FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27824/95 by Mauno POSTI and Erkki RAHKO against Finland

The European Court of Human Rights (Fourth Section) , sitting on 10 May 2001 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr V. Butkevych , Mrs N. Vajić , Mr J. Hedigan , Mr M. Pellonpää , Mrs S. Botoucharova , judges [Note1] ,

and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 2 July 1995 and registered on 7 July 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

Having deliberated, decides as follows:

THE FACTS

The applicants are Finnish citizens, born in 1935 and 1939, respectively. The first applicant resides at Maksniemi and the second applicant in Tornio . They are represented by Mr Matti Wuori , a lawyer in Helsinki. The respondent Government are represented by Mr Holger Rotkirch, Director-General for Legal Affairs, and Mr Arto Kosonen, Director, both of the Ministry for Foreign Affairs.

A. The circumstances of the case

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

The applicants are salmon fishermen operating in the coastal region of the Gulf of Bothnia on the basis of leases contracted with the State in 1989  and renewed in 1995 for a further period ending in 1999.

Pursuant to section 116, subsection 3, of the 1982 Fishing Act ( kalastuslaki , lag om fiske 286/1992) the Ministry of Agriculture and Forestry may restrict fishing, inter alia , if this is deemed necessary in order to safeguard future fish stocks. From 1986 onwards the Ministry  has imposed such restrictions by issuing annual decrees. The restrictions varied somewhat from year to year as regards their timing and territorial scope as well as the fish species in question and the prohibited fishing gear (see section 31). The restrictions could also extend to private waters.

By Decree no. 231/1994 the Ministry prohibited salmon fishing with certain gear within the territorial waters and fishing zone of Finland in the main basin of the Baltic Sea, in the Gulf of Bothnia and in the Simojoki river. The restrictions concerned the fishing of salmon in the open sea, in coastal waters, in rivers and their estuaries and extended to the fishing waters which the applicants were leasing from the State According to the applicants, the fishermen operating in the open sea of the Gulf of Bothnia were not faced with an equally severe fishing restriction.

The Decree was later repealed and replaced by Decree no. 258/1996.

On 28 December 1979 the Water Court of Northern Finland ( Pohjois-Suomen vesioikeus , Norra Finlands vattendomstol ) ordered that certain companies permitted to construct hydroelectric power stations in the Kemijoki river should annually restock its estuary with an average of 615,000 young salmon. This compensation order aimed at safeguarding the future salmon stocks in the waters affected by the construction. (The Kemijoki river flows into the Gulf of Bothnia at Kemi , not far from Tornio .) The Water Court's decision was upheld by the Supreme Administrative Court ( korkein hallinto-oikeus , högsta förvaltningsdomstolen ) on 30 May 1980.

In response to a petition lodged by the applicants and others the Parliamentary Ombudsman ( eduskunnan oikeusasiamies , riksdagens justitieombudsman ), on 25 November 1994, found no indication that the Ministry of Agriculture and Forestry had, in restricting the salmon fishing in certain waters, acted contrary to, inter alia , the Supreme Administrative Court’s decision of 1980 or that the Ministry had acted in any other incorrect manner.

In a further opinion of 26 May 1995 given in response to a petition by others the Ombudsman considered that, in issuing the 1994 Decree, the Ministry had not exceeded the competence conferred upon it by the Fishing Act. The restrictions set forth in the Decree had, moreover, been justified in order to safeguard the relevant fish stocks. In so far as the petitioners had complained of discriminatory treatment, the Ombudsman noted that the restrictions had differed from area to area in order to take into account the spawning routes of the salmon. The Ombudsman therefore accepted that the prohibition had been timed differently for different areas and that different fishing gear had been prohibited in different areas. Having reviewed the territorial scope of the restrictions, the Ombudsman considered, however, that the Ministry had not sufficiently taken into account the need to treat the fishermen in different areas equally.

B. Relevant domestic law and practice

According to the Constitution of 1919 ( Suomen hallitusmuoto , Regeringsform för Finland 94/1919), as in force up to 1 March 2000, everyone was to be equal before the law and his or her property was to be protected (sections 5 and 6). A judge or other official was under an obligation not to apply a provision in a Decree which conflicted with  constitutional or other laws of Parliament (section 92, subsection 2). The Convention has been incorporated into Finnish law by an Act of Parliament with the status of ordinary law (438/1990).

