FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37858/97 
by Lena ASCHAN and Others 
against Finland

The European Court of Human Rights (Fourth Section), sitting on 15 February 2001 as a Chamber composed of

Mr G. Ress, President
 Mr A. Pastor Ridruejo
 Mr L. Caflisch
 Mr J. Makarczyk
 Mr I. Cabral Barreto
 Mrs N. Vajić
 Mr M. Pellonpää, judges,

and Mr V. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 12 June 1997 and registered on 22 September 1997,

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 deliberated, decides as follows:

 

THE FACTS

The applicants are Mr B. Holmberg, Ms A. Nylund (on behalf of the Tolvsnäs & Skogby fiskelag), Mr J.-H. Lindqvist (on behalf of the Björkö fiskelag), Mr G. Karlgren (on behalf of the Mossala fiskelag), Mr V. Eriksson (on behalf of the Åvensor fiskelag), Mr B. Bergman (on behalf of the Lillmälö fiskelag), Mr J.-G. Knuts (on behalf of the Hitis kyrkoby fiskelag), Mr T.Ylitalo (on behalf of the Takajärven kalastuskunta), Mr P. Mäntyranta (on behalf of the Iso-Säkylän kalastuskunta), Ms L. Aschan, Ms K. Degerth, Mr K.-H. Lundberg (on his own and on behalf of a company called Busö Ab) , Mr Å. Strandfelt, Ms B. Strandfelt, Mr H. Isaksson, Mr J. Isaksson, Ms E. Jansson, Ms A. Jansson, Mr S. Jansson (the three last mentioned on their own and on the behalf of Stenskä stugor och fisk), Mr J. Ylitalo, Mr G. Mattson, Ms H. Matsson (the two last mentioned on their own and on behalf of Lömsö Stugor) and Mr E. Eela (on behalf of the Pyhäjärven kalastuskunta). The individual applicants are Finnish nationals and the association applicants are statutory local fishing associations (kalastuskunta, fiskelag). All the applicants are represented before the Court by Mr M. Fredman, a lawyer practising in Helsinki.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The Fishing Act (kalastuslaki, lag om fiske), as amended on 1 January 1997, provides that fishing with hand-held tackle is a public right as everyone who has paid the lure-fishing fee to the State is allowed to fish with hand-held tackle also in privately owned water areas. Pursuant to the same amendment, fishing with hook and line as well as ice-fishing are rights guaranteed to everyone. With the amendment, the owner of a water area lost his exclusive right to control fishing, and the amount of fishing licenses, in his water area.

According to the Act as amended, the fees for the right to fish with a hand-held tackle are now paid to the State. This system replacing the earlier one, in which the owner of a water area himself received the fees paid for the fishing licenses. However, the income from the fees paid for the right to fish with a hand-held tackle are, after the State has deducted its expenses for collecting the fees, reimbursed to the owners of the fishing waters as compensation for the fishing with hand-held tackle in their waters. If the reimbursement for an individual owner of a water area is less than FIM 200, the amount is reimbursed to the local fishing association.

According to the old Act, everyone who was over 18 years of age and wanted to fish or crayfish, had to pay - in addition to the local fishing license - an annual payment of FIM 80 to the State for the maintenance of the fishing waters.

The applicants are owners of water areas and local fishing associations. Some of the individual applicants are professional fishermen, who fear for their income as everyone is now entitled to fish in their fishing waters. Others are individuals who, due to the amendment of the Fishing Act, have lost income which they used to earn by selling fishing licenses, by renting their water areas to fishing associations, and so on. The applicant associations have lost their income by losing their right to receive payments for fishing licenses. According to the applicants, their income from the fishing licenses and related sources in 1994 - 1996 has been approximately FIM 10,000 per year per applicant. Some of the fishing associations have, however, earned up to FIM 72,553 per year for selling fishing licenses.

B.  Relevant domestic law

By virtue of Section 3 of the Fishing Act, the individual owners of fishery waters form a fishing association. Fishing associations are members of Fishing Areas (kalastusalue, fiskeområde). Activities of Fishing Areas are directed and supervised by Fishing Districts (kalastuspiiri, fiskeridistrikt), which are authorities subject to the Ministry of Agriculture and Forestry (maa- ja metsätalousministeriö, jord- och skogsbruksministeriet).

COMPLAINTS

1.  The applicants complain, under Article 1 of Protocol No 1 to the Convention, that their right to the peaceful enjoyment of their possessions has been violated. Some of the applicants also complain that they have been deprived of such a large part of their possessions that the rest of the latter have lost their value as the value of some of the water areas has been based on the value of their exclusive fishing rights.

