AS TO THE ADMISSIBILITY OF

                      Application No. 19583/92

                      by Vesa PELTONEN

                      against Finland

      The European Commission of Human Rights sitting in private on

20 February 1995, the following members being present:

           MM.   C.A. NØRGAARD, President

                 H. DANELIUS

                C.L. ROZAKIS

                 G. JÖRUNDSSON

                 S. TRECHSEL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 E. KONSTANTINOV

                 G. RESS

           Mr.  H.C. KRÃœGER, 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 20 September 1990

by Vesa PELTONEN against Finland and registered on 4 March 1992 under

file No. 19583/92;    Having regard to :

-     the reports provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the observations submitted by the respondent Government on

      22 December 1993, the observations in reply submitted by the

      applicant on 17 March and 31 August 1994, the Government's

      additional observations submitted on 30 September 1994 and

      3 February 1995 and the applicant's additional observations in

      reply of 9 November 1994 and 9 February 1995;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a Finnish citizen, born in 1970, and resident

in Märsta , Sweden. He is a cleaner by profession. Before the Commission

he is represented by Mr. Martin Scheinin , LL.D., Helsinki, Finland.

      The facts of the case, as submitted on behalf of the parties, may

be summarised as follows.

Particular circumstances of the case

      The applicant has been permanently resident in Sweden since

December 1986. On 29 June 1990 he requested a ten-year passport at the

Finnish Embassy in Stockholm. On 20 July 1990 the Embassy informed the

applicant that he could not be issued with a passport, as he had failed

to attend the call-up for military service. In a final refusal of

10 September 1990 the Embassy referred to the fact that the applicant

was wanted in Finland for not having attended a call-up. The Embassy

did not rely on any specific provision of the 1986 Passport Act

( passilaki 642/86, passlag 642/86) for the refusal. On 1 November 1990

the applicant was informed of his right to appeal against this

decision.

      In his appeal to the County Administrative Court ( lääninoikeus ,

länsrätten ) of Uusimaa , the applicant contended that he was wanted for

an offence punishable with a maximum of six months' imprisonment and

that, consequently, section 9, subsection 1(1) of the Passport Act was

not applicable in his case.

       The Embassy's refusal was upheld by the County Administrative

Court on 22 January 1991 and by the Supreme Administrative Court

( korkein hallinto-oikeus , högsta förvaltningsdomstolen ) on

19 September 1991. Both courts considered that the refusal was lawful

under Section 9, subsection 1(6) of the Passport Act. The County

Administrative Court also stated that this provision did not violate

the Convention.

Relevant domestic law

      1.   The constitutional duty to defend the country

      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 of the 1919 Constitution Act ( Suomen

hallitusmuoto 94/19, Regeringsform för Finland 94/19)).

      Under the 1950 Military Service Act ( asevelvollisuuslaki 452/50,

värnpliktslag 452/50) every Finnish male citizen is obliged to serve

in the military (section 1). The punishment for failure to attend a

call-up is either a fine or imprisonment of up to six months (section

40, subsection 1, as amended by Act no. 325/83).

      After 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 (section 27, subsection 3, as amended by Act

no. 1169/88).

      A person liable for military service shall attend a call-up if

he has reached or will reach the age of eighteen during the year of the

call-up or if, for instance, he has failed to attend a previous call-up

despite his age (section 23, subsections 1 and 2, as amended by Act no.

1169/88 and in force at the relevant time, and section 24, as in force

at the relevant time). According to the 1951 Military Service Decree

( asetus asevelvollisuuslain soveltamisesta 63/51, förordning 63/51 ang .

tillämpning av värnpliktslagen ), a person liable for military service

and resident abroad shall attend the call-up in the Finnish

municipality where he was most recently residing (section 18).

      2.   Passport regulations

      A Finnish citizen is entitled to a passport, unless otherwise is

prescribed by law (section 3, subsection 1 of the Passport Act). A

passport shall normally be issued for ten years (section 7, subsection

be refused, inter alia , to the following persons:

      -    a person suspected of an offence punishable with more than

      one year's imprisonment, a person who is wanted as such a suspect

      or who is charged with such an offence ( para . 1, as amended by

      Act no. 1037/88); or

      -    a person who is liable for military service and who is

      between seventeen and thirty years of age, unless he shows that

      his liability for military service does not constitute an

      obstacle to the issuing of a passport ( para . 6).

      Even if one of the above grounds for refusing a passport exists,

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). 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).

      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. This may be done by submitting a so-called

clearance certificate ( esteettömyystodistus , hinderlöshetsintyg ) or a

certificate that he is exempted from military service (section 4 of the

1986 Passport Decree ( passiasetus 643/86, passförordning 643/86)). If

the passport application is lodged abroad a clearance certificate must

be obtained from the police authority at his most recent domicile in

Finland (cf. section 6).

      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 about the refusal to issue him with a

Finnish passport, which prevents him from travelling outside the Nordic

countries and thereby interferes with his freedom under Article 2 para .

2 of Protocol No. 4 to the Convention to leave any country. The

applicant alleges that the passport refusal was not "in accordance with

the law", as it was not foreseeable. He accepts that the refusal was

aimed at securing " ordre public", but argues that it was not necessary

in a democratic society for the purpose of achieving that aim. Instead

of instituting criminal proceedings against him for draft evasion the

authorities have imposed a de facto punishment consisting of a travel

ban lasting until his thirtieth birthday (in the year 2000). The

passport refusal is disproportional to the offence of draft evasion and

the punishment prescribed therefor.

2.    As far as the refusal to issue him with a passport is alleged to

constitute a de facto punishment for draft evasion, the applicant also

invokes Article 7 para . 1 of the Convention. Allegedly, Finnish law

does not prescribe a travel ban as punishment for draft evasion.

of his case. He submits that the County Administrative Court, without

first hearing him either orally or in writing, rejected his appeal on

another ground than that on which the Embassy's refusal had been based

and which he had challenged in his appeal. The Supreme Administrative

Court further upheld the reasoning of the County Administrative Court

allegedly without hearing the applicant. In this respect, the applicant

invokes Article 6 para . 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 20 September 1990 and

registered on 4 March 1992.

      On 11 October 1993 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on the admissibility and merits

thereof.

      The observations were submitted by the respondent Government on

22 December 1993. Observations in reply were submitted by the applicant

on 17 March and 31 August 1994. The Government submitted additional

observations on 30 September 1994 and 3 February 1995. Additional

observations in reply were submitted by the applicant on

9 November 1994 and 9 February 1995.

THE LAW

1.    The applicant complains of the refusal to issue him with a

passport which prevents him from travelling outside the Nordic

countries and thereby interferes with his freedom under Article 2 para .

2 of Protocol No. 4 (P4-2-2) to the Convention to leave any country.

The relevant part of Article 2 of Protocol No. 4 (P4-2) 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

      [the above 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."

      In their observations of 22 December 1993 the Government,

referring to Article 27 para . 1 (b) (Art. 27-1-b) of the Convention,

drew the Commission's attention to the fact that the applicant's

brother has submitted a communication with contents similar to those

of the present case to the United Nations Human Rights Committee in

accordance with the Optional Protocol to the Covenant on Civil and

Political Rights.

      The Government furthermore accept that the refusal to issue the

applicant with a passport interfered with his freedom under Article 2

of Protocol No. 4 (P4-2). They consider, however, that it was justified

under para . 3 of that provision. The refusal was in accordance with the

law, since the provision invoked by the administrative courts was

accessible, sufficiently precise and thus foreseeable. The refusal

further had the legitimate aim of securing that the applicant would

perform his duty as a male Finnish citizen to serve in the military and

was therefore necessary primarily for the maintenance of " ordre

public". The Government underline that the applicant has consistently

failed to attend a call-up. The passport refusal is not, by definition,

valid until the year 2000, since a passport could be issued, if the

applicant would perform his military service. Furthermore, in

accordance with a Nordic agreement the applicant can travel freely

within the Nordic countries. Moreover, in his passport application or

subsequent appeals he made no reference to any of the particular

grounds mentioned in section 10 of the Passport Act allowing for an

exemption from the general rule under Section 9, subsection 1(6)

implying that a passport shall not be issued to a person in his

situation.

      The Government also point out that the passport refusal is not

a substitute for possible criminal proceedings which could be

instituted, should the applicant return to Finland and be caught by the

police. Criminal proceedings cannot, however, be instituted during his

absence from Finland, as he cannot be extradited for the offence of

failing to attend a call-up.

      In the above circumstances the Government consider that the

passport refusal was proportional to the aim sought to be achieved,

having regard to the particularly wide margin of appreciation which

should be afforded to the State in matters concerning national defence .

      The applicant maintains his complaint and refers, in particular,

to the circulars issued by the Ministry for Foreign Affairs in regard

to the interpretation of the Passport Act. He considers that this shows

that the passport refusal in his case was not foreseeable and thus was

not in accordance with the law. Moreover, since the refusal has not

prevented him from continuing to reside in another Nordic country it

is not an effective way of enforcing the obligation to perform military

service. It cannot therefore be considered "necessary in a democratic

society" for the aim pursued. Finally, while stating, in his

application, that he would need a passport for holiday travelling, the

applicant has later, in his observations of 17 March and

31 August 1994, emphasised that he would need freedom of movement

outside the Nordic countries also for employment purposes.

      The Commission recalls that under Article 27 para . 1 (b)

(Art. 27-1-b) of the Convention it shall not deal with any petition

submitted under Article 25 (Art. 25) which is, inter alia ,

substantially the same as a matter which has already been submitted to

another procedure of international investigation or settlement and if

it contains no relevant new information. It is true that the freedom

guaranteed by Article 2 para . 2 of Protocol No. 4 (P4-2-2) resembles

that protected by Article 12 of the International Covenant on Civil and

Political Rights, which entered into force with regard to Finland in

1976. The Commission recalls, however, that if the complainants before

the Commission and, for instance, the United Nations Human Rights

Committee are not identical, the complaint to the Commission cannot be

considered as being substantially the same as the communication to the

Committee (cf. No. 11603/85, Dec. 20.1.87, D.R. 50 pp. 228-258, at

p. 237). The Commission is therefore called upon to deal with the

complaint.

