CASE OF POSTI AND RAHKO v. FINLAND
Preliminary objection partially allowed (six months);Preliminary objections partially rejected (six months, non-exhaustion of domestic remedies);Violation of Art. 6-1;No violation of P1-1;No violation of Art. 14+P1-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
Nicolas Bratza
8. The applicants are fishermen operating in the coastal region of the Gulf of Bothnia on the basis of leases contracted with the State in 1989 and renewed in 1995 (for a further period ending in 1999) as well as in 2000 (for the period 2000-04). 9. By virtue of section 116, subsection 3, of the 1982 Fishing Act (kalastuslaki, lag om fiske 286/1982) the Ministry of Agriculture and Forestry may restrict fishing, inter alia, if this is deemed necessary in order to safeguard future fish stocks. Since 1986 the Ministry has imposed such restrictions by issuing decrees. The restrictions have varied to some degree as regards their timing, territorial scope, the fish species in question and the prohibited fishing gear. The restrictions may also extend to private waters. 10. In 1991 Mr Rahko and others challenged the lawfulness of Decree no. 684/1991 (“the 1991 Decree”), whereby fishing with certain gear had been prohibited, inter alia, in waters leased by him. In its judgment of 14 June 1991 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) declined to examine the merits of the appeal, considering that it lacked jurisdiction to consider the appellants' demands that the decree be revoked and the implementation thereof stayed. 11. By Decree no. 231/1994, which entered into force on 1 April 1994 (“the 1994 Decree”), the Ministry prohibited salmon fishing with certain gear during certain periods in the main basin of the Baltic Sea, in the Gulf of Bothnia and in the Simojoki River. The restrictions concerned the fishing of salmon between certain latitudes in the open sea and in coastal waters as well as in certain rivers and their estuaries, and extended to the fishing waters which the applicants were leasing from the State. The decree was later repealed and replaced by Decree no. 258/1996 (“the 1996 Decree”). The date of entry into force of the last-mentioned decree (29 April 1996) was specified by Decree no. 262/1996. In so far as the restriction concerned the applicants, it was maintained on substantially similar terms by Decree no. 266/1998, which entered into force on 16 April 1998 (“the 1998 Decree”). 12. On 25 November 1994, in response to a petition lodged by the applicants and others, the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) found no indication that the Ministry of Agriculture and Forestry had, in restricting the salmon fishing in certain waters, acted contrary to, inter alia, the Supreme Administrative Court's decision of 30 May 1980 (see paragraph 25 below) or otherwise incorrectly. 13. On 21 March 1995 the applicants and the State extended their respective leases up to the end of 1999. In so far as relevant to the present case, the leases referred back to the terms of the 1989 leases. 14. In a further decision of 26 May 1995, in response to a petition by others, the Ombudsman considered that, in issuing the 1994 Decree, the Ministry had not exceeded the powers which the Fishing Act had conferred upon it. After hearing submissions from the Ministry he concluded that the restrictions set forth in the decree had been justified in order to safeguard the fish stocks. In so far as the petitioners had complained of discriminatory treatment, the Ombudsman noted that the restrictions had differed from area to area in order to take into account the spawning routes of the salmon. He therefore accepted that there had been sufficient justification for the different timing of the prohibition in the respective water areas and for prohibiting different fishing gear in different areas. 15. Having reviewed the territorial scope of the restrictions, the Ombudsman considered, however, that the Ministry had not sufficiently taken into account the need for equal treatment of fishermen in different areas. He noted that the decree had been based on a report of the Working Group on salmon fishing in the open sea which the Ministry had appointed in 1993 (avomerilohityöryhmä, havslaxarbetsgruppen 1993:15). The Working Group had found certain fishing restrictions necessary so as to enable the salmon to reach the northernmost rivers and thereby to safeguard the fish stocks. It had been of the further opinion that in order to be non-discriminatory in character the restrictions should apply equally to fishing in the open sea and to coastal fishing (within village boundaries) within the whole of the areas located between certain latitudes. The Ombudsman noted that the terms of the decree had differed from the opinion of the Working Group, without any convincing reasons having been given therefor. The resultant differential treatment, without any generally acceptable grounds, of certain water owners and fishermen who had contracted leases, was therefore in violation of section 5 of the Constitution. 