Date when decision was rendered: 22.6.1992

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

Reference: Report No. 2456; 244 and 286/1/91

Reference to source

KHO 1992-A-1.

Yearbook of the Supreme Administrative Court 1992 A, General Part

Högsta förvaltningsdomstolens årsbok 1992 A, allmän del

Korkeimman hallinto-oikeuden vuosikirja 1992 A, yleinen osa

Place of publication: Helsinki

Publisher: The Supreme Administrative Court

Date of publication: 1993

Pages: pp. 9-27

Subject

access to court, right to property, equality before the law,
rätt till domstolsprövning, äganderätt, likhet inför lagen,
oikeus tuomioistuinkäsittelyyn, omistusoikeus, tasa-arvoisuus lain edessä,

Relevant legal provisions

Sections 3 and 4-1 of the Administrative Appeals Act, section 41 of the Constitution Act (and unspecified references to Sections 5 and 6), sections 13, 246-1 and 47 of the Standing Orders of the Council of State

= lag om ändringssökande i förvaltningsärenden 3 § och 4 § 1 mom., regeringsformen 41 § (och ospecificerade hänvisningar till 5 § och 6 §), reglemente för statsrådet 13 §, 246 § 1 mom. och 47 §

= laki muutoksenhausta hallintoasioissa 3 § ja 4 § 1 mom., hallitusmuoto 41 § (ja määrittelemättömät viitteet 5 § ja 6 §),valtioneuvoston ohjesääntö 13 §, 246 § 1 mom. ja 47 §.

ECHR-6-1 (unspecified); ECHRP-1-1 (unspecified)

Abstract

Riparian owners had the right to challenge, in the Supreme Administrative Court, the lawfulness of a national shore conservation plan approved by the Cabinet.After examining the merits of complaints by certain owners, the Court upheld the plan.

The Council of State, ie. the Cabinet, had in December 1990 approved a national shore conservation plan.The Supreme Administrative Court ruled that this decision had consequences of legal relevance for riparian owners, and that the owners therefore had the right to appeal against the Cabinet decision.The Court cited the petition of appeal filed by a group of land owners who were of the opinion that the decision violated the constitutional provisions on the right to property and on equality before the law, as well as international treaties on human rights binding on Finland.According to the ruling of the Court, the Cabinet had neither exceeded its authority nor committed a procedural error.The Cabinet decision did not have such immediate effects on the position of the land owners that it therefore would have been unlawful.There existed sufficient reasons for including the shore areas owned by the applicants in the conservation plan.The Supreme Administrative Court therefore came to the conclusion that the Cabinet decision did not infringe the rights of the applicants.

23.3.1998 / 11.4.2007 / RHANSKI

Date when decision was rendered: 29.2.1996

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

Reference: Report No. 559; 52/5/95

Reference to source

KHO 1996-A-47.

Yearbook of the Supreme Administrative Court 1996 A, General Part

Högsta förvaltningsdomstolens årsbok 1996 A, allmän del

Korkeimman hallinto-oikeuden vuosikirja 1996 A, yleinen osa

Place of publication: Helsinki

Publisher: The Supreme Administrative Court

Date of publication: 1997

Pages: pp. 277-280

Subject

child welfare, parents, rights of the child, access to court,
barnomsorg, föräldrar, barnets rättigheter, rätt till domstolsprövning,
lastenhuolto, vanhemmat, lapsen oikeudet, oikeus tuomioistuinkäsittelyyn,

Relevant legal provisions

Sections 16, 17, 18, 35, 37 of the Child Welfare Act; section 3-1 of the Administrative Appeals Act

= barnskyddslag 16 §, 17 §, 18 §, 35 §, 37; lag om ändringssökande i förvaltningsärenden 3 § 1 mom.

= lastensuojelulaki 16 §, 17 §, 18 §, 35 §, 37 §; laki muutoksenhausta hallintoasioissa 3 § 1 mom.

ECHR-6-1

Abstract

The Supreme Administrative Court maintained the decision of the county administrative court.The county administrative court had rejected the appeal of a mother who had demanded the municipal social welfare board to take urgent action in order to take her child into custody.According to the mother, the child's health and development were seriously threatened due to the alcoholism and violent behaviour of the child's father.The social welfare board, which investigated the case, held that the requirements according to the Child Welfare Act for taking the child into custody were not fulfilled.The county administrative court referred, among other things, to the Article 6-1 of the ECHR in its decision to give leave to appeal against the decision of the social welfare board.

31.3.1998 / 11.4.2007 / RHANSKI

Date when decision was rendered: 24.10.1996

Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus

Reference: Report No. 5561; S96/1093

Reference to source

HelHO 1996:9.

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, access to court,
rättvis rättegång, rätt till domstolsprövning,
oikeudenmukainen oikeudenkäynti, oikeus tuomioistuinkäsittelyyn,

Relevant legal provisions

ECHR-6-1

Abstract

B, who was an athlete, had been suspended for 4 years from competitions by the administration of the central sports organisation A because the doping samples of B had contained traces of prohibited anabolic steroids.B brought the case to court and demanded A invalidate the suspension.A argued that the court did not have jurisdiction ratio materie over the claims asserted in the case.

According to the Helsinki Court of Appeal, the decision to suspend B from competitions had such factual consequences on B as an athlete that the denial of jurisdiction of the court would have violated the right of access to court as guaranteed in Article 6-1 of the ECHR.The suspension affected the rights of B and the decision had such serious consequences on him that B had the right to have the decision reviewed by the court.

31.3.1998 / 2.4.2003 / LISNELLM

Date when decision was rendered: 27.2.1996

Judicial body: Eastern Finland Court of Appeal = Hovrätten i Östra Finland = Itä-Suomen hovioikeus

Reference: Report No. 208; H95/18

Reference to source

I-SHO 1996:1.

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

legal assistance, access to court,
rättshjälp, rätt till domstolsprövning,
oikeusapu, oikeus tuomioistuinkäsittelyyn,

Relevant legal provisions

Chapter 15, section 2 of the Code of Judicial Procedure

= rättegångsbalken 15 kapitel 2 §

= oikeudenkäymiskaari 15 luku 2 §.

