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Ombudsman's decision in "refusal of entry to grandmother's" case

16.2.2011

Parliamentary Ombudsman Petri Jääskeläinen has today  (16.2.2011) issued his decisions on 19 complaints, in which the actions of President Pekka Hallberg of the Supreme Administrative Court and National Police Commissioner Mikko Paatero in the so-called refusal of entry to grandmothers case was criticised.

The Ombudsman takes the view that Pekka Hallberg's action was contrary to the principles concerning the separation of powers and independence of the judiciary that are enshrined in Section 3 of the Constitution. The action was inappropriate for the President of the Supreme Administrative Court and for a judge who remained in the minority in the composition of the Court that decided in the case.

In assessing the blameworthiness of President Hallberg's action, the Ombudsman took account of the human aspects and motives associated with the case as well as the possibility of a rapid legislative change that was under discussion at the time. In the light of these aspects, the Ombudsman is of the opinion that President Pekka Hallberg's action can be regarded in a subjective sense as understandable to some degree, but nevertheless not acceptable when legally assessed and from the perspective of principle.

With respect to the actions of National Police Commissioner Mikko Paatero or the Helsinki or Itä-Uusimaa police authorities, the Ombudsman has no grounds to suspect that they exceeded their discretionary powers.

Ombudsman Jääskeläinen will not give interviews in this matter. Information concerning handling of the matter at the Office of the Parliamentary Ombudsman will if necessary be provided by Legal Adviser Pasi Pölönen, tel. +358(0)9 432 3345.

The following is a summary of the decision by Ombudsman Jääskeläinen:

The case involves two refusal-of-entry decisions that had gained the force of law. In the case of Evelin Fadail, the way in which the Supreme Administrative Court issued its decision was that President Pekka Hallberg himself participated in formulating the decision, but remained in the minority (6-1-1) in the vote. Irina Antonova?s case was dealt with in the Helsinki Administrative Court and the Supreme Administrative Court refused leave to appeal in a decision in which Hallberg did not participate. President Hallberg sent the refusal-of-entry decisions to the police authorities responsible for enforcement and to National Police Commissioner Mikko Paatero a letter in which he referred to inter alia a possible change in the law and stated that "from the perspective of the Court" there were no grounds to expedite enforcement of the decisions. The entire contents of the letter are shown under heading 2"Report obtained" in the beginning. The police delayed enforcement of the refusal-of-entry decisions.

The central questions in this case relate to the independence of courts and the separation of powers that are provided for in Section 3 of the Constitution. The core content of the independence of courts is that in its exercise of judicial power a court and the composition it forms for each individual case must be independent of and free from the influence of other instances. The exercise of judicial power must be independent inter alia in relation to executive and legislative power as well as in relation to the litigation parties and other interested instances. In a state governed under the rule of law, a central part of independent judicial power and legal certainty is that final decisions by a court are enforced. I have dealt with the independence of courts under heading 5.1.3.

President Pekka Hallberg's action

Under heading 5.1 I have evaluated President Pekka Hallberg's action from the perspectives of inter alia his powers, influencing enforcement, the court's internal and external independence, joint provision of publicity by the court and the police, a judge's freedom of speech as well as the principle of equality. I have considered Hallberg's action to be subject to criticism in all of the mentioned respects.

Pekka Hallberg's powers as the President of the Supreme Administrative Court or as a judge who was part of the composition that decided in the case did not include making a decision or issuing an order or guidelines in questions associated with enforcement of a judgement that had gained the force of law. Hallberg acted unofficially in the matter, but not however as a private person. On the contrary, he referred in his letter to his position as the President of the Supreme Administrative Court and as a member of the composition that reached a decision in the Fadail case.

In my view, the intention with Pekka Hallberg's communications was to influence the police in the two refusal-of-entry matters that it had to enforce. Otherwise I see no reason for the communications.

Extra-processual comments by an individual judge, who has belonged to the composition of a collegial judicial panel that has decided on a case, in relation to matters associated with the decision are already a priori problematic from the perspective of the court's internal independence  Where the court's internal independence is concerned, the President of the Supreme Administrative Court has the same status in making a decision on a matter of exercising judicial power as have the other judges who have participated in making the decision.

In this case President Hallberg intervened tangibly in the court's internal independence when he presented views, "from the perspective of the Court", on enforcement of the decisions. Looked at from the angle of the independence principle, the problematic nature of his action is accentuated by the fact that in one of the cases Hallberg was a judge who remained in the minority when the court decided and that the intervention was made by the President of the Supreme Administrative Court.

When a matter is being deliberated and a decision negotiated, a judge belonging to a panel with several members can try through the arguments he presents to outline to the other judges his reasons for believing that the case should be resolved in a particular way. If he does not succeed in this, the judge can append a dissenting opinion to the judgement of the court. Then no moral or legal responsibility for the majority's decision attaches to the judge. For example, the aspects mentioned by President Hallberg in his explanation, relating to what is stated in the judicial guidelines about fairness and ensuring the collective interests of the public, are things that a judge can set forth in deliberation of the decision and if necessary in a separate statement on voting.  By contrast, a judge may not through extra-processual measures attempt to influence the legal effects, such as enforcement, of a court judgement.

On the level of principle, the problematic character of the action is not lessened by the fact that Pekka Hallberg's statement on the voting result could possibly have been interpreted at the time as indicating that he had received the support of the top political leadership. A configuration in which factors and influences extraneous to the courts system are in the background to a judge's action can, on the contrary, be seen as expanding the problematic aspect of the action in that it might have a weakening effect on the prevailing image of the so-called external independence of exercise of judicial power or more generally on the trust in courts that is felt.

The Supreme Administrative Court and the National Police Board issued a joint bulletin in the matter to the effect that the police would not for the moment be expelling the foreign grandmothers. The contents of the bulletin are outlined in the end of the section under heading 5.1.3. I have found that a joint presentation by a court exercising independent judicial power and a police force responsible for enforcement can in general be considered strange from the perspective of the basic separation of the powers of the state. It can be said that this provision of information gave the wrong picture in the matter, because the Supreme Administrative Court did not as a court have anything to do with questions relating to the timetable for implementation of judgements. All that was involved was President Hallberg's own unofficial action. The facts associated with the provision of information have, in my view, exacerbated the harmfulness of Pekka Hallberg's action from the perspective of the principle of the court?s independence. The bulletin was conducive to blurring the public picture of the importance of the court's independence and of the separation of powers.

What is involved in the matter is not the right to criticise a court judgement that belongs to normal freedom of speech or of participation in the discourse on legal policy. The role of a person who presents a stance on a court judgement and the opportunities to influence that go with that role are of significance with respect to the degree to which a statement can be regarded as meaning an intervention in the court's independence. I find it obvious that Hallberg's communications with the police could not have been justified for reasons to do with the exercise of freedom of speech.

In addition, intervening in the capacity of the President of the Supreme Administrative Court in the enforcement of two individual matters has been problematic for implementation of equal treatment of people and legal certainty. What was involved was a group of cases, in which there are or can be several comparable cases that are the object of enforcement and which a possible change in the law could affect. Alongside the actual effects, the picture mediated has also been of significance from the perspective of equality.

In my view, Pekka Hallberg's action was contrary to the principles concerning separation of powers and independence of courts that are enshrined in Section 3 of the Constitution. The action was inappropriate for the President of the Supreme Administrative Court and a judge who remained in the minority in the composition of the Court that adjudicated in the case.

In assessing the blameworthiness of the action I have, on the other hand, taken the following into consideration:

Pekka Hallberg has stated that he was concerned that expeditious enforcement of the judgements at Easter would appear to lead to quite inhumane events. He has reported that he was trying for humane reasons to give voice to a configuration that was generally known. I have pointed out that a person in the position of President of the Supreme Administrative Court should not allow a subjectively felt sense of duty to guide him to actions of a kind that may have a negative effect on the independence of courts or the principle of separation of powers. In a subjective evaluation of blameworthiness, however, human motives can be taken into consideration.

Pekka Hallberg has stated in his letter that a possible revision of the law does not mean intervention in a Supreme Administrative Court judgement that has gained the force of law. If, however, the conditions that the Aliens Act stipulates for receiving a residence permit were to be changed, also in the cases now the focus of attention it would be possible to make new applications and have them resolved on the basis of the altered preconditions. I note that this configuration suggested by Hallberg in his letter is in and of itself correct. Taking into consideration that at that stage a notification indicating the commencement of work to examine an expeditious amendment of the law had come from the top political leadership, it was in principle possible that the configuration would be realised.

A further matter that can be pointed out in post factum evaluation of the case is that both refusal-of-entry decisions were later appealed to the European Court of Human Rights, which has issued interim injunctions suspending enforcement of the judgements. The interim injunctions were cancelled only after Irina Antonova's departure from the country and Evelin Fadail's death. According to the information I have received, the appeals are still pending. At least in theory, a course of events in which the appeals would lead to a judgement to the effect that a right guaranteed in the European Convention on Human Rights had been violated is conceivable. I have pointed out under heading 5.2.2 that situations of this kind are very rare in the case law of the European Court of Human Rights. Pekka Hallberg did not invoke this possibility, either, but his motive may have been to prevent possible inhumane events.

In the light of these aspects, I take the view that President Pekka Hallberg's action can be regarded in a subjective sense as being to some degree understandable, but nevertheless not acceptable when legally assessed and from the perspective of principle.

The action of the police

With respect to the action of the police authorities, I have found that the enforcement authorities have for several reasons power of discretion in various tasks and timetables associated with enforcement of refusal-of-entry decisions.  In overall deliberation of this kind it is possible, in my view, to take account within certain limits of, alongside other factors, also the possibility now being discussed of a very rapid legislative amendment.  However, application of a reason of this kind can be acceptable only to the extent and with the proviso that the authorities responsible for enforcement ensure scrupulously that a uniform procedure is followed in other comparable cases that any change in the law could affect.

In addition, this reason can be in effect for only a limited time. In any other case, i.e. if a possible change in the law has to be awaited for a long time, a situation is approached in which delay in enforcing a court's final judgement can mean a state of affairs contrary to respect for the independence of the court.

On the grounds that I have outlined in greater detail under heading 5.2, I have taken the view that I have no reason to suspect that National Police Commissioner Mikko Paatero or the Helsinki or Itä-Uusimaa police authorities have exceeded their discretionary power in this matter.

Measures

I am forwarding the criticism that I have expressed under headings 5.1 and 6 above to President Pekka Hallberg of the Supreme Administrative Court for his information. For this purpose I am sending him a copy of this decision of mine.

I am sending the aspects that I have outlined under heading 5.2 to National Police Commissioner Mikko Paatero as well as the Itä-Uusimaa and Helsinki police services.

I am also informing the complainants as well as the Finnish Immigration Service of my decision.