Date when decision was rendered: 23.8.1993

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 2799; S92/102

Reference to source

KKO 1993:99a.

Decisions of the Supreme Court 1993 II July-December

Avgöranden av Högsta domstolen 1993 II juli-december

Korkeimman oikeuden ratkaisuja 1993 II heinä-joulukuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1994

Pages: pp. 483-485

Subject

fair trial, right to be heard,
rättvis rättegång, rätt att höras,
oikeudenmukainen oikeudenkäynti, oikeus tulla kuulluksi,

Relevant legal provisions

Chapter 31, section 4-2 of the Code of Judicial Procedure

= rättegångsbalken 31 kapitel 4 § 2 mom.

= oikeudenkäymiskaari 31 luku 4 § 2 mom.

ECHR-6-1

Abstract

In a labour law case, the respondent company had disobeyed a summons.The court of first instance issued a unilateral judgment.As the summons had been served to the director of legal affairs of the company, who was not authorised to receive a summons, the company sought an extraordinary remedy in the court of appeal, which, without hearing the plaintiff, nullified the ruling in the court of first instance because of a procedural error.The plaintiff sought leave of appeal in the Supreme Court and asked it to either quash the ruling by the court of appeal or to extend the prescribed time limit for instituting a lawsuit in a labour dispute.The Supreme Court referred to the main rule in Chapter 31, section 4-2 of the Code of Judicial Procedure, according to which the other party is to be heard in dealing with procedural complaints.The decision by the court of appeal, based on facts and evidence presented earlier by the defendant company, was of great importance for the plaintiff.Taking into account the provisions of Article 6-1 of the ECHR on fair trial, the Supreme Court concluded that the main rule of hearing the other party should have been followed by hearing the plaintiff.The case was returned to the court of appeal.

26.3.1998 / 24.3.2003 / LISNELLM

Date when decision was rendered: 9.9.1996

Judicial body: Vaasa Court of Appeal = Vasa hovrätt = Vaasan hovioikeus

Reference: Report No. 1295; R96/373

Reference to source

VaaHO 1996:13.

Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta

Date of publication:

Subject

fair trial, right to examine witnesses, right to be heard,
rättvis rättegång, rätt att förhöra vittnen, rätt att höras,
oikeudenmukainen oikeudenkäynti, oikeus kuulustella todistajia, oikeus tulla kuulluksi,

Relevant legal provisions

ECHR-6-3-d, CCPR-14-3-e

Abstract

The sentencing judgment of the court of first instance was based primarily on evidence with regard to which the accused had not been heard and which he had not been given opportunity to examine.The trial violated the principle of the right to be heard and the right of the accused person to examine or have examined witnesses against him, and to obtain the attendance and examination of witnesses on his behalf as provided by Article 6-3-e of the ECHR and Article 14-3-e of the CCPR.The Vaasa Court of Appeal quashed the judgment of the court of first instance and returned the case to that court.

30.3.1998 / 2.4.2003 / LISNELLM

Date when decision was rendered: 4.12.1997

Judicial body: Vaasa Court of Appeal = Vasa hovrätt = Vaasan hovioikeus

Reference: Report No. 1800; S97/516

Reference to source

VaaHO 1997:32.

Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta

Date of publication:

Subject

fair trial, right to be heard,
rättvis rättegång, rätt att höras,
oikeudenmukainen oikeudenkäynti, oikeus tulla kuulluksi,

Relevant legal provisions

Sections 18 and 70-2 of the Guardianship Act; section 16-2 of the Constitution Act; Chapter 12, sections 1, 2, 3 and Chapter 31, section 1-1-2 of the Code of Judicial Procedure

= förmynderskapslagen 18 § och 70 § 2 mom.; regeringsformen 16 § 2 mom.; rättegångsbalken 12 kapitel 1 §, 2 §, 3 § och 31 kapitel 1 § 1 mom. 2 punkten

= holhouslaki 18 §, 70 § 2 mom.; hallitusmuoto 16 § 2 mom.; oikeudenkäymiskaari 12 luku 1 §, 2 §, 3 § ja 31 luku 1 § 1 mom. 2 kohta.

ECHR-6-1

Abstract

On the application of the guardianship board, the court of first instance had, without submitting the matter to a session of the court, assigned to A a trustee who would take care of A's economic affairs.A was not heard when the decision was made.According to a medical doctor's opinion, owing to A's state of mental health, it would not have been possible to hear her in a legal matter.After initially having given her consent to the appointment of a trustee, A had later, in a letter to the court of first instance, objected to the application of the guardianship board.A appealed against the decision of the court of first instance to the Vaasa Court of Appeal.Referring to Article 6-1 of the ECHR and to the relevant provisions of the Constitution Act and the Code of Judicial Procedure, the Vaasa Court of Appeal stated that one of the most central elements of a fair trial is a person's right to be heard when a court is deciding upon his or her rights and obligations.Furthermore, section 18 of the Guardianship Act prescribes that a person who is to be placed under guardianship has to be heard personally, unless the hearing can be considered detrimental to him or her.According to section 70-2 of the same Act, this also applies to appointing a trustee.On the basis of the medical opinion it was not possible to draw the conclusion that hearing A personally would have been detrimental to her.Therefore, the court of first instance should have given A the possibility to be heard in a session of the court, and if need be, to be assisted by legal counsel.The Court of Appeal quashed the decision of the court of first instance and ordered the case to be returned to the court of first instance.

1.4.1998 / 2.4.2003 / LISNELLM

Date when decision was rendered: 25.9.1997

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

Reference: Report No. 2353; 4731/2/95

Reference to source

KHO 1997:94.

Yearbook of the Supreme Administrative Court 1997 July-December

Högsta förvaltningsdomstolens årsbok 1997 juli-december

Korkeimman hallinto-oikeuden vuosikirja 1997 heinä-joulukuu

Place of publication: Helsinki

Publisher: The Supreme Administrative Court

Date of publication: 1998

Pages: pp. 118-133

Subject

right to be heard, right to property,
rätt att höras, äganderätt,
oikeus tulla kuulluksi, omistusoikeus,

Relevant legal provisions

Section 15 of the Administrative Procedure Act; sections 124a and 125 of the Building Act

= lag om förvaltningsförfarande 15 §; byggnadslag 124a §, 125 §

= hallintomenettelylaki 15 §; rakennuslaki 124a §, 125 §.

