Information Note on the Court’s case-law 45

August-September 2002

Posti and Rahko v. Finland - 27824/95

Judgment 24.9.2002 [Section IV]

Article 6

Civil proceedings

Article 6-1

Access to court

Access to court to contest the imposition of restrictions on fishing: violation

Facts : The applicants are fishermen operating on the basis of leases contracted with the State in 1989 and subsequently renewed several times. Since 1986, the Ministry of Agriculture and Forestry has by a series of decrees imposed various restrictions on fishing in order to safeguard fish stocks. In 1991, the Supreme Administrative Court declined jurisdiction in an appeal by the second app licant against one of these decrees. In 1994, in response to the applicants’ petition concerning the 1994 decree, the Ombudsman found that the Ministry had not acted incorrectly. In 1996, the applicants received compensation for losses sustained as a resul t of the 1996 decree. A further decree was issued in 1998. The most recent lease, for the period 2000-2004, provides that salmon fishing is allowed “in so far as prescribed in the ... Decree on Salmon Fishing or other provisions”.

Law : Government’s prelimi nary objections – The objection based on failure to exhaust domestic remedies was joined to the merits. As to compliance with the six months time limit, since the applicants’ complaints had their source in the issuing of the specific decrees, they did not relate to a “continuing situation”: the fact that an event has significant consequences over time does not mean that it has produced a “continuing situation”. Consequently, in so far as the application concerned the restrictions imposed by the 1994 decree, it had been lodged out of time. However, as the applicants were effectively complaining about the similar restrictions imposed by the subsequent decrees, the six months requirement had been met in that respect.

Article 6 § 1 – Up to the end of 1999, the a pplicants could arguably claim a “civil right” to fish salmon and salt-water trout to an extent exceeding the limits set out in the 1996 and 1998 decrees. Where a decree, decision or other measure, albeit not formally addressed to any individual natural or legal person, in substance affects the “civil rights” of such a person or of a group of persons in a similar situation, whether by reason of certain attributes peculiar to them or by reason of a factual situation which differentiates them from all other p ersons, Article 6 § 1 may require that the substance of the measure in question is capable of being challenged by before a “tribunal”. In the present case, a genuine and serious dispute over the existence and scope of the applicants’ fishing rights may be said to have arisen, so that Article 6 applied. On the other hand, in the light of the explicit terms of the leases contracted in 2000, the applicants could not thereafter arguably claim a “right” to engage in fishing to an extent exceeding the limits set by law or decree.

Access to court – The Supreme Administrative Court declined jurisdiction in respect of a similar decree and it had not been demonstrated that a challenge to the 1996 and 1998 decreeswould have been any more successful. The Court was not c onvinced that the applicants were required to lodge a claim for damages to obtain compensation for the effects of the decreeson their livelihood. Moreover, as to an action for breach of contract, although the earlier leases contained no reservation entitli ng the State unilaterally to restrict the applicants’ fishing rights, the Court had not been made aware of any precedent where a decree had been found to have resulted in a breach of contract in comparable circumstances. Neither was the Court convinced tha t prosecution of a civil servant would have been an adequate remedy, in particular as the applicants would have had to show that a representative of the executive had committed an illegal act or at least acted negligently. Finally, in so far as it might be argued that the applicants could have obtained access to a court by violating the decrees and awaiting prosecution, no one can be required to breach the law in order to have a “civil right” determined in accordance with Article 6. In conclusion, no recour se was available whereby the applicants could have obtained a court determination of the effect of the decrees on the contractual terms of their leases. The preliminary objection had therefore to be dismissed and there had been a violation of Article 6.

Conclusion : violation (unanimously).

Article 1 of Protocol No. 1 – The applicants’ right to engage in certain fishing in State-owned waters on the basis of their leases constituted a “possession” and the limitation of that right amounted to a control of th e use of possessions. However, that control was justified, as it was lawful and pursued, by proportionate means, the legitimate general interest in protecting fish stocks. Moreover, the interference did not completely extinguish the applicants’ right to fi sh salmon and salt-water trout in the relevant waters and they also received compensation for losses sustained as a result of the prohibition imposed by the 1996 decree.

Conclusion : no violation (unanimously).

Article 1 of Protocol No. 1 in conjunction wit h Article 14 – It was not established that there had been differential treatment to the detriment of the applicants in their exercise of their contractual right to fish salmon and whitefish in designated State-owned waters.

Conclusion : no violation (unanim ously).

Article 13 – In view of the finding in respect of Article 6, it was not necessary to examine this complaint.

Conclusion : not necessary to examine (unanimously).

Article 41 – The Court rejected the applicants’ claim in respect of pecuniary damage. It awarded each of them 8,000 € in respect of non-pecuniary damage and also made an award in respect of costs and expenses.

© Council of Europe/European Court of Human R ights This summary by the Registry does not bind the Court.

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