AS TO THE ADMISSIBILITY OF
Application No. 31934/96
by Vladimir HÄRGINEN
against Finland
The European Commission of Human Rights sitting in private on
14 April 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 May 1996 by
Vladimir HÄRGINEN against Finland and registered on 17 June 1996 under
file No. 31934/96; Having regard to the report provided for in Rule
47 of the Rules of Procedure of the Commission;
Having regard to the information submitted by the respondent
Government on 21 July 1996 and 21 April 1997, the applicant's comments
in reply submitted on 20 August 1996 and 16 May 1997 and the
information submitted by the applicant on 21 January 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1955, was a citizen of the former Soviet
Union and currently considers himself stateless. He is resident in
Finland. Before the Commission he is represented by Mr Hannu Kokko, a
lawyer in Vantaa.
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant arrived in Finland in June 1991 after having
resided permanently in Tallinn in Estonia, then under Soviet control.
He was granted a residence permit for one year, as his wife (also a
citizen of the former Soviet Union) was residing in Finland, holding
a permanent permit to that effect. The applicant's residence permit was
later extended until June 1994.
It appears that a child was born to the applicant and his wife.
In 1993 the applicant was convicted in Finland of drunken driving and
related offences and was sentenced to a fine. In 1994 he was convicted
of an aggravated narcotics offence and sentenced to three years and
six months' unconditional imprisonment.
In view of the applicant's criminality his request for a
permanent residence permit in Finland was refused on 3 April 1995 and
his deportation to Estonia was ordered by the Aliens Department
(ulkomaalaisvirasto, utlänningsverket) of the Ministry of the Interior.
He was prohibited from returning to Finland during five years. Pursuant
to a Nordic Treaty the validity of this entry ban was automatically
extended to the other Nordic countries (Article 9; Finnish Treaty
Series no. 178/1958, as later amended).
Before his imprisonment the applicant apparently visited his
parents in Estonia by using his Soviet passport. That passport having
expired on 12 July 1995, he requested the Finnish Ministry of the
Interior to grant him an aliens passport. Such a passport had
apparently already been granted to his wife. Under section 5 of the
1991 Aliens Act (ulkomaalaislaki, utlänningslag 378/1991; later
amended) an aliens passport may be issued if the alien is unable to
obtain a passport from his or her country of origin or if there is
another exceptional reason for granting an aliens passport.
On 4 August 1995 the Embassy of the Russian Federation in Finland
certified that the applicant was not a citizen of the Russian
Federation. On 19 September 1995 the Estonian Consulate in Finland
certified that he was not a citizen of the Republic of Estonia and that
he could not seek Estonian citizenship as he was not permanently
resident in the country.
On 31 October 1995 the Aliens Department refused the applicant's
request for an aliens passport, noting the deportation order and his
prison sentence. The deportation order and the entry ban were upheld
by the Supreme Administrative Court (korkein hallinto-oikeus, högsta
förvaltningsdomstolen) on 10 November 1995.
On 7 February 1996 the Estonian Citizenship and Immigration
Authority certified that, on 3 July 1995, the applicant had officially
and permanently left Estonia in order to settle in Finland with his
wife and child. As a result he could not move back to Estonia without
a residence permit. Moreover, such a permit could not be granted unless
he presented a valid passport which he did not have for the time
being. In February 1996 the applicant was released from prison. On
8 October 1996 the Aliens Department noted that the Estonian
authorities had refused to receive the applicant, who no longer
fulfilled the legal requirements for residing in that country following
his departure which had been officially registered on 3 July 1995. The
Aliens Department therefore withdrew the re-entry ban and granted the
applicant an aliens passport and a residence permit until 11 September
1997. The validity of the aliens passport and the residence permit has
apparently not been prolonged. According to the applicant, the Aliens
Department has not contacted him with a view to enforcing the
deportation order.
Under another Nordic Treaty the Contracting States have
undertaken to readmit to their territory an alien who has been returned
by another Contracting State, provided he or she entered the latter
State directly from the former and without holding a valid passport or
special permit (Article 10; Finnish Treaty Series no. 17/1954, as later
amended).
COMPLAINTS
The applicant complains that although the Finnish authorities
have been unable to enforce the deportation order he remains affected
by the entry ban which prevents him from travelling to other Nordic
countries. Moreover, despite his alleged status as stateless he was
initially refused an aliens passport in Finland, which prevented him
from any travelling abroad. Initially the applicant also complained
that his right of abode in Finland remained uncertain. However, in his
submissions of 21 January 1998 he stated that it was "unlikely" that
any enforcement of the deportation order would take place, as the
Estonian authorities had refused to accept him into the country. The
applicant complains, however, that there is no guarantee that he would
be re-admitted into Finland should he travel abroad.
The applicant asserts that the aforementioned measures, taken
together, have violated his right to respect for his private and family
life and home within the meaning of Article 8 of the Convention as well
as his right to freedom of movement within the meaning of Article 2 of
Protocol No. 4.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 7 May 1996 and registered on
17 June 1996.
On 27 June 1996 the Rapporteur of the Commission decided, in
accordance with Rule 47 para. 2 (a) of the Rules of Procedure, to
request certain factual information from the respondent Government.
This information was submitted on 21 July 1996. Comments were submitted
by the applicant on 20 August 1996. On 21 April 1997 the Government
submitted further factual information on which the applicant commented
on 16 May 1997. On 10 December 1997 the Rapporteur decided to request
certain factual information from the applicant. That information was
submitted on 21 January 1998 after an extension of the time-limit fixed
for that purpose.
