AS TO THE ADMISSIBILITY OF
Application No. 23065/93
by K.D.
against Finland
The European Commission of Human Rights sitting in private on
10 March 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
Mr. H.C. KRÜGER, 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 24 November 1993
by K.D. against Finland and registered on 9 December 1993 under file
No. 23065/93;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on
10 February and 7 March 1994 and the observations in reply
submitted by the applicant on 15 and 23 February 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Kosovo-Albanian Muslim, born in 1972, and a
citizen of the Federal Republic of Yugoslavia, currently imprisoned in
Pozarevac, the Federal Republic of Yugoslavia. Before the Commission
she was initially represented by Mr. Sami Basota, and subsequently by
her sister, Ms. A. D., both resident in Kerava, Finland.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
According to the applicant, she was, on 28 July 1990, wounded by
Serbian soldiers in Prizren, Kosovo, for having been politically active
in the Kosova movement. She claims to have been hit by two bullets,
injured by a knife cut and raped by four Serbian soldiers. Having
reported the rape to the police, the applicant was brought to a
hospital for examination. The incident has been reported in a local
daily newspaper called "Rilindja" on 1 August 1990. The doctor who
examined the applicant confirmed to the newspaper that the applicant's
vagina had been filled with stones and other objects. Following the
hospital examination the applicant was apparently arrested and
imprisoned for over two years without any trial. It is further alleged
that she was subjected to torture during her detention.
After her arrest, the applicant's family (her parents and three
siblings born in 1939, 1950, 1974, 1976 and 1980, respectively)
received no news about her and left the country in 1992, assuming that
she had been killed. They entered Finland on 30 June 1992 and requested
asylum. On 12 February 1993 they were granted residence permits for
weighty humanitarian reasons until 12 February 1994, pursuant to the
1993 Act on the Exceptional Examination of Asylum Requests by Certain
Citizens of former Yugoslavia (laki 14/93 eräiden entisen Jugoslavian
kansalaisten tekemien turvapaikkahakemusten poikkeuskäsittelystä, lag
14/93 om särbehandling av asylansökningar som gjorts av vissa
medborgare i det forna Jugoslavien). It appears that their permits have
subsequently been extended pursuant to instructions issued by the
Ministry of the Interior (sisäasiainministeriö, inrikesministeriet) on
10 January 1994.
Apparently after having escaped from detention, the applicant
entered Turkey in 1992 or early 1993. In a request lodged with the
Finnish Consulate in Istanbul on 12 April 1993 the applicant requested
a two month visa in order to visit her family. This was refused by the
Consulate on 16 April 1993.
Having been contacted by the applicant in June 1993, the
applicant's family on 26 July 1993 requested that the applicant be
granted a residence permit on humanitarian grounds. The request was
supported by the Social Welfare Board (sosiaali- ja terveyslautakunta,
social- och hälsovårdsnämnden) of Kerava on 28 July 1993.
On 29 July 1993 the County Administrative Board (lääninhallitus,
länsstyrelsen) of Uusimaa requested the Aliens' Centre (ulkomaalais-
keskus, utlänningscentralen) of the Ministry of the Interior to take
urgent measures in order to permit the applicant to join her family.
The County Administrative Board considered that, although the applicant
did not fulfil the criteria for family unification, strong humanitarian
reasons supported the granting of a residence permit.
The applicant returned to the Federal Republic of Yugoslavia in
the summer of 1993, but was again arrested. Her passport was seized.
On 5 October 1993, however, the applicant re-entered Turkey and
immediately contacted the Aliens' Police. It appears, however, that she
did not lodge any formal request for permission to stay in Turkey.
On 13 October 1993 she requested a residence permit in Finland
for the purpose of joining her family. This request was considered to
include a new request for a visa to enter Finland. When filing her
request the applicant was questioned by Consulate staff about her
background. She then referred to the incidents in 1990 and her
imprisonment, as well as to her arrest and the seizure of her passport
in 1993.
The Consulate conveyed the request to the Aliens' Centre for an
opinion, which stated
(translation from Finnish):
"The Ministry ... cannot give a favourable opinion in
regard to [the applicant's] request, as [she] has reached
the age of majority and does not without particular reasons
fulfil the criteria for the unification of [family
members]. If particular reasons are later invoked, precise
documentary evidence is required of her circumstances after
she stopped living with her family. If [the applicant]
fears persecution in her home country, she can turn to the
Turkish authorities or to the ... office of the United
Nations High Commissioner for Refugees."
The request was refused by the Consulate on 27 October 1993,
having been considered under Section 18, para. 1 of the 1991 Aliens Act
(ulkomaalaislaki 378/91, utlänningslag 378/91). This decision was also
considered to cover the applicant's family's request of 26 July 1993.
On 29 November 1993 the applicant was expelled from Turkey to
Bulgaria, from where she was returned to the Federal Republic of
Yugoslavia. It appears that she lodged no formal request for permission
to stay in Bulgaria.
Following her return to the Federal Republic of Yugoslavia the
applicant was again imprisoned in the prison "Z.K.P.D." in Pozarevac,
Serbia.
Having been informed of the applicant's current imprisonment,
the Ministry for Foreign Affairs on 25 February 1994 ordered the
Finnish Embassy in Belgrade to issue her with a residence permit. On
the same day the Aliens' Centre of the Ministry of the Interior
notified the Embassy of its approval of the granting of a residence
permit to the applicant.
On 1 March 1994 the Ministry for Foreign Affairs was informed by
the Finnish Embassy that, according to authorities of the Federal
Republic of Yugoslavia, the applicant had been imprisoned on
8 January 1994, having been convicted of robbery or theft. The Embassy
had further been informed that she will be released at the latest on
8 January 1995, on which date she will be free to go to Finland. In the
light of this information the Finnish Ministry for Foreign Affairs
requested the Embassy to obtain further information from the Ministry
of Justice of the Federal Republic of Yugoslavia concerning the
applicant's conviction and release.
Relevant domestic law
(a) General provisions
Chapter 1, section 1, subsection 1, of the 1991 Finnish Aliens
Act (ulkomaalaislaki 378/91, utlänningslag 378/91) provides that this
Act, any provisions of a lower rank and international treaties by which
Finland is bound shall be applied to aliens' entry into and departure
from Finland. The preparatory works to the Act underline the binding
character of applicable human rights treaties and emphasise that these
treaties shall be duly considered in the application of domestic law
(Bill No. 47/90, p. 7).
Under Sections 17 and 18 of the Aliens Act a temporary residence
permit may be granted by a Finnish diplomatic representation or
consulate, inter alia, if a close relative of the alien is resident in
Finland, if the alien has another tie to Finland or if a weighty
humanitarian reason or other particular circumstances warrant the
granting of such a permit (Section 18, paras. 1 and 4).
According to a circular issued by the Ministry for Foreign
Affairs on 9 September 1993, the Ministry of the Interior may on
request issue a residence permit to an alien residing abroad, provided
he is a family member of an alien who has been granted asylum or a
residence permit in Finland for protective or humanitarian reasons.
An alien who considers that his rights have been infringed by a
decision made by the Ministry of the Interior regarding a refusal of
entry, a deportation, a prohibition to enter or leave the country, a
revocation of an alien's passport, refugee travel document, visa or a
residence permit, or a refusal to issue a permanent residence permit,
may appeal to the Supreme Administrative Court (korkein hallinto-
oikeus, högsta förvaltningsdomstolen) within fourteen days of
notification of the decision. A refusal of a fixed-term residence
permit which has been requested outside Finland is not subject to
appeal (Chapter 8, Section 58, as amended by Act no. 639/93, and
Section 59).
(b) Special legislation concerning certain asylum seekers
The 1993 Act on the Exceptional Examination of Asylum Requests
by Certain Citizens of former Yugoslavia, which entered into force on
20 January 1993, is applicable to those citizens of "former Yugoslavia"
who have entered Finland and requested asylum there prior to
22 July 1992, but whose requests had not been decided on that date. The
Act prescribes that the asylum requests shall not be examined for the
time being and that the persons to whom the Act applies shall be given
a residence permit. An exception is made for persons who have committed
certain offences.
