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Date when decision was rendered: 3.11.2004 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 2468; R2003/650 Reference to source KKO 2004:109. Decisions of the Supreme Court 2004 II July-December Avgöranden av Högsta domstolen 2004 II juli-december Korkeimman oikeuden ratkaisuja 2004 II heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2005 Pages: pp. 698-708 Subject
nulla poena sine lege,
intellectual property rights,
principle of legality,
Relevant legal provisions Chapter 36, sections 1 and 2 of the Penal Code; sections 26a and 26d of the Copyright Act; section 8 of the Constitution Act = strafflagen 36 kapitel 1 § och 2 §; upphovsrättslag 26a§ och 26d §; grundlagen 8 § = rikoslaki 36 luku 1 § ja 2 §; tekijänoikeuslaki 26a§ ja 26d §; perustuslaki 8 §. ECHR-7 Abstract A had produced empty video cassettes and had also imported raw tape used in the manufacture of the cassettes.According to law A should have informed the Finnish Composers' Copyright Society of his activities in order for the society to collect the statutory copyright fees.A had failed to do so, and the question was whether A could be charged with fraud.The Supreme Court discussed, among other things, the definition of fraud in the Penal Code and in particular the interpretation of the words "deceive another or take advantage of an error of another".With regard to the manufacture of video cassettes, the Supreme Court ruled that A had neglected to inform the copyright society, but by doing so he had not led the society believe something which was not true and had therefore not deceived the copyright society.In discussing whether A had taken advantage of an error of the copyright society, the Court referred to the principle of legality which requires a narrow interpretation when considering whether an act constitutes an offence.The Court pointed out that legal terms, unless specifically defined in law, should have the same meaning as in common language usage.In everyday language the word "error" means more than "not being aware".The Court concluded that A had not taken advantage of an error of the copyright society and, as far as the manufacture of video cassettes was concerned, A's actions did not amount to fraud as prescribed in the Penal Code.However, the situation was different with regard to the import of raw tape.A had given false information to the customs authorities by importing the material as cellophane.Import of raw tape for the manufacture of video cassettes requires that a notification is made to the copyright society.The goods will not pass the customs unless the copyright fees have been paid.The Supreme Court concluded that A's actions amounted to fraud as far as the import of the raw tape was concerned.The Court also ordered A to pay the copyright fees for both the video cassettes and the raw tape.Two justices of the Supreme Court were of the opinion that A could be convicted for fraud also with regard to the manufacture of video cassettes.In their view, the principle of legality does not outlaw the gradual clarification of legal provisions through judicial interpretation, provided that the interpretation is consistent with the purpose of the protection sought by penal provisions and that the liability to punishment is reasonably forseeable.A's duty to inform the copyright society was based on the law and formed an essential part of the system for the collection of copyright fees.That fact that the copyright society was not aware of A's activities because A had neglected his duty to inform the society, could be interpreted to the effect that A had taken advantage of an error of the society in order to obtain financial benefit.In the two justices' opinion, this interpretation was not inconsistent with the purpose of the protection sought by the penal provisions.It was not in contradiction with the wording of the provision or common language usage either.In their opinion, the two justices referred to the decisions of the European Court of Human Rights in the cases of C.R. v. the United Kingdom (judgment of 22 November 1995, Publications of the European Court of Human Rights, Series A, Vol. 335), Cantoni v.France (judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V) and Ba kaya and Okçuo lu v.Turkey (judgment of 8 July 1999, Reports of Judgments and Decisions 1999-IV). 22.4.2005 / 2.6.2006 / RHANSKI
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Date when decision was rendered: 18.2.2004 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 313; 3011/1/02 Reference to source KHO 2004:15. Yearbook of the Supreme Administrative Court 2004 January-June Högsta förvaltningsdomstolens årsbok 2004 januari-juni Korkeimman hallinto-oikeuden vuosikirja 2004 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2008 Pages: pp. 121-129 Subject
