Date when decision was rendered: 20.6.1996

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 2357; S-94/1843

Reference to source

KKO 1996:80.

Decisions of the Supreme Court 1996 I January-June

Avgöranden av Högsta domstolen 1996 I januari-juni

Korkeimman oikeuden ratkaisuja 1996 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1996

Pages: pp. 380-390

Subject

fair trial, independent and impartial tribunal, judges,
rättvis rättegång, oavhängig och opartisk domstol, domare,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit,

Relevant legal provisions

Chapter 13, section 1 of the Code on Judicial Procedure; section 51 of the Act on Savings Banks

= rättegångsbalken 13 kapitel 1 §, sparbankslagen 51 §

= oikeudenkäymiskaari 13 luku 1 §; säästöpankkilaki 1 §.

ECHR-6

Abstract

The court of first instance had ordered A to settle his mortgage loan with the savings bank.Three members of the jury of the court of first instance were members of the board of trustees of the savings bank at the time the property was mortgaged, but no longer at the time when the case was brought to court.The Supreme Court came to the conclusion that there were no objective reasons to doubt the impartiality of those three jurors or the court.

The Vaasa Court of Appeal referred to Article 6 of the ECHR and stated that the requirement of impartiality applies both to the professional judges and to the lay members of the court.The court of appeal referred to the established case law of the European Court of Human Rights (the cases of Delcourt, judgment of 17 January 1970, Series A, No.11 and Piersack, judgment of 1 October 1982, Series A, No.53) and noted that the impartiality of the court requires not only that the court should be impartial but it must also have the appereance of impartiality.The court of appeal also referred to the cases of Sramek (judgment of 22 October 1984, Series A, No.84), Langborger (judgment of 22 June 1989 Series A, No.155) and Holm (judgment of 25 November 1993, Series A, No. 279) when stating that the European Court of Human Rights has found a violation of the ECHR in cases where a member of the court has such a relation to the party or the case itself that the impartiality of that person can be objectively questioned.No case law, however, applies directly to situations where the judge has a position in a legal person that is a party to the case.The Vaasa Court of Appeal came to the conclusion that because the three members of the jury had resigned from the board of trustees of the savings bank, they did no longer have such a status in the savings bank that their impartiality or independence could objectively bequestioned.

The Supreme Court referred to Article 6-1 of the ECHR and to the cases of Piersack and Holm and noted that in the light of the case law of the European Court of Human Rights, the judge should not have personal bias concerning the case (subjective impartiality).On the other hand, legitimate doubts about the impartiality of the judge or the court should also be excluded (objective impartiality).Therefore, the previous commitments or activities of the judge or the judge's special relationship to the party are among the facts that must be taken into consideration when assessing the impartiality of the court in an objective sense.

Under the circumstances of the particular case, however, the Supreme Court came to the conclusion that there was no objective reason to doubt the impartiality of the three members of the jury that had previously been members of the board of trustees of the litigant bank, or to doubt the impartiality of the court.(A vote)

30.3.1998 / 1.4.2003 / LISNELLM

Date when decision was rendered: 20.6.1996

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 2358; S95/781

Reference to source

KKO 1996:81.

Decisions of the Supreme Court 1996 I January-June

Avgöranden av Högsta domstolen 1996 I januari-juni

Korkeimman oikeuden ratkaisuja 1996 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1996

Pages: pp. 390-394

Subject

fair trial, independent and impartial tribunal, judges,
rättvis rättegång, oavhängig och opartisk domstol, domare,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit,

Relevant legal provisions

Chapter 13, section 1 of the Code on Judicial Procedure; section 14-1 of the Act on Cooperative Banks

= rättegångsbalken 13 kapitel 1 §; andelsbankslagen 14 § 1 mom.

= oikeudenkäymiskaari 13 luku 1 §; osuuspankkilaki 14 § 1 mom.

ECHR-6-1

Abstract

At the time of the proceedings in the court of first instance one member of the jury was a member of the administrative board of the cooperative bank which was the plaintiff in the case.The Supreme Court came to the conclusion that the lay member was disqualified in the present case.

The Supreme Court referred to Article 6-1 of the ECHR and to the case of Piersack (judgment of 1 October 1982, Series A, No.53) and noted that in the light of the case law of the European Court of Human Rights, the judge should not have personal bias concerning the case (subjective impartiality).On the other hand, legitimate doubts about the impartiality of the judge or the court should also be excluded (objective impartiality).Therefore, the previous commitments or activities of the judge or the judge's special relationship to the party are among the facts that must be taken into consideration when assessing the impartiality of the court in an objective sense.

The Supreme Court noted that the administrative board of the litigant bank has both control and decision-making power over the affairs of the bank.Also the members of the board have access to credit information of the clients.The members also have liability for damages.For these reasons, the lay member of the court had such a relationship to the litigant bank that the defendants could reasonably doubt his impartiality.The Supreme Court quashed the decison of the court of first instance and the judgment of the appellate court.(A vote)

30.3.1998 / 1.4.2003 / LISNELLM

Date when decision was rendered: 6.11.1995

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 4615; S94/1347

Reference to source

KKO 1995:185.

Decisions of the Supreme Court 1995 II July-December

Avgöranden av Högsta domstolen 1995 II juli-december

Korkeimman oikeuden ratkaisuja 1995 II heinä-joulukuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1995

Pages: pp. 768-771

Subject

independent and impartial tribunal, fair trial, judges,
oavhängig och opartisk domstol, rättvis rättegång, domare,
riippumaton ja puolueeton tuomioistuin, oikeudenmukainen oikeudenkäynti, tuomarit,

Relevant legal provisions

Chapter 13, section 1 of the Code of Judicial Procedure

= rättegångsbalken 13 kapitel 1 §

= oikeudenkäymiskaari 13 luku 1 §.

ECHR-6-1

Abstract

The case concerned the dismissal of the managing director, A, of a joint-stock company, B, in which the City of Kuhmo had a right of decision.A brought the case to court, demanding damages as company B had no acceptable reason for his dismissal.At the first hearing in the court of first instance, one juror was an accountant in company B and a member of the city council.Two other jurors present at all hearings were members of the city council.The court of first instance concluded that there had been a lack of confidence between A and company B, which constituted an acceptable ground for dismissal.It therefore rejected the claims.

