CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.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. 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