Submitted by: Mrs.
Anni Äärelä and Mr. Jouni Näkkäläjärvi (represented by counsel, Ms. Johanna
Ojala)
Alleged victims: The
authors
State Party: Finland
Date of communication:
4 November 1997
The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,
Meeting on 24 October 2001,
Having concluded its consideration
of communication No. 779/1997, submitted to the Human Rights Committee
by Mrs. Anni Äärelä and Mr. Jouni Näkkäläjärvi under the Optional Protocol
to the International Covenant on Civil and Political Rights,
Having taken into account
all written information made available to it by the authors of the communication,
and the State party,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The authors of the communication, dated 4 November 1997, are Anni Äärelä
and Jouni Näkkäläjärvi, both Finnish nationals. They claim to be victims
of a violation by Finland of articles 2, paragraph 3, 14, paragraphs 1 and
2, and 27 of the Covenant. They are represented by counsel.
The facts as submitted
2.1 The authors are reindeer
breeders of Sami ethnic origin and members of the Sallivaara Reindeer
Herding Co-operative. The Co-operative has 286,000 hectares of State-owned
land available for reindeer husbandry. On 23 March 1994, the Committee
declared a previous communication, brought by the authors among others
and which alleged that logging and road-construction activities in certain
reindeer husbandry areas violated article 27 of the Covenant, inadmissible
for non-exhaustion of domestic remedies. (1) In particular, the
Committee considered that the State party had shown that article 27 could
be invoked in the relevant domestic proceedings, which the authors should
have engaged before coming to the Committee. Thereafter, following unsuccessful
negotiations, the authors brought a suit in the Lappi District Court of
first instance against the National Forestry and Park Service (Forestry
Service). The suit sought the enjoinder, on the basis inter alia of article
27 of the Covenant, of any logging or road-construction in the Mirhaminmaa-Kariselkä
area. This area is said to be amongst the best winter herding lands of
the Sallivara Co-operative.
2.2 On 30 August 1996, the
District Court decided, following an on-site forest inspection at the
authors' request, to prohibit logging or road construction in the 92 hectare
Kariselkä area, but to allow it in the Mirhaminmaa area. (2) The
Court applied a test of "whether the harmful effects of felling are
so great that they can be deemed to deny to the Sami a possibility of
reindeer herding that is part of their culture, is adapted to modern developments,
and is profitable and rational". The Court considered that logging
in the Mirhaminmaa area would be of long-term benefit to reindeer herding
in the area and would be convergent with those interests. In the Kariselkä
area, differing environmental conditions meant that there would be a considerable
long-term decrease in lichen reserves. Relying inter alia on the decisions
of the Committee, (3) the Court found that these effects of logging,
combined with the fact that the area was an emergency feeding ground,
would prevent reindeer herding in that area. A factor in the decision
was the disclosure that an expert testifying for the Forestry Service
disclosed he had not visited the forest in question. After the decision,
logging duly proceeded in the Mirhaminmaa area.
2.3 On appeal by the Forestry
Service to the Rovaniemi Court of Appeal, the Forestry Board sought the
then exceptional measure of oral hearings. The Court granted this motion,
while rejecting the author's motion that the appellate court itself conduct
an on-site inspection. The expert witness, having in the meanwhile examined
the forest, repeated his first instance testimony for the Forestry Service.
Another expert witness for the Forestry Service testified that the authors'
herding co-operative would not suffer greatly in the reduction of herding
land through the logging in question, however the Court was not informed
that the witness already had proposed to the authorities that the authors'
herd should be reduced by 500 owing to serious overgrazing.
2.4 On 11 July 1997, the Appeal
Court, reversing the first instance decision, allowed logging also in
the Kariselkä area, and awarded costs of 75,000 Finnish marks against
the authors. (4) The Court took a different view of the expert
evidence. It found that the small area of logging proposed (which would
not involve further roadworks) would have minimal effects on the quantities
of arboreal lichen and, over time, increase the amounts of ground lichen.
In light of the finding that the area was not the main winter pasture
and in recent years had not been used as a back-up area, the Court concluded
it had not been shown that there would be adverse effects on reindeer
in the long run and even the immediate effects would be small. The authors
were not made aware by the Appeal Court or the Forestry Service that the
latter had presented allegedly distorted arguments to the Court based
on the Committee's finding of no violation of article 27 of the Covenant
in the separate case of Jouni Länsman et al. v. Finland. (5) The
authors learned of this brief only upon receiving the Appeal Court's judgement,
in which it stated that the material had been taken into account, but
that an opportunity for the authors to comment was "manifestly unnecessary".
On 29 October 1997, the Supreme Court decided, in its discretion and without
giving reasons, not to grant leave to appeal. Thereafter, logging took
place in the Kariselkä area, but no roads were constructed.
2.5 On 15 December 1997, the
Ombudsman decided that the municipality of Inari and its mayor had exerted
inappropriate pressure on the authors by formally asking them to withdraw
from their legal proceedings, but did not find that the Forestry Service
had acted unlawfully or otherwise wrongly. (6) The Ombudsman limited
his remedy to bringing this conclusion to the attention of the parties.
On 1 June 1998, a decision of the Ministry of Agriculture and Forestry
(of 13 November 1997) entered into effect reducing the permissible size
of the Sallivaara herd by 500 head from 9,000 to 8,500 animals. On 3 and
11 November 1998, the Forestry Service required a total sum of over 20,000
Finnish marks from the authors towards meeting the costs judgement. (7)
This sum distrained by the Forestry Service corresponds to a major
share of the authors' taxable income.
The complaint
3.1 The authors claim a violation
of article 27 of the Covenant in that the Appeal Court allowed logging
and road construction in the Kariselkä area, comprising the best winter
lands of the authors' herding co-operative. The authors contend that this
logging in the herding lands, coupled with a reduction at the same time
of the permissible number of reindeer, amounts to a denial of their right
to enjoy their culture, in community with other Sami, for which the survival
of reindeer herding is essential.
3.2 The authors claim a violation
of article 14, paragraphs 1 and 2, of the Covenant, contending that the
Appeal Court was not impartial, having pre-judged the outcome of the case
and violated the principle of equality of arms in (i) allowing oral hearings
while denying an on-site inspection and (ii) taking into account material
information without providing an opportunity to the other party to comment.
The authors also contend that the award of costs against the authors at
the appellate level, having succeeded at first instance, represents bias
and effectively prevents other Sami from invoking Covenant rights to defend
their culture and livelihood. There is no State assistance available to
impecunious litigants to satisfy the imposition of costs. (8)
3.3 The authors also claim
improper influence was exerted by the Forestry Service while the case
was before the courts. They claim to have been harassed, to have had public
meetings arranged to criticise them, to have had the municipality formally
request withdrawal of the suit or risk endangering the herding co-operative's
economic development, and to have had the Forestry Service make unfounded
allegations of criminal conduct against one of the authors.
3.4 The authors claim that
the Supreme Court's unreasoned decision denying leave to appeal violated
the right to an effective remedy within the meaning of article 2, paragraph
3, of the Covenant. They contend that the denial of leave to appeal to
the Supreme Court, where a miscarriage of justice, in violation of article
14, had been demonstrated, means no effective remedy existed for that
violation.
The State party's submissions
with respect to the admissibility and merits of the communication
4.1 The State party responded
to the communication by submission dated 10 April 1999. The State party
contests the admissibility of the case. It argues that, in respect of
some claims, domestic remedies have not been exhausted. As the authors
did not appeal against the part of the first instance judgement that allowed
logging and road construction in the Mirhaminmaa area, they have not exhausted
available domestic remedies and that part of the claim is not admissible
under article 5, paragraph 2 (b), of the Optional Protocol.
4.2 The State party argues
that no violation of any provision of the Covenant has been shown. As
to the claims under article 27, the State party accepts that the Sami
community is an ethnic minority protected under that provision, and that
individuals are entitled to its protection. It accepts further that reindeer
husbandry is an accepted part of Sami culture and is accordingly protected
under article 27 insofar as is essential to the Sami culture and necessary
for its survival.
4.3 The State party argues
however, referring to Lovelace v. Canada (9) and Ilmari Länsman
et al. v. Finland, (10) that not every interference which in some
limited way alters previous conditions can be regarded as a denial of
article 27 rights. In the Länsman case, the Committee articulated a test
of whether the impact is "so substantial that it does effectively
deny [article 27 rights]". The State party also refers to jurisprudence
of the Norwegian Supreme Court and the European Commission on Human Rights
requiring serious and significant interference with indigenous interests
before justiciable issues arise. (11)
4.4 In the present case, the
State party emphasises the limited extent of the Kariselkä logging, amounting
to 92 hectares of a total of 286,000 hectares of the Co-operative's total
lands. The State party refers to the facts in the Jouni Länsman et al.
v. Finland (12) case, where the Committee considered logging covering
3,000 of 255,000 hectares not to disclose a violation of article 27.