ECHRP-1-1

Abstract

The Ministry of the Environment had issued a prohibition of measures for five years with respect to a fairly large area for the purposes of drawing a master plan.Shortly before the prohibition expired, the county administrative board extended it with another five years.The prohibition of measures made, for example, the logging of trees in the area subject to permission of the municipal executive board.A group of forest owners appealed against the extension of the prohibition of measures to the Ministry of the Environment which dismissed the appeals.Two forest owners appealed further to the Supreme Administrative Court.They referred to the Act on Private Forests and claimed that subjecting such measures to the permission of the municipal executive board violated their rights as forest owners.They also noted that they had not been heard when the decision on the extension of the prohibition was made or when they appealed to the Ministry of the Environment.The Supreme Administrative Court referred to the relevant provisions in the Building Act and the Administrative Procedure Act regarding the hearing of a person whose rights the matter concerns.The Court also referred to Article 1 of Protocol No.1 to the ECHR and stated that the principle of proportionality, which emanates from the provisions of Article 1, may presuppose, among other things, that a person is given an opportunity to be heard before a decision concerning his property is made.According to the Act on Private Forests, which was applicable at the time when the decision on the extension of the prohibition of measures was made, no official permit was necessary for the logging of trees in a private forest.The Act also applied to areas subjected to prohibition of measures for the purposes of drawing a master plan.The Court stated that in this case the prohibition of logging restricted the right of the forest owners to carry on their trade, especially since the area subjected to the prohibition was large and, by hearing the persons concerned, it could have been possible to limit the prohibition as to cover only certain parts of the area.It would have been possible to hear the forest owners regarding the extension of the prohibition while the original prohibition was still in force.This would not have jeopardized the realization of the purpose of the prohibition of measures and would not have postponed the decision-making in the matter.Therefore, the county administrative board should not have made the decision on the extension of the prohibition without hearing the forest owners.The Supreme Court quashed the decisions of the county administrative board and the Ministry of the Environment.The case was reassigned to the Environment Agency, which during the course of the proceedings had become the competent administrative authority instead of the county administrative board.

2.4.1998 / 11.4.2007 / RHANSKI

Date when decision was rendered: 8.4.1994

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 1383; S93/1310

Reference to source

KKO 1994:26.

Decisions of the Supreme Court 1994 I January-June

Högsta domstolens avgöranden 1994 I januari-juni

Korkeimman oikeuden ratkaisuja 1994 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1994

Pages: pp. 141-145

Subject

labour law, right to be heard,
arbetsrätt, rätt att höras,
työoikeus, oikeus tulla kuulluksi,

Relevant legal provisions

Sections 17-1, 22, 38 of the Employment Contracts Act

= arbetsavtalslagen 17 § 1 mom., 22 §, 38 §

= työsopimuslaki 17 § 1 mom., 22 §, 38 §.

ECHR-6

Abstract

In a labour law dispute concerning the dismissal of an employee on sick leave, the court of first instance concluded that the employee in question, Y, fell within the category of persons protected against illegal dismissal by a collective agreement, and that he therefore was entitled to pay for the period of notice.

His former employer, company X, brought the case to the court of appeal.The court of appeal asked for the opinion of the Labour Court, but did not find it necessary to hear the parties regarding the statement of the Labour Court.In its statement, the Labour Court found that the provisions of the collective agreement were not applicable to Y.Because of his position as an administrative director in the company, Y fell outside the category of persons that the collective agreement applied to.Taking into account the statement of the Labour Court, the court of appeal concluded that Y's dismissal was not illegal and quashed the decision of the court of first instance.

Y appealed to the Supreme Court, claiming that the court of appeal should have heard him regarding the statement of the Labour Court.The Supreme Court agreed, taking into account the case law of the European Court and Commission of Human Rights regarding Article 6 of the ECHR (the Feldbrugge case, judgment of 29 May 1986, Series A, No.99, and the Kamasinski case, judgment of 19 December 1989, Series A, No.168), according to which a court should reserve a party a possibility to be heard regarding statements obtained ex officio by the court.The court of appeal should have asked Y for a written comment regarding the statement of the Labour Court.However, the parties had later studied the statement of the Labour Court and had included their comments on that statement to their own statements submitted to the Supreme Court.The Supreme Court accepted the reasoning of the main decision of the court of appeal and upheld the decision.

6.4.1998 / 3.4.2003 / LISNELLM

Date when decision was rendered: 13.7.1994

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 2622; R93/44

Reference to source

KKO 1994:64.

Decisions of the Supreme Court 1994 II July-December

Avgöranden av Högsta domstolen 1994 II juli-december

Korkeimman oikeuden ratkaisuja 1994 II heinä-joulukuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1995

Pages: pp. 303-307

Subject

criminal charge, basis of charges, preparation of defence, right to be heard,
brottsanklagelse, åtalsgrund, förberedande av försvar, rätt att höras,
rikossyyte, syytteen perusteet, puolustuksen valmisteleminen, oikeus tulla kuulluksi,

Relevant legal provisions

Section 3 of the Narcotics Act; Chapter 5, section 3-1 of the Penal Code

= narkotikalagen 3 §; strafflagen 5 kapitel 3 § 1 mom.

= huumausainelaki 3 §; rikoslaki 5 luku 3 § 1 mom.

ECHR-6-3-c, CCPR-14-3-a

Abstract

A had been charged with a serious narcotic offence for illegal possession of 2 kilos of amphetamine together with B.During the proceedings in the court of first instance, the prosecutor secondarily demanded in A's absence that A be convicted for assistance to a serious narcotic offence for having stood guard as B handled the hidden amphetamine.A denied having possessed the drugs at any point.The court of first instance sentenced A to 10 months imprisonment, as it had been shown that A had stood guard while B fetched amphetamine from the hiding place and had helped B to open the hiding place.The fact that A had thus been associated with B was regarded as A having assisted B who sold the drugs.

