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Date when decision was rendered: 17.4.1997 Judicial body: Insurance Court = Försäkringsdomstolen = Vakuutusoikeus Reference: Report No. 12569/95/1252 Reference to source Electronic database FVAK within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen FVAK inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin FVAK-tietokanta Date of publication: Subject
freedom of religion,
unemployment,
Relevant legal provisions Section 7-1 of the Unemployment Security Act = lag om utkomstskydd för arbetslösa 7 § 1 mom. = työttömyysturvalaki 7 § 1 mom. ECHR-9 (implicit reference) Abstract A, who was a Jehovah´s Witness, had been offered a job as an office employee at the Armed Forces.She refused to take the job and argued that although she would not carry a gun in her work, it was against her religious conviction to work for the Armed Forces.The unemployment fund rejected A´s right to receive unemployment benefit during a certain period on the grounds that she had without an adequate cause refused to take the job.A appealed against the decision to the Unemployment Appeal Board, which did not change the decision.A lodged an appeal with the Insurance Court. The Insurance Court referred to section 7-1 of the Unemployment Security Act and argued that because of her religious conviction, A had an adequate reason to refuse to accept the job at the Armed Forces.The Court also regarded the situation of A as comparable to that of conscripts who are Jehovah´s Witnesses and can be exempted from military service or alternative service on the basis of the Act on Exemption of Jehovah´s Witnesses from National Service. 2.4.1998 / 11.4.2007 / RHANSKI
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| [2 / 15] |
Date when decision was rendered: 16.1.1997 Judicial body: Insurance Court = Försäkringsdomstolen = Vakuutusoikeus Reference: Report No. 01713/96/108 Reference to source Registry of the Insurance Court Försäkringsdomstolens registratorskontor Vakuutusoikeuden kirjaamo Date of publication: Subject
freedom of religion,
unemployment,
muslims,
Relevant legal provisions Section 20-1 of the Act on Labour Market Subsidies; section 9-1 of the Unemployment Security Act = lag om arbetsmarknadsstöd 20 § 1 mom.; lag om utkomstskydd för arbetslösa 9 § 1 mom. = laki työmarkkinatuesta 20 § 1 mom.; työttömyysturvalaki 9 § 1 mom. ECHR-9 Abstract A, who was a Muslim woman, had been interviewed for a job.During the interview she had told that she was a Muslim and because of her religion would cover her head with a scarf.She was interested in getting the job and had even offered to work on probation.Yet she did not get the job.The Unemployment Appeal Board rejected her right to receive, for a certain period of time, a certain form of unemployment benefit.The decision was based on the fact that she had without an adequate cause refused to take the job.A appealed to the Insurance Court.The Insurance Court referred to national legislation concerning unemployment benefits and to Article 9 of the ECHR and stated that A had a right to practice her religion and that Muslim women in general cover their heads with a scarf.It was not on account of her own behaviour that she was not employed.Therefore, she had the right to receive the benefit. 2.4.1998 / 11.4.2007 / RHANSKI
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| [3 / 15] |
Date when decision was rendered: 20.3.1997 Judicial body: Insurance Court = Försäkringsdomstolen = Vakuutusoikeus Reference: Report No. 05142/96/955 Reference to source Registry of the Insurance Court Försäkringsdomstolens registratorskontor Vakuutusoikeuden kirjaamo Date of publication: Subject
freedom of religion,
unemployment,
Relevant legal provisions Section 7-1 of the Unemployment Security Act = lag om utkomstskydd för arbetslösa 7 § 1 mom. = työttömyysturvalaki 7 § 1 mom. ECHR-9 Abstract A, who was a Jehovah's Witness, had been offered a job as a cleaner at a Lutheran church.She refused to take the job and argued that it was against her religious conviction to clean a Lutheran church.The unemployment fund rejected her right to receive unemployment benefits during a certain period, owing to the fact that she had refused to take the job without an adequate cause.A appealed against the decision to the Unemployment Appeal Board, which did not change the decision.A lodged an appeal with the Insurance Court.The Insurance Court referred to Article 9 of the ECHR and section 7-1 of the Unemployment Security Act and argued that because of her religious conviction, A had an adequate reason to refuse to accept the job as a cleaner at a Lutheran church. 2.4.1998 / 11.4.2007 / RHANSKI
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Date when decision was rendered: 25.11.2004 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 3007; 907/3/04 Reference to source KHO 2004:99. 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. 263-272 Subject
freedom of religion,
children,
Relevant legal provisions sections 1-1, 3-2 and 6 of the Freedom of Religion Act; section 13 of the Basic Education Act; section 5-1 of the Child Custody and Right of Access Act; section 11 of the Constitution Act = religionsfrihetslag 1 § 1 mom., 3 § 2 mom. och 6 §; lag om grundläggande utbildning 13 §; lag angående vårdnad om barn och umgängesrätt 5 § 1 mom.; grundlagen 11 § = uskonnonvapauslaki 1 § 1 mom., 3 § 2 mom. ja 6 §; perusopetuslaki 13 §; laki lapsen huollosta ja tapaamisoikeudesta 5 § 1 mom.; perustuslaki 11 § Abstract A and B were divorced and had joint custody of their two children who lived with their mother, A.B was a member of the Evangelical Lutheran Church, but A and the children did not belong to any religious community.The children had previously taken part in religious education at school, but A requested that they were to be taught ethics which is available as an alternative to Lutheran religious instruction in Finnish schools.B objected to this and demanded that the children would continue to participate in religious education.The municipal board of education decided that, as the parents disagreed, the children should continue to attend religious education.The administrative court agreed with the board.The Supreme Administrative Court noted that, in accordance with the right to freedom of religion, no one can be obliged to participate in religious education which does not correspond to the person's own religious opinion.Section 13 of the Basic Education Act prescribes that a pupil who does not belong to a religious community has a right to attend majority (Lutheran) religious education.The provider of basic education shall be notified of the wish to exercise that right by the pupil's parent or custodian.According to the Freedom of Religion Act, the custodians shall jointly decide on the religious affiliations of a child, and according to the Child Custody Act, the custodians of a child shall make joint decisions relating to the child, unless otherwise provided or ordered.Taking these provisions into account, the Supreme Administrative Court found that one custodian could not make a valid notification under section 13 of the Basic Education Act if the other custodian objected to it.The Court ruled that the decision of the municipal board of education was contrary to law as it meant that children who did not belong to any religious community were required to attend religious education.The Supreme Administrative Court quashed the decisions of the board and the administrative court but did not take a stand as to how the children's education should be arranged in this case. 20.1.2005 / 3.7.2009 / RHANSKI
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Date when decision was rendered: 20.12.2006 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 3494; 2823/1/05 Reference to source KHO 2006:98. 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: p. 739-745 Subject
freedom of religion,
freedom of expression,
non-discrimination,
Relevant legal provisions sections 4 and 6 of the Non-Discrimination Act; section 6 of the Administrative Procedure Act; sections 6, 11, 12 and 22 of the Constitution Act = lag om lika behandling 4 § och 6 §; förvaltningslag 6 §; grundlagen 6 §, 11 §, 12 § och 22 § = yhdenvertaisuuslaki 4 § ja 6 §; hallintolaki 6 §; perustuslaki 6 §, 11 §, 12 § ja 22 §. ECHR-9; ECHR-10; ECHR-14 Abstract An association of freethinkers wanted to hire space for advertising in the city busses in order to publicize their new web page where they encouraged people to secede from the Church.The City Transport Board decided not to rent advertising space for the association.With reference to the Non-Discrimination Act, the Constitution Act and the ECHR, the association claimed that the Board's decision violated freedom of religion, freedom of expression and the principle of equal treatment by differentiating between advertisers on the basis of their conviction.It also referred to section 22 of the Constitution Act which prescribes that the public authorities shall guarantee the observance of basic rights and liberties and human rights.The Supreme Administrative Court held that section 22 does not obligate the City Transport Board to rent out space for advertising.The Board did not abuse its discretion and the decision was not in any way contrary to law.The Board's decision did not prevent the association from enjoying its freedom of expression, nor was it contrary to the association's freedom of religion and conscience or the principle of equality. 10.4.2007 / 2.12.2010 / RHANSKI
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Date when decision was rendered: 29.12.2006 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 3670; 1511/3/05 Reference to source Registry of the Supreme Administrative Court Högsta förvaltningsdomstolens registratorskontor Korkeimman hallinto-oikeuden kirjaamo Date of publication: Subject
right to education,
freedom of religion,
cultural rights,
Relevant legal provisions sections 2, 3, 7, 14, 15-1 and 26-1 of the Basic Education Act; sections 11, 16-1 and 123-2 of the Constitution Act = lag om grundläggande utbildning 2 §, 3 §, 7 §, 14 §, 15 § 1 mom., 26 § 1 mom.; grundlagen 11 §, 16 § 1 mom., 123 § 2 mom. = perusopetuslaki 2 §, 3 §, 7 §, 14 §, 15 § 1 mom., 26 § 1 mom.; perustuslaki 11 §, 16 § 1 mom., 123 § 2 mom. ECHRP-1-2; CCPR-18-4; CESCR-13-3 Abstract The government had authorised a Christian school association to provide education based on Christian convictions, on condition that the association will also draft and adopt a curriculum for education covering the general national objectives of education as defined by the National Board of Education in accordance with the Basic Education Act.In the opinion of the association, the condition contained an obligation to provide basic education which was non-denominational.The association appealed to the Supreme Administrative Court, claiming among other things that the condition was in violation of freedom of religion and conviction.The Supreme Administrative Court noted that, according to the Basic Education Act, basic education shall be governed by a unified national core curriculum as determined by the government and the National Board of Education.Within its competence under the Act, the government may grant an authorisation on condition that the statutory-based national objectives are fulfilled.Such a condition is not in breach of the Basic Education Act, nor is it in violation of freedom of religion and right to education as prescribed in the Constitution Act and in the human rights conventions obligating Finland, considering that, in accordance with the Decree on national objectives of education and distribution of lesson hours, when providing education according to a particular ideology, in addition to the national objectives of education, the pupils are also provided with knowledge and skills based on that ideology.The Supreme Administrative Court also found that the Basic Education Act respects the right of the parents to ensure the religious education of their children in conformity with their own convictions, considering that the parents have a right to decide that their children receive religious education at home or that such education is provided by some other education provider than those defined in the Basic Education Act so that the children do not attend education referred to in the Act.The Court concluded that the government's decision was not in violation of the right of the association to provide basic education according to a particular ideology and was also not in violation of constitutional rights or human rights.The appeal was dismissed. 11.4.2007 / 11.4.2007 / RHANSKI
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| [7 / 15] |
Date when decision was rendered: 29.12.2006 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 3671; 1557/3/05 Reference to source Registry of the Supreme Administrative Court Högsta förvaltningsdomstolens registratorskontor Korkeimman hallinto-oikeuden kirjaamo Date of publication: Subject
right to education,
freedom of religion,
cultural rights,
Relevant legal provisions sections 2, 3, 7 and 26 of the Basic Education Act; sections 16-1 and 123-2 of the Constitution Act = lag om grundläggande utbildning 2 §, 3 §, 7 § och 26 §; grundlagen 16 § 1 mom. och 123 § 2 mom. = perusopetuslaki 2 §, 3 §, 7 § ja 26 §; perustuslaki 16 § 1 mom. ja 123 § 2 mom. ECHRP-1-2; CCPR-18-4; CESCR-13-3 Abstract According to the Basic Education Act, in addition to education provided by local authorities, the government may authorise a registered association or a foundation to provide basic education.Such authorisation also means a state subsidy.In this case, the government had rejected the application for an authorisation to provide education submitted by a Christian school association.As grounds for its decision the government stated, among other things, that the number of students was small and there were no specific regional or national educational and cultural needs supporting the application.Moreover, the plans for arranging the education, as presented in the application, were inadequate and the curriculum was incomplete.The association appealed against the decision to the Supreme Administrative Court, claiming that the decision was contrary to law and criticizing in particular the grounds presented by the government for the needs-based assessment of the application.The Supreme Administrative Court dismissed the appeal.In the Court's opinion, the government's decision was based on grounds which were in accordance with the Basic Education Act.The Court also referred to the right to education, as prescribed in sections 16 and 123 of the Constitution Act, and to the right of parents to ensure the education of their children in conformity with their own convictions and to choose for their children schools, other than those established by public authorities, as prescribed in Article 2 of Protocol No. 1 to the ECHR, Article 18-4 of the CCPR and Article 13-3 of the CESCR.The Court held that the government's decision did not restrict these human rights nor prevent the association from arranging education as private tuition at its own expense.The Court also pointed out that the quoted human rights provisions do not require that education as prescribed in the provisions should be supported by public funds. 11.4.2007 / 11.4.2007 / RHANSKI
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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,
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
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| [9 / 15] |
Date when decision was rendered: 8.2.2008 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 181; 284/3/07 Reference to source KHO 2008:8. 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. 162-171 Subject
freedom of religion,
non-discrimination,
church,
Relevant legal provisions chapter 5 section 1-1 and chapter 8 section 1 of the Church Act; chapter 5 section 1-1, chapter 6 sections 18, 22, 24-1 and 34 of the Church Order; sections 2-1-1, 4, 6 and 7 of the Equality Act; sections 6-2 and 11 of the Constitution Act = kyrkolagen 5 kapitel 1 § 1 mom. och 8 kapitel 1 §; kyrkoordning 5 kapitel 1 § 1 mom., 6 kapitel 18 §, 22 §, 24 § 1 mom. och 34 §; jämlikhetslagen 2 § 1 mom. 1 punkten, 4 §, 6 § och 7 §; grundlagen 6 § 2 mom. och 11 § = kirkkolaki 5 luku 1 § 1 mom. ja 8 luku 1 §; kirkkojärjestys 5 luku 1 § 1 mom., 6 luku 18 §, 22 §, 24 § 1 mom. ja 34 §; laki naisten ja miesten välisestä tasa-arvosta 2 § 1 mom. 1 kohta, 4 §, 6 § ja 7 §; perustuslaki 6 § 2 mom. ja 11 § Abstract X had applied for a post as a vicar.However, the Cathedral Chapter found that X was not eligible under the Church Order and excluded him from the list of candidates for the election of a vicar.In an interview with the Cathedral Chapter, X had told that because of his religious conviction he would not hold church services in cooperation with a female priest.Having been excluded from the election, X asked the Cathedral Chapter to rectify its decision.He claimed that his attitude towards female priests falls within the ambit of freedom of religion and conviction, and his exclusion form the list of candidates constituted discrimination on the basis of religious conviction. The Cathedral Chapter rejected the request.It found that the Church Act or the Church Order did not contain any provisions which would allow church officials to leave their tasks and duties unattended because of their religious conviction or for reasons of conscience.Differentiated treatment cannot be accepted on the grounds that it is based on a person's conviction.The Cathedral Chapter also pointed out that, under the Equality Act, male and female priests cannot be treated differently on the basis of gender.The Act also requires that in managing work, distributing tasks and arranging working conditions, an employer shall not treat employees differently on the basis of gender.Arranging shifts on the basis of gender thus constitutes discrimination.Although the Equality Act is explicitly not applicable to activities associated with the religious practices of the church, it is applicable in most everyday activities of the church.In the Cathedral Chapter's view, X's statement, that he would not hold church services in cooperation with a female priest, constituted discrimination based on gender.By his statement, X had announced in advance that he was not prepared to attend to all his tasks and duties as a vicar and work as the head of a parish and a foreman to the parish staff.The Cathedral Chapter concluded that there were sufficient and weighty reasons to hold that X was not eligible for the office. X appealed further to the administrative court, but the court dismissed the appeal much on the same grounds as the Cathedral Chapter.The court emphasized that when holding a church service, a vicar was attending to his or her duties, not practising his or her religion in the meaning of the right to freedom of religion as guaranteed by the Constitution Act.X's statement that he was not prepared to hold church services in cooperation with a female priest, would lead to discriminatory practices in terms of arranging shifts on the basis of employees' gender.This was as such against the Equality Act.The court did not change the decision of the Cathedral Chapter.Also the Supreme Administrative Court rejected X's appeal and upheld the decision of the administrative court. 15.9.2009 / 28.3.2011 / RHANSKI
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Date when decision was rendered: 14.10.2009 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 2506; 3146/1/08 Reference to source KHO 2009:87. Yearbook of the Supreme Administrative Court 2009 July-December Högsta förvaltningsdomstolens årsbok 2009 juli-december Korkeimman hallinto-oikeuden vuosikirja 2009 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: pp. 588-598 Subject
asylum,
freedom of religion,
aliens,
Relevant legal provisions sections 87, 88, 88a and 88b of the Aliens Act; section 11 of the Constitution Act = utlänningslag 87 §, 88 §, 88a § och 88b §; grundlagen 11 § = ulkomaalaislaki 87 §, 88 §, 88a § ja 88b §; perustuslaki 11 §. General reference to freedom of religion as prescribed in international human rights conventions binding on Finland. Abstract X, who was a Sunni Muslim and a Kurd, had sought asylum and residence permit in Finland.The Immigration Service rejected X's application and decided he is to be returned to his home country Iran.The administrative court rejected X's appeal.In his appeal to the Supreme Administrative Court, X told that after the administrative court had given its decision, X had renounced Islam and had been baptized and had adopted the Christian faith.The Supreme Administrative Court granted X leave to appeal and ordered a stay of enforcement of the decision to remove X from the country.In its decision, the Supreme Administrative Court considered freedom of religion and the right to change one's religion or convictions, the implementation of Council Directive 2004/83/EC on minimum standards for the qualification and status of third-country nationals and stateless persons as refugees, and the UNHCR guidelines on religion-based refugee claims (2004).The Court noted that the circumstances had changed as far as X's religious convictions were concerned.In the Court's view, it could not be excluded that renouncing Islam and converting to Christianity would cause a risk of persecution and inhuman treatment in Iran.Moreover, the recently adopted Penal Code in Iran made renouncing Islam a punishable offence.The Supreme Administrative Court revoked the decisions of the Immigration Service and the administrative court.It referred the case back to the administrative court and ordered the court to hold an oran hearing in which the circumstances and genuineness of X's conversion are examined. 24.11.2009 / 21.10.2010 / RHANSKI
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| [11 / 15] |
Date when decision was rendered: 26.11.2009 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 2796; 3485/2/08 Reference to source KHO 2009:95. Yearbook of the Supreme Administrative Court 2009 July-December Högsta förvaltningsdomstolens årsbok 2009 juli-december Korkeimman hallinto-oikeuden vuosikirja 2009 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: pp. 687-708 Subject
