Human Rights Committee

Views adopted by the Committee under article 5 (4) ofthe Optional Protocol, concerning communication No. 2668/2015 * , ** , ***

Communication submitted by:Tiina Sanila-Aikio (represented by counsel, Martin Scheinin)

Alleged victim:The author

State party:Finland

Date of communication:2 October 2015 (initial submission)

Document references:Decision taken pursuant to rule 97 of the Committee’s rules of procedure, transmitted to the State party on 4 November 2015 (not issued in document form), and admissibility decision adopted on 28 March 2017 (CCPR/C/119/D/2668/2015)

Date of adoption of Views:1 November 2018

Subject matter:Right to vote in elections to the Sami Parliament

Procedural issues: Victim status; exhaustion of remedies; non-substantiation

Substantive issues: Right to self-determination; non-discrimination; political rights; minority rights

Articles of the Covenant:1, 25, 26 and 27

Articles of the Optional Protocol:1 and 2

1.1The author of the communication is Tiina Sanila-Aikio, a national of Finland born on 25 March 1983. She submits the communication on her behalf, on behalf of the Sami people of Finland and in her capacity as President of the Sami Parliament of Finland, as authorized by its Board. The Optional Protocol entered into force for the State party on 23 March 2012. The author is represented by counsel.

1.2The author submits that in a 2011 decision, the Supreme Administrative Court of the State party departed from the consensual interpretation of section 3 of the Act on the Sami Parliament defining who is entitled to be included on the electoral roll for elections to the Sami Parliament, and that on 30 September 2015 the Court decided to accept the applications of 93 persons who had been found ineligible to vote by the Sami Parliament; those persons were then allowed to vote. She claims that this action has weakened the voice of the Sami people in the Sami Parliament and the effectiveness of that Parliament in representing the Sami people in important decisions taken by the State party that may affect their lands, culture and interests. She claims that this unlawful interference by the State party in the Sami people’s right to define who is entitled to participate in elections to their Parliament violates article 1 of the Covenant and dilutes the political rights of the author and the Sami people’s vote, in violation of their rights to political participation under article 25 of the Covenant. The author also contends that the decisions regarding which persons were and were not admitted into the electoral roll were arbitrary, in violation of article 26 of the Covenant. Lastly, she submits that, since the Sami Parliament plays an essential role in the protection of the Sami people’s right to enjoy their culture and language, and is established by the State party to be the conduit for securing the free, prior and informed consent of the Sami people in matters that may affect their interests, this dilution violates article 27 of the Covenant.

1.3On 2 November 2015, pursuant to rule 92 of its rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, decided not to grant the author’s request to issue an urgent request to the State party not to appoint the members of the new Sami Parliament before the Committee would be able to address the merits of the communication.

1.4On 28 March 2017, the Committee, in accordance with rule 93 of its rules of procedure, decided that the communication was admissible insofar as it appeared to raise issues with respect to articles 25, 26 and 27 of the Covenant. It also considered that the author, as a member of the Sami indigenous people and member of the Sami Parliament, of which she was the elected President, might be affected, as an individual, by the Court rulings referred to in the decision on admissibility. The Committee found that the author’s claim regarding violations of article 1 of the Covenant was inadmissible under article 1 of the Optional Protocol, but that the Committee could interpret article 1, when relevant, in determining whether rights protected in parts II and III of the Covenant had been violated. The Committee requested the parties to provide further explanations regarding the merits of the communication. For further information about the facts, the author’s claims and the parties’ observations on admissibility and the Committee’s decision on admissibility, refer to Sanila-Aikio v. Finland (CCPR/C/119/D/2668/2015).

State party’s observations on the merits

2.1The State party submitted observations on the merits on 4 May 2016. It reiterates its previous submissions that the Act on the Sami Parliament provides a definition of a Sami. In 2012, the Ministry of Justice established a working group to prepare a proposal for the revision of the Act. The memorandum of the working group stated that the overall objective of the revision was to improve the operational preconditions of Sami cultural autonomy and of the Sami Parliament. Based on the proposal of the working group, a bill was submitted to the national Parliament in September 2014, which contained, inter alia, provisions for the revision of the definition. The proposed definition was supported by the Sami Parliament. During the discussion of the bill at the parliamentary committee level, it became clear that the Parliament of Finland would not approve the definition proposed. Since the question of the definition was the most important part of the bill, the Government decided, on 12 March 2015, to withdraw the bill. The Ministry of Justice intends to present a new bill to the Parliament of Finland.

