ITEMID: 001-69936
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ALATULKKILA AND OTHERS v. FINLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;No violation of P1-1;No violation of Art. 14+P1-1
TEXT: 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).
NON_VIOLATED_ARTICLES: 14
6
P1
NON_VIOLATED_PARAGRAPHS: 6-1
P1-1


ITEMID: 001-58292
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF IMMOBILIARE SAFFI v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Luzius Wildhaber
TEXT: 8. I.B., a construction company, was the owner of an apartment in Livorno, which it had let to L.B.
9. In a registered letter of 20 April 1983, it informed the tenant that it intended to terminate the lease on expiry of the term on 31 December 1983 and asked him to vacate the premises by that date.
10. In November 1983 I.B. served a notice to quit (disdetta) on the tenant, but he refused to leave.
11. In a writ served on the tenant in November 1983, I.B. reiterated its intention to terminate the lease and summoned the tenant to appear before the Livorno magistrate (pretore).
12. On 21 November 1983 the magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 30 September 1984. That decision was made enforceable on 7 December 1983.
13. On 30 May 1985 I.B. served notice (precetto) on the tenant requiring him to vacate the premises. On 26 September 1985 it served notice on the tenant informing him that the order for possession would be enforced by a bailiff (significazione di sfratto) on 19 November 1985. The bailiff made several unsuccessful attempts to enforce the order (on 19 November 1985, 28 March, 30 September and 17 December 1986, 4 April and 21 December 1987).
14. Immobiliare Saffi became the owner of the apartment in 1988 following a corporate merger with, inter alia, I.B. It pursued the enforcement proceedings.
15. Between 15 December 1988 and 9 January 1996 the bailiff made eleven attempts to recover possession (on 15 December 1988, 9 June and 30 October 1989, 30 October 1990, 17 February and 17 May 1991, 18 May 1992, 15 May 1993, 8 February 1994, 13 January 1995 and 9 January 1996). Each attempt proved unsuccessful, as, under the statutory provisions providing for the suspension or staggering of evictions, the applicant company was not entitled to police assistance.
16. By March 1989, when Law no. 61 of 21 February 1989 came into force providing for the staggering of the enforcement of orders for possession, requests for police assistance had been made to the Prefect of Livorno in 1,186 cases: 354 for arrears of rent, 56 because the owner required the premises for his own use, 55 for other reasons, and 722 (the applicant company’s case included) because the lease had expired.
The Prefect decreed on 16 May 1989 and 19 February 1990 that decisions on the provision of police assistance would be taken by reference to the criteria laid down in Law no. 61/89, namely the order of priority established by the legislature, the date of the request for assistance, any special features of the individual case and the requirement that 30% of the total number of orders for possession outstanding should be enforced each month.
17. In reply to a question from the Registry, counsel for the applicant company informed the Court on 30 April 1999 that the apartment had been repossessed on 11 April 1996, following the death of the tenant.
18. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession.
19. The last statutory extension to all but a small number of specifically excepted categories of subsisting leases was introduced by Law no. 392 of 27 July 1978 (“Law no. 392/78”) and was effective until 31 December 1982, 30 June 1983 or 31 December 1983, depending on the date of signature of the lease.
20. Under section 56 of Law no. 392/78, it is for the magistrate to fix the date for enforcement of the order for possession, having regard to both the tenant and the landlord’s circumstances and the grounds on which the lease was terminated. Enforcement cannot be deferred for more than six, or exceptionally twelve, months.
If the tenant fails to vacate the premises within the time allowed by the magistrate the landlord may issue enforcement proceedings.
21. Orders are made enforceable by the appending of an instruction by the magistrate “to any bailiff whose services are requested, any person empowered to enforce the order, State Counsel, and any police officer to assist in the enforcement of this order when required by law”.
22. By Articles 608 and 513 of the Code of Civil Procedure, the bailiff’s task is to enjoin the tenant to vacate the premises and he may to that end seek police assistance “whenever necessary”. The bailiff reinstates the owner in his property and returns the keys to him.
The police act as officers of the court.
23. Numerous provisions have established rules for the suspension of the enforcement of orders for possession (ordinanze di sfratto).
A first suspension was introduced by Legislative Decree no. 795 of 1 December 1984. Those provisions were incorporated in Legislative Decree no. 12 of 7 February 1985, which became Law no. 118/85 and covered the period from 1 December 1984 to 30 June 1985. That legislation also provided for the staggered resumption of evictions on 1 July, 30 September and 30 November 1985 and 31 January 1986, depending on when the decision that the lease had been terminated became enforceable.
Section 1(3) of Law no. 118/85 laid down that enforcement would not be suspended if repossession had been ordered on the grounds of rent arrears. Similarly, no suspension could be ordered in certain cases, for example where the landlord required the property for his own use or for the use of his spouse, children or ascendants (Article 3, first sub-paragraph, number 2, of Legislative Decree no. 629 of 15 December 1979, which became Law no. 25 of 15 February 1980 (“Law no. 25/80”)).
24. A second suspension was introduced by Legislative Decree no. 708 of 29 October 1986, which became Law no. 899 of 23 December 1986 (“Law no. 899/86”). It covered the period from 29 October 1986 to 31 March 1987 and included the same exceptions as the preceding legislation.
Law no. 899/86 also established that the prefect, after consulting a committee that included representatives of both tenants and landlords (commissione provinciale), was responsible for determining the criteria for authorising police assistance in evicting tenants who refused to surrender possession.
Section 3(5 bis) of Law no. 899/86 also provided that the eviction of any tenant entitled to subsidised housing was in all cases suspended until 31 December 1987.
25. A third suspension was introduced by Legislative Decree no. 26 of 8 February 1988, which became Law no. 108 of 8 April 1988. It initially covered the period from 8 February 1988 to 30 September 1988, which was subsequently extended until 31 December 1988.
26. A fourth suspension was introduced by Legislative Decree no. 551 of 30 December 1988, which became Law no. 61 of 21 February 1989 (“Law no. 61/89”), and covered the period up to 30 April 1989.
27. All the aforementioned laws and decrees contained additional provisions relating to the financing of subsidised housing and to housing benefits.
28. Law no. 61/89 also provided that as from 1 May 1989 requests for police assistance in enforcing orders for possession would be dealt with in order of priority, as determined according to criteria established by the prefects after consultation with statutory prefectoral committees, whose members included the prefect, the mayor and representatives of both tenants and landlords. Among the cases having priority were those in which it was not possible for enforcement to be suspended. In particular, priority was given to landlords urgently requiring premises as accommodation for themselves, their spouse, children or ascendants. Landlords seeking priority treatment were required to make a statutory declaration.
As regards evictions in all other cases, provision was made for police assistance to be staggered over a maximum of forty-eight months from 1 January 1990.
29. The system whereby the enforcement of orders for possession was to be staggered was extended by a series of legislative decrees including the following: from 31 December 1993 to 31 December 1995 (Legislative Decree no. 330/93); from 31 December 1995 to 29 February 1996 (Legislative Decree no. 546/95); from 29 February 1996 to 26 April 1996 (Legislative Decree no. 81/96); from 26 April 1996 to 25 June 1996 (Legislative Decree no. 217/96); and from then to 31 December 1996 (Legislative Decree no. 335/96).
30. Law no. 566 of 4 November 1996 ratified a series of legislative decrees that had not been enacted as laws. It provided that police assistance would be staggered until 30 June 1997.
31. That arrangement was extended until 31 January 1998 by Legislative Decree no. 172/1997. In addition, Article 1 bis of that legislative decree added to the prefects’ existing power to lay down general criteria for determining whether police assistance would be made available the power to decide precisely when and how police resources would be allocated in each individual case, without having to deal with requests for police assistance in the chronological order in which they were made by the bailiffs. Consequently, the prefectoral committees would usually only be able to express an opinion on the general criteria to be followed in determining whether police assistance was to be given, not on whether assistance should in fact be given in a particular case.
32. By Legislative Decree no. 7/1998 the date for the resumption of evictions was postponed to 31 October 1998.
33. In a judgment (no. 321) of 24 July 1998, the Constitutional Court held that Article 1 bis of Legislative Decree no. 172/1997 was contrary to Article 24 of the Italian Constitution guaranteeing inter alia the right of access to a court, as it made the decision regarding the date of enforcement of an order for possession – which is set in advance by the magistrate in accordance with section 56 of Law no. 392/78 – subject to review by a prefect. The Constitutional Court said that the role of the prefects should be limited to cooperating – as officers of the court – in the enforcement of judicial orders for possession. The fact that their powers had been enlarged to include individual cases had led to substantial delays in the enforcement of court orders. That was contrary to every individual’s entitlement to have his rights decided by a court. The Constitutional Court stressed that it was unacceptable for court orders to be undermined or affected by administrative decisions.