A and the prosecutor brought the case to the court of appeal, which was of the opinion that it had not been shown that A would have assisted B in fetching drugs from the hiding place more than once.His sentence was therefore reduced to 8 months imprisonment.

In his appeal to the Supreme Court, A requested that the charges against him are dropped, i.a., as the prosecutor had not demanded his punishment for the action for which he was sentenced.The Supreme Court found that the prosecutor had not made a new request to which A should have been given a chance to respond but only judicially redefined the deed in question.No new charges had been presented and A had not been accused of any action which had not been included in the charges presented in his presence.He had also had the possibility to respond to the charges and to state that his actions did not meet the requirement of being a full accomplice but only of assisting B in B`s crime.The Supreme Court therefore upheld the main decision of the court of appeal.(A vote 3 to 2.)

A dissenting justice stated that as A had not received detailed information about the charges against him in accordance with Article 6-3-a of the ECHR and Article 14-3-a of the CCPR, he should not have been sentenced on the basis of these charges.The rapporteur as well as the other dissenting justice made a general reference to A's legal safeguards and would have quashed the decision of the court of first instance and the court of appeal as A had not been heard personally regarding the secondary charges.

6.4.1998 / 14.3.2003 / LISNELLM

Date when decision was rendered: 25.1.1995

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 197; R93/474

Reference to source

KKO 1995:5.

Decisions of the Supreme Court 1995 I January-June

Högsta domstolens avgöranden 1995 I januari-juni

Korkeimman oikeuden ratkaisuja 1995 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1996

Pages: pp. 25-27

Subject

criminal charge, right to be heard, right to examine witnesses,
brottsanklagelse, rätt att höras, rätt att förhöra vittnen,
rikossyyte, oikeus tulla kuulluksi, oikeus kuulustella todistajia,

Relevant legal provisions

Chapter 12, section 7-1 of the Code of Judicial Procedure

= rättegångsbalken 12 kapitel 7 § 1 mom.

= oikeudenkäymiskaari 12 luku 7 § 1 mom.

ECHR-6-3-d, CCPR-14-3-e

Abstract

During the pretrial investigation B had stated that his watch had been stolen and that the item was worth FIM 30,000.A denied that he had stolen the watch and that it at any rate would be worth that much.However, he admitted that he had stolen a number of other items from B's apartment in a burglary.The theft of the items A admitted having stolen would, considering the value of the items, have made A liable only for theft, not aggravated theft, he claimed.The lower courts based their decisions on B's statement as to the burglary and the value of the watch, without giving A an opportunity to pose questions to B.

A appealed to the Supreme Court, claiming, i.a., that the value of the property he had admittedly stolen had been overstated by B.He also denied having stolen some of the items.A had demanded an oral hearing in the court of appeal, as well as the hearing of B in person regarding the stolen property and its value, but the requests had been rejected.

The Supreme Court referred to Article 14-3 of the CCPR and Article 6-3-d of the ECHR on the right of a person charged with a criminal offence to examine or have examined witnesses against him.In this case, the stated value of the watch in particular was considerable and no other evidence as to its theft and value had been presented.As A had not been given an opportunity to pose questions to B re garding the theft and the value of the watch, the lower courts should not have a ccepted B's statement during the pretrial investigation as evidence in the matter.This constituted a procedural error.The Supreme Court returned the case to the court of first instance for retrial in the proper legal order.

15.4.1998 / 13.3.2003 / LISNELLM

Date when decision was rendered: 31.5.1995

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 2183; H93/326

Reference to source

KKO 1995:95.

Decisions of the Supreme Court 1995 I January-June

Högsta domstolens avgöranden 1995 I januari-juni

Korkeimman oikeuden ratkaisuja 1995 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1996

Pages: pp. 393-399

Subject

right to be heard, preparation of defence, children, law of procedure, right to reply,
rätt att höras, förberedande av försvar, barn, processrätt, rätt till genmäle,
oikeus tulla kuulluksi, puolustuksen valmisteleminen, lapset, prosessioikeus, oikeus vastaukseen,

Relevant legal provisions

Chapter 30, section 11-3 and Chapter 31, sections 1-4 and 6 of the Code of Judicial Procedure

= rättegångsbalken 30 kapitel 11 § 3 mom., 31 kapitel 1 § 4 mom., 6 §

= oikeudenkäymiskaari 30 luku 11 § 3 mom., 31 luku 1 § 4 mom., 6 §.

ECHR-6 (unspecified)

Abstract

A and B had agreed that B would pay A a lump-sum of FIM 80,000 as child maintenance for their common child.A paid FIM 40,000 of the money back to B as redemption for a car in accordance with their agreement on distribution of matrimonial assets, and used the rest of the money to improve her and the child's common home.

B asked the court of first instance to order A to repay the maintenance, as the child had lived with A for only 7 weeks and with B the rest of the time.A objected to the claim, stating that the payment of the lump-sum maintenance was part of the agreement on distribution of matrimonial assets.The agreement had not accorded A anything but the lump-sum.The court of first instance stated that the payment of the lump-sum was based on an agreement between the parties confirmed by the court and that it therefore was not paid without due justification even if the child did not live with A for a long time.

The court of appeal upheld the decision of the court of first instance.

B appealed to the Supreme Court.In its decision of 31 August 1993 (KKO 1993:104), the Supreme Court stated that the lump-sum was intended for child maintenance and that A was thus obliged to repay the money which was not used for that purpose or for other purposes agreed by the parties.As no such money remained, A was not obliged to repay anything.

In an extraordinary appeal on the basis of procedural fault, B asked the Supreme Court to annul its decision in the case, referring to the fact that he had not been heard regarding A's response to the Supreme Court nor received a copy of the response or the issues dealt with therein.In its decision of 31 May 1995, the Supreme Court stated that Chapter 31, section 1-4 of the Code of Judicial Procedure allows for the nullification of a judgment if there has been a procedural error and this error has affected or can be presumed to have affected the judgment.It is in the interest of the respect of the judicial system that this provision is not interpreted narrowly.As B had not received a copy of A's response to the Supreme Court, as required by Chapter 30, section 11-3 of the Code of Judicial Procedure, B had not been informed of all material affecting the outcome of the case.This constituted a procedural error.

