Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23048/93

by Uula Jooseppi PORSANGER and Others

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 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 1 December 1993

by Uula Jooseppi PORSANGER and Others against Finland and registered

on 6 December 1993 under file No. 23048/93;

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 46 Finnish citizens residing in various parts

of Finland and in Norway and one of them is a limited liability company

incorporated in Finland. The applicants are listed in Appendix No. 1

in alphabetical order. All the applicants own real property in the

municipality of Utsjoki, Finland, and nineteen of them also reside in

Utsjoki. Before the Commission they are represented by Mr. Veikko O.

Hyvönen, a professor at Helsinki University.

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

summarised as follows.

The applicants are owners of real property in the municipality

of Utsjoki, which lies in Lapland. The properties include water areas

made up of sections of the Tenojoki river and of its tributaries. The

Tenojoki is a border river between Finland and Norway.

From 1963 to 1978 district boundaries in the relevant water areas

of the Tenojoki river were set, in the course of which it was

established that the majority of the relevant water areas in Finland

belonged to various individuals, including the applicants, instead of

the Finnish State. The State owns approximately 35 per cent of the

water areas. The district boundaries in water were finally settled by

the Supreme Court's (korkein oikeus) judgment of 27 June 1984.

Since 1873, Finland and Norway have concluded treaties on fishing

in the fishing area (in Finnish "kalastuspiiri", in Norwegian "fiske-

område") of the Tenojoki river. The treaties were made in 1873, 1920,

1938, 1953, 1960, 1972, 1979, 1982 and 1989. The treaties were

accompanied by Fishing Orders (kalastussääntö).

By the time the Convention entered into force in respect of

Finland, on 1O May 1990, the applicants' right to enjoy their

possessions in respect of fishing in their waters were regulated by the

1989 Treaty on the Mutual Fishing Rules regarding the Fishing Area of

the Tenojoki river as well as the corresponding Fishing Order. Both

these instruments entered into force on 1 January 1990 and still apply.

They contain, in so far as relevant for the instant case, the same

provisions as had already been introduced by the 1979 Treaty and

Fishing Order.

By virtue of the 1989 Treaty a fishing licence is obligatory for

everyone wishing to fish in the fishing area of the Tenojoki river. The

1989 Fishing Order prescribes that persons who have fishing rights in

their capacity as owners of the water area and who live permanently in

the river valleys are in a privileged position compared with others

with respect to the price of the fishing licence as well as to the

methods they are allowed to use for fishing. Persons who have inherited

their fishing rights from locals but who do not live in the river

valleys are in some respects on the same footing as the local

residents. Other persons are allowed to fish only with rod and line and

they pay a higher price than local residents for their fishing licence.

The Fishing Order further prescribes that only boats owned by local

residents may be used for fishing.

Furthermore, according to the 1989 Treaty, the income from the

fishing licences shall be divided between the contracting States and

the income shall be used primarily to fund the supervision of fishing

and for methods meant to improve the fish stocks in the Tenojoki river.

Finally, the 1989 Fishing Order granted the County Administrative

Board of Lapland, Finland and the Fylkesman of Finnmark, Norway, the

power to issue further regulations on fishing in certain circumstances.

On 8 March 1991 the Act on compensation for the losses caused by

the 1989 Treaty and by the corresponding Fishing Order with regard to

the Tenojoki river, hereinafter the "1991 Compensation Act", was

issued. By virtue of section 1 of this Act applicants shall be paid

full compensation if a provision of the Treaties of 1972, 1979, 1982

or 1989 or a provision of a Fishing Order based on these Treaties

prevents them from using their fishing rights or causes fundamental

prejudice to the exercise of their fishing rights. However,

compensation for the restrictions in respect of the catching device

shall not be paid in so far as the restriction concerns the design,

time of use or manner of use of the catching device, provided that the

owner of the fishing rights can use or has been able to use his

property in a normal, reasonable and sensible way in spite of the

restriction.

In the compensation proceedings, the Act on Compulsory

Acquisition of Real Property and Particular Rights (laki kiinteän

omaisuuden ja erityisten oikeuksien lunastuksesta) shall be applied.

The compensation decision may be appealed against to the Land Court

(maaoikeus) and, in the final resort, to the Supreme Court.

Compensation proceedings under the 1991 Compensation Act have not yet

begun.

As regards the applicants' right to fish with rod and line in

state-owned waters following the above-mentioned Supreme Court judgment

of 27 June 1984, their claims to such a special fishing right, based

on alleged undisturbed possession since time immemorial, was rejected

by the competent authorities on 13 November 1985.

On 4 April 1989 the Land Court of Northern Finland rejected the

appeals against the above-mentioned authorities' decision in so far as

the appeals concerned the special fishing rights in question.

Fifteen of the applicants (see. Appendix No. 2) appealed against

this judgment to the Supreme Court.

On 28 June 1993 the Supreme Court dismissed the appeal in respect

of the applicants by stating that the areas to which the claims related

were not delimited and specified in such a manner as would allow the

relevant special fishing rights to be attributed to a specific real

property.

COMPLAINTS

1. Under Article 1 of Protocol No. 1 to the Convention the

applicants complain that the requirement of obtaining a fishing licence

in respect of their own property violates their right to peaceful

enjoyment of possessions since they cannot freely use their fishing

rights, which are based on ownership of property. They also complain

that the State sells their exclusive fishing rights to tourists without

returning all the income to them as the owners of the property.

The applicants further complain that the price of the fishing

licence varies according to the criterion of residence and not

according to the criterion of ownership of the property. Even with a

fishing licence, those applicants who live outside the river valleys

have only a fishing right similar to that of any amateur fisherman. The

applicants also maintain that the requirement concerning the use of

boats owned by local residents and the distinction made between persons

who have inherited the property and persons who have obtained the

property by other means violates the right to peaceful enjoyment of

possessions and is discriminatory within the meaning of Article 14 of

the Convention.

2. As regards Article 1 of Protocol No. 1 to the Convention, the

applicants finally complain, in respect of their own property, that the

right of the County Administrative Board and of the Fylkesman to

regulate fishing violate their right to the peaceful enjoyment of their

possessions.

3. Under Article 6 of the Convention, the applicants complain that

since the alleged infringements of their property rights have been

caused by legislation, they cannot obtain a fair hearing since the

courts do not review questions concerning legislation as such.

4. The applicants also complain that their right to peaceful

enjoyment of possessions concerning the special fishing rights in

state-owned waters has been violated.

They maintain that they have, since time immemorial, had the

right to fish with rod and line in water areas which were, by the

Supreme Court's judgment of 27 June 1984, found to belong to the State.

They submit that the Supreme Court's judgment of 28 June 1993

concerning special fishing rights has therefore deprived them of about

35 per cent of the area in which they previously had the right to fish

using this method.

THE LAW

1. The applicants have raised a number of issues under Article 1 of

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

infringements of their right to peaceful enjoyment of their possessions

following the implementation of the 1989 Treaty and the corresponding

Fishing Order. They also invoke Article 14 (Art. 14) of the Convention.

Article 1 of Protocol No. 1 (P1-1) 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 first notes that the 1989 Treaty and the Fishing

Order based thereupon entered into force on 1 January 1990. In so far

as relevant for the instant case the 1989 Treaty and Fishing Order

contain similar provisions to those of the 1979 Treaty and Fishing

Order. The Commission recalls that the Convention entered into force

with regard to Finland only on 10 May 1990. Therefore the question of

whether the application is outside the competence ratione temporis of

the Commission arises. The Commission finds, however, that this

question can be left open since it considers that this part of the

application is in any event inadmissible for the following reasons.

Article 26 (Art. 26) of the Convention provides that the

Commission may deal with a matter only after all domestic remedies have

been exhausted, according to the generally recognised rules of

international law, and within a period of six months from the date on

which the final decision was taken. It is established case-law that

"the final decision" refers only to domestic remedies which can be

considered to be "effective and sufficient" for the purpose of

rectifying the subject-matter of the complaint (see, for example, No.

11763/85, Dec. 9.3.89, D.R. 60 p. 128).

The issue of non-exhaustion involves the question of whether the

applicants could secure compensation under the 1991 Compensation Act.

In this respect the Commission notes that the 1991 Compensation Act

provides for the possibility of receiving full compensation for the

losses caused by the relevant Treaties and Fishing Orders based

thereupon. The opportunity to receive compensation is not restricted

to loss of income only but also covers losses generally. The claim for

compensation shall be dealt with in a similar way to compensation

claims in relation to compulsory acquisition and may be examined,in the

final resort, in the Supreme Court. It has not been substantiated that

the applicants could not secure compensation under the 1991

Compensation Act. The Commission finds that a compensation claim based

on the 1991 Compensation Act is an "effective remedy" in the

circumstances.

Such compensation proceedings have not been instituted and

therefore the condition concerning exhaustion of domestic remedies has

not been fulfilled. It follows that this part of the application must

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

2. The applicants further complain that the County Administrative

Board's and the Fylkesman's right to give regulations on fishing

further violates their rights under Article 1 of Protocol No. 1

(P1-1).

Even assuming that such regulations could affect the applicants'

property rights and even assuming that the Finnish Government could be

held responsible for regulations issued by Norwegian authorities under

a treaty with Finland, the Commission notes that it does not emerge

from the documents that the relevant authorities have issued any

further regulations which might interfere with the applicants'

possessions.

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.

3. The applicants also complain that the interference with their

private property caused by the 1989 Treaty and the 1989 Fishing Order

cannot be brought before a court since the courts do not examine cases

that concern legislation.

