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Date when decision was rendered: 17.2.1999 Judicial body: Insurance Court = Försäkringsdomstolen = Vakuutusoikeus Reference: Report No. 8771:97 Reference to source Electronic database for the decisions of the Insurance Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för försäkringsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin vakuutusoikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
fair trial,
right to be heard,
social assistance,
Relevant legal provisions sections 1-2 and 6 of the Housing Allowance Act = lag om bostadsbidrag 1 § 2 mom., 6 § = asumistukilaki 1 § 2 mom., 6 §. ECHR-6 Abstract A had appealed to an appellate board of the Social Insurance Institution of Finland (Kansaneläkelaitos) against a decision by which the Social Insurance Institution had decided to stop A's housing allowance.When making the decision on A's appeal, the appellate board sought additional information concerning the taxation of A's parents.A was not heard concerning this new information.The appellate board rejected A's appeal.A took the case to the Insurance Court.In its decision, the Insurance Court referred to Article 6 of the ECHR and concluded that the procedure before the appellate board had been incorrect as A had not been heard.The Court quashed the decision of the appellate board and returned the matter to the Social Insurance Institution. 25.10.2002 / 27.3.2003 / LISNELLM
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Date when decision was rendered: 17.2.1999 Judicial body: Insurance Court = Försäkringsdomstolen = Vakuutusoikeus Reference: Report No. 10700:97 Reference to source Electronic database for the decisions of the Insurance Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för försäkringsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin vakuutusoikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
fair trial,
right to be heard,
social assistance,
Relevant legal provisions sections 15 and 23a of the Housing Allowance Act; sections 15 and 24 of the Administrative Procedure Act; Code of Judicial Procedure = lag om bostadsbidrag 15 §, 23a §; lag om förvaltningsförfarande 15 §, 24 §; rättegångsbalken = asumistukilaki 15 §, 23a §; hallintomenettelylaki 15 §, 24 §; oikeudenkäymiskaari. ECHR-6 Abstract The Social Insurance Institution of Finland (Kansaneläkelaitos) had decided a matter concerning A's housing allowance without giving A the opportunity to comment on a denunciation received by the Social Insurance Institution from a third party.The Social Insurance Institution adjusted A's housing allowance but did not specify the grounds for this decision.The matter was brought first before the appellate board of the Social Insurance Institution and then before the Insurance Court. With reference to section 23a of the Housing Allowance Act and section 15 of the Administrative Procedure Act concerning the right of a party to be heard, the Insurance Court concluded that the Social Insurance Institution had acted in breach of its duties under these provisions.In addition, the Court noted that the decision of the Social Insurance Institution did not fulfill the criteria set forth in section 24 of the Administrative Procedure Act concerning the presentation of the grounds for a decision.Furthermore, as the appellate board had not given A the opportunity to be heard, the board had acted in violation of the provisions on the right of a party to be heard as prescribed in the Code of Judicial Procedure and Article 6 of the ECHR.The Court quashed the decision of the appellate board and returned the matter to the Social Insurance Institution for a new consideration. 25.10.2002 / 13.11.2012 / RHANSKI
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Date when decision was rendered: 28.10.1999 Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus Reference: Report No. 3150; S98/225 Reference to source Registry of the Helsinki Court of Appeal Helsingfors hovrätts registratorskontor Helsingin hovioikeuden kirjaamo Date of publication: Subject
children,
social assistance,
Relevant legal provisions sections 11 and 11a of the Child Daycare Act; section 15a of the Constitution Act; chapter 3, section 2 of the Tort Liability Act = lag om barndagvård 11 §, 11a §; regeringsformen 15a §; skadeståndslagen 3 kapitel 2 § = laki lasten päivähoidosta 11 §, 11a §; hallitusmuoto 15a §; vahingonkorvauslaki 3 luku 2 § Abstract On 15 May 1996, X had submitted an application for municipal daycare for her two children as of 20 November 1996.The municipality arranged the daycare, but only as of 2 December 1996.As a consequence, X had to take leave of absence without salary in order stay at home and to take care of her children.She took the case to the court of first instance and demanded that the municipality pay damages for her loss of income.The court of first instance ruled that the municipality had breached against its legal obligation to arrange daycare, but considering the circumstances had taken the necessary measures and was thus not liable to pay damages.X took the case to the court of appeal. The court of appeal referred to sections 11 and 11a of the Child Daycare Act and noted that the parents of a child have a subjective right to have their child in municipal daycare until the child reaches the age of compulsory education and starts school.According to the court, the Act does not give a municipality the possibility to deny daycare when the applicant fulfills the criteria provided for in the Act and submits the application in the prescribed time (four months in advance at the latest).The court also referred to section 15a of the Constitution Act, according to which public authorities shall secure for everyone, as provided in more detail by an Act, adequate social and health services.Therefore, X must have had a reason to expect that when applying for daycare, the municipality would arrange it.The court concluded that the municipality had acted in breach of its legal obligations and could not be considered to have complied with reasonable requirements placed on the arranging of daycare for children.The court of appeal ordered the municipality to pay damages to X for loss of income and to compensate her legal costs. The Supreme Court did not change the appeal court's decision (decision of 19 September 2001, reference: KKO 2001:93). 4.8.2003 / 16.9.2003 / JKOSKIMI
