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Date when decision was rendered: 2.2.1996 Judicial body: Vaasa Court of Appeal = Vasa hovrätt = Vaasan hovioikeus Reference: Report No. 164; S95/297 Reference to source VaaHO 1996:4. Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta Date of publication: Subject
fair trial,
right to examine witnesses,
oral hearing,
Relevant legal provisions Chapter 26, section 7 of the Code of Judicial Procedure = rättegångsbalken 26 kapitel 7 § = oikeudenkäymiskaari 26 luku 7 §. ECHR-6-1 Abstract There was no disagreement about the contents of the statement of the witness examined in the court of first instance.The question was whether the statement supported the claims of the plaintiff.Therefore and since there were no other reasons for an oral hearing of the witness at the appellate court, the request for an oral hearing was rejected as apparently unnecessary. 31.3.1998 / 2.4.2003 / LISNELLM
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| [2 / 17] |
Date when decision was rendered: 14.3.1997 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 1012; R95/1454 Reference to source KKO 1997:29. Decisions of the Supreme Court 1997 I January-June Högsta domstolens avgöranden 1997 I januari-juni Korkeimman oikeuden ratkaisuja 1997 I tammi-kesäkuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 1997 Pages: pp. 124-132 Subject
fair trial,
oral hearing,
lawyers,
disciplinary punishment,
Relevant legal provisions Sections 3-3-3 and 7-3 of the Advocates Act = lag om advokater 3 § 3 mom. 3 punkten, 7 § 3 mom. = laki asianajajista 3 § 3 mom. 3 kohta, 7 § 3 mom. ECHR-6 Abstract A, who was an attorney, had for several years been heavily in debt owing mainly to his involvement in risk-bearing business.Efforts had been made to recover the outstanding debts through execution.The Finnish Bar Association had received several complaints regarding A's debts and decided to initiate disciplinary proceedings against him.A was asked to give an account to the disciplinary board of the Association of his debts and his financial situation.He was also offered an opportunity to be heard at the meeting of the disciplinary board.A argued that he had no duty to give any such clarifications and that the matter was not within the disciplinary competence of the Finnish Bar Association.He did not participate in the disciplinary board's meeting.With reference to the Act on Attorneys, to the regulations concerning professional ethics and to the statute of the Finnish Bar Association, the disciplinary board dismissed A from the Finnish Bar Association.The decision was confirmed by the executive committee of the Association.The main reasons for the dismissal were A's considerable debts and his insolvency owing to which A could not be regarded as a suitable person for practising his profession as a lawyer.A appealed to the Helsinki Court of Appeal which did not change the decision of the Finnish Bar Association.In his appeal to the Helsinki Court of Appeal, A referred to Article 6 of the ECHR, especially as regards the fairness and publicity of the proceedings.The court of appeal stated that A had been given an opportunity to be heard before the disciplinary board, but he had not used this opportunity.He had not requested an oral hearing before the court of appeal either. A appealed to the Supreme Court.The main issue in this case was whether A's insolvency could be regarded as a valid reason for his dismissal from the Bar.In the Supreme Court an oral hearing was held.A referred to Article 6 of the ECHR and stated that he had not been informed beforehand that his possible dismissal from the Finnish Bar Association would be discussed at the meeting of the disciplinary board to which he had also been invited.The Supreme Court stated that A had been given the opportunity to be heard.The correspondence regarding the case between the Finnish Bar Association and A had been going on for a longer period of time.On the basis of this correspondence, A should have know that his dismissal would be discussed at the meeting of the disciplinary board.The Supreme Court concluded, among other things, that taking into account the reasons for A's debts, the period of time he had been in debt and the way he had met his liabilities, A was not a suitable person to practise his profession as a lawyer and could thus be dismissed from the Bar. 2.4.1998 / 10.4.2007 / RHANSKI
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Date when decision was rendered: 16.5.2000 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 0886; R99/609 Reference to source KKO 2000:62. Decisions of the Supreme Court 2000 I January-June Avgöranden av Högsta domstolen 2000 I januari-juni Korkeimman oikeuden ratkaisuja 2000 I tammi-kesäkuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 2000 Pages: pp. 286-288 Subject
fair trial,
oral hearing,
right to examine witnesses,
Relevant legal provisions Chapter 26, sections 14 and 15 of the Code of Judicial Procedure = rättegångsbalken 26 kapitel 14 § och 15 § = oikeudenkäymiskaari 26 luku 14 § ja 15 §. ECHR-6 Abstract The court of first instance had convicted A for manslaughter.A appealed to the court of appeal.He claimed that the decision of the court of first instance had been based on an incorrect assessment of evidence and that the charges against him should be dismissed.He requested that the court of appeal should also hold a main hearing in order to hear the parties and the witnesses again.The court of appeal stated that the decision in the matter was not dependent on the credibility of the evidence presented before the court of first instance and that it was possible to decide the case without a new hearing of the evidence.It also saw no reason to change the decision of the lower court.A appealed to the Supreme Court. The Supreme Court referred to Chapter 26, section 14 of the Code of Judicial Procedure, which provides that a court of appeal has to hold a main hearing in a criminal case if the defendant so requests.Exceptions to this rule are listed in paragraph 2 of the same section.The Supreme Court also noted that section 14 had been amended (in 1998) because of reasons emanating from the ECHR.Furthermore, according to section 15, a court of appeal has to hold a main hearing if the decision in the matter is dependent on the credibility of the oral evidence presented before the court of first instance.The Supreme Court stated that in this case the court of appeal could not assess in a reliable manner the oral evidence presented by the parties and the witnesses solely on the basis of the documents of the first instance court and without hearing the persons in question.A main hearing should have been held.The Supreme Court quashed the decision of the court of appeal and returned the case to the latter. 28.10.2002 / 4.4.2003 / LISNELLM
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Date when decision was rendered: 6.3.2002 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 676; R2001/234 Reference to source KKO 2002:15. Decisions of the Supreme Court 2002 I January-June Avgöranden av Högsta domstolen 2002 I januari-juni Korkeimman oikeuden ratkaisuja 2002 I tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2002 Pages: pp. 65-72 Subject
fair trial,
oral hearing,
