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Date when decision was rendered: 22.6.1993 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 2410; 6830/92 Reference to source KHO 1993-A-26. Yearbook of the Supreme Administrative Court 1993 A, General Part Högsta förvaltningsdomstolens årsbok 1993 A, allmän del Korkeimman hallinto-oikeuden vuosikirja 1993 A, yleinen osa Place of publication: Helsinki Publisher: The Supreme Administrative Court Date of publication: 1994 Pages: pp. 84-91 Subject
respect for private life,
deportation,
inhuman treatment or punishment,
homosexuality,
Relevant legal provisions Sections 1-3, 40-1, 41-1 of the Aliens' Act = utlänningslag 1 § 3 mom., 40 § 1 mom., 41 § 1 mom. = ulkomaalaislaki 1 § 3 mom., 40 § 1 mom., 41 § 1 mom. ECHR-8, ECHR-3 Abstract The Ministry of the Interior had decided to expel a Russian person, G, on the grounds that he was staying in Finland without a visa or a residence permit.The Supreme Administrative Court quashed the decision with the following reasoning: The fact that G was staying in Finland without a visa or residence permit formed a lawful basis for expulsion according to the Aliens' Act.G was homosexual.On the basis of available information it could not be excluded that G would face inhuman or degrading treatment in his home country.When deciding on G's expulsion, his ties to Finnish society had to be taken into account.G had become a member of the Orthodox Church, he did voluntary work at the AIDS Support Centre and he had started to study Finnish.Taking into account also his cohabitation with a Finn of the same sex and their right to respect for private life, the Supreme Administrative Court concluded, on the basis of sections 1-3 and 41-1 of the Aliens' Act and Articles 8 and 3 of the ECHR, that there was not sufficient reason to expel G.(A vote 3-2) 26.3.1998 / 2.3.2017 / RHANSKI
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Date when decision was rendered: 4.6.1997 Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus Reference: Report No. 2061; R96/1572 Reference to source Registry of the Helsinki Court of Appeal Helsingfors hovrätts registratorskontor Helsingin hovioikeuden kirjaamo Date of publication: Subject
respect for private life,
communication,
respect for correspondence,
freedom of expression,
limitations of rights and freedoms,
Relevant legal provisions Section 8 of the Constitution Act; sections 27 and 28 of the Criminal Investigations Act = regeringsformen 8 §; förundersökningslagen 27 § och 28 § = hallitusmuoto 8 §; esitutkintalaki 27 § ja 28 §. ECHR-8, ECHR-10 Abstract The police was investigating an alleged copyright offence in which an unidentified person had sent e-mail messages infringing copyrights to Internet newsgroups through an anonymous server run by a Finnish company.A, the managing director and owner of the company, was heard as a witness during the pretrial investigation of the case.The police demanded that A hand over to the police the sender's e-mail address which had been recorded in the anonymous server's database.A referred to the confidentiality of the message and refused.On the application of the police, the court of first instance made a decision obligating A to reveal the e-mail address.A appealed against the decision to the Helsinki Court of Appeal referring to section 8 of the Constitution Act and to the protection of the confidentiality of a message.The court of appeal noted that the protection of the confidentiality of a message, as prescribed in section 8 of the Constitution Act, covers not only the contents of the message but also other information which is relevant with regard to the confidentiality of the message, such as the name and address of the sender or the receiver.However, in this case the messages were sent to newsgroups in a public Internet network and were thus public.The fact that the messages were sent through an anonymous server was not relevant.The court of appeal concluded that A could not refuse to reveal the e-mail address on the basis of section 8 of the Constitution Act and that there were no other legal grounds for such refusal either.The court further referred to Articles 8 and 10 of the ECHR and noted that the rights protected by these articles may be subject to restrictions which are prescribed by law and necessary, for example, for the purposes of crime investigation.A was obligated to reveal the requested information.The Supreme Court refused A leave to appeal. 1.4.1998 / 30.5.2006 / RHANSKI
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Date when decision was rendered: 13.10.1983 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 4160; 5544/55/82 Reference to source KHO 1983-A-15. Yearbook of the Supreme Administrative Court 1983 A, General Part Högsta förvaltningsdomstolens årsbok 1983 A, allmän del Korkeimman hallinto-oikeuden vuosikirja 1983 A, yleinen osa Place of publication: Helsinki Publisher: The Supreme Administrative Court Date of publication: 1985 Pages: pp. 56-57 Subject
respect for private life,
taxation,
Relevant legal provisions Section 49 of the Tax Act; section 12 of the Constitution Act; Chapter 17, section 23-1 of the Code of Judicial Procedure = skattelagen 49 §; regeringsformen 12 §; rättegångsbalken 17 kapitel 23 § 1 mom. = verolaki 49 §; hallitusmuoto 12 §; oikeudenkäymiskaari 17 luku 23 § 1 mom. Abstract Basing its request on the Tax Act, the county tax authorities asked the board of the state telephone company to report the number of calls ordering a taxi received by taxi company X during a certain period.The board refused, stating that giving out such information was contrary to the telephone secrecy guaranteed in section 12 of the Constitution Act and therefore not allowed for public servants under Chapter 17, section 23-1 of the Code of Judicial Procedure.The tax authorities appealed to the Supreme Administrative Court. The Supreme Administrative Court found that sections 40 and 49 of the Tax Act oblige the authorities to upon request provide the tax authorities with information needed for taxation purposes, unless the information requested concerns matters which they are not permitted under law to testify about.According to the Court, information on the number of calls ordering a taxi was not embraced by section 12 of the Constitution Act or otherwise such information that should be kept secret from tax authorities under section 40 of the Tax Act.Taking this into account as well as the fact that it had not been argued that the information would not be necessary for taxation purposes, the state telephone company was obliged to provide the tax authorities with the information requested.The case was returned to the board of the state telephone company for a new consideration. 21.4.1998 / 30.5.2006 / RHANSKI
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Date when decision was rendered: 19.3.1998 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 905; H97/146 Reference to source KKO 1998:33. Decisions of the Supreme Court 1998 I January-June Avgöranden av Högsta domstolen 1998 I januari-juni Korkeimman oikeuden ratkaisuja 1998 I tammi-kesäkuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 1998 Pages: pp. 173-176 Subject
respect for private life,
