CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 24579/94                       by Arto KETO-TOKOI and Others                       against Finland         The European Commission of Human Rights (First Chamber) sitting in private on 18 October 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 30 June 1994 by Arto Keto-Tokoi and Others against Finland and registered on 11 July 1994 under file No. 24579/94;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicants are set out in the Annex. They are represented by Ms. Pirjo-Riitta Oinaala, a lawyer of the Finnish Association for Nature Conservation ("Suomen luonnonsuojeluliitto").         The facts of the case, as submitted by the applicants, may be summarised as follows.         The first four applicants are owners of properties in the municipality of Pelkosenniemi near the river Vuotos in the county of Lapland in northern Finland. The fifth applicant is a local association of reindeer owners.         On 27 May 1993 the Government (hallitus, regeringen), sitting in its capacity as Council of State (valtioneuvosto, statsrådet) decided to give up 3.800 hectares of State-owned land in the so-called Vuotos area to the company Kemijoki Oy. Kemijoki Oy is a limited liability company in which the State holds the vast majority of the shares. In exchange for the land given up the State was to receive land from the company at a corresponding value. The land given up was to be used for the construction of an artificial lake and a related hydro-electric power station. The transfer was made pursuant to the Act on the Transfer and Exchange of Rapids in the Water System of the Kemijoki River (laki Kemijoen vesistössä olevan koskiomaisuuden luovuttamisesta ja vaihdosta, lag om överlåtelse och utbyte av strömfallsegendom i Kemi älvs vattendrag; Act no. 458/52, title as amended by Act no. 311/54; "the 1952 Act") and was to take effect on 30 September 1993.         In a memorandum to the Council of State of 24 May 1993 the official in charge of preparing the proposal for the land transfer for the Minister of Agriculture and Forestry stated that this would be a strong expression of support for the construction of the artificial lake . It would, moreover, "be of importance in the proceedings pending before the Water Court" (vesioikeus, vattendomstolen), given that it would increase Kemijoki Oy's share of the land needed for the lake from 53 to 66 per cent. This would create a higher probability that the Water Court would permit the company to construct the lake. In addition, it would enable the State to avoid expropriation proceedings in respect of its land and instead enable it to obtain more productive land in exchange.         A permit for the construction of the artificial lake had been requested by Kemijoki Oy on 25 September 1992. The proceedings are still pending before the Water Court of Northern Finland.         On 22 December 1992 the Government had proposed to Parliament that the 1952 Act be repealed. In their Bill (no. 256/92) the Government had explained that the Act had been enacted for the sole purpose of transferring properties to the company Kemijoki Oy at the time of its foundation.         Prior to its decision of 27 May 1993 the Chancellor of Justice (valtioneuvoston oikeuskansleri, justitiekanslern i statsrådet) considered whether the Council of State was competent to decide on the matter. His conclusion was affirmative, regard being had to the preparatory works to the 1952 Act. The Chancellor also noted the State's long-standing practice of giving up land in similar situations, where a request for a permit was simultaneously pending before the courts.         The applicants appealed against the Council of State's decision to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), arguing that, although the transfer concerned their rights of usufruct in respect of the State-owned land, they had not been heard. They argued, in particular, that the transfer had had the effect of limiting their possibility of herding reindeer in the area. It had allegedly also deprived them of their right of common (jokamiehenoikeus, allemansrätt), including, for instance, their right to hunt, fish as well as to pick wild berries and mushrooms on the State-owned land. The Hirvasniemi association of reindeer owners referred to section 53 of the 1990 Reindeer Herding Act (poronhoitolaki 848/90, renskötsellag 848/90), according to which the State authorities shall consult with the representatives of the associations of reindeer owners when considering measures concerning State-owned land which could significantly affect the herding of reindeer.         On 31 December 1993 the Supreme Administrative Court dismissed the applicants' appeal without examining its merits, having found that the Council of State's decision had not concerned their rights or interests. Consequently, they could not be granted standing as appellants. The Court noted, in particular, that under section 3 of the Reindeer Herding Act reindeer could be kept within an area specifically reserved for herding, regardless of the right of ownership or usufruct in respect of that area.         In response to a complaint lodged by the applicants' representative the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman), on 31 August 1995, criticised the Minister of Agriculture and Forestry for not having verified, before participating in the Council of State's decision of 27 May 1993, whether he was biased in the matter. The Ombudsman noted that the Minister had been the owner of a property which would be affected by the artificial lake, if it were to be constructed. He had later sold the property to a company which he partly owned and to which compensation would be paid, if Kemijoki Oy's plans to construct the lake would materialise. In these circumstances the Ombudsman found that the Minister should have abstained from preparing the Council of State's decision and participating therein.   COMPLAINTS   1.     