mustalais-

väestön asunto-olojen parantamisesta annettu laki). Under the terms the

loan, the share was subject to a restriction on resale according to

which the applicants were obliged to offer the share to the local

authority first. The restriction was to apply for 30 years.

By October 1988 the applicants had paid off the loan and

requested advance notice as to whether the local authority intended to

use its right of pre-emption in case they sold the share.

On 22 November 1988 the Housing Board (asuntolautakunta) of

Helsinki informed the applicants in the affirmative.

On 28 March 1990 the applicants reiterated their request. They

maintained that, because of threats resulting from a vendetta between

certain families, they had to move from Helsinki.

On 31 July 1990 the Housing Board informed the applicants of the

Board's intention to exercise its right of pre-emption in case they

sold the share.

The applicants then brought the matter before the City Council

(kaupunginhallitus) of Helsinki. On 28 January 1991, however, the City

Council dismissed the case on the grounds that the Housing Board had

not yet decided whether it was going to exercise its right of pre-

emption; its response to the applicants merely contained a preliminary

opinion which was not a final and appealable decision.

The applicants, represented by Mr. Scheinin, appealed against the

decision dismissing the case to the County Administrative Court

(lääninoikeus) of Uusimaa. On 9 June 1992 the County Administrative

Court of Uusimaa upheld the City Council's decision. It appears from

the County Administrative Court's decision that the relevant law had

been amended as from 1 April 1991 to the effect that the applicants'

share was no longer subject to a right of pre-emption due to the fact

that they had paid off their loan.

On 6 May 1993 the Supreme Administrative Court (korkein hallinto-

oikeus) upheld the County Administrative Court's decision.

It appears that in the meantime, in 1990, certain other Acts

concerning state loans for financing the purchase of apartments were

also amended to the effect that the restriction on resale was lifted

if the loan was paid off.

COMPLAINTS

1. The applicants complain that the Housing Board's opinion of

31 July 1990 resulted in a violation of their property rights since

they were not able to sell their share freely. They further submit that

since the Housing Board's refusal of their request prevented them from

moving, their family had to live in fear, resulting in a violation of

the right to personal safety and the right to respect for their private

and family life. Finally, they maintain that they were not able to

choose their residence freely. They invoke Article 1 of Protocol No. 1

to the Convention, Article 5 para. 1 and Article 8 of the Convention

and Article 2 of Protocol No. 4 to the Convention.

2. The applicants complain, under Article 14 of the Convention, that

the gypsies were discriminated against in comparison with other groups

that also benefit from social housing loans since the Act concerning

loans for gypsies was amended later than certain other Acts.

3. Finally, as regards the court proceedings, the applicants

complain, under Article 6 of the Convention, that the length of the

proceedings was not reasonable. The applicants also invoke Article 13

of the Convention.

THE LAW

1. The applicants complain, firstly, about the alleged effects which

the Housing Board's opinion of 31 July 1990 concerning the right of

pre-emption had on the applicants' property rights, private and family

life, personal safety and ability to choose their residence. They

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

5 para. 1 (Art. 5-1) and Article 8 (Art. 8) of the Convention and

Article 2 of Protocol No. 4 (P4-2) to the Convention.

However, the Commission is not required to decide whether or not

the facts alleged by the applicants disclose any appearance of a

violation of these provisions, as Article 26 (Art. 26) of the

Convention provides that the Commission "may only deal with the matter

... within a period of six months from the date on which the final

decision was taken".

In the present case, the Commission recalls that the relevant Act

on Improving the Housing Conditions of the Gypsies was amended as from

1 April 1991. The applicant's advocate learned about the amendment at

the latest in June 1992 from the County Administrative Court's

decision. After 1 April 1991 the applicants, who had already paid off

their loan in October 1988, were free to sell their share without any

interference from the authorities. The application was submitted to the

Commission on 10 November 1993, that is, more than six months after the

date of the amendment of the relevant Act. Furthermore, an examination

of the case does not disclose the existence of any special

circumstances which might have interrupted or suspended the running of

that period.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

2. The applicants further complain, under Article 14 (Art. 14) of

the Convention, of discriminatory legislation in respect of, on the one

hand, the gypsies and, on the other hand, other groups that benefit

from social housing loans.

On this point the Commission refers to its finding above and

recalls that the relevant Act was amended as from 1 April 1991. The

application was submitted to the Commission on 10 November 1993, that

is, more than six months after the date of the amendment of the

relevant Act. Furthermore, an examination of the case does not disclose

the existence of any special circumstances which might have interrupted

or suspended the running of the period.

It follows that this part of the application has also been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

3. Finally, the applicants complain, under Article 6 (Art. 6) of the

Convention, about the length of the proceedings concerning the Housing

Board's opinion of 31 July 1990 on the right of pre-emption in respect

of the applicants' share. They also invoke Article 13 (Art. 13) of the

Convention.

Article 6 para. 1 (Art. 6-1) 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 ... hearing

within a reasonable time ... "

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."

For Article 6 para. 1 (Art. 6-1) under its "civil" head to be

applicable, there must be a "dispute" over a "right" which can be said,

at least on arguable grounds, to be recognised under domestic law. The

"dispute" must be genuine and serious; it may relate not only to the

actual existence of a right but also to its scope and the manner of its

exercise. The outcome of the proceedings must be directly decisive for

the right in question, mere tenuous connections or remote consequences

not being sufficient to bring Article 6 para. 1 (Art. 6-1) into play

(see, for example, Eur. Court H.R., Masson and Van Zon judgment of

28 September 1995, Series A no. 327, para. 44).

The Commission finds that the Housing Board's preliminary notice

of 31 July 1990 about its intentions as regards the right of pre-

emption was not decisive as this question would be decided only when

a sale was actually effected. Furthermore, the Commission recalls that

after 1 April 1991, in the light the amendment of the relevant law and

the fact that the applicants had paid off their loan, their share was

no longer subject to a right of pre-emption. Therefore, the Commission

finds that, at least after 1 April 1991, there was no genuine and

serious "dispute" over a right.

In view of the above, the Commission finds that, whether or not

the proceedings concerned a "right", the outcome of the proceedings was

not directly decisive for the right in question and, furthermore, after

1 April 1991 they did not involve a "dispute" for the purposes of

Article 6 para. 1 (Art. 6-1). In these circumstances the Commission

finds that Article 6 (Art. 6) of the Convention is not applicable to

the proceedings.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention and must be

rejected under Article 27 para. 2 (Art. 27-2) of the Convention.

As regards the alleged violation of Article 13 (Art. 13) of the

Convention the Commission finds, in the circumstances of the case, that

the applicants cannot be said to have an arguable claim for the

purposes of Article 13 (Art. 13). Therefore the Commission finds that

there is no appearance of a violation of Article 13 (Art. 13) of the

Convention.

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

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

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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S. AND Y. v. FINLAND

S. AND Y. v. FINLAND

LEXI