Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19761/92

by Sulo ESKELINEN and 54 others

against Finland

The European Commission of Human Rights sitting in private on

10 October 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 January 1991

by Sulo ESKELINEN and 54 others against Finland and registered on

24 March 1992 under file No. 19761/92;

Having regard to :

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on

5 April 1993 and the observations in reply submitted by the

applicants on 12 July and 10 October 1993 as well as on

15 June and 5 September 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are set out in the Annex to the decision. They are

owners of properties in the area of Koli. All individuals are Finnish

citizens. Before the Commission the applicants are represented by the

association "Pohjois-Karjalan Talous ja Luonto".

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

summarised as follows.

Particular circumstances of the case

At its unofficial evening session on 13 June 1990 the Government

decided "in principle" (periaatepäätös, principbeslut) to create a

natural park in an area of over 20 km2 within the boundaries of the

city of Lieksa and, more precisely, the hills between Koli and

Vesivaara as well as the islands in the lake of Purjeselkä in the

Pielinen lake district.

On 22 November 1990 the Government, sitting in their capacity as

Council of State (valtioneuvosto, statsrådet), decided to propose to

the President of the Republic that he present a Government Bill

regarding the establishment of the park. A draft Bill had been

submitted for comments to, inter alia, the municipalities concerned.

The municipalities had furthermore been requested to provide the owners

of properties within the proposed so-called outline objective (tavoite-

rajaus, åsyftad gränsdragning), i.e. the areas intended to be acquired

for inclusion in the park, with an opportunity to submit their

comments.

In the preamble to the relevant Bill submitted to Parliament by

the President of the Republic on 23 November 1990 (hallituksen

esitys 307/90, regeringens proposition 307/90) the Government stated,

inter alia:

(translation from Finnish)

"It is proposed to create the Koli natural park ... within

an area of 1.135 hectares. ... The area to be protected is

owned by the State ... It is intended to extend the park to

about 2.500 hectares at a later stage. The final extent of

the park appears from the map annexed to this Bill. ..."

In the commentary to the Bill the Government referred to a

regional plan (seutukaava, regionplan) confirmed by the Council of

State in 1979, reserving 975 hectares of the Koli hill area and the

islands in the Pielinen lake district as an area conservable in

accordance with the 1923 Conservation Act (luonnonsuojelulaki 71/23,

lag 71/23 om naturskydd; hereinafter "the 1923 Act"). Moreover, the

Ministry for the Environment (ympäristöministeriö, miljöministeriet)

had, in 1987, confirmed a decision by the City Council (kaupungin-

valtuusto, stadsfullmäktige) of Lieksa to adopt a partial general plan

(osayleiskaava, delgeneralplan) for the Koli hill area. The conservable

area had, with the exception of the islands, been included in that

plan.

In the commentary to the Bill the Government further stated,

inter alia:

(translation from Finnish)

"... The Koli natural park is intended to be extended to

about 2.500 hectares in accordance with the map enclosed

with the Bill. This presupposes the acquisition of about

1.500 hectares of areas by the State ... It is ... the

intention to see to it that no activities significantly

affecting the natural state ... are being carried out

within the area to be acquired. In this respect it is

intended to apply the same practice as in respect of

private properties protected for natural park purposes on

the basis of other decisions of principle made by the

Government. The acquisition of the properties on which no

activities of the above-mentioned kind are being carried

out will take place at a later stage according to a

schedule separately agreed to by the conservation

authorities and the property owner. ..."

The map indicating the so-called outline objective did not

specify the properties concerned.

According to the applicants, the outline objective covers an area

forming part not only of the city of Lieksa, but also of the

municipalities of Kontiolahti and Eno. With the exception of certain

islands the area within the outline objective has not been reserved in

the regional plan of 1979 as conservable areas. Moreover, apart from

three property units and one island the partial general plan of 1987

only includes State properties. The area belonging to the city of

Lieksa is covered by a partial general plan adopted by the City Council

in 1986, the decision not having been confirmed by the Ministry for the

Environment, and thus constitutes a so-called general plan of the first

degree (for the legal effects of such a plan, see the jurisprudence of

the Supreme Administrative Court below under "Relevant domestic law and

practice", para. 5). In that plan only two sub-areas, namely the

islands in the Purjeselkä lake district and a grove at Murhivaara have

been reserved as conservable areas, the islands on the basis of the

so-called ridge protection programme adopted by the Council of State

in 1984 and the grove on the basis of the so-called grove protection

programme adopted by the Council of State in 1989. A further area

within the outline objective near the hill of Paimenenvaara is covered

by a shore plan (rantakaava, strandplan) adopted by the City Assembly

of Lieksa in July 1990. This plan reserves part of the area as a

conservable one. As finally regards the areas within the outline

objective situated in the municipalities of Kontiolahti and Eno, a

partial general plan is being drawn up. In January 1991 there were five

leisure houses within the outline objective.

In the course of the consideration of the Bill by Parliament both

the Standing Parliamentary Committee for Constitutional Affairs

(perustuslakivaliokunta, grundlagsutskottet) and the then Standing

Parliamentary Committee for Legal and Economic Affairs (laki- ja

talousvaliokunta, lag- och ekonomiutskottet) considered that the

commentary to the Bill expressing the Government's intentions to extend

the park area by acquiring private properties was not legally binding.

By a letter of 23 November 1990 to the County Administrative

Board (lääninhallitus, länsstyrelsen) of Northern Karelia the Ministry

for the Environment drew the Board's attention to Bill no. 307/90,

according to which about 1.500 hectares of private properties were

intended to be acquired in order for the park to achieve its final

size. The Ministry therefore wished that the Board would promote

voluntary property sales. Reference was also made to the Government's

intention, as expressed in the Bill, to prevent any activity within the

outline objective that would significantly change the natural state of

the area. The Ministry continued:

(translation from Finnish)

"...In the extension of [the park area] [the County

Administrative Board] should (in Finnish "tulisi")

therefore rely on the principles applied with regard to the

implementation of other natural parks including private

properties [and established by] decisions of principle of

the Council of State. In this respect the Ministry refers

to the circular letter of the Ministry of Agriculture and

Forestry (maa- ja metsätalousministeriö, jord- och

skogsbruksministeriet) of 14 April 1983 to the County

Administrative Boards. The Ministry [for the Environment]

is of the opinion that in the implementation of the Koli

Natural Park the principles stated in [that] letter shall

(in Finnish "tulee") be applied. As regards construction

within the proposed park area, sections 52 and 124 of the

1959 Building Decree [rakennusasetus 266/59,

byggnadsförordning 266/59; hereinafter "the 1959 Decree"],

as amended by Decree no. 480/90, shall be applied (in

Finnish "on noudatettava")...."

In its circular letter of 14 April 1983 the Ministry of

Agriculture and Forestry had stated, inter alia, the following:

(translation from Finnish)

"... In practice cases have appeared where drainage has

been carried out on private land [proposed to form part of

a natural park or a protected swamp]. In such cases it is

evident that the property owner will not take any measures

in order to have his property protected [under section 9 of

the 1923 Act] and that the property cannot be bought from

the owner before its value as a property to be protected

has significantly decreased. Such properties are therefore

normally to be acquired by means of expropriation under

section 18 para. 1 of [the 1923 Act]. ... Accordingly, also

the conditions for issuing an activity prohibition

(toimenpidekielto, åtgärdsförbud) under section 18,

subsection 2 are fulfilled. The County Administrative

Boards should (in Finnish "tulisi") therefore, having been

informed of ... drainage [taking place on a property],

immediately issue an activity prohibition. In respect of

properties located within the boundaries of a national park

an activity prohibition should (in Finnish "tulisi") also

be issued in situations where logging, taking of gravel or

construction not agreed to by [the Ministry] is being

carried out. [The Ministry] shall immediately be informed

of any prohibition on activity and will proceed to having

the property expropriated.

...

Finally, the Ministry draws the Boards' attention to the

fact that, in the absence of an explicit request by [the

Ministry], the conditions under section 18, subsection 2 of

[the 1923 Act] warranting an activity prohibition are not

normally fulfilled in respect of any other areas than those

stated in the above [programmes for nature conservation]."

In a further circular letter of 3 October 1986 from the Ministry

for the Environment to all County Administrative Boards, Municipal

Boards (kunnanhallitukset, kommunstyrelser) and Regional Planning

Authorities the Ministry had stated that conservation programmes

adopted by the Council of State shall (in Finnish "tulee") be taken

into account in the planning in order to further the realisation of the

programmes.

In February 1991 all applicants except applicant no. 15 lodged

both an ordinary and an extraordinary appeal (kantelu, klagan) with the

Supreme Administrative Court (korkein hallinto-oikeus, högsta

förvaltningsdomstolen) against Bill no. 307/90. They submitted, in

essence, that a prohibition on construction and other activities within

the outline objective had entered into effect immediately upon the

Government's decision of principle to establish the Koli Natural Park.

The restrictions on the use of their properties had caused the

appellants considerable financial damage. The inclusion of private

properties in the park had only been mentioned in the Government's

commentary to the Bill. The Parliament had, however, not been competent

to examine the commentary to the Bill, but only the provisions of the

proposed statute. Moreover, the ministerial "order" of 23 November 1990

had been written in an imperative form, leaving no room for discretion.

Any subsequent measure taken by the regional and local administrative

authorities could only amount to an enforcement of the decision of the

Council of State to establish the outline objective. The legal effects

of the outline objective were somewhat similar to those of certain

planning decisions made in accordance with the 1958 Building Act

(rakennuslaki 370/58, byggnadslag 370/58; hereinafter "the 1958 Act")

and entailing an immediate de jure prohibition on construction.

Considering all the elements together, the outline objective and the

related restrictions on the applicants' use of their properties had

become de facto binding on 23 November 1990, although in the absence

of any legal basis. Finally, despite its alleged effects on their

properties the applicants had neither been heard prior to the decision

nor had they received subsequent notification of it.

On 6 February 1991 applicants nos. 14 and 15 informed the

authorities of their intention to log forest on their property Erämaa

28:18 at Kontiolahti which is located within the outline objective.

On 15 February 1991 the Act on the Koli Natural Park (laki 581/91

Kolin kansallispuistosta, lag 581/91 om Koli nationalpark; "the 1991

Act") was enacted by Parliament.

On 14 March 1991 the County Administrative Board issued an

activity prohibition with regard to Erämaa 28:18, apparently valid for

one year. The Board stated, inter alia:

(translation from Finnish)

"... The extension of the ... park is intended to take

place either through voluntary sales or property exchanges.

It is furthermore intended that no activities significantly

changing the natural state be carried out within the ...

outline objective. The logging planned [by applicants nos.

14 and 15] must be considered to significantly change the

natural state of the area. [Applicants nos. 14 and 15] have

... stated their unwillingness to sell [their property] to

the State or to exchange it [for another property] ... and

have stated that they are unwilling to postpone the logging

pending negotiations. A question of expropriation for

conservation purposes must therefore be considered to have

arisen. ..."

In a resolution (ponsi, kläm) adopted on 27 March 1991 Parliament

(eduskunta, riksdagen) presupposed that the Council of State would

ensure that the legal status and protection of the private property

owners affected by the 1991 Act were not jeopardised. Parliament

further required that the park area only be extended through voluntary

property sales or exchanges. Resolutions of this character are not

legally binding.

Following the expiry of the activity prohibition concerning the

property Erämaa 28:18 the County Administrative Board on 9 November

1992 decided to grant applicants nos. 14 and 15 compensation for the

losses suffered by them on account of the prohibition.

On 10 April 1991 the 1991 Act entered into force. A Decree

(asetus 674/91 Kolin kansallispuistosta, förordning 674/91 om Koli

nationalpark; hereinafter "the 1991 Decree") was issued on

12 April 1991 and entered into force on 1 May 1991, but it applies only

to State-owned land within the park area.

On 17 May 1991 the Supreme Administrative Court dismissed the

appeals lodged by all applicants except applicant no. 15, finding that

it had no competence to examine a legislative matter.

In a letter of 21 May 1991 to the association representing the

applicants before the Commission the Ministry for the Environment

considered the outline objective to be valid as it appeared from Bill

no. 307/90. The Ministry referred to the Supreme Administrative Court's

decision and its own letter of 23 November 1990.

The association representing the applicants has unsuccessfully

attempted to obtain confirmation from the County Administrative Board

and the Ministry for the Environment of the properties included in the

outline objective. The County Administrative Board itself has also

requested the Ministry to clarify the legal situation in respect of the

private properties to be included in the park. With the exception of

the above-mentioned ministerial letter of 21 May 1991 no such

clarification has been provided.

On 30 November 1992 the Parliamentary Ombudsman (eduskunnan

oikeusasiamies, riksdagens justitieombudsman) rendered his decision in

response to complaints lodged by, inter alia, the association

representing the applicants before the Commission. The Ombudsman

considered as regards, inter alia, the letter from the Ministry for the

Environment on 23 November 1990

- that the Ministry had incorrectly considered the outline

objective referred to in the commentary to Bill no. 307/90

to be on an equal footing with nature conservation

programmes adopted by the Council of State through

decisions "of principle";

- that the outline objective could not be placed on an

equal footing with areas to which sections 52 and 124 of

the 1959 Building Decree are applicable;

- that as a result the Ministry had incorrectly ordered the

municipal Building Boards (rakennuslautakunnat,

byggnadsnämnderna) to hear the County Administrative Board

in accordance with those provisions, when considering a

request for a permit for construction;

- that no actual decision had been made by the Council of

State in regard to the outline objective;

- that the Ministry's letter was only an internal

administrative letter containing a directive (toimiohje,

direktiv) to a lower-ranking authority;

- that the Ministry's view expressed in the Government's

commentary to Bill no. 307/90 to the effect that the

private properties within the outline objective should be

acquired by the State, did not constitute a redemption

decision and thus did not as such grant the State any right

to proceed to redemption of properties without a redemption

permit issued in accordance with the 1977 Redemption Act

(laki 603/77 kiinteän omaisuuden ja erityisten oikeuksien

lunastuksesta, lag 603/77 om inlösen av fast egendom och

särskilda rättigheter; hereinafter "the 1977 Act");

- that the Ministry's view that the properties within the

outline objective fulfilled the requirements for areas

prescribed in section 1 of the 1923 Act created the

conditions for interfering with the rights of the affected

property owners, albeit in subsequent proceedings under the

1923, 1958 or 1977 Acts;

- that, although the Ministry's intention to maintain the

areas within the outline objective in their natural state

did not prohibit the use of the properties, the outline

objective was causing de facto restrictions on the property

owners' right to use their properties similar to those

caused by the so-called shore conservation programme

(rantojensuojeluohjelma, strandskyddsprogrammet) adopted in

principle by the Council of State on 20 December 1990;

- that the outline objective had thus created a de facto

threat of expropriation which was forcing an affected

property owner to abstain from using his property contrary

to the aim of the outline objective;

- that this de facto threat could not be considered as a

deprivation of property, but as an interference with the

owner's right to the peaceful enjoyment of his possessions,

as enshrined in the first sentence of the first paragraph

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

- that it was questionable whether this interference could

be considered justified by the second paragraph of Article

1, as the outline objective did not appear in the 1991 Act

and there was no appeal against it;

- that under the relevant laws, however, court remedies

were available to property owners wishing to challenge an

activity prohibition, a building prohibition, a redemption

permit or the compensation amount received in redemption

proceedings; and, in conclusion,

- that the outline objective could not be considered to be

clearly in breach of section 6 of the Constitution Act nor

of Article 6 of the Convention or Article 1 of Protocol

No. 1; but

- that, considering the factual effects which the outline

objective was causing to the property owners, it should

have been prescribed by law; and

- that the outline objective should at least have been

formally decided by the Council of State and not have been

imposed by a decision of principle, the possibility of

making decisions of the last-mentioned character not being

prescribed by law.

