AARNIOSALO AND OTHERS v. FINLAND
Inadmissible
Nicolas Bratza
The applicants are Ms A. Aarniosalo, Mr P. Aarniosalo, Ms H.A. Liljeroos, Ms H.M. Liljeroos, Mr R. Liljeroos, Ms S. Nurminen, Mr M. Nurminen, Mr R.T.J. Nurminen and Mr R.R.K. Nurminen. They are Finnish nationals, born in 1930, 1933, 1928, 1927, 1924, 1915, 1979, 1947 and 1940, respectively, and living in the Island of Onkisalo in Luhanka. They are represented before the Court by Mr T. Kivilaakso, a lawyer practising in Espoo. The facts of the case, as submitted by the parties, may be summarised as follows. In the 1980’s construction work was started in order to build a road to the Island of Onkisalo, which has no connection to the mainland. The part of the road (the Kattilaniemi road) which is situated on the mainland, and in the construction of which the applicants also participated, was finished at the end of the 1980’s. On 16 December 1991, the Water Court (vesioikeus, vattenrätt) of Eastern Finland entitled the applicants to build a bridge from Kattilaniemi to a place called Kiviniemi on the Island of Onkisalo as it was found to be the most advantageous place to build the road with a view to connecting with the network of public roads. The County Administrative Board (lääninhallitus, länsstyrelsen) of the Central Finland, represented by Ms P.H., appealed against the Water Court’s decision to the Supreme Water Court (vesiylioikeus, vattenöverdomstolen) which, on 1 February 1993, upheld the Water Court’s decision. On 22 November 1993, the proceedings concerning the construction of the private road to Onkisalo concluded and established the right to the road of those who owned property in the area in which the road was to be built, excluding the owners of such property which was used only for leisure activities and who had objected to the road plan. Three private persons as well as the County Administrative Board appealed against the decision in the road construction proceedings to the Land Court (maaoikeus, jorddomstolen), claiming, inter alia, that the road would, if built as planned, destroy conservable nature values in the area. The Land Court decided, in its decision of 31 August 1994, not to examine the appeals lodged by the County Administrative Board and one of the private individuals as it found that they were not parties to the road construction proceedings in question. The rest of the appeals were rejected as the Land Court found, inter alia, that there was an important public interest to build a connecting road from the island to the mainland. Some of the private individuals whose appeals had been rejected by the Land Court applied to the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal. The Supreme Court granted them leave to appeal on 9 May 1995. On 6 March 1996, the Supreme Court rejected the relevant appeals and upheld the Land Court’s decision. Meanwhile, on 8 September 1994, to prevent the enforcement of the Land Court decision, the County Administrative Board of Central Finland had issued an interim order prohibiting works in the area, for the period of two years, for the purpose of protecting the habitat of the white-backed woodpecker. The County Administrative Board’s decision was signed by, inter alia, Ms P.H. who had represented the County Administrative Board in the appeal proceedings against the Water Court’s decision. The road construction work which had already started was thus discontinued. One of the applicants and the administrative committee for the maintenance of forest roads in Onkisalo appealed against the order to the Supreme Administrative Court on the grounds that an error had allegedly taken place in the hearing of the parties and that the construction of the road would not endanger the protection of the white-backed woodpecker. On 9 January 1995, the Supreme Administrative Court found that no error had taken place in the hearing of the parties, noting that trees had already been cut down. Insofar as the decision depended on the assessment of the appropriateness of the decision, it transferred the issue to the Council of State. Following the transfer, the Ministry for Environment (ympäristöministeriö, miljöministeriet) found, on 20 January 1995, that there was no reason to change the decision of the County Administrative Board. The Ministry’s decision was appealed to the Supreme Administrative Court, inter alia on grounds that the Minister for Environment, Ms S. Pietikäinen, was biased as she had already participated in the decision-making before the County Administrative Board in so far as the prohibition was concerned. On 26 May 1995, the Supreme Administrative Court rejected the appeal. The applicants’ request to reopen the proceedings was refused by the Supreme Administrative Court on 19 August 1996. As the owner of the Kiviniemi estate had refused to sell her real estate to the State, the Council of State granted, on 19 June 1996, permission for the expropriation of the Kiviniemi estate with a view to protecting the white-backed woodpecker even though the municipality of Luhanka had, in its statement of 15 April 1996, objected to the expropriation, taking the view that the prohibition against building the Onkisalo road would render the relevant part of the municipality more and more isolated and deserted as living there would become too difficult and unsafe. According to the Municipal Board, the expropriation would violate the general sense of justice if the interests of a species of a bird were preferred to those of the inhabitants of the municipality. It was also noted in the statement