AS TO THE ADMISSIBILITY OF
Application No. 27893/95
by Ossi Juhani TAURÉN
against Finland
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 8 June 1995 by
Ossi Juhani Taurén against Finland and registered on 19 July 1995 under
file No. 27893/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Finnish citizen, born in 1951 and resident in
Helsinki, Finland. He is a lawyer.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant had his own law firm from 1977. In July 1987 while
on a business trip in Hungary he suffered an attack of cerebral
haemorrhage and had to stay in hospital there until 26 July 1987 after
which he returned to Finland. He was on sick leave until
16 August 1987. Because of his illness he was unable to attend meetings
concerning three bankrupt estates for which he was a trustee. Another
trustee maintained that the applicant had claimed excessive fees and
threatened to report the matter to the police. The applicant considered
that a police investigation would be too trying for his health and left
Finland on 28 July 1987 intending to return after recovering from his
illness.
The applicant was nevertheless reported to the police and he
decided not to return until the public attention the matter had aroused
had diminished.
The applicant returned to Finland on 26 August 1993 of his own
free will. He had informed the authorities of his return. A warrant for
his remand for trial had been issued and he was detained on remand as
soon as he entered Finland.
The applicant was charged with eleven counts of aggravated
embezzlements. He pleaded not guilty on all counts. Following a number
of court sessions the applicant was released from detention on remand
on 5 October 1993.
While the criminal case against him was pending the applicant
applied, on 10 December 1993, for a five-year passport at the Helsinki
Police Authority. He later submitted a letter in which he alleged that
he needed a passport to make a living abroad because it was not
possible in Finland during the criminal proceedings. He referred to his
returning to Finland of his own accord, to the length of the
proceedings and the fact that his personal presence at the trial was
no longer required. He further maintained that there was no danger of
him travelling abroad to evade being sentenced or to evade the
enforcement of a sentence. He annexed statements by persons willing to
use his services abroad. The applicant's counsel also sent the Public
Prosecutor a letter informing him of the importance of a passport for
his client's profession and living.
In his statement to the Helsinki Police Authority the Public
Prosecutor did not support the issuing of a passport to the applicant.
In its decision of 10 January 1994 the Helsinki Police Authority
rejected the application in accordance with section 9,
subsection 1 (1), and section 10, subsections 1 and 2 (1), of the
Passport Act (passilaki, passlag, No. 642/1986, later amended). It
reasoned the decision stating that the applicant was suspected of and
charged with a crime punishable with more than one year's imprisonment.
The Police Authority had regard to the applicant's account of his need
to travel. According to the Passport Act, as in force at the
relevant time, a passport may be refused if a well-founded accusation
of an offence punishable with more than one year's imprisonment has
been made to the police or prosecutor against the person in question
or if the person in question is wanted for or charged with such an
offence (section 9, subsection 1). When considering the issuing of a
passport to a person described in section 9, subsection 1, regard must
be had to the importance of travelling for his or her family relations,
health, living, profession and other circumstances (section 10,
subsection 1). Furthermore, when considering the issuing of a passport
regard must be had to whether there is well-founded cause to suspect
that the person in question will travel abroad to evade being sentenced
or to evade the enforcement of a sentence (section 10, subsection 2
(1)).
On 16 March 1994 the applicant appealed to the County
Administrative Court (lääninoikeus, länsrätten) of Uusimaa renewing his
earlier arguments.
In its observations the Police Authority stated that at the time
the passport application was lodged the applicant was charged with and
was awaiting trial for aggravated embezzlements punishable with more
than one year's imprisonment and that he had been in hiding for five
years to avoid the proceedings.
On 16 June 1994 the County Administrative Court upheld the
decision of the Police Authority stating that the applicant had been
charged with aggravated embezzlements, i.e. of a crime which can be
punished with more than one year's imprisonment. Furthermore it noted
that the applicant had given an account of the importance of travelling
for his living and profession. However, before he had been apprehended
he had been abroad while wanted for crimes. Taking this into
consideration, the Court deemed that there was well-grounded cause to
suspect that he might travel abroad in order to evade being sentenced
or to evade the enforcement of a sentence.