The applicants complain that they were denied access to a tribunal within the meaning of Article 6 para. 1 of the Convention for the purpose of having their civil rights and obligations determined. Their activities on the State-owned land transferred to Kemijoki Oy allegedly constituted an important part of their livelihood. Apart from having been herding reindeer there they had extensively been using their right of common in respect of the land. They applicants emphasise, moreover, that the activities of the Hirvasniemi reindeer owners' association would cease to exist, if the artificial lake is constructed by the company as planned. In these circumstances the applicants should have been granted standing to appeal to the Supreme Administrative Court.         The applicants furthermore complain under Article 6 para. 1 about the alleged unfairness of the proceedings before the Supreme Administrative Court terminating in the dismissal of their appeal without an examination of its merits. It is alleged that the Supreme Administrative Court did not provide sufficient reasons for finding that they lacked standing to appeal. The reasons given were, moreover, essentially incorrect.         The applicants also complain that the Supreme Administrative Court's refusal to grant them standing as appellants discriminated against them, contrary to Article 14 of the Convention read in conjunction with Article 6 para. 1.   2.     The applicants furthermore complain that the transfer of State-owned land to the company Kemijoki Oy violated their right under Article 1 of Protocol No. 1 peacefully to enjoy their possessions. The land transfer is to be seen as an inherent part of the future deprivation of their property rights. For instance, if the artificial lake is constructed in accordance with the company's plans, at least part of their properties would be flooded and form the bottom of the lake. In addition, the fourth applicant's house is located within the area to be flooded. The land transfer was not in compliance with domestic law, since the matter should have been decided by Parliament. Moreover, the Minister of the Council of State who was finally responsible for proposing the land transfer and who participated in the Council's decision owns real property within the area of the planned lake and was thus biased.   3.     The applicants also complain of the absence of an effective remedy, this being a violation of Article 13 of the Convention.   4.     The applicants finally complain under Article 17 of the Convention that the conduct of the authorities, seen as a whole, has been and continues to be aimed destroying their right peacefully to enjoy their possessions as well as their right to an effective remedy. Under Article 18 of the Convention the applicants complain that the land transfer restricted their rights for purposes not prescribed by the Convention.   THE LAW         The Commission considers that it need not determine whether the fifth applicant can claim status as "victim" within the meaning of Article 25 para. 1 (Art. 25-1) of the Convention, since the application is in any case inadmissible as a whole for the reasons below.   1.(a) The applicants complain under Article 6 para. 1 (Art. 6-1) of the Convention that they were denied access to a tribunal for the purpose of having their civil rights and obligations determined. They furthermore complain under Article 6 para. 1 (Art. 6-1) about the alleged unfairness of the proceedings before the Supreme Administrative Court terminating in the dismissal of their appeal without an examination of its merits.         In so far as it is relevant Article 6 para. 1 (Art. 6-1) reads as follows:         "In the determination of his civil rights and obligations       ..., everyone is entitled to a fair and public hearing ...       by an independent and impartial tribunal established by       law. ..."         The Commission has first ascertained whether Article 6 para. 1 (Art. 6-1) of the Convention is applicable in the instant case and, notably, whether there was a dispute over a "civil right" or "obligation" which can be said, at least on arguable grounds, to be recognised or imposed under domestic law. The dispute must be genuine and serious and its outcome must be directly decisive for the right in question (cf., e.g., Eur. Court H.R., Oerlemans judgment of 27 November 1991, Series A no. 219, pp. 20-21, paras. 45-49).         The Commission recalls that Article 6 para. 1 (Art. 6-1) is not aimed at creating new substantive rights without a legal basis in the Contracting State, but at providing procedural protection of rights already recognised in domestic law (e.g., Eur. Court H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121-A, pp. 32-33, para. 73). Nevertheless, the notion of "civil rights and obligations" cannot be interpreted solely by reference to the domestic law of the respondent State (e.g., Eur. Court H.R., König judgment of 28 June 1978, Series A no. 27, pp. 29-30, paras. 88-89).         The applicants consider the transfer of State-owned land to the company Kemijoki Oy as an inherent part of the future deprivation of their own property rights, bearing in mind that the transfer took place with the intention of enabling the company to construct an artificial lake covering also surrounding private land, in accordance with a permit to that effect which has yet to be granted. However, the Commission notes the Supreme Administrative Court's finding that the applicants may continue to keep reindeer on the land transferred to the company despite the change of ownership. The Commission finds no reason to question the Supreme Administrative Court's interpretation of domestic law on this point. Nor is the Commission convinced by the applicants' argument that their other activities on the State-owned land had been of such a nature that they could arguably claim that the land transfer involved a determination of a civil right or obligation of theirs. It notes that the right invoked by the applicants in this respect is of a public law character, since it belongs to everyone frequenting the land at issue, regardless of the formal title of ownership in respect of the land (cf., as regards the nature of a right of common, No. 9465/81, Dec. 4.10.84, D.R. 39, p. 85).         