2.2The State party indicates that, in 2009, in its concluding observations on the seventeenth to nineteenth periodic reports of the State party, the Committee on the Elimination of Racial Discrimination reiterated that the State party’s approach to the definition of who may be considered a Sami under the Act on the Sami Parliament and the interpretation provided thereon by the Supreme Administrative Court was too restrictive. In 2012, in its concluding observations regarding the twentieth to twenty-second periodic reports of Finland, the same Committee noted that although the Supreme Administrative Court had relied on that Committee’s prior concluding observations in its 2011 decision defining who was a Sami entitled to vote for Members of the Sami Parliament, that decision gave insufficient weight to the Sami people’s rights, recognized in the United Nations Declaration on the Rights of Indigenous Peoples, to self-determination (art. 3), in particular their right to determine their own identity or membership in accordance with their customs and traditions (art. 33), as well as their right not to be subjected to forced assimilation or destruction of their culture (art. 8). Accordingly, that Committee recommended that, in defining who was eligible to vote for Members of the Sami Parliament, the State party should accord due weight to the rights of the Sami people to self-determination concerning their status within Finland, to determine their own membership, and not to be subjected to forced assimilation.

2.3As regards the definition of the Sami, the Government respects self-identification as a key criterion for the determination of a group of persons or an individual as indigenous, as stipulated, inter alia, by article 1 (2) of the Indigenous and Tribal Peoples Convention, 1989 (No. 169) of the International Labour Organization (ILO). The Government also respects the Sami Parliament’s right to determine its membership in accordance with Sami customs and traditions. Accordingly, measures have been taken to protect the identity of the Sami people and the rights of its members to enjoy and develop their culture and language in community with the other members of the indigenous community. These measures respect articles 2 (1) and 26 of the Covenant.

2.4The State party recalls general comment No. 25 (1996) on participation in public affairs and the right to vote (para. 2), in which the Human Rights Committee states that the rights under article 25 of the Covenant are related to, but distinct from, the right of peoples to self-determination. By virtue of the rights covered by article 1 (1) of the Covenant, peoples have the right to freely determine their political status and to enjoy the right to choose the form of their constitution or government. Article 25 deals with the right of individuals to participate in those processes that constitute the conduct of public affairs. Those rights, as individual rights, can give rise to claims under the Optional Protocol.

2.5As article 25 deals with the right of individuals to participate in those processes which constitute the conduct of public affairs, the State party emphasizes that the right to vote at the elections of the Sami Parliament is established by law. In this regard, the Government has taken measures to ensure that all persons entitled to vote are able to exercise that right.

2.6In principle, voting in the elections is based on a certified electoral roll. However, the Act on the Sami Parliament provides for a procedure by which a person may, through a demand for rectification, request to be entered on the electoral roll if he or she considers that he or she has been unlawfully omitted from it. Ultimately the matter may be referred to the Supreme Administrative Court on appeal. Therefore, section 26d of the Act stipulates that a person can vote if before the counting of the ballots they produce to the Election Committee, or on election day to the polling committee, an order of the Court confirming their right to vote. The person is also obliged to hand over the court order or a certified copy of it to the Election Committee or the polling committee for an entry to this effect to be made in the electoral roll.

2.7The State party reiterates its arguments regarding admissibility. It concludes that no violations of the Covenant have taken place in the present case.

Author’s comments on the State party’s observations on the merits

3.1The author submitted comments on the State party’s observations on 28 November 2016. The author reiterates that the Supreme Administrative Court decisions of 30 September 2015 violated the rights of the author and her fellow members of the Sami indigenous people under article 26, both on its own and in conjunction with article 1, of the Covenant. A close analysis of the 182 Court rulings of 30 September 2015, in which 93 persons were added to the electoral roll and the remaining applications rejected, shows that the Court ignored the explicit statutory criteria spelled out in section 3 of the Act on the Sami Parliament and applied its own indeterminate construction of “overall consideration”, resulting in lawlessness, unforeseeability, arbitrariness and, ultimately, discrimination, as identical cases were treated differently and different cases identically. The rulings did not only adversely affect persons whose applications were rejected as a result of being treated differently from others who were admitted. The author and all Sami were affected by this arbitrariness, which hinders the capacity of the Sami Parliament to represent the Sami indigenous people and its individual members, and violates article 26, read in conjunction with article 1, of the Covenant.

3.2The main principles enshrined in the Act on the Sami Parliament show that the Parliament’s effective functioning and capacity to adequately represent the views of the Sami indigenous people are essential for the State party’s implementation of articles 25 and 27 of the Covenant. The Parliament is an important instrument for the Sami, individually and collectively, to enjoy and exercise their rights under articles 25 and 27 of the Covenant. Section 9 of the Act, in particular, imposes upon all authorities an obligation to negotiate with the Sami Parliament in a long list of matters that concern the Sami as an indigenous people or developments within the Sami Homeland. Therefore, the recent court rulings violate those provisions. Through the violations of articles 25, 26 and 27, the State party also violates the right of the Sami indigenous people to enjoy their right of self-determination, as protected under article 1 of the Covenant.

