TAIVALAHO v. FINLAND
Inadmissible
Nicolas Bratza
The applicant, Mr Juhani Taivalaho, is a Finnish national who was born in 1946 and lives in Rovaniemi. He is represented before the Court by Ms Kaisa Korpijaakko-Labba, Docent at the Universities of Helsinki and Lappland. The respondent Government are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is an owner of real properties Tsahaltsokka Rn:o 34:7 and Aatasalmi Rn:o 34:8 in the municipality of Utsjoki, which lies in Lapland. He acquired the plots of land in 1987 and 1996, respectively. The properties included water areas in the Teno River, which is a border river between Finland and Norway, and its lower course is located in Norwegian territory. The applicant is resident in Rovaniemi, a town situated outside the Teno River valley. Since 1873 Finland and Norway have concluded treaties on fishing in the fishing area (in Finnish “kalastuspiiri”, in Norwegian “fiskeområde”) of the Teno River. The Treaty currently in force was concluded on 1 March 1989 (Treaty on the Mutual Fishing Regulations regarding the Fishing Area of the Teno River, “the 1989 Treaty”; sopimus Tenojoen kalastuspiirin yhteisestä kalastussäännöstä, överenskommelsen angående gemensam fiskeristadga för Tana älvs fiskeområde; Finnish Treaty Series no. 94/1989), and it was adopted by an Act of 1 December 1989 (Act no.1197/89). The Treaty was accompanied by the Fishing Regulation (kalastussääntö, fiskeristadgan) of Teno River (“the Fishing Regulation”). The 1989 Treaty and the Fishing Regulation were incorporated into Finnish law by an Act enacted according to the order prescribed for the enactment of constitutional legislation. They entered into force on 1 January 1990. Under Article 1 of the 1989 Treaty its aim is to protect and maintain the natural stocks of anadromous salmonoids (salmon, sea trout and Arctic sea char) and freshwater fishes, so as to preserve local biodiversity and natural productivity. The Fishing Regulation is applicable to those parts of the Teno, Inari and Skietsham Rivers which belong to Finland and constitute part of the border between the two States. The rights of ownership and the fishing rights in the Teno River are arranged differently in the two countries: the Finnish parts of the Teno River waters are mainly privately owned by partnership of joint owners, and each joint owner of fishing waters is entitled to pursue fishing up to the extent of his share in the joint fishing waters. In Norway, fishing rights are based on the use of land, and the Norwegian parts of the Teno River are owned by the State. According to the Fishing Regulation persons who have fishing rights in their capacity as owners of the water area and who have a permanent residence in the Teno River valley, are in a privileged position compared to those land owners who live outside the river valley with respect to the price of the fishing licence and the fishing equipment allowed. In March 1991 the Act on Compensation for the Losses Caused by the 1989 Treaty and by the corresponding Fishing Regulation entered into force (“the 1991 Compensation Act”; laki Tenojoen kalastussääntöä koskevan sopimuksen ja kalastussäännön eräiden määräysten aiheuttamien menetysten korvaamisesta, lag om ersättande av förluster på grund av vissa bestämmelser i överenskommelsen angående fiskeristadgan för Tana älv och i den därtill anslutna fiskeristadgan; Act no. 501/1991). Under the said Act a holder of fishing rights shall be paid full compensation for any losses that are caused by the 1989 Treaty or the accompanying Fishing Regulation and prevent him from using his fishing rights. Corresponding compensation is also paid for losses caused by the previous Treaties. Apparently a redemption procedure prescribed in the 1991 Compensation Act for the determination of compensation for the losses caused to the applicant was initiated on 30 April 1992 before the Rovaniemi District Survey Office (maanmittaustoimisto, lantmäteribyrån). The procedure is still pending. According to the Government the proceedings were suspended because, inter alia, the shareholder lists for the fishing places outside the reparcelling unit have not yet been confirmed. On 30 July 1998 the applicant fished with a rod and artificial lure in his waters, without having paid for the fishing licence required for those who were not resident in the Teno River valley. On 5 February 1999 the public prosecutor preferred charges against the applicant for fishing in violation of the 1989 Treaty, the Fishing Regulation and the Fishing Act (kalastuslaki, lag om fiske) as the applicant had been fishing without a required fishing licence and had used a prohibited lure. On 3 September 1999 the Lapland District Court (käräjäoikeus, tingsrätt) convicted him of breaching the 1989 