CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 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. 25155/94                       by Jalkalan kalastuskunta and Others                       against Finland         The European Commission of Human Rights (First Chamber) sitting in private on 15 May 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 8 June 1994 by Jalkalan kalastuskunta and Others against Finland and registered on 15 September 1994 under file No. 25155/94;         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 first applicant is a statutory local fishing association (kalastuskunta, fiskelag), registered in Finland. By virtue of the Fishing Act (kalastuslaki, lagen om fiske), it is represented by its chairman (esimies, förman), Mr. Veikko Suihkonen. The other five applicants, including Mr. Veikko Suihkonen personally, are Finnish citizens residing in Suonenjoki, Finland. These applicants are listed in the Appendix in alphabetical order. They are all members of the applicant association. Before the Commission the applicants are represented by Mr. Risto Airikkala, a lawyer at the Central Union of Agricultural Producers and Forest Owners in Helsinki.         The facts of the case, as submitted by the applicants, may be summarised as follows.         The individual applicants own real property in the municipality of Suonenjoki. The individual applicants are joint owners of a total of 355 hectares of fishery waters in seven lakes. By virtue of section 3 of the Fishing Act, the individual applicants, together with the other joint owners of the fishery waters, form a fishing association, namely the first applicant, hereinafter "the applicant association".         Fishing associations are members of Fishing Areas (kalastusalue, fiskeområde). Activities of Fishing Areas are directed and supervised by Fishing Districts (kalastuspiiri, fiskeridistrikt), which are authorities subject to the Ministry of Agriculture and Forestry (maa- ja metsätalousministeriö, jord- och skogsbruksministeriet) (sections 71 and 86 of the Fishing Act).         On 6 May 1984 the applicant association adopted its rules, hereinafter "the 1984 Rules". By virtue of section 49 of the Fishing Act, the rules of a fishing association shall be submitted for the approval of a Fishing District. The 1984 Rules of the applicant association were approved by the Fishing District of Kuopio on 18 February 1985.         Under section 1 of the 1984 Rules, which corresponds to section 1 of the Fishing Act, the applicant association shall arrange fishing so as to maximise the permanent productivity of the relevant water area. The fish stocks shall be utilized rationally and taking into account factors relevant to the fishing industry. Under section 2 of the 1984 Rules, fishing in the applicant association's fishing waters shall be practised in a manner which is prescribed in the Fishing Act and, in greater detail, in the applicant association's rules. The latter provision corresponds to section 48 of the Fishing Act, according to which a fishing association shall, in arranging fishing and maintenance of the fish stocks, take into account the provisions of the Fishing Act. In addition, a fishing association is to perform other tasks prescribed by the Fishing Act.         Under section 3 of the 1984 Rules, which also corresponds to the Fishing Act, the right to fish in the joint fishery waters is determined on the basis of trap units (pyydysyksikkö, redskapsenhet). According to the 1984 Rules, there is a total of 600 trap units, of which 550 are to be divided between the joint owners of the relevant water areas according to their share of the water areas. A so-called unit value for traps, reflecting the capacity of the traps, is also defined. A certain share of the trap units is reserved for professional fishermen.         On 19 May 1992 the applicant association requested, under section 49 of the Fishing Act, the Fishing District to approve the following amendments to its rules: 1) a change in the manner of dividing the trap units; 2) an increase in the unit value of a trawl and 3) abolition of the provision reserving a share of trap units for professional fishermen.         On 23 September 1992 the Fishing District of Kuopio decided not to approve the proposed amendments. By virtue of an amendment to the Fishing Act (4.12.1992/1204), Fishing Districts were changed to Agricultural Industry Districts. However, the former name "the Fishing District" is used throughout this text.         The applicant association appealed to the Ministry of Agriculture and Forestry. It stated that the amendments to its rules strengthened the equality between the members of the association without violating the rights of professional fishermen. They referred to an expert opinion on the use of trawl and on fish stocks in the relevant water areas. According to this opinion the catch of fish by trawl was about 7,000 kilograms per summer.         By virtue of the Act on the Appellate Board for the Agricultural Industry (4.12.1992/1203), which came into force on 1 January 1993, the appeal was dealt with by the Appellate Board for the Agricultural Industry (maaseutuelinkeinojen valituslautakunta, landbruksnäringarnas besvärsnämnd), hereinafter "the Board". The Board functions in connection with the Ministry of Agriculture and Forestry. It consists of three members, who act judicially. The Board may hold an oral hearing or arrange an inspection. The procedural rules applicable to ordinary courts, i.e. the Code of Judicial Procedure (oikeudenkäymis- kaari, rättegångsbalken), in principle also apply to the Board. The cases before the Board are decided on the basis of a report by a reporting officer (esittelijä, föredragande). The reporting officers are civil servants at the Ministry. The reporting officer must report on the facts of the case and the relevant law and prepare a draft decision. The reporting officer is not a member of the Board.         