16. On 19 September 1996 the Lapland District for the Economic Development of the Countryside (maaseutuelinkeinopiiri, landsbygds-näringsdistrikt) granted Mr Posti 20,274 Finnish markkas (FIM) (3,405 euros (EUR)) and Mr Rahko FIM 32,464 (EUR 5,460) in compensation for losses suffered as a result of the fishing prohibition imposed by the 1996 Decree. Their average salmon catch per year during the periods in 1990-94 when a fishing prohibition had been in force was estimated at 2,150 kg and 3,848 kg respectively, at the price of FIM 15.93 per kg. The applicants' average catch of whitefish was estimated at 257 kg and 110 kg respectively, at the price of FIM 12.85 per kg. The overall compensation amounts were reduced by 15% in order to accommodate the awards within the funds foreseen in the State budget. An appeal lay to the Appellate Board for Countryside Commerce but the applicants did not avail themselves of that possibility. 17. On 2 May 2000 the applicants' respective leases were further prolonged until the end of 2004. The leases stipulated, inter alia, that salmon fishing was allowed within the leased areas “in so far as prescribed in the ... decree on salmon fishing or other provisions”. 18. According to the Constitution of 1919 (Suomen hallitusmuoto, Regeringsform för Finland 94/1919), 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 officer 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 (Law no. 438/1990). 19. Under the Constitution of 1919, 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 Constitution of 1919 was amended by Law 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 must give precedence 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 106-07). 20. 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). 21. According to the 1961 Water Act (vesilaki, vattenlag 264/1961), the holder of a building 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). 22. An application concerning a measure alleged to be in violation of the Water Act 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). 23. The general right to fish in public water areas and within the Finnish fishing zone does not include the right to fish for salmon and sea trout (see, for example, section 6, subsection 3, and section 12 of the Fishing Act). According to section 31 of the Fishing Act, provisions restricting fishing with certain gear may be introduced by decree. Restrictions on fishing within or outside the territorial waters of Finland may likewise 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 (section 116). The decrees of 1994, 1996 and 1998 which are of relevance to the present case (see paragraph 11 above) were issued on the basis of section 31. Non-compliance with a fishing restriction may be subject to prosecution (sections 107-09). 24. The provisions concerning the State's fishing waters and fishing rights can now be found in Chapter 5 of the Fishing Decree (no. 1116/1992). 25. On 28 December 1979 the Water Court of Northern Finland (Pohjois-Suomen vesioikeus, Norra Finlands vattendomstol) ordered that certain companies permitted to construct hydroelectric power stations in the Kemijoki River should annually restock its estuary with an average of 615,000 young salmon. This compensation order aimed at safeguarding the future salmon stocks in the waters affected by the construction. (The Kemijoki River flows into the Gulf of Bothnia at Kemi, not far from Tornio.) The Water Court's decision was upheld by the Supreme Administrative Court on 30 May 1980. 26. 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 Kemijoki River and its estuary had been engaged in fishing for 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. 27. The Supreme Court (korkein oikeus, högsta domstolen) found in its decision of 3 February 1983 (no. 1983 II 28) that the damage which a company had caused by setting up timber floating routes in the Simojoki River had caused the private owners of water areas to suffer losses which were to be compensated under the Water Act. The State, which traditionally had the right to fish for salmon in the river, had not used that right for decades, either by leasing out its waters or in any other way. 28. By a 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' claim for compensation for the alleged failure to restock the estuary of the Kemijoki 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 reduction in catches for which compensation had been sought. 29. In its precedent 2000:97 the Supreme Court examined an action for damages which a hydroelectric power company had brought against the State on the grounds that a contract between the two with a view to establishing three power plants along the Kyrönjoki River 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. 30. 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 building permit would be granted were specifically taken into account in the contract. The government is therefore under no obligation to compensate the company for the economic losses it suffered on account of 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 [Law no. 1139/1991 on the protection of the river]. ...”