AS TO THE ADMISSIBILITY OF
Application No. 31414/96
by Andrei KARASSEV and family
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 5 May 1995 by
Andrei KARASSEV and family against Finland and registered on 7 May 1996
under file No. 31414/96;
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 10 June 1996 and the comments by the applicants in reply
dated 26 June 1996;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is an entrepreneur, born in 1955. The second
applicant, Mrs Natalia Karasseva, is his wife. She was born in 1954.
The third and the fourth applicants, Juri and Pasi Karassev, are their
children. Juri was born in 1983 and Pasi in 1992. All except Pasi were
born in the former Soviet Union and were citizens of that country. They
are currently resident at Poitsila in Finland.
The facts of the case, as submitted by the parties, may be
summarised as follows.
The first three applicants arrived in Finland from the then
Soviet Union on 20 August 1991, holding tourist visas valid from 3 to
21 August 1991. On the last-mentioned day they requested asylum in
Finland, referring to the attempted coup d'état in the Soviet Union.
On 11 May 1992 the Ministry of the Interior (sisäasiainministeriö,
inrikesministeriet) rejected their asylum request and found no reason
to grant them a residence permit.
On 20 July 1992 the Hollola Police District proposed that the
family be expelled. The family objected on 14 August 1992, arguing,
inter alia, that although they had been citizens of the former Soviet
Union they had not become citizens of the Russian Federation. On
4 November 1992 the Ministry of the Interior ordered their expulsion
to the Russian Federation, considering, inter alia, that they were
citizens of the former Soviet Union with no such ties to Finland as
could prevent their expulsion. The Ministry also prohibited the family
from returning to Finland or any other Nordic country during a period
of two years.
The family appealed to the Supreme Administrative Court (korkein
hallinto-oikeus, högsta förvaltningsdomstolen). On 16 December 1992 the
fourth applicant, Pasi Karassev, was born. He was not registered as
being entitled to Finnish social security benefits. The Social and
Health Board (sosiaali- ja terveyslautakunta, social- och
hälsovårdsnämnden) of Nastola refused Mrs Karasseva's request for
maternity allowance, noting that she was not a Finnish citizen and had
not been granted a residence permit in the country. No appeal was
lodged against this refusal. The municipality eventually donated to
Mrs Karasseva a maternity package with various supplies.
In August 1993 Mr Karassev obtained employment in Hamina. On
1 September 1993 the applicants were refused housing allowance, as they
had no residence permits in Finland. The applicants did not appeal.
On 23 November 1993 the Supreme Administrative Court referred the
matter back to the Ministry for renewed consideration, since the
expulsion order had not concerned Pasi Karassev.
On 4 January 1994 the Hollola Police District again proposed that
the applicants be expelled. The applicants objected and requested that
the expulsion order would at least not be enforced until Pasi
Karassev's possible entitlement to Finnish citizenship had been
examined.
In February 1994 Pasi Karassev requested to be granted Finnish
citizenship by application. On 26 April 1994 the Ministry of the
Interior found no reason to grant him a residence permit. Instead the
applicants were ordered to be expelled to the Russian Federation, as
they were all to be considered citizens of that State pursuant to its
1991 Citizenship Act which had entered into force on 6 February 1992.
In a memorandum of 2 March 1994 the Ministry recalled that the first
three applicants had arrived in Finland on a tourist visa. At the time
when the Russian Citizenship Act had entered into force, the applicants
had not been permanently residing in Finland but in the Russian
Federation. As the applicant parents had thus become citizens of the
Russian Federation, the Ministry concluded that Pasi Karassev had
obtained Russian (and thus not Finnish) citizenship by birth.
In the summer of 1994 the first applicant established his own
company in Hamina.
On 28 April 1995 the Supreme Administrative Court rejected the
applicants' appeal against the new expulsion order.
