European Court of Human Rights

                      AS TO THE ADMISSIBILITY OF

                      Application No. 19583/92
                      by Vesa PELTONEN
                      against Finland

      The European Commission of Human Rights sitting in private on
20 February 1995, the following members being present:

           MM.   C.A. NØRGAARD, President
                 H. DANELIUS
                 C.L. ROZAKIS
                 G. JÖRUNDSSON
                 S. TRECHSEL
                 A.S. GÖZÜBÜYÜK
                 A. WEITZEL
                 J.-C. SOYER
                 H.G. SCHERMERS
           Mrs.  G.H. THUNE
           Mr.   F. MARTINEZ
           Mrs.  J. LIDDY
           MM.   L. LOUCAIDES
                 J.-C. GEUS
                 M.P. PELLONPÄÄ
                 B. MARXER
                 M.A. NOWICKI
                 I. CABRAL BARRETO
                 B. CONFORTI
                 I. BÉKÉS
                 J. MUCHA
                 D. SVÁBY
                 E. KONSTANTINOV
                 G. RESS

           Mr.   H.C. KRÜGER, 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 20 September 1990
by Vesa PELTONEN against Finland and registered on 4 March 1992 under
file No. 19583/92;    Having regard to :

-     the reports provided for in Rule 47 of the Rules of Procedure of
      the Commission;

-     the observations submitted by the respondent Government on
      22 December 1993, the observations in reply submitted by the
      applicant on 17 March and 31 August 1994, the Government's
      additional observations submitted on 30 September 1994 and
      3 February 1995 and the applicant's additional observations in
      reply of 9 November 1994 and 9 February 1995;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a Finnish citizen, born in 1970, and resident
in Märsta, Sweden. He is a cleaner by profession. Before the Commission
he is represented by Mr. Martin Scheinin, LL.D., Helsinki, Finland.

      The facts of the case, as submitted on behalf of the parties, may
be summarised as follows.

Particular circumstances of the case

      The applicant has been permanently resident in Sweden since
December 1986. On 29 June 1990 he requested a ten-year passport at the
Finnish Embassy in Stockholm. On 20 July 1990 the Embassy informed the
applicant that he could not be issued with a passport, as he had failed
to attend the call-up for military service. In a final refusal of
10 September 1990 the Embassy referred to the fact that the applicant
was wanted in Finland for not having attended a call-up. The Embassy
did not rely on any specific provision of the 1986 Passport Act
(passilaki 642/86, passlag 642/86) for the refusal. On 1 November 1990
the applicant was informed of his right to appeal against this
decision.

      In his appeal to the County Administrative Court (lääninoikeus,
länsrätten) of Uusimaa, the applicant contended that he was wanted for
an offence punishable with a maximum of six months' imprisonment and
that, consequently, section 9, subsection 1(1) of the Passport Act was
not applicable in his case.

       The Embassy's refusal was upheld by the County Administrative
Court on 22 January 1991 and by the Supreme Administrative Court
(korkein hallinto-oikeus, högsta förvaltningsdomstolen) on
19 September 1991. Both courts considered that the refusal was lawful
under Section 9, subsection 1(6) of the Passport Act. The County
Administrative Court also stated that this provision did not violate
the Convention.

Relevant domestic law

      1.   The constitutional duty to defend the country

      Every Finnish citizen is obliged to participate in the defence
of the country or to assist therein, as further described by law
(section 75, subsection 1 of the 1919 Constitution Act (Suomen
hallitusmuoto 94/19, Regeringsform för Finland 94/19)).

      Under the 1950 Military Service Act (asevelvollisuuslaki 452/50,
värnpliktslag 452/50) every Finnish male citizen is obliged to serve
in the military (section 1). The punishment for failure to attend a
call-up is either a fine or imprisonment of up to six months (section
40, subsection 1, as amended by Act no. 325/83).

      After expiry of the year during which a person liable for
military service turns thirty years of age he can no longer be called
up to perform his service (section 27, subsection 3, as amended by Act
no. 1169/88).

      A person liable for military service shall attend a call-up if
he has reached or will reach the age of eighteen during the year of the
call-up or if, for instance, he has failed to attend a previous call-up
despite his age (section 23, subsections 1 and 2, as amended by Act no.
1169/88 and in force at the relevant time, and section 24, as in force
at the relevant time). According to the 1951 Military Service Decree
(asetus asevelvollisuuslain soveltamisesta 63/51, förordning 63/51 ang.
tillämpning av värnpliktslagen), a person liable for military service
and resident abroad shall attend the call-up in the Finnish
municipality where he was most recently residing (section 18).

