Views of the Human Rights Committee of 1 November 2018 in the case of TiinaSanila-Aikio v. Finland (communication No. 2668/20150).
In 2016, the author of the communication was assisted in the preparation of a complaint. Subsequently, the complaint was communicated to Finland.
Subject of the message: the right to vote in the elections to the Sami Parliament.
Substantive issues: the right to self-determination; non-discrimination; political rights; minority rights.
Legal positions of the Committee: The Committee recalls that, in accordance with its general comment No. 25 (1996) on participation in the conduct of public affairs and the right to vote, any conditions applicable to the exercise of the rights to participate in the conduct of public affairs directly or through freely elected representatives, to vote and be elected in genuine elections periodic elections should be based on objective and reasonable criteria. The Committee... Recalls its jurisprudence in Lovelace v. Canada to the effect that in some cases, in order to protect the viability and well-being of a minority as a whole, it may be necessary to define the category of persons belonging to indigenous people (Communication No. 24/1977, paragraph 15.). In the case of Kitok v. Sweden, the Committee considered that the restriction of the right of an individual representative of a minority must be proved to have a reasonable and objective justification and necessary to preserve the viability and well-being of the minority as a whole (paragraph 6.5 of the Views) (Communication No. 197/1985, paragraph 9.8.).
The Committee recalls that, under article 33 of the United Nations Declaration on the Rights of Indigenous Peoples, indigenous peoples have the right to determine their identity or affiliation in accordance with their customs and traditions and the right to establish structures and elect the membership of their institutions in accordance with their own procedures. And article 9 of the 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 the community or nationality concerned and the exercise of such a right may not give rise to any form of discrimination. In accordance with article 8, paragraph 1, of the Declaration, indigenous peoples and persons belonging to them have the right not to be subjected to forced assimilation or destruction of their culture (paragraph 6.6 of the Considerations).
The Committee refers to its general comment No. 23 (1994) on the rights of minorities, and in particular to its observation on the exercise of cultural rights, namely: culture manifests itself in many forms, including a special way of life associated with the use of land resources, especially in the case of indigenous peoples. This right may include traditional activities such as fishing or hunting, and the right to live in reserves protected by law. The enjoyment of these rights may require positive protective legal measures and measures to ensure the effective participation of members of minority communities in decisions that affect them. The Committee... Notes that article 27 of the Covenant, interpreted in the light of the United Nations Declaration on the Rights of Indigenous Peoples and article 1 of the Covenant, enshrines the inalienable right of indigenous peoples to freely determine their political status and freely practice their economic, social and cultural development. Article 1 of the Covenant and the relevant obligations relating to its implementation are interrelated with other provisions of the Covenant and norms of international law (paragraph 6.8 of the Views).
The Committee recalls its general comment No. 23 (paragraph 9), in which it recognizes that the protection of rights under article 27 of the Covenant is aimed at ensuring the preservation and continuous development of the cultural, religious and social identity of the minorities concerned, thereby enriching the fabric of society as a whole. Accordingly, the Committee notes that such rights are protected as such and should not be confused with other personal rights granted to everyone under the Covenant. Moreover, although the rights protected under article 27 are individual rights, they in turn depend on the group's ability to preserve its culture, language or religion. The Committee further recalls that, as the preamble to the United Nations Declaration on the Rights of Indigenous Peoples establishes, indigenous peoples have collective rights that are necessary for their existence, well-being and integrated development as peoples. The Committee therefore considers that, in the context of indigenous peoples' rights, articles 25 and 27 of the Covenant have a collective dimension, and some of these rights can be enjoyed in community with others. The rights to political participation of an indigenous community in the context of internal self-determination under article 27, considered in the light of article 1 of the Covenant, and in order to preserve the rights of members of the community to enjoy their own culture or use their own language in community with other members of the same group are not implemented solely on an individual basis. Consequently, when considering individual harm in the context of this communication, the Committee must take into account the collective dimension of such harm. As for the erosion of the voice of the indigenous community in the context of internal self-determination, the harm directly caused to the collective can infringe on each and every member of the community. The author is a member of the indigenous community, and all her claims relate to her rights in this perspective (paragraph 6.9 of the Considerations).
The Committee's assessment of the factual circumstances of the case: The Committee notes that, according to article 3 of the Law on the Sami Parliament, in order to recognize a person as a Sami in order to be allowed to vote in parliamentary elections, in addition to the fact that he considers himself a Sami, he must have the following characteristics: a) he or she or at least one of his parents or grandparents must have learned Sami as their first language; b) he or she must be descendants of a person who is listed in the land, tax or registry office register as a mountain Sami, forest Sami or Sami fisherman; or (c) At least one of his parents should have been or could have been registered as a voter in the elections to the Sami delegation or to the Sami Parliament. The Committee... Notes that, since this is not disputed by the parties, the Supreme Administrative Court did not apply objective elements in most cases (paragraph 6.7 of the Considerations).
The Committee notes the author's claim that, given the mandate of the Sami Parliament, the effective functioning of Parliament and its ability to adequately represent the views of the Sami is essential for the implementation by the State party of articles 25 and 27 of the Covenant and that the Sami Parliament is for the Sami, both individually and collectively, an important tool for the use and exercise of rights, protected under these articles. The Committee notes that the powers and responsibilities of the Sami Parliament include taking care of the Sami language and culture, hearing cases concerning the status of the Sami as an indigenous people, acting as a representative of the Sami people at the national and international levels on issues related to its tasks, and consulting with it from all departments regarding a lengthy list of cases concerning The Sami as an indigenous people or events within the ancestral territory of the Sami people. Accordingly, the Committee considers that the Sami Parliament is an institution through which the State party ensures the effective participation of representatives of the Sami people as an indigenous community in decisions that concern them. Consequently, the fulfillment by the State party of the obligations contained in article 27 of the Covenant depends on the effective role that the Sami Parliament can play in decisions affecting the rights of members of the Sami community to enjoy their own culture or use their own language in community with other members of their group. And the electoral process in relation to the Sami Parliament should accordingly ensure the effective participation of all stakeholders in the internal process of self-determination, which is necessary to preserve the viability and well-being of the indigenous community as a whole. According to article 25 of the Covenant, the Committee also considers that restrictions affecting the right of members of the indigenous Sami community to effective representation in the Sami Parliament must have a reasonable and objective justification and be compatible with other provisions of the Covenant (Lovelace v. Canada, para. 16.), including the principle of internal self-determination in relation to indigenous peoples (para. 6.10 of the Views).
In this case, the author is a representative of the Sami people and a member of the Sami Parliament, of which she is the Chairman, and in this capacity she is actively involved in the electoral process. The Committee notes the author's uncontested submissions that, from 2011 onwards, the decisions of the Supreme Administrative Court deviated from the agreed interpretation of article 3 of the Law on the Sami Parliament with regard to determining the composition of electoral lists in relation to such a parliament. In particular, in most cases, the Court did not require compliance with at least one objective criterion; Instead, he applied the criterion of "general consideration" and examined the question of whether a person's own opinion of his belonging to the Sami is "firm", thereby infringing on the ability of the Sami people to exercise through the Sami Parliament the key dimension of Sami self-determination in deciding who is a Sami (See the Decision on Admissibility The cases of Sanila-Aikio v. Finland, paragraphs 2.8 - 2.10.). The Committee considers that the rulings of the Supreme Administrative Court affect the rights of the author and the Sami community to which she belongs to be involved in the electoral process in relation to an institution designed by the State party to ensure effective internal self-determination and the right of members of the indigenous Sami people to their own language and culture. The Committee... Considers that, thus departing from the agreed interpretation of the Law defining the composition of the electoral lists of the Sami Parliament, the Court's interpretation was not based on reasonable and objective criteria (paragraph 6.11 of the Considerations).
The author claims that in a 2011 decision, the Supreme Administrative Court of the State party departed from the agreed interpretation of article 3 of the Law on the Sami Parliament, which determines who is eligible for inclusion in the electoral list for elections to the Sami Parliament, and on September 30, 2015, the Court decided to satisfy the petitions of 93 people whom the Sami Parliament considered to be ineligible to vote; and then these people were allowed to vote. She claims that this action has weakened the voice of the Sami people in the Sami Parliament and the effectiveness of such a Parliament in representing the Sami people in important decisions taken by the State party that may affect their lands, culture and interests. According to her, this unlawful infringement by the State party of the right of the Sami people to determine who is eligible to participate in elections to their Parliament violates article 1 of the Covenant and erodes the political rights of the author and the voting of the Sami people in violation of their rights to political participation under article 25 of the Covenant. The author also claims that the decisions on who was or was not included in the electoral list were arbitrary, in violation of article 26 of the Covenant. Finally, she believes that, since the Sami Parliament plays an essential role in protecting the right of the Sami people to enjoy their culture and language and has been identified by the State party as a channel for ensuring the free, prior and informed consent of the Sami people on issues that may affect their interests, such dilution violates article 27 of the Covenant.
The Committee's conclusion: submitted... The facts reveal a violation of article 25, considered separately and in combination with article 27 of the Covenant (paragraph 7 of the Views).