Relevant legal provisions section 9-2 of the Act on the Publicity of Court Proceedings = lag om offentlighet vid rättegång 9 § 2 mom. = laki oikeudenkäynnin julkisuudesta 9 § 2 mom. Abstract The decision is connected with the case of Z v.Finland before the European Court of Human Rights (Reports of Judgments and Decisions 1997 I, No. 31). The court of first instance and the court of appeal had ordered that the documents in the case of Z would be kept confidential for 10 years as from 6 May 1992.The litigants in the proceedings had all requested a longer period of confidentiality.In its decision, the European Court of Human Rights noted that if the order was implemented and the documents became accessible to the public in 2002, this would amount to a disproportionate interference with Z's right to respect for her private and family life and to a violation of Article 8 of the ECHR. With reference to Article 8 of the ECHR and the decision of the European Court of Human Rights, the Supreme Court annulled the decisions of the court of first instance and the court of appeal as far as the confidentiality of the documents in the case is concerned and ordered the documents to be kept confidential for 40 years as from 6 May 1992.The documents relating to the annulment decision by the Supreme Court shall also be kept confidential for 40 years as from 3 March 1998. 23.10.2002 / 31.3.2003 / LISNELLM
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Date when decision was rendered: 30.4.1999 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 1076; S98/1281 Reference to source KKO 1999:50. Decisions of the Supreme Court 1999 I January-June Avgöranden av Högsta domstolen 1999 I januari-juni Korkeimman oikeuden ratkaisuja 1999 I tammi-kesäkuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 1999 Pages: pp. 360-367 Subject
right to liberty,
security of person,
respect for private life,
rights of the child,
children,
fair trial,
paternity,
Relevant legal provisions sections 1, 2, 3 and 8 of the Act on blood tests and other tests concerning hereditary characters; sections 26 and 30 of the Paternity Act; Chapter 31, section 16 of the Code of Judicial Procedure; section 6 of the Constitution Act = lag om vissa blodundersökningar och andra undersökningar rörande ärftliga egenskaper 1 §, 2 §, 3 §, 8 §; lag om faderskap 26 §, 30 §; rättegångsbalken 31 kapitel 16 §; regeringsformen 6 § = laki eräistä veri- ja muita periytyviä ominaisuuksia koskevista tutkimuksista 1 §, 2 §, 3 §, 8 §; isyyslaki 26 §, 30 §; oikeudenkäymiskaari 31 luku 16 §; hallitusmuoto 6 §. ECHR-5; ECHR-8; CRC-7; CRC-8 Abstract In a case concerning the establishment of paternity, the man suspected to be the father of the child had died before the case was instituted, and he was represented in the proceedings by his mother and two brothers.The court of first instance had ordered the relatives to deliver blood samples so that the suspected paternity could be investigated on the basis of a DNA-test.The decision was not subject to appeal.The relatives refused by referring to their constitutional right to liberty and security of person and to the fact that the order made by the court was without a foundation in law.In a case concerning the establishment of paternity, only the child, the mother, and the man who is party to the case may be ordered to deliver blood samples (sections 1 and 2 of the Act on blood tests). The court referred to the right of the child to know his or her parents and to preserve his or her identity and family relations as prescribed in Articles 7 and 8 of the CRC.It also referred to the Paternity Act, the purpose of which it is to investigate and to establish or annul a family relation between a child and a suspected father.According to the same Act, the court may on its own initiative collect all evidence which is necessary in order to decide the matter.In this case, the only means to obtain the necessary evidence was to examine the blood samples of the relatives.According to the court, the rights of the child, as defined both in national and international law, were more important than the arguments against delivering the blood samples. The relatives appealed to the Kouvola Court of Appeal which considered the case as an extraordinary appeal.The court referred to Articles 7 and 8 of the CRC, to the decision of the European Court of Human Rights in the Marckx case (judgment of 13 June 1979, Series A, No. 31) concerning the inheritance rights of a child born out of wedlock, and to the decision of the European Commission of Human Rights in the case of X v.Austria (Application No. 8287/78, decision of 13 December 1979), according to which obligating the defendant to a blood test in order to establish paternity was not against Articles 5 or 8-1 of the ECHR.The court noted that the right of the child to a fair trial was jeopardized if the court because of an outdated provision of law could not obtain all available evidence in the case.The breach of the relatives' right to personal integrity was smaller than the damage inflicted to the rights of the child in case the blood samples were not examined.The appeal was dismissed. The relatives took the case before the Supreme Court which assessed first whether the matter could be considered as an extraordinary appeal and answered the question in the affirmative.In the matter itself, the Supreme Court referred to Articles 5 and 8 of the ECHR as well as to section 6 of the Constitution Act concerning the right to liberty and security of person.According to section 6-3, no interference in personal integrity is allowed without grounds prescribed by Act of Parliament.The Act on blood tests contains an exhaustive list of persons who may be ordered to a blood examination against their will.The decision ordering the relatives of the suspected father to deliver blood samples against their will was without a foundation in law.Such an order could also not be based on the fact that during the proceedings the relatives represented the suspected father who had died. 24.10.2002 / 30.5.2006 / RHANSKI
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Date when decision was rendered: 22.2.2000 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 352; 729/3/99 Reference to source Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
asylum,
respect for private life,
respect for family life,
inhuman treatment or punishment,
Relevant legal provisions sections 30, 31 and 38 of the Aliens Act = utlänningslag 30 §, 31 §, 38 § = ulkomaalaislaki 30 §, 31 §, 38 §. ECHR-8 Abstract A had applied for asylum in Finland.During the investigations relating to the application for asylum A had told about his political activities and their consequences in a very general and unspecified manner.A's application was rejected.A appealed against the decision to the Supreme Administrative Court which rejected the appeal.However, when discussing the reasons for its decision, the Court noted that while the asylum application was pending, A had several times received hospital treatment in Finland because of mental problems.Therefore, the Court asked the Directorate of Immigration, when making a decision on deportation, to take into account the condition of A's health, the prohibition of inhuman treatment, Article 8 of the ECHR as well as the possible effect of A's mental problems to the statements made during the investigations in connection with the asylum application. 28.10.2002 / 11.4.2007 / RHANSKI
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Date when decision was rendered: 19.9.2000 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 2302; 4419/3/98 Reference to source Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
children,
best interests of the child,
respect for private life,
respect for family life,
family reunification,
