AS TO THE ADMISSIBILITY OF. Application No /96 by Andrei KARASSEV and family against Finland

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1 AS TO THE ADMISSIBILITY OF Application No /96 by Andrei KARASSEV and family against Finland The European Commission of Human Rights sitting in private on 14 April 1998, the following members being present: MM Mrs MM Mrs MM Mrs MM Mr S. TRECHSEL, President J.-C. GEUS G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H. DANELIUS G.H. THUNE F. MARTINEZ C.L. ROZAKIS J. LIDDY 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 M. HION R. NICOLINI A. ARABADJIEV 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 5 May 1995 by Andrei KARASSEV and family against Finland and registered on 7 May 1996 under file No /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 10 June 1996 and the comments by the applicants in reply dated 26 June 1996; THE FACTS Having deliberated; Decides as follows: The first applicant is an entrepreneur, born in The second

2 applicant, Mrs Natalia Karasseva, is his wife. She was born in The third and the fourth applicants, Juri and Pasi Karassev, are their children. Juri was born in 1983 and Pasi in All except Pasi were born in the former Soviet Union and were citizens of that country. They are currently resident at Poitsila in Finland. The facts of the case, as submitted by the parties, may be summarised as follows. The first three applicants arrived in Finland from the then Soviet Union on 20 August 1991, holding tourist visas valid from 3 to 21 August On the last-mentioned day they requested asylum in Finland, referring to the attempted coup d'état in the Soviet Union. On 11 May 1992 the Ministry of the Interior (sisäasiainministeriö, inrikesministeriet) rejected their asylum request and found no reason to grant them a residence permit. On 20 July 1992 the Hollola Police District proposed that the family be expelled. The family objected on 14 August 1992, arguing, inter alia, that although they had been citizens of the former Soviet Union they had not become citizens of the Russian Federation. On 4 November 1992 the Ministry of the Interior ordered their expulsion to the Russian Federation, considering, inter alia, that they were citizens of the former Soviet Union with no such ties to Finland as could prevent their expulsion. The Ministry also prohibited the family from returning to Finland or any other Nordic country during a period of two years. The family appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). On 16 December 1992 the fourth applicant, Pasi Karassev, was born. He was not registered as being entitled to Finnish social security benefits. The Social and Health Board (sosiaali- ja terveyslautakunta, social- och hälsovårdsnämnden) of Nastola refused Mrs Karasseva's request for maternity allowance, noting that she was not a Finnish citizen and had not been granted a residence permit in the country. No appeal was lodged against this refusal. The municipality eventually donated to Mrs Karasseva a maternity package with various supplies. In August 1993 Mr Karassev obtained employment in Hamina. On 1 September 1993 the applicants were refused housing allowance, as they had no residence permits in Finland. The applicants did not appeal. On 23 November 1993 the Supreme Administrative Court referred the matter back to the Ministry for renewed consideration, since the expulsion order had not concerned Pasi Karassev. On 4 January 1994 the Hollola Police District again proposed that the applicants be expelled. The applicants objected and requested that the expulsion order would at least not be enforced until Pasi Karassev's possible entitlement to Finnish citizenship had been examined. In February 1994 Pasi Karassev requested to be granted Finnish citizenship by application. On 26 April 1994 the Ministry of the Interior found no reason to grant him a residence permit. Instead the applicants were ordered to be expelled to the Russian Federation, as they were all to be considered citizens of that State pursuant to its 1991 Citizenship Act which had entered into force on 6 February In a memorandum of 2 March 1994 the Ministry recalled that the first three applicants had arrived in Finland on a tourist visa. At the time when the Russian Citizenship Act had entered into force, the applicants had not been permanently residing in Finland but in the Russian Federation. As the applicant parents had thus become citizens of the Russian Federation, the Ministry concluded that Pasi Karassev had obtained Russian (and thus not Finnish) citizenship by birth.

3 In the summer of 1994 the first applicant established his own company in Hamina. On 28 April 1995 the Supreme Administrative Court rejected the applicants' appeal against the new expulsion order. In the summer of 1995 the applicants lodged a further request for residence permits, supported by, among others, the Chief of the Hamina Police District. He stated that the applicants had integrated well in Finland and that it would clearly be unreasonable to refuse them residence permits. In three decisions of 16 August 1995 the Ministry of the Interior nevertheless rejected the applicants' request. They then lodged an extraordinary appeal (purkuhakemus, ansökan om återbrytande) to the Supreme Administrative Court, requesting that the Ministry's decisions be quashed. On 20 October 1995 the Ministry of the Interior objected to the applicants' request to the Supreme Administrative Court. The Ministry referred, inter alia, to its own inquiry according to which all applicants had received Russian citizenship. On 1 February 1996 the Ministry of the Interior again considered that Pasi Karassev had already acquired Russian citizenship. Accordingly, he did not meet the conditions prescribed by section 4 of the 1968 Citizenship Act (kansalaisuuslaki, medborgarskapslag 401/1968) for granting him Finnish citizenship by application. On 19 February 1996 the Supreme Administrative Court rejected the applicants' extraordinary appeal. On 26 February 1996 the Consular Department of the Russian Embassy in Finland certified that none of the first three applicants were citizens of the Russian Federation. On 28 February 1996 Pasi Karassev's request for Finnish citizenship by application was withdrawn. Instead he requested that his Finnish citizenship be confirmed by the President of the Republic, given that his parents had not acquired Russian citizenship whether by application, declaration or acceptance. It was therefore argued that he had received Finnish citizenship by birth, pursuant to section 1, subsection 1 (4) of the Citizenship Act. This provision reads as follows (as amended by Act no. 584/1984): (translation) "A child receives Finnish citizenship by birth: if [it] is born in Finland and does not at that time receive citizenship of any other country." On 26 March 1996 the Russian Embassy certified that Pasi Karassev was not a citizen of the Russian Federation. On 25 April 1996 the Chief of the Hamina Police District ordered the applicants to leave Finland by 24 May The applicants objected, referring, inter alia, to the pending request for a confirmation of Pasi Karassev's Finnish citizenship and stating that they lacked the necessary travel documents. On 29 April 1996 the Russian Embassy certified that pursuant to the Citizenship Act of the Russian Federation none of the first three applicants were Russian citizens. Their Soviet passports were no longer in force and were be to handed over to the Embassy. The family could request that new documents be issued to them by the Finnish authorities "because they were stateless". They would be unable to enter the Russian Federation without proper documents. The Embassy finally considered that the applicants' expulsion from Finland "was not based

4 on the law". On 2 May 1996 Pasi Karassev's request for recognition of his Finnish citizenship was supplemented with the aforementioned certificate. Given the Russian Embassy's finding that the applicants were not Russian citizens, the applicants contended that Pasi Karassev must have become a Finnish citizen at his birth, since his parents had been stateless at the time. On 20 May 1996 the local Social Welfare Board decided to afford Pasi Karassev municipal day care as from 1 June Juri Karassev enjoys the right to attend a public school in Finland. On 21 May 1996 the Chief of Police of Hamina stated that the enforcement of the expulsion order had been postponed indefinitely. On 26 June 1996 and 22 July 1996 the Russian Embassy again confirmed that the applicants were not citizens of the Russian Federation. Under section 1 of the 1963 Sickness Insurance Act (sairausvakuutuslaki, sjukförsäkringslag 364/1963; "the 1963 Act"), every "resident" in Finland is entitled to the benefits guaranteed therein. The interpretation of "residence" shall be decided by the Social Insurance Institution (kansaneläkelaitos, folkpensionsanstalten) pursuant to the 1993 Act on Social Security based on Residence (laki asumiseen perustuvan sosiaaliturvalainsäädännön soveltamisesta, lag om tillämpning av lagstiftningen om bosättningsbaserad social trygghet 1573/1993; "the 1993 Act"). Under the 1993 Act a person shall be considered resident in Finland if his actual residence and home are in that country and he is permanently and principally staying there. An immigrant who intends to settle permanently can be considered resident as from his arrival, provided he is holding a residence permit valid for at least one year (should a permit be required). An asylum-seeker is not considered a resident if the decision on the asylum request or in the expulsion matter has not acquired legal force (section 3). An appeal against the Social Insurance Institution's interpretation of "residence" lies to one out of several authorities, depending on the requested benefit which underlies the dispute (section 13). On 7 January 1997 the Social Insurance Institution considered, pursuant to section 3 of the 1993 Act, that the applicants were not entitled to sickness insurance benefits under the 1963 Act. The Social Insurance Institution noted that the applicants had arrived in Finland as refugees. Moreover, at the time of the Social Insurance Institution's decision the applicants had no passports or work permits in Finland nor had they been entered in the Finnish population register. The applicants appealed to the Social Insurance Board (sosiaalivakuutuslautakunta, socialförsäkringsnämnden) on 10 January 1997, referring, in particular, to the fact that Pasi Karassev had been born in Finland. On 10 February 1997 the first three applicants were granted oneyear residence permits in Finland. The Ministry of the Interior now considered that their citizenship was unknown. It recalled that the attempts to enforce the expulsion order regarding the applicants had failed. Most recently, the Russian authorities had stated, on 2 January 1997, that the applicants would not be accepted back into that country. It appears that the first three applicants were also granted aliens passports. Under section 5 of the 1991 Aliens Act (ulkomaalaislaki, utlänningslag 378/1991; later amended) such a 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 issuing such a document. On 19 February 1997 the Population Registration Authority

5 (maistraatti, magistraten) of Kotka stated that it could not yet deal with Pasi Karassev's request to be registered as resident in Finland and to be granted a personal identification number. The Registration Authority referred to the pending citizenship proceedings and recalled that Pasi's registration would require proof of his Finnish citizenship or residence permit. On 4 March 1997 Mrs Karasseva was granted a monthly child allowance for Juri Karassev exclusively. On 12 March 1997 the Ministry of the Interior requested the Ministry of Foreign Affairs to seek clarification from the Russian authorities as regards the applicants' citizenship. The Ministry of the Interior now stated that under the terms of the Russian Citizenship Act, citizens of the former Soviet Union who were permanently resident within the Russian Federation's territory when the Act entered into force were automatically granted Russian citizenship provided they did not refuse it within a year from the entry into force of the Citizenship Act. In the view of the Ministry of the Interior, Mr Karassev and Mrs Karasseva had not presented evidence of such a refusal. According to the applicants, their objection to becoming Russian citizens was addressed to the Russian authorities and lodged with the Finnish Ministry of the Interior. On 14 April 1997 the Social Insurance Institution granted Mrs Karasseva a housing allowance as from 1 March 1997 and, on 18 April 1997, she was granted an employment allowance as from 13 March Pasi Karassev was not taken into account when the amounts of these allowances were fixed. On 16 May 1997 the employment allowance was nevertheless increased, both children having been taken into account. In a diplomatic note of 26 May 1997 the Ministry of Foreign Affairs of the Russian Federation conveyed the reply of the Citizenship Commission of the President of the Russian Federation to the Finnish Ministry's question whether the applicants were citizens of the Russian Federation. The Commission recalled that according to a 1993 Decree citizens of the former Soviet Union who were permanently resident abroad, who had left the country temporarily prior to 6 February 1992 and who had returned to the country after the Citizenship Act had entered into force, were recognised as citizens of the Russian Federation. However, the applicants had not returned. Given that they had resided in Finland for over five years and did not intend to return, they had, in the opinion of the Citizenship Commission, lost those ties to the Russian Federation on the basis of which they could be considered citizens of that State. The Citizenship Commission did not refer to any formal refusal by the applicants to accept Russian citizenship. On 28 May 1997 Mrs Karasseva was also granted a child allowance for Pasi Karassev. In response to the applicants' appeal of 10 January 1997 the Appellate Board for Social Insurance (tarkastuslautakunta, prövningsnämnden), on 16 September 1997, referred the matter back to the Social Insurance Institution. According to the applicants, the Social Insurance Institution has considered it unnecessary to decide this matter separately and has referred to its decisions of 16 and 28 May In its opinion to the President of the Republic the Supreme Administrative Court, on 17 December 1997, considered that Pasi Karassev had not obtained Finnish citizenship on his birth in Finland. The Supreme Administrative Court noted, inter alia, that on their arrival in Finland the other applicants had been citizens of the Soviet Union. They had not lost the citizenship of the successor State (the

6 Russian Federation) by the time Pasi Karassev had been born. The Supreme Administrative Court's decision discusses neither the Russian Decree of 1993 to which the Citizenship Commission of the President of the Russian Federation had referred in the applicants' case nor the Russian Embassy's certificates according to which the applicants are not Russian citizens. On 22 December 1997 the Russian Embassy again certified that pursuant to the Russian Citizenship Act Pasi Karassev was not and had not been a citizen of that State. On 23 January 1998 the President of the Republic declared, with reference to the Supreme Administrative Court's opinion, that Pasi Karassev was not a Finnish citizen. The applicants have petitioned the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) concerning the excessive length of the proceedings pertaining to Pasi Karassev's request for a citizenship declaration. No decision has been made. COMPLAINTS The applicant family essentially complains about the Finnish authorities' procrastination in regularising their stay in the country, although the applicants remain stateless and have integrated successfully in Finland. Moreover, as on his birth in Finland Pasi Karassev did not receive any other citizenship through his parents, he should have been considered a Finnish citizen by birth. The investigation into Pasi's citizenship was excessively lengthy and the Finnish authorities did not explain why, in the applicants' case, they arrived at a conclusion opposite to that conveyed by the Russian authorities in respect of the applicants' citizenship. Finally, the applicants refer to their precarious situation in respect of the Finnish social security system. Not holding valid residence permits, they were not entitled to certain health services and benefits. This situation allegedly prevails in respect of Pasi Karassev. The applicants invoke Articles 6, 8 and 14 of the Convention and Article 3 of Protocol No. 4 to the Convention. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 5 May 1995 and registered on 7 May On 17 May 1996 the Rapporteur decided to request certain information from the respondent Government, pursuant to Rule 47 para. 2 (a) of the Rules of Procedure. Information was submitted by the Government on 10 June Comments in reply were submitted by the applicants on 26 June THE LAW The applicants essentially complain about the Finnish authorities' procrastination in regularising their stay in the country and the resultant effects on their entitlement to various benefits. Moreover, in spite of the views obtained from the Russian authorities on the applicants' status under the Russian Citizenship Act, the Finnish authorities, after a lengthy investigation and without providing sufficient reasons, refused to consider Pasi Karassev a Finnish citizen by birth. They invoke Articles 6, 8 and 14 (Art. 6, 8, 14) of the Convention and Article 3 of Protocol No. 4 (P4-3) to the Convention.

7 1. The Commission has first examined the complaints under Articles 8 and 14 (Art. 8, 14) of the Convention in so far as they have been brought by the first three applicants. Article 8 (Art. 8) reads, in so far as relevant, as follows: "1. Everyone has the right to respect for his private and family life, his home 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." Article 14 (Art. 14) reads 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." (a) As regards the first three applicants' allegedly uncertain right of abode in Finland, the Commission recalls that as a matter of wellestablished 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 nonnational 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). The Commission notes that on 11 January 1996 the respondent Government stated that, should the Russian authorities not agree to receive the applicants into that country, the expulsion order would not be enforced. Instead that order would be reconsidered, as would the question whether to grant the applicants residence permits. The Commission furthermore notes that the deportation order concerning the applicants was not quashed but left unenforced. In February 1997 the first three applicants were granted one-year residence permits and there is no indication that these have not been prolonged. In these circumstances the mere expulsion threat to which the first three applicants have been subjected is not sufficient to raise an issue under Article 8 (Art. 8) of the Convention. The Commission arrives at the same conclusion in so far as the first three applicants complain, on the one hand, about the refusal to consider Pasi Karassev a Finnish citizen by birth and, on the other hand, about those proceedings in themselves. Finally, in so far as the first three applicants complain that they have not been entitled to Finnish social security benefits, the Commission would recall that neither Article 8 (Art. 8) nor any other provision of the Convention or its Protocols expressly guarantees any right to such benefits. Moreover, it transpires from the file that these applicants have in fact been entitled to various benefits.

8 In the aforementioned circumstances the Commission cannot find that the first three applicants' past or present situation in Finland discloses a lack of respect for their rights under Article 8 (Art. 8) of the Convention. Nor can the Commission find any indication that these applicants have been discriminated against in the enjoyment of their rights under that provision, contrary to Article 14 (Art. 14) 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. (b) The Commission considers that it cannot, on the basis of the file, determine the admissibility of the aforementioned complaints in so far as they have been made on behalf of the fourth applicant. It is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice thereof to the respondent Government. 2. The Commission has next dealt with the applicants' grievance under Article 3 of Protocol No. 4 (P4-3) to the Convention. This provision reads, in so far as relevant, as follows: "1. No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national...." The Commission notes that, apart from the fact that none of the applicants have in effect been expelled, none of them have Finnish citizenship. This provision is therefore inapplicable in the instant case. It follows that this part of the application is incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2). 3. Finally, the Commission has examined the applicants' grievance under Article 6 (Art. 6) of the Convention with presumably refers at least to the length of the proceedings concerning Pasi Karassev's entitlement to Finnish nationality. Article 6 (Art. 6) reads, in its relevant part, as follows: "1. In the determination of his civil rights and obligations..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...." The question arises whether the proceedings before the President of the Republic relating to Pasi Karassev's request to be recognised as a Finnish citizen by birth involved a "determination" of his "civil rights and obligations" within the meaning of Article 6 para. 1 (Art. 6-1). For the applicability of this provision it is sufficient that the outcome of the proceedings is "decisive for private law rights and obligations (see, e.g., Eur. Court HR, H. v. France judgment of 24 October 1989, Series A no. 162, p. 20, para. 47). Even assuming that applicant Pasi Karassev could arguably claim a "right" to Finnish citizenship, 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. No /92, Dec , D.R. 80-A, pp. 38, 45). The Commission reaches the same conclusion as regards any "obligation" which might have been determined by the citizenship proceedings. It follows that this part of the application is likewise incompatible ratione materiae with the Convention within the meaning

9 of Article 27 para. 2 (Art. 27-2). For these reasons, the Commission, DECIDES TO ADJOURN the examination of the fourth applicant's complaints concerning his right to respect for his private life and his right not to be discriminated against; and unanimously, DECLARES INADMISSIBLE the remainder of the application. M. de SALVIA S. TRECHSEL Secretary President to the Commission of the Commission