Relevant legal provisions Chapter 26, section 14 of the Code of Judicial Procedure = rättegångsbalken 26 kapitel 14 § = oikeudenkäymiskaari 26 luku 14 §. ECHR-6 Abstract The court of appeal had raised the punishment which the court of first instance had imposed on A in a criminal matter.The appeal court had considered it unnecessary to hold a main hearing in the matter, as A had submitted to the court a written response in which he presented in detail the grounds for contesting the prosecutor's petition of appeal for a more severe punishment.A appealed to the Supreme Court and demanded that the matter should be returned to the court of appeal for the purpose of a main hearing. The Supreme Court referred to Chapter 26, section 14 of the Code of Judicial Procedure which prescribes, among other things, that, despite the defendant's request, the court may decide not to hold a main hearing in a criminal case if this is clearly unnecessary.The Supreme Court also discussed briefly the decisions of the European Court of Human Rights in the cases of Tierce and Others (judgment of 25 July 2000, Reports of Judgments and Decisions 2000-IX), Helmers (judgment of 29 October 1991, Publications of the European Court of Human Rights, Series A, no. 212-A) and Fejde (judgment of 29 October 1991, Publications of the European Court of Human Rights, Series A, no. 212-C).It noted that the court of appeal had only decided on the length of A's sentence.As A had not referred to facts which concerned his person and which were relevant in assessing the length of his sentence, it was, according to the Supreme Court, not necessary to hear him personally.The Supreme Court did not change the decision of the appeal court. 9.5.2003 / 5.8.2003 / JKOSKIMI
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Date when decision was rendered: 7.4.2003 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 0798; Va2001/161 Reference to source KKO 2003:35. Decisions of the Supreme Court 2003 I January-June Avgöranden av Högsta domstolen 2003 I januari-juni Korkeimman oikeuden ratkaisuja 2003 I tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2003 Pages: pp. 187-194 Subject
fair trial,
oral hearing,
Relevant legal provisions Section 9-1 of the Insurance Court Act; section 38 of the Administrative Judicial Procedure Act = lag om försäkringsdomstolen 9 § 1 mom.; förvaltningsprocesslagen 38 § = vakuutusoikeuslaki 9 § 1 mom.; hallintolainkäyttölaki 38 §. ECHR-6-1 Abstract A's appeal in an accident insurance case had been rejected by the Insurance Court.A had requested for an oral hearing in order to hear as a witness a doctor whose written medical opinion on A's physical condition had been submitted to the court.The Insurance Court rejected the request as manifestly unnecessary.A appealed to the Supreme Court.The Supreme Court first referred to section 38 of the Administrative Judicial Procedure Act, which prescribes that an oral hearing shall be conducted if a private party so requests, unless it is manifestly unnecessary in view of the nature of the matter or for another reason.The Court pointed out that when interpreting this provision, Article 6-1 of the ECHR had to be taken into account.The Court then discussed at length the case law of the European Court of Human Rights, including the cases of Fischer v.Austria (judgment of 26 April 1995, Publications of the European Court of Human Rights, Series A, Vol. 312), Lundevall v.Sweden (judgment of 12 November 2002), Salomonsson v.Sweden (judgment of 12 November 2002), Döry v.Sweden (judgment of 12 November 2002), Fredin v.Sweden (judgment of 23 February 1994, Publications of the European Court of Human Rights, Series A, Vol. 283-A) and Eisenstecken v.Austria (judgment of 3 October 2000, Reports of Judgments and Decisions 2000-X).On the basis of this discussion the Court reached the conclusion that determining a case in a written procedure only may be acceptable under Article 6-1 of the ECHR, if the issue in the case is the assessment of written medical opinions or medical experience and their role in the determination of the case.However, if the medical evidence is incomplete, contradictory or disputed, Article 6-1 may require that an oral hearing is conducted at the request of a party.Furthermore, when assessing a person's right to an oral hearing, the importance of the issue for that person has to be taken into account.The Court then noted that in this case A had considered that it was necessary to hear the doctor as a witness in order to supplement the doctor's written medical opinion and to clarify the link between the accident and A's disability on the one hand and the harm caused by the disability on the other hand, in view of the fact that the Insurance Court and the accident insurance appeal board had found that the medical opinion did not give cause to accept A's claim.The issue was of great importance for A as far as A's subsistence was concerned.The Supreme Court concluded that, taking into account the case law under Article 6 of the ECHR, no specific grounds had been presented in this case on the basis of which A's request for an oral hearing could have been reasonably rejected as manifestly unnecessary.The Supreme Court quashed the decision of the Insurance Court and returned the case to the latter court for a new consideration.One justice of the Supreme Court found that, considering the main issue in the case, it was unnecessary and meaningless to hear the doctor as a witness, as the outcome of the case could still not have been in A's favour. 21.4.2004 / 21.4.2004 / JKOSKIMI
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Date when decision was rendered: 5.10.2007 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 2525; 3478/2/06 Reference to source KHO 2007:67. Yearbook of the Supreme Administrative Court 2007 July-December Högsta förvaltningsdomstolens årsbok 2007 juli-december Korkeimman hallinto-oikeuden vuosikirja 2007 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: pp. 397-409 Subject
fair trial,
oral hearing,
taxation,
Relevant legal provisions section 38 of the Administrative Judicial Procedure Act; section 21 of the Constitution Act = förvaltningsprocesslag 38 §; grundlagen 21 § = hallintolainkäyttölaki 38 §; perustuslaki 21 §. ECHR-6 Abstract In a case concerning taxation and tax surcharges, the administrative court had, on the basis of the Administrative Judicial Procedure Act, rejected the appellant's request for an oral hearing on the grounds that it was manifestly unnecessary because hearing a witness as proposed by the appellant would not bring any additional information which would be decisive for the outcome of the case.The appellant turned to the Supreme Administrative Court.In its decision, the Supreme Administrative Court discussed in detail the judgment of the European Court of Human Rights in the case of Jussila v.Finland (23 November 2006).The Court held that in the jurisprudence of the European Court of Human Rights, tax surcharges were regarded as being intended as a punishment to deter re-offending.The offence for which the tax surcharges were imposed was therefore "criminal" in nature in the meaning of Article 6 of the ECHR.For this reason, in appeal procedures pertaining to tax surcharges the provisions of the Administrative Judicial Procedure Act on oral hearing by a court must be applied and interpreted in conformity with the minimum requirements set in Article 6 of the ECHR.In assessing the case, the Supreme Administrative Court found that written witness testimonies submitted in the case supported the appellant's claims and the oral hearing of a witness could under the circumstances bring additional clarification to the matter.Though the administrative court had reduced the amount of tax surcharges imposed on the appellant, the sum was still considerable and the financial burden was not insignificant.The Supreme Administrative Court concluded that the appellant's request for an oral hearing before the administrative court could not be rejected on the grounds that it was manifestly unnecessary.The case was referred back to the administrative court for an oral hearing. 22.6.2009 / 28.3.2011 / RHANSKI
