Date when decision was rendered: 14.3.2008

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 386; H2005/376

Reference to source

KKO 2008:24.

Decisions of the Supreme Court I 2008 January-June

Avgöranden av Högsta domstolen I 2008 januari-juni

Korkeimman oikeuden ratkaisuja I 2008 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2008

Pages: pp. 185-190

Subject

extraordinary appeal, reversal of a legally final judgment,
extraordinärt ändringssökande, återbrytande av dom,
ylimääräinen muutoksenhaku, tuomion purkaminen,

Relevant legal provisions

chapter 31, section 8 of the Code of Judicial Procedure

= rättegångsbalken 31 kapitel 8 §

= oikeudenkäymiskaari 31 luku 8 §

Abstract

In 1999, a court of appeal had sentenced X to a fine for defamation 'despite better knowledge' and by using a printed matter.In its judgment of 16 November 2004, the European Court of Human Rights found that there had been an interference in X's freedom of expression and that there had not been sufficient reasons to show that the interference would have been 'necessary in a democratic society'.The Court confirmed that there had been a violation of Article 10 of the ECHR and ordered Finland to pay damages to X.In late 2005, and with reference to the judgment of the human rights court, X filed with the Supreme Court a request for the reversal of the appeal court's judgment.

The grounds for the reversal of a final judgment are prescribed in the Code of Judicial Procedure, and of these grounds the Supreme Court focused on the reversal of a judgment which is manifestly based on misapplication of the law.The Court pointed out that the ECHR is a binding source of law in Finland and thus a misapplication of a provision of the ECHR is comparable with misapplication of national law.However, the Court continued that in legal praxis it has not been established that the provision on the reversal of a judgment based on misapplication of the law would cover decisions which a court has reached while acting within the bounds of its discretion.The Court held that the judgment of the European Court of Human Rights showed the correct interpretation of the law when assessing freedom of expression on the one hand and the right of privacy on the other.In its own assessment, the court of appeal had reached a conclusion which was different from the opinion of the majority of the human rights court.The Supreme Court also noted that X had submitted her request for the reversal of the appeal court's judgment six years after the judgment had become final.Moreover, based on the judgment of the European Court of Human Rights, X had obtained compensation in form of pecuniary and non-pecuniary damages.Therefore, and considering also the nature of X's offence and her sentence, the Supreme Court held that X no longer suffered from the negative effects of the appeal court's judgment.The Supreme Court concluded that there were no such weighty grounds as provided by law on the basis of which the appeal court's jugdment could be reversed.X's request was rejected.

4.11.2009 / 4.11.2009 / RHANSKI

Date when decision was rendered: 27.10.2009

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 2124; H2007/192

Reference to source

KKO 2009:84.

Decisions of the Supreme Court 2009 II July-December

Avgöranden av Högsta domstolen 2009 II juli-december

Korkeimman oikeuden ratkaisuja 2009 II heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2010

Pages: pp. 612-616

Subject

extraordinary appeal, fair trial,
extraordinärt ändringssökande, rättvis rättegång,
ylimääräinen muutoksenhaku, oikeudenmukainen oikeudenkäynti,

Relevant legal provisions

chapter 31, section 1-4 of the Code of Judicial Procedure

= rättegångsbalken 31 kapitel 1 § 4 punkten

= oikeudenkäymiskaari 31 luku 1 § 4 kohta.

ECHR-6

Abstract

A court of first instance had convicted X of two counts of an accounting offence but had rejected the charge on debtor dishonesty.The prosecutor appealed and the court of appeal convicted X of aiding and abetting debtor dishonesty.An oral hearing was held but the charge of debtor dishonesty was not addressed.In its decision of 12 April 2007 concerning the case of X, the European Court of Human Rights found a violation of Article 6 of the ECHR.It noted that the court of appeal had reassessed the evidence and had altered the lower court's acquittal.The Court concluded that although X under national law did not have a general right to an oral hearing before the court of appeal, ensuring the fairness of the proceedings required that X should have been given an opportunity to contest the charge.With reference to the judgment of the European Court of Human Rights, X filed a complaint to the Supreme Court requesting that the appeal court's judgment is annulled on the basis of procedural error which has essentially influenced the result of the case.

The Supreme Court noted that the ECHR as such does not obligate the States Parties to see to it that a violation of Article 6 of the ECHR, found by the European Court of Human Rights, causes the annulment or reversal of a final judgment by a national court.The grounds for extraordinary appeal are assessed in each case under national law.In its decision, the Supreme Court emphasized the hearing of the defendant as an important principle in the law of criminal procedure.It noted that the European Court of Human Rights had found that X had not been duly heard, taking into account the requirements set in Article 6 of the ECHR.In the Supreme Court's view, the opinion of the human rights court formed the basis for the consideration of the need to annul the appeal court's jdugment under national law.The Supreme Court concluded that the appeal court had made a procedural error which can be assumed to have essentially influenced the result of the case.The appeal court's judgment was annulled as far as it concerned X's conviction for aiding and abetting debtor dishonesty.The case was referred back to the appeal court for reconsideration.

The majority of the Supreme Court found that the legal significance of the opinion of the human rights court was not outweighed by the fact that X had, through his counsel in a preliminary session of the appeal court, referred to the evidence presented before the first-instance court and told that there was no longer need to present evidence before the court of appeal.The minority of two dissenting justices held that the procedural error did not influence the result of the case, because X, on the basis of the discussions in the preliminary session, was aware that there would be no oral hearing concerning the charge of debtor dishonesty.

Se also the case of Laakkonen v.Finland (Application no. 70216/01), judgment of the European Court of Human Rights, 12 April 2007.

6.11.2009 / 14.4.2010 / RHANSKI

Date when decision was rendered: 20.10.2009

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 2065; H2009/89

Reference to source

KKO 2009:80.

Decisions of the Supreme Court 2009 II July-December

Avgöranden av Högsta domstolen 2009 II juli-december

Korkeimman oikeuden ratkaisuja 2009 II heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2010

Pages: pp. 582-594

Subject

extraordinary appeal, reversal of a legally final judgment, self-incrimination,
extraordinärt ändringssökande, återbrytande av dom, utsätta sig för åtal,
ylimääräinen muutoksenhaku, tuomion purkaminen, saattaa itsensä syytteen vaaraan,

Relevant legal provisions

chapter 31, section 8-4 of the Code of Judicial Procedure

= rättegångsbalken 31 kapitel 8 § 4 punkten

= oikeudenkäymiskaari 31 luku 8 § 4 kohta.

ECHR-6; CCPR-14

Abstract

In bankruptcy proceedings against him, X had not declared all his assets, referring to his right not to incriminate himself.At that time, X was also charged with dishonesty by a debtor in a criminal trial.In the criminal case, the Supreme Court, as a last instance, held that X had no right to withhold the information on his assets and convicted him of aggravated dishonesty by a debtor (decision KKO 2009:27 of 17 April 2009).A few days later, the European Court of Human Rights gave its decision in the case of Marttinen v.Finland, which was concerning a debtor's right to silence and his right not to incriminate himself and in which Finland was found to have violated Article 6 of the ECHR.With reference to the Marttinen case, X requested the reversal of the Supreme Court's judgment in his case on the grounds that it was manifestly based on misapplication of the law.

The Supreme Court noted that the right against self-incrimination is not absolute and its contents have not been fully clarified.In its decision 2009:27, the Supreme Court had assessed X's right to silence on the basis of the risk X would have faced of being found guilty of dishonesty by a debtor, had he provided the information on his assets, and the significance of that information as potential evidence supporting X's conviction.The Supreme Court held now that it could not find sufficient support for this interpretation in the previous case law of the European Court of Human Rights.Rather, in the more recent case of Marttinen, the right against self-incrimination was interpreted to the effect that if the criminal charge and the information which the debtor is obliged to disclose in the enforcement inquiry and bankruptcy proceedings concern the same facts, the debtor may refuse to disclose the information, irrespective of the significance of the information in assessing the debtor's guilt.It is sufficient that the debtor cannot rule out the possibility that the requested information may be significant in the criminal case.

The Supreme Court found that, in the light of the case law of the European Court of Human Rights at the time decision 2009:27 was made, it had not manifestly misinterpreted the right against self-incrimination.However, considering the more recent developments, the interpretation adopted by the Supreme Court was in conflict with the case law of the human rights court.X had been sentenced to imprisonment and to pay damages, but the judgment had not yet been enforced.Thus, the consequences of having applied national law in conflict with the ECHR could still be prevented by reversing the judgment.The Supreme Court then decided to reverse its judgment 2009:27 as far as it was concerning X's conviction for aggravated dishonesty by a debtor and to release X from the liability to pay damages.The decision was made by a full court.

10.11.2009 / 14.4.2010 / RHANSKI

Date when decision was rendered: 22.6.2010

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 1322; H2009/93

Reference to source

KKO 2010:41.

Decisions of the Supreme Court 2010 January-June

Avgöranden av Högsta domstolen 2010 januari-juni

Korkeimman oikeuden ratkaisuja 2010 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2010

Pages: pp. 331-340

Subject

extraordinary appeal, reversal of a legally final judgment, self-incrimination, principle of legality, fair trial,
extraordinärt ändringssökande, återbrytande av dom, utsätta sig för åtal, legalitetsprincipen, rättvis rättegång,
ylimääräinen muutoksenhaku, tuomion purkaminen, saattaa itsensä syytteen vaaraan, laillisuusperiaate, oikeudenmukainen oikeudenkäynti,

Relevant legal provisions

chapter 31, sections 8-3 and 8-4 of the Code of Judicial Procedure; chapter 4 and chapter 32, section 1 of the Penal Code; section 8 of the Constitution Act

= rättegångsbalken 31 kapitel 8 § 3 och 4 punkten; strafflagen 4 kapitel och 32 kapitel 1 §; grundlagen 8 §

= oikeudenkäymiskaari 31 luku 8 § 3 ja 4 kohdat; rikoslaki 4 luku ja 32 luku 1 §; perustuslaki 8 §.

ECHR-6; ECHR-7

Abstract

The court of appeal had sentenced X for aggravated receiving offence on the grounds that he had concealed property which had been acquired by Y through an offence.The Supreme Court had sentenced Y for aggravated fraud by a debtor (KKO 2009:27) but had later reversed the judgment (KKO 2009:80) on the grounds of the right against self-incrimination.In an extraordinary appeal, X claimed that the judgment against him should also be reversed and the charges against him dropped, because of the reversal of the judgment against Y.

Referring to its earlier judgment (2009:80), the Supreme Court noted that the charges against Y had been dropped and the judgment reversed because the Court had found that Y had had a right to refuse to provide information on his assets in bankruptcy proceedings, in order not to incriminate himself in a criminal trial pending against him at the same time.Among Y's assets was property which X had allegedly concealed.The Court found that although the right against self-incrimination exempted Y from penal liability, it did not make the act lawful as such and did not exempt any accomplices in the act from liability.

The Supreme Court noted that the law requires that a receiving offence is connected with a predicate offence by which the property concealed has been acquired.However, it is not required that the predicate offence is in fact punished.It is possible that a predicate offence remains unpunished for example, if the offender is found criminally irresponsible, enjoys diplomatic immunity or is exempted from penal liability under the Penal Code.While the right against self-incrimination is not explicitly among the grounds for exemption from liability listed in the Penal Code, it is one of the guarantees of a fair criminal trial as laid down in Article 6 of the ECHR.In the Court's view, in a situation where there was a contradiction of legal terms, Y could not have been expected to have acted otherwise in his position at the time and was thus exempted from penal liability.

With reference to established legal practice and legal literature, the Supreme Court found that a receiving offence is punishable, though the perpetrator of the predicate offence is exempted from penal liability and remains unpunished.The Court concluded that attributing a receiving offence to X was not in violation of the principle of legality as prescribed in the Constitution Act, the ECHR and the Penal Code.The Supreme Court also found that the evidence used in the case against X had not been obtained in breach of the right to self-incrimination.Therefore, there was no violation of X's right to a fair trial as regards the presentation of evidence.The Supreme Court concluded that it did not follow automatically from the reversal of the judgment against Y that the charges against X would also have to be dropped.Also, no facts had been presented to show that the judgment against X would have been manifestly based on misapplication of the law.X's appeal was rejected.

The decision was made by a full court.A minority of three justices held that the charges against X should have been dropped.In their view, the reversal of the judgment against Y meant that Y had not committed the predicate offence and that the property which X had allegedly concealed, had thus not been acquired through an offence.Therefore, X could not be found guilty of a receiving offence.

3.2.2011 / 3.2.2011 / RHANSKI

Date when decision was rendered: 11.4.2014

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 773; R2012/572

Reference to source

KKO 2014:25.

Electronic database for the decisions of the Supreme Court within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för Högsta domstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

fair trial, preparation of defence, extraordinary appeal,
rättvis rättegång, förberedande av försvar, extraordinärt ändringssökande,
oikeudenmukainen oikeudenkäynti, puolustuksen valmisteleminen, ylimääräinen muutoksenhaku,

Relevant legal provisions

Chapter 31, section 1-1-4 of the Code of Judicial Procedure; section 21 of the Constitution Act

= rättegångsbalken 31 kapitel 1 § 1 mom. 4 punkten; grundlagen 21 §

= oikeudenkäymiskaari 31 luku 1 § 1 mom. 4 kohta; perustuslaki 21 §.

ECHR-6-3-b; CCPR-14

Abstract

The court of first instance had sentenced X to imprisonment for a narcotics offence and drunken driving.After the judgment had gained legal force, X submitted to the court of appeal a complaint on the basis of a procedural fault and requested that the judgment is annulled.X claimed he had not had adequate time and facilities for the preparation of his defence.The summons had been served on X as late as on the day of the main hearing at the court of first instance.X had had no counsel in the pretrial investigation and the court hearing.The court of appeal referred, among other things, to Article 6 of the ECHR and the case law of the European Court of Human Rights.It found that the court of first instance had not appropriately clarified whether X had had adequate time and facilities for the preparation of his defence.There had thus been a procedural fault.However, strong evidence had been presented against X, and X had not brought forth any facts which would show that the court's judgment would have been different if X had had more time to prepare his defence.The appeal court dismissed X's complaint.X took the case further to the Supreme Court.

The Supreme Court referred to the right to a fair trial, as prescribed in the Constitution Act, the ECHR and the CCPR, and noted that the defendant's right to have adequate time and facilities for the preparation of his/her defence is one of the fundamental guarantees of a fair trial.X had not notified the court of first instance that he had not had adequate time for the preparation of his defence or to consider the need for counsel.However, the court had been aware that the summons had been served on the day of the main hearing and that X had in practice had no time for the preparation of his defence.Therefore, the court should have on its own motion clarified for X his rights pertaining to the preparation of his defence.If necessary, the court proceedings could have been postponed.The Supreme Court concluded that there had been a procedural fault.According to the Code of Judicial Procedure, a final judgment may be annulled if a procedural error has occurred in the proceedings which is found or can be assumed to have essentially influenced the result of the case.In the Supreme Court's opinion, this provision should not be given a narrow interpretation, in particular, where a defendant's right to a proper defence has been violated.In the letter of complaint, X had not brought forth facts which would show that the procedural error had influenced the court's judgment.However, the Supreme Court continued that on that basis one cannot draw far-reaching conclusions as to X's needs and possibilities to defend himself in the case.Instead, in assessing the impact of the procedural fault, it is important to note that, under the circumstances, X had not had adequate possibilities to clarify and present to the court considerations which could possibly have influenced the court when assessing X's guilt and punishment.The Supreme Court concluded that there were reasonable grounds to assume that the procedural error had essentially influenced the result of the case.The Supreme Court quashed the decision of the court of appeal and annulled the judgement of the court of first instance as far as X was concerned.The case was returned to the court of first instance for a new consideration.

10.9.2014 / 26.9.2014 / RHANSKI

Date when decision was rendered: 18.5.2012

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 928

Reference to source

KKO 2012:49.

Decisions of the Supreme Court 2012 January-June

Avgöranden av Högsta domstolen 2012 januari-juni

Korkeimman oikeuden ratkaisuja 2012 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2012

Pages: pp. 326-332

Subject

fair trial, preparation of defence, extraordinary appeal,
rättvis rättegång, förberedande av försvar, extraordinärt ändringssökande,
oikeudenmukainen oikeudenkäynti, puolustuksen valmisteleminen, ylimääräinen muutoksenhaku,

Relevant legal provisions

Chapter 12, section 29 and Chapter 26, section 20-1 of the Code of Judicial Procedure

= rättegångsbalken 12 kapitel 29 § och 26 kapitel 20 § 1 mom.

= oikeudenkäymiskaari 12 luku 29 § ja 26 luku 20 § 1 mom.

ECHR-6-1; ECHR-6-3

Abstract

The court of first instance had sentenced X to imprisonment for theft and means of payment fraud.In his appeal to the court of appeal, X claimed that the assessment of the evidence by the court of first instance had been incorrect and the charges against X should thus be dismissed.X also requested that in any case the punishment is reduced and adjusted and the grounds for increasing the severity of the punishment are not applied.The court of appeal summoned X to attend the main hearing, under threat that, in his absence, the case would be discontinued.X did not attend the main hearing and had not provided any valid excuse for his absence.X's legal counsel, who was present at the main hearing, requested that the court decides the matter in written proceedings as far as the assessment of punishment was concerned.However, the court of appeal decided that the matter is entirely discontinued due to X's absence.X then filed an extraordinary appeal with the Supreme Court, due to procedural fault.

The Supreme Court first noted the relevant provisions of the Code of Judicial Procedure: If the appellant is absent from the main hearing, the appeal shall be discontinued in respect of the subject of the main hearing.A party who, regardless of having been ordered to appear in court in person, sends an attorney instead of appearing in person, while not having a valid excuse, shall be deemed to be absent.The Supreme Court then referred to the case law of the European Court of Human Rights and in particular the cases of Poitrimol v France (judgment of 23 November 1993, Publications of the European Court of Human Rights, Series A, Vol. 277-A), Lala v the Netherlands and Pelladoah v the Netherlands (judgments of 22 September 1994, Publications of the European Court of Human Rights, Series A, Vol. 297-A and B), Van Geyseghem v Belgium (judgment of 21 January 1999, Reports of Judgments and Decisions 1991-I, pp. 127-156), Van Pelt v France (judgment of 23 May 2000), Goedhart v Belgium (judgment of 20 March 2001) and Kari-Pekka Pietiläinen v Finland (judgment of 22 September 2009).The right of everyone charged with a criminal offence to be defended effectively by a lawyer is one of the basic features of a fair trial.An accused does not lose this right merely on account of not attending a court hearing.Even if the legislature must be able to discourage unjustified absences, it cannot penalise them by deprivation of the right to be defended.The Supreme Court also referred to its two earlier decisions (KKO 2004:94 and 2011:30) and noted that it does not follow from the wording of the Code of Judicial Procedure that an appeal should always be entirely discontinued when the applicant is absent from the main hearing without a valid excuse, even though summoned to appear in person.In this kind of situation, the court of appeal must decide, on a case-by-case basis, whether the examination of some parts of the appeal is necessary and reasonable.The Supreme Court gave as an example criminal sanctions which in the Court's view can often be examined and decided despite the defendant's absence.

The Supreme Court concluded that the court of appeal should not have discontinued the appeal as far as the request by X's legal counsel was concerned to consider the assessment of punishment in written proceedings.Hearing X in person was not necessary in order to decide the question of punishment.It had also not been shown that the due process guarantees of the injured party would have prevented the consideration of X's appeal as far as the assessment of punishment was concerned.The Supreme Court annulled the decision of the court of appeal as far as the assessment of punishment was concerned.The matter was returned to the appeal court.

One dissenting justice of the Supreme Court noted that X's appeal was based on his claim that the assessment of the evidence by the court of first instance had been incorrect.When hearing an appeal by X's co-defendant, the court of appeal had held a main hearing and had thus had the opportunity to consider whether it was reasonable and necessary that the court, on its own motion, assesses X's punishment to his benefit.In the dissenting justice's opinion, it had not been shown that there had been a procedural fault and X's appeal should thus be dismissed.

23.9.2014 / 26.9.2014 / RHANSKI

Date when decision was rendered: 23.5.2011

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 1138; R2010/115

Reference to source

KKO 2011:30.

