CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 janvier 1996

.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. 23048/93                       by Uula Jooseppi PORSANGER and Others                       against Finland         The European Commission of Human Rights (First Chamber) sitting in private on 17 January 1996, 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                  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 1 December 1993 by Uula Jooseppi PORSANGER and Others against Finland and registered on 6 December 1993 under file No. 23048/93;         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 46 Finnish citizens residing in various parts of Finland and in Norway and one of them is a limited liability company incorporated in Finland. The applicants are listed in Appendix No. 1 in alphabetical order. All the applicants own real property in the municipality of Utsjoki, Finland, and nineteen of them also reside in Utsjoki. Before the Commission they are represented by Mr. Veikko O. Hyvönen, a professor at Helsinki University.         The facts of the case, as submitted by the applicants, may be summarised as follows.         The applicants are owners of real property in the municipality of Utsjoki, which lies in Lapland. The properties include water areas made up of sections of the Tenojoki river and of its tributaries. The Tenojoki is a border river between Finland and Norway.         From 1963 to 1978 district boundaries in the relevant water areas of the Tenojoki river were set, in the course of which it was established that the majority of the relevant water areas in Finland belonged to various individuals, including the applicants, instead of the Finnish State. The State owns approximately 35 per cent of the water areas. The district boundaries in water were finally settled by the Supreme Court's (korkein oikeus) judgment of 27 June 1984.         Since 1873, Finland and Norway have concluded treaties on fishing in the fishing area (in Finnish "kalastuspiiri", in Norwegian "fiske- område") of the Tenojoki river. The treaties were made in 1873, 1920, 1938, 1953, 1960, 1972, 1979, 1982 and 1989. The treaties were accompanied by Fishing Orders (kalastussääntö).         By the time the Convention entered into force in respect of Finland, on 1O May 1990, the applicants' right to enjoy their possessions in respect of fishing in their waters were regulated by the 1989 Treaty on the Mutual Fishing Rules regarding the Fishing Area of the Tenojoki river as well as the corresponding Fishing Order. Both these instruments entered into force on 1 January 1990 and still apply. They contain, in so far as relevant for the instant case, the same provisions as had already been introduced by the 1979 Treaty and Fishing Order.         By virtue of the 1989 Treaty a fishing licence is obligatory for everyone wishing to fish in the fishing area of the Tenojoki river. The 1989 Fishing Order prescribes that persons who have fishing rights in their capacity as owners of the water area and who live permanently in the river valleys are in a privileged position compared with others with respect to the price of the fishing licence as well as to the methods they are allowed to use for fishing. Persons who have inherited their fishing rights from locals but who do not live in the river valleys are in some respects on the same footing as the local residents. Other persons are allowed to fish only with rod and line and they pay a higher price than local residents for their fishing licence. The Fishing Order further prescribes that only boats owned by local residents may be used for fishing.         Furthermore, according to the 1989 Treaty, the income from the fishing licences shall be divided between the contracting States and the income shall be used primarily to fund the supervision of fishing and for methods meant to improve the fish stocks in the Tenojoki river.         Finally, the 1989 Fishing Order granted the County Administrative Board of Lapland, Finland and the Fylkesman of Finnmark, Norway, the power to issue further regulations on fishing in certain circumstances.         On 8 March 1991 the Act on compensation for the losses caused by the 1989 Treaty and by the corresponding Fishing Order with regard to the Tenojoki river, hereinafter the "1991 Compensation Act", was issued. By virtue of section 1 of this Act applicants shall be paid full compensation if a provision of the Treaties of 1972, 1979, 1982 or 1989 or a provision of a Fishing Order based on these Treaties prevents them from using their fishing rights or causes fundamental prejudice to the exercise of their fishing rights. However, compensation for the restrictions in respect of the catching device shall not be paid in so far as the restriction concerns the design, time of use or manner of use of the catching device, provided that the owner of the fishing rights can use or has been able to use his property in a normal, reasonable and sensible way in spite of the restriction.          In the compensation proceedings, the Act on Compulsory Acquisition of Real Property and Particular Rights (laki kiinteän omaisuuden ja erityisten oikeuksien lunastuksesta) shall be applied. The compensation decision may be appealed against to the Land Court (maaoikeus) and, in the final resort, to the Supreme Court. Compensation proceedings under the 1991 Compensation Act have not yet begun.         As regards the applicants' right to fish with rod and line in state-owned waters following the above-mentioned Supreme Court judgment of 27 June 1984, their claims to such a special fishing right, based on alleged undisturbed possession since time immemorial, was rejected by the competent authorities on 13 November 1985.         