34. Recently, Legislative Decree no. 375 of 2 November 1998 delayed the resumption of evictions to 28 February 1999.
35. Section 6 of Law no. 431 of 9 December 1998 on the rules governing lease agreements and the vacation of residential premises provides that where an order for possession has already been made and is enforceable when that law comes into force, the landlord and tenant have six months – during which period enforcement of the order is suspended – in which to decide whether to enter into a new lease. Should no agreement be forthcoming within that period, the tenant may, within thirty days thereafter, request a magistrate to set a fresh date for the enforcement of the order. The magistrate’s decision regarding the date of enforcement incorporates permission for the bailiff to seek police assistance to enforce the order.
The date of eviction may be deferred for up to a maximum of eighteen months if the tenant is aged 65 or over, if he has five or more dependent children, if he is on the list of transferable personnel (liste di mobilità) kept by businesses, if he is in receipt of unemployment benefit or low-paid-worker benefit, if he has been formally allocated welfare housing, if he has purchased a house that is under construction or if he owns property in respect of which repossession proceedings are pending. The same rule applies if the tenant or a member of his family who has been living with him for at least six months is handicapped or terminally ill.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98923
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF TCHITCHINADZE v. GEORGIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Just satisfaction partially reserved;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1952 and currently lives in Belgorod, in the Russian Federation.
6. He owned a house located at 54 Mazniashvili Street in Batumi, in the Ajarian Autonomous Republic (“the AAR”), Georgia. The house and its adjacent premises were located on a plot of land of some 284 square meters.
7. Under a contract of 8 April 1994 (“the contract of sale”), the applicant ceded to Mr G., by then the Ajarian Deputy Minister of the Interior, half of his house (“the Mazniashvili estate”) for the price of 150,000,000 coupons (the provisional Georgian currency introduced at the beginning of the 1990s for purposes of monetary reform). According to the case file, the purchasing power of that sum corresponded to some 300 euros (EUR) at the material time. The contract of sale was certified by a notary. As further disclosed by a written statement of a witness to that transaction, after the signing of the contract Mr G. gave the applicant 3,000 United States dollars (EUR 2,199) in cash. Shortly after the sale of the Mazniashvili estate, the applicant left Batumi and settled, together with his family, in the Russian Federation. Allegedly, a reason for that hasty departure was Mr G.'s continuous pressure on the applicant to cede the remaining part of the house.
8. As a result of tensions between the central and local authorities (see The Georgian Labour Party v. Georgia, no. 9103/04, § 52, 8 July 2008), members of the Ajarian government, including Mr G., fled the country in May 2004.
9. On 7 June 2004 the applicant brought a civil action against Mr G., requesting that the contract of sale be declared null and void for having been entered into under duress (“the civil case”). In particular, the applicant, referring to the relevant factual circumstances, claimed that the respondent, by then an extremely powerful person in the AAR, had forced him to cede the Mazniashvili estate for a ludicrously small price under threats to his person and family. The applicant also sought an injunction to have the estate attached until after the final resolution of the dispute.
10. In a decision of 30 June 2004, the Batumi City Court granted the injunction and ordered the attachment of the Mazniashvili estate. The City Court transmitted its decision, describing the facts of the dispute, to the Chamber of Notaries of the Ajarian Ministry of Justice for enforcement. In the absence of an appeal, the decision became final after five days, and, as disclosed by the case file, the relevant attachment record was duly entered in the Land Register.
11. On 25 August 2004 the Ajarian Public Prosecutor's Office opened a criminal case against Mr G. for various offences committed in public office. On the basis of those criminal proceedings, the prosecutor requested the Ajarian High Court to confiscate the movable and immovable property of the accused, including the Mazniashvili estate, under Article 37(1) of the Code of Criminal Procedure (“the CCP”, “the confiscation proceedings”). According to the prosecutor's submissions, the Mazniashvili estate measured some 68 square meters and was valued at GEL 50,000 (EUR 21,275).
12. On 10 September 2004 the Ajarian Supreme Court partially allowed the prosecutor's request, ordering the confiscation of some of Mr G.'s property, including the Mazniashvili estate. The prosecutor appealed against that partial confiscation to the Supreme Court of Georgia.
