Deputy-Ombudsman (AOA) Pasi Pölönen has handed down a decision in a matter that he has examined as his own initiative concerning measures targeting people crossing the Finnish border in connection with the temporary restoration of monitoring the internal borders of the European Union.
Several complaints were made to the supreme overseers of legality in the spring and summer of this year concerning actions taken by the Finnish Border Guard especially in the surveillance of Finland's Western border, primarily between Finland and Sweden. Several citizens filed complaints, saying that they had been denied the possibility to cross the border, even though there were no legal justifications for the denials.
The Deputy-Ombudsman has concluded that recommendations and binding orders given to persons wishing to cross the border had become confused on some levels in the early phases of the restoration of monitoring of internal borders.
A binding order or command given by an official to a citizen must always be based on a regulation contained in legislation that provides a legal mandate to do so. If necessary, the citizen must also be informed if a binding order, or simply a recommendation handed down by an official is involved.
The purpose of government decisions on the restoration of internal border controls, the closure of border crossings, and restrictions on transport has been to reduce cross-border movement to slow the spread of the coronavirus pandemic, thus promoting the basic right of citizens to protection of their lives and health.
Under the Finnish constitution, a Finnish citizen always has the right to enter Finland and to leave Finland. If there were no legal impediments to leaving the country, people intending to cross the border should have been informed that they have the right to cross the border without negative legal consequences and that it is a question of their freedom of choice. In the same situation it would have been possible to advise them that leaving the country was nevertheless not advisable. The overall security of Finnish citizens and the protection of their lives and health was emphasised in the situation at hand, which means that giving recommendations concerning travel as such has been justified.
According to the Deputy-Ombudsman it is nevertheless understandable that it has been challenging to give instructions under exceptional and unexpected conditions, and under heavy pressure on crossing the border that are compatible with both the recommendations and with the constitutional right to leave the country, while keeping in mind the goals and will of the Finnish Government. This is, nevertheless, the procedure that should have been followed.
In his decision 3257/2020, the Deputy-Ombudsman has examined only the operative activities of the Border Guard and their legality in light of their status as the authority that implements border monitoring connected with the restoration of the supervision of internal borders for a fixed period of time. On 1 October 2020, the Chancellor of Justice handed down a decision on decision-making and measures taken by the Government and its ministries on announcements concerning the coronavirus.
Further information is available from Kristian Holman, Senior Legal Adviser, tel. +358 9 432 3368.