Date when decision was rendered: 2.11.2000

Judicial body: Oulu Administrative Court = Uleåborgs förvaltningsdomstol = Oulun hallinto-oikeus

Reference: Report No. 431/I; 149/5300/00

Reference to source

Electronic database for administrative court decisions within the FINLEX databank system, administered by the Ministry of Justice

Databasen för beslut av förvaltningsdomstolar inom FINLEX databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankkin hallinto-oikeuksien päätöksiä sisältävä tietokanta

Date of publication:

Subject

fair trial, effective remedy, public access to documents,
rättvis rättegång, effektiva rättsmedel, allmänna handlingars offentlighet,
oikeudenmukainen oikeudenkäynti, tehokas oikeussuojakeino, asiakirjojen julkisuus,

Relevant legal provisions

sections 1, 5, 10, 11, 12, 24 and 26 of the Act on the Openness of Government Activities

= lag om offentlighet i myndigheternas verksamhet 1 §, 5 §, 10 §, 11 §, 12 §, 24 §, 26 §

= laki viranomaistoiminnan julkisuudesta 1 §, 5 §, 10 §, 11 §, 12 §, 24 §, 26 §.

ECHR-6; ECHR-13

Abstract

A had requested from the Oulu Court of First Instance for a photocopy of a deed of inventory concerning the estate of the deceased father of A's ex-wife B.A needed the document in a case which was pending before another court and which concerned the adjustment of B's debts.A was a party to this case as a joint debtor and guarantor of B's debts.The Oulu Court of First Instance had rejected the request on account of the fact that the deed of inventory contained information concerning the property of the deceased and his widow and such documents according to the Act on the Openness of Government Activities (section 24) are to be kept secret.Only a party has access to such documents (section 11).The court noted that A was not a party to the matter concerning the deed of inventory and the case concerning the adjustment of B's debts was pending before another court.

A appealed to the Oulu Administrative Court.He claimed that information concerning B's inheritance could not be classified as secret in a manner that such information could not have been given for an acceptable and clearly specified purpose and to a party in the case concerning B's debts.He found it unreasonable that, as it seemed to him, he would have had access to the document had the case concerning B been pending before the Oulu Court of First Instance.He also referred to Articles 6 and 13 of the ECHR and claimed that under the circumstances it was not possible for him to defend his legal rights.

The administrative court rejected the appeal with reference to the same grounds as the court of first instance.It added that section 12 of the Act, dealing with the right of a person to access to documents which concerned the person himself or herself, was not applicable in A's case.Nor was section 26 which provided for access to secret documents on the basis of the consent of the person whom the documents concerned.The court further noted that as a party to the case concerning the adjustment of B's debts, A had a right to receive information about a secret document which may affect his case from the court dealing with the case.Therefore, the decision of the Oulu Court of First Instance not to submit the requested document was not contrary to Articles 6 or 13 of the ECHR.

28.10.2002 / 25.1.2011 / RHANSKI

Date when decision was rendered: 11.6.2004

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 1390; R2003/234

Reference to source

KKO 2004:58.

Decisions of the Supreme Court 2004 I January-June

Avgöranden av Högsta domstolen 2004 I januari-juni

Korkeimman oikeuden ratkaisuja 2004 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2004

Pages: 371-380

Subject

fair trial, reasonable time, effective remedy,
rättvis rättegång, skälig tid, effektiva rättsmedel,
oikeudenmukainen oikeudenkäynti, kohtuullinen aika, tehokas oikeussuojakeino,

Relevant legal provisions

section 21 of the Constitution Act

= grundlagen 21 §

= perustuslaki 21 §.

ECHR-6-1; ECHR-13

Abstract

A had imported a used car but had not paid the statutory taxes.The customs authorities had ordered A to pay the taxes.The court of first instance convicted A for tax fraud.A admitted that he had not paid the taxes, but claimed that the Finnish legislation concerning motor vehicle tax was contrary to European Community law and the imposed tax in his case was too high.In A's view, as the amount of tax was unclear, it was not possible to assess whether A was guilty of tax fraud.In another case, the Supreme Administrative Court had requested from the European Court of Justice a preliminary ruling concerning national legislation relating to motor vehicle tax.The ECJ gave its ruling while A's appeal was pending before the court of appeal.The decision supported A's claim.In deciding on A's appeal, the court of appeal took into account the preliminary ruling by the ECJ.By the time the appeal court gave its decision, the case against A had been pending for almost four years.The correct amount of taxes imposed on A had not been determined by that time, despite the ruling by the ECJ.With reference to the Constitution Act and the ECHR, the court of appeal ruled that the case against A had not been decided within a reasonable time as required by the provisions on the right to a fair trial.It ordered that the charges against A for tax fraud were to be dropped.The Supreme Court did not agree with the appeal court.It ruled that the decisive factor was not the correct amount of tax but the question whether A's actions fulfilled the essential elements of a tax fraud.In the Court's opinion they did, and A was convicted for tax fraud.When discussing the reasonable length of proceedings, the Supreme Court referred to the Constitution Act, the ECHR and the decisions of the European Court of Human Rights in the cases of Kudla v.Poland (judgment of 26 October 2000, Reports of Judgments and Decisions 2000-XI), Pietiläinen v.Finland (judgment of 5 November 2002) and Kangasluoma v.Finland (judgment of 20 January 2004).The Court pointed out that it is possible to take the lapse of time into account when deciding on the punishment.However, the Finnish law does not contain any provisions on the basis of which it would be possible to drop charges on the grounds that the length of proceedings has been unreasonable.The Court admitted that in some exceptional cases dropping or dismissing charges could be the only effective remedy as required by Article 13 of the ECHR.However, A's case was not such an exception.The Supreme Court agreed that the proceedings had taken a long time (five and a half years by that time).This was partly due to the actions of the authorities and the question of determining the correct amount of tax, partly due to A's own actions.A main hearing at the court of first instance had been postponed because of A's absence.In addition, A had himself claimed that his guilt could not be assessed before the correct amount of tax had been determined.The Court continued that, when considering the meaning of the length of proceedings, it had to be kept in mind that A's actions were undisputed and a conviction was to be expected.Furthermore, the final amount of tax imposed on A could in this case only be lower and thus more favourable to A.Considering the circumstances in the case, it could not be assumed that the length of proceedings would have had especially negative consequences for A.The Supreme Court concluded that the proceedings had not been prolonged to such an unreasonable length that A's sentence should be waived or that it could be mitigated because of the length of proceedings.

