Date when decision was rendered: 14.3.1997

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 1012; R95/1454

Reference to source

KKO 1997:29.

Decisions of the Supreme Court 1997 I January-June

Högsta domstolens avgöranden 1997 I januari-juni

Korkeimman oikeuden ratkaisuja 1997 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1997

Pages: pp. 124-132

Subject

fair trial, oral hearing, lawyers, disciplinary punishment,
rättvis rättegång, muntligt förfarande, jurister, disciplinärt straff,
oikeudenmukainen oikeudenkäynti, suullinen menettely, lakimiehet, kurinpitorangaistus,

Relevant legal provisions

Sections 3-3-3 and 7-3 of the Advocates Act

= lag om advokater 3 § 3 mom. 3 punkten, 7 § 3 mom.

= laki asianajajista 3 § 3 mom. 3 kohta, 7 § 3 mom.

ECHR-6

Abstract

A, who was an attorney, had for several years been heavily in debt owing mainly to his involvement in risk-bearing business.Efforts had been made to recover the outstanding debts through execution.The Finnish Bar Association had received several complaints regarding A's debts and decided to initiate disciplinary proceedings against him.A was asked to give an account to the disciplinary board of the Association of his debts and his financial situation.He was also offered an opportunity to be heard at the meeting of the disciplinary board.A argued that he had no duty to give any such clarifications and that the matter was not within the disciplinary competence of the Finnish Bar Association.He did not participate in the disciplinary board's meeting.With reference to the Act on Attorneys, to the regulations concerning professional ethics and to the statute of the Finnish Bar Association, the disciplinary board dismissed A from the Finnish Bar Association.The decision was confirmed by the executive committee of the Association.The main reasons for the dismissal were A's considerable debts and his insolvency owing to which A could not be regarded as a suitable person for practising his profession as a lawyer.A appealed to the Helsinki Court of Appeal which did not change the decision of the Finnish Bar Association.In his appeal to the Helsinki Court of Appeal, A referred to Article 6 of the ECHR, especially as regards the fairness and publicity of the proceedings.The court of appeal stated that A had been given an opportunity to be heard before the disciplinary board, but he had not used this opportunity.He had not requested an oral hearing before the court of appeal either.

A appealed to the Supreme Court.The main issue in this case was whether A's insolvency could be regarded as a valid reason for his dismissal from the Bar.In the Supreme Court an oral hearing was held.A referred to Article 6 of the ECHR and stated that he had not been informed beforehand that his possible dismissal from the Finnish Bar Association would be discussed at the meeting of the disciplinary board to which he had also been invited.The Supreme Court stated that A had been given the opportunity to be heard.The correspondence regarding the case between the Finnish Bar Association and A had been going on for a longer period of time.On the basis of this correspondence, A should have know that his dismissal would be discussed at the meeting of the disciplinary board.The Supreme Court concluded, among other things, that taking into account the reasons for A's debts, the period of time he had been in debt and the way he had met his liabilities, A was not a suitable person to practise his profession as a lawyer and could thus be dismissed from the Bar.

2.4.1998 / 10.4.2007 / RHANSKI

Date when decision was rendered: 14.8.2003

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 1941; R2001/748

Reference to source

KKO 2003:69.

Decisions of the Supreme Court 2003 II July - December

Avgöranden av Högsta domstolen 2003 II juli - december

Korkeimman oikeuden ratkaisuja 2003 II heinä - joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2004

Pages: 396-400

Subject

freedom of expression, limitations of rights and freedoms, lawyers,
yttrandefrihet, inskränkningar av friheter och rättigheter, jurister,
ilmaisuvapaus, oikeuksien ja vapauksien rajoitukset, lakimiehet,

Relevant legal provisions

Chapter 14, section 7 and Chapter 30, section 2 of the Code of Judicial Procedure

= rättegångsbalken 14 kapitel 7 § och 30 kapitel 2 §

= oikeudenkäymiskaari 14 luku 7 § ja 30 luku 2 §.

