KKO:2008:93 (In English)

Assault

Please note - the translation is unofficial.

Diary number: R2007/500
Issue date: 17 October 2008
File number: 2250

A had had a circumcision performed by a doctor on her four-and-a-half-year-old son for religious reasons. Based on the grounds cited in the judgement of the Supreme Court, A's conduct was not deemed punishable as an assault or as incitement thereto.

Hearing of the case at lower courts

Charges at Tampere District Court

The public prosecutor requested that A be convicted for an assault committed on 27 September 2004. According to the charges, A had intentionally employed physical violence on her son B by hiring a person, whose identity remained unknown, to perform a circumcision on B, who at that time was four and half years old. Through her act, A had intentionally caused B pain and an operation wound, since part of the child's healthy tissue had been removed without any medical grounds.

Decision of the District Court of 4 July 2006

The District Court stated that A had admitted per se the conduct described in the charges. Since the operation had been performed in local anaesthesia, it had not caused immediate pain or ache, although it may have afterwards caused minor pain. The doctor had performed the operation in an appropriate manner, and it had been performed solely for cultural and religious reasons.

The District Court held that A's conduct, which was not linked to a health care-related or a clinical operation, constituted violence referred to in Chapter 21, Section 5 of the Criminal Code of Finland. The act thus fulfilled the essential elements of assault.

Due to his young age, B had not been able to give his valid consent to the operation. Since B's physical integrity had been violated through an irrevocable operation which was not justified by any medical reason or otherwise beneficial to B's health, A as B's guardian had not been in the position to give a valid consent thereto, either.

The District Court noted that the preparatory works on the fundamental rights of the Constitution of Finland state that a person cannot, through referring to the freedom of religion and conscience, carry out actions which violate human dignity or other fundamental rights or are contrary to the public order. The preparatory works further state that the fundamental rights of the child, such as the right to personal integrity, may not be violated by referring to the freedom of religion and conscience of another person. When the fundamental rights related to the freedom of religion and conscience were being drafted, a particular attention was paid to the fact that the circumcision of women was forbidden and always punishable as an aggravated assault. On the other hand, the preparatory works do not take any stand on the punishability of circumcisions performed on men and boys.

The District Court deemed, however, that even a long-term religious tradition is not an acceptable justification for placing boys in a position inferior to that of girls in respect of physical integrity. Consequently, the justification for the act could not be derived from the freedom of religion pursuant to the Constitution of Finland.

Since no other legal justification was found in the case, the act was held illegal.

The District Court stated that pursuant to Section 7(3) of the Constitution of Finland, the personal integrity shall not be violated without a reason prescribed by an act. In Finland, there was no act governing circumcisions of boys. Neither did such legislation exist in other Western countries with the exception of Sweden. As far as was known, there was no case-law on circumcisions of men or boys in Finland.

In his decision of 30 June 2004, the state prosecutor refrained, for reasons of equity, from prosecuting a doctor for six assaults committed through circumcisions in 2001. The state prosecutor deemed that the doctor who had performed the circumcisions had per se committed six assaults. The operations had caused the children postoperative complications, which had required treatment in a hospital. The decision of the state prosecutor was based, inter alia, on the lack of provisions and case-law on circumcision, on the fact that potential future legislation might allow circumcisions under certain conditions and on the fact that the authorities had not intervened in circumcisions, even though it was generally known that they were performed on a constant basis. The state prosecutor made a public announcement on the decision.

The District Court noted that circumcising boys is a global phenomenon. It was generally known that circumcisions had been practised within certain religious groups in Finland for a long time and that the authorities had not intervened in this practice. In 1992 and again in 2003, the Ministry of Social Affairs and Health gave instructions where it advised municipalities and health care districts that circumcisions for non-medical reasons should be performed within public health care.

In 1999, the Deputy Parliamentary Ombudsman gave a decision where he took a qualified view on non-medical circumcisions and questioned the practice of performing the operation at a stage when the child was unable to give his consent to it.

