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Date when decision was rendered: 13.5.1993 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 1725; S91/1301 Reference to source KKO 1993:58. Decisions of the Supreme Court 1993 I January-June Avgöranden av Högsta domstolen 1993 I januari-juni Korkeimman oikeuden ratkaisuja 1993 I tammi-kesäkuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 1994 Pages: pp. 224-259 Subject
respect for family life,
non-discrimination,
rights of the child,
Relevant legal provisions Section 7-2 of the Implementing Act of Paternity Act = lag ang. införande av lagen om faderskap 7 § 2 mom. = laki isyyslain voimaanpanosta 7 § 2 mom. ECHR-8, ECHR-14, CRC-7 Abstract The case dealt with the establishment of paternity.As Mrs.B was married to Mr.C in 1975 when the child A was born, C was regarded as A's father on the basis of legal presumption.Actually Mrs.B had already in 1975 lived together with Mr.D, and the couple was married in 1976, two months after C and B were divorced.In 1977, Mr.D died.There existed medical evidence strongly suggesting the paternity of D.In 1990, C's paternity was nullified by a court.Because of the fact that A was born before the 1975 Paternity Act entered into force, the death of D precluded, according to the explicit wording of section 7-2 of the Implementing Act of the 1975 Paternity Act, the possibility of instituting paternity proceedings.According to the Supreme Court, such a conclusion would be problematic in light of several human rights treaty provisions, including those on non-discrimination, the right to family life and the child's right to know his or her parents.According to the majority of 3 justices, a literal interpretation of the Implementing Act would cause unjustified inequality.The ratio legis of the Act could be realised only by deviating from its wording, that is, by allowing A to institute court proceedings for the establishment of the paternity of the late D.According to the majority, such an interpretation was in harmony with the principle illustrated by Article 7 of the CRC and Article 14 of the ECHR in conjunction with Article 8 of the ECHR.One justice, concurring, referred also to the equality clause in section 5 of the 1919 Constitution Act, to Article 6 of the ECHR, and to Article 8 of the CRC.He stated: "... taking particularly into account the provisions of the above-mentioned conventions, falling within the legislative sphere and having been incorporated into domestic law through Acts of Parliament Nos. 438 of 1990 and 1129 of 1991, which have been enacted later in time than the Implementing Act on the Paternity Act, I am of the opinion that section 7, paragraph 2 of the Implementing Act, restricting action in cases of death [of the potential father] is applicable in the case of A."One justice, also concurring, would have decided the case without any reference to human rights treaties or to the Constitution. 26.3.1998 / 11.4.2007 / RHANSKI
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Date when decision was rendered: 26.5.1993 Judicial body: Vaasa Court of Appeal = Vasa hovrätt = Vaasan hovioikeus Reference: Report No. 1031; R92/1295 Reference to source VaaHO 1994:10. 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
non-discrimination,
equality before the law,
Relevant legal provisions section 5 of the Constitution Act; Temporary Act on Community Service = regeringsformen 5 §; lag om försöksverksamhet med samhällstjänst = hallitusmuoto 5 §; laki yhdyskuntapalvelun kokeilemisesta. ECHR (unspecified), UDHR (unspecified) Abstract Parliament had enacted a Temporary Act on Community Service (No. 1105 of 1990), for a trial period of three years and to be applied by certain courts as a discretionary alternative to imprisonment.The Vaasa Court of Appeal stated that such a law was in breach of the principle of equal treatment.Therefore, the Act had been approved in a specific qualified procedure as an exception to the equality clause in section 5 of the Constitution Act.The principle of equal treatment, as guaranteed in the ECHR and the UDHR, was, however, not violated to the extent that the punishment of community service, for the sake of equality, should be used also by other courts than those stipulated by the Act.The appeal of the defendant, asking to be sentenced to community service, was therefore dismissed. 27.3.1998 / 11.4.2007 / RHANSKI
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Date when decision was rendered: 8.9.1997 Judicial body: Vaasa Court of Appeal = Vasa hovrätt = Vaasan hovioikeus Reference: Report No. 1257; R97/61 Reference to source Registry of the Vaasa Court of Appeal Vasa hovrätts registratorskontor Vaasan hovioikeuden kirjaamo Date of publication: Subject
non-discrimination,
conscientious objection,
Relevant legal provisions Section 26 of the Civilian Service Act; Section 5 of the Constitution Act = civiltjänstlagen 26 §; regeringsformen 5 § = siviilipalveluslaki 26 §; hallitusmuoto 5 §. ECHR-14, CCPR-26 Abstract T had started his alternative service but had later refused to continue his service.He was sentenced to imprisonment for refusal to discharge his alternative service.The length of his imprisonment corresponded to the time remaining of his service.T appealed to the Vaasa Court of Appeal and claimed that, as compared to Jehovah's Witnesses, to women as well as to men who are regional citizens of the Åland Islands, his conviction was discriminatory and thus contrary to the prohibition of discrimination in section 5-2 of the Constitution Act and in international human rights conventions.Also, the length of his imprisonment was unreasonable and discriminatory in comparison with the length of ordinary military service.The Vaasa Court of Appeal considered the discrimination claims in the light of Article 14 of the ECHR and Article 26 of the CCPR.The court also referred to the case law of the European Commission of Human Rights and the Human Rights Committee.The exemption of Jehovah's Witnesses from military service was discussed in the light of the case of N. v.Sweden (decision of 11 October 1984, Decisions and Reports 40) and the case of Brinkhof v.The Netherlands (Communication No. 402/1990, views of the Human Rights Committee adopted on 27 July 1993).With reference to section 1-2 of the Act on the Exemption of Jehovah's Witnesses from National Service, which states that the Act does not apply to conscripts who have already started their military service, non-armed service or alternative service, the court concluded that T's conviction had not been discriminatory because T had already started his alternative service.With reference to the case of Spöttl v.Austria (European Commision of Human Rights decision of 15 May 1996, Decisions and Reports 85-A) and to the fact that the aim of the Act on Women's Voluntary Military Service was to secure the equality of women as compared to men, the court concluded that women's possibility to voluntary military service did not lead to the conclusion that section 26 of the Civilian Service Act is in contradiction with the prohibition of discrimination as prescribed in Article 14 of the ECHR and Article 26 of the CCPR.As regards the Åland Islands, the court noted that the exemption from military service was connected with the regional citizenship in the Åland Islands.On the basis of the internationally recognized autonomous status of the Åland Islands, there are objective and justified grounds for the exemption from military service of men who are regional citizens of the Åland Islands.Their exemption from military service could not be discriminatory against T because T's status was not comparable to that of the regional citizens of the Åland Islands.With reference to the case of Autio v.Finland (European Commission of Human Rights decision of 6 December 1991, Decisions and Reports 72) the court noted that there were sufficient grounds for the differential treatment as regards the length of ordinary military service and that of alternative service.The court concluded that connecting the length of imprisonment with the time remaining of the convicted person's alternative service was not discriminatory in comparison with those performing ordinary military service.The court of appeal dismissed the appeal.The Supreme Court did not grant T leave to appeal. 1.4.1998 / 30.5.2006 / RHANSKI