4.5 The State party points
out that the author's claims were thoroughly examined in two courts, which
considered the case explicitly in the light of article 27 of the Covenant.
The courts heard expert witnesses, examined extensive documentary material
and conducted an on-site inspection before coming to an evaluation of
the facts. The Court of Appeal determined that the lichen pastures were
poor, and that logging would assist the recovery of such lichen. (13)
The intermediate cutting envisaged was also a lower impact form of
logging that would have less significant effects, and was less than the
logging envisaged in the Jouni Länsman case where the Committee found
no breach. The State party also contests whether the Kariselkä area could
be described as "best (winter) herding lands", noting that the
Court found that the area was not the main pasture area in winter, and
in recent years had not even been used as a back-up area.
4.6 The State party also emphasises
that, as required by the Committee in Jouni Länsman, the affected persons
effectively participated in the decisions affecting them. The Forestry
Service plans were developed in consultation with reindeer owners as key
stakeholder groups. The Sallivaara Committee's opinion resulted in a course
being adopted different to that originally recommended by the Wilderness
Committee to reconcile forestry and herding, including a reduced area
available to forestry. In this connection the State party refers extensively
to the legal obligations on the Forestry Service to sustainably manage
and protect natural resources, including the requirements of Sami reindeer
herding culture. (14) Accordingly, the State party argues that
the different interests of forestry and reindeer husbandry have been properly
weighed in coming to the most appropriate forestry management measures.
4.7 The State party points
to the Committee's approval of this kind of reconciliation in Ilmari Länsman,
where it considered that for planned economic activities to be consistent
with article 27 the authors had to be able to continue to benefit from
husbandry. The measures contemplated here also assist reindeer husbandry
by stabilizing lichen supplies and are compatible with it. Moreover, many
herdsmen, including the authors, practise forestry on their lands in addition
to pursuing husbandry.
4.8 Finally, the State party
contends that, contrary to the authors' assertion, no decision to reduce
reindeer numbers has been made, although the Herdsmen's Committees and
the Sami Parliament have provided opinions.
4.9 In sum, the State party
argues with respect to this claim that the authors' right to enjoy Sami
culture, including reindeer husbandry, has been appropriately taken into
consideration in the case. While the logging and consequential waste will
temporarily have certain adverse effects on the pasture, it has not been
shown that the consequences would create considerable and long-term effects
which would prevent the authors from continuing reindeer herding in the
area to its present extent. On the contrary, it has been indicated that
due to heavy grazing the pastures were in bad condition and needed to
recover. Furthermore, the area in question is a very small proportion
of the Co-operative's area, and during winter the area has been used mostly
at times of crisis in the 1970s and 1980s.
4.10 As to the authors' claims
under article 14, the State party rejects that either the imposition of
legal costs or the procedures pursued by the courts reveal violations
of article 14.
4.11 As to the imposition
of costs, the State party points out that under its law there is an obligation
for the losing party to pay, when sought, the reasonable legal costs of
the successful party. (15) The law does not alter this situation
when the parties are a private individual and public authority, or when
the case involves human rights issues. These principles are the same in
many other States, including Austria, Germany, Norway and Sweden, and
are justified as a means of avoiding unnecessary legal proceedings and
delays. The State party argues this mechanism, along with free legal aid
for lawyers' expenses, ensures equality in the courts between plaintiffs
and defendants. The State party notes however that, from 1 June 1999,
an amendment to the law will permit a court ex officio to reduce a costs
order that would otherwise be manifestly unreasonable or inequitable with
regard to the facts resulting in the proceedings, the position of the
parties and the significance of the matter.
4.12 In the present case,
the award of costs against the authors was 10,000 Finnish marks lower
than the sum of 83,765.59 Finnish marks actually sought by the Forestry
Service.
4.13 As to the procedure adopted
by the Court of Appeal, the State party argues that under its law (as
it then was), it is not for the parties to decide on an oral hearing,
but for the court to arrange one where it was necessary to assess the
reliability and weight of oral witness statements taken in the district
court. As to the refusal to make an on-site inspection, the Court considered,
after the full oral hearing and evidence, that such an inspection would
not provide any further relevant evidence. The District Court records
of inspection were not in dispute, and accordingly an inspection was not
necessary. The State party notes that a witness could go and see the relevant
area, and such a visit cannot have jeopardised the interests of justice.
However, the Court's judgement does not show whether the witness had in
fact gone to the forest, or how decisive that evidence was. The authors
also had a witness familiar with the forest in question.
4.14 As to the observations
on the Jouni Länsman case submitted by the Forestry Service after the
expiry of the appeal time limit, the State party notes that this occurred
simply because the Committee's Views were delivered after that point.
The Forestry Service letter contained only factual description of the
decision and no detailed comment, (16) and the State party therefore
considered it manifestly unnecessary to request comments from the other
party. The State party notes that the court could in any event have taken
the Committee's Views into account ex officio as a source of law, and
that both parties could have commented on the Views in the oral hearing.
4.15 The State party rejects
the authors' contentions that there is no right to an effective remedy,
in breach of article 2. The Covenant is directly incorporated into Finnish
law and can be (and was) directly pleaded before all levels of the courts.
Any first instance decision may be appealed, while appellate judgements
may only be appealed with leave. This is granted only when necessary to
ensure consistent court practice, when there is a procedural or other
fault requiring annulment of the lower decision, or where other weighty
reasons exist. Here, two full instances gave comprehensive consideration
to the authors' claims and arguments.
4.16 As to the general claims
of harassment and interference, the State party observes that the Forestry
Service reported to the police a suspected offence of unauthorized felling
of timber on State land by one author's husband. While the matter is still
under police investigation, the author in question has paid the Forestry
Service compensation for the damage and costs of investigation. However,
these matters have not affected the Forestry Service's conduct in the
issues raised by the communication.
The authors' response
to the State party's submissions
5.1 The authors responded
to the State party's submissions on 10 October 1999.
5.2 As to the admissibility
of the communication, the authors state that they did not seek remedies
for the logging in the Mirhaminmaa area, concentrating in the Court of
Appeal on defending the District Court's decision on the Kariselkä area.
5.3 As to the merits, the
authors argue, however, that the logging of the Mirhaminmaa area immediately
and necessarily affect the authors' article 27 rights. This logging in
the best winterlands of the Co-operative increasingly encroaches on the
authors' husbandry and increases the strategic significance of the Kariselkä
area for herding, and should therefore be taken into account. The Kariselkä
area becomes especially crucial during crisis situations in winter and
spring, when the reindeer are suffering from lack of nourishment due to
the paucity of such areas. The authors argue that the Kariselkä area's
significance has also increased since other activities in the area limit
the possibilities for herding, including large-scale gold mining, other
mineral mining, large-scale tourism, and the operation of a radar station.
They point out that the reduced amount of land available for herding after
such encroachments has contributed to overgrazing of the remaining pastures.
The authors point out that in any event the logging in the Kariselkä area
has been undertaken.
5.4 The authors dispute the
State party's observation that no decision aimed at reducing reindeer
numbers has been made, and in substantiation submit the text of a decision
of the Ministry of Agriculture and Forestry, dated 13 November 1997 which
entered into effect on 1 June 1998, reducing the Sallivaara herd by 500
head from 9,000 to 8,500 animals. This reduction was a consequence of
poor pasture conditions (itself acknowledged by the State party), while
the Court of Appeal allegedly concluded that the pastures were sufficient
and in good condition. The authors also object to the State party's reference
to the authors' own logging activities, stating these were necessary to
secure their subsistence in poor economic conditions and were in any event
not comparable in scale to the logging undertaken by the State party.
5.5 As to the State party's
arguments on the issues raised under article 14 in the communication,
the authors clarify, on the issue of the award of legal costs, that the
now amended and more flexible regime regarding costs did not apply to
them. That amendment was made partly as a result of the filing of this
communication. The authors point out that the Forestry Authority, in enforcing
the award of costs, publicly announced that it sought to "prevent
unnecessary trials". However, the fact that the authors prevailed
at first instance demonstrates that this trial at least could not be considered
unnecessary.
5.6 On the issue of the oral
hearing and failure to undertake an on-site inspection by the Court of
Appeal, the authors note that, while an oral hearing was at the time exceptional,
they do no object to the oral hearing as such but to the proceedings as
a whole. The overall proceedings were unfair, because whereas an oral
hearing was granted, an on-site inspection was denied. The authors contend
that the request for an on-site inspection was denied by the Court before
all witnesses at the hearing had been heard. In any case, according to
Finnish procedure an on-site inspection should have been carried out before
the main hearing. The authors also contend that the records of inspection
(comprising one page of minutes and some photographs) do not and cannot
replace an on-site inspection lasting a day.
5.7 As to the submissions
by the Forestry Service to the Court of Appeal after the expiry of time,
the authors state that the submissions included the Committee's Jouni
Länsman Views and a brief. At the commencement of the oral hearing, the
authors sought to provide the decision to the Court and were informed
that the Forestry Service had already provided it. The Court did not mention
the brief, which did not come to the notice of the authors during the
hearings. According to the authors, the brief included an incorrect interpretation
of the Committee's Views, as shown by the translation supplied by the
State party. It could not mean, as the Forestry Service claimed, that
no violation of the Covenant had occurred in the present case. The two
cases were clearly different, as the Jouni Länsman Views rested on the
treatment afforded in that case by the national courts, which in the present
case was still continuing. The authors consider the brief had a relevant
impact on the Court's decision, and the authors were unable to respond
to it, in violation of their rights under article 14. That violation was
not cured by the Supreme Court, which denied leave to appeal. Article
27 was also violated as the logging proceeded as a consequence of proceedings
conducted in breach of article 14.
5.8 On 7 August 2001, the
authors supplied a further decision of the Ministry of Agriculture of
17 January 2000 to reduce the Sallivaara Co-operative's herd by a further
1,000 head (from 8,500 to 7,500 animals) on account of poor pasture condition.
This constitutes a 17 per cent reduction in the total size of the herd
in two and a half years.
Issues and proceedings
before the Committee
6.1 Before considering any
claim contained in a communication, the Human Rights Committee must, in
accordance with rule 87 of its rules of procedure, decide whether or not
it is admissible under the Optional Protocol to the Covenant.
6.2 As the authors' complaints
do not relate to the Mirhaminmaa area per se, it is not necessary for
the Committee to pronounce on the arguments on admissibility adduced by
the State party related to this area.
6.3 As to the authors' claim
of inappropriate interference by the municipality of Inari, the Committee
considers that, in circumstances where the legal proceedings subject to
attempted interference were in fact pursued, the authors have failed to
substantiate their arguments that these facts give rise to a violation
of a right contained in the Covenant.
6.4 As to the authors' claims
that they suffered harassment and intimidation in the course of the proceedings
in that the Forestry Authority convened a public meeting to criticise
the authors and made an unfounded allegation of theft, the authors have
failed to detail their allegations in this regard. The lack of any materials
in substantiation beyond those allegations themselves leaves the Committee
unable to properly consider the substance of the allegations and their
effects on the proceedings. Accordingly, this part of the communication
has not been substantiated sufficiently, for purposes of admissibility,
and is inadmissible under article 2 of the Optional Protocol.
7.1 The Committee finds the
remaining portions of the communication admissible and proceeds to a consideration
of the merits. The Committee has considered the communication in the light
of all the information made available to it by the parties, as required
by article 5, paragraph 1, of the Optional Protocol.
7.2 As to the authors' argument
that the imposition of a substantial award of costs against them at the
appellate level violated their rights under article 14, paragraph 1, to
equal access to the courts, the Committee considers that a rigid duty
under law to award costs to a winning party may have a deterrent effect
on the ability of persons who allege their rights under the Covenant have
been violated to pursue a remedy before the courts. In the particular
case, the Committee notes that the authors were private individuals bringing
a case alleging breaches of their rights under article 27 of the Covenant.
In the circumstances, the Committee considers that the imposition by the
Court of Appeal of substantial costs award, without the discretion to
consider its implications for the particular authors, or its effect on
access to court of other similarly situated claimants, constitutes a violation
of the authors' rights under article 14, paragraph 1, in conjunction with
article 2 of the Covenant. The Committee notes that, in the light of the
relevant amendments to the law governing judicial procedure in 1999, the
State party's courts now possess the discretion to consider these elements
on a case by case basis.