Relevant legal provisions sections 9, 10, 19 and 22 of the Child Welfare Act = lag om barnskydd 9 §, 10 §, 19 §, 22 § = lastensuojelulaki 9 §, 10 §, 19 §, 22 §. ECHR-8; CRC Abstract The authorities had placed three children in substitute care with a foster family because of the father's problems with alcohol.The mother had died earlier.The children's father and their relatives were not satisfied with their access to the children or with the upbringing and care of the children in the foster family.The municipal social and health board had rejected the father's application concerning the possibility to place the children in the care of their aunt instead.The county administrative court had rejected the father's appeal.The father appealed to the Supreme Administrative Court. In addition to the Child Welfare Act, the Supreme Administrative Court discussed in detail the CRC and Article 8 of the ECHR.The Court emphasized, among other things, the provisions concerning the best interests of the child as a primary consideration in all actions concerning the child, the restrictions to the separation of the child from his or her parents as well as the right of the child to be heard in matters affecting the child.With reference to the case law of the European Court of Human Rights, the Court paid attention to the fact that taking a child into care should be a temporary measure and that all measures should aim at the reunification of the family.A balance should be struck between taking a child into care in order to protect the interests of the child, on the one hand, and the interests of the parents in the form of the reunification of the family, on the other.Special emphasis should be placed on the interests of the child. At the request of the Court, the children (aged 8, 9 and 11) were heard.They stated that they wished to live with their father in the first place, or with their aunt in the second place.The Court concluded that according to the documentary evidence presented in the case the foster family was capable of providing such circumstances as were required by the needs of the children.On the other hand, the children themselves wished to live with their father or their aunt and the children's relatives supported the latter alternative.The child welfare authorities which had been heard in the case did not object to this alternative.The Supreme Administrative Court concluded that placing the children in substitute care with a family which had been accepted by their relatives may contribute to the reunification of the family which is in line with the case law under Article 8 of the ECHR.The decisions of the social and health board and the county administrative court were quashed and the matter was returned to the board.The Court further noted that special emphasis should be placed in the continuation of the treatment required by the mental health of the children as well as to their possibility to stay in contact with the previous foster family. 28.10.2002 / 27.3.2003 / LISNELLM
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Date when decision was rendered: 31.10.2000 Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus Reference: Report no. 3077; R99/1857 Reference to source Registry of the Helsinki Court of Appeal Helsingfors hovrätts registratorskontor Helsingin hovioikeuden kirjaamo Date of publication: Subject
freedom of expression,
freedom of the press,
respect for private life,
respect for family life,
doping,
Relevant legal provisions Chapter 27, section 2 of the Penal Code = strafflagen 27 kapitel 2 § = rikoslaki 27 luku 2 §. ECHR-10 Abstract A reporter and an editor-in-chief of the Finnish News Agency had published a piece of news according to which a former top skier, while he was still active, had used hormones in order to improve his performance.They also claimed that "persons in a leading position" within the Finnish Ski Association were involved in the case.The name of the skier was given but not the names of the other persons possibly involved.The skier as well as a number of persons in a position of authority within the Ski Association started legal proceedings against the reporter and the editor, accusing them of public libel and claiming damages.Before the court, the defendants referred to their right as journalists to protect their sources.Partly because of this, they were not able to provide sufficient evidence in support of their claims.They were both convicted.Damages were awarded to all claimants.All the parties in the case appealed against the decision. In assessing the balance between the freedom of expression and the right to privacy, the Helsinki Court of Appeal referred to Article 10-2 of the ECHR and the possible restrictions of freedom of expression as well as to the decisions of the European Court of Human Rights in the cases of Bladet Tromsø and Stensaas v.Norway (judgment of 20 May 1999, Reports of Judgments and Decisions 1999 III) and Ionel Dalban v.Romania (judgment of 28 September 1999, Reports of Judgments and Decisions 1999 VI).The court found that the use of doping in sports is comparable to matters of public interest as specified in the practice of the European Court of Human Rights.With regard to such matters, it could be considered that the freedom of expression covers possible recourse to severe criticism and a degree of exaggeration.However, the conclusion of the court of appeal was that in this case the defendants had not proven the information given in the news to be true, nor had they shown that they had sufficient reasons to believe that the information was true or could be substantiated.The court found the defendants guilty, but mitigated their punishments as compared to those imposed by the court of first instance.In assessing the question of pecuniary damages, the court of appeal referred to the decision of the European Court of Human Rights in the case of Tolstoy Miloslavsky v. the United Kingdom (judgment of 13 July 1995, Series A, no. 316-B).As compared to the decision of the court of first instance, the appeal court reduced the amount of damages as well as the number of persons entitled to damages.In addition to the skier, only a few persons within the Ski Association were awarded compensation. The Supreme Court did not grant leave to appeal in the case. 28.10.2002 / 12.3.2003 / LISNELLM
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Date when decision was rendered: 8.11.2001 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 2773, 2978/3/00 Reference to source KHO 2001:53. Yearbook of the Supreme Administrative Court 2001 July-December Högsta förvaltningsdomstolens årsbok 2001 juli-december Korkeimman hallinto-oikeuden vuosikirja 2001 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2003 Pages: pp. 184-189 Subject
respect for private life,
respect for family life,
aliens,
principle of proportionality,
residence permit,
Relevant legal provisions sections 1, 20 and 38 of the Aliens Act; section 7 of the Aliens Decree = utlänningslag 1 §, 20 §, 38 §; utlänningsförordning 7 § = ulkomaalaislaki 1 §, 20 §, 38 §; ulkomaalaisasetus 7 §. ECHR-8 Abstract A had come to Finland from the Philippines with a visa issued for a short-term visit.During her stay in Finland A applied twice for a residence permit.While the decision of the Directorate of Immigration was pending A married a Finnish man.The marriage was brought to the knowledge of the Directorate of Immigration which, however, rejected A's application.It referred to the fact that the application for a first-time residence permit has to be made in the country where the applicant resides (section 7 of the Aliens Decree).It also concluded that A could not be issued a residence permit on the grounds of family ties as she had not, prior to entering Finland, lived with her Finnish husband for a minimum period of approximately two years (section 20 of the Aliens Act).The administrative court rejected A's appeal.A and her husband appealed to the Supreme Administrative Court.At that time, A was pregnant. The Supreme Administrative Court came to the conclusion that the decisions of the Directorate of Immigration and the administrative court had restricted A's rights to an unnecessary degree and violated her and her husband's right to respect for private and family life.The Court referred to Article 8 of the ECHR, to the principle of proportionality as provided for in section 1 of the Aliens Act as well as to section 38 of the Aliens Act according to which all the relevant matters and circumstances shall be taken into account when considering the refusal of entry.Because of the nature of the job of A's husband in government service it was unreasonable to expect that he would move to his wife's home country.Sending A back to the Phillippines for the purpose of applying for a residence permit in the Finnish embassy there would prevent her from enjoying her right to family life and would also be an unreasonable financial burden to A and her husband.A's pregnancy also spoke for the issuing of a residence permit.The case was returned to the Directorate of Immigration for a new consideration. 29.10.2002 / 11.4.2007 / RHANSKI
