Date when decision was rendered: 9.8.1990

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 2108; H90/220, of the Supreme Court to the Finnish Ministry of Justice

Reference to source

Registry of the Supreme Court

Högsta domstolens registratorskontor

Korkeimman oikeuden kirjaamo

Date of publication:

Subject

right to leave one's country, hijacking, extradition, freedom of opinion, inhuman treatment or punishment,
rätt att lämna sitt land, flygkapning, utlämning, åsiktsfrihet, omänsklig behandling eller bestraffning,
oikeus lähteä maasta, lentokonekaappaus, luovuttaminen, mielipiteenvapaus, epäinhimillinen kohtelu tai rangaistus,

Relevant legal provisions

Article 3 of the 1975 Treaty between Finland and the Soviet Union on the prevention of seizure of civilian aircraft

= artikel 3 i avtalet mellan Finland och Sovjetunionen om förhindrande av flygplanskapning,

= artikla 3 Suomen ja Neuvostoliiton sopimuksessa lentokonekaappauksen estämiseksi.

ECHR-1, ECHR-3, ECHR-5, ECHR-6, ECHR-14, ECHRP-4-2-2

Abstract

Mr.Varfolomejev had forced a plane from Tallinn destined for Lvov to land in Helsinki where he surrendered to the authorities.He later applied for political asylum in Finland.The Soviet authorities demanded his extradition to the Soviet Union on the basis of a treaty between Finland and the Soviet Union on the prevention of seizure of civilian aircraft.His application for asylum was rejected.The Ministry of Justice asked for the Supreme Court's opinion concerning the lawfulness of a possible extradition.Mr.Varfolomejev opposed an extradition on the grounds that he was persecuted in the Soviet Union.In December 1986, Varfolomejev was confined to a mental hospital for a period of 17 days after having expressed his opinion against the war in Afghanistan and having refused to do his military service.After this he was classified as a disabled person with no right to work, to study or to receive a passport.According to Mr.Varfolomejev, an extradition to the Soviet Union would mean confinement to a mental hospital for perhaps an indefinite time.

Having examined relevant Finnish legislation and Finland's obligations under international human rights conventions, including the ECHR, the Supreme Court found that Mr.Varfolomejev could not be extradited on the grounds of violation of Article 81 of the Estonian Penal Code (prohibition to leave the country without permission).However, the Supreme Court found no legal obstacles to his extradition to the Soviet Union on the grounds of seizure of a civilian aircraft.

See also Application No.17811/91 by Mihail Varfolomejev against Finland, decision of the European Commission of Human Rights on 2 September 1991.

23.3.1998 / 18.4.2019 / RHANSKI

Date when decision was rendered: 21.11.1990

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 3342, H90/350, of the Supreme Court to the Finnish Ministry of Justice

Reference to source

Registry of the Supreme Court

Högsta domstolens registratorskontor

Korkeimman oikeuden kirjaamo

Date of publication:

Subject

right to leave one's country, hijacking, extradition, freedom of opinion, inhuman treatment or punishment,
rätt att lämna sitt land, flygkapning, utlämning, åsiktsfrihet, omänsklig behandling eller bestraffning,
oikeus lähteä maasta, lentokonekaappaus, luovuttaminen, mielipiteenvapaus, epäinhimillinen kohtelu tai rangaistus,

Relevant legal provisions

Article 3 of the 1975 Treaty between Finland and the Soviet Union on prevention of seizure of civilian aircraft

= artikel 3 i avtalet mellan Finland och Sovjetunionen om förhindrande av flygplanskapning

= artikla 3 Suomen ja Neuvostoliiton sopimuksessa lentokonekaappauksen estämiseksi.

ECHR-3, CCPR-7

Abstract

Mr.Selivanov had forced a plane from Novgorod to Petrozavodsk to land in Helsinki where he surrendered to the authorities.He later applied for political asylum in Finland.Referring to Article 3 of the 1975 Treaty between Finland and the Soviet Union on the prevention of seizure of civilian aircraft, the Soviet Union demanded Mr.Selivanov's extradition to the Soviet Union.He was not granted asylum in Finland.The Ministry of Justice asked for the Supreme Court's opinion concerning the lawfulness of a possible extradition of Mr.Selivanov to the Soviet Union.

Mr.Selivanov opposed an extradition on the grounds that he was wrongly classified as a mentally ill person in the Soviet Union.According to his statement, he had been assaulted and beaten several times during his stay in the Lipetski mental hospital.According to Mr.Selivanov, he was confined to the mental hospital after having expressed critical opinions on Soviet society.

Having examined the Finnish legislation and Finland's obligations under international law, including the ECHR, the Supreme Court found that Mr.Selivanov could not be extradited on the basis of violation of Article 81 of the Estonian Penal Code (prohibition to leave the country without permission).However, the Supreme Court found no legal obstacles to his extradition to the Soviet Union on the grounds of seizure of a civilian aircraft.

23.3.1998 / 18.4.2019 / RHANSKI

Date when decision was rendered: 22.6.1993

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report No. 2410; 6830/92

Reference to source

KHO 1993-A-26.

Yearbook of the Supreme Administrative Court 1993 A, General Part

Högsta förvaltningsdomstolens årsbok 1993 A, allmän del

Korkeimman hallinto-oikeuden vuosikirja 1993 A, yleinen osa

Place of publication: Helsinki

Publisher: The Supreme Administrative Court

Date of publication: 1994

Pages: pp. 84-91

Subject

respect for private life, deportation, inhuman treatment or punishment, homosexuality,
respekt för privatliv, utvisning, omänsklig behandling eller bestraffning, homosexualitet,
yksityiselämän kunnioittaminen, karkottaminen, epäinhimillinen kohtelu tai rangaistus, homoseksuaalisuus,

Relevant legal provisions

Sections 1-3, 40-1, 41-1 of the Aliens' Act

= utlänningslag 1 § 3 mom., 40 § 1 mom., 41 § 1 mom.

= ulkomaalaislaki 1 § 3 mom., 40 § 1 mom., 41 § 1 mom.

ECHR-8, ECHR-3

Abstract

The Ministry of the Interior had decided to expel a Russian person, G, on the grounds that he was staying in Finland without a visa or a residence permit.The Supreme Administrative Court quashed the decision with the following reasoning: The fact that G was staying in Finland without a visa or residence permit formed a lawful basis for expulsion according to the Aliens' Act.G was homosexual.On the basis of available information it could not be excluded that G would face inhuman or degrading treatment in his home country.When deciding on G's expulsion, his ties to Finnish society had to be taken into account.G had become a member of the Orthodox Church, he did voluntary work at the AIDS Support Centre and he had started to study Finnish.Taking into account also his cohabitation with a Finn of the same sex and their right to respect for private life, the Supreme Administrative Court concluded, on the basis of sections 1-3 and 41-1 of the Aliens' Act and Articles 8 and 3 of the ECHR, that there was not sufficient reason to expel G.(A vote 3-2)

26.3.1998 / 2.3.2017 / RHANSKI

Date when decision was rendered: 7.9.1993

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report No. 3229; 1270/7/93

Reference to source

KHO 1993-A-30.

