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. 29069/95                       by Nadesta HIIPAKKA 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                  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 17 May 1994 by Nadesta HIIPAKKA and Others against Finland and registered on 3 November 1995 under file No. 29069/95;         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 four Finnish citizens, listed in the Appendix in alphabetical order.         The facts of the case, as submitted by the applicants, may be summarised as follows.         The applicants are owners of real property in the village of Kuninkaanjoki, in the municipality of Soini.         It appears that since the 1960s, some property owners in the relevant area have wanted to build a new forest road. In the 1970s and 1980s, some property owners took a total of three initiatives to this effect, but these initiatives did not lead to a concrete project.         In May 1988 certain property owners requested the Forestry Board (metsälautakunta, skogsnämnden) of Southern Ostrobotnia to draw up a road construction plan (tiesuunnitelma, vägplan). As it was estimated, on the basis of this request, that the majority of the property owners were in favour of building the road, the Forestry Board began the planning work. In the autumn of 1988 on-site planning work took place. Later in 1988 the Forestry Board drew up the road construction plan for building a forest road approximately 9 kilometres long.         At the request of a property owner in the relevant area, administrative proceedings (tietoimitus, vägförrättning) before the Expert and Trustees (toimitusmiehet, sysslomän) were instituted in accordance with the 1962 Act on Private Roads (laki yksityisistä teistä, lagen om enskilda vägar) for the road construction plan to be put into effect. A public notice concerning the forthcoming proceedings was placed on the bulletin board of the municipality on 16 January 1990 and registered letters were sent to the property owners concerned, including the applicants.         The administrative proceedings began with a meeting on 2 February 1990. A further meeting, of which notice was given by public notice and by sending registered letters to the property owners, was held on 13 June 1990. The planned road would affect 29 pieces of real property, of which 18 were represented in these proceedings. The applicants, save for the third applicant, were also represented.         In the above-mentioned administrative proceedings it was decided to confirm the road construction plan. The confirmation entailed, inter alia, the approval of the proposed location of the road and the so- called road units (tieyksikkö, vägenhet) indicating the relative distribution of the road costs between the property owners, the establishing of rights of way (14 metres wide road) pertaining to the encumbered properties and the founding of a road maintenance association (tiekunta, väglag - "the Association"). In the proceedings the question of compensation was discussed but no requests for compensation were made and, consequently, no decision as regards compensation was made. The applicants' shares of the road costs, totalling nearly FIM 500,000, were 3.74 %, 6.37 %, 5.85 % and 9.37 % respectively. The road was supposed to cover 1,700 m2 of the second applicant's land and 2,100 m2 of the third applicant's land. The planned road would also run over the first and fourth applicants' properties.       The second applicant appealed to the Land Court (maaoikeus, jord- domstolen) of Vaasa in relation to the road construction plan and the distribution of the road costs, stating that the road construction plan was not appropriate and that there were more efficient ways of building a forest road. He stated, furthermore, that the method of dividing the costs was inappropriate since it was based on forest taxation and not on ton-kilometres. The second applicant did not appeal on the question of compensation.         On 11 October 1990 the Land Court, after arranging a site inspection, rejected the appeal as regards both the road construction plan and the distribution of the road costs.         On 18 February 1991 the Supreme Court (korkein oikeus, högsta domstolen) refused the second applicant leave to appeal.         On 5 March 1991 the administrative proceedings for the execution of the relevant road construction plan were noted on the Land Register (maarekisteri, jordregistret).         On 2 May 1991 the applicants requested the Supreme Court to re- open the case. They maintained, inter alia, that certain parts of the road were unnecessary for them because there were alternative connections with their property. As the construction of the road was supposed to begin in the autumn, they requested the Supreme Court to suspend the road construction works. Their request for a re-opening of the case did not raise the question of compensation.         On 5 September 1991 the Supreme Court decided to suspend the execution of the Land Court's above-mentioned judgment of 11 October 1990.         On 4 May 1993 the Supreme Court rejected the applicants' request for the case to be re-opened, whereupon its decision as regards the suspension of the road construction works lapsed. The Supreme Court had at its disposal an opinion given by the National Survey Board (maanmittaushallitus, lantmäteristyrelsen), which was based, inter alia, on a site inspection.         Furthermore, on 28 February 1994 and on 8 September 1995, the Supreme Court rejected further requests from the applicants for a re- opening of the case.         In the meantime, on 24 May 1993, the third applicant lodged a complaint with the Chancellor of Justice about the Expert's actions in the administrative proceedings in 1990 as regards, inter alia, the question of compensation. On 12 December 1994 the Deputy Chancellor of Justice (apulaisoikeuskansleri, justitiekanslersadjointen) criticized the Experts's action as regards the requests for compensation. He found that, as the Expert had not expressly asked if the third applicant, who had not been present at the meetings, wanted to ask for compensation, it had not been correct to conclude that no requests for compensation had been made. He stated, furthermore, that it was open for the third applicant to request damages directly from the relevant Ministry or to bring an action against the State in the relevant first-instance court.         In the meantime, on 12 April 1991, the newly established Association held its annual general meeting (vuosikokous, årsstämma). The applicants attended the meeting. The Association confirmed the division of the road costs (maksuunpanoluettelo, debiteringslängd) according to the confirmed road units. The applicants' road costs were confirmed to be FIM 18,053, FIM 30,782, FIM 18,295 and FIM 45,302 respectively. An appeal against the Association's decision lay to the Road Board (tielautakunta, vägnämnd) and subsequently to the Land Court and, with leave, to the Supreme Court. The Association's decision was not appealed against.         As the applicants did not pay their contributions, the Association lodged, in January 1994, a request for enforcement of the payments (ulosotto, utsökning). The applicants appealed and requested that the enforcement of the payments be suspended. Following certain proceedings, on 27 October 1994 the Technical Board (tekninen lauta- kunta, tekniska nämnden) of Soini, which functioned as the Road Board, rejected the applicants' appeal.         Furthermore, in the meantime, on 27 June 1994, the Association held its annual general meeting. It appears that the Association decided that no changes were needed to the confirmed road construction plan or to the distribution of the road costs. The applicants appealed against the Association's decision to the Technical Board, stating that the road construction plan and the distribution of the road costs ought to be changed. The Technical Board, on 27 October 1994, dismissed the appeal without examining it on the merits since it found that the appeal had been lodged out of time.         The applicants appealed to the Land Court against the above- mentioned two decisions made by the Technical Board.         On 28 February 1995 the Land Court upheld the decisions made by the Technical Board on 27 October 1994. As regards the enforcement of the road cost payments, it stated that the payments were based on decisions concerning road units that had acquired legal force.         The applicants appealed against the Land Court's judgment to the Supreme Court, which on 8 September 1995 refused them leave to appeal.         In the meantime, several of the property owners had requested the Forestry Board to grant them a subsidy under the Act on Forest Improvement (metsänparannuslaki, skogsförbättringslagen) to build the relevant road. The applicants did not, however, apply for such subsidy.         On 15 August 1991 the Forest Board granted a subsidy to those property owners who had applied for it.         The applicants appealed against the Forest Board's decision. The appeal was dealt with by the Appellate Board of Agricultural Industry (maaseutuelinkeinojen valituslautakunta, landbruksnäringarnas besvärs- nämnd), hereinafter "the Appellate Board".         On 25 August 1993 the Appellate Board dismissed the appeal without examining it on the merits. It stated that the applicants had had the opportunity to apply for the relevant subsidy but had not done so. Therefore, it found that the Forest Board's decision to grant a subsidy to other property owners did not affect the applicants' rights and, consequently, they did not have right of appeal.         The applicants appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningdomstolen) as regards the Appellate Board's decision. They requested, furthermore, the Supreme Administrative Court to suspend the enforcement of the payments and the building of the road.         On 17 December 1993 the Supreme Administrative Court stated that it had no jurisdiction over the questions concerning the request for suspension of the enforcement of the payments and the building of the road. As regards the question of the subsidy, it stated that the applicants had not requested the Forest Board to grant them a subsidy although they had had the opportunity to do so. Therefore, the Forest Board's decision did not affect the applicants' rights. The Supreme Administrative Court upheld the Appellate Board's decision of 25 August 1993.         On 26 January 1995 the applicants requested the Supreme Administrative Court to re-open the case as regards the subsidy and to re-open the case decided by the Land Court on 11 October 1990.         On 7 June 1995 the Supreme Administrative Court rejected the applicants' request for a re-opening of the case as regards the subsidy. It did not examine their request as regards the Land Court's judgment on the merits since it found that it had no jurisdiction as regards that judgment.         The road construction works commenced in September 1995.   