Lexploria

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

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TAURÉN v. FINLAND

TAURÉN v. FINLAND

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