nulla poena sine lege,
principle of legality,
right to work,
Relevant legal provisions sections 5-2, 7, 8, 22 and 23 of the Act on Real Estate Businesses and Apartment Rental Agencies (1075/2000); sections 8 and 18 of the Constitution Act = lag om fastighetsförmedlingsrörelser och rörelser för förmedling av hyreslägenheter och hyreslokaler 5 § 2 mom., 7 §, 8 §, 22 § och 23 §; grundlagen 8 § och 18 § = laki kiinteistönvälitysliikkeistä ja vuokrahuoneiston välitysliikkeistä 5 § 2 mom., 7 §, 8 §, 22 § ja 23 §; perustuslaki 8 § ja 18 §. ECHR-7 Abstract In October 2001, the county administrative board had made a decision not to enter real estate business X into a specific register for real estate agencies.According to law, registration is necessary in order for a real estate business to carry out its activities.As grounds for the refusal, the county administrative board stated that the manager of the real estate business, Y, could not be considered reliable.The board referred to section 5-2 of the Act on Real Estate Businesses which prescribes that a manager can be regarded as reliable, among other things, if he or she has not been sentenced to prison during the past five years by a judgment that is legally valid.The Act entered into force in March 2001.Y had been sentenced to prison in 1998 for an empezzlement offence and some other offences.The law which was in force in 1998 did not contain any provisions, equivalent to those of the new Act, on the reliability of the manager of a real estate business. In its decision, the Supreme Administrative Court referred to the principle of legality in criminal cases as provided for in section 8 of the Constitution Act and Article 7 of the ECHR.The Court pointed out that although this case did not concern a penalty for a criminal offence but requirements for registration, the principle of legality in criminal cases was of relevance.When convicted in 1998, Y could not foresee that a new law would be enacted in 2001 including qualification requirements for a manager of a real estate business.The Court ruled that taking into account the principle of legality, the assessment of the manager's reliability as regards offences committed before the entry into force of the Act on Real Estate Businesses could not be categorically bound to the time period of five years prescribed in section 5-2 of the Act.According to the Court, the principle of legality, the constitutional right to work and the freedom to engage in commercial activity do not as such prevent it that offences committed before the entry into force of the Act on Real Estate Businesses are taken into account when assessing the reliability of a manager.Section 5-2 of the Act also provides that a person cannot be regarded as reliable if that person in his or her previous activities in general has shown that he or she is clearly unsuitable for the task of a manager.In such assessment of the matter in its entirety, it is possible to take into account whether a person has been guilty of a criminal offence, the nature of that offence and the time which has elapsed after the offence has been committed.In the Court's opinion, the county administrative board should not have refused to register real estate business X on the grounds given in its decision.Without taking a stand on Y's reliability, the Supreme Administrative Court quashed the decisions of the administrative court and the county administrative board and returned the matter to the board for a new consideration. 25.4.2005 / 3.7.2009 / RHANSKI
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Date when decision was rendered: 14.12.2005 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 3064; R2005/736 Reference to source KKO 2005:132. Decisions of the Supreme Court 2005 II July-December Avgöranden av Högsta domstolen 2005 II juli-december Korkeimman oikeuden ratkaisuja 2005 II heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2006 Pages: pp. 960-964 Subject
nulla poena sine lege,
right to freedom from retroactivity,
principle of legality,
Relevant legal provisions section 78-1 of the Road Traffic Act; section 8 of the Constitution Act = vägtrafiklagen 78 § 1 mom.; grundlagen 8 § = tieliikennelaki 78 § 1 mom.; perustuslaki 8 §. ECHR-7 Abstract A court of first instance had sentenced X to a fine and a driving ban for having caused a traffic hazard in April 2005.The driving ban was due to expire 30 April 2006.The court based its decision on the amended Road Traffic Act, which came into force 1 March 2005 and provides that the minimum period of a driving ban is one year in cases where the driver has been found guilty of causing a traffic hazard twice within five years.Before April 2005, X had been convicted of having caused a traffic hazard in January 2002.The old Road Traffic Act only