22.4.2005 / 3.4.2007 / RHANSKI

Date when decision was rendered: 23.6.2005

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

Reference: Report no. 1573; 991/3/04

Reference to source

KHO 2005:43.

Yearbook of the Supreme Administrative Court 2005 January-June

Högsta förvaltningsdomstolens årsbok 2005 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2005 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2008

Pages: pp. 613-621

Subject

access to court, legal protection, effective remedy,
rätt till domstolsprövning, rättsskydd, effektiva rättsmedel,
oikeus tuomioistuinkäsittelyyn, oikeusturva, tehokas oikeussuojakeino,

Relevant legal provisions

sections 24, 25 and 26 of the Patents Act; sections 3 and 4 of the Act on Hearing of Appeals before the National Board of Patents and Registration of Finland; sections 3, 4, 5, 6, 58, 59 and 60 of the Administrative Judicial Procedure Act; sections 21 and 106 of the Constitution Act

= patentlag 24 §, 25 § och 26 §; lag om behandling av besvärsärenden vid patent- och registerstyrelsen 3 § och 4 §; förvaltningsprocesslag 3 §, 4 §, 5 §, 6 §, 58 §, 59 § och 60 §; grundlagen 21 § och 106 §

= patenttilaki 24 §, 25 § ja 26 §: laki patentti- ja rekisterihallituksen valitusasioiden käsittelystä 3 § ja 4 §; hallintolainkäyttölaki 3 §, 4 §, 5 §, 6 §, 58 §, 59 § ja 60 §; perustuslaki 21 § ja 106 §

Abstract

The board of appeal of the National Board of Patents and Registration (NBPR) had ruled as inadmissible company A's appeal and complaint against the decision of the NBPR by which company B had been granted a patent.Company A was not a party in the patent application process and had therefore no right to lodge an appeal or a complaint against the decision on the patent application.The Supreme Administrative Court upheld the decision of the board of appeal and rejected company A's appeal.Under section 26 of the Patents Act, only an applicant may appeal against a final decision taken by the patent authority on a patent application.Company A's claim for a right of appeal cannot be based on section 21-1 of the Constitution Act concerning protection under the law, either, as a decision by which company B has been granted a patent is not pertaining to the rights and obligations of company A.Under section 24 of the Patents Act, any one may file an opposition against a granted patent, and thereafter appeal against a final decision taken by the patent authority on account of the opposition if the decision is not in his or her favour.Company A had not used this possibility of lodging an opposition.As section 24 of the Patents Act provides for an effective remedy for third parties, the application of section 26 is not in conflict with section 21-1 of the Constitution Act.In its appeal, company A had also referred to the right of appeal under the Administrative Judicial Procedure Act.The Supreme Administrative Court ruled that the Act was a general act and was not applicable in this case where the Patents Act provided for a specific right of appeal against decisions on patent applications.

26.5.2006 / 3.7.2009 / RHANSKI

Date when decision was rendered: 2.7.2004

Judicial body: Vaasa Court of Appeal = Vasa hovrätt = Vaasan hovioikeus

Reference: Report no. 1059; U04/540

Reference to source

VaaHO 2004:5.

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, taxation, effective remedy,
rättvis rättegång, beskattning, effektiva rättsmedel,
oikeudenmukainen oikeudenkäynti, verotus, tehokas oikeussuojakeino,

Relevant legal provisions

sections 1 and 9 of the Act (367/1961) concerning the collection of taxes and public fees through execution

= lag om indrivning av skatter och avgifter i utsökningsväg 1 § och 9 §

= laki verojen ja maksujen perimisestä ulosottotoimin 1 § ja 9 §.

ECHR-6; ECHR-13

Abstract

A's property had been taken in execution for the payment of a punitive tax increase, among other debts.She claimed before the court of first instance that unlike decisions on taxes and public fees, those concerning a punitive tax increase cannot be enforced before they have been confirmed by a court.The court of first instance agreed with A.The punitive tax increase imposed on A was not based on a court decision but on administrative decisions against which A had appealed.With reference to the European Court of Human Rights and the case of Janosevic v.Sweden (judgment of 23 July 2002, Reports of Judgments and Decisions 2002-VII), the court held that a tax increase imposed in an administrative procedure is partly punitive and is thus covered by the requirements set in Article 6 of the ECHR.Therefore, the same rules apply as regarding, for example, the enforcement of a fine and, consequently, enforcement measures cannot be taken before the decision on a punitive tax increase is final.The court concluded that, as far as the punitive tax increase was concerned, the execution was contrary to Article 6 of the ECHR.

The court of appeal noted that, under Finnish law, taxes and public fees may be recovered through execution proceedings, although the decision in the matter is not final.In the court's view, this concerns also the enforced collection of a punitive tax increase.With reference to the case law of the European Court of Human Rights and the Janosevic case, the court of appeal affirmed that tax increases were both deterrent and punitive and that Article 6 of the ECHR was applicable.However, it also pointed out that the ECHR does not, in principle, exclude the immediate enforcement of punitive tax increases as long as decisions on such measures can be brought before a court with full jurisdiction.Under Act 367/1961, concerning the collection of taxes and public fees through execution, the taxpayer may request from the tax authorities a suspension of enforcement.As required under Article 6 of the ECHR, the taxpayer also has the right to appeal against the tax authorities' decision to an administrative court which may examine questions of both fact and law and has the power to quash the decision subject to appeal.Moreover, the taxpayer has the right to an effective remedy as prescribed in Article 13 of the ECHR.In this case, A had not shown that she would have exercised these rights.The court concluded that as no appeal or request for a suspension was pending when the execution was levied, the decisions on a punitive tax increase imposed on A were enforceable.The decision is final.The Supreme Court did not grant leave to appeal in the case (decision no. 234 of 7 February 2005).