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Date when decision was rendered: 25.9.2009 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 2339; 1801/2/09 Reference to source 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
right to liberty,
mental health,
involuntary care,
oral hearing,
fair trial,
Relevant legal provisions sections 8 and 17 of the Mental Health Act; sections 37 and 38 of the Administrative Judicial Procedure Act; section 21 of the Constitution Act = mentalvårdslag 8 § och 17 §; förvaltningsprocesslag 37 § och 38 §; grundlagen 21 § = mielenterveyslaki 8 § ja 17 §; hallintolainkäyttölaki 37 § ja 38 §; perustuslaki 21 §. ECHR-5-4 Abstract X, who was accused of a crime, had undergone a mental examination and had been ordered to involuntary treatment in a psychiatric hospital.X appealed to the administrative court against a physician's decision to continue the treatment.X also requested an oral hearing before the administrative court, but the court denied the request.It held that an oral hearing was manifestly unnecessary because, among other grounds, the conditions for continuing the involuntary treatment of a person must be assessed on the basis of the person's state of health at the time a physician makes his or her decision on the continuation of the treatment.X appealed against the decision to the Supreme Administrative Court and emphasized that the request for an oral hearing was not concerning the assessment of X's state of health but X's personal liberty and the right to a fair trial. The Supreme Administrative Court found that the right to a fair trial, as prescribed in section 21 of the Constitution Act and when interpreted in the light of Article 5-4 of the ECHR, requires that in cases where involuntary psychiatric treatment lasts for a long period of time, an administrative court must conduct an oral hearing on the request of an applicant at regular intervals.However, in this case, X had not based the request for an oral hearing before the administrative court on the same explicit grounds as presented in X's appeal to the Supreme Administrative Court.Therefore, in the Supreme Administrative Court's view, the administrative court could deny the request on the grounds presented in its decision. 22.10.2009 / 23.10.2009 / RHANSKI
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Date when decision was rendered: 12.6.2008 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 1494; 1282/3/06 Reference to source KHO 2008:45. 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. 643-651 Subject
fair trial,
right to be heard,
oral hearing,
Relevant legal provisions section 19 of the Insurance Court Act; sections 34, 38 and 63-1-1 of the Administrative Judicial Procedure Act = lag om försäkringsdomstolen 19 §; förvaltningsprocesslag 34 §, 38 § och 63 § 1 mom. 1 punkten = vakuutusoikeuslaki 19 §; hallintolainkäyttölaki 34 §, 38 § ja 63 § 1 mom. 1 kohta. ECHR-6 Abstract The Insurance Court, in the final instance, had rejected X's appeal against the decision of the Social Security Appeal Board.The court had also rejected X's request for an oral hearing, on the grounds that it was manifestly unnecessary because the matter could be reliably assessed on the basis of written evidence, including medical reports.X applied for the annulment of the Insurance Court's decision from the Supreme Administrative Court.X claimed that a procedural error had been committed because of the absence of an oral hearing before the Insurance Court and also because the court had not communicated to X two opinions it had requested from the Social Insurance Institution. The Supreme Administrative Court ruled that, under the Administrative Judicial Procedure Act, the Insurance Court could reject the request for an oral hearing on the grounds as specified in the Insurance Court's decision.It also found that the decision was not in violation of Article 6 of the ECHR, considering the case law of the European Court of Human Rights pertaining to disputes over social security benefits (Pitkänen v.Sweden, decision of 26 August 2003; Aalto v.Sweden, decision of 18 November 2003 and Elo v.Finland, judgment of 26 September 2006).As far as the hearing of the parties was concerned, the Supreme Administrative Court referred to the Administrative Judicial Procedure Act, Article 6 of the ECHR and the case law of the European Court of Human Rights (Nideröst-Huber v.Switzerland, judgment of 18 February 1997, Reports of Judgments and Decisions 1997-I; K.P. v.Finland, judgment of 31 May 2001 and Kukkonen v.Finland, judgment of 7 June 2007).The Supreme Administrative Court concluded that it is inherent in the right to be heard that all material which may affect the court's decision is brought to the knowledge of the parties to the proceedings and the parties are given an opportunity to present their comments.It is for the parties to say whether an opinion or a report calls for their comments.A court may make exceptions to the right to be heard in rare cases only.In handling X's appeal, the Insurance Court had not communicated to X two opinions submitted by the Social Insurance Institution at the court's request.One of the opinions included references to the medical opinion of an expert doctor at the Social Insurance Institution and the other assessed X's ability to function physically and X's eligibility for care allowance.In the Court's opinion, there were no such exceptional circumstances in this case which would have justified the fact that the opinions had not been communicated to X for comments.Therefore, a procedural error had been committed.According to the Administrative Judicial Procedure Act, a decision may be annulled if a procedural error which may have had a relevant effect on the decision has been committed.In the Supreme Administrative Court's opinion, this provision must not be given a narrow interpretation in cases concerning basic rights and human rights.The Supreme Administrative Court annulled the decision of the Insurance Court and returned the case to the latter court for a rehearing. 13.4.2010 / 28.3.2011 / RHANSKI
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Date when decision was rendered: 15.6.2010 Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus Reference: Report no. 1660; R09/2001 Reference to source HelHO 2010:5. Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta Date of publication: Subject
fair trial,
oral hearing,
public hearing,
