FIRST SECTION

DECISION

Application no . 34015/14 Simo VALKEAJÄRVI against Finland

The European Court of Human Rights (First Section), sitting on 1 December 2015 as a Chamber composed of:

Mirjana Lazarova Trajkovska, President, Päivi Hirvelä, Ledi Bianku, Kristina Pardalos, Aleš Pejchal, Robert Spano, Armen Harutyunyan, judges, and André Wampach, Deputy Section Registrar ,

Having regard to the above application lodged on 29 April 2014,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Simo Valkeajärvi, is a Finnish national, who was born in 1957 and lives in Helsinki. He was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki.

2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

First set of proceedings

4. The applicant was born, went to school and grew up in the municipality of Kuru. In 2004 he inherited real estate from his parents, and he returned to live in the house situated on the property. His closest family members as well his friends live in the area.

5. In 2008 the applicant obtained a building permit allowing him to extend the house situated on the inherited property. During the works, the applicant ’ s application for communal aid for increasing energy-efficiency was rejected by the municipality as the real estate was marked in the detailed plan as a holiday home and not as a house destined for permanent, year-round use.

6. By letter dated 5 January 2012, the applicant requested that the municipality grant a derogation ( poikkeaminen, undantag ) from the planning norms and change the entry in its records from a holiday home into a house in permanent use, in order to reflect the real situation.

7. On 24 January 2012 the municipal environmental board rejected the applicant ’ s request. It reasoned its decision by stating that the real estate was situated in an area destined for holiday homes and that the building permit had been granted only for a holiday home. Accepting a derogation in the applicant ’ s case would affect the realisation of plans and be detrimental to urban development. If a derogation were made in the applicant ’ s case, then all other landowners would have the same right, as they all had to be treated equally. Moreover, the real estate was located a long way from the services of the municipality and was not therefore suitable for permanent residence.

8. By letter dated 1 March 2012 the applicant appealed against the decision of the municipal environmental board to the Hämeenlinna Administrative Court ( hallinto-oikeus , förvaltningsdomstolen ) , requesting that his house be designated as a house for permanent residence. He pointed out that the house fulfilled the requirements for a house in permanent use. The neighbours did not object to the applicant ’ s request. Moreover, the house was situated only 11 km from the centre of the municipality and such a location was not in any way unusual in other villages. Accepting the applicant ’ s request would not create any new service obligations for the municipality.

9. On 17 December 2012 the Administrative Court rejected the applicant ’ s appeal. It found that the applicant ’ s house was located in an area which, in detailed plans, was destined for holiday use only. The same plans indicated other areas in which permanent housing should be concentrated. The equal treatment of all landowners required that they should also be able to live permanently in the area in question, which would lead to an uncontrolled increase in permanent housing in the area. The applicant ’ s personal circumstances and the fact that the house in question was suitable for permanent residence were not relevant in the present case.

10. By letter dated 16 January 2013 the applicant appealed to the Supreme Administrative Court ( korkein hallinto-oikeus , högsta förvaltningsdomstolen ) , reiterating the grounds of appeal presented before the Administrative Court. Moreover, the applicant argued that the right to live permanently in a place of one ’ s choice could not be dependent on the municipality in which one lived and the will of a particular civil servant in that municipality. The question of a constitutionally-protected right to equal treatment of citizens arose, since similar requests had been accepted in other municipalities. For example in the Tampere area the municipalities had abandoned the idea that permanent housing could not be accepted in sparsely populated areas.

11. On 1 November 2013 the Supreme Administrative Court refused the applicant leave to appeal.

12. In order to avoid periodic penalty payments which were likely to be imposed, the applicant moved to a rented apartment in Helsinki.

Second set of proceedings

13. On an unspecified date the applicant applied again for communal aid for increasing energy-efficiency.

14. On 27 December 2012 the applicant ’ s request was again rejected by the municipality.

15. By letter dated 10 February 2013 the applicant requested that the municipal environmental board rectify the decision of 27 December 2012 and state that there was no impediment to registering his house as a house for permanent use.

16. On 11 June 2013 the municipal environmental board upheld the decision of 27 December 2012 not to grant communal aid for increasing energy ‑ efficiency. No decision was made concerning the registration of the applicant ’ s house as a house for permanent use. It is not known whether the applicant appealed further against this decision.

B. Relevant domestic law and practice

17. Article 9 § 1 of the Finnish Constitution ( Suomen perustuslaki, Finlands grundlag ; Act no. 731/1999) provides the following:

“Freedom of movement

Finnish citizens and foreigners legally resident in Finland have the right to move freely within the country and to choose their place of residence.”

18. According to Article 6 of the Constitution:

“Everyone is equal before the law.

No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person....”

19. According to Article 106 of the Constitution, if in a matter being tried by a court of law the application of an Act would be in evident conflict with the Constitution, the court of law shall give primacy to the provision in the Constitution.

20. Section 124, subsection 4, of the Land Use and Building Act ( maankäyttö- ja rakennuslaki, markanvändnings- och bygglagen , Act no. 132/1999) provides that a building permit is required to substantially alter the intended use of a building or part thereof. When the need for the permit is considered, the impact the alteration will have on implementation of a land use plan and on other land use, and on the attributes required of the building are taken into account. Alteration of intended use requiring a permit includes altering a holiday home so that it is fit for permanent residence. Unless the area is specifically designated for this purpose in the local detailed plan, the building of a large retail unit shall be considered to have the aforementioned impact on land use.

21. According to section 171, subsection 1, of the same Act, when special cause exists, the local authority may grant a right to derogate from the provisions, regulations, prohibitions and other restrictions issued in or under this Act concerning building and other action. Section 172, subsections 1-2, of the same Act provide that

“Derogation shall not:

1) impede planning, the implementation of plans or other organisation of land use;

2) hinder attainment of the goals of nature conservation; or

3) hinder attainment of goals concerning the conservation of built-up environment.