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

Abstract

On the basis of Chapter 15, section 2 of the Code of Judicial Procedure, the court of first instance had regarded the legal counsel as inappropriate to act as legal assistant to A and therefore prohibited him from acting as a legal assistant in the case.The legal counsel had a right to appeal against the decision.

31.3.1998 / 2.4.2003 / LISNELLM

Date when decision was rendered: 3.12.1998

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 3831; H97/333

Reference to source

KKO 1998:148.

Decisions of the Supreme Court 1998 II July-December

Avgöranden av Högsta domstolen 1998 II juli-december

Korkeimman oikeuden ratkaisuja 1998 II heinä-joulukuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1999

Pages: pp. 794-796

Subject

access to court,
rätt till domstolsprövning,
oikeus tuomioistuinkäsittelyyn,

Relevant legal provisions

Chapter 4, section 14 of the Coercive Measures Act; section 16 of the Constitution Act

= tvångsmedelslagen 4 kapitel 14 §; regeringsformen 16 §

= pakkokeinolaki 4 luku 14 §; hallitusmuoto 16 §.

ECHR-6-1

Abstract

According to the applicable provisions in the Coercive Measures Act, a request for the termination of a seizure that has been conducted in the course of the investigation of a crime can be brought before a court in certain specific circumstances, whereas in other cases the power to terminate a seizure rests with the police or the prosecution.A person had requested the court to terminate a seizure that had been conducted during a search, as no criminal charge had been presented within the period of four months after the search and seizure, within which time the prosecution should according to the law have sought a court order to prolong the seizure if no criminal charge had been presented.The lower courts declared the case inadmissible, as the specific conditions for presenting such a request to a court did not exist.Hence, the power to terminate the seizure rested with the police and the prosecution.

The Supreme Court stated that considerations based on the protection of lawful rights spoke for an interpretation of relevant legislation according to which a request for the termination of a seizure can be brought before a court also in other cases than those mentioned in Chapter 4, section 14 of the Act.Such an interpretation was consistent with section 16 of the Finnish Constitution Act and Article 6-1 of the ECHR.

The decisions of the lower courts to declare the case inadmissible were quashed and the case was returned to the court of first instance which was ordered to ex officio take the case into reconsideration and to deal with it lawfully, taking into account the reasons for return.

23.10.2002 / 4.4.2003 / LISNELLM

Date when decision was rendered: 14.10.1998

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 3223; S96/2824

Reference to source

KKO 1998:122.

Decisions of the Supreme Court 1998 II July-December

Avgöranden av Högsta domstolen 1998 II juli-december

Korkeimman oikeuden ratkaisuja 1998 II heinä-joulukuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1999

Pages: pp. 665-689

Subject

access to court, fair trial, doping, legal protection,
rätt till domstolsprövning, rättvis rättegång, dopning, rättsskydd,
oikeus tuomioistuinkäsittelyyn, oikeudenmukainen oikeudenkäynti, doping, oikeusturva,

Relevant legal provisions

sections 32 and 33 of the Associations Act; section 8 of the Constitution Act

= föreningslag 32 §, 33 §; regeringsformen 8 §

= yhdistyslaki 32 §, 33 §; hallitusmuoto 8 §.

ECHR-6-1

Abstract

Owing to a positive doping test, a sportswoman had been excluded from competition events for a period of four years through a decision of an association (The Finnish Sports Federation / Suomen Urheiluliitto).The Supreme Court, confirming the decision by the Helsinki Court of Appeal, came to the conclusion that the sportswoman could claim in a court of law that the decision by the association be annulled.According to the Supreme Court, a decision by an association is subject to review by courts of law if there is an evident and sufficient need for judicial protection.In its reasoning that these criteria were met the Supreme Court referred to the protection of a person's honour in the Constitution Act.The Supreme Court found the case admissible and dismissed the claim.

In its decision, the Helsinki Court of Appeal had stated that excluding the sportswoman from competition events affected her rights and interests.Therefore, denying her any right of appeal to a court of law would be in contradiction with Article 6-1 of the ECHR.

23.10.2002 / 4.4.2003 / LISNELLM

Date when decision was rendered: 1.12.1999

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

Reference: Report No. 1387; S98/463

Reference to source

Registry of the Vaasa Court of Appeal

Vasa hovrätts registratorskontor

Vaasan hovioikeuden kirjaamo

Date of publication:

Subject

access to court, arbitration,
rätt till domstolsprövning, skiljedom,
oikeus tuomioistuinkäsittelyyn, sovittelu,

Relevant legal provisions

section 16 of the Constitution Act

= regeringsformen 16 §

= hallitusmuoto 16 §.

ECHR-6

Abstract

A had a franchising agreement with a company administering a chain of pizza bakeries.It turned out later that A was allergic to wheat flour.Because of the occupational disease she had to give up running the bakery.She wanted to transfer the bakery and the franchising agreement to another person.The pizza company accepted the person as a new entrepreneur but not the direct transfer of the bakery by A to this person.A new agreement should have been made directly with the pizza company.A became bankrupt.She brought the dispute before the court of first instance and claimed that the inflexible policy of the pizza company had contributed to her bankruptcy.The pizza company referred to the franchising agreement which provided that any dispute arising from the agreement should be settled by arbitration.According to A, the arbitration clause was unreasonable.The court agreed with the pizza company and did not consider the case.

A appealed to the Vaasa Court of Appeal which in its decision referred to the principle of access to justice as provided for in section 16 of the Constitution Act and Article 6 of the ECHR.The court noted that A had voluntarily given up her right to have her case examined by a court when she accepted the franchising agreement including the arbitration clause.However, under the circumstances of the case, the arbitration clause could be regarded as unreasonable.When signing the agreement, it had not been possible for A to try to amend the standard terms of the agreement.A was bankrupt and insolvent.Arbitration proceedings were fairly expensive, whereas it was possible that A will be granted free legal proceedings before the court of first instance.A's bankruptcy and insolvency were caused by circumstances beyond her control.The court of appeal concluded that the arbitration clause is disregarded and returned the case to the lower court which, according to the appeal court, had jurisdiction over the matter.The Supreme Court did not grant the pizza company leave to appeal.