13. On 18 November 2004 the Batumi City Court, in the absence of the respondent Mr G., allowed the applicant's action of 7 June 2004. The court annulled the contract of sale, confirmed the applicant's title to the Mazniashvili estate and ordered the Batumi Land Registry, which formed part of the Ajarian Ministry of Justice, to proceed with the necessary registration formalities. The decision further noted that it would become final ten days after being served on the respondent. There being no appeal within that statutory period, the decision became final on an unspecified date.
14. On 7 December 2004 the applicant, relying on the already binding decision of 18 November 2004, requested the Supreme Court of Georgia to discontinue the confiscation proceedings with respect to the Mazniashvili estate.
15. Either on 27 December 2004 or 26 January 2005 the Batumi Land Registry recorded the applicant's title to the Mazniashvili estate, amounting to some 68 square meters, on the basis of the final decision of 18 November 2004 (the case file contains a copy of that official record which bears two different dates). On 18 February 2005 the Registry issued another certificate, confirming the applicant's title to the real estate.
16. On 17 January 2005 the Supreme Court of Georgia, after having conducted a hearing in the presence of representatives of both the Prosecutor General's Office (“the PGO”) and Mr G., overturned the decision of 10 September 2004 in the part concerning the confiscation of the Mazniashvili estate, and upheld the remainder. The court acknowledged that the estate, valued at GEL 50,000 (EUR 21,275), represented the applicant's property by virtue of the binding decision of 18 November 2004. The Supreme Court instructed the Ajarian High Court to examine the issue of discontinuation of the confiscation proceedings concerning the Mazniashvili estate.
17. On 18 March 2005 the Batumi Land Registry addressed a letter to the Ajarian prosecutor, demanding clarification with respect to the situation of the Mazniashvili estate. The Register appeared to be confused by the fact that the estate represented both the applicant's property by virtue of the binding decision of 18 November 2004 and yet was an object of the pending confiscation proceedings. Furthermore, contrary to what had been confirmed by the record of 27 January 2005 and the certificate of 18 February 2005 (see paragraph 15 above), the Registry informed the prosecutor that the applicant's title to the Mazniashvili estate had not yet been formally recorded.
18. In a letter dated 31 March 2005, the Deputy Minister of Justice confirmed that the applicant was the owner of the Mazniashvili estate on the basis of the final decision of 18 November 2004, adding that the process of registration of his property title had been suspended.
19. On 24 March 2005 the Ajarian prosecutor filed with the Batumi City Court a request to quash the final decision of 18 November 2004 and to reopen the civil case, under Article 422 § 1 (b) of the Code of Civil Procedure (“the CCP”). The prosecutor stated that the confiscation of the Mazniashvili estate, indicated by the Ajarian High Court's decision of 10 September 2004, had already been confirmed by the Supreme Court of Georgia. However, the enforcement of the confiscation was impossible owing to the existence of the conflicting decision of 18 November 2004. The prosecutor complained that the Batumi City Court should have involved him as a third party in the civil case which, moreover, should have been suspended pending the outcome of the confiscation proceedings.
20. On 7 April and 18 June 2005, the applicant submitted written comments in reply to the Ajarian prosecutor's request for quashing. He argued that the prosecution authority, being a party to the confiscation proceedings, had learnt of the decision of 18 November 2004 in the course of the Supreme Court's hearing of 17 January 2005 at the latest. Consequently, the Ajarian prosecutor's request for quashing was belated, as provided by Article 426 §§ 1 and 2 of the CCP. He further noted that the Mazniashvili estate had never been State property and, consequently, the Batumi City Court could not have been expected to join the prosecutor as a third party to the civil case. If the Ajarian prosecutor had acted with minimum diligence, by having consulted, for instance, the Batumi Land Registry prior to the institution of the confiscation proceedings against Mr G. on 25 August 2004, he would have learnt that the Mazniashvili estate had already been attached, by virtue of the injunction of 30 June 2004, in the course of the civil case. The applicant also challenged the prosecutor's misleading assertion that the confiscation of the Mazniashvili estate had been confirmed by the Supreme Court of Georgia.
21. Reiterating the above arguments, the applicant also requested the PGO, on 12 September 2005, to open a criminal case against the Ajarian prosecutor for abuse of power.
22. On 23 September 2005 Judge V. of the Batumi City Court summoned the applicant, who was residing in Belgorod, by telegram to appear on 30 September 2005 as a respondent in the quashing proceedings brought by the Ajarian prosecutor. The applicant telegraphed back on 27 September 2005 to request adjournment of the hearing in view of his health problems.