30.5.2006 / 30.5.2006 / RHANSKI

Date when decision was rendered: 29.11.2004

Judicial body: Turku Court of Appeal = Åbo hovrätt = Turun hovioikeus

Reference: Report no. 3202; S04/2115

Reference to source

Registry of the Turku Court of Appeal

Åbo hovrätts registratorskontor

Turun hovioikeuden kirjaamo

Date of publication:

Subject

fair trial, reasonable time, effective remedy,
rättvis rättegång, skälig tid, effektiva rättsmedel,
oikeudenmukainen oikeudenkäynti, kohtuullinen aika, tehokas oikeussuojakeino,

Relevant legal provisions

section 21 of the Constitution Act

= grundlagen 21 §

= perustuslaki 21 §.

ECHR-6-1; ECHR-13

Abstract

A state-owned asset management company was claiming damages from the board members of a bank concerning credit decisions which had been issued in 1989-1991 and had resulted in considerable loss of credit for the bank.The damages claimed were exceptionally large (90 million euros).The defendants argued that the claims should be rejected due to the unreasonable length of the proceedings.The case had been pending before the court of first instance over ten and a half years.

The court of first instance drew attention to the fact that the case was exceptionally complicated and involved several separate proceedings.The main reason for the prolonged proceedings was that the court had considered it expedient to wait for the decision in a criminal case forming a part of the same complex of proceedings and involving claims for damages.The decision in this latter case was expected to clarify the grounds for the liability for damages and was thus of relevance with regard to this particular claim for damages as well.The court held that the defendants had not by their actions in any way prolonged the proceedings.Several proposals for a settlement had been made in the case but they had been unsuccessful.

The court based its decision on section 21 of the Constitution Act (right to a fair trial within a reasonable time) and Articles 6 and 13 of the ECHR.It also referred to the case law of the European Court of Human Rights, in particular the cases of Kudla v.Poland (judgment of 26 October 2000, Reports of Judgments and Decisions 2000-XI) and Jablonská v.Poland (judgment of 9 March 2004), and to several cases against Finland concerning the unreasonable length of proceedings.The court discussed the criteria for the assessment of a reasonable or unreasonable length of proceedings as well as effective remedies in case of prolonged court proceedings.It concluded that the case had not been dealt with within a reasonable time as required under section 21 of the Constitution Act and Article 6 of the ECHR.Considering Article 13 of the ECHR ending the proceedings was in the court's view in this case the only available effective remedy in order to prevent the violation of the defendants' human rights.The court ruled that as the requirements for a fair trial could not be fulfilled the case against the defendants is to be dismissed.

The court of appeal did not agree with the first instance court.It stated that the Finnish legislation does not contain any provisions on the basis of which a claim could be dismissed due to an unreasonable length of proceedings.It is not required in the ECHR or in the case law of the European Court of Human Rights that proceedings before a court should be closed due to their unreasonable length.In arguing its decision the court of first instance had also referred to Supreme Court decision 2004:58 in which it is held that in order to guarantee a fair trial for a defendant in a criminal case, in some exceptional cases dropping or dismissing charges could be the only effective remedy as required by Article 13 of the ECHR.Unlike the court of first instance, the court of appeal held that this statement is not as such applicable to a civil procedure in which the plaintiff and the defendant are equal as parties.Under Article 6 of the ECHR and section 21 of the Constitution Act, the plaintiff has a right to have the case dealt with in a court of law and a right to a final court decision, despite the fact that the proceedings have been unreasonably long.The court of appeal quashed the decision of the court of first instance and returned the matter to the lower court.The Supreme Court did not grant leave to appeal in the case (decision no. 864 of 12 April 2005).

See also Vienonen and Others v.Finland (Application no. 36989/05), judgment of the European Court of Human Rights, 24 March 2009.

30.5.2006 / 31.3.2009 / RHANSKI

Date when decision was rendered: 7.11.2005

Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus

Reference: Report no. 3596; R05/86

Reference to source

Registry of the Helsinki Court of Appeal

Helsingfors hovrätts registratorskontor

Helsingin hovioikeuden kirjaamo

Date of publication:

Subject

fair trial, reasonable time, effective remedy,
rättvis rättegång, skälig tid, effektiva rättsmedel,
oikeudenmukainen oikeudenkäynti, kohtuullinen aika, tehokas oikeussuojakeino,

Relevant legal provisions

Chapter 6, sections 7-3 and 12-4 of the Penal Code; section 21-1 of the Constitution Act

= strafflagen 6 kapitel 7 § 3 mom., 6 kapitel 12 § 4 mom.; grundlagen 21 § 1 mom.

= rikoslaki 6 luku 7 § 3 mom., 6 luku 12 § 4 mom.; perustuslaki 21 § 1 mom.

ECHR-6-1; ECHR-13

Abstract

In a case concerning tax fraud, the court of first instance dismissed the charges against the defendants because of the excessive length of the proceedings.At the time of the court's decision, the case had been pending for seven years.One of the main reasons for the lengthy proceedings had been the shortage of staff at the investigating authority (the customs) combined with the large number of cases under investigation.The court of first instance also found that the investigation had been partly inadequate and cursory.In Finnish legislation there are no explicit provisions on the basis of which charges could be dismissed on account of the excessive length of proceedings.However, the court of first instance referred to the ECHR and to a decision of the Supreme Court (KKO 2004:58 of 11 June 2004), in which the Supreme Court ruled that in some exceptional cases, dismissing the charges could be the only effective remedy under Article 13 of the ECHR in order to guarantee the right to a fair trial of the defendant.The Supreme Court mentioned as an example a situation where the defendant's rights of defence have been completely ruined because of the length of the proceedings.The court of first instance held that this is what had happened in this case concerning tax fraud and decided to dismiss the charges in order to protect the defendants' due process guarantees.The court of appeal concurred with the lower court's finding that there had been defects in the investigation of the case.However, in the appeal court's opinion these defects had not been directly caused by the length of the proceedings and had not impaired the defendants' rights of defence.The question had rather been whether the evidence against the defendants was sufficient, and this issue had been resolved in the decision of the appeal court, when the court dismissed most of the charges against the defendants in absence of sufficient evidence.The court of appeal concluded that the circumstances of the case were not exceptional in the sense that all charges against the defendants should be dismissed on the grounds referred to in the Supreme Court decision quoted by the first instance court.Instead, the appeal court took into account the excessive length of the proceedings when assessing the punishment.The decision is final.The Supreme Court refused leave to appeal in the case (decision no.R2006/35 of 29 March 2006).