7.3 As to the authors' claims
under article 14 that the procedure applied by the Court of Appeal was
unfair in that an oral hearing was granted and an on-site inspection was
denied, the Committee considers that, as a general rule, the procedural
practice applied by domestic courts is a matter for the courts to determine
in the interests of justice. The onus is on the authors to show that a
particular practice has given rise to unfairness in the particular proceedings.
In the present case, an oral hearing was granted as the Court found it
necessary to determine the reliability and weight to be accorded to oral
testimony. The authors have not shown that this decision was manifestly
arbitrary or otherwise amounted to a denial of justice. As to the decision
not to pursue an on-site inspection, the Committee considers that the
authors have failed to show that the Court of Appeal's decision to rely
on the District Court's inspection of the area and the records of those
proceedings injected unfairness into the hearing or demonstrably altered
the outcome of the case. Accordingly, the Committee is unable to find
a violation of article 14 in the procedure applied by the Court of Appeal
in these respects.
7.4 As to the author's contention
that the Court of Appeal violated the authors' right to a fair trial contained
in article 14, paragraph 1, by failing to afford the authors an opportunity
to comment on the brief containing legal argument submitted by the Forestry
Authority after expiry of filing limits, the Committee notes that it is
a fundamental duty of the courts to ensure equality between the parties,
including the ability to contest all the argument and evidence adduced
by the other party. (17) The Court of Appeal states that it had
"special reason" to take account of these particular submissions
made by the one party, while finding it "manifestly unnecessary"
to invite a response from the other party. In so doing, the authors were
precluded from responding to a brief submitted by the other party that
the Court took account of in reaching a decision favourable to the party
submitting those observations. The Committee considers that these circumstances
disclose a failure of the Court of Appeal to provide full opportunity
to each party to challenge the submissions of the other, thereby violating
the principles of equality before the courts and of fair trial contained
in article 14, paragraph 1, of the Covenant.
7.5 Turning to the claim of
a violation of article 27 in that logging was permitted in the Kariselkä
area, the Committee notes that it is undisputed that the authors are members
of a minority culture and that reindeer husbandry is an essential element
of their culture. The Committee's approach in the past has been to inquire
whether interference by the State party in that husbandry is so substantial
that it has failed to properly protect the authors' right to enjoy their
culture. The question therefore before the Committee is whether the logging
of the 92 hectares of the Kariselkä area rises to such a threshold.
7.6 The Committee notes that
the authors, and other key stakeholder groups, were consulted in the evolution
of the logging plans drawn up by the Forestry Service, and that the plans
were partially altered in response to criticisms from those quarters.
The District Court's evaluation of the partly conflicting expert evidence,
coupled with an on-site inspection, determined that the Kariselkä area
was necessary for the authors to enjoy their cultural rights under article
27 of the Covenant. The appellate court finding took a different view
of the evidence, finding also from the point of view of article 27, that
the proposed logging would partially contribute to the long-term sustainability
of reindeer husbandry by allowing regeneration of ground lichen in particular,
and moreover that the area in question was of secondary importance to
husbandry in the overall context of the Collective's lands. The Committee,
basing itself on the submissions before it from both the authors and the
State party, considers that it does not have sufficient information before
it in order to be able to draw independent conclusions on the factual
importance of the area to husbandry and the long-term impacts on the sustainability
of husbandry, and the consequences under article 27 of the Covenant. Therefore,
the Committee is unable to conclude that the logging of 92 hectares, in
these circumstances, amounts to a failure on the part of the State party
to properly protect the authors' right to enjoy Sami culture, in violation
of article 27 of the Covenant.
7.7 In the light of the Committee's
findings above, it is not necessary to consider the authors' additional
claims brought under article 2 of the Covenant.
8.1 The Human Rights Committee,
acting under article 5, paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights, is of the view that the facts
before it reveal of a violation by Finland of article 14, paragraph 1,
taken in conjunction with article 2 of the Covenant, and additionally
a violation of article 14, paragraph 1, of the Covenant taken alone.