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Date when decision was rendered: 30.3.2001 Judicial body: Turku Administrative Court = Åbo förvaltningsdomstol = Turun hallinto-oikeus Reference: Report No. 01/0146/2; 01907/00/5720 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
respect for private life,
respect for family life,
aliens,
best interests of the child,
family reunification,
residence permit,
Relevant legal provisions sections 1c, 15 and 18c of the Aliens Act = utlänningslag 1c §, 15 §, 18c § = ulkomaalaislaki 1c §, 15 §, 18c §. ECHR-8; CRC-3; CRC-9-1 Abstract A, who was a Russian citizen, had married C, a Finnish citizen.A and her daughter B, who was a minor, both applied for a permanent residence permit in Finland.C was unemployed, and A had no job in Finland either.The Directorate of Immigration rejected the applications.According to the Directorate of Immigration, B could not be granted a residence permit as she did not have guaranteed means of support.Considering this and other relevant circumstances relating to the matter, A could not be granted a residence permit either.C appealed against the decision to the administrative court. The administrative court referred, among other things, to Article 8 of the ECHR and to the best interests of the child as provided for in CRC and in the Aliens Act (section 1c).The court noted that A's application should be decided first, on the basis of the provisions in the Aliens Act concerning family members of Finnish citizens.According to the relevant provisions, a residence permit is issued to a spouse of a Finnish citizen unless there are reasons relating to public order or safety or other weighty reasons against issuing the permit (section 18c-1).The Directorate of Immigration had not presented any such reasons for refusing A's application.Once the decision on A's application had been made, B's application would be decided on the basis of provisions concerning family members of an alien residing in Finland with a permanent residence permit (section 18c-2).This provision included the requirement of guaranteed means of support.However, the court noted, this provision of the Aliens Act does not supersede the obligations set in international human rights treaties.Although a child has no general right to be granted a residence permit in the country in which his or her parents are residing, human rights provisions guarantee the unification of the family unless there are grounds against it as listed in Article 8 of the ECHR.In this particular case, B should be issued a residence permit for the purpose of family unification.The administrative court quashed the decision of the Directorate of Immigration and returned the matter to the latter for a new consideration. Two dissenting members of the court noted that Article 8 of the ECHR does not guarantee spouses the right to be issued a residence permit in the home country of one of the spouses nor the right to choose in which country they wish to live and, after that choice has been made, the right to family unification.The best interests of the child had to be taken into account, as provided for in the CRC and the Aliens Act.B had no guaranteed means of support.Furthermore, she had lived in Russia all her life and was adjusted to the cultural and linguistic environment of that country.It was in B's interest to live with her mother, but it was not necessary for them to move to Finland.When considering A's application for a residence permit, all circumstances relating to the matter should be taken into account in their entirety and emphasis should be placed on the best interests of the child B.As B's interests required that her living conditions remain unchanged for the time being, there were weighty grounds against issuing A a residence permit.The decision of the Directorate of Immigration did not curtail A's rights more than is necessary.The dissenting members rejected the appeal. 30.10.2002 / 11.4.2007 / RHANSKI
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Date when decision was rendered: 6.5.1998 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 773; 2084/1/97 Reference to source KHO 1998:13. Yearbook of the Supreme Administrative Court 1998 I January-June Högsta förvaltningsdomstolens årsbok 1998 I januari-juni Korkeimman hallinto-oikeuden vuosikirja 1998 I tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 1998 Pages: pp. 85-90 Subject
freedom of expression,
right to receive, seek and impart information,
respect for private life,
Relevant legal provisions sections 4, 9 and 16 of the Act on the Publicity of Official Documents; section 43 of the Police Act; sections 8 and 10 of the Constitution Act = lag om allmänna handlingars offentlighet 4 § 9 §, 16 §; polislag 43 §; regeringsformen 8 §, 10 § = laki yleisten asiakirjain julkisuudesta 4 § 9 §, 16 §; poliisilaki 43 §; hallitusmuoto 8 §, 10 §. ECHR-8 Abstract The police refused to give a journalist access to documents concerning a pretrial investigation regarding criminal charges for a sexual offence.The journalist appealed to the county administrative court.With reference to section 4 of the Act on the Publicity of Official Documents, the county administrative court ruled that the material emanating from the pretrial investigation was to be considered as public since the pretrial investigation had been terminated and the case had been closed.The court also referred to section 10 of the Constitution Act, according to which documents in the possession of public authorities are public unless their publicity has been separately restricted by Act of Parliament for compelling reasons. The police appealed against this judgment to the Supreme Administrative Court.The Court based its argumentation on the right to privacy enshrined in section 8 of the Constitution Act and in Article 8 of the ECHR and considered this right against the background of the relevant provisions concerning the publicity of documents in the possession of a public authority.The Court referred to section 43 of the Police Act, according to which a policeman may not disclose information which he has obtained during the course of his duties when such information concerns a person's private life and its disclosure may cause the person harm.Furthermore, section 16 of the Act on the Publicity of Official Documents provides that documents pertaining to a confidential matter are also to be regarded as confidential.Therefore, the material from the pretrial investigation in this case should be considered as confidential documents as the restrictions to publicity were based on the law. 8.11.2002 / 11.4.2007 / RHANSKI
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Date when decision was rendered: 26.3.2002 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 658; 2827/3/00 Reference to source KHO 2002:28. 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. 213-224 Subject