According to a working group on circumcisions appointed by the Ministry of Social Affairs and Health on 11 April 2003, approximately 200 boys are annually circumcised for non-medical reasons in Finland. In some health care districts, circumcisions are performed within public health care, in which case the municipalities bear the costs, while some health care districts had made a clear decision against non-medical circumcisions. The working group on circumcisions concluded that circumcisions of boys for non-medical reasons should be allowed by enacting a specific act to that effect.

According to the District Court, the above-mentioned statements revealed that the legal situation concerning circumcisions was highly ambiguous in Finland and the authorities' practices were inconsistent.

A had referred to her understanding that a circumcision was punishable only if it was not performed by a doctor.

The District Court noted that assault is per se part of the core area of criminal law, in which case any misunderstanding of the illegality of an act cannot, as a rule, be considered forgivable. On the other hand, from A's perspective it was difficult to perceive the circumcision performed by a doctor, who had apparently tried to minimise the adverse effects of the operation and also succeeded in this, as a punishable assault, especially since exactly similar operations were constantly performed for medical reasons. The circumcision had been performed relatively shortly after the state prosecutor had given the above-mentioned decision not to press charges, which was also made publicly known.

Under these circumstances, the District Court accepted as plausible A's statement according to which she had erroneously considered that the act referred to in the charges, which was performed by a doctor in a medically appropriate manner, was permissible. Assessed as a whole, A's misunderstanding had apparently been forgivable, and thus A was exempt from criminal liability.

The District Court dismissed the charges.

The case was decided by District Court Judge Pekka Lankinen and lay judges.

Decision of Turku Court of Appeal of 14 March 2007

The public prosecutor and B, represented by his trustee, appealed to the Court of Appeal.

The Court of Appeal stated the following.

Description of the act

A had confessed that she had hired a person to perform a circumcision on 27 September 2004 in accordance with their religion on her son B, who at that time was four and half years old and whose sole guardian she was. The person who performed the operation had been hired by A and he was a doctor, but A stated that she did not remember his name. The operation had been performed in local anaesthesia at the apartment of A's mother. On the following day, the person who had performed the operation had paid a visit to carry out a postoperative check.

According to the medical certificates presented in the case, the circumcision seemed to have been performed in a competent manner, it was probably performed by a doctor, and B had recovered from it normally. According to the medical certificates, the local anaesthesia injection had caused some pain, and according to a retrospective evaluation, the operation might have caused minor harm for approximately two weeks. However, the operation did not even instantaneously cause any greater pain, and it did not result in any permanent physical harm.

A had told that she had had the circumcision performed on her son for religious and cultural reasons and that she considered the operation vital. The operation was never claimed to have been based on medical grounds.

Illegality of the act

Circumcising boys and men on non-medical grounds has been a global and ancient custom associated in particular with the Jewish and Islamic tradition. It had been estimated that also in Finland approximately 200 non-medical circumcisions were annually performed on boys, although the estimate was inaccurate since circumcisions were also performed outside of the official health care system. Some health care districts had performed circumcisions for religious reasons, in which case the municipalities had covered the costs. In 1992 and again in 2003, the Ministry of Social Affairs and Health gave, together with the Association of Finnish Local and Regional Authorities, instructions where it advised municipalities and health care districts that circumcisions for non-medical reasons should be performed within public health care.

Finland as well as other Nordic countries, with the exception of Sweden, did not have legislation concerning non-medical circumcisions of boys or men. As far as was known, neither was there any case-law on circumcisions of men or boys in Finland, since charges had not previously been brought before the courts. Instead, there was at least one decision on the subject matter given by the state prosecutor on 30 June 2004. The state prosecutor had, for reasons of equity, refrained from prosecuting a doctor for six assaults committed through circumcisions in 2001, even though he deemed that the doctor had per se committed six assaults referred to in Chapter 21, Section 5 of the Criminal Code of Finland.

