Date when decision was rendered: 15.5.1998

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

Reference: Report No. 931; 2306/4/96

Reference to source

KHO 1998:16.

Yearbook of the Supreme Administrative Court 1998 January-June

Högsta förvaltningsdomstolens årsbok 1998 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 1998 tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Administrative Court

Date of publication: 1998

Pages: pp. 102-110

Subject

fair trial, legal protection, constitution,
rättvis rättegång, rättsskydd, grundlagen,
oikeudenmukainen oikeudenkäynti, oikeusturva, perustuslaki,

Relevant legal provisions

section 1 of the Act on Firearms and Ammunition; sections 19 and 24 of the Decree on Firearms and Ammunition; sections 16-1 and 92-2 of the Constitution Act

= lag angående skjutvapen och skjutförnödenheter 1 §; förordning angående skjutvapen och skjutförnödenheter 19 §, 24 §; regeringsformen 16 § 1 mom., 92 § 2 mom.

= laki ampuma-aseista ja ampumatarpeista 1 §; asetus ampuma-aseista ja ampumatarpeista 19 §, 24 §; hallitusmuoto 16 § 1 mom., 92 § 2 mom.

ECHR-6-1

Abstract

With reference to section 1 of the Act on Firearms and Ammunition and sections 19 and 24 of the Decree on Firearms and Ammunition an assistant rural police chief had revoked X's licence to possess a shotgun and a hunting rifle and rejected X's application for a licence to obtain a shotgun.The county administrative board dismissed X's appeal and, on the basis of section 42-2 of the Decree on Firearms, added to its decision a statement that an appeal was not possible.Nevertheless, X appealed to the Supreme Administrative Court.

The Supreme Administrative Court referred to section 42-1 of the Decree on Firearms which provides that a person who is not content with the decision by a police authority has the right to appeal to the county administrative board.Under section 42-2 of the Decree, it is not possible to appeal against the decision by the county administrative board.The court concluded that the prohibition to appeal could be upheld as the case did not concern X's rights and obligations as prescribed by section 16-1 of the Constitution Act and Article 6-1 of the ECHR.However, the court considered the case as an extraordinary remedy, a petition for the reversal of the decisions by the police chief and the county administrative board and rejected the petition (with 5 votes against 3).

Those members of the court who were in the minority agreed that the decisions by the police chief and the county administrative board could be upheld.However, they stated that as far as the case was concerning the decision to revoke X's licenses, it should have been considered as an appeal.The decision to revoke the licenses concerned a right which X had been given on the basis of a previous administrative decision.They based their argumentation on section 16-1 of the Constitution Act which refers to "rights and obligations" and should thus be given a wider interpretation than Article 6-1 of the ECHR which talks about "civil rights and obligations".They also referred to section 92-2 of the Constitution Act which provides that if a provision in a Decree conflicts with a constitutional Act or another Act of Parliament, a judge or other official shall not apply it.Section 42-2 of the Decree on Firearms should thus not have been applied as far as the case concerned X's rights.

23.10.2002 / 31.3.2003 / 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: 3.12.1999

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 3378; R 99/269

Reference to source

KKO 1999:123.

Decisions of the Supreme Court 1999 II July-December

Avgöranden av Högsta domstolen 1999 II juli-december

Korkeimman oikeuden ratkaisuja 1999 II heinä-joulukuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 2000

Pages: pp. 710-714

Subject

fair trial, public hearing, legal protection,
rättvis rättegång, offentligt förhör, rättsskydd,
oikeudenmukainen oikeudenkäynti, julkinen menettely, oikeusturva,

Relevant legal provisions

Chapter 31, sections 1 and 16 of the Code of Judicial Procedure; section 11 of the Act on the Publicity of Court Proceedings; section 16-1 of the Constitution Act

= rättegångsbalken 31 kapitel 1 § och 16 §; lag om offentlighet vid rättegång 11 §; regeringsformen 16 § 1 mom.

= oikeudenkäymiskaari 31 luku 1 § ja 16 §; laki oikeudenkäynnin julkisuudesta 11 §; hallitusmuoto 16 § 1 mom.

ECHR-6; CCPR-14-1

Abstract

In a murder case against A, the court of first instance made a separate decision to hear the case in a closed session and to declare the documents in the case confidential, except for the application for a summons as far as it concerned the description of the criminal act (excluding the identity of the victim) and the requested penalty for the act.The application for a summons was read in a public session.A had himself asked for a closed hearing, but noted that he should have the right to defend himself in public now that only the prosecutor's views of the case had been made public.A appealed against the decision.

According to section 11 of the Act on the Publicity of Court Proceedings, a decision which is made by a court or its chairman on the basis of the Act is not subject to appeal.However, an appeal against such a decision is possible as a part of an appeal against the decision in the case itself.The question was whether A's appeal could be considered as an extraordinary appeal.

According to the Code of Judicial Procedure, an extraordinary appeal on the basis of a procedural fault may be made against a judgment which has become legally binding or a legal decision which is comparable to such a judgment.The Helsinki Court of Appeal concluded that a decision regarding the publicity of the court proceedings was not comparable to a legally binding judgment and an extraordinary appeal against such a decision was not possible.The presenting official of the court and one court member dissented.They referred, among other provisions, to section 16-1 of the Constitution Act, Article 6-1 of the ECHR and Article 14-1 of the CCPR concerning the right to a fair trial and suggested that the provisions of the Code of Judicial Procedure should be interpreted to the benefit of the accused.A's right to a fair trial had been endangered, as the court's decision made the application for a summons partly public, but did not give A the possibility to defend himself in public.

In its decision, the Supreme Court assessed whether the lack of an immediate possibility to appeal jeopardized A's right to the protection of the law and whether the matter was such that it could no longer be remedied when a possible appeal was made against the judgment in the case.It also noted that Article 6-1 of the ECHR presupposes a factual possibility of appeal at least in cases in which the fundamental requirements of a fair trial are infringed.A had the possibility to appeal against the decision in connection with an appeal against the judgment in the case.The Supreme Court concluded that the decision regarding the publicity of the proceedings was not final and in this case not comparable to a legally binding judgment.The appeal was dismissed.

25.10.2002 / 10.3.2003 / 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: 26.3.2002

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

Reference: Report No. 658; 2827/3/00

Reference to source

KHO 2002:28.

Yearbook of the Supreme Administrative Court 2002 January-June

Högsta förvaltningsdomstolens årsbok 2002 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2002 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2004

Pages: pp. 213-224

Subject

respect for private life, respect for family life, aliens, deported persons, deportation, legal protection,
respekt för privatliv, respekt för familjeliv, utlänningar, deporterade personer, utvisning, rättsskydd,
yksityiselämän kunnioittaminen, perhe-elämän kunnioittaminen, ulkomaalaiset, karkotetut henkilöt, karkottaminen, oikeusturva,

Relevant legal provisions

Sections 8, 37, 38, 39 and 43 of the Aliens Act; sections 3, 8 and 9 of Council Directive 64/221/EEC (on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health); section 32-3 of the Administrative Judicial Procedure Act

= utlänningslag 8 §, 37 §, 38 §, 39 § och 43 §; rådets direktiv 64/221/EEG (om samordningen av särskilda åtgärder som gäller utländska medborgares rörlighet och bosättning och som är berättigade med hänsyn till allmän ordning, säkerhet eller hälsa) 3, 8 och 9 artikel; förvaltningsprocesslag 32 § 3 mom.

= ulkomaalaislaki 8 §, 37 §, 38 §, 39 § ja 43 §; neuvoston direktiivi 64/221/ETY (ulkomaalaisten liikkumista ja oleskelua koskevien, yleiseen järjestykseen ja turvallisuuteen sekä kansanterveyteen perustuvien erityistoimenpiteiden yhteensovittamisesta) 3, 8 ja 9 artiklat; hallintolainkäyttölaki 32 § 3 mom.

ECHR-3; ECHR-8; CRC

Abstract

A, who was an EU-citizen, had been sentenced to imprisonment, in Finland, for attempted manslaughter of his former wife with whom he also had a child.A court of first instance had later imposed a restraining order on A.The Directorate of Immigration had deported A to his home country on grounds of public order and public security.It also decided to prohibit A from entry to Finland for a period of five years.When making its decision on A's deportation, the Directorate of Immigration also took into account Articles 3 and 8 of the ECHR and concluded that these provisions did not prevent A's deportation.According to the Directorate of Immigration, the decision on A's deportation could be enforced despite a possible appeal against it.A's deportation had taken place on the following day after the decision had been served on him.Having appealed to the administrative court, which did not change the decision of the Directorate of Immigration, A appealed further to the Supreme Administrative Court.In his appeal, he referred, among other provisions, to Article 8 of the ECHR and to the Convention on the Rights of the Child.

The Supreme Administrative Court referred to Council Directive 64/221/EEC and to the case law of the European Court of Justice concerning this directive, according to which an EU-citizen who has been deported from another EU-country has the same right to legal remedies against administrative actions as the citizens of the deporting country.This means that the person should at least have the possibility to initiate an appeal procedure before the decision on deportation is enforced and, in that way, postpone the deportation.The Supreme Administrative Court concluded that A's deportation had been carried out in breach of Council Directive 64/221/EEC.It overturned the decisions of the Directorate of Immigration and the administrative court and returned the matter to the former for a new consideration.Considering that the decision was overturned because of a procedural fault and noting the grounds presented for A's deportation, the Supreme Administrative Court, with reference to section 32-3 of the Administrative Judicial Procedure Act, ordered that the overturned decision (prohibiting A from re-entering the country) was still to be complied with.The Court did not take a stand on the substantial conditions for A's deportation.

9.5.2003 / 2.3.2017 / RHANSKI

Date when decision was rendered: 31.12.2003

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

Reference: Report No. 3444; 1584/1/03

Reference to source

KHO 2003:102.

Yearbook of the Supreme Administrative Court 2003 July-December

Högsta förvaltningsdomstolens årsbok 2003 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2003 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2007

Pages: pp. 654-661

Subject

equality, legal protection, right to property,
jämlikhet, rättsskydd, äganderätt,
tasa-arvo, oikeusturva, omistusoikeus,

Relevant legal provisions

section 191-3 of the Land Use and Building Act; sections 6, 15, 21 and 22 of the Constitution Act

= markanvändnings- och bygglag 191 § 3 mom.; grundlagen 6 §, 15 §, 21 § och 22 §

= maankäyttö- ja rakennuslaki 191 § 3 mom.; perustuslaki 6 §, 15 §, 21 § ja 22 §

Abstract

The municipal authorities had drawn up a shore plan which had been approved by the municipal council.In the shore plan the estate owned by D had been designated an area for the construction of holiday homes.The owners of the neighbouring estates appealed against the municipal council's decision to the administrative court which revoked the decision as far as the construction area designated for D's estate was concerned.The Supreme Administrative Court dismissed D's appeal on the basis of section 191-3 of the Land Use and Building Act which prescribes that 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 or a building ordinance.If a detailed shore plan has been drawn up by a landowner, however, the landowner is entitled to appeal the decision of the administrative court.The Supreme Administrative Court decided the matter by a vote (5-4).The judges left in the minority referred to sections 6 (equality before the law as well as to various provisions in the Land Use and Building Act concerning appeal in planning issues.According to the judges, the quoted provisions show that landowners should be guaranteed equal rights and equal treatment in planning issues.They noted that the prohibition of appeal in section 191-3 was an exception to the general rules of appeal, which provide for a possibility to appeal to the Supreme Administrative Court against a decision of an administrative court in planning issues.The judges pointed out that when a plan is revoked with regard to a small restricted area only, it may happen that the area is completely left outside a land use plan and, for example, construction on the area is not possible in practice.When the administrative court revokes a part of a plan, it simultaneously takes a stand as to the interpretation of the Land Use and Building Act and its provisions pertaining to the matter.If the prohibition of appeal applies in these situations, the landowner cannot have the decision of the administrative court reviewed by a higher court.Therefore, the judges suggested a narrow interpretation of section 191-3: the prohibition of appeal should not apply to a landowner's appeal in cases where an administrative court has revoked a shore plan with regard to a small restricted area.Consequently, the Supreme Administrative Court should have considered D's appeal.

20.1.2005 / 3.7.2009 / RHANSKI

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: 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: 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: 31.5.2016

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. S2015/754; 1243

Reference to source

KKO 2016:38.

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

effective remedy, legal protection, children, best interests of the child,
effektiva rättsmedel, rättsskydd, barn, barnets bästa,
tehokas oikeussuojakeino, oikeusturva, lapset, lapsen etu,

Relevant legal provisions

Chapter 24 section 6-2 and Chapter 25, section 1-3 of the Code of Judicial Procedure

= rättegångsbalken 24 kapitel 6 § 2 mom. och 25 kapitel 1 § 3 mom.

= oikeudenkäymiskaari 24 luku 6 § 2 mom. ja 25 luku 1 § 3 mom.

Articles 24, 47 and 51 of the EU Charter of Fundamental Rights

Abstract

In a case concerning child maintenance obligations, the three children, who lived in Germany, and the father, who lived in Finland, disagreed on the question whether Finnish or German law was applicable in the case.The court of first instance had decided, by an intermediate judgment, that Finnish law was applicable.The court had also given instructions for appeal against the decision.The appeal court did not change the decision of the first-instance court.The children appealed further to the Supreme Court.In a precedent case KKO:2007:74 the Supreme Court had held that the question of applicable law is usually decided at the preparatory stage of the proceedings.Therefore, such a decision is not an intermediate judgment, as prescribed in Chapter 24, section 6(2) of the Code of Judicial Procedure, but a procedural decision, under Chapter 25, section 1(3), of the Code of Judicial Procedure, which is not subject to appeal because appeal against such a decision is not specifically provided.

The Supreme Court found that the issue of applicable law can only in exceptional cases be resolved by an intermediate judgment or a decision which is subject to separate appeal.This was not the situation in the present case because the further hearing of the case had not become unnecessary owing to the decision on applicable law.The relevant provisions in the Code of Judicial Procedure had not changed since the precedent case KKO:2007:74.

In the court's view, a negative opinion on the possibility to decide the issue of applicable law by an intermediate judgment and, consequently, also on the right of appeal which is separate from the right to appeal against the decision on the principal claim, do not mean that the right to an effective remedy would be restricted.In connection with an appeal against the final decision in the case the parties also have a right to challenge the part of the decision which concerns applicable law.The question is thus primarily, at which stage of the proceedings appeal is allowed.The prohibition of separate appeal against a procedural decision on applicable law can also be justified by the aspect of efficient application of law, because separate appeal possibilities within legal proceedings, in questions pertaining to applicable law, may be detrimental to the aim of conducting speedy and concentrated proceedings.This also concerns matters where the child's best interests muct be a primary consideration.The right to a separate appeal can thus not be justified by aspects pertaining to the nature of the case.

The matter was referred back to the court of first instance.

5.10.2016 / 5.10.2016 / RHANSKI