Views of the UN Committee on the Rights of the Child of December 1, 2019 on the cases of Tiina Sanila-Aikio v. Finland (communication No. 2668/2015) and Klemetti Kakkalajarvi and Others v. Finland (Communication N 2950/2017).
In 2015 and 2017, the authors were assisted in preparing the messages.
The case has successfully examined the authors ’communications on the case of the right to vote in the Sami Parliament elections, granted by the Supreme Administrative Court to persons who were recognized as deprived of this right by the Sami Parliament.
Circumstances of the case
The author of the first message was the chairman of the Saami Parliament of Finland, and the authors of the second message were 26 citizens of Finland and Norway, who called themselves representatives of the original Sami people.
The authors of the communication claimed that the decision of the Supreme Administrative Court of Finland of 2011 departed from the agreed interpretation of Section 3 of the Sami Parliament Act, determining who had the right to be included in the electoral roll for elections to the specified parliament, and that the Supreme Administrative Court of Finland subsequently granted the right votes to 93 persons who have been recognized by the Sami Parliament as not eligible to vote. The author of the first report claimed that this weakened the representation of the Sami people in parliament and the effectiveness of the Sami parliament in protecting the interests of the Sami people. The authors of the second communication claimed that the decision of the Supreme Administrative Court of Finland to grant the right to vote to those who were recognized as having no voting rights by the competent bodies of the Sami Parliament was a direct interference of the Finnish authorities in the key sphere of respect and use by the Sami people of their right to self-determination and in their right to determine their identity. By including non-Sami people in the Sami Parliament’s list of voters, the Finnish Supreme Administrative Court violated the representative value of the parliament, negatively affecting its right to effectively participate in public affairs.
QUESTIONS OF LAW
Articles 25 (the right to political participation) and 27 (the right of ethnic, religious and linguistic minorities to have their own culture, practice their religion and use their language) of the International Covenant on Civil and Political Rights (hereinafter - ICCPR). Any condition for exercising the right to take part in political activity directly or through freely chosen representatives to vote and be elected in valid regular elections should be based on objective and reasonable criteria. The category of indigenous people should in some cases be defined in order to protect the living and living conditions of the minority as a whole (see Lovelace v. Canada (CCPR / C / OP / 1, p. 83)).
According to article 33 of the UN Declaration on the Rights of Indigenous Peoples, “indigenous peoples have the right to determine themselves or their ethnicity in accordance with their customs and traditions ... and the right to determine the structure and elect members to their institutions in accordance with their own procedures.” Article 9 of the said declaration provides that “indigenous peoples and persons belonging to them have the right to belong to an indigenous community or nationality in accordance with the traditions and customs of that community or nationality. Exercising such a right cannot give rise to any form of discrimination”.
The parties did not dispute that the objective criteria provided for in Section 3 of the Sami Parliament Act for a person to be considered to belong to the Sami people in order to obtain permission to vote in the Sami Parliament were not applied by the Supreme Administrative Court of Finland in most cases.
According to the Finnish authorities, the authors of the communication did not demonstrate how the decisions of the Supreme Administrative Court of Finland would directly affect them. Although the rights protected by Article 27 of the ICCPR were individual, they in turn depended on the ability of a population to maintain their culture, language or religion. In the context of the rights of indigenous peoples, articles 25 and 27 of the ICCPR had a collective component, and some of them could be implemented only by a group of persons. The right to political participation of indigenous peoples in the context of internal self-determination (Article 27 of the ICCPR), examined in the light of Article 1 of the ICCPR and in order to preserve the rights of community members to their culture or use their language together with other members of their group, was not used individually. Consequently, when considering specific damage in the context of communications, the UN Human Rights Committee should have taken into account the collective component of such damage. With respect to a violation of the voting rights of indigenous peoples in the context of internal self-determination, harm directly caused to a group of individuals can harm each individual member of the community. The authors of the communication belonged to a group of indigenous peoples, and all their claims related to their rights as members of the indicated ethnic group.
The powers of the Sami Parliament included control of the Sami language and culture, as well as the settlement of issues related to the status of the Sami as an indigenous people, to act as the Sami people within the state and at the international level in matters relating to the tasks of the parliament, to provide advisory services to all bodies state authorities in a large list of issues related to the Sami as an indigenous people, or with changes in the homeland of the Sami. The Sami Parliament was the institution through which the Finnish authorities ensured the effective participation of members of the Sami community as an indigenous people in decisions that directly affected their lives.
Consequently, the responsibilities of the Finnish authorities under Article 27 of the ICCPR depended on the effective role that the Sami Parliament could play in making decisions affecting the rights of members of the Sami ethnic group to their culture or the use of their language together with other members of their group. Consequently, the process of elections to the Sami Parliament was to ensure the effective participation of persons related to the process of internal self-determination of the small people, which was necessary to maintain the vitality and well-being of the indigenous people as a whole. According to article 25 of the ICCPR, restrictions affecting the right of persons belonging to the Sámi indigenous people to effectively ensure their representation in the Sámi Parliament should have reasonable and objective grounds and be consistent with other provisions of the ICCPR, including the principle of internal self-determination of indigenous peoples.
The Finnish Supreme Administrative Court did not ensure compliance with at least one of the objective criteria in most cases, applying instead a “general review” and examining whether the person’s opinion that he (the person) refers to the Sami people was “significant”. Thus, the Supreme Administrative Court of Finland violated the ability of the Sami people to exercise, through the Sami parliament, a key moment in the self-determination of the Sami people in determining who could be considered Sami.
The decisions of the Supreme Administrative Court of Finland influenced the rights of the authors of the appeal and the members of the Sami community to participate in the electoral process in relation to the authority designated by the state to ensure effective self-determination of small people, and the right of the true indigenous Sami in their language and culture. Departing, therefore, from the agreed interpretation of the law defining membership in the Sami Parliament, the interpretation of the Supreme Administrative Court of Finland was not based on reasonable and objective criteria.
In the case there were violations of the requirements of Article 25 of the ICCPR, examined both separately and in conjunction with Article 27 of the ICCPR.
The Finnish authorities are obliged, inter alia, to revise section 3 of the Sami Parliament Act to ensure that the criteria for voting rights in the Sami Parliament are defined and applied in a manner that respects the Sami’s right to self-determination, in accordance with articles 25 and 27 ICCPR. The Finnish authorities were also required to take all necessary measures to prevent similar violations in the future.