CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 septembre 1997

.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. 27894/95                       by Helena BÄCKSTRÖM                       against Finland           The European Commission of Human Rights (First Chamber) sitting in private on 11 September 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            Mrs.   M. HION            Mr.    R. NICOLINI              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 20 February 1995 by Helena BÄCKSTRÖM against Finland and registered on 19 July 1995 under file No. 27894/95;         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 applicant is a citizen of the United States of America, born in 1941 and resident in Närpes, Finland. She is a photographer by profession. Before the Commission she is represented by Mr. Jan Hanses, a lawyer in Mariehamn, the Åland Islands, Finland.         The facts of the case, as they have been submitted by the applicant, may be summarised as follows.         The applicant and her two cousins are joint owners of a coastline property (Kalhamn 6:42) in Tjärlax in the city of Närpes (formerly a municipality). In 1989 the Planning Engineer of the then municipality apparently informed the applicant that a shore plan covering her property had to be adopted for any construction thereon exceeding one house with a private shore, alternatively two houses with access to a shared shore. Subject to the adoption and confirmation of a shore plan, the construction of two houses with private shores, alternatively four houses with a shared shore could be permitted.         The applicant requested that a surveyor be appointed to draw up a shore plan for an area of some 12 hectares, the length of the shoreline amounting to some 500 metres. The request was refused by the County Administrative Board (lääninhallitus, länsstyrelsen) of Vaasa on 27 November 1989, as the area was not considered sufficiently large for appropriate planning. The Board noted that the shoreline was about 470 metres long.         The applicant appealed to the Ministry for the Environment (ympäristöministeriö, miljöministeriet), referring to areas of a similar character and size for which shore plans had been adopted and confirmed. The appeal was refused on 22 March 1991. The Ministry noted, among other things, that the shoreline to be covered by the plan foreseen by the applicant was some 500 metres long and that a shore plan had also been requested for another area in the vicinity. The area which the applicant had proposed for shore planning did not therefore in itself constitute an appropriate entity for such purposes.         The applicant and others then requested that a surveyor be appointed to draw up a shore plan for an area covering some 190 hectares, the length of the shoreline amounting to some 3,5 kilometres. Previously some 20 leisure houses had been erected within the area. The request was granted by the County Administrative Board on 20 March 1992.         A nature inventory of the area supported the intended plan. On the basis of the inventory it was also found that the area was of no particular value for nature conservation or public recreation purposes. The plan was adopted by the City Assembly (kaupunginvaltuusto, stads- fullmäktige) of Närpes on 12 March 1993. On average, the plan permitted the construction of eight leisure houses per kilometre of shoreline. Alternatively, this number could be doubled if the houses were to be situated farther away from the shoreline, thus having access to a shared shore. As regards the applicant's property, the plan permitted the construction of four houses with access to a shared shore. In determining the permissible construction potential on the property the City Assembly had regard to the previous construction of two houses with their own shore on two adjoining properties which had previously formed part of Kalhamn 6:42 but had not been included in the plan. Those properties were not owned by the applicant. The construction potential of the applicant's property was below the average for the overall area covered by the plan.         On 18 August 1993 the County Administrative Board declined to confirm the plan in so far as it covered, inter alia, two building sites on the applicant's property. The Board recalled that a shore plan could be left unconfirmed if it sought to create urban development. Given the length of the shoreline for the whole area covered by the plan (some 3,2 kilometres), the Board considered that the number of construction sites included therein was too high and "neither furthered an appropriate use of the use of the area (sic) nor the equal treatment of property owners both within and outside the area". The County Administrative Board gave no reasons pertaining specifically to the individual properties in respect of which the plan was not confirmed.         The applicant appealed to the Supreme Administrative Court on points of law and fact. She stressed that the construction potential of her property as adopted by the City Assembly was below both the average for the whole area covered by the plan and the average for shoreline properties in the county. In refusing to confirm part of the plan the County Administrative Board had discriminated against her without specifying any reasons therefor and had exceeded its statutory competence to review matters of expediency. Moreover, by failing to provide adequate reasons, contrary to section 24 of the 1982 Act on Administrative Procedure (hallintomenettelylaki, lag om förvaltnings- förfarande 598/1992), the Board had rendered it impossible for her to challenge its decision effectively.         In an opinion to the Supreme Administrative Court the County Administrative Board explained in detail how it had reached its decision of 18 August 1993. It considered, among other things, that the discrepancies between the Board's and the applicant's views were partly due to differing methods of calculating the length of the shoreline directly forming part of her property. The Board essentially stated that her private shore was in fact only some 200 metres long, whereas the remainder of the shoreline taken into account in fixing the construction potential of her property actually formed part of neighbouring properties.         In her rejoinder the applicant recalled that in its decision of 22 March 1991 the Ministry for the Environment had found that the relevant shoreline (including the shoreline which formed part of neighbouring properties) had been some 500 metres long. The County Administrative Board had been informed that the owners of the neighbouring properties had consented to the shore plan. Moreover, the County Administrative Board had not previously relied upon the reasons which it had now presented to the Supreme Administrative Court.         The applicant's appeal was refused on 24 August 1994. The Supreme Administrative Court, invoking section 123a, subsection 3 of the Building Act (rakennuslaki, byggnadslag 370/1958), found no reason to amend the County Administrative Board's conclusion. The Supreme Administrative Court noted that the shoreline on the applicant's property was encumbered by the two already constructed real properties which had previously formed part of her property but had not been included in the plan. The Supreme Administrative Court also took into account the length of the shoreline (though without specifying it), the total construction potential permitted on the relevant properties and the need for equal treatment of the property owners.    According to the 1958 Building Act, a property owner is entitled to have a shore plan adopted and confirmed if it has been drawn up according to requirements of the Act. A plan may nevertheless be left without approval and confirmation if it is aimed at creating urban development (section 123d, subsection 2). In the preparation of a shore plan particular regard shall be had to creating an appropriate planning entity and ensuring construction adapted to the shore area and the use of the land in adjacent areas (section 123a, subsection 3).         In examining whether the conditions for confirming a plan are met, the county administrative boards review both the lawfulness and the expediency of the municipality's or the city's decision to adopt the plan. According to the Act on Administrative Procedure, the reasoning of an administrative decision shall contain the main facts and the legal provisions or other rules on which it is based. The decision need not be reasoned if, for instance, this would be clearly unnecessary (section 24).     COMPLAINTS   1.     The applicant complains that the dispute regarding the terms of the shore plan was not fully examined by an impartial tribunal within the meaning of Article 6 of the Convention. The question of permissible construction on her property being considered a matter of expediency, it was finally decided by the County Administrative Board, whereas the Supreme Administrative Court could only examine the lawfulness of the Board's decision.   2.     The applicant furthermore complains that her property rights have been interfered with in a disproportionate manner. The intended further construction on her property would have been clearly below the average permitted for shoreline properties within the county. No precise reasons were advanced in support of the County Administrative Board's derogation both from that average and the average construction potential permitted by the shore plan in question. Due to the effectively denied construction rights the applicant's property has allegedly become impossible to sell. It has not been expropriated and she has not received any compensation for the lost construction potential.         The applicant invokes Article 1 of Protocol No. 1 and Article 6 of the Convention.     THE LAW   1.     The applicant complains that the dispute regarding the terms of the shore plan was not examined in full by an impartial tribunal. The question of permissible construction on her property being considered a matter of expediency, it was finally decided by the County Administrative Board, whereas the Supreme Administrative Court could only examine the lawfulness of the Board's decision.         The Commission has examined this complaint under Article 6 para. 1 (Art. 6-1) of the Convention which, in so far as relevant, reads as follows:         "In the determination of his civil rights ..., everyone is       entitled to a fair ... hearing ... by an independent and       impartial tribunal established by law. ..."       The       Commission considers that the applicant's right to develop       her property in accordance with the applicable laws and       regulations was "civil" within the meaning of Article 6       para. 1 (Art. 6-1) (see, e.g., Eur. Court HR, Fredin v.       Sweden judgment of 18 February 1991, Series A no. 192, p.       20, para. 63). There was furthermore a "genuine and       serious" dispute between the applicant and the authorities       regarding the lawfulness of the impugned decision of the       County Administrative Board. The outcome of this dispute       was directly decisive for the applicant's right to       construct leisure houses on her property. Article 6 para.       1 (Art. 6-1) accordingly applies.         (a)   Access to court         The Commission has first examined whether the applicant had sufficient access to court within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. This provision does not oblige the Contracting States to submit disputes over civil rights to a procedure which at each stage meets the requirements of that provision, provided it eventually may be determined by a body which does (cf., e.g., Eur. Court HR, Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1984, Series A no. 43, pp. 22-23, para. 51). It is sufficient that decisions taken by administrative authorities which do not themselves satisfy the requirements of that provision be subject to subsequent control by an independent judicial body with sufficient jurisdiction and which itself provides the safeguards required by Article 6 para. 1 (Art. 6-1) (see, e.g., Eur. Court HR, Fischer v. Austria judgment of 26 April 1995, Series A no. 312, p. 17, para. 28).          The Commission notes that before the Supreme Administrative Court the applicant challenged the lawfulness of the County Administrative Board's decision and its appreciation of the facts. She essentially argued that the Board had exceeded its competence to examine matters of expediency. Having examined the merits of her appeal, the Supreme Administrative Court, adding its own reasons, found no grounds for amending the County Administrative Board's conclusion. The Supreme Administrative Court did not have to decline jurisdiction on any of the points raised by the applicant and there is no indication that it was unable fully to re-examine the facts (cf. Eur. Court HR, Zumtobel v. Austria judgment of 21 September 1993, Series A no. 268-A, pp. 19 et seq., paras. 