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Date when decision was rendered: 9.10.2000 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 2229; S97/1935 Reference to source KKO 2000:97. Decisions of the Supreme Court 2000 II July-December Avgöranden av Högsta domstolen 2000 II juli-december Korkeimman oikeuden ratkaisuja 2000 II heinä-joulukuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 2001 Pages: pp. 500-516 Subject
non-discrimination,
principle of proportionality,
compensation,
general principles of law,
Relevant legal provisions Damage Compensation Act; Act on the special protection of the river Kyröjoki (1139/1991) = skadeståndslagen; lag om specialskydd för Kyro älv (1139/1991) = vahingonkorvauslaki; Kyröjoen erityissuojelulaki (1139/1991) Abstract A contract between a company and the Government had not been fully implemented and had become void because of a new Act pertaining to the subject of the contract.On the basis of the Act, the company had already received some compensation.However, the company also accused the Government of breach of contract and demanded additional compensation.In support of its claim, the company referred not only to relevant national legislation but also to some general principles of law, among them the principles of proportionality and of non-discrimination as they result from the ECHR.It considered the said principles as restrictions to the discretion of the governmental authorities. The court of first instance concluded that it had not been shown that the Government had committed a breach of contract or an act of negligence when enacting the new legislation.The principles of law, which the company referred to, could not alone and separately be applied as grounds for damages.The case went further to the court of appeal and to the Supreme Court, but the decisions of the two courts do not refer to the ECHR nor to general principles of law resulting from the ECHR. 28.10.2002 / 10.3.2003 / LISNELLM
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| [5 / 21] |
Date when decision was rendered: 17.4.1998 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 674; 851/3/98 Reference to source Registry of the Supreme Administrative Court Högsta förvaltningsdomstolens registratorskontor Korkeimman hallinto-oikeuden kirjaamo Date of publication: Subject
deported persons,
respect for family life,
inhuman treatment or punishment,
non-discrimination,
Relevant legal provisions sections 40 and 41 of the Aliens Act = utlänningslag 40 §, 41 § = ulkomaalaislaki 40 §, 41 §. ECHR-3, ECHR-8, ECHR-14 Abstract B is a Ugandan citizen who had resided in Finland since 1991.In 1993, he was convicted of attempted manslaughter for having raped several women, knowing that he had contracted HIV infection.Upon release of B from prison, the Aliens Office decided to deport him to Uganda on account of his criminal behaviour and lack of required residence permit.B appealed to the Supreme Administrative Court.He argued that his deportation would amount to a violation of Articles 3, 8 and 14 of the ECHR.As to Article 3, B argued that the lack of adequate health care in Uganda would put his life in danger and subject him to inhuman and degrading treatment.In addition, B stated that he, as an alleged Rwandan refugee, would face the risk of being deported from Uganda to Rwanda and there, as a consequence of his earlier activities in the opposition struggle against the Rwandan Government, he would most likely become a victim of inhuman and degrading treatment.Taking into account the present health condition of B and the availability of basic HIV/AIDS treatment in Uganda, the Supreme Administrative Court concluded that no violation of Article 3 could be disclosed.Furthermore, the Court did not foresee any imminent danger of B being deported to Rwanda.As to the alleged violations of Articles 8 and 14, the Court dismissed the charges due to lack of substantiated proof.B had divorced his Finnish wife in 1995 and no other grounds which could amount to a violation of B's right to family life had been put forward.Neither could the Court disclose any discrimination based on race or color. B lodged a complaint with the European Commission of Human Rights, but the case was declared inadmissible (Application No. 40900/98). 8.11.2002 / 11.4.2007 / RHANSKI
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Date when decision was rendered: 22.1.2003 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 100; 1870/3/01 Reference to source KHO 2003:3. Yearbook of the Supreme Administrative Court 2003 January-June Högsta förvaltningsdomstolens årsbok 2003 januari-juni Korkeimman hallinto-oikeuden vuosikirja 2003 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2005 Pages: pp. 26-40 Subject
non-discrimination,
Saami,
indigenous peoples,
right to culture,
Relevant legal provisions Sections 6-2, 17-3 and 18 of the Constitution Act = grundlagen 6 § 2 mom., 17 § 3 mom. och 18 § = perustuslaki 6 § 2 mom., 17 § 3 mom. ja 18 §. ECHR-8; CCPR-27 Abstract The case related to the level of and restrictions on government subsidies to reindeer herders.The applicant A, who was a Sami, based his case on the fact that government subsidies for reindeer herders were clearly lower that those afforded to farmers raising certain other animals (for example, pigs or sheep).In addition, they were subjected to a restrictive condition not applied in respect of producers of other animals, namely that the total annual income of the person must not exceed a certain amount.The Supreme Administrative Court held that these conditions did not prevent A from enjoying his culture by practising reindeer herding in community with other Sami, as required by section 17-3 of the Constitution Act and Article 27 of the CCPR.In addition, the Court found that there were acceptable reasons for the restrictions concerning the level of subsidies, and the restrictions were not in breach of the provisions on equality in section 6-2 of the Constitution Act.In support of his claim A had also referred to section 18 of the Constitution Act (the right to work and freedom to engage in commercial activity) and Article 8 of the ECHR.The Supreme Administrative Court found no breach of these provisions either. 1.4.2004 / 1.6.2006 / RHANSKI
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Date when decision was rendered: 17.11.2003 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 2829; S2002/324 Reference to source KKO 2003:107. Decisions of the Supreme Court 2003 II July - December Avgöranden av Högsta domstolen 2003 II juli - december Korkeimman oikeuden ratkaisuja 2003 II heinä - joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2004 Pages: 659-666 Subject