prescribed the maximum period for a driving ban, but did not give a minimum period, for example, in case of recidivists.In his appeal to a court of appeal and further to the Supreme Court, X referred to the decision of the European Court of Human Rights in the case of Achour v.France (judgment of 10 November 2004).X argued that because of the prohibition of retroactive application of criminal law, his previous conviction could not be taken into account as an aggravating circumstance when deciding, under the amended Road Traffic Act, on the length of the driving ban imposed on him due to the second offence. The Supreme Court held that in X's case the applicable law is the law which was in force when X committed his second offence, that is the amended Road Traffic Act.When committing the offence, X was aware of the amendment and of the fact that his previous offence would be taken into account when imposing a driving ban in case of a new offence.The driving ban was a consequence of the new offence and the penalty was harsher because of X's previous offence; it was not an additional penalty for the previous offence.Regarding the Achour case, the Supreme Court held that X's case was different from Achour's.Achour had been convicted as a recidivist to a harsher penalty in accordance with new legislation, though he had committed his second offence after the statutory limitation period under the previous legislation had already expired.In Achour's case, the application of the new legislation restored a legal situation that had already ceased to have effect.The Supreme Court held that in practice X's previous offence would apparently have been taken into account as an aggravating circumstance even under the old Act though the length of a driving ban in that case would have been shorter than under the amended Act.The Supreme Court concluded that the application of the amended Road Traffic Act in X's case did not constitute retroactive application of criminal law.It upheld the decision of the court of appeal. 29.5.2006 / 29.5.2006 / RHANSKI
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Date when decision was rendered: 12.7.2005 Judicial body: Court of Appeal of Eastern Finland = Östra Finlands hovrätt = Itä-Suomen hovioikeus Reference: Report no. 874; R05/745 Reference to source I-SHO 2005:13. 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
nulla poena sine lege,
right to freedom from retroactivity,
principle of legality,
Relevant legal provisions sections 75-1 and 78-1 of the Road Traffic Act = vägtrafiklagen 75 § 1 mom. och 78 § 1 mom. = tieliikennelaki 75 § 1 mom. ja 78 § 1 mom. ECHR-7 Abstract In May 2005, a court of first instance sentenced A to a fine and a driving ban for the offence of drunken driving committed in April 2005.A had previously been convicted of aggravated drunken driving in July 2001.The main question in this case was whether the previous conviction affected the length of the driving ban imposed on A, considering that the provisions concerning driving ban in the Road Traffic Act were amended during the time between the first and the second offence.Previously, the Act only gave the maximum period for a driving ban (five years) but did not define the minimum period.According to the amended provisions, which came into force 1 March 2005, the minimum period for a driving ban is six months in cases where the driver has within the previous five years already been convicted of drunken driving and commits the same offence again.The court of first instance tried A as a first offender and imposed the driving bank for a period expiring in mid-July 2005.The length of the ban corresponded to the court practice prevailing before the coming into force of the amended Road Traffic Act.The court held that because A's first offence was committed before the coming into force of the amended Act, the new provisions providing for a harsher penalty could not be applied without violating the principle of legality.Here the court referred to the case of Achour v.France (judgment of 10 November 2004), in which the European Court of Human Rights had found a violation of Article 7 of the ECHR because of a retroactive application of a law providing for a harsher punishment. The court of appeal agreed that the Achour judgment supported the interpretation that offences which the defendant had been convicted of before the coming into force of the amended Road Traffic Act could not be taken into account when imposing a driving ban under the new provisions.However, the court noted that in the Achour case the previous statutory limitation period for recidivism had expired before the defendant committed his second offence and before the new, harsher provisions and the longer limitation period came into force.The court of appeal held that the amended provisions concerning a driving ban are clearly formulated in the Road Traffic Act.A is not punished on the basis of these provisions for his previous offence but for an offence committed after the coming into force of the amended Act.After the amended Act had come into force, A had been aware of the consequences he would face if he were to be convicted as a recidivist under the Act.On these grounds the court of appeal found that offences committed before the coming into force of the amended Road Traffic Act can be taken into account as prescribed in the Act when considering the length of a driving ban imposed on a person who has been convicted of drunken driving after the coming into force of the amended Act.In the court's view, this was not in contradiction with the principle of legality.The court extended A's driving ban until mid-December 2005.The decision is final.One dissenting member of the court referred to the prohibition of retroactive application of criminal law and agreed with the decision of the first instance court. 29.5.2006 / 30.5.2006 / RHANSKI
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Date when decision was rendered: 6.7.2005 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 1665; H2005/96 Reference to source KKO 2005:84. Decisions of the Supreme Court 2005 II July-December Avgöranden av Högsta domstolen 2005 II juli-december Korkeimman oikeuden ratkaisuja 2005 II heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2006 Pages: pp. 606-609 Subject
right to marry,
aliens,
principle of legality,
nulla poena sine lege,
marriage,
immigration,
Relevant legal provisions Chapter 16, section 7-1 of the Penal Code; Chapter 31, section 8-4 of the Code of Judicial Procedure = strafflagen 16 kapitel 7 § 1 mom.; rättegångsbalken 31 kapitel 8 § 4 mom. = rikoslaki 16 luku 7 § 1 mom.; oikeudenkäymiskaari 31 luku 8 § 4 mom. Abstract Four Finns had each married Russian spouses.All four marriages ended after the Russian spouses had been granted residence permits in Finland.The Finns conceded that they had been paid or offered a reward for the marriage.Marriages of convenience contracted in order to circumvent immigration rules are not criminalized in Finnish law.However, the genuineness of a marriage may be assessed in the context of an application for a residence permit on the basis of a family tie.If the marriage has been contracted only in order to circumvent the rules on entry, the application for a residence permit is rejected. In this case, the four Finns as well as one of the Russian spouses were charged with a registration offence under the Penal Code.Summoning the three other Russian spouses for trial failed.The court of first instance held that when saying "I do" as a part of the marriage ceremony, the defendants had provided false information and had thus caused a legally relevant error in the population register where marriages are registered.The defendants were sentenced to suspended imprisonment. At the initiative of the Deputy Chancellor of Justice, the Supreme Court took up the case as a reversal of a final judgment.The Supreme Court held that in regard to the legitimacy of a marriage, the motives for the marriage are irrelevant.Though the motives for a marriage may in some issues have legal relevance, they are not entered in the population register.Therefore, the faultiness of a register entry regarding marriage cannot be determined on the basis of the motives of the marriage.Consequently, a register entry about marriage cannot be deemed false on the grounds that the marriage is contracted in order to obtain a residence permit.The Supreme Court ruled that in this case the defendants' deeds did not constitute a registration offence under the Penal Code.It reversed the decision of the first instance court to the benefit of the defendants as being based on a manifest misapplication of the law. 29.5.2006 / 29.5.2006 / RHANSKI
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Date when decision was rendered: 6.10.2005 Judicial body: Kouvola Court of Appeal = Kouvola hovrätt = Kouvolan hovioikeus Reference: Report no. 1111; R05/740 Reference to source KouHO 2005:7. 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
nulla poena sine lege,
right to freedom from retroactivity,
principle of legality,
