Committee against Torture
Consideration of reports submitted by States partiesunder article 19 of the Convention
Follow-up responses by the Government of Finland to the conclusions and recommendations of the Committee against Torture (CAT/C/CR/34/FIN) *
[2 December 2008]
Follow-up response to the recommendation made in paragraph 5(a) of the conclusions and recommendations ( CAT/C/CR/34/FIN )
1.The Penal Code (39/1889) will be supplemented with specific penal provisions concerning torture. The working group set up by the Ministry of Justice for considering this legislative amendment underlines that the express criminalization of torture will reinforce the absolute prohibition of torture laid down in the Constitution of Finland and in international law, and indicate the particular reprehensibility of torture. It will also signal that Finland supports the absolute prohibition of torture in all circumstances.
2.Acts deemed as torture are already punishable under the Finnish Penal Code, but not as a specific type of offence, for in 1995 a penal provision on torture for confession was deleted from the Code. The provision was no longer considered necessary, because such acts may be sentenced by virtue of other penal provisions of the Code, for instance as aggravated assaults and aggravated abuse of public office.
3.The working group proposes that the provisions on torture should be included in the chapter of the Penal Code concerning war crimes and offences against humanity. Torture would refer to intentional causing of severe mental or physical suffering to another for the purpose of obtaining for example a confession or information, or for punishing, intimidating or compelling the person to something.
4.The definition of torture would mainly comply with the definition given in the Convention against Torture. By exception to this, the working group proposes that also a person other than a civil servant or another person exercising public authority could be deemed guilty of torture. Thus, the working group wants to define the perpetrators of torture as broadly as under the Penal Code provision deleted in 1995.
5.Because torture is an exceptionally severe offence, the working group proposes that it should be punishable by imprisonment of at least two and at most twelve years.
Follow-up response to the recommendation made in paragraph 5(b) and (c) of the conclusions and recommendations
6.Finland is committed to fully implement the Convention relating to the Status of Refugees. The requirements for granting asylum laid down in the Finnish Aliens Act (301/2004) are identical with those of the Refugee Convention. The latest proposals for national legislative amendments concerning international protection are based on the EU Refugee Qualification Directive and the Asylum Procedure Directive. When implementing the Directives at national level Finland has observed the asylum policy guidelines adopted by the EU, taking, at the same time, fully into account the provisions of the Geneva Refugee Convention.
7.The Ministry of the Interior set up a project for 1 November 2007–30 April 2008 to examine how to develop the operations of the Finnish immigration administration and the Finnish Immigration Service. The Rapporteur, Minister Ole Norrback, states in his final report (publication no. 15/2008 of the Ministry of the Interior) that the average standards of the relevant legislation and the asylum procedures in Finland are good compared to the other member States of the European Union.
8.The Finnish asylum procedure is based on an individual consideration of each application. The authorities examine and decide the applicant’s right of residence not only on the basis of asylum but also on other grounds established by them. An application for international protection is processed and decided either in a normal or in an accelerated asylum procedure. The procedure ensures the applicant’s fundamental procedural guarantees, for example the right to use an interpreter and a legal counsel, as well as an individual interview. The interests of an unaccompanied minor in an asylum procedure are represented by a representative ordered by a district court. The applicant is always entitled to appeal against a decision on his or her residence permit and removal from the country.
9.The Aliens Act (301/2004) defines cases where an application for international protection may be dismissed or processed in an accelerated asylum procedure. In Finland, an application may be dismissed on the merits if another state is responsible for processing it. An accelerated procedure may be used if the applicant comes from a safe country of origin, the application can be considered manifestly unfounded, or the applicant has filed a subsequent application. As a rule, applications decided on the merits are examined in a normal asylum procedure. For example in 2007 less than 30% of all applications were dismissed or decided on the merits in an accelerated procedure.
10.During the recent overall reform of the Aliens Act the Government requested the Ombudsman for Minorities to study how the accelerated procedures under the Aliens Act are applied in practice, inter alia from the viewpoint of the legal safeguards for asylum-seekers. The Ombudsman states in his report (Nopeus, tehokkuus vai oikeudenmukaisuus, “Rapidity, efficiency or justice”; publication No. 2/2005 of the Ombudsman for Minorities) that an accelerated procedure normally guarantees the asylum-seeker legal safeguards during the procedure.
11.In its response to the Committee’s recommendations in May 2006 the Government of Finland reported on the problems of interpretation that the Ombudsman for Minorities found in connection with the asylum procedure and which, according to him, should be addressed by administrative guidance and any possible legislative amendments. These problems of interpretation relate to (1) the option of delegating the responsibility for an asylum interview and the option of omitting the interview entirely, (2) the asylum-seeker’s access to legal aid, (3) the acceleration of the asylum procedure, which must not jeopardise the asylum-seeker’s legal safeguards, and (4) the prohibited chain refoulement of asylum-seekers removed from the country in an accelerated timetable by virtue of the EU Dublin Regulation. The Ombudsman’s study showed that ensuring an effective right of appeal (5) is the most important legal safeguard connected with accelerated asylum procedures.
(1) The option of delegating the responsibility for an asylum interview and the option of omitting the interview entirely
12.According to section 97, subsection 2 (973/2007) of the Aliens Act the police may, at the request of the Finnish Immigration Service, conduct an asylum interview if the number of applications has increased dramatically or, for special reasons, at other times as well. The Finnish Immigration Service has issued separate instructions on the application of this provision. The police and the Finnish Immigration Service consult with the Ministry of the Interior if there is need to apply the provision in a large scale. Delegating the interview must not be the principal rule in any circumstances. Each individual case has to be assessed separately. In practice, the provision has been applied rarely.
13.The asylum interview for an application to be decided on the merits may be omitted in Finland only in the case of subsequent applications under section 102 of the Aliens Act (973/2007). A subsequent application refers to an application for international protection made by an alien after his or her previous application was rejected by the Finnish Immigration Service or an administrative court while he or she still resides in the country, or if he or she has left the country for a short time after his or her application was rejected.
(2) An asylum-seeker’s access to legal aid
14.Section 8, subsections 2 and 3, of the Aliens Act (301/2004) provide that when an administrative matter and an appeal under the Act are filed and handled, the person concerned may use counsel. According to section 9, subsection 1, of the Act, provisions on aliens’ right to legal aid are laid down in the Legal Aid Act (257/2002).
15.Considering the nature of accelerated procedures it is important that legal aid is available as early as possible at the initial stage of the procedure. In June 2008 the Government submitted to Parliament a bill to amend the Aliens Act (HE 86/2008 vp) in order to implement the Asylum Procedure Directive at national level. The bill proposes that the Act should be supplemented with a provision on information to be provided to seekers of international protection. According to the proposed provision, an asylum-seeker would be informed about the asylum procedure and his or her rights and obligations during it. One central piece of information to be provided to the asylum-seeker is his or her right to contact and use a legal counsel during the procedure.
16.A working group set up by the Ministry of Labour has examined the legal aid provided to seekers of international protection and describes it in its report (Ulkomaalaisille annettava oikeudellinen neuvonta ja oikeusapu, “Legal advice and aid provided to aliens”, publication no. 377/2007 of the labour administration). The most significant repercussions of the working group’s proposals mainly concern the arrangement of the legal advice and individual assistance acquired by the asylum-seeker reception centres for their customers.
(3) Acceleration of the asylum procedure
17.Section 104 of the Aliens Act (301/2004) provides that if the applicant is considered to come from a safe country of asylum or origin, the decision on his or her application for international protection shall be made within seven days of the date when the minutes of the interview were completed and the information on their completion was entered in the Register of Aliens. In practice, the total length of the asylum procedure in such cases varies from weeks to months.
18.The law does not prescribe any time limit for deciding on an application in accelerated procedures other than those mentioned above. Occasionally there have been cases where, for instance, an application has been decided to be manifestly ill-founded after a very long time, even one year after the application was lodged. In 2007 the processing of an application in an accelerated procedure took 90 days on average.
19.In his above-mentioned report, Rapporteur Norrback paid attention to two issues in connection with accelerated asylum procedures: manifestly well-founded applications and times of processing. He proposed that a separate accelerated procedure be introduced for manifestly well-founded applications for international protection, and that the Aliens Act be supplemented with a three months’ time limit for deciding on an asylum application in an accelerated procedure. In summer 2008 the Ministry of the Interior set up a working group to follow up Rapporteur Norrback’s proposals.
(4) The prohibition of chain refoulement of asylum-seekers returned by virtue of the Dublin Regulation
20.Section 9 of the Constitution of Finland (731/1999) provides that a foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity. According to section 147 of the Aliens Act (301/2004) no one may be refused entry and sent back or deported to an area where he or she could be subject to the death penalty, torture, persecution or other treatment violating human dignity or from where he or she could be sent to such an area. These provisions are taken fully into account in asylum investigation, also in cases where the authorities, by virtue of the Dublin Regulation, decide to send the asylum-seeker back to another country applying the Regulation.
21.Ultimately, the authorities enforcing a decision to remove an asylum-seeker from the country are responsible for ensuring that there are no obstacles laid down in section 147 of the Aliens Act to the removal. However, section 200, subsection 2, of the Aliens Act (301/2004) provides that a final decision or a decision that is otherwise enforceable under the Act may not be enforced if there is reason to believe that returning the alien to his or her country of origin or another country may expose him or her to danger as referred to in section 147. If necessary, the enforcing authorities postpone the enforcement or advise the alien to file a new application for international protection.
(5) Providing an effective remedy
22.In connection with accelerated asylum procedures it is, regardless of appeal, possible to enforce a removal decision immediately or eight days from service of the decision. Taking account of this possibility, the applicant’s right to petition a court to prohibit or suspend the enforcement has, in practice, guaranteed the implementation of the right to an effective remedy.
23.Although the Aliens Act does not obligate the authorities enforcing the removal decision to wait for the court’s decision to prohibit the enforcement, the police have in practice mostly waited until the court has made its decision. Administrative courts, in turn, have been able to decide petitions for the prohibition of enforcement very quickly.
24.On 25 March 2008 the Police Department of the Ministry of the Interior issued a regulation on the division of responsibility for the enforcement of decisions to remove aliens from Finland (SM-2008-00888/Ka-24). This regulation orders the following about applications decided in an accelerated procedure:
“Above, this regulation describes situations where decisions may be enforced unless the Supreme Administrative Court or an administrative court orders otherwise. The law does not contain any obligation to wait for the decision of a court on a petition to prohibit enforcement. If, however, it is known that such a petition has been made, the enforcing authorities, before enforcing the decision to remove the alien from the country, have to inquire of the court, by telephone or by other means, whether it intends to prohibit the enforcement of the decision.”
25.A working group appointed by the Ministry of the Interior to develop the immigration administration and the aliens legislation proposed in its final report, in 2006, an assessment of the question how to clarify the provision of the Aliens Act concerning the enforcement of a removal decision made in an accelerated procedure. The legal safeguards of asylum-seekers should be taken into account in the clarification, and at the same time, the asylum procedures should be prevented from being delayed from the present time.
26.During 2008, at the initiative of the Ministry of the Interior, questions related to the enforceability of removal decisions have been examined jointly with representatives of the judicial administration, and this examination will continue.
Education and training of police officers in the enforcement of asylum decisions
27.Regarding the education and training provided to police officersfor the enforcement of asylum decisions in light of section 147 of the Aliens Act (301/2004) and article 3 of the Convention, their basic education and training contains instruction in aliens issues, based on the provisions of the Aliens Act. This instruction focuses, in particular, on the purpose and scope of application of the Act, requirements for entry, removal from the country, and interim measures. The basic education and training also contains training for situations where interpretation or translation is needed. The police also arrange special courses in aliens issues, theme seminars to enhance special know-how and seminars that are also open for authorities cooperating with the police. The most recent training planned for persons involved in removals from the country and arranged by the Police Department of the Ministry of the Interior jointly with the Aliens’ Police took place in November 2007.
28.Moreover, the police are bound by the aforementioned regulation issued by the Police Department of the Ministry of the Interior on the division of responsibility for the enforcement of decisions to remove aliens from Finland (SM-2008-00888/Ka-24). The regulation was issued on 6 March 2007 and updated on 1 April 2008.
29.The Police Department of Helsinki Local District has a separate unit, “the Aliens’ Police”, for handling aliens issues in the Helsinki district. The regulation of the Ministry of the Interior centralises the responsibility for coordinating the enforcement of removal decisions in the Police Department of Helsinki Local District. The implementation of legal safeguards requires a consistent mode of operation and coordination.
30.The above-mentioned regulation, which is binding on the entire police, orders the following:
“Not even a final decision shall be enforced, if there are grounds to suspect that returning the alien to the country of origin or another country may subject him or her to a danger referred to in section 147 of the Aliens Act (301/2004). No one may be sent back or deported to an area where he or she could be subject to the death penalty, torture, persecution or other treatment violating human dignity or from where he or she could be sent to such an area. The non-refoulement principle may be applicable for instance if a long time has lapsed since the removal decision of the Finnish Immigration Service, and if the circumstances in the alien’s home country or country of destination have changed during that time.”
31.In addition to this regulation the Police Department has issued the police with an instruction on the enforcement of a decision on removal and deportation from the country. The instruction was updated last on 1 March 2008.
32.The Ombudsman for Minorities has stated the following in his opinion on the recommendations:
“Regarding asylum interviews the Ombudsman for Minorities has considered that the main responsibility for them should rest with the Finnish Immigration Service (the former Directorate of Immigration), which has the necessary know-how. Therefore the Ombudsman has suggested that section 97(2) of the Aliens Act should be made more precise by supplementing it with the precondition that the number of applications has increased suddenly, in order to underline the exceptionality of interviews conducted by the police. The Aliens Act has not been amended to this effect, as proposed by the Ombudsman.”
33.According to the Ombudsman, an asylum-seeker’s application should not be processed in an accelerated procedure except in quite obvious cases. In other words, an accelerated procedure should be used only if the asylum-seeker has not presented any grounds for international protection or has clearly attempted to abuse the asylum procedure.
34.In practice it has been difficult to get legal aid for accelerated asylum procedures. The prompt processing has caused problems in finding counsels. In some cases the asylum-seeker has not obtained cost-free legal aid for the processing of his/her application. According to the Ombudsman for Minorities, legal aid offices should be instructed concerning access to legal aid for asylum investigation under section 97, subsection 2, (973/2007) of the Aliens Act. Furthermore, the Ombudsman has considered that the sufficiency of legal advice services at reception centres should be guaranteed by law. The provision of legal advice cannot be left to the discretion of administrative authorities.
35.When an asylum-seeker is refused asylum, he or she is also issued with a decision on removal from the country. If the asylum application has been dismissed on the grounds that the applicant may be sent to another State which, under the Dublin Regulation, is responsible for processing the application, or if the seeker has lodged a subsequent application, the removal decision is enforceable after service on the applicant, unless an administrative court orders otherwise. Further, if the removal decision has been made because the asylum-seeker has arrived from a safe country of origin or if the application has been considered manifestly unfounded, the decision is enforceable at the earliest on the eighth day from service on the applicant, unless an administrative court orders otherwise. In practice, this means that an asylum-seeker in an accelerated procedure may be removed from the country even if he or she appeals against the refusal of asylum and petitions for prohibition to enforce the removal decision. According to the current wording of the Aliens Act the police need not wait for the decision of an administrative court, not even when a prohibition to enforce a removal decision is petitioned for.
36.In the view of the Ombudsman for Minorities, the appeals system and especially petitions for a prohibition to enforce removal decisions made in accelerated procedures are essentially problematic from the viewpoint of legal safeguards. The Ombudsman suggests that these problems could be eliminated by administrative guidance or by legislation.
Follow-up response to the recommendation made in paragraph 5(d) of the conclusions and recommendations
The situation of Roma prisoners
37.A new Act on Imprisonment (767/2005) entered into force in Finland on 1 October 2006. This Act influences the situation of Roma prisoners and other prisoners by prescribing a more systematic enforcement of their term of imprisonment. The responsible allocation unit prepares a sentence plan for each prisoner, excluding prisoners with short sentences, on the basis of an assessment of his or her risks and needs. The assessment addresses the factors that should be influenced in order to reduce the prisoner’s risk of committing new offences. The planning also facilitates the placement of Roma prisoners in general, by making it possible, before their entry into the prison, to take account of factors promoting their participation in activities organised during the imprisonment.
38.Efforts have been made to improve the situation of Roma prisoners by means of performance management of prisons. The objective to improve their situation is also included in the equality plan adopted in 2006.
39.Finnish prisons have been requested to provide information about Roma prisoners’ situation and the implementation of the proposals of the working group established to look at their situation. According to the answers from the prisons, the situation in open prisons is generally good. In closed prisons, too, it is usually possible to place Roma prisoners in normal residential departments, and they can participate in normal prison activities. Prisons have arranged teaching in the Roma language and culture, and Roma prisoners are also entitled to attend the general education and training. It is often difficult for Roma prisoners to pursue vocational studies, because their basic educational level tends to be deficient. These prisoners have had problems with attending rehabilitation for substance abusers, because they are often unwilling to attend it with other prisoners.
40.The situation of Roma prisoners in some closed prisons has been problematic at times. During the term of the working group mentioned above, the Roma prisoners in Riihimäki and Konnunsuo Prisons lived in closed departments. Since then, the situation in Riihimäki has improved because of a new division into departments. Konnunsuo Prison, too, has made continuous efforts to correct the situation and has consulted for instance the prisoners’ fellowship. Despite these measures it has not been possible to place Roma prisoners in the normal departments. According to a report from Konnunsuo Prison, a large number of Roma prisoners attended comprehensive school education full-time in 2006–2007. Other Roma inmates of the (closed) department have had the opportunity to participate in work in stone or jewellery workshops, assembling or kitchen work, or cleaning of the department. The inmates of the closed department have also had more opportunities for weekly gym exercise, other physical exercise and outdoor activities than those of the normal departments. The number of Roma prisoners in Konnunsuo has declined considerably, and in recent times this prison has had only an average of 2 to 3 male Roma prisoners. No problems have been encountered in the department for female prisoners.
41.In addition to Konnunsuo Prison, also Sukeva Prison has currently placed all Roma prisoners, at their own request, in a department where they live separately from the other prisoners. Sukeva Prison has reported that the current number of Roma prisoners there is 4-5. The meals and outdoor activity breaks in this department are arranged separately, and the department also provides separate stimulating activities, which contain preparatory and conductive training. The Roma live in this department together with other prisoners who have requested separate placement, and all inmates are treated equitably and by the same principles. Sukeva Prison subscribes to one magazine in the Roma language for the Roma prisoners. Moreover, the prison intends to start adult education for Roma prisoners in autumn 2008, with funding from the National Board of Education. The prison will employ a new worker for substance abuser rehabilitation, and this will make it possible to improve such rehabilitation.
42.Prisons have no actual contact persons for Roma affairs, but the duties of the deputy prison directors, responsible for the prison operations, also include issues related to Roma prisoners. All current systems with Roma contact persons outside prisons have been organised on a voluntary basis.
The equality plan
43.The equality plan of the Prison Service was prepared by a working group which completed its work on 24 March 2006. The plan contains the legislative provisions on equal treatment, the objectives of equal treatment, the principles concerning non-discrimination in prisons, the means of promoting non-discrimination, an assessment of the number of prison staff with minority background, and instructions for addressing cases of discrimination. In its report the working group proposes the following measures:
(a)Each prison should make efforts to identify those modes of treating minority prisoners which differ from the modes concerning prisoners of the majority population;
(b)Even minor racist phenomena should be addressed immediately and efficiently;
(c)Non-discrimination should be increased by counselling;
(d)Activities should be increased in those departments where prisoners cannot participate in joint activities with other prisoners. Dividing or redividing prisons into departments in connection with construction projects is another means of increasing prisoners’ opportunities of participation;
(e)Basic and language education and training should be concentrated in certain prisons under a district prison;
(f)The societal integration of immigrants, especially young immigrants, should be supported;
(g)The release of prisoners to be deported or removed from the country should be prepared by sufficient measures;
(h)A minority contact person should be appointed in each district prison;
(i)The promotion of non-discrimination should be taken increasingly into consideration in the basic and further education and training of prison staff;
(j)When necessary, the need of the prison service for staff with knowledge of different cultures and languages should be underlined in the information provided about education and training for the prison service and its open vacancies;
(k)The prison service as an employer should support the development of the attitudinal atmosphere at workplaces towards respect for non-discrimination and diversity;
(l)The implementation of the equality plan should be made one of the performance objectives;
(m)The classification of the prisoner information system (VATI) should be developed by enabling searches for incidents involving racism among the entries.
44.The Management Group of the Prison Service has considered the non-discrimination plan, and the directors of the district prisons are responsible for implementing it in practice. The answers of prisons to an inquiry about the implementation of the plan show that the implementation varies between them. Some prisons have distributed the plan to their staff without discussing it in detail. However, many prisons try to follow the guidelines set in the plan, for instance when placing prisoners in the prison and in different activities. Prisons try to address racist phenomena immediately. They have not appointed contact persons as expected in the plan, but they utilise, to the extent possible, the input of their employees with different backgrounds. Training in multiculturalism is considered important in prisons.
Follow-up response to the recommendation made in paragraph 5(e) of the conclusions and recommendations
The timetable of the renovation of Riihimäki Prison and the introduction of Western Finland Prison (currently Turku Prison)
45.The renovated parts of Riihimäki Prison were introduced in stages: department D in May 2004, department C in November 2004, department A in May 2005 and department F in November 2005. Thus, all cells in Riihimäki Prison had a toilet in November 2005.
46.The new Turku Prison (called Western Finland Prison during the construction) was introduced on 1 October 2007.
Further information about the methods used for establishing that prisoners do not want chemical toilets in their cells, and information about the other alternatives (in addition to chemical toilets) considered for replacing the use of chamber pots in cells before 2010
47.In the early 2000s, Helsinki Prison purchased around 100 portable chemical toiletsfor use in cells with chamber pots. The toilets were distributed into the cells, and the prisoners were instructed how to use and service them. The old chamber pots were left in the cells. After having tried the chemical toilets the prisoners informed that they did not want to use them, because servicing and cleaning them was laborious. They also informed that the toilets could be removed, as they were unnecessary. They preferred to use chamber pots, which are easy to service. Currently, chemical toilets are used in three cells in the northern cell department of Helsinki Prison. In the department for prisoners serving fine conversion sentences, chemical toilets are used in all (13) cells. The prisoners do not, however, service them sufficiently well, and therefore they cause more odour nuisance than chamber pots.
48.Hämeenlinna Prison, too, purchased some portable chemical toilets for trial, but did not acquire more of them, since the experience of their use was negative.
49.In some years, the Criminal Sanctions Agency has set a performance objective for all prisons to enable prisoners to visit a toilet around the clock. As a result, prisons have extended the opening hours of their departments so that prisoners may use the common toilet facilities of the departments later in the evening than was permitted before.
50.The use of cells with chamber pots could be further reduced if guards could let prisoners visit the common toilet facilities of departments always when requested, also at night-time. So far, two prisons, those in Kuopio and Konnunsuo, have managed to arrange toilet visits in this way.
51.There is currently a lack of staff in prisons. Therefore their night-time staffing has been kept at a low level, in order to allocate as much staff as possible for the day and evening shifts. This, in turn, prevents the opening of cell doors at night, for reasons of security. Increasing the night-time staff would raise the total costs and, at the same time, reduce prisoners’ opportunities to participate in daytime activities.
52.Decisions have been made to renovate Kuopio and Mikkeli Prisons in 2009–2011. Konnunsuo and Hämeenlinna Prisons will probably be renovated next. In connection with the renovations all cells of the prisons would be equipped with toilets. The situation in Hämeenlinna Prison will probably be improved partly in 2009 by allocating part of the premises of the current Prison Hospital for residential use. Thereafter the prison would have 56 cells with toilets for female prisoners.
53.According to the current plans, only Helsinki Prison would have cells with chamber pots after 2015, because no toilets were constructed there during the renovation of the western cell department in the late 1980s and the early 1990s. In Helsinki Prison, also the northern cell department has cells with chamber pots. It has been proposed that if the number of prisoners declines as expected, the cells with chamber pots in Helsinki Prison should be removed from residential use and converted into rooms for prisoners' activities. It has also been proposed to use these departments as open departments. The feasibility studies are still going on, and no final decisions have been made. Also the future trend of the number of prisoners has to be taken into account in the decision-making.