non-discrimination,
children,
paternity,
Relevant legal provisions Section 7-2 of the Act on the Implementation of the Paternity Act, section 6 of the Constitution Act = lag angående införande av lagen om faderskap 7 § 2 mom.; grundlagen 6 § = laki isyyslain voimaanpanosta 7 § 2 mom.; perustuslaki 6 §. ECHR-8; ECHR-14; CRC-7 Abstract A had been born out of wedlock in 1968.In 2000, A filed a paternity suit on the basis of the 1975 Paternity Act in order to establish that B was A's father.B had died in 1999.According to section 7-2 of the Act on the Implementation of the Paternity Act, a paternity suit in relation to a child who had been born out of wedlock before the entry into force of the Paternity Act (1 October 1976) had to be filed within five years from the entry into force of the Act.The suit could not be filed if the father was dead.A claimed, among other things, that section 7-2 of the Implementation Act was discriminatory.Persons who had been born out of wedlock after the entry into force of the Paternity Act could initiate proceeding without any time limit.A was thus treated differently from these persons because of her date of birth and thus her age.The Supreme Court considered the five-year transition period as reasonable.The transition period had been set on grounds of legal security.Presently, the transition period was even more important in view of legal security as the legislation in question had been in force for more than 25 years and all those covered by the transition provision had reached the age of majority some time ago.A and B had never lived together, and there was no genuine family tie or other close bond between the two.When filing the paternity suit A was 32 years old.The establishment of paternity was relevant mainly with respect to A's inheritance right.The Supreme Court made a general reference to the Convention on the Rights of the Child and the ECHR and their interpretation practice and found no support for the claim that the application of section 7-2 in this case would be in conflict with the two conventions.The Court also found that A had not without an acceptable reason been treated differently on grounds of her age.The Court concluded that section 7-2 was not in conflict with the prohibition of discrimination as prescribed in section 6 of the Constitution Act. See also the case of Grönmark v.Finland (application no. 17038/04, judgment of 6 July 2010) in which the European Court of Human Rights found a violation of Article 8 of the ECHR.A then filed with the Supreme Court a request for the reversal of judgment KKO 2003:107.In its decision (KKO 2015:97) of 22 December 2015, the Supreme Court noted that the new Paternity Act (11/2015) will enter into force 1 January 2016.Under the new Act, the possibility to file a paternity suit is no longer time-barred.The court's previous decision (2003:107) does not prevent A from filing a paternity suit under the new Act.Therefore, there was no need for a reversal of the judgment. 21.4.2004 / 23.12.2015 / RHANSKI
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Date when decision was rendered: 27.8.2004 Judicial body: Vaasa Administrative Court = Vasa förvaltningsdomstol = Vaasan hallinto-oikeus Reference: Report No. 04/0253/3; 00411/04/5990 Reference to source Registry of Vaasa Administrative Court Vasa förvaltningsdomstols registratorskontor Vaasan hallinto-oikeuden kirjaamo Date of publication: Subject
equality,
non-discrimination,
sexual orientation,
homosexuality,
church,
Relevant legal provisions section 6 of the Non-Discrimination Act; section 6 of the Constitution Act; section 1 of the Act on Registration of Partnership; Chapter 24, section 4 of the Church Act; Chapter 6, section 24-1 of the Church Order = lag om lika behandling 6 §; grundlagen 6 §; lag om registrerat partnerskap 1 §; kyrkolagen 24 kapitel 4 §; kyrkoordning 6 kapitel 24 § 1 mom. = yhdenvertaisuuslaki 6 §; perustuslaki 6 §; laki rekisteröidystä parisuhteesta 1 §; kirkkolaki 24 luku 4 §; kirkkojärjestys 6 luku 24 § 1 mom. Abstract A had applied for the position as an assistant vicar.The Cathedral Chapter decided that A was not qualified for the position because of the fact that she was living in a same-sex relationship and possibly intended to register that partnership.A appealed against the decision to the administrative court, referring among other things to the prohibition of discrimination in the Constitution Act and in international human rights treaties.The administrative court noted that the registration of a same-sex partnership is accepted and prescribed in law.It then referred to the Constitution Act and the Non-Discrimination Act and to the prohibition of discrimination, without an acceptable reason, on the ground of personal characteristics.The court regarded a same-sex partnership as a reason pertaining to a person or to personal characteristics.In the court's opinion, exceptions to the prohibition of discrimination are not possible in this case unless the reasons for disqualification, though based on the teachings of the church, are also based on the law.As there are no such exceptions included in the Church Act, A could not be disqualified on the grounds presented in the decision of the Cathedral Chapter.The matter was returned to the Cathedral Chapter for a new consideration. 20.1.2005 / 20.1.2005 / ASADINMA
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Date when decision was rendered: 18.1.2005 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 89; 1593/3/02 Reference to source Registry of the Supreme Administrative Court Högsta förvaltningsdomstolens registratorskontor Korkeimman hallinto-oikeuden kirjaamo Date of publication: Subject
disabled persons,
equality,
social rights,
non-discrimination,
Relevant legal provisions sections 2, 13, 65 and 90 of the Local Government Act; section 17-2 of the Social Welfare Act, sections 3 and 9-1 of the Act on services for persons with disabilities; section 17 of the Decree on services for persons with disabilities; sections 6, 19-3 and 22 of the Constitution Act = kommunallag 2 §, 13 §, 65 § och 90 §; socialvårdslag 17 § 2 mom., lag om service och stöd på grund av handikapp 3 § och 9 § 1 mom.; förordning om service och stöd på grund av handikapp 17 §; grundlagen 6 §, 19 § 3 mom. och 22 § = kuntalaki 2 §, 13 § 65 § ja 90 §; sosiaalihuoltolaki 17 § 2 mom.; vammaisuuden perusteella järjestettävistä palveluista ja tukitoimista annettu laki 3 § ja 9 § 1 mom.; vammaisuuden perusteella järjestettävistä palveluista ja tukitoimista annettu asetus 17 §; perustuslaki 6 §, 19 § 3 mom. ja 22 §. Abstract A municipal social welfare board had in its budget proposal suggested the allocation of funds for the purpose of granting certain allowances under the Act on services for persons with disabilities.The municipal executive board had decided to delete these funds from the budget proposal.The municipal council adopted the budget as proposed by the executive board.As a consequence, during that budget year no funds could be allocated under the Act on services for persons with disabilities for the reimbursement of a car needed for the transportation of a disabled person.The administrative court took note of the Constitution Act and the duty of public authorities to guarantee adequate social, health and medical services for everyone (section 19-3) and the observance of basic rights and liberties and human rights (section 22).It also referred to the Local Government Act which prescribes the duty of local authorities to perfom the functions laid down for them by law as well as their duty to compile a budget which safeguards the preconditions for performing these functions. Under the Act on services for persons with disabilities, the local authorities have a duty to find out as to what extent services are needed.The administrative court ruled that by adopting the budget the municipal council had agreed to budgetary goals and funds which did not safeguard, as required by the Local Government Act, the preconditions for performing the functions assigned to the municipality under the Act on services for persons with disabilities.The decision of the municipal council was therefore contrary to law.The majority of the Supreme Administrative Court agreed with the administrative court.In its decision, the Court also referred to the principle of equality in section 6 of the Constitution Act.Within the framework of the funds allocated in the budget, a municipal social welfare board must be able to consider each individual need for services for the disabled and to provide services in a priority order which is in accordance with the constitutional requirement that no one shall, without an acceptable reason, be treated differently on the ground of health, disability or other reason that concerns his or her person. 26.5.2006 / 16.1.2018 / RHANSKI
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Date when decision was rendered: 27.11.2000 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 3118; 794/3/99 Reference to source KHO 2000:63. Yearbook of the Supreme Administrative Court 2000 July-December Högsta förvaltningsdomstolens årsbok 2000 juli-december Korkeimman hallinto-oikeuden vuosikirja 2000 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2001 Pages: pp. 99-110 Subject
disabled persons,
social rights,
right to social, health and medical services,
equality,
non-discrimination,
Relevant legal provisions sections 1 and 3 of the Act on the Status and Rights of Patients; sections 14-1-2 and 14-3 of the Primary Health Care Act; sections 6, 19 and 22 of the Constitution Act = lag om patientens ställning och rättigheter 1 § och 3 §; folkhälsolagen 14 § 1 mom. 2 punkten och 14 § 3 mom.; grundlagen 6 §, 19 § och 22 § = laki potilaan asemasta ja oikeuksista 1 § ja 3 §; kansanterveyslaki 14 § 1 mom. 2 kohta ja 14 § 3 mom.; perustuslaki 6 §, 19 § ja 22 §. Abstract A municipal senior physician had decided to order to X, as part of the medical treatment provided by the municipality, one or two pairs of orthopaedic shoes per year.X had applied for three pairs of orthopaedic shoes.Because of the nature of her disability X wore out several pairs of special shoes per year.This was confirmed by various expert reports. The county administrative court handled the case as an administrative dispute and dismissed the claim.The court held that the municipality had no specific legal obligation to provide orthopaedic appliances for everyone in need of such appliances and that the decisions on granting orthopaedic appliances are made within the framework of the budgetary means allocated for the social and health services in the municipality. The Supreme Administrative Court did not agree with the lower court.In its decision, the Supreme Administrative Court referred, among other provisions, to the Primary Health Care Act as well as to section 19 of the Constitution Act, concerning the duty of the public authorities to guarantee for everyone adequate social, health and medical services, and to section 6 of the Constitution Act, concerning equality before the law and the prohibition of discrimination.The Court ruled that the municipality had, under public law, the obligation to provide X with the necessary appliances for medical rehabilitation.In the Court's opinion, the municipality had not shown that it was unable to provide X with the orthopaedic appliances she needed, within the framework of the budgetary funds allocated for social and health services.The municipality had also failed to show that there would have been reasons, acceptable under section 6 of the Constitution Act, to give priority to other health or medical services to the effect that it was not possible to meet with X's individual needs.The Supreme Administrative Court quashed the decision of the county administrative court and ordered the municipality to provide X with orthopaedic shoes in accordance with her medically assessed needs. 31.5.2006 / 2.6.2006 / RHANSKI
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Date when decision was rendered: 19.6.2002 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 19.06.2002/1516; 1257/3/00 Reference to source KHO 2002:43. Yearbook of the Supreme Administrative Court 2002 January-June Högsta förvaltningsdomstolens årsbok 2002 januari-juni Korkeimman hallinto-oikeuden vuosikirja 2002 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2004 Pages: pp. 361-372 Subject
right to social, health and medical services,
social rights,
equality,
non-discrimination,
Relevant legal provisions sections 1, 3 and 4 of the Act on the Status and Rights of Patients; sections 14-1-2 and 14-3 of the Primary Health Care Act; sections 6, 19 and 22 of the Constitution Act = lag om patientens ställning och rättigheter 1 §, 3 § och 4 §; folkhälsolagen 14 § 1 mom. 2 punkten och 14 § 3 mom.; grundlagen 6 §, 19 § och 22 § = laki potilaan asemasta ja oikeuksista 1 §, 3 § ja 4 §; kansanterveyslaki 14 § 1 mom. 2 kohta ja 14 § 3 mom.; perustuslaki 6 §, 19 § ja 22 §. Abstract A medical officer of a health centre had ordered that X, because of her injuries, should receive physical therapy as part of the medical treatment provided by the municipality.However, a decision had been made in the municipality to the effect that due to a shortage of funds physical therapy would in general not be provided for persons between the age of 18 and 64 years.X was 42 years old.Because the municipality could not provide the necessary treatment, X should have sought physical therapy at a private clinic at her own expense. The administrative court held that the municipality had no specific legal obligation to provide physical therapy for everyone in need of such therapy.Decisions to grant medical rehabilitation are made within the framework of the budgetary funds allocated for the social and health services in the municipality.In the court's opinion, the municipal authorities had not exceeded their discretionary powers when excluding, due to a shortage of funds, persons of working age from physical therapy provided by the municipality. In its decision, the Supreme Administrative Court referred to section 19 of the Constitution Act, concerning the duty of public authorities to guarantee for everyone adequate social, health and medical services, and to the prohibition of discrimination in section 6 of the Constitution Act and section 3 of the Act on the Status and Rights of Patients.The Court found that adequate health and medical services cannot always be provided without giving priority to some services over others.However, when putting services in priority order the prohibition of discrimination must be taken into account.In addition, the municipal authorities have a duty to assess a person's state of health and his or her individual need for adequate health and medical services.A person cannot be denied adequate health and medical services which are based on his or her medically assessed needs merely on the basis of the person's age.The Supreme Administrative Court quashed the decision of the administrative court and returned the case to the municipality for reconsideration. 5.6.2006 / 5.6.2006 / RHANSKI