COMPLAINTS   1.     The applicants complain that their right to the peaceful enjoyment of their possessions has been violated since they have been obliged to participate in a road construction project that is not financially profitable for them and does not serve a general interest. They maintain, furthermore, that the alternative road plan supported by the applicants would not have affected their property so seriously and would have saved, in total, about four hectares of forest in comparison with the confirmed plan. The alternative plan would also have been a considerably cheaper solution. In this respect they invoke Article 1 of Protocol No. 1 to the Convention.   2.     The applicants maintain, furthermore, that they have been pressed to accept the plan by threats of future enforcement proceedings in relation to the road costs. They also maintain that attempts to persuade them to participate in the project have even included visits to their homes. The applicants complain that these facts have resulted in a violation of their right to respect for their private life and their home. They invoke Article 8 of the Convention.   3.     As regards the proceedings concerning the subsidy, i.e. the proceedings before the Appellate Board and in the Supreme Administrative Court, the applicants complain that neither of these bodies gave them an opportunity to comment on the documents in the case. In this respect they invoke Article 6 of the Convention.   4.     The applicants complain, furthermore, that they have been treated unfairly in several respects in all the proceedings related to the construction of the forest road.         As regards the confirmation of the road construction plan and the distribution of the road costs, they maintain that there were procedural errors in the planning process which took place at the end of the 1980s before the Forestry Board. They complain, furthermore, that the summons to attend the administrative proceedings before the Expert and Trustees in 1990 was not accurate enough. They complain, furthermore, that the domestic courts, namely the Land Court and the Supreme Court, did not take into account objectively conflicting opinions and did not request expert opinions as regards the road construction plan and distribution of the costs. They maintain that the planned road is not appropriate and that parts of it are unnecessary for them. They also complain that the distribution of the road costs is not correct.         The applicants maintain that the judgments made by the courts were unlawful. In this respect they refer also to the other sets of proceedings linked with the road construction plan.         In the light of the above, the applicants complain that their right to an effective remedy before a national authority as regards their possession rights has been violated. They invoke Article 13 of the Convention.   5.     Finally, the applicants complain that their rights under Article 17 of the Convention have been violated.   THE LAW   1.     The applicants complain, under Article 1 of Protocol No. 1 (P1-1) to the Convention, that their right to the peaceful enjoyment of their possessions has been violated. In this respect they maintain that the road was unnecessary for them and that, furthermore, their financial responsibility for the road costs was excessive. 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."         In the present case the Commission will limit its examination to whether the facts occurring after 10 May 1990, the date when the Convention entered into force with regard to Finland, disclosed a breach of Article 1 of Protocol No. 1 (P1-1) to the Convention. Events prior to 10 May 1990 will be taken into account merely as a background to the issues before the Commission (cf. Eur. Court H.R., Hokkanen judgment of 23 September 1994, Series A no. 299-A, p. 19, para. 53).   a)     The road construction plan         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 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., Fredin judgment of 18 February 1991, Series A no. 192, p. 14, para. 41).         The Commission observes that the road, which has apparently been at least partly constructed, has been constructed over the applicants' properties by virtue of a right of way encumbering their properties and favouring certain other properties. For this purpose the applicants had to give up land on a permanent basis. Although this did not take place by way of expropriation proceedings leading to the transfer of a formal title of ownership, in the circumstances of the case the creation of the right of way constituted a deprivation of the applicants' property to the extent that this property was encumbered by the right of way. Whilst this deprivation did not transfer property from the applicants to the State, it resulted from a plan drawn up by the Forestry Board and confirmed by the Experts and Trustees. The Commission therefore considers that, regardless of the fact that a private road was at issue, the deprivation incurred State responsibility (see H. v. Finland, Comm. Report 5.4.1995, para. 124).         The Commission recalls that a deprivation of possessions must, firstly, pursue a legitimate aim in the public interest. This requirement may be fulfilled even if the community at large has no direct use or enjoyment of the property deprived from the applicants (cf., mutatis mutandis, Eur. Court H.R., James and Others judgment of 21 February 1986, Series A no. 98, pp. 30-32, paras. 