respect for private life,
respect for family life,
aliens,
deported persons,
deportation,
legal protection,
Relevant legal provisions Sections 8, 37, 38, 39 and 43 of the Aliens Act; sections 3, 8 and 9 of Council Directive 64/221/EEC (on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health); section 32-3 of the Administrative Judicial Procedure Act = utlänningslag 8 §, 37 §, 38 §, 39 § och 43 §; rådets direktiv 64/221/EEG (om samordningen av särskilda åtgärder som gäller utländska medborgares rörlighet och bosättning och som är berättigade med hänsyn till allmän ordning, säkerhet eller hälsa) 3, 8 och 9 artikel; förvaltningsprocesslag 32 § 3 mom. = ulkomaalaislaki 8 §, 37 §, 38 §, 39 § ja 43 §; neuvoston direktiivi 64/221/ETY (ulkomaalaisten liikkumista ja oleskelua koskevien, yleiseen järjestykseen ja turvallisuuteen sekä kansanterveyteen perustuvien erityistoimenpiteiden yhteensovittamisesta) 3, 8 ja 9 artiklat; hallintolainkäyttölaki 32 § 3 mom. ECHR-3; ECHR-8; CRC Abstract A, who was an EU-citizen, had been sentenced to imprisonment, in Finland, for attempted manslaughter of his former wife with whom he also had a child.A court of first instance had later imposed a restraining order on A.The Directorate of Immigration had deported A to his home country on grounds of public order and public security.It also decided to prohibit A from entry to Finland for a period of five years.When making its decision on A's deportation, the Directorate of Immigration also took into account Articles 3 and 8 of the ECHR and concluded that these provisions did not prevent A's deportation.According to the Directorate of Immigration, the decision on A's deportation could be enforced despite a possible appeal against it.A's deportation had taken place on the following day after the decision had been served on him.Having appealed to the administrative court, which did not change the decision of the Directorate of Immigration, A appealed further to the Supreme Administrative Court.In his appeal, he referred, among other provisions, to Article 8 of the ECHR and to the Convention on the Rights of the Child. The Supreme Administrative Court referred to Council Directive 64/221/EEC and to the case law of the European Court of Justice concerning this directive, according to which an EU-citizen who has been deported from another EU-country has the same right to legal remedies against administrative actions as the citizens of the deporting country.This means that the person should at least have the possibility to initiate an appeal procedure before the decision on deportation is enforced and, in that way, postpone the deportation.The Supreme Administrative Court concluded that A's deportation had been carried out in breach of Council Directive 64/221/EEC.It overturned the decisions of the Directorate of Immigration and the administrative court and returned the matter to the former for a new consideration.Considering that the decision was overturned because of a procedural fault and noting the grounds presented for A's deportation, the Supreme Administrative Court, with reference to section 32-3 of the Administrative Judicial Procedure Act, ordered that the overturned decision (prohibiting A from re-entering the country) was still to be complied with.The Court did not take a stand on the substantial conditions for A's deportation. 9.5.2003 / 2.3.2017 / RHANSKI
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Date when decision was rendered: 27.11.2002 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 3103; 1859/3/01 Reference to source Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
respect for private life,
respect for family life,
aliens,
deported persons,
deportation,
Relevant legal provisions sections 40-1-3 and 41-1 of the Aliens Act; section 5 of the Nationality Act = utlänningslag 40 § 1 mom. 3 punkten, 41 § 1 mom.; medborgarskapslag 5 § = ulkomaalaislaki 40 § 1 mom. 3 kohta, 41 § 1 mom.; kansalaisuuslaki 5 §. ECHR-8 Abstract The Directorate of Immigration had ordered that X, who was an alien, was to be deported and to be refused entry into Finland for five years.The administrative court had dismissed X's appeal.The Supreme Administrative Court granted X leave to appeal. X had moved to Finland with his mother at the age of 7 in 1985.They were granted residence permits as X's mother was married to a Finnish citizen.Her husband had adopted X while they were abroad.The adoption was later confirmed by a Finnish court.X had a child with a Finnish citizen, and he shared the custody of the child with the child's mother, although he did not live with them.X had committed several offences, among them a serious drug offence.He had received treatment for his drug problem. X had had permanent residence permit in Finland since 1993.Having had his habitual residence in Finland since he was a child, X had, by the time the Supreme Administrative Court considered his case, fulfilled the criteria for acquiring Finnish nationality by notification, in accordance with section 5 of the Nationality Act.When considering the circumstances of X's case in their entirety, the Supreme Administrative Court emphasized the fact that X had lived in Finland since he was a child and had gone to school here.He had integrated himself into Finnish society and had no ties to his country of birth.The Court also noted that offences a person has committed do not form an obstacle to acquiring Finnish nationality when nationality is acquired on the basis of the fact that the person has lived in Finland for a long time since childhood.On these grounds, the Supreme Administrative Court ordered that X could not be deported.In its decision, the Court referred to the Aliens Act and to Article 8 of the ECHR. 9.5.2003 / 2.3.2017 / RHANSKI
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Date when decision was rendered: 9.12.2002 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 3220; 433/3/02 Reference to source KHO 2002:84. Yearbook of the Supreme Administrative Court 2002 July-December Högsta förvaltningsdomstolens årsbok 2002 juli-december Korkeimman hallinto-oikeuden vuosikirja 2002 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2005 Pages: pp. 504-511 Subject
respect for private life,
respect for family life,
aliens,
marriage,
refugee status,
Relevant legal provisions sections 18b and 18c of the Aliens Act = utlänningslag 18b § och 18c § = ulkomaalaislaki 18b § ja 18c §. ECHR-8 Abstract A had arrived from Iran to a UNHCR refugee camp in Turkey in 1995 and had been issued a residence permit in Finland on the basis of refugee status in 1997.A applied for a residence permit on behalf of his Iranian wife B on the basis of family ties.According to section 18c of the Aliens Act, a family member of an alien residing in Finland with a residence permit issued on the basis of refugee status shall be issued a residence permit unless there are reasons relating to public order or safety or other weighty reasons against issuing the permit.The Directorate of Immigration considered that it had not been shown that there had been any genuine family life between A and B and rejected A's application.The administrative court dismissed A's appeal.The Supreme Administrative Court granted A leave to appeal. A and B had known each other since childhood.Before A left for Turkey in 1995, he had asked B to join him, but that was not possible at the time.While being in Finland, A had kept in touch with B.They were married in Iran in 2000 according to Iranian legislation.Being a refugee, A could not be present at the wedding.After the wedding, A and B had spent a few weeks together in Turkey in 2001. The Supreme Administrative Court referred to section 18c of the Aliens Act and Article 8 of the ECHR and noted that the purpose of these provisions