Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21228/93

by K.S.

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 24 May 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

Mrs. M.F. BUQUICCHIO, 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 4 June 1992 by

K.S. against Finland and registered on 22 January 1993 under file

No. 21228/92;

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 1966, and resident

in Espoo. He is a student.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

Particular circumstances of the case

I.

On 9 February 1989 the applicant commenced his military service

at the Coast Artillery of Vaasa. On 8 June 1989 the Coast Artillery

ordered that he should receive further training in order to become a

non-commissioned officer in the reserve troops. The order was based on

an evaluation report of 31 May 1989 submitted by a professional

military trainer. The training ordered was to prolong the applicant's

military service from 240 days to 330 days.

The applicant, who had wished to undergo training in order to

become an officer in the reserve troops, refused to undergo the

training ordered. He apparently interrupted his military service in

October 1989.

On 15 October 1990 the applicant requested the Army Headquarters

(pääesikunta, huvudstaben) to set aside the evaluation report of

31 May 1989 and allow him to undergo training in order to become an

officer in the reserve troops. On 17 December 1990 the Headquarters

dismissed his submissions without examining them on the merits,

considering that they concerned a military order which could not be

reviewed under the 1950 Act on Judicial Review of Certain

Administrative Decisions (laki 154/50 muutoksenhausta hallintoasioissa,

lag 154/50 om ändringssökande i förvaltningsärenden). The applicant's

appeal to the Supreme Administrative Court (korkein hallinto-oikeus,

högsta förvaltnings-domstolen) was rejected on 27 May 1991.

On 15 May 1992 the Supreme Administrative Court rejected, inter

alia, the applicant's request that its decision of 27 May 1991 be

nullified or quashed.

On 25 June 1992 the Supreme Court (korkein oikeus, högsta

domstolen) declined jurisdiction in the matter.

II.

On 20 February 1991 the applicant requested a passport valid for

ten years, his then passport being valid up to 31 December 1994. On

26 February 1991 the Helsinki District Police refused to issue him the

requested passport, as he had not shown any particular reason why his

request should be granted. The applicant had not submitted any

so-called clearance certificate (esteettömyystodistus,

hinderlöshetsintyg) issued by the Army in support of his request.

The passport refusal was upheld by the County Administrative

Court (lääninoikeus, länsrätten) of Uusimaa on 8 October 1991 and by

the Supreme Administrative Court on 7 July 1992.

Relevant domestic law

1. The duty to perform military service

According to the 1919 Constitution Act (Suomen hallitusmuoto

94/19, Regeringsform för Finland 94/19), every Finnish citizen is

obliged to participate in the defence of the country or to assist

therein, as further described by law (section 75, subsection 1). Under

the 1950 Military Service Act (asevelvollisuuslaki 452/50, värnplikts-

lag 452/50) every Finnish male citizen is obliged to serve in the

military (section 1). However, after the expiry of the year during

which a person liable for military service turns thirty years of age

he can no longer be called up to perform his service as a conscript

(section 27, subsection 3, as amended by Act no. 1169/88).

2. Passport regulations

According to the 1986 Passport Act (passilaki 642/86, passlag

642/86), a Finnish citizen is entitled to a passport, unless otherwise

is prescribed by law (section 3, subsection 1). A passport shall

normally be issued for ten years (section 7, subsection 1). If the

passport applicant is between seventeen and thirty years of age and has

not yet performed his military service, he must show that his liability

for military service is not an obstacle to the issuing of a passport

(section 9, subsection 1(6)). This may be done by submitting a

so-called clearance certificate or a military passport issued once the

military service to be performed by a conscript has been completed

(section 4 of the 1986 Passport Decree (passiasetus 643/86, pass-

förordning 643/86)).

Even if grounds for refusing a passport might exist, regard shall

be had to the importance for the passport applicant of travelling in

view of his or her family life, state of health, subsistence,

profession and other circumstances (section 10, subsection 1 of the

Passport Act). For instance, if a ten-year passport is refused on one

of the above-stated grounds a passport of shorter validity may,

nevertheless, be issued (section 8, subsection 1).

3. Freedom of movement within the Nordic countries

Under an agreement between the Nordic countries, no passport is

needed for a Nordic citizen travelling from one Nordic country to

another (see, e.g., Finnish Treaty Series no. 17/54, as later amended).

COMPLAINTS

1. The applicant complains under Article 13 of the Convention that

he had no right to a court or other effective review of the military

order of 8 June 1989 which had the effect of prolonging his military

service with ninety days. He considers that the order required him to

perform compulsory labour, this allegedly violating Article 4 of the

Convention. He also invokes Articles 5, 8, 9, 10 and 11 of the

Convention.

2. The applicant further complains that the refusal to issue him

with a passport valid for ten years violates his right to freedom of

movement within the meaning of Article 2 para. 2 of Protocol No. 4

to the Convention. He stresses that Finnish law does not contain any

absolute prohibition against issuing a passport to a person liable for

military service. He considers that none of the grounds under Article 2

para. 3 for justifying a restriction of his right to freedom of

movement apply.

THE LAW

1. The applicant complains under Article 13 (Art. 13) of the

Convention that he had no right to a court or other effective review

of the military order of 8 June 1989 which had the effect of prolonging

his military service with ninety days. He considers that the order

required him to perform compulsory labour, this allegedly violating

Article 4 (Art. 4) of the Convention. He also invokes Articles 5, 8,

9, 10 and 11 (Art. 5, 8, 9, 10, 11) of the Convention.

The Commission observes that the military order at issue was

issued before the date of entry into force of the Convention with

regard to Finland, i.e. 10 May 1990. However, in accordance with the

generally recognised rules of international law, the Convention only

applies in respect of each Contracting Party to facts subsequent to its

coming into force for that Party. The possible existence of a

continuing situation must be determined, if necessary ex officio, in

the light of the special circumstances of each case (e.g., Nos. 8560/79

and 8613/79, Dec. 3.7.79, D.R. 16 p. 209). The Commission must

therefore verify whether it is competent ratione temporis to examine

the present complaint.

The Commission observes that the applicant has declined to

perform the special training ordered on 8 June 1989. It considers,

however, that the circumstances of which he complains either are or

would be the result of the afore-mentioned military order, whose

compatibility with the Convention cannot be examined by the Commission.

It follows that this complaint is incompatible ratione temporis

with the provisions of the Convention within the meaning of the

Article 27 para. 2 (Art. 27-2).

2. The applicant further complains that the refusal to issue him

with a passport valid for ten years violates his right to freedom of

movement within the meaning of Article 2 para. 2 of Protocol No. 4

(P4-2-2) to the Convention.

Article 2 paras. 2 and 3 of Protocol No. 4 (P4-2-2, P4-2-3) to

the Convention read 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."

(a) The Commission recalls that under Article 25 para. 1 (Art. 25-1)

of the Convention it may receive petitions from any person, non-

governmental organisation or group of individuals claiming to be the

victim of a violation by one of the High Contracting Parties of the

rights set forth in this Convention, provided that the High Contracting

Party against which the complaint has been lodged has declared that it

recognises the competence of the Commission to receive such petitions.

The Commission observes that at the time of the passport refusal

complained of the applicant held a passport valid until the end of

1994. It considers therefore that, in so far as his complaint can be

understood as relating to the period prior to 1995, he may not claim

to be a "victim" within the meaning of Article 25 (Art. 25) of a

violation of his right to freedom of movement.

It follows that this aspect of the complaint is incompatible

ratione personae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

(b) In so far as the complaint relates to the period starting on 1

January 1995 the Commission observes that the passport refusal has not

and would not prevent the applicant from leaving Finland for another

Nordic country, nor prevent him from travelling within the Nordic

countries. Article 2 para. 2 of Protocol No. 4 (P4-2-2) provides,

however, 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 (No. 19583/92, Peltonen v. Finland, Dec.

20.2.95, not published). The Commission therefore considers that as

from 1995 the passport refusal has interfered with the applicant's

freedom of movement within the meaning of Article 2 para. 2 of Protocol

No. 4 (P4-2-2). It remains to be examined whether the interference is

justified under Article 2 para. 3 (Art. 2-3).

It has not been alleged that the passport refusal was not "in

accordance with the law" and the Commission finds no reason for

questioning the refusal in this respect. It furthermore considers that

the refusal had the legitimate aims of maintaining "ordre public" and

ensuring national security.

As for the question whether the refusal was proportional to the

above-mentioned aims, the Commission observes that instead of refusing

the requested ten-year passport the authorities could, of their own

motion, have issued the applicant with a passport of a shorter

validity. It has not been shown, however, that the applicant invoked

any particular grounds warranting a departure from the general rule

under which a passport could be refused to a person liable for military

service who has failed to submit an army clearance certificate in

support of his passport request. Moreover, the applicant has been, and

still remains, free to lodge a fresh passport request at any time,

invoking, if he so wishes, such particular grounds as prescribed in

section 10 of the Passport Act.

The Commission considers that the Contracting States are entitled

to a wide margin of appreciation in the organisation of their national

defence. It concludes that in the particular circumstances of the

applicant's case the refusal to issue him with a ten-year passport

could reasonably be considered necessary in a democratic society for

the purposes of pursuing the above aims. Accordingly, there is no

appearance of a violation of Article 2 para. 2 of Protocol No. 4

(P4-2-2).

It follows that this aspect of the complaint must 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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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K.S. v. FINLAND

K.S. v. FINLAND

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