According to Section 6(3) of the Constitution of Finland, children shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development. Section 7(1) of the same act provides that everyone has the right to life, personal liberty, integrity and security, and pursuant to Subsection 3, the personal integrity of the individual shall not be violated, nor shall anyone be deprived of liberty arbitrarily or without a reason prescribed by an act. On the other hand, Section 11 of the Constitution of Finland provides for the freedom of religion and conscience. Pursuant to its Subsection 1, everyone has the freedom of religion and conscience. According to Subsection 2 of this provision, the freedom of religion and conscience entails the right to profess and practice a religion, the right to express one's convictions and the right to be a member of or decline to be a member of a religious community, and no one is under the obligation, against his or her conscience, to participate in the practice of a religion. Consequently, the assessment of the acceptability of the circumcision of boys involved at least two juxtaposed fundamental rights enshrined in the Constitution, i.e. the freedom to practice a religion and the right to physical integrity, both of which the Constitution secures to every person regardless of their age. The Government Proposal for amending the fundamental rights provisions of the Constitution (309/1993, p. 56) stated that the fundamental rights of the child, such as the right to life and personal integrity, should not be violated by referring to the freedom of religion and conscience of another person. However, in this context no specific view was taken on the circumcision of boys for religious reasons.

According to Chapter 21, Section 5 of the Criminal Code of Finland, a person who employs physical violence on another or, without such violence, injures the health of another, causes pain to another or renders another unconscious or into a comparable condition, shall be sentenced for assault to a fine or to imprisonment for at most two years. Even though the circumcision of boys is not a very significant operation from the medical perspective, it still involves pain and a potential risk of complications. In this sense, the non-medical circumcision per se fulfilled the essential elements of assault.

The Ministry of Social Affairs and Health had set up a working group on 11 April 2003 to examine whether there was a need for legislation on non-medical circumcisions of boys. The memorandum of the working group that examined the need for legislation on circumcision of boys (31 December 2003, Ministry of Social Affairs and Health, Working group memorandum 2003:39) stated, for example, that the circumcision of a boy based on a religious and cultural tradition violates the boy's physical integrity and that the operation is most often carried out at a stage when the boy is unable to give his consent owing to his age and level of development. In Finland, circumcisions had been carried out under a kind of approval based on customary law up until those days and it was justified to expect that a prohibition of circumcisions would not prevent this tradition from continuing, but would probably result in a situation where circumcisions would be performed in inappropriate conditions outside of the official health care system. A sudden prohibition of circumcisions could be deemed to violate the right of certain communities to practice their religion. According to the working group, non-medical circumcisions of boys could be regarded as ethically acceptable on the grounds that they sustained the community's religious conviction, secured family ties and also otherwise contributed to the boys' integration into their community. When circumcisions have been performed following the practices of a medical circumcision, their immediate risks have been small and the operation has not usually caused any long-term health hazards. Non-medical circumcisions of boys based on a religious or cultural tradition had not been prohibited by any provision. The circumcision tradition had been allowed to continue without any specific regulation. Sweden was an exception to this practice since it had passed an act on circumcision of boys, which provides for the conditions of circumcision. The working group had deemed that circumcision should be permitted despite all the counter-arguments. However, it should be permissible only under the condition that the operation is performed by a doctor. The working group had proposed that an act should be enacted to permit non-medical circumcisions of boys under certain conditions.

The Court of Appeal concluded, contrary to the District Court, that A had not committed an assault through her conduct referred to in the charges. The Court of Appeal cited the following grounds for its assessment: The circumcision referred to in the charges had been performed by a doctor in an appropriate manner and, according to the medical certificates, it had been conducted in a professional manner without causing any pain or more permanent harm, for religious and cultural reasons and apparently with the best interests of the child in mind, and circumcisions had been performed and should, according to the recommendation of the Ministry of Social Affairs and Health and the Association of Finnish Local and Regional Authorities, be performed within public health care, and the authorities had not intervened in circumcisions that had come to their knowledge. The Court of Appeal also referred to the facts that were presented in favour of permitting circumcisions in the memorandum of the working group that investigated circumcisions.

The Court of Appeal dismissed the charges.

The case was decided by Justices of the Court of Appeal Pertti Liesivuori, Juhani Leinonen and Ahti Ikola.

Appeal at the Supreme Court

The public prosecutor was granted a leave to appeal.

The public prosecutor requested in his appeal that A be convicted for assault.

A submitted a requested response.