freedom of religion,
church,
fair trial,
independent and impartial tribunal,
equality,
Relevant legal provisions chapter 5, section 1, chapter 7, section 5-2, chapter 17a, section 3, chapter 19, section 2-3, chapter 23, sections 8-1, 8-2 and 9-1, chapter 24, sections 4-1 and 4-2, and chapter 25, section 5-1 of the Church Act; chapter 2, section 6-1, chapter 5, sections 1-1 and 6, chapter 6, sections 3-1, 3-2 and 3-3 and chapter 18, section 1 of the Church Order; sections 6, 27, 28-1-7 and 40 of the Administrative Procedure Act; Equality Act; section 11 of the Constitution Act = kyrkolagen 5 kapitel 1 §, 7 kapitel 5 § 2 mom., 17a kapitel 3 §, 19 kapitel 2 § 3 mom., 23 kapitel 8 § 1 mom. och 2 mom., 9 § 1 mom., 24 kapitel 4 § 1 mom. och 2 mom., 25 kapitel 5 § 1 mom.; kyrkoordning 2 kapitel 6 § 1 mom., 5 kapitel 1 § 1 mom. och 6 §, 6 kapitel 3 § 1 mom., 2 mom. och 3 mom., 18 kapitel 1 §; förvaltningslag 6 §, 27 §, 28 § 1 mom. 7 punkten och 40 §; jämlikhetslag; grundlagen 11 § = kirkkolaki 5 luku 1 §, 7 luku 5 § 2 mom., 17a luku 3 §, 19 luku 2 § 3 mom., 23 luku 8 § 1 mom. ja 2 mom., 9 § 1 mom., 24 luku 4 § 1 mom. ja 2 mom., 25 luku 5 § 1 mom.; kirkkojärjestys 2 luku 6 § 1 mom., 5 luku 1 § 1 mom. ja 6 §, 6 luku 3 § 1 mom., 2 mom. ja 3 mom., 18 luku 1 §; hallintolaki 6 §, 27 §, 28 § 1 mom. 7 kohta ja 40 §; laki miesten ja naisten välisestä tasa-arvosta; perustuslaki 11 §. ECHR-6 Abstract The Cathedral Chapter had ordered that X is suspended from his office as a priest for three months, because X had twice neglected his duties by refusing to hold a church service in cooperation with a female priest.X appealed against the decision to the administrative court and referred to his freedom of religion and conviction.He also claimed that the bishop, who had acted as a chairman of the Cathedral Chapter, should have been disqualified, because he had expressed his views on X's case in a report submitted to the Cathedral Chapter and in a newspaper interview before the decision on disciplinary measures against X was taken. Regarding the impartiality of the Cathedral Chapter, the administrative court found that Article 6 of the ECHR was not applicable in this case, because, according to the case law of the European Court of Human Rights (Manuel Linde Falero v.Spain, decision of 22 June 2000), disputes relating to the fixed-term suspension from office of civil servants are outside the scope of Article 6.The disqualification of the bishop was thus assessed in accordance with the Administrative Procedure Act.The court found that in his report to the Cathedral Chapter, the bishop have given an account of his discussions with X and his fellow workers which had been conducted in order to find a solution to the problems in the parish caused by conflicting views on female priests.It is the duty of a bishop to oversee the work of the church and the priests and to safeguard the unity of the parish.The bishop's report to the Cathedral Chapter was thus a part of his official duties.Regarding the newspaper interview, the court found that the bishop had discussed the policy and practice of the church in general without taking a stand on X's case in particular.The court concluded that confidence in the bishop's impartiality had not been jeopardized on the grounds that he had been attending to his official duties. Regarding the disciplinary punishment, the court held that when X was ordinated as priest, he had exercised his freedom of religion and had at the same time committed himself to following the law and order of the church.The Church Act and the Church Order do not contain any provisions which would allow church officials to leave their tasks and duties unattended because of their religious conviction or for reasons of conscience.Officiating a service is a central official task of a priest, and it is not the question of the priest exercising his or her right to practice his or her religion as guaranteed in the Constitution Act.The court continued that arranging working shifts on the basis of gender is as such disciminatory under the Equality Act.The Evangelic Lutheran Church of Finland allows female priests, so the Equality Act is applicable also when assigning duties and shifts pertaining to church services. The court held that an employer has a right to order how a task is carried out.In the parish where X worked, shifts had previously been arranged, if necessary, so that male and female priests were not ordered to hold services together.However, this practice was abandoned after the Bishops' Conference had recommended that the priests' duties shall be assigned on an equal basis and irrespective of gender.The court found that changing the previous practice was justified, and X had no statutory right to demand the arrangement of shifts or a right to refuse to attend to his duties by referring to earlier practice.The administrative court concluded that in refusing to hold church services, X had acted contrary to his official duties and could be submitted to a disciplinary measure.The Supreme Administrative Court agreed with the administrative court and upheld its decision. 24.2.2010 / 21.10.2010 / RHANSKI
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Date when decision was rendered: 17.10.2008 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 2250; R2007/500 Reference to source KKO 2008:93. Decisions of the Supreme Court 2008 II July-December Avgöranden av Högsta domstolen 2008 II juli-december Korkeimman oikeuden ratkaisuja 2008 II heinä-elokuu Place of publication: Helsinki Publisher: Edita Date of publication: 2009 Pages: 660-672 Subject
integrity,
children,
best interests of the child,
rights of the child,
child abuse,
circumcision,
respect for family life,
respect for private life,
freedom of religion,
Relevant legal provisions chapter 21 sections 5 and 7 of the Penal Code; sections 6-3, 7-3, 10 and 11 of the Constitution Act; sections 1 and 4 of the Act on Child Custody and Right of Access = strafflagen 21 kapitel 5 § och 7 §; grundlagen 6 § 3 mom., 7 § 3 mom., 10 § ja 11 §; lag angående vårdnad om barn och umgängesrätt 1 § och 4 § = rikoslaki 21 luku 5 § ja 7 §; perustuslaki 6 § 3 mom., 7 § 3 mom., 10 § ja 11 §; laki lapsen huollosta ja tapaamisoikeudesta 1 § ja 4 §. ECHR-8; ECHR-9; CRC-19; CRC-24; CRC-30 Abstract X, who was a Muslim and a sole guardian of her son, had asked a physician to perfom circumcision on her son on grounds of religious tradition.At the time the child was 4½ years old.The question was whether X was guilty of assault or incitement to assault under Finnish law.There is no legislation on non-medical male circumcision in Finland, whereas female genital mutilation is treated as aggravated assault and is always prohibited. The Supreme Court found that the protection of a child's right to personal integrity is strong when balanced against the rights of a parent or a guardian which also can be protected as human rights or constitutional rights through the right to family life or the right to freedom of religion.Parents or guardians have a right to decide on the education of their child and the right to raise the child in accordance with their religious and cultural traditions.However, protecting the rights of the guardian does not as such justify actions which cause harm to the child's health or well-being. The Supreme Court continued that in creating a balance between the rights of the child and those of the guardians the starting-point must be that the guardians' right to decide on the child's care, upbringing and other personal matters is based on the purpose to ensure the welfare and balanced development of the child in accordance with the child's individual needs and wishes.Interference in a child's personal integrity must be assessed specifically from the point of view of the child's interests.A child's guardians may have a right to decide, on the child's behalf, on a procedure which interferes in the child's personal integrity, provided that the purpose of the procedure is to enhance the child's welfare and development.Also, in an objective assessment such a procedure shall not be contrary to the child's best interests.A serious interference in the personal integrity of a child cannot be justified with reference to freedom of religion or the right to practice religion even in cases where it is allegedly based on the best interests of the child. In the Supreme Court's opinion, male child circumcision is a fairly minor interference in the child's personal integrity, provided that the procedure is performed in a medical manner, in hygienic conditions and with analgesia.The court pointed out that the circumcision of Muslim boys is an established tradition in the Muslim community and is deemed compulsory.It is also an integral part of the identity of Muslim men.Therefore, circumcision for religious reasons can be considered to have a positive impact on the boy himself, the development of his identity and his attachment to a religious and social community.In this case circumcision had been performed for acceptable religious reasons and in a safe and appropriate medical manner without causing the child unnecessary pain.Overall, the procedure was only a minor interference in the child's physical integrity and it could not be regarded as being against the best interests of the child.The Supreme Court concluded that for these reasons, X's decision to have her son circumcised was not unlawful and thus not punishable. In its decision the Supreme Court discussed the questions of medical interventions and the right to physical integrity, parental rights, and freedom of religion also in the light of the ECHR.It referred to the judgments of the European Court of Human Rights in the cases of Juhnke v Turkey (judgment of 13 May 2008), Nielsen v Denmark (judgment of 28 November 1988, Publications of the European Court of Human Rights, Series A, Vol. 144), Johansen v Norway (judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III), Scozzari and Giunta v Italy (judgment of 13 July 2000, Reports of Judgments and Decisions 2000_VIII) and Kokkinakis v Greece (judgment of 25 May 1993, Publications of the European Court of Human Rights, Series A, Vol. 260). 2.6.2016 / 2.6.2016 / RHANSKI
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Date when decision was rendered: 31.3.2016 Judicial body: Supreme Court = Hösta domstolen = Korkein oikeus Reference: Report no. R2014/116; 0767 Reference to source KKO 2016:24. Electronic database for the decisions of the Supreme Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta domstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
integrity,
children,
best interests of the child,
rights of the child,
child abuse,
circumcision,
respect for family life,
respect for private life,
freedom of religion,
right to be heard,
Relevant legal provisions chapter 21 section 5 of the Penal Code; sections 1 and 4 of the Act on Child Custody and Right of Access = strafflagen 21 kapitel 5 §; lag angående vårdnad om barn och umgängesrätt 1 § och 4 § = rikoslaki 21 luku 5 §; laki lapsen huollosta ja tapaamisoikeudesta 1 § ja 4 §. CRC-12 Abstract X had circumcised two Muslim boys at the request of the boys' parents and on grounds of religious tradition.At the time one of the boys, Y, had been 7 years old and the other, Z, had been 12 years old.X was not a physician but he had extensive experience in performing circumcision.X was charged with assault and the parents with incitement to assault.There is no legislation on non-medical male circumcision in Finland, whereas female genital mutilation is treated as aggravated assault and is always prohibited. The Supreme Court referred to its earlier decision concerning male circumcision on religious grounds (KKO 2008:93).The court pointed out that in assessing whether circumcision is lawful or unlawful, it is not required that the person performing circumcision is a licensed physician.What is decisive is that the procedure is performed in a professional, medical manner.In this case, the procedure had been performed safely and X's competence had in fact not even been challenged.The Supreme Court noted that the circumcision of Muslim boys is an established tradition in the Muslim community and is deemed compulsory.In this case, both boys' parents had also brought forth the possibility that an uncircumcised boy child is subjected to discrimination within his community. The Supreme Court referred to the Act on Child Custody and Right of Access and noted that a child's guardian has a right to decide on the care, upbringing and other personal matters of the child.Before making a decision concerning a child's personal matter, the guardian must discuss the matter with the child, if this is possible in view of the age and stage of development of the child and the nature of the matter.When making a decision, the guardian must give due consideration to the opinion and wishes of the child.The Supreme Court held that when a child because of his age is not capable of understanding the meaning and implications of circumcision or capable of giving his consent to circumcision, the guardians' decision-making power cannot be justified solely with reference to the child's right to freedom of religion.Whereas when a child is able to assess the meaning of circumcision, his opinion is decisive when assessing whether the procedure is justified. In this case the boys had been circumcised at the request of their parents.There is no indication that the boys' views would have been heard before the procedure.The Supreme Court found that especially concerning Z, who at the time was 12 years old, the performance of the procedure would have required that his own opinion should have been considered.On the other hand, it had not been shown that either of the boys would have objected to the procedure.Z, who at the time of the Supreme Court's decision had reached the age of 15 and had thus an independent right to be heard, parallel to that of his guardians, had told that he does not demand punishment and did not wish to proceed in the matter.Considering this and the fact that circumcision had been performed in an appropriate medical manner, the Supreme Court concluded that the procedure in this case was in the interests of the children and that X's or the parents' conduct could be deemed justifiable. 2.6.2016 / 10.3.2017 / RHANSKI
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Date when decision was rendered: 26.5.2016 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 3186/1/14; 2339 Reference to source KHO 2016:81. Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
aliens,
asylum,
inhuman treatment or punishment,
freedom of religion,
muslims,
refusal of entry,
Relevant legal provisions sections 87, 88, 88a and 88b of the Aliens Act = utlänningslag 87 §, 88 §, 88a § och 88b § = ulkomaalaislaki 87 §, 88 §, 88a § ja 88b §. ECHR-2, ECHR-3 Abstract The Immigration Service had rejected X's application for asylum in Finland and had ordered that X is deported to his home country Iran.In his original asylum application X had not invoked his religious affiliation as a ground for asylum, but had mainly referred to matters pertaining to his next of kin.However, in his appeal to the administrative court, X told he had abandoned Islam.The administrative court rejected X's request for an oral hearing and upheld the decision of the Immigration Service.The court found it unlikely that X's abandonment of Islam would have come to the knowledge of the Iranian authorities or that the authorities would be particularly interested in him after his return to Iran.In the court's view, X was not in need for international protection.In his appeal to the Supreme Administrative Court X further told that he had converted to Christianity. The Supreme Administrative Court referred to the Grand Chamber judgment of the European Court of Human Rights in the case of F.G. v Sweden (23 March 2016), which concerned the refusal of asylum to an Iranian national converted to Christianity as well as the duty of national authorities to assess the applicant's conversion, the seriousness of his beliefs and the way he manifested his Christian faith.The Supreme Administrative Court also noted that the human rights court had used, among other sources, the country of origin report on Iran by the UK Home Office from September 2013, particularly concerning apostasy. The Supreme Administrative Court pointed out that although X had not told the administrative court about his conversion to Christianity, he had told he had abandoned Islam.According to current country information on Iran, apostasy from Islam may result in persecution, inhuman treatment or even the death penalty.Therefore, the possibility cannot be excluded that apostasy from Islam could cause a need for international protection as prescribed in the Aliens Act.The Supreme Administrative Court concluded that the administrative court should not have decided the case without a thorough assessment of the facts pertaining to X's apostasy and the general situation in Iran.It quashed the decisions of the Immigration Service and the administrative court and returned the case to the Immigration Service for a new consideration, in which the Immigration Service should take into account the new circumstances and the new evidence presented in the case. 6.6.2016 / 2.3.2017 / RHANSKI
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Date when decision was rendered: 27.12.2011 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 3738; 2486/1/11 Reference to source KHO 2011:114. Yearbook of the Supreme Administrative Court 2011 July-December Högsta förvaltningsdomstolens årsbok 2011 juli-december Korkeimman hallinto-oikeuden vuosikirja 2011 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2012 Pages: 654-660 Subject
aliens,
asylum,
inhuman treatment or punishment,
freedom of religion,
refusal of entry,
oral hearing,
Relevant legal provisions sections 87, 88, 88a and 88b of the Aliens Act; section 38 of the Administrative Procedure Act; section 11 of the Constitution Act; articles 4-3-d and 5 of Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted = utlänningslag 87 §, 88 §, 88a § och 88b §; förvaltningsprocesslag 38 §; grundlagen 11 §; Europaparlamentets och rådets direktiv 2011/95/EU om normer for när tredjelandsmedborgare eller statslösa personer ska anses berättigade till internationellt skydd, för en enhetlig status för flyktingar eller personer som uppfyller kraven för att betecknas som subsidiärt skyddsbehövande, och för innehållet i det beviljade skyddet artikel 4-3-d och artikel 5 = ulkomaalaislaki 87 §, 88 §, 88a § ja 88b §; hallintolainkäyttölaki 38 §; perustuslaki 11 §; Euroopan parlamentin ja neuvoston direktiivi 2011/95/EU vaatimuksista kolmansien maiden kansalaisten ja kansalaisuudettomien henkilöiden määrittelemiseksi kansainvälistä suojelua saaviksi henkilöiksi, pakolaisten ja henkilöiden, jotka voivat saada toissijaista suojelua, yhdenmukaiselle asemalle sekä myönnetyn suojelun sisällölle artikla 4 kohta 3 alakohta d ja artikla 5 Abstract X and his spouse Y had applied for asylum in Finland but the Immigration Service had rejected their applications and had ordered that they are deported to their home country Iran.In his asylum application X had told that the family had to leave Iran because X had been arrested after he had become interested in Christianity.After arriving in Finland X and Y had converted to Jehova's Witnesses and had, together with their child, been active members of the congregation. X and Y appealed against the decision of the Immigration Service to the administrative court.They also requested for an oral hearing but the court rejected the request.Based on country reports on Iran the administrative court acknowledged that religious minorities in Iran were at risk of persecution and that apostates could under Islamic law face the death penalty.However, the court was not fully convinced that X and Y had firm religious convictions as Jehova's Witnesses.In their home country, X and Y had been Muslims, not Christians.They had not been socially, politically or religiously active.In the asylum interview X had told he had found it hard to abandon Islam because none of the Christian denominations were appealing to him.Y for her part had told she was not willing or ready to abandon Islam.The administrative court also found it unlikely that the Iranian authorities would be aware of X's and Y's conversion.In the court's view there were no sufficient grounds to assume that after having returned to Iran, X and Y would have to suppress their identity to the effect that their life would for that reason become intolerable.The administrative court upheld the decision of the Immigration Service.X and Y appealed further to the Supreme Administrative Court. The Supreme Administrative Court noted that freedom of religion entails the right to change one's religion or convictions.It pointed out that religious conversion of an asylum-seeker after having left the country of origin may raise questions as to the real purpose of the conversion and the credibility of the person's religious convictions.It must be assessed whether the sole and main purpose of the activities since leaving the country of origin has been to practise a new religion and to express one's freedom of religion and own convictions or whether the purpose has been to create the necessary conditions for applying for international protection.The implications of those activities, if the applicants are returned to the country of origin, must also be evaluated.The Supreme Administrative Court held that the administrative court could not have dismissed the appeal on the grounds as stated in its decision, but should have conducted an oral hearing in which it would have been possible to obtain more specific information about the circumstances of the applicants' conversion, the credibility of their religious convictions, the ways in which X and Y would practise their religion in their home country and the risks they would possibly encounter when practising their religion upon returning to Iran.The Supreme Administrative Court quashed the decision of the administrative court and returned the case to the lower court for an oral hearing and a new consideration. 7.6.2016 / 29.5.2017 / RHANSKI
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