Under the Constitution of 1919, anyone who had suffered an infringement of his rights, or damage, through an illegal act or negligence on the part of a civil servant was entitled to demand that the civil servant be convicted and held liable for damages, or to report him for the purpose of having charges brought (section 93, subsection 2). A similar provision appears in section 118, subsection 3, of the Constitution of 2000 ( Suomen perustuslaki , Finlands grundlag 731/1999). Chapter 2 (“Basic rights and liberties”) of the  Constitution of 1919 was amended by Act no. 969/1995 which entered into force on 1 August 1995. The new chapter 2 includes, inter alia , the right to property (section 12; as from 1 March 2000 section 15) and has been incorporated as such into the 2000 Constitution. Under the current Constitution a court of law shall give primacy to a provision therein, if the application of a provision of ordinary law would be in evident conflict with the Constitution.  If a provision in a Decree or any other statute of lower rank than an Act of Parliament is in conflict with the Constitution or ordinary law, that provision shall not be applied by a court of law or any other public authority (sections 106-107). 

Under the Tort Liability Act ( vahingonkorvauslaki , skadeståndslag 412/1974) proceedings for damages may be initiated against the State in view of its vicarious liability for mistakes or omissions in the use of public authority (chapters 3 and 4). The claim for damages shall be made within ten years from the date when the damage occurred, unless a shorter limitation period applies (chapter 7, section 2).

According to the 1961 Water Act ( vesilaki , vattenlag 264/1961), the holder of a construction permit relating to a water area may, if the construction would clearly damage the fish stocks, be ordered to restock the area and take other necessary measures in order to safeguard the fish stocks in the affected waters (chapter 2, section 22, subsection 1).

A claim concerning a measure alleged to be in violation of the Water Act and whereby it is sought to have such a measure prohibited, the previous conditions re-established or damage compensated may be lodged with the competent water court (chapter 16, section 33, subsection 1).

The general right to fish in public water areas and within the Finnish fishing zone does not include the right to fish salmon and salt-water trout (see, e.g., section 6, subsection 3, and section 12 of the Fishing Act). According to section 116, subsections 2 and 3, of the Fishing Act, provisions restricting fishing within or outside the territorial waters of Finland may be given by Decree for the purpose of fulfilling obligations set out in an international agreement binding on Finland, for safeguarding fish stocks or for any other comparable special reason.

In a judgment of 9 June 1982 (no. 33/1982) the Supreme Water Court ( vesiylioikeus , vattenöverdomstolen ) found that since time immemorial the owners of fishing waters in the Kemijoki river and its estuary had been engaged in fishing of salmon and salt-water trout without any State interference and with its de facto consent. Compensation for the loss of fishing benefits resulting from permitted construction should therefore be awarded to all individuals who had been engaged in such fishing in the area, provided they had been using legal fishing gear. The Supreme Water Court further found that the State too was entitled to compensation for the permanent loss of the use of its limited right in rem in respect of the fishing waters. In addition, compensation was awarded to the State for its loss of income from leasing out those waters.

The Supreme Court ( korkein oikeus , högsta domstolen ) found in its decision of 3 February 1983 (no. 1983 II 28) that the damage which a company had caused by setting up timber floating routes in the Simojoki river had engendered effects on private owners of water areas, causing them losses which were to be compensated by virtue of the Water Act. The State, which traditionally had the right to fish salmon in the river, had not used that right for decades, either by leasing out its waters or in any other way.

The provisions concerning the State’s fishing waters and fishing rights can now be found in chapter 5 of the Fishing Decree (1116/1992).

By judgment of 7 September 1995 (no. 133/1995) the Supreme Water Court upheld a decision of the Water Court of Northern Finland of 14 April 1994 which had dismissed various fishery associations' claim for compensation for the allegedly failed restocking of the estuary of the Kemijoki river as ordered on 28 December 1979. The Water Court had found that the defendants had complied with the obligations imposed on them in 1979 for the purpose of safeguarding the relevant fish stocks. In such circumstances the defendants could not be held responsible for the diminution in catches for which compensation had been sought.

