ECLI:FI:KHO:2018:117

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 in a case concerning the granting of international protection because the same person held a permanent post as a senior inspector at the Finnish Immigration Service (Migri), from which position he was on leave of absence. In the 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.

At that point, the referendary’s career as a public official in Migri had lasted 13 years and six months, i.e. for a fairly significant period. However, even from an external observer's perspective, he could not be specifically profiled as a representative of Migri, particularly in terms of international protection.

Even during his 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 in 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, particular reference had been made to the instructions and country of origin guidelines of Migri as factors for disqualification. As such, the referendary's leave of absence from Migri could be regarded as short-term. However, the referendary had not heard matters concerning international protection during his entire career in Migri. On the whole, the referendary’s duties clearly focused on matters in connection with which Migri's country of origin guidelines were not applicable. Thus, the referendary's duties were such that there was no need to evaluate their timely proximity with regard to the case subject to appeal. Despite the fact that the appellant's pronounced need for access to justice was taken into account in this case due to the principle of non-refoulement, the mere fact that the appellant might have regarded Migri as his adversary based on its status and duties, did not imply that there were reasonable grounds to suspect the referendary’s impartiality in this case. Taking into account chapter 13, section 7, subsection 3 of the Code of Judicial Procedure, there were no reasonable grounds to suspect the referendary’s disqualification in this case as referred to in chapter 13, section 6, subsection 1, paragraph 2 of the same Act. The administrative court's decision had not been made incorrectly on the grounds of disqualification.

Vote on grounds 17–1–8 (plenary session)

 
Published 22.8.2018