The court of appeal upheld the decision of the court of first instance.

A appealed to the Supreme Court, claiming that the court of first instance had not been an impartial and independent tribunal in the case, as several jurors were members of the city council.The Supreme Court stated that, in accordance with Chapter 13, section 1 of the Code of Judicial Procedure, the jurors in question had not been partial or disqualified to act as jurors in the case.The question was therefore whether the composition of the court of first instance filled the criteria for a fair trial in accordance with Article 6-1 of the ECHR.The Court referred to the case law of the European Court of Human Rights (i.a. the cases of Piersack, judgment of 1 October 1982, Series A, No.83; and Holm judgment of 25 November 1993, Series A, No. 279).According to this case law, a judge should not have personal bias concerning the case (subjective impartiality).Legitimate doubts about the impartiality of the judge or the court should also be excluded (objective impartiality).Previous commitments or activities of the judge or the judge's special relationship to a party in the case are among the facts that must be taken into consideration when assessing the impartiality of the court in an objective sense.The juror who was also an accountant at company B must, in the opinion of the Court, have formed an opinion on how A had carried out his tasks as a managing director of the company.Therefore he must have had an at least partially prejudiced view of issues affecting the case.The City of Kuhmo had had a right of decision in company B due to the city's shareholding.Due to the area of activities of company B, its significance for the city's trade and industry policy was considerable, meaning that also the members of the city council must officially have monitored the company's business.Employing or dismissing the managing director was not part of the city council's tasks.Nor had it been shown that the issue of how A had carried out his work would have been on the city council's agenda.However, the fact that several jurors were members of the city council was in the present circumstances a justified reason to distrust the impartiality of the court of first instance.The Supreme Court therefore concluded that the composition of the court of first instance in this case did not fill the criteria for an impartial tribunal as laid down in Article 6-1 of the ECHR.For this reason and to meet the requirements for a fair trial, the decisions of the court of appeal and the court of first instance were quashed, and the case was returned to another court of first instance than the one the case originated from.

8.4.1998 / 24.3.2003 / LISNELLM

Date when decision was rendered: 12.2.1998

Judicial body: Vaasa Court of Appeal = Vasa hovrätt = Vaasan hovioikeus

Reference: Report No. 129; S97/295

Reference to source

VaaHO 1998:2.

Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta

Date of publication:

Subject

fair trial, independent and impartial tribunal, judges,
rättvis rättegång, oavhängig och opartisk domstol, domare,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit,

Relevant legal provisions

Chapter 13, section 1 of the Code of Judical Procedure

= rättegångsbalken 13 kapitel 1 §

= oikeudenkäymiskaari 13 luku 1 §.

ECHR-6-1

Abstract

X's application concerning an arrangement for the payment of debts was rejected by the court of first instance.The senior judge who made the decision at the court of first instance, was also the vice chairman and member of the board of governors of the local bank, the main creditor in X's case.The bank had objected to X's application.X appealed against the decision to the Vaasa Court of Appeal.He also submitted that there was reason to doubt the impartiality of the senior judge, owing to his position of trust with the bank.The senior judge stated that the board of governors only made general decisions on the bank's activities and did not participate in the decision-making regarding individual bank transactions or customer relations.He had not had any information about X's relation with the bank.Therefore, he had not considered it necessary to disqualify himself as a judge in X's case.

The court of appeal referred to Chapter 13, section 1 of the Code of Judicial Procedure and to Article 6-1 of the ECHR.It also made a general reference to the case law of the European Court of Human Rights and stated that a judge should not have a preconception of the case or a desire to promote the interests of a party to a case (subjective impartiality).Furthermore, it had to be taken into account, whether the judge's previous actions or some other specific relation to a party in a case, give objective reason to question the impartiality of the judge (objective impartiality).There has to be a justified, that is, objectively acceptable reason to question a court's impartiality.

The court of appeal concluded that because of his position in the bank, the senior judge was committed to safeguarding the interests of the bank.There was a justified reason to doubt his impartiality.The court of appeal quashed the decision of the court of first instance and ordered the case to be returned to the court of first instance.

22.10.2002 / 27.3.2003 / LISNELLM

Date when decision was rendered: 3.9.1998

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 2808; M95/243

Reference to source

KKO 1998:100.

Decisions of the Supreme Court 1998 II July-December

Avgöranden av Högsta domstolen 1998 II juli-december

Korkeimman oikeuden ratkaisuja 1998 II heinä-joulukuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1999

Pages: pp. 566-568

Subject

fair trial, independent and impartial tribunal, judges,
rättvis rättegång, oavhängig och opartisk domstol, domare,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit,

Relevant legal provisions

Chapter 13, section 1 of the Code of Judicial Procedure

= rättegångsbalken 13 kapitel, 1 §

= oikeudenkäymiskaari 13 luku 1 §

Abstract

X and Y appealed to the Land Court of Southern Finland regarding the determination of the boundaries and area of their farm.Before the land court, they pointed out that three members of the court should be disqualified, since they had previously participated in the hearing of a complaint which concerned the determination of the boundaries of partly the same land area in connection with a construction plan for a private road.The three members of the land court stated that their participation in the hearing of the previous case did not alone give a sufficient cause for their disqualification in this case.The land court dismissed the case on the merits.X and Y appealed to the Supreme Court.

The Supreme Court stated that the decision about the possible disqualification of the three members should not have been made by the persons themselves but by all the members of the land court.It then referred to Chapter 13, section 1 of the Code of Judicial Procedure according to which a person cannot act as a judge in a case, if he has been a judge in another court in the same case.The Court also referred to Article 6-1 of the ECHR and to the case law of the European Court of Human Rights, according to which a judge should not have such a relation to a party or a subject matter in a case which could give an objective reason to question the impartiality of the judge.

With reference to the Partition Act, the Supreme Court concluded that the boundaries of the farm, to the extent they had been determined in connection with the road construction plan, had the force of law, binding also for future cases, and that the two cases did not concern the same matter.The Court found no cause to disqualify the land court members on the basis of the Code of Judicial Procedure nor any objective reason to believe that the members had such a preconception of the matter that their impartiality could have been in doubt.The Supreme Court sustained the decision of the land court.

22.10.2002 / 4.4.2003 / LISNELLM

Date when decision was rendered: 5.1.1998

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 12; M96/185

Reference to source

KKO 1998:3.

Decisions of the Supreme Court 1998 I January-June

Avgöranden av Högsta domstolen 1998 I januari-juni

Korkeimman oikeuden ratkaisuja 1998 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1998

Pages: pp. 23-25

Subject

fair trial, independent and impartial tribunal, judges,
rättvis rättegång, oavhängig och opartisk domstol, domare,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit,

Relevant legal provisions

Chapter 13, section 1 of the Code of Judicial Procedure

= rättegångsbalken 13 kapitel, 1 §

= oikeudenkäymiskaari 13 luku 1 §.

ECHR-6-1

Abstract

The Land Court of Southern Finland had rejected the complainants' appeal regarding the amount of compensation granted to them as a result of expropriation of land.When appealing against the land court's decision at the Supreme Court, the complainants submitted that there was reason to doubt the impartiality of two members of the land court.One member worked for the municipality and the other was a chairman of a committee for the joint owners of a water area.Both the municipality and the committee had been parties in the expropriation proceedings.

The Supreme Court referred to Chapter 13, section 1 of the Code of Judicial Procedure, according to which a person cannot act as a judge in a case, if he has acted as an attorney in the same case, or if he has an interest in the case.The Court concluded that the land court member, who was employed by the municipality and had acted as the representative of the municipality in the expropriation proceedings, should have been disqualified as a judge, in spite of the fact that the municipality had not appealed to the land court.The other member of the land court had been elected chairman of the committee after the expropriation proceedings but before the case was taken to the land court.The Supreme Court stated that his case could not be resolved with reference to the Code of Judicial Procedure and considered the matter on the basis of the ECHR and the case law under the Convention.The Court concluded that because of his position as a chairman of the committee, there was a legitimate reason to doubt the land court member's impartiality, in spite of the fact that the committee had not appealed to the land court.The Supreme Court quashed the decision of the land court and the case was returned to the land court.

23.10.2002 / 4.4.2003 / LISNELLM

Date when decision was rendered: 11.11.1998

Judicial body: Rovaniemi Court of Appeal = Rovaniemi hovrätt = Rovaniemen hovioikeus

Reference: Report no. 0851; H98/28

Reference to source

Registry of the Rovaniemi Court of Appeal

Rovaniemi hovrätts registratorkontor

Rovaniemen hovioikeuden kirjaamo

Date of publication:

Subject

fair trial, independent and impartial tribunal, judges,
rättvis rättegång, oavhängig och opartisk domstol, domare,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit,

Relevant legal provisions

Chapter 13, section 1 of the Code of Judicial Procedure

= rättegångsbalken 13 kapitel 1 §

= oikeudenkäymiskaari 13 luku 1 §.

ECHR-6-1

Abstract

The children of a deceased person asked the court of first instance to assign an executor of the distribution of the estate.They suggested that A, who was a lawyer and assisted them in the case, be assigned to the post.The widow objected to this.The children then suggested that B, who was also a lawyer and A's partner, be assigned and the court agreed to this.The widow appealed to the court of appeal.

The court of appeal stated that the tasks of an executor were comparable to those of a judge.Therefore, the rules regarding the impartiality of a judge were applicable.The court referred to Chapter 13, section 1 of the Code of Judicial Procedure which provides, among other things, that a judge shall not act as a member of the court in a case if he or she assists or has assisted a party in the same case.It then noted that according to Article 6-1 of the ECHR and the case law of the European Court of Human Rights, any justified doubts regarding the impartiality of a judge should be excluded (objective impartiality).In view of this, it should be considered whether a judge's relation to a party or to a person assisting a party in the case gives reason to doubt the judge's impartiality.The court noted that A, who assisted the children of the deceased, could not act as en executor.Because of A's position and because of the fact that B was A's partner, there were justified grounds to doubt B's impartiality.The court of appeal quashed the decision of the court of first instance and returned the case to the lower court.

23.10.2002 / 27.3.2003 / LISNELLM

Date when decision was rendered: 31.3.1999

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 928; R 98/360

Reference to source

KKO 1999:46.

Decisions of the Supreme Court 1999 I January-June

Avgöranden av Högsta domstolen 1999 I januari-juni

Korkeimman oikeuden ratkaisuja 1999 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1999

Pages: pp. 327-339

Subject

fair trial, independent and impartial tribunal, judges, universities,
rättvis rättegång, oavhängig och opartisk domstol, domare, universitet,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit, yliopistot,

Relevant legal provisions

Chapter 13, section 1 of the Code of Judicial Procedure

= rättegångsbalken 13 kapitel 1 §

= oikeudenkäymiskaari 13 luku 1 §.

ECHR-6-1

Abstract

The case was between the University of Helsinki and a professor at the University.It concerned a possible abuse of authority in connection with finances of a research project commissioned by a company not connected with the University.The professor appealed to the Supreme Court against the decision of the court of appeal.In his appeal, he also stated that there was reason to doubt the impartiality of one of the judges of the appeal court.The judge's husband was a professor at the University of Helsinki and a member of a University consistory which had, among other things, the task of promoting cooperation between the various branches of science and maintaining academic traditions at the University.

The Supreme Court referred to Chapter 13, section 1 of the Code of Judicial Procedure, according to which a judge shall not act as a member of the court in a case, if, among other things, the judge himself/herself or his/her relative(s) are a party to the case or the result of the case may favor them or be to their disadvantage.The Court also referred to Article 6-1 of the ECHR and the practice of the European Court of Human Rights.It concluded that the position or tasks of the judge's husband had no connection with the matter.Therefore there was no reason to doubt the judge's impartiality.

24.10.2002 / 4.4.2003 / LISNELLM

Date when decision was rendered: 5.3.1999

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 564; S98/553

Reference to source

KKO 1999:35.

Decisions of the Supreme Court 1999 I January-June

Avgöranden av Högsta domstolen 1999 I januari-juni

Korkeimman oikeuden ratkaisuja 1999 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1999

Pages: pp. 271-275

Subject

fair trial, independent and impartial tribunal, judges,
rättvis rättegång, oavhängig och opartisk domstol, domare,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit,

Relevant legal provisions

Chapter 13, section 1 of the Code of Judicial Procedure

= rättegångsbalken 13 kapitel 1 §

= oikeudenkäymiskaari 13 luku 1 §.