3.3Under the current composition, the Sami Parliament continues to defend the rights and interests of the Sami indigenous people, but often this is delayed or compromised because of the time and effort that is consumed in resolving internal disagreements that very often relate to the question of how the Parliament should relate to the State of Finland and its continuing interventions on Sami lands and the impact thereof on livelihoods. As a result, the Parliament was unable to stop the Government and Parliament of Finland from enacting a new act on the government forestry agency, thus ignoring the concerns of the Sami people and denying their future participation.

3.4A similar ongoing development relates to a new draft treaty between Finland and Norway concerning the common border along the River Teno. The Sami have largely been excluded from effective participation in the negotiations between the two Governments, despite the fact that, since time immemorial, this river has been used by the Sami for salmon fishing. This activity has always constituted the main source of livelihood for the local Sami population and is part of their way of life and culture. It determines their social organization, weekly and annual cycle of work, cross-border cooperation, handicrafts and arts, and folklore. The aim of the project is publicly presented as seeking to protect the sustainability of the salmon stock, while in fact it would constitute large-scale expropriation of the immemorial fishing rights of the Sami indigenous people. It would permanently exclude large parts of the Sami currently allowed to practice traditional forms of fishing, while at the same time disproportionally allowing holidaymakers to practice this activity. This is another practical example of the impact of the Court rulings of 30 September 2015, not only on the lives of the author and her fellow members of the elected Sami Parliament but also on the lives of all Sami in Finland.

3.5The Supreme Administrative Court’s consultation with the Board of the Sami Parliament before issuing its rulings of 30 September 2015 was a mere formality. In September 2015, the Sami Parliament was confronted with almost 200 simultaneous appeals by persons who sought to be enrolled on the electoral list. The Court gave it only between three and five working days to respond. The Board did its best to provide individualized assessments by determining whether the conditions prescribed in section 3 of the Parliament Act had been met. However, the views and arguments of the Sami Parliament did not affect the conclusions of the Court, which were based not on a proper factual assessment and legal interpretation of the Act on the Sami Parliament but, in most cases, on what the Court characterized as an “overall consideration” and “human rights-friendly interpretation of the law”, without a basis in factual circumstances or proper legal assessment, and without reference to the Covenant, the rights of indigenous peoples or any other specific individual human right.

3.6The present case originates from the expansive application, especially by the Supreme Administrative Court, of section 3 of the Act on the Sami Parliament. With respect to the 2011 elections to the Sami Parliament, the Court deviated from the wording of the Act to include in the electoral roll individuals who did not meet any of the objective criteria of section 3 in addition to the subjective criterion of individual self-identification. Those rulings triggered a recommendation by the Committee on the Elimination of Racial Discrimination, in 2012, calling on Finland to give more weight to Sami self-determination in decisions concerning inclusion on the electoral roll. The rulings also resulted in a negotiation process between the Government and the Sami Parliament. A solution that satisfied the Sami was reached in 2013 and the related bill was presented to the national Parliament in September 2014. The bill did not get enough support, largely because of pressure from the non-Sami majority population in northernmost Finland. This allowed the Court to continue its expansive application of section 3 beyond its wording.

3.7The author does not object to the Court being entitled in principle to review the application of section 3 of the Act by the pertinent bodies of the Sami Parliament. However, in order to be compatible with the Covenant, the standard for external judicial review of the decisions of those bodies should be arbitrariness or discrimination. The Court, however, did not conclude in any of the 93 cases that the decisions by the pertinent organs of the Parliament not to accept the individuals in question as eligible voters amounted to arbitrariness or discrimination.

3.8The author adds that the Court’s ruling of 13 January 2016 constitutes a new violation of the rights of the author and her fellow members of the Sami indigenous people under articles 25 and 27, read alone and in conjunction with article 1, of the Covenant. The ruling weakened the capacity of the Sami Parliament to defend the rights and interests of the Sami indigenous people, including the rights of the author and other Sami individuals to enjoy their culture in community with other members of the group. As a result of the ruling the Sami Parliament had to pay the legal costs of the 27 people who contested the decision to hold new elections, amounting to €11,645. This has put an important financial burden on the Parliament’s already very limited budget.

State party’s further explanations

4.1By notes verbales dated 27 July 2017, 29 November 2017 and 12 July 2018, the State party responded to the Committee’s request for further explanations. It reiterates that the author failed to substantiate in what way she has been directly affected by the Supreme Administrative Court rulings. A person entitled to vote should be free to vote for any candidate and the State party will always respect the results of genuine, democratic elections of the Sami Parliament. The State party also will not take a stand on any possible internal disagreements within the Sami Parliament.

4.2Currently, three different communications regarding the same subject matter are pending before treaty bodies, two before the Human Rights Committee and one before the Committee on the Elimination of Racial Discrimination. The other communication submitted to the Human Rights Committee was submitted on behalf of 25 persons, two of whom are members of the Sami Parliament. The communication submitted to the Committee on the Elimination of Racial Discrimination was submitted on behalf of the members of the Sami Council and 23 persons, two of whom are members of the Sami Parliament.

4.3Section 14 of the Act on the Sami Parliament provides that the Sami Parliament is to appoint an Election Committee. Section 26 (as amended in 2002) stipulates that individuals who believe they have been unlawfully omitted from the electoral roll can request the Election Committee to rectify the matter urgently. This decision can be appealed to the Board of the Sami Parliament. Pursuant to section 26b (as amended in 2002), Board decisions can be appealed to the Supreme Administrative Court within 14 days ofthe date when the person concerned received notice of the decision. The Court supervises the lawfulness and uniformity of the decisions taken.

4.4A recent report of the Prime Minister’s Office indicates that the Supreme Administrative Court decisions of 2011 and 2015 applied the recommendations issued by the Committee on the Elimination of Racial Discrimination in its concluding observations regarding the ninth, tenth and seventeenth to nineteenth periodic reports of Finland to better take into account an individual’s self-identification within the Sami definition.

4.5The Act on the Sami Parliament addresses the obligation of public authorities to negotiate with the Sami Parliament in its section 9, which states:

(1)The authorities shall negotiate with the Sámi Parliament in all far-reaching and important measures which may directly and in a specific way affect the status of the Sámi as an indigenous people and which concern the following matters in the Sámi homeland:

(1)community planning;

(2)the management, use, leasing and assignment of state lands, conservation areas and wilderness areas;

(3)applications for licences to stake mineral mine claims or file mining patents;

(4)legislative or administrative changes to the occupations belonging to the Sámi form of culture;

(5)the development of the teaching of and in the Sámi language in schools, as well as the social and health services; or

(6)any other matters affecting the Sámi language and culture or the status of the Sámi as an indigenous people.

(2)In order to fulfil its obligation to negotiate, the relevant authority shall provide the Sámi Parliament with the opportunity to be heard and discuss matters. Failure to use this opportunity in no way prevents the authority from proceeding in the matter.

4.6On 8 November 2017, the Ministry of Justice appointed a committee to draft a number of amendments to the Act on the Sami Parliament. The mandate of its work was derived from the fundamental rights and other obligations imposed by the Constitution of Finland, international human rights treaties binding on Finland and the United Nations Declaration on the Rights of Indigenous Peoples. The committeealso took into account the initialled Nordic Sami Convention and the ILO Indigenous and Tribal Peoples Convention. The proposed amendments include modifications to the right to vote in elections to the Sami Parliament. The relevant provision as modified would, like the criteria currently in force, require both subjective consent and the fulfilment of certain objective criteria: that the person, or at least one of his or her parents, grandparents or great-grandparents, has learned Sami as his or her first language or that at least one of the parents has been included in the electoral roll. The proposed text is largely similar to the corresponding provision of the initialled Nordic Sami Convention. Another proposed modification provides for an obligation for State authorities to cooperate and negotiate with the Sami Parliament on certain matters that may affect the status of the Sami; however, this would not imply that the Sami Parliament has a right to veto decisions by other bodies.

4.7Modifications to the procedures for inclusion on the electoral role are also being proposed. These include a proposal for an extension of the time limits for seeking inclusion in the electoral roll, to allow sufficient time for considering applications and possible requests for review by the Election Committee. An independent and autonomous review committee, comprising a chair who is legally trained and three members, would be created to review the decisions of the Election Committee in case of appeal. The review committee’s decisions could be appealed to the Supreme Administrative Court. The goal is to have the amendments to the Act on the Sami Parliament enter into force in sufficient time before the next Sami Parliament elections, to be held in 2019. The Sami Parliament has not yet considered the current draft, and the Government will not proceed without the Sami Parliament’s consent.

Author’s further explanations

5.1By letters dated 23 February 2017, 28 July 2017, 13 April 2018 and 3 August 2018, the author responded to the Committee’s request for further clarifications.

5.2The author first emphasizes that she submitted the communication on her own behalf and on behalf of the members of the Sami indigenous people in Finland, as authorized by the Board of the Sami Parliament. This authorization follows the criteria established by the jurisprudence of the Committee in Lubicon Lake Band v. Canada. She therefore requests the Committee to take into account the individual and collective dimensions of the case, as well as her right to represent all members of her group.

5.3Any communications submitted by another individual concerning the same conduct by the State party does not affect the author’s right to present a communication or her right to represent other members of her group.

