Date when decision was rendered: 14.7.2017

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

Reference: Report no. 3758/4/16; 3539

Reference to source

KHO 2017:121.

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, deportation, domestic violence, honour killing,
utlänningar, utvisning, familjevåld, hedersmord,
ulkomaalaiset, karkottaminen, perheväkivalta, kunniamurha,

Relevant legal provisions

sections 146, 147, 147a(1), 149(1)(2), 150(1), 150(2), 150(3) of the Aliens Act

= utlänningslag 146 §, 147 §, 147a § 1 mom., 149 § 1 mom. 2 punkten, 150 § 1-3 mom.

= ulkomaalaislaki 146 §, 147 §, 147a § 1 mom., 149 § 1 mom. 2 kohta, 150 § 1-3 mom.

Abstract

X, his mother and sister had come to Finland from Iraq in 2010 to join X's father who had been granted residence permit in Finland on humanitarian grounds.At the time, X was 16 years old.X's father had returned to Iraq in 2012.In June 2015, the court of first instance had convicted X for assault against his sister and for preparation of an aggravated offence against her life or health.X was sentenced to two years and one month in prison.On X's appeal, in January 2016, the court of appeal amended the judgment of the lower court and convicted X for assault to a conditional prison sentence for six months.The court found that although X had threatened and assaulted his sister, it had not been sufficiently shown that X would have had a detailed plan for killing her and that he would have been ready to carry out such a plan, and that his acts would thus have fallen within the definition of preparation of an aggravated offence against life or health as prescribed in the Criminal Code.The Supreme Court upheld the decision of the court of appeal (KKO 2017:52, 5 July 2017).

In March 2016, the Finnish Immigration Service made a decision by which X was deported to Iraq and was also banned from entering the Schengen area for three years.Both the administrative court and the Supreme Administrative Court upheld the decision.The grounds for deportation under the Aliens Act existed, because X had been found guilty of an offence which carries a maximum sentence of imprisonment for a year or more.The main issue in this case before the Supreme Administrative Court was the requirement in the Aliens Act of an overall consideration of the facts and circumstances affecting the matter as a whole.

In its decision, the Supreme Administrative Court took into account also the case law of the European Court of Human Rights, including the cases of Uner v the Netherlands (judgment of 18 October 2006), Boultif v Switzerland (2 August 2001), Emre v Switzerland (22 May 2008) and Maslov v Austria (23 June 2008) all pertaining to deportation of aliens.The court noted that X had lived most of his life in Iraq where his father is currently residing.X was an adult and, following the definition of family members in the Aliens Act, had no family in Finland.His circumstances thus needed to be considered in the light of the protection of private life (rather than the right to family life).The right to private life may be subject to limitations which are prescribed by law and are necessary, e.g., for the protection of national security and public safety or for the prevention of disorder or crime.

In the criminal case, X had told that his sister had not obeyed him and therefore, using physical violence against her was in accordance with their culture.The Supreme Administrative Court noted that, as a party to the Istanbul Convention, Finland is committed to fighting violence against women.The court held that in case of migrants, domestic violence based on the culture and customs of their country of origin is a problem.Violent behaviour on cultural grounds shows disregard for values guaranteed in the Finnish Constitution Act and international treaties binding on Finland.

In its overall consideration of the deportation grounds and X's personal circumstances, the Supreme Administrative Court noted as facts speaking against X's deportation, that X had been fairly young when committing the offence, that he had had a Finnish girlfriend for the past three years and that he had in August 2016 commenced vocational education in Finland.However, the court held that the nature of the offence had more weight than the facts against deportation.The court upheld the decision of the Immigration Service.It also found that X's deportation to Iraq was not in violation of the prohibition of inhuman or degrading treatment, as prescribed in the Aliens Act and in the case law of the European Court of Human Rights under Article 3 of the ECHR.

30.1.2018 / 30.1.2018 / RHANSKI