23. On 17 October 2005 Judge V. summoned the applicant by telegram to appear on 27 October 2005 “as a respondent in the proceedings brought by a notary public of Batumi”. The telegram noted that the claimant's submissions were being dispatched by registered post.
24. On 18 October 2005 the Ajarian Prosecutor's Office replied to the applicant's criminal complaint of 12 September 2005 in the following terms:
“As you already know, the Batumi City Court has granted the Ajarian prosecutor's request and reopened the case. Consequently, your allegations of abuse of power by the prosecutor are ill-founded, ... and you have the right to plead before the court as a respondent”.
25. On 25 October 2005 the applicant notified Judge V. by telegram of his inability to travel from the Russian Federation to Georgia for the forthcoming hearing on 27 October 2005 in view of his health problems. He noted that he was sending the supporting medical documentation by post and that the notary public's submissions had not reached him so far.
26. On 1 November 2005 the applicant received the Batumi City Court's dispatch of 17 October 2005 (see paragraph 23 above). He learnt that the notary public who had certified the contract of sale on 8 April 1994 had requested, on 10 October 2004, the quashing of the binding decision of 18 November 2004 under Article 422 § 1 (b) of the CCP. The notary complained that she should have been involved in the civil case as a respondent, in so far as, pursuant to the Notaries Public Act of 3 May 1996, she had been personally responsible for the validity of the contract in question. As to compliance with the statutory time-limit of one month, the notary claimed that she had first learnt of the existence of the decision of 18 November 2004 from a local newspaper, Batumelebi, on 28 September 2005. The relevant article, published on the latter date, had described the details of the confiscation proceedings and the civil case, noting the existence of the conflicting interests of the applicant and of the Ajarian prosecutor over the Mazniashvili estate.
27. On 9 November 2005 Judge V. summoned the applicant by telegram to appear on 14 November 2005 as a respondent “in the proceedings brought by the notary public.” The applicant telegraphed back on the following day, requesting an adjournment of the hearing in view of his state of health. He also informed Judge V. that he was dispatching by post his comments on the notary's request for quashing. As disclosed by those comments, received at the City Court on 8 December 2005, the applicant denounced the notary as lacking the requisite locus standi to call into question the outcome of the terminated civil case.
28. On 25 November 2005 the applicant requested the initiation of disciplinary proceedings against Judge V. He complained that, by summoning him by telegraph only a few days before the scheduled hearings, without giving him an opportunity to obtain knowledge of and comment on the claimant's submissions, the judge had breached the principle of the equality of arms.
29. On 30 November 2005 Judge V. once again requested the applicant to appear at a hearing on 6 December 2005 in the reopening proceedings brought by the notary public. Another request for an adjournment followed from the applicant on 5 December 2005.
30. On 14 March 2006 the applicant received by parcel two decisions of the Batumi City Court dated 30 September and 27 October 2005. As shown by the postmark on the envelope, the parcel had been dispatched by Judge V. on 2 March 2006.
31. In a decision of 27 October 2005, Judge V. ruled that the notary public's request for quashing of 10 October 2005 was well-founded and that the decision of 18 November 2004 ought to be annulled and the civil case reopened under Article 422 § 1 (b) of the CCP. The judge based her decision on the notary's written and oral pleadings only and did not explain the reason for having dispensed with the need for submissions from the applicant. Without giving any additional reasons, the judge endorsed the notary's procedural and substantive arguments, in particular that the request for quashing had been lodged in due time and that the notary should indeed have been involved in the civil case. The operative part of the decision noted that no appeal lay against it.
32. As to the decision of 30 September 2005, it concerned the request for quashing of 24 March 2005 from the Ajarian prosecutor. Judge V. first noted that, despite having been properly summoned to the oral hearing, the applicant had failed to appear and that his explanation in that regard – the reference to health problems – was not substantiated by medical documentation. However, the judge took into account the applicant's written submissions (see paragraph 20 above), and concluded that the prosecutor's request for quashing should be rejected as time-barred.
33. On 24 March 2006 Judge V. summoned the applicant by telegram to appear as a claimant in the reopened civil case. The judge specified that Mr G. and the notary were co-respondents in the case, whilst the Ajarian prosecutor had been admitted as a third party. In a telegram dated 28 March 2006, the applicant requested an adjournment in view of his persistent health problems. He noted that the supporting medical documents as well as his request for the replacement of Judge V. were being dispatched by post.