On 4 April 1989 the Land Court of Northern Finland rejected the appeals against the above-mentioned authorities' decision in so far as the appeals concerned the special fishing rights in question.         Fifteen of the applicants (see. Appendix No. 2) appealed against this judgment to the Supreme Court.         On 28 June 1993 the Supreme Court dismissed the appeal in respect of the applicants by stating that the areas to which the claims related were not delimited and specified in such a manner as would allow the relevant special fishing rights to be attributed to a specific real property.   COMPLAINTS   1.     Under Article 1 of Protocol No. 1 to the Convention the applicants complain that the requirement of obtaining a fishing licence in respect of their own property violates their right to peaceful enjoyment of possessions since they cannot freely use their fishing rights, which are based on ownership of property. They also complain that the State sells their exclusive fishing rights to tourists without returning all the income to them as the owners of the property.         The applicants further complain that the price of the fishing licence varies according to the criterion of residence and not according to the criterion of ownership of the property. Even with a fishing licence, those applicants who live outside the river valleys have only a fishing right similar to that of any amateur fisherman. The applicants also maintain that the requirement concerning the use of boats owned by local residents and the distinction made between persons who have inherited the property and persons who have obtained the property by other means violates the right to peaceful enjoyment of possessions and is discriminatory within the meaning of Article 14 of the Convention.   2.     As regards Article 1 of Protocol No. 1 to the Convention, the applicants finally complain, in respect of their own property, that the right of the County Administrative Board and of the Fylkesman to regulate fishing violate their right to the peaceful enjoyment of their possessions.   3.     Under Article 6 of the Convention, the applicants complain that since the alleged infringements of their property rights have been caused by legislation, they cannot obtain a fair hearing since the courts do not review questions concerning legislation as such.   4.     The applicants also complain that their right to peaceful enjoyment of possessions concerning the special fishing rights in state-owned waters has been violated.         They maintain that they have, since time immemorial, had the right to fish with rod and line in water areas which were, by the Supreme Court's judgment of 27 June 1984, found to belong to the State. They submit that the Supreme Court's judgment of 28 June 1993 concerning special fishing rights has therefore deprived them of about 35 per cent of the area in which they previously had the right to fish using this method.   THE LAW   1.     The applicants have raised a number of issues under Article 1 of Protocol No. 1 (P1-1) to the Convention in respect of alleged infringements of their right to peaceful enjoyment of their possessions following the implementation of the 1989 Treaty and the corresponding Fishing Order. They also invoke Article 14 (Art. 14) of the Convention.         Article 1 of Protocol No. 1 (P1-1) reads:         "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 first notes that the 1989 Treaty and the Fishing Order based thereupon entered into force on 1 January 1990. In so far as relevant for the instant case the 1989 Treaty and Fishing Order contain similar provisions to those of the 1979 Treaty and Fishing Order. The Commission recalls that the Convention entered into force with regard to Finland only on 10 May 1990. Therefore the question of whether the application is outside the competence ratione temporis of the Commission arises. The Commission finds, however, that this question can be left open since it considers that this part of the application is in any event inadmissible for the following reasons.         Article 26 (Art. 26) of the Convention provides that the Commission may deal with a matter only after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. It is established case-law that "the final decision" refers only to domestic remedies which can be considered to be "effective and sufficient" for the purpose of rectifying the subject-matter of the complaint (see, for example, No. 11763/85, Dec. 9.3.89, D.R. 60 p. 128).         The issue of non-exhaustion involves the question of whether the applicants could secure compensation under the 1991 Compensation Act. In this respect the Commission notes that the 1991 Compensation Act provides for the possibility of receiving full compensation for the losses caused by the relevant Treaties and Fishing Orders based thereupon. The opportunity to receive compensation is not restricted to loss of income only but also covers losses generally. The claim for compensation shall be dealt with in a similar way to compensation claims in relation to compulsory acquisition and may be examined,in the final resort, in the Supreme Court. It has not been substantiated that the applicants could not secure compensation under the 1991 Compensation Act. The Commission finds that a compensation claim based on the 1991 Compensation Act is an "effective remedy" in the circumstances.         Such compensation proceedings have not been instituted and therefore the condition concerning exhaustion of domestic remedies has not been fulfilled. It follows that this part of the application must be rejected, under Article 27 para. 3 (Art. 27-3) of the Convention.   2.     The applicants further complain that the County Administrative Board's and the Fylkesman's right to give regulations on fishing further violates their rights under Article 1 of Protocol No. 1 (P1-1).         Even assuming that such regulations could affect the applicants' property rights and even assuming that the Finnish Government could be held responsible for regulations issued by Norwegian authorities under a treaty with Finland, the Commission notes that it does not emerge from the documents that the relevant authorities have issued any further regulations which might interfere with the applicants' possessions.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicants also complain that the interference with their private property caused by the 1989 Treaty and the 1989 Fishing Order cannot be brought before a court since the courts do not examine cases that concern legislation.         The Commission recalls that Article 6 para. 1 (Art. 6-1) does not guarantee access to a court in order to challenge a law (cf. Eur. Court H.R., James and Others judgment of 21 February 1986, Series A no. 98, p. 46, para. 81). However, in respect of the compensation it follows from the above that, in accordance with the 1991 Compensation Act, this issue may be brought before a court.         It follows that the application is, in this respect, manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     The applicants finally complain, under Article 1 of Protocol No. 1 (P1-1) to the Convention, that their right to fish in state-owned waters has been violated.         The Commission notes that only the applicants listed in Appendix No. 2 have pursued the proceedings concerning the dispute over the special fishing rights to the court of last resort, i.e. the Supreme Court. Therefore the Commission finds that the other applicants have in this respect failed to exhaust domestic remedies. Their application must accordingly, in respect of this complaint, be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.         As regards the other applicants the Commission recalls that a person complaining of an interference with his right to possessions must show that such a right existed (No. 12164/86, Dec. 12.10.88, D.R. 58 p. 63). The Commission finds, however, that the applicants have not shown that they possess the special fishing rights referred to. Accordingly, the Commission concludes that there has been no interference with any of these applicants' possessions in this respect.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)                                 APPENDIX 1   Name                                         Place of residence   AIKIO, Aslak Ola                             Utsjoki AIKIO, Josef Aslak Edvard                    Utsjoki AIKIO, Klemet Jouni                          Utsjoki AIKIO, Laila Kristine                        Utsjoki AIKIO, Maarit Elisabet                       Utsjoki AIKIO, Matti Uula                            Utsjoki GUTTORM, Aimo                                Utsjoki GUTTORM, Uula Aslak                          Utsjoki HAKAMÄKI, Maire Sinikka                      Helsinki HALLAVO, Ilkka Sakari                        Helsinki HALLAVO, Olavi Eemil                         Hämeenlinna HELANDER, Arvo Olavi                         Inari HOLMBERG, Nils Hjalmar Fredrik               Utsjoki HÄMEENHEIMO, Pentti Juhani                   Helsinki ISKU-YHTYMÄ OY, Ltd.                         Lahti KATAKEETTA, Antti                            Utsjoki KÄRKKÄINEN, Kaarlo Alvar                     Utsjoki LAITI, Samuel A.                             Utsjoki LUKKARI, Aslak Uula                          Utsjoki LUKKARI, Birit Kaarina                       Vadsö, Norway LUKKARI, Inga Liisa                          Inari LUKKARI, Pekka Andreas                       Utsjoki LUOMA, Terttu Maria                          Rovaniemi LÄNSMAN, Antti                               Utsjoki NENONEN, Eino Uljas                          Pieksämäki NENONEN, Markku Juhani                       Pieksämäki NENONEN, Saimi Marjatta                      Pieksämäki NENONEN, Sakari Antero                       Pieksämäki NENONEN, Tuula Anneli                        Pieksämäki NILLUKKA, Elli Rauna                         Utsjoki NUORGAM-POUTASUO, Helvi                      Utsjoki OLLILA, Maarit Anna Helena                   Inari PALTTO, Oswald                               Utsjoki PEKKALA, Ellen Raudna                        Inari PEKKALA, Olli Sauli Samuli                   Inari PIESKI, Hans Jouni                           Helsinki PORSANGER, Samuel                            Raisio PORSANGER, Uula Jooseppi                     Utsjoki SALMELA, Jaakko Pekka Uolevi                 Hämeenlinna SALMELA, Kari Esa Juhani                     Hämeenlinna SAXHOLM, Pentti Ilmari                       Hämeenlinna SEPPÄLÄINEN, Vilho Olavi                     Espoo TAIVALAHO, Juhani Kalervo                    Rovaniemi VAHVELAINEN, Mauri Kalevi                    Hyvinkää VAHVELAINEN, Ritva Liisa Irmeli              Hyvinkää YLÄTALO, Jorma Olavi                         Hämeenlinna                                 APPENDIX 2   Name                                         Place of residence   AIKIO, Aslak Ola                             Utsjoki AIKIO, Josef Aslak Edvard                    Utsjoki AIKIO, Klemet Jouni                          Utsjoki AIKIO, Laila Kristine                        Utsjoki AIKIO, Maarit Elisabet                       Utsjoki AIKIO, Matti Uula                            Utsjoki GUTTORM, Aimo                                Utsjoki HOLMBERG, Nils Hjalmar Fredrik               Utsjoki KATEKEETTA, Antti                            Utsjoki LAITI, Samuel A.                             Utsjoki LUKKARI, Aslak Uula                          Utsjoki LUKKARI, Pekka Andreas                       Utsjoki PALTTO, Oswald                               Utsjoki PORSANGER, Uula Jooseppi                     Utsjoki SEPPÄLÄINEN, Vilho Olavi                     Espoo