Yearbook of the Supreme Administrative Court 1993 A, General Part

Högsta förvaltningsdomstolens årsbok 1993 A, allmän del

Korkeimman hallinto-oikeuden vuosikirja 1993 A, yleinen osa

Place of publication: Helsinki

Publisher: The Supreme Administrative Court

Date of publication: 1994

Pages: pp. 99-102

Subject

asylum, death penalty, inhuman treatment or punishment,
asyl, dödsstraff, omänsklig behandling eller bestraffning,
turvapaikka, kuolemanrangaistus, epäinhimillinen kohtelu tai rangaistus,

Relevant legal provisions

Section 6 of the Act on Extraordinary Appeal in Administrative Matters; section 34-1 of the Aliens Act

= lag om extraordinärt ändringssökande i förvaltningsärenden 6 §; utlänningslag 34 § 1 mom.

= laki ylimääräisestä muutoksenhausta hallinto-asioissa 6 §; ulkomaalaislaki 34 § 1 mom.

Abstract

The Supreme Administrative Court granted an extraordinary remedy by annulling a decision by the Ministry of the Interior to deny U asylum.U was an asylum seeker from Bangladesh.After asking the opinion of the chairman of the Asylum Appeals Board, the Ministry had classified the case as apparently unfounded, thereby excluding the possibility of review by the Asylum Appeals Board.The Ministry had issued an order that U was to be expelled to Bangladesh.The Supreme Administrative Court stated that U feared political persecution as a political activist and that he had told he had been threatened with capital punishment.In light of existing information on the situation in Bangladesh, the request for asylum could not be considered clearly fraudulent and did not amount to an abuse of the right to seek asylum.Therefore, the request for asylum was not to be regarded as apparently unfounded according to section 34-1 of the Aliens' Act.The decision by the Ministry of the Interior was based on apparently incorrect application of the law.The decision was annulled and the request for asylum returned to the Ministry of the Interior.

26.3.1998 / 11.4.2007 / RHANSKI

Date when decision was rendered: 22.2.2000

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report No. 352; 729/3/99

Reference to source

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

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

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

asylum, respect for private life, respect for family life, inhuman treatment or punishment,
asyl, respekt för privatliv, respekt för familjeliv, omänsklig behandling eller bestraffning,
turvapaikka, yksityiselämän kunnioittaminen, perhe-elämän kunnioittaminen, epäinhimillinen kohtelu tai rangaistus,

Relevant legal provisions

sections 30, 31 and 38 of the Aliens Act

= utlänningslag 30 §, 31 §, 38 §

= ulkomaalaislaki 30 §, 31 §, 38 §.

ECHR-8

Abstract

A had applied for asylum in Finland.During the investigations relating to the application for asylum A had told about his political activities and their consequences in a very general and unspecified manner.A's application was rejected.A appealed against the decision to the Supreme Administrative Court which rejected the appeal.However, when discussing the reasons for its decision, the Court noted that while the asylum application was pending, A had several times received hospital treatment in Finland because of mental problems.Therefore, the Court asked the Directorate of Immigration, when making a decision on deportation, to take into account the condition of A's health, the prohibition of inhuman treatment, Article 8 of the ECHR as well as the possible effect of A's mental problems to the statements made during the investigations in connection with the asylum application.

28.10.2002 / 11.4.2007 / RHANSKI

Date when decision was rendered: 16.10.2001

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 2125; R2000/191

Reference to source

KKO 2001:104.

Decisions of the Supreme Court 2001 II July-December

Avgöranden av Högsta domstolen 2001 II juli-december

Korkeimman oikeuden ratkaisuja 2001 II heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2002

Pages: pp. 654-661

Subject

prisoners, prison conditions, preventive detention, inhuman treatment or punishment,
fångar, fängelseförhållanden, internering i tvångsinrättning, omänsklig behandling eller bestraffning,
vangit, vankilaolosuhteet, pakkolaitokseen eristäminen, epäinhimillinen kohtelu tai rangaistus,

Relevant legal provisions

sections 1, 15 and 16 of the Act on the Incarceration of Dangerous Recidivists; section 22 of the Constitution Act

= lag om internering av farliga återfallsförbrytare 1 §, 15 § och 16 §; grundlagen 22 §

= laki vaarallisten rikoksenuusijain eristämisestä 1 §, 15 § ja 16 §; perustuslaki 22 §.

ECHRP-7-4; ECHR (in general); CCPR (in general)

Abstract

A had been released on parole from an institution for preventive detention.While on parole, he committed manslaughter and was sentenced to prison by a court of first instance which considered that A had committed the offence without full possession of his senses.The prosecutor requested the court to authorize the Prison Court to decide on the incarceration of A in preventive detention.The court considered the conditions for incarceration under section 1 of the Act on the Incarceration of Dangerous Recidivists and concluded that these conditions were fulfilled in A's case.It decided to authorize A's incarceration and to cancel his parole.

A claimed that incarceration in preventive detention was a violation of human rights treaties binding on Finland.In its decision, the court of first instance discussed this question at length.It noted, among other things, that incarcerated recidivists did not serve their sentence in a separate institution but in ordinary prisons under close to normal prison conditions.In practice, incarceration only meant that the offender served the total length of his sentence.The court also pointed out that there was a possibility of appeal against the decisions of both the sentencing court and the Prison Court.According to the Act on the Incarceration of Dangerous Recidivist (section 15), an incarcerated recidivist shall be released on parole upon having served his total term of imprisonment, unless the Prison Court still considers him dangerous to the life or health of others.If he is not released, the matter shall be re-examined at least every six months.The court of first instance noted that such a possibility to continue the loss of liberty of the offender may be problematic.However, in the opinion of the court this constituted a security measure rather than an additional punishment, and in practice the possibility had not been used since 1971.The court continued that being released on parole was not a new punishment but a legal consequence of the fact that the offender had been incarcerated in preventive detention.Cancelling the parole in case the person on parole commits a crime (section 16) is not an additional punishment.

The court of first instance concluded that incarcerating A in preventive detention and cancelling his parole did not violate his human rights.One lay member of the court took a different view and considered, among other things, that the authorization of an offender's incarceration was against Article 4 of Protocol No. 7 to the ECHR as the offender was not aware of the total length of his sentence.

A took the case to the court of appeal which reduced the length of A's prison sentence but did not change the order of the first instance court concerning A's incarceration and the cancellation of his parole.In its decision, the court of appeal pointed out that international human rights treaties should be taken into account, especially when deciding on the possible continuation of the incarceration after the offender has served the total period of his imprisonment.

The case went further to the Supreme Court which mainly agreed with the reasoning of the lower courts and concluded that incarceration in preventive detention could not be considered an inhuman, cruel or degrading punishment.With reference to section 22 of the Constitution Act and to the duty of public authorities to guarantee the observance of basic rights and liberties and human rights, the Supreme Court pointed out that when considering the conditions for incarceration, the provisions of and legal practice under the CCPR and the ECHR had to be taken into account.It also mentioned the decisions of the European Commission of Human Rights concerning applications 20560/92 and 29328/95 against Finland.The Commission had noted that the fact that an offender served the total length of his prison sentence was not a violation of the ECHR.In the opinion of the Supreme Court, it is not a violation of the CCPR either.The Supreme Court concluded that the Prison Court could be authorized to decide on the incarceration of A in preventive detention.The order by the lower court to cancel A's parole was not relevant, as the Prison Court would in any case consider the question of A's incarceration.

30.10.2002 / 10.10.2012 / RHANSKI

Date when decision was rendered: 17.4.1998

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report No. 674; 851/3/98

Reference to source

Registry of the Supreme Administrative Court

Högsta förvaltningsdomstolens registratorskontor

Korkeimman hallinto-oikeuden kirjaamo

Date of publication:

Subject

deported persons, respect for family life, inhuman treatment or punishment, non-discrimination,
deporterade personer, respekt för familjeliv, omänsklig behandling eller bestraffning, icke-diskriminering,
karkotetut henkilöt, perhe-elämän kunnioittaminen, epäinhimillinen kohtelu tai rangaistus, syrjintäkielto,

Relevant legal provisions

sections 40 and 41 of the Aliens Act

= utlänningslag 40 §, 41 §

= ulkomaalaislaki 40 §, 41 §.

ECHR-3, ECHR-8, ECHR-14

Abstract

B is a Ugandan citizen who had resided in Finland since 1991.In 1993, he was convicted of attempted manslaughter for having raped several women, knowing that he had contracted HIV infection.Upon release of B from prison, the Aliens Office decided to deport him to Uganda on account of his criminal behaviour and lack of required residence permit.B appealed to the Supreme Administrative Court.He argued that his deportation would amount to a violation of Articles 3, 8 and 14 of the ECHR.As to Article 3, B argued that the lack of adequate health care in Uganda would put his life in danger and subject him to inhuman and degrading treatment.In addition, B stated that he, as an alleged Rwandan refugee, would face the risk of being deported from Uganda to Rwanda and there, as a consequence of his earlier activities in the opposition struggle against the Rwandan Government, he would most likely become a victim of inhuman and degrading treatment.Taking into account the present health condition of B and the availability of basic HIV/AIDS treatment in Uganda, the Supreme Administrative Court concluded that no violation of Article 3 could be disclosed.Furthermore, the Court did not foresee any imminent danger of B being deported to Rwanda.As to the alleged violations of Articles 8 and 14, the Court dismissed the charges due to lack of substantiated proof.B had divorced his Finnish wife in 1995 and no other grounds which could amount to a violation of B's right to family life had been put forward.Neither could the Court disclose any discrimination based on race or color.

B lodged a complaint with the European Commission of Human Rights, but the case was declared inadmissible (Application No. 40900/98).

8.11.2002 / 11.4.2007 / RHANSKI

Date when decision was rendered: 13.5.2003

Judicial body: Insurance Court = Försäkringsdomstolen = Vakuutusoikeus

Reference: Report No. 6276:2001

Reference to source

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

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

Oikeusministeriön ylläpitämän FINLEX-tietopankin vakuutusoikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

torture, inhuman treatment or punishment, fair trial, prisoners,
tortyr, omänsklig behandling eller bestraffning, rättvis rättegång, fångar,
kidutus, epäinhimillinen kohtelu tai rangaistus, oikeudenmukainen oikeudenkäynti, vangit,

Relevant legal provisions

Section 1 of the Act on accident compensation for convicted prisoners and persons in institutional care (894/1946)

= lag om skadestånd för olycksfall åt personer, som intagits i särskilda straff-, underhålls- och vårdanstalter 1 §

= laki eräisiin rangaistus-, huolto- ja hoitolaitoksiin otettujen henkilöiden tapaturmakorvauksesta 1 §.

ECHR-3; ECHR-6; CCPR-7; CCPR-14-1

Abstract

Convict A had been transferred to a prison hospital for rehabilitation.He was injured while playing football with the other inmates.The State Treasury did not grant A accident compensation.A appealed against the decision to a specific accident insurance appeal board which rejected the appeal.The board admitted that A had a duty to participate in the football match as a part of his rehabilitation programme.However, when the accident happened, A was not at work under the guidance and supervision of the prison authorities, as required in the Act on accident compensation for prisoners.

A appealed to the Insurance Court and claimed, among other things, that the board's decision was in breach of Articles 3 and 6 of the ECHR and Articles 7 and 14-1 of the CCPR.The Insurance Court rejected the appeal on the same grounds as the board.The court also concluded that there had been no violation of the ECHR or the CCPR, but did not discuss the provisions in more detail in its decision.

22.4.2004 / 22.4.2004 / JKOSKIMI

Date when decision was rendered: 26.2.2009

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 440; 1953/1/08

Reference to source

KHO 2009:22.

Yearbook of the Supreme Administrative Court 2009 January-June

Högsta förvaltningsdomstolens årsbok 2009 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2009 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2010

Pages: pp. 200-209

Subject

aliens, residence permit, refusal of entry, inhuman treatment or punishment,
utlänningar, uppehållstillstånd, avvisning, omänsklig behandling eller bestraffning,
ulkomaalaiset, oleskelulupa, käännyttäminen, epäinhimillinen kohtelu tai rangaistus,

Relevant legal provisions

sections 103-1, 146, 147 and 148 of the Aliens Act; section 9-4 of the Constitution Act; articles 3, 10, 16, 17, 18 and 20 of Council Regulation (EC) no. 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national

= utlänningslag 103 § 1 mom., 146 §, 147 § och 148 §; grundlagen 9 § 4 mom.; Rådets förordning (EG) nr 343/2003 on kriterier och mekanismer för att avgöra vilken medlemsstat som har ansvaret för att pröva en asylansökan som en medborgare i tredje land har gett in i någon medlemsstat 3, 10, 16, 17, 18 och 20 artikel

= ulkomaalaislaki 103 § 1 mom., 146 §, 147 § ja 148 §; perustuslaki 9 § 4 mom.; Neuvoston asetus (EY) no. 343/2003 niiden perusteiden ja menettelyjen vahvistamiseksi, joiden mukaisesti määritetään kolmannen maan kansalaisen johonkin jäsenvaltioon jättämän turvapaikkahakemuksen käsittelystä vastuussa oleva jäsenvaltio 3, 10, 16, 17, 18 ja 20 artiklat.

ECHR-3

Abstract

X, who was an Iraqi national, had sought asylum in Finland.He had travelled through Greece before arriving in Finland.The Finnish Immigration Service (former Directorate of Immigration) denied X residence permit and decided he should be returned to Greece because Greece under Council Regulation (EC) 343/2003 was responsible for examining his application for asylum.The Immigration Service also held that X's return to Greece would not be in violation of the prohibition of inhuman treatment as prescribed in Article 3 of the ECHR, section 9-4 of the Constitution Act and section 147 of the Aliens Act.The administrative court upheld the decision.X appealed further to the Supreme Administrative Court, relying among other things on reports by the UNHCR and human rights NGOs concerning serious defects in the asylum procedure and conditions in Greece.

The Supreme Administrative Court noted that there had been reports on serious defects in the Greek asylum procedure.However, the Court continued, international human rights monitoring bodies had not found that Greece would have violated the non-refoulement principle.The Court also referred to the decision on admissibility by the European Court of Human Rights in the case of K.R.S. v. the United Kingdom (2 December 2008), where the human rights court held that returning an Iranian asylum seeker to Greece was not in violation of Article 3 of the ECHR.In addition, Greece had informed the Finnish authorities that it would examine X's application for asylum and had confirmed that X would have the possibility to lodge an application with the European Court of Human Rights and to request interim measures under Rule 39 of the Rules of Court if his application for asylum was rejected and a decision was made on removing him to Iraq.The Supreme Administrative Court upheld the decision of the administrative court and ruled that X could be returned to Greece.

