CASE OF ALATULKKILA AND OTHERS v. FINLAND
No violation of Art. 6-1;No violation of P1-1;No violation of Art. 14+P1-1
10. The applicants, all Finnish nationals, are: (i.) Mr Paavo Alatulkkila, born in 1935 and resident in Ylitornio, both as the owner of the real properties Harju 15:124 and Töysä 16:43 in Alkkula and as Chairman of the Alkkula fishing association; (ii.) Mr Toivo Honkaniemi, born in 1954 and resident in Ylitornio, both as the owner of the real property Mattila 2:5 in Armassaari and as Chairman of the Armassaari fishing association; (iii.) Mr Aatos Korpi, born in 1957 and resident in Kainuunkylä, both as owner of the real property Marjala 19:43 in Kainuunkylä and as Chairman of the Kainuunkylä fishing association; (iv.) Mr Lauri Rousu, born in 1945 and resident in Karunki, both as owner of the real properties Koivuranta 9:33 and Kaivosoja 27:53 in Karunki and as Secretary to the Karunki fishing association; (v.) Mr Matti Kanninen, born in 1934 and resident in Kukkola, both as owner of the real property Niskala 15:42 in Kukkola and as Chairman of the Siikala whitefish fishing association; (vi.) Mr Kaarlo Lampinen, born in 1934 and resident in Tornio, both as owner of the real property Kaishannu 25:33 and as Chairman of the Nuotioranta fishing association; (vii.) Mr Pekka Mäkinen, born in 1954 and resident in Tornio, both as owner of the real properties Luotola 1:47, Hanhisaari 1:51, Viheriälä 1:79 and Paavola 1:103 in Pirkkiö and as Chairman of the Pirkkiö association for joint ownership; (viii.) Mr Timo Kanniainen, born in 1949 and resident in Tornio, both as owner of the real property Kanniainen 8:21 and as Chairman of the Alaraumo association for joint ownership; (ix.) Mr Ville Alakuijala, born in 1941 and resident in Tornio, both as owner of the real property Rantalahti 29:36 in Laivaniemi and as Chairman of the Laivaniemi association for joint ownership; (x.) Mr Antti Stark, born in 1944 and resident in Lautiosaari, both as owner of the real property Stark 33:14 in Kaakamo and as Chairman of the Kaakamo fishing association and the Kaakamo association for joint ownership. The applicants are owners of water areas, or are fishermen, in the Gulf of Bothnia. They are also elected representatives of their respective local fishing co-operative (kalastuskunta, fiskelag) or association for joint ownership (jakokunta, osakaskunta; samfällighet, delägarlag). 11. By decision of 26 April 1996 and in application of the Fishing Regulation (kalastussääntö, fiskestadgan) for the Tornio River (Torniojoki/Torne älv) Area, the Finnish-Swedish Frontier Rivers Commission (suomalais-ruotsalainen rajajokikomissio, finsk-svenska gränsälvskommissionen) prohibited inter alia all fishing of salmon and sea trout in the relevant waters in the open sea during 1996 and 1997. Fishing other species in the relevant sea area with fixed equipment was prohibited during the periods 1 May-5 July 1996 and 1 May-5 July 1997. The Commission further prohibited all fishing of salmon and sea trout in the river area, except for fishing with hand-held equipment which was authorised on certain days of the week during the period 1 May-15 August 1996 and 1 May-15 August 1997. With some minor exceptions, all fishing in the river area was prohibited during the periods 15 September-15 November 1996 and 15 September-15 November 1997. 12. The Commission's decision was announced publicly on 29 April 1996. 13. The Fishing Regulation was issued following the enactment of Act no. 902/1971 incorporating the Finnish-Swedish Frontier Rivers Agreement (as far as Finland was concerned). A subsequent agreement to amend Annex B of the Agreement was incorporated into Finnish law by Decree no. 67/1987, entitling the Frontier Rivers Commission to decide on the protection of a particular fish species or on the prohibition or restriction of fishing with equipment which had proved harmful for the species either in the entire fishing area or in a specific part thereof, provided such a measure was deemed necessary for the preservation of the species in question for a maximum period of two years at a time (section 22, subsection 2 of the Regulation). 14. The applicants indicated at paragraph 10(x.) above received FIM 14,183.75 (EUR 2,385.54) in compensation paid out of the supplementary State budget for 1996 with a view to covering economic losses which they suffered during the 1996 fishing season due to the restrictions imposed by the Frontier Rivers Commission. The relevant Government decision (no. 328/1996) was applicable to professional fishermen fishing in the sea area adjacent to the Tornio river. 15. Meanwhile, on 13 June 1996 the Supreme Court of Sweden (högsta domstolen) dismissed charges concerning fishing in violation of the prohibition which the Frontier Rivers Commission had imposed on fishing with certain equipment. The Supreme Court held that the Commission's order issued by virtue of section 22, subsection 2 of the Fishing Regulation could not be applied, since the Agreement and the Regulation had not been brought into force and implemented as required by the Swedish Constitution, namely by an Act of Parliament (decision No. DB 118; NJA 1996 p. 370). 16. At the beginning of 1997 Finland and Sweden declared that certain provisions of the Fishing Regulation, including section 22, subsection 2 of the Regulation, should not be applied. 