Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22030/93

by D.S.

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, 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

G.B. REFFI

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 20 August 1992 by

D.S. against Finland and registered on 10 June 1993 under file

No. 22030/93;

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 applicant is a Swiss citizen, born in 1962 and resident at

Kuopio, Finland. He is an engineer by profession.

On 18 February 1991 the Office for Motor-Vehicles Inspection

(katsastuskonttori, besiktningskontoret; hereinafter "the Inspection

Office") of Kuopio granted the applicant a permit to reconstruct his

car so that it would correspond to another model of the same brand.

According to the terms of the permit, the allowed weight on the axles

of the reconstructed car could not exceed that stipulated for the model

already in the applicant's possession. For the purpose of having his

reconstructed car registered, the applicant was also ordered to have

the position of the wheels inspected.

On 7 May 1991 the National Motor-Vehicle Registration Centre

(autorekisterikeskus, bilregistercentralen; hereinafter "the National

Centre") rejected the applicant's appeal against the decision of

18 February 1991 concerning the above-mentioned conditions. The Centre

had obtained the Kuopio Inspection Office's opinion on the appeal. This

had not been communicated to the applicant for possible comments before

the Centre had examined his appeal. The applicant's subsequent attempts

to obtain a copy of the opinion from the Centre were unsuccessful.

In rejecting his appeal the Centre noted that in spite of its

requests the applicant had not submitted certain technical

clarification. According to the applicant, he had received the

clarification request about a month prior to the Centre's decision

without any time-limit having been fixed for his response. At the time

of the Centre's decision he was attempting to find an expert who could

submit the clarification needed.

On 8 May 1992 the Ministry of Transport and Communications

(liikenneministeriö, trafikministeriet) rejected the applicant's appeal

against the decision of 7 May 1991. The Ministry had obtained opinions

on the appeal from the National Centre as well as from the importer of

the car brand. These had not been communicated to the applicant for

comments before the Ministry had examined his appeal. The applicant

subsequently obtained a copy from the Ministry of the relevant

opinions. In the Ministry's letter to the applicant dated

10 August 1992 it was explained that the opinions had not been decisive

for the outcome of his appeal. No further appeal lay open to the

applicant.

On 23 December 1992 the applicant's reconstructed car was

approved and registered. The allowed total weight on the axles of the

car was, however, further restricted and the allowed number of

passengers reduced. The applicant's objected to this condition,

referring to a certificate by the importer of the car brand. This

objection was apparently left without action by the National Centre.

According to the 1982 Decree on Vehicles (ajoneuvoasetus 233/82,

fordonsförordning 233/82; later replaced by Decree no. 1256/92), the

reconstruction of a vehicle which is subject to inspection shall be

permitted only upon a decision made by the National Centre or an

Inspection Office (section 16, as amended by Decree no. 547/87).

The 1981 Road Traffic Act (tieliikennelaki 267/81, vägtrafiklag

267/81) and the 1989 Decree on the Registration of Vehicles (asetus

842/89 ajoneuvojen rekisteröinnistä, förordning 842/89 om registrering

av fordon; now replaced by Decree no. 1703/92) as well as the 1989

Decree on the Inspection of Vehicles (asetus 843/89 ajoneuvojen

katsastuksesta, förordning 843/89 om besiktning av fordon; now replaced

by Decree no. 1702/92) require that a vehicle normally be inspected and

registered before it can be lawfully used in traffic (section 84 of the

1981 Act, as amended by Act no. 818/89, section 8 of Decree no. 842/89

as well as section 17 of Decree no. 843/89). At the relevant time an

appeal against a decision of an Inspection Office lay to the National

Centre and from there to the competent Ministry (section 36(2) of

Decree no. 843/89).

COMPLAINTS

1. The applicant complains that he was denied a fair and impartial

hearing in the proceedings before the National Centre and the relevant

Ministry concerning the conditions attached to the reconstruction

permit. He considers that the proceedings involved a determination of

his civil right to make use of his possessions and submits that the

authorities based their decisions on material which had not been

communicated to him in advance and which he could not therefore

challenge. He was, moreover, refused access to the material even after

the respective authorities had made their decisions. The National

Centre made its decision without affording him reasonable time to

obtain the clarification requested and took his failure to submit such

clarification into account when rejecting his appeal. He invokes

Article 6 para. 1 of the Convention.