24.10.2002 / 27.3.2003 / LISNELLM

Date when decision was rendered: 5.5.2000

Judicial body: Administrative Court of Hämeenlinna = Tavastehus förvaltningsdomstol = Hämeenlinnan hallinto-oikeus

Reference: Report No. 00/311/4; 00246/00/5730, 00247/00/5730

Reference to source

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

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

Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta

Date of publication:

Subject

fair trial, right to property, legal protection, access to court, limitations of rights and freedoms,
rättvis rättegång, äganderätt, rättsskydd, rätt till domstolsprövning, inskränkningar av friheter och rättigheter,
oikeudenmukainen oikeudenkäynti, omistusoikeus, oikeusturva, oikeus tuomioistuinkäsittelyyn, oikeuksien ja vapauksien rajoitukset,

Relevant legal provisions

sections 9 and 9b of Act on passenger road transport which is subject to licence (343/1991); section 18 of the Constitution Act

= lag om tillståndspliktig persontrafik på väg 9 §, 9b §; grundlagen 18 §

= laki luvanvaraisesta henkilöliikenteestä tiellä 9 §, 9b §; perustuslaki 18 §.

ECHR-6-1; ECHRP-1-1

Abstract

The county administrative board refused to renew A's licence to provide taxi services.A had plenty of unpaid taxes and other payments which resulted from his taxi business and were being claimed by the authorities through execution proceedings.A could not be regarded as having a good financial standing or being able to take care of his obligations and did not therefore fulfill the requirements for granting a licence as provided for in section 9 of the Act on passenger road transport.A appealed to the administrative court and referred to Article 6-1 of the ECHR and Article 1 of Protocol No. 1 to the ECHR.A claimed that the licence itself constituted his possessions.As the matter was concerning A's civil rights, it should not have been decided by an administrative authority but by a court.

According to the administrative court, Article 6-1 of the ECHR did not presuppose that all matters concerning freedom of occupation or the protection of property should be in the first hand decided by a court.Instead the provision calls for the possibility of a fair trial in case a person wishes to appeal against the decision.The court noted that A had this possibility.Regarding Protocol No. 1, the court drew attention to the fact that, according to Article 1, it is possible to restrict the right to the peaceful enjoyment of one's possessions provided the restriction is proportional, in the public interest and subject to conditions provided for by law.In the court's opinion, the state may take active measures to restrict competition in the taxi branch in order to guarantee the quality of the service and the livelihood of the taxi entrepreneurs.It is justified to say that avoiding statutory taxes and payments could result in the distortion of competition and in inequality among the entrepreneurs on the branch.The requirement concerning the good financial status of the licence holder was thus not in contradiction with Protocol No. 1.

The court further noted that the requirements for obtaining a licence were unambiguous and clear enough to fulfill the criteria of being "provided by an Act", as prescribed in section 18 of the Constitution Act, concerning the right of everyone to freely choose his or her occupation.There was thus no contradiction with the Constitution Act.

The Supreme Administrative Court did not change the decision of the administrative court (decision of 28 February 2001, Report No. 331).

28.10.2002 / 8.5.2003 / LISNELLM

Date when decision was rendered: 12.11.1998

Judicial body: The Administrative Court of Uusimaa = Nylands länsrätt = Uudenmaan lääninoikeus

Reference: Report No. 694/2; 3283/4310/98

Reference to source

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

Databasen FLOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin FLOT-tietokanta

Date of publication:

Subject

children, visiting rights, access to court,
barn, umgängesrätt, rätt till domstolsprövning,
lapset, tapaamisoikeus, oikeus tuomioistuinkäsittelyyn,

Relevant legal provisions

section 25 of the Child Welfare Act; section 16 of the Constitution Act

= barnskyddslagen 25 §; regeringsformen 16 §

= lastensuojelulaki 25 §; hallitusmuoto 16 §.

ECHR-6-1

Abstract

The director of a private children's home, a civil servant and a section of a municipal board had all decided to restrict the right of children, who had been placed in substitute care, to see their parents.The children's father appealed against the decisions to an administrative court.

It is prescribed in section 25 of the Child Welfare Act that a municipal social welfare board and a director of a residential home have a right to restrict the visiting rights of children in substitute care.The administrative court found that also a director of a private children's home may, on the basis of section 25, restrict the right of a child in substitute care to see his or her parents.However, there were no specific provisions in law concerning the possibility to appeal against the decision.The decision of the director of the private children's home in this case concerned a person's rights.Taking into account Article 6-1 of the ECHR and section 16 of the Constitution Act and considering the nature of the matter, the court concluded that it was necessary to bring the matter before an independent tribunal.In the court's opinion, no distinction could be made between the right to appeal against a decision of the director of a private children's home and the right to appeal against a decision made by the director of a children's home which is maintained by municipal or state authorities.The administrative court decided to admit the appeal against the decision of the director of the private children's home.

6.8.2003 / 6.8.2003 / JKOSKIMI

Date when decision was rendered: 21.6.2004

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 1455; H2003/143

Reference to source

KKO 2004:62.

Decisions of the Supreme Court 2004 I January - June

Avgöranden av Högsta domstolen 2004 I januari - juni

Korkeimman oikeuden ratkaisuja 2004 I tammi - kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2004

Pages: 407-409

Subject

access to court, legal protection,
rätt till domstolsprövning, rättsskydd,
oikeus tuomioistuinkäsittelyyn, oikeusturva,

Relevant legal provisions

Chapter 10, section 1 of the Execution Act; sections 21 and 106 of the Constitution Act