Relevant legal provisions Chapter 5a, sections 1, 2 and 3 of the Criminal Procedure Act; section 21 of the Constitution Act = lag om rättegång i brottmål 5a kapitel 1 §, 2 § och 3 §; grundlagen 21 § = laki oikeudenkäynnistä rikosasioissa 5a luku 1 §, 2 § ja 3 §; perustuslaki 21 §. ECHR-6; CCPR-14 Abstract X was charged with aggravated drunken driving and operating a vehicle without a licence.In the application for a summons the prosecutor proposed that X is sentenced to conditional imprisonment and a fine.When X was summonsed, he confessed to the crimes explained in the charges and informed the court that he consented to deciding the matter on the basis of a written procedure, in accordance with chapter 5a of the Criminal Procedure Act.The court of first instance decided the case in a written procedure without a main hearing and sentenced X to unconditional imprisonment for 3 months and 15 days.The court held that a conditional sentence was not possible because of X's three previous convictions for aggravated drunken driving.X appealed against the decision, requesting a more lenient and conditional penalty or, alternatively, community service. The court of appeal held that a court is not bound by the prosecutor's suggestion in determining the penalty to be imposed on the defendant.The court decides on the penalty independently also in a written procedure and can impose a more severe penalty than the one proposed by the prosecutor.However, from the defendant's point of view it is of relevance whether a prison sentence is conditional or unconditional.In this case, the unconditional prison sentence came as a surprise to X, because the prosecutor had suggested a conditional sentence.The court referred to the Constitution Act and international human rights provisions according to which a defendant in a criminal case is entitled to a public, oral hearing at least before one court instance.An exception has been made to this rule in chapter 5a of the Criminal Procedure Act which allows a court to decide certain, more simple criminal cases on the basis of a written procedure without a main hearing on the consent of the defendant.However, the court of appeal found that, considering the protection of the legal rights of the defendant, it was not sufficient in this case that X had given his consent to a written procedure.The court concluded that the case should not have been decided in a written procedure without reserving X an opportunity to give an oral statement concerning the penalty.The court of appeal revoked the decision of the court of first instance and referred the case back to the lower court for a new consideration. 27.1.2011 / 27.1.2011 / RHANSKI
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Date when decision was rendered: 26.6.2014 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 2041; 689/1/13 Reference to source KHO 2014:114. 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,
fair trial,
oral hearing,
Relevant legal provisions sections 52, 108-1, 146, 147 and 149-1-1 of the Aliens Act; section 38-1 of the Administrative Procedure Act = utlänningslag 52 §, 108 § 1 mom., 146 §, 147 § och 149 § 1 mom. 1 punkten; förvaltningsprocesslag 38 § 1 mom. = ulkomaalaislaki 52 §, 108 § 1 mom., 146 §, 147 § ja 149 § 1 mom. 1 kohta; hallintolainkäyttölaki 38 § 1 mom. Articles 47-1 and 51-1 of the Charter of Fundamental Rights of the European Union Abstract The Finnish Immigration Service had made a decision by which A's subsidiary protection status and residence permit were withdrawn and she was deported to Somaliland.The Immigration Service found that A had given false information as to where in Somalia she originally came from.This had affected the outcome of the decision to grant her subsidiary protection status.As grounds for its decision, the Immigration Service referred to the results of a language analysis, A's meagre knowledge of her alleged place of residence in Somalia and the contradictory information about A's origins received through interviewing A and various other persons.It was established that A was not from Southern Somalia but from Somaliland and was thus not in need of international protection.The Supreme Administrative Court upheld the decision.It declined A's request for an oral hearing.In the court's view, it was unlikely that A would have been able to provide new evidence which would impact the decision.Apart from oral evidence, she had no intention of presenting any other new evidence. In discussing the requirements of fair trial and oral hearing, the Supreme Administrative Court referred to the decisions of the European Court of Human Rights in the cases of Maaouia v.France (judgment of 5 October 2000, Reports of Judgments and Decisions 2000-X) and Naumov v.Albania (decision of 4 January 2005) and noted that while decisions regarding the stay and deportation of aliens do not concern the determination of a person's civil rights or obligations, Article 6 of the ECHR was not applicable in this case.However, the court continued that the question of a fair trial must also be assessed as based on EU law.In this case, the main question was concerning the withdrawal of a subsidiary protection status, the grounds for which are regulated, among other provisions, in the Qualification Directive of the EU Council (2011/95/EU).Also, the Court of Justice of the EU has found that the procedure for granting and withdrawing refugee status relies in particular in compliance with the fundamental rights and principles recognized by the EU Charter of Fundamental Rights.The Supreme Administrative Court concluded that in the current case EU law is applied in a manner which makes it necessary to take into account the requirements of fair trial as guaranteed in Article 47 of the Charter.However, while Article 47 was applicable in the case, it did not obligate the court to conduct an oral hearing in this case, because hearing A in person would not have brought forth any additional evidence regarding the facts and because A had been heard in the administrative procedure preceding the court proceedings. 11.12.2015 / 11.12.2015 / RHANSKI
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Date when decision was rendered: 11.2.2015 Judicial body: Supreme Administrative Court = Hösta forvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 333; 2713/3/14 Reference to source KHO 2015:21. 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,
right to marry,
marriage,
oral hearing,
Relevant legal provisions section 10, 12-2 and 111 of the Marriage Act; section 2 of the Marriage Degree; section 38 of the Administrative Procedure Act = äktenskapslag 10 §, 12 § 2 mom. och 111 §; äktenskapsförordning 2 §; förvaltningsprocesslag 38 § = avioliittolaki 10 §, 12 § 2 mom. ja 111 §; hallintolainkäyttölaki 38 §. ECHR-12 Abstract Somali citizens A and B intended to marry and had submitted to the local register office a request for the investigation of impediments to marriage.A had told he was a widow, whereas B was divorced.They had not presented any documentary evidence of their respective marital status.However, they had four witness statements to support their application.The register office did not regard the evidence as reliable and rejected the request.The applicants appealed to the administrative court and requested an oral hearing.The administrative court rejected the appeal and the request for an oral hearing.It held that an oral hearing would not bring forth any additional evidence which would be necessary for the determination of the appeal.A and B appealed further to the Supreme Administrative Court. The Supreme Administrative Court cited Article 12 of the ECHR which provides that men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.The court also