AS TO THE ADMISSIBILITY OF
Application no. 26890/95
by Salme KUKKOLA
The European Court of Human Rights (Fourth Section), sitting on 30 November 2004 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr R. Maruste,
Mr K. Traja,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 16 March 1995,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The original first applicant, the late Ms Sinikka Kukkola, was a Finnish national, born in 1940. She died on 16 June 2001. The second applicant, Ms Salme Kukkola, is a Finnish national, born in 1945 and living in Pertunmaa. They were represented before the Court by Mr V.O. Hyvönen, an Emeritus Professor of Land and Water Law at the Helsinki University. The respondent Government were represented by their Agent Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Ms Sinikka Kukkola and Ms Salme Kukkola were joined owners of the real property Kukkola Rno. 1:120, amounting to 32 hectares, until the death of Ms Sinikka Kukkola. Ms Salme Kukkola, being the sole heir of Sinikka Kukkola, inherited the real property and is now its sole owner.
The “activity prohibition”
In 1989 the Council of State (valtioneuvosto, statsrådet) declared that the white-backed woodpecker should be afforded particular protection pursuant to Section 16 (c) of the 1923 Nature Conservation Act (luonnonsuojelulaki, lagen om naturskydd 71/1923). In 1992 the Ministry of the Environment (ympäristöministeriö, miljöministeriet) drew up a provisional plan for the protection of the species and invited the County Administrative Boards (lääninhallitus, länsstyrelsen) to comment thereon. The plan was to be confirmed subsequently.
In the Ministry's provisional plan of August 1992 some 20 hectares of the applicants' forest was included in part II of the plan which covered areas where the woodpecker was seen occasionally and which could not be expropriated.
On 3 December 1992 the Ministry instructed the County Administrative Board to transfer the applicants' area to part I of the plan which covered the nesting areas of the species and which could be expropriated.
The decision on the conservation measures with regard to the applicants' property was made while the repealed 1923 Nature Conservation Act was still in force. Under the provisions of the repealed Act, conservation was to be implemented by means of establishing a nature conservation area, either as a private conservation area upon an application by the landowner or as a state-owned conservation area through a voluntary sales or exchange contract or expropriation. The objective of the State was that the landowners concerned would voluntarily sell their properties at the current price or exchange them for a state-owned area of the same value. The applicants chose not to take any voluntary conservation measures.
By letter of 4 December 1992 the County Administrative Board of Mikkeli stated that, according to its knowledge, the applicants owned real property within a nesting area of the species. The Board recommended that the area be protected in either of the following ways:
“1. If the applicants of their own motion were to request permanent conservation of the area, they would receive compensation in the form of a taxfree lump sum fixed according to the current value of the loss of economic income resulting from the conservation (i.e. the restricted use of the area). The area would remain in their possession and the property tax would be alleviated to reflect the lost yield.
2. If the applicants wished to sell the area to the State at the current price, the State would make them an offer.
3. The applicants' area could also be exchanged for a State-owned area of the same value.”
The applicants objected to the planned inclusion of their property in the conservation plan, stating that, according to their knowledge, no white-backed woodpecker or nest of that species had ever been spotted on their land.
On 25 January 1993 the applicants' property was inspected by representatives of the County Administrative Board and the World Wildlife Fund (“WWF”). The applicants also participated.
On 3 November 1993 the applicants announced their intention to commence logging on their property according to a forestry plan drawn up by the local Forestry Board (metsälautakunta, skogsnämnden).
On 18 November 1993 the County Administrative Board issued a two-year-long “activity prohibition” (toimenpidekielto, åtgärdsförbud) concerning the relevant part of the applicants' property pursuant to Section 18 of the Nature Conservation Act. The Board reasoned its decision as follows:
“The area at issue forms a suitable habitat for the white-backed woodpecker and has, indeed, been included in the Ministry's provisional conservation plan for white-backed woodpeckers.
The County Administrative Board has earlier informed the landowners about the importance of the area to the white-backed woodpeckers and it has proposed in several negotiations that the area be formed into a conservation area. The Board has received, on 3 November 1993, a note informing the Board that it was planned by the landowners to commence logging in the area as from 1 December 1993 onwards. Even the telephone negotiations held with the landowners since the information note was received have failed to obtain the landowners' approval of voluntary conservation of the area.”
The applicants appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), contending that there were no grounds for the “activity prohibition”. To begin with, it had not been based on a legally valid conservation plan. Furthermore, no traces of a white-backed woodpecker had ever been seen in the area despite considerable efforts to attract the species to feeding-spots on their property. Moreover, the applicants did not intend to carry out full-scale logging but only certain logging which was necessary for forestry purposes and for improving their precarious economic situation. They had furthermore not been opposed to voluntary conservation measures but had received no precise information either as to the compensation which they would receive or the other conditions (such as the time of payment and the availability of compensatory land).
In its opinion to the Supreme Administrative Court the County Administrative Board stated, inter alia, that the conservable areas had been chosen on the basis of recommendations by a working group set up by WWF. As from the late 1980's a significant amount of feeding remnants emanating from the white-backed woodpecker had been detected. Towards the end of 1992 one white-backed woodpecker had been spotted within the area owned by the applicants. On the latter point the Board referred to a statement by a member of WWF's working group (who had apparently received this information from another person). Moreover, before making any specific offer of compensation to the applicants the Board had been awaiting a formal reaction on their part along the lines recommended in its letter of 4 December 1992. Such an initiative would not have bound the applicants or prejudged the terms of the conservation.
In its submission of 18 April 1994 the Ministry of the Environment considered that the applicants' appeal was unfounded. It noted that the relevant species had been spotted within the area belonging to the applicants. Contrary to the County Administrative Board's opinion of 4 December 1992 the Ministry nevertheless accepted that it had been impossible to confirm that the species was also nesting there. According to the Ministry, the conservation plan for the species “had just been finalised”. Finally, the Ministry noted that the white-backed woodpecker was only one of the conservable values within the area. It did not specify the other conservable values.
In their two rejoinders the applicants emphasised that they had not previously been informed that the species had been spotted towards the end of 1992. Moreover, it was impossible to distinguish between feeding remnants from various species of woodpeckers. The applicants also contended that they had formally requested to be informed of the proposed conservation terms.
On 14 October 1994 the Supreme Administrative Court, having found no reason to amend the County Administrative Board's decision, rejected the applicants' appeal in so far as it concerned the lawfulness of the “activity prohibition”. A dissenting justice concluded that the inclusion of the applicants' land in the conservation plan had not in itself constituted a legal basis for the prohibition. Moreover, there had been no recent, reliable and unambiguous reports that the relevant species had been spotted within that area. In sum, the legal conditions for issuing the “activity prohibition” did not exist.
In so far as the appeal concerned principally the expediency of the prohibition, it was transferred to the Government (the Ministry of the Environment) and refused on 4 November 1994. The Ministry found that the area in question contained significant conservable values (without specifying any particular value).
The expropriation proceedings
On 17 November 1995 the Government, by 10 votes to 7, granted permission for the expropriation of approximately five hectares of the applicants' property with a view to protecting the white-backed woodpecker.
The applicants appealed to the Supreme Administrative Court, requesting an oral hearing and alleging bias on the part of the officials handling the case in the Ministry of the Environment. In its statement of 28 February 1996 regarding the appeal, the Ministry of the Environment submitted that a white-backed woodpecker had been spotted on the applicants' property on 14 March 1993 and that fresh feeding remnants had been found on 18 May 1993. According to the Ministry, there were thus sufficient findings to prove that the area was significant for the relevant species. It was also emphasised by the Ministry that the area had been examined by the most qualified experts and that it was vital for the protection of the white-backed woodpecker that the area was included in the conservation plan, in accordance with Section 1 (2) of the Nature Conservation Act, and that the State was entitled to expropriate private property with a view to forming such a conservation area, in accordance with Section 18 (1) of the Act. It was further stressed by the Ministry that the expropriation was in the general interest and would provide full compensation to the land owners.
In October 1997 the Supreme Administrative Court afforded the applicants an opportunity to file observations on the Ministry's statement, which they did, and informed them that all the documents pertaining to the matter were available in the Supreme Administrative Court.
On 31 December 1997 the Supreme Administrative Court, having found holding an oral hearing unnecessary and that the officials handling the case in the Ministry of the Environment had not been biased, rejected the applicants' appeal as it found the land in question significant for the white-backed woodpecker.
On 7 December 1998 the applicants requested the Supreme Administrative Court to reopen the proceedings concerning the expropriation order. The request was refused by the Supreme Administrative Court on 28 March 2000.
The compensation proceedings
On 23 November 1995 the Ministry of the Environment applied for, inter alia, an assessment of the compensation following the expropriation (lunastustoimitus, inlösningsförrättning). A meeting between the parties took place on 5 March 1996 and an inspection in situ was held on 3 June 1996. In a letter of 3 June 1998 the applicants were invited to submit their claims by 3 November 1998. On 27 October 1998 the applicants presented their compensation claims. On 23 December 1998 the local Centre for Environmental Matters (ympäristökeskus, miljöcentralen) submitted their observations.
On 30 March 1999 the Compensation Board decided that the applicants be compensated FIM 488,892 for the lost building rights and the expropriated forest land, FIM 14,160 for their inconvenience and FIM 13,000 for their expenses, i.e. the total amount being thus FIM 516,052 (approximately 86,794 euros). The compensation was deposited on 10 May 1999.
The applicants appealed against the Board's decision to the Land Court which, on 7 September 1999, after having communicated the appeal to the local Centre for Environmental Matters and held an oral hearing, ordered the applicants to be compensated FIM 703,892 for the lost building rights and the expropriated forest land, FIM 10,000 for the inconvenience, FIM 26,000 for their legal expenses before the Compensation Board and FIM 28,800 for their legal expenses before the Land Court, the total amount being thus FIM 768,692 (approximately 129,285 euros).
The applicants appealed against the Land Court's decision to the Supreme Court (korkein oikeus, högsta domstolen), complaining, inter alia, about the amounts awarded to them for compensation and about the interest to be paid on that compensation. On 21 February 2002 the Supreme Court upheld the Land Court's decision except insofar as the State's obligation to pay damages amounting to FIM 10,000 and its obligation to pay interest was concerned, ordering the State to pay interest for the period 17 November 1995 to 9 May 1999. According to the applicants, the State paid the last outstanding part of the compensation only in May 2002.