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Date when decision was rendered: 24.2.2009 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 350; R2007/349 Reference to source KKO 2009:14. Decisions of the Supreme Court 2009 I January-June Avgöranden av Högsta domstolen 2009 I januari-juni Korkeimman oikeuden ratkaisuja 2009 I tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2009 Pages: pp. 125-132 Subject
right not to be tried or punished twice,
refugee status,
social assistance,
aliens,
ne bis in idem,
Relevant legal provisions chapter 36, sections 1 and 2 of the Penal Code = strafflagen 36 kapitel 1 § och 2 § = rikoslaki 36 luku 1 § ja 2 §. ECHRP-7-4; Article 31 of the Convention relating to the Status of Refugees Abstract In applying for a residence permit in Finland on the basis of family reunification, X had told that she was married to Z, who already had a permanent residence permit in Finland and who was the father of her three children.After X had been issued with a residence permit, she and Z applied for various social benefits which the Social Insurance Institution (KELA) and the city of Helsinki had also granted.Later, X and Z told the authorities that they were in fact not married, that Z was not the father of X's children and that X's spouse and the father of her children lived in Ethiopia.Both the court of first instance and the court of appeal convicted X of aggravated fraud and ordered her to pay damages to KELA and the city of Helsinki. In her appeal to the Supreme Court, X pointed out that she had already been convicted by the court of first instance of a registration offence for having applied for a residence permit on false grounds.X claimed that she could not be tried and punished again for having applied for social benefits on the basis of her residence permit.The Supreme Court referred to the case law of the European Court of Human Rights (Gradinger v.Austria, judgment of 23 October 1995; Oliveira v.Switzerland, judgment of 30 July 1998; Fischer v.Austria, judgment of 29 May 2001; W.F. v.Austria, judgment of 30 May 2002; Sailer v.Austria, judgment of 6 June 2002) and held that the alleged fraud and the registration offence were two different acts and two different offences.Investigating the alleged fraud was therefore not in violation of Article 4 of Protocol No. 7 to the ECHR. X also referred to Article 31 of the Convention relating to the Status of Refugees which obligates states not to impose penalties on refugees on account of their illegal entry or presence.The Supreme Court concluded that X was not charged with illegal entry or presence but with fraud which she had allegedly committed while residing in the country.Also, no evidence had been presented in the case, showing that X would have been subjected to persecution or other threat in her country of departure (Ethiopia) and she could therefore not be acknowledged as a refugee.Article 31 of the Refugee Convention did thus not prevent the investigation of the alleged fraud. The Supreme Court then considered whether X's acts constituted fraud as prescribed in the Penal Code.The Court found that the Aliens Act, applicable at that time, did not contain a provision which would have invalidated a residence permit issued on false grounds.X's residence permit had also not been invalidated in an administrative judicial procedure, nor had it been cancelled under the Aliens Act.Therefore, when X had applied for the social benefits, her residence permit had been valid.According to the legislation concerning social benefits, the amount of benefits may depend on whether the applicant is married, cohabiting or is a legal guardian.However, submitting correct information on the applicant's marriage, spouse or the father of the applicant's children is not a requirement for the award of the benefits.The Court held that regardless of the false information, X would still have been entitled to the benefits.The Court continued that no clarification had been presented in the case as to the amount of the social benefits which would have been awarded to X, if she had given correct information on her family relations.Therefore, there was also no evidence showing the amount of damage allegedly caused to KELA and the city of Helsinki.Moreover, it had not been shown, that X, by giving false information on her family relations, would have tried to obtain larger benefits than she was entitled to.The Supreme Court concluded that X was not guilty of fraud, as charged, and she was thus not liable to pay damages either. One dissenting justice of the Supreme Court held that a valid residence permit does not prevent liability to punishment and damages, when it is obvious that the residence permit has been issued on the basis of false information and an unfounded claim for family reunification. 9.2.2010 / 28.2.2011 / RHANSKI
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Date when decision was rendered: 6.3.2000 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 452; 3524/3/99 Reference to source Yearbook of the Supreme Administrative Court 2000 January-June Högsta förvaltningsdomstolens årsbok 2000 januari-juni Korkeimman hallinto-oikeuden vuosikirja 2000 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2001 Pages: pp. 111-114 Subject
social rights,
right to social, health and medical services,
social assistance,
Relevant legal provisions sections 2, 6 and 10 of the Social Assistance Act; section 19 of the Constitution Act = lag om utkomststöd 2 §, 6 § och 10 §; grundlagen 19 § = laki toimeentulotuesta 2 §, 6 § ja 10 §; perustuslaki 19 § Abstract According to the Social Assistance Act, social assistance is a last-resort financial assistance under social welfare.All those who are in need of support and unable to make a living through paid work, self-employment or other benefits securing a living are entitled to social assistance.However, the Act also provides that the size of the basic amount of social assistance can be reduced up to 20 per cent, if a person's need for social assistance is due to the fact that the person has without justifiable cause refused a job or an employment measure that would secure a living for a reasonably long period, or the person has through negligence acted in such a way that work or an employment measure could not be offered.If a person repeatedly refuses a job or an employment measure, the basic amount can be reduced up to 40 per cent.The reduction can only be made if it will not endanger indispensable subsistence necessary for a life of dignity and cannot otherwise be considered unreasonable.Also, it cannot last more that two months at a time from the refusal or negligence concerned. X had been granted social assistance.When making the decisions on X's social assistance, the municipal official had also asked X to register with an unemployment office as a job seeker.However, X had repeatedly refused to do so.X had earlier been registered as a job seeker but had cancelled his registration.He admitted that this was because, due to outstanding taxes, he did not wish to receive any taxable income.Because of X's repeated negligence, it had not been possible to offer him a job.Consequently, the basic amount of the social assistance granted to X was reduced, first by 20 per cent, then by 40 per cent and again by 40 per cent, each time for a period of two months.X appealed against the latest decision, claiming that it was not possible to make two consecutive 40-per-cent reductions.The social welfare board upheld the decision of the municipal official, and so did the county administrative court and the Supreme Administrative Court. In its decision, the county administrative court noted that X had several times been urged to register as a job seeker by a date determined in the decisions on social assistance.Because X had not done so, he had through his negligence acted so that it had not been possible to offer him work.The court held that the maximum period of two months for a reduced basic amount of social assistance is to be counted from the date by which the applicant is expected to have registered as a job seeker.A new reduction can be made immediately after the previous reduction period.The court found that in X's case the reduction cannot have been considered as unreasonable and had not endangered X's indispensable subsistence necessary for a life of dignity.The Supreme Administrative Court agreed with the county administrative court. Section 19-1 of the Constitution Act guarantees for everyone the right to receive indispensable subsistence and care, if that person cannot obtain the means necessary for a life of dignity.Section 19-1 creates a subjective right, and a person in need of indispensable subsistence and care can base his or her claim before the authorities directly on this provision of the Constitution Act.In practice, however, the implementation of the right is dependent on benefits as determined by norms below the constitutional level, in this case the Social Assistance Act. The Social Assistance Act provides explicitly that social assistance is used to ensure at least the minimum income needed for a life of human dignity.It thus links the basic amount of social assistance to the protection guaranteed in section 19-1 of the Constitution Act.In drafting the Social Assistance Act, it was considered that a reduction of the basic amount of social assistance was possible if a person's need for social assistance is due to the fact that the person has without justifiable cause refused a job or an employment measure that would secure a living for a reasonably long period.However, a provision was included in the Act, according to which the reduction can only be made if it will not endanger indispensable subsistence necessary for a life of dignity and cannot otherwise be considered unreasonable. In this case, both the county administrative court and the Supreme Administrative Court based their decisions on the Social Assistance Act, without any explicit reference to section 19 of the Constitution Act.However, in their deliberations, both courts took into account the requirement of reasonableness and the fact that the decision of the municipal official did not endanger the mimimum requirements of a life of human dignity. The Social Assistance Act is silent on the number of subsequent reductions in cases of repeated refusals and negligence.In the view of the Supreme Administrative Court, several consecutive reductions are possible on certain conditions.Regrettably, in the brief reasoning of its decision, the Supreme Administrative Court does not discuss the constitutional right to indispensable subsistence and care.It thus leaves open the question as to how many consecutive reductions of the basic amount are possible without eventually touching upon the core of the right to indispensable subsistence, in cases where the grounds for the reductions as such are in accordance with the law and necessary for reaching a justified purpose (in this case, employment). The case exemplifies the last-resort character of social assistance as well as the duties imposed on the person in need of social assistance in that context.The Social Assistance Act explicitly provides that all people are responsible for their own maintenance according to their abilities.With social assistance being the last resort, in X's case the primary means of assistance was employment and measures and benefits relating to unemployment, which he repeatedly refused.It was also not possible for X to freely choose the measures of assistance of his own preference. 18.6.2013 / 18.6.2013 / RHANSKI