= utsökningslag 10 kapitel 1 §; grundlagen 21 § och 106 §

= ulosottolaki 10 luku 1 §; perustuslaki 21 § ja 106 §

Abstract

A bailiff had taken in execution funds from a bank account as a repayment of A's debts.The debtor A and a third party, B, appealed against the execution on the grounds that the funds on the bank account belonged to B, not A.The court of first instance dismissed the appeal on the basis of Chapter 10, section 1-2 of the Execution Act: the funds taken in execution had already been paid to the creditor and the appeal was not concerning an error in the final account.A appealed to the Supreme Court requesting a reversal of the decision of the first instance court.In A's view, dismissing an appeal which had been submitted within the time for appeal was in contradiction with section 21 of the Constitution Act (protection under the law and access to court).According to the Supreme Court's ruling, the fact that the funds had been paid to the creditor before the time for appeal had expired had in this case resulted in B losing a legal remedy through appeal in execution proceedings.The Court regarded such course of action as improper, considering section 21 of the Constitution Act.However, the situation could not be remedied by reversing the decision by which A's appeal had been dismissed, as payments submitted to the creditor could not be refunded by a court's decision in an appeal proceeding.The legal remedies remaining in B's case were claim for damages or claim of refund.Considering this the Supreme Court saw it impertinent to assess separately in a process based on an appeal in execution proceedings whether the execution had violated the rights of a third party.One dissenting justice was of the opinion that the application of Chapter 10, section 1-2 of the Execution Act in this case was in evident conflict with section 21-1 of the Constitution Act.According to section 106 of the Constitution Act, the court shall in such cases give primacy to the provision in the Constitution.Consequently, the Supreme Court should have reversed the decision of the first instance court and returned the case to the lower court for a new consideration.

20.1.2005 / 7.4.2005 / ASADINMA

Date when decision was rendered: 13.8.2004

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

Reference: Report No. 1848; 2397/3/03

Reference to source

KHO 2004:76.

Yearbook of the Supreme Administrative Court 2004 July-December

Högsta förvaltningsdomstolens årsbok 2004 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2004 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2008

Pages: pp. 80-89

Subject

access to court, environmental protection,
rätt till domstolsprövning, miljöskydd,
oikeus tuomioistuinkäsittelyyn, ympäristönsuojelu,

Relevant legal provisions

section 6-1 of the Administrative Judicial Procedure Act; section 20 of the Constitution Act; sections 61-3 and 63 of the Nature Conservation Act; sections 89 and 90-1 of the Hunting Act; section 25a-2 of the Hunting Decree; Articles 1-1, 5-a, 7-3 and 4, and 9-1-a of Council Directive 79/409/EEC (on the conservation of wild birds)

= förvaltningsprocesslagen 6 § 1 mom.; grundlagen 20 §; naturvårdslagen 61 § 3 mom. och 63 §; jaktlagen 89 § och 90 § 1 mom.; jaktförordningen 25a § 2 mom.; Rådets direktiv 79/409/EEG (om bevarande av vilda fåglar) 1 artikel 1 punkten, 5 artikel a punkten, 7 artikel 3 punkten och 4 punkten och 9 artikel 1-a punkten

= hallintolainkäyttölaki 6 § 1 mom.; perustuslaki 20 §; luonnonsuojelulaki 61 § 3 mom. ja 63 §; metsästyslaki 89 § ja 90 § 1 mom.; metsästysasetus 25a § 2 mom.; Neuvoston direktiivi 79/409/ETY (luonnonvaraisten lintujen kohtelusta) 1 artikla 1 kohta, 5 artikla a kohta, 7 artikla 3 kohta ja 4 kohta, 9 artikla 1-a kohta.

Abstract

The case was about the right of appeal of a regional ornithological association in a matter concerning section 25a of the Hunting Decree and derogations from the rules protecting certain common birds during their nesting time.The Supreme Administrative Court discussed the relevant provisions of the Hunting Act and the Hunting Decree against the background of Council Directive 79/409/EEC on the conservation of wild birds.The Court noted that the Act and the Decree do not contain provisions corresponding to those in the Directive concerning the duty to take into account issues pertaining to the preservation of a bird population and their possibilities for reproduction when considering whether derogation can be made from the protection during nesting time of unprotected birds.Keeping in mind the requirement of effective implementation of EC law, the Court stated that there must be a possibility to have the lawfulness of derogation decisions reviewed in an appeal procedure, if necessary.The Court discussed various possibilities of appeal.In case of appeals concerning the Hunting Act, the Administrative Judicial Procedure Act shall be applied.Section 6-1 of this Act grants the right of appeal to any person to whom a decision is addressed or whose right, obligation or interest is directly affected by a decision.The Court also paid attention to the Nature Conservation Act and its section 61-3 which grants the right of appeal to registered local and regional associations whose purpose is to promote nature conservation or environmental protection.However, this right of appeal does not concern matters involving derogations under the said Act.The Court also referred to section 20 of the Constitution Act which, among other things, provides for a general duty to protect the environment and also a duty for the public authorities to endeavour to guarantee for everyone the possibility to influence the decisions that concern their own living environment.Taking into account Council Directive 79/409/EEC, the Nature Conservation Act and section 20 of the Constitution Act in the interpretation of section 6 of the Administrative Judicial Procedure Act, the Supreme Administrative Court concluded that the right of appeal in a matter concerning derogations from the protection during nesting time of unprotected birds could be considered to belong to local or regional associations corresponding to those referred to in section 61-3 of the Nature Conservation Act.Therefore, the regional ornithological association had a right of appeal in this case.One dissenting member of the Court was of the opinion that the ornithological association was not affected by the decision as prescribed in section 6-1 of the Administrative Judicial Procedure Act.Moreover, in his view section 20 of the Constitution Act could not be interpreted as to include an intention to directly expand the right of appeal in matters pertaining to the Hunting Act.

20.1.2005 / 3.7.2009 / RHANSKI

Date when decision was rendered: 23.6.2005

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

Reference: Report no. 1573; 991/3/04

Reference to source

KHO 2005:43.