The approval of the Natura 2000 network
In the meantime, by a decision of 25 November 1996 the Ministry of the Environment made available, between 7 April and 6 June 1997, Finland's proposal for the areas to be included in the European Community's Natura 2000 network and invited the landowners' observations. On 20 August 1998 the Finnish Council of State rendered its final decision as to the proposal. The expropriated part of the applicants' property was included in the proposition as a part of the Natura area.
The applicants appealed against the Cabinet's decision to the Supreme Administrative Court, requesting an oral hearing. As the Supreme Administrative Court invited their further observations, it informed them that all the material pertaining to the matter was available in the Supreme Administrative Court.
In its decision of 14 June 2000 the Supreme Administrative Court noted that the print-out from the Natura 2000 database had not been complete when the Ministry of the Environment made it available to the landowners in the sense that it had not included certain codes, evaluations of species populations and scientific assessments. However, it considered that the information provided to the landowners had been sufficient. The Supreme Administrative Court, having found an oral hearing unnecessary, rejected the applicants' appeal in a decision running to 91 pages. It found, inter alia, that the land in issue was a suitable habitat for the highly endangered white-backed woodpecker. However, part of the appeals of the applicants' neighbours were accepted as the forest nature was found to be different on their land, clearly not providing a suitable habitat for the species.
B. Relevant domestic law
The 1919 Constitution and the Constitution of 2000
Section 6 of the 1919 Constitution (hallitusmuoto, regeringsformen 94/1919), in force at the relevant time, provided that the right of Finnish citizens to their possessions should be secured by law. Expropriation of property in the public interest against full compensation was to be governed by law.
That section was equivalent to Section 15 of the Constitution of 2000 (perustuslaki, grundlagen 731/1999) which provides that the property of everyone is protected. Provisions on the expropriation of property, for public needs and against full compensation, are laid down by an Act. The new Constitution entered into force on 1 March 2000.
The 1923 Nature Conservation Act
Section 1 of the Nature Conservation Act (as amended by Act no. 399/41) concerns State-owned real property. Such property may be reserved as a general conservation area for the purpose of protecting it from interferences by man (subsection 1). A specific conservation area may also be established in order to protect an area of great natural beauty or with otherwise outstanding qualities or in order to protect a particular animal or plant species (subsection 2).
According to Section 8, a conservation order made in accordance with the above-mentioned provisions may not limit a right of a private party which was acquired prior to the issuing of the conservation order.
Section 9 (as amended by Act no. 672/91) concerns private properties. On request by the property owner, the state provincial office may declare a property of significant importance from the point of view of nature conservation to be a specific conservation area pursuant to Section 1, subsection 2 (1).
According to Section 16 c (3) of the Act (as amended by Act 672/91), if a species under special protection occurs in an area which is not owned by the State and a protection plan as referred to in subsection 1 has been drawn up to preserve the species, the state provincial office must, as necessary, provide the landowner with sufficient information on the occurrence of the species and measures which would endanger the species in the location concerned. If such information has been provided, the landowner must notify the state provincial office at least one month before embarking upon the above-mentioned action. Having received the said notification, the state provincial office must without delay negotiate with the landowner about the precautions necessary to preserve the species under special protection.
According to Section 18 (1-3) (as amended by Act no. 672/91), in accordance with the 1977 Act (referred to in the next paragraph), the State may expropriate real property for the purpose of creating a conservation area (Section 18 (1) of the 1923 Act). The state provincial office may, provisionally and for a maximum period of two years, prohibit an area from being used in a manner which could jeopardise the aim of an expropriation in accordance with the 1923 and 1977 Acts. The prohibition is immediately enforceable irrespective of appeal proceedings, unless the appeal body decides otherwise. If no expropriation takes place, a compensation award must be fixed by the state provincial office for any damage or inconvenience caused by the prohibition. If an expropriation permit has been granted, the property at issue must not be used in a manner which could jeopardise the aim of the expropriation. This prohibition remains in force until the expropriation proceedings have terminated or until the moment when the expropriation matter is struck off. In the last-mentioned case, compensation for losses or inconvenience caused by the prohibition shall be paid by the State.
The Act on Expropriation of Real Property and Special Rights
Section 4 (1) of the Act on Expropriation of Real Property and Special Rights (laki kiinteän omaisuuden ja erityisten oikeuksien lunastuksesta, lagen om inlösen av fast egendom och särskilda rättigheter 603/1977) provides that a property may be expropriated if there is a general need there for. Expropriation must, however, not be resorted to if its aim may also be achieved in another manner or if the inconvenience caused to a private interest is more significant than the benefit to the general interest.
According to Section 5 (1) expropriation permits are granted by the Government or, in certain cases, by the competent state provincial office or another administrative authority. According to subsection 2 (as amended by Act no. 1110/82), a permit is not needed if another decision already entails a right to proceed to expropriation.
According to Section 8 (as amended by Act no. 1110/1982), subsections 1 and 2 (as amended by Act no. 82/1995), the owner of the real property to be expropriated, and any holder of a right to use that property, must be provided with an opportunity to submit his or her observations on the matter, unless the person applying for an expropriation permit is able to present evidence that the owner and holders of rights have in writing consented to expropriation. The municipality in question and, in cases where the project has relevance for the region in question, the regional council and the regional environmental centre, must also be provided with the opportunity referred to above.
