CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 avril 1998

.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. 31934/96                       by Vladimir HÄRGINEN                       against Finland           The European Commission of Human Rights sitting in private on 14 April 1998, the following members being present:              MM     S. TRECHSEL, President                  J.-C. GEUS                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  M.A. NOWICKI                  I. CABRAL BARRETO                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, 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 7 May 1996 by Vladimir HÄRGINEN against Finland and registered on 17 June 1996 under file No. 31934/96;     Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the information submitted by the respondent Government on 21 July 1996 and 21 April 1997, the applicant's comments in reply submitted on 20 August 1996 and 16 May 1997 and   the information submitted by the applicant on 21 January 1998;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, born in 1955, was a citizen of the former Soviet Union and currently considers himself stateless. He is resident in Finland. Before the Commission he is represented by Mr Hannu Kokko, a lawyer in Vantaa.         The facts of the case, as submitted by the parties, may be summarised as follows.         The applicant arrived in Finland in June 1991 after having resided permanently in Tallinn in Estonia, then under Soviet control. He was granted a residence permit for one year, as his wife (also a citizen of the former Soviet Union) was residing in Finland, holding a permanent permit to that effect. The applicant's residence permit was later extended until June 1994.         It appears that a child was born to the applicant and his wife. In 1993 the applicant was convicted in Finland of drunken driving and related offences and was sentenced to a fine. In 1994 he was convicted of an aggravated narcotics offence and sentenced to three years and six months' unconditional imprisonment.         In view of the applicant's criminality his request for a permanent residence permit in Finland was refused on 3 April 1995 and his deportation to Estonia was ordered by the Aliens Department (ulkomaalaisvirasto, utlänningsverket) of the Ministry of the Interior. He was prohibited from returning to Finland during five years. Pursuant to a Nordic Treaty the validity of this entry ban was automatically extended to the other Nordic countries (Article 9; Finnish Treaty Series no. 178/1958, as later amended).         Before his imprisonment the applicant apparently visited his parents in Estonia by using his Soviet passport. That passport having expired on 12 July 1995, he requested the Finnish Ministry of the Interior to grant him an aliens passport. Such a passport had apparently already been granted to his wife. Under section 5 of the 1991 Aliens Act (ulkomaalaislaki, utlänningslag 378/1991; later amended) an aliens passport may be issued if the alien is unable to obtain a passport from his or her country of origin or if there is another exceptional reason for granting an aliens passport.         On 4 August 1995 the Embassy of the Russian Federation in Finland certified that the applicant was not a citizen of the Russian Federation. On 19 September 1995 the Estonian Consulate in Finland certified that he was not a citizen of the Republic of Estonia and that he could not seek Estonian citizenship as he was not permanently resident in the country.          On 31 October 1995 the Aliens Department refused the applicant's request for an aliens passport, noting the deportation order and his prison sentence. The deportation order and the entry ban were upheld by the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) on 10 November 1995.         On 7 February 1996 the Estonian Citizenship and Immigration Authority certified that, on 3 July 1995, the applicant had officially and permanently left Estonia in order to settle in Finland with his wife and child. As a result he could not move back to Estonia without a residence permit. Moreover, such a permit could not be granted unless he presented a valid passport which he did not have for the time being.      In February 1996 the applicant was released from prison. On 8 October 1996 the Aliens Department noted that the Estonian authorities had refused to receive the applicant, who no longer fulfilled the legal requirements for residing in that country following his departure which had been officially registered on 3 July 1995. The Aliens Department therefore withdrew the re-entry ban and granted the applicant an aliens passport and a residence permit until 11 September 1997. The validity of the aliens passport and the residence permit has apparently not been prolonged. According to the applicant, the Aliens Department has not contacted him with a view to enforcing the deportation order.         Under another Nordic Treaty the Contracting States have undertaken to readmit to their territory an alien who has been returned by another Contracting State, provided he or she entered the latter State directly from the former and without holding a valid passport or special permit (Article 10; Finnish Treaty Series no. 17/1954, as later amended).     COMPLAINTS         The applicant complains that although the Finnish authorities have been unable to enforce the deportation order he remains affected by the entry ban which prevents him from travelling to other Nordic countries. Moreover, despite his alleged status as stateless he was initially refused an aliens passport in Finland, which prevented him from any travelling abroad. Initially the applicant also complained that his right of abode in Finland remained uncertain. However, in his submissions of 21 January 1998 he stated that it was "unlikely" that any enforcement of the deportation order would take place, as the Estonian authorities had refused to accept him into the country. The applicant complains, however, that there is no guarantee that he would be re-admitted into Finland should he travel abroad.         The applicant asserts that the aforementioned measures, taken together, have violated his right to respect for his private and family life and home within the meaning of Article 8 of the Convention as well as his right to freedom of movement within the meaning of Article 2 of Protocol No. 4.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 7 May 1996 and registered on 17 June 1996.         On 27 June 1996 the Rapporteur of the Commission decided, in accordance with Rule 47 para. 2 (a) of the Rules of Procedure, to request certain factual information from the respondent Government. This information was submitted on 21 July 1996. Comments were submitted by the applicant on 20 August 1996. On 21 April 1997 the Government submitted further factual information on which the applicant commented on 16 May 1997. On 10 December 1997 the Rapporteur decided to request certain factual information from the applicant. That information was submitted on 21 January 1998 after an extension of the time-limit fixed for that purpose.   THE LAW         The applicant complains essentially that due to the initial refusal of an aliens passport he was prevented from travelling abroad; that due to the entry ban he still cannot travel to other Nordic countries; that his right of abode in Finland has remained uncertain; and that there is no guarantee that he would be re-admitted into Finland should he travel abroad. He invokes Article 8 (Art. 8) of the Convention and Article 2 of Protocol No. 4 (P4-2).   1.     The Commission has first dealt with the applicant's allegedly uncertain right of abode in Finland and the alleged impossibility for him to re-enter Finland, should he choose to go abroad. These issues fall to be examined under Article 8 (Art. 8) of the Convention which reads, in so far as relevant, as follows:         "1.   Everyone has the right to respect for his private and       family life, his home ...         2.    There shall be no interference by a public authority       with the exercise of this right except such as is in       accordance with the law and is necessary in a democratic       society in the interests of national security, public       safety or the economic well-being of the country, for the       prevention of disorder or crime, for the protection of       health or morals, or for the protection of the rights and       freedoms of others."         The Commission recalls that as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry, residence and expulsion of non-nationals (see, e.g., the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, p. 34, para. 67). It follows that Article 8 (Art. 8) does not guarantee to a non-national a right to enter or remain in a particular country. Nor can Article 8 (Art. 8) be considered to impose on a State a general obligation to respect immigrants' choice of the country of their matrimonial residence. Consequently, this provision does not guarantee a right to choose the most suitable place to develop family life (see, e.g., Eur. Court HR, Ahmut v. the Netherlands judgment of 28 November 1996, Reports of Judgments and Decisions 1996-VI, no. 24, p. 2033, paras. 67, 71). An issue may nevertheless arise under Article 8 (Art. 8) if a person is excluded, or removed, from a country where his close relatives reside or have the right to reside (see eg. No. 7816/77, Dec. 19.5.77, D.R. 9, p. 219; No. 9088/80, Dec. 6.3.82, D.R. 28, p. 160; No. 9285/81, Dec. 8.7.82, D.R. 29, p. 205).         The Commission notes that the deportation order concerning the applicant has not been quashed but has simply been left unenforced. The mere threat that he might still be deported from Finland is not sufficient to raise an issue under Article 8 (Art. 8) of the Convention. The Commission furthermore notes that on 21 July 1996 the respondent Government stated that, should the Estonian authorities not agree to receive the applicant into that country by granting him a visa or a residence permit, the deportation order would not be enforced. In his comments of 21 January 1998 the applicant himself indeed finds it "unlikely" that such enforcement would take place, as the Estonian authorities have refused to accept him into the country. The Commission notes that at any rate it has not been argued that the applicant's wife and child would be unable to follow him to Estonia or any other country to which he might be deported.         As regards the alleged impossibility for the applicant to re-enter Finland should he travel abroad, the Commission notes that the situation in which he allegedly finds himself is a consequence of the Finnish authorities' refusal to grant him a permanent residence permit and their subsequent decision to order his deportation and impose a ban on his re-entry. These decisions were triggered by the applicant's conviction of, inter alia, an aggravated narcotics offence and his lengthy prison sentence.         In these circumstances the Commission finds no indication that the applicant's past or present situation in Finland discloses a lack of respect for his rights under Article 8 (Art. 8) of the Convention.         It follows that 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.   2.     The Commission has next dealt with the alleged violation of the applicant's right to freedom of movement and, more particularly, his right to leave Finland. Article 2 of Protocol No. 4 (P4-2) to the Convention reads, in so far as relevant, as follows:         "2.   Everyone shall be free to leave any country, including       his own.         3.    No restrictions shall be placed on the exercise of       [this] 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."         The Commission recalls that Article 2 para. 2 of Protocol No. 4 (P4-2-2) implies a right to leave for a country of the person's choice to which he or she may be admitted (see No. 19583/92, Dec. 20.2.95, D.R. 80-A, p. 38 and No. 21228/93, Dec. 24.5.95, D.R. 81-A, p. 42; both against Finland). The Commission notes that in October 1996 the applicant was granted an aliens passport which seems to have expired in September 1997. At least while he was holding a valid aliens passport the entry ban imposed on him in April 1995 did not prevent him from leaving Finland for a country other than a Nordic country. It is true that due to the entry ban he will not be admitted to any other Nordic country until April 1999. Nor is there apparently any guarantee that he would be re-admitted into Finland prior to that date, should he travel to a non-Nordic country.         Even assuming that the situation in which the applicant has found himself and presumably will continue to find himself until April 1999 amounts to a restriction of his right to freedom of movement within the meaning of Article 2 para. 2 of Protocol No. 4 (P4-2-2), this restriction can, for the reasons below, be considered justified under Article 2 para. 3 (Art. 2-3) as to its lawfulness, aim and proportionality.         It has not been alleged that the entry ban and the initial refusal of an aliens passport were not "in accordance with the law". The Commission sees no reason to differ on this point. It considers, moreover, that the measures complained of have had a legitimate aim such as preventing crime.    As for the proportionality of the measures in question, the Commission recalls that the entry ban was imposed after the applicant had been convicted of, inter alia, an aggravated narcotics offence and sentenced to over three years' unconditional imprisonment. The initial refusal to grant an aliens passport was based on that prison sentence and the deportation order which had been triggered by the applicant's criminality. In these circumstances the Commission considers that the measures complained of could reasonably be considered necessary in a democratic society for the purpose of pursuing the above-mentioned aim.         It follows that this part of the application must also 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.             M. de SALVIA                          S. TRECHSEL          Secretary                             President      to the Commission                     of the Commission