On 23 June 1993 the Board rejected the applicant association's appeal by virtue of, inter alia, section 1 of the Fishing Act. The Board had at its disposal, inter alia, an expert opinion from the Game and Fishery Research Institute. Also the applicant association had submitted further information to the Board. As regards the first amendment, the Board stated that the amendment would violate a joint owner's right to use the whole joint water area for fishing. As regards the second amendment, it stated that the permanent productivity and rational utilization of the relevant water areas did not require the proposed increase. Finally, as regards the third amendment, it stated that the reservation of trap units for professional fishermen was necessary for the effective utilization of fish stocks.         The applicant association appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). By virtue of section 15 of the Supreme Administrative Court Act, the Supreme Administrative Court may hold an oral hearing. However, the applicant association did not request an oral hearing.         On 4 February 1994 the Supreme Administrative Court, without holding an oral hearing, upheld the Board's decision.   COMPLAINTS   1.     The individual applicants complain that the authorities' refusal to approve the proposed amendments to the applicant association's rules violated their right to freedom of association. They invoke Article 11 of the Convention.   2.     The individual applicants complain further that, as the proposed amendments regulated the economic relations between the members of the applicant association, the refusal to approve the amendments violated their right to peaceful enjoyment of possessions. In this respect they invoke Article 1 of Protocol No. 1 to the Convention.   3.     The individual applicants complain, finally, that the authorities' refusal to approve the relevant amendments resulted in discrimination based on status since the applicants, as joint owners of the water areas, were discriminated against in comparison with professional fishermen. In this respect they invoke Article 14 of the Convention.   4.     As regards the procedure, the applicants maintain that the reporting officer at the Board had also acted as a reporting officer at the Ministry of Agriculture and Forestry in relation to an administrative complaint (hallintokantelu, förvaltningsklagan) lodged by the applicant association and that, therefore, the Board's status as an independent tribunal was questionable. They also maintain that there were pencilled remarks on the documents, which apparently meant that the Board's reporting officer had received some pieces of information by telephone. The applicants allege that the applicant association was not given an opportunity to comment on these remarks. Finally, they maintain that there was no oral hearing at any appellate level. The applicants complain that these aspects of the proceedings resulted in a breach of Article 6 of the Convention.   THE LAW   1.     The individual applicants complain that their right to freedom of association was violated since they, as members of the applicant association, were prevented from amending its rules. They invoke Article 11 (Art. 11) of the Convention which reads:         "1.   Everyone has the right to freedom of peaceful assembly       and to freedom of association with others, including the       right to form and to join trade unions for the protection       of his interests.         2.    No restrictions shall be placed on the exercise of       these rights other than such as are prescribed by law and       are necessary in a democratic society in the interests of       national security or public safety, for the prevention of       disorder or crime, for the protection of health or morals       or for the protection of the rights and freedoms of others.       This Article shall not prevent the imposition of lawful       restrictions on the exercise of these rights by members of       the armed forces, of the police or of the administration of       the State."         The Commission recalls the established case-law according to which public-law institutions cannot be considered as associations within the meaning of Article 11 (Art. 11) of the Convention (cf., for example, Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, pp. 26-27, paras. 64-65).         In the instant case the Commission notes that the foundation of a fishing association is governed by legislation, namely by section 3 of the Fishing Act, according to which joint owners of fishery waters form a fishing association. A fishing association remains integrated within the structures of the State in the light of the supervisory powers of Fishing Districts, which, for their part, are authorities subject to the Ministry of Agriculture and Forestry. A fishing association pursues aims which are in the general interest, namely the protection and development of fish stocks. It must perform tasks prescribed by the Fishing Act and in performing its tasks it must take into account the provisions of the Fishing Act. In the light of these factors the Commission concludes that a fishing association is to be considered a public-law institution.         In these circumstances the Commission finds that the relevant Fishing Association cannot be considered as an association within the meaning of Article 11 (Art. 11). This provision of the Convention hence does not apply and consequently, the Commission finds that it is not necessary to decide whether the question of amending the rules of an association would as such fall under Article 11 (Art. 11) of the Convention.         It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The individual applicants complain further that the refusal to approve the proposed amendments to the applicant association's rules, which regulate the economic relations between its members, involved a violation of the right to peaceful enjoyment of possessions.         Article 1 of Protocol No. 1 (P1-1) to the Convention 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 notes that, in the instant case, the Fishing Association proposed three amendments to its rules changing the division of the trap units (which, naturally, corresponded to the real catch of fish) to the benefit of the joint owners of the water areas. At the same time, however, professional fishermen's share of trap units would have been reduced.         The Commission recalls that Article 1 of Protocol No. 1 (P1-1) comprises three rules. The first rule is of a general nature and enunciates the principle of the peaceful enjoyment of property. The second rule covers deprivation of possessions and subjects it to certain conditions. The third rule recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The three rules are connected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and are therefore to be construed in the light of the general principle enunciated in the first rule (see, for example, Eur. Court H.R., Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 46, para. 106).         The Commission notes that the applicants' possession rights under the applicant association's 1984 rules have not been altered. Therefore, the Commission finds that the applicants have not been deprived of their property within the meaning of Article 1 of Protocol No. 1 (P1-1). However, the Commission finds that the refusal to approve the relevant amendments involves a "control of use" of property. Accordingly, the Commission considers that it must examine whether the requirements set out in the second paragraph of Article 1 of Protocol No. 1 (P1-1) are met.         The Commission recalls that the interference must achieve a "fair balance" between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 (Art. 1) as a whole, including the second paragraph: there must therefore be a reasonable relationship of proportionality between the means employed and the aim pursued (see, for example, Eur. Court H.R., Air Canada judgment of 5 May 1995, Series A no. 316, p. 12, para. 36).         The Commission notes that the proposed amendments would not have affected the number of trap units to be divided between the joint owners of the water areas, but mainly concerned professional fishermen's opportunities to use what was probably the most effective fishing method in the relevant environment. The Commission finds that the competent authorities carefully considered the applicant association's request for amendments to its rules. They came, however, to the conclusion that, taking into account the rights of others, namely the right to use the whole joint water area instead of a limited area for fishing, and the protection of the fish stocks, the proposed amendments could not be accepted. In assessing the fair balance between the means chosen and the aim pursued the Commission cannot, in these circumstances, find that the chosen measure was inappropriate or disproportionate to the aim pursued.         The Commission finds that the interference with the applicant's right, as guaranteed by Article 1 of Protocol No. 1 (P1-1) to the Convention, was justified under the terms of the second paragraph of Article 1 of Protocol No. 1 (P1-1) to the Convention.         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 individual applicants complain further that they have been discriminated against with comparison to professional fishermen on the grounds of their status. They invoke Article 14 (Art. 14) of the Convention which reads:         "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) of the Convention complements the other substantive provisions of the Convention and the Protocols. It may be applied in an autonomous manner as a breach of Article 14 (Art. 14) does not presuppose a breach of those other provisions. On the other hand, it has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by the other substantive provisions (see Eur. Court H.R., Van der Mussele judgment of 29 September 1983, Series A no. 70, p. 22, para. 43).         The Commission considers that it must examine this complaint in conjunction with Article 1 of Protocol No. 1 (P1-1) to the Convention. In so doing it recalls that Article 14 (Art. 14) does not forbid every difference in treatment in the exercise of the rights and freedoms recognised by the Convention. It safeguards persons who are "placed in analogous situations" against discriminatory differences of treatment. For the purposes of Article 14 (Art. 14), a difference of treatment is discriminatory if it "has no objective and reasonable justification". Furthermore, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (see the above-mentioned Lithgow judgment, p. 66, para. 177).         The Commission finds that the applicants cannot be regarded as being "placed in analogous situation" with the professional fishermen to whom the allegation of discrimination refers. Consequently, the Commission finds that the case does not disclose any appearance of a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1) to the Convention.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     Finally, the applicants complain that their right to a fair hearing has been violated. They invoke Article 6 (Art. 6) of the Convention which reads, as far as relevant, as follows:         "1.   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 notes, firstly, that the basic dispute concerned the rules of the applicant association. In the proceedings the applicant association was the sole party. The Commission finds that it is questionable whether the proposed amendments to the applicant association's rules determined directly the applicants' "civil rights" as regards their possessions. However, the Commission finds that this question can be left open since it considers that the complaint under Article 6 (Art. 6) of the Convention is in any event inadmissible for the following reasons.         The Commission notes that the applicant association's appeal was, in the first instance, examined by the Appellate Board for the Agricultural Industry. As regards this body the applicants complain, firstly, that its status as an independent tribunal was questionable since its reporting officer had dealt with the applicant association's administrative complaint at the Ministry of Agriculture and Forestry.         The Commission recalls the case-law of the Convention organs as regards the meaning of an "independent and impartial tribunal" according to which in determining whether a body can be considered to be an "independent" tribunal regard must be had to various criteria, for example the manner of appointment, as regards its members (cf., Eur. Court H.R., Langborger judgment of 22 June 1989, Series A no. 155, pp. 28-29, paras. 115-119).         