Date when decision was rendered: 28.7.2005

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

Reference: Report no. 1892; 2105/3/04

Reference to source

KHO 2005:50.

Yearbook of the Supreme Administrative Court 2005 July-December

Högsta förvaltningsdomstolens årsbok 2005 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2005 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2009

Pages: pp. 91-100

Subject

right to liberty, security of person, right to life, integrity, aliens, domestic violence, residence permit,
rätt till frihet, personlig säkerhet, rätt till liv, integritet, utlänningar, familjevåld, uppehållstillstånd,
oikeus vapauteen, henkilökohtainen turvallisuus, oikeus elämään, koskemattomuus, ulkomaalaiset, perheväkivalta, oleskelulupa,

Relevant legal provisions

section 21 of the Aliens Act (378/1991); sections 54-5, 58-4 and 215-1 of the Aliens Act (301/2004); section 7 of the Constitution Act

= utlänningslag (378/1991) 21 §; utlänningslag (301/2004) 54 § 5 mom., 58 § 4 mom. och 215 § 1 mom.; grundlagen 7 §

= ulkomaalaislaki (378/1991) 21 §; ulkomaalaislaki (301/2004) 54 § 5 mom., 58 § 4 mom. ja 215 § 1 mom.; perustuslaki 7 §.

Abstract

A had been issued a fixed-term residence permit on the basis of a family tie.She was married to B who resided in Finland with a permanent residence permit.Some six months after A have moved to Finland, she had to leave her home because of B's violent behaviour.She moved first to a shelter for women who have been subjected to domestic violence, and later to an apartment of her own.When her first residence permit expired, A applied for a new fixed-term residence permit.The Directorate of Immigration rejected her application on the grounds that the requirements under which A had originally been issued a residence permit were no longer met.Though A did not intend to divorce her husband, her family life with B had ended after a fairly short period of time and she had no other ties to Finland.The administrative court agreed with the Directorate of Immigration.Both instances based their decisions of the Aliens Act (378/1991) in force at that time.As the Act did not contain any explicit preconditions for issuing a new fixed-term residence permit, principles concerning revocation of residence permits were applied instead.

In its decision, the Supreme Administrative Court considered both the old (378/1991) and the new Aliens Act (301/2004), which entered into force 1 May 2004.As compared to the old Act, the new Aliens Act contains slightly different rules on the revocation of a residence permit in cases where the requirements under which the permit was issued are no longer met.According to the Government Bill to the Act, one of the principal ideas behind these provisions is that in cases in which the changes in circumstances cannot be attributed to the applicant, the residence permit may not be revoked if the applicant is already residing in Finland.The new Aliens Act also contains explicit provisions concerning the requirements for issuing a new fixed-term residence permit.According to these provisions, an alien who has been issued with a fixed-term residence permit on the basis of family ties may be issued with a new residence permit on the basis of close ties to Finland even when the family ties are broken.The Supreme Administrative Court also referred to section 7 of the Constitution Act which provides for the right to life, personal liberty, integrity and security and states that the personal integrity of an individual shall not be violated.The Court held that in this case, the facts pertaining to A's separation from her husband must be taken into account when considering whether A should be issued with a new fixed-term residence permit.Considering the principles in the new Aliens Act, the circumstances with had led to A's separation from her husband as well as the circumstances A would face if she returned to her home country (Tunisia) as a woman separated from her husband, the Supreme Administrative Court ruled that refusing a residence permit in A's case would be manifestly unreasonable.The Court quashed the decisions of the administrative court and the Directorate of Immigration and returned the matter to the Directorate of Immigration for reconsideration in accordance with the new Aliens Act (301/2004).

26.5.2006 / 10.10.2012 / RHANSKI

Date when decision was rendered: 21.10.2016

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

Reference: Report no. R 16/369; 143418

Reference to source

VaaHO 2016:7.

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

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

Oikeusministeriön ylläpitämän FINLEX-tietopankin hovioikeuksien päätöksiä sisältävä tietokanta

Date of publication:

Subject

domestic violence,
familjevåld,
perheväkivalta,

Relevant legal provisions

chapter 6, sections 4 and 5 of the Penal Code

= strafflagen 6 kapitel 4 § och 5 §

= rikoslaki 6 luku 4 § ja 5 §.

Article 46 of the Convention on preventing and combating violence against women and domestic violence

Abstract

The court of first instance had sentenced X to one year of unconditional imprisonment for three assaults, three illegal threats and a violation of domiciliary peace.X appealed to the court of appeal and claimed that the punishment was unreasonable and not in line with established legal praxis.The court of appeal referred to chapter 6, section 4 of the Penal Code which provides that the sentence shall be determined so that it is in just proportion to the harmfulness and dangerousness of the offence, the motives for the act and the other culpability of the offender manifest in the offence.The court also referred to Article 46 of the Istanbul Convention on preventing and combating violence against women and domestic violence.In considering X's claim the court of appeal took into accout as aggravating circumstances that the offences had been committed repeatedly and against X's girlfriend and one of the offences had been committed with the use of a weapon.Noting that the Istanbul Convention had been incorporated into Finnish law by means of an Act of Parliament, the court found that the punishment imposed on X must be more severe than in cases where the injured party is a person outside the immediate family or partnership and also where the provision in the Penal Code concerning the criminal history of the offender as one of the grounds for increasing the punishment, is not applied as such.The court of appeal concluded that the one-year prison sentence imposed by the first instance court was not too long and that the seriousness of the offences required that the prison sentence is unconditional.

10.3.2017 / 10.3.2017 / RHANSKI

Date when decision was rendered: 14.7.2017

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

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

Reference to source

KHO 2017:121.

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

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

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

Date of publication:

Subject

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

Relevant legal provisions

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

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

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

Abstract

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

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

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

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

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

30.1.2018 / 30.1.2018 / RHANSKI

Date when decision was rendered: 28.2.2019

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. R2017/760; 336

Reference to source

KKO 2019:17.

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

domestic violence, respect for family life, respect for private life, witnesses,
familjevåld, respekt för familjeliv, respekt för privatliv, vittnen,
perheväkivalta, perhe-elämän kunnioittaminen, yksityielämän kunnioittaminen, todistajat,

Relevant legal provisions

Chapter 17, sections 17 and 18-2 of the Code of Judicial Procedure; section 10 of the Constitution Act

= rättegångsbalken 17 kapitel 17 § och 18 § 2 mom.; grundlagen 10 §

= oikeudenkäymiskaari 17 luku 17 § ja 18 § 2 mom.; perustuslaki 10 §.

ECHR-8; Convention on preventing and combating violence against women and domestic violence

Abstract

A had been sentenced to imprisonment for two assaults on his partner B.B had told about the assaults to the police at the scene of the incidents and during the pre-trial investigation.When the proceedings at the court of first instance started, the couple no longer lived together.In the hearing before the court of first instance B told she did not wish to testify against A because she was his former partner and they had two children together.According to the Code of Judicial Procedure, the spouse, former spouse or present partner of a party or a person who is in a corresponding close relationship to a party that is comparable to cohabitation, may refuse to testify.The court may, in a criminal case, decide that an injured party being heard as witness and who does not have any claims does not have the right of confidentiality, if there is cause to suspect that he or she had not personally decided on the right to exercise his or her right of confidentiality.The court of first instance held that as an ex-partner B had no right to refuse to testify.The court of appeal found that B still had a close relationship to A and could thus refuse to testify.However, there was cause to suspect that B had not voluntarily waived her right to testify.Because B refused to testify, both courts decided to take into consideration her statements in the pre-trial investigation and heard as witness the police officer who had talked to B at the scene of the incidents.

Also the Supreme Court found that B had a legal right to refuse to testify against A.Although the couple no longer lived together, B had a close relationship to A, as his ex-partner and because of their two children.Also, the couple had separated only two months before the court proceedings had started.The court noted that the right to refuse to testify protects the confidentiality between persons in a close relationship as well as the right to respect for private and family life as provided for in the Constitution Act and the ECHR.However, domestic violence is not a private issue and the state has a duty to protect victims of domestic violence.This is based on Finland's obligations under the Council of Europe Convention on preventing and combating violence against women and domestic violence.The court may decide that an injured party being heard as witness does not have the right of confidentiality, if there is cause to suspect that he or she had not personally decided to relinquish his or her right to testify.In such a case, the 'cause to suspect' threshod is low.It can be difficult to show that a victim has been subjected to pressure or intimidation before making the decision not to testify against the defendant.Nevertheless, the court must seek to establish the facts by hearing the victim.In this case, the defendant A had not denied that he had also previously used violence against B.In the Supreme Court's view, this alone gives sufficient cause to suspect that B had not personally and voluntarily decided not to exercise her right to testify.Also, B had not presented any reasons for her refusal when specifically questioned by the court.The Supreme Court concluded that the court of appeal could decide that B did not have the right of confidentiality and could thus take into consideration B's statements in the pre-trial investigation and could hear as witness the police officer who had been present at the scene of the incidents.The Supreme Court upheld the decision of the appeal court.

4.4.2019 / 4.4.2019 / RHANSKI