2. The applicant also complains that the restrictions on the allowed

total weight on the axles of his reconstructed car violated his

property rights. This weight should have corresponded to that of the

brand model into which he had been permitted to change his car. The

restrictions did not pursue any public interest and were imposed

without any attention having been paid to the views of the importer of

the car brand. In this respect the applicant invokes Article 1 of

Protocol No. 1.

THE LAW

1. The applicant complains that he was denied a fair and impartial

hearing in the proceedings before the National Centre and the relevant

Ministry concerning the conditions attached to the reconstruction

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

which, in so far as it is relevant, reads as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing ...

by [a] ... tribunal established by law. ..."

The Commission has first ascertained whether Article 6 para. 1

(Art. 6-1) of the Convention is applicable in the instant case and,

notably, whether there was a dispute over a "civil right" which can be

said, at least on arguable grounds, to be recognised or imposed under

domestic law. The dispute must be genuine and serious and its outcome

must be directly decisive for the "right" in question (e.g., Eur. Court

H.R., Zander v. Sweden judgment of 25 November 1993, Series A no. 279-

B, p. 38, para. 22).

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

aimed at creating new substantive rights without a legal basis in the

Contracting State, but at providing procedural protection of rights

already recognised in domestic law (e.g., Eur. Court H.R., W. v.

the United Kingdom judgment of 8 July 1987, Series A no. 121-A, p. 32-

33, para. 73). Nevertheless, the notion of "civil rights and

obligations" cannot be interpreted solely by reference to the domestic

law of the respondent State (e.g., Eur. Court H.R., König judgment of

28 June 1978, Series A no. 27, pp. 29-30, paras. 88-89).

The Commission notes that the reconstruction permit was granted

to the applicant on certain conditions. Among other requirements, it

imposed an obligation on him to have the modified car inspected and

registered before it could be lawfully used in traffic. The dispute at

the core of the proceedings referred to in the present complaint did

not concern the subsequent further restriction imposed at the time of

the registration of the modified car. The Commission notes that this

restriction appears to have been separately challenged by the applicant

as going beyond the conditions prescribed in the reconstruction permit

which he apparently considered himself to have complied with.

The Commission therefore finds that the applicant could not

arguably claim that a "right" of his was at stake already in the

proceedings concerning the conditions attached to the reconstruction

permit (cf., e.g., the above-mentioned Zander v. Sweden judgment,

p. 40, para. 25). Accordingly, Article 6 para. 1 (Art. 6-1) of the

Convention is not applicable in the particular circumstances of the

case.

It follows that this complaint must be rejected as being

incompatible ratione materiae with the Convention within the meaning

of Article 27 para. 2 (Art. 27-2).

2. The applicant also complains that the restrictions on the allowed

total weight on the axles of his reconstructed car violated his

property rights. In this respect he invokes Article 1 of Protocol No. 1

(P1-1) which 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."

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., Allan Jacobsson judgment of

23 October 1989, Series A no. 163-A, p. 16, para. 53).

The Commission finds that the conditions attached to the

reconstruction permit and the subsequent further restriction on the

allowed weight on the axles of the applicant's car constituted a

control of the use of his possessions which is to be examined under the

second paragraph of Article 1 of Protocol No. 1 (P1-1). Under this

provision the Contracting States are entitled, amongst other things,

to control the use of property in accordance with the general interest

by enforcing such laws as they deem necessary for the purpose. However,

there must exist a reasonable relationship of proportionality between

the means employed and the aim sought to be realised. In striking the

fair balance thereby required between the general interest of the

community and the requirements of the protection of the individual's

fundamental rights, the authorities enjoy a wide margin of appreciation

(ibid., p. 17, para. 55).

The applicant has not alleged that the restrictions were not in

accordance with domestic law and the Commission finds no reason to

conclude otherwise. The Commission finds it reasonable to conclude that

the restrictions were based on traffic security considerations.

Finally, bearing in mind the State's margin of appreciation, it finds

no indication that the restrictions were disproportionate to that

purpose. Accordingly, there is no appearance of a violation of

Article 1 of Protocol No. 1 (P1-1).

It follows that this complaint must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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D. S. v. FINLAND

D. S. v. FINLAND

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