In the summer of 1995 the applicants lodged a further request for
residence permits, supported by, among others, the Chief of the Hamina
Police District. He stated that the applicants had integrated well in
Finland and that it would clearly be unreasonable to refuse them
residence permits. In three decisions of 16 August 1995 the Ministry
of the Interior nevertheless rejected the applicants' request. They
then lodged an extraordinary appeal (purkuhakemus, ansökan om
återbrytande) to the Supreme Administrative Court, requesting that the
Ministry's decisions be quashed.
On 20 October 1995 the Ministry of the Interior objected to the
applicants' request to the Supreme Administrative Court. The Ministry
referred, inter alia, to its own inquiry according to which all
applicants had received Russian citizenship.
On 1 February 1996 the Ministry of the Interior again considered
that Pasi Karassev had already acquired Russian citizenship.
Accordingly, he did not meet the conditions prescribed by section 4 of
the 1968 Citizenship Act (kansalaisuuslaki, medborgarskapslag 401/1968)
for granting him Finnish citizenship by application.
On 19 February 1996 the Supreme Administrative Court rejected the
applicants' extraordinary appeal.
On 26 February 1996 the Consular Department of the Russian
Embassy in Finland certified that none of the first three applicants
were citizens of the Russian Federation.
On 28 February 1996 Pasi Karassev's request for Finnish
citizenship by application was withdrawn. Instead he requested that his
Finnish citizenship be confirmed by the President of the Republic,
given that his parents had not acquired Russian citizenship whether by
application, declaration or acceptance. It was therefore argued that
he had received Finnish citizenship by birth, pursuant to section 1,
subsection 1 (4) of the Citizenship Act. This provision reads as
follows (as amended by Act no. 584/1984):
(translation)
"A child receives Finnish citizenship by birth:
...
... if [it] is born in Finland and does not at that time
receive citizenship of any other country."
On 26 March 1996 the Russian Embassy certified that Pasi Karassev
was not a citizen of the Russian Federation.
On 25 April 1996 the Chief of the Hamina Police District ordered
the applicants to leave Finland by 24 May 1996. The applicants
objected, referring, inter alia, to the pending request for a
confirmation of Pasi Karassev's Finnish citizenship and stating that
they lacked the necessary travel documents.
On 29 April 1996 the Russian Embassy certified that pursuant to
the Citizenship Act of the Russian Federation none of the first three
applicants were Russian citizens. Their Soviet passports were no longer
in force and were be to handed over to the Embassy. The family could
request that new documents be issued to them by the Finnish authorities
"because they were stateless". They would be unable to enter the
Russian Federation without proper documents. The Embassy finally
considered that the applicants' expulsion from Finland "was not based
on the law".
On 2 May 1996 Pasi Karassev's request for recognition of his
Finnish citizenship was supplemented with the aforementioned
certificate. Given the Russian Embassy's finding that the applicants
were not Russian citizens, the applicants contended that Pasi Karassev
must have become a Finnish citizen at his birth, since his parents had
been stateless at the time.
On 20 May 1996 the local Social Welfare Board decided to afford
Pasi Karassev municipal day care as from 1 June 1996. Juri Karassev
enjoys the right to attend a public school in Finland.
On 21 May 1996 the Chief of Police of Hamina stated that the
enforcement of the expulsion order had been postponed indefinitely.
On 26 June 1996 and 22 July 1996 the Russian Embassy again
confirmed that the applicants were not citizens of the Russian
Federation.
Under section 1 of the 1963 Sickness Insurance Act (sairaus-
vakuutuslaki, sjukförsäkringslag 364/1963; "the 1963 Act"), every
"resident" in Finland is entitled to the benefits guaranteed therein.
The interpretation of "residence" shall be decided by the Social
Insurance Institution (kansaneläkelaitos, folkpensionsanstalten)
pursuant to the 1993 Act on Social Security based on Residence (laki
asumiseen perustuvan sosiaaliturvalainsäädännön soveltamisesta, lag om
tillämpning av lagstiftningen om bosättningsbaserad social trygghet
1573/1993; "the 1993 Act"). Under the 1993 Act a person shall be
considered resident in Finland if his actual residence and home are in
that country and he is permanently and principally staying there. An
immigrant who intends to settle permanently can be considered resident
as from his arrival, provided he is holding a residence permit valid
for at least one year (should a permit be required). An asylum-seeker
is not considered a resident if the decision on the asylum request or
in the expulsion matter has not acquired legal force (section 3). An
appeal against the Social Insurance Institution's interpretation of
"residence" lies to one out of several authorities, depending on the
requested benefit which underlies the dispute (section 13).
On 7 January 1997 the Social Insurance Institution considered,
pursuant to section 3 of the 1993 Act, that the applicants were not
entitled to sickness insurance benefits under the 1963 Act. The Social
Insurance Institution noted that the applicants had arrived in Finland
as refugees. Moreover, at the time of the Social Insurance
Institution's decision the applicants had no passports or work permits
in Finland nor had they been entered in the Finnish population
register. The applicants appealed to the Social Insurance Board
(sosiaalivakuutuslautakunta, socialförsäkringsnämnden) on 10 January
1997, referring, in particular, to the fact that Pasi Karassev had been
born in Finland.
On 10 February 1997 the first three applicants were granted one-
year residence permits in Finland. The Ministry of the Interior now
considered that their citizenship was unknown. It recalled that the
attempts to enforce the expulsion order regarding the applicants had
failed. Most recently, the Russian authorities had stated, on 2 January
1997, that the applicants would not be accepted back into that country.
It appears that the first three applicants were also granted
aliens passports. Under section 5 of the 1991 Aliens Act
(ulkomaalaislaki, utlänningslag 378/1991; later amended) such a
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 issuing such a document.
On 19 February 1997 the Population Registration Authority
(maistraatti, magistraten) of Kotka stated that it could not yet deal
with Pasi Karassev's request to be registered as resident in Finland
and to be granted a personal identification number. The Registration
Authority referred to the pending citizenship proceedings and recalled
that Pasi's registration would require proof of his Finnish citizenship
or residence permit.
On 4 March 1997 Mrs Karasseva was granted a monthly child
allowance for Juri Karassev exclusively.
On 12 March 1997 the Ministry of the Interior requested the
Ministry of Foreign Affairs to seek clarification from the Russian
authorities as regards the applicants' citizenship. The Ministry of the
Interior now stated that under the terms of the Russian Citizenship
Act, citizens of the former Soviet Union who were permanently resident
within the Russian Federation's territory when the Act entered into
force were automatically granted Russian citizenship provided they did
not refuse it within a year from the entry into force of the
Citizenship Act. In the view of the Ministry of the Interior,
Mr Karassev and Mrs Karasseva had not presented evidence of such a
refusal.
According to the applicants, their objection to becoming Russian
citizens was addressed to the Russian authorities and lodged with the
Finnish Ministry of the Interior.
On 14 April 1997 the Social Insurance Institution granted
Mrs Karasseva a housing allowance as from 1 March 1997 and, on 18 April
1997, she was granted an employment allowance as from 13 March 1997.
Pasi Karassev was not taken into account when the amounts of these
allowances were fixed. On 16 May 1997 the employment allowance was
nevertheless increased, both children having been taken into account.
In a diplomatic note of 26 May 1997 the Ministry of Foreign
Affairs of the Russian Federation conveyed the reply of the Citizenship
Commission of the President of the Russian Federation to the Finnish
Ministry's question whether the applicants were citizens of the Russian
Federation. The Commission recalled that according to a 1993 Decree
citizens of the former Soviet Union who were permanently resident
abroad, who had left the country temporarily prior to 6 February 1992
and who had returned to the country after the Citizenship Act had
entered into force, were recognised as citizens of the Russian
Federation. However, the applicants had not returned. Given that they
had resided in Finland for over five years and did not intend to
return, they had, in the opinion of the Citizenship Commission, lost
those ties to the Russian Federation on the basis of which they could
be considered citizens of that State. The Citizenship Commission did
not refer to any formal refusal by the applicants to accept Russian
citizenship.