9.7.2009 / 2.3.2017 / RHANSKI

Date when decision was rendered: 22.6.2015

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 1743; 3727/1/13

Reference to source

KHO 2015:100.

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

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

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

aliens, asylum, refusal of entry, inhuman treatment or punishment, best interests of the child,
utlänningar, asyl, avvisning, omänsklig behandling eller bestraffning, barnets bästa,
ulkomaalaiset, turvapaikka, käännyttäminen, epäinhimillinen kohtelu tai rangaistus, lapsen etu,

Relevant legal provisions

section 147 of the Aliens Act; section 9-4 of the Constitution Act; Council Regulation 343/2003/EC establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (Dublin II Regulation).

= utlänningslag 147 §; grundlagen 9 § 4 mom.; Rådets förordning 343/2003/EG om kriterier och mekanismer för att avgöra vilken medlemsstat som har ansvaret för att pröva en asylansökan som en medborgare i tredje land har gett in i någon medlemsstat (Dublin II -förordningen).

= ulkomaalaislaki 147 §; perustuslaki 9 § 4 mom.; Neuvoston asetus 343/2003/EY niiden perusteiden ja menettelyjen vahvistamisesta, joiden mukaisesti määritellään kolmannen maan kansalaisen johonkin jäsenvaltioon jättämän turvapaikkahakemuksen käsittelystä vastuussa oleva jäsenvaltio (Dublin II -asetus).

ECHR-3; Articles 4, 18 and 19-2 of the Charter of Fundamental Rights of the European Union

Abstract

A and her child B had applied for asylum in Finland.A was a Nigerian citizen and had arrived in Italy in 2005.B had been born in Italy in 2012.Since 2012 both A and B had a long-term residence permit for third-country nationals in Italy.A claimed that the reception conditions for asylum seekers in Italy did not correspond to the EU minimum standards.She referred to economic problems and felt she and her child had no future in Italy.She also claimed she had been a victim of human trafficking in Morocco before coming to Italy.The Finnish Immigration Service rejected the asylum application and decided that A and B are transferred back to Italy.According to the Dublin II Regulation, Italy was the country responsible for examining the application.The Supreme Administrative Court assessed the question whether Finland should assume the examination of the application by applying the derogation in Article 3(2) of the Dublin II Regulation.The court also examined whether the applicant's deportation to Italy was against the principle of non-refoulement as prescribed in Article 3 of the ECHR, Article 4 of the EU Charter of Fundamental Rights and section 147 of the Aliens Act, taking also into account the best interests of the child.

With reference to a UNHCR report on refugee protection in Italy (2013), among other sources, the Supreme Administrative Court found that there were no systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum applicants in Italy which would provide substantial grounds for believing that the applicant would face a real risk of being subjected to inhuman or degrading treatment, within the meaning of Article 4 of the EU Charter of Fundamental Rights.In the court's view, this finding was supported by the decision of the European Court of Human Rights in the case of Tarakhel v.Switzerland (judgment of 4 November 2014, Reports of Judgments and Decisions 2014) in which the human rights court found that the reception arrangements in Italy cannot in themselves act as a bar to all removals of asylum seekers to Italy, despite doubts as to the capacity of the system.Furthermore, the EU Commission had not initiated proceedings against Italy for failure to fulfill its obligations under the relevant EU directives on minimum standards (2003/9/EC, 2004/83/EC and 2005/85/EC).The Supreme Administrative Court concluded that there were no grounds pertaining to the asylum procedure and the conditions for the reception of asylum applicants in Italy that would prevent it that A and B are returned to Italy.

Regarding the applicant's individual circumstances, the court noted that both the mother and the child were in good health and the child had been duly cared for.The alleged human trafficking had taken place in Morocco several years before A's arrival in Italy.Both A and B had long-term residence permits in Italy by which they were guaranteed more extensive fundamental rights as compared to the rights of asylum seekers.Their situation was thus not comparable to that of asylum seekers entering the EU for the first time.The court concluded that there was nothing to indicate that because of the applicant's individual circumstances, transferring A and B back to Italy would mean they would be likely to be subjected to inhuman or degrading treatment or the risk thereof, or that their deportation would be against the best interests of the child.The court concluded that in this case Article 3 of the ECHR or section 147 of the Aliens Act did not prevent deportation and that there were no grounds to apply the derogation prescribed in section 3(2) of the Dublin II Regulation.

11.12.2015 / 26.10.2017 / RHANSKI

Date when decision was rendered: 18.3.2011

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 684; 2288/1/10

Reference to source

KHO 2011:25.

Yearbook of the Supreme Administrative Court 2011 January-June

Högsta förvaltningsdomstolens årsbok 2011 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2011 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2011

Pages: 314-328

Subject

aliens, residence permit, refusal of entry, inhuman treatment or punishment,
utlänningar, uppehållstillstånd, avvisning, omänsklig behandling eller bestraffning,
ulkomaalaiset, oleskelulupa, käännyttäminen, epäinhimillinen kohtelu tai rangaistus,

Relevant legal provisions

sections 3-13, 87, 88, 88a and 88e of the Aliens Act; section 9-4 of the Constitution Act

= utlänningslag 3 § 13 punkten, 87 §, 88 §, 88a § och 88e §; grundlagen 9 § 4 mom.

= ulkomaalaislaki 3 § 13 kohta, 87 §, 88 §, 88a § ja 88e §; perustuslaki 9 § 4 mom.

ECHR-3; Articles 2, 18 and 19 of the Charter of Fundamental Rights of the European Union

Abstract

X, who was an Afghan citizen, had applied for international protection and a residence permit in Finland, but the Finnish Immigration Service had rejected his application.One of the main issues in this case was the possibility of safe return to the area in Afghanistan where X originally came from.The Supreme Administrative Court noted that according to the most recent country of origin information some parts of the district where X originated from could be regarded as safe.On the other hand, access to the area in question also needs to be safe.In this case, access by road could not be considered safe, due to land mines and attacks and fighting on busy roads, as reported by the UNHCR.Alternative forms of travel, as suggested by the Immigration Service (taking a detour through other safe districts or using a small aircraft) could not be regarded as viable options in X's circumstances.X had left Afghanistan with his father at the age of 13 and had then lived in Iran for some 14 years.In his case, internal flight to another area in Afghanistan was not a possible or reasonable alternative.The Supreme Administrative Court concluded that X should be issued with a residence permit in Finland on the basis of humanitarian protection.

18.3.2016 / 9.6.2017 / RHANSKI

Date when decision was rendered: 26.5.2016

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 3186/1/14; 2339

Reference to source

KHO 2016:81.

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

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

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

aliens, asylum, inhuman treatment or punishment, freedom of religion, muslims, refusal of entry,
utlänningar, asyl, omänsklig behandling eller bestraffning, religionsfrihet, muslimer, avvisning,
ulkomaalaiset, turvapaikka, epäinhimillinen kohtelu tai rangaistus, uskonnonvapaus, muslimit, käännyttäminen,

Relevant legal provisions

sections 87, 88, 88a and 88b of the Aliens Act

= utlänningslag 87 §, 88 §, 88a § och 88b §

= ulkomaalaislaki 87 §, 88 §, 88a § ja 88b §.

ECHR-2, ECHR-3

Abstract

The Immigration Service had rejected X's application for asylum in Finland and had ordered that X is deported to his home country Iran.In his original asylum application X had not invoked his religious affiliation as a ground for asylum, but had mainly referred to matters pertaining to his next of kin.However, in his appeal to the administrative court, X told he had abandoned Islam.The administrative court rejected X's request for an oral hearing and upheld the decision of the Immigration Service.The court found it unlikely that X's abandonment of Islam would have come to the knowledge of the Iranian authorities or that the authorities would be particularly interested in him after his return to Iran.In the court's view, X was not in need for international protection.In his appeal to the Supreme Administrative Court X further told that he had converted to Christianity.

The Supreme Administrative Court referred to the Grand Chamber judgment of the European Court of Human Rights in the case of F.G. v Sweden (23 March 2016), which concerned the refusal of asylum to an Iranian national converted to Christianity as well as the duty of national authorities to assess the applicant's conversion, the seriousness of his beliefs and the way he manifested his Christian faith.The Supreme Administrative Court also noted that the human rights court had used, among other sources, the country of origin report on Iran by the UK Home Office from September 2013, particularly concerning apostasy.

The Supreme Administrative Court pointed out that although X had not told the administrative court about his conversion to Christianity, he had told he had abandoned Islam.According to current country information on Iran, apostasy from Islam may result in persecution, inhuman treatment or even the death penalty.Therefore, the possibility cannot be excluded that apostasy from Islam could cause a need for international protection as prescribed in the Aliens Act.The Supreme Administrative Court concluded that the administrative court should not have decided the case without a thorough assessment of the facts pertaining to X's apostasy and the general situation in Iran.It quashed the decisions of the Immigration Service and the administrative court and returned the case to the Immigration Service for a new consideration, in which the Immigration Service should take into account the new circumstances and the new evidence presented in the case.

6.6.2016 / 2.3.2017 / RHANSKI

Date when decision was rendered: 27.12.2011

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 3738; 2486/1/11

Reference to source

KHO 2011:114.

Yearbook of the Supreme Administrative Court 2011 July-December

Högsta förvaltningsdomstolens årsbok 2011 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2011 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2012

Pages: 654-660

Subject

aliens, asylum, inhuman treatment or punishment, freedom of religion, refusal of entry, oral hearing,
utlänningar, asyl, omänsklig behandling eller bestraffning, religionsfrihet, avvisning, muntligt förfarande,
ulkomaalaiset, turvapaikka, epäinhimillinen kohtelu tai rangaistus, uskonnonvapaus, käännyttäminen, suullinen menettely,

Relevant legal provisions

sections 87, 88, 88a and 88b of the Aliens Act; section 38 of the Administrative Procedure Act; section 11 of the Constitution Act; articles 4-3-d and 5 of Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted

= utlänningslag 87 §, 88 §, 88a § och 88b §; förvaltningsprocesslag 38 §; grundlagen 11 §; Europaparlamentets och rådets direktiv 2011/95/EU om normer for när tredjelandsmedborgare eller statslösa personer ska anses berättigade till internationellt skydd, för en enhetlig status för flyktingar eller personer som uppfyller kraven för att betecknas som subsidiärt skyddsbehövande, och för innehållet i det beviljade skyddet artikel 4-3-d och artikel 5

= ulkomaalaislaki 87 §, 88 §, 88a § ja 88b §; hallintolainkäyttölaki 38 §; perustuslaki 11 §; Euroopan parlamentin ja neuvoston direktiivi 2011/95/EU vaatimuksista kolmansien maiden kansalaisten ja kansalaisuudettomien henkilöiden määrittelemiseksi kansainvälistä suojelua saaviksi henkilöiksi, pakolaisten ja henkilöiden, jotka voivat saada toissijaista suojelua, yhdenmukaiselle asemalle sekä myönnetyn suojelun sisällölle artikla 4 kohta 3 alakohta d ja artikla 5

Abstract

X and his spouse Y had applied for asylum in Finland but the Immigration Service had rejected their applications and had ordered that they are deported to their home country Iran.In his asylum application X had told that the family had to leave Iran because X had been arrested after he had become interested in Christianity.After arriving in Finland X and Y had converted to Jehova's Witnesses and had, together with their child, been active members of the congregation.

X and Y appealed against the decision of the Immigration Service to the administrative court.They also requested for an oral hearing but the court rejected the request.Based on country reports on Iran the administrative court acknowledged that religious minorities in Iran were at risk of persecution and that apostates could under Islamic law face the death penalty.However, the court was not fully convinced that X and Y had firm religious convictions as Jehova's Witnesses.In their home country, X and Y had been Muslims, not Christians.They had not been socially, politically or religiously active.In the asylum interview X had told he had found it hard to abandon Islam because none of the Christian denominations were appealing to him.Y for her part had told she was not willing or ready to abandon Islam.The administrative court also found it unlikely that the Iranian authorities would be aware of X's and Y's conversion.In the court's view there were no sufficient grounds to assume that after having returned to Iran, X and Y would have to suppress their identity to the effect that their life would for that reason become intolerable.The administrative court upheld the decision of the Immigration Service.X and Y appealed further to the Supreme Administrative Court.

The Supreme Administrative Court noted that freedom of religion entails the right to change one's religion or convictions.It pointed out that religious conversion of an asylum-seeker after having left the country of origin may raise questions as to the real purpose of the conversion and the credibility of the person's religious convictions.It must be assessed whether the sole and main purpose of the activities since leaving the country of origin has been to practise a new religion and to express one's freedom of religion and own convictions or whether the purpose has been to create the necessary conditions for applying for international protection.The implications of those activities, if the applicants are returned to the country of origin, must also be evaluated.The Supreme Administrative Court held that the administrative court could not have dismissed the appeal on the grounds as stated in its decision, but should have conducted an oral hearing in which it would have been possible to obtain more specific information about the circumstances of the applicants' conversion, the credibility of their religious convictions, the ways in which X and Y would practise their religion in their home country and the risks they would possibly encounter when practising their religion upon returning to Iran.The Supreme Administrative Court quashed the decision of the administrative court and returned the case to the lower court for an oral hearing and a new consideration.

7.6.2016 / 29.5.2017 / RHANSKI

Date when decision was rendered: 20.4.2016

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 1503; 1581/1/15

Reference to source

KHO 2016:53.

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

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

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

aliens, asylum, inhuman treatment or punishment, refusal of entry,
utlänningar, asyl, omänsklig behandling eller bestraffning, avvisning,
ulkomaalaiset, turvapaikka, epäinhimillinen kohtelu tai rangaistus, käännyttäminen,

Relevant legal provisions

section 147 of the Aliens Act; section 9-4 of the Constitution Act; Articles 3-1, 3-2, 3-3 and 17-1 of Regulation (EU) No. 604/2013 of the European Parliament and of the Council establishing criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (Dublin III)

= utlänningslag 147 §; grundlagen 9 § 4 mom.; Europaparlamentets och rådets förordning (EU) nr 604/2013 om kriterier och mekanismer för att avgora vilken medlemsstat som är anvarig för att pröva en ansökan om internationellt skydd som en tredjelandsmedborgare eller en statslös person har lämnat in i någon medlemsstat artikel 3 1-3 punkten och artikel 17 1 punkten

= ulkomaalaislaki 147 §; perustuslaki 9 § 4 mom.; Euroopan parlamentin ja neuvoston asetus (EU) no. 604/2013 kolmannen maan kansalaisen tai kansalaisuudettoman henkilön johonkin jäsenvaltioon jättämän kansainvälistä suojelua koskevan hakemuksen käsittelystä vastuussa olevan jäsenvaltion näärittämisperusteiden ja -menettelyjen vahvistamisesta (Dublin III) 3 artikla 1-3 konta ja 17 artikla 1 kohta.

ECHR-3; Articles 4, 18 and 19 of the EU Charter of Fundamental Rights

Abstract

X was from Afghanistan and had applied for residence permit in Finland.He had previously been registered as an asylum-seeker in Hungary.The main issue in this case was whether the principle of non-refoulement, as prescribed in the Aliens Act and in internatonal human rights law, prevented X's transfer to Hungary, which under Regulation 604/2013 (Dublin III) was primarily responsible for examining X's application for intetnational protection and which had agreed to the transfer.

The Supreme Administrative Court noted that the Common European Asylum System in based on the assumption that EU member states respect EU law and fundamental rights and that they are thus safe countries for asylum-seekers.As a rule the transfer to the member state responsible must be made.However, if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions in that state, resulting in a risk of inhuman or degrading treatment, the transfer cannot be made.Furthermore, under Regulation 604/2013 a member state may, in exceptional cases, decide to examine an application for international protection even if such examination is not its responsibility.The state can then take into consideration the individual circumstances of the case as well as the principle of non-refoulement.

The Supreme Administrative Court based its decision in the present case largely on recent national case law in other EU member states, concerning transfers to Hungary under Regulation 604/2013.It also relied on recent country information, and studied the Hungarian asylum legislation, as amended in 2015.The court concluded that particularly vulnerable persons cannot be transferred to Hungary, due to problems in reception conditions for asylum-seekers in that country.Admittedly, X was a healthy young man and not in a particularly vulnerable position and there was thus no apparent risk of inhuman or degrading treatment.However, there was a risk that X is returned first to Serbia, which Hungary in its national legislation had classified as a safe third country, and further to Afghanistan, without the possibility of having his asylum application examined on the merits in any country.X could lodge an appeal against a negative decision of the Hungarian asylum authorities with a Hungarian court and eventually take the case to the European Court of Human Rights.However, it was not certain whether this was an effective remedy, because of the large number of asylum applications, the difficulties in arranging appropriate legal assistance and interpretation services, and other problems reportedly encountered by asylum-seekers in Hungary.

In the opinion of the Supreme Administrative Court, the relevant case law and other documentation considered by the court provided strong grounds for believing that there were systemic flaws in the asylum procedure in Hungary.The court referred to the principle of a human rights-friendly interpretation of the law and also relied on the principle of benefit of the doubt, which in the court's view is significant in the evaluation of proof under refugee law.It ruled that in uncertain cases the decision must be made in favour of the applicant.The court held that considering current country information it could not be reliably ascertained at present that X's transfer to Hungary would not be in violation of the right to protection against inhuman and degrading treatment as prescribed in Article 4 of the EU Charter of Fundamental Rights and Article 3 of the ECHR.It emphasised, however, that the outcome could be different, once new information is available, particularly concerning the classification of Serbia as a safe country, following possible changes in the implementation of Hungarian asylum legislation, through the decisions of the European Court of Human Rights, or otherwise.The Supreme Administrative Court ruled that X's application for international protection is to be examined in Finland and referred the matter back to the Immigration Service.

16.6.2016 / 3.7.2023 / RHANSKI

Date when decision was rendered: 11.6.2018

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 3529/4/17; 2771

Reference to source

KHO 2018:87.

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

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

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

asylum, aliens, inhuman treatment or punishment, refusal of entry,
asyl, utlänningar, omänsklig behandling eller bestraffning, avvisning,
turvapaikka, ulkomaalaiset, epäinhimillinen kohtelu tai rangaistus, käännyttäminen,

Relevant legal provisions

sections 3-13, 87-1, 88-1, 101-1, 103 and 147 of the Aliens Act; section 9-4 of the Constitution Act; Articles 1, 2, 3-1, 3-2, 12-4 and 17-1 of Regulation (EU) No. 604/2013 of the European Parliament and of the Council establishing criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (Dublin III); Article 1 of Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or persons eligible for subsidiary protection, and for the content of the protection granted

= utlänningslag 3 § 13 punkten, 87 § 1 mom., 88 § 1 mom., 101 § 1 mom., 103 § och 147 §; grundlagen 9 § 4 mom.; Europaparlamentets och rådets förordning (EU) nr 604/2013 om kriterier och mekanismer för att avgöra vilken medlemsstat som är ansvarig för att pröva en ansökan om internationellt skydd som en tredjelandsmedborgare eller en statslös person har lämnat in i någon medlemsstat artikel 1, artikel 2, artikel 3 1-2 punkten, artikel 12 4 punkten och artikel 17 1 punkten; Europaparlamentets och rådets direktiv 2011/95/EU om normer för när tredjelandsmedborgare eller statslösa personer ska anses berättigade till internationellt skydd, for en enhetlig status för flyktingar eller personer som uppfyller kraven för att betecknas som subsidiärt skyddsbehövande, och för innebörden i det beviljade skyddet artikel 1

= ulkomaalaislaki 3 § 13 kohta, 87 § 1 mom., 88 § 1 mom., 101 § 1 mom., 103 § ja 147 §; perustuslaki 9 § 4 mom.; Euroopan parlamentin ja neuvoston asetus (EU) no. 604/2013 kolmannen maan kansalaisen tai kansalaisuudettoman henkilön johonkin jäsenvaltioon jättämän kansainvälistä suojelua koskevan hakemuksen käsittelystä vastuussa olevan jäsenvaltion määrittämisperusteiden ja -menettelyjen vahvistamisesta (Dublin III) 1 artikla, 2 artikla, 3 artikla 1-2 kohta, 12 artikla 4 kohta ja 17 artikla 1 kohta; Euroopan parlamentin ja neuvoston direktiivi 2011/95/EU vaatimuksista kolmansien maiden kansalaisten ja kansalaisuudettomien henkilöiden määrittelemiseksi kansainvälistä suojelua saaviksi henkilöiksi, pakolaisten ja henkilöiden, jotka voivat saada toissijaista suojelua, yhdenmukaiselle asemalle sekä myönnetyn suojan sisällölle 1 artikla.

ECHR-3; Articles 4, 18 and 19 of the Charter of Fundamental Rights of the European Union

Abstract

X was a Nigerian citizen, who had had residence permit in Spain in 2010-2015.She came to Finland in 2016 and applied for international protection, on grounds that her Spanish ex-husband had threatened her with violence and had forced her to prostitution.The Finnish Immigration Service dismissed the application.Because X had recently had residence permit in Spain, that country was responsible for examining the asylum application, according to the Dublin Regulation.On X's appeal, the administrative court found that the state responsible for examining the application for international protection was in this case not determined in accordance with the Dublin Regulation, because X had not sought protection against persecution in her country of nationality (Nigeria).In the Supreme Administrative Court, the key question was concerning the impact of alleged infringement of rights, which took place in an EU member state where the third-country national and asylum applicant was previously residing, on the decision as to which EU member state is responsible for examining the application.In two earlier decisions (KHO 2012:18 and KHO 2015:130), the Supreme Administrative Court had held that an asylum application submitted by a third-country national was to be examined in Finland when the application was based on alleged infringement of rights in another EU member state where the applicant had been residing before coming to Finland.The Supreme Administrative Court now held that this interpretation was not in line with the principles of the Dublin Regulation.

The court noted that the Dublin Regulation determines which EU member state is responsible for examining an application for international protection and provides that only one member state has the task of examining the application.As an exception to the general rule, a member state may not transfer an asylum applicant to the member state primarily responsible for examining the application, if there are systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum applicants in that member state.Also, on the basis of the sovereignty clause in Article 17 of the Dublin Regulation, a member state may decide to examine an asylum application which falls within the responsibility of another member state.

The court continued that the definition of 'international protection' in the Aliens Act is similar to the definition in the Dublin Regulation.As a rule, alleged infringements of rights outside the applicant's country of nationality do not fall within the scope of 'international protection'.Third-country nationals can be granted asylum or subsidiary protection if they have a well-founded fear of being persecuted or face a real risk of being subjected to serious harm in their country of nationality and cannot avail themselves of the protection of that country.Applicants, who are residing outside of their country of nationality, cannot be granted asylum or subsidiary protection in cases where they would allegedly face the risk of infringements of rights in their country of residence, unless such infringements are at the same time evidence of persecution or serious harm in the country of nationality.Although alleged infringements of rights, which have taken place outside the asylum applicant's country of nationality, do not directly affect the determination of the state responsible for the examination of the application under the Dublin Regulation, such infringements must nevertheless be examined in the light of the principle of non-refoulement, before the applicant is transferred to the responsible state.

The court concluded that X's residence permit in Spain had expired less that two years previously while she was applying for asylum in Finland.According to the Dublin Regulation, Spain was thus the state responsible for examining the application.Such an examination includes assessing the question whether there are sufficient grounds for granting asylum or subsidiary protection and also whether the application is manifestly unfounded.It had not been shown that there would be systemic flaws in the asylum procedure in Spain, within the meaning of the Dublin Regulation.Also, no reasons had been presented for the application of the sovereignty clause.The Immigration Service had adequately assessed the situation and had found that, if transferred to Spain, X would not face the risk of being subject to treatment violating human dignity.While in Finland, X had been included in the assistance system for victims of human trafficking.A similar system which provided victims of trafficking with protection and assistance was also available in Spain.Transferring X back to Spain was thus not in violation of the principle of non-refoulement.The Supreme Administrative Court upheld the decision of the Immigration Service.

18.4.2019 / 3.7.2023 / RHANSKI

Date when decision was rendered: 19.3.2019

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. H2019/8; 443

Reference to source

KKO 2019:26.

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

extradition, inhuman treatment or punishment, citizenship (EU),
utlämning, omänsklig behandling eller bestraffning, medborgarskap (EU),
luovuttaminen, epäinhimillinen kohtelu tai rangaistus, kansalaisuus (EU),

Relevant legal provisions

Extradition Act; section 9-4 of the Constitution Act; Articles 18 and 21 of the Treaty on the Functioning of the European Union

= lag om utlämning för brott; grundlagen 9 § 4 mom.; Fördraget om Europeiska unionens funktionssätt artikel 18 och artikel 21

= laki rikoksen johdosta tapahtuvasta luovuttamisesta; perustuslaki 9 § 4 mom.; Sopimus Euroopan unionin toiminnasta artikla 18 ja artikla 21.

ECHR-3; Article 19 of the Charter of Fundamental Rights of the European Union

Abstract

X, who was a citizen of Lithuania, had been sentenced in Turkey in 2013 to a prison sentence of 10 years.X escaped from prison in 2016.Turkey had submitted a request to Finland for X's extradition for the enforcement of his sentence.The Ministry of Justice requested the opinion of the Supreme Court on whether it was possible to consent to the request for extradition.

The Supreme Court found that there were no impediments to extradition as provided for in the Extradition Act.The court then noted that an EU citizen, whose extradition has been requested outside the EU, must be treated in the same way as Finnish nationals if that EU citizen is deemed to reside permanently in Finland.Section 2 of the Extradition Act prohibits the extradition of Finnish citizens.X had told that he lived in Lithuania and was visiting Finland only, for work reasons.The court found that X's status as an EU citizen did not in this case prevent his extradition to Turkey, nor did it require the Finnish authorities to find out whether X could serve his sentence in Lithuania.

X had objected to the extradition on grounds that he would be subjected to inhuman treatment because of the prison conditions in Turkey.The Supreme Court considered the prohibition of torture and the principle of non-refoulement, as provided for in the EU Charter of Fundamental Rights (Article 19), ECHR (Article 3) and the Constitution Act (section 9-4).The Supreme Court referred to the judgment of the CJEU in the case of Petruhhin (C-182/15), in which the CJEU held that a Member State must verify that the extradition of an EU citizen to a non-EU country for the enforcement of a sentence will not prejudice the rights referred to in Article 19 of the Charter of Fundamental Rights.Also, the existence of declarations and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the ECHR (European Court of Human Rights, Saadi v.Italy, judgment of 28 February 2008).

The Supreme Court noted that the findings of the European Committee against Torture, reported in 2015 (CPT/Inf (2015) 6), confirmed that the conditions especially in older Turkish prisons can be inhumane.The Ministry of Justice had asked the Turkish authorities for additional information concerning the length of the remaining period of X's prison sentence and the conditions in the prison in which X was to serve his sentence.By the time of the Supreme Court's decision there had been no response from the Turkish authorities.In the court's opinion, X's humane treatment could not be guaranteed by the fact that Turkey was a state party to the ECHR or by assurances given by the Turkish authorities in the request for extradition that they would abide by the provisions of the ECHR.The report of the European Committee against Torture shows that there is a real risk that X is placed in a prison where the conditions amount to ill-treatment contrary to Article 19 of the Charter of Fundamental Rights and Article 3 of the ECHR.The Turkish authorities had not submitted any additional information to prove otherwise.The Supreme Court concluded that the request for the extradition of X may not be granted because the extradition would be contrary to Article 19 of the Charter, Article 3 of the ECHR and section 9-4 of the Constitution Act.

9.5.2019 / 9.5.2019 / RHANSKI

Date when decision was rendered: 17.3.2020

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. R2020/117; 362

Reference to source

KKO:2020:25.

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

extradition, inhuman treatment or punishment, prisoners, prison conditions,
utlämning, omänsklig behandling eller bestraffning, fångar, fängelseförhållanden,
luovuttaminen, epäinhimillinen kohtelu tai rangaistus, vangit, vankilaolosuhteet,

Relevant legal provisions

section 5-1-6 of the Act on Surrender Procedures between Finland and Other Member States of the European Union

= lag om utlämning för brott mellan Finland och de övriga medlemsstaterna i Europeiska unionen 5 § 1 mom. 6 punkten

= laki rikoksen johdosta tapahtuvasta luovuttamisesta Suomen ja muiden Euroopan unionin jäsenvaltioiden välillä 5 § 1 mom. 6 kohta.

ECHR-3; Article 4 of the Charter of Fundamental Rights of the European Union

Abstract

The district court of Helsinki had denied a request for surrender of a Romanian national (A) to Romania where A was to serve a four-year prison sentence.The public prosecutor appealed to the Supreme Court.

The Supreme Court applied Act 1286/2003 on Surrender Procedures between Finland and Other EU Member States, which implements Council Framework Decision 2002/584/JHA on the European Arrest Warrant.The court also referred to the case law of the European Court of Human Rights (Mursic v Croatia) and the CJEU (C-128/18 Dorobantu) in which the courts interpret the prohibition of torture or inhuman and degrading treatment or punishment.

Section 5(1)(6) of the Act on Surrender Procedures provides for a list of mandatory grounds for refusal, among them reasonable grounds to suspect that the requested person is in danger of being subject to torture or other treatment violating human dignity.The Supreme Court noted that while section 5(1)(6) is not explicitly based on the grounds for refusal as prescribed in Articles 3 and 4 of the Framework Decision, the said provision can be derived from the obligation to respect fundamental rights and human rights binding on Finland.The key legal question in this case was whether the request for surrender should be denied pursuant to section 5(1)(6) and because of the inadequate prison conditions in Romania.

According to information provided by the Romanian prison authorities, it was highly likely that A would serve a major part of the four-year sentence in a semi-open prison where the personal space allowed to a detainee is at least two square metres.The Supreme Court noted that the European Court of Human Rights has in the case of Mursic confirmed the standard of three square metres per detainee in multi-occupancy accommodation as the relevant minimum standard under Article 3 of the ECHR.The CJEU has assessed the minimum standards for prison conditions, following the guidelines set by the European Court of Human Rights.The Supreme Court concluded that in A's case there was a strong presumption of a violation of Article 3 of the ECHR and Article 4 of the Charter of Fundamental Rights.Such a presumption can be rebutted only if the reductions in the required minimum personal space of three square metres are short, occasional and minor and the detainee has sufficient freedom of movement outside the cell.These criteria must be met cumulatively.Both the European Court of Human Rights and the CJEU have held that in cases where a detainee has less than three square metres of personal space, a period of detention around 20 to 27 days cannot be regarded as short, occasional and minor.The fact that a detainee has a possibility to spend part of the day outside the overcrowded cell does not change the outcome of the assessment.The Supreme Court denied the request for surrender.

3.7.2023 / 3.7.2023 / RHANSKI

Date when decision was rendered: 16.4.2021

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. R2021/153; 581

Reference to source

KKO:2021:24.

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

extradition, inhuman treatment or punishment, prisoners, prison conditions,
utlämning, omänsklig behandling eller bestraffning, fångar, fängelseförhållanden,
luovuttaminen, epäinhimillinen kohtelu tai rangaistus, vangit, vankilaolosuhteet,

Relevant legal provisions

section 5-1-6 of the Act on Surrender Procedures between Finland and Other Member States of the European Union

= lag om utlämning för brott mellan Finland och de övriga medlemsstaterna i Europeiska unionen 5 § 1 mom. 6 punkten

= laki rikoksen johdosta tapahtuvasta luovuttamisesta Suomen ja muiden Euroopan unionin jäsenvaltioiden välillä 5 § 1 mom. 6 kohta.

ECHR-3; Article 4 of the Charter for Fundamenral Rights of the European Union

Abstract

The public prosecutor had requested in the court of first instance that a Romanian national (A) is surrendered to Romania where he was to serve a five-year prison sentence and a three-year supplementary sentence.A referred to various national (Ombudsman) and international (CPT) reports on prison conditions in Romania and objected to the request.The court of first instance found that despite the assurances given by the Romanian judicial authorities, there were reasonable grounds to suspect that A was in danger of being subject to treatment violating human dignity, because of the poor conditions and overcrowding in the prisons where A was to serve his sentence.The court denied the request.The prosecutor appealed to the Supreme Court.

The Supreme Court applied the Act (1286/2003) on Surrender Procedures between Finland and Other RU Member States, which implements Council Framework Decision 2002/584/JHA on the European Arrest Warrant.Section 5 of the Act provides for a list of mandatory grouds for refusal, among them reasonable grounds to suspect that the requested person is in danger of being subject to torture or other treatment violating human dignity.The section is not explicitly based on the grounds for non-execution in Articles 3 and 4 of the Framework Decision but can be derived from the human rights obligations binding on Finland.The Framework Decision does not have the effect of modifying the obligation to respect fundamental rights (Article 1).The CJEU has held (C-128/18 Dorobantu) that the executing judicial authority has an obligation to bring the surrender procedure to an end where surrender may result in the requested person being subjected to inhuman or degrading treatment.The Supreme Court found that section 5 of the Act on Surrender Procedures should therefore be interpreted as far as possible in line with the interpretation given by the CJEU to Article 4 of the EU Charter of Fundamental Rights and the related human rights obligations.

The CJEU has found (C-128/18 Dorobantu) that the mere existence of evidence that there are deficiencies with respect to detention conditions does not necessarily imply that, in a specific case, the person, whose surrender has been requested, will be subject to inhuman or degrading treatment.When considering whether a request for surrender should be denied on grounds of a real risk of inhuman or degrading treatment, the assessment must be specific and precise and based on objective, reliable, and properly updated data.The Romanian judicial authorities had submitted a detailed report on the conditions in the prisons where A would be placed.Based on the report it seemed that a minimum personal cell space of three square metres could not be guaranteed throughout the execution of A's prison sentence.The CJEU (C-128/18 Dorobantu), the European Court of Human Rights (Mursic v Croatia) and the Supreme Court (KKO:2020:25) have found that when the personal space available to a detainee is below three square metres, it creates a strong presumption of a violation of the prohibition of inhuman and degrading treatment.

Following the request by the public prosecutor, the Romanian Ministry of Justice, as the competent central authority, provided assurances, given by the prison service authorities, to the effect that A will have a personal cell space of at least three square metres for the entire duration of the execution of his sentence.According to the case law of the CJEU (C-220/18 PPU Generalstaatsanwaltschaft; C-125/18 Dorobantu), the European arrest warrant system is based on mutual trust.Assurances given or endorsed by the issuing judicial authority after the assistance of a central judicial authority, are as a rule considered reliable.It is only in exceptional circumstances, and on the basis of precise information, that the executing judicial authority can find that, notwithstanding assurances, there is a real risk of the person concerned being subjected to inhuman or degrading treatment, because of that person's detention conditions.

The Supreme Court noted that the assurances given by the competent Romanian authorities applied to this specific case only and where explicitly concerning A.In their report, the Romanian judicial authorities had also described in detail the arrangements for sanitation, hygiene, health care and social support in the prisons where A would be detained.The Supreme Court held that generic, national and international reports on overcrowding and conditions in the prisons where A was going to be detained, were not sufficient to show exceptional circumstances where the request for A's surrender could be denied, notwithstanding assurances.

3.7.2023 / 3.7.2023 / RHANSKI