referred to the case law of the European Court of Human Rights (O'Donoghue et al. v.The United Kingdom, judgment of 14 December 2010) and noted that the reference to national laws in Article 12 gives the state a fairly wide margin of appreciation when regulating, for example, marriage procedures or the impediments to marriage.However, such limitations must not restrict or reduce the right to marry in such a way or to such an extent that the very essence of the right is impaired.In the present case, the applicants' marital status could not be verified from the Finnish population register.They were also not able to present documentation from the officials of their native country for the examination of impediments to marriage.The written statements they had presented were not regarded as reliable.Consequently, their possibility to get married was essentially dependent on the fact whether an oral hearing is conducted when examining the impediments to marriage.In this case the main issue was concerning the reliability of presented evidence.Under the circumstances, the administrative court should not have rejected the applicants' request for an oral hearing.The Supreme Administrative Court referred the matter back to the administrative court for an oral hearing and a new consideration. 10.2.2016 / 10.2.2016 / 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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Date when decision was rendered: 7.7.2017 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 324/4/17; 3418 Reference to source KHO 2017:120. 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
asylum,
aliens,
homosexuality,
sexual orientation,
oral hearing,
Relevant legal provisions sections 87, 87b, 88 and 147 of the Aliens Act; sections 33, 37 and 38 of the Administrative Judicial Procedure Act; Article 4 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 persons eligible for subsidiary protection, and for the content of the protection granted = utlänningslag 87 §, 87b §, 88 § och 147 §; förvaltningsprocesslag 33 §, 37 § och 38 §; Europaparlamentets och rådets direktiv 2011/95/EU om normer för när tredjelandsmedborgare eller statslösa personer ska anses berättigade till internationellt skydd, för en enhetlig status för flyktingar och personer som uppfyller kraven för att betecknas som subsidiärt skyddbehövande, och för innebörden i det beviljade skyddet artikel 4 = ulkomaalaislaki 87 §, 87b §, 88 § ja 147 §; hallintolainkäyttölaki 33 §, 37 § ja 38 §; 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 suojan sisällölle artikla 4 Abstract X, from Gambia, had applied asylum based on fear of persecution on grounds of his sexual orientation.The Finnish Immigration Service rejected the application.The administrative court upheld the decision.X had requested an oral hearing before the administrative court but the court held that an oral hearing was manifestly unnecessary and the matter could be decided relying on the documents presented as well as available country information.X appealed further to the Supreme Administrative Court. The Supreme Administrative Court noted that according to country reports, persons belonging to sexual minorities in Gambia have been subjected to discrimination and physical violence.Therefore, it is important to assess the credibility of the declared sexual orientation of an asylum applicant from Gambia, when the application is based on a fear of persecution on grounds of that sexual orientation.Both the Immigration Service and the administrative court had found that X's sexual orientation had not been proven.X's description of the development of his sexual identity had been very limited and he had given contradictory information in his statements.The Immigration Service and the administrative court had also held that the credibility of X's statements was diminished by the fact that he had not referred to his homosexuality as an asylum ground in the initial asylum interview conducted by the police and had only done so at a later stage, in the asylum interview at the Immigration Service.X claimed that at the time of the initial interview he had been unwell and had been receiving hospital treatment.Some two weeks after the initial interview, X's councel had submitted to the Immigration Service a written statement in which X claimed international protection on the grounds of his sexual orientation.The Supreme Administrative Court noted that while the applicant has a duty to submit as soon as possible all the elements needed to substantiate the application, in X's circumstances, the fact that he had not referred to his homosexuality in the initial interview could not be regarded as decisive when assessing the credibility of his statements. The Supreme Administrative Court stated that the applicant's own testimony is the primary and often the only source of evidence when assessing the credibility of declared sexual orientation.In an oral hearing it would have been possible to seek more clarification concerning the formation of X's sexual identity, and whether and how he has expressed his sexual identity in his home country and whether there have been any adverse consequences.Therefore, an oral hearing, as requested by X, had not been manifestly unnecessary, in the meaning of section 38 of the Administrative Judicial Procedure Act.The Supreme Administrative Court referred the case back to the administrative court, for an oral hearing and a reconsideration of the matter. In its decision, the Supreme Administrative Court referred to the case law of the Court of Justice of the European Union (C-148/13, C-149/13 and C-150/13, A et al.), concerning the interpretation of the Qualification Directive in the light of the Charter of Fundamental Rights of the European Union and the assessment of facts and circumstances concerning the declared sexual orientation of an asylum applicant, whose application is based on a fear of persecution on grounds of that sexual orientation.The court also referred to the judgment (19 April 2016) of the European Court of Human Rights in the case of A.N. v.France, and its own previous decisions KHO 2016:174 (sexual orientation) and KHO 2017:63 (religious affiliation). 7.5.2018 / 7.5.2018 / RHANSKI
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Date when decision was rendered: 22.9.2017 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 4072/4/16; 4639 Reference to source KHO 2017:148. 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
asylum,
aliens,
homosexuality,
sexual orientation,
oral hearing,