ECHR-6-1

Abstract

The court of first instance had made a decision in a case concerning the reduction of maintenance payments.X, whose duty it was to pay maintenance in this case, appealed to the court of appeal on the grounds that the reduction was not big enough and that the judge who had decided the case was biased as the judge was herself a party to a similar case before another court.The latter case was concerning a type of maintenance payment with the purpose to support the education of a child who had reached the age of 18 years (maturity).

The Helsinki Court of Appeal noted Chapter 13, section 1 of the Code of Judicial Procedure, according to which a judge shall not act as a member of the court in a case if, among other things, he or she has a similar case pending before another court.The court also referred to Article 6-1 of the ECHR and to the views of the European Court of Human Rights regarding the notions of subjective and objective impartiality.It then concluded, that the judge was not prevented from deciding the case against X on the basis of the Code of Judicial Procedure.The judge did not have a similar case pending before another court as the party in that case was not the judge herself but her daughter who had reached the age of maturity.There was no reason to doubt the judge's impartiality on the basis of Article 6-1 of the ECHR either.The case concerning the judge's daughter had been decided before the case against X reached the stage of oral hearing.In view of the facts in the case it did not seem probable that the judge, as X claimed, had not treated X in an objective manner or had infringed on procedural requirements when conducting the proceedings and hearing a witness.The decision of the court of first instance was not amended.

X appealed to the Supreme Court which did not agree with the Helsinki Court of Appeal as far as the impartiality of the judge was concerned.It concluded that the case against X and the case concerning the judge's daughter had been pending at the same time.In the case concerning her daughter, the judge had initiated the proceedings as a representative of her daughter and had assisted her daughter during the proceedings.Although the daughter had reached the age of maturity, the maintenance payment she received for her education also had an effect on the finances of her mother as the daughter was still living at home with her mother.The impartiality of the judge in the case against X was therefore in doubt.The decisions of both lower courts were quashed and the case was returned to the court of first instance.In the decision of the Supreme Court there is no reference to the ECHR.

24.10.2002 / 4.4.2003 / LISNELLM

Date when decision was rendered: 16.2.1999

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 339; R98/38

Reference to source

KKO 1999:18.

Decisions of the Supreme Court 1999 I January-June

Avgöranden av Högsta domstolen 1999 I januari-juni

Korkeimman oikeuden ratkaisuja 1999 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1999

Pages: pp. 170-177

Subject

fair trial, independent and impartial tribunal, judges, witnesses,
rättvis rättegång, oavhängig och opartisk domstol, domare, vittnen,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit, todistajat,

Relevant legal provisions

Chapter 13, section 1 of the Code of Judicial Procedure

= rättegångsbalken 13 kapitel 1 §

= oikeudenkäymiskaari 13 luku 1 §.

ECHR-6-1

Abstract

A had acted as a witness in a case concerning an assault.During the proceedings, she changed her statement from what she had told during the pretrial investigation.Because of this the prosecutor dropped the charges.The prosecutor also asked the police to investigate whether A could be suspected of having committed perjury.New charges were later brought in the assault case, and A acted again as a witness.Following its decision in the assault case, the court of first instance considered in the same composition the case against A concerning perjury.A was convicted.

A appealed to the Vaasa Court of Appeal and claimed that as the composition of the court of first instance had been the same in both cases, the judge had a preconception of the matter concerning A.She also told that she had not altered her statement on purpose but because of the leading questions put forth to her by, among others, the judge acting as the chairman of the court.The court of appeal referred to the provisions of the Code of Judicial Procedure regarding the impartiality of judges, to Article 6-1 of the ECHR and to the practice of the European Court of Human Rights.A judge should not have a preconception of a case nor a desire to favor one of the parties in the case (subjective impartiality).Any justified doubts regarding the impartiality of the judge should be excluded (objective impartiality).The court concluded that as the assault case had been decided before the case against A, the judge and the lay members of the court may have had a preconception of the matter when considering and deciding the case against A.Their impartiality was thus in doubt.The court ordered the case to be returned to the court of first instance.

The prosecutor appealed to the Supreme Court which did not agree with the court of appeal.In the assault case, the court did not consider A's possible guilt for perjury and therefore the court members did not have a preconception of the matter when considering the case against A.Furthermore, A's statements made during the proceedings in the assault case constituted part of the evidence on the basis of which the court made its decision in the case against A.The court would have had to examine A's statements in the assault case even if it had assembled in a new composition.On the basis of the documents in the case, the behavior of the judge and the questions he had posed to A during the proceedings were appropriate, and there was no reason to doubt his impartiality on these grounds either.The case was returned to the court of appeal.

25.10.2002 / 4.4.2003 / LISNELLM

Date when decision was rendered: 18.12.1998

Judicial body: Vaasa Court of Appeal = Vasa hovrätt = Vaasan hovioikeus

Reference: Report No. 1480 and 1481; S97/610 and S97/611

Reference to source

VaaHO 1999:1.

Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta

Date of publication:

Subject

fair trial, independent and impartial tribunal, judges,
rättvis rättegång, oavhängig och opartisk domstol, domare,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit,

Relevant legal provisions

Chapter 13, section 1 of the Code of Judicial Procedure

= rättegångsbalken 13 kapitel 1 §

= oikeudenkäymiskaari 13 luku 1 §.

ECHR-6-1

Abstract

The case was between a real estate company and a bank, and it concerned demands for payment.The company appealed to the Vaasa Court of Appeal against the decision of the court of first instance.There was reason to doubt the impartiality of the judge who had made the decision in the lower court because of the fact that he acted as supervisor in the bank.

The court of appeal referred to the relevant provisions of the Code of Judicial Procedure, to the ECHR and to the practice of the European Court of Human Rights.It noted that a judge should not have a preconception of the case nor a desire to favor one of the parties in the case (subjective impartiality).Any justified doubts regarding the impartiality of the judge should be excluded (objective impartiality).With regard to objective impartiality, of relevance were, among other things, the previous activities of the judge and his or her relation to a party to the case.