3.4.2007 / 3.4.2007 / RHANSKI

Date when decision was rendered: 31.1.2006

Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus

Reference: Report no. 229; R03/3864

Reference to source

HelHO 2006:5.

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, reasonable time, effective remedy,
rättvis rättegång, skälig tid, effektiva rättsmedel,
oikeudenmukainen oikeudenkäynti, kohtuullinen aika, tehokas oikeussuojakeino,

Relevant legal provisions

section 21 of the Constitution Act

= grundlagen 21 §

= perustuslaki 21 §.

ECHR-6

Abstract

In a case concerning aggravated tax fraud, the court of first instance considered, as a preliminary question, the defendant's claim that the charges against him should be dismissed without considering the merits because of the excessive length of the proceedings.The court found that Finnish legislation or the case law of the European Court of Human Rights do not tell explicitly what the consequences before a national court should be in cases where the length of the proceedings has been excessive.The court held that the issue of excessive length of proceedings is not comparable to a situation where charges are dismissed because of non-compliance with substantial procedural requirements.Moreover, in the court's view, it could not be deduced from the provisions concerning statute of limitations that charges should be dismissed once the reasonable length of proceedings has been exceeded.The court rejected the defendant's claim.However, when considering the merits, the court took into account the length of the proceedings in assessing the punishment.At that time (2003) the case had been pending for almost nine years and, in the court's opinion, especially the pretrial phase had taken an unnecessarily long time.The court referred to the case of Eckle (judgment of 15 July 1982, Publications of the European Court of Human Rights, Series A, Vol. 51), in which the European Court of Human Rights had held that the mitigation of a sentence on the ground of excessive length of proceedings might lead to a conclusion that the individual concerned has been afforded redress at the domestic level.

The court of appeal upheld the decision of the first instance court, both regarding the preliminary question and the merits.In its decision, the appeal court also noted that while there were no explicit domestic provisions, the dismissal of charges on account of the excessive length of proceedings might be possible on the basis of the ECHR in some exceptional cases, for example in a situation where the defendant's rights of defence have been completely ruined because of the length of the proceedings.However, that had not happened in this particular case.

13.4.2007 / 13.4.2007 / RHANSKI

Date when decision was rendered: 22.4.2008

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

Reference: Report no. 882; 3705/2/06

Reference to source

KHO 2008:25.

Yearbook of the Supreme Administrative Court 2008 January-June

Högsta förvaltningsdomstolens årsbok 2008 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2008 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2011

Pages: pp. 375-404

Subject

access to court, effective remedy, legal protection, civil servants, fair trial,
rätt till domstolsprövning, effektiva rättsmedel, rättsskydd, tjänstemän, rättvis rättegång,
oikeus tuomioistuinkäsittelyyn, tehokas oikeussuojakeino, oikeusturva, virkamiehet, oikeudenmukainen oikeudenkäynti,

Relevant legal provisions

sections 5 and 58 of the State Civil Servants Act; sections 21, 22 and 106 of the Constitution Act

= statstjänstemannalag 5 § och 58 §; grundlagen 21 §, 22 § och 106 §

= valtion virkamieslaki 5 § ja 58 §; perustuslaki 21 §, 22 § ja 106 §.

ECHR-6; CCPR-14

Abstract

X had a public office at the faculty administration of a university.The faculty council decided that X's post would be transferred from the faculty to the university central administration.X objected to the decision.According to the State Civil Servants Act, a decision concerning the transfer of a public office is not subject to appeal.In such a case, the alternative is extraordinary appeal on grounds provided in the Administrative Judicial Procedure Act.The Supreme Administrative Court found that the requirements for the annulment of the decision, as a means of extraordinary appeal under the Administrative Judicial Procedure Act, were not fulfilled in this case.The Court then discussed the possibility to consider X's appeal despite the prohibition against appeal in the State Civil Servants Act.

The Court pointed out that under the State Civil Servants Act, a post which has not been declared vacant, cannot be transferred without the consent of the civil servant who holds the post.According to the Court, the requirement of consent was prescribed in order to protect the legal status of civil servants and their independent and permanent position.Therefore, a decision on the transfer of a public office pertains to the rights and obligations of a civil servant.The Court found that the right of appeal under section 21 of the Constitution Act, which refers to a person's rights and obligations, may have a wider scope of application as compared to Article 6 of the ECHR which specifically refers to "civil rights and obligations" and whose applicability in cases pertaining to civil servants is restricted.In the Court's opinion, extraordinary appeal under the Administrative Judicial Procedure Act could not be regarded as an effective remedy in this case.Applying the prohibition against appeal in section 58 of the State Civil Servants Act would prevent X from exercising her right of appeal as guaranteed in section 21 of the Constitution Act and would thus be in evident conflict with the Constitution, as prescribed in section 106 of the Constitution Act.Therefore, the Court concluded, section 58 should not be applied in this case and X's appeal should be considered despite the prohibition against appeal.The Court then quashed the decision of the faculty council on the grounds that the decision was contrary to the State Civil Servants Act because it had been made without X's consent.

9.4.2010 / 28.3.2011 / RHANSKI

Date when decision was rendered: 12.7.2007

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

Reference: Report no. 1830; 2752/3/06

Reference to source

KHO 2007:48.

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. 141-174

Subject

aliens, residence permit, family reunification, public access to documents, national security, effective remedy,
utlänningar, uppehållstillstånd, familjeåterförening, allmänna handlingars offentlighet, nationell säkerhet, effektiva rättsmedel,
ulkomaalaiset, oleskelulupa, perheen yhdistäminen, asiakirjojen julkisuus, kansallinen turvallisuus, tehokas oikeussuojakeino,

Relevant legal provisions

sections 11-1, 11-2 and 24-1-9 of the Act on the Openness of Government Activities; sections 31 and 45 of the Administrative Procedure Act; section 21 of the Constitution Act

= lag om offentlighet i myndigheternas verksamhet 11 § 1 mom. och 2 mom. och 24 § 1 mom. 9 punkten; förvaltningslag 31 § och 45 §; grundlagen 21 §

= laki viranomaistoiminnan julkisuudesta 11 § 1 ja 2 mom. ja 24 § 1 mom. 9 kohta; hallintolaki 31 § ja 45 §; perustuslaki 21 §.

