Extraordinary appeal – Annulment – Sámi Parliament elections – UN Human Rights Committee – ICCPR – Breach of an international convention – Preconditions for annulment – Inclusion in the electoral roll – Indigenous people – Definition of Sámi – Self-identification – Group acceptance – Overall evaluation
In its application, the Board of the Sámi Parliament had insisted, among others, that the three legally valid decisions awarded by the Supreme Administrative Court on inclusion in the electoral roll of the Sámi Parliament be annulled. Of the three decisions, one concerned the father of the family and had been awarded in 2011 (Supreme Administrative Court 2011:81). The other two decisions, which concerned the daughter and son of the family, had been awarded in 2015.
The annulment application was based on the opinions issued by the UN Human Rights Committee on 1 February 2019, in which it considered that Finland had breached the rights set out in the UN International Covenant on Civil and Political Rights (ICCPR) owing to the fact that the Supreme Administrative Court's interpretation of the preconditions for inclusion in the electoral roll of the Sámi Parliament in the decisions referred to in this decision, among others, and applied for annulment insofar as overall evaluation was resorted to in the decisions instead of using objective criteria.
The Supreme Administrative Court rejected the application for annulment.
In its opinions, the UN Human Rights Committee stated that in most of the cases, the Supreme Administrative Court had overlooked the requirement of the fulfilment of at least one objective criterion and instead resorted to "overall evaluation" when considering whether the person had a "strong" view about considering himself/herself Sámi.
Overall evaluation had played a role in the Supreme Administrative Court's decisions, if the person as a rule had fulfilled the precondition referred to in the wording of section 3(2) of the Act on the Sámi Parliament according to which he/she is a descendant of a person who has been entered in a land, taxation or population register as a mountain, forest or fishing Lapp. The fact that such an entry dated from the time preceding the time mentioned in the preliminary work for the act, i.e. the year 1875, however, required additional evidence of the person's other ties with the Sámi Culture. Correspondingly, for the language criterion referred to in section 3(1) of the act, overall evaluation may have played a role in these cases, when evidence was presented of the grandparent having learnt Saami language as the first language, but the said evidence was not fully exhaustive.
Therefore, the Supreme Administrative Court considered that it had not overlooked the objective criteria laid down in the law when making the overall evaluation. The question had been of the interpretation of the law, in which effort was made to take into consideration not only the preliminary work for the Act on the Sámi Parliament, the opinions of the Constitutional Law Committee, other national legislation, international human rights conventions as well as the principle of the interpretation of the law in favour of basic civil rights and human rights, but also the recommendations of the UN Committee on the Elimination of Racial Discrimination (CERD) about appropriate interpretation of the definition of Sámi based on international law. In 2015, the Constitutional Law Committee had also considered in its report PeVM 12/2014 vp that self-identification and overall evaluation, for example, are important in the interpretation of the definition of Sámi.
In spite of the aforementioned differences of opinion regarding the interpretation of national law, the Supreme Administrative Court did not question the opinions of the UN Human Rights Committee regarding the interpretation of provisions concerning the rights of indigenous peoples derived from the UN International Covenant on Civil and Political Rights and other sources of international law. In particular, the Committee emphasised the importance of so-called group acceptance when evaluating the reasonableness and objectiveness of the limitations laid down in law.
The Supreme Administrative Court found that a change in the case-law or the interpretation of the law was not considered grounds that could be taken into consideration as new evidence of the kind referred to in section 63(1)(3) of the Administrative Judicial Procedure Act. The decisions awarded by the Human Rights Committee in 2019 were not the kind of new evidence referred to in Section 63(1)(3) on the basis of which the decisions made in 2011 and 2015 could be annulled.
The annulment of a legally valid decision based on the manifestly erroneous application of the law in the manner referred to in section 63(1)(2) of the Administrative Judicial Procedure Act requires that in the decision subject to the annulment application, the law had been clearly and undisputedly applied contrary to the legal position prevailing at the time of awarding the decision. However, the ambiguity with regard to the interpretation of the law does not constitute grounds for annulling the court’s legally valid decision (see Supreme Administrative Court 2017:140).
The Administrative Judicial Procedure Act does not contain provisions on the significance of a judgement or other decision issued by a competent international human rights judicial or supervisory body, as grounds for extraordinary appeal. In evaluating the fulfilment of the grounds for annulment based on the manifestly erroneous application of the law, it can be of relevance whether the evaluation concerns a new interpretation or change of interpretation of some other case in the case practice of an international judicial or supervisory body or whether such an interpretation is expressly indicated in the decision made by the supervisory body in the annulment applicant’s case. However, the preconditions regarding the manifestly erroneous application of the law, as referred to in section 63(1)(2) of the Administrative Judicial Procedure Act, are not necessarily met even when the decision awarded by an international judicial or supervisory body expressly has concerned a decision awarded by a national court which is subject to the application for annulment. In the practice of the highest courts, significance has also been given to whether the instance applying the legislation should already have been aware of the interpretation of the international supervisory body in light of the existing decision-making practice (see Supreme Administrative Court 2016:33 and Supreme Court 2014:93).
In conclusion, the Supreme Administrative Court stated that the decision of 2011, which is subject to the annulment application, relied on section 3 of the Act on the Sámi Parliament and its preliminary work as well as the final conclusions of the UN Committee on the Elimination of Racial Discrimination (CERD) from 2009, in which it was considered that Finland should give more significance to people's self-identification. Considering the changing emphases of the recommendations issued by the said supervisory body between self-identification and group acceptance at different times, the concern expressed by the committee in the recommendation it issued in 2012 alone, according to which the definition accepted by the Supreme Administrative Court placed insufficient emphasis on the right of self-determination of the Sámi, did not mean either that the decisions of 2015 applied for annulment should be considered to have been based on the manifestly erroneous application of the law.
In its opinions issued in 2019, the UN Human Rights Committee specified and clarified the interpretation of the definition of Sámi from the point of view of international law concerning indigenous peoples. The Supreme Administrative Court found that before the above decisions, the practice employed by international supervisory bodies especially as regards weighting between self-identification and group acceptance had been unclear in determining who is Sámi. The Supreme Administrative Court could not be considered to have applied the law erroneously at the time of the decisions in question in the light of the practice in international law. Therefore no grounds had been presented in the cases that would give reason to deviate from the established practice of the highest courts as regards the grounds for annulment based on the manifestly erroneous application of the law.
Grounds for the annulment of decisions referred to in section 63 of the Administrative Judicial Procedure Act had not been presented in the application.
Vote 3 - 1 - 1. Referendary's dissenting opinion.
Administrative Judicial Procedure Act, section 63(1)
Act on the Sámi Parliament, section 1(1), section 3, section 5(1), section 6, section 13(3), section 14, section 23(1) and section 23a(1).
International Covenant on Civil and Political Rights (ICCPR), Article 1(1) and (3), Article 2, Article 25 and Article 27 and the related Optional Protocol, Article 1, Article 2 and Article 5(1) and (4) (Finnish record no. 8/1976)
Opinions of the UN Human Rights Committee 1 February 2019 for notification no. 2668/2015 (Tiina Sanila-Aikio) and no. 2950/2017 (Klemetti Näkkäläjärvi and others)
See also Supreme Administrative Court 2019:89