Date when decision was rendered: 17.10.2008

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 2250; R2007/500

Reference to source

KKO 2008:93.

Decisions of the Supreme Court 2008 II July-December

Avgöranden av Högsta domstolen 2008 II juli-december

Korkeimman oikeuden ratkaisuja 2008 II heinä-elokuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2009

Pages: 660-672

Subject

integrity, children, best interests of the child, rights of the child, child abuse, circumcision, respect for family life, respect for private life, freedom of religion,
integritet, barn, barnets bästa, barnets rättigheter, barnmisshandel, omskärelse, respekt för familjeliv, respekt för privatliv, religionsfrihet,
koskemattomuus, lapset, lapsen etu, lapsen oikeudet, lasten pahoinpitely, ympärileikkaus, perhe-elämän kunnioittaminen, yksityiselämän kunnioittaminen, uskonnonvapaus,

Relevant legal provisions

chapter 21 sections 5 and 7 of the Penal Code; sections 6-3, 7-3, 10 and 11 of the Constitution Act; sections 1 and 4 of the Act on Child Custody and Right of Access

= strafflagen 21 kapitel 5 § och 7 §; grundlagen 6 § 3 mom., 7 § 3 mom., 10 § ja 11 §; lag angående vårdnad om barn och umgängesrätt 1 § och 4 §

= rikoslaki 21 luku 5 § ja 7 §; perustuslaki 6 § 3 mom., 7 § 3 mom., 10 § ja 11 §; laki lapsen huollosta ja tapaamisoikeudesta 1 § ja 4 §.

ECHR-8; ECHR-9; CRC-19; CRC-24; CRC-30

Abstract

X, who was a Muslim and a sole guardian of her son, had asked a physician to perfom circumcision on her son on grounds of religious tradition.At the time the child was 4½ years old.The question was whether X was guilty of assault or incitement to assault under Finnish law.There is no legislation on non-medical male circumcision in Finland, whereas female genital mutilation is treated as aggravated assault and is always prohibited.

The Supreme Court found that the protection of a child's right to personal integrity is strong when balanced against the rights of a parent or a guardian which also can be protected as human rights or constitutional rights through the right to family life or the right to freedom of religion.Parents or guardians have a right to decide on the education of their child and the right to raise the child in accordance with their religious and cultural traditions.However, protecting the rights of the guardian does not as such justify actions which cause harm to the child's health or well-being.

The Supreme Court continued that in creating a balance between the rights of the child and those of the guardians the starting-point must be that the guardians' right to decide on the child's care, upbringing and other personal matters is based on the purpose to ensure the welfare and balanced development of the child in accordance with the child's individual needs and wishes.Interference in a child's personal integrity must be assessed specifically from the point of view of the child's interests.A child's guardians may have a right to decide, on the child's behalf, on a procedure which interferes in the child's personal integrity, provided that the purpose of the procedure is to enhance the child's welfare and development.Also, in an objective assessment such a procedure shall not be contrary to the child's best interests.A serious interference in the personal integrity of a child cannot be justified with reference to freedom of religion or the right to practice religion even in cases where it is allegedly based on the best interests of the child.

In the Supreme Court's opinion, male child circumcision is a fairly minor interference in the child's personal integrity, provided that the procedure is performed in a medical manner, in hygienic conditions and with analgesia.The court pointed out that the circumcision of Muslim boys is an established tradition in the Muslim community and is deemed compulsory.It is also an integral part of the identity of Muslim men.Therefore, circumcision for religious reasons can be considered to have a positive impact on the boy himself, the development of his identity and his attachment to a religious and social community.In this case circumcision had been performed for acceptable religious reasons and in a safe and appropriate medical manner without causing the child unnecessary pain.Overall, the procedure was only a minor interference in the child's physical integrity and it could not be regarded as being against the best interests of the child.The Supreme Court concluded that for these reasons, X's decision to have her son circumcised was not unlawful and thus not punishable.

In its decision the Supreme Court discussed the questions of medical interventions and the right to physical integrity, parental rights, and freedom of religion also in the light of the ECHR.It referred to the judgments of the European Court of Human Rights in the cases of Juhnke v Turkey (judgment of 13 May 2008), Nielsen v Denmark (judgment of 28 November 1988, Publications of the European Court of Human Rights, Series A, Vol. 144), Johansen v Norway (judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III), Scozzari and Giunta v Italy (judgment of 13 July 2000, Reports of Judgments and Decisions 2000_VIII) and Kokkinakis v Greece (judgment of 25 May 1993, Publications of the European Court of Human Rights, Series A, Vol. 260).

