Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24579/94

by Arto KETO-TOKOI and Others

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 30 June 1994 by

Arto Keto-Tokoi and Others against Finland and registered on

11 July 1994 under file No. 24579/94;

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 set out in the Annex. They are represented by

Ms. Pirjo-Riitta Oinaala, a lawyer of the Finnish Association for

Nature Conservation ("Suomen luonnonsuojeluliitto").

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

summarised as follows.

The first four applicants are owners of properties in the

municipality of Pelkosenniemi near the river Vuotos in the county of

Lapland in northern Finland. The fifth applicant is a local association

of reindeer owners.

On 27 May 1993 the Government (hallitus, regeringen), sitting in

its capacity as Council of State (valtioneuvosto, statsrådet) decided

to give up 3.800 hectares of State-owned land in the so-called Vuotos

area to the company Kemijoki Oy. Kemijoki Oy is a limited liability

company in which the State holds the vast majority of the shares. In

exchange for the land given up the State was to receive land from the

company at a corresponding value. The land given up was to be used for

the construction of an artificial lake and a related hydro-electric

power station. The transfer was made pursuant to the Act on the

Transfer and Exchange of Rapids in the Water System of the Kemijoki

River (laki Kemijoen vesistössä olevan koskiomaisuuden luovuttamisesta

ja vaihdosta, lag om överlåtelse och utbyte av strömfallsegendom i Kemi

älvs vattendrag; Act no. 458/52, title as amended by Act no. 311/54;

"the 1952 Act") and was to take effect on 30 September 1993.

In a memorandum to the Council of State of 24 May 1993 the

official in charge of preparing the proposal for the land transfer for

the Minister of Agriculture and Forestry stated that this would be a

strong expression of support for the construction of the artificial

lake . It would, moreover, "be of importance in the proceedings pending

before the Water Court" (vesioikeus, vattendomstolen), given that it

would increase Kemijoki Oy's share of the land needed for the lake from

53 to 66 per cent. This would create a higher probability that the

Water Court would permit the company to construct the lake. In

addition, it would enable the State to avoid expropriation proceedings

in respect of its land and instead enable it to obtain more productive

land in exchange.

A permit for the construction of the artificial lake had been

requested by Kemijoki Oy on 25 September 1992. The proceedings are

still pending before the Water Court of Northern Finland.

On 22 December 1992 the Government had proposed to Parliament

that the 1952 Act be repealed. In their Bill (no. 256/92) the

Government had explained that the Act had been enacted for the sole

purpose of transferring properties to the company Kemijoki Oy at the

time of its foundation.

Prior to its decision of 27 May 1993 the Chancellor of Justice

(valtioneuvoston oikeuskansleri, justitiekanslern i statsrådet)

considered whether the Council of State was competent to decide on the

matter. His conclusion was affirmative, regard being had to the

preparatory works to the 1952 Act. The Chancellor also noted the

State's long-standing practice of giving up land in similar situations,

where a request for a permit was simultaneously pending before the

courts.

The applicants appealed against the Council of State's decision

to the Supreme Administrative Court (korkein hallinto-oikeus, högsta

förvaltningsdomstolen), arguing that, although the transfer concerned

their rights of usufruct in respect of the State-owned land, they had

not been heard. They argued, in particular, that the transfer had had

the effect of limiting their possibility of herding reindeer in the

area. It had allegedly also deprived them of their right of common

(jokamiehenoikeus, allemansrätt), including, for instance, their right

to hunt, fish as well as to pick wild berries and mushrooms on the

State-owned land. The Hirvasniemi association of reindeer owners

referred to section 53 of the 1990 Reindeer Herding Act (poronhoitolaki

848/90, renskötsellag 848/90), according to which the State authorities

shall consult with the representatives of the associations of reindeer

owners when considering measures concerning State-owned land which

could significantly affect the herding of reindeer.

On 31 December 1993 the Supreme Administrative Court dismissed

the applicants' appeal without examining its merits, having found that

the Council of State's decision had not concerned their rights or

interests. Consequently, they could not be granted standing as

appellants. The Court noted, in particular, that under section 3 of the

Reindeer Herding Act reindeer could be kept within an area specifically

reserved for herding, regardless of the right of ownership or usufruct

in respect of that area.

In response to a complaint lodged by the applicants'

representative the Parliamentary Ombudsman (eduskunnan oikeusasiamies,

riksdagens justitieombudsman), on 31 August 1995, criticised the

Minister of Agriculture and Forestry for not having verified, before

participating in the Council of State's decision of 27 May 1993,

whether he was biased in the matter. The Ombudsman noted that the

Minister had been the owner of a property which would be affected by

the artificial lake, if it were to be constructed. He had later sold

the property to a company which he partly owned and to which

compensation would be paid, if Kemijoki Oy's plans to construct the

lake would materialise. In these circumstances the Ombudsman found that

the Minister should have abstained from preparing the Council of

State's decision and participating therein.

