Lexploria

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

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HÄRGINEN v. FINLAND

HÄRGINEN v. FINLAND

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