Yearbook of the Supreme Administrative Court 2005 January-June

Högsta förvaltningsdomstolens årsbok 2005 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2005 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2008

Pages: pp. 613-621

Subject

access to court, legal protection, effective remedy,
rätt till domstolsprövning, rättsskydd, effektiva rättsmedel,
oikeus tuomioistuinkäsittelyyn, oikeusturva, tehokas oikeussuojakeino,

Relevant legal provisions

sections 24, 25 and 26 of the Patents Act; sections 3 and 4 of the Act on Hearing of Appeals before the National Board of Patents and Registration of Finland; sections 3, 4, 5, 6, 58, 59 and 60 of the Administrative Judicial Procedure Act; sections 21 and 106 of the Constitution Act

= patentlag 24 §, 25 § och 26 §; lag om behandling av besvärsärenden vid patent- och registerstyrelsen 3 § och 4 §; förvaltningsprocesslag 3 §, 4 §, 5 §, 6 §, 58 §, 59 § och 60 §; grundlagen 21 § och 106 §

= patenttilaki 24 §, 25 § ja 26 §: laki patentti- ja rekisterihallituksen valitusasioiden käsittelystä 3 § ja 4 §; hallintolainkäyttölaki 3 §, 4 §, 5 §, 6 §, 58 §, 59 § ja 60 §; perustuslaki 21 § ja 106 §

Abstract

The board of appeal of the National Board of Patents and Registration (NBPR) had ruled as inadmissible company A's appeal and complaint against the decision of the NBPR by which company B had been granted a patent.Company A was not a party in the patent application process and had therefore no right to lodge an appeal or a complaint against the decision on the patent application.The Supreme Administrative Court upheld the decision of the board of appeal and rejected company A's appeal.Under section 26 of the Patents Act, only an applicant may appeal against a final decision taken by the patent authority on a patent application.Company A's claim for a right of appeal cannot be based on section 21-1 of the Constitution Act concerning protection under the law, either, as a decision by which company B has been granted a patent is not pertaining to the rights and obligations of company A.Under section 24 of the Patents Act, any one may file an opposition against a granted patent, and thereafter appeal against a final decision taken by the patent authority on account of the opposition if the decision is not in his or her favour.Company A had not used this possibility of lodging an opposition.As section 24 of the Patents Act provides for an effective remedy for third parties, the application of section 26 is not in conflict with section 21-1 of the Constitution Act.In its appeal, company A had also referred to the right of appeal under the Administrative Judicial Procedure Act.The Supreme Administrative Court ruled that the Act was a general act and was not applicable in this case where the Patents Act provided for a specific right of appeal against decisions on patent applications.

26.5.2006 / 3.7.2009 / RHANSKI

Date when decision was rendered: 13.6.2005

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 1469; S2004/294

Reference to source

KKO 2005:72.

Decisions of the Supreme Court 2005 I January-June

Avgöranden av Högsta domstolen 2005 I januari-juni

Korkeimman oikeuden ratkaisuja 2005 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2005

Pages: pp. 507-513

Subject

fair trial, access to court, prostitution, right to work,
rättvis rättegång, rätt till domstolsprövning, prostitution, rätt till arbete,
oikeudenmukainen oikeudenkäynti, oikeus tuomioistuinkäsittelyyn, prostituutio, oikeus työhön,

Relevant legal provisions

Chapter 5, section 6-2 of the Code of Judicial Procedure; sections 18 and 21 of the Constitution Act

= rättegångsbalken 5 kapitel 6 § 2 mom.; grundlagen 18 § och 21 §

= oikeudenkäymiskaari 5 luku 6 § 2 mom.; perustuslaki 18 § ja 21 §.

ECHR-6

Abstract

A had been detained for 51 days in connection with the investigation of an extensive case of pandering.No charges were brought against A and she was released.A made her living as a prostitute.She claimed damages from the state for loss of income during the time in detention.On the basis of Chapter 5, section 6-2 of the Code of Judicial Procedure, all three court instances refrained from issuing a summons and dismissed the claim as being manifestly unfounded.

In its decision, the Supreme Court acknowledged that, in Finland, prostitution is not prohibited or made punishable by law, whereas pandering is.Although everyone has a constitutional right to earn his or her livelihood by the employment, occupation or commercial activity of his or her choice, A's activities were under Finnish legal order regarded as being against public decency, in particular because of their apparent link to pandering as admitted by A herself.Contracts which are against the law or public decency are generally held as invalid, and therefore A could not have claimed her fees from her customers through legal proceedings.Consequently, her claim for damages from the state could not be protected by law.The Supreme Court concluded that A's claim was manifestly unfounded and could be dismissed.

The decision was made by a vote.Two concurring justices referred to the constitutional right to choose an occupation and to the case law of the European Court of Justice (Case C-268/99 Aldona Malgorzata Jany and Others).Prostitution may be regarded as an economic or business activity pursued in a self-employed capacity, provided however that it is based on genuine voluntariness and independence, outside any relationship of subordination or pandering.On the basis of A's claim it could be concluded that her activities were linked with a more extensive case of pandering.A's prostitution could therefore not be regarded as an economic activity pursued in a self-employed capacity, and her claim for damages could be dismissed as being manifestly unfounded.

One dissenting justice found that the case was concerning fundamental rights (the right to choose an occupation, the right to personal liberty, access to court and the right to receive a reasoned decision).A's claim was based on the law, and it was genuine and serious.Moreover, in Finnish legal praxis, a prostitute's income has been considered as taxable income.The dissenting justice concluded that, on these grounds, A's claim was not manifestly unfounded and should therefore not have been dismissed.

26.5.2006 / 26.5.2006 / RHANSKI

Date when decision was rendered: 5.7.2006

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

Reference: Report no. 1717; 288/3/05

Reference to source

KHO 2006:43.

Yearbook of the Supreme Administrative Court 2006 July-December

Högsta förvaltningsdomstolens årsbok 2006 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2006 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2010

Pages: pp. 47-56

Subject

appeal, access to court, non-discrimination, respect for private life, integrity, drugs,
ändringssökande, rätt till domstolsprövning, icke-diskriminering, respekt för privatliv, integritet, narkotika,
muutoksenhaku, oikeus tuomioistuinkäsittelyyn, syrjintäkielto, yksityiselämän kunnioittaminen, koskemattomuus, huumeet,

Relevant legal provisions

sections 28-1-7, 34-1 and 34-2-4 of the Administrative Procedure Act; section 6-2 of the Act on the National Authority for Medicolegal Affairs; sections 25-1, 25-2, 25-5, 29, 38-1 and 39 of the Act on Health Care Professionals; sections 7-1 and 18-1 of the Constitution Act

= förvaltningslag 28 § 1 mom. 7 punkten, 34 § 1 mom och 2 mom. 4 punkten; lag om rättsskyddscentralen för hälsovården 6 § 2 mom.; lag om yrkesutbildade personer inom hälso- och sjukvården 25 § 1, 2 och 5 mom., 29 §, 38 § 1 mom. och 39 §; grundlagen 7 § 1 mom. och 18 § 1 mom.