2.6.2016 / 2.6.2016 / RHANSKI

Date when decision was rendered: 31.3.2016

Judicial body: Supreme Court = Hösta domstolen = Korkein oikeus

Reference: Report no. R2014/116; 0767

Reference to source

KKO 2016:24.

Electronic database for the decisions of the Supreme Court within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för Högsta domstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

integrity, children, best interests of the child, rights of the child, child abuse, circumcision, respect for family life, respect for private life, freedom of religion, right to be heard,
integritet, barn, barnets bästa, barnets rättigheter, barnmisshandel, omskärelse, respekt för familjeliv, respekt för privatliv, religionsfrihet, rätt att höras,
koskemattomuus, lapset, lapsen etu, lapsen oikeudet, lasten pahoinpitely, ympärileikkaus, perhe-elämän kunnioittaminen, yksityiselämän kunnioittaminen, uskonnonvapaus, oikeus tulla kuulluksi,

Relevant legal provisions

chapter 21 section 5 of the Penal Code; sections 1 and 4 of the Act on Child Custody and Right of Access

= strafflagen 21 kapitel 5 §; lag angående vårdnad om barn och umgängesrätt 1 § och 4 §

= rikoslaki 21 luku 5 §; laki lapsen huollosta ja tapaamisoikeudesta 1 § ja 4 §.

CRC-12

Abstract

X had circumcised two Muslim boys at the request of the boys' parents and on grounds of religious tradition.At the time one of the boys, Y, had been 7 years old and the other, Z, had been 12 years old.X was not a physician but he had extensive experience in performing circumcision.X was charged with assault and the parents with incitement to assault.There is no legislation on non-medical male circumcision in Finland, whereas female genital mutilation is treated as aggravated assault and is always prohibited.

The Supreme Court referred to its earlier decision concerning male circumcision on religious grounds (KKO 2008:93).The court pointed out that in assessing whether circumcision is lawful or unlawful, it is not required that the person performing circumcision is a licensed physician.What is decisive is that the procedure is performed in a professional, medical manner.In this case, the procedure had been performed safely and X's competence had in fact not even been challenged.The Supreme Court noted that the circumcision of Muslim boys is an established tradition in the Muslim community and is deemed compulsory.In this case, both boys' parents had also brought forth the possibility that an uncircumcised boy child is subjected to discrimination within his community.

The Supreme Court referred to the Act on Child Custody and Right of Access and noted that a child's guardian has a right to decide on the care, upbringing and other personal matters of the child.Before making a decision concerning a child's personal matter, the guardian must discuss the matter with the child, if this is possible in view of the age and stage of development of the child and the nature of the matter.When making a decision, the guardian must give due consideration to the opinion and wishes of the child.The Supreme Court held that when a child because of his age is not capable of understanding the meaning and implications of circumcision or capable of giving his consent to circumcision, the guardians' decision-making power cannot be justified solely with reference to the child's right to freedom of religion.Whereas when a child is able to assess the meaning of circumcision, his opinion is decisive when assessing whether the procedure is justified.

In this case the boys had been circumcised at the request of their parents.There is no indication that the boys' views would have been heard before the procedure.The Supreme Court found that especially concerning Z, who at the time was 12 years old, the performance of the procedure would have required that his own opinion should have been considered.On the other hand, it had not been shown that either of the boys would have objected to the procedure.Z, who at the time of the Supreme Court's decision had reached the age of 15 and had thus an independent right to be heard, parallel to that of his guardians, had told that he does not demand punishment and did not wish to proceed in the matter.Considering this and the fact that circumcision had been performed in an appropriate medical manner, the Supreme Court concluded that the procedure in this case was in the interests of the children and that X's or the parents' conduct could be deemed justifiable.

2.6.2016 / 10.3.2017 / RHANSKI

Date when decision was rendered: 31.3.2016

Judicial body: Supreme Court = Högsta domtolen = Korkein oikeus

Reference: Report no. R2014/211; 0768

Reference to source

KKO 2016:25.

