FOURTH SECTION

Application no. 10626/12 Juha Kauko RUOTSALAINEN against Finland lodged on 14 February 2012

STATEMENT OF FACTS

The applicant, Mr Juha Kauko Ruotsalainen , is a Finnish national who was born in 1968 and lives in Jyväskylä .

A. The circumstances of the case

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

Several of the bigger Evangelic-Lutheran congregations publish a free newspaper which, in some congregations, is distributed to all households. This was the situation in the area where the applicant lives. Since 2006 the applicant has repeatedly asked the local congregation not to deliver the newspaper to his address.

On 18 December 2006 the Deputy Parliamentary Ombudsman ( eduskunnan apulaisoikeusasiamies , riksdagens biträdande justitieombudsman ) took a stand on the issue on the basis of several complaints made to him. As the Evangelic-Lutheran congregations performed a public function, they fell under the supervision of the Parliamentary Ombudsman. He found that the newspapers in question were to be regarded as religious ones which also appeared relatively often. It was the responsibility of the publisher to make sure that the distribution of the newspaper respected the religious beliefs of others. Even if the practice of distributing the free newspaper to all households was not unconstitutional, he believed that the minimum requirement was to respect the opinion of those who did not want to receive the newspaper. The complainants had not been able to prohibit the delivery of the newspaper. The Deputy Parliamentary Ombudsman found that the best solution would be to distribute the newspaper only to members of the congregation. The congregational authorities needed to guarantee the protection of fundamental rights and human rights and it was their responsibility to respect the religious beliefs of others. It was irrelevant which method of distribution was the cheapest for the congregations.

On 13 February 2007 the Parliament ’ s Constitutional Law Committee ( perustuslakivaliokunta , grundlagsutskottet ), by referring to the activities of the Parliamentary Ombudsman, gave attention in its report ( mietintö PeVM 17/2006 vp , betänkande PeVM 17/2006 rd ) to freedom of expression in the religious context, protected both by the Constitution and Articles 9 and 10 of the Convention. It found that these provisions gave very strong protection to the freedom of religious and other convictional communication. This freedom belonged equally to all individuals as well as to all religious communities functioning in Finland. Possible restrictions to this freedom could be made by an act but such acts would need to fulfil the criteria of clarity and precision as well as being acceptable and necessary.

On 18 January 2008 the applicant requested the police to investigate the matter.

On 14 July 2008 the public prosecutor decided that no pre-trial investigation was to be conducted in the matter. She found that it was doubtful whether the matter constituted a crime and, even if it did, it was a minor one for which no charges would be brought.

The applicant started to receive the newspaper again in 2009. The delivery to the applicant ’ s household was not discontinued in spite of several requests to that effect. The applicant did not want to prohibit the delivery of all free publications but had put a sticker on his mail box saying that he did not want any “spiritual material” to be delivered to him.

On 24 April 2009 the Deputy Parliamentary Ombudsman took a stand on the issue again. He found that he did not have competence to assess the opinions expressed by the Constitutional Law Committee of the Parliament but that the best solution would be to mail the newspaper only to those persons who were members of the local congregation. About half of the congregations already used this manner of distribution.

On 14 January 2010 the applicant lodged a complaint with the Chancellor of Justice ( oikeuskansleri , j ustitiekanslern ), about the same matter.

In its submissions to the Chancellor of Justice, the congregation in question noted that the newspaper was delivered to all households which had not prohibited the delivery of free publications and advertisements. If such a prohibition was made, the newspaper was not delivered to those households. The distribution of the newspaper only to the members of the congregation would be illegal since such practice would have no legal basis and it would restrict the freedom of religion and the freedom of expression of the congregations. Persons had no legal right to demand that certain free publications and advertisements be delivered to them and others not.

In his submissions to the Chancellor of Justice, the applicant further noted that it was unreasonable to require a person who did not want to receive religious publications to prohibit all free publications and advertisements. Quite often, for example, important and useful information bulletins from the city administration or bus timetables were sent via free distribution to all households. It was also unreasonable that a person had to reveal his or her beliefs to all neighbours by putting a sticker on the mail box prohibiting spiritual publications.

On 6 October 2011 the Deputy Chancellor of Justice replied that he would not examine the matter as it had already been examined by the Deputy Parliamentary Ombudsman. Moreover, even though he had competence to supervise the measures taken by Evangelic-Lutheran congregations, he did not have competence to assess the opinions of the Constitutional Law Committee of the Parliament.

The applicant is still receiving the newspaper.

B. Relevant domestic law

Article 10 of the Constitution of Finland ( perustuslaki , grundlagen , Act no. 731/1999) guarantees, inter alia , the protection of home. It provides the following:

“[e] veryone ’ s private life, honour and the sanctity of the home are guaranteed. More detailed provisions on the protection of personal data are laid down by an Act.

The secrecy of correspondence, telephony and other confidential communications is inviolable.

Measures encroaching on the sanctity of the home, and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime, may be laid down by an Act. In addition, provisions concerning limitations of the secrecy of communications which are necessary in the investigation of crimes that jeopardise the security of the individual or society or the sanctity of the home, at trials and security checks, as well as during the deprivation of liberty may be laid down by an Act.”

According to Article 11 of the Constitution ,

“[e] veryone has the freedom of religion and conscience.

Freedom of religion and conscience entails the right to profess and practise a religion, the right to express one ’ s convictions and the right to be a member of or decline to be a member of a religious community. No one is under the obligation, against his or her conscience, to participate in the practice of a religion.”

Article 12 of the Constitution provides that

“[e] veryone has the freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act.

Documents and recordings in the possession of the authorities are public, unless their publication has for compelling reasons been specifically restricted by an Act. Everyone has the right of access to public documents and recordings.”

COMPLAINT

The applicant complains under Articles 8 and 9 of the Convention that the delivery of a free newspaper by the Evangelic-Lutheran congregation to his household, even though his family members are not members of that Church, violates his rights under these Articles.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s freedom of thought, conscience, or religion, within the meaning of Article 9 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 9 § 2?

2. Has there been an interference with the applicant ’ s right to respect for his home, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

3. Did the applicant have at his disposal an effective domestic remedy for his complaint under Articles 8 and 9 of the Convention, as required by Article 13 of the Convention?