In these particular circumstances the Commission concludes that the applicants could not arguably claim that a civil right or obligation of theirs was at stake in the proceedings before the Supreme Administrative Court as a result of the transfer of the State-owned land to the company. The Commission consequently finds that the Supreme Administrative Court's dismissal of the applicants' appeal without an examination of its merits did not involve any determination of their "civil right" or "obligation" (cf. No. 6916/75, Dec. 8.10.76, D.R. 6, p. 107). Accordingly, Article 6 para. 1 (Art. 6-1) of the Convention is not applicable.         It follows that this aspect of the complaint must be rejected as being incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2).     (b) The applicants also complain that the Supreme Administrative Court's refusal to grant them standing as appellants discriminated against them, contrary to Article 14 (Art. 14) of the Convention read in conjunction with Article 6 para. 1 (Art. 6-1).         Article 14 (Art. 14) reads as follows:         "The enjoyment of the rights and freedoms set forth in this       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 Commission recalls that Article 14 (Art. 14) complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 (Art. 14) does not presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts at issue fall within the ambit of one of more of the latter (e.g., Eur. Court H.R., Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291-B, p. 32, para. 22).         The Commission has just found that Article 6 para. 1 (Art. 6-1) is not applicable in the present case. Accordingly, Article 14 (Art. 14) read in conjunction with that provision is also inapplicable.         It follows that this aspect of the complaint must also be rejected as being incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   2.     The applicants furthermore complain that the transfer of State-owned land to the company Kemijoki Oy violated their right under Article 1 of Protocol No. 1 (P1-1) peacefully to enjoy their possessions. They also invoke Articles 17 and 18 (Art. 17, 18) of the Convention.         Article 1 of Protocol No. 1 (P1-1) to the Convention 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."         The Commission recalls that Article 1 of Protocol No. 1 (P1-1) comprises three distinct rules. The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property. The second rule, contained in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third rule, stated in the second paragraph, recognises that Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The three rules are not "distinct" in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to the peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (e.g., Eur. Court H.R., Allan Jacobsson judgment of 23 October 1989, Series A no. 163, p. 16, para. 53).         The Commission finds that the situation complained of did not amount to a deprivation of the applicants' possessions within the meaning of the second sentence of the first paragraph of Article 1 (P1-1). Nor did it constitute a control of the use of the applicants' properties which would have to be examined under the second paragraph of Article 1 (P1-1).         The Commission has next ascertained whether the situation complained of amounts to an interference with the right guaranteed to the applicants in the first sentence of the first paragraph of Article 1 (P1-1). However, having examined their complaint concerning the lack of a judicial review of the land transfer, the Commission has just concluded that in the proceedings before the Supreme Administrative Court the applicants could not arguably claim that any civil right of theirs was at stake as a result of the transfer. Referring to its above finding, the Commission concludes that there has been no interference with their right to the peaceful enjoyment of their possessions as a result of the land transfer.         It follows that this complaint must also be rejected as being incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   3.     The applicants furthermore complain of the absence of any other effective remedy, this being a violation of Article 13 (Art. 13) of the Convention. This provision reads as follows:         "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."       In view of its above conclusions with regard to other aspects of the application the Commission considers that the applicant has no "arguable claim" of a breach of a violation of the Convention or its Protocols which would warrant a remedy under Article 13 (Art. 13) (e.g., Eur. Court H.R., Powell and Rayner judgment of 21 February 1990, Series A no. 172, p. 20, para. 46).         It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     The applicants have finally invoked Articles 17 and 18 (Art. 17, 18) of the Convention.         The Commission finds no issue under any of these provisions.         It follows that this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)                                    ANNEX         The applicants are:         1.    Mr. Arto Keto-Tokoi, a farmer born in 1963 and resident at            Pelkosenniemi;         2.    Ms. Helmi Poikela, a pensioner born in 1923 and resident at            Pelkosenniemi;         3.    Mr. Tauno Poikela, a pensioner born in 1927 and resident at            Pelkosenniemi;         4.    Mr. Veikko Schroderus, a pensioner at Pelkosenniemi; and         5.    The Hirvasniemi reindeer owners' association (Hirvasniemen            paliskunta) at Pelkosenniemi, represented by its Chairman            (poroisäntä), Mr. Jukka Knuutti, resident at Kemijärvi.