Relevant legal provisions sections 87-1, 87a-1, 87b, 88-1, 88a-1, 88e and 147 of the Aliens Act; sections 33, 37-1 and 38-1 of the Administrative Judicial Procedure Act; section 9-4 of the Constitution Act; Article 4 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 persons eligible for subsidiary protection, and for the content of the protection granted; Article 46 of Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection = utlänningslag 87 § 1 mom., 87a § 1 mom., 87b §, 88 § 1 mom., 88a § 1 mom., 88e § och 147 §; förvaltningsprocesslag 33 §, 37 § 1 mom. och 38 § 1 mom.; grundlagen 9 § 4 mom.; Europaparlamentets och rådets direktiv 2011/95/EU om normer för när tredjelandsmedborgare eller statslösa personer ska anses berättigade till internationell skydd, för en enhetlig status för flyktingar och personer som uppfyller kraven för att betecknas som subsidiärt skyddsbehövande, och för innebörden i det beviljade skyddet artikel 4; Europaparlamentets och rådets direktiv 2013/32/EU om gemensamma förfaranden för att bevilja och återkalla internationellt skydd artikel 46 = ulkomaalaislaki 87 § 1 mom., 87a § 1 mom., 87b §, 88 § 1 mom., 88a § 1 mom., 88e § ja 147 §; hallintolainkäyttölaki 33 §, 37 § 1 mom. ja 38 § 1 mom.; perustuslaki 9 § 4 mom.; Euroopan parlamenting 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 suojan sisällölle 4 artikla; Euroopan parlamentin ja neuvoston direktiivi 2013/32/EU kansainvälisen suojelun myöntämistä tai poistamista koskevista yhteisistä menettelyistä 46 artikla. ECHR-3; Articles 18 and 19 of the Charter of Fundamental Rights of the European Union Abstract X, from Iraq, had applied for asylum in Finland.He claimed he was persecuted by religious fundamentalists in Iraq because of his profession as a musician and because of his liberal lifestyle.X told he had received threatening letters in which his lifestyle had been criticized and in which he was accused of "being like a homosexual".In the asylum interview X admitted that the accusations concerning his lifestyle were true but he denied being a homosexual.The Finnish Immigration Service rejected X's application.In his appeal to the administrative court, X claimed that in Iraq he would be subjected to persecution because of his sexual orientation.The court found that X's statements were contradictory and that the credibility of his statements was diminished by the fact that he had not referred to his homosexuality as an asylum ground in the asylum interview and had only done so later, in the proceedings before the administrative court.X had requested an oral hearing, bu the administrative court held, with reference to section 38 of the Administrative Judicial Procedure Act, that an oral hearing was manifestly unnecessary in this case. On X's appeal, the Supreme Administrative Court considered both the credibility of X's statements and the necessity of an oral hearing.The court noted that recent country reports on Iraq had documented that persons belonging to sexual minorities had been subjected to physical violence, discrimination and honour killings.Therefore, it could not be excluded that X could be in need of international protection on grounds of his sexual orientation.The court then noted that, as a rule, it is the duty of an asylum applicant to submit all the elements needed to substantiate the application already when submitting the application.The credibility of any new elements, submitted in support of the application later before a court, is assessed on a case-by-case basis.Although in this case X had not referred to his homosexuality as an asylum ground in his asylum application and had in the asylum interview denied being a homosexual, he had explained in the administrative court his reasons for doing so.Before the Supreme Administrative Court, X had further elaborated on his reasons and had also submitted to the court additional information concerning his personal life and intimate relations.The Supreme Administrative Court found that the fact that X had not disclosed his sexual orientation in the asylum interview did not alone give reason to conclude that X's account lacked credibility.Also, the fact that X had in the asylum interview denied being homosexual could not be regarded as decisive when assessing the credibility of X's sexual orientation later during the process. The Supreme Administrative Court stated that the applicant's own testimony is the primary and often the only source of evidence when assessing the credibility of declared sexual orientation.In an oral hearing before the administrative court it would have been possible to seek more clarification concerning the formulation of X's sexual identity, and whether and how he has expressed his sexual identity in his home country and whether there have been any adverse consequences.Therefore, an oral hearing had not been manifestly unnecessary.The Supreme Administrative Court referred the case back to the administrative court, for an oral hearing and a reconsideration of the matter. In its decision, the Supreme Administrative Court referred to the case law of the Court of Justice of the European Union (C-148/13, C-149/13 and C-150/13, A et al.), concerning the interpretation of the Qualification Directive in the light of the Charter of Fundamental Rights and the assessment of facts and circumstances concerning the declared sexual orientation of an asylum applicant, whose application is based on a fear of persecution on grounds of that sexual orientation.The court also referred to the inadmissibility decision of the European Court of Human Rights in the case of A.N. v France, concerning alleged risk of ill-treatment of a homosexual man in the event of his being returned to his home couhtry Senegal.The human righte court held that national authorities can best assess the credibility of an applicant's account when they can see and hear the applicant.The applicant had in this case been heard both in the first instance and in the appeal court and both instances had found his account implausible. 3.7.2018 / 4.7.2018 / RHANSKI
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Date when decision was rendered: 15.6.2018 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 894/4/18; 2886 Reference to source KHO 2018:90. 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 justitieminiesteriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
asylum,
aliens,
homosexuality,
sexual orientation,
oral hearing,
Relevant legal provisions sections 87-1, 87a-1, 87b, 88-1, 101 and 147 of the Aliens Act; sections 33, 37-1 and 38-1 of the Administrative Judicial Procedure Act; Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection = utlänningslag 87 § 1 mom., 87a § 1 mom., 87b §, 88 § 1 mom., 101 § och 147 §; förvaltningsprocesslag 33 §, 37 § 1 mom. och 38 § 1 mom.; Europaparlementets och rådets direktiv 2013/32/EU om gemensamma förfaranden för att bevilja och återkalla internationellt skydd artikel 46 = ulkomaalaislaki 87 § 1 mom., 87a § 1 mom., 87b §, 88 § 1 mom., 101 § ja 147 §; hallintolainkäyttölaki 33 §, 37 § 1 mom. ja 38 § 1 mom.; Euroopan parlamentin ja neuvoston direktiivi 2013/32/EU kansainvälisen suojelun myöntämistä ja poistamista koskevista yhteisistä menettelyistä 46 artikla. ECHR-3; Articles 1 and 47 of the Charter of Fundamental Rights of the European Union Abstract The Finnish Immigration Service had rejected X's asylum application as manifestly unfounded and had ordered that X is returned to his home country Iraq.X filed a new asylum application, this time referring to his homosexuality as an asylum ground.The Immigration Service found that the application lacked credibility and was manifestly unfounded.The administrative court upheld the decision.The Immigration Service had not admitted as evidence a video recording which X had submitted and which according to him showed intimate acts between himself and another man.With reference to the judgment of the Court of Justice of the European Union in the case of A et al.