ECHR-10

Abstract

A, who had acted as an attorney in an appeal case, had been sentenced to a fine by the court of appeal for having used offensive and disrespectful language in the letter of appeal.A had, among other things, criticized the members of the first instance court and their judicial ethics.The decision of the court of appeal was based on Chapter 14, section 7 of the Code of Judicial Procedure.A appealed to the Supreme Court.In its decision, the Supreme Court concentrated on the question whether it was possible in this case to appeal without leave to appeal, and came to an affirmative conclusion.As to the merits, the Supreme Court did not change the decision of the court of appeal.One justice of the Supreme Court submitted a concurring opinion, and another justice agreed with this opinion.In the concurring opinion, the justice discussed, among other things, the possibility of restrictions of the right to freedom of expression under Article 10-2 of the ECHR.He concluded that the penal provision in Chapter 14, section 7 of the Code of Judicial Procedure constituted a restriction which was necessary for the appropriate administration of justice and which applied also to statements and letters submitted to the court by an attorney on behalf of his or her client.A admitted that he had tried to shock by his choice of language and referred to the opinions of the European Court of Human Rights according to which freedom of expression includes recourse to a certain degree of exaggeration and even provocation.The concurring justice pointed out that the opinions A was referring to did not apply to criticism addressed to a court in written pleadings.On the contrary, the European Court of Human Rights has emphasised that it must be possible to criticize courts without making accusations against the members of the court personally.The justice referred to the cases of Barford (Publications of the European Court of Human Rights, Series A, Vol. 149) and Prager and Oberschlick v.Austria (Publications of the European Court of Human Rights, Series A.Vol. 313).

21.4.2004 / 7.4.2005 / ASADINMA

Date when decision was rendered: 5.12.2003

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 3010; R2002/664

Reference to source

KKO 2003:119.

Decisions of the Supreme Court 2003 II July-December

Avgöranden av Högsta domstolen 2003 II juli-december

Korkeimman oikeuden ratkaisuja 2003 II heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2004

Pages: 734-748

Subject

respect for private life, respect for correspondence, lawyers, limitations of rights and freedoms,
respekt för privatliv, respekt för korrespondens, jurister, inskränkningar av friheter och rättigheter,
yksityiselämän kunnioittaminen, kirjeenvaihdon kunnioittaminen, lakimiehet, oikeuksien ja vapauksien rajoitukset,

Relevant legal provisions

Chapter 4, section 2-2 of the Coercive Measures Act; Chapter 17, section 23-1-4 of the Code of Judicial Procedure; section 10 of the Constitution Act

= tvångsmedelslagen 4 kapitel 2 § 2 mom.; rättegångsbalken 17 kapitel 23 § 1 mom. 4 punkten; grundlagen 10 §

= pakkokeinolaki 4 luku 2 § 2 mom.; oikeudenkäymiskaari 17 luku 23 § 1 mom. 4 kohta; perustuslaki 10 §.

ECHR-6; ECHR-8

Abstract

A was suspected of an economic offence.In the pretrial investigation some documents had been confiscated from A, among them correspondence between A and his lawyer in Spain.The correspondence dealt with financial transactions, but it had not been claimed that it would have had anything to do with the case against A.The issue here was whether the documents could be confiscated.According to Chapter 17, section 23-1-4 of the Code of Judicial Procedure, counsel shall not testify in respect of what the client has entrusted to him/her for the pursuit of the case, unless the client consents to such testimony.In addition, the Coercive Measures Act prescribes that a document may not be confiscated or used as evidence, if it contains information covered by the prohibition in the above section of the Code of Judicial Procedure.The Supreme Court noted that section 23-1-4 was open to various interpretations.Having reviewed a number of other relevant provisions in national law, the Bill of Rights in the Constitution and the ECHR, the Court chose a literal interpretation of the provision.The prohibition was to be interpreted restrictively to the effect that it only referred to the actions of counsel in a court or administrative procedure which was pending or to be initiated.