Prior to 23 November 1990 the first applicant and applicants

nos. 20-23, whose property Tarhalahti 18:12 is not located within the

area covered by the outline objective, was granted a permit for the

construction of a leisure house on that property. The house was also

built prior to 23 November 1990.

Applicant no. 11, whose property is located within the area

covered by the outline objective, has also been granted a permit for

the construction of a leisure house. It is unknown whether the permit

was granted before or after 23 November 1990.

By a letter of 14 December 1992 to the County Administrative

Board the Ministry for the Environment stated that it had incorrectly

placed the outline objective on an equal footing with a conservation

programme adopted by the Council of State.

On 12 January 1993 the Building Board of Lieksa ordered the

State-owned Forest Research Institute (metsäntutkimuslaitos,

skogsforskningscentralen) to accept that the first applicant and

applicants nos. 20-23 dig a cable for electricity into the ground of

a property owned by the Institute and located within the original park

area. The cable was intended to serve those applicants' leisure house

located on the property Tarhalahti 18:12. The Institute had rejected

a request by the applicants at issue in October 1991 and December 1992,

referring to an opinion of the Ministry for the Environment of November

1992. The Ministry had underlined that any electrification within the

park area would have to comply with the limitations on the use of the

property prescribed in section 1 of the 1991 Decree.

An appeal lodged by the Forest Research Institute against the

decision of the Building Board was rejected by the County

Administrative Court (lääninoikeus, länsrätten) of Northern Karelia on

7 May 1993. The Court noted that under section 8 of the 1923 Act the

relevant conservation measures did not limit an already acquired

private right. According to the plan of the area confirmed by the

Ministry for the Environment in 1987, the applicants at issue had been

granted a right in principle to construct a leisure house. The right

to obtain electrification for the house was considered as part and

parcel of the right of the applicants at issue to use their house. The

applicants had therefore already prior to the entry into force of the

1991 Decree acquired a right to dig, if necessary, an electricity cable

on the Institute's property. The Court further noted that no steps had

been taken by the State to expropriate the property Tarhalahti 18:12

or any of the rights pertaining to it.

In a further appeal to the Supreme Administrative Court the

Forest Research Institute maintained that the 1923 and 1991 Acts

superseded the 1958 Act. The Institute further referred to

"conservation decisions on a national level" in regard to the use of

"the area of Koli" which deviated from the plan confirmed by the

Ministry in 1987. The appeal is still pending.

Relevant domestic law and practice

1. The 1991 Act on the Koli Natural Park

Section 2 para. 1 of the 1991 Act reads:

"The area of the Koli natural park amounts to about 1.135

hectares and its boundaries are marked on the map enclosed

with this Act."

2. The conditions for the establishment of conservation areas

Section 1 of the 1923 Act (as amended by Act no. 399/41) concerns

State-owned real property. Such property may be reserved as a general

conservation area for the purpose of protecting it from interferences

by man (subsection 1). A specific conservation area may also be

established in order to protect a place of great natural beauty or with

otherwise remarkable nature or in order to protect a particular animal

or plant species (subsection 2). A conservation order made in

accordance with the above-mentioned provisions shall not limit a right

of a private party which was acquired prior to the conservation

(section 8).

Section 9 of the 1923 Act (as amended by Act no. 672/91) concerns

private properties. On request by the property owner the County

Administrative Board may declare a property of significant importance

from the point of view of nature conservation as a specific

conservation area pursuant to section 1, subsection 2 (subsection 1).

3. Expropriation

Under the 1919 Constitution Act (hallitusmuoto 94/19,

regeringsform 94/19) the right of Finnish citizens to their possessions

shall be secured by law (section 6, subsection 1). Expropriation of

property in the public interest against full compensation shall be

governed by law (subsection 3).

In accordance with the 1977 Act the State may expropriate real

property for the purpose of creating a conservation area (section 18,

subsection 1 of the 1923 Act, as amended by Act no. 672/91).

A property may be expropriated if there is a general need

therefor. Expropriation shall, however, not be resorted to, if its aim

may also be achieved in another manner or if the inconvenience caused

to a private interest is more significant than the benefit to the

general interest (section 4, subsection 1 of the 1977 Act).

Expropriation permits are granted by the Council of State or, in

certain cases, by the competent County Administrative Board or another

administrative authority (section 5, subsection 1 of the 1977 Act). A

permit is not needed if another decision already entails a right to

proceed to expropriation (subsection 2, as amended by Act no. 1110/82).

A property owner is entitled to full compensation for the

economic losses caused by the expropriation. The sum shall be fixed on

the basis of the market price of the property (sections 29 and 30 of

the 1977 Act).

4. Restrictions on the use of real property

The County Administrative Board may, provisionally and for a

maximum period of two years, prohibit an area from being used in a

manner which could jeopardise the aim of an expropriation in accordance

with the 1923 and 1977 Acts. The prohibition is immediately enforceable

irrespective of appeal proceedings, unless the appeal body decides

otherwise. If no expropriation takes place a compensation shall be

fixed by the Board for any damage or inconvenience caused by the

prohibition (section 18, subsection 2 of the 1923 Act, as amended by

Act no. 672/91).

If an expropriation permit has been granted the property at issue

shall not be used in a manner which could jeopardise the aim of the

expropriation. This prohibition is in force until the expropriation

proceedings have terminated or until the moment when the expropriation

matter is struck off. In the last-mentioned case compensation for

losses or inconvenience caused by the prohibition shall be paid by the

State (section 18, subsection 3 of the 1923 Act, as amended by Act

no. 672/91).

The competent County Administrative Board shall be heard by the

local Building Board in respect of a request for a building permit

pertaining to a property located, inter alia, within an area included

in a conservation programme adopted by the Council of State. The County

Administrative Board's opinion shall be given within six months

(section 52, subsection 3 of the 1959 Decree, as amended by Decree

no. 480/90 which entered into force on 1 June 1990). Section 124,

subsection 3 of the 1959 Decree (as amended by Decree no. 480/90)

provides for similar conditions in respect of a request for a building

permit pertaining to a property covered by a building plan

(rakennuskaava, byggnadsplan). Finally, section 137 (as amended by

Decree no. 480/90) provides for a similar procedure with regard to a

request for a building permit within an area not covered by a town plan

(asemakaava, stadsplan), building plan or shore plan. The Ministry for

the Environment may, if it deems it necessary, order a municipality to

adopt or amend a certain plan within a fixed period of time. The order

entails a building prohibition and an activity prohibition applicable

to the area indicated in the order. If necessary, the Ministry may

proceed to having the municipality comply with the order under threat

of an administrative fine (uhkasakko, vite) (section 143,

subsection 1 of the 1958 Act, as amended by Act no. 626/69, and

subsection 7, as amended by Act no. 556/81).

The use of the State-owned properties included in the Koli

Natural Park is governed by section 1 of the 1991 Decree which

prohibits certain activities which could adversely affect the

conservable values on the properties.

5. Case-law of the Supreme Administrative Court

In a judgment of 22 June 1992 the Supreme Administrative

Court considered an appeal lodged by owners of properties against

the so-called national shore conservation programme (rantojensuojelu-

ohjelma, strandskyddsprogrammet) adopted by the Council of State on

20 December 1990. The Court considered that due to the actual effects

of the programme owners of properties within the area covered by the

programme had a locus standi as appellants. Their appeals were,

however, rejected after an examination on the merits.

In a judgment of 1974 (no. II 66) the Supreme Administrative

Court found that a so-called general plan of the first degree was

considered appealable in view of its immediate legal effect. This view

was confirmed by the Supreme Administrative Court in a 1978 judgment

(no. II 37).

COMPLAINTS

1. The applicants complain that they were never heard during the

procedure for creating the park and that they had no possibility of

obtaining a court review of the restrictions on the use of their

properties resulting from the inclusion of their properties in the

outline objective and the relevant ministerial "orders". They invoke

Article 6 para. 1 of the Convention.

2. The applicants further complain that as a result of the outline

objective, as included in the commentary to the Bill no. 307/90, and

the related ministerial "order" of 23 November 1990 their properties

are being subjected to a de facto activity prohibition or at least to

a de facto restriction on their right to use the properties. This

constitutes an unjustified interference with their property rights. The

outline objective allegedly lacks a legal basis. Moreover, together

with the ministerial "order" it is preventing almost any use of their

properties for an unlimited period of time and is subjecting them to

an expropriation threat. At the same time, however, the applicants are

taxed for their properties. Finally, the applicants are unable to

receive compensation for their alleged financial losses suffered as a

result of the ongoing situation. The applicants invoke Article 1 of

Protocol No. 1 to the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 January 1991 and registered

on 24 March 1992.

On 30 November 1992 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on its admissibility and merits.

The observations were submitted by the respondent Government on

5 April 1993 following two extensions of their time limit. Observations

in reply were submitted by the applicants on 12 July 1993. Additional

observations were submitted by them on 10 October 1993 and

15 June 1994.

THE LAW

1. The applicants complain that they were never heard during the

procedure for creating the park and that they had no possibility of a

court review of the restrictions on the use of their properties

resulting from the inclusion of their properties in the outline

objective and the relevant ministerial "order". They invoke Article 6

para. 1 (Art. 6-1) of the Convention which, insofar 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 an independent and impartial tribunal established by

law. ..."

The Government consider that those of the applicants who have

sold their properties or who have received compensation for an activity

prohibition issued under section 18 of the 1923 Act cannot claim to

have the status of "victim[s]" within the meaning of Article 25

(Art. 25) of the Convention. As far as the complaint has been lodged

by those applicants, it should therefore be considered incompatible

ratione personae with the provisions of the Convention. As far as the

remaining applicants are concerned, the Government argue that Article

6 para. 1 (Art. 6-1) is not applicable to the complaint. The

presentation of Bill no. 307/90 to Parliament on 23 November 1990 was

not, even if considered in combination with the letter from the

Ministry for the Environment of the same day, decisive for the

applicants' "civil rights". The measures were of public law character

and only subsequent proceedings under special legislation would

determine the applicants' "civil rights". On the one hand, the

decisions which could be made by the authorities in such proceedings

do not presuppose the publication of an outline objective. On the other

hand, a request for a building permit could not be rejected solely on

the basis of an outline objective, since the legal conditions for

granting a permit are to be examined in pursuance of the 1958 Act. In

conclusion, no measures have been taken in the applicants' case which

would not have been possible to take already without the outline

objective.

The applicants maintain that they can all claim to be "victim[s]"

within the meaning of Article 25 (Art. 25) of the Convention. Faced

with the choice of selling their properties or not using them in a

profitable manner the property owners who have sold their properties

have de facto been forced to do so.

The applicants further maintain that their "civil rights" within

the meaning of Article 6 para. 1 (Art. 6-1) were determined already as

a result of the inclusion of their properties in the outline objective

through the commentary to Bill no. 307/90 and as a result of the

ministerial "order" of 23 November 1990 formally confirming the

existence of the outline objective. Reference is made, inter alia, to

the Ministry's letter of 21 May 1991 in which this position was upheld.

The de facto repercussions on the applicants' properties resulting from

the outline objective have forced the applicants to abstain from

construction, forestry measures and practically all use of their

properties in order to avoid activity prohibitions being issued on the

basis of the outline objective. The threat of such prohibitions being

issued is a real one, as shown by the prohibition issued in regard to

the property belonging to applicants nos. 14 and 15.

The Commission considers it unnecessary to determine whether for

the purposes of the present complaint the applicants can all claim to

be "victim[s]" within the meaning of Article 25 (Art. 25) of the

Convention, as the complaint is in any event inadmissible for the

following reasons.

The Commission must first ascertain whether Article 6 para. 1

(Art. 6-1) 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 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., Oerlemans judgment of

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

In the present case the Commission considers that there existed

a dispute concerning the lawfulness of the outline objective and the

allegedly related restrictions on the applicants' use of their

properties, the right of property clearly being a "civil right" within

the meaning of Article 6 para. 1 (Art. 6-1) (e.g. Eur. Court H.R.,

Zander judgment of 25 November 1993, Series A no. 279-B, p. 40,

para. 27; cf. also O. v. Austria, Comm. Report 14.5.93, para. 34,

pending before the European Court of Human Rights and to be published

in Series A).

The Commission finds that the outline objective as such, as

expressed in the commentary to Bill no. 307/90 and the ministerial

letter of 23 November 1990, did not in itself entail any de jure

activity prohibition served on individualised property owners and

restricting the applicants' right to use their properties without

seeking prior authorisation (cf., a contrario, the above-mentioned

Oerlemans judgment, p. 10, para. 16; Eur. Court H.R., de Geouffre de

la Pradelle judgment of 16 December 1992, Series A no. 253-B,

pp. 42-43, para. 33; Eur. Court H.R., Allan Jacobsson judgment of

23 October 1989, Series A no. 163, pp. 19-20, paras. 68-71). Nor did

the outline objective entail a refusal to authorise certain use of the

properties (cf., a contrario, Eur. Court H.R., Skärby judgment of

8 June 1990, Series A no. 180-B, pp. 36-37, para. 28) or a revocation

of any permit already permitting certain use of the properties

(cf., a contrario, Fredin v. Sweden (no. 1), Comm. Report 6.11.89,

paras. 90-91, Eur. Court H.R., Series A no. 192, p. 34, and the

above-mentioned de Geouffre de la Pradelle judgment, p. 43, para. 34).

Finally, the outline objective neither constituted the issuing of an

expropriation permit nor did it amount to an amendment of a plan

capable of otherwise extinguishing any of the applicants' property

rights (cf., a contrario, Eur. Court H.R., Sporrong and Lönnroth

judgment of 23 September 1982, Series A no. 52, pp. 29-30, para. 80,

and Eur. Court H.R., Mats Jacobsson judgment of 28 June 1990, Series A

no. 180-A, pp. 13-14, para. 33).

The Commission considers that the non-binding character of the

outline objective as a mere declaration of the Government's intentions

is further supported by the lack of individualisation even of the

property units affected. Indeed, the association representing the

applicants before the Commission and even the competent County

Administrative Board appear to have been unsuccessful in attempting to

clarify which properties should be considered as included in the

outline objective.

The Commission therefore accepts that in the particular

circumstances of the present case the dispute at issue was not directly

decisive for the applicants' "civil rights". Accordingly, Article 6

para. 1 (Art. 6-1) of the Convention is not applicable.

It follows that the 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 applicants further complain that the restrictions on the use

of their properties resulting from their inclusion in the outline

objective and the relevant ministerial "orders" interfere with their

rights in an unjustified manner. They invoke Article 1 of Protocol No.

1 (P1-1) to the Convention 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 Government again object to some of the applicants claiming

to have status of "victim[s]" within the meaning of Article 25

(Art. 25) of the Convention. As regards the applicants who have not

sold their properties, the Government argue that the provision is not

applicable, since the applicants' property rights have not been

interfered with. In practice, the applicants have retained all rights

relating to the ownership of their properties. Their assertion that

practically any activity on their properties would automatically result

in an activity prohibition is groundless. The applicants are completely

free to use and sell their properties. In this respect the Government

refer to the situation of the first applicant together with applicants

nos. 20-23, and to that of applicant no. 11. These applicants have been

granted permits for the construction of leisure houses. The Government

claim that in April 1993 applicant no. 11 had already proceeded to the

logging of forest in order to facilitate transportation to the

construction site. Moreover, a permit was granted for the digging of

an electric cable serving the leisure house on the property of the

first applicant and applicants nos. 20-23. Other permits have also been

issued, allowing construction on properties within the outline

objective. Forestry measures have also been carried out within the

outline objective. An activity prohibition has been issued only in

regard to the property owned by applicants nos. 14 and 15. This

prohibition was upheld on their appeal, but compensation was duly

granted to them for the inconvenience caused by the prohibition.

The Government emphasise that uncertainty among property owners

due to planning intentions on the part of public authorities is not

sufficient to constitute an interference with their property rights.

Should the Commission, however, find that the measures complained of

amount to an interference with the applicants' right to the peaceful

enjoyment of their possessions, the Government consider the complaint

to be manifestly ill-founded. The interference has been of a merely

indirect character and very limited, in particular in time. In

April 1993 over 1.000 hectares, i.e. about 80 per cent of the surface

within the outline objective, had already been sold voluntarily to the

State.

The Government conclude that any interference has been

proportionate to the aim of nature conservation, particularly in the

light of the wide margin of appreciation afforded to Contracting States

in the field of property rights. Finally, the applicants have had, and

continue to have, remedies at their disposal enabling them to challenge

the restrictions on the use of their properties as well as the amount

of compensation granted therefor.

The applicants maintain that as from 23 November 1990 they have

been unable peacefully to enjoy their possessions. The appeals lodged

by the Institute for Forest Research against the decisions granting the

first applicant and applicants nos. 20-23 a right to dig an electricity

cable over State-owned property shows that even properties adjacent to

the outline objective, "may face difficulties". Moreover, the Ministry

for the Environment has allegedly attempted to prevent the same

applicants from using their lawful right of way to their property.

Finally, although it is true that applicant no. 11 has been granted a

building permit he has abstained from availing himself of it for fear

of expropriation proceedings being instituted by the County

Administrative Board on the basis of the ministerial "order" of

23 November 1990.

For the purposes of the present complaint the Commission does not

consider it necessary to determine whether all applicants can claim

status as "victim[s]" within the meaning of Article 25 (Art. 25) of the

Convention, since the complaint is in any event inadmissible for the

following reasons.

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., the above-mentioned Allan Jacobsson judgment, p. 16,

para. 53).

The Commission is satisfied that the situation complained of did

not amount to a deprivation of possessions within the meaning of the

second sentence of the first paragraph of Article 1 (Art. 1-1-2).

Referring to its above conclusion with regard to the complaint under

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

finds that the situation complained of does not constitute a control

of the use of the applicants' properties to be examined under the

second paragraph of Article 1 (Art. 1).

The Commission does not consider it necessary to determine

whether the situation complained amounts to an interference with the

right guaranteed in the first sentence of the first paragraph of

Article 1 (Art. 1-1-2), as, even if it did, a fair balance has been

struck between the various public and private interests involved (cf.,

a contrario, the above-mentioned Sporrong and Lönnroth judgment, p. 24

et seq., para. 61 et seq.).

The Commission accepts that the creation of the outline objective

was aimed at conserving nature on private properties adjacent to the

State-owned park area established by the 1991 Act. This aim must be

considered as reflecting the demands of the general interest of the

community, the protection of the environment constituting an

increasingly important consideration in today's society (Eur. Court

H.R., Fredin judgment of 18 February 1991 (no. 1), Series A no. 192,

p. 16, para. 48). The decision to adopt the outline objective was,

moreover, made by the Council of State on the basis of its general

competence according to the Constitution Act. The Commission cannot

find that domestic law has thereby been breached.

In so far as the applicants' properties may have been adversely

affected by the outline objective, the Commission notes that the

applicants have not submitted any evidence showing that the value of

their properties has been so substantially diminished on account of the

outline objective as to result in an unfair balancing of interests

(cf., mutatis mutandis, No. 9310/81, Dec. 16.7.86, D.R. 47 pp. 5-15,

at p. 14). With reference to the ever increasing importance attached

to nature conservation the Commission considers that some repercussions

on landowners' property rights cannot in themselves prevent the

publication of a conservation intention such as the outline objective

at issue in the present case.

The Commission further finds it unsubstantiated that the use of

any of the applicants' properties has been restricted solely on the

basis of the outline objective without sufficient compensation having

been granted. Moreover, in the proceedings apparently still pending and

initiated by the first applicant and applicants nos. 20-23 those

applicants have successfully defended their right to make extended use

of the leisure house on their property. In the light of these

proceedings it cannot be excluded that the right of construction

granted to applicant no. 11 could also be enforced without an activity

prohibition being issued. The Commission finally observes that the

assumed inclusion of all applicants' properties in the outline

objective was regarded by the Ministry for the Environment as entailing

an obligation pursuant to sections 52, 124 and 137 of the 1959 Decree

on the part of the relevant municipal Building Boards to hear the

County Administrative Board in regard to proposed construction within

the area included in the objective. It has not been shown, however,

that this caused any substantial adverse effects on any of the

applicants' properties. Moreover, this consultation obligation has

subsequently been found by the Ombudsman to lack a legal basis. This

finding has further been accepted by the Ministry for the Environment.

The Commission concludes therefore that no such adverse effects

which could render the balancing of interests unfair have been shown

to exist as a result of the outline objective and the related

ministerial letters. Accordingly, there is no appearance of an improper

balance between the protection of the applicants' property rights and

the demands of the general interest and, consequently, no appearance

of a violation of the applicants' right to the peaceful enjoyment of

their possessions.

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 Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

ANNEX

The applicants are:

1. Mr. Sulo Eskelinen, a foreman born in 1948 and resident at Koli;

2. Ms. Sinikka Hassinen, a property owner born in 1946 and resident

at Haapalahti;

3. Mr. Asko Turunen, a wholesaler born in 1962 and resident at

Joensuu;

4. Mr. Kalevi Turunen, a principal born in 1932 and resident at

Lieksa;

5. Mr. Veikko Tolvanen, a pensioner born in 1918 and resident at

Ahveninen;

6. Mr. Onni Karttunen, a pensioner born in 1925 and resident at

Lieksa;

7. Mr. Antti Nevalainen, a farmer born in 1930 and resident at Koli;

8. Ms. Iida Karttunen, a pensioner born in 1927 and resident at

Lieksa;

9. Mr. Armas Nevalainen, a construction worker born in 1943 and

resident at Eno;

10. Mr. Raimo Piironen, a lecturer born in 1937 and resident at

Savonlinna;

11. Mr. Veikko Welin, a farmer born in 1927 and resident at

Kontiolahti;

12. Ms. Aini Elviira Welin, a nurse born in 1932 and resident at

Kontiolahti;

13. Mr. Esko Nuutinen, a porter born in 1954 and resident at Joensuu;

14. Ms. Sylvi Nevalainen, a cook born in 1945 and resident at Koli;

15. Mr. Mikko Nevalainen, a construction worker resident at Koli;

16. Mr. Armas Nuutinen, a pensioner born in 1916 and resident at

Koli;

17. Mr. Kauko Nuutinen, an adviser born in 1948 and resident at

Polvijärvi;

18. Mr. Teuvo Muikku, a merchant born in 1944 and resident at

Pankakoski;

19. Mr. Kauko Turunen, a carpenter born in 1946 and resident at

Lahti;

20. Ms. Martta Eskelinen, a housewife born in 1920 and resident at

Koli;

21. Ms. Raija de Gritz, a restaurant manager born in 1950 and

resident at Espoo;

22. Mr. Reino Eskelinen, an agricultural adviser born in 1942 and

resident at Lieksa;

23. Mr. Reijo Eskelinen, a forestry technician born in 1952 and

resident at Lieksa;

24. Ms. Hanna Nevalainen, a pensioner born in 1925 and resident at

Koli;

25. Mr. Veijo Kukkonen, a sorter born in 1937 and resident at Kuopio;

26. Mr. Pertti Kukkonen, a shopkeeper born in 1955 and resident at

Koli;

27. Ms. Eija Kukkonen, a shopkeeper born in 1955 and resident at

Koli;

28. Ms. Anneli Puoskari, a clerk born in 1945 and resident at Juuka;

29. Mr. Hannu Puoskari, a mechanic born in 1945 and resident at

Juuka;

30. Ms. Sirpa Sutinen, a property owner born in 1963 and resident at

Kontiolahti;

31. Rakennus-Myller Ky, a limited partnership company represented by

Mr. Esko Myller, a managing director born in 1946 and resident

at Joensuu;

32. Mr. Erkki Korhonen, a shopkeeper born in 1941 and resident at

Joensuu;

33. Mr. Erkki Turunen, a distribution manager born in 1946 and

resident at Joensuu;

34. Mr. Hugo Lehtinen, a farmer born in 1920 and resident at Koli;

35. Mr. Teuvo Saarelainen, a farmer born in 1925 and resident at

Koli;

36. Mr. Martti Nuutinen, a lumberman born in 1945 and resident at

Koli;

37. Ms. Tarja Nuutinen, a housewife born in 1960 and resident at

Koli;

38. Mr. Erkki Lampinen, a pensioner born in 1923 and resident at

Koli;

39. Mr. Heikki Lampinen, a contractor born in 1918 and resident at

Koli;

40. Mr. Arvo Ryynänen, a master mechanic born in 1928 and resident

at Vihti;

41. Mr. Antti Ryynänen, a farmer born in 1955 and resident at Koli;

42. Ms. Marita Ryynänen, a housewife born in 1960 and resident at

Koli;

43. Mr. Veikko Hakkarainen, a lecturer born in 1938 and resident at

Lieksa;

44. Paimenvaara Oy, a limited liability company represented by

Mr. Jorma Miettinen, a managing director born in 1949 and

resident at Ämmänsaari;

45. The reparcelling association (jakokunta, skifteslag) of Koli,

represented by applicants nos. 1 and 26;

46. The fishery association (kalastuskunta, fiskelag) of Koli,

represented by applicants nos. 1 and 26;

47. Ms. Annikki Kinnunen, a pensioner born in 1929 and resident at

Joensuu;

48. Ms. Maija Hyrkäs, a housewife born in 1950 and resident at

Iisalmi;

49. Mr. Ahti Karessuo, a pensioner born in 1919 and resident at

Joensuu;

50. Ms. Liisa Vänskä, a insurance clerk born in 1948 and resident at

Espoo;

51. Mr. Kyösti Nevalainen, a farmer born in 1951 and resident at

Vuonislahti;

52. Mr. Heino Laamanen, a pensioner born in 1934 and resident at

Ukkola;

53. Ms. Toini Simanainen, a forest owner born in 1916 and resident

at Vuonislahti;

54. Mr. Johannes Simanainen, a forest owner born in 1922 and resident

at Vuonislahti; and

55. Mr. Aulis Kinnunen, a manager born in 1930 and resident at

Lieksa.

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ESKELINEN AND 54 OTHERS v. FINLAND

ESKELINEN AND 54 OTHERS v. FINLAND

LEXI