Lexploria

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

Ã¥terbrytande) 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

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KARASSEV v. FINLAND

KARASSEV v. FINLAND

LEXI