On 28 July 1994 the applicant appealed to the Supreme
Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-
domstolen) renewing his arguments. Furthermore he argued that he was
presently unemployed. The Public Prosecutor's statement, dated
4 November 1994, according to which the criminal proceedings did not
prevent the issuing of a passport to the applicant, was submitted to
the Supreme Administrative Court.
On 19 December 1994 the Supreme Administrative Court upheld the
decision of the County Administrative Court.
On 6 September 1995 the Helsinki District Court (käräjäoikeus,
tingsrätten) found the applicant guilty on one count of aggravated
embezzlement but not guilty on the remaining ten counts. The Court
sentenced him to nine months' suspended imprisonment.
On 19 September 1995 the applicant received a passport valid for
ten years.
COMPLAINTS
1. The applicant complains that the authorities' refusal to issue
a passport violated his right to freedom of movement. He submits that
even though the refusal was formally in accordance with domestic law
the interference by the authorities was not justified. He invokes
Article 2 of Protocol No. 4 to the Convention.2. The applicant further
complains, under Article 6 para. 1 of the Convention, that he was
denied a fair hearing in the proceedings concerning the issuing of a
passport. He refers to the evaluation of evidence and maintains in
particular that although the possibility of escaping had been dealt
with in the criminal proceedings, the administrative authorities dealt
with the matter by administrative procedure without an oral hearing and
came to the opposite conclusion.
3. The applicant complains, under Article 6 para. 2 of the
Convention, that the County Administrative Court adopted a view in
advance of the criminal case when refusing him a passport and that the
Supreme Administrative Court upheld the decision. In his opinion this
violated his right to be presumed innocent.
4. The applicant also complains, under Article 14 of the Convention,
that the passport matter was dealt with contrary to prevailing practice
and that he was discriminated against on the ground of his being
suspected of having committed a crime. He alleges that in several cases
people who had already been sentenced to long terms of imprisonment had
not had their passports cancelled. In this connection he maintains that
the refusal was a disproportionate measure in a democratic society,
since the authorities could have issued a passport for a shorter
period.
5. Under Article 1 of Protocol No. 1 to the Convention the applicant
complains that the authorities' refusal to issue a passport prevented
him from using his professional and intellectual skills.
6. Finally, the applicant refers to article F (2) of the Treaty of
Maastricht 1992 as well as articles 8a, 48 and 52 of the Treaty of Rome
1957 and claims that they have also been violated. He submits that
these provisions are interrelated with the Convention provisions in
this case.
THE LAW
1. The applicant complains that the refusal to issue a passport,
although formally in accordance with domestic law, constituted an
unjustified interference with his right to freedom of movement within
the meaning of Article 2 of Protocol No. 4 (P4-2) to the Convention,
the relevant part of which reads as follows:
"2. Everyone shall be free to leave any country, including
his own.
3. No restrictions shall be placed on the exercise of
these rights 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 notes that Article 2 para. 2 of Protocol No. 4
(P4-2-2) provides that everyone shall be free to leave "any country",
which implies a right to leave for such a country of the person's
choice to which he may be admitted (see No. 19583/92, Dec. 20.2.95,
D.R. 80-A, pp. 38, 43-44 and No. 21228/93, Dec. 24.5.95, D.R. 81-A,
pp. 42, 46-47). The Commission therefore considers that the passport
refusal interfered with the applicant's freedom guaranteed by this
provision. It remains to be examined whether the interference was
justified under paragraph 3 of Article 2 (Art. 2-3).
The Commission finds that the passport refusal was in accordance
with Finnish law. Furthermore it considers that the refusal had the
legitimate aim of maintaining "ordre public".
As regards the question whether the refusal was proportionate to
the above-mentioned aim, the Commission considers that the Contracting
States are entitled to a wide margin of appreciation in the maintenance
of ordre public in their respective countries. In the present case the
Commission recalls that the refusal was based on the fact that at the
time the applicant lodged his passport application he was charged with
certain crimes and that he had tried to avoid the proceedings by
staying abroad. The Commission therefore concludes that in the
particular circumstances of the applicant's case the refusal to issue
a passport to him could reasonably be considered necessary in a
democratic society for the purposes of pursuing the above-mentioned
aim.