2.  The applicants also complain, under Article 6 § 1 of the Convention, that they do not have access to court as there is no court in Finland which could examine their claims against the State.

3.  The applicants, finally, complain that they have no right to an effective remedy. They invoke Article 13 of the Convention in this respect.

THE LAW

The Court notes that some of the applicants are fishing associations, represented, inter alia, by their chairmen (esimies, förman). The status and standing of such applicants before the Court might give rise to questions (cf. European Commission of Human Rights, Decision of 15 May 1996 on the admissibility of the application No. 25155/94, Jalkalan kalastuskunta and Others v. Finland). However, the Court notes that it is unnecessary to examine those questions in detail, as the application is in any case inadmissible for the reasons set out below.

1.  The applicants complain, under Article 1 of Protocol No. 1 to the Convention, that the amendment of the Fishing Act has deprived them of their possessions or, at least, violated their right to the peaceful enjoyment of their possessions as they have lost their income based on those rights, and that the water areas owned by them have become worthless since they cannot let anymore the excess fishing rights which they cannot fully exercise themselves.

Article 1 of Protocol No. 1 to the Convention 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.”

The applicants argue that even though the aim of the amendment concerning the fishing rights, i.e. the pressure to meet the public's interest in leisure activities, can be regarded as justified, the means used were wrong. In the view of the owners of the water areas, the amendment goes further than what was necessary in order to satisfy the acceptable level of public need for the use of fishing waters for leisure activities. The amendment is disproportionate in relation to its aim. For example, it makes questionable all the efforts to farm new fish as anyone can catch the fish planted by a fishing association without that association being reimbursed for its expenses (the reimbursement based on the Act being in no relation to actual expenses or the amount of fish). It must also be taken into account that the previous law already allowed very wide public fishing rights to everybody as, for example, fishing with rod and hook as well as ice-fishing were included in those rights. The new system serves only the interests of those who fish for their leisure, moving around in large areas. The amount of such fishermen is supposed to be fairly limited. Thus, there is no pressing need in the public's interest as claimed by the Government in the travaux préparatoires for the amendment to the Fishing Act.

The Court, firstly, notes that the introduction of the amendment to the Act on Fishing, on 1 January 1997, and its effects, constitute an interference with the applicants' right to the peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1 to the Convention. It must therefore be examined whether this interference was justified under the terms of that Article.

Article 1 of Protocol No. 1 to the Convention guarantees the right of property. It comprises three rules. The first rule, which is set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property. The second rule, which is set out in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions. The third rule, which is set out in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control use of property in accordance with the general interest. The three rules are connected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and are therefore to be construed in the light of the general principle enunciated in the first rule.

The Court accepts that there has been an interference with the applicants' rights protected under Article 1. The result of the 1997 amendment was basically that the owners of the water areas were deprived of their previous exclusive right to sell fishing licenses to the water areas owned by them and, thus, to control the amount of fishing activities in their area. The essential economic significance of this was that the owner of a water area could no longer make any profit from the fishing rights in his area, save for the reimbursement paid by the State to the owners or the fishing association representing them.

The Court notes that, in the present case, it is clear that the applicants have not been deprived of their property as they still retain the title to it. The applicants have also not been deprived of their right to fish. Therefore the interference in question cannot be regarded as deprivation of possessions but rather as a control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 to the Convention.

The Court recalls, in the light of its established case-law, that the second paragraph must be understood to permit the enforcement of laws which are deemed necessary to regulate the use of property. It considers that the 1997 amendment was a law which aimed at regulating the use of property. The question of whether the interference created by the 1997 amendment was justified must therefore be examined to establish whether the interference was “lawful”, whether it pursued a “general interest”, and whether it was proportionate and therefore could be “deemed necessary”.

The Court notes that interference with the applicants' fishing rights was based on the Fishing Act as amended in 1997. Despite the applicants' argument alleging the unconstitutionality of the interference, the Court finds nothing suggesting that the interference was not “lawful”.

The condition of “general interest” leaves a wide margin of appreciation to the national legislation. The Court will respect the legislator's judgment as to what is a “general interest” unless that judgment be “manifestly without reasonable foundation” (see the judgment of 21 February 1986 in the case of James and Others v. the United Kingdom, Series A no. 98, § 46). The Finnish Parliament's opinion that, because of the importance of fishing as a leisure activity, such an amendment was in “the general interest” cannot in the Court's view be considered to transgress the margin of appreciation left to the State in this regard.

As regards the proportionality, it is, amongst other things, of importance whether compensation is available and to what extent a concrete economic loss is being caused by the legislation. Under the 1997 amendment, the fishing fees paid to the State are reimbursed, after some deductions, to the owners of the water areas or, in some cases, to the fishing associations. The amount of the reimbursements is unknown but it is claimed by the applicants that it is in no relation to their loss. It seems clear, however, that the applicants are not entitled to any compensation for an alleged reduction of the value of their property or for any estimated value of their future income or, for instance, for selling fishing licenses or renting out their fishing rights. Nevertheless, the Court accepts the opinion of the Finnish Parliament that the consequences of the amendment may in general be regarded as a comparatively minor interference. It also accepts that to make fishing waters easily available to everybody in large areas may be regarded as an important “general interest”. Thus, even though the applicants have undoubtedly lost part of the profit accruing from their possessions as owners of water areas, the Court cannot find that such a loss caused by general legislation must necessarily be fully compensated on the basis of Article 1 of Protocol No. 1 to the Convention. Given the State's wide margin of appreciation in this domain, the Court considers that the interference with the applicants' property right cannot be held to be disproportionate. Consequently, the Finnish State was entitled to “deem necessary” the enactment of the 1997 amendment on the Act on Fishing with the effects it had on the applicants' property rights. Accordingly, the interference with the applicants' property right was justified under the terms of the second paragraph of Article 1 of Protocol No. 1 to the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2.  The applicants complain also, under Article 6 § 1 of the Convention, that they do not have access to court as their claim, that the amendment of the Fishing Act is in violation of the Finnish Constitution Act (Suomen hallitusmuoto, regeringsform för Finland), cannot be examined by any court in Finland.

Article 6 § 1 of the Convention reads, in so far as relevant, as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The applicants submit that, on the one hand, the right to the peaceful enjoyment of one's possessions or, at least, to full compensation for the deprivation of one's possessions is clearly a civil right. On the other hand, there is also the question of the applicants' obligation to tolerate external fishermen in their water areas. The applicants note that there is no national remedy which they could use in order to have examined whether their right to the peaceful enjoyment of their possessions has been violated so as to entitle them to be compensated for their loss. On the other hand, the reimbursement paid by the State is not in any respect in relation to their actual loss. The question of the proportionality of that reimbursement cannot be examined by any domestic courts either.

The Court recalls that, in accordance with its established case-law, Article 6 § 1 of the Convention does not require that there be a national court with competence to invalidate or override national law. The Court considers that the control of the use of the applicants' property was enacted by an amendment to the Act on Fishing adopted by the Parliament without any further implementing measures. A Finnish court could only examine a claim of a breach of the Constitution Act if it had competence to invalidate or set aside a law adopted by Parliament. However, Article 6 § 1 of the Convention does not guarantee access to court for such a claim.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.

3.  The applicants, finally complain that they have not been afforded an effective remedy guaranteed by Article 13 of the Convention which reads as follows:

“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.”

According to the applicants, the amendment was enacted on the basis of a motion made by a member of Parliament and that, accordingly, the preparation of the amendment was insufficient. This shortcoming would have been avoided if the amendment had been prepared in a normal way, i.e. by a working group with wide representation. As that was not the case, the groups representing the applicants' interests were not heard at the preparatory stage.

The applicants also stress that, as the question of whether an Act violates the provisions of the Constitution Act cannot be examined before the ordinary courts in Finland, the question whether the amendment of the Fishing Act was in violation of Protocol No. 1 to the Convention could not be examined for the same reason. Thus, the applicants do not have a right to an effective remedy before a national authority. The possibility to request a fishing prohibition for certain water areas cannot be regarded as such a remedy because this possibility is meant to be applied only in exceptional situations, the aim of the amendment being a general public fishing right for everyone. Thus, the fact that the owners were worried about a possible violation of their right to the peaceful enjoyment of their possessions could not be regarded as justifying such a prohibition.

The Court recalls, in this respect, that Article 13 does not guarantee a remedy whereby a Contracting State's laws as such can be challenged before a national authority on the ground of their being contrary to the Convention or to corresponding domestic legal norms. The applicants' allegations of violations of their rights under the Convention and the Protocols thereto are directed at the effects of the Act on Fishing as amended on 1 January 1997. It follows that Article 13 does not entitle the applicants to any remedy for such allegations.

Accordingly, there is no appearance of a violation of Article 13 of the Convention. It follows that this part of the application is also incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.

 

For these reasons, the Court by a majority

Declares the application inadmissible.

Vincent Berger Georg Ress 
 Registrar President

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