that the Supreme Court had already decided to allow the road to be constructed and that a contrary decision would be surprising and dubious. The applicants appealed to the Supreme Administrative Court which, on 31 December 1997, dismissed the applicants’ appeal and upheld the expropriation. It held that the land was part of a larger area which was, due to its natural features, a suitable habitat for the white-backed woodpecker and that observations of the species had been made there. Thus the area was, with respect to the protection of the white-backed woodpecker, of such importance that it could be defined as a special protection area within the meaning of section 1, subsection 2 of the 1923 Nature Conservation Act. On 20 April 2004, the applicants asked for the annulment of this decision. The matter is pending. By letter dated 18 June 1999, the administrative committee of Onkisalo requested the Council of State to lift the expropriation insofar as the right to the road was concerned. By reply dated 24 September 1999, the Ministry stated that it was impossible to establish a right to a road in the area, as it was so small that that no measures changing the nature of the forest could be allowed without endangering the existence of the bird which had been sighted in the area since 1989. The applicants’ request to reopen the proceedings was refused by the Supreme Administrative Court on 14 July 2000. The expropriation proceedings concerning the Kiviniemi estate were completed on 20 October 2000. The area concerned 8.5 hectares and was delimited so that, as a biotope, it covered the habitat of the white-backed woodpecker only. The compensation paid to Ms Liljeroos amounted to FIM 715,549 with costs and expenses of FIM 15,649.75. On 1 March 2001, the executors of the expropriation of the Kiviniemi estate decided, after a vote, to expropriate the right to the road attached to the estate in accordance with the Ministry decision and then to establish a new right to a road for the same area to which the earlier right to a road was attached. In his dissenting opinion, the engineer considered that a right to the road could not be established for the same area as there was an alternative. On 29 March 2001, the Environmental Authority of Central Finland lodged an appeal with the Kuopio District Court (acting as Land Court), which on 14 August 2001 upheld the decision of the executors. On 24 October 2001, the Supreme Court suspended the execution of the decision of the District Court. On 7 October 2002 the Supreme Court reversed the judgment of the District Court and returned the matter to the executors stating that the right to a road could not be re-established on an area which under a decision of the Council of State had been expropriated. The executors were to take up the matter without delay in order to establish another route. On 20 April 2005, the applicants appealed for the annulment of the Supreme Court’s judgment. The matter is pending. Meanwhile, the inhabitants of the Island of Onkisalo continued to live on their island without any connection to the mainland during time when there was no open water or the ice was too thin to build an ice-road from the island to the mainland. Such a period could last for weeks each autumn and spring. In the summer time, when the water areas were not frozen, boats were used, for example, for delivering the daily mail and groceries as well as the medication needed by the elderly islanders. There was no medical care nor fire and rescue service available to the islanders. The closest shop was twenty-five (25) kilometres away. The applicants referred to a number of incidents as illustrating the risk to human life arising from the lack of proper connection to the mainland. A mailman was drowned in the lake when delivering the mail to the Island of Onkisalo and a father, forced to leave the island by foot to get medicine for his sick child, was also drowned in the lake as the ice was too thin to carry him. On 25 December 1998, a local cabdriver risked his life by driving his cab to the island to fetch an islander to the hospital even though the ice was thin at the time. Allegedly, the islander in question would have died in a matter of hours if he had not been taken to hospital in time. It has also happened that a fire brigade was forced to watch from the other side of the lake when a barn was burned down by lightning as they could not reach the island with their equipment. On 12 October 1999 a question concerning the justification of the prohibition in terms of the cost of human lives was put in the Parliament by a Member of Parliament, Mr L. Oinonen. The question was answered by the Ministry for Environment at the time, Ms S.Hassi, on 5 November 1999. She referred to the decisions given by the Supreme Administrative Court and found that the road could and should be constructed to the island but through another estate than the Kiviniemi estate. She also noted that the loss to the islanders would be compensated for in accordance with the Act on Expropriation (lunastuslaki, inlösningslag). Mr L. Oinonen and another Member of Parliament, Mr S. Lahtela, repeated the question in Parliament on 9 February 2000, requesting that the Minister for Environment would herself visit the island. The question has been left unanswered. The applicants also sent an invitation to the Minister for Environment to visit the island. The applicants in addition twice approached the Chancellor of Justice, who on 19 January 1995 and 12 April 1996 rendered decisions rejecting their complaints.