9.
The Human Rights Committee, acting under
article 5, paragraph 4, of the Optional Protocol to the
International Covenant on Civil and Political Rights,
is of the view that the facts before it do not reveal a
violation by the State party of any of the provisions
of the Covenant.
8.2 As to the question of whether the State party's
refusal to issue a passport to Mr. Peltonen, pursuant
to section 9, subsection 1 (6), of the Finnish Passport
Act, violates his right, under article 12, paragraph 2,
of the Covenant, to leave any country, the
Committee observes that a passport is a means of
enabling an individual "to leave any country,
including his own" as required by article 12,
paragraph 2. The Committee further observes that,
pursuant to article 12, paragraph 3, the right to leave
any country may be subject to such restrictions as
are "provided by law, are necessary to protect
national security, public order (ordre public), public
health or morals or the rights and freedoms of others,
and are consistent with the other rights recognized in
the ... Covenant". There are, therefore, circumstances
in which a State, if its law so provides, may refuse a
passport to one of its citizens.
8.3 The travaux préparatoires to article 12,
paragraph 3, of the Covenant reveal that it was agreed
upon that the right to leave the country could not be
claimed, inter alia, in order to avoid such obligations
as national service.4 Thus, States parties to the
Covenant, whose laws institute a system of mandatory
national service may impose reasonable restrictions
on the rights of individuals who have not yet
performed such service to leave the country until
service is completed, provided that all the conditions
laid down in article 12, paragraph 3, are complied
with.
* The text of an individual opinion submitted by
Mr. Bertil Wennergren is appended.
APPENDIX
Individual opinion submitted by Mr. Bertil Wennergren
pursuant to rule 94, paragraph 3, of the rules of
procedure of the Committee on Human Rights
Under article 12, paragraph 2, of the Covenant,
everyone shall be free to leave any country, including his
own. This right shall not, according to paragraph 3 of this
article, be subject to any restrictions, except those which
are provided by law, are necessary to protect national
security, public order (ordre public), public health or
morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the
Covenant. The travaux préparatoires to article 12 reveal
that it was agreed that the right to leave one's country
could not be claimed in order to escape legal proceedings
or to avoid such obligations as national service, the
payment of fines, taxes or maintenance allowances. A
proposed text that "anyone who is not subject to any
lawful deprivation of liberty or to any outstanding
obligations with regard to national service shall be free to
leave any country including his own" was rejected earlier.
The limitations agreed upon are covered by the text of
paragraph 3. According to section 9 of the Finnish
Passport Act (Law No. 642/86), which entered into force
on 1 October 1987, a passport may be denied to a person,
inter alia, if he is liable to perform military service and is
at least 17 but not yet 30 years of age, unless he shows
that his liability to perform military service does not
constitute an obstacle to the issue of a passport.
8.4 In the present case, the Committee notes that
the refusal by the Finnish authorities to issue a
passport to the author, indirectly affects the author's
right under article 12, paragraph 2, to leave any
country, since he cannot leave his country of
residence, Sweden, except to enter countries that do
not require a valid passport. The Committee further
notes that the Finnish authorities, when denying the
author a passport, acted in accordance with section 9,
subsection 1 (6), of the Passport Act, and that the
restrictions on the author's right were thus provided by
law. The Committee observes that restrictions of the
freedom of movement of individuals who have not yet
performed their military service are, in principle, to be
considered necessary for the protection of national
security and public order. The Committee notes that
the author has stated that he needs his passport for
holiday travelling and that he has not claimed that the
authorities' decision not to provide him with a
passport was discriminatory or that it infringed any of
his other rights under the Covenant. In the
circumstances of the present case, therefore, the
Committee finds that the restrictions placed upon the
author's right to leave any country are in accordance
with article 12, paragraph 3, of the Covenant.
The Nordic States have agreed that their citizens do
not require a passport to travel within the territory of the
Nordic States. The author therefore could leave Finland in
1986 and take residence in Sweden without a passport. He
has been residing in Sweden ever since and has disregarded
all call-ups for military service by the Finnish authorities. It
is therefore unsurprising that the Supreme Administrative
Court of Finland rejected his appeal against the Finnish
Embassy's decision to refuse to provide him with a passport.
As the Court observed, he was a conscript and had failed to
prove that military service was no obstacle for him to obtain
a passport.
What is at issue now is not the author's right to
leave Finland. Thanks to the agreement among the Nordic
States, he has been able to do so without a passport. What
is at issue is his right to leave "any country", which,
because of the aforementioned agreement, means "any of
the other Nordic countries", as he can move freely from
one of them to the other. Without a passport he cannot
leave any Nordic State to travel to non-Nordic countries.
4
See E/CN.4/SR.106, p. 4; E/CN.4/SR.150, para. 41;
E/CN.4/SR.151, para. 4 and E/CN.4/SR.315, p. 12.
144
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