In his appeal to the Supreme Court, A referred to Article 8 of the ECHR and the cases of Campbell v. the United Kingdom (Publications of the European Court of Human Rights, Series A, No. 233) and Niemietz v.Germany (Publications of the European Court of Human Rights, Series A.No. 251).The Supreme Court noted that A's case dealt with slightly different issues than the cases A was referring to.The Court then discussed Article 8-2 of the ECHR and the possibility of limitations of the right to private live, provided that such limitations were in accordance with the law and necessary in a democratic society for the prevention of crime or for the protection of the rights and freedoms of others.The Court pointed out that the European Court of Human Rights has emphasized the protection of confidentiality between counsel and client especially in connection with the right to a fair trial.Taking this into account, it could be concluded from the limitations clause in Article 8-2 that a state may authorize by means of national legislation an interference in the correspondence between counsel and client, if the confiscated documents have no connection with a trial which is pending or to be initiated soon.Hence, in the Court's view the ECHR did not require an expansive interpretation of section 23-1-4.The Court reached the same conclusion when discussing the protection of private life in section 10 of the Constitution Act.The Supreme Court held that the documents referred to in A's case could be confiscated and used as evidence.

Two justices of the Supreme Court took a different view.As section 23-1-4 was open to various interpretations, the court should choose an interpretation which favours the protection of fundamental rights.The justices referred to Articles 6 and 8 of the ECHR and to the decisions of the European Court of Human Rights in the cases of Niemietz (see above), Botka and Paya v.Austria (decision of 29 March 1993, inadmissible), B.R. v.Germany (decision of 23 October 1997, inadmissible) and Tamosius v. the United Kingdom (decision of 19 September 2002, inadmissible).They found that the European Court of Human Rights had paid special attention to the facts whether the confiscation order was specified and limited and whether national legislation contained provisions on procedure by which it could be secured that confidential information between counsel and client was not disclosed without a reasonable cause.In the justices' view these requirements were not met in A's case.They concluded that the documents should not have been confiscated.

See also the case of Sorvisto v.Finland (Application no. 19348/04), judgment of the European Court of Human Rights, 13 January 2009.

21.4.2004 / 14.1.2009 / RHANSKI

Date when decision was rendered: 23.12.2003

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 3211; R2002/101

Reference to source

KKO 2003:137.

Decisions of the Supreme Court 2003 II July-December

Avgöranden av Högsta domstolen 2003 II juli-december

Korkeimman oikeuden ratkaisuja 2003 II heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2004

Pages: 849-858

Subject

fair trial, lawyers,
rättvis rättegång, jurister,
oikeudenmukainen oikeudenkäynti, lakimiehet,

Relevant legal provisions

Chapter 17, section 23-1-4 of the Code of Judicial Procedure

= rättegångsbalken 17 kapitel 23 § 1 mom. 4 punkten

= oikeudenkäymiskaari 17 luku 23 § 1 mom. 4 kohta.

ECHR-6-3-c

Abstract

A was B's legal counsel in a trial where B, C and D were charged with serious drug offences.It was claimed that C in a discussion with A had presented threats against B.B had asked A not to disclose any information about this discussion.The question was whether A, as B's legal counsel, had a right to refuse to testify in a pretrial investigation and possible case against C concerning illegal threats.

According to Chapter 17, section 23-1-4 of the Code of Judicial Procedure, counsel shall not testify in respect of what the client has entrusted to him/her for the pursuit of the case, unless the client consents to such testimony.The court of first instance found that the provision may be interpreted literally, but a more extensive interpretation was also possible.The court referred to the fair trial provisions in the Constitution Act and the ECHR and held that the right to defend oneself through a legal assistance of one's own choosing requires that counsel may carry out his/her tasks without fear of having to disclose information which may be contrary to the interests of the client.It found that as the alleged discussion between A and C was linked with A being B's counsel, the information received during the discussion was thus received while A was pursuing the case.In addition, obligating A to testify without B's consent would jeopardize A's possibilities to continue as B's counsel and could thus violate B's right to defend himself through a legal assistance of his own choosing.The court concluded that A could not be obligated to testify about the contents of the discussion with C.The court of appeal agreed with the first instance court.

The Supreme Court took a different view and found that A could not refuse to testify.The Court was for a literal interpretation of section 23-1-4.The discussion had taken place at C's initiative, and not in order for A to seek information in pursuing B's case.The Court noted that there were two separate cases, one concerning the drug offences, the other concerning the alleged illegal threats.In the latter case, A could not apparently act as B's counsel, as B was a party to the case and A would be heard as a witness.Regarding A's possibilities to act as B's counsel in the former case, the Supreme Court held that as the duty to testify does not cover matters which a client has entrusted to counsel for the pursuit of the case, it would be unreasonable to consider that the right of a defendant to choose his own counsel would supersede the duty of counsel to testify in respect of other matters in which the client was involved one way or another.In its decision, the Supreme Court did not refer to the Constitution Act or international human rights provisions.