69 et seq.).         In these circumstances the Commission does not find that the applicant was denied access to a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention for the purposes of challenging the County Administrative Board's decision. Accordingly, there is no indication of a violation of Article 6 (Art. 6) on this point.         It follows that this aspect of the complaint must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         (b)   Fairness of the proceedings         The applicant also complains about the insufficient reasoning adduced in support of the partial non-confirmation of the shore plan as far as covering her property. This is an issue going to the fairness of the proceedings.         Article 6 para. 1 (Art. 6-1) places the "tribunal" under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision. It also obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. Nor are the Convention organs called upon to examine whether arguments are adequately met (see, e.g., Eur. Court HR, Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, pp. 19-20, paras. 59-61). The question whether a court has failed to fulfil the obligation to state reasons can only be determined in the light of the circumstances of the case (see, e.g., Eur. Court HR, Ruiz Torija v. Spain judgment of 9 December 1994, Series A no. 303-A, p. 12, para. 29).         In assessing their fairness the Commission must take a comprehensive view of the proceedings. It can accept that the reasons put forward in the County Administrative Board's decision of 18 August 1993 were summary and indeed extensively supplemented in the Board's opinion to the Supreme Administrative Court following the applicant's appeal. The Commission notes, however, that in the course of the proceedings before the Supreme Administrative Court the applicant was able to comment on the County Administrative Board's opinion and thus challenge whatever further reasons advanced by the Board. Moreover, the decision of the Supreme Administrative Court mentioned the facts, the relevant legal provision applied as well as its reasons for upholding the County Administrative Board's conclusion.         In these circumstances there is no indication that the proceedings considered as a whole were unfair and thereby contrary to Article 6 para. 1 (Art. 6-1) of the Convention.         It follows that this aspect of the complaint is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also complains that her property rights have been interfered with in a disproportionate manner. The intended further construction on her property would have been clearly below the average permitted for shoreline properties within the county. On the one hand, the applicant's property has allegedly become impossible to sell due to the denied construction rights, whereas, on the other hand, her property has not been expropriated and she has not received any compensation for the lost construction potential.         The Commission has examined this complaint under Article 1 of Protocol No. 1 (P1-1) to the Convention which 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."         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 (see, e.g., the above-mentioned Fredin judgment, p. 14, para. 41).         Moreover, although Article 1 (Art. 1) contains no explicit procedural requirements, the proceedings at issue must afford the individual a reasonable opportunity of putting his or her case to the responsible authorities for the purpose of effectively challenging the measures interfering with his rights under Article 1 of Protocol No. 1 (P1-1). In ascertaining whether this condition has been satisfied a comprehensive view must be taken of the applicable procedures (see, e.g., Eur. Court HR, Agosi v. the United Kingdom judgment of 24 October 1986, Series A no. 108, p. 19, para. 55; Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, p. 21, para. 49).         The Commission considers that the County Administrative Board's partial refusal to confirm the shore plan in so far as it covered the applicant's property amounted to a control of the use of that property. This interference with her property rights falls to be examined under the second paragraph of Article 1 of Protocol No. 1 (P1-1) as to its lawfulness, purpose and proportionality.         As regards the lawfulness of the interference, the Commission notes that pursuant to section 123d of the 1958 Building Act a shore plan may be left unconfirmed by a County Administrative Board if the plan is found to aim at creating urban development. In refusing to confirm part of the shore plan in so far as covering the applicant's property the County Administrative Board explicitly invoked this provision.         The Commission accepts that the purpose of the County Administrative Board's decision was to restrict construction along the shore. This aim must be considered as reflecting the demands of the general interest of the community, the protection of the environment constituting an increasingly important consideration in today's society (see, e.g., the above-mentioned Fredin judgment, p. 16, para. 48).         As regards the proportionality, the Commission recalls that a fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (ibid.). The Commission notes that the shore plan as confirmed by the County Administrative Board and the Supreme Administrative Court permits the construction of two new leisure houses on the applicant's property. In these circumstances it cannot be said that the plan has rendered the property so useless as to constitute a de facto expropriation for which compensation is due.         Finally, recalling also its considerations above with regard to the fairness of the proceedings, the Commission considers that the applicant had at her disposal sufficient procedural safeguards for the purposes of challenging the County Administrative Board's decision of 18 August 1993.         Summing up, the Commission finds that the applicant has not been made to carry an individual and excessive burden and that a fair balance has been struck between the conflicting interests at stake, regard also being had to the procedural safeguards afforded to her. Accordingly, there is no appearance of a violation of Article 1 of Protocol No. 1 (P1-1).         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, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                         of the First Chamber