On 28 May 1997 Mrs Karasseva was also granted a child allowance
for Pasi Karassev.
In response to the applicants' appeal of 10 January 1997 the
Appellate Board for Social Insurance (tarkastuslautakunta, prövnings-
nämnden), on 16 September 1997, referred the matter back to the Social
Insurance Institution. According to the applicants, the Social
Insurance Institution has considered it unnecessary to decide this
matter separately and has referred to its decisions of 16 and 28 May
1997.
In its opinion to the President of the Republic the Supreme
Administrative Court, on 17 December 1997, considered that Pasi
Karassev had not obtained Finnish citizenship on his birth in Finland.
The Supreme Administrative Court noted, inter alia, that on their
arrival in Finland the other applicants had been citizens of the Soviet
Union. They had not lost the citizenship of the successor State (the
Russian Federation) by the time Pasi Karassev had been born. The
Supreme Administrative Court's decision discusses neither the Russian
Decree of 1993 to which the Citizenship Commission of the President of
the Russian Federation had referred in the applicants' case nor the
Russian Embassy's certificates according to which the applicants are
not Russian citizens.
On 22 December 1997 the Russian Embassy again certified that
pursuant to the Russian Citizenship Act Pasi Karassev was not and had
not been a citizen of that State.
On 23 January 1998 the President of the Republic declared, with
reference to the Supreme Administrative Court's opinion, that Pasi
Karassev was not a Finnish citizen.
The applicants have petitioned the Parliamentary Ombudsman
(eduskunnan oikeusasiamies, riksdagens justitieombudsman) concerning
the excessive length of the proceedings pertaining to Pasi Karassev's
request for a citizenship declaration. No decision has been made.
COMPLAINTS
The applicant family essentially complains about the Finnish
authorities' procrastination in regularising their stay in the country,
although the applicants remain stateless and have integrated
successfully in Finland. Moreover, as on his birth in Finland
Pasi Karassev did not receive any other citizenship through his
parents, he should have been considered a Finnish citizen by birth. The
investigation into Pasi's citizenship was excessively lengthy and the
Finnish authorities did not explain why, in the applicants' case, they
arrived at a conclusion opposite to that conveyed by the Russian
authorities in respect of the applicants' citizenship. Finally, the
applicants refer to their precarious situation in respect of the
Finnish social security system. Not holding valid residence permits,
they were not entitled to certain health services and benefits. This
situation allegedly prevails in respect of Pasi Karassev.
The applicants invoke Articles 6, 8 and 14 of the Convention and
Article 3 of Protocol No. 4 to the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 May 1995 and registered on
7 May 1996.
On 17 May 1996 the Rapporteur decided to request certain
information from the respondent Government, pursuant to Rule 47 para.
2 (a) of the Rules of Procedure.
Information was submitted by the Government on 10 June 1996.
Comments in reply were submitted by the applicants on 26 June 1996.
THE LAW
The applicants essentially complain about the Finnish
authorities' procrastination in regularising their stay in the country
and the resultant effects on their entitlement to various benefits.
Moreover, in spite of the views obtained from the Russian authorities
on the applicants' status under the Russian Citizenship Act, the
Finnish authorities, after a lengthy investigation and without
providing sufficient reasons, refused to consider Pasi Karassev a
Finnish citizen by birth. They invoke Articles 6, 8 and 14
(Art. 6, 8, 14) of the Convention and Article 3 of Protocol No. 4
(P4-3) to the Convention.
1. The Commission has first examined the complaints under Articles
8 and 14 (Art. 8, 14) of the Convention in so far as they have been
brought by the first three applicants. Article 8 (Art. 8) 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."
Article 14 (Art. 14) reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or
other status."