THE LAW
The applicant complains essentially that due to the initial
refusal of an aliens passport he was prevented from travelling abroad;
that due to the entry ban he still cannot travel to other Nordic
countries; that his right of abode in Finland has remained uncertain;
and that there is no guarantee that he would be re-admitted into
Finland should he travel abroad. He invokes Article 8 (Art. 8) of the
Convention and Article 2 of Protocol No. 4 (P4-2).
1. The Commission has first dealt with the applicant's allegedly
uncertain right of abode in Finland and the alleged impossibility for
him to re-enter Finland, should he choose to go abroad. These issues
fall to be examined under Article 8 (Art. 8) of the Convention which
reads, in so far as relevant, as follows:
"1. Everyone has the right to respect for his private and
family life, his home ...
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Commission recalls that as a matter of well-established
international law and subject to its treaty obligations, a State has
the right to control the entry, residence and expulsion of
non-nationals (see, e.g., the Abdulaziz, Cabales and Balkandali v. the
United Kingdom judgment of 28 May 1985, Series A no. 94, p. 34,
para. 67). It follows that Article 8 (Art. 8) does not guarantee to a
non-national a right to enter or remain in a particular country. Nor
can Article 8 (Art. 8) be considered to impose on a State a general
obligation to respect immigrants' choice of the country of their
matrimonial residence. Consequently, this provision does not guarantee
a right to choose the most suitable place to develop family life (see,
e.g., Eur. Court HR, Ahmut v. the Netherlands judgment of 28 November
1996, Reports of Judgments and Decisions 1996-VI, no. 24, p. 2033,
paras. 67, 71). An issue may nevertheless arise under Article 8
(Art. 8) if a person is excluded, or removed, from a country where his
close relatives reside or have the right to reside (see eg. No.
7816/77, Dec. 19.5.77, D.R. 9, p. 219; No. 9088/80, Dec. 6.3.82, D.R.
28, p. 160; No. 9285/81, Dec. 8.7.82, D.R. 29, p. 205).
The Commission notes that the deportation order concerning the
applicant has not been quashed but has simply been left unenforced. The
mere threat that he might still be deported from Finland is not
sufficient to raise an issue under Article 8 (Art. 8) of the
Convention. The Commission furthermore notes that on 21 July 1996 the
respondent Government stated that, should the Estonian authorities not
agree to receive the applicant into that country by granting him a visa
or a residence permit, the deportation order would not be enforced. In
his comments of 21 January 1998 the applicant himself indeed finds it
"unlikely" that such enforcement would take place, as the Estonian
authorities have refused to accept him into the country. The Commission
notes that at any rate it has not been argued that the applicant's wife
and child would be unable to follow him to Estonia or any other country
to which he might be deported.
As regards the alleged impossibility for the applicant to
re-enter Finland should he travel abroad, the Commission notes that the
situation in which he allegedly finds himself is a consequence of the
Finnish authorities' refusal to grant him a permanent residence permit
and their subsequent decision to order his deportation and impose a ban
on his re-entry. These decisions were triggered by the applicant's
conviction of, inter alia, an aggravated narcotics offence and his
lengthy prison sentence.
In these circumstances the Commission finds no indication that
the applicant's past or present situation in Finland discloses a lack
of respect for his rights under Article 8 (Art. 8) of the Convention.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The Commission has next dealt with the alleged violation of the
applicant's right to freedom of movement and, more particularly, his
right to leave Finland. Article 2 of Protocol No. 4 (P4-2) to the
Convention reads, in so far as relevant, as follows:
"2. Everyone shall be free to leave any country, including
his own.
3. No restrictions shall be placed on the exercise of
[this] right other than such as are in accordance with law
and are necessary in a democratic society in the interests
of national security or public safety, for the maintenance
of ordre public, for the prevention of crime, for the
protection of health or morals, or for the protection of
the rights and freedoms of others."
The Commission recalls that Article 2 para. 2 of Protocol No. 4
(P4-2-2) implies a right to leave for a country of the person's choice
to which he or she may be admitted (see No. 19583/92, Dec. 20.2.95,
D.R. 80-A, p. 38 and No. 21228/93, Dec. 24.5.95, D.R. 81-A, p. 42; both
against Finland). The Commission notes that in October 1996 the
applicant was granted an aliens passport which seems to have expired
in September 1997. At least while he was holding a valid aliens
passport the entry ban imposed on him in April 1995 did not prevent him
from leaving Finland for a country other than a Nordic country. It is
true that due to the entry ban he will not be admitted to any other
Nordic country until April 1999. Nor is there apparently any guarantee
that he would be re-admitted into Finland prior to that date, should
he travel to a non-Nordic country.
Even assuming that the situation in which the applicant has found
himself and presumably will continue to find himself until April 1999
amounts to a restriction of his right to freedom of movement within the
meaning of Article 2 para. 2 of Protocol No. 4 (P4-2-2), this
restriction can, for the reasons below, be considered justified under
Article 2 para. 3 (Art. 2-3) as to its lawfulness, aim and
proportionality.
It has not been alleged that the entry ban and the initial
refusal of an aliens passport were not "in accordance with the law".
The Commission sees no reason to differ on this point. It considers,
moreover, that the measures complained of have had a legitimate aim
such as preventing crime. As for the proportionality of the measures
in question, the Commission recalls that the entry ban was imposed
after the applicant had been convicted of, inter alia, an aggravated
narcotics offence and sentenced to over three years' unconditional
imprisonment. The initial refusal to grant an aliens passport was based
on that prison sentence and the deportation order which had been
triggered by the applicant's criminality. In these circumstances the
Commission considers that the measures complained of could reasonably
be considered necessary in a democratic society for the purpose of
pursuing the above-mentioned aim.
It follows that this part of the application must also be
rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy