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FOURTH
SECTION
CASE OF
STARK AND OTHERS v. FINLAND
(Application
no. 39559/02)
JUDGMENT
(Striking
out)
STRASBOURG
9 October 2007
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Stark and Others v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 5 December 2006 and on 18 September 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 39559/02) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by three Finnish nationals, Mr Alpo Antero Stark,
Mr Matti Autio and Mr Martti Junttari (“the applicants”),
on 1 November 2002.
- The
applicants, who had been granted legal aid, were represented by Mr
Juha Kiiha, a lawyer practising in Kemi. The Finnish Government (“the
Government”) were represented by their Agent, Mr Arto Kosonen
of the Ministry for Foreign Affairs.
- The
applicants complained that the impossibility for them to have access
to a court under Finnish law to challenge a decision by which their
fishing rights had been restricted had violated Article 6 § 1 of
the Convention.
- On
5 December 2006, the Fourth Section of the Court declared the
application partly admissible.
- Both
parties filed submissions with the Registry in the context of
friendly settlement negotiations (Article 38 § 1 (b) of the
Convention and Rule 62 of the Rules of Court). No settlement was
reached.
- On
10 July 2007, the Government submitted a unilateral declaration and
invited the Court to strike the application out of its list of cases,
in accordance with Article 37 of the Convention. On 14 August 2007
the applicants filed a written response to the Government's request.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The applicants were born in 1937, 1945 and 1942,
respectively. The first and second applicants live in Kaakamo and the
third applicant in Kittilä.
- The
applicants are fishermen operating in the maritime area at the mouth
of the Kemi River by the city of Tornio. They fish small fish and
rear salmon in private waters in the flow area of the Kemi River. The
second applicant fishes also in waters leased from the State.
- In
1971 Finland and Sweden concluded the Frontier Rivers Agreement
(Suomen ja Ruotsin välinen rajajokisopimus,
gränsälvsöverenskommelsen mellan Finland och Sverige;
SopS 53-54/1971), which included provisions on the right to fish
in the Tornio River and its channels. The Fishing Regulation
(kalastussääntö, fiskestadgan) was annexed to
the Frontier Rivers Agreement. The Fishing Regulation was amended in
1979 and 1987 whereby the Finnish-Swedish Frontier Rivers Commission
(rajajokikomissio, gränsälvskommissionen),
established under the Frontier Rivers Agreement, was given the right
to preserve certain fish species, or prohibit or restrict fishing
using certain equipment or gear, if this was deemed necessary in
order to safeguard future fish stocks. The fish to be protected in
the area was the wild salmon of Tornio River.
- In
June 1987 Finland and Sweden decided to discontinue the application
of the Fishing Regulation. Subsequently, an Act for the Fishing in
the Tornio River Fishing Area (kalastuksesta Tornionjoen
kalastusalueella annettu laki; lag om fiske i fiskeområden i
Torne älven; 494/1997, “the Tornio Fishing Act”)
was passed. According to section 3 of the said Act the Ministry of
Agriculture and Forestry of Finland (“the Ministry”)
was authorised to restrict fishing, inter alia, if this was
deemed necessary in order to safeguard future fish stocks.
- By
virtue of the Tornio Fishing Act, the Ministry issued Decision
no. 496/1997 (“the 1997 Decision”), prohibiting all
salmon and trout fishing throughout the year and all fishing with
stationary gear during the period from 1 May until 5 July. The
restrictions extended to the maritime area of the Kemi River
belonging to the city of Tornio, i.e. the fishing waters used
by the applicants.
- The
local fishing association of Kaakamo–Ruottala challenged the
lawfulness of the 1997 Decision before the Supreme Administrative
Court (korkein hallinto-oikeus, högsta
förvaltningsdomstolen). In its judgment of 15 January 1999,
the court declined to examine the merits of the appeal, finding that
the 1997 Decision was not in the nature of an administrative decision
resolving or dismissing a case and subject to appeal.
- By
Decision no. 319/1998 (“the 1998 Decision”), the Ministry
continued the fishing prohibition and restriction.
- Despite
the above-mentioned decisions, the applicants continued fishing using
stationary gear. They considered the decisions unlawful as, in their
view, there were only implanted salmon in their fishing waters.
- On
an unspecified date the public prosecutor brought charges against the
applicants for breaching the Tornio Fishing Act. On 21 December 2001
the Tornio District Court (käräjäoikeus,
tingsrätten) dismissed the charges, ruling that the 1998
Decision violated the applicants' constitutional right to the
peaceful enjoyment of their possessions as wild salmon existed only
accidentally in their fishing waters. Thus the 1998 Decision was
contrary to the Tornio Fishing Act and the Constitution. By virtue of
section 107 of the Constitution, the 1997 Decision should not have
been applied.
- On
16 May 2002, the Ministry continued the fishing prohibition and
restriction, (no. 369/2002; “the 2002 Decision”),
however allowing professional fishermen to fish with stationary gear
salmon and whitefish between 3 July and 15 September and trout
between 3 July and 31 August.
- Following
an appeal by the public prosecutor, the Rovaniemi Court of Appeal
(hovioikeus, hovrätten) quashed the decision of the
District Court by its judgment of 28 June 2002, finding that the
applicants had breached the Tornio Fishing Act and ordered each of
them to pay 20 day-fines.
- The
applicants sought leave to appeal to the Supreme Court (korkein
oikeus, högsta domstolen), which was refused on 11 June
2003.
THE LAW
APPLICATION OF ARTICLE 37 OF THE CONVENTION
A. The Government's request to the Court to strike the
case out of its list and the applicants' objections thereto
- On
10 July 2007, the Court received the following declaration from the
Government:
“1. The Government note that the efforts with a
view to securing a friendly settlement of the case have been
unsuccessful.
2. In this situation, the Government wish to express –
by way of a unilateral declaration – their acknowledgement of
the lack of access to a court within the meaning of Article 6 §
1 of the Convention in the circumstances of the present case.
3. Consequently, the Government are prepared to pay each
of the applicants in compensation for non-pecuniary damage EUR 7,000
(seven thousand euros). In their view, this amount would constitute
adequate non-pecuniary redress for the impugned absence to a court,
and thus an acceptable sum in this case.
4. The Government are furthermore prepared to reimburse
the applicants' costs and expenses in a global amount of EUR 4,150
(four thousand one hundred and fifty euros), inclusive of value-added
tax. In their view, this amount could reasonably be considered to
correspond to what has actually been incurred by the applicants and
as sufficient compensation for their costs and expenses in the
proceedings in the present case, and also acceptable as to quantum.
5. In the light of the above, the Government would
suggest that the circumstances of the present case allow your Court
to reach the conclusion that there exist no other reason, as referred
to in Article 37 § 1 (c) of the Convention, justifying your
Court to discontinue the examination of the application, and that,
moreover, there are no reasons of a general character, as defined in
Article 37 § 1 in fine, which would require the further
examination of the case by virtue of that provision. Accordingly, the
Government invite your Court to strike the application out of its
list of cases. “
- The
applicants disagreed, contending that the examination of the case
should be continued. While accepting that the Court had already
decided comparable issues in a case essentially similar to the
present (see paragraph 24 below), the applicants emphasised that
the Government had not taken any measures to fulfil their obligations
under the Convention given that individuals in their situation still
did not have access to a court. In their unilateral declaration, the
Government had not undertaken to take any general measures to change
the situation. As to the compensation offered, there were no grounds
why the applicants should not receive at least EUR 8,000 which
had been awarded in the afore-mentioned case. Lastly, the applicants
claimed EUR 8,821.55 for costs and expenses.
B. The Court's assessment
- The
Court recalls that on 5 December 2006, it declared admissible the
applicants' complaint concerning lack of access to a court in order
to challenge the effects of the fishing restriction on them. The
remainder of the application, including the applicants' complaints
under Articles 7, 14 and Article 1 of Protocol No.1 to the
Convention, were declared inadmissible.
- Article
37 of the Convention provides that the Court may at any stage of the
proceedings decide to strike an application out of its list of cases
where the circumstances lead to one of the conclusions specified
under (a), (b) or (c) of paragraph 1 of that Article. Article 37
§ 1 (c) enables the Court in particular to strike a
case out of its list if:
“for any other reason established by the Court, it
is no longer justified to continue the examination of the
application.”
Article
37 § 1 in fine includes the following proviso:
“However, the Court shall continue the examination
of the application if respect for human rights as defined in the
Convention and the Protocols thereto so requires.”
- The Court recalls that under certain circumstances, it
may be appropriate to strike out an application under Article 37 §
1 (c) of the Convention on the basis of a unilateral declaration
filed by the respondent Government even if the applicant wishes the
examination of the case to be continued. In deciding whether or not
it should strike the present case out of its list, the Court will
examine carefully the terms of the declaration made by the Government
in the light of the principles emerging from its case-law, in
particular its judgments in cases such as Tahsin Acar v. Turkey
[GC] (no. 26307/95, §§ 75-77, ECHR 2003-VI); Meriakri
v. Moldova ((striking out), no. 53487/99, 1 March
2005); Swedish Transport Workers Union v. Sweden ((striking
out), no. 53507/99, 18 July 2006); Van Houten v. the
Netherlands ((striking out), no. 25149/03, ECHR 2005 IX)
and Kalanyos and Others v. Romania ((no. 57884/00, § 25,
26 April 2007)).
- The
Government's declaration contains an acknowledgment that the
applicants did not have access to a court within the meaning of
Article 6 § 1 of the Convention in order to challenge the
fishing restriction imposed by the Ministry by its 2002 Decision. The
Court recalls that it found a violation of Article 6 § 1 in the
case of Posti and Rahko v. Finland (no. 27824/95,
ECHR 2002 VII), which raised a similar issue of lack of access
to a court.
- The
Court is satisfied that the amount offered by the Government in
compensation for non-pecuniary damage – EUR 7,000 to each of
the applicants - constitutes adequate non-pecuniary redress for the
impugned lack of access to a court. Moreover, it considers that the
sum proposed by them for the reimbursement of costs and expenses –
totalling EUR 4,150 - could reasonably be considered to correspond to
what has actually and necessarily been incurred by the applicants,
who had been granted legal aid, and is reasonable as to quantum.
- Against
this background, the Court considers that it is no longer justified,
within the meaning of Article 37 § 1 (c) of the Convention, to
continue the examination of the present application, and finds no
reasons which would require the further examination of the case
(Article 37 § 1 in fine). Accordingly, the remainder of
the application should be struck out of the list.
- In
accordance with Rule 43 § 3 of the Rules of Court, the present
judgment will be forwarded to the Committee of Ministers to allow the
latter to supervise the execution of the Government's undertakings.
In the event that the Government fail to pay the sums set out in
their declaration within three months of the date of delivery of the
present judgment, simple interest will be payable at a rate equal to
the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Takes note of the terms of the Government's
declaration and of the modalities for ensuring compliance with the
undertakings referred to therein (Rule 43 § 3 of the Rules of
Court);
- Decides to strike the remainder of the
application out of its list of cases in accordance with Article 37
§ 1 (c) of the Convention.
Done in English, and notified in writing on 9 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