= hallintolaki 28 § 1 mom. 7 kohta, 34 § 1 mom. ja 2 mom. 4 kohta; laki terveydenhuollon oikeusturvakeskuksesta 6 § 2 mom.; laki terveydenhuollon ammattihenkilöistä 25 § 1, 2 ja 5 mom., 29 §, 38 § 1 mom. ja 39 §; perustuslaki 7 § 1 mom. ja 18 § 1 mom.

ECHR-5; ECHR-6; ECHR-8

Abstract

The National Authority for Medicolegal Affairs, responsible for the supervision of health care professionals, found that it had good reason to presume that A, who was a foreign national and a physician licensed to practice his profession in Finland, was no longer capable of practicing his profession, owing to reduced functional capacity and possible drug addiction.Based on the Act on Health Care Professionals, the National Authority for Medicolegal Affairs ordered A to submit a medical report concerning his health and his ability to work and imposed on A a temporary prohibition to practice his profession.It also held that appeal against the decision was not possible, because this was concerning a preparatory measure and not a final decision by which the issue would have been resolved or dismissed.Nevertheless, A appealed against the decision, to the Supreme Administrative Court, claiming that this was an administrative decision directly concerning his rights and obligations.He argued that he had a right to appeal on the basis of the Act on Health Care Professionals as well as on the basis of section 21 of the Constitution Act (protection under the law and access to court) and Article 6 of the ECHR.He also claimed that the decision amounted to discrimination and did not honour his right to privacy and personal liberty, protected under the Constitution Act and the ECHR.

The Supreme Administrative Court ruled that the decision was appealable, because the possibility of appeal was not specifically restricted in the Act on Health Care Professionals.Moreover, the decision affected A's rights, obligations and interests to such an extent that he was entitled to submit the matter to the consideration of a court.Regarding the merits, the Court held, among other things, that the National Authority for Medicolegal Affairs had previously issued several similar orders in cases where a physician had been suspected of drug addiction, and therefore the decision concerning A did not amount to discrimination on the basis of nationality.Also, the National Authority for Medicolegal Affairs has a right, based on the law, to use the assistance of experts and to submit to the experts information necessary for the performance of their task, confidentiality provisions notwithstanding.It could thus attach to its decision A's medical records and other information for the use of the expert who would assess A's health and ability to work.The decision was also not in violation of A's right to personal liberty, because it had a legitimate aim to guarantee patient security and because it was A's own choice whether he would undergo a medical examination or not.The decision did not mean that A would have been ordered to involuntary treatment.The Supreme Administrative Court concluded that the National Authority for Medicolegal Affairs had acted in accordance with its powers under the Act on Health Care Professionals.A's appeal was dismissed.

11.4.2007 / 2.12.2010 / RHANSKI

Date when decision was rendered: 5.4.2006

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 765; S2005/211

Reference to source

KKO 2006:29.

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. 203-208

Subject

fair trial, access to court,
rättvis rättegång, rätt till domstolsprövning,
oikeudenmukainen oikeudenkäynti, oikeus tuomioistuinkäsittelyyn,

Relevant legal provisions

Chapter 18, section 2, and Chapter 19, section 13 of the Code of Inheritance; section 21 of the Constitution Act

= ärvdabalken 18 kapitel 2 § och 19 kapitel 13 §; grundlagen 21 §

= perintökaari 18 luku 2 § ja 19 luku 13 §; perustuslaki 21 §.

ECHR-6

Abstract

The case was concerning the right of action by a shareholder of a decedent's estate.According to the Code of Inheritance, the property of a decedent's estate may be surrendered to an estate administrator who represents the estate in respect of third parties and can sue and be sued in matters concerning the estate.However, the shareholders of a decedent's estate may also choose to administer the property of the estate jointly in order to settle the estate.In that case, they represent the estate, may sue and be sued in matters concerning the estate.The main issue in this case was whether a shareholder of a decedent's estate has a right to bring an action against a third party to the benefit of the estate in a situation where the estate has been surrendered to an estate administrator and the administrator has assessed the matter and decided not to sue.

The Supreme Court held that surrendering the administration and settlement of an estate to an estate administrator aims at an efficient and prompt settlement without unreasonably infringing on the shareholder's due process safeguards.As soon as the settlement of the estate has been carried out by the estate administrator, a shareholder is entitled to bring an action against a third party and may also claim damages from the administrator on account of the fact that the administrator refused to sue, provided there exist sufficient grounds for liability for damage.The Supreme Court also found that a shareholder's right to bring an action could not be derived from a person's right to have his or her case dealt with by a court of law under section 21 of the Constitution Act and Article 6 of the ECHR.What was at issue in this case was a shareholder's right to bring an action to the benefit of the estate, not his or her right to have his or her own case dealt with by a court.In the Court's opinion, it could not be argued that section 21 of the Constitution Act and Article 6 of the ECHR would prevent an arrangement by which the right to sue on behalf of the estate belongs to the estate administrator alone until the settlement has been carried out and the administrator's task has been finished.

Two dissenting justices of the Supreme Court held that although a shareholder brings an action on behalf of the estate, he or she does not represent the estate in the same way as an estate administrator does.Also, a shareholder sues at his or her own risk or cost, not those of the estate.Therefore, the person can be regarded as protecting his or her own legitimate interests as a shareholder of the estate.The dissenting justices found that in an unclear matter of interpretation such as this, it can be argued that section 21 of the Constitution Act and Article 6 of the ECHR support the interpretation that a shareholder is entitled to bring an action if the estate administrator has decided not to sue.

11.4.2007 / 11.4.2007 / RHANSKI

Date when decision was rendered: 6.4.2006

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 767; S2005/411

Reference to source

KKO 2006:30.

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. 208-212

Subject

fair trial, access to court,
rättvis rättegång, rätt till domstolsprövning,
oikeudenmukainen oikeudenkäynti, oikeus tuomioistuinkäsittelyyn,

Relevant legal provisions

Chapter 4, section 9b-1 and Chapter 10, section 1-1 of the Execution Act; section 21 of the Constitution Act

= utsökningslag 4 kapitel 9b § 1 mom., 10 kapitel 1 § 1 mom.; grundlagen 21 §

= ulosottolaki 4 luku 9b § 1 mom., 10 luku 1 § 1 mom.; perustuslaki 21 §.

