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AS TO THE ADMISSIBILITY OF

Application No. 12740/87

by Bror MUOTKA and Erik PERÄ

against Sweden

The European Commission of Human Rights sitting in private

on 7 October 1988, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C. L. ROZAKIS

Mrs. J. LIDDY

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

25 October 1986 by Bror MUOTKA and Erik PERÄ against Sweden and

registered on 16 February 1987 under file No. 12740/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they appear from the applicants'

submissions, may be summarised as follows.

The applicants are Swedish citizens born in 1913 and 1920

respectively. They are resident at Övertorneå.

Both applicants own property adjacent to Haapakylänpudas on

the Torne river. The power to permit constructions in or adjacent to

the Torne river is entrusted to an inter-state body, the Finnish-

Swedish Frontier River Commission (finsk-svenska gränsälvskommissionen),

created by an agreement between Finland and Sweden which was concluded

in September 1971.

On 12 March 1984 the Frontier River Commission granted

permission to the Haapakylänsaari road association (vägförening) to

construct, on certain conditions, a road with culverts over

Haapakylänpudas. According to the decision, questions of compensation

as a result of the taking of land were to be resolved by agreement

between the parties concerned. Failing agreement, the issue was to be

referred to the Frontier River Commission. Questions of compensation

as a result of the construction at issue may be raised until

30 September 1995.

The applicants complained to the County Administrative Board

(länsstyrelsen) of the County of Norrbotten requesting that the Board

stop the activities of the Haapakylänsaari road association and order

that the association restore the river.

On 10 April 1984 the County Administrative Board refused to

examine the merits of the applicants' request on the ground that the

decision of the Frontier River Commission was not subject to appeal.

The applicants appealed to the Government. On 7 June 1984, the

Government (the Ministry of Agriculture) rejected the appeal stating

that, under Chapter 8 Section 15 of the Frontier River Agreement

(gränsälvsöverenskommelsen), decisions by the Frontier River

Commission become effective immediately except for issues concerning

compensation for land taken or for losses, damages or interferences or

for legal costs, and the applicants' appeal did not concern such

compensation.

The applicants then reported to the public prosecutor that the

Haapakylänsaari road association had violated the Water Act

(vattenlagen) in connection with the construction of the road. After

examination and appeals from the applicants, the Regional Prosecutor's

Office (regionåklagarmyndigheten) of Luleå decided, on 10 September 1986,

not to institute any criminal proceedings.

The applicants complained to the Chancellor of Justice

(justitiekanslern) who in a decision of 8 December 1986 found that the

Frontier River Commission was an inter-state organ not subject to the

supervision of the Chancellor of Justice, but that the Swedish members

of the said Commission were subject to his supervision. The Chancellor

of Justice then examined the applicants' separate complaints. As

regards the complaint that the Frontier River Commission had not

submitted the issue of the construction of the road to the

Governments of Sweden and Finland, the Chancellor of Justice found

no reason to criticise the Frontier River Commission's assessment.

Regarding the complaints about the Commission's determination of the

applicants' reports on the construction, the Chancellor of Justice

noted that it was not the task of the Commission, but of the competent

state authorities, to interfere and take steps if measures were taken

in conflict with the relevant provisions.

COMPLAINTS

The applicants complain that the provisions of the Frontier

River Agreement and the exercise of power by the Frontier River

Commission are incompatible with the Convention. In particular, the

Frontier River Commission's decisions are not subject to appeal to a

body satisfying the conditions of Article 6 of the Convention.

The applicants also allege a violation of Article 13 of the

Convention, in that they do not have any effective remedy for alleged

violations of their Convention rights.

Finally, the applicants maintain that the Frontier River

Agreement mainly affects the population in the Torne valley, which is

a Finnish speaking minority, and that, consequently, there has been a

breach of Article 14 of the Convention.

THE LAW

1. In accordance with its case-law the Commission may only

examine an application insofar as the applicants themselves can be

said to have been the victims of the facts they complain about. The

Commission cannot examine general complaints on behalf of the

population of the Torne Valley (cf. No. 9297/81, Dec. 1.3.82, D.R. 28

p. 204).

2. The applicants' personal complaints are directed against the

decisions taken by, and the activities or inactivity of, the

Finnish-Swedish Frontier River Commission. The said Commission is an

inter-state body created by an Agreement between Finland and Sweden.

The decisions of the Frontier River Commission are, insofar as

relevant in the present case, not subject to appeal to any Swedish

court or other authority.

The Commission considers that it can leave open the question

as to whether or to what extent the Swedish Government can be held

responsible under the Convention for decisions or measures taken by

the Frontier River Commission. Even assuming that the Government could

be held responsible the application is inadmissible for the following

reasons.

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

Commission "may only deal with the matter after all domestic remedies

have been exhausted, ..., and within a period of six months from the

date on which the final decision was taken."

The Commission considers that the applicants' complaints to

the public prosecutor, the Regional Prosecutor's Office and the

Chancellor of Justice cannot in the circumstances of the present case

be regarded as such "remedies" which should be taken into account when

calculating the six months period laid down in Article 26 (cf.

No. 9959/82 and 10357/83, Dec. 14.3.84, D.R. 37, p. 87).

Consequently, even if it were accepted that the applicants'

appeal to the Government was a "remedy" for the purposes of Article 26

(Art. 26), the application has nevertheless been lodged out of time

since the Government's decision was dated 7 June 1984 and the

application was introduced on 25 October 1986.

It follows that the application must be rejected pursuant to

Article 27 para. 3 (Art. 27-3) of the Convention for failure to comply

with the six months rule.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRUGER) (C. A. NØRGAARD)

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MUOTKA and PERÄ v. SWEDEN

MUOTKA and PERÄ v. SWEDEN

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