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Date when decision was rendered: 20.12.2006 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 3494; 2823/1/05 Reference to source KHO 2006:98. Yearbook of the Supreme Administrative Court 2006 July-December Högsta förvaltningsdomstolens årsbok 2006 juli-december Korkeimman hallinto-oikeuden vuosikirja 2006 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: p. 739-745 Subject
freedom of religion,
freedom of expression,
non-discrimination,
Relevant legal provisions sections 4 and 6 of the Non-Discrimination Act; section 6 of the Administrative Procedure Act; sections 6, 11, 12 and 22 of the Constitution Act = lag om lika behandling 4 § och 6 §; förvaltningslag 6 §; grundlagen 6 §, 11 §, 12 § och 22 § = yhdenvertaisuuslaki 4 § ja 6 §; hallintolaki 6 §; perustuslaki 6 §, 11 §, 12 § ja 22 §. ECHR-9; ECHR-10; ECHR-14 Abstract An association of freethinkers wanted to hire space for advertising in the city busses in order to publicize their new web page where they encouraged people to secede from the Church.The City Transport Board decided not to rent advertising space for the association.With reference to the Non-Discrimination Act, the Constitution Act and the ECHR, the association claimed that the Board's decision violated freedom of religion, freedom of expression and the principle of equal treatment by differentiating between advertisers on the basis of their conviction.It also referred to section 22 of the Constitution Act which prescribes that the public authorities shall guarantee the observance of basic rights and liberties and human rights.The Supreme Administrative Court held that section 22 does not obligate the City Transport Board to rent out space for advertising.The Board did not abuse its discretion and the decision was not in any way contrary to law.The Board's decision did not prevent the association from enjoying its freedom of expression, nor was it contrary to the association's freedom of religion and conscience or the principle of equality. 10.4.2007 / 2.12.2010 / RHANSKI
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Date when decision was rendered: 5.7.2006 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 1717; 288/3/05 Reference to source KHO 2006:43. Yearbook of the Supreme Administrative Court 2006 July-December Högsta förvaltningsdomstolens årsbok 2006 juli-december Korkeimman hallinto-oikeuden vuosikirja 2006 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: pp. 47-56 Subject
appeal,
access to court,
non-discrimination,
respect for private life,
integrity,
drugs,
Relevant legal provisions sections 28-1-7, 34-1 and 34-2-4 of the Administrative Procedure Act; section 6-2 of the Act on the National Authority for Medicolegal Affairs; sections 25-1, 25-2, 25-5, 29, 38-1 and 39 of the Act on Health Care Professionals; sections 7-1 and 18-1 of the Constitution Act = förvaltningslag 28 § 1 mom. 7 punkten, 34 § 1 mom och 2 mom. 4 punkten; lag om rättsskyddscentralen för hälsovården 6 § 2 mom.; lag om yrkesutbildade personer inom hälso- och sjukvården 25 § 1, 2 och 5 mom., 29 §, 38 § 1 mom. och 39 §; grundlagen 7 § 1 mom. och 18 § 1 mom. = hallintolaki 28 § 1 mom. 7 kohta, 34 § 1 mom. ja 2 mom. 4 kohta; laki terveydenhuollon oikeusturvakeskuksesta 6 § 2 mom.; laki terveydenhuollon ammattihenkilöistä 25 § 1, 2 ja 5 mom., 29 §, 38 § 1 mom. ja 39 §; perustuslaki 7 § 1 mom. ja 18 § 1 mom. ECHR-5; ECHR-6; ECHR-8 Abstract The National Authority for Medicolegal Affairs, responsible for the supervision of health care professionals, found that it had good reason to presume that A, who was a foreign national and a physician licensed to practice his profession in Finland, was no longer capable of practicing his profession, owing to reduced functional capacity and possible drug addiction.Based on the Act on Health Care Professionals, the National Authority for Medicolegal Affairs ordered A to submit a medical report concerning his health and his ability to work and imposed on A a temporary prohibition to practice his profession.It also held that appeal against the decision was not possible, because this was concerning a preparatory measure and not a final decision by which the issue would have been resolved or dismissed.Nevertheless, A appealed against the decision, to the Supreme Administrative Court, claiming that this was an administrative decision directly concerning his rights and obligations.He argued that he had a right to appeal on the basis of the Act on Health Care Professionals as well as on the basis of section 21 of the Constitution Act (protection under the law and access to court) and Article 6 of the ECHR.He also claimed that the decision amounted to discrimination and did not honour his right to privacy and personal liberty, protected under the Constitution Act and the ECHR. The Supreme Administrative Court ruled that the decision was appealable, because the possibility of appeal was not specifically restricted in the Act on Health Care Professionals.Moreover, the decision affected A's rights, obligations and interests to such an extent that he was entitled to submit the matter to the consideration of a court.Regarding the merits, the Court held, among other things, that the National Authority for Medicolegal Affairs had previously issued several similar orders in cases where a physician had been suspected of drug addiction, and therefore the decision concerning A did not amount to discrimination on the basis of nationality.Also, the National Authority for Medicolegal Affairs has a right, based on the law, to use the assistance of experts and to submit to the experts information necessary for the performance of their task, confidentiality provisions notwithstanding.It could thus attach to its decision A's medical records and other information for the use of the expert who would assess A's health and ability to work.The decision was also not in violation of A's right to personal liberty, because it had a legitimate aim to guarantee patient security and because it was A's own choice whether he would undergo a medical examination or not.The decision did not mean that A would have been ordered to involuntary treatment.The Supreme Administrative Court concluded that the National Authority for Medicolegal Affairs had acted in accordance with its powers under the Act on Health Care Professionals.A's appeal was dismissed. 11.4.2007 / 2.12.2010 / RHANSKI
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Date when decision was rendered: 20.3.2009 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 644; 3062/3/07 Reference to source KHO 2009:28. Yearbook of the Supreme Administrative Court 2009 January-June Högsta förvaltningsdomstolens årsbok 2009 januari-juni Korkeimman hallinto-oikeuden vuosikirja 2009 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: pp. 253-259 Subject
non-discrimination,
citizenship,
Relevant legal provisions sections 13-1-6, 13-2 and 18-2 of the Nationality Act; section 6-2 of the Constitution Act = medborgarskapslag 13 § 1 mom. 6 punkten, 13 § 2 mom. och 18 § 2 mom.; grundlagen 6 § 2 mom. = kansalaisuuslaki 13 § 1 mom. 6 kohta, 13 § 2 mom. ja 18 § 2 mom.; perustuslaki 6 § 2 mom. Abstract The Finnish Immigration Service (former Directorate of Immigration) had rejected X's application for Finnish citizenship on the grounds that X did not meet the language skills requirement as set in the Nationality Act.The administrative court rejected X's appeal and he appealed further to the Supreme Administrative Court.According to the Nationality Act, one of the general requirements for obtaining Finnish citizenship on application is that the applicant has satisfactory oral and written skills in the Finnish or Swedish language or instead of oral skills similar skills in the Finnish sign language.Exceptions to the language skills requirement can be made if the applicant cannot meet the requirement because of his or her state of health, sensory handicap or a speech defect.In interpreting this provision, the Supreme Administrative Court referred to the preparatory works of the Nationality Act and noted that an exception could be made on the basis of the applicant's state of health if the applicant's condition or disability was of such nature that it would be impossible to meet the language skills requirement or it would be unreasonable to expect that the requirement is met.The Court also held that in assessing whether the requirement is unreasonable, the prohibition of discrimination, as prescribed in section 6-2 of the Constitution Act, had to be taken into account.Section 6 prohibits discrimination on the ground of age, health or disability, among other grounds.In this case, the applicant X was over 60 years old.He had been active in trying to meet the language skills requirement, by for example taking courses in the Finnish language.His oral skills in Finnish had been assessed as satisfactory whereas he had not been able to meet the requirement as far as written skills were concerned.X had also submitted to the Court a speech therapist's report in which it was stated that X had a reading disorder.X had previously referred to learning difficulties, but his reading disorder had been only just detected.Taking into account X's age and his reading disorder, the Supreme Administrative Court concluded that it was unreasonable to expect him to meet the language skills requirement and that there were sufficient grounds to make an exception.X's citizenship application could thus not be rejected on the grounds of insufficient language skills.The case was referred back to the Immigration Service. 10.7.2009 / 21.10.2010 / RHANSKI
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Date when decision was rendered: 8.2.2008 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 181; 284/3/07 Reference to source KHO 2008:8. Yearbook of the Supreme Administrative Court 2008 January-June Högsta förvaltningsdomstolens årsbok 2008 januari-juni Korkeimman hallinto-oikeuden vuosikirja 2008 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2011 Pages: pp. 162-171 Subject
freedom of religion,
non-discrimination,
church,
Relevant legal provisions chapter 5 section 1-1 and chapter 8 section 1 of the Church Act; chapter 5 section 1-1, chapter 6 sections 18, 22, 24-1 and 34 of the Church Order; sections 2-1-1, 4, 6 and 7 of the Equality Act; sections 6-2 and 11 of the Constitution Act = kyrkolagen 5 kapitel 1 § 1 mom. och 8 kapitel 1 §; kyrkoordning 5 kapitel 1 § 1 mom., 6 kapitel 18 §, 22 §, 24 § 1 mom. och 34 §; jämlikhetslagen 2 § 1 mom. 1 punkten, 4 §, 6 § och 7 §; grundlagen 6 § 2 mom. och 11 § = kirkkolaki 5 luku 1 § 1 mom. ja 8 luku 1 §; kirkkojärjestys 5 luku 1 § 1 mom., 6 luku 18 §, 22 §, 24 § 1 mom. ja 34 §; laki naisten ja miesten välisestä tasa-arvosta 2 § 1 mom. 1 kohta, 4 §, 6 § ja 7 §; perustuslaki 6 § 2 mom. ja 11 § Abstract X had applied for a post as a vicar.However, the Cathedral Chapter found that X was not eligible under the Church Order and excluded him from the list of candidates for the election of a vicar.In an interview with the Cathedral Chapter, X had told that because of his religious conviction he would not hold church services in cooperation with a female priest.Having been excluded from the election, X asked the Cathedral Chapter to rectify its decision.He claimed that his attitude towards female priests falls within the ambit of freedom of religion and conviction, and his exclusion form the list of candidates constituted discrimination on the basis of religious conviction. The Cathedral Chapter rejected the request.It found that the Church Act or the Church Order did not contain any provisions which would allow church officials to leave their tasks and duties unattended because of their religious conviction or for reasons of conscience.Differentiated treatment cannot be accepted on the grounds that it is based on a person's conviction.The Cathedral Chapter also pointed out that, under the Equality Act, male and female priests cannot be treated differently on the basis of gender.The Act also requires that in managing work, distributing tasks and arranging working conditions, an employer shall not treat employees differently on the basis of gender.Arranging shifts on the basis of gender thus constitutes discrimination.Although the Equality Act is explicitly not applicable to activities associated with the religious practices of the church, it is applicable in most everyday activities of the church.In the Cathedral Chapter's view, X's statement, that he would not hold church services in cooperation with a female priest, constituted discrimination based on gender.By his statement, X had announced in advance that he was not prepared to attend to all his tasks and duties as a vicar and work as the head of a parish and a foreman to the parish staff.The Cathedral Chapter concluded that there were sufficient and weighty reasons to hold that X was not eligible for the office. X appealed further to the administrative court, but the court dismissed the appeal much on the same grounds as the Cathedral Chapter.The court emphasized that when holding a church service, a vicar was attending to his or her duties, not practising his or her religion in the meaning of the right to freedom of religion as guaranteed by the Constitution Act.X's statement that he was not prepared to hold church services in cooperation with a female priest, would lead to discriminatory practices in terms of arranging shifts on the basis of employees' gender.This was as such against the Equality Act.The court did not change the decision of the Cathedral Chapter.Also the Supreme Administrative Court rejected X's appeal and upheld the decision of the administrative court. 15.9.2009 / 28.3.2011 / RHANSKI
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Date when decision was rendered: 3.2.2009 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallito-oikeus Reference: Report no. 219; 1433/1/08 Reference to source KHO 2009:15. Yearbook of the Supreme Administrative Court 2009 January-June Högsta förvaltningsdomstolens årsbok 2009 januani-juni Korkeimman hallinto-oikeuden vuosikirja 2009 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: pp. 127-152 Subject
respect for private life,
respect for family life,
right to marry,
marriage,
transsexuals,
non-discrimination,