Electronic database for the decisions of the Supreme Court within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för Högsta domstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

integrity, children, best interests of the child, rights of the child, child abuse, circumcision, respect for family life, respect for private life, right to be heard,
integritet, barn, barnets bästa, barnets rättigheter, barnmisshandel, omskärelse, respekt för familjeliv, respekt för privatliv, rätt att höras,
koskemattomuus, lapset, lapsen etu, lapsen oikeudet, lasten pahoinpitely, ympärileikkaus, perhe-elämän kunnioittaminen, yksityiselämän kunnioittaminen, oikeus tulla kuulluksi,

Relevant legal provisions

chapter 4 section 3 and chapter 21 section 5 of the Penal Code; sections 6-3 and 7 of the Constitution Act; section 5 of the Act on Child Custody and Right of Access

= strafflagen 4 kapitel 3 § och 21 kapitel 5 §; grundlagen 6 § 3 mom. och 7 §; lag angående vårdnad om barn och umgängesrätt 5 §

= rikoslaki 4 luku 3 § ja 21 luku 5 §; perustuslaki 6 § 3 mom. ja 7 §; laki lapsen huollosta ja tapaamisoikeudesta 5 §

Abstract

X, who was originally from Nigeria, had had his son circumcised for cultural reasons.At the time the child was four months old.The procedure had been performed by a licensed physician, B.Both X and B were charged with aggravated assault.The child's mother, who was Finnish, objected to the procedure.The family lived in Finland and the parents had joint custody of their child.After having moved to Finland, X had retained his cultural and religious identity.The child thus shared the cultural background of both his parents.

The Supreme Court referred to is previous decision (KKO 2008:93) and held that male child circumcision is a fairly minor interference in the child's personal integrity, provided that the procedure is performed in a medical manner.In this case, circumcision had been performed by a licensed physician, in an appropriate medical manner and with analgesia.The court noted that in multicultural families circumcision enhances the child's integration into the cultural community of one of the parents.On the other hand, circumcision, even when performed in a medical manner, is an interference in the child's personal integrity.In the court's view, non-medical male circumcision can be justified only when it is clearly and unequivocally in the best interests of the child.

According to the Act on Child Custody and Right of Access, the parents or guardians of a child are jointly responsible for the duties inherent in custody of a child and make the decisions concerning the child together, unless otherwise provided or ordered.In a matter that is of great significance for the future of the child, the parents may only make a joint decision, unless it is manifest that the best interests of the child do not require this.In the Supreme Court's opinion, non-medical circumcision is a matter which can only be decided jointly by the child's parents.On the other hand, the protection of the child's right to personal integrity is strong, to the extent that the parents' fundamental rights or their right to make decisions on behalf of the child do not as such justify interference in the child's personal integrity.The justification of such interference must be assessed primarily with the best interests of the child in view.

The best interests of the child must be assessed objectively.When the child's parents disagree on the question of circumcision, the justification of the procedure cannot be based on the opinion of one of the parents only as to what is in the best interests of the child.When it comes to a procedure which is not necessary for medical reasons and which can also be performed at a later age, the child's own opinion and wishes must be given due weight.Before the child is old enough to express his own will concerning circumcision and his own wish to enhance his attachment to the religious and cultural community of one of the parents, the justification of circumcision, in view of the child's overall interests, cannot be regarded as objectively clear if the parents disagree on the procedure.

The Supreme Court concluded that, in an objective assessment, the procedure in this case had not been in the best interests of the child.It had been performed in a safe medical manner, but on grounds of the cultural background of one of the parents only and against the wishes of the other parent.X was found guilty of assault and was sentenced to a fine.B was acquitted.Before the procedure B had stressed that both parents should be present and give their consent to the procedure.However, X had misled B to believe that the mother had given her consent and had explicitly said she did not want to be present during the procedure.

In its decision, the Supreme Court stated that it was unfortunate that there is no legislation governing non-medical male circumcision in Finland.The court also noted that there were no explicit guidelines emanating from international conventions binding on Finland or the case law of the European Court of Human Rights.In its own decisions, the Supreme Court has attempted to draw guidelines as to the assessment of the justification of male child circumcision, in view of the child's best interests.In the Supreme Court's opinion, however, the question of non-medical male circumcision cannot be covered comprehensively by court decisions in individual cases.Instead, thorough evaluation in a legislative drafting process would be required, taking also into account possible penal sanctions.

2.6.2016 / 2.6.2016 / RHANSKI