According to Section 9, the application and the notification indicating the time limit for the submission of observations must be served upon the owner and holders of rights, whose addresses can be verified, in accordance with the provisions of the Act on the Service of Administrative Decisions (232/1966). In the event that the application consists of such a large number of documents or documents that are, having regard to the large number of persons to be heard or otherwise, of such a nature that it would be unreasonably difficult to serve them upon the person to be heard, the notification must specify the documents not attached to it, as well as information on where and when the documents are available in the municipality in question.
According to Section 29, a property owner is entitled to full compensation for the economic losses caused by the expropriation.
According to Section 30 (1) full compensation corresponding to the market value must be awarded for the expropriated property. The moment of the property transfer shall be decisive for the determination of this value. If the market value does not reflect the real loss suffered by the owner of the property or any related right, the assessment must be based on the returns from the property or the investments in it.
According to Section 31 (1) if the purpose for which the expropriation is carried out has significantly increased or reduced the value of the property, the compensation due must be determined without taking account of such impact.
The 1996 Nature Conservation Act
The 1996 Nature Conservation Act (luonnonsuojelulaki, naturskyddslagen 1096/1996) entered into force on 1 January 1997. According to Section 25, for the purpose of nature and landscape conservation, a contract can be concluded between the regional environmental centre and the landowner as to the temporary protection, either complete or partial, of land referred to in section 10, subsection 2. The term of the contract is not to exceed 20 years.
According to Section 47 (2-3) the deterioration and destruction of a habitat important to the survival of a species under strict protection is prohibited. The prohibition referred to in subsection 2 must take effect as from the time when the regional environment centre has set the boundaries of a site hosting a species under strict protection and has notified the site's owners and holders of its decision. The prohibition is not valid until a public announcement is made and is posted on the municipal notice board, as stipulated in the Public Announcements Act. The decision remains in force irrespective of an appeal, unless decided otherwise by the appellate authority.
According to Section 64 (2) the European Union's Natura 2000 network in Finland consists of 1) bird sanctuaries of which the Commission of the European Communities has been notified in accordance with the provisions of the Bird Directive; and 2) sites deemed by the Commission or Council to be of Community interest pursuant to the provisions of the Habitats Directive. According to subsection 3, what is provided in Section 8 concerning the drafting and adoption of a nature conservation programme must correspondingly apply, as appropriate, to the drafting of a proposal for sites to be included in the Natura 2000 network. Parties affected by the decision shall be given an opportunity to state their opinion after a public announcement has been posted on the municipal notice board, as stipulated in the Public Announcements Act. The public must be forewarned of the announcement well in advance in at least one newspaper of general circulation within the locality concerned. The State must cover the costs of public announcements. Information on the proposal must be made available in the municipality for the duration of the posting of the announcement on the municipal notice board. According to subsection 4 (as amended by Act no. 492/1997), what is prescribed in section 61 (1, 3 and 4) must correspondingly apply to the right of appeal against a Government decision.
According to Section 68, a site included in the Natura 2000 network must be protected in a manner complying with its conservation objectives without delay and within six years of the Commission or Council having approved it as a site of Community interest. A bird sanctuary referred to in Section 64, subsection 1, paragraph 1, shall nevertheless be placed under protection immediately after the Commission has been notified of the site.
The Administrative Judicial Procedure Act
The Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslagen 586/1996) entered into force on 1 December 1996. According to Section 82, subsection 1, this Act does not apply to an appeal or a submission made before the entry into force of this Act, nor to the consideration of an appeal on such a matter in a superior appellate authority.
The Administrative Procedure Act
Section 15 of the Administrative Procedure Act (subsection 3 as amended by Act no. 688/1999) (hallintomenettelylaki, lag om förvaltningsförfarande; 598/1982), subsequently repealed on 1 January 2004, reads as follows:
“Affording the concerned parties an opportunity to be heard
Before a matter is decided, a party shall be given an opportunity to comment on the claims made by others and on any evidence in the matter that may affect the decision. (...)
A matter may be decided without giving a concerned party an opportunity to be heard:
1) if the claim is dismissed without examining the merits or immediately rejected, or if a claim not affecting another party is approved, or if it is obviously superfluous for some other reason to afford an opportunity to be heard,
2) if the matter concerns entry into a service relationship or voluntary training, or the granting of a benefit based on an assessment of the qualities of an applicant,
3) if it would jeopardise realisation of the purpose of the decision, or
4) if a decision in the matter cannot be postponed.
For the purpose of submitting comments, a party shall also be furnished with information from non-public documents if the party is entitled to receive information from such documents pursuant to the Act on the Openness of Government Activities.
The party shall, where necessary, submit evidence in support of his claim. It shall be the responsibility of the authority to procure any other evidence.
In a matter subject to joint proceedings and in a matter involving several parties, the public authority shall ensure that the matter is investigated in a manner not prejudicial to the equality of the parties.”
Section 18, concerning oral statements by a party, reads as follows:
“If a party seeks to present a claim orally or produce oral evidence when a matter is pending, he shall, where practicable, be given an opportunity to do so. Where warranted, the other parties shall be invited to attend at the same time.”
Section 19, concerning inspection and oral submission of evidence, reads as follows:
“The public authority may perform an inspection in situ. The parties shall be given an opportunity to attend the inspection.
Where warranted for a special reason, a witness may be heard under oath and a party may be heard under affirmation in administrative proceedings. The hearing shall be conducted by the administrative court where such a hearing can most conveniently take place. In matters pertaining to judicial administration considered by a court of law, however, the hearing shall be conducted by the court in question. The parties shall be given an opportunity to attend the hearing of a witness or a party, and shall be entitled to question a witness and to comment on the testimony of a witness (Act No 434 of 26 March 1999).
Compensation shall be paid to a witness pursuant to the applicable provisions of the State Compensation to Witnesses Act (Act No 666 of 1972). The compensation shall be paid from the funds available to the public authority. Where warranted, the public authority may order a party to reimburse any payments made from such funds in whole or in part.”
The Act on the Supreme Administrative Court
Section 15, subsection 1 of the Act on the Supreme Administrative Court (laki korkeimmasta hallinto-oikeudesta, lagen om högsta förvaltningsdomstolen 12/1979) reads as follows:
“For the purposes of resolving the case, the Supreme Administrative Court may obtain an opinion and a report, as well as hold an oral hearing and an inspection in situ. In the oral hearing, parties, witnesses and experts may be heard and other evidence may be received.”
In addition to the above-mentioned domestic legislation, the Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (direktiivi luontotyyppien sekä luonnonvaraisen eläimistön ja kasviston suojelusta, direktiv om bevarande av livsmiljöer samt vilda djur och växter) and the Council Directive 79/409/ETY (direktiivi luonnonvaraisten lintujen suojelusta, direktiv om bevarande av vilda fåglar) are also relevant in the consideration of the present case.
1. The applicants complain that the dispute relating to the “activity prohibition” was not examined by an independent and impartial tribunal and that the proceedings were unfair, contrary to Article 6 of the Convention. The Ministry for the Environment allegedly exercised legislative, executive and judicial power. Moreover, the authorities could rely on vague indications that the relevant species had been spotted on the applicants' property and never had to substantiate which other values worth conserving had justified the “activity prohibition”. The applicants, on the other hand, were effectively asked to prove the non-existence on their property both of the species and of those other conservable values of which they were not even aware. The proceedings were in breach of Article 6 § 1 of the Convention, in particular, because
a) the applicants were not afforded a public hearing before an impartial tribunal during the expropriation proceedings,
b) the domestic decisions were based on written statements submitted by civil servants whom the applicants could not examine as witnesses before the domestic courts,
c) the Supreme Administrative Court's decision of 14 June 2000 was based on material which had not been communicated to the applicants as they had not been afforded a right to examine the Natura 2000 database which was submitted to the Supreme Administrative Court as evidence and which was set out as such in the Supreme Administrative Court's above-mentioned decision, and
d) the length of the proceedings was excessive.
2. The applicants also complain of a violation of their right to peaceful enjoyment of their property as guaranteed by Article 1 of protocol No. 1 to the Convention, read alone and/or in conjunction with Article 14 of the Convention. The “activity prohibition” lacked a legal basis, given that it was issued on the basis of a draft conservation plan which had not been formally adopted. Moreover, the expropriation order lacked any legal basis or general interest as the Supreme Administrative Court stated in its decision of 14 June 2000 that it was not decisive for the expropriation order whether the white-backed woodpecker existed or not. In the applicants' view, such a plan could be issued only for the purpose of protecting a species which already existed within an area included in the plan. Moreover, the white-backed woodpecker does not exist at the relevant area and there is no evidence that it had ever been spotted there. The domestic decisions were unfair also because the appeals of the applicants' neighbours were successful even though there is no difference between the forest owned by the applicants and that owned by their neighbours.
The interference with the applicants' property rights was furthermore disproportionate as the compensation awarded to them is less than the value of the expropriated land.
1. The applicants make various complaints under Article 6 § 1 of the Convention, which provides in relevant part:
“ In the determination of his civil rights and obligations ... , everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
The Court considers first that the applicants' right to develop their property in accordance with the applicable laws and regulations was “civil” within the meaning of Article 6 § 1 (see e.g., Fredin v. Sweden (no. 1), judgment of 18 February 1991, Series A no 192, § 63). There was furthermore a “genuine and serious” dispute between the applicants and the authorities, the outcome of which was directly decisive for the applicants' rights as owners. Article 6 § 1 of the Convention accordingly applies.
a) Lack of an oral hearing before an impartial tribunal in the expropriation proceedings
The applicants complain, under Article 6 § 1 of the Convention, about the lack of an oral hearing before an impartial tribunal during the expropriation proceedings as there was no hearing at any stage of the proceedings.
The Government submit that the reservation made by Finland as to the right to a hearing remained validly in force.
The Court recalls in this respect that, at the relevant time, proceedings initiated in the Supreme Administrative Court before the entry into force of the Administrative Judicial Procedure Act on 1 December 1996, were written. The reservation made by Finland under Article 6 of the Convention, according to which Finland could not guarantee a right to an oral hearing before, among other courts, the county administrative courts and the Supreme Administrative Court, remained in force (see the Court's inadmissibility decision of 19 March 2002 in the case of Sisko Thomasi on her own and on her son's behalf v. Finland, Application no. 28339/95) in respect of such proceedings.
The Court notes that the applicants requested the Supreme Administrative Court to hold an oral hearing in connection with the expropriation proceedings. The proceedings had, however, begun before 1 December 1996 and therefore the reservation made with regard to Article 6 § 1 was still valid. In its decision of 31 December 1997, the Supreme Administrative Court reasoned its decision not to hold an oral hearing by means of referring to both domestic legislation (Sections 81 and 82 of the Administrative Judicial Procedure Act) and the reservation made by Finland under Article 6 to this Convention.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
Insofar as the applicants allege lack of impartiality on the part of the Supreme Administrative Court, the Court finds no appearance of a violation.
It follows that this aspect of the complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 § 4 of the Convention.
b) Access to court in “the activity prohibition” proceedings
This aspect of the complaint concerns the applicants' allegations that the Ministry of the Environment allegedly exercised legislative, executive and judicial power.
The Government point out that the case was open for review before the Supreme Administrative Court.
The Court has first examined whether the applicants had sufficient access to court within the meaning of Article 6 § 1 of the Convention. This provision does not oblige the Contracting States to submit a dispute 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., Le Compte, Van Leuven and De Meyere v. Belgium, judgment of 23 June 1984, Series A no. 43, § 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 § 1 of the Convention (see, e.g., Fischer v. Austria, judgment of 26 April 1995, Series A no. 312, § 28).
The Court notes that in their appeal to the Supreme Administrative Court the applicants challenged the lawfulness of the County Administrative Board's decision, whereas the issues principally relating to the expediency of the “activity prohibition” were referred to the Government. Having examined the case in all other respects than the issue of expediency, the Supreme Administrative Court found no grounds for amending the County Administrative Board's decision. The Supreme Administrative Court did not have to decline jurisdiction on any of the legal points raised by the applicants and there is no indication that its power of review of the facts were not sufficient in the light of the Court's case-law (cf. Zumtobel v. Austria, judgment of 21 September 1993, Series A no. 268-A, § 32).
In these circumstances the Court does not find that the applicants were denied access to a tribunal within the meaning of Article 6 § 1 of the Convention for the purposes of challenging the “activity prohibition”.
It follows that this part of the complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 § 4 of the Convention.
c) Lack of communication of evidence concerning the Natura 2000 database
The applicants claim that the Supreme Administrative Court's decision of 14 June 2000 was based on material which had not been communicated to them as they had not been afforded a right to examine the Natura 2000 database which was submitted to the Supreme Administrative Court as evidence and which was set out as such in the Supreme Administrative Court's above-mentioned decision.
The Government note that this complaint pertains to the Government's proposal to include the applicants' property in the Natura network. The hearing of parties was organised by means of a public announcement. For the purposes of hearing the parties, a print-out was produced of the electronic data files, containing the relevant information on the criteria according to which the area had been selected to be included in the network. The files prepared by the European Commission, in which the information was expressed in codes, were not as such suitable for the purposes of hearing the parties (e.g. the natural habitats were given as codes and the species were referred to by their Latin names). In its decision of 14 June 2000, the Supreme Administrative Court noted that a summary of each site had been printed out from the database for the purposes of providing the landowners with an opportunity to file observations. Although the print-out was incomplete, it was sufficient that the relevant facts, as summarised on the basis of the source material, were provided in the printed versions of the data files. Considering that the number of persons involved in the conservation plan proceedings and to be heard was significant, it would not have been possible to arrange the hearing procedure by other means. The hearing procedure and other stages of the proceedings were the same in respect of all parties. The authorities aimed at providing comprehensible information. In this respect, it was relevant that the authorities presented the requirement of nature conservation and its effects on the applicants' rights in a comprehensible manner instead of presenting lists of codes or comparable documents. Also the Supreme Administrative Court found the hearing procedure to be in accordance with the law.
The Court recalls that, according to the its constant case-law, the principle of equality of arms - one of the elements of the broader concept of fair trial - requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among other authorities, the Ankerl v. Switzerland, judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V, § 38).
In the present case the evidence at issue was of a very special nature as the files prepared by the European Commission, in which the information was expressed in codes, were not as such suitable for the purposes of hearing the parties. Taking into account the fact that a print-out of the database was made available, the Court considers, under these circumstances, that the applicants had sufficient access to the evidence submitted for the purposes of deciding whether they wanted to challenge it.
It follows that this part of the complaint is also manifestly ill-founded within the meaning of Article 35 § 4 of the Convention.
d) The length of the proceedings
The parties' submissions
The applicants complain that the proceedings in issue were excessive in length, amounting to ten years, one month and fourteen days. They began in 1992 when the Ministry of the Environment drew up a provisional plan for the protection of the species, including the applicants' property in the plan and they did not end until 21 February 2002 when the Supreme Court decided on their appeal in respect of the compensation proceedings.
According to the applicants the “activity prohibition” proceedings began on 10 April 1992, that is to say when the provisional plan was drawn up, and ended on 4 November 1994. No delay was attributable to the applicants.
They argue without specifying the date that the expropriation proceedings began when the expropriation claim was submitted and that they ended on 31 December 1997.
The applicants claim that the compensation proceedings began on 23 November 1995 when the Ministry of the Environment sent a letter to the surveyor. A meeting between the parties was held on 5 March 1996. The payment commission held an inspection in situ on 3 June 1996. In a letter of 3 June 1998 the applicants were invited to submit their claims by 3 November 1998. The applicants presented their claims on 27 October 1998. The proceedings ended on 24 May 2002 when they received the last outstanding part of the compensation.
According to the applicants the preparations with regard to the Natura network began in 1996. The parties were heard as from 1997. The proceedings ended on 14 June 2000.
The Government submit that the case involved four separate sets of proceedings, the total length amounting to eight years, three months and three days. Only delays attributable to the State may justify a finding of a failure to comply with the “reasonable time” requirement.
They submit that the “activity prohibition” was issued on 18 November 1993. The proceedings ended on 14 October 1994 as regards the examination of its lawfulness and on 4 November 1994 as regards the examination concerning expediency. The temporary “activity prohibition” resulted from the applicants' objection to the conservation plan and from their intention to log in the area.
The Government recall that the expropriation proceedings began on 17 November 1995 and ended on 31 December 1997. The delay in the expropriation proceedings, caused by the activity prohibition, was a consequence of the applicants' own conduct.
The Government submit that the compensation proceedings began on 27 October 1998 when the applicants presented their claims and ended with the Supreme Court's judgment of 21 February 2002.
As regards the proceedings from 20 August 1998 to 14 June 2004 relating to the Natura 2000 network, the Government argue that the numerous national appeal proceedings in this context constituted perhaps the most extensive independent series of administrative proceedings ever in Finland. The hearing of parties began in 1997 and 12,000 complaints were lodged by landowners or other interested parties. Some 850 appeals were made against the Government decision of 20 August 1998 to the Supreme Administrative Court by a total of 5,000 individual appellants. The total surface of the areas designated as special protection areas by the Government decision amounted to 5 million hectares, and there were some 10,000 individual landowners affected by the decision. The appellants sought to have the Government decision repealed on varying grounds, as to both form and substance. In the summer of 2000, the Supreme Administrative Court issued some 750 decisions on appeals, most of which were rejected. In total, the decisions ran to more than 40,000 pages. In the applicants' case the decision ran to 91 pages. The opinions of the Ministry of the Environment alone amounted to more than 7,000 pages. The Government further observe that, in this context, the value of the applicants' land was also assessed from a European perspective, given that the white-backed woodpecker is among those species that require the designation of special protection areas under the Council Directive. Thus, at this stage at the latest were the national authorities under an obligation to take measures of conservation. Considering the nature and complexity of the case, these proceedings may, in the Government's view, be considered exceptionally expeditious.
The Court's assessment
The Court considers, in the light of the parties' submissions, that this part of the application raises serious issues of fact and law under the Convention, including the question whether and to what extent different sets of proceedings can be considered in toto for the purposes of Article 6 § 1, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
e) General fairness of the “activity prohibition” proceedings
The applicants also complain that the proceedings were unfair. In their view the authorities relied on vague indications that the relevant species had been spotted on the applicants' property but never substantiated which other values worth conserving had justified the “activity prohibition”. The applicants, on the other hand, were effectively asked to prove the non-existence on their property both of the bird species and of those other values of which they were not even aware.
The Government submit that the Supreme Administrative Court, when examining the case from the legal point of view, changed neither the decision of the County Administrative Board nor its reasoning. Article 6 § 1 of the Convention cannot be regarded in the present case as demanding a repetition of the reasons given by the County Administrative Board, as the Supreme Administrative Court fully accepted the Board's decision including its reasoning. The County Administrative Board and the Supreme Administrative Court came to the conclusion, in the light of the documents of the case demonstrating, inter alia, the special features of the forest in question, that the said area was a suitable habitat for the white-backed woodpecker. This was a sufficient ground for issuing the “activity prohibition” and dismissing the appeal. As regards the alleged further grounds adduced by the County Administrative Board and the Ministry of the Environment before the Supreme Administrative Court, the applicants could also have challenged the “activity prohibition” before the Supreme Administrative Court in this respect and effectively availed themselves of that possibility. As the white-backed woodpecker had actually been spotted in the area the question whether the species was also nesting there was of no relevance. Moreover, the reference to other conservable values only indicated the fact that an “activity prohibition” in respect of an area suitable as habitat for the white-backed woodpecker would also protect other rare species possibly found in this area. The particular need to protect the white-backed woodpecker was, however, the sole basis for the “activity prohibition”.
The Court finds that this complaint essentially raises the questions whether the applicants were effectively prevented from challenging the “activity prohibition” properly before the Supreme Administrative Court and whether that tribunal carried out an examination meeting the requirements of fairness inherent in Article 6 § 1.
Article 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 indicate with sufficient clarity the grounds on which they based their decisions (see Hadjianastassiou v. Greece, judgment of 16 December 1992, Series A no. 252, § 33).
Article 6 § 1 of the Convention cannot, however, 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., Van der Hurk v. the Netherlands, judgment of 19 April 1994, Series A no. 288, §§ 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 as a whole (see, e.g., Ruiz Torija v. Spain, judgment of 9 December 1994, Series A no. 303-A, § 29).
Turning to the present case, the Court notes that while the reasons put forward in the County Administrative Board's decision of 18 November 1993 were summary, they nevertheless contained the main reasons which were somewhat supplemented in its opinion to the Supreme Administrative Court, notably by reference to information indicating that the species had been spotted on the applicants' property in 1992. Moreover, in another opinion the Ministry of the Environment referred, among other things, to the existence of other conservable values on the applicants' property, though without specifying these values.