(C-148/13, C-149/13 and C-150/13), also the administrative court found this type of evidence inadmissible as infringing human dignity, guaranteed in Article 1 of the EU Charter of Fundamental Rights.X requested an oral hearing, but the administrative court held, with reference to section 38 of the Administrative Judicial Procedure Act, that an oral hearing was manifeslty unnecessary in this case. Based on recent country reports on Iraq, the Supreme Administrative Court found that it could not be excluded that X could be in need of international protection on grounds of his sexual orientation.Therefore, assessing the credibility of X's statements concerning his homosexuality was of major importance.The Supreme Administrative Court noted that, as a rule, it is the duty of an asylum applicant to submit all the elements needed to substantiate the application already when submitting the application.The credibility of any new elements, submitted in support of the application later in the process, is assessed on a case-by-case basis.The applicant's own testimony is the primary and often the only source of evidence when assessing the credibility of declared sexual orientation.The court held that, because of the theory of free evaluation of evidence and the protection of the procedural rights of the applicant, video recordings of sexual behaviour can be admitted as evidence (see KHO 2018:52 of 13 April 2018).However, the value of such recordings as evidence is limited, as compared to the assessment of the applicant's own testimony.In this case, X had explained why he had not declared his homosexuality when filing his first asylum application.He had also submitted additional information to the Supreme Administrative Court and had told the court he was currently in a relationship with a man who was willing to appear as a witness.The court found that the fact that X had not disclosed his sexual orientation in his first asylum application did not alone give reason to conclude that X's account lacked credibility. Regarding the question of oral hearing, the Supreme Administrative Court took note of the judgment of the Court of Justice of the European Union in the case of Moussa Sacko (C-348/16), in which the CJEU held that the national court hearing an appeal against a decision rejecting a manifestly unfounded application for international protection can dismiss the appeal without hearing the applicant, provided that the decision in the first instance was based on full examination of the facts and law and the applicant was heard.The Supreme Administrative Court also referred to the inadmissibility decision (19 April 2016) of the European Court of Human Rights in the case of A.N. v France, concerning alleged ill-treatment of a homosexual man in the event of his being returned to his home country Senegal.The human rights court held that national authorities can best assess the credibility of an applicant's account when they can see and hear the applicant, and that the applicant had been heard both in the first instance and the appeal court and both instances had found his account lacked credibiity. In the present case, X had requested an oral hearing before the administrative court, in order to give more information about his sexual orientation and the situation of homosexuals in Iraq.He had also referred to the video recording as evidence.The administrative court had considered it possible that X had been involved in homosexual acts, but had found X's account of his declared sexual orientation perfunctory and implausible.The court had also not admitted the video recording as evidence.The Supreme Administrative Court found that in an oral hearing before the administrative court it would have been possible to seek more clarification concerning the formation of X's sexual identity, and whether and how he has expressed his sexual identity in his home country and whether there have been any adverse consequences.It would also have been possible to assess the relevance of the video recording as evidence.The court concluded that the credibility of X's testimony could not have been reliably assessed without giving him the opportunity to be heard before the administrative court.When considering an applicant's request for an oral hearing in order to assess the applicant's credibility, the fact that the application has been found manifestly unfouded in the first instance is not decisive.The Supreme Administrative Court quashed the decision of the administrative court and referred the case back to the administrative court for an oral hearing and a reconsideratin of the matter. 6.7.2018 / 6.7.2018 / RHANSKI
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Date when decision was rendered: 20.8.2019 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 3712; 189/3/18, 193/3/18, 195/3/18, 213/3/18, 220/3/18, 223/3/18, 235/3/18, 247/3/18 and 261/3/18 Reference to source KHO 2019:98. 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
effective remedy,
equality,
oral hearing,
Relevant legal provisions sections 3, 5, 6, 12, 13 and 38 of the Competition Act; sections 37 and 39 of the Administrative Judicial Procedure Act; sections 31-1, 44 and 45-1 of the Administrative Procedure Act; sections 2-2 and 2-4, 22, 27 and 62 of the Public Transport Act; Articles 101-1 and 107-1 of the Treaty on the Functioning of the European Union = konkurrenslag 3 §, 5 §, 6 §, 12 §, 13 § och 38 §; förvaltningsprocesslag 37 § och 39 §; förvaltningslag 31 § 1 mom., 44 § och 45 § 1 mom.; kollektivtrafiklag 2 § 2 och 4 punkten, 22 §, 27 § och 62 §; Fördraget om Europeiska unionens funktionssätt artikel 101-1 och artikel 107-1 = kilpailulaki 3 §, 5 §, 6 §, 12 §, 13 § ja 38 §; hallintolainkäyttölaki 37 § ja 39 §; hallintolaki 31 § 1 mom., 44 § ja 45 § 1 mom.; joukkoliikennelaki 2 § 2 ja 4 kohta, 22 §, 27 § ja 62 §; Sopimus Euroopan unionin toiminnasta 101 artikla 1 kohta ja 107 artikla 1 kohta. ECHR-6; Articles 41, 47, 51-1 and 52-3 of the Charter of Fundamental Rights of the European Union Abstract The Competition and Consumer Authority had submitted a proposal to the Market Court under which a penalty payment amounting to over EUR 30 million should be imposed on seven coach companies, the bus sector lobby group Finnish Bus and Coach Association and Matkahuolto (a service and marketing company promoting bus and coach services in Finland).In 2010-2015, the companies had sought to maintain their status in the market and to prevent the access to the market of competitors by excluding new regular services from Matkahuolto's timetable and ticket purchase services as well as parcel delivery services.The Market Court found that the companies had operated a cartel and ordered each of the parties involved in the cartel to pay a EUR 100,000 penalty payment for prohibited restriction of competition.Both the Competition Authority and the cartel companies appealed against the decision to the Supreme Administrative Court. In its decision, the Supreme Administrative Court applied the Competition Act, TFEU as well as the relevant case law of the CJEU.The Supreme Administrative Court found that the anti-competitive behavior of the companies prevented the liberalization of the market and delayed opening it up to competition.The court increased the amount of the financial penalties imposed on the respondent companies to a total sum of EUR 8,9 million.Heavier fines were imposed on Matkahuolto (EUR 4,3 million) and Koiviston Auto (EUR 2,3 million) which is one of the largest bus companies in Finland.The payments imposed on the smaller bus companies and the Finnish Bus and Coach Assosiation varied between EUR 100,000 and EUR 600,000. The Supreme Administrative Court held that the Market Court had not fully assessed the nature and extent, degree of gravity, and the duration of the infringement on an individual basis, taking into account the conduct of each of the companies involved.The amount of the penalty payment must be in proportion to the gravity of the infringement, in order to satisfy the requirements of Article 47 of the EU Charter of Fundamental Rights.The Market Court's decision did not take into account the varying sizes and turnovers of the companies involved.This was contrary to the principle of equal treatment of the respondent companies, within the meaning of the relevant anti-trust case law of the CJEU.Some of the companies had requested an oral hearing.The Supreme Administrative Court assessed the request in light of the Administrative Judicial Procedure Act, Article 47 of the Charter of Fundamental Rights, Article 6-1 of the ECHR and the relevant case law of the European Court of Human Rights.The court concluded that an oral hearing was not necessary because the Market Court had held an oral hearing in the first instance. 21.2.2020 / 21.2.2020 / RHANSKI