The Supreme Court also referred to Article 6 of the ECHR, concluding that the right to be heard also includes a right for the parties to be informed of all material affecting the outcome of the case and thereby having a real opportunity to react to the material.In its 1993 decision, the Supreme Court came to a different conclusion on the main issue than the lower courts, basing its decision essentially on the information that emerged from A's response to the proceedings in the Supreme Court.The information on the use of the lump-sum did, contrary to in the lower courts, affect the outcome of the decision of the Supreme Court as laid out in Chapter 31, section 1-4 of the Code of Judicial Procedure.The Supreme Court annulled its decision KKO 1993:104 and decided to reconsider the case.

16.4.1998 / 14.3.2003 / LISNELLM

Date when decision was rendered: 9.11.1998

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 3492; S98/917

Reference to source

Registry of the Supreme Court

Högsta domstolens registratorskontor

Korkeimman oikeuden kirjaamo

Date of publication:

Subject

kidnapping, children, right to be heard, fair trial,
kidnappning, barn, rätt att höras, rättvis rättegång,
kidnappaus, lapset, oikeus tulla kuulluksi, oikeudenmukainen oikeudenkäynti,

Relevant legal provisions

Child Custody and Right of Access Act

= lag angående vårdnad om barn och umgängesrätt

= laki lapsen huollosta ja tapaamisoikeudesta.

ECHR-6; CRC-12; 1980 Hague Convention on the Civil Aspects of International Child Abduction

Abstract

While a case concerning the custody of two children was pending before a court in the USA, the mother, who was Finnish, had in breach of the court's decision taken the children with her to Finland and refused to return them.With reference to the Convention on Child Abduction, the Supreme Court of Finland had ordered the return of the children to the USA (Report No. 3052; S97/1165; decision rendered 10 September 1997).The mother started an appeal procedure against the enforcement of the Supreme Court decision.The Vaasa Court of Appeal stated that the children had despite their age (7 and 6 years) attained the degree of maturity at which their views should be given due weight.Since the children objected to their return, the Supreme Court decision should not be enforced.

The father (an American) appealed to the Supreme Court.The Court discussed both national law, the Convention on the Rights of the Child (Article 12) and the Convention on Child Abduction.It noted that in corresponding cases in the other States Parties to the Convention on Child Abduction, children between 9 to 13 years of age had been regarded as having attained the degree of maturity at which their views should be taken into account.According to national law, the corresponding age was 12 years.Although exceptions could be made, the children in such cases had usually not been younger than 10 years.The Court concluded that the children in this case had not attained the degree of maturity in order for their views to be taken into account.It quashed the decision of the court of appeal and ordered the enforcement of its previous decision concerning the return of the children.The mother later appealed for the reversal of the Supreme Court decision but the appeal was rejected.

Before the court of appeal the mother had submitted that the father benefited from the fact that the court proceedings regarding custody took place in the USA.She claimed that she would not be able to defend her rights and there was a risk that the proceedings did not correspond to the principles put forth in Article 6 of the ECHR.The court of appeal rejected this claim.

23.10.2002 / 31.5.2006 / RHANSKI

Date when decision was rendered: 17.2.1999

Judicial body: Insurance Court = Försäkringsdomstolen = Vakuutusoikeus

Reference: Report No. 8771:97

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

fair trial, right to be heard, social assistance,
rättvis rättegång, rätt att höras, socialhjälp,
oikeudenmukainen oikeudenkäynti, oikeus tulla kuulluksi, sosiaaliapu,

Relevant legal provisions

sections 1-2 and 6 of the Housing Allowance Act

= lag om bostadsbidrag 1 § 2 mom., 6 §

= asumistukilaki 1 § 2 mom., 6 §.

ECHR-6

Abstract

A had appealed to an appellate board of the Social Insurance Institution of Finland (Kansaneläkelaitos) against a decision by which the Social Insurance Institution had decided to stop A's housing allowance.When making the decision on A's appeal, the appellate board sought additional information concerning the taxation of A's parents.A was not heard concerning this new information.The appellate board rejected A's appeal.A took the case to the Insurance Court.In its decision, the Insurance Court referred to Article 6 of the ECHR and concluded that the procedure before the appellate board had been incorrect as A had not been heard.The Court quashed the decision of the appellate board and returned the matter to the Social Insurance Institution.

25.10.2002 / 27.3.2003 / LISNELLM

Date when decision was rendered: 17.2.1999

Judicial body: Insurance Court = Försäkringsdomstolen = Vakuutusoikeus

Reference: Report No. 10700:97

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

fair trial, right to be heard, social assistance,
rättvis rättegång, rätt att höras, socialhjälp,
oikeudenmukainen oikeudenkäynti, oikeus tulla kuulluksi, sosiaaliapu,

Relevant legal provisions

sections 15 and 23a of the Housing Allowance Act; sections 15 and 24 of the Administrative Procedure Act; Code of Judicial Procedure

= lag om bostadsbidrag 15 §, 23a §; lag om förvaltningsförfarande 15 §, 24 §; rättegångsbalken

= asumistukilaki 15 §, 23a §; hallintomenettelylaki 15 §, 24 §; oikeudenkäymiskaari.

ECHR-6

Abstract

The Social Insurance Institution of Finland (Kansaneläkelaitos) had decided a matter concerning A's housing allowance without giving A the opportunity to comment on a denunciation received by the Social Insurance Institution from a third party.The Social Insurance Institution adjusted A's housing allowance but did not specify the grounds for this decision.The matter was brought first before the appellate board of the Social Insurance Institution and then before the Insurance Court.

With reference to section 23a of the Housing Allowance Act and section 15 of the Administrative Procedure Act concerning the right of a party to be heard, the Insurance Court concluded that the Social Insurance Institution had acted in breach of its duties under these provisions.In addition, the Court noted that the decision of the Social Insurance Institution did not fulfill the criteria set forth in section 24 of the Administrative Procedure Act concerning the presentation of the grounds for a decision.Furthermore, as the appellate board had not given A the opportunity to be heard, the board had acted in violation of the provisions on the right of a party to be heard as prescribed in the Code of Judicial Procedure and Article 6 of the ECHR.The Court quashed the decision of the appellate board and returned the matter to the Social Insurance Institution for a new consideration.

25.10.2002 / 13.11.2012 / RHANSKI

Date when decision was rendered: 21.12.2004

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 2998; S2004/1008

Reference to source

KKO 2004:129.

Decisions of the Supreme Court 2004 II July-December

Avgöranden av Högsta domstolen 2004 II juli-december

Korkeimman oikeuden ratkaisuja 2004 II heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2005

Pages: pp. 821-835

Subject

respect for private life, respect for family life, children, kidnapping, right to be heard,
respekt för privatliv, respekt för familjeliv, barn, kidnappning, rätt att höras,
yksityiselämän kunnioittaminen, perhe-elämän kunnioittaminen, lapset, kidnappaus, oikeus tulla kuulluksi,

Relevant legal provisions

section 46 of the Child Custody and Right of Access Act; sections 21 and 33-3 of the Act on the Implementation of the Child Custody and Right of Access Act; section 6-3 of the Constitution Act

= lag angående vårdnad om barn och umgängesrätt 46 §; lag om verkställighet av beslut beträffande vårdnad om barn och umgängesrätt 21 § och 33 § 3 mom.; grundlagen 6 § 3 mom.

= laki lapsen huollosta ja tapaamisoikeudesta 46 §; laki lapsen huoltoa ja tapaamisoikeutta koskevan päätöksen täytäntöönpanosta 21 § ja 33 § 3 mom.; perustuslaki 6 § 3 mom.

Convention on the Civil Aspects of International Child Abduction (1980); CRC-12; ECHR-8

Abstract

With reference to the Convention on Child Abduction, the Supreme Court had ordered the mother X, who resided in Finland, to return the two children, aged 13 and 10, to their father Y in the United States where the children had their habitual residence.In its decision, the Court found that the children's objection to being returned did not prevent their return to the United States in this case (decision of 5 August 2004, KKO 2004:76).For the enforcement of the Supreme Court decision the court of first instance ordered the bailiff to fetch the children.X appealed against the measure, claiming that the children did not want to return to the United States and that the bailiff had failed to take into account the views of the children.The Supreme Court noted that the Child Custody Act gives a bailiff in some cases a possibility to assess whether the child's objection should be taken into account when enforcing a return order.However, the bailiff's discretion is limited if the child's views have already been heard and the matter been decided by the court which issued the return order.With reference to the judgment of the European Court of Human Rights in the case of Sylvester v.Austria (judgment of 24 April 2003), the Supreme Court ruled that only a change in the relevant facts may exceptionally justify the non-enforcement of a return order, in particular if the child's ability to independent discretion has clearly developed or the child can put forth pertinent new grounds for his or her refusal.A repeated reassessment of the child's views tends to delay the enforcement of the return order, and this is against the main purpose of the Convention on Child Abduction, namely the prompt return of abducted children to the state of their habitual residence.The Court also noted that the European Court of Human Rights has in several cases found a breach of the right to family life owing to the failure of authorities to take adequate and effective measures to enforce a return order (e.g., Sylvester v.Austria mentioned above and Ignaccolo-Zenide v.Romania, judgment of 25 January 2000, Reports of Judgments and Decisions 2000-I).The Court took note of the fact that X had tried to prevent the enforcement of the return order by hiding the children.She had also brought the case to the attention of the media and it had been reported extensively.In the Court's opinion, there was reason to doubt that X through her actions had tried to influence the children in forming their views, and under the circumstances it was not possible to find out the genuine views of the children.Since the return order was issued no specific new reasons had emerged on the basis of which the children's objection to their return should have been assessed differently from the assessment made by the Supreme Court in August 2004.The Supreme Court also found that an additional hearing of the children was not necessary on the basis of the Convention on the Rights of the Child either.The Court ruled that the enforcement of the return order is to be completed and the children are to be returned to the United States.One concurring justice referred in particular to the Convention on the Rights of the Child and section 6-3 of the Constitution Act which prescribes that children shall be allowed to influence matters pertaining to themselves.In his opinion, a child has a right to be heard also in the enforcement of the return order, if possible.Hearing a child does not mean that the child has a right to a final decision in the matter.The concurring justice found that the children should have been heard by the Supreme Court in this case, irrespective of whether the grounds for their objection to return would in fact prevent their return or not.

25.4.2005 / 2.6.2006 / RHANSKI

Date when decision was rendered: 22.3.2006

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

Reference: Report no. 638; 2777/1/05

Reference to source

KHO 2006:12.

Yearbook of the Supreme Administrative Court 2006 January-June

Högsta förvaltningsdomstolens årsbok 2006 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2006 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2009

Pages: pp. 309-327

Subject

fair trial, appeal, right to be heard,
rättvis rättegång, ändringssökande, rätt att höras,
oikeudenmukainen oikeudenkäynti, muutoksenhaku, oikeus tulla kuulluksi,

Relevant legal provisions

section 191-3 of the Land Use and Building Act; sections 33, 34-1 and 63-1-1 of the Administrative Judicial Procedure Act; section 21 of the Constitution Act

= markanvändnings- och bygglag 191 § 3 mom.; förvaltningsprocesslag 33 §, 34 § 1 mom. och 63 § 1 mom. 1 punkten; grundlagen 21 §

= maankäyttö- ja rakennuslaki 191 § 3 mom.; hallintolainkäyttölaki 33 §, 34 § 1 mom. ja 63 § 1 mom. 1 kohta; perustuslaki 21 §.

