Meeting Beaulieu-sur-Mer 11-12 march 2005 - Finland

This statement is mainly based on issues conserning environment, bilding, land use and nature 
conservation. In this sector of legislation associations role in proceedings in administrative courts is very important. Finland is a sparsely populated country, where landscapes are largely dominated by natural forests and lakes. About a tenth of the total area of Finland is covered by inland waters. Built-up areas cover less than three per cent of Finland and most urban areas are relatively small, with fewer than 10 000 inhabitants. Only ten cities have more tahan 50 000 residents.

Significant developments in Finnish environmental legislation have taken place during the 1990’s. The motivation for these developments has included national assessments on the obsoleceness of our legislation as well as obligations imposed by Finlands membership in the EU. Actions that have an impact on the environment have been regulated for a long time also in Finland. As in many other countries, the roots of environmental legislation lie in the law of adjoining properties as well as in the legislation maintaining public law and order. Thus, regulation has traditionally leaned on both private law and public law.

Fundamental Rights

In the Finnish fundamental rights reform of 1995, an environmental provision was included in the Finnish constitution. According to the provision: Nature and its biodiversity, the environment and the national heritage are the responsibility of everyone.The public authorities shall endeavour to guarantee for everyone the right to a healthy environment and for everyone the possibility to influence the decisions that concer their own living environment.

The environmental fundamental rights provision establishes a responsibility of nature and its biodiversity, the environment and the national heritage on all people. The provision is built on the principle of obligation - not on the rights of the individual. On the one hand, this is based on the idea that nature conservation is associated with values that can not be returned to the rights of an individual. The idea is that the provision would be implemented through other legislation.

In addition, the provision states an obligation to guarantee everyone the opportunity to influence decision-making concerning the living environment. The provision is primarily aimed at the legislator who must ensure that the provision is implemented in legislation.

As far as opportunity to influence is concerned, the provision requires that it is guaranteed for everyone. The goal is to extend the group of parties who have actual possibilities to influence decision-making concerning the environment. The provision supplements other procedural provisions in the constitution warranting everyone an appropriate legal process and fair trial as well as good governance.

The constitutional provision for the protection of property is also significant from the point of view of environmental legislation. According to the provision, the property of everyone is protected. In addition, the expropriation for property for public needs and against full compensation is permitted if the provisions are laid down by an Act. The requirement for full compensation also extends to limitations to the use of property.

Even though the Finnish interpretation of the provision for the protection of property has been considered quite strict, the provision has not imposed any significant limitations to environmental legislation. In the drafting procedure for the Environmental Protection Act, for example, the question of infringement of property protection was not brought up. This was despite the fact that the environmental protection legislation includes limitations and prohibitions limiting the owners right of use. With certain preconditions, the use of property can be limited to protect the environment, with no obligation of redemption or compensation.

Procedural rights include the freedom of association and speech, the right of access to information, the right to participate in decisionmaking concerning the environment and the use of natural resources, the right to an environmental impact assessment, the right to appropriate legal protection in decision-making concerning the environment and the right to efficient legal protection in events of environmental damage.

The goals set for the Finnish fundamental rights reform mainly correspond with the goals of the Aarhus Convention. The basis for the reform was that an efficient implementation of the public`s participation rights requires the realization of the freedom of speech, the freedom of assembly and freedom of association as well as public disclosure.

The Public`s and Organization`s Opportunities of Influence and the Right to Appeal, Direct Access
of Non-profit Organisations

Recent environmental legislation projects have improved the publics opportunities of participation. Previously, only the parties, that is, those with a legally relevant interest in the matter, had the right to participate in advance. The parties also had the right to appeal.

The reforms in the first half of the 1990’s extended the opportunities of advance influence also to other interested persons. Nevertheless, they were generally not granted the right to appeal.

The extension of the public’s rights to participate was a central issue in the legislative projects carried out in the latter half of the 1990’s. The Nature Conservation Act, the Land Use and Building Act and the Environmental Protection Act include provisions for other interested persons to influence legal decision-making in advance. However, the right to appeal is primarily reserved for the parties. The question of who should be considered a party in the matter at hand has come up in many actual cases. In decisions concerning the environment, everyone within the scope of the decision’s factual impact has been considered a party. Thus, the number of parties depends on the extent of the project’s significant impact. In projects with minor significance, the only parties may be the neighbours. In significant projects, even someone who lives quite far from the project may he considered a party.

An exception can be found in permit systems where the rules of appeal are based on the Municipalities Act. These include, for example, land use planning and the permits to use extractable land resources. In these cases, all members of the municipality have the right to appeal; this includes everyone resident in the municipality and all land owners. According to the Municipalities Act, associations with domicile in the municipality also have the right to appeal.

The intention has been to extend the associations’ right to appeal to also cover cases not governed by the Municipalities Act. There are many reasons to increase the opportunities of influence for organizations. The statement that the participation of organizations is significant to the interpretation of current legislation is a matter of principle; this would facilitate the observance of public interest in decision-making. With certain preconditions, recent environmental legislation has granted registered associations the right to appeal. They have the right to appeal in planning issues, for example, as well as the right to appeal according to the Nature Conservation Act, the Water Act and the Environmental Protection Act.