17. Thereafter Finland enacted the Act on Fishing in the Tornio River Fishing Area (494/1997) which entered into force on 5 June 1997. The Act entitles the Ministry of Agriculture and Forestry to issue rules concerning fishing on the Finnish side of the Tornio river. A decision to that effect (496/1997) entered into force at the same time as the Act. The decision was essentially identical to the Frontier Rivers Commission's decision of 26 April 1996. In 1998 the Ministry issued a new decision (319/1998). 18. Meanwhile, on 5 August 1997 the Rovaniemi Court of Appeal (Finland) found that the sections of the Fishing Regulation concerning prohibited fishing equipment and applicable sanctions fell within the scope of the legislation. As Annex B (containing the Fishing Regulation) had been brought into force by a Decree, the Court of Appeal decided not to apply certain sections of the Regulation by virtue of section 92, subsection 2 of the Constitution Act of Finland (Suomen hallitusmuoto, Regeringsformen för Finland, 94/1919) which was in force at the material time (decisions nos. 625-628). 19. On 31 December 1998 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) dismissed a request lodged by, among others, the associations represented by applicants listed at paragraph 10(vii.)-(x.) above, and whereby they sought to have the Frontier Rivers Commission's decision of 26 April 1996 annulled. The associations had argued that the decision was contrary to the Constitution and ordinary law (including Article 6 of the Convention and Article 1 of Protocol No. 1 as incorporated). Furthermore, the Commission had allegedly failed to hear the associations in a matter affecting the civil rights both of individual owners of fishing waters and of fishermen entitled to the continued enjoyment of the compensation in natura which had been awarded by the Water Court of Northern Finland in 1979. The applicants did not request an oral hearing before the Supreme Administrative Court. 20. In its submissions to the Supreme Administrative Court the Frontier Rivers Commission had stated, inter alia, that it was hardly for an organ established by a bilateral agreement to examine whether the Fishing Regulation contravened the Finnish Constitution. The fishing restriction addressed in the annulment request had been imposed of the Rivers Commission's own motion after it had afforded the known parties an opportunity to comment in writing on the fishing restrictions proposed by the Finnish and the Swedish expert whom the Rivers Commission was regularly consulting. According to the dispatching list, all those who had sought an annulment – except for the Laivaniemi association for joint ownership (the applicants at paragraph 10(ix.) above) – had been so consulted and had also commented on the proposal. The nature of the matter had not been such that an oral hearing could have been expected to further the examination thereof. The Rivers Commission further opined that the prohibition in question had only concerned salmon and trout and had been consistent with the restriction imposed simultaneously in respect of the Swedish coastal waters. Moreover, as the Commission's decision of 26 April 1996 was to be considered administrative in nature, the Fishing Agreement did not provide for any ordinary appeal against it, nor for any extraordinary remedy. 21. The Supreme Administrative Court had also obtained opinions on the annulment request from the Ministry for Foreign Affairs and the Ministry for Agriculture and Forestry. The applicants had commented on the aforementioned three opinions. 22. In its decision the Supreme Administrative Court held: "The Frontier Rivers Agreement between Finland and Sweden, annex B of it being the Fishing Regulation for the Tornio River fishing area, has been incorporated by law no 902/1971. Article 8 of chapter 1 of the Frontier Rivers Agreement ordains that, unless there are other special provisions in the Agreement, the applicable law in each State is the law in force in that State. With regard to the above, the national Fishing Act is applicable where the Frontier Rivers Agreement does not contain special provisions on fishing. According to paragraph 116, subsection 1 of the Fishing Act, the Act and the Decree issued on the basis of the Act are applied also to waters located at the frontier of a State, unless there are provisions stating otherwise that are based on a contract with another State. Paragraph 116, subsection 2 ordains, that when an international agreement binding on Finland or the preservation of fish stocks so requires, a decree can be used to bring into force provisions regarding the fishing or catching of seafood by Finnish nationals outside Finnish waters. On the basis of subsection 3 of the same paragraph the decree may also, if an agreement referred to in subsection 2 so requires or for another reason, contain provisions regarding restrictions on catching within or outside Finnish waters. A subsection 2 has been added to paragraph 22 of the Fishing Regulation for the Tornio River area on the basis of an agreement with Sweden, incorporated with decree no 667/1987, amending annex B of the Frontier Rivers Agreement. According to subsection 2, the Frontier Rivers Commission may protect by law a species of fish or limit the use of a trap that has proven harmful, either for the entire fishing area or a part of it, if this is necessary for preserving the species in question, for at most two years at a time. With regard to the above-mentioned paragraph 116 of the Fishing Act, the said addition of subsection 2 to paragraph 2 of the Fishing Regulation could be brought into force with a decree. It appears from the documents that a reply to the proposal by the Frontier Rivers Commission concerning