39-45). Secondly, there must also be a reasonable relationship of proportionality between the means employed and the aim sought to be realised (ibid., p. 34, para. 50). Furthermore, the requirement that a deprivation must be "subject to the conditions provided for by law" presupposes the existence of and compliance with adequately accessible and sufficiently precise domestic legal provisions (Eur. Court H.R., Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 47, para. 110).         In the present case, the Commission considers that the deprivation of parts of the applicants' property had the legitimate aim of facilitating and stimulating forestry in the area served by the road. In these circumstances and having regard to the State's margin of appreciation the Commission accepts that the deprivation took place in the public interest.         As for the requirement that a deprivation must be "subject to the conditions provided for by law", the Commission recalls that its power to review compliance with domestic law is limited (cf., the above- mentioned Fredin judgment, pp. 16-17, para. 50). The Commission considers that the phrase "conditions provided for by law" refers primarily to such matters as the power to expropriate (or otherwise take) property and to compensation terms which, accordingly, must be defined by the law with reasonable precision. Although the second sentence of the first paragraph or any other provision of Article 1 of Protocol No. 1 (P1-1) does not contain any explicit procedural requirement, the prohibition of arbitrariness is inherent in the provision in question.         The Commission recalls that the planning procedure before the Forestry Board took place in 1988. Having regard to the Commission competence ratione temporis, these proceedings can be taken into account merely as a background.         As regards the subsequent domestic proceedings, the Commission notes that the applicants were summoned to the proceedings before the Expert and Trustees by registered letters. The applicants, save for the third applicant, were present at these proceedings. Furthermore, the national courts held that the relevant provisions of the Act on Private Roads had been complied with. Recalling its limited power to review compliance with domestic law, the Commission considers that it has no reason to dispute those findings in so far as the substantive conditions are concerned.         Finally, the Commission notes that the applicants had the opportunity to receive the forestry improvement subsidy. In these circumstances, and taking into account the fact that the applicants can themselves make use of the road, the Commission finds that there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised.         Consequently, the Commission finds that there is no appearance of a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention as regards the confirmation of the road construction plan.   b)     The road costs         Recalling its finding as regards the State responsibility for the deprivation of part of the applicants' property, the Commission observes that, although the road costs were not levied by the State, they nevertheless resulted from the plan adopted by State organs. The obligation to participate in these costs thus also led to State responsibility.         The Commission considers that the applicants' obligation to participate in the road costs constituted an interference with their property rights which falls to be examined under the second paragraph of Article 1 of Protocol No. 1 (P1-1) as to its lawfulness, purpose and proportionality (see H. v. Finland, Comm. Report 5.4.1995, para. 136).         The Commission considers that the interference complained of had the same legitimate aim as had the confirmation of the road construction plan: to facilitate and stimulate forestry in the area affected by the road. This purpose was, moreover, in the general interest.         As regards the proportionality, the Commission notes that the applicants had the opportunity to receive forestry improvement subsidy and that they have the opportunity to make use of the road. In these circumstances the Commission considers, in view of the wide margin of appreciation enjoyed by the Contracting States in the relevant area, that the distribution of the road costs cannot be considered to be disproportionate to the legitimate aims.         The Commission therefore finds that the interference with the applicants' rights to peaceful enjoyment of their possessions, as regards the road costs, 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.   2.     The applicants complain, furthermore, that their right to respect for their private life and their home has been violated through the institution of enforcement proceedings in relation to the road costs and through the visiting of their homes in an attempt to persuade them to participate in the project. In this respect they invoke Article 8 (Art. 8) of the Convention.         The Commission finds, in the light of the applicants' submissions, that there has been no interference with their rights as guaranteed by Article 8 para. 1 (Art. 8-1) of 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.   3.     As regards the proceedings concerning the subsidy for the relevant road construction works, the applicants complain that neither the Appellate Board nor the Supreme Administrative Court gave them an opportunity to comment on the case-documents. In this respect they invoke Article 6 (Art. 6) of the Convention.         