ECHR-6

Abstract

A city council had approved a local master plan drawn up to guide land use in a specified area.In the master plan, an area in the estate owned by A and B had been indicated as a residential area of single-family houses.On appeal of certain other landowners, the administrative court revoked the city council's decision as far as the residential area of single-family houses in A's and B's estate was concerned.A and B appealed against the decision to the Supreme Administrative Court which dismissed the appeal on the ground that, according to the Land Use and Building Act, only local authorities are entitled to appeal a decision of the administrative court revoking the local authority's decision to approve a land use plan.It is held that land use planning is at the discretion of the local authorities, and a private landowner has no right to request a local plan with a specific content.The decision of the Supreme Administrative Court to dismiss the appeal was made by a vote (6-2).Two members of the Court held that, considering the provisions on equality and protection under the law in the Constitution Act as well as Article 6 of the ECHR, the Land Use and Building Act should be interpreted expansively so as to grant A and B the right of appeal.

However, having dismissed the appeal the Supreme Administrative Court considered the claim as an extraordinary appeal and an application for the annulment of a decision due to a procedural error.The Court held that the possibilities to use the land in the estate owned by A and B for building had been changed substantially by the decision of the administrative court.The decision was therefore of particular significance to the estate owners A and B, whose views had not been heard by the court and who were not entitled to appeal against the court's decision considering the provisions of the Land Use and Building Act.The Supreme Administrative Court referred to the Administrative Judicial Procedure Act and the duty of the appellate authority to review a matter and to obtain evidence at its own initiative in so far as the impartiality and fairness of the procedure and the nature of the case so require.It also referred to the preparatory works of the Act in which it is held, among other things, that in obtaining evidence the appellate authority should pay particular attention to a fair administration of justice, using Article 6 of the ECHR and the case law under that article as guidelines to what is meant by a fair procedure.With reference to the Administrative Judicial Procedure Act the Court concluded that, by revoking a part of the local master plan without giving the estate owners A and B the opportunity to be heard, the administrative court had committed a procedural error which may have had a relevant effect on the decision.The Supreme Administrative Court annulled the decision of the administrative court as far as it was concerning the land area in the estate owned by A and B and referred the matter back to the lower court for a new consideration.

10.4.2007 / 8.9.2009 / RHANSKI

Date when decision was rendered: 1.6.2006

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 1294; R2005/88

Reference to source

KKO 2006:50.

Decisions of the Supreme Court 2006 I January-June

Avgöranden av Högsta domstolen 2006 I januari-juni

Korkeimman oikeuden ratkaisuja 2006 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2006

Pages: pp. 342-347

Subject

fair trial, right to be heard, right to examine witnesses,
rättvis rättegång, rätt att höras, rätt att förhöra vittnen,
oikeudenmukainen oikeudenkäynti, oikeus tulla kuulluksi, oikeus kuulustella todistajia,

Relevant legal provisions

Chapter 8, section 11-1 of the Criminal Procedure Act; section 21 of the Constitution Act

= lag om rättegång i brottmål 8 kapitel 11 § 1 mom.; grundlagen 21 §

= laki oikeudenkäynnistä rikosasioissa 8 luku 11 § 1 mom.; perustuslaki 21 §.

ECHR-6

Abstract

X was charged with negligent violation of official duties.In the pretrial investigation, X denied the charges.The court of first instance had ordered a date for the main hearing and had informed X of the fact that the case may be heard and decided in his absence, in accordance with Chapter 8, section 11 of the Criminal Procedure Act.X was not able to attend the hearing at that date and asked the court to set another date.The court held that X's excuse for non-attendance (namely, participation in a course) was not valid.The case was decided in X's absence, and he was sentenced to a fine.Both the appeal court and the Supreme Court found that the case should not have been decided in the defendant's absence, mainly because X had denied the charges and because in the main hearing the court had heard several witnesses and received plenty of written evidence, including expert opinions.The charges were expressly concerning X's actions and possible negligence and the matter could not be decided without hearing the defendant personally.The case was returned to the first instance court for a rehearing.Both the appeal court and the Supreme Court decided the case on the basis of the Criminal Procedure Act only.However, one concurring justice of the Supreme Court also held that the procedure before the first instance court did not honour X's right to a fair trial as secured by section 21 of the Constitution Act as well as his right to examine or have examined witnesses as prescribed in Article 6-3 of the ECHR.

11.4.2007 / 11.4.2007 / RHANSKI

Date when decision was rendered: 12.6.2008

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

Reference: Report no. 1493; 1150/3/07

Reference to source

KHO 2008:44.

Yearbook of the Supreme Administrative Court 2008 January-June

Högsta förvaltningsdomstolens årsbok 2008 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2008 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2011

Pages: pp. 633-642

Subject

fair trial, right to be heard,
rättvis rättegång, rätt att höras,
oikeudenmukainen oikeudenkäynti, oikeus tulla kuulluksi,

Relevant legal provisions

section 19 of the Insurance Court Act; sections 34 and 63-1-1 of the Administrative Judicial Procedure Act

= lag om försäkringsdomstolen 19 §; förvaltningsprocesslag 34 § och 63 § 1 mom. 1 punkten

= vakuutusoikeuslaki 19 §; hallintolainkäyttölaki 34 § ja 63 § 1 mom. 1 kohta.

ECHR-6

Abstract

In handling X's appeal against the decision of the Social Security Appeal Board, the Insurance Court had requested an opinion from the Social Insurance Institution of Finland.Having heard X's comments, the Court requested a supplementary opinion in which the Social Insurance Institution referred to its previous opinion.X had not been given the opportunity to comment on the supplementary opinion.X applied for the annulment of the Insurance Court's decision from the Supreme Administrative Court.In its decision, the Supreme Administrative Court referred to the Administrative Judicial Procedure Act and its provision on the hearing of the parties.It also referred to Article 6 of the ECHR and the case law of the European Court of Human Rights (Nideröst-Huber v.Switzerland, judgment of 18 February 1997, Reports of Judgments and Decisions 1997-I; K.P. v.Finland, judgment of 31 May 2001 and Kukkonen v.Finland, judgment of 7 June 2007).The Supreme Administrative Court found that a court may depart from the duty to hear the parties in exceptional circumstances only.Moreover, it is for the applicant to assess whether an opinion or report requires the applicant's comments.Although the supplementary opinion was brief, there were no such exceptional circumstances in this case which would have justified the fact that the supplementary opinion had not been communicated to X for possible comments.According to the Administrative Judicial Procedure Act, a decision may be annulled if a procedural error which may have had a relevant effect on the decision has been committed.In the Court's opinion, this provision must not be given a narrow interpretation in cases concerning basic rights and human rights.The Supreme Administrative Court annulled the decision of the Insurance Court and returned the case to the latter court for a rehearing.The decision was made by a vote (4-1).One dissenting justice held that no procedural error had been committed, because the supplementary opinion referred to the previous opinion of the Social Insurance Institution and did not contain any position on points of substance which X would not already have commented.