Treaty, the Fishing Regulation and the Fishing Act and ordered him to pay five day-fines. It found that the fishing restrictions were not in breach of the applicant’s right to use his property, given that the Fishing Regulation had been adopted in order to safeguard future fish stocks and the rights and culture of the local residents. It further ruled that any losses caused by the fishing restrictions could be compensated under the 1991 Compensation Act. The applicant appealed to the Court of Appeal (hovioikeus, hovrätt) of Rovaniemi, claiming that the restrictions on fishing based on residence violated his right to use his possessions and his freedom of movement and were furthermore discriminatory. He further alleged that the compensation provided by the 1991 Compensation Act was meaningless as the compensation proceedings had already begun on 30 April 1992 but were still pending. On 11 June 2001 the Court of Appeal issued its judgment, rejecting the applicant’s appeal. It found that the provisions of the Fishing Regulation and the 1989 Treaty were not in obvious conflict with the Constitution of Finland (Suomen perustuslaki, Finlands grundlag) within the meaning of section 106 of the Constitution, and therefore found that they were applicable. It concluded that the impugned provisions of the 1989 Treaty and the Fishing Regulation did not violate the applicant’s right to use his possessions, nor his freedom of movement. On 10 August 2001 the applicant applied to the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal, complaining, inter alia, that the domestic courts had not taken into account the requirements of section 106 of the Constitution, namely the direct applicability of fundamental rights. He further claimed that the 1989 Treaty and the Fishing Regulation had entered into force in Finland before the Convention and thus the said provisions should not have been applied, as they were contrary to Convention rights. On 18 October 2002 the Supreme Court refused the applicant leave to appeal. According to the Constitution Act of 1919 (Suomen hallitusmuoto, Regeringsform för Finland; Act no. 94/1919) as amended by Act no. 969/1995, which entered into force on 1 August 1995, everyone was to be equal before the law and his or her property was to be protected (sections 5 and 12). A judge or other officer was under an obligation not to apply a provision in a decree which conflicted with constitutional or other Acts of Parliament (section 92, subsection 2). The Convention has been incorporated into Finnish law by an Act of Parliament with the status of ordinary law (Act no. 438/1990). Chapter 2 (“Basic rights and liberties”) of the Constitution Act has been incorporated as such into the new Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), in force as of 1 March 2000. Equality and property rights are guaranteed under sections 6 and 15. Under the current Constitution a court of law must give precedence to a provision therein if the application of a provision of ordinary law was in obvious conflict with the Constitution (section 106). If a provision in a decree or any other statute of lower rank than an Act of Parliament is in conflict with the Constitution or ordinary law, that provision shall not be applied by a court of law or any other public authority (section 107). According to Article 1 of the 1989 Treaty its aim is to protect and maintain fish stocks in the Teno River. Under section 2 of the Fishing Regulation anyone who intends to fish on the parts of the Teno, Inari and Skietsham Rivers constituting part of the border between Finland and Norway shall pay a fishing licence before fishing. Persons who live permanently in the river valley shall pay 5 euros (EUR) per calendar year. This also applies to persons who have inherited their fishing rights directly from a person who resided permanently in the Teno River valley. Those who do not have a residence in the river valley shall pay EUR 10 – 35 per day for a fishing licence, depending on the area. Section 3 prescribes that local residents are also in a privileged position compared to others with respect to the methods they are allowed to use for fishing: they are entitled to use, subject to the restrictions laid down in the Regulation, barriers with bag nets, barriers with baskets, stationary nets, surrounding nets, seines, and rods and lures for catching salmon. Other persons may fish only with rods and lures, with the exception of those who have inherited the fishing rights. Such persons are, irrespective of their permanent place of residence, entitled to use barriers with bag nets, barriers with baskets, surrounding nets, stationary nets and seines. The Fishing Regulation further prescribes that only boats owned by local residents may be used for fishing.