is to protect genuine and close family life.When issuing a residence permit, the basis for the decision is an assumption of genuine family life.According to the Supreme Administrative Court, when assessing the meaning of family life in this case, the requirements set by religion and culture in Iran had to be taken into account.Consequently, it could not be required that A and B should have lived together before their marriage.After the marriage, A's status as a refugee gave him limited possibilities to see his wife.In this case, leading a genuine family life required thus that the wife should have a possibility to move to live with her husband.The Court concluded that considering the circumstances in the matter in their entirety, the fact that A and B had up to now not led a family life did not mean that there would not have been a bond between the spouses which requires the protection of their family life when applying for a residence permit on the basis of a family tie in order to lead family life in Finland.The Supreme Administrative Court quashed the decisions of the administrative court and the Directorate of Immigration and returned the case to the latter for a new consideration. 9.5.2003 / 11.4.2007 / RHANSKI
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Date when decision was rendered: 15.11.2002 Judicial body: Administrative Court of Hämeenlinna = Tavastehus förvaltningsdomstol = Hämeenlinnan hallinto-oikeus Reference: Report No. 02/0499/4; 01308/02/4310 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
respect for private life,
respect for family life,
children,
visiting rights,
Relevant legal provisions sections 19, 24 and 25 of the Child Welfare Act; sections 7-3, 17-3, 22 and 80-1 of the Constitution Act = barnskyddslagen 19 §, 24 § och 25 §; grundlagen 7 § 3 mom., 17 § 3 mom., 22 § och 80 § 1 mom. = lastensuojelulaki 19 §, 24 § ja 25 §; perustuslaki 7 § 3 mom., 17 § 3 mom., 22 § ja 80 § 1 mom. ECHR-8; CRC-9-3 Abstract A municipal social welfare board had taken a child into care and had provided substitute care for her in a foster family.The board had later decided to restrict the contacts between the child and her mother, with reference to a care plan appended to the decision and on the grounds that the child was still in the process of adjusting herself to living with the foster family. According to the administrative court, it was not possible to agree on the right of access on the basis of a care plan when the number of visits permitted was essentially smaller than the parents had wished or essentially smaller than that which is customary when applying the Child Custody and Right of Access Act.The court then referred to the Constitution Act and noted that possible restrictions to a person's rights should be based on an Act.In this case, the relevant provision was section 25 of the Child Welfare Act, which prescribes that the right of access between a child in substitute care and his or her parents may be restricted if such access clearly endangers the development or safety of the child or such a restriction is necessary for the safety of the parents or the foster parents.According to the administrative court, nothing in the board's decision, in the care plan or in the oral hearing before the court had indicated that there would have been any such danger to the child, her parent or the foster parents.The administrative court concluded, that considering that taking a child into custody is primarily a temporary measure, the social welfare board had not had any grounds to restrict the contacts between the child and her mother to the extent prescribed in the board's decision.The board's decision was quashed.The court's decision is final. The administrative court does not refer to international human rights provisions in the text of its decision.However, the list of applied legal provisions, which is appended to the decision, contains references to Article 8 of the ECHR and Article 9-3 of the CRC. 9.5.2003 / 5.8.2003 / JKOSKIMI
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Date when decision was rendered: 8.11.2002 Judicial body: Turku Administrative Court = Åbo förvaltningsdomstol = Turun hallinto-oikeus Reference: Report No. 02/0612/1 (02032/01/2300) 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
respect for private life,
integrity,
Relevant legal provisions sections 1-1 and 2 of the Occupational Health Care Act; sections 7, 80 and 107 of the Constitution Act = lag om företagshälsovård 1 § 1 mom., 2 §; grundlagen 7 §, 80 §, 107 § = työterveyshuoltolaki 1 § 1 mom., 2 §; perustuslaki 7 §, 80 §, 107 § Abstract According to the health care regulations of the municipality of X, a municipal office-holder had a duty to attend medical examinations referred to in the regulations.With reference to the health care regulations, the municipality of X had ordered A, a municipal office-holder, to attend a medical examination and thereafter a further psychological examination in order to assess A's working capacity.A refused to attend the psychological examination.The municipality gave A a caution for having acted contrary to his/her official duty. The administrative court ruled that ordering a municipal office-holder to attend a medical examination interferes with that person's constitutional right to personal integrity.Therefore, such interference must be based on grounds that are prescribed in an Act of Parliament.The Occupational Health Care Act (743/1978), which was in force when the decisions regarding A's medical examinations were made, did not contain any provisions on the basis of which a municipal office-holder, whose working capacity is questioned by the employer, could have been ordered to attend a medical examination for any other reasons than those referred to in the Act.The court concluded that bearing in mind the constitutional provisions, the decisions in A's case could not be made with reference to the municipal health care regulations only.The municipality's decision to order A to attend the medical examinations as well as the decision to caution A were thus contrary to law. 6.8.2003 / 30.5.2006 / RHANSKI
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Date when decision was rendered: 31.12.2003 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 3529; 2081/3/02 Reference to source KHO 2003:103. Yearbook of the Supreme Administrative Court 2003 July-December Högsta förvaltningsdomstolens årsbok 2003 juli-december Korkeimman hallinto-oikeuden vuosikirja 2003 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2007 Pages: pp. 662-667 Subject
respect for private life,
respect for family life,
evidence,
Relevant legal provisions Sections 1a and 16-5 of the Aliens Act; section 15-1 of the Administrative Procedure Act = utlänningslag 1a § och 16 § 5 mom.; lag om förvaltningsförfarande 15 § 1 mom. = ulkomaalaislaki 1a § ja 16 § 5 mom.; hallintomenettelylaki 15 § 1 mom. ECHR-8 Abstract The Directorate of Immigration had rejected A's application for a permanent residence permit on the grounds that there had been no genuine family life between A and A's Finnish spouse or that their family life had ended at the early stage of their marriage and before A had resided in Finland for two years.The administrative court did not change the decision.The Directorate of Immigration and the administrative court based their decisions on a police investigation report concerning A's family life.A was given the opportunity to read her own statement after the police investigation but could see the statements made by other witnesses only after the Directorate of Immigration had already made its decision.The administrative court had rejected A's request for an oral hearing.The Supreme Administrative Court held that there had been a procedural fault.A had not been given the opportunity to comment on evidence that had affected the decision, as required by section 15-1 of the Administrative Procedure Act.The case was returned to the Directorate of Immigration for a new consideration.In its decision the administrative court held that the decision of the Directorate of Immigration did not violate A's right to private and family life as provided for in Article 8 of the ECHR.The Supreme Administrative Court did not refer to specific human rights provisions. 21.4.2004 / 3.7.2009 / RHANSKI