Judgement of the Supreme Court

Grounds

Background and framing of the question

1. A had hired a person, whose identity remains unknown, to perform a circumcision on 27 September 2004 on her son B, who at that time was four and half years old and whose sole guardian A was. The operation had been performed in local anaesthesia at the apartment of A's mother. The fact that the operation had been performed for religious and cultural reasons and did not have any medical grounds is indisputable in this case.

2. The case comes down to the question whether A has committed an assault or incitement thereto.

The essential elements of assault, and circumcision

3. According to Chapter 21, Section 5 of the Criminal Code of Finland, a person who employs physical violence on another or, without such violence, injures the health of another, causes pain to another or renders another unconscious or into a comparable condition, shall be sentenced for assault. According to Section 7 of the same chapter, the offender shall be sentenced for petty assault if the assault, when assessed as a whole and with due consideration to the minor significance of the violence, the violation of physical integrity, the damage to health or other circumstances connected to the offence, is of minor character.

4. Circumcising a boy is a surgical operation where the foreskin is removed from around the penis either completely or partly. This kind of operation where healthy tissue is removed irrevocably constitutes a violation of the physical integrity of the person concerned. Furthermore, circumcision may cause some pain already during the operation or at least in the recovery stage. In principle, circumcision would thus seem to fulfil the external elements of assault either in its basic form or, if the act can be considered to be of minor character when assessed as a whole, in its mild form.

5. Violating the physical integrity of a person or causing pain to a person is usually not illegal when they are related to providing treatments that are justified by medical or health care-related reasons. The reason for this is mainly that such treatments are justified by acceptable purposes, i.e. the promotion of the health or welfare of the person concerned. Since the patient has the right to self-determination, he/she has to be cared in mutual understanding with him/her (Section 6(1) of the Act on the Status and Rights of Patients). According to Section 7 of said act, a minor patient who owing to his/her age and level of development cannot decide on the treatment given to him/her has to be cared in mutual understanding with his/her guardian or legal representative. The guardians of a small child thus have the right to decide on behalf of their child on the performance of medically justified operations.

6. In the present case, the operation had not been carried out for medical or health care-related reasons. Based on this, A thus had no right to decide on the circumcision to which B was unable to give his valid consent owing to his age. Instead, in the present case it is necessary to assess whether the religious, cultural and social reasons underlying B's circumcision can be regarded as grounds justifying A's conduct regardless of the fact that it, in principle, fulfils the external elements of assault or at least those of petty assault. Since A, who gave her consent to the operation, is B's sole guardian, it is unnecessary to consider how a disagreement on the operation between the parents would potentially influence the assessment of the case.

Circumcision of boys as a religion-based phenomenon

7. It appears from the account given in the case that non-medical circumcisions of boys is a global phenomenon and an ordinary operation in several communities either for religious, cultural or tradition-related reasons. It has been estimated in the literature on the topic that approximately one fifth of the world's male population would have been circumcised. Circumcising boys based on a religious or cultural tradition has apparently not been outright prohibited anywhere. Sweden has passed a separate act on circumcision of boys which provides for the conditions of the operation (lag om omskärelse av pojkar, 7 June 2001, no. 499). In Finland, such circumcisions have been performed for nearly two centuries among the same religious communities as in the other countries. They have also been performed within public health care following the recommendations given by the Ministry of Social Affairs and Health in 1992 and 2003, for example. It has been estimated that approximately 200 boys are annually circumcised in Finland for non-medical reasons (Memorandum of the working group of the Ministry of Social Affairs and Health that examined the need for legislation on circumcision of boys 2003:39, p. 32).

8. This case concerns the circumcision of a Muslim boy. Circumcising boys is an ancient and established religion-based tradition among Muslims, which is rooted deeply in these communities and perceived as highly obligatory. According to the account given in the case, circumcision is also an integral element of the identity of the community's male members, integrating them into their religious and social community. The operation has been deemed to be linked to the purity expected from Muslims, and it is typically performed on Muslim boys between the ages of 4 and 13.

Medical significance of the operation

9. According to the account given in the case, circumcision is not a major or difficult surgical operation. However, it causes pain to some extent, especially if it is performed without any pain relief. Furthermore, although being relatively rare, some cases may involve the risk of various complications, which may even be serious in the most extreme cases. The risk of harm caused by the operation increases if the operation is performed in an unprofessional manner in inadequate hygiene conditions or using insufficient pain relief. According to the literature on the topic, the medical and hygienic advantages and disadvantages of circumcision have been extensively discussed on the international level, but a circumcision performed for non-medical reasons has not been shown to have such immediate beneficial effects on health that it could be justified by health benefits.

Fundamental rights and human rights norms relevant to the case

10. According to Section 6(3) of the Constitution of Finland, children shall be treated equally and as individuals. This means that a child is treated as an individual subject in terms of fundamental rights. The physical integrity of a person is protected as a fundamental right. According to Section 7(3) of the Constitution of Finland, the personal integrity shall not be violated without a reason prescribed by an act. The Finnish legislation includes no explicit justification for an operation similar to the one concerned in the present case.

11. The fundamental right to personal integrity provides protection against illegal acts. The scope of protection covers, for example, forced medical or corresponding operations (Government Proposal 309/1993, p. 47). As regards relationships between individuals, personal integrity is mainly safeguarded through criminal and damages legislation. The starting point for amending the fundamental rights provisions (Government Proposal, p. 47) was that the status of personal integrity as a fundamental right sets the threshold for violating it high. Limitations should be based on law and fulfil the acceptability and necessity requirements which will be clarified when law is interpreted. For example, the combined effect of the protection provided by fundamental rights provisions and human rights conventions is a significant issue.

12. As stated in the preparatory works related to Section 7(3) of the Constitution of Finland, the protection of personal integrity as a fundamental right is linked to the protection of private life safeguarded by Section 10 of the Constitution. The protection covers, inter alia, the right to self-determination and to determine over one's own body (Government Proposal 309/1993, p. 53).

13. Personal integrity is also protected by Article 8 of the European Convention on Human Rights. The right to respect for private life safeguarded by the article also extends to such violations of personal integrity that cannot be regarded as inhuman or degrading treatment referred to in Article 3 of the convention (e.g. the judgment of the European Court of Human Rights, hereinafter referred to as 'ECHR', in Juhnke v. Turkey 13 May 2008, paras 69 to 71). Even a relatively minor medical treatment may constitute a violation of fundamental rights if it is performed without an appropriate consent.

14. On the other hand, Article 8 of the European Convention on Human Rights also safeguards the right to respect for family life, whereas Section 10 of the Constitution of Finland contains no specific reference to the protection of family life. Nevertheless, family life is included within the scope of protection of private life referred to in the provision (Government Proposal 309/1993, p. 53). In principle, the protection of family life through fundamental and human rights encompasses the fact that the child's guardians have the right to decide on their child's upbringing and thereby also have the right to bring up their child in accordance with the requirements of their religion and culture.

15. Both Article 8 of the European Convention on Human Rights and the national provisions on fundamental rights protect the individual on the one hand, including children as individuals, and the family and family life on the other, including the premise that the child's guardians have the right to make decisions on matters concerning a minor. In individual cases, the above-mentioned needs for protection may be juxtaposed. The ECHR has interpreted that the rights of the holder of parental authority cannot be unlimited and that it is incumbent on the state to provide safeguards against abuse (Nielsen v. Denmark, 28 November 1988, A 144, para. 72). When the rights of the child and those of his guardians are reconciled, primacy is given to the best interests of the child, which may override the interests of the parent. Thus, the protection of family live does not entitle the guardian to perform actions endangering the child's health and development (Johansen v. Norway, 7 August 1996, Reports 1996-III, para. 78; Scozzari and Giunta v. Italy, 13 July 2000, Reports 2000-VIII, para. 169).

16. The freedom of religion and conscience, which includes the right to profess and practice a religion, is also protected both as a fundamental right and as a human right (Section 11 of the Constitution of Finland; Article 9 of the European Convention on Human Rights). A religion can be professed and practised, for example, through various ceremonial rituals expressing conviction and through participating in religious rituals associated with a certain phase of life. The freedom of religion comprises the practice of a religion in a community and in public as well as in private, including the right to try to convince other people of one's conviction (ECHR judgment in Kokkinakis v. Greece, 25 May 1993, A 260, para. 31). The permissible grounds for limiting the freedom of religion also include the protection of the rights of others, under the conditions expressly defined in Article 9(2) of the European Convention on Human Rights.

17. The Government Proposal for amending the fundamental rights provisions of the Constitution (309/1993, p. 56) explicitly states that the freedom of religion does not imply that people could, by referring to this particular freedom, perform actions which violate human dignity or other fundamental rights, and that the provision on the freedom of religion can under no circumstances justify, for example, mutilation of human beings, such as the circumcision of women, regardless of whether such an operation is potentially associated with a religion. The above-mentioned proposal also emphasises more generally that aspects related to the fundamental rights of others, in particular, need to be considered in interpreting how far the fundamental right protection provided by the provision extends, such as the concept of the practice of a religion. It is also stated that the fundamental rights of the child, such as the right to personal integrity, may not be violated by referring to the freedom of religion of another person.

18. The above-mentioned principles that are based on fundamental and human rights are also manifested in the Convention on the Rights of the Child adopted in New York on 20 November 1989 and approved in Finland by Act No. 1129/1991. According to Article 30 of the Convention, a child shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, or to profess and practise his or her own religion. On the other hand, pursuant to Article 19 of the Convention, the states parties have committed themselves to taking all appropriate measures to protect the child from all forms of violence, injury or abuse, while in the care of parent(s) or legal guardian(s), and, according to Article 24(1), the states parties have recognized the right of the child to the enjoyment of the highest attainable standard of health. In Article 24(3) of the Convention, the states parties undertake to take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. The preparatory documents of the Convention imply that this provision was intended to refer to traditional customs involving mutilation of female genitals.

Assessment relative to the present case

19. The assessment of whether a circumcision performed on a boy for religious reasons is an illegal act thus comes down to the question whether the child's right to physical integrity protected as a fundamental and human right prevents his guardians from deciding on his behalf on an operation which is not justified by medical grounds but, being associated with the traditions of the religion practised by the family, is linked both to the protection of family life and to the freedom of religion.

20. Even a small child may live in the sphere of influence of a religion and also actively participate in various rituals involved in practicing the religion. However, the child does not have the capacity of forming a spontaneous and independent opinion on an operation similar to a circumcision which has permanent effects and on its religious aspects. When a child does not, owing to his age, have the capacity of understanding the meaning of circumcision and of giving his consent thereto, his guardians' right of decision cannot either be justified solely by the child's own freedom of religion.

21. The preceding examination of fundamental and human rights norms reveals that the protection of the child's personal integrity is strong also in relation to the rights belonging to the parents or other guardians, even though in principle, their rights are also protected by fundamental and human rights through the protection of family life on the other hand, and through the freedom of religion on the other. The protection of the right of another person, i.e. that of the guardian, is not sufficient as such for justifying an act which causes harm to the child's health or welfare. Even though the right of the child's guardians to bring up the child in accordance with their religion is protected by fundamental rights, the right cannot per se be recognised as a basis for justifying a violation of the child's physical integrity (cf. the reference made to the preparatory works on fundamental rights provisions in paragraph 17).

22. The essential starting point for reconciling the rights of the child and those of the guardians should be the fact that the right of the guardians to decide on the child's care, upbringing and personal matters is based on the intention of safeguarding the child's best interests and of ensuring the child's balanced development and welfare in accordance with his/her individual needs and wishes. This is also manifested in the provisions of the Act on Child Custody and Right of Access (Sections 1 and 4). When the child's guardians exercise their above-mentioned rights in the care and upbringing of their child, they must consider any limitations imposed by the child's fundamental rights, and in any conflict situations, they must seek solutions which particularly ensure the fulfilment of the child's overall interests in the best possible manner.