ECHR-8; ECHR-13

Abstract

The Finnish Immigration Service had rejected X's application for a residence permit on the basis of a family tie.As grounds for its decision the Immigration Service stated that the Security Police was not in favour of granting X a residence permit.On X's appeal, the administrative court ruled that the Immigration Service could not reject X's application with reference solely to the opinion of the Security Police.In the court's view, the matter had not been appropriately clarified and the Immigration Service had failed to state adequate reasons for its decision.The court referred the matter back to the Immigration Service which then appealed to the Supreme Administrative Court.

The Supreme Administrative Court discussed at length the jurisprudence of the European Court of Human Rights, referring to the cases of Chahal v. the United Kingdom (judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V); Al-Nashif v.Bulgaria (judgment of 20 June 2002); Brinks v. the Netherlands (decision of 5 April 2005); Segerstedt-Wiberg and Others v.Sweden (judgment of 6 June 2006, Reports of Judgments and Decisions 2006-VII); Lupsa v.Romania (jugdment of 8 June 2006, Reports of Judgments and Decisions 2006-VII); Kaya v.Romania (judgment of 12 October 2006); and Jasper v. the United Kingdom (judgment of 16 February 2000).The Supreme Administrative Court found that it is apparent from the case law of the human rights court that confidential material which is not disclosed to a party on national security grounds is not as such in violation of the ECHR.However, in such a case a competent court must have the opportunity to review the material in order to assess whether it can be deemed confidential and whether there are sufficient grounds to the conclusions drawn on the basis of the material which the party has not had access to.The Court continued that, in order to meet the requirements for effective remedy stipulated in Article 13 of the ECHR and section 21 of the Constitution Act, an administrative court has a duty to consider whether there is a just balance between individual rights on the one hand and public order and national security on the other.The Court then ruled that, in view of the exceptions to the parties' right of access to documents, as laid down by law, and the duty of authorities to clarify a matter and to state reasons for their decisions in cases in which national security is involved, the administrative court should not have referred the matter back to the Immigration Service.Instead, it should have reviewed the confidential material in order to assess whether there were sufficient grounds to deny X's residence permit with reference to reasons of public interest, public safety and national security.In order to avoid any further delay, the Supreme Administrative Court did not return the case to the administrative court, but considered X's appeal instead.It heard the representatives of the Security Police in a closed oral hearing and concluded that the material upon which the opinion of the Security Police was based could be classified as secret documents to which a party had no right of access under the Act on the Openness of Government Activities.The Court found that the reasons presented by the Security Police were as such worth noticing.However, in the Court's view, the reasons were not weighty enough for denying X a residence permit when the right to the protection of family life was balanced against the security interests of the state in this case.The Court quashed the decisions of the administrative court and the Immigration Service and referred the matter back to the Immigration Service.

12.5.2010 / 28.3.2011 / RHANSKI

Date when decision was rendered: 12.7.2007

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

Reference: Report no. 1831; 757/3/07

Reference to source

KHO 2007:49.

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. 174-207

Subject

citizenship, public access to documents, effective remedy, national security,
medborgarskap, allmänna handlingars offentlighet, effektiva rättsmedel, nationell säkerhet,
kansalaisuus, asiakirjojen julkisuus, tehokas oikeussuojakeino, kansallinen turvallisuus,

Relevant legal provisions

section 13 of the Nationality Act; sections 11-1, 11-2 and 24-1-9 of the Act on the Openness of Government Activities; sections 31 and 45 of the Administrative Procedure Act; section 21 of the Constitution Act

= medborgarskapslag 13 §; lag om offentlighet i myndigheternas verksamhet 11 § 1 och 2 mom. och 24 § 1 mom. 9 punkten; förvaltningslag 31 § och 45 §; grundlagen 21 §

= kansalaisuuslaki 13 §; laki viranomaistoiminnan julkisuudesta 11 § 1 ja 2 mom. ja 24 § 1 mom. 9 kohta; hallintolaki 31 § ja 45 §; perustuslaki 21 §.

ECHR-8; ECHR-13

Abstract

The Immigration Service had rejected X's citizenship application with reference to the opinion of the Security Police which did not favour X's application.On X's appeal, the administrative court returned the matter to the Immigration Service.The court held, among other things, that the Immigration Service could not reject the application with reference solely to the opinion of the Security Police and that the Immigration Service should have stated more clearly the reasons why X's naturalisation would jeopardize national security and public order.The Immigration Service appealed against the decision to the Supreme Administrative Court.

The Supreme Administrative Court found that although denying acquisition of citizenship does not as such mean interference with the rights prescribed in Article 8 of the ECHR, the case law of the European Court of Human Rights serves as guidelines as fas as the application of the principle of effective remedy in citizenship matters is concerned.Moreover, to withhold from a person information which concerns that person himself or herself may as such touch upon the right to the protection of private life under Article 8.The Court discussed at length the jurisprudence of the European Court of Human Rights, referring to the cases of Chahal v. the United Kingdom (judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V); Al-Nashif v.Bulgaria (judgment of 20 June 2002); Brinks v. the Netherlands (decision of 5 April 2005); Segerstedt-Wiberg and Others v.Sweden (judgment of 6 June 2006, Reports of Judgments and Decisions 2006-VII); Lupsa v.Romania (judgment of 8 June 2006, Reports of Judgments and Decisions 2006-VII); Kaya v.Romania (judgment of 12 October 2006); and Jasper v. the United Kingdom (judgment of 16 February 2000).It found that it is apparent from the case law of the European Court of Human Rights that confidential material which is not disclosed to a party on national security grounds is not as such in violation of the ECHR.However, in such a case a competent court must have the opportunity to review the material in order to assess whether it can be deemed confidential and whether there are sufficient grounds to the conclusions drawn on the basis of the material which the party has not had access to.The Court continued that, in order to meet the requirements for effective remedy stipulated in Article 13 of the ECHR and section 21 of the Constitution Act, an administrative court has a duty to consider whether there is a just balance between individual rights on the one hand and public order and national security on the other.The Court then ruled that, in view of the exceptions to the parties' right of access to documents, as laid down by law, and the duty of authorities to clarify a matter and to state reasons for their decisions in cases in which national security is involved, the administrative court should not have referred the matter back to the Immigration Service.Instead, it should have reviewed the confidential material in order to assess whether there were sufficient grounds to deny X's citizenship application with reference to reasons of public interest, public safety and national security.In order to avoid any further delay, the Supreme Administrative Court did not return the case to the administrative court, but considered X's appeal instead.It heard the representatives of the Security Police in a closed oral hearing, also concerning the confidential material.Having also weighed individual rights against national security interests, the Court concluded that there were well-founded reasons for suspecting that X's naturalisation will jeopardize the security of the state or public order as prescribed in section 13 of the Nationality Act.X's appeal agains the decision of the Immigration Service was rejected.

17.5.2010 / 28.3.2011 / RHANSKI

Date when decision was rendered: 31.5.2016

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. S2015/754; 1243

Reference to source

KKO 2016:38.

Electronic database for the decisions of the Supreme Court within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för Högsta domstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

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

Relevant legal provisions

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

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

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

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

Abstract

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

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

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

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

5.10.2016 / 5.10.2016 / RHANSKI

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,
effektiva rättsmedel, jämlikhet, muntligt förfarande,
tehokas oikeussuojakeino, tasa-arvo, suullinen menettely,

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

Date when decision was rendered: 8.1.2021

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

Reference: Report no. 7; 959/1/20

Reference to source

KHO:2021:2.

Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

aliens, asylum, effective remedy,
utlänning, asyl, effektiva rättsmedel,
ulkomaalaiset, turvapaikka, tehokas oikeussuojakeino,

Relevant legal provisions

sections 95a-1, 95c, 102-1, 102-3, 104-4 and 198a of the Aliens Act; Articles 18 and 19-3 of Regulation (EU) No. 604/2013 of the European Parliament and of the Council establishing criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (Dublin III); Articles 2-q, 28, 46-1 and 46-11 of Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection

= utlänningslag 95 a § 1 mom., 95 c §, 102 § 1 och 3 mom., 104 § 4 punkten och 198 a §; Europaparlamentets och rådets förordning (EU) nr 604/2013 om kriterier och mekanismer for att avgöra vilken medlemsstat som är ansvarig för att pröva en ansökan om internationellt skydd som en tredjelandsmedborgare eller en statslös person har lämnat in i någon medlemsstat artikel 18 och artikel 19-3; Europaparlamentets och rådets direktiv 2013/32/EU om gemensamma förfaranden för att bevilja och återkalla internationellt skydd artikel 2-q, artikel 28, artikel 46-1, artikel 46-11

= ulkomaalaislaki 95 a § 1 mom., 95 c §, 102 § 1 ja 3 mom., 104 § 4 kohta ja 198 a §; Euroopan parlamentin ja neuvoston asetus (EU) no. 604/2013 kolmannen maan kansalaisen tai kansalaisuudettoman henkilön johonkin jäsenvaltioon jättämän kansainvälistä suojelua koskevan hakemuksen käsittelystä vastuussa olevan jäsenvaltion määrittämisperusteiden ja -menettelyjen vahvistamisesta (Dublin III) 18 artikla, 19 artikla 3 kohta; Euroopan parlamentin ja neuvoston direktiivi 2013/32/EU kansainvälisen suojelun myöntämistä ja poistamista koskevista yhteisistä menettelyistä 2 artikla q alakohta, 28 artikla, 46 artikla 1 ja 11 kohta.

Article 47 of the Charter of Fundamental Rights of the European Union

Abstract

The Finnish Immigration Service had rejected A's asylum application.While A's appeal against the decision was pending before an administrative court, A disappeared.When A had been missing for over two months, the administrative court decided that A's appeal had lapsed.Several months later, A was transferred from Germany to Finland, based on the Dublin III Regulation.He then reapplied for asylum in Finland.The Finnish Immigration Service treated the second application as a subsequent application and found it inadmissible on grounds that it did not include any new elements or findings, which would significantly add to the likelihood of A qualifying as a beneficiary of international protection.Following A's appeal, the administrative court ruled that A had not had an effective remedy in court.Because A's appeal against the negative asylum decision had lapsed, there was no final decision on his first application, and his second application had been found inadmissible.The court returned the matter to the Immigration Service for a new consideration on the grounds for protection.The Immigration Service appealed against the decision to the Supreme Administrative Court.

The Supreme Administrative Court discussed the right to an effective remedy and the principle of effectiveness in cases where an applicant for international protection has withdrawn or abandoned his or her remedy.The Finnish Immigration Service had examined A's first application and had rejected it.A had appealed against the negative asylum decision to an administrative court.He had thus had the right to an effective remedy before a court, in accordance with the Asylum Procedures Directive (Article 46) and the EU Charter of Fundamental Rights (Article 47) and as required by the Dublin III Regulation (Article 18(2)).Article 47 of the Charter requires only that an applicant for international protection, whose application has been refused, should be able to enforce his rights effectively before a court.Article 46 of the Asylum Procedures Directive, read in conjunction with Article 47 of the Charter, does not establish common procedural standards.However, procedural rules shall not be such as to render exercise of rights deriving from EU law impossible or excessively difficult.

According to the Aliens Act (section 198a), an administrative court or the Supreme Administrative Court may decide that an appeal concerning international protection lapses if the appellant has left Finland voluntarily without any measures taken by authorities.Having lodged his appeal A had disappeared for months.Therefore, the administrative court could determine that A's appeal lapses.Following this, the decision by the Finnish Immigration Service became final.