12.4.2010 / 28.3.2011 / RHANSKI

Date when decision was rendered: 12.6.2008

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

Reference: Report no. 1494; 1282/3/06

Reference to source

KHO 2008:45.

Yearbook of the Supreme Administrative Court 2008 January-June

Högsta förvaltningsdomstolens årsbok 2008 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2008 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2011

Pages: pp. 643-651

Subject

fair trial, right to be heard, oral hearing,
rättvis rättegång, rätt att höras, muntligt förfarande,
oikeudenmukainen oikeudenkäynti, oikeus tulla kuulluksi, suullinen menettely,

Relevant legal provisions

section 19 of the Insurance Court Act; sections 34, 38 and 63-1-1 of the Administrative Judicial Procedure Act

= lag om försäkringsdomstolen 19 §; förvaltningsprocesslag 34 §, 38 § och 63 § 1 mom. 1 punkten

= vakuutusoikeuslaki 19 §; hallintolainkäyttölaki 34 §, 38 § ja 63 § 1 mom. 1 kohta.

ECHR-6

Abstract

The Insurance Court, in the final instance, had rejected X's appeal against the decision of the Social Security Appeal Board.The court had also rejected X's request for an oral hearing, on the grounds that it was manifestly unnecessary because the matter could be reliably assessed on the basis of written evidence, including medical reports.X applied for the annulment of the Insurance Court's decision from the Supreme Administrative Court.X claimed that a procedural error had been committed because of the absence of an oral hearing before the Insurance Court and also because the court had not communicated to X two opinions it had requested from the Social Insurance Institution.

The Supreme Administrative Court ruled that, under the Administrative Judicial Procedure Act, the Insurance Court could reject the request for an oral hearing on the grounds as specified in the Insurance Court's decision.It also found that the decision was not in violation of Article 6 of the ECHR, considering the case law of the European Court of Human Rights pertaining to disputes over social security benefits (Pitkänen v.Sweden, decision of 26 August 2003; Aalto v.Sweden, decision of 18 November 2003 and Elo v.Finland, judgment of 26 September 2006).As far as the hearing of the parties was concerned, the Supreme Administrative Court referred to the Administrative Judicial Procedure Act, Article 6 of the ECHR and the case law of the European Court of Human Rights (Nideröst-Huber v.Switzerland, judgment of 18 February 1997, Reports of Judgments and Decisions 1997-I; K.P. v.Finland, judgment of 31 May 2001 and Kukkonen v.Finland, judgment of 7 June 2007).The Supreme Administrative Court concluded that it is inherent in the right to be heard that all material which may affect the court's decision is brought to the knowledge of the parties to the proceedings and the parties are given an opportunity to present their comments.It is for the parties to say whether an opinion or a report calls for their comments.A court may make exceptions to the right to be heard in rare cases only.In handling X's appeal, the Insurance Court had not communicated to X two opinions submitted by the Social Insurance Institution at the court's request.One of the opinions included references to the medical opinion of an expert doctor at the Social Insurance Institution and the other assessed X's ability to function physically and X's eligibility for care allowance.In the Court's opinion, there were no such exceptional circumstances in this case which would have justified the fact that the opinions had not been communicated to X for comments.Therefore, a procedural error had been committed.According to the Administrative Judicial Procedure Act, a decision may be annulled if a procedural error which may have had a relevant effect on the decision has been committed.In the Supreme Administrative Court's opinion, this provision must not be given a narrow interpretation in cases concerning basic rights and human rights.The Supreme Administrative Court annulled the decision of the Insurance Court and returned the case to the latter court for a rehearing.

13.4.2010 / 28.3.2011 / RHANSKI

Date when decision was rendered: 20.10.2014

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

Reference: Report no. 3199; 3676/1/12

Reference to source

KHO 2014:152.

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, residence permit, right to be heard, fair trial,
utlänningar, uppehållstillstånd, rätt att höras, rättvis rättegång,
ulkomaalaiset, oleskelulupa, oikeus tulla kuulluksi, oikeudenmukainen oikeudenkäynti,

Relevant legal provisions

sections 97-2 and 98-s of the Aliens Act; sections 34-1 and 34-2 of the Administrative Procedure Act; Article 8-2 of Council directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status

= utlänningslag 97 § 2 mom. och 98 § 2 mom.; förvaltningsprocesslag 34 § 1-2 mom.; Rådets direktiv 2005/85/EG om miniminormer för medlemsstaternas förfarande för beviljande eller återkallande av flyktingstatus artikel 8-2

= ulkomaalaislaki 97 § 2 mom. ja 98 § 2 mom.; hallintolainkäyttölaki 34 § 1-2 mom.; pakolaisaseman myöntämistä tai poistamista koskevissa menettelyissä jäsenvaltioissa sovellettavista vähimmäisvaatimuksista annettu neuvoston direktiivi 2005/85/EY 8 artikla 2 kohta.