23. A violation of the child's physical integrity, which is protected as a fundamental and human right, and the defensibility thereof should thus be assessed especially in relation to the child concerned and his interests. It is thus justified to presume first that the child's guardians may have the right to decide on such an operation on behalf of their child, provided that the purpose of the operation is to promote the child's welfare and development. A further condition is that the operation should not be contrary to the interests of the child from the objective perspective, either. In that case, the nature of the violation of physical integrity is of particular importance. It is obvious that a serious violation of the child's physical integrity cannot be justified by aspects related to the freedom of religion or to the practice of a religion, for instance, even if it were justified by aspects related to the interests of the child.

24. In the assessment, it is thus necessary to consider to what degree personal integrity has been violated against the fact how strong grounds, which are in particular related to the child's own interests, can be presented for such violation. The question to be decided is whether the circumcision of the boy constitutes a violation of the personal integrity of the person concerned to such an extent that the act of the child's guardian, who had the operation performed, cannot be justified by religious and social reasons similar to the ones presented in the case concerned and related to the child's own interests.

25. Considering the account given in the case, circumcision in itself can be regarded as a relatively harmless operation. However, circumcision involves removing the foreskin or part of it irrevocably and it may cause some pain, but when performed in an appropriate and professional manner, the operation does not cause any health hazard or other permanent harm to the person concerned. Sometimes the operation can also be justified by medical reasons, and thus there are appropriate and professionally approved procedures for performing it. Even though the operation has permanent and irrevocable effects, it is not associated with any aspects that would stigmatise the child or the adult into which he/she will develop later. Considering these facts, circumcision can be regarded as a relatively minor violation of the child's physical integrity, provided that the operation is performed in a medically appropriate manner in adequate hygiene conditions and using the pain relief necessitated by the operation.

26. Considering the facts presented above in paragraph 8, a circumcision performed for religious reasons may be considered to have a positive significance especially for the boy to be operated and for the development of his identity, as well as for his integration into his religious and social community. For these reasons, a violation of the boy's physical integrity in the form of a circumcision performed in a medically appropriate manner can be considered defensible in terms of the overall interests of the child and, when assessed as a whole, as a minor operation to such an extent that there is no reason to regard the act of the child's guardians, who had such a circumcision performed on their child, as an act violating the child's interests and rights which would be punishable as an assault.

27. The public prosecutor presented to the Supreme Court that approving circumcisions of boys would constitute discrimination on the basis of gender and religion, considering that circumcisions of girls are deemed punishable and boys are not subjected to circumcision in any other religion than Judaism and Islam. The Supreme Court states that circumcising a girl in reality means mutilating her genitals and is thus clearly a more serious violation of their physical integrity than the circumcision of a boy performed in an appropriate manner. The circumcision of girls is mainly an act classified as an aggravated assault, which cannot be justified under any circumstances by religious and social reasons similar to those involved in the present case, and thus it is not reasonable to compare it to the circumcision of boys in the assessment from the perspective of criminal law. The fact that circumcision is associated only with the traditional customs of the above-mentioned world religions does not constitute discrimination on the basis of religion.

Conclusions in this case

28. It is indisputable in the present case that B's circumcision had been performed in an appropriate manner and pain relief had also been administered. According to A's account, the doctor who performed the operation had also performed a postoperative check on B on the following day. The presented medical certificate reveals that the local anaesthesia injection had caused some pain and the actual operation had caused minor harm for a week or two, but the operation did not even instantaneously cause any greater pain to the boy, and it did not result in any permanent physical harm.

29. Since the operation had been performed for reasons which were acceptable from B's perspective and related to his and his guardian's religion and since it had been performed in a medically appropriate manner without causing any unnecessary pain to B, it can be deemed that in this case the operation, when assessed as a whole, violated B's physical integrity only to a minor extent and it must not be regarded as contrary to his interests. For these reasons, A's conduct of arranging a circumcision for her son shall not be deemed illegal and consequently not punishable. Thus, there is no need to separately consider whether A should be deemed to have per se, through her conduct, abetted or instigated the doctor who performed the operation.

Judgement

The judgement of the Court of Appeal shall not be reversed.

The matter was decided by President of the Supreme Court Pauliine Koskelo and Justices of the Supreme Court Mikko Tulokas, Pertti Välimäki, Marjut Jokela and Jukka Sippo. Sari Ruokojärvi acted as referendary.