5.4In view of the Committee’s admissibility decision, the author modifies her request for an effective remedy and requests that such remedies include: (a) a public apology for the violations of the rights of the author and the Sami indigenous people to non-discrimination, to political participation and to enjoy their own culture interpreted in the light of their right to self-determination; (b) immediate discontinuation of ongoing legislative, treaty-making or administrative processes that would significantly affect the rights and interests of the Sami indigenous people where the free, prior and informed consent of the Sami has not been obtained; (c) immediate initiation of an amendment to section 3 of the Act on the Sami Parliament, towards defining the criteria for eligibility to vote in Sami Parliament elections in a manner that respects the right of the Sami people to exercise self-determination and that limits the external judicial review by State courts of decisions taken by the organs of the Sami Parliament to situations where a decision has been arbitrary or discriminatory; (d) compensation of the Sami Parliament for the legal fees it paid as a result of the ruling of 13 January 2016; (e) compensation of the Sami Parliament for its own legal expenses involved in litigation in matters pertaining to the 2015 elections.

5.5The author argues that the State party does not refer to the two most recent concluding observations issued by the Committee on the Elimination of Racial Discrimination, in which that Committee considered that the rulings of the Supreme Administrative Court gave insufficient weight to the self-determination of the Sami people.

5.6With respect to the process for drafting amendments to the Act on the Sami Parliament, the current proposal satisfies the Sami. This process would partially remedy the author’s claims for Covenant violations, but would not end the ongoing effects of these violations. In fact, by submitting information on the proposed changes to the Act, the State party is implicitly admitting that the interpretation by the Supreme Administrative Court of current section 3 violated the Covenant. In addition, half the members of the drafting committee are not Sami and belong to political parties predominantly voted for by non-Sami Finns, when the matter discussed should be decided by the Sami alone. Additionally, a transition clause has been included in the current draft, delaying the entry into force of the amendments to at least 2020. The current draft thus does not ensure free, prior and informed consent of the Sami people, a requisite reflected in the United Nations Declaration on the Rights of Indigenous Peoples and referred to in the Human Rights Committee’s jurisprudence. The Sami people therefore confront a dilemma: section 3 of the Act will be amended only if they consent to the current proposal, but the proposal does not adhere to international standards regarding free, prior and informed consent. Moreover, an attempt to reform the Act failed in the past, and there is no assurance that the proposal will be accepted this time.

5.7The author refers to some Supreme Administrative Court decisions in response to the Committee’s question regarding the Court’s assessment in the 93 rulings and its interpretation of the definition of Sami contained in the Act on the Sami Parliament. In the first example, the Sami Parliament had rejected the appellant’s request because she did not meet the objective criteria contained in section 3 of the Act. The Court agreed that the appellant did not meet those criteria, but then found that she had demonstrated a strong devotion to Sami language and culture. It concluded that, in an overall consideration, the appellant should be regarded as a Sami. The author also presents the examples of two siblings with the same family history. The appeal of one was accepted under the Court’s “overall consideration” rationale, while the sibling’s appeal was rejected. The only difference between those two appeals was the appellants’ description of their self-identification as a Sami. The Court’s assessment thus relies on self-identification of each individual as a Sami, which interferes with the Sami people’s right to self-determination and their aspiration to apply the law in a foreseeable and coherent manner. The author wishes to highlight that two of these rulings have been published in FINLEX, the Ministry of Justice database for Finnish legal documents, which implies that they are considered authoritative legal precedents. The author also refers to a report from a research project commissioned by the Government of Finland, in which the authors consider that some of the Court rulings provide different outcomes to identical claims and that it cannot be the task of the Supreme Administrative Court to determine who is a Sami in Finland, as its main task is to control the lawfulness of decisions.

5.8Regarding the Committee’s question on the impact the Supreme Administrative Court decisions have had on the functioning of the Sami Parliament, the author reiterates her previous arguments. It is speculative to assess the consequences of the inclusion of new voters, because of the secrecy of ballots, but as a conservative estimate at least two Members of the Sami Parliament were elected due to modification of the electoral roll. The current composition of the Sami Parliament is also more divided, resulting in some members prioritizing Sami self-determination and indigenous people’s rights andother members seeking compromises with the State of Finland and the mainstream Finnish population. This trend is also undermining the increasing leadership demonstrated by young Sami women such as the author.

5.9In response to the Committee’s question relating to forestry and other commercial activity, the obligation of consultation with the Sami Parliament established in section 9 of the Act on the Sami Parliament falls short of the current international standard reflected in the United Nations Declaration on the Rights of Indigenous Peoples and the Committee’s jurisprudence. Adequate guarantees were deleted from the new act on the government forestry agency. The rulings by the Supreme Administrative Court contribute towards this atmosphere of disregard towards the Sami Parliament, and the obligation of consultation is being increasingly ignored by government authorities. This tendency is further illustrated by the Ministry of Transport’s announcement, in March 2018, of its plans to build a railway to the Arctic Ocean, cutting through the reindeer herding lands of the Sami and destroying their way of life, after the Sami “were heard” but not genuinely consulted.

5.10Regarding the Committee’s question on the negotiations with Norway concerning salmon fishing in the River Teno, the new bilateral treaty has been signed between the two countries, but the Sami Parliament was excluded from the negotiations. The decisive phase of the negotiations coincided with the time when the Sami Parliament was weakened by the Court rulings. The uncertainty that followed the election directly affected the Sami Parliament’s capacity to successfully intervene. The new treaty will adversely affect the fishing activities and culture of the Sami people in Finland. Both the Constitutional Law Committee of the Finnish Parliament and the Government’s internal legality oversight office concluded that the Sami Parliament had not been duly consulted. The Parliament of Finland approved the treaty by a majority of 111 votes out of 200 Members, of which none are Sami. This lack of full consultation constitutes a separate violation of the rights of the author and her colleagues at the Sami Parliament under articles 25 and 27 of the Covenant, as informed by article 1.

5.11Regarding the Committee’s question on the impact of the Court decisions on the author’s cultural and linguistic rights, the author recalls her initial claims. She further notes that she is a reindeer herder and fisherwoman; the nature-based activities in which she engages have remained constitutive of her Sami identity and culture at an individual level. She sees it as an important part of her identity to transmit to the following generations her knowledge of the Sami methods of reindeer herding and fishing.

Issues and proceedings before the Committee

Consideration of the merits

6.1The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 5(1) of the Optional Protocol.

6.2The Committee notes the author’s allegations that the decision of the Supreme Administrative Court violated articles 25 and 27 of the Covenant by preventing the author from taking part in genuine periodic elections and negatively affecting the author and the Sami people’s use of their language and enjoyment of their culture in community with other members. According to the author, those decisions have produced a situation of lawlessness and arbitrariness and greater division within the Sami Parliament, which has become less efficient in promoting and protecting the rights of the Sami people. The Committee also notes that, according to the State party, the Court’s review was provided by law and in full compliance with article 25 of the Covenant, and respects the right of each voter to be free to vote for any candidate.

6.3The Committee notes the State party’s submission that it fully respects self-identification as a criterion for the determination of a person as indigenous, in compliance with recommendations of the Committee on the Elimination of Racial Discrimination. It also notes the author’s assertion that the State party fails to acknowledge the concern of that same Committee that the definition adopted by the Supreme Administrative Court gives insufficient weight to the Sami people’s rights to determine their own identity or membership in accordance with their customs and traditions and their right not to be subjected to forced assimilation or destruction of their culture, as recognized under articles 33 and 8, respectively, of the United Nations Declaration on the Rights of Indigenous Peoples.

6.4The Committee notes that a process is currently ongoing to amend the Act on the Sami Parliament, including the criteria for determining the right to vote. It further notes the author’s unrefuted submission that the amendments could not enter into force before 2020 and would only partially remedy the violations suffered, since they would not end the effects of the alleged violations. The author considers that the very fact that the State party has sought to modify the Act is an implicit recognition of the violation of the Covenant.

6.5The Committee recalls that, in accordance with its general comment No. 25 (1996) on participation in public affairs and the right to vote, any conditions that apply to the exercise of the rights to take part in the conduct of public affairs, directly or through freely chosen representatives, to vote and to be elected at genuine periodic elections, should be based on objective and reasonable criteria. The Committee also recalls its jurisprudence in Lovelace v. Canada that the category of persons belonging to an indigenous people may in some instances need to be defined to protect the viability and welfare of a minority as a whole. In Kitok v. Sweden, the Committee considered that a restriction upon the right of an individual member of a minority must be shown to have a reasonable and objective justification and to be necessary for the continued viability and welfare of the minority as a whole.

6.6The 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 own identity or membership in accordance with their customs and traditions, and the right to determine the structures and to select the membership of their institutions in accordance with their own procedures. Article 9 of the Declaration provides that indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned, and that no discrimination of any kind may arise from the exercise of such a right. In accordance with article 8 (1) of the Declaration, indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

6.7In this context, the Committee notes that pursuant to section 3 of the Act on the Sami Parliament, for a person to be considered as a Sami for the purposes of being allowed to vote in the elections for the Parliament, in addition to considering himself or herself a Sami: (a) he or she or at least one of his or her parents or grandparents must have learned Sami as his or her first language; (b) he or she must be a descendent of a person who has been entered in a land, taxation or population register as a mountain, forest or fishing Lapp; or (c) at least one of his or her parents must have been or could have been registered as an elector for an election to the Sami Delegation or the Sami Parliament. The Committee also notes that, as undisputed by the parties, the objective elements were not applied by the Supreme Administrative Court in a majority of cases.

6.8The Committee recalls its general comment No. 23 (1994) on the rights of minorities, in particular its observation concerning the exercise of cultural rights, namely, that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them. The Committee further observes 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 an inalienable right of indigenous peoples to freely determine their political status and freely pursue their economic, social and cultural development. Article 1 of the Covenant and the corresponding obligations concerning its implementation are interrelated with other provisions of the Covenant and rules of internationallaw.

6.9The Committee notes that, according to the State party, the author failed to establish in what way she had been directly affected by the Supreme Administrative Court rulings. It also notes the author’s request that the Committee take into account the individual and collective dimensions of the case. In this regard, the Committee recalls its general comment No. 23 (para. 9), in which it recognizes that the protection of the rights under article 27 of the Covenant is directed to ensure the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole. Accordingly, the Committee observed that those rights must be protected as such and should not be confused with other personal rights conferred on one and all under the Covenant. Moreover, although the rights protected under article 27 are individual rights, they depend in turn on the ability of the group to maintain its culture, language or religion. The Committee further recalls that the preamble of the United Nations Declaration on the Rights of Indigenous Peoples establishes that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples. In view thereof, the Committee considers that in the context of indigenous peoples’ rights, articles 25 and 27 of the Covenant have a collective dimension and some of those rights can only 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, read in the light of article 1, of the Covenant, and in pursuance of the preservation of the rights of members of the community to enjoy their own culture or to use their own language in community with the other members of their group, are not enjoyed merely individually. Consequently, when considering the individual harm in the context of this communication, the Committee must take into account the collective dimension of such harm. With respect to dilution of the vote of an indigenous community in the context of internal self-determination, harm directly imposed upon the collective may injure each and every individual member of the community. The author is a member of an indigenous community and all of her claims are related to her rights as such.

6.10The Committee notes the author’s claim that, given the mandate of the Sami Parliament, the effective functioning of the Parliament and its capacity to adequately represent the views of the Sami are essential for the implementation by the State party of articles 25 and 27 of the Covenant, and that the Sami Parliament is an important instrument for the Sami, individually and collectively, to enjoy and exercise the rights protected under those articles. The Committee notes that the powers and duties of the Sami Parliament include looking after the Sami language and culture, taking care of matters relating to the status of the Sami as an indigenous people, acting as a representative of the Sami people nationally and internationally in matters pertaining to its tasks, and being consulted by all authorities in a long list of matters that concern the Sami as an indigenous people or developments within the Sami homeland. The Committee accordingly considers that the Sami Parliament constitutes the institution by which the State party ensures the effective participation of the members of the Sami people as an indigenous community in the decisions that affect them. Consequently, the State party’s fulfilment of the obligations contained in article 27 of the Covenant depend on the effective role that the Sami Parliament may play in decisions that affect the rights of members of the Sami community to enjoy their own culture or to use their own language in community with the other members of their group. The electoral process for the Sami Parliament accordingly must ensure the effective participation of those concerned in the internal self-determination process, which is necessary for the continued viability and welfare of the indigenous community as a whole. Pursuant to article 25 of the Covenant, the Committee also considers that restrictions affecting the right of members of the Sami indigenous community to effective representation in the Sami Parliament must have a reasonable and objective justification and be consistent with the other provisions of the Covenant, including the principle of internal self-determination relating to indigenous peoples.

6.11In the current case, the author is a member of the Sami people and a member of the Sami Parliament, of which she is President, and as such is actively engaged in the electoral process. The Committee observes the author’s uncontested submissions that the decisions of the Supreme Administrative Court, from 2011 onwards, departed from the consensual interpretation of section 3 of the Act on the Sami Parliament for determining membership in the electoral rolls of that Parliament. In particular, the Court failed to require satisfaction of at least one of the objective criteria in the majority of cases, instead applying an “overall consideration” and examining whether a person’s own opinion about considering themselves a Sami was “strong”, and thereby infringed on the capacity of the Sami people to exercise, through the Sami Parliament, a key dimension of Sami self-determination in determining who is a Sami. The Committee considers that the Supreme Administrative Court rulings affected the rights of the author and of the Sami community to which she belongs to engage in the electoral process regarding the institution intended by the State party to secure the effective internal self-determination, and the right to their own language and culture, of members of the Sami indigenous people. The Committee further considers that by departing in this manner from the consensual interpretation of the law determining membership in the electoral rolls of the Sami Parliament, the Court’s interpretation was not based on reasonable and objective criteria. Accordingly, the Committee considers that the facts before it amount to a violation of the author’s rights under article 25, read alone and in conjunction with article 27, as interpreted in the light of article 1 of the Covenant.

6.12Having found a violation of article 25, read alone and in conjunction with article 27, the Committee does not consider it necessary to examine the author’s other claims under the Covenant.

7.In the light of the above, the Committee, acting under article 5(4) of the Optional Protocol, is of the view that the facts before it disclose a violation of article 25, read alone and in conjunction with article 27, of the Covenant.

8.Pursuant to article 2(3)(a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, to review section 3 of the Act on the Sami Parliament with a view to ensuring that the criteria for eligibility to vote in Sami Parliament elections are defined and applied in a manner that respects the right of the Sami people to exercise their internal self-determination, in accordance with articles 25 and 27 of the Covenant. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.

9.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State party, including by ensuring their accessibility to the members of the Sami indigenous community.

Annex

[Original: French]

Individual opinion of Olivier de Frouville (concurring)

1.I agree with the Committee’s conclusion in this case, namely, that there has been a violation of article 25, read alone and in conjunction with article 27, as interpreted in the light of article 1 of the International Covenant on Civil and Political Rights.

2.However, I believe that the Committee did not properly substantiate its decision on admissibility, which was adopted separately on 28 March 2017. In that decision, the Committee notes that, by submitting the communication on her own behalf, the author brings the communication to the Committee as a member of the Sami indigenous people and as a member of the Parliament, of which she is the elected President. The Committee considers that, in that individual capacity, she may be affected by issues concerning the functioning of the Parliament and the elections thereto. Later in that same decision, the Committee notes that decisions taken by institutions of the Finnish State that have an impact on the composition of the Sami Parliament and the equal representation of the Sami can impact on the right of individual members of the Sami community to enjoy their culture and to use their language in community with the other members, and their right to equality before the law. The decision of admissibility was therefore based on the finding of a double causal link: between the judgments of the Supreme Administrative Court and the composition and functioning of the Sami Parliament; and between the composition and functioning of the Sami Parliament and the rights of members of the Sami people under article 27 of the Covenant. However, the arguments advanced by the author did not clearly support this double causal link and the Committee’s decision was equally evasive. There was no proof offered as to how the application of the principle of self-identification significantly affected the composition of the electorate, much less the composition and functioning of the Sami Parliament. Furthermore, no concrete examples were given to demonstrate that, in any particular case, changes in the composition of the electoral body had had an impact on the rights of members of the Sami people under article 27. The Committee therefore did not explain clearly how the author could claim to be a “victim” of violations of her rights under articles 25, 26 or 27 of the Covenant.

3.However, the Views adopted subsequently by the Committee in a related case – Käkkäläjärvi et al. v. Finland – make it possible to remedy this lack of substantiation a posteriori. In this case, the Committee focused on the claims of the authors under article 25 of the Covenant. The case primarily concerned the right to participate in the conduct of public affairs of the Sami, as members of an indigenous people – thereby providing full justification for article 25 to be read in conjunction with article 27, as well as with article 1 of the Covenant. At issue here is the right of Sami people to determine their own identity or membership in accordance with their customs and traditions, as well as their right to determine the structures and to select the membership of their institutions in accordance with their own procedures, rights recognized in article 33 of the United Nations Declaration on the Rights of Indigenous Peoples. The decisions of the Supreme Administrative Court have indeed had a significant impact on the Sami people’s ability to determine its membership collectively and on its right to take part in the conduct of public affairs through elected representatives in an established body. Moreover, the Court, in these decisions, failed to properly apply national legislation, which nevertheless clearly established an objective criterion of membership, as desired by the Sami themselves. By not applying this criterion and replacing it with a self-identification criterion, which the Court itself interpreted on a case-by-case basis, the Court restricted the right of the Sami people to participate in public affairs in the context of institutions designed to uphold their rights as members of an indigenous people, as set out in article 27 of the Covenant.

4.The Views adopted in Käkkäläjärvi et al. v. Finland clarify the causal link between the decisions of the Supreme Administrative Court and the political rights of the Sami people. In these Views, the Committee notes the authors’ contention that the application of the criterion of self-identification could potentially lead to the inclusion in the electoral roll of 512,000 persons who are not recognized as Sami by the Sami Parliament. The Committee further notes the disturbing submission, which was not contradicted by the State party, that anti-Sami organizations are campaigning and assisting non-Sami persons to apply for recognition as Sami persons and inclusion in the electoral roll, because of underlying economic interests. Such prospects, in my view, justify the status of “victim”, at least potentially, for the 22 authors recognized as such by the Committee.

5.The same considerations apply to the author of the present communication, not as President of the Sami Parliament, but as a voter and elected member of Parliament, and more simply as a member of the Sami people, whose right to participation in public affairs has been violated by the interpretation of the Supreme Administrative Court of the Act on the Sami Parliament.