The Commission recalls that Article 6 para. 1 (Art. 6-1) does not

guarantee access to a court in order to challenge a law (cf. Eur. Court

H.R., James and Others judgment of 21 February 1986, Series A no. 98,

p. 46, para. 81). However, in respect of the compensation it follows

from the above that, in accordance with the 1991 Compensation Act, this

issue may be brought before a court.

It follows that the application is, in this respect, manifestly

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

Convention.

4. The applicants finally complain, under Article 1 of Protocol

No. 1 (P1-1) to the Convention, that their right to fish in state-owned

waters has been violated.

The Commission notes that only the applicants listed in Appendix

No. 2 have pursued the proceedings concerning the dispute over the

special fishing rights to the court of last resort, i.e. the Supreme

Court. Therefore the Commission finds that the other applicants have

in this respect failed to exhaust domestic remedies. Their application

must accordingly, in respect of this complaint, be rejected under

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

As regards the other applicants the Commission recalls that a

person complaining of an interference with his right to possessions

must show that such a right existed (No. 12164/86, Dec. 12.10.88, D.R.

58 p. 63). The Commission finds, however, that the applicants have not

shown that they possess the special fishing rights referred to.

Accordingly, the Commission concludes that there has been no

interference with any of these applicants' possessions in this respect.

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)

APPENDIX 1

Name Place of residence

AIKIO, Aslak Ola Utsjoki

AIKIO, Josef Aslak Edvard Utsjoki

AIKIO, Klemet Jouni Utsjoki

AIKIO, Laila Kristine Utsjoki

AIKIO, Maarit Elisabet Utsjoki

AIKIO, Matti Uula Utsjoki

GUTTORM, Aimo Utsjoki

GUTTORM, Uula Aslak Utsjoki

HAKAMÄKI, Maire Sinikka Helsinki

HALLAVO, Ilkka Sakari Helsinki

HALLAVO, Olavi Eemil Hämeenlinna

HELANDER, Arvo Olavi Inari

HOLMBERG, Nils Hjalmar Fredrik Utsjoki

HÄMEENHEIMO, Pentti Juhani Helsinki

ISKU-YHTYMÄ OY, Ltd. Lahti

KATAKEETTA, Antti Utsjoki

KÄRKKÄINEN, Kaarlo Alvar Utsjoki

LAITI, Samuel A. Utsjoki

LUKKARI, Aslak Uula Utsjoki

LUKKARI, Birit Kaarina Vadsö, Norway

LUKKARI, Inga Liisa Inari

LUKKARI, Pekka Andreas Utsjoki

LUOMA, Terttu Maria Rovaniemi

LÄNSMAN, Antti Utsjoki

NENONEN, Eino Uljas Pieksämäki

NENONEN, Markku Juhani Pieksämäki

NENONEN, Saimi Marjatta Pieksämäki

NENONEN, Sakari Antero Pieksämäki

NENONEN, Tuula Anneli Pieksämäki

NILLUKKA, Elli Rauna Utsjoki

NUORGAM-POUTASUO, Helvi Utsjoki

OLLILA, Maarit Anna Helena Inari

PALTTO, Oswald Utsjoki

PEKKALA, Ellen Raudna Inari

PEKKALA, Olli Sauli Samuli Inari

PIESKI, Hans Jouni Helsinki

PORSANGER, Samuel Raisio

PORSANGER, Uula Jooseppi Utsjoki

SALMELA, Jaakko Pekka Uolevi Hämeenlinna

SALMELA, Kari Esa Juhani Hämeenlinna

SAXHOLM, Pentti Ilmari Hämeenlinna

SEPPÄLÄINEN, Vilho Olavi Espoo

TAIVALAHO, Juhani Kalervo Rovaniemi

VAHVELAINEN, Mauri Kalevi Hyvinkää

VAHVELAINEN, Ritva Liisa Irmeli Hyvinkää

YLÄTALO, Jorma Olavi Hämeenlinna

APPENDIX 2

Name Place of residence

AIKIO, Aslak Ola Utsjoki

AIKIO, Josef Aslak Edvard Utsjoki

AIKIO, Klemet Jouni Utsjoki

AIKIO, Laila Kristine Utsjoki

AIKIO, Maarit Elisabet Utsjoki

AIKIO, Matti Uula Utsjoki

GUTTORM, Aimo Utsjoki

HOLMBERG, Nils Hjalmar Fredrik Utsjoki

KATEKEETTA, Antti Utsjoki

LAITI, Samuel A. Utsjoki

LUKKARI, Aslak Uula Utsjoki

LUKKARI, Pekka Andreas Utsjoki

PALTTO, Oswald Utsjoki

PORSANGER, Uula Jooseppi Utsjoki

SEPPÄLÄINEN, Vilho Olavi Espoo

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PORSANGER AND OTHERS v. FINLAND

PORSANGER AND OTHERS v. FINLAND

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