ECHR-6

Abstract

Debtor X had worked first as a managing director and later as an employee in a company whose shares were owned by X's spouse.A bailiff had estimated what would constitute a reasonable salary for X and ordered X's employer, the company, to pay one-third of the net salary to the bailiff every month.Such an arrangement is possible under the Execution Act, if a debtor works in a company owned by his or her spouse or relative and, apparently in order to avoid execution, works without a salary or receives a salary which is clearly lower than what is normally paid for equivalent work in the same region, and the debt cannot be collected by any other means.X appealed against the bailiff's decision.The Execution Act prescribes that an appeal against a bailiff's decision may be submitted by those whose rights the decision concerns.According to the preparatory works of the provision, the employer is directly obligated by the bailiff's decision confirming the amount of salary and has therefore a right of appeal, whereas the debtor/employee would as a general rule have no right of appeal.

The court of first instance noted that an employment contract creates rights and obligations for both parties.While the bailiff's decision was concerning an employer's liability, based on an employment contract, to pay wages, it was also concerning the employee and his position.The court concluded that denying X the right of appeal in this case would be in violation of section 21 of the Constitution Act and Article 6 of the ECHR, providing everyone with the right to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice.The court of appeal took a different view.With reference to the preparatory works of the Execution Act and to the fact that the relevant provision was open to interpretation, the court pointed out that X's employer had not appealed against the bailiff's decision and that X had not shown that the decision would have been harmful to his rights.The Supreme Court, however, agreed with the first instance court.In a case such as this, a bailiff's decision is concerning the debtor's rights, because the arrangement means that the net salary paid to the debtor decreases, if his salary is, as he claims, a genuine and appropriate compensation for his work.The Supreme Court decided the case on the basis of the Execution Act only and did not explicitly refer to any constitutional or human rights provisions.

11.4.2007 / 11.4.2007 / RHANSKI

Date when decision was rendered: 26.8.2008

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

Reference: Report no. 2053; 1119/3/07

Reference to source

KHO 2008:62.

Yearbook of the Supreme Administrative Court 2008 July-December

Högsta förvaltningsdomstolens årsbok 2008 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2008 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2011

Pages: pp. 263-266

Subject

aliens, access to court, appeal,
utlänningar, rätt till domstolsprövning, ändringssökande,
ulkomaalaiset, oikeus tuomioistuinkäsittelyyn, muutoksenhaku,

Relevant legal provisions

section 136-5 of the Aliens Act; section 5-1 of the Administrative Judicial Procedure Act; section 21-1 of the Constitution Act

= utlänningslag 136 § 5 mom.; förvaltningsprocesslag 5 § 1 mom.; grundlagen 21 § 1 mom.

= ulkomaalaislaki 136 § 5 mom.; hallintolainkäyttölaki 5 § 1 mom.; perustuslaki 21 § 1 mom.

Abstract

The Finnish Immigration Service (former Directorate of Immigration) had issued X with an alien's passport in which it had, in accordance with the Aliens Act, made an entry which stated that it had been impossible to verify X's identity.X appealed to the administrative court and asked that the entry is removed.The administrative court ruled the appeal inadmissible on the grounds that the entry on X's unverified identity was not a measure by which a case has been resolved and was thus not subject to appeal as provided in the Administrative Judicial Procedure Act.The Supreme Administrative Court granted X leave to appeal.

The Supreme Administrative Court quoted section 136-5 of the Aliens Act which provides that if it is impossible to verify the identity of the alien when issuing an alien's passport, an appropriate entry shall be made in the passport.The Court held that such entry is thus prescribed as an inseparable part of the appealable decision by which an alien's passport is issued.The entry on unverified identity is also of significance with regard to X's legal status.Taking into account section 21-1 of the Constitution Act, which prescribes that everyone has the right to have his or her case dealth with by a legally competent court of law or other authority, the Supreme Administrative Court concluded that making an entry in the alien's passport on X's unverified identity is an administrative decision which may be challenged by an appeal as provided in the Administrative Judicial Procedure Act.The administrative court should thus have declared X's appeal admissible.The case was referred back to the administrative court.

6.7.2009 / 28.3.2011 / RHANSKI

Date when decision was rendered: 31.3.2008

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

Reference: Report no. 624; 2945/1/07

Reference to source

KHO 2008:20.

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. 312-320

Subject

access to court, freedom of religion, prisoners,
rätt till domstolsprövning, religionsfrihet, fångar,
oikeus tuomioistuinkäsittelyyn, uskonnonvapaus, vangit,

Relevant legal provisions

chapter 7 sections 5, 7 and 8 and chapter 20 section 9-1 of the Imprisonment Act; section 5 of the Administrative Judicial Procedure Act; sections 6, 11 and 21-1 of the Constitution Act

= fängelselag 7 kapitel 5 §, 7 § och 8 § och 20 kapitel 9 § 1 mom.; förvaltningsprocesslag 5 §; grundlagen 6 §, 11 § och 21 § 1 mom.

= vankeuslaki 7 luku 5 §, 7 § ja 8 § ja 20 luku 9 § 1 mom.; hallintolainkäyttölaki 5 §; perustuslaki 6 §, 11 § ja 21 § 1 mom.

Abstract

An Orthodox prisoner has requested that he would be served food which was prepared in accordance with the Orthodox Church's teaching on fasting and diet during Lent.A meal during Lent consists of vegetables and fish.The prison governor had rejected the request.The administrative court dismissed the prisoner's appeal against the governor's decision on the grounds that, according to the Imprisonment Act, this type of decision was not subject to appeal.Moreover, in the court's opinion, what was at issue here was the possibility of making an exception to the prisoners' basic diet in the applicant's case, not his right to freedom of religion as guaranteed by the Constitution Act.