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Date when decision was rendered: 5.12.2003 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 3010; R2002/664 Reference to source KKO 2003:119. 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: 734-748 Subject
respect for private life,
respect for correspondence,
lawyers,
limitations of rights and freedoms,
Relevant legal provisions Chapter 4, section 2-2 of the Coercive Measures Act; Chapter 17, section 23-1-4 of the Code of Judicial Procedure; section 10 of the Constitution Act = tvångsmedelslagen 4 kapitel 2 § 2 mom.; rättegångsbalken 17 kapitel 23 § 1 mom. 4 punkten; grundlagen 10 § = pakkokeinolaki 4 luku 2 § 2 mom.; oikeudenkäymiskaari 17 luku 23 § 1 mom. 4 kohta; perustuslaki 10 §. ECHR-6; ECHR-8 Abstract A was suspected of an economic offence.In the pretrial investigation some documents had been confiscated from A, among them correspondence between A and his lawyer in Spain.The correspondence dealt with financial transactions, but it had not been claimed that it would have had anything to do with the case against A.The issue here was whether the documents could be confiscated.According to Chapter 17, section 23-1-4 of the Code of Judicial Procedure, counsel shall not testify in respect of what the client has entrusted to him/her for the pursuit of the case, unless the client consents to such testimony.In addition, the Coercive Measures Act prescribes that a document may not be confiscated or used as evidence, if it contains information covered by the prohibition in the above section of the Code of Judicial Procedure.The Supreme Court noted that section 23-1-4 was open to various interpretations.Having reviewed a number of other relevant provisions in national law, the Bill of Rights in the Constitution and the ECHR, the Court chose a literal interpretation of the provision.The prohibition was to be interpreted restrictively to the effect that it only referred to the actions of counsel in a court or administrative procedure which was pending or to be initiated. In his appeal to the Supreme Court, A referred to Article 8 of the ECHR and the cases of Campbell v. the United Kingdom (Publications of the European Court of Human Rights, Series A, No. 233) and Niemietz v.Germany (Publications of the European Court of Human Rights, Series A.No. 251).The Supreme Court noted that A's case dealt with slightly different issues than the cases A was referring to.The Court then discussed Article 8-2 of the ECHR and the possibility of limitations of the right to private live, provided that such limitations were in accordance with the law and necessary in a democratic society for the prevention of crime or for the protection of the rights and freedoms of others.The Court pointed out that the European Court of Human Rights has emphasized the protection of confidentiality between counsel and client especially in connection with the right to a fair trial.Taking this into account, it could be concluded from the limitations clause in Article 8-2 that a state may authorize by means of national legislation an interference in the correspondence between counsel and client, if the confiscated documents have no connection with a trial which is pending or to be initiated soon.Hence, in the Court's view the ECHR did not require an expansive interpretation of section 23-1-4.The Court reached the same conclusion when discussing the protection of private life in section 10 of the Constitution Act.The Supreme Court held that the documents referred to in A's case could be confiscated and used as evidence. Two justices of the Supreme Court took a different view.As section 23-1-4 was open to various interpretations, the court should choose an interpretation which favours the protection of fundamental rights.The justices referred to Articles 6 and 8 of the ECHR and to the decisions of the European Court of Human Rights in the cases of Niemietz (see above), Botka and Paya v.Austria (decision of 29 March 1993, inadmissible), B.R. v.Germany (decision of 23 October 1997, inadmissible) and Tamosius v. the United Kingdom (decision of 19 September 2002, inadmissible).They found that the European Court of Human Rights had paid special attention to the facts whether the confiscation order was specified and limited and whether national legislation contained provisions on procedure by which it could be secured that confidential information between counsel and client was not disclosed without a reasonable cause.In the justices' view these requirements were not met in A's case.They concluded that the documents should not have been confiscated. See also the case of Sorvisto v.Finland (Application no. 19348/04), judgment of the European Court of Human Rights, 13 January 2009. 21.4.2004 / 14.1.2009 / RHANSKI
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Date when decision was rendered: 26.3.2004 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 0687; R2003/614 Reference to source KKO 2004:30. 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: 183-193 Subject
freedom of expression,
respect for private life,
respect for family life,
Relevant legal provisions Chapter 17, section 24-2 of the Code of Judicial Procedure; section 16 of the Act on the Exercise of Freedom of Expression in Mass Media; section 12 of the Constitution Act = rättegångsbalken 17 kapitel 24 § 2 mom.; lag om yttrandefrihet i masskommunikation 16 §; grundlagen 12 § = oikeudenkäymiskaari 17 luku 24 § 2 mom.; laki sananvapauden käyttämisestä joukkoviestinnässä 16 §; perustuslaki 12 §. ECHR-8; ECHR-10 Abstract An anonymous writer had published a text on the Internet.Later, publishing house X published an edited version of the same text.The author used a pseudonym.B claimed that parts of the Internet publication constituted libel and asked the police to investigate the matter.The managing director of the publishing house, A, was heard as a witness.The police asked the court of first instance to order A to disclose the identity of the author of the Internet publication.A refused, referring among other things to the protection of journalistic sources as provided for in Chapter 17, section 24-2 of the Code of Judicial Procedure.Both the court of first instance and the court of appeal ruled that section 24-2 was explicitly concerning periodicals, not books or Internet publications.The court of appeal also assessed the case in the light of Article 10 of the ECHR and the Constitution Act, comparing the protection of private life with freedom of expression and discussing also the possibility of restrictions to these rights.It concluded that the statements concerning B made in the Internet publication may have caused considerable damage to B's reputation.Therefore, B's need to find out the author of the libellous text was necessary and constituted justified grounds to restrict A's freedom of expression.The Supreme Court pointed out that in the light of the Constitution Act and the ECHR it was not clear whether section 24-2 could be interpreted literally so as to apply to periodicals only.With reference to the cases of Goodwin v. the United Kingdom (judgment of 27 March 1996, Reports of Judgments and Decisions 1996-II, pp. 483 518) and Roemen and Schmit