A supervisor is not a member of the administrative organs of the bank and he has no real influence over the matters of the bank.However, he is expected to be loyal to the bank and should, among other things, participate in the efforts to improve the activities and market position of the bank.The court concluded that from the view of an objective outside observer, there was reason to doubt the impartiality of the judge.The court of appeal quashed the decision of the court of first instance and returned the case to the lower court.

On the same day, the same judge had made the decision of the court of first instance also in another case against the same company.The second case also concerned demands for payment but this time with a different plaintiff.The presentation of evidence in both cases was made during the same main session.The decision in both cases was based on the hearing of the same witnesses.The company appealed against the decision to the court of appeal claiming that there was reason to doubt the impartiality of the judge also in this second case.The court noted that the judge did not have any such relation to either of the parties which would have given reason to doubt his impartiality.However, under the circumstances it was clear that a judge, whose impartiality had been jeopardized in the first case, had formed such a relation to the second case, that an outside observer may have a reasonable doubt concerning the judge's impartiality.The court of appeal quashed the decision of the court of first instance also in this second case.The matter was returned to the lower court.

25.10.2002 / 27.3.2003 / LISNELLM

Date when decision was rendered: 7.2.2000

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 0172; R 98/435

Reference to source

KKO 2000:13.

Decisions of the Supreme Court 2000 I January-June

Avgöranden av Högsta domstolen 2000 I januari-juni

Korkeimman oikeuden ratkaisuja 2000 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 2000

Pages: pp. 56-62

Subject

fair trial, independent and impartial tribunal, judges,
rättvis rättegång, oavhängig och opartisk domstol, domare,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit,

Relevant legal provisions

Chapter 13, section 1 of the Code of Judicial Procedure

= rättegångsbalken 13 kapitel 1 §

= oikeudenkäymiskaari 13 luku 1 §.

ECHR 6 1

Abstract

A had acted as a legal counsel in a case before the court of first instance.The court had ordered a fee to be paid to him on the basis of the Cost-Free Court Proceedings act.At the request of the prosecutor, the court of appeal had reduced the fee.A appealed to the Supreme Court which quashed the decision and returned the matter to the court of appeal because the decision of the latter court did not cite the grounds on which it was based.The matter was considered by the appeal court in the same composition as the decision which the Supreme Court had quashed.A appealed against the new decision to the Supreme Court and claimed, among other things, that there was reason to doubt the impartiality of the appeal court.

The Supreme Court referred to Chapter 13, section 1 of the Code of Judicial Procedure according to which a judge shall not act as a member of the court in a case if he or she has already considered the same case as a member of another court or has earlier decided something in relation to the matter.The Court noted that the provision as it stands does not apply to a case which has been returned to a lower court for new proceedings.The Court then referred to Article 6-1 of the ECHR and to the views of the European Court of Human Rights regarding, on the one hand, subjective impartiality, i.e. that a judge has no preconception of the matter nor any desire to favour one of the parties, and, on the other hand, objective impartiality, i.e. that the court proceedings seem impartial in the eyes of an objective outside observer.The Court also referred to the cases of Ringeisen v.Austria (judgment of 16 July 1971, Series A, No. 13), Dienne v.France (judgment of 26 September 1995, Series A, No. 325A) and Thomann v.Switzerland (judgment of 10 June 1996, Reports of Judgments and Decisions 1996 III, No. 11).It concluded that the impartiality of a court cannot automatically be in doubt if a case, which has been returned to the court for new proceedings, is decided by the same court members who made the first decision in the case.In this case, there was no indication that the court members would have had a personal bias regarding the matter.This was also not an appeal against the decision of the court of appeal but a case which had been returned to the lower court in order for the court to complement the grounds of the decision.No new facts could have been brought up in the new proceedings and the court could not change its decision to the disadvantage of A.The fact that the court both times reached the same decision does not indicate that there is reason to doubt the court's objective impartiality.The Supreme Court agreed with the decision of the court of appeal and with the grounds cited in the decision.

One member of the Supreme Court submitted a dissenting opinion as far as the impartiality of the appeal court was concerned.In his opinion, when considering the grounds of the decision, the court could have ended up with a different decision had the court members not had a preconception of the matter and its end result.

28.10.2002 / 4.4.2003 / LISNELLM

Date when decision was rendered: 4.4.2000

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 0589; S98/1404

Reference to source

KKO 2000:49.

Decisions of the Supreme Court 2000 I January-June

Avgöranden av Högsta domstolen 2000 I januari-juni

Korkeimman oikeuden ratkaisuja 2000 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 2000

Pages: pp. 231-234

Subject

fair trial, independent and impartial tribunal, judges,
rättvis rättegång, oavhängig och opartisk domstol, domare,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit,

Relevant legal provisions

Chapter 13, section 1 of the Code of Judicial Procedure

= rättegångsbalken 13 kapitel 1 §

= oikeudenkäymiskaari 13 luku 1 §.

ECHR-6-1

Abstract

The court of first instance had rejected A's application concerning the adjustment of A's debts.The bank, which claimed the debts, had objected to the application.A appealed to the court of appeal and claimed that there was reason to doubt the impartiality of the judge, who had acted as president of the court.The judge was married to a lawyer who was employed by the creditor bank.

The court of appel found that the there was no reason to doubt the judge's impartiality on the basis of the Code of Judicial Procedure.However, in view of Article 6-1 of the ECHR and the practice of the European Court of Human Rights there were reasons for such doubts as the judge had a close relation to the bank's lawyer.The court of appeal quashed the decision of the court of first instance and returned the case to the lower court.

The bank brought the case before the Supreme Court which referred both to the relevant provisions of the Code of Judicial Procedure and to its own case law.The Supreme Court also discussed, more thoroughly than the appeal court had done, Article 6-1 of the ECHR and the practice of the European Court of Human Rights regarding subjective and objective impartiality.It concluded that the fact that the judge's husband was employed by the creditor bank did not alone constitute a reason to doubt the judge's impartiality.In his work as the bank's lawyer, the judge's husband did not deal with the adjustment of A's debts.Of relevance was, however, his position in the bank.He had the right to sign for the bank and to represent the bank.Thus, there was a relationship of trust between him and the bank which was stronger than in case of an ordinary employment relationship.Therefore, the judge's impartiality could have been in doubt.