Relevant legal provisions sections 1, 2 and 5 of the Act on confirming the sexual identity of transsexual persons; sections 1 and 6 of the Marriage Act; sections 1 and 8 of the Act on Registered Partnerships; sections 4-1-2 and 6-1 of the Act on Population Data; section 3 of the Degree on Population Data; sections 6, 10-1, 22 and 106 of the Constitution Act = lag om fastställande av transseksuella personers könstillhörighet 1 §, 2 § och 5 §; äktenskapslag 1 § och 6 §; lag om registrerad partnerskap 1 § och 8 §; befolkningsdatalag 4 § 1 mom. 2 punkten och 6 § 1 mom.; befolkningsdataförordning 3 §; grundlag 6 §, 10 § 1 mom., 22 § och 106 § = laki transseksuaalin sukupuolen vahvistamisesta 1 §, 2 § ja 5 §; avioliittolaki 1 § ja 6 §; laki rekisteröidystä parisuhteesta 1 § ja 8 §; väestötietolaki 4 § 1 mom. 2 kohta ja 6 § 1 mom.; väestotietoasetus 3 §; perustuslaki 6 §, 10 § 1 mom., 22 § ja 106 §. ECHR-8; ECHR-12; ECHR-14; Articles 7 and 9 of the Charter of Fundamental Rights of the European Union Abstract X, who was a male to female transsexual, requested that the local population register office makes a decision by which it recognizes X's sexual identity as female.X had been married to a woman for over ten years and the couple had a child.Because of their religious convictions, the couple wanted to remain married.According to the Act on confirming the sexual identity of transsexual persons, the post-operative gender of a transsexual person who is married can be recognized and entered in the population register, if the spouse gives his or her consent.Once the registration has been made, the marriage is converted into a registered partnership between a same-sex couple without any additional procedure.Because X's spouse had not given her consent, the local population register office rejected X's request.X appealed to the administrative court which agreed with the local register office.In her appeal to the Supreme Administrative Court, X claimed that in making the registration of post-operative gender conditional to the consent of the spouse and in forcing a couple to convert their marriage into a registered partnership, the Act on confirming the sexual identity of transsexual persons was discriminatory and violated the respect for private and family life.X also argued that the relevant provisions of the Act should not be applied because they were in evident conflict with constitutional rights and the Constitution Act. In its decision, the Supreme Administrative Court discussed at length the development of the case law of the European Court of Human Rights concerning transsexuals and the question as to what extent it falls within the appreciation of the state to regulate the right to marry for transsexuals.The Supreme Administrative Court noted that the Finnish legislation permits registered partnership between same-sex couples but not same-sex marriage.It then pointed out that the question of amending the institution of marriage by defining it in gender-neutral terms contains conflicting issues pertaining to ethical and religious values, and this kind of a question must be resolved by an Act of Parliament.In the Act on confirming the sexual identity of transsexual persons, the legislator has wanted to retain the traditional concept of marriage as being between a man and a woman, making it however possible to register a married transsexual person's post-operative gender on the consent of the spouse.The marriage then continues as a registered partnership which in legal terms is nearly equal to marriage.The Supreme Administrative Court considered that, in assessing the fair balance between transsexual persons' right to private life on the one hand and the prevailing concepts and values related to family law on the other, the current solution, in the form of the provisions of the Act on confirming the sexual identity of transsexual persons, did not exceed the margin of appreciation allowed to States Parties to the ECHR.The Court also found that the application of the provisions in this case was not in evident conflict with the Constitution Act.It concluded that, on the whole, X had been ensured her right to private and family life as prescribed in the Constitution Act and the ECHR, taking also into account Articles 12 and 14 of the ECHR and the case law of the European Court of Human Rights. See also the case of H. v.Finland (Application No. 37359/09), judgment of the European Court of Human Rights, 13 November 2012. 18.11.2009 / 15.11.2012 / RHANSKI
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Date when decision was rendered: 16.9.2010 Judicial body: Kouvola Administrative Court = Kouvola förvaltningsdomstol = Kouvolan hallinto-oikeus Reference: Report no. 10/0466/1 Reference to source Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för beslut av förvaltningsdomstolar inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta Date of publication: Subject
non-discrimination,
right to education,
cultural rights,
universities,
Relevant legal provisions sections 1, 2-2, 13 and 18-3 of the Universities Act; sections 1, 2-3, 4, 6-1, 6-2, 7-2 and 17 of the Non-Discrimination Act; sections 6-2 and 16-2 of the Constitution Act = universitetslag 1 §, 2 § 2 mom., 13 § och 18 § 3 mom.; lag om lika behandling 1 §, 2 § 3 punkten, 4 §, 6 § 1 och 2 mom., 7 § 2 mom. och 17 §; grundlagen 6 § 2 mom. och 16 § 2 mom. = yliopistolaki 1 §, 2 § 2 mom., 13 § ja 18 § 3 mom.; yhdenvertaisuuslaki 1 §, 2 § 3 kohta, 4 §, 6 § 1 ja 2 mom., 7 § 2 mom. ja 17 §; perustuslaki 6 § 2 mom. ja 16 § 2 mom. Abstract In admitting students to a university the admission criterium had been the average grade of the applicant's degree certificate.One applicant claimed discrimination on the grounds that his/her dyslexia had not been taken into account when assessing his/her eligibility.The administrative court found that dyslexia does not as such raise a presumption of discrimination.It noted that using the degree certificate as an admission criterium places all applicants in an equal position.In the court's view, a person with dyslexia may be entitled to positive measures as compared to other applicants.However, there is no obligation to provide positive measures on grounds of dyslexia.The court concluded that there was no cause to assume that the applicant would have been subjected to discrimination. 26.1.2011 / 26.1.2011 / RHANSKI
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Date when decision was rendered: 15.2.2010 Judicial body: Insurance Court = Försäkringsdomstol = Vakuutusoikeus Reference: Report no. 6381:2008 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
non-discrimination,