      2.   Passport regulations

      A Finnish citizen is entitled to a passport, unless otherwise is
prescribed by law (section 3, subsection 1 of the Passport Act). A
passport shall normally be issued for ten years (section 7, subsection
1). Under section 9, subsection 1 of the Passport Act a passport may
be refused, inter alia, to the following persons:

      -    a person suspected of an offence punishable with more than
      one year's imprisonment, a person who is wanted as such a suspect
      or who is charged with such an offence (para. 1, as amended by
      Act no. 1037/88); or

      -    a person who is liable for military service and who is
      between seventeen and thirty years of age, unless he shows that
      his liability for military service does not constitute an
      obstacle to the issuing of a passport (para. 6).

      Even if one of the above grounds for refusing a passport exists,
regard shall be had to the importance for the passport applicant of
travelling in view of his or her family life, state of health,
subsistence, profession and other circumstances (section 10, subsection
1). For instance, if a ten-year passport is refused on one of the
above-stated grounds a passport of shorter validity may, nevertheless,
be issued (section 8, subsection 1).

      If the passport applicant is between seventeen and thirty years
of age and has not yet performed his military service, he must show
that his liability for military service is not an obstacle to the
issuing of a passport. This may be done by submitting a so-called
clearance certificate (esteettömyystodistus, hinderlöshetsintyg) or a
certificate that he is exempted from military service (section 4 of the
1986 Passport Decree (passiasetus 643/86, passförordning 643/86)). If
the passport application is lodged abroad a clearance certificate must
be obtained from the police authority at his most recent domicile in
Finland (cf. section 6).

      3.   Freedom of movement within the Nordic countries

      Under an agreement between the Nordic countries, no passport is
needed for a Nordic citizen travelling from one Nordic country to
another (see, e.g., Finnish Treaty Series no. 17/54, as later amended).

COMPLAINTS

1.    The applicant complains about the refusal to issue him with a
Finnish passport, which prevents him from travelling outside the Nordic
countries and thereby interferes with his freedom under Article 2 para.
2 of Protocol No. 4 to the Convention to leave any country. The
applicant alleges that the passport refusal was not "in accordance with
the law", as it was not foreseeable. He accepts that the refusal was
aimed at securing "ordre public", but argues that it was not necessary
in a democratic society for the purpose of achieving that aim. Instead
of instituting criminal proceedings against him for draft evasion the
authorities have imposed a de facto punishment consisting of a travel
ban lasting until his thirtieth birthday (in the year 2000). The
passport refusal is disproportional to the offence of draft evasion and
the punishment prescribed therefor.

2.    As far as the refusal to issue him with a passport is alleged to
constitute a de facto punishment for draft evasion, the applicant also
invokes Article 7 para. 1 of the Convention. Allegedly, Finnish law
does not prescribe a travel ban as punishment for draft evasion.

3.    The applicant finally complains that he was denied a fair hearing
of his case. He submits that the County Administrative Court, without
first hearing him either orally or in writing, rejected his appeal on
another ground than that on which the Embassy's refusal had been based
and which he had challenged in his appeal. The Supreme Administrative
Court further upheld the reasoning of the County Administrative Court
allegedly without hearing the applicant. In this respect, the applicant
invokes Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 20 September 1990 and
registered on 4 March 1992.

      On 11 October 1993 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on the admissibility and merits
thereof.

      The observations were submitted by the respondent Government on
22 December 1993. Observations in reply were submitted by the applicant
on 17 March and 31 August 1994. The Government submitted additional
observations on 30 September 1994 and 3 February 1995. Additional
observations in reply were submitted by the applicant on
9 November 1994 and 9 February 1995.

THE LAW

1.    The applicant complains of the refusal to issue him with a
passport which prevents him from travelling outside the Nordic
countries and thereby interferes with his freedom under Article 2 para.
2 of Protocol No. 4 (P4-2-2) to the Convention to leave any country.
The relevant part of Article 2 of Protocol No. 4 (P4-2) 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
      [the above 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."

      In their observations of 22 December 1993 the Government,
referring to Article 27 para. 1 (b) (Art. 27-1-b) of the Convention,
drew the Commission's attention to the fact that the applicant's
brother has submitted a communication with contents similar to those
of the present case to the United Nations Human Rights Committee in
accordance with the Optional Protocol to the Covenant on Civil and
Political Rights.

      The Government furthermore accept that the refusal to issue the
applicant with a passport interfered with his freedom under Article 2
of Protocol No. 4 (P4-2). They consider, however, that it was justified
under para. 3 of that provision. The refusal was in accordance with the
law, since the provision invoked by the administrative courts was
accessible, sufficiently precise and thus foreseeable. The refusal
further had the legitimate aim of securing that the applicant would
perform his duty as a male Finnish citizen to serve in the military and
was therefore necessary primarily for the maintenance of "ordre
public". The Government underline that the applicant has consistently
failed to attend a call-up. The passport refusal is not, by definition,
valid until the year 2000, since a passport could be issued, if the
applicant would perform his military service. Furthermore, in
accordance with a Nordic agreement the applicant can travel freely
within the Nordic countries. Moreover, in his passport application or
subsequent appeals he made no reference to any of the particular
grounds mentioned in section 10 of the Passport Act allowing for an
exemption from the general rule under Section 9, subsection 1(6)
implying that a passport shall not be issued to a person in his
situation.

      The Government also point out that the passport refusal is not
a substitute for possible criminal proceedings which could be
instituted, should the applicant return to Finland and be caught by the
police. Criminal proceedings cannot, however, be instituted during his
absence from Finland, as he cannot be extradited for the offence of
failing to attend a call-up.

      In the above circumstances the Government consider that the
passport refusal was proportional to the aim sought to be achieved,
having regard to the particularly wide margin of appreciation which
should be afforded to the State in matters concerning national defence.

      The applicant maintains his complaint and refers, in particular,
to the circulars issued by the Ministry for Foreign Affairs in regard
to the interpretation of the Passport Act. He considers that this shows
that the passport refusal in his case was not foreseeable and thus was
not in accordance with the law. Moreover, since the refusal has not
prevented him from continuing to reside in another Nordic country it
is not an effective way of enforcing the obligation to perform military
service. It cannot therefore be considered "necessary in a democratic
society" for the aim pursued. Finally, while stating, in his
application, that he would need a passport for holiday travelling, the
applicant has later, in his observations of 17 March and
31 August 1994, emphasised that he would need freedom of movement
outside the Nordic countries also for employment purposes.

      The Commission recalls that under Article 27 para. 1 (b)
(Art. 27-1-b) of the Convention it shall not deal with any petition
submitted under Article 25 (Art. 25) which is, inter alia,
substantially the same as a matter which has already been submitted to
another procedure of international investigation or settlement and if
it contains no relevant new information. It is true that the freedom
guaranteed by Article 2 para. 2 of Protocol No. 4 (P4-2-2) resembles
that protected by Article 12 of the International Covenant on Civil and
Political Rights, which entered into force with regard to Finland in
1976. The Commission recalls, however, that if the complainants before
the Commission and, for instance, the United Nations Human Rights
Committee are not identical, the complaint to the Commission cannot be
considered as being substantially the same as the communication to the
Committee (cf. No. 11603/85, Dec. 20.1.87, D.R. 50 pp. 228-258, at
p. 237). The Commission is therefore called upon to deal with the
complaint.

      The Commission observes that the refusal to issue the applicant
with a Finnish passport has not prevented him from leaving that
country, nor is it preventing him from leaving a Nordic country for
another Nordic country. Article 2 para. 2 of Protocol No. 4 (P4-2-2)
provides, however, 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. The Commission therefore considers
that the passport refusal interfered with this freedom of the
applicant. It remains to be examined whether the interference was
justified under para. 3 of Article 2 (Art. 2-3).

      The Commission accepts that the passport refusal was "in
accordance with the law", it being based on Section 9, subsection 1 (6)
of the Passport Act. The Commission further considers, and it is not
in dispute between the parties, that the refusal had the legitimate
aims of maintaining "ordre public" and ensuring national security.

      As for the question whether the refusal was proportional to such
an aim, the Commission observes that instead of refusing the requested
ten-year passport the authorities could, of their own motion, have
issued the applicant with a passport of a shorter validity. The
Commission further notes that before the domestic courts the applicant
did not invoke any particular grounds warranting a departure from the
general rule under which a passport could be refused to a person liable
for military service who has failed to show a so-called clearance
certificate. The passport refusal is, moreover, not, by definition,
valid until the applicant's thirtieth birthday in the year 2000. He is
free to lodge a fresh passport request at any time, invoking, if he so
wishes, such  particular grounds as prescribed in section 10 of the
Passport Act. Like the Government, the Commission also considers that
Contracting States are entitled to a wide margin of appreciation in the
organisation of their national defence.

      The Commission therefore concludes that in the particular
circumstances of this case the refusal to issue the applicant with a
ten-year passport could reasonably be considered necessary in a
democratic society for the purposes of pursuing the above aims.
Accordingly, there is no appearance of a violation of Article 2 para.
2 of Protocol No. 4 (P4-2-2).

      It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.

2.    As far as the refusal to issue him with a passport is alleged to
constitute a de facto punishment for his draft evasion, the applicant
also invokes Article 7 para. 1 (Art. 7-1) of the Convention.
Article 7 (Art. 7) of the Convention reads as follows:

      "1.  No one shall be held guilty of any criminal offence on
      account of any act or omission which did not constitute a
      criminal offence under national or international law at the
      time when it was committed. Nor shall a heavier penalty be
      imposed than the one that was applicable at the time the
      criminal offence was committed.

      2.   This Article shall not prejudice the trial and punishment
      of any person for any act or omission which, at the time when it
      was committed, was criminal according to the general principles
      of law recognised by civilised nations."

      The Government consider that, although "in general terms" all
domestic remedies have been exhausted, this complaint was not raised
in substance before the domestic courts. Under Article 26 (Art. 26) of
the Convention the Commission is therefore prevented from examining it.
In the alternative, the Government submit that Article 7 (Art. 7) does
not apply.

      The applicant contends that his de facto punishment by virtue of
the passport refusal had no basis in the Constitution Act or the
Military Service Act.

      Even assuming that the applicant has exhausted the domestic
remedies in regard to the present complaint, as required by Article 26
(Art. 26) of the Convention, the Commission considers that the refusal
to issue him with a passport is not tantamount to a conviction of a
"criminal offence" within the meaning of Article 7 para. 1 (Art. 7-1).
Article 7 (Art. 7) is therefore not applicable.

      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 finally complains that he was denied a fair hearing
of his case, contrary to Article 6 para. 1 (Art. 6-1) of the Convention
which, as far as relevant, reads as follows:

      "In the determination of his civil rights ..., everyone is
      entitled to a fair and public hearing ... by [a] tribunal
      established by law. ..."

      The Government primarily submit that Article 6 para. 1 (Art. 6-1)
is inapplicable in the instant case. Whilst accepting that there was
a dispute regarding a "right" of the applicant, they claim that this
right was not of a "civil" character. Should the Commission find
otherwise, the Government refer to their reservation to the Convention
which excludes a right to an oral hearing insofar as current Finnish
laws do not provide such a right, as in the present case. As for the
other aspects of the applicant's right to a fair hearing the Government
argue that the complaint is manifestly ill-founded.

      The applicant contends, in particular, that his right to travel
abroad falls within the ambit of Article 6 para. 1 (Art. 6-1).
Moreover, Finland's reservation to the right to an "oral" hearing does
not exclude the applicant's right to a "fair" hearing, assessing the
proceedings at issue as a whole.

      The Commission must ascertain whether Article 6 para. 1
(Art. 6-1) of the Convention is applicable in the instant case and,
first of all, whether there was a dispute over a "civil right" which
can be said, at least on arguable grounds, to be recognised under
domestic law (e.g., Eur. Court H.R., 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 H.R., König
judgment of 28 June 1978, Series A no. 27, pp. 29-30, para. 88).

      The Commission recalls that this case does not primarily concern
the applicant's freedom to leave his country of nationality. However,
even assuming that the applicant could arguably claim, as a citizen of
Finland, a personal and individual "right" to a passport of that
country, 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., mutatis mutandis, No. 7902/77, Dec. 18.5.77, D.R. 9
p. 224 and, e.g., Eur. Court H.R., Salesi judgment of 26 February 1993,
Series A no. 257-E, pp. 59-60, para. 19). Accordingly, Article 6
para. 1 (Art. 6-1) does not apply.

      It follows that this complaint is also 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, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission            President of the Commission

      (H.C. KRÜGER)                           (C.A. NØRGAARD)