Relevant legal provisions sections 75 and 78 of the Road Traffic Act = vägtrafiklagen 75 § och 78 § = tieliikennelaki 75 § ja 78 §. ECHR-7 Abstract A court of first instance had imposed a driving ban on X for the offence of drunken driving committed on 23 March 2005.X had been found guilty of aggravated drunken driving before, in July 2001.The main question in this case was whether the previous conviction affected the length of the driving ban, considering that the provisions concerning driving ban in the Road Traffic Act were amended during the time between the first and the second offence.The old Act did not define any minimum period for a driving ban.According to the amended provisions, which came into force 1 March 2005, the minimum period for a driving ban is six months in cases where the driver has within the previous five years already been convicted of drunken driving and commits the same offence again.The Act amending the Road Traffic Act did not contain any transition provisions, so it was not clear whether the amended Act also applied concerning offences which had been committed while the old Act was still in force.The court of first instance held that in this case applying the amended provisions would mean a retroactive application of the law to X's disadvantage.Therefore, the court ruled that the length of the driving ban was to be 3 months and 14 days, i.e. shorter that the minimum period required by the amended Act.The prosecutor brought the case before a court of appeal requesting a six-month driving ban at a minimum. The court of appeal held that the case of Achour v.France (judgment of 10 November 2004), in which the European Court of Human Rights had found a violation of Article 7 of the ECHR because of a retroactive application of a harsher penalty, supported the interpretation that offences which the defendant had been convicted of before the coming into force of the amended Road Traffic Act could not be taken into account when imposing a driving ban under the new provisions.However, the court of appeal noted that in the Achour case the previous statutory limitation period for recidivism had expired before the defendant committed his second offence and before the new, harsher provisions and the longer limitation period came into force.In the case of Achour, the effects of the longer statutory limitation period had thus been applied retroactively.The court of appeal found that this was not the case when applying the amended Road Traffic Act.X had been guilty of drunken driving after the amended provisions had entered into force, and therefore, in the court's opinion, he was, or at least he should have been, aware of the amended Act and the consequences he would face if he were to be convicted as a recidivist under the Act.The court concluded that X's previous offence should be taken into account.Thus, the total length of the driving ban was to be six months, including the ban imposed by the court of first instance which had expired before the decision of the appeal court.The decision is final. 30.5.2006 / 30.5.2006 / RHANSKI
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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,
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
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Date when decision was rendered: 22.2.2010 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 347; R2008/361 Reference to source KKO 2010:14. 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. 117-122 Subject
principle of legality,
Relevant legal provisions sections 2, 5 and 34 of the Act on Health Care Professionals; section 16 of the Decree on Health Care Professionals; chapter 3, section 1-1 and chapter 44, section 3-1 of the Penal Code; section 8 of the Constitution Act = lag om yrkesutbildade personer inom hälso- och sjukvården 2 §, 5 § och 34 §; förordning om yrkesutbildade personer inom hälso- och sjukvården 16 §; strafflagen 3 kapitel 1 § 1 mom. och 44 kapitel 3 § 1 mom.; grundlagen 8 § = laki terveydenhuollon ammattihenkilöistä 2 §, 5 § ja 34 §; asetus terveydenhuollon ammattihenkilöistä 16 §; rikoslaki 3 luku 1 § 1 mom. ja 44 luku 3 § 1 mom.; perustuslaki 8 §. ECHR-7 Abstract X, who was trained in glazing lenses for spectacles, had also performed eye checks in order to precribe spectacles to his customers.The prosecutor claimed X had undertaken the tasks of an optician and brought charges against X for unlicensed practice of a health care profession.The court of first instance and the court of appeal dismissed the charges.Both court instances held that, according to the principle of legality, a person may be found guilty of an offence only on the basis of an act that has been specifically criminalized in law at the time of its commission.The Act on Health Care Professionals does not list the specific tasks of a licensed optician or contain a provision which would make eye checks or prescribing spectacles the explicit task of an optician only. The Supreme Court observed that under the Act on Health Care Professionals, an optician is a licensed health care professional who has the education and training necessary for the practice of the profession.The Court agreed that the Act does not explicitly prescribe the tasks of an optician.However, in accordance with the Act, futher provisions on its implementation have been issued by a Decree on