The author of the communication (initial letter dated 31 October 1987; further submission dated 25 February 1989) is Antti Vuolanne, a Finnish citizen, 21 years or age, resident in of Pori, Finland. He claims to be the victim of a violation by the Government of Finland of articles 2, paragraphs 1 to 3, 7 and 9, paragraph 4, of the InternatiQnal Covenant on Civil and Political Rights. He is repr~~anted by counsel.
The author states that he start~d his military service on 9 June 1987. Service duty a11eqeoly caused him severe mental stress and, upon his return from a military hospital early in July 1987, he realized that he could not continue with his service as an infantryman. Unable to discuss the situation with the head of his unit, he decided, on 3 JUly, to leave his garrison without permission. He alleges to have been greatly preoccupied by the fate of his brother who, about a year earlier, had committed suicide in a similar situation. The author's weekend off duty WQuld have begun Qn 4 July at noon, ending on 5 July at midnight. On 5 July, he returned to the military hospital and asked to speak with a doctor. but was advised to return to his company. where he registered and left again without permission. Upon advice of an army chaplain he returned to his unit on 7 July. where he spoke to a doctor and was taken to the military hospital. Later on, he sought and obtained a transfer to unarmed service inside the milita~y.
On 14 July, in a dis~iplinary procedure, he was oanctioned with 10 day& of clOse arrest, i.e. confinement in the guardhouse without service duties. He claims ~n 15 July) and based on the argument that the punishment was unreasonably severe, taking into account that the author was punished for departing without permission for more than four days, despite the fact that 36 hours overlapped with his weekend off duty, that his brief return to the garrison was considered as an aggravating circumstance and that the motive for his decision to depart was not taken into consideration.
The author states that after his written request to the supervising military officer the punishment was upheld by decision of 17 July 1987 without a hearing. According to the author, Flnnish law provides no other domestic remedies, because section 34 of the Law on Military Disciplinary Pro~edure specifically prohibits an ap~eal against the decision of the supervising military officer.
The author furnishes a detaile~ account of the military disciplinary procedure under Finnish law, which is governed by chapter 4S of the Criminal Code of 1983. Punishment for absence without leave is either of a disciplinary nature or may ~ntaJ.l imprisonment of up to six rr,onths. MiEtary confinement (close arrest) is the most severe type of disciplinary punishment. The maximum length of arrest imposable in a disciplinary procedure is 15 days and nights. Only the head of a unit or a hiqher officer has the author!::! to impose the punishment ~'f close arrest, and only a commander of a body of troops can impose arrest for more than 10 days and nights.
If an arrest is imposed by disciplinary proced~re, there is no possibility of appeal outside the military. The prohibition of appeal in section 34, paragraph 1, of the above-mentioned law covers both civil cou~ .8 (the Supreme Court in the last instance) and administrative courts (the Suprem9 Administrative Court in the last instance). Thus, the lawfulness of the punishment cannot be reviewed by a court or any other judicial body. The only remedy available is the request for review made ~o a superior military officer. It is claimed that complaints either to a still higher military authority or to the Parliamentary Ombudsman do not constitute effective remedies in the case at issu~, because the Ombudsman has no power to order the release of a person whose arrest is being enforced, even if a complaint reached him in time and if he considered the detention to be unlawful.
Concerning his military confinement, the author considers it "evident that Finnish military confinement in the form of close ~rrest imposed in a disciplinary procedure is a deprivation of liberty covere~ by the concepts 'arrest or detention' in article 9, paragraph 4, of the Covenant". He states that his punishment was enforced in two parts, durin~ which he was locked in a cell of 2 x 3 metres with a tiny window, furnished only with a camp bed, a small table, a chair and a dim ~lectric light. He was only allowed out of his ~ell for purposes of eating, going to the toilet and to take fresh air for half an hour daily. He .~as prohibited from talking to other detained per"sons and from making any noise in his cell. He claims that the isolation was almost total. He alSO states that in order to lessen his aistress, he wr~te personal notes about his relations with persons close to him, and that these notes were taken away from him one night by the guards, who read them to each other. Only after he asked for a meeting with various officials were his papers returned to him.
By its decision of 15 March 1988, the Working Group of the Human Rights Committe~ transmitted the communication to the State party, requesting it, under rule 91 of the provisional rules of procedure, to provide information and observations relevant to the question of admissibility ..
In its submission under rule 91, dated 28 June 1988, the State party did not raise any objections to the admissibility of the communication and stated, in particular, that the author l.a~ exhausted all domestic remedies a~ailable to him by filing his request for review (tarkaf~uspyyntQ) pursuant to the Act on Military Discipline. Under section 34, paragraph 1, of the Act, deci~ions mad~ pursuant to such a request are not appealable.
Before considering any claims contained in a communication, the H\~~n Rights Committee must, in accordance with rule 87 of its provisional rules of procedure, decide whether or not it is admissible under the Op~ional r.rotocol to the Covenant. In this conn~ction the Committee noted that the State party did not object to the admissibility of the communication.
On 18 July 1988, the Committee decided that the communication was admissible. In accordance with article 4, paragraph 2, of the Optional Protocol the State party was requested to submit to the Committee, within six months of the date of transmittal to it of the decision on admissibility, written explanations or 8tatemAnts clarifying the matter and the measures that may have been taken by it.
In its submission under article 4, paragraph 2, of the Optional Protocol, the State party first elucidates the relevant legislation as followsl "Provisions on the military disciplinary procedure followed in the Finnish Defence Forces are contained in the Law on Military Disciplinary Procedure (331/83), adopted on 25 March 1983, and in the relevant ordinance (969/83), ~dopted on 16 December 1983, both in force as of 1 January 1984. The above laws contain detailed provisions on disc:iplinary sanctions in military disciplinary procedure, on disciplinary competence, on the processing of a disciplinary matter, and on the appellate procedure. liThe most severe sanction in a military disciplinary procedure is close arrest, to be put into effect in the guardhouse or other place of solitary confinement, usually without service duty. Close ar~est may be imposed by a head of unit for a maximum of ~ days and nights, b~ a commander of unit for ~ maximum of 10 days and nights, and by a commander of a body of troops for a maximum of 15 days and nights. Prior to imposing a disciplinary punishment, the superior military officer responsible must SUbmit his decision to the military legal adviser for a statement. "The victim may submit, within three days, ~ 'request for review' concerning the decision on the disciplinary sanction. A request which "Close confinement can be put into effect only after the period for sUbmitting an appeal has expired, or after the request submitted has been considered, unless the person concerned has agreed to immediate enforcement in a written declaration or in case the commander of a body of troops has ordered the close arrest to be enforced immediately because h, finds it absolutely necessary in order to maintain discipline, order and security amongst the troops."
With regard to the factual background of the case, the State party submits that: "Mr. Vuolanne was heard in preliminary investigations on 8 JUly 1987 concerning his absence from his unit from 3 to 7 July 1987. The military legal adviser of the military county of south-western Finland submitted his written statement to the superior disciplinary officer on 10 July 1987. The decision of the commander of the unit was made on 13 July 1987, stating that Mr. Vuolanne had been found guilty of continued absence without leave (Criminal Code 45:4.1 and 7:2) and sanctioning him with 10 days and nights of close confinement. "Mr. Vuolanne was informed of the decision on 14·Ju1y 1987. When signing the acknowledgement of receipt, he had in the same connection indicated in writing that he agreed to an immediate enforcement of the punishment. Consequently, the close arrest was put into effect on the very same day, 14 July 1987. As Mr. Vuo1anne was informed of the decision, he also received a copy of it, carrying clear and unambiguous instructions on how the decision could be appealed against by submitting a request for review. The request submitted by Mr. Vuolanne on 15 July 1987 was considered by the commander of the body of troops without delay, and he decided that there was no need to change the disciplinary sanction imposed. "In their basic training all conscripts receive information on legal remedies relating to the disciplinary procedure, including the request for review. Relevant information is also contained in a book distributed to all conscripts at the end of the basic training period."
With regard to the applicability of article 9, paragraph 4, of the Covenant to the facts of this case, the State party submits: "It is not open for somebody detained on the basis of military disciplinary procedure, as outlined above, to take proceedings in a court. The only relief is granted by the system of request for review. In other words, it has been the view of Finnish authorities that article 9, paragraph 4, of the Covenant on Civil and Political Rights does not apply to detention in military procedure ••• -252- "It is clearly the ca.e that an official - a commander - is acting in ~ Judicial or at least quasi-judicial capacity as he, under military discipli~ary procedure, orders detention. Likewi••, the consideration of a request for review il comparable to judicial scrutiny of an appeal. As explained, the conditions and manner of carrying out military disciplinary detention are clearly set down by law. The discretion they imply is significantly less than discretion in some of the cases listed by the Committee. In this respect, too, the need for judicial control, if not strictly supe~fluous, is significantly le.s in military disciplinary procedure than in d.tention on, say, grounds of mental illness.'f Notwithstanding these considerations concerning the non-applicability of article 9, paragraph 4, to Mr. Vuolanne's case, the State party notes that preparations are under way for amending the r,aw on Military Disciplinary procedure so as to allow recourse to a court for detention in such proce~ure.
With regard to the author's allegations concerning a violation of article 7 of the Covenant, the State party notecl "Mr. Vuolanne claims that his treatment was degrading because it was 'unreasonably severe in relation to the offence'. Hp contends that the commanding officer did not take adequately into accouut Finnish laws concerning mitigating circumstances and the measurement of sentences. However, this is not a matter on which the Committee is competent to pronounce, as it has itself aCknowledged, namely that it is not a 'fourth instance' entitled to review the conformity of the acts or decisions by national authorities with national law. The State party further observes that 10 days' arrest in close confinement does not per se constitute the sort of punishment prohibited by article 7; it does not amount to 'cruel, inhuman or degrading treatment or punishment'. lilt is generally held that the terms 'torture', 'inhuman treatment' and 'degrading treatment' in article 7 imply a sliding scale from the most serious f.U" tic le 7 of the Covenant."
In his comments, c1at.ed 25 Febl'uary 1ge9, author's ,:ounsel submits, .lnt..N.l:....ll1.U, that if the Committee considers the evidence presented by Mr. Vuolannp insufficient for finding a violation under article 7, article 10 miqht become relevant. Ho further contends that: the Stale party is incorreet in implying that the behaviour of M~. Vuolanne's guards would not come within its responsibility. Ha points out that the CjJuards were "persons acting in an official capacity" within the meP.ln.ing oC arti~le Z, paragraph 3 (A), of the Covenant. He further ar9u~&1 "J t is true tllat Hr. Vuo!anne could have instituted a dvi 1 chargEl 89ainst the guards in question. In the communication their behaviour h not, howevfll', presented ay a separate violation of tbe Covenant, but onl~ as part of the evidence showing the enforcelnent of military arrest to be humiliatinlJ 01' ~egradinq. Also the State party seems to have accepted this line of argument I had the G~v~rnment regarded the behaviour of Mr. Vuolanne's guards as dometting ~xcertional, it would surely have presented in its submission inZormation on some kind of an inquiry into tho concr~t.e facts of the (:ose. However, no measures concerninq the behaviour of Mr. Vuolanne's gUArds have been taken."
With respect to articlA 9, paragraph 4, the Buthor comments on the ~tAte party'a reference t.o the Committee's General Comment No. a (16) on article 9, and notes that the State party does not mention that, according to the General Comment, article 9, paragraph 4, "applies to all persons deprived of t.heir liberty by iHl'AGt. or detention". He further submi ts: "Military confinement is a punlshment t.hat can be ordered either by R COllr t O[ in military disciplinary procedure. The duration of the punishment ir. comparable to the shortest prison sent.ences under normal cdminal l;,w (14 11i\Ys is the Finnish m:nimum) Bnd exceeds the length of pre-triBl detention Th. author then offlr. the followin9 comment. in order to .how that the Finnish military dllcipllnary proc.dur~ doe. not corre.pond to the r.quir.m.nt. of article 2, para9l'aph 3, eith.r, "(a) Acaordin9 to the Stat~ party, 'the normal wayl of jUdicial app.al are open in ca.e the military kuthoritie. ov.r.tep the boundaries let by the l.w'. T1Jl1 '':Il.ement 11 mhleadin9. There 11 no way a person punilhed with milit.ry confinement c.n brin9 the le9ality of the punishment before a court. Wh.t can In principle b. ch~11en9vd il the behavlour of the military authorlti•• In qUI.tion. Thi. would me.n in.titutin9 • civl1 ch.rge in court, not .ny kind of an '.PPlal'. Thi' kind of • procedure is in no way 'norm.l' and even if the procedure weLe inltituted, the court could not order the r.l•••• of the victiml "(b) Also .ome oth.r statements are mll1eadin9. An offici.l orderin9 detGntion and anoth.r officer conliderin9 the rvqU.lt for r.vi.w are not .ot109 in a 'judicial or at "I'~t qu••l-Judicial c.p.city'. The officers have no l89al education. Th. procedule lack. Iven the most .lement.ry requirements of a jUdicial process' ~he applicant i. not hlard and the final decision is made by a perlon who is not independent, but hal been consulted already before orderin9 the punilhm_nt. It 1. allo .t.tl~ that Mr. Vuolanne, when informed of the deciaion to punilh tim with 010" conflnament, indicated in writinq that he a9r.ed to an imm'diate en~orcement of the punishment. Thif atat.ment il .om.wh~t mill.adin9, because Mr. Vuolanne only 119n.d the acknowledgem.nt of r.ceipt on a bl.nk form. It ia true that on thia blank form there ia a part print.d with sm.ll letter., where one .ccepta the immedi.te enforcement by 119n1n9 the acknowlltdgem.nt ita.lf."
With reap.ct to the propos.d amendm.nt to the l.w (see p.ra. &.3 .bove), Mr. Vuolann. notes that a proposed model would possibly remedy the situ.tion in relation to article 9, para9raph 4, but not in relation to artiCle 7. He submits that the only proposal acc~ptable in this respect would be to amend the Law on Military Disci.plinary Procedure 80 that only a part of the punishment would be enforced al ~lole confinement and the rest al light arrest (e.g. with service duties) .
The Human Rights Committee has considered the light of all written information made available to article 5, paragraph 1, of the Optional Protocol. diopute. present communication in the it by the parties as provided in The facts of the case are not in
The author of the communication claiml that there have been breaches of article 2, paragraphl 1 and 3, article 7, article 9, paragraph 4, and article 10 of the Covenant.
The Committee has noted the contention of the State party that the case oC Mr. Vuolanne does not fall w.lthin the ambit of article g, paragraph -1, of the Covenant. The Committee considers that this question must be answered by reference to the express terms of the Covenant as well as its purpose. It observes that as a general proposition, the Covenant does not contain any provision exempting from its application certain categories of persons. According to article 2, paragraph 1, "each State party to the present Covenant undertakes to respect and to ensure to all in~ividuals within its territory and subject to its jurisdiction the rights rec09ni~ed in the present Cov~nant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". The all-encompassing character of the terms of this article leaves no room for distinguishing between different categories of persuns, such as civilians and members of the military, to the extent of holding the Covenant to he applicable in one case but not in the other. Furthermore, the trayaux priparatoires as well as the Committee's general comments indicate that thg purpose of the Covonant was to proclaim and define certain human rights for all and to guarantee their enjoyment. It is, therefore, clear that the Covenant is not, and should not be conceived of in terms of whose rights shall be protected but in tarms of what rights shall be guaranteed and to what extent. As a consequence the application of article 9, paragraph 4, cannot be excluded in the present case.
The Committee acknowledgeR that it is normal for individuals performing military service to be SUbjected to restrictions in their freedom of movement. It io self-evident that this does not fall within the purview of article 9, paragraph 4. Furthermore, the Committee agrees that a disciplinary penalty or measure which would be deemed a deprivation of liberty by detention, were it to be applied to a civilian, may not be termed such when imposed upon a serviceman. Nevertheless, such penalty or measure may f,all within the scope of application of article 9, paragraph 4, if it takes the form of restrictions that are imposed over and abov~ the exigencies of normal military service and deviate from the normal
In the implementGtion of the disciplinary measure impo~ed on him, Mr. Vuolanne was excluded from performing his normal dutle~ ftnd had to spend day and nlght fo~ a period of 10 days in a cell measuriny 2 x 3 metr~s, He was allowed out of his cell solely for pu~poses of eating, going to the t.oilet and taking air for half an hour evel'y day. He was prohiuited from talking to other detainees and from making any noise in his cell. His corr~spondence and personal notes wero interfered with. He served a sentence in the same way as a prisoner would. The sentence impoled on the author is of a significant length, approaching that of the shortest prison sentenc~ thbt may be imposed under Finnish criminal law. In the light of the circumstances, the Committee is of the view that this sort of solitary confinement in a cell for 10 days and nights is in itself outside lhe uGual service and exceeds the normal restrictions that military life entails. The specific disciplinary punishment led to 6 degree of social isol~tion normally associated with arr~b~ and detention wit~in the meaning of article 9, paragraph 4. It must, therefore, be considered a depl'ivation of liberty by detention in the sense of article 9, paragraph 4. In this connection, the Co"~ittee recalls its General Comment No. 8 (16) according to which most of the provisions of article 9 apply to all deprivations of liberty, whether in criminal cases or in other cases of detention as, for example, for mental illness, vagrancy, drug addiction, educational purposeo and immigration contl'ol. The Committee cannot lccept the State ~arty's contention that because military disciplinary detention is firmly regulated by law, it does not necessitate the ldgal and procedural safe9uards stipulated in article 9, paragraph 4.
The Committee further notes that whenever a decision depriving a person of his liberty is taken by an administrative body or authority, there is no doubt that Article 9, paragraph 4, obliges the State party concerned to make available to the person detained the right of recourse to a court of law. In this particular case it matters not whether the court would be civilian or military. The Committee does not accept the contention of the State party that the request for review before a superior military officer according to the Law on Military Disciplinary Procedure currently in effect in Finland is comparable to judicial scrutiny of an appeal and that the officials ordering detention act in a judicial or quasi-judicial manner. The procedure followed in the case of Mr. Vuolanne did not have a judicial character, and the supervisory military officer who upheld the decision of 17 July 1987 against Mr. Vuolanne cannot be deemed to be a "court" within the meaning of article 9, paragrAph 4, therefore, the obligations laid down therein hAve not been complied with by the authorities of the State party. 9,7 The Committee observes that article 2, paragraph 1, represents a general undertaking by States parties in relation to which a specific finding concerning the author of thiu communication has been made in respect to the obligation in article g, paragraph 4. Accordingly, no separate determination is required under nrticle 2, paragraph 1.
The Human Rights Committee, acting under art.icle 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the communication discloses a violation of article g, paragraph 4, u[ Ull~ Cuvenant, because Mr. Vuolanlle was unable to challenge his detention befole fi eourt..
The Committee, accordingly, is of the view that the State party is under an obligation to take effective measures to remedy, in accordance with article 2, paragraph 3 (a), the violation Buffered by Mr. V~olanne and to take steps to ensure that similar violations do not occur in the future. -258- Be,t Copy AVlnlble