34. On 19 April 2006 the applicant lodged with the Kutaisi Regional Court an appeal against the decision of 27 October 2005. Referring to the fact that Judge V. had summoned him to the relevant quashing proceedings even after 27 October 2005, the applicant accused her of having forged the decision in question by backdating it. On the same day he also requested the Batumi City Court to send him a copy of the ruling by which the notary and the Ajarian prosecutor had been permitted to participate in the reopened civil case. As disclosed by the case file, no reply was forthcoming from either court.
35. Between February and December 2006, the applicant filed numerous letters with the PGO and the judicial and other authorities, complaining that the quashing of the final decision of 18 November 2004 had violated his property rights. He also requested that Judge V. and the notary be prosecuted for abuse of power or that, at least, the judge be removed from further examination of his civil case. Those letters were either left unanswered or, in so far as the criminal complaints were concerned, rejected by the PGO as ill-founded.
36. In February 2007, the applicant learnt from his sister, who lived in Batumi and had frequent contacts with the Registry of the Batumi City Court, that Judge V. had ruled, on an unknown date, to leave his reopened civil case without examination. On 2 February 2007 he requested the Batumi City Court and the Supreme Court of Georgia to provide him with a copy of that ruling. According to the case file, the courts did not reply.
37. In a letter of 7 February 2007, the Batumi Land Registry informed the applicant that the Mazniashvili estate had been registered as State property on the basis of a writ of enforcement issued by the Ajarian High Court on 10 March 2006. The applicant then requested, on 4 March 2007, additional clarification with respect to that writ, but no reply followed.
38. By a letter of 21 April 2008, the Batumi Land Registry, contrary to the information contained in its previous letter (see the preceding paragraph) informed the applicant's sister that, according to the available records, the Mazniashvili estate had been registered as Mr G.'s property on the basis of the contract of sale.
39. The relevant provisions of the Code concerning the quashing of final and enforceable decisions and the reopening of civil cases, read as follows:
“Proceedings terminated by a final judgment (decision) may be reopened only if there are grounds for bringing either a request to render the final judgment null and void (Article 422) or a request to reopen the proceedings in view of newly discovered circumstances (Article 423).”
“1. A final and binding judgment (decision) may be quashed at the request of the interested party, if:
(a) A judge who participated in the deliberations in the case was barred from doing so by operation of law;
(b) One of the parties, or its representative in law, had not been invited to participate in the examination of the case.
2. The request to render a final judgment null and void on the above-mentioned grounds shall not be entertained if the requesting party could have referred to those grounds during the proceedings, before the first instance, appeal or cassation courts.”
Pursuant to Article 426 §§ 1 and 2 of the CCP, a request for reopening of proceedings should be lodged within one month after the party concerned learns of the grounds which might either render the final decision null and void or represent newly discovered circumstances within the meaning of Article 421 § 1. That period was not extendable. Article 426 § 3 further specified that, in a situation envisaged by Article 422 § 1 (b), the period of one month started to run following the formal notification of the decision to the party to the proceedings or, if appropriate, its representative in law.
Article 429 § 2 of the CCP stated that an appeal lay against a decision dismissing a request for quashing. However, neither that Article nor any other provision in the Code provided for the possibility of appealing against a decision granting such a request. Pursuant to Article 430, the merits of a request for quashing must be examined at an oral hearing.
40. Article 37(1), inserted into the Code of Criminal Procedure on 13 February 2004, stated that, if there was a reasonable suspicion about the origins of property of a person charged with misconduct in public office, a prosecutor was entitled to bring an action for confiscation of that property.
41. Pursuant to sections 1 and 5 of the Notaries Public Act, notaries public formed a public-law institution which was directed by the Ministry of Justice.
According to section 3 §§ 1 and 6, a notary public, whilst being an independent professional, exercised State authority. However, the State could not be held liable for any harm caused by a notary's actions.
Pursuant to sections 4 § 1 and 32-33, all notaries public were obliged to be members of the Chamber of Notaries, a public-law association, created for the purposes of protecting its members' interests and coordinating their activities, and which had its own legal personality.
Section 11 described the system of supervision of the professional activities of individual notaries public by the Minister of Justice, through the Chamber of Notaries.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60644
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF POSTI AND RAHKO v. FINLAND
IMPORTANCE: 1
CONCLUSION: 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
JUDGES: Nicolas Bratza
TEXT: 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]. ...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1