Reply to complaints concerning the repatriation of individuals in the Syrian camp
NB: Unofficial translation
Chancellor of Justice Tuomas Pöysti gave a decision on several complaints concerning the repatriation of individuals in the Syrian camp. In his decision, the Chancellor of Justice considered whether the Government or authorities have an obligation to undertake the repatriation of Finnish citizens or persons with a comparable status who have a permanent residence permit in Finland. The main findings of the decision were as follows:
The subject matter is judicially complex. In addition, the situation in Syria is constantly changing. The Chancellor of Justice concluded that the Government and the ministers had acted lawfully in the question of the repatriation of Finnish women and children in the Syrian camp.
The Chancellor of Justice noted that due to the situation in Syria, the Finnish mission abroad cannot provide the usual consular services in the area. Several years ago, the Ministry for Foreign Affairs has instructed people to leave the area and announced that consular services are not available. This is also stated in travel advice bulletin. The Foreign Service could not be considered to have had a general obligation to try to repatriate from the camp all Finnish citizens or individuals residing in Finland based on a residence permit.
Authorities are obligated to act so that the security of those residing or staying in Finland is not endangered. In the light of the information received by the Chancellor of Justice, the decision also considered security threats related to the repatriation of those in the camp. The Chancellor of Justice noted that the question is about the balancing of fundamental and human rights, which is difficult and on which it is not possible to take a stand solely through the means of oversight of legality. The extent to which the security threats caused by repatriated adult would be managed with reasonable measures must be considered. This issue could not be resolved through oversight of legality. In addition, oversight of legality could not be used to assess, for example, the actual possibilities of the Finnish authorities to repatriate the individuals in the camp without compromising the safety of the authorities involved in the repatriation or to verify the identity of the individuals to be repatriated.
It was also a question of the fundamental and human rights of those in the camp, with these rights having been severely compromised due to the poor conditions in the camp. This applied in particular to the children of Finnish citizens or the children of holders of Finland's permanent residence permits who have ended up in the camp through no fault of their own and whose right to life was first and foremost at stake. However, the repatriation of children alone was associated with legally difficult aspects, which the Chancellor of Justice considered in his decision. Among other things, the Chancellor of Justice considered the extent to which the Child Welfare Act and the Convention on the Rights of the Child can be complied with on the territory of a foreign state and the significance of a consent for taking a child into care when provided by a guardian under the circumstances in the camp. The Chancellor of Justice also considered the rights of guardians and their limits, taking into account that the adults in the camp have entered the area while being aware of the prevailing circumstances and major risks, especially to the fundamental and human rights of children. The Chancellor of Justice noted that when reconciling the rights of the child and their guardian, the rights of a child are of primary importance, which may supersede the interests of the parent. From this perspective, the Chancellor of Justice considered it possible that the Finnish authorities, based on case-specific assessment, attempt to repatriate a child to secure their life even without the consent of the guardian.
According to the legal assessment of the Chancellor of Justice, fundamental and human rights, especially the right to life guaranteed in the Constitution and the Convention on the Rights of the Child, the primacy of the best interests of the child in measures concerning them, and the obligation laid down in the Constitution for the public authorities to safeguard fundamental and human rights, support the Government's efforts to repatriate at least the children in accordance with international law and pursuant to and within the scope of its powers under the Consular Services Act. However, the Chancellor of Justice also noted that the legal assessment is of limited importance because the authorities' actual possibilities to operate outside Finland's borders are limited. In the view of the Chancellor of Justice, the Finnish authorities must in practice conform to the requirements set by the parties administrating the camp in Syria or any other actors. In such a situation, the competent authority's wide discretion as to what measures are possible is underlined. The Chancellor of Justice recalled that it is not within his competence or duties to order the authorities to take any specific measures.