8.2 Pursuant to article 2,
paragraph 3 (a), of the Covenant, the Committee considers that the authors
are entitled to an effective remedy. In terms of the award of costs against
the authors, the Committee considers that as the costs award violated
article 14, paragraph 1, of the Covenant and, moreover, followed proceedings
themselves in violation of article 14, paragraph 1, the State party is
under an obligation to restitute to the authors that proportion of the
costs award already recovered, and to refrain from seeking execution of
any further portion of the award. As to the violation of article 14, paragraph
1, arising from the process applied by the Court of Appeal in handling
the brief submitted late by the Forestry Service (para. 7.4), the Committee
considers that, as the decision of the Court of Appeal was tainted by
a substantive violation of fair trial provisions, the State party is under
an obligation to reconsider the authors' claims. The State party is also
under an obligation to ensure that similar violations do not occur in
the future.
9. Bearing in mind that, by
becoming a State party to the Optional Protocol, the State party has recognized
the competence of the Committee to determine whether there has been a
violation of the Covenant or not and that, pursuant to article 2 of the
Covenant, the State party has undertaken to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized
in the Covenant to provide an effective and enforceable remedy in case
a violation has been established, the Committee wishes to receive from
the State party, within 90 days, information about the measures taken
to give effect to its Views. The State party is requested also to give
publicity to the Committee's Views.
_________________
* The following members of the Committee participated in the examination
of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr.
Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Mr. Maurice
Glèlè Ahanhanzo, Mr. Louis Henkin, Mr. Ahmed Tawfik Khalil, Mr. Eckart
Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga,
Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Ivan Shearer, Mr. Hipólito
Solari Yrigoyen and Mr. Maxwell Yalden.
** Under rule 85 of the Committee's
rules of procedure, Mr. Martin Scheinin did not participate in the examination
of the case.
*** The texts of a concurring
individual opinion signed by Mr. Prafullachandra Natwarlal Bhagwati, and
of a partly dissenting opinion signed by Mr. Abdelfattah Amor, Mr. Nisuke
Ando, Ms. Christine Chanet, Mr. Eckart Klein, Mr. Ivan Shearer and Mr.
Max Yalden are appended to this document.
[Adopted in English, French
and Spanish, the English text being the original version. Subsequently
to be issued also in Arabic, Chinese and Russian as part of the Committee's
annual report to the General Assembly.]
Appendix
Individual opinion of
Committee member
Prafullachandra N. Bhagwati (concurring)
I have gone through the text of the views expressed by the majority members
of the Committee. I agree with those views save in respect of paragraph
7.2 and, partly, in respect of paragraph 8.2. Since I am in substantial
agreement with the majority on most of the issues, I do not think it necessary
to set out the facts again in my opinion and I will therefore straightaway
proceed to discuss my dissenting opinion in regard to paragraphs 7.2 and
8.2.
So far as the alleged violation
of article 14, paragraph 1, in conjunction with article 2, by the imposition
of substantial costs is concerned, the majority members have taken the
view that such imposition, on the facts and circumstances of the case,
constitutes a violation of those articles. While some of the members have
expressed a dissenting view, I agree with the majority view but I would
reason in a slightly different way.
It is clear that under the
law as it then stood, the Court had no discretion in the matter of award
of costs. The Court was under a statutory obligation to award costs to
the winning party. The Court could not tailor the award of costs –
even refuse to award costs – against the losing party taking into
account the nature of the litigation, the public interest involved, and
the financial condition of the party. Such a legal provision had a chilling
effect on the exercise of the right of access to justice by none too wealthy
litigants, and particularly those pursuing an actio popularis.
The imposition of substantial costs under such a rigid and blind-folded
legal provision in the circumstances of the present case, where two members
of the Sami tribe were pursuing public interest litigation to safeguard
their cultural rights against what they felt to be a serious violation,
would, in my opinion, be a clear violation of article 14, paragraph 1,
in conjunction with article 2. It is a matter of satisfaction that such
a situation would not arise in the future, because we are told that the
law in regard to the imposition of costs has since been amended. Now the
Court has a discretion whether to award costs at all to the winning party,
and, if so, what the amount of such costs should be depending upon various
circumstances such as those I have mentioned above.
So far as paragraph 8.2 is
concerned, I would hold that the authors are entitled to the relief set
out in paragraph 8.2 in regard to the costs, not only because the award
of costs followed upon the proceedings in the appellate Court which were
themselves in violation of article 14, paragraph 1, for the reasons set
out in paragraph 7.4, but also because the award of costs was itself in
violation of article 14, paragraph 1, read in conjunction with article
2, for the reasons set out in paragraph 7.2. I entirely agree with the
rest of paragraph 8.2