Relevant legal provisions section 1 of the Act on Financial Aid for Students: section 6 of the Constitution Act; Article 12 of Council Regulation (EEC) No. 1612/68 on freedom of movement for workers within the Community = lag om studiestöd 1 §; grundlagen 6 §; Rådets förordning (EEG) nr 1612/68 om arbetskraftens fria rörlighet inom gemenskapen 12 artikel = opintotukilaki 1 §; perustuslaki 6 §; Neuvoston asetus (ETY) no. 1612/68 työntekijöiden vapaasta liikkuvuudesta yhteisön alueella 12 artikla Abstract The Social Insurance Institution of Finland had rejected X's application for financial aid for studies abroad.X appealed to the Student Financial Aid Appeal Board and further to the Insurance Court.The Insurance Court noted that according to the Act on Financial Aid for Students, financial assistance for studies abroad is available for Finnish citizens only.X was a Serbian citizen.X had also claimed that because his mother was a Finnish citizen and working in Finland, she was thus also an EU employee and her children, irrespective of their nationality, were eligible to financial aid for students under the same conditions as the nationals of Finland.The Insurance Court found that Council Regulation (EEC) No. 1612/68 is not applicable in this case because the relevant provisions only apply to children of a national of an EU Member State who is or has been employed in the territory of another Member State.The Insurance Court then also discussed the provision on equality and non-discrimination in section 6 of the Constitution Act.It referred to the opinion (14/2003) of the Constitutional Law Committee of Parliament pertaining to the amendment of the Act on Financial Aid for Students (345/2004).The Committee held that taking into account the prohibition of discrimination, it may be problematic that Finnish citizens only are eligible to financial aid for studies abroad.However, in comparing the current forms of financial aid for students in Europe in general, the Committee found that financial aid for studies abroad is granted in the Nordic countries only and as a general rule to own nationals only.Therefore, the Committee found it acceptable for the time being to exclude other than Finnish nationals from the scope of financial aid for studies abroad.With reference to the opinion of the Constitutional Law Committee, the Insurance Court concluded that there had been no violation of X's fundamental rights in this case. 8.3.2011 / 8.3.2011 / RHANSKI
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Date when decision was rendered: 29.11.2016 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 3546/3/14; 5052 Reference to source KHO 2016:189. 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 Oikeusminiteriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
non-discrimination,
Relevant legal provisions section 1(3) of the Local Government Act (365/1995); sections 6(1), 6(2) and 121(1) of the Constitution Act = kommunallag (365/1995) 1 § 3 mom.; grundlagen 6 § 1 och 2 mom. och 121 § 1 mom. = kuntalaki (365/1995) 1 § 3 mom.; perustuslaki 6 § 1 ja 2 mom. ja 121 § 1 mom. Abstract A municipality had for several years offered boat places for rent both to its own residents and to people who did not reside in the municipality.A municipal board had later decided that the rent for boat owners who were nonresidents is twice the rent paid by the residents in the municipality. The Supreme Administrative Court held that the prohibition of discrimination in section 6 of the Constitution Act does not prevent municipalities from providing recreation services for residents only, particularly if it is concerning a type of service which is available to a limited extent.Likewise, a municipality may give priority to residents who live permanently in the municipality as compared to those who reside elsewhere.Giving priority to permanent residents is related to municipal self-governance and the duty of the municipalities to strive to advance the well-being of their residents, as prescribed in the Local Government Act. In this case, the municipality had offered boat places for rent both to its residents and to people who did not reside in the municipality.Therefore, both groups of boat owners were initially in the same situation.The municipal board had not presented justified grounds to treat nonresidents differently.The lower rent for residents could not be justified by claiming that the residents contributed to covering the costs of public services, in this case the maintenance of the peers, by paying municipal taxes.Based on the Local Government Act, municipalities shall strive to advance the well-being of their residents.However, doubling the rent for a boat place for nonresidents was not a proportionate measure to achive this objective.Also, the link between the double rent and the stationary duty to advance the well-being of residents was very weak and remote.The Supreme Administrative Court quashed the decision of the municipal board. 16.1.2018 / 16.1.2018 / RHANSKI
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Date when decision was rendered: 11.1.2018 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 4004/3/15; 70 Reference to source KHO 2018:3. 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
disabled persons,
right to education,
non-discrimination,
Relevant legal provisions section 16(1) of the Constitution Act; section 31(2) of the Basic Education Act; section 8(1) of the Non-Discrimination Act = grundlagen 16 § 1 mom.; lag om grundläggande utbildning 31 § 2 mom.; diskriminteringslag 8 § 1 mom. = perustuslaki 16 § 1 mom.; perusopetuslaki 31 § 2 mom.; yhdenvertaisuuslaki 8 § 1 mom. CRPD-5; CRPD-7; CRPD-24 Abstract A's daughter B, who was disabled, had started preschool in the autumn of 2015.Because of her disability, she was unable to take food by mouth.Instead, she had a PEG-button inserted in her belly through which nutrition and water could be delivered directly to the stomach.At school, B had her own personal assistant, who helped her with administering the nutrition.According to the Basic Education Act, which also provides for pre-primary education, a pupil attending basic education has a right to receive a balanced meal on every school day, free of charge.At first, B's parents had purchased the liquid nutrition from the pharmacy and had delivered it to the school.After a few months the mother A requested that the school buys the liquid directly from a wholesale distributor.The head of the local education department in the municipality denied A's request, saying that the liquid food was a pharmaceutical product, not a meal, and that the municipality had no duty to provide pupils with liquid or other nutrition that is not taken by mouth.The administrative court rejected A's appeal.A appealed further to the Supreme Administrative Court. The Supreme Administrative Court noted that the provision in the Basic Education Act concerning free school meals implements the right to basic education free of charge as prescribed in the Constitution Act.Free basic education also means adequate food.As a main rule, the education provider has a duty to provide a pupil with a special diet when required for medical reasons or because of a disability.Because of her disability, B's nutrition consisted of the liquid delivered by means of a PEG-button.The liquid was thus not a pharmaceutical product but nutrition, comparable to a special diet followed for medical reasons.Whether the liquid was taken by mouth of by means of a PEG-button had no effect on the education provider's obligation to provide a meal free of charge for all pupils attending basic education.The fact that the pupil or the parents receive various forms of disability-related benefits or support also had no effect on that obligation.The Supreme Administrative Court concluded that the decision not to provide B with a free meal on every school day was illegal.The matter was referred back to the head of the local education department in the municipality for a new consideration. Because the matter was concerning the application of the Non-Discrimination Act, the Non-Discrimination Ombudsman was heard.In her statement she referred to Articles 5 (equality and non-discrimination), 7 (children with disabilities) and 24 (education) of the CRPD.In her appeal to the Supreme Administrative Court, A also referred to the CRPD and the prohibition of indirect discrimination.In its decision, the court made no specific reference to the CRPD. 1.2.2018 / 1.2.2018 / RHANSKI
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