Accordingly, there is no appearance of a violation of Article 2
para. 2 of Protocol No. 4 (P4-2-2) to the Convention.
It follows that the applicant's complaints, as submitted under
Article 2 of Protocol No. 4 (P4-2) to the Convention, must be rejected
as being manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
2. The applicant complains that he was denied a fair hearing in the
proceedings concerning the issuing of a passport. He refers to the
evaluation of evidence in the case and submits, in particular, that
despite the District Court's conclusion, concerning the possibility of
his absconding abroad, following an oral hearing in the case, the
administrative authorities without holding an oral hearing came to a
different conclusion. He invokes Article 6 para. 1 (Art. 6-1) of the
Convention, which, in so far as relevant, reads as follows:
"In the determination of his civil rights ..., everyone is
entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established
by law. ..."
The Commission must ascertain whether Article 6 para. 1
(Art. 6-1) of the Convention is applicable in the present case and
whether there arose an issue concerning a "civil right" which can be
said, at least on arguable grounds, to be recognised under domestic law
(e.g. Eur. Court HR, Zander v. Sweden judgment of 25 November 1993,
Series A no. 279-B, p. 38, para. 22). The term "right" must be given
an autonomous interpretation under Article 6 para. 1 (Art. 6-1) of the
Convention (e.g. Eur. Court HR, König judgment of 28 June 1978, Series
A no. 27, pp. 29-30, para. 88, see also No. 19583/92, op. cit., p. 38
at p. 45).
Even assuming that the applicant could arguably claim, as a
citizen of Finland, a personal and individual "right" to a Finnish
passport, the Commission considers that this right was not civil, given
that it was not, as such, of a pecuniary or otherwise of a private law
character (cf. No. 19583/92, op. cit., p. 38 at p. 45 with further
references). Accordingly, Article 6 para. 1 (Art. 6-1) does not apply.
It follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2).
3. The applicant complains under Article 6 para. 2 (Art. 6-2) of the
Convention that the County Administrative Court adopted a stance in the
criminal case and that its decision was upheld. He claims that it
violated his right to be presumed innocent.
Article 6 para. 2 (Art. 6-2) reads as follows:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
The Commission notes that the County Administrative Court's
decision, which the Supreme Administrative Court upheld, was based on
the facts that the applicant was charged with certain crimes and that
he had remained abroad while wanted for crimes in Finland. The
Commission further notes that these courts did not give any statement
on whether the applicant was guilty of the crimes at issue.
Therefore, this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant complains that in the matter concerning the issuing
of a passport he was subject to discrimination as compared with persons
convicted of crimes and sentenced to long terms of imprisonment whose
passports have not been cancelled. He also maintains that the refusal
was a disproportionate measure, since the authorities could have issued
a passport for a shorter period. The applicant invokes Article 14
(Art. 14) of the Convention, which provides 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."
The Commission finds no substantiation of the applicant's
allegation that he has been discriminated against contrary to
Article 14 (Art. 14) of the Convention.
Accordingly, 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.
5. The applicant complains under Article 1 of Protocol No. 1 (P1-1)
to the Convention that the refusal to issue a passport to him prevented
him from using his professional and intellectual skills.
Article 1 of Protocol No. 1 (P1-1) to the Convention reads as
follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject
to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it
deems necessary to control the use of property in
accordance with the general interest or to secure the
payment of taxes or other contributions or penalties."
Assuming that professional and intellectual skills fall within
the ambit of Article 1 of Protocol No. 1 (P1-1), the Commission
considers that the applicant has not substantiated his allegation.
Therefore 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.
6. The applicant finally refers to alleged violations of
article F (2) of the Treaty of Maastricht as well as articles 8a, 48
and 52 of the Treaty of Rome.
The Commission notes that it is not competent to examine
violations of the above-mentioned provisions. It follows that this part
of the application is incompatible ratione materiae with the provisions
of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy