Finland - Supreme Court, 5 April 2013, KKO:2013:21

Facts:

A had escaped from Afganistan on the grounds of persecution  by the Taleban guerillas because of his/her work. A left Kabul, Afganistan on 24.7.2010 by air via Dubai en-route to Egypt, from where he/she continued on to Cyprus on 29.7.2010. From there he/she further continued by air on 1.8.2010 to Germany from where he/she arrived in Finland on the same day. After six days, A tried to continue his/her journey from Finland to Canada on 6.8.2010. He/she was caught by Helsinki-Vantaa airport border control after presenting a forged UK passport to the Finnish border authorities. A had presented a passport in his/her name in which the serial number had been changed. The passport had been reported as stolen.

The District Court took the view that as a young person, A had had no reason to present a forged passport to Finnish authorities and gave him/her a 45 day suspended prison sentence.

A appealed to Helsinki Court of Appeal. A argued that he/she could not be punished for this because Article 31(3) of the Geneva Convention on Refugees protects refugees from such punitive measures. The Court of Appeal took the view that the Refugee Convention prevented A from being punished for forgery. To obtain the protection in  Article 31(3) of the Geneva Convention on Refugees, the person simply had to report to the authorities immediately upon arrival. A had done this when applying for asylum in Finland and he/she had not been refouled. It is thefore possible for A to be a refugee under the Refugee Convention who was protected under Article 31(3) of the Convention. The Court of Appeal overturned the charge and the sentence.

The Prosecutor appealed the judgment by the Court of Appeal to the Supreme Court.

Decision & reasoning:

According to the Supreme Administrative Court, it was indisputable that A presented a false or forged travel document to the border authorities when trying to leave Finland. In principle, A fulfilled the criteria for the offence of forgery as specified in Chapter 33 Section 1 of the Criminal Act. Article 31 protects asylum seekers and refugees from criminal liability and sanctions if they have to break immigration and travel laws. When legislating for Chapter 33, Section 1 of the Criminal Act, the effect of the Refugee Convention on the sanctions had not been taken into account. However, it is not justified to leave the offence of forgery outside of the protection guaranteed by Article 31 as the purpose of the Article is to offer comprehensive protection to refugees. In order to apply Article 31(1), refugees have to arrive directly from the country where their lives or freedom have been under threat in accordance with Article 1 of the Refugee Convention and they must show good cause for their illegal arrival or stay. When interpreting the Refugee Convention, in addition to the wording, it is necessary to also take into account the objectives of the Refugee Convention and the aim of protecting refugees.

  The Supreme Court took the view that the account given by A showed that in the country of his/her departure and before arriving in Finland, he/she had been subjected to persecution or other threat as specified in Article 1 of the Refugee Convention. Thus A had provided a valid reason for arriving in Finland.

A’s journey to Finland had lasted approximately eight days. Transit and a short stay in other countries on the way to the final destination are not barriers which prohibit applying the protection inArticle 31(1) of the Refugee Convention although he/she was not faced with the persecution or threat as specified in Article 1 of the Refugee Convention in the transit countries. In light of the above, A could be seen to have arrived directly from a country where his/her life or freedom was under threat as specified in Article 1 of the Refugee Convention.

Because A would have been able to invoke the protection as specified in Article 31 in his/her destination country, it would have been facetious to deny him/her the protectionof the Article during his/her journey.

Also it is not relevant that he/she applied for asylum only when he/she was leaving the country and not immediately upon arrival. A’s arrival in Finland fulfilled the requirement in Article 1 of the Refugee Convention to report immediately to authorities.

The Supreme Court took the view that A’s arrival in Finland fulfilled the requirements in Article 31(1) of the Refugee Convention so that he/she should not be punished for forgery after he/she presented a forged travel document to the Finnish border authorities. 

Outcome:

The Supreme Court did not overturn the decision of the Court of Appeal and thus A was released of any charges.

Other sources:

UNHCR Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention 1999 paragraph 4, introduction.

Other legislation: Article 31 of The Vienna Convention on the Law of Treaties.