COMPLAINTS

1. The applicants complain that they had no access to a tribunal within the meaning of Article 6 § 1 of the Convention in order to challenge the fishing restriction imposed by the 1994 Decree. Nor was there any other effective remedy whereby they could challenge that restriction.

2. The applicants also complain that the fishing restriction and "other measures" taken by the State authorities have violated their right to the peaceful enjoyment of their possessions, as these allegedly comprise a right to fish the coastal waters of the Gulf of Bothnia . The applicants finally allege that they have been discriminated against in comparison with fishermen operating in the open sea of the Gulf.

The applicants invoke Articles 6, 13 and 14 of the Convention and Article 1 of Protocol No. 1.

THE LAW

1. The applicants have first complained that there was no court or other remedy whereby the 1994 fishing restriction could be effectively challenged by them. The Court has examined this grievance under Article 6 § 1 of the Convention which, in so far as relevant, reads as follows.

"In the determination of his civil rights ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ..."

The Government submit that the applicants have not exhausted domestic remedies. Matters related to fishing are considered either by a water court or by an ordinary court of first instance. A claim for damages from the State would be dealt with by the ordinary courts. The applicants have not brought the case either before the Water Court or an ordinary court. Had they done so, and given that the Convention is directly applicable, the courts would have been required to consider whether the 1994 Decree was in compliance with the Convention. In the negative, the court would have been obliged to refrain from applying the Decree. T hese remedies would have offered such reasonable prospects of success that they could not be substituted by the applicants’ petition to the Parliamentary Ombudsman.

In the alternative, the Government submit that part of the application has been lodged out of time. A ccording to the practice of the former Commission, a decision made in response to a petition to the Ombudsman does not extend the six months’ period prescribed by Article 35 § 1 of the Convention. Were the Court to find that no effective domestic remedy was, or remains, available to the applicants, the six-month period would start to run from the entry into force of the 1994 Decree, on 1 April 1994. As the applicants introduced their application only on 2 July 1995, only those impugned measures which have taken place after 2 January 1995 could be examined by the Court.

In the further alternative, the Government submit that the complaint is manifestly ill-founded. Under the Fishing Act the right to engage in fishing usually belongs to the owner of the water area. The owner may, however, only exceptionally enjoy an exclusive right to engage in fishing within that area, this right being restricted by the rights of other joint owners and holders of limited rights in rem , and by the general right to use the waters. In addition, the Fishing Act itself contains provisions restricting the right to fish, and further restrictions may be issued by virtue of the said Act.

The right to fish salmon and salt-water trout in the coastal waters of the Gulf of Bothnia and in the rivers emptying into the Gulf of Bothnia is independent of  the ownership of the water areas. No person has a subjective right to fish those species. Neither the Supreme Water Court’s judgment of 9 June 1982 nor the Supreme Court’s judgment of 3 February 1983 concluded otherwise. An award of compensation under the Water Act may be made even if the State’s limited right in rem continues to exist. While private property owners may exceptionally be able to rely on special grounds for fishing salmon, the applicants could not rely on any such grounds.

In these circumstances the Government argue that domestic law did not recognise to the applicants a “right” to the fishing in question. It follows that Article 6 § 1 of the Convention would appear inapplicable. The Government notes, however, that from 1989 onwards the applicants were leasing several sites from the State for the purpose of fishing salmon and salt-water trout. The leases were in force until the end of 1994 and the subsequent leases were due to expire in 1999. As a consequence of the 1994 Decree the fishing in question was restricted in some of the areas allotted to the applicants.

Considering also the pecuniary nature of the leases, the Government would not totally exclude that the applicants’ engagement in fishing on the above contractual basis up to the end of 1994 could be considered a “right” within the meaning of Article 6 § 1 of the Convention. Even so, the applicants could have challenged before an independent and impartial water court or ordinary court the conformity of the relevant provisions of the Decree with the Constitution or other legislation.

The applicants contend that they had an arguable “right” under domestic law to engage in fishing in the coastal waters of the Gulf of Bothnia , including, inter alia , the estuary of the Kemijoki river, to an extent exceeding the limits set by the 1994 Decree. The State prerogative which still exists with respect to the fishing right in question is incompatible with the demands of a society based on the rule of law.

The applicants agree that, theoretically at least, a fisherman could claim damages from the State for an intervention in his exercise of his occupation. In the applicants’ case, however, a court would have no legal grounds on which to base a compensation award, given that the impugned regulations were based on formally correct statutory law and the Convention has the status of ordinary law only. It would also be impossible to prove the precise damage which the State’s general policy decisions inflicted on individual fishermen. In these circumstances the Tort Liability Act would be inapplicable. Neither would any provision of criminal law appear to apply in the circumstances of this case. While it would be open to the applicants to challenge the constitutionality of the 1994 Decree, such a procedure would not address their specific grievance or enable them to pursue a pecuniary claim against the State. In these circumstances the applicants’ petition to the Ombudsman should be considered sufficient for the purposes of their obligation to exhaust domestic remedies.

The applicants finally consider that their application has not been lodged out of time, since it concerns an ongoing situation.

The Government’s first preliminary objection concerns the availability of court remedies which the applicants claim would not have been effective in their specific circumstances. The Court joins this objection to the merits of the complaint. The Government’s objection that part of the complaint is out of time can be examined only after it has been determined whether effective court remedies were available. This objection must therefore also be joined to the merits.

The Court concludes, in the light of the parties’ submissions, that this complaint raises such serious issues of fact and law under the Convention, including the question of the applicability of Article 6 § 1, that their determination should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants have also complained that the restriction on their right to fish, as imposed by the 1994 Decree, violated their right to the peaceful enjoyment of their possessions and discriminated against them in comparison with fishermen operating in certain other waters. They invoke Article 1 of Protocol No. 1 both in isolation and in conjunction with Article 14 of the Convention.

Article 1 of Protocol No. 1 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.”

Article 14 of the Convention reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government consider that this part of the application is also inadmissible for non-exhaustion of domestic remedies or at any rate manifestly ill-founded. Article 1 of Protocol No. 1 is limited to enshrining the right to the peaceful enjoyment of already existing possessions. The applicants cannot rely on any exceptional grounds affording them a right to fish salmon and salt-water trout independently of the State’s limited right in rem . Accordingly, Article 1 of Protocol No. 1 is inapplicable in this respect.

The Government observe, however, that the restriction emanating from the 1994 Decree might have constituted, during that year, an interference with the applicants’ right to the peaceful enjoyment of their possessions under the then existing leases. The contested measure nonetheless amounted to a mere control of the use of those possessions. Accordingly, the second paragraph of Article 1 applies. The restriction aimed at protecting a limited natural resource, which was in the general interest. Although the State has an exclusive right to control the fishing of salmon and salt-water trout, this does not prevent the owner of a water area to fish other species, within the limits set by the Fishing Act or European Community law. The applicants have not adduced any evidence as to the concrete economic loss or other damage which the impugned measures have caused them. Since there are not enough waters for fishing salmon and salt-water trout, they have been leased out on the basis of tenders. In cases of equal offers precedence has been given to a professional fisherman who has previously been engaged in the fishing of salmon in the relevant waters. The present applicants have been able to fish salmon and salt-water trout on the basis of such leases. Moreover, in the open sea of the Gulf of Bothnia the State has allowed professional fishermen to engage in the fishing of salmon and salt-water trout during specified periods of time. No rent or other comparable payment has been collected for such fishing.

In light of the above considerations and having regard to the legitimate aim pursued as well as to the wide margin of appreciation allowed to States in matters relating to Article 1 of Protocol No. 1, the Government consider that the measures complained of were appropriate and proportionate, and that a fair balance was struck between the general interests of the community and the rights of the applicants.

As regards the alleged discrimination against the applicants, the Government submit that the restrictions in question have been imposed equally on all fishermen operating in the sea. The applicants’ long-lasting leases with the State actually afforded them a rather privileged position. The restrictions complained of have also been of short duration. Given the State’s wide margin of appreciation, the Government consider that there has been a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

The applicants do not dispute the legitimacy of the aim sought to be realised through the restriction on the right to fish salmon and salt-water trout. They maintain, however, that the overall fishing policy discriminates against coastal fishermen such as themselves for the benefit of fishing fleets in the open sea.

The Court has already joined to the merits of the case the Government’s preliminary objection concerning the availability of court remedies. In the light of the parties’ submissions this complaint also raises such serious issues of fact and law under the Convention that their determination should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention either. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of

the case.

Vincent Berger Georg Ress Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via Alt+S please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Registrar.)