Under the Environmental Protection Act, as well as under other environmental acts, in addition to the parties and the authorities responsible for protecting public interest, the right of appeal has been extended to registered associations and foundations in the area of the project whose field of activity includes the promotion of environmental protection, public health, nature conservation and living comfort. Municipalities within the scope of the project’s effects always have the right to appeal.

Decisions made under the Nature Conservation Act can be appealed to an administrative court. The parties, that is, persons and organizations whose interest or right may be relevant to the issue, have the right of appeat. The Nature Conservation Act also strengthened the opportunities of the public and organizations to influence decisionmaking in nature conservation. Above all, this is shown in the extension of the right of appeal to cover certain associations in addition to the parties. In addition to the actual parties, local and regional registered associations whose field of activity includes promotion of nature conservation or environmental protection have the right of appeal. In the case of national protection programmes, national organizations in the field of nature conservation and environmental protection as well as organizations representing the interest of landowners have the right of appeal. In addition, in matters not related to compensations, the right of appeal also belongs to the municipalty whose area is affected by the decision.

The organizations’ opportunities of influence have also been strengthened by reserving them the right to institute actions. Associations have the the possibility to institute actions concerning building preservation, for example, and with certain preconditions, also actions concerning the use of administrative compulsion. Authorities responsible for the supervision of public interest generally have the possibility to express their opinions on plans as well as on projects subject to permission. They also have the right to appeal, provided that the case concerns interests in their supervision.

In addition to broadening the citizens’ and their representative organizations’ right to appeal, the intention of environmental legislation has been to increase the citizens’ actual opportunities of influence. This has come true by bringing the opportunities forward, but above all, new forms of influence have been developed. These new forms of participation are based on interactivity and the recognition of the process-like nature of the procedures. The most apparent changes have taken place in the environmental impact assessment procedures and in land use planning.

The concretization of the subject matter requirements is carried out in the pre-planning process, where the various interested parties must have an opportunity to express their opinions. For instance The Land Use and Building Act does not contain detailed definitions of how the opportunity to participate should he guaranteed in any individual case. Instead, the Act requires that interaction and the opportunities for participation by the various parties must he implemented in accordance with the significance and scope of each planning project. Two requirements are set for the participation: the opportunities of influence must be factual, not formal, and they must be available as early as possihle in the planning process.

Opportunities of participation must be guaranteed for all land owners in the planned area and for everyone whose residence, work or other conditions may be affected by the plan. Additionally, opportunities of participation must be quaranteed for all authorities and organizations whose field of activiry includes issues considered in the planning.

Compensation for Environmental Damage and Material Losses
The central statute of the environmental damage compensation system is the Act on Compensation for Environmental Damage. The Act has adopted the principle of absolute or strict liability; according to this principle, the entrepreneur is responsible for environmental damage caused by his actions regardless of negligence. The principle of strict liability is primarily based on the need to protect the victim. It is often difficult for the victim to present evidence on negligence outside his own field of expertise and area of activity.

The liability for damages is not dependent on whether the damaging activity has been granted an environmental permit or similar decision or not. This means that, for example, environmental damages caused by an activity that is permitted as such and compliant to the conditions of the permit must be compensated.

Compensation for environmental damage and material losses in general can be claimed in a court of first instance (a civil court) either at the defendants domicile or at the location where the damage was caused or detected.

Environmental Criminal Law

Environmental criminal law as a concept is relatively young. In Finland, its application became widespread only in the 1970’s. However, the Nature Conservation Act of 1923 already contained a penal provision for violating the provisions of protection. Environmental legislation has later been amended with penal provisions covering crimes and offences in the scope of each statute. The Penal Code was amended in 1995 with a new chapter containing provisions on environmental crimes that are punishable by imprisonment. The provisions that deal with crimes punishable by fines are still a part of the various environmental statutes. The core area of environmental law is protection of nature and culture, primarily including establishment of nature reserves, protection of landscape and protection of species. In addition to these, preservation of buildings and relics of antiquity can be grouped into environmental law.

The provisions that deal with crimes cannot be claimed in administrative courts.

Summary

According to the law registered associations have the right to appeal considering environmental issues mainly on three grounds. First if an association is a party, with a legally relevant interest in the matter, it has always the right to appeal. Secondly in cases where the rules of appeal are based on the Municipalities Act, a membership of a municipal creates the right to appeal. In some cases it is statued in different laws that associations have the right to appeal if certain conditions appear (for example under the Environmental Protection Act, the Nature Conservation Act and the Land Use and Building Act). The right of an association to appeal has risen up into public talking in Finland considering highwayprojects and the protecting the flying squirrell, which is considered one of the most threatened spacies in Europe. The Supreme Administrative Court has given some decisions which include the courts interpretations of associations right to appeal. Still there remains many guestions considering this important provision to appeal. We are very interested to see what the Aarhus Convention and the coming EU direktive brings into the finnish legal system.

Mika Hamalainen 
Leena Karhu
Administrative judges