The Commission notes, firstly, that the applicants had not applied for the relevant subsidy from the Forestry Board. The Commission finds that the Forestry Board's decision to grant certain other property owners a subsidy did not concern the applicants' civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.         The Commission finds that this part of the application is incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     The applicants complain, furthermore, that they have not had an effective remedy as regards the road construction plan and the distribution of the road costs. They invoke Article 13 (Art. 13) of the Convention in connection with their property rights. Article 13 (Art. 13) of the Convention reads:         "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."   4.1.   The Commission notes that the question of the road construction plan and the distribution of the road costs was decided in the proceedings before the Expert and Trustees on 2 February 1990 and 13 June 1990, in the Land Court on 11 October 1990 and, finally, in the Supreme Court on 18 February 1991.         It is true that Article 13 (Art. 13) of the Convention secures to everyone whose rights as set in the Convention are violated the right to an effective remedy before a national authority.         However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision, as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with the matter ... within a period of six months from the date on which the final decision was taken".         In the present case the decision of the Supreme Court, which was the final decision regarding the subject of this particular complaint, was given on 18 February 1991, whereas the application was submitted to the Commission on 17 May 1994, that is, more than six months after the date of this decision.   The Supreme Court's subsequent judgments concerning the requests for a re-opening of the case are irrelevant in this respect. Furthermore, an examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of that period.         It follows that this part of the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   4.2.   The applicant complain furthermore, under Article 13 (Art. 13) of the Convention, that they have not had an effective remedy as regards the subsequent proceedings linked with the road construction plan. They maintain that the judgments made by the courts were unlawful.         The Commission recalls that the word "remedy" within the meaning of Article 13 (Art. 13) of the Convention does not mean a remedy which is bound to succeed. The applicant must have an opportunity for his claim to be examined by a national authority conforming to the requirements of Article 13 (Art. 13) which is able to examine the merits of his complaint.         The Commission notes, firstly, that the division of the road costs was confirmed on 12 April 1991 by the decision of the Association's general meeting, which acquired legal force since it was not appealed against.         The enforcement proceedings for payment of the road costs began in 1994. The Commission notes that the applicants had the opportunity to appeal against the enforcement of the road cost payments to the Land Court, which gave its judgment on 28 February 1995, and thereafter to apply for leave to appeal from the Supreme Court, which refused them such leave on 8 September 1995. The Commission notes, furthermore, that the applicants made use of these remedies. The Commission has not found any substantiated facts which could lead to the conclusion that these remedies were not effective remedies within the meaning of Article 13 (Art. 13) of the Convention.         As regards the Association's decision made in its general meeting on 27 June 1994, the Commission notes that the applicants had the opportunity to appeal against the Association's decision to the relevant municipal board and thereafter to the Land Court. Furthermore, with leave, the applicants could have brought the matter before the Supreme Court.         In these circumstances, the Commission finds that the applicants had at their disposal an effective remedy within the meaning of Article 13 (Art. 13) of 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.   5.     Finally, the applicants complain that their rights under Article 17 of the Convention have been violated. Article 17 (Art. 17) of the Convention reads:         "Nothing in this Convention may be interpreted as implying       for any State, group or person any right to engage in any       activity or perform any act aimed at the destruction of any       of the rights and freedoms set forth herein or at their       limitation to a greater extent than is provided for in the       Convention."         Having regard to its findings above, the Commission finds no appearance of a violation either of Article 17 in conjunction with Article 1 of Protocol No. 1(Art. 17+P1-1) or in conjunction with Articles 6, 8 or 13 (Art. 17+6+8+13) of 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.         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)                                  APPENDIX   Name                       Born          Residence        Profession   HIIPAKKA, Nadesta          1919          Soini            Pensioner   LAASASENAHO, Jouko         1941          Vantaa           Assistant                                                        professor   LEIKKARI, Ritva            1945          Ähtäri           Farmer   VAKKURI, Tauno             1923          Soini            Farmer