According to the Aliens Act (section 102), a subsequent application can be submitted if the applicant has received a final decision made by the Finnish Immigration Service or an administrative court concerning his or her previous application and while the applicant still resides in the country, or has left the county but only for a short period of time.The Supreme Administrative Court referred to recital 36 of the Asylum Procedures Directive, which states that it would be disproportionate to oblige Member States to carry out a new full examination procedure where an applicant makes a subsequent application without presenting new evidence or arguments.The court held that the definition of a 'shor period of time' varies, depending on the circumstances of the case.In assessing the passage of time, the admission and readmission procedures and the time limits laid down in the Dublin III Regulation must be taken into account.In this case, A had left Finland for a period of over a year.His Dublin transfer to Finland had been postponed, because he had fled from the German authorities.The court concluded that under the circumstances in this case, A could be considered to have left Finland for a short period of time, in the meaning of the Aliens Act.His second application could be handled as a subsequent application.The Supreme Administrative Court referred the case back to the administrative court for consideration of A's appeal.

3.7.2023 / 4.7.2023 / RHANSKI

Date when decision was rendered: 26.10.2022

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

Reference: Report no. H3074; 21936/2020

Reference to source

KHO:2022:121.

Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

aliens, asylum, effective remedy, appeal, best interests of the child, respect for family life,
utlänning, asyl, effektiva rättsmedel, ändringssökande, barnets bästa, respekt för familjeliv,
ulkomaalaiset, turvapaikka, tehokas oikeussuojakeino, muutoksenhaku, lapsen etu, perhe-elämän kunnioittaminen,

Relevant legal provisions

sections 6-1, 146-1 and 147 of the Aliens Act; section 7-1 of the Administrative Judicial Procedure Act; preamble paragraphs 22 and 24 and Article 5 of Directive 2008/113/EC of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals

= utlänningslag 6 § 1 mom., 146 § 1 mom., 147 §; lag om rättegäng i förvaltningsärenden 7 § 1 mom.; Europaparlamentets och rådets direktiv 2008/115/EG om gemensamma normer och förfaranden för återvändande av tredjelandsmedborgare som vistas olagligt i medlemsstaterna inledning 22 och 24 § och artikel 5

= ulkomaalaislaki 6 § 1 mom., 146 § 1 mom., 147 §; laki oikeudenkäynnistä hallintoasioissa 7 § 1 mom.; Euroopan parlamenting ja neuvoston direktiivi 2008/115/EY jäsenvaltioissa sovellettavista yhteisistä vaatimuksista ja menettelyistä laittomasti oleskelevien kolmansien maiden kansalaisten palauttamiseksi johdanto 22 ja 24 kohta ja 5 artikla.

ECHR-8; CRC-3-1; Article 24 of the Charter of Fundamental Rights of the European Union

Abstract

An Iraqi asylum seeker (A) had sought international protection in Finland in 2015.The Immigration Service rejected the application in 2016 and denied A stay in the country.The administrative court upheld the decision in 2017.While A's asylum application was pending, he married an Iraqi woman who had already been granted asylum in Finland.The couple had a child in 2016.A then applied for international protection for the second time in 2017.The decision was again negative and A was denied stay in the country.In 2020, the administrative court rejected his appeal.A's spouse and child also appealed to the administrative court against the decision by which A's stay in Finland wad denied.The court ruled the appeal inadmissible.As regards the right to appeal against an administrative decision, the court held that an appellant's spouse or minor child could not be considered as a person whom a decision concerns, or whose right, obligation or interest is directly affected by the decision, as provided for in section 7 of the Administrative Judicial Procedure Act (808/2019(.A, his spouse and child applied for leave to appeal from the Supreme Administrative Court.By a provisional decision in 2021, the Supreme Administrative Court stayed the execution of the decision on the denial of stay, pending the count's decision on the application for leave to appeal.

The Supreme Administrative Court found that the CRC as well as the European Court of Human Rights in its case law confirm the primacy of the best interests of the child in all decisions concerning children.The court also referred to the Return Directive 2008/115/EC, which states that the best interests of the child should be a primary consideration of Member States when implementing the directive, and in the case law of the CJEU (C-112/20; ECLI:EU:C:2021:197), in which the directive's provisions were read in conjunction with Article 24 of the EU Charter of Fundamenral Rights.Also, according to section 146 of the Aliens Act (301/2004), when considering refusal of entry, denial of admittance or stay, deportation or an entry ban and the duration of the entry ban, particular attention shall be paid to the best interests of the child and the protection of family life.The Supreme Administrative Court found that the protection of family life, as guaranteed in the ECHR and the Charter of Fundamental Rights, must be kept in mind when assessing whether a decision on denial of stay can be regarded as having an immediate effect on the right or interest of the appellant's spouse or child.The protection of the right to family life and the best interests of the child would diminish to a considerable extent, if the appellant's spouse or minor child could not have the decision denying the appellant's stay in the country reviewed by a court.This also concerns the spouse and minor child of a third-country national.

The Supreme Administrative Court found that the administrative court had not assessed the protection of family life and the best interest of the child when reviewing the decision by which the appellant was denied stay in the country.However, the Supreme Administrative Court did not eventually rule on the denial of stay or the application for leave to appeal.While the case was pending, the circumstances had changed.The appellant's spouse and child had acquired Finnish citizenship in 2021, and the appellant had been granted a fixed-term residence permit (valid until 2026) as a spouse of a Finnish citizen.

4.7.2023 / 4.7.2023 / RHANSKI

Date when decision was rendered: 1.6.2022

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

Reference: Report no. H1601; 124/2022 and 125/2022

Reference to source

KHO 2022:63.

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, freedom to engage in commercial activity, administrative decision,
effektiva rättsmedel, näringsfrihet, förvaltningsbeslut,
tehokas oikeussuojakeino, elinkeinovapaus, hallintopäätös,

Relevant legal provisions

section 21 of the Constitution Act; sections 6, 7 and 8 of the Administrative Judicial Procedure Act; section 58a of the Communicable Diseases Act; Government decree (1223/2021) on temporary restrictions on the activities of food and beverage service businesses in order to prevent the spread of a communicable disease; Government decree (5/2022) amending Government decree 1223/2021

= grundlagen 21 §; lag om rättegång i förvaltningsärenden 6 §, 7 §, 8 §; lag om smittsamma sjukdomar 58a §; statsrådet förordning om temporär begränsning av förplägnadsrörelsers verksamhet i syfte att förhindra spridning av en smittsam sjukdom (1223/2021); statsrådets förordning (5/2022) om ändring av statsrådets förordning 1223/2021

= perustuslaki 21 §; laki oikeudenkäynnistä hallintoasioissa 6 §, 7 § ja 8 §; tartuntatautilaki 58a §; valtioneuvoston asetus ravitsemisliikkeiden toiminnan väliaikaisesta rajoittamisesta tartuntataudin leviämisen estämiseksi (1223/2021); valtioneuvoston asetus (5/2022) valtioneuvoston asetuksen 1223/2021 muuttamisesta.