Health Care Professionals.According to the Penal Code and the Act on Health Care Professionals, practicing as a health care professional without a legal right is subject to punishment.While it is not defined in the Penal Code what is meant by unlicensed practice of an optician's profession, the Penal Code refers to the Act on Health Care Professionals for the essential elements of the offence.Although the Act does not explicitly list the tasks of an optician, it is evident from the provisions of the Decree implementing the Act that eye checks for spectacles is a task which is to be performed by an optician.Unlike the lower court instances, the Supreme Court concluded that it is clear from the provisions of the Penal Code, the Act and Decree on Health Care Professionals what kind of acts are punishable as unlicensed practice of an optician's profession.This meets the requirements of the principle of legality, and there was thus no impediment to the prosecution of X.The Supreme Court sentenced X for unlicensed practice of a health care profession to a fine. 2.3.2011 / 18.10.2012 / RHANSKI
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Date when decision was rendered: 8.12.2008 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 2670; R2008/11 Reference to source KKO 2008:105. Decisions of the Supreme Court 2008 II July-December Avgöranden av Högsta domstolen 2008 II juli-december Korkeimman oikeuden ratkaisuja 2008 II heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2009 Pages: pp. 752-762 Subject
principle of legality,
Relevant legal provisions chapter 3, section 1 of the Penal Code; sections 12 and 23 of the Act on Animal Diseases; Decree 157/2006 of the Ministry of Agriculture and Forestry; section 8 of the Constitution Act = strafflagen 3 kapitel 1 §; lag om djursjukdomar 12 § och 23 §; jord- och skogsbruksministeriets förordning 157/2006; grundlagen 8 § = rikoslaki 3 luku 1 §; eläintautilaki 12 § ja 23 §; maa- ja metsätalousministeriön asetus 157/2006; perustuslaki 8 §. ECHR-7 Abstract In a poultry farm, X had kept geese out in the open air, contrary to the provisions of Decree 157/2006 issued by the Ministry of Agriculture.The Decree contained measures to reduce the risk of transmission of avian influenza from wild birds to poultry, including a prohibition to keep poultry outdoors during a three-month period in spring in areas identified as being particularly at risk for the introduction of avian influenza.The court of first instance found X had acted in violation of the Act on Animal Diseases and sentenced X to a fine.The court of appeal, on the other hand, found that the principle of legality in criminal cases prevented X's conviction, because the punishable act was not determined by the Act on Animal Diseases but by the Decree.Also, the Decree did not refer to the penal provision included in the Act. In considering the case from the point of view of the principle of legality, the Supreme Court noted that the Decree had been issued by virtue of section 12 of the Act on Animal Diseases which authorizes the Ministry of Agriculture to give further provisions on safety measures, specified in the Act, in order to prevent the transmission of animal diseases.According to section 23 of the Act, any violation of the provisions of the Act or of any provisions or regulations issued by virtue of the Act is subject to punishment.Section 23 does not -- and cannot -- specify the various manifestations of the acts subject to punishment.However, it is evident from the title and scope of application of the Act that the explicit purpose of criminalization is to fight or prevent animal diseases.The description of the prohibited act -- that is, not to keep poultry outdoors -- is unambiguous.The link of the prohibition to the Act on Animal Diseases is clear from the preamble of the Decree.The Supreme Court also paid attention to the fact that the target group of the relevant regulations are persons who have (poultry) farming as their profession.It is unlikely that these people are not aware of the obligations contained in the Act on Animal Diseases and in provisions and regulations issued by virtue of the Act or that they are not aware of the consequences of the non-compliance with these obligations.The Supreme Court concluded that it is evident from the relevant provisions that keeping poultry outdoors is subject to punishment.This meets the requirements of the principle of legality in criminal cases, and there is no impediment to conviction and sentencing in this case. 4.3.2011 / 18.10.2012 / RHANSKI
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Date when decision was rendered: 19.2.2013 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 353; R2011/193 Reference to source KKO 2013:12. Decisions of the Supreme Court 2013 January-June Avgöranden av Högsta domstolen 2013 januari-juni Korkeimman oikeuden ratkaisuja 2013 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2013 Pages: pp. 98-105 Subject