Decisions of the Supreme Court 2011 January-June

Avgöranden av Högsta domstolen 2011 januari-juni

Korkeimman oikeuden ratkaisuja 2011 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2011

Pages: pp. 248-258

Subject

fair trial, preparation of defence, extraordinary appeal,
rättvis rättegång, förberedande av försvar, extraordinärt ändringssökande,
oikeudenmukainen oikeudenkäynti, puolustuksen valmisteleminen, ylimääräinen muutoksenhaku,

Relevant legal provisions

Chapter 12, section 29 and Chapter 26, section 20-1 of the Code of Judicial Procedure; Chapter 6, sections 1, 2, 3 and 3a of the Criminal Procedure Act

= rättegångsbalken 12 kapitel 29 § och 26 kapitel 20 § 1 mom.; lag om rättegång i brottmål 6 kapitel 1 §, 2 §, 3 § och 3a §

= oikeudenkäymiskaari 12 luku 29 § ja 26 luku 20 § 1 mom.; laki oikeudenkäynnistä rikosasioissa 6 luku 1 §, 2 §, 3 § ja 3a §.

ECHR-6-1; ECHR-6-3

Abstract

The court of first instance had sentenced X to conditional imprisonment and to pay damages.In his appeal to the court of appeal, X claimed that the credibility of the statements by X and his adverse party had not been correctly evaluated by the first instance court.X requested that the judgment is reversed or, alternatively, the punishment is mitigated and the size of the damages is reduced.The court of appeal had summoned X to attend the main hearing, under threat that, in his absence, the case would be discontinued.X did not attend the main hearing and had not provided in advance any valid excuse for his absence.X's counsel informed the court that X was at home sick and would arrive an hour late.Counsel suggested that the court begins the main hearing despite X's absence.However, the court of appeal decided that the case is discontinued because X was absent from the main hearing without a valid excuse, regardless of having been ordered to appear in court in person.X then filed an extraordinary appeal with the Supreme Court, due to a procedural fault.

According to the Code of Judicial Procedure, if the appellant is absent from the main hearing, the appeal shall be discontinued in respect of the subject of the main hearing.A party who, regardless of having been ordered to appear in court in person, sends an attorney instead of appearing in person, while not having a valid excuse, shall be deemed to be absent.The Supreme Court noted that, keeping in mind Article 6 of the ECHR and the case law of the European Court of Human Rights, the relevant national provisions should be given a flexible interpretation, with the aim of guaranteeing the defendant's rights of defence also in situations where the defendant is absent from a hearing, regardless of being ordered to appear in person, and only the defendant's counsel is present.On the other hand, the right to a fair trial also protects the injured party in whose interest it is that a criminal case, including a claim for damages, is duly resolved within a reasonable time.

The Supreme Court noted that because X's appeal was based on the evaluation of the credibility of oral evidence, the court of appeal could hold, with justification, that X's presence and hearing X in the main hearing were necessary in order to decide the appeal.The court could not begin hearing the injured party and the witnesses, counting on it that X would arrive within an hour.Because the evaluation of evidence was essentially based on a comparison of contradictory statements, postponing the main hearing and receiving evidence in several separate hearings would have been likely to undermine the possibility to evaluate the evidence in the court of appeal.Also, when X was summoned to the court of appeal, he had not been notified that evidence could be heard regardless of his absence.The Supreme Court concluded that under the circumstances the court of appeal could not begin the main hearing and hear the injured party and the witnesses in X's absence.

The Supreme Court then pointed out that in X's appeal, the doubts regarding the credibility of the evidence had been expressed in general terms only.The injured party and the witnesses were present at the main hearing.In addition, the offences referred to in the charge were committed several years ago, in 2005.Taking into account the interests of the injured party and the requirements for effective proceedings within a reasonable time, the court held that protecting X's rights of defence did not in this case require that the main hearing is postponed.Finally, regarding the subject of the main hearing, there were no such parts in X's appeal which could have been examined without hearing oral evidence in the main hearing.The Supreme Court concluded there had been no procedural fault when the court of appeal had discontinued the case entirely.X's appeal was dismissed.

One dissenting justice found that the decision to discontinue the case was especially hard and unjustified from X's point of view, considering his right to defend himself and his right to a fair trial.The court of appeal should have taken into account in particular the fact that X's counsel had requested that the court begins the main hearing in X's absence.This could be regarded as an expression of X's view of a right to a fair trial and to defend oneself through legal assistance.In the dissenting justice's opinion, there had thus been a procedural fault which can be assumed to have essentially influenced the result of the case.

25.9.2014 / 29.9.2014 / RHANSKI