ECLI:FI:KHO:2018:116

Disqualification – Court – Objective impartiality – Administrative court referendary – Alien affair – International protection – Underlying permanent post – Finnish Immigration Service

The Supreme Administrative Court was to determine whether a person who held the position of administrative court referendary on a fixed-term basis was, when objectively considered, disqualified to act as a referendary in a case concerning the granting of international protection because she the same person held a permanent post as senior inspector at the Finnish Immigration Service (Migri) from where she was on leave of absence. In this case, the referendary's subjective impartiality had not been called into question.

The referendary had not heard the same case in Migri or at an earlier stage in the administrative court. Thus, disqualification due to prejudice as referred to in chapter 13, section 7, subsections 1 and 2 of the Code of Judicial Procedure was not applicable in this case. However, disqualification had to be evaluated in view of chapter 13, section 6, subsection 1, paragraph 2 and section 7, subsection 3 of the same Act.

The referendary's career in Migri had been relatively short. Even from an external observer's perspective, the referendary could not be specifically profiled as a representative of Migri based on her position and duties.

Even during her leave of absence, the referendary’s dependency on Migri had not totally ended. By virtue of the Code of Judicial Procedure as well as national and international legal practice described in the decision of the Supreme Administrative Court, there was no basis for finding that if a fixed-term administrative court judge or referendary holds a background position with an administrative authority office, this would disqualify the person in all cases in which the said authority has made the appealable decision. Thus, any disqualification had to be evaluated after considering the circumstances in each case.

In this case, account had to be taken of the fact that, while working in the administrative court, the referendary had heard a matter concerning international protection, i.e. a matter that belonged to the same case type as the cases she had heard in Migri. In this case, the appellant had, in particular, referred to the importance of Migri's country of origin guidelines as factors generating prejudice and loyalty. When the case subject to appeal was heard by the administrative court, a relatively short time had passed since the referendary had worked in Migri; the administrative court had issued its decision approximately seven months after the person had begun working as a referendary in the administrative court.

In view of the aforementioned, the appellant in this case might have had reasonable grounds to feel, or an external observer might have had reasonable grounds to think, that the referendary was unable to evaluate country information in her work in the administrative court independently from Migri's country of origin guidelines. Furthermore, Migri’s status and duties, due to which the appellant might have understood Migri as its adversary, had to be taken into account. In this type of case, the appellant's need for access to justice was particularly pronounced due to the principle of non-refoulement.

Considering the referendary's background position in Migri, her duties in that position and in her previous fixed-term positions in Migri, which involved some management duties, the standardising guidelines observed by Migri in its operations, in particular its country of origin guidelines, the fact that the referendary’s duties in the administrative court were closely related to her decision-making duties in Migri, and the timely proximity of the aforementioned duties, it was not possible to rule out a reasonable suspicion of the referendary's objective impartiality. Furthermore, taking into account chapter 13, section 7, subsection 3 of the Code of Judicial Procedure, the aforementioned factors together provided a reasonable ground to suspect the referendary's impartiality as referred to in chapter 13, section 6, subsection 1, paragraph 2 of the same Act. Hence, in this case, the referendary should have been disqualified to act as referendary in the administrative court.

Vote 17+1–8 (plenary session)

 
Published 22.8.2018