      The Commission observes that the refusal to issue the applicant

with a Finnish passport has not prevented him from leaving that

country, nor is it preventing him from leaving a Nordic country for

another Nordic country. 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. The Commission therefore considers

that the passport refusal interfered with this freedom of the

applicant. It remains to be examined whether the interference was

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

      The Commission accepts that the passport refusal was "in

accordance with the law", it being based on Section 9, subsection 1 (6)

of the Passport Act. The Commission further considers, and it is not

in dispute between the parties, 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 such

an aim, 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. The

Commission further notes that before the domestic courts the applicant

did not invoke 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 show a so-called clearance

certificate. The passport refusal is, moreover, not, by definition,

valid until the applicant's thirtieth birthday in the year 2000. He is

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. Like the Government, the Commission also considers that

Contracting States are entitled to a wide margin of appreciation in the

organisation of their national defence .

      The Commission therefore concludes that in the particular

circumstances of this case the refusal to issue the applicant 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 complaint must be rejected as being

manifestly ill-founded within the meaning of Article 27 para . 2

(Art. 27-2) of the Convention.

2.    As far as the refusal to issue him with a passport is alleged to

constitute a de facto punishment for his draft evasion, the applicant

also invokes Article 7 para . 1 (Art. 7-1) of the Convention.

Article 7 (Art. 7) of the Convention reads as follows:

      "1.  No one shall be held guilty of any criminal offence on

      account of any act or omission which did not constitute a

      criminal offence under national or international law at the

      time when it was committed. Nor shall a heavier penalty be

      imposed than the one that was applicable at the time the

      criminal offence was committed.

      2.   This Article shall not prejudice the trial and punishment

      of any person for any act or omission which, at the time when it

      was committed, was criminal according to the general principles

      of law recognised by civilised nations."

      The Government consider that, although "in general terms" all

domestic remedies have been exhausted, this complaint was not raised

in substance before the domestic courts. Under Article 26 (Art. 26) of

the Convention the Commission is therefore prevented from examining it.

In the alternative, the Government submit that Article 7 (Art. 7) does

not apply.

      The applicant contends that his de facto punishment by virtue of

the passport refusal had no basis in the Constitution Act or the

Military Service Act.

      Even assuming that the applicant has exhausted the domestic

remedies in regard to the present complaint, as required by Article 26

(Art. 26) of the Convention, the Commission considers that the refusal

to issue him with a passport is not tantamount to a conviction of a

"criminal offence" within the meaning of Article 7 para . 1 (Art. 7-1).

Article 7 (Art. 7) is therefore not applicable.

      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 finally complains that he was denied a fair hearing

of his case, contrary to Article 6 para . 1 (Art. 6-1) of the Convention

which, as far as relevant, reads as follows:

      "In the determination of his civil rights ..., everyone is

      entitled to a fair and public hearing ... by [a] tribunal

      established by law. ..."

      The Government primarily submit that Article 6 para . 1 (Art. 6-1)

is inapplicable in the instant case. Whilst accepting that there was

a dispute regarding a "right" of the applicant, they claim that this

right was not of a "civil" character. Should the Commission find

otherwise, the Government refer to their reservation to the Convention

which excludes a right to an oral hearing insofar as current Finnish

laws do not provide such a right, as in the present case. As for the

other aspects of the applicant's right to a fair hearing the Government

argue that the complaint is manifestly ill-founded.

      The applicant contends, in particular, that his right to travel

abroad falls within the ambit of Article 6 para . 1 (Art. 6-1).

Moreover, Finland's reservation to the right to an "oral" hearing does

not exclude the applicant's right to a "fair" hearing, assessing the

proceedings at issue as a whole.

      The Commission must ascertain whether Article 6 para . 1

(Art. 6-1) of the Convention is applicable in the instant case and,

first of all, whether there was a dispute over a "civil right" which

can be said, at least on arguable grounds, to be recognised under

domestic law (e.g., Eur . Court H.R., 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 H.R., König

judgment of 28 June 1978, Series A no. 27, pp. 29-30, para . 88).

      The Commission recalls that this case does not primarily concern

the applicant's freedom to leave his country of nationality. However,

even assuming that the applicant could arguably claim, as a citizen of

Finland, a personal and individual "right" to a passport of that

country, 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., mutatis mutandis , No. 7902/77, Dec. 18.5.77, D.R. 9

p. 224 and, e.g., Eur . Court H.R., Salesi judgment of 26 February 1993,

Series A no. 257-E, pp. 59-60, para . 19). Accordingly, Article 6

para . 1 (Art. 6-1) does not apply.

      It follows that this complaint is also 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, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission            President of the Commission

      ( H.C. KRÜGER)                           (C.A. NØRGAARD)