December 12, 2013
Court: Circumcisions of Muslim boys not an offenceThe Helsinki Court of Appeal recommends that laws on male circumcisions be drawn up.
A PERSON convicted for performing circumcision on two Muslim boys has been acquitted of assault charges by the Helsinki Court of Appeal. The court also acquitted the parents of the boys of incitement to assault.
With the appeals court ruling that the grounds for the District Court of Helsinki’s ruling in 2011 were incorrect, the decision marks a fundamental shift in Finnish judicial practice concerning the issue of boys’ circumcisions.
District prosecutor Eija Velitski has voiced her bemusement with the verdict and affirmed that she will seek leave to appeal with the Supreme Court. “Since all the charges were rejected, I will naturally seek leave to appeal,” she stated.
In 2011, the District Court of Helsinki found an Iranian-Turkish person guilty of assault for performing circumcisions on two school-aged Muslim boys. In addition, the court convicted the boys’ parents of incitement to assault but, deeming the act forgiveable, opted not to impose penalties on them.
The person who performed the operations with a cautery in the homes of the boys has performed several circumcisions in both Turkey and Iran. The incision of one of the boys, however, became infected, forcing the boy to miss school and seek medical attention.
In 2008, the Supreme Court ruled that, if performed in an appropriate manner, a circumcision performed on a boy for religious reasons does not constitute an offence. However, citing the subsequent ratification of the Council of Europe’s Convention on Human Rights and Biomedicine as justification, the district court deemed the circumcisions unlawful.
Both the prosecutor and the defendants lodged an appeal against the ruling – the defendants demanding that the charges be dismissed and the prosecutor that the practitioner and parents be sentenced to probation orders for aggravated assault.
In its ruling, the Helsinki Court of Appeal then concluded that the convention cited by the district court in sentencing applies only to organ transplants, not to circumcisions. [The convention refers only to tissue "removal", not to what the removed tissue is to be used for. When the removed organ is to be thrown away instead of being used to save life, the conditions attending its removal should be stricter than for donation, not more lax. The spririt of the convention is clearly designed to protect donors from harmful and unnecessary tissue removal, and should be interpreted in that light, not so as to protect other parties and customs to which the "donor" has not agreed.] The appeals court also referred to judicial practices elsewhere in Europe, pointing out that boys’ circumcisions have not been banned by any European country on grounds of the Convention on Human Rights and Biomedicine.
In addition, the court viewed that Finnish laws do not prescribe that circumcisions must be performed by licensed medical practitioners and that the person who performed the operations had acted with due diligence.
The surgical site infection in one of the boys, the court elaborated, had been caused by insufficient after-care rather than the operation. The person who performed the circumcision used surgical gloves, sterilised the instrument used, applied local anaesthesia and provided the parents with instructions for after-care, the court added. Accordingly, in addition to acquitting them of charges, the appeals court relieved the person who performed the circumcision from liability for damages. Similarly, the briefcase and instrument used in the operation were returned to the defendant.
Finally, the court recommended that laws on male circumcisions be drawn up to eradicate any judicial ambiguities. Despite having mulled over such legislative revisions for some time, the Ministry of Social Affairs and Health stated earlier this autumn that no revisions are likely to be adopted in the near future.
No organ or tissue removal may be carried out on a person who does not have the capacity to consent under Article 5.
Exceptionally and under the protective conditions prescribed by law, the removal of regenerative tissue from a person who does not have the capacity to consent may be authorised provided the following conditions are met:
- there is no compatible donor available who has the capacity to consent;
- the recipient is a brother or sister of the donor;
- the donation must have the potential to be life-saving for the recipient;
[None of these exemptions are applicable where there is no recipient]
- the authorisation provided for under paragraphs 2 and 3 of Article 6 has been given specifically and in writing, in accordance with the law and with the approval of the competent body;
- the potential donor concerned does not object.