Seurakunnan lehden jakelu EIT:ssa hallituksen vastattavaksi

Euroopan ihmisoikeustuomioistuin on lähettänyt Suomen hallitukselle vastattavaksi valituksen, joka koskee seurakuntaan kuulumattomalle henkilölle jaettua seurakunnan lehteä. EIT kysyy hallitukselta, onko valittajan uskonnonvapautta sekä kodin suojaa loukattu. Lisäksi hallitukselta kysytään sitä, onko valittajalla ollut käytössään tehokasta oikeussuojakeinoa.

EIT:n tiivistelmä jutun faktoista sekä kysymykset asianosaisille:

Several of the bigger
Evangelic-Lutheran congregations publish a free newspaper which, in some
congregations, is distributed to all households. This was the situation
in the area where the applicant lives. Since 2006 the applicant has
repeatedly asked the local congregation not to deliver the newspaper to
his address.

On 18 December 2006 the Deputy Parliamentary Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman)
took a stand on the issue on the basis of several complaints made to
him. As the Evangelic-Lutheran congregations performed a public
function, they fell under the supervision of the Parliamentary
Ombudsman. He found that the newspapers in question were to be regarded
as religious ones which also appeared relatively often. It was the
responsibility of the publisher to make sure that the distribution of
the newspaper respected the religious beliefs of others. Even if the
practice of distributing the free newspaper to all households was not
unconstitutional, he believed that the minimum requirement was to respect the opinion of those who did not want to receive the newspaper.
The complainants had not been able to prohibit the delivery of the
newspaper. The Deputy Parliamentary Ombudsman found that the best
solution would be to distribute the newspaper only to members of the
congregation. The congregational authorities needed to guarantee the protection of fundamental rights and human rights and it was their
responsibility to respect the religious beliefs of others. It was
irrelevant which method of distribution was the cheapest for the
congregations.

On 13 February 2007 the Parliament’s Constitutional Law Committee (perustuslakivaliokunta, grundlagsutskottet), by referring to the activities of the Parliamentary Ombudsman, gave attention in its report (mietintö PeVM 17/2006 vp, betänkande PeVM 17/2006 rd)
to freedom of expression in the religious context, protected both by
the Constitution and Articles 9 and 10 of the Convention. It found that
these provisions gave very strong protection to the freedom of religious
and other convictional communication. This freedom belonged equally to
all individuals as well as to all religious communities functioning in
Finland. Possible restrictions to this freedom could be made by an act
but such acts would need to fulfil the criteria of clarity and precision
as well as being acceptable and necessary.

On 18 January 2008 the applicant requested the police to investigate the matter.

On
14 July 2008 the public prosecutor decided that no pre-trial
investigation was to be conducted in the matter. She found that it was
doubtful whether the matter constituted a crime and, even if it did, it
was a minor one for which no charges would be brought. The
applicant started to receive the newspaper again in 2009. The delivery
to the applicant’s household was not discontinued in spite of several
requests to that effect. The applicant did not want to prohibit the
delivery of all free publications but had put a sticker on his mail box
saying that he did not want any “spiritual material” to be delivered to
him.

On 24 April
2009 the Deputy Parliamentary Ombudsman took a stand on the issue again.
He found that he did not have competence to assess the opinions
expressed by the Constitutional Law Committee of the Parliament but that
the best solution would be to mail the newspaper only to those persons
who were members of the local congregation. About half of the
congregations already used this manner of distribution.

On 14 January 2010 the applicant lodged a complaint with the Chancellor of Justice (oikeuskansleri, justitiekanslern), about the same matter.

In
its submissions to the Chancellor of Justice, the congregation in
question noted that the newspaper was delivered to all households which
had not prohibited the delivery of free publications and advertisements.
If such a prohibition was made, the newspaper was not delivered to
those households. The distribution of the newspaper only to the members of the congregation would be illegal since such practice would have no
legal basis and it would restrict the freedom of religion and the
freedom of expression of the congregations. Persons had no legal right
to demand that certain free publications and advertisements be delivered
to them and others not.

In
his submissions to the Chancellor of Justice, the applicant further
noted that it was unreasonable to require a person who did not want to
receive religious publications to prohibit all free publications and
advertisements. Quite often, for example, important and useful
information bulletins from the city administration or bus timetables
were sent via free distribution to all households. It was also
unreasonable that a person had to reveal his or her beliefs to all
neighbours by putting a sticker on the mail box prohibiting spiritual publications.

On 6
October 2011 the Deputy Chancellor of Justice replied that he would not
examine the matter as it had already been examined by the Deputy
Parliamentary Ombudsman.

Moreover, even though he had competence to
supervise the measures taken by Evangelic-Lutheran congregations, he did
not have competence to assess the opinions of the Constitutional Law
Committee of the Parliament.

The applicant is still receiving the newspaper.

QUESTIONS TO THE PARTIES

1.  Has
there been an interference with the applicant’s freedom of thought,
conscience, or religion, within the meaning of Article 9 § 1 of the
Convention? If so, was that interference prescribed by law and necessary
in terms of Article 9 § 2?

2.  Has
there been an interference with the applicant’s right to respect for
his home, within the meaning of Article 8 § 1 of the Convention? If so,
was that interference in accordance with the law and necessary in terms
of Article 8 § 2?

3.  Did
the applicant have at his disposal an effective domestic remedy for his
complaint under Articles 8 and 9 of the Convention, as required by
Article 13 of the Convention?

EIT:n laatima yhteenveto ja kysymykset löytyvät täältä