The Commission will confine its examination to the specific complaint of the applicants relating to the reporting officer of the Board.         The Commission notes that a reporting officer is not a member of the Board, but it is the task of the reporting officer to report on the facts and the relevant law to the Board and to prepare a draft decision. In these circumstances the Commission finds that the independence of the Board is not affected by the fact that it decides cases on the basis of a report by a reporting officer who is a civil servant at the relevant Ministry.         The Commission considers, however, that it must examine whether the fact complained of, namely the reporting officer having dealt with the applicant association's administrative complaint at the Ministry, affected the impartiality of the Board.         Even assuming that the reporting officer's possible bias could influence the impartiality of the Board, the Commission finds that, in the instant case, there is no reason to cast doubt on the reporting officer's impartiality on the grounds that she had reported on the applicant association's other case, which was of a different nature from the relevant appeal, to another body (cf. 11831/85, Dec. 9.12.87, D.R. 54 p. 144).         The applicants complain, secondly, that the reporting officer at the Board had received pieces of information which the applicant association had not had an opportunity to express its opinion on.         In this respect the Commission notes, on the basis of the Board's reasoning in the case, that there is no indication that the Board based its decision on facts that were unknown to the applicant association as the appellant party in the case. Furthermore, even assuming that there were relevant new facts, the applicant association had, at least when appealing to the Supreme Administrative Court, the opportunity to express its opinion on such possible information. Consequently, the Commission finds that the proceedings before the Board and the Supreme Administrative Court, taken as a whole, were such as to allow proper participation of the applicant association (cf., Eur. Court H.R., Kerojärvi judgment of 19 July 1995, Series A no. 322, para. 42).         Finally, the applicants complain that there was no oral hearing at any appellate level.         As regards the question of an oral hearing the Commission recalls that Finland has made a reservation concerning Article 6 para. 1 (Art. 6-1) which reads, in so far as relevant, as follows:         "For the time being, Finland cannot guarantee a right to an       oral hearing in so far as the current Finnish laws do not       provide such a right. This applies to:       ...       2.    proceedings before ... the Supreme Administrative       Court in accordance with ... Section 15 of the Supreme       Administrative Court Act;       ..."         The Commission finds that the Finnish reservation expressly covers the lack of an oral hearing before the Supreme Administrative Court.         As regards the oral hearing before the Appellate Board for the Agricultural Industry, the Commission recalls that this body may hold oral hearings but is not, under the current Finnish laws, obliged to hold such a hearing. The Commission finds that it is not necessary to examine, in the instant case, whether the Finnish reservation covers this body since it finds that this part of the application is in any event inadmissible for the following reasons.         The Commission recalls that public character of court hearings constitutes a fundamental principle enshrined in Article 6 para. 1 (Art. 6-1) of the Convention. This provision does not prevent a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public. Any such waiver must, however, be made in an unequivocal manner and must not run counter to any important public interest (cf., Eur. Court H.R. Schuler-Zgraggen judgment of 24 June 1993, Series A no. 263, pp. 19-20, para. 58).         In the instant case the Commission notes that the applicant association appealed to the Ministry of Agriculture and Forestry. However, while the appeal was pending at the Ministry the relevant legislation was amended and, subsequently, the appeal was dealt with by the Board. In these circumstances the Commission finds that the applicant association could not be expected to have requested an oral hearing when it lodged the appeal with the Ministry. However, its appeal was pending for almost six months before the Board after 1 January 1993, i.e. after the new Act on the Board had come into force. The applicant association submitted further statements to the Board while the appeal was pending. It has not been alleged that the applicant association requested an oral hearing before the Board, and the applicant association did not appeal to the Supreme Administrative Court on account of the lack of an oral hearing. Furthermore, the applicant association did not request the Supreme Administrative Court to remedy the lack of an oral hearing by holding an oral hearing itself, as it had the opportunity to do under section 15 of the Supreme Administrative Court Act.         The Commission finds that if the applicant association, as a party before the Board, considered it important to have an oral hearing, it could be expected to apply for one since an opportunity for an oral hearing existed, but an oral hearing was not, under the current Finnish laws, the general rule before the Board. As the applicant association did not request an oral hearing, and did not appeal on this basis, it may reasonably be considered that it unequivocally waived its opportunity to have an oral hearing before the Board. Furthermore, it does not appear that the dispute raised issues of public importance such as to make a hearing necessary. The evaluation of the dispute over the applicant association's rules was based on different written expert opinions on the question of how the proposed measures would have affected the productivity of the water areas and the fish stocks.         Consequently, the Commission finds that, in the instant case, there is no appearance of a violation of Article 6 (Art. 6) of the Convention in respect of the oral and public nature of the proceedings.         It follows that this part of the application is also 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)