Two dissenting members of the Supreme Court drew attention to the fact that the lawyer did not deal with matters relating to the adjustment of A's debts and that his right to sign for the bank was necessary in order for him to assess his duties.They concluded that the lawyer's position in the bank did not give reason to doubt his wife's impartiality as a judge in this case.

28.10.2002 / 4.4.2003 / LISNELLM

Date when decision was rendered: 31.10.2000

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 2399; H98/171

Reference to source

KKO 2000:104.

Decisions of the Supreme Court 2000 II July-December

Avgöranden av Högsta domstolen 2000 II juli-december

Korkeimman oikeuden ratkaisuja 2000 II heinä-joulukuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 2001

Pages: pp. 548-551

Subject

fair trial, independent and impartial tribunal, judges,
rättvis rättegång, oavhängig och opartisk domstol, domare,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit,

Relevant legal provisions

Chapter 31, section 1 of the Code of Judicial Procedure

= rättegångsbalken 31 kapitel 1 §

= oikeudenkäymiskaari 31 luku 1 §.

ECHR-6

Abstract

A had brought an action for damages against B before the court of first instance.While the case was pending, A had also filed an application in which he asked for the seizure of B's property as a precautionary measure.The court of first instance rejected A's application, but, on A's appeal, the court of appeal approved it.Later the court of first instance also rejected A's action for damages.After A's appeal, the court of appeal did not change the decision of the lower court.In his appeal, A claimed there was reason to doubt the impartiality of the lower court as one of the judges, who had made the decision concerning the action for damages, had earlier made the decision regarding A's application.

The Supreme Court rejected A's petition for leave to appeal.After this, A filed an extraordinary appeal asking for the annulment of the Supreme Court's decision as well as the reversal of the decision of the court of appeal because of the fact that the same judges of the appeal court had, in considering A's application, taken a stand concerning the grounds for the action for damages and had later considered A's appeal regarding the disqualification of the judge of the first instance court.

The Supreme Court stated that A had not presented any grounds upon which the decision concerning leave to appel should be annulled.Regarding impartiality, the Court referred to Chapter 13, section 1 of the Code of Judicial Procedure which provides, among other things, that a judge shall not act as a member of the court in a case if he or she has already decided or considered the same case as a member of another court or has earlier made a decision relating to the matter.The Court also discussed impartiality in the light of Article 6 of the ECHR.It concluded as follows: The fact that a judge who considers the principal claim (in this case, the action for damages) has, as a member of the same court, earlier participated in the consideration of a precautionary measure in connection with the principal claim does not automatically constitute a reason to doubt the judge's impartiality.There was nothing to indicate that the members of the court of first instance or the appeal court had had a personal bias in the case.The decision concerning precautionary measures is based on evidence before the court at that time whereas the decision on the principal claim is based on evidence which is presented later during the main hearing and which the claimant may supplement and clarify if need be.When making the decision on the principal claim, the court is not bound by its decision concerning precautionary measures.Therefore, the latter decision could not have been a statement with regard to the evidence presented in the case as a whole and did not thus constitute a reason to doubt the courts impartiality.Furthermore, there was no reason for such doubts on the basis of the fact that the lower court had rejected both the application and the action for damages whereas the appeal court had approved the application but rejected the latter action.The fact that the appeal court had considered the claims concerning the disqualification of the judge of the lower court did not constitute a reason to doubt the appeal court's impartiality either.The Supreme Court rejected A's appeal.

In a dissenting opinion, one judge of the Supreme Court held that there was reason to doubt the impartiality of one of the judges of the first instance court, and A should therefore have been granted leave to appeal to the Supreme Court.

28.10.2002 / 10.3.2003 / LISNELLM

Date when decision was rendered: 28.6.2001

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 1391; S 99/134

Reference to source

KKO 2001:69.

Decisions of the Supreme Court 2001 I January-June

Avgöranden av Högsta domstolen 2001 I januari-juni

Korkeimman oikeuden ratkaisuja 2001 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 2001

Pages: pp. 388-392

Subject

fair trial, independent and impartial tribunal, judges,
rättvis rättegång, oavhängig och opartisk domstol, domare,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit,

Relevant legal provisions

Chapter 13, section 1 of the Code of Judicial Procedure

= rättegångsbalken 13 kapitel 1 §

= oikeudenkäymiskaari 13 luku 1 §.

ECHR-6

Abstract

A bank had taken legal action against B and the company B owned in order to recover a loan.B lost the case in the court of first instance.The decision of the court was made by senior judge A.B appealed to the court of appeal.She claimed that the court had not been impartial as A acted as supervisor in the creditor bank.Some six months before the proceedings against B were initiated, A had told the bank that he wished to resign from his position as supervisor.However, he held his position formally until the end of his term, that is, also while the case against B was pending.In a statement submitted to the court of appeal, A said that he had learned about the loan granted to B only when the case against B was initiated.However, A was aware of bankruptcy proceedings in which B's husband had previously been involved.In his statement, A said that he was "slightly surprised" that a loan had been granted to B.B claimed that A thus had a preconception of the case against her.The court of appeal held that there was no objectively justified reason to doubt A's impartiality.B appealed to the Supreme Court.

The Supreme Court first noted that there were no grounds to disqualify A on the basis of the provisions on impartiality in the Code of Judicial Procedure.The Court then discussed Article 6 of the ECHR, the practice of the European Court of Human Rights and the notions of subjective and objective impartiality.Reference was made, for example, to the cases of Wettstein (judgment of 21 December 2000) and Ferrantelli and Santangelo (judgment of 7 August 1996, Reports of Judgments and Decision 1996 III).In the opinion of the Supreme Court, the statement which A had submitted to the appeal court did not show that A had a preconception of the matter or any desire to promote the bank's interests (subjective impartiality).The Court then assessed A's objective impartiality.It noted that a supervisor had no position in the administration of the bank.However, according to the regulations of the bank, a supervisor shall, among other things, promote and control the activities of the bank.In the eyes of an outside observer, the tasks may raise doubts as to a certain bond of loyalty between the bank and the supervisor.However, the position of a supervisor does not include any specific obligations, and the modest compensation for the task constitutes no incentive to perform specific services for the bank.The actual role of the supervisor and the nature of the bond between the supervisor and the bank is very much dependent on the supervisor's own attitude and actions and may in practice be minimal.Before the case against B was initiated, A had resigned from his position as supervisor, specifically in order to prevent any possibility for doubts as to his impartiality as a judge.The Supreme Court held that although A formally held his position until the end of his term, it is justified to say that he had in fact given up his tasks as supervisor when handing in his resignation.The Court concluded that under the circumstances A's relation to the creditor bank did not raise any objectively justified doubts as to his impartiality.B's appeal was dismissed.