Under instructions issued on 10 January 1994 by the Ministry of
the Interior those who have been granted residence permits in
accordance with the 1993 Act shall, in view of their ties to Finland
and in the absence of particularly weighty reasons, have their permits
extended for another year. Exceptions are only to be made if the person
has committed certain crimes.
(c) Remedies under domestic law
According to Section 93, subsection 2, of the 1919 Constitution
Act (Suomen hallitusmuoto 94/19, Regeringsform för Finland 94/19),
anyone who has suffered an infringement of his rights, or damage,
through an illegal act or negligence on the part of a civil servant,
is entitled to demand that the civil servant be convicted and held
liable for damages, or to report him for the purposes of having charges
brought against him. Under the 1974 Tort Liability Act (vahingon-
korvauslaki 412/74, skadeståndslag 412/74), proceedings for damages may
also be instituted against the State for the actions of civil servants
(Chapters 3 and 4).
Petitions may be lodged with the Parliamentary Ombudsman
(eduskunnan oikeusasiamies, riksdagens justitieombudsman) and the
Chancellor of Justice of the Council of State (valtioneuvoston
oikeuskansleri, justitiekanslern i statsrådet). Both can order charges
to be brought against an official.
(d) The Aliens' Ombudsman
The 1991 Act on the Aliens' Ombudsman (laki 446/91 ulkomaalais-
valtuutetusta, lag 446/91 om utlänningsombudsmannen) prescribes that
the Ombudsman shall be heard in matters specified in the Aliens Act.
Under that Act the Ombudsman shall be heard by the Ministry of the
Interior in regard to asylum requests and deportations (Chapter 5,
Section 33, and Chapter 6, Section 42).
COMPLAINTS
The applicant complains of an alleged lack of respect for her
family life shown by Finnish authorities, as she was not allowed to be
reunited with her family in Finland. She invokes Articles 2, 3, 4, 5,
6, 8 and 13 of the Convention, Article 2 of Protocol No. 1, Articles
1, 2 and 4 of Protocol No. 4, as well as Article 1 of Protocol No. 7.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 November 1993 and registered
on 9 December 1993.
The application was originally directed against three Contracting
States: Bulgaria, Finland and Turkey. In respect of the Governments of
Bulgaria and Turkey the applicant initially complained of her imminent
expulsion from Turkey to Bulgaria, from where she feared being returned
to the Federal Republic of Yugoslavia, where she would risk detention
and rape.
On 9 December 1993 the Commission decided to request the
respondent Governments to submit information on matters connected with
the application. It further decided, pursuant to Rule 36 of the
Commission's Rules of Procedure, to indicate to the Bulgarian
Government that, should the applicant be in that country, it would be
desirable in the interests of the parties and the proper conduct of the
proceedings not to expel her to the Federal Republic of Yugoslavia
until the Commission had had an opportunity to examine the application.
Information was submitted by the Governments of Bulgaria and
Finland on 22 December 1993, and by the Government of Turkey on
3 January 1994.
On 13 January 1994 the applicant withdrew her complaints against
Bulgaria and Turkey.
On 20 January 1994 the Commission decided to request the
Government of Finland to submit written observations on the
admissibility and merits of the application.
The Government's observations were submitted on 10 February and
7 March 1994. The applicant submitted comments in reply on 15 and
23 February 1994.
REASONS FOR THE DECISION
In view of the clear intention of the respondent Government to
issue the applicant with a residence permit, which the Commission views
as an undertaking, it finds, pursuant to Article 30 para. 1 (c) of the
Convention, that it is no longer justified to continue the examination
of her petition. It furthermore finds no special circumstances
regarding respect for Human Rights, as defined in the Convention, which
require the continuation of the examination of the application.
The Commission finally recalls that under Article 30 para. 3 of
the Convention it may decide to restore a petition to its list of cases
if it considers that the circumstances justify such a course.
For these reasons, the Commission, by a majority,
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy