CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 24 mai 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)