A right to derogate may not be granted if it leads to building with substantial impact or if it has other substantially harmful environmental or other impact.”

22. The Supreme Administrative Court has, in its decision no. 3013/2013 of 24 September 2013, accepted in a case similar to the applicant ’ s case that the municipal building and environmental board could impose a periodic penalty payment to real estate owners in order to stop their unlawful use of a holiday home as a permanent residence.

COMPLAINT

23. The applicant complained under Article 2 of Protocol No. 4 to the Convention that his freedom to choose his place of residence had been violated.

THE LAW

A. Complaint under Article 2 of Protocol No. 4 to the Convention

24. Article 2 of Protocol No. 4 to the Convention reads as follows:

“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public , for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”

25. The Government raised the objection that the applicant had failed to refer to his freedom to choose his place of residence before the domestic courts. As he had not raised this issue, even in substance, in the domestic proceedings, he had failed to exhaust the domestic remedies. His application should therefore be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.

26. The Government further argued that Article 2 of Protocol No. 4 to the Convention did not apply to the present case. The applicant ’ s right to move to the municipality in question had not been restricted in any manner. The impugned domestic decisions had only concerned the right to register a certain holiday home as a house of permanent residence. This matter was entirely separate from the applicant ’ s freedom to choose his place of residence. Considering aspects of infrastructure, nature conservation and other national legislation, the Finnish Constitution or Article 2 of Protocol No. 4 to the Convention did not give any subjective right to settle anywhere in a specific area without appropriate permission, nor did they amount to a right to have the intended use of a building designated in a plan as a holiday home altered to a house for permanent use. This interpretation was in line with the Court ’ s case-law. Moreover, it was the responsibility of the owner of a holiday home to ensure that the property was not used in contravention of the purpose for which the building permits had been granted. The mere fact that the applicant had acted in contravention could not serve as a basis for changing the local plans for land use. Nor did the fact that the applicant had equipped his house so that its permanent use was possible constitute any ground for changing the local plans and, moreover, this was very common practice in Finland.

27. Were the Court of a different opinion, the Government maintained that the restriction had been based on the provisions of the Land Use and Building Act and that it had thus been in accordance with law. It had also been proportionate and served the legitimate aims of the protection of rights and freedoms of others, the protection of health or morals, and the maintenance of ordre public, and had also been in the public interest. As to the necessity in a democratic society, the Government emphasised that it was necessary to regulate the planning of land use and building on shores. Facilitating alteration of holiday homes into permanent homes might have very far-reaching consequences, not only for municipalities but also for the sensitive coastal environment.

28. The applicant claimed that he had exhausted the domestic remedies. From the applicant ’ s letters of appeal both to the Administrative Court and the Supreme Administrative Court it transpired that he had referred to the fact that he had been forced to move out of his home as a consequence of the authorities ’ decisions. The applicant had been de facto forced to relocate because a periodic penalty payment would have been imposed on him, had he not moved out of his home after the Supreme Administrative Court ’ s decision of 1 November 2013. He had therefore referred in substance to his freedom to live in the house he owned, as well as to the fact that the authorities had to allow him to do so, after seven years of uninterrupted enjoyment of that right. The Government ’ s objection should therefore be rejected.

29. The applicant maintained that the house he owned in the municipality in question was the only house he owned in that municipality – or elsewhere in the country, for that matter. He had been able to live in that house for seven years without any interference from the authorities, and was forced to move out only when he risked being subjected to a periodic penalty payment. There had therefore been a restriction of the applicant ’ s freedom to choose his residence. The applicant agreed with the Government that the restriction had been in accordance with law as laid down in Article 2 § 3 of Protocol No. 4 to the Convention but disagreed that the restriction had any legitimate aim. This was demonstrated by the fact that he would have been allowed to live in the house he owned all through the year if he had another flat which could be registered as his permanent residence.

30. As to the necessity in a democratic society, the applicant argued that the authorities had allowed the applicant to renovate the house for permanent use, so they were obliged to permit this kind of use of the property concerned. The restriction was not therefore necessary in a democratic society.

31. The Court notes first of all that it is not necessary for it to examine the Government ’ s objection concerning the alleged failure to exhaust the domestic remedies as the applicant ’ s application is in any event manifestly ill-founded.

32. The Court reiterates that Article 2 § 1 of Protocol No. 4 to the Convention guarantees to any person a right to liberty of movement, including the freedom to choose one ’ s residence. Any measure restricting that right must be lawful, pursue one of the legitimate aims referred to in the third paragraph of the above ‑ mentioned Convention provision and strike a fair balance between the public interest and the individual ’ s rights (see Baumann v. France , no. 33592/96 , § 61, ECHR 2001 ‑ V (extracts); Riener v. Bulgaria , no. 46343/99 , § 109, 23 May 2006; and Khlyustov v. Russia , no. 28975/05 , § 64, 11 July 2013 ).

33. The Court notes that the parties disagree on whether there was a restriction of the applicant ’ s freedom to choose his residence under Article 2 § 3 of Protocol No. 4 to the Convention.

35. It therefore follows that this complaint must be rejected as being manifestly ill-founded and declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention.

B. Remainder of the application

36. The Court notes that the applicant submitted arguments also in respect of Article 14 of the Convention in his written observations to the Court. As the complaint under Article 14 of the Convention was lodged only when the applicant submitted his written observations to the Court on 13 July 2015, it has not been lodged within the six-month time-limit from the final domestic decision. Accordingly, as this complaint has been lodged too late, it must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 7 January 2016 .

             André Wampach Mirjana Lazarova Trajkovska Deputy Registrar President