ECHR-3; ECHR-6-1; Articles 47-1, 47-2 and 52-3 of the Charter of Fundamental Rights of the European Union

Abstract

A and B were Russian citizens.The Finnish Immigration Service had rejected their application for asylum and a residence permit and had refused them entry.The administrative court had dismissed their appeal without giving their councel the opportunity to be heard regarding the country of origin information used by the court when assessing the appeal.The Supreme Administrative Court ruled that there had been no procedural fault which would have affected the applicants' right to a fair trial.The Aliens Act and the Asylum Procedure Directive (2005/85/EC) require that decisions on applications for asylum are based on precise and up-to-date information.However, they do not obligate the determining authority to hear the applicant in an asylum procedure regarding country of origin information.The Supreme Administrative Court noted that the country of origin information did not immediately concern the applicants.As to its contents, the information used by the administrative court was not new or deviate from that used by the Immigration Service.Therefore, it was not necessary to hear the applicants again before the court specifically regarding country information.In their appeal to the administrative court, the applicants had had the opportunity to challenge the information sources used and the conclusions drawn by the Immigration Service.They had also had the opportunity to present new country information differing from that used by the Immigration Service.The Supreme Administrative Court upheld the decision of the administrative court.

In discussing the relevant international provisions, the Supreme Administrative Court referred to the decisions of the European Court of Human Rights in the cases of Maaouia v.France (judgment of 5 October 2000, Reports of Judgments and Decisions 2000-X) and Naumov v.Albania (decision of 4 January 2005) and noted that while decisions regarding the stay and deportation of aliens do not concern the determination of a person's civil rights or obligations, Article 6 of the ECHR was not applicable in this case.However, the court continued that because this case was concerning the implementation of EU law, Article 47 of the EU Charter of Fundamental Rights applied and that Article 47 largely corresponds to the requirements of fair trial as guaranteed in Article 6 of the ECHR.In discussing the assessment of country information, the Supreme Administrative Court also noted the judgment of the European Court of Human Rights in the case of Shakurov v.Russia (judgment of 5 June 2012).

11.12.2015 / 11.12.2015 / 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

Date when decision was rendered: 15.5.2017

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

Reference: Report no. 4048/4/16; 2277

Reference to source

KHO 2017:81.

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, residence permit, children, best interests of the child, right to be heard,
utlänningar, uppehållstillstånd, barn, barnets bästa, rätt att höras,
ulkomaalaiset, oleskelulupa, lapset, lapsen etu, oikeus tulla kuulluksi,

Relevant legal provisions

sections 6(1), 6(2), 97(1), 97(3) and 97a(1) of the Aliens Act; sections 14(3) and 35 of the Administrative Procedure Act; section 6(3) of the Constitution Act

= utlänningslag 6 § 1 och 2 mom., 97 § 1 och 3 mom., 97a § 1 mom.; förvaltningslag 14 § 3 mom. och 35 §; grundlagen 6 § 3 mom.

= ulkomaalaislaki 6 § 1 ja 2 mom., 97 § 1 ja 3 mom., 97a § 1 mom.; hallintolaki 14 § 3 mom. ja 35 §; perustuslaki 6 § 3 mom.

CRC-3-1; CRC-12; Article 24-1 of the Charter of Fundamental Rights of the European Union

Abstract

An Iraqi man A and his son B had applied for international protection but the Finnish Immigration Service had rejected the application and decided that the applicants are to be returned to Iraq.In his appeal to the administrative court, A brought forth the fact that the Immigration Service had not heard B before making a decision on the application.At the time of the decision B was 14 years old.Both the Immigration Service and the administrative court found that hearing the child was manifestly unnecessary, because the grounds for seeking international protection as presented by the applicants were not pertaining to the child.The father A had claimed, among other things, that he had been persecuted because of his Sunni origin and Sunni name.

According to the Aliens Act, before a decision is made concerning a child who is at least 12 years old, the child shall be heard unless such hearing is manifestly unnecessary.The child's views shall be taken into account in accordance with the child's age and level of development.In any decisions that concern a child under 18 years of age, special attention shall be paid to the best interests of the child and to circumstances related to the child's development and health.

The Supreme Administrative Court noted that according to the Aliens Act and its preparatory works, hearing a child, who is aged 12 years or over, in asylum proceedings is clearly the main rule, and possible exceptions to this rule must be interpreted narrowly.The court held that in interpreting the Aliens Act, Article 12 of the CRC, on the right of the child to be heard, read together with Article 3(1) on the best interests of the child, need to be taken into account, along with the views and recommendations of the Committee on the Rights of the Child concerning the interpretation of the relevant CRC provisions.According to the Committee's views, a child's level of understanding is not necessarily always linked to the child's biological age, and therefore, the views of the child have to be assessed on a case-by-case examination.Asylum-seeking and refugee children are in a particularly vulnerable situation, and therefore, it is urgent to fully implement their right to express their views on all aspects of the immigration and asylum proceedings.In addition, the child must have the opportunity to present his or her reasons leading to the asylum claim.

When the application for international protection was initiated in this case, the applicant's child was 13 years old, and he had turned 14 by the time the Immigration Service made its decision.The Supreme Administrative Court found that the child has not been given the opportunity to be heard concerning the reasons leading to the asylum claim.It is apparent from the information submitted to the court that the child's views had not been heard during the asylum investigation and had thus not been taken into account, as required in section 6(3) of the Constitution Act, Article 24(1) of the Charter of Fundamental Rights of the European Union, Article 12 of the CRC and section 6(2) of the Aliens Act.Contrary to what the Immigration Service had held in its statement to the administrative court, the elements on which the application for international protection was based and which were pertaining to the applicant's Sunni origin and Sunni name, concerned both the applicant and his son.On the basis of the written evidence submitted in the case, hearing the child's views could not be regarded as manifestly unnecessary, as held by the Immigration Service and the administrative court.

Unlike the Immigration Service and the administrative court, the Supreme Administrative Court held that the asylum grounds based on A's Sunni origin and Sunni name also concerned the child B.As presented by A in his appeal to the Supreme Administrative Court, the child B had also been bullied at school because of his Sunni origin.The court concluded that the child's views had not been examined or taken into account in accordance with his age and level of development and therefore the decision of the Immigration Service had not been made in the proper order.The Supreme Administrative Court quashed the decisions by the administrative court and the Immigration Service and returned the case to the Immigration Service for reassessment of the application.

15.1.2018 / 15.1.2018 / RHANSKI