ECHR-6-1

Abstract

In the context of the COVID-19 pandemic, the Finnish government had issued decrees which laid down temporary restrictions, for example, on opening hours and the number of clients in restaurants and other food and beverage service businesses.Company A claimed that the restrictions infringed on the freedom to engage in commercial activity.The Supreme Administrative Court noted that the government decrees had been issued on the basis of the Communicable Diseases Act.They were general norms in their nature and could not be regarded as administrative decisions appealable under the Administrative Judicial Procedure Act.However, the court referred to the judgment of the European Court of Human Rights in the case of Posti and Rahko v.Finland (24 September 2002) and held that the right to an effective remedy, as provided for in section 21 of the Constitution Act and Article 6 of the ECHR, requires that, in exceptional circumstances, an appellant must have the right to challenge the legality of a government decree before a court, even when there is no appealable administrative decision addressed directly to the appellant.In this case, the government decrees were formally addressed to a large group of food and beverage service businesses.They did not essentially affect the rights or obligations of any individual natural or legal person or a group of persons in a similar situation, whether by reason of certain attributes peculiar to them or by reason of a factual situation which differentiates them from all other persons.The Constitutional Law Committee of Parliament had reviewed the constitutionality of the restrictions laid down in the Communicable Diseases Act and the authority to issue decrees on the basis of the Act before the provisions were enacted and entered into force.The Supreme Administrative Court found that in this case there were no specific grounds related to the appellant's right to legal protectin or access to court, which, based on the ECHR and the case law of the European Court of Human Rights, would have required that the appellant is exceptionally granted the possibility to appeal against the government decrees to the Supreme Administrative Court.The appeal was dismissed as inadmissible.

7.7.2023 / 7.7.2023 / RHANSKI

Date when decision was rendered: 20.1.2020

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

Reference: Report no. 132; 2952/1/18

Reference to source

KHO 2020:4.

Electronic database for the decisions of the Supreme Administrative Court within the FINLEX database 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-oi9keuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

aliens, asylum, access to documents, national security, effective remedy,
utlänning, asyl, allmänna handlingars offentlighet, nationell säkerhet, effektiva rättsmedel,
ulkomaalaiset, turvapaikka, asiakirjojen julkisuus, kansallinen turvallisuus, tehokas oikeussuojakeino,

Relevant legal provisions

sections 1-1, 3, 9-1, 10, 11, 22 and 24 of the Act on the Openness of Government Activities; section 12-2 of the Constitution Act; Articles 1, 10-3, 12-1 and 23 of Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection

= lag om offentlighet i myndigheternas verksamhet 1 § 1 mom., 3 §, 9 § 1 mom., 10 §, 11 §, 22 § och 24 §; grundlagen 12 § 2 mom.; Europaparlamentets och rådets direktiv 2013/32/EU om gemensamma förfatanden för att bevilja och återkalla internationellt skydd artikel 1, artikel 10 3 punkten, artikel 12 1 punkten och artikel 23

= laki viranomaistoiminnan julkisuudesta 1 § 1 mom., 3 §, 9 § 1 mom., 10 §, 11 §, 22 § ja 24 §; perustuslaki 12 § 2 mom.; Euroopan parlamentin ja neuvoston direktiivi 2013/32/EU kansainvälisen suojelun myöntämistä ja poistamista koskevista yhteisistä menettelyistä 1 artikla, 10 artikla 3 kohta, 12 artikla 1 kohta ja 23 artikla.

ECHR-13

Abstract

The Immigration Service had rejected A's asylum application.The decision was based on a statement submitted by the Finnish Security and Intelligence Service (Supo).For the purpose of an appeal against the negative asylum decision, A's counsel requested from Supo access to the statement as well as the reasoning and materials upon which the statement was based.Supo submitted the statement but denied access to the rest of the documents on grounds of national security.Following A's appeal, the administrative court upheld Supo's decision.In the Supreme Administrative Court, A claimed a violation of the right to an effective remedy in the pending asylum appeal process, due to not having access to all Supo's documents upon which the negative decision by the Immigration Service was based.

The Supreme Administrative Court referred to its previous rulings (KHO 2007:47-49; KHO 2018:109) and noted that it is apparent from the case law of the European Court of Human Rights that confidential material which is not disclosed to a party on national security grounds is not as such in violation of the ECHR.However, in such a case a competent court must have the opportunity to review the material in order to assess whether it can be deemed confidential and whether there are sufficient grounds to the conclusions drawn on the basis of the material which the party has not had access to.A court shall consider whether there is a just balance between individual rights on the one hand and public order and national security on the other.

Based on the Act on the Openness of Government Activities, A, as an appellant in the asylum process, shall have the right of access to the contents also of a document which is not in the public domain, if the document may influence or may have influenced the consideration of the appellant's matter.However, this right is not without limitations.According to the Act, a party, his or her representative or counsel shall not have the right of access to a document, access to which would be contrary to a very important public interest.The Supreme Administrative Court reviewed the relevant documents and confirmed that the reasoning and materials upon which Supo's statement was based were confidential as provided for in the Act on the Openness of Government Activities, and it was not obvious that access to these documents would not compromise state security.

A also referred to the Common Procedures Directive which states that applicants and their legal adviser shall have access to information provided by experts, where the determining authority has taken that informaion into consideration when taking a decision on the application.The Supreme Administrative Court held that Supo's documents in this case could not be regarded as expert advice in the meaning of the Common Procedures Directive.Also, the Directive does not specity that an asylum applicant's access to information could not be limited on grounds of substantial public interest even in cases where access to a document has been requested by the applicant's öegaö adviser on the applicant's behalf.

The Supreme Administrative Court concluded that A did not have right of access to the contents of the reasoning and background materials of Supo's statement.The request for access to these documents could thus be denied.

2.11.2023 / 2.11.2023 / RHANSKI