KHO:2019:23

Finland – Supreme Administrative Court finds that imprisonment sentence against Kurdish applicant amounts to persecution

On 12 February, the Finnish Supreme Administrative Court ruled on the proportionality of a prison sentence imposed for pro-Kurdish political activities in Turkey.

The case concerned a Turkish national of Kurdish ethnicity, who applied for international protection in Finland arguing that he was facing persecution in Turkey in the form of unjust prosecution and punishment for his political activity and draft evasion. Although the Finnish Immigration Service found the applicant to be credible, it rejected the application arguing that the applicant was not likely to be subject to unreasonable punishment in Turkey for his political activities as these were not significant. Subsequently, the Administrative Court also dismissed the applicant's appeal based on the same line of argument.

On appeal, the Supreme Administrative Court first cited UNHCR's handbook to reiterate that, while states generally have the right to prosecute and punish criminal offences, international protection must be granted where the prosecution or punishment in the individual case was disproportionate or discriminatory to the extent of amounting to persecution. After analysing the criterion of necessity in the jurisprudence of the European Court of Human Rights, the Court found that the imprisonment sentence of two years for the accusation of spreading terrorist propaganda on Facebook was not proportional.  

Taking into account that there was no indication that the applicant had instigated violent acts or made any statements encouraging such acts, the Court held that this sentence constituted an unreasonable punishment amounting to persecution. The decision was annulled and the Immigration Services were instructed to issue a new decision on the applicant's case.

Based on an unofficial translation by the ELENA Weekly Legal Update of 1 March 2019