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Date when decision was rendered: 20.5.2016 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Reports no. 3108/1/14 and 3109/1/14; 2234 Reference to source KHO 2016:75. Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
aliens,
residence permit,
respect for family life,
children,
best interests of the child,
citizenship (EU),
deportation,
social assistance,
Relevant legal provisions sections 6(1), 158a(1), 160, 161f(2), 161g(1), 168(1), 168(4) and 168b of the Aliens Act; Articles 6, 7, 14, 16 and 28 of Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States; Article 20 of the Treaty on the Functioning of the European Union = utlänningslag 6 § 1 mom., 158a § 1 mom., 160 §, 161f § 2 mom., 161g § 1 mom., 168 § 1 och 4 mom., 168a § och 168b §; Europaparlamentets or rådets direktiv 2004/38/EG om unionsmedborgares och deras familjemedlemmars rätt att fritt röra sig och uppehålla sig inom medlemsstaternas territorier artikel 6, 7, 14, 16 och 28; Fördraget om Europeiska unionens funktionssätt artikel 20 = ulkomaalaislaki 6 § 1 mom., 158a § 1 mom., 160 §, 161f § 2 mom., 161g § 2 mom., 168 § 1 ja 4 mom., 168a § ja 168b §; Euroopan parlamentin ja neuvoston direktiivi 2004/38/EY Euroopan unionin kansalaisten ja heidän perheenjäsentensä oikeudesta liikkua ja oleskella vapaasti jäsenvaltion alueella artikla 6, 7, 14, 16 ja 28; Sopimus Euroopan unionin toiminnasta artikla 20. ECHR-8; CRC-3-1; Article 24 of the Charter of Fundamental Rights of the European Union Abstract A and B and their four minor children, who were all German citizens, had arrived in Finland in March 2011.The couple and one of their children had registered their right of residence in Finland.At the start A had worked but her employer had not continued the employment contract after a trial period of two months.Since July 2011 A been unable to work as a result of health problems.B had been unemployed during the whole period of his residence in Finland.Both A and B had said they were taking Open University courses.However, studying was not the main purpose of their stay in Finland and the courses were not related to their previous employment.Since June 2011 the family had resorted to various social benefits, including social assistance which is the last-resort form of income security.The main issue in this case was whether the couple and their children could be deported to Germany, considering that they were all EU citizens.The Supreme Administrative Court based its decision on the Aliens Act, taking also into account the Free Movement Directive 2004/38/EC, the right to free movement of EU citizens under the TFEU, the case law of the CJEU (C-456/02 Trojani; C-408/03 Commission v Belgium; C-140/12 Brey; C-333/13 Dano; C-67/14 Alimanovic) and also the case law of the European Court of Human Rights (Rodriguez da Silva and Hoogkamer v the Netherlands, judgment of 31 January 2006; and Konstatinov v. the Netherlands, judgment of 26 April 2007). The Supreme Administrative Court first considered the applicants' status and whether that status prevented their deportation unless it was on grounds of public order or security or public health.The court noted that the applicants were not employed or self-employed persons, or persons seeking employment in Finland.After her short employment A had not retained her status as an employed person, because her incapacity to work was not temporary, she had not become unemployed involuntarily and the Open University courses she had taken were not relating to vocational training.Neither A nor B had shown they would have a genuine chance of being employed.By the time the Immigration Service made the decision on deportation in 2013, neither applicant had gained the right of permanent residence and neither had resided in Finland legally for the previous 10 years.Consequently, deportation was possible also on other grounds than public order or security or public health. According to the Aliens Act, EU citizens and their family members may be deported if they fail to meet the requirements for the right to residence laid down in the Aliens Act or if they are considered a danger to public order or security or to public health.It is required in the Aliens Act that economically inactive EU citizens who wish to reside in Finland for more than three months shall have for themselves and their family members sufficient funds, and, if necessary, health insurance so that, during their time of residence, they do not become a burden on Finland's social security system by resorting repeatedly to social assistance or other comparable benefits.The court also noted that in the case of Konstatinov v the Netherlands, the European Court of Human Rights had not considered unreasonable a requirement that an alien having achieved a settled status in a host state and who seeks family reunion there must demonstrate that he/she has sufficient independent and lasting income, not being welfare benefits, to provide for the basic costs of subsistence of his or her family members with whom reunion is sought. In this case, the family had resorted to social assistance immediately after their arrival in Finland and had continued to do so on a regular basis.This was not a case of temporary difficulties.It had not been established that the couple would have had any other income than A's salary for two monts' work in 2011.The court concluded that the applicants could be considered to be a burden on the social assistance system, as prescribed in the Aliens Act.It is overall consideration of the case the court also took into account the duration of the applicants' residence in Finland, their age, state of health, family situation, their integration in the country and the best interests of the child.The court concluded that the arguments for deportation weighed more than those against.It upheld the decision on deportation made by the Immigration Service. 3.5.2017 / 3.5.2017 / RHANSKI
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