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Date when decision was rendered: 9.8.2018 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 5026/4/17; 3712 Reference to source KHO 2018:109. Electronic database for the decision of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
aliens,
deportation,
oral hearing,
Relevant legal provisions section 5 of the Aliens Act; sections 31, 44 and 45 of the Administrative Procedure Act; sections 33, 34 and 38 of the Administrative Judicial Procedure Act; sections 11-2 and 24-1-9 of the Act on the Openness of GOvernment Activities; sections 8, 9 and 18 of the Act on the Publicity of Administrative Court Proceedings; sections 12-2 and 21-2 of the Constitution Act = utlänningslag 5 §; förvaltningslag 31 §, 44 § och 45 §; förvaltningsprocesslag 33 §, 34 § och 38 §; lag om offentlighet i myndigheternas verksamhet 11 § 2 mom. och 24 § 1 mom. 9 punkten; lag om offentlighet vid rättegång i förvaltningsdomstolar 8 §, 9 § och 18 §; grundlagen 12 § 2 mom. och 21 § 2 mom. = ulkomsslsidlski 5 §; hallintolaki 31 §, 44 § ja 45 §; hallintolainkäyttölaki 33 §, 34 § ja 38 §; laki viranomaistoiminnan julkisuudesta 11 § 2 mom. ja 24 § 1 mom. 9 kohta; laki oikeudenkäynnin julkisuudesta hallintotuomioistuimissa 8 §, 9 § ja 18 §; perustuslkai 12 § 2 mom. ja 21 § 2 mom. ECHR-6-1; ECHR-8; ECHR-13; ECHRP-7-1 Abstract X was a Turkish citizen with a permanent residence permit in Finland.In 2012, X was sentenced to eight years and six months of imprisonment in Sweden for attempted murder.He was transferred to Finland to serve his sentence.Having received a statement from the Finnish Security and Intelligence Service (Supo), the Finnish Immigration Service decided in 2016 that X is to be deported to Turkey, because there were grounds to suspect that he may engage in activities that endanger Finland's national security.X appealed to the administrative court, which upheld the decision of the Immigration Service.The court heard Supo's representative in closed proceedings concerning the grounds for Supo's statement.The court held that because of a very important public interest, Supo's statement and the facts upon which it was based could not be disclosed, and even in his position as a party to the case, X could not be granted access to these documents.The court denied X's request for an oral hearing as being manifestly unnecessary, within the meaning of the Administrative Judicial Procedure Act.Instead, X was given the possibility to submit additional documentary evidence. The key question before the Supreme Administrative Court was whether X's request for an oral hearing and access to Supo's statement could be rejected by the administrative court.In its decision, the Supreme Administrative Court discussed the case law of the European Court of Human Rights (e.g., the case of Regner v the Czech Republic, 19 September 2017; Kaushal et al. v Bulgaria, 2 September 2010; and Ljatifi v the Former Yugoslav Republic of Macedonia, 17 May 2018).It also referred to the ruling of the Court of Justice of the European Union in the case C-300/11 ZZ v Secretary of State for the Home Department (4 June 2013).Based on this case law review, the Supreme Administrative Court noted, e.g., that a court should strike a fair balance between individual rights and the interests of public order and safety.It must carry out an independent examination of all the facts the authorities have relied on when claiming that public order and public safety are at stake.In order to ensure compliance with the adversarial principle, the individual must be able to challenge the authorities' assertion.If a party in the case cannot be granted access to all trial materials, any negative effects of that limitation of the right of access should be minimized in the court proceedings. The Supreme Administrative Court noted that the administrative court had not heard X in connection with the hearing of Supo or thereafter.The possibility to submit additional documentary evidence could not be regarded as a measure which would guarantee adversarial proceedings, particularly, when X was lacking even ouline knowledge of the contets of Supo's statement.The administrative court had briefly reviewed parties' right of access to documents in the Immigration Service proceedings, but had not assessed X's procedural rights at the appeals stage.In its decision, the administrative court did not discuss the right to an effetive remedy, as provided for in Article 13 of the ECHR.It had not taken into account that when the decision on X's deportation was made, he was lawfully residing in Finland and the procedural safeguards relating to expulsion of aliens, provided for in Protocol no. 7 to the ECHR, were thus applicable. The Supreme Administrative Court held that although the administrative court had found that all information submitted by Supo in the case was confidential snd not accessible to X even as a party to the case, it should, nevertheless, have provided X with the right to be heard and the right to have examined witnesses, at least those which he had himself presented.The Supreme Administrative Court noted that the administrative court had a duty to try to diminish any negative effects of the limitation of a party's right of access to trial documents.To that end, a written hearing had not been sufficient in this case, and a written hearing alone had not given X an adequate opportunity to submit reasons against his deportation.The Supreme Administrative Court concluded that X's oral hearing could not be considered manifestly unnecessary, particularly when taking into account the procedural rights guaranteed in Article 13 of the ECHR and Article 1 of Protocol no. 7 to the ECHR. The Supreme Administrative Court quashed the decision of the administrative court and referred the matter back to the lower court, for a new oral hearing in which X has the opportunity to be heard and to have examined at least his own witnesses.It also ordered the administrative court to consider the facts upon which Supo's statment was based and to make an independent assessment as to whether these facts can to some degree be disclosed to X as a party to the case, taking particularly into account X's procedural rights. 23.10.2023 / 25.10.2023 / RHANSKI
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