v.Luxembourg (judgment of 25 February 2003, Reports of Judgments and Decisions 2003-IV), the Supreme Court noted that the European Court of Human Rights has emphasised the importance of the protection of journalistic sources for freedom of expression.Furthermore, the Supreme Court took account of the fact that Article 10 of the ECHR does not distinguish between various forms of expression.According to the case law of the European Court of Human Rights, obligations pertaining to freedom of expression cover in principle all communication regardless of its form.The Supreme Court gave as an example the case of Müller and Others (judgment of 24 May 1988, Publications of the European Court of Human Rights, Series A, Vol. 133).On the other hand, freedom of expression under Article 10 of the ECHR may be subject to restrictions, and therefore the protection of journalistic sources may be restricted if necessary for the protection of the rights of others, for example, in order to solve a serious crime.The Supreme Court concluded that despite this possibility of national discretion, no distinction should be made between various forms of communication when assessing the extent of the protection of journalistic sources.The Supreme Court then drew attention to the fact that the circumstances had changed since the court of appeal gave its decision in this case.The new Act on the Exercise of Freedom of Expression in Mass Media (460/2003) had entered into force.At the same time, Chapter 17, section 24-2 of the Code of Judicial Procedure had been amended.Through the new provisions the protection of journalistic sources was expanded to cover all forms of communication equally.According to the new Act, the publisher of a message provided to the public is entitled to maintain the confidentiality of the source of information in the message.The amended section 24-2 provides that as a witness the publisher of a message has a right to refuse to answer the question as to who has given the information which the message is based on or any question which cannot be answered without disclosing the information source.The transitional provisions of the new Act do not restrict the application of the Act to messages published after the entry into force of the Act only.The Supreme Court concluded that the Act was thus applicable to A's case and that A could not be obligated to disclose the author of the Internet publication.One concurring justice of the Supreme Court found that even before the entry into force of the new Act and the amendment of the Code of Judicial Procedure, section 24-2 could on the basis of the Constitution Act and Article 10 of the ECHR be interpreted expansively to cover not only periodicals but also books and other publications. 22.4.2005 / 22.4.2005 / ASADINMA
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Date when decision was rendered: 21.12.2004 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 2998; S2004/1008 Reference to source KKO 2004:129. Decisions of the Supreme Court 2004 II July-December Avgöranden av Högsta domstolen 2004 II juli-december Korkeimman oikeuden ratkaisuja 2004 II heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2005 Pages: pp. 821-835 Subject
respect for private life,
respect for family life,
children,
kidnapping,
right to be heard,
Relevant legal provisions section 46 of the Child Custody and Right of Access Act; sections 21 and 33-3 of the Act on the Implementation of the Child Custody and Right of Access Act; section 6-3 of the Constitution Act = lag angående vårdnad om barn och umgängesrätt 46 §; lag om verkställighet av beslut beträffande vårdnad om barn och umgängesrätt 21 § och 33 § 3 mom.; grundlagen 6 § 3 mom. = laki lapsen huollosta ja tapaamisoikeudesta 46 §; laki lapsen huoltoa ja tapaamisoikeutta koskevan päätöksen täytäntöönpanosta 21 § ja 33 § 3 mom.; perustuslaki 6 § 3 mom. Convention on the Civil Aspects of International Child Abduction (1980); CRC-12; ECHR-8 Abstract With reference to the Convention on Child Abduction, the Supreme Court had ordered the mother X, who resided in Finland, to return the two children, aged 13 and 10, to their father Y in the United States where the children had their habitual residence.In its decision, the Court found that the children's objection to being returned did not prevent their return to the United States in this case (decision of 5 August 2004, KKO 2004:76).For the enforcement of the Supreme Court decision the court of first instance ordered the bailiff to fetch the children.X appealed against the measure, claiming that the children did not want to return to the United States and that the bailiff had failed to take into account the views of the children.The Supreme Court noted that the Child Custody Act gives a bailiff in some cases a possibility to assess whether the child's objection should be taken into account when enforcing a return order.However, the bailiff's discretion is limited if the child's views have already been heard and the matter been decided by the court which issued the return order.With reference to the judgment of the European Court of Human Rights in the case of Sylvester v.Austria (judgment of 24 April 2003), the Supreme Court ruled that only a change in the relevant facts may exceptionally justify the non-enforcement of a return order, in particular if the child's ability to independent discretion has clearly developed or the child can put forth pertinent new grounds for his or her refusal.A repeated reassessment of the child's views tends to delay the enforcement of the return order, and this is against the main purpose of the Convention on Child Abduction, namely the prompt return of abducted children to the state of their habitual residence.The Court also noted that the European Court of Human Rights has in several cases found a breach of the right to family life owing to the failure of authorities to take adequate and effective measures to enforce a return order (e.g., Sylvester v.Austria mentioned above and Ignaccolo-Zenide v.Romania, judgment of 25 January 2000, Reports of Judgments and Decisions 2000-I).The Court took note of the fact that X had tried to prevent the enforcement of the return order by hiding the children.She had also brought the case to the attention of the media and it had been reported extensively.In the Court's opinion, there was reason to doubt that X through her actions had tried to influence the children in forming their views, and under the circumstances it was not possible to find out the genuine views of the children.Since the return order was issued no specific new reasons had emerged on the basis of which the children's objection to their return should have been assessed differently from the assessment made by the Supreme Court in August 2004.The Supreme Court also found that an additional hearing of the children was not necessary on the basis of the Convention on the Rights of the Child either.The Court ruled that the enforcement of the return order is to be completed and the children are to be returned to the United States.One concurring justice referred in particular to the Convention on the Rights of the Child and section 6-3 of the Constitution Act which prescribes that children shall be allowed to influence matters pertaining to themselves.In his opinion, a child has a right to be heard also in the enforcement of the return order, if possible.Hearing a child does not mean that the child has a right to a final decision in the matter.The concurring justice found that the children should have been heard by the Supreme Court in this case, irrespective of whether the grounds for their objection to return would in fact prevent their return or not. 25.4.2005 / 2.6.2006 / RHANSKI
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