COMPLAINTS

1. The applicants complain that they were denied access to a

tribunal within the meaning of Article 6 para. 1 of the Convention for

the purpose of having their civil rights and obligations determined.

Their activities on the State-owned land transferred to Kemijoki Oy

allegedly constituted an important part of their livelihood. Apart from

having been herding reindeer there they had extensively been using

their right of common in respect of the land. They applicants

emphasise, moreover, that the activities of the Hirvasniemi reindeer

owners' association would cease to exist, if the artificial lake is

constructed by the company as planned. In these circumstances the

applicants should have been granted standing to appeal to the Supreme

Administrative Court.

The applicants furthermore complain under Article 6 para. 1 about

the alleged unfairness of the proceedings before the Supreme

Administrative Court terminating in the dismissal of their appeal

without an examination of its merits. It is alleged that the Supreme

Administrative Court did not provide sufficient reasons for finding

that they lacked standing to appeal. The reasons given were, moreover,

essentially incorrect.

The applicants also complain that the Supreme Administrative

Court's refusal to grant them standing as appellants discriminated

against them, contrary to Article 14 of the Convention read in

conjunction with Article 6 para. 1.

2. The applicants furthermore complain that the transfer of

State-owned land to the company Kemijoki Oy violated their right under

Article 1 of Protocol No. 1 peacefully to enjoy their possessions. The

land transfer is to be seen as an inherent part of the future

deprivation of their property rights. For instance, if the artificial

lake is constructed in accordance with the company's plans, at least

part of their properties would be flooded and form the bottom of the

lake. In addition, the fourth applicant's house is located within the

area to be flooded. The land transfer was not in compliance with

domestic law, since the matter should have been decided by Parliament.

Moreover, the Minister of the Council of State who was finally

responsible for proposing the land transfer and who participated in the

Council's decision owns real property within the area of the planned

lake and was thus biased.

3. The applicants also complain of the absence of an effective

remedy, this being a violation of Article 13 of the Convention.

4. The applicants finally complain under Article 17 of the

Convention that the conduct of the authorities, seen as a whole, has

been and continues to be aimed destroying their right peacefully to

enjoy their possessions as well as their right to an effective remedy.

Under Article 18 of the Convention the applicants complain that the

land transfer restricted their rights for purposes not prescribed by

the Convention.

THE LAW

The Commission considers that it need not determine whether the

fifth applicant can claim status as "victim" within the meaning of

Article 25 para. 1 (Art. 25-1) of the Convention, since the application

is in any case inadmissible as a whole for the reasons below.

1.(a) The applicants complain under Article 6 para. 1 (Art. 6-1) of the

Convention that they were denied access to a tribunal for the purpose

of having their civil rights and obligations determined. They

furthermore complain under Article 6 para. 1 (Art. 6-1) about the

alleged unfairness of the proceedings before the Supreme Administrative

Court terminating in the dismissal of their appeal without an

examination of its merits.

In so far as it is relevant Article 6 para. 1 (Art. 6-1) reads

as follows:

"In the determination of his civil rights and obligations

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

by an independent and impartial 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" or

"obligation" 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 (cf., e.g., Eur. Court H.R., Oerlemans judgment of

27 November 1991, Series A no. 219, pp. 20-21, paras. 45-49).

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, pp. 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 applicants consider the transfer of State-owned land to the

company Kemijoki Oy as an inherent part of the future deprivation of

their own property rights, bearing in mind that the transfer took place

with the intention of enabling the company to construct an artificial

lake covering also surrounding private land, in accordance with a

permit to that effect which has yet to be granted. However, the

Commission notes the Supreme Administrative Court's finding that the

applicants may continue to keep reindeer on the land transferred to the

company despite the change of ownership. The Commission finds no reason

to question the Supreme Administrative Court's interpretation of

domestic law on this point. Nor is the Commission convinced by the

applicants' argument that their other activities on the State-owned

land had been of such a nature that they could arguably claim that the

land transfer involved a determination of a civil right or obligation

of theirs. It notes that the right invoked by the applicants in this

respect is of a public law character, since it belongs to everyone

frequenting the land at issue, regardless of the formal title of

ownership in respect of the land (cf., as regards the nature of a right

of common, No. 9465/81, Dec. 4.10.84, D.R. 39, p. 85).