principle of legality,
drugs,
Relevant legal provisions chapter 3, section 1, chapter 44, section 5, chapter 50, sections 1-3 and 5-1 of the Penal Code; section 19 of the Medicine Act; section 8 of the Constitution Act; sections 3 and 5 of Government Decree 1088/2002 on importing of medicinal preparations for personal use = strafflagen 3 kapitel 1 §, 44 kapitel 5 §, 50 kapitel 1 § 3 punkten och 5 § 1 mom.; läkemedelslag 19 §; grundlagen 8 §; statsrådets förordning (1088/2002) om personlig införsel av läkemedelspreparat till Finland 3 § och 5 § = rikoslaki 3 luku 1 §, 44 luku 5 §, 50 luku 1 § 3 kohta ja 5 § 1 mom.; lääkelaki 19 §; perustuslaki 8 §; valtioneuvoston asetus (1088/2002) lääkevalmisteiden henkilökohtaisesta tuonnista Suomeen 3 § ja 5 §. ECHR-7; Article 49 of the Charter of Fundamental Rights of the European Union Abstract X had brought from Estonia to Finland a small amount of medicines for personal use, without, however, carrying the original prescription or a certificate required for importing medicines classified as narcotic substances.The court of first instance sentenced X to a fine for a narcotics offence.In the court's view, the fact that X had later presented the required certificates did not exonerate X from criminal liability.X appealed to the court of appeal which dismissed the charge.The court referred to Government Decree 1088/2002, issued on the basis of the Medicine Act and concerning import of medicinal products for personal use.It noted that section 3 of the Decree, on conditions for import of personal prescribed medicines, contains an explicit provision requiring that the traveller must carry the relevant documentation with him/her when entering the country, whereas there is no such explicit requirement in section 5 on importing of personal medicines classified as narcotic substances.The court relied on the principle of legality and held that the provision in the Penal Code on the punishability of unlawful importing of narcotics cannot be interpreted to the detriment of the defendant to the effect that missing documentation at the time of entry into the country alone would amount to unlawful import. The prosecutor appealed against the decision to the Supreme Court.The Supreme Court noted that section 3 is a provision meant to be applied as long as there are no exceptions specified in the later sections of the Decree.The court found that because section 5 of the Decree imposes considerable limitations on importing of personal medicines classified as narcotic substances, there is clearly no intention to ease the general conditions for importing of personal medicines, including the requirement that the traveller should carry all relevant documentation with him/her when entering the country.In the court's view, it is clear from the provisions of the Decree that a person importing medicines classified as narcotic substances must carry the required prescription and certificate when entering the country.The provisions of the Decree are in accordance with the principle of legality as prescribed in the Penal Code, the Constitution Act, Article 7 of the ECHR and Article 49 of the EU Charter of Fundamental Rights. The court ruled that X had acted in violation of the Decree.However, it then considered the nature of X's possible offence.X would have had the right to bring the legally acquired, personal medicines to Finland provided X had presented the relevant documentation when entering the country.It had not even been claimed that X intended to abuse the medicines or hand them over to someone else.However, X had been negligent when failing to find out about the relevant regulations and to obtain and present the required documentation.In the court's opinion, considerations relating to the purpose of the regulations on narcotics and narcotics offences do not speak in favour of convicting a traveller importing medicines for personal treatment for a narcotics offence only because the required documentation is missing upon entry into the country.This would not be in right proportion to the demerits of the deed.The court found that X was also not guilty of a medicine offence which is a punishable act under the Penal Code only when committed intentionally or through gross negligence.Because the prosecutor had charged X for an intentional violation of the Medicine Act only and had not presented any alternative charge, the court did not assess whether X was liable for a minor offence, namely infringement through negligence of the Medicine Act.The Supreme Court upheld the outcome of the appeal court's ruling. 14.11.2013 / 14.11.2013 / RHANSKI
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