The Court notes, however, that before the Supreme Administrative Court the applicants were able to comment on the opinions of the County Administrative Board and the Ministry of the Environment and could thus challenge whatever further grounds were advanced in support of the “activity prohibition”.
It is true that the decision of the Supreme Administrative Court not to amend the County Administrative Board's decision did not include any fresh appreciation of the facts in the light of the further submissions of the Board, the Ministry and the applicants. It is also true that the decision did not explicitly indicate either the Supreme Administrative Court's reasons or the relevant legal provisions applied.
However, the very fact that the Supreme Administrative Court upheld the County Administrative Board's decision without any changes indicates that in the court's view the new submissions did not affect the correctness of the reasons and legal provisions invoked by the Board. Moreover, it appears from the opinion of the dissenting justice of the Supreme Administrative Court that the fresh points, raised by the County Administrative Board, the Ministry of the Environment and the applicants were duly examined also by the justices in the majority.
In these circumstances there is no indication that the proceedings considered as a whole were unfair and thereby in contradiction with Article 6 § 1 of the Convention.
It follows that this aspect of the complaint is also manifestly ill-founded within the meaning of Article 35 § 4 of the Convention.
2. The applicants also complain of a violation of their right to peaceful enjoyment of their property as guaranteed by Article 1 of Protocol No. 1 to the Convention, read alone and/or in conjunction with Article 14 of the Convention, resulting from the “activity prohibition”. Article 1 of Protocol No. 1 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 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] 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 applicants argue that the interferences were not based on law. Moreover, there was no general interest. The applicants claim that the differences in treatment of the landowners amounted to discrimination.
The Government argue that the applicants have been fully compensated and therefore they cannot claim to be victims of a violation of their property rights. In any case, the Government submit that the interferences, that is to say the activity prohibition and the expropriation, were lawful, they pursued a legitimate aim, namely nature conservation and they were proportionate. Moreover, the applicants were fully compensated. Lastly, the situations of the applicants' and that of their neighbours' were in the final analysis different and thus, there is no indication of any discrimination.
Having regard to the fact that the applicants dispute the sufficiency of the amount of compensation and allege that they have been subjected to discrimination, the Court considers that they can claim to be victims despite the awarded compensation.
Article 1 of Protocol No. 1 to the Convention 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, § 41).
Each of the two forms of interference must comply with the principle of lawfulness and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see, for example, Beyeler v. Italy [GC], no. 33202/96, §§ 108-14, ECHR 2000-I). An interference with peaceful enjoyment of possession must nevertheless strike a “fair balance” between the demands of the public or 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 as a whole which is to be read in the light of the general principle enunciated in the first sentence. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions or controlling their use. Compensation terms under the relevant legislation are material to the assessment of whether the contested measure respects the requisite fair balance, and notably, whether it does not impose a disproportionate burden on the applicant (see Former King of Greece and Others, [GC], no. 25701/94, § 89, ECHR 2000-XII).
In this connection, the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference that cannot be justified under Article 1 of Protocol No. 1. This provision does not, however, guarantee a right to full compensation in all circumstances, since legitimate objectives of “public interest” may call for less than reimbursement of the full market value (see, among other authorities, Papachelas v. Greece [GC], no. 31423/96, § 48, ECHR 1999-II).
Although Article 1 of Protocol No. 1 contains no explicit procedural requirements, the proceedings at issue must also 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 the rights guaranteed by this provision. In ascertaining whether this condition has been satisfied, a comprehensive view must be taken of the applicable procedures (see e.g. Jokela v. Finland, no. 28856/95, § 45, ECHR 2002-IV).
The Court considers that the “activity prohibition” issued by the County Administrative Board in respect of part of the applicants' property amounted to a control of its use. This interference with their property rights falls to be examined under the second paragraph of Article 1 of Protocol No. 1 to the Convention as to its lawfulness, purpose and proportionality.
The Court notes that pursuant to Section 18 of the Nature Conservation Act, a County Administrative Board may prohibit an area from being used in a manner which could jeopardise the aim of a possible expropriation thereof. The Court therefore finds that the interference in question was lawful.
The Court can furthermore accept that the purpose of the “activity prohibition” was to prevent measures which could jeopardise the values worth conserving within the area and notably the survival of the white-backed woodpecker. 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, § 48).
As regards proportionality, the Court recalls that the “activity prohibition” was in force for a period of two years and affected some 20 hectares of the applicants' property. Subsequently, the Council of State decided that some five hectares could be expropriated. The applicants were compensated EUR 118,386 for the lost building rights and the expropriated forest land and EUR 1,681 for inconvenience. They were also reimbursed their legal costs. This award cannot be considered as unreasonable.
Summing up, the Court finds that the applicants have 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. Accordingly, there is no appearance of a violation of Article 1 of Protocol No. 1 to the Convention. Neither is there any indication of discrimination prohibited by Article 14 of the Convention.
It follows that this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant's complaint concerning the allegedly excessive length of the proceedings;
Declares the remainder of the application inadmissible.
Michael O'Boyle Nicolas Bratza
KUKKOLA v. FINLAND DECISION
KUKKOLA v. FINLAND DECISION