fishing restrictions for 1996 and 1997 was submitted in writing on 12 April 1996 by inter alia the Kaakamo fishing association, the Alaraumo fishing association, the Laivaniemi fishing association, which on the basis of paragraph 6 of the Common Land Act acts as legal representative in matters concerning the Laivaniemi area and the common special prerogative, as well as by the Pirkkiö fishing association and certain other associations. Considering the fact that the decision of the Frontier Rivers Commission was issued on 26 April 1996, all the applicants for annulment have been aware of the pending project and have had the opportunity to make known their opinions on the matter before it was decided. Chapter 2, paragraph 22, subsection 2 of the Water Act ordains, that if building in the waterways causes the fish or fishing apparent harm, the permit-holder should be charged with the duty to take action to prevent or reduce damage to the fish and fishing as well as, if needed, to monitor the results of his action in the water area where damage has also been done (fish preservation duty). Such action may consist, according to the nature of the building and its effects, inter alia of planting fish stocks. According to chapter 10, paragraph 24a subsection 3 the same duty may be imposed on the holder of a permit. The purpose of the above-mentioned fish preservation duty is not primarily to ensure certain amounts of catch, but to ensure the preservation of stocks of fish, which has also been the aim of the decision by the Frontier Rivers Commission concerning the prohibition on the fishing of salmon and trout. The decision of the Frontier Rivers Commission does not invalidate the aim of restocking obligations in the way presented in the annulment application. The purpose of the decision is to strengthen fish stocks and thus ensure fishing opportunities in the future. The decision of the Frontier Rivers Commission cannot on the grounds specified in the annulment application be held to be contrary to Article 6 of the European Convention of Human Rights or paragraphs 5 and 12 of the 1919 Constitution. On the basis of the above, the decision sought to be annulled is not based on manifestly incorrect application of the law or a (procedural) error that might have fundamentally affected the decision. Neither does the application contain any other annulment ground mentioned in paragraph 63 of the Administrative Procedure Act. " 23. Informal negotiations between Finland and Sweden on further amendments to the Agreement began in June 1999. 24. In a judgment of 6 April 2001 the Swedish Supreme Court ordered the State to compensate fishermen for economic losses suffered as a result of the fishing restrictions imposed in the Tornio river area on the basis of the Frontier Rivers Agreement at the time when it had been implemented by a Government Decree delegating to the Rivers Commission, without a basis in an Act of Parliament, the power to restrict fishing (case no. T 3310-00). 25. According to the 1919 Constitution, as in force up to 1 March 2000, everyone was to be equal before the law and his or her property was to be protected (sections 5 and 6). A judge or other official was under an obligation not to apply a provision in a Decree which conflicted with constitutional or other laws 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 (438/1990). 26. Under the 1919 Constitution anyone who had suffered an infringement of his rights, or damage, through an illegal act or negligence on the part of a civil servant was entitled to demand that the civil servant be convicted and held liable for damages, or to report him for the purpose of having charges brought (section 93, subsection 2). A similar provision appears in section 118, subsection 3, of the Constitution of 2000 (Suomen perustuslaki, Finlands grundlag 731/1999). Chapter 2 (“Basic rights and liberties”) of the 1919 Constitution was amended by Act no. 969/1995 which entered into force on 1 August 1995. The new Chapter 2 includes, inter alia, the right to property (section 12; as from 1 March 2000 section 15) and has been incorporated as such into the Constitution of 2000. Under the current Constitution a court of law shall give primacy to a provision therein, if the application of a provision of ordinary law would be in evident conflict with the Constitution. 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 (sections 106-107). 27. Under the Tort Liability Act (vahingonkorvauslaki, skadeståndslag 412/1974) proceedings for damages may be initiated against the State on the basis of its vicarious liability for mistakes or omissions in the exercise of public authority. The State's vicarious liability comes into play only if the responsible official fails in his or her duty to take a measure or perform a task that could reasonably be required in the light of the nature and purpose of the activity in question (Chapters 3 and 4). The claim for damages must be made within ten years from the date when the damage occurred, unless a shorter limitation period applies (Chapter 7, section 2). According to section 63, subsection 1 of the Administrative Judicial Procedure Act, a decision may be annulled if a procedural error which may have had a relevant effect on the decision has been committed, if the decision is based on a manifestly erroneous application of law or on an error which may have had a fundamental effect on the decision, or if new evidence which could have had a relevant effect on the decision appears and it is not the fault of the applicant that the evidence was not presented in time. 28. According to the Water Act, the holder of a construction permit relating to a water area may, if the construction would clearly damage the fish stocks, be ordered to restock the area and take other necessary measures in order to safeguard the fish stocks in the affected waters (chapter 2, section 22, subsection 1). 