The Supreme Administrative Court agreed that a prison governor's decision concerning exceptions to a basic diet is not included in the list of decisions which are subject to appeal as prescribed in the Imprisonment Act.However, the Court also referred to the preparatory works of the Act and more precisely to the opinion of the Constitutional Law Committee of Parliament.The Court pointed out that a list of decisions which are subject to appeal cannot be interpreted as constituting an indirect prohibition of appeal.In assessing whether a decision is subject to appeal, the provisions of the Administrative Judicial Procedure Act concerning right of appeal and admissibility as well as section 21 of the Constitution Act had also to be taken into account.Section 21 of the Constitution Act provides that everyone has the right to have his or her case dealt with by a legally competent court of law or other authority as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice.The Supreme Administrative Court held that a special diet during Lent was as such a part of practising a religion.However, in this case, although the applicant had not been provided with a special diet during Lent, he had had the possibility of receiving vegetarian food.Considering this, this case was not concerning a limitation which would have infringed the core of the right to freedom of religion.Therefore, the applicant's right of appeal could not be directly based on section 21 of the Constitution Act.The Supreme Administrative Court upheld the decision of the administrative court.

14.9.2009 / 28.3.2011 / RHANSKI

Date when decision was rendered: 22.4.2008

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

Reference: Report no. 882; 3705/2/06

Reference to source

KHO 2008:25.

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. 375-404

Subject

access to court, effective remedy, legal protection, civil servants, fair trial,
rätt till domstolsprövning, effektiva rättsmedel, rättsskydd, tjänstemän, rättvis rättegång,
oikeus tuomioistuinkäsittelyyn, tehokas oikeussuojakeino, oikeusturva, virkamiehet, oikeudenmukainen oikeudenkäynti,

Relevant legal provisions

sections 5 and 58 of the State Civil Servants Act; sections 21, 22 and 106 of the Constitution Act

= statstjänstemannalag 5 § och 58 §; grundlagen 21 §, 22 § och 106 §

= valtion virkamieslaki 5 § ja 58 §; perustuslaki 21 §, 22 § ja 106 §.

ECHR-6; CCPR-14

Abstract

X had a public office at the faculty administration of a university.The faculty council decided that X's post would be transferred from the faculty to the university central administration.X objected to the decision.According to the State Civil Servants Act, a decision concerning the transfer of a public office is not subject to appeal.In such a case, the alternative is extraordinary appeal on grounds provided in the Administrative Judicial Procedure Act.The Supreme Administrative Court found that the requirements for the annulment of the decision, as a means of extraordinary appeal under the Administrative Judicial Procedure Act, were not fulfilled in this case.The Court then discussed the possibility to consider X's appeal despite the prohibition against appeal in the State Civil Servants Act.

The Court pointed out that under the State Civil Servants Act, a post which has not been declared vacant, cannot be transferred without the consent of the civil servant who holds the post.According to the Court, the requirement of consent was prescribed in order to protect the legal status of civil servants and their independent and permanent position.Therefore, a decision on the transfer of a public office pertains to the rights and obligations of a civil servant.The Court found that the right of appeal under section 21 of the Constitution Act, which refers to a person's rights and obligations, may have a wider scope of application as compared to Article 6 of the ECHR which specifically refers to "civil rights and obligations" and whose applicability in cases pertaining to civil servants is restricted.In the Court's opinion, extraordinary appeal under the Administrative Judicial Procedure Act could not be regarded as an effective remedy in this case.Applying the prohibition against appeal in section 58 of the State Civil Servants Act would prevent X from exercising her right of appeal as guaranteed in section 21 of the Constitution Act and would thus be in evident conflict with the Constitution, as prescribed in section 106 of the Constitution Act.Therefore, the Court concluded, section 58 should not be applied in this case and X's appeal should be considered despite the prohibition against appeal.The Court then quashed the decision of the faculty council on the grounds that the decision was contrary to the State Civil Servants Act because it had been made without X's consent.

9.4.2010 / 28.3.2011 / RHANSKI

Date when decision was rendered: 11.2.2010

Judicial body: Insurance Court = Försäkringsdomstol = Vakuutusoikeus

Reference: Report no. 1311:2008

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

pension, appeal, access to court, constitution,
pension, ändringssökande, rätt till domstolsprövning, grundlagen,
eläke, muutoksenhaku, oikeus tuomioistuinkäsittelyyn, perustuslaki,

Relevant legal provisions

sections 128-2 and 129-2 of the Employees' Pensions Act; section 6 of the Administrative Judicial Procedure Act; section 21 of the Constitution Act

= lag om pension for arbetstagare 128 § 2 mom. och 129 § 2 mom; förvaltningsprocesslag 6 §; grundlagen 21 §

= työntekijän eläkelaki 128 § 2 mom. ja 129 § 2 mom.; hallintolainkäyttölaki 6 §; perustuslaki 21 §

Abstract

X had been granted an old-age pension.In the pension application, X had told he had been working both in Finland and in Sweden but was not going to apply for pension in Sweden.X was not satisfied with the amount of the pension and appealed the pension provider's decision to the Employee Pensions Appeal Board.The Appeal Board referred to the Employees' Pensions Act which provides that a party who has been insured in two or more EU countries and who is dissatisfied with the decision issued by the pension provider may appeal the decision after having received the summarised statement containing decisions of all the EU countries, as referred to in Article 48 of Council Regulation (EEC) No. 574/72 on the implementation of EC Regulation on social security.The Appeal Board found that without the summarised statement, there is no right of appeal and dismissed X's appeal as premature without considering it.The pension provider appealed the decision of the Appeal Board to the Insurance Court and requested that X's appeal concerning the pension amount is considered in order to safeguard X's legal rights.The Insurance Court noted that X had indicated that he was not going to apply for pension in Sweden, at least not yet.Therefore, X would not at this stage obtain the requested summarised statement.Consequently, if the Appeal Board's decision remained the final decision concerning X's right of appeal, this would jeopardize X's constitutional right to have a decision pertaining to his pension reviewed by a court of law or other independent organ for the administration of justice.The Insurance Court concluded that in order to ensure the protection of X's constitutional rights, it is necessary that the Appeal Board considers at this stage X's claim concerning the adjustment of the amount of the pension, despite the fact that this deviates from the provisions on the regular appeals procedure as provided for in section 129 of the Employees' Pensions Act and the relevant EU regulations on social security.

15.11.2012 / 16.11.2012 / RHANSKI