In these particular circumstances the Commission concludes that

the applicants could not arguably claim that a civil right or

obligation of theirs was at stake in the proceedings before the Supreme

Administrative Court as a result of the transfer of the State-owned

land to the company. The Commission consequently finds that the Supreme

Administrative Court's dismissal of the applicants' appeal without an

examination of its merits did not involve any determination of their

"civil right" or "obligation" (cf. No. 6916/75, Dec. 8.10.76, D.R. 6,

p. 107). Accordingly, Article 6 para. 1 (Art. 6-1) of the Convention

is not applicable.

It follows that this aspect of the complaint must be rejected as

being incompatible ratione materiae with the Convention within the

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

(b) The applicants also complain that the Supreme Administrative

Court's refusal to grant them standing as appellants discriminated

against them, contrary to Article 14 (Art. 14) of the Convention read

in conjunction with Article 6 para. 1 (Art. 6-1).

Article 14 (Art. 14) reads as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any

ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin,

association with a national minority, property, birth or

other status."

The Commission recalls that Article 14 (Art. 14) complements the

other substantive provisions of the Convention and the Protocols. It

has no independent existence since it has effect solely in relation to

"the enjoyment of the rights and freedoms" safeguarded by those

provisions. Although the application of Article 14 (Art. 14) does not

presuppose a breach of those provisions - and to this extent it is

autonomous -, there can be no room for its application unless the facts

at issue fall within the ambit of one of more of the latter (e.g., Eur.

Court H.R., Karlheinz Schmidt v. Germany judgment of 18 July 1994,

Series A no. 291-B, p. 32, para. 22).

The Commission has just found that Article 6 para. 1 (Art. 6-1)

is not applicable in the present case. Accordingly, Article 14

(Art. 14) read in conjunction with that provision is also inapplicable.

It follows that this aspect of the complaint must also be

rejected as being incompatible ratione materiae with the Convention

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

2. The applicants furthermore complain that the transfer of

State-owned land to the company Kemijoki Oy violated their right under

Article 1 of Protocol No. 1 (P1-1) peacefully to enjoy their

possessions. They also invoke Articles 17 and 18 (Art. 17, 18) of the

Convention.

Article 1 of Protocol No. 1 (P1-1) to the Convention 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 the 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, p. 16, para. 53).

The Commission finds that the situation complained of did not

amount to a deprivation of the applicants' possessions within the

meaning of the second sentence of the first paragraph of Article 1

(P1-1). Nor did it constitute a control of the use of the applicants'

properties which would have to be examined under the second paragraph

of Article 1 (P1-1).

The Commission has next ascertained whether the situation

complained of amounts to an interference with the right guaranteed to

the applicants in the first sentence of the first paragraph of

Article 1 (P1-1). However, having examined their complaint concerning

the lack of a judicial review of the land transfer, the Commission has

just concluded that in the proceedings before the Supreme

Administrative Court the applicants could not arguably claim that any

civil right of theirs was at stake as a result of the transfer.

Referring to its above finding, the Commission concludes that there has

been no interference with their right to the peaceful enjoyment of

their possessions as a result of the land transfer.

It follows that this complaint must also be rejected as being

incompatible ratione materiae with the Convention within the meaning

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

3. The applicants furthermore complain of the absence of any other

effective remedy, this being a violation of Article 13 (Art. 13) of the

Convention. This provision 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."

In view of its above conclusions with regard to other aspects of

the application the Commission considers that the applicant has no

"arguable claim" of a breach of a violation of the Convention or its

Protocols which would warrant a remedy under Article 13 (Art. 13)

(e.g., Eur. Court H.R., Powell and Rayner judgment of 21 February 1990,

Series A no. 172, p. 20, para. 46).

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.

4. The applicants have finally invoked Articles 17 and 18

(Art. 17, 18) of the Convention.

The Commission finds no issue under any of these provisions.

It follows that this complaint must also 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)

ANNEX

The applicants are:

1. Mr. Arto Keto-Tokoi, a farmer born in 1963 and resident at

Pelkosenniemi;

2. Ms. Helmi Poikela, a pensioner born in 1923 and resident at

Pelkosenniemi;

3. Mr. Tauno Poikela, a pensioner born in 1927 and resident at

Pelkosenniemi;

4. Mr. Veikko Schroderus, a pensioner at Pelkosenniemi; and

5. The Hirvasniemi reindeer owners' association (Hirvasniemen

paliskunta) at Pelkosenniemi, represented by its Chairman

(poroisäntä), Mr. Jukka Knuutti, resident at Kemijärvi.

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KETO-TOKOI AND OTHERS v. FINLAND

KETO-TOKOI AND OTHERS v. FINLAND