29. A claim concerning a measure alleged to be in violation of the Water Act and whereby it is sought to have such a measure prohibited, the previous conditions re-established or damage compensated, may be lodged with the competent water court (chapter 16, section 33, subsection 1). 30. The general right to fish in public water areas and within the Finnish fishing zone does not include the right to fish salmon and sea trout (see, for example, section 6, subsection 3, and section 12 of the Fishing Act). Restrictions on fishing within or outside the territorial waters of Finland may be imposed by decree for the purpose of fulfilling obligations set in an international agreement binding on Finland, for safeguarding fish stocks or for any other comparable special reason. Domestic law applies to watercourses located in frontier areas, unless otherwise agreed on in an agreement between Finland and another State (section 116 of the Fishing Act). Non-compliance with a fishing restriction may be subject to prosecution (sections 107-109). 31. A State Committee Report concerning fishing legislation (no. 1977:47) suggested, in 1977, that limited rights in rem be abolished. However, in the Government Bill for a new Fishing Act (no. 214/1980), it was suggested that these rights of the State be maintained as being relevant for the protection of the salmon stocks. The provisions concerning the State's fishing waters and fishing rights can now be found in chapter 5 of the Fishing Decree (1116/1982). 32. In a judgment of 9 June 1982 (no. 33/1982) the Supreme Water Court (vesiylioikeus, vattenöverdomstolen) found that since time immemorial the owners of fishing waters in the Kemi river (Kemijoki) and its estuary had been engaged in the fishing of salmon and sea trout without any state interference and with its de facto consent. Compensation for the loss of fishing benefits resulting from permitted construction should therefore be awarded to all individuals who had been engaged in such fishing in the area, provided they had been using legal fishing gear. The Supreme Water Court further found that the State too was entitled to compensation for the permanent loss of the use of its limited right in rem in respect of the fishing waters. In addition, compensation was awarded to the State for its loss of income from leasing out those waters. 33. The Supreme Court (korkein oikeus, högsta domstolen) found in its decision of 3 February 1983 (no. 1983 II 29) that the damage which a company had caused by setting up timber floating routes in the Simo river (Simojoki, Sim älv) had engendered effects on private owners of water areas, causing them losses which were to be compensated by virtue of the Water Act. The State, which traditionally had the right to fish salmon in the river, had not used that right for decades, either by leasing out its waters or in any other way. 34. By judgment of 7 September 1995 (no. 133/1995) the Supreme Water Court upheld a decision of the Water Court of Northern Finland of 14 April 1994 which had dismissed various fishery associations' claims for compensation for the allegedly failed restocking of the estuary of the Kemi river as ordered on 28 December 1979. The Water Court had found that the defendants had complied with the obligations imposed on them in 1979 for the purpose of safeguarding the relevant fish stocks. In such circumstances the defendants could not be held responsible for the diminution in catches for which compensation had been sought. 35. In its precedent no. 2000:97 the Supreme Court examined an action for damages which a hydro-electric power company had brought against the State on the ground that a contract between the two with a view to establishing three power plants along the Kyrö river (Kyrönjoki, Kyro älv) could not be implemented in full, as Parliament had enacted legislation for the protection of the river (1139/1991). The company had sought compensation for wasted planning costs in so far as those had exceeded the amount paid out following the assessment procedure provided for in the Act on the Redemption of Immovable Property and Special Rights (603/1977). The Supreme Court declined to examine this part of the claim as the costs to be compensated had already been finally determined in the procedure under the 1977 Act. 36. In so far as the company had claimed compensation for projected profit and related losses, the Supreme Court dismissed the action after having examined its merits. The Supreme Court reasoned, inter alia, as follows: “... The contract did not bind the legislative arm. Possible legislative changes and the possibility that no construction permit would be granted were specifically taken into account in the contract. The Government is therefore under no obligation to compensate for the economic losses suffered by the company due to the fact that the contract for the construction of the power plant was never implemented. The company is therefore not entitled to any compensation ... other than that stipulated in the [specific Act 1139/1991 on the protection of the river]. ...” An account of domestic law can also be found in the Court's judgment in Posti and Rahko v. Finland (no. 27824/95, §§ 18-30, 24 September 2002).