Women and Justice: Court: Supreme Administrative Court

Domestic Case Law

KHO 2013:46 Supreme Administrative Court (2013)

Employment discrimination, Gender discrimination

The issue here was whether the concept of presumption of discrimination, as set forth in the Finnish Equality Act (609/1986, as amended) (the “Equality Act”), applied in the case where a less-merited male applicant had been appointed over two female applicants, and whether there was a justifiable reason for discrimination. In the case, the Regional Council of Lapland, a politically steered joint municipal board, had appointed V, a male applicant, as its director of development. Two female applicants, E and H, had disputed the council’s decision to appoint V on the basis that the appointment was based on V’s political affiliations and also because the decision breached the Equality Act. The Supreme Administrative Court considered (i) whether the threshold for presumed discrimination had been exceeded and, if this were the case, (ii) if there were grounds for the rebuttal of the presumption. The Court found that both E and H had been adequately qualified for the position and had more merits relevant to the position than V. On this basis, the Court held that E and H had sufficiently shown that they had not been appointed because of their gender and that, as a result, a presumption of discrimination, as set forth in Section 8 of the Equality Act, had arisen. Under the Equality Act, to rebut a presumption of discrimination an employer must show that its actions are attributable to a justifiable reason not connected to gender or that the actions were based on weighty and acceptable grounds related to the nature of the job or the task. The Regional Council of Lapland claimed that, in this case, the justifiable reason not connected to gender was V’s having more socio-political experience. The Court, however, held that socio-political experience was not specifically mentioned in the pre-established selection criteria for the position and was, therefore, part of the general merit assessment of the applicants. As discussed, the Court had found that, based on this assessment, both E and H had more merits relevant to the position than V. Therefore, the Court held that V’s socio-political experience was not a justifiable reason for his appointment. For these reasons, the Supreme Administrative Court agreed with the earlier holding of the Administrative Court of Rovaniemi that the decision of the Regional Council of Lapland to appoint V as its director of development was made in breach of the Equality Act and, therefore, ordered the decision to be annulled.

KHO 2005:87 Supreme Administrative Court (2005)

Forced and early marriage, Harmful traditional practices

The issue here was whether A should get a residence permit to Finland because of family ties. He had entered into marriage with his cousin B in Syria in 2004 who was 15 years old at the time and had lived in Finland since 1996. The Directorate of Immigration (now Finnish Immigration Service) denied A's application for residence permit. According to Section 114(1) of the Finnish Aliens Act (301/2004, as amended) (the "Aliens Act"), a residence permit is issued on the basis of family ties to a family member of a refugee or an alien who has been issued with a residence permit on the basis of the need for subsidiary protection or humanitarian protection, or who has enjoyed temporary protection if: (i) the sponsor lives in Finland or has been issued with a residence permit for the purpose of moving to Finland; and (ii) the applicant is not considered a danger to public order, security or health. According to Section 4 of the Finnish Marriage Act (234/1929, as amended) (the "Marriage Act"), (i) a person under 18 years of age shall not marry, (ii) The Ministry of Justice may, however, for special reasons grant a person under 18 years of age a dispensation to marry. Before the matter is decided, the custodian of the applicant shall be reserved an opportunity to be heard if his or her whereabouts can be determined with reasonable measures. The Directorate of Immigration considered that the marriage was against Finnish law and not valid. Hence A could not be considered a family member in accordance with the Aliens Act.  The Administrative Court reversed the Directorate of Immigration's decision.  It held that the marriage was made under Syrian law and the fact that B was under age according to the Finnish law did not matter in this case. Also taking into account the religion, culture and traditions of B and her family, the Court found that issuing permit of residence would not be against the interest of the child. On appeal from the decision of the Administrative Court, the Supreme Administrative Court concluded that the fact that some countries allow underage marriages does not mean that such marriages can be the basis for a residence permit in the same way as are marriages between consenting adults. Although Section 115(1) of the Marriage Act generally recognizes the validity of marriages concluded in other countries, the law contains an exception where the application of a foreign provision would have an outcome contrary to Finnish public policy (ordre public (Section 139 (2) of the Marriage Act). Taking into account Article 1(1) of the Convention on Consent to Marriage, Minimum Age For Marriage, and Registration of Marriages; Article 23(3) of the International Covenant on Civil and Political Rights (ICCPR); and Article 16(1)(6) and (2) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Court held that it was not possible to use culture to justify marrying B to a person whom she is claimed to have met when she was a small child and taking her into a country where she does not have any family ties. Marrying a child and applying for permit of residence on the basis of this marriage can be seen as intention to evade the provision on entry into or residence in the country (Section 36(2) of the Aliens Act). On these grounds, the Supreme Administrative Court held that the decision of the Administrative Court would be revised and the decision of the Directorate of Immigration would be enforced.