29.10.2002 / 14.2.2003 / LISNELLM

Date when decision was rendered: 12.2.2004

Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus

Reference: Report No. 511; R02/1938

Reference to source

Registry of the Helsinki Court of Appeal

Helsingfors hovrätts registratorskontor

Helsingin hovioikeuden kirjaamo

Date of publication:

Subject

freedom of expression, respect for private life, judges, freedom of the press,
yttrandefrihet, respekt för privatliv, domare, tryckfrihet,
ilmaisuvapaus, yksityiselämän kunnioittaminen, tuomarit, painovapaus,

Relevant legal provisions

Chapter 27, sections 1 and 2 of the Penal Code (908/1974); sections 10 and 12 of the Constitution Act

= strafflagen (908/1974) 27 kapitel 1 § och 2 §; grundlagen 10 § och 12 §

= rikoslaki (908/1974) 27 luku 1 § ja 2 §; perustuslaki 10 § ja 12 §.

CCPR-19; ECHR-10

Abstract

A newspaper had published an article which included an interview with X.X had, among other things, been convicted of economic offenses, and at the time of the interview there were two other cases concerning economic offenses pending against him.These facts were mentioned in the newspaper article.In the interview, X told that he had applied for an annulment of a decision of the Helsinki Court of Appeal in one of the cases against him on the grounds that one of the judges who had decided the case should have been disqualified.The judge's name was not mentioned.X claimed that the judge was his enemy because X had on a previous occasion criticised the judge and his actions.X had also told earlier that the judge had taken a bribe by accepting a free luxury trip from a person who was suspected of a bankruptcy offence.In the newspaper article it was mentioned that the judge had wanted to bring charges against X for defamation but the prosecutor had decided not to prosecute.The judge to whom the article referred, A, brought charges for defamation against the newspaper and the journalist who had written the article.The accusations in the article were false.A had not taken the alleged bribe nor brought charges against X.Although the judge's identity had not been revealed in the article, it had become known to some persons at A's workplace at the Helsinki Court of Appeal and this had caused some inconvenience for A.

The court of first instance sentenced the newspaper and the journalist for defamation.In the court's view, a claim that a judge has accepted a bribe was an important matter of public interest which had to be publicized provided that there was sufficient factual basis for that claim.However, in this case the facts had not been checked and A's views had not been heard.The court found that on the basis of the information given in the article and with the help of the registers of the Helsinki Court of Appeal it had been possible for those who worked at the court and also for others interested to identify the judge the article was referring to, and this had caused damage to A.In its decision, the court of first instance referred, among other provisions, to sections 10 (right to privacy) and 12 (freedom of expression) of the Constitution Act, Article 19 of the CCPR and Article 10 of the ECHR.One lay member of the court would have dismissed the charges as being contrary to the freedom of expression, the Constitution Act and the EU Charter of Fundamental Rights.

Both parties appealed to the court of appeal.In its decision, the court of appeal discussed at length the case law of the European Court of Human Rights and in particular the cases of Barfod (judgment of 22 February 1989, Publications of the European Court of Human Rights, Series A, Vol. 149), Jersild v.Denmark (judgment of 23 September 1994, Publications of the European Court of Human Rights, Series A, Vol. 298), Prager and Oberschlick v.Austria (judgment of 26 April 1995, Publications of the European Court of Human Rights, Series A, Vol. 313), Bladet Tromsø and Stensaas v.Norway (judgment of 20 May 1999, Reports of Judgments and Decisions 1999-III), Dalban v.Romania (judgment of 28 September 1999, Reports of Judgments and Decisions 1999-VI), Bergens Tidende and Others v.Norway (judgment of 2 May 2000, Reports of Judgments and Decisions 2000-IV), Colombani and Others v.France (judgment of 25 June 2002, Reports of Judgments and Decisions 2002-V), Pasalaris v.Greece (decision of 4 July 2002), Harlanova v.Latvia (decision of 3 April 2003), Perna v.Italy (judgment of 6 May 2003, Reports of Judgments and Decisions 2003-V), and Cumpana and Mazare v.Romania (judgment of 10 June 2003).The court considered, among other issues, the responsibility of a journalist for statements made by another person in an interview, the duty of a journalist to check the factual basis of the imparted information as well as possible limitations of freedom of expression for maintaining the authority and impartiality of the judiciary.

The court found that the article contained incorrect and offensive information.On the basis of the article a reader could get the impression that the judge in question has possibly broken the law.In writing the article, the journalist had not checked the facts as carefully as he should have considering that the accusations were serious and that X because of his background could not be regarded as a reliable source of information.Although A's name was not mentioned in the article, the journalist should under the circumstances have given A the possibility to present his views.However, unlike the court of first instance, the court of appeal did not find the journalist or the newspaper guilty of defamation.Several cases against X had been decided in the Helsinki Court of Appeal and a number of judges had participated in handling the cases.In the court's opinion, even those close to A could not have identified him on the basis of the information given in the article, especially as some of the information was incorrect.Also, for those who were not close to A, it was not easy to find out the identity of the judge solely on the basis of the information given in the article.The court of appeal dismissed the charges.The decision is final as the Supreme Court did not grant leave to appeal in the case (decision of 3 December 2004, no. 2798, R2004/329).

25.4.2005 / 25.4.2005 / ASADINMA

Date when decision was rendered: 14.6.2005

Judicial body: Court of Appeal of Eastern Finland = Östra Finlands hovrätt = Itä-Suomen hovioikeus

Reference: Report no. 696; R03/1491

Reference to source

I-SHO 2005:10.

Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta

Date of publication:

Subject

fair trial, independent and impartial tribunal, judges,
rättvis rättegång, oavhängig och opartisk domstol, domare,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit,

Relevant legal provisions

Chapter 13, sections 1-1, 6-1-2 and 7-3 of the Code of Judicial Procedure; sections 3-3 and 21 of the Constitution Act

= rättegångsbalken 13 kapitel 1 § 1 mom., 6 § 1 mom. 2 punkten och 7 § 3 mom.; grundlagen 3 § 3 mom. och 21 §

= oikeudenkäymiskaari 13 luku 1 § 1 mom., 6 § 1 mom. 2 kohta ja 7 § 3 mom.; perustuslaki 3 § 3 mom. ja 21 §.

ECHR-6

Abstract

The court of first instance had sentenced A and B to imprisonment for aggravated embezzlement and for concealment of illegally obtained goods, respectively.They were also ordered to pay considerable damages to the adverse party, a company which was represented in the trial by a member of its board of directors, Y.In A's case the damages amounted to close to 156 000 euros and in B's case to some 90 000 euros.Both A and B appealed against the decision.In his appeal, B claimed, among other things, that the chairman of the first instance court, judge X, should have been disqualified.X and Y were both Freemasons and members of the same lodge, and therefore X's impartiality in this matter was in doubt.

The court of appeal discussed the disqualification of judges and the relevant provisions in the Code of Judicial Procedure against the background of the constitutional provisions concerning protection under the law and the independence of courts of law as well as Article 6 of the ECHR and the interpretation of that article in the case law of the European Court of Human Rights, paying particular attention to the notions of subjective and objective impartiality.In interpreting the provisions on the disqualification of judges on the grounds of the nature of the relationship between the judge and a party to the matter, the court of appeal held that, in some cases, there may be reason to doubt the impartiality of a judge when the judge and a party to the matter take part in the activities of the same society, in particular if that society is characterised by the binding nature of its goals and loyalty between its members.Taking into account the seriousness of this particular case and the considerable amount of damages the defendants had been ordered to pay, the court of appeal ruled that under the circumstances B's fears about X's impartiality were objectively justified.The case was returned to the court of first instance as regards both defendants because of the coherence of the offences allegedly committed by A and B, though A had not expressly challenged X's impartiality.The decision is final.

29.5.2006 / 29.5.2006 / RHANSKI

Date when decision was rendered: 14.9.2005

Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus

Reference: Report no. 2920; R05/2634

Reference to source

HelHO 2005:8.

Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta

Date of publication:

Subject

fair trial, independent and impartial tribunal, judges,
rättvis rättegång, oavhängig och opartisk domstol, domare,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit,

Relevant legal provisions

Chapter 13, section 7-2 of the Code of Judicial Procedure

= rättegångsbalken 13 kapitel 7 § 2 mom.

= oikeudenkäymiskaari 13 luku 7 § 2 mom.

ECHR-6-1

Abstract

A, B and C had been charged with narcotics offences.B and C were convicted in May 2005, but A could not be summoned to court at that time.Therefore, his trial was held separately, in August 2005.The court of first instance convicted A, who appealed against the decision.He also filed an extraordinary appeal due to a procedural error requesting a retrial before an impartial first instance court.With a general reference to the case law of the European Court of Human Rights, A claimed that judge X, who had handled A's case in the first instance court, had a prejudice on A's matter because X had been the chairman of the court in the earlier trial against B and C and had thus already formed his opinion on A's guilt.

On the extraordinary appeal, the court of appeal ruled that the decision in the case against B and C did not contain any statements defining in advance and in a binding manner whether A was guilty as charged.It had not been shown that judge X would not be able to assess objectively any evidence presented on A's behalf and that A therefore would not have a genuine possibility to contribute to the outcome of the case against him.The court of appeal concluded that there was no cause to doubt X's subjective or objective impartiality in the case against A.The court also noted that both A as well as B and C had appealed against their convictions.The court of appeal had already decided to hold a main hearing in both cases, and it was possible to hold a joint hearing in which the evidence presented in both cases could be assessed with respect to all three defendants at the same time.The decision is final.

29.5.2006 / 29.5.2006 / RHANSKI

Date when decision was rendered: 6.2.2009

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 171; R2008/776

Reference to source

KKO 2009:9.

Decisions of the Supreme Court 2009 I January-June

Avgöranden av Högsta domstolen 2009 I januari-juni

Korkeimman oikeuden ratkaisuja 2009 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2009

Pages: pp. 93-99

Subject

fair trial, independent and impartial tribunal, judges,
rättvis rättegång, oavhängig och opartisk domstol, domare,
oikeudenmukainen oikeudenkäynti, riippumaton ja puolueeton tuomioistuin, tuomarit,

Relevant legal provisions

chapter 13, section 6-1-2 of the Code of Judicial Procedure

= rättegångsbalken 13 kapitel 6 § 1 mom. 2 punkten

= oikeudenkäymiskaari 13 luku 6 § 1 mom. 2 kohta

Abstract

The court of first instance had convicted A and B of aggravated tax fraud and other economic offences and had ordered them to pay damages to two regional tax offices which acted as complainants in the case.In their appeal to the court of appeal, A and B claimed, among other things, that the first-instance court had not been impartial because one of the lay judges in the case was employed by one of the two regional tax offices and complainants in the case.The court of appeal noted that a mere employment relationship to the state does not as such cause the disqualification of a judge.Moreover, A and B had not claimed that the lay judge's subjective impartiality would have been at issue.The court of appeal also found that the lay judge's objective impartiality had not been jeopardized.It referred to the fact that the regional tax office had some 470 employees and the lay judge's tasks concerned financial and personnel administration, not business taxation.

The Supreme Court did not agree with the court of appeal.It held that in assessing the disqualification of a person who is employed by a public authority and sits as the lay judge at a trial where a public authority is a party, attention should be paid to the tasks of the public authority in relation to the subject matter of the case.The Court noted that the tax administration performs specific tasks in its own area of public administration.The tax administration and its various units, among them the regional tax offices, are important actors in combating tax offences and 'grey economy'.Considering this, the Supreme Court found that there were sufficient grounds to doubt the impartiality of a lay judge who was employed by the tax administration, in particular in a criminal case concerning tax fraud where the representative of the tax administration presents a claim for penalty and damages.Such doubts cannot be dispelled by referring to the size of the tax administration as an employer or by establishing that the person attends to tasks unrelated to taxation matters.The Supreme Court concluded that the lay judge should have been disqualified.

3.2.2010 / 3.2.2010 / RHANSKI