(a) As regards the first three applicants' allegedly uncertain right
of abode in Finland, 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).
The Commission notes that on 11 January 1996 the respondent
Government stated that, should the Russian authorities not agree to
receive the applicants into that country, the expulsion order would not
be enforced. Instead that order would be reconsidered, as would the
question whether to grant the applicants residence permits. The
Commission furthermore notes that the deportation order concerning the
applicants was not quashed but left unenforced. In February 1997 the
first three applicants were granted one-year residence permits and
there is no indication that these have not been prolonged. In these
circumstances the mere expulsion threat to which the first three
applicants have been subjected is not sufficient to raise an issue
under Article 8 (Art. 8) of the Convention.
The Commission arrives at the same conclusion in so far as the
first three applicants complain, on the one hand, about the refusal to
consider Pasi Karassev a Finnish citizen by birth and, on the other
hand, about those proceedings in themselves.
Finally, in so far as the first three applicants complain that
they have not been entitled to Finnish social security benefits, the
Commission would recall that neither Article 8 (Art. 8) nor any other
provision of the Convention or its Protocols expressly guarantees any
right to such benefits. Moreover, it transpires from the file that
these applicants have in fact been entitled to various benefits.
In the aforementioned circumstances the Commission cannot find
that the first three applicants' past or present situation in Finland
discloses a lack of respect for their rights under Article 8 (Art. 8)
of the Convention. Nor can the Commission find any indication that
these applicants have been discriminated against in the enjoyment of
their rights under that provision, contrary to Article 14 (Art. 14) 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.
(b) The Commission considers that it cannot, on the basis of the
file, determine the admissibility of the aforementioned complaints in
so far as they have been made on behalf of the fourth applicant. It is
therefore necessary, in accordance with Rule 48 para. 2 (b) of the
Rules of Procedure, to give notice thereof to the respondent
Government.
2. The Commission has next dealt with the applicants' grievance
under Article 3 of Protocol No. 4 (P4-3) to the Convention. This
provision reads, in so far as relevant, as follows:
"1. No one shall be expelled, by means either of an
individual or of a collective measure, from the territory
of the State of which he is a national. ..."
The Commission notes that, apart from the fact that none of the
applicants have in effect been expelled, none of them have Finnish
citizenship. This provision is therefore inapplicable in the instant
case.
It follows that this part of the application is incompatible
ratione materiae with the Convention within the meaning of Article 27
para. 2 (Art. 27-2).
3. Finally, the Commission has examined the applicants' grievance
under Article 6 (Art. 6) of the Convention with presumably refers at
least to the length of the proceedings concerning Pasi Karassev's
entitlement to Finnish nationality. Article 6 (Art. 6) reads, in its
relevant part, as follows:
"1. In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law. ..."
The question arises whether the proceedings before the President
of the Republic relating to Pasi Karassev's request to be recognised
as a Finnish citizen by birth involved a "determination" of his "civil
rights and obligations" within the meaning of Article 6 para. 1
(Art. 6-1). For the applicability of this provision it is sufficient
that the outcome of the proceedings is "decisive for private law rights
and obligations (see, e.g., Eur. Court HR, H. v. France judgment of 24
October 1989, Series A no. 162, p. 20, para. 47).
Even assuming that applicant Pasi Karassev could arguably claim
a "right" to Finnish citizenship, the Commission cannot find that this
right was "civil", given that it was not, as such, of a pecuniary or
otherwise of a private law character (cf. No. 19583/92, Dec. 20.2.95,
D.R. 80-A, pp. 38, 45). The Commission reaches the same conclusion as
regards any "obligation" which might have been determined by the
citizenship proceedings.
It follows that this part of the application is likewise
incompatible ratione materiae with the Convention within the meaning
of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission,
DECIDES TO ADJOURN the examination of the fourth
applicant's complaints concerning his right to respect for
his private life and his right not to be discriminated
against; and
unanimously,
DECLARES INADMISSIBLE the remainder of the application.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy