L. v. FINLAND
Doc ref: 18595/91 • ECHR ID: 001-2519
Document date: May 12, 1994
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AS TO THE ADMISSIBILITY OF
Application No. 18595/91
by L.
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 12 May 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 14 May 1991 by L.
against Finland and registered on 25 July 1991 under file No. 18595/91;
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
22 October 1992 and the observations in reply submitted by the
applicant on 14 December 1992;
- the observations submitted by the Government on
22 February 1994 and by the applicant on 28 February and
13 March 1994;
- the parties' oral submissions at the hearing on 12 May 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Swedish citizen born in 1942 and resident at
Västerås, Sweden. He is an engineer by profession. Before the
Commission he is represented by Mr. Peter Westdahl, a lawyer practising
in Gothenburg, Sweden.
The facts, as submitted by the parties, may be summarised as
follows.
Particular circumstances of the case
In 1988 administrative proceedings (tietoimitus, vägförrättning)
were instituted for the execution of a road construction plan for a
private forestry road which was to run over the applicant's property
Bjurträsk 1:214 at Iskmo in the municipality of Korsholm (Mustasaari)
in Finland.
An initial request for the construction of a road had been lodged
with the Forestry Board (metsälautakunta, skogsnämnden) of Ostrobotnia
by certain property owners already in 1979. An outline of the road
construction plan was drawn up by the Forestry Board following a
meeting of property owners on 3 June 1988 and a further meeting on an
unknown date, presumably in the summer of 1988. According to the plan
the applicant's property was to be split by the road. The applicant was
not summoned to these meetings and did not attend them. According to
him, only some 10 to 15 persons were heard by the Forestry Board,
whereas the total of number of property owners to be affected by the
road amounted to approximately 120.
Having drawn up its plan, Forestry Board in the summer of 1988
carried out certain logging on the applicant's property in order to
stake out the intended location of the road.
Following a request by the Executor of the road construction
project (toimitusmies, syssloman), a representative elected at one of
the meetings in 1988, the Head of the District Surveying Office
(maanmittauskonttori, lantmäteribyrån) of Vaasa on 18 October 1988
appointed M.P. Expert (toimitusinsinööri, förrättningsingenjör) to
conduct proceedings under the 1962 Act on Private Roads (laki 358/62
yksityisistä teistä, lag 358/62 om enskilda vägar, hereinafter "the
1962 Act") with a view to confirming and implementing the plan.
Having been informed about the logging, the applicant reported
it to the National Forestry Board (metsähallitus, forststyrelsen),
alleging that it had been carried out illegally. In November 1988 the
National Forestry Board found no reason to take measures, having heard
the Forestry Board of Ostrobotnia. The National Forestry Board
recommended the applicant to present his claims in the forthcoming
administrative proceedings. The Forestry Board of Ostrobotnia was
notified of the decision.
On 15 November 1989 the Environmental Office (ympäristötoimisto,
miljövårdsbyrån) of the County Administrative Board (lääninhallitus,
länsstyrelsen) of Vaasa favoured the plan.
On 16 May 1990 T.K., Head of the District Surveying Office of
Vaasa, took over the Expert's duties.
On 27 June 1990 a hearing was held before the Expert, assisted
by two Trustees (uskottu mies, gode män). The applicant had not been
summoned to the hearing, but attended it nevertheless, having received
information about it from relatives. At the hearing it was decided to
confirm the plan adopted by the Forestry Board. The confirmation
entailed, inter alia, the approval of the proposed location of the road
except for certain points not relevant for the present case, the
approval of the cost estimation, the establishing of road rights
pertaining to the encumbered properties, the approval of the so-called
road units (tieosuus, vägenhet) indicating the relative distribution
of the road costs between its owners and the founding of an association
of road owners (tiekunta, väglag). It was further decided that no
property owner should receive compensation, as the benefit of the road
was considered to compensate the interference.
According to the applicant, the property owners attending the
hearing were not provided with detailed plans of the location of the
road and the related easements. The property owners were simply
informed that the Forestry Board's plan "had to be confirmed". No
information was given in regard to their respective shares of the road
costs. The parties could only submit their remarks concerning their
respective properties in private to the Expert and Trustees. The
applicant objected to the proposed location of the road and his wife
allegedly requested compensation on his behalf for the interference
caused by the road. This request was immediately rejected by the
Expert. The applicant allegedly attended the whole hearing, but not the
subsequent meeting of property owners at which the association of road
owners was founded. However, no notice of appeal was either read out
or served on him.
According to the Government, the applicant was present when the
notice of appeal was read out and handed over to one of the Executors
of the plan. He did not request to receive an individual notice of
appeal.
According to the minutes from the hearing, a notice of appeal was
given to one of the Executors at the end of the hearing. In addition,
the minutes and the notice were read out and a copy of the notice was
enclosed to the file. No remarks were made against the minutes.
The applicant subsequently lodged an appeal with the Land Court
(maaoikeus, jorddomstolen) of Vaasa. He also joined another appeal
lodged by a number of persons on 23 July 1990. In this appeal it was
requested that only part of the adopted plan be confirmed by the Land
Court and that part of it be replaced by already existing roads. This
alternative solution would allegedly have lowered the cost of the road
from approximately 1,7 million FIM to 0,8 million FIM and required
significantly less interference with the natural habitat.
By a letter of 10 September 1990 the Land Court summoned the
applicant to a hearing on 16 October 1990. A second hearing was held
on 24 October 1990. Both hearings were attended by the applicant. At
the first hearing a written submission relating to the joint appeal of
23 July 1990 was presented. It is stated in the Land Court's judgment
that it heard fourteen property owners. It appears that these had not
appealed against the decision of the Expert and Trustees. The Land
Court further heard the three Executors and had regard to opinions
submitted by the Expert and two representatives of the Forestry Board.
It also carried out an inspection on the spot (katselmus, syn). The
applicant asserts that at the second hearing the Land Court heard only
the Forestry Board.
In its judgment of 24 October 1990 the Land Court dismissed the
applicant's appeal as far as it concerned the refusal of his
compensation claim, considering that this had only been submitted to
the Land Court and not to the Expert and Trustees. The Land Court
further rejected the remainder of the applicant's appeal, considering
it established that he had been present at the hearing on 27 June 1990,
when a notice of appeal had been read out and given to the property
owners. The Land Court rejected the joint appeal as lodged by a number
of persons considered to have legal standing, including the applicant.
It found that the proposed road would not create any significant
inconvenience for the property owners and that there were no weighty
reasons for changing the proposed location. Regard was had to the
opinion by the Environmental Office of the County Administrative Board
and the Land Court further noted that none of the appellants had
questioned the need for a road to the area.
The Land Court was presided by a judge and further consisted of
four members, namely the Head of the County Surveying Office
(lääninmaanmittausinsinööri, länslantmäteriingenjören), a Land Court
Surveyor (maaoikeusinsinööri, jordrättsingenjör) and two lay judges.
On 25 March 1991 the Supreme Court (korkein oikeus, högsta
domstolen) refused the applicant leave to appeal.
On 26 September 1991 the Supreme Court rejected the applicant's
request for an annulment of the Land Court's decision.
In letters of 18 and 26 November 1991 addressed to the Forestry
Board the applicant requested suspension of his obligation to pay his
share of the road construction costs and to be excluded from his road
ownership and exempted from his obligation to participate in the road
maintenance costs pursuant to section 28, subsection 2 of the 1962 Act.
In letters of 25 November 1991 and 7 January 1992 the Forestry
Board informed the applicant that a so-called road agreement
(tiesopimus, vägavtal) had been signed by all affected by it except for
the applicant and the applicant in Application No. 18507/91. The Board
recalled that the proceedings before the Expert and Trustees had
determined the location and width of the road as well as the relative
financial responsibility of each party. As all relevant decisions had
acquired legal force, the plan including its financial implications
could no longer be amended. Accordingly, the applicant's obligation to
pay his share of the road construction costs could not be suspended and
the Forestry Board had no competence to amend his share of its overall
costs.
On 12 January 1992 the applicant authorised one of the Executors
to sign the road agreement on his behalf, although reserving his
position stated in his application to the Commission.
The applicant has submitted a list drawn up by the Forestry Board
on 19 June 1990 stating the costs of the road pertaining to each
property owner. The total area of the properties affected by the road
amounts to 1.312,50 hectares. The size of the applicant's property is
8 hectares and his relative share of the total area is 0,61 per cent.
The estimated total cost of the road construction is 1.695.000 FIM. The
applicant's share is 19.154 FIM, which corresponds to 1,13 per cent of
the total cost.
The road construction works commenced in 1991.
The applicant has unsuccessfully petitioned the Parliamentary
Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) and
the Chancellor of Justice (valtioneuvoston oikeuskansleri,
justitiekanslern i statsrådet) in the matter.
Relevant domestic law and practice
The relevant legislation at the time of the proceedings at issue
may be summarised as follows. Part of the legislation has subsequently
been amended.
a. General provisions on the construction and the maintenance
of a private road
A road shall be constructed so as to achieve the purpose of the
road in an optimal manner while at the same time not causing more than
necessary damage or harm to anyone. A road shall not be constructed,
if it cannot be regarded as necessary, having regard to the use of
existing private and public roads and other important general
considerations. The above considerations shall also apply to other
measures taken in connection with a road construction (section 7 of the
1962 Act, as amended by Act no. 521/75).
Anyone who has been given permission to use a road or whose
property is located either partly or completely within the area which
the road must be considered to serve shall participate in the
construction and maintenance costs for the road (section 22, subsection
1).
If a significant number of those who would be obliged to
participate in the costs for the maintenance of the road oppose its
construction and provided the road would clearly serve only a minor
purpose for several properties, it may be decided to construct the road
only at the expense of those who wish to have it constructed (section
22, subsection 2).
If the road to be constructed would only serve a property to a
limited extent, due to, for instance, another already existing road
serving the property, the owner shall be exempted from participating
in the costs for the new road provided he states that he will abstain
from using it (section 22, subsection 3).
The financial responsibility for the road shall be distributed
between the participants in the road construction according to their
individual benefit from the road. In this assessment regard should be
had to, among other things, the size of the properties and to what
extent the road will be used by each participant (section 23,
subsection 1).
The proposed location of the road shall, as far as necessary,
also be marked in the terrain pursuant to the 1962 Ordinance on Private
Roads (asetus 690/62 yksityisistä teistä, förordning 690/62 om enskilda
vägar) (section 48, subsection 2 of the 1962 Act, as amended by Act no.
521/75).
A road owner may request to be excluded from his ownership and
exempted from his obligation to participate in the road maintenance
costs if the road is no longer needed by the property at issue (section
28, subsection 2 of the 1962 Act). If the circumstances affecting his
obligation to participate in the maintenance of the road or his share
of the maintenance costs have considerably changed, the relative
distribution of those costs between the road owners shall be revised
on request. Regardless of such circumstances he may request a revision
of the cost responsibility if it has remained unchanged during at least
five years (section 29). The above requests shall be examined at the
general meeting of the association of road owners (section 64,
subsection 2, para. 2). The decision of the meeting can be appealed to
the Road Board (section 70, subsection 1). The decision of the Road
Board may be appealed to the Land Court (section 55, as amended by Act
no. 521/75). Leave to appeal to the Supreme Court may subsequently be
requested (section 333, subsection 2 of the 1951 Act, as amended by Act
no. 509/84).
b. The proceedings before the Forestry Board
The Forestry Board is a public body governed by the 1987 Act on
the Central Forestry Boards and Forestry Boards (laki 139/87
keskusmetsälautakunnista ja metsälautakunnista, lag 139/87 om
centralskogsnämnder och skogsnämnder) and, as from 1 March 1991, by the
1991 Act on Forestry Centres and Forestry Boards (laki 265/91
metsäkeskuksista ja metsälautakunnista, lag 265/91 om skogscentraler
och skogsnämnder).
Under both Acts the members of the Forestry Boards shall be
appointed by the Ministry of Agriculture and Forestry. The planning-
meetings held at the initial stage of the proceedings with a view to
outlining a road construction plan are governed by the 1987 Forest
Improvement Act (metsänparannuslaki 140/87, skogsförbättringslag
140/87).
c. The proceedings before the Expert and Trustees
Proceedings for the execution of a road construction plan may be
instituted by the property owner or municipality concerned or by the
relevant association of road owners (section 39, subsection 1, as
amended by Act no. 498/82, and subsection 4, as amended by Act no.
521/75). Others who have been allowed to use a road for economic
purposes as well as possessors of rights of usufruct may express their
opinions during the proceedings (section 39, subsection 2).
The proceedings are conducted by an Expert assisted by two
Trustees (section 43, subsection 1 of the 1951 Partition Act (jakolaki
604/51, lag 604/51 om skifte, hereinafter "the 1951 Act"), as amended
by Act no. 321/72)). The Expert is normally an official of the District
Surveying Office, either the Head of the Office or another land
surveyor appointed by him.
The Trustees are appointed by the Expert from a list of at least
six persons adopted by the relevant Municipal Council (kunnanvaltuusto,
kommunfullmäktige) for a period of four years (section 43, subsection
1, as amended by Act no. 321/72, and section 44 of the 1951 Act, as
partly amended by Act no. 321/72). Instead of appointing the Trustees
the Expert may choose to be assisted by two members of the Municipal
Road Board (tielautakunta, vägnämnd) (section 40, subsection 1 of the
1962 Act, as amended by 322/72). The Trustees shall be acquainted with
property matters and fulfil the conditions of lay judges in District
Courts (section 45, subsection 1 of the 1951 Act, as amended by Act
no. 321/72). There is no requirement that the Expert or any of the
Trustees should be a lawyer.
The request for proceedings to be instituted before the Expert
and Trustees shall, as far as possible, contain a list of all those
affected by the proceedings as well as a sufficiently detailed map
showing the location of the road. The request shall further contain the
addresses of those applying for proceedings to be instituted and, as
far as possible, the addresses of all those affected by the proceedings
(section 41, subsection 2 of the 1962 Act, as amended by Act no.
521/75).
If the Expert is of one opinion and the Trustees jointly of
another, the Trustees' opinion shall prevail. If all three disagree,
the Expert's opinion shall prevail (section 49 of the 1951 Act).
If the proceedings concern a forestry road, the Expert shall
inform the Central Forestry Board which shall, if necessary, appoint
an expert to represent the Board in the proceedings (section 42,
subsection 1 of the 1962 Act, as amended by Act no. 521/75).
The parties to the proceedings shall be summoned by the Expert
at least fourteen days in advance by means of a public notice
(kuulutus, kungörelse) on the municipal notice board. The proceedings
shall further be advertised in one or two local newspapers. Parties
resident in another municipality and whose addresses are indicated in
the documents or otherwise known to the Expert shall be summoned in
writing by a registered letter handed in to a post office at least
fourteen days before the hearing. All parties may be summoned in
writing, this rendering the advertisements unnecessary. The summons
shall be sent as registered mail at least fourteen days prior to the
day of the hearing (section 43, subsections 1 to 3 and 6, as amended
by Act no. 521/75).
The hearing before the Expert may be held despite a failure to
comply with the requirements concerning the public notice and the
summonses, on the condition that all parties attend the hearing or, if
a party is not present, provided there is evidence that he has been
summoned by the Expert at least fourteen days in advance (section 43,
subsection 7, as amended by Act no. 521/75).
If all parties indicated in section 43 have not been summoned to
the hearing and provided they do not attend the hearing nevertheless,
the proceedings shall be suspended and a summons be sent in accordance
with section 43 (section 45, subsection 2, as amended by Act no.
521/75).
At the hearing the Expert and Trustees shall decide, among other
matters,
- whether the road shall be constructed over another property
and whether a road easement shall be established;
- the location and width of the road;
- those financially responsible for the construction and
maintenance of the road;
- how this responsibility is to be distributed between the
participants; and
- whether compensation shall be granted, to whom, in what
amount and whether the compensation shall be paid by all or
only part of the participants (section 48, subsection 1).
If a decision has been made to construct a road, a map and a road
description and, if necessary, a cost estimation shall be drawn up. The
location of the road shall further be marked in the terrain (section
48, subsection 2, as amended by Act no. 521/75).
If the parties have reached an agreement on questions regarding
the right to the road as well as its maintenance, the Expert and
Trustees shall consider whether that agreement or part of it can be
confirmed (section 49, subsection 1). If the agreement is contrary to
the requirements in section 7, subsections 2 and 3, or would clearly
encumber a property significantly more than allowed by the Act, these
parts of the agreement shall not be confirmed (section 49, subsection
2, as amended by Act no. 521/75).
If the administrative proceedings concern a forestry road which
has been planned with State funds and provided the road construction
plan has subsequently been adopted, the location of the road shall not
be altered unless there are weighty reasons therefor (section 49,
subsection 3, as amended by Act no. 521/75).
The notice of appeal against decisions made by the Expert and
Trustees shall be read out to the parties attending the proceedings,
handed over to a representative of theirs as well as to any party on
request (section 51, subsection 3 of the 1962 Act and section 316 of
the 1951 Act). The appeal shall be lodged within thirty days from the
date when the proceedings were announced as terminated or the decision
was given. The notice of appeal or a copy thereof shall be appended to
the appeal (sections 313 and 314 of the 1951 Act, the last-mentioned
as amended by Act no. 509/84).
d. The proceedings before the Land Court
Up to the entry into force of Act no. 506/91 on 1 September 1991
the Land Court was presided by a judge and further consisted of four
lay judges, namely the Head of the County Surveying Office ex officio,
a Land Court Surveyor and two lay judges appointed by the President of
the Land Court out of four persons elected by the relevant Municipal
Assembly.
As from 1 September 1991, when an overall restructuring of the
county surveying administration entered into force, the Land Court
consists of only four members, the Head of the County Surveying Office
no longer sitting on the Court (section 293, subsection 1 of the 1951
Act, as last amended by Act no. 506/91, and subsection 294, subsection
3, as amended by Act no. 267/78).
The rules governing bias of a member of a Land Court are the same
as those applicable to other professional and lay judges (section 299,
subsection 1 of the 1951 Act, as amended by Act no. 321/72, and chapter
13, section 1 of the Code on Judicial Procedure (Oikeudenkäymiskaari,
Rättegångs Balk). However, as long as the Head of the County Surveying
Office sat on the Land Court he was not considered biased for having
previously dealt with matters relating to the administrative
proceedings in a particular case (section 299, subsection 2 of the 1951
Act, as repealed by Act no. 506/91).
In the Government Bill to Parliament proposing the above-
mentioned 1991 amendments to the 1951 Act it was stated that the Land
Court should be an impartial and independent tribunal and that the
participation of the Head of the County Surveying Office on that court
"constituted an exception from the general practice" (Bill No. 199/90,
p. 3). Following the amendments the members of the Land Court would be
"totally independent from the county surveying authority responsible
for the administrative proceedings" (ibid., p. 9).
The notification of a hearing before the Land Court shall be
placed on the municipal notice board and advertised in one or two local
newspapers at least fourteen days before the hearing. Appellants whose
addresses are known to the Court should further be summoned in writing
at least fourteen days beforehand (section 320 of the 1951 Act, as
amended by Act no. 321/72).
The Expert shall attend the Land Court's hearing in order to
reply to its questions regarding the administrative proceedings
conducted by him. He shall further be heard in regard to the
submissions made by the parties. The Expert's absence shall, however,
not prevent the Land Court from examining and deciding the case
(section 324, as amended by Act 321/72). If considered necessary, the
Land Court may invite other experts to submit information at its
hearing (section 300, as amended by Act no. 321/72).
If a matter has been brought before the Land Court by way of an
appeal, a party who is not an appellant shall be allowed to present
claims before the court on the ground that the matter also affects his
rights (section 322, subsection 1, as amended by Act no. 321/72).
e. Supreme Court practice
In a case decided by the Supreme Court (No. 1986 II 127) a party
to administrative proceedings had been absent from the hearing before
the Expert and Trustees where none of the parties present had requested
compensation for the interference with his property rights to be caused
by the planned road and where no right to compensation had therefore
been granted. The absent party's appeal to the Land Court in which he
requested compensation was dismissed without examination on its merits,
since no compensation claim had been made by him in the administrative
proceedings. The Supreme Court observed that pursuant to section 48,
subsection 1 the compensation matter was to be examined by the Expert
and Trustees ex officio. As the absent party had therefore not lost his
right to request compensation before the Land Court, the court should
not have dismissed his appeal. The matter was therefore returned to the
Expert and Trustees.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 and Article 13
of the Convention:
(a) that the Land Court was partial, one of its members being
the Head of the County Surveying Office and thereby a superior of the
Expert; and
(b) that the proceedings were unfair in several respects, in
particular in that although his address was known to the authorities,
he was neither summoned to the initial proceedings conducted by the
Forestry Board nor to the hearings before the Expert and Trustees and
the Land Court; that his compensation request was rejected by the
Expert and Trustees without fair consideration; that no notice of
appeal was either read out or given to him following their hearing;
that the Land Court did not examine his compensation claim; and that
it did not properly hear any of the property owners who objected to the
Forestry Board's plan, but merely those who supported it as well as the
Executors of the plan and the Forestry Board itself.
2. The applicant further complains under Article 1 of Protocol No.
1 to the Convention and Article 13 of the Convention that his right to
the peaceful enjoyment of his possessions has been violated in two
respects.
(a) Firstly, the Forestry Board in 1988 unlawfully carried out
logging on his property for the purpose of staking out the planned road
on his property.
(b) Secondly, the construction of the road interfered in an
unjustified manner with the applicant property rights. It did not
pursue any general interest, as it was an exclusively private road.
Moreover, the alternative road plan supported by the applicant would
have been a considerably cheaper solution and would not have affected
his property in as serious a way. He finally claims that his
responsibility for the road costs is excessive and not proportionate
to the benefits from the road, in particular having regard to the fact
that his property already had access to a road as well as to the fact
that his share of the costs for the construction of the new road is
equal with the total value of the potential timber from the forest on
his property.
3. In his observations of 1 February 1993 the applicant also
complained of the partiality of the persons proposed as Trustees by the
municipality of Korsholm, given that three high-ranking members of the
municipality who also owned properties in the vicinity of the planned
road had a personal interest in the road construction as property
owners in the affected area. The applicant again invoked Article 6
para. 1 of the Convention.
4. In his observations at the Commission's hearing on 12 May 1994
the applicant also lodged a further complaint with regard to the
composition of the Land Court in that also the two lay judges sitting
on that court were partial, given that they had allegedly been
appointed by the municipality of Korsholm following influence by the
above-mentioned three high-ranking members of the municipality. He
again invoked Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 May 1991 and registered on
25 July 1991.
On 1 July 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 with the exception
of the complaint under Article 1 of Protocol No. 1.
The Government's observations were submitted on 22 October 1992
and the applicant's observations in reply on 14 December 1992.
On 11 January 1994 the Commission decided to invite the parties
to a hearing on the admissibility and merits of the applicant's
complaints under Article 6 para. 1 of the Convention. It further
decided to invite the Government to submit written observations on the
admissibility and merits of the complaints under Article 1 of Protocol
No. 1.
The Government's observations on the complaints under Article 1
of Protocol No. 1 were submitted on 22 February 1994 and the
applicant's observations on 28 February and 13 March 1994.
On 8 March 1994 the applicant was granted legal aid.
On 13 April 1994 the Commission decided to extend the scope of
its hearing to include the question of the admissibility and merits of
the applicant's complaints under Article 1 of Protocol No. 1.
At the hearing, which was held on 12 May 1994, the parties were
represented as follows:
The Government:
Mr. Tom Grönberg Ambassador, Director-General for
Legal Affairs, Ministry for
Foreign Affairs, agent
Mr. Arto Kosonen Legal adviser, Ministry for
Foreign Affairs, co-agent
Mrs. Leea Vikman Land surveyor, District
Surveying Office of Southern
Savo, expert
The applicant:
Mr. Peter Westdahl Member of the Swedish Bar
Association, counsel
The applicant also attended the hearing.
THE LAW
1. The applicant complains under Article 6 para. 1 and Article 13
(Art. 6-1, 13) of the Convention
(a) that the Land Court was partial, one of its members being
the Head of the County Surveying Office and thereby a superior of the
Expert; and
(b) that the proceedings were unfair in several respects, in
particular in that although his address was known to the authorities,
he was neither summoned to the initial proceedings conducted by the
Forestry Board nor to the hearings before the Expert and Trustees and
the Land Court; that his compensation request was rejected by the
Expert and Trustees without fair consideration; that no notice of
appeal was either read out or given to him following their hearing;
that the Land Court did not examine his compensation claim; and that
it did not properly hear any of the property owners who objected to the
Forestry Board's plan, but merely such who supported it as well as the
Executors of the plan and the Forestry Board itself.
Article 6 para. 1 (Art. 6-1) of the Convention reads, as far as
relevant:
"1. In the determination of his civil rights and obligations
..., everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law. ..."
Article 13 (Art. 13) of the Convention reads:
"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."
a) The presence of the Head of the County Surveying Office on
the Land Court
The Government submit that this aspect of the complaint is
manifestly ill-founded. Under domestic law in force at the relevant
time the Head of the County Surveying Office was not biased as a member
of the Land Court, given that this Office was merely responsible for
registering the proceedings and keeping their records. He did not
appoint the officials of the District Surveying Office and had no right
to influence the outcome of the administrative proceedings.
The applicant contends that the participation of the Head of the
County Surveying Office in the Land Court rendered the Court partial,
given that he was the Expert's superior and considering that he was the
official finally responsible for the road construction plan confirmed
by the Expert and Trustees.
b) The applicant's access to the Land Court and the fairness
of the proceedings
The Government consider that the complaint is manifestly ill-
founded. The applicant was not placed at a substantial disadvantage in
the proceedings which were therefore fair as a whole. The Government
admit that the applicant was not summoned to the meetings arranged by
the Forestry Board, although his address was known. However, although
the Forestry Boards often invite property owners and others affected
by a proposed road to such meetings, the applicant had no right under
domestic law to be heard at this stage. In any case, the proceedings
before the Forestry Board fall as such outside the Commission's
competence ratione temporis and did not determine the applicant's civil
rights or obligations. The plan drawn up by the Forestry Board on the
basis of the meetings was not binding under the 1962 Act, although it
had a significant bearing on the final outcome of the road construction
proceedings, given that section 49, subsection 3 of the 1962 Act
presupposes weighty reasons for its amendment. The Expert and Trustees
are therefore to a great extent bound by it.
As regards the fairness of the proceedings before the Expert and
Trustees, the Government admit that the applicant was not summoned to
those proceedings, but underline that he nevertheless attended the
hearing. They further refer to the minutes from the hearing which do
not support the applicant's contention that he requested compensation.
In any event, the question of compensation was considered ex officio
by the Expert and Trustees. Although the Forestry Board's plan was
introduced only at the hearing, the hearing was suspended so as to
enable the parties to study it. As regards the alleged failure to read
out or serve a notice of appeal on the applicant following the closing
of their hearing, the Government refer to the Land Court's finding that
the applicant had attended the hearing where a notice had been read out
and a copy handed over to one of the Executors.
As regards the fairness of the proceedings before the Land Court,
the Government submit that the applicant's compensation request was
dismissed because it had not been made before the Expert and Trustees.
According to case-law of the Supreme Court, the compensation matter
shall be examined ex officio in the administrative proceedings. The
practice of the Land Courts when dealing with fresh compensation claims
appears, however, to be varying. As far as the remainder of the
applicant's appeal is concerned, the Government refer to the Land
Court's decision, which show that the Court also gave opponents to the
road construction plan a possibility to express their opinion. Although
the Land Court could, pursuant to section 49, subsection 3 of the 1962
Act not immediately have approved a plan significantly different from
that of the Forestry Board such as the plan presented to the Court at
the first of its hearings, this did not render the proceedings unfair.
Finally, the role of the Forestry Board in the proceedings before the
Land Court was merely to put its expertise at the disposal of, in
principle, both the proponents and the opponents of the road
construction project.
The applicant maintains that the proceedings as a whole were
unfair. He points out, in particular, that only a minor number of the
property owners were summoned to the meetings arranged by the Forestry
Board. As both the Forestry Board and the District Surveying Office had
knowledge of his address, the reason for him not being summoned to the
hearing before the Expert and Trustees was that he had previously
objected to the logging on his property whereby the proposed road had
been marked on his property. Although he attended the hearing
nevertheless he had been informed about it at a very short notice and
was not sufficiently prepared for it. The administrative proceedings
were also flawed in several other respects. Those attending the hearing
were never asked whether they considered it to have been lawfully
called, although such a statement appears in the minutes. It was never
stated who had instituted the proceedings. Contrary to domestic law no
estimation of the road costs was presented prior to or at the hearing
on 27 June 1990, where the Forestry Board's plan was presented to the
applicant for the first time. The hearing was suspended for only
fifteen minutes which was not sufficient in order to assess the impact
of the proposed plan. Moreover, the property owners who had instituted
the proceedings were in no way identified. No general discussion
between the parties attending the hearing was allowed. The parties
could only submit their opinions one by one, other parties being unable
to overhear them. They were not allowed to propose a change of the
location of the road. The Forestry Board, however, was allowed to
submit its opinion in public. Neither the relative distribution of the
road costs, as proposed by the Forestry Board, nor the parties' right
to compensation was properly examined. The applicant contends he only
left the hearing once it had been declared closed. Up to that moment
no notice of appeal had been read out.
As regards the fairness of the proceedings before the Land Court,
the applicant maintains that it wrongly declined to examine his
compensation claim on its merits. In regard to the part of his appeal
which was examined he accepts that the Forestry Board had the right to
attend the proceedings as an expert body, but maintains that instead
of treating all parties affected by the road in an equal manner the
Land Court considered only the Forestry Board's plan as upheld by the
Expert and Trustees. Although the alternative plan supported by the
applicant had been presented at the Land Court's first hearing, it was
no longer considered at the second one, where the Land Court considered
itself limited either to confirming or quashing the Forestry Board's
plan. Accordingly, although a majority of all those affected by the
road had objected to the Forestry Board's plan, the Forestry Board was
de facto the only party heard at the Land Court's second hearing. Had
the proceedings been fair, the cost for the road construction could,
pursuant to section 22, subsection 2 of the 1962 Act, have been imposed
solely on those supporting it.
The applicant finally submits that the proceedings were also
unfair in that he has never been able to obtain information as to how
many parties and who supported the Forestry Board's road construction
plan. Its supporters were de facto represented by the Forestry Board
itself, although its role, in particular in the proceedings before the
Land Court, should have been limited to that of an independent expert.
Consequently, those who objected to the plan, allegedly constituting
a clear majority of those affected by the road, were not placed on an
equal footing with those supporting the plan.
The Commission has proceeded to a preliminary examination of the
whole of the applicant's above-mentioned complaint in the light of the
parties' submissions. It considers that the complaint raises questions
of fact and law which are of such a complex nature that their
determination requires an examination of the merits. The complaint
cannot therefore be declared inadmissible as being manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other ground for declaring it inadmissible has been
established.
2. The applicant further complains under Article 1 of Protocol No.
1 (P1-1) to the Convention and Article 13 (Art. 13) of the Convention
that his right to the peaceful enjoyment of his possessions has been
violated in two respects.
(a) Firstly, the Forestry Board in 1988 unlawfully carried out
logging on his property for the purpose of staking out the planned road
on his property.
(b) Secondly, the construction of the road interfered in an
unjustified manner with the applicant property rights. It did not
pursue any general interest, as it was an exclusively private road.
Moreover, the alternative road plan supported by the applicant would
have been a considerably cheaper solution and would not have affected
his property in as serious a way. He finally claims that his
responsibility for the road costs is excessive and not proportionate
to the benefits from the road, in particular having regard to the fact
that his property already had access to a road as well as to the fact
that his share of the costs for the construction of the new road is
equal with the total value of the potential timber from the forest on
his property.
a) The Forestry Board's logging in 1988
The Government argue that the complaint of the logging carried
out by the Forestry Board is incompatible ratione temporis with the
provisions of the Convention, given that it took place in 1988.
The applicant considers the logging to form an inherent part of
the road construction proceedings as a whole which terminated only
after the entry into force of the Convention with regard to Finland.
The Commission observes that the logging at issue took place in
1988, i.e. prior to 10 May 1990, which is the date of the entry into
force of the Convention with respect to Finland.
It follows that this complaint is incompatible ratione temporis
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
b) The other interference with the applicant's property rights
due to the construction of the road
The Government submit that this complaint is manifestly ill-
founded. The interference caused by the road was a control of use of
the applicant's property rights which was justified under the second
paragraph of Article 1 of Protocol No. 1 (P1-1). In particular, the
distribution of the road costs is not based exclusively on the size of
properties affected by the road, but also on the distance between each
property and the beginning of the road as well as the number of trees
on the property. The applicant's cost responsibility was therefore not
excessive. The Government further refer to the road agreement which the
applicant on 12 January 1992 authorised one of the Executors to sign
and whereby he must be considered to have accepted that he would
receive no compensation for the interference with his property rights
caused by the construction of the road. Finally, the proceedings for
the construction of the road were fair and did not therefore prevent
the applicant from putting his case to the relevant authorities.
The applicant contends, in particular, that the Government have
not shown any document indicating the relative distribution of these
costs between the property owners affected by the road. He asserts that
not all identities of those obliged to share the road costs have been
made known. The Forestry Board has not properly dealt with his request
for an exemption from the road ownership and costs.
The Commission has proceeded to a preliminary examination of this
complaint in the light of the parties' submissions. It considers that
also this complaint raises questions of fact and law which are of such
a complex nature that their determination requires an examination of
the merits. The complaint cannot therefore be declared inadmissible as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other ground for declaring it
inadmissible has been established.
3. In his observations of 1 February 1993 the applicant also
complained of the partiality of the persons proposed as Trustees by the
municipality of Korsholm, given that three high-ranking members of the
municipality who also owned properties in the vicinity of the planned
road had a personal interest in the road construction as property
owners in the affected area. The applicant again invoked the above-
cited Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission is not required to decide whether or not these
facts alleged by the applicant disclose any appearance of a violation
of Article 6 para. 1 (Art. 6-1) of the Convention, as it follows from
Article 26 (Art. 26) that it may only deal with a matter which has been
brought to the Commission's attention within six months from the
decision or incident constituting the subject-matter of the complaint.
In the present case the proceedings at issue terminated with the
Supreme Court's refusal of leave to appeal on 25 March 1991, which is
more than six months before the date of the introduction of the present
complaint. An examination of the complaint does not disclose the
existence of any special circumstances which might have interrupted or
suspended the running of that period.
It follows that this complaint has been introduced out of time
and must be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
4. In his observations at the Commission's hearing on 12 May 1994
the applicant also lodged a further complaint with regard to the
composition of the Land Court in that also the two lay judges sitting
on that court were partial, given that they had allegedly been
appointed by the municipality of Korsholm following influence by the
above-mentioned three high-ranking members of the municipality. He
again invoked Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission, again referring to Article 26 (Art. 26) of the
Convention, considers itself not required to decide whether or not
these facts alleged by the applicant disclose any appearance of a
violation of Article 6 para. 1 (Art. 6-1) of the Convention. It again
observes that the court proceedings at issue terminated with the
Supreme Court's refusal of leave to appeal on 25 March 1991, which is
more than six months before the date of the introduction of the present
complaint. An examination of the complaint does not disclose the
existence of any special circumstances which might have interrupted or
suspended the running of that period.
It follows that this complaint has also been introduced out of
time and must also be rejected under Article 27 para. 3 (Art. 27-3) of
the Convention.
For these reasons, the Commission, by a majority,
DECLARES ADMISSIBLE, without prejudging their merits, the
complaint concerning the presence of the Head of the County
Surveying Office on the Land Court, the applicant's access to the
Land Court as well as the fairness of the proceedings; and
the complaint concerning the other allegedly unjustified
interference with the applicant's property rights caused by the
construction of the road and the lack of an effective remedy in
this respect; and
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)