21.4.2004 / 7.6.2004 / JKOSKIMI

Date when decision was rendered: 20.1.2005

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

Reference: Report no. 158; R02/3844

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, right to receive, seek and impart information, limitations of rights and freedoms, lawyers,
yttrandefrihet, respekt för privatliv, rätt att söka, mottaga och sprida upplysningar, inskränkningar av friheter och rättigheter, jurister,
ilmaisuvapaus, yksityiselämän kunnioittaminen, oikeus hankkia, vastaanottaa ja levittää tietoja, oikeuksien ja vapauksien rajoitukset, lakimiehet,

Relevant legal provisions

Chapter 24, section 9 of the Penal Code; sections 10 and 12 of the Constitution Act

= strafflagen 24 kapitel 9 §; grundlagen 10 § och 12 §

= rikoslaki 24 luku 9 §; perustuslaki 10 § ja 12 §.

ECHR-10

Abstract

In a radio programme, which was meant to serve as an open discussion forum for the public, radio journalists A and B had interviewed C who had expressed very critical views about the status and rights of the father in child custody cases, based on his own experiences.C's ex-wife D and her counsel in the custody case, E, sued A, B and C for defamation.

Taking into account the constitutional provisions on the right to freedom of expression and the protection of privacy as well as the case law of the European Court of Human Rights under Article 10 of the ECHR, the court of first instance convicted the defendants of defamation.In the court's view, the defendants had presented false insinuations in claiming that E had not observed proper professional conduct or the Advocates Act while counselling D in the custody case and that D was not capable of raising and caring for her children.The court ruled that C's views were value judgments rather than facts and that protecting D's and E's honour was in this case not in conflict with Article 10 of the ECHR.

The court of appeal did not agree with the first instance court.The court found it acceptable that a person who is being interviewed expresses his or her opinions in a sharp manner amounting to criticism.It could not be expected that a party in a child custody case also puts forth arguments which favour the adverse party, in particular when C's adverse party D had on previous occasions in a TV-programme and a newspaper interview criticised C and his actions in similar terms.Regarding C's views on E, the court of appeal held that in practising his profession E was expected to tolerate even sharp criticism, in particular when expressed by the adverse party of his client.C had presented his own, reasoned views about the proper professional conduct for advocates.In the radio programme, it was clearly stated that his views differed from those of the Finnish Bar Association.The court concluded that C's statements did not amount to defamation.Regarding D, the court pointed out that C's statements could not be assessed out of context and without taking into account the nature and tone of the interview as a whole.C had criticised the prevailing system of child custody cases in Finland.Some of his views corresponded to opinions and assumptions generally held by the public.These views could not as such amount to a violation of D's honour.The court held that C had expressed his strong, emotional and subjective opinion based on his own experiences without an express intention to insult D.Moreover, considering the nature of C's statements, it was difficult to assess whether they were true or false.The court ruled that it had not been shown that C would have violated D's honour.Regarding the radio journalists A and B, the court held, with reference to the case of Jersild v.Denmark (judgment of 23 September 1994, Publications of the European Court of Human Rights, Series A, no. 298), that the punishment of a journalist for assisting in the dissemination of statements made by another person in an interview is possible on extremely strong grounds only.In the radio programme, it had been made clear that these are C's personal opinions.In addition, it had been shown that the Finnish Bar Association did not share C's views and that D had already on previous occasions told in public that she found C's actions as offending her rights.Though A's and B's questions and comments had been slightly provocative, the court held that under the circumstances they did not amount to defamation.The decision is final.The Supreme Court did not grant leave to appeal in the case (decision no. 1872 of 18 August 2005).

30.5.2006 / 30.5.2006 / RHANSKI

Date when decision was rendered: 14.8.2006

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 1760; R2005/31

Reference to source

KKO 2006:61.

Decisions of the Supreme Court 2006 II July-December

Avgöranden av Högsta domstolen 2006 II juli-december

Korkeimman oikeuden ratkaisuja 2006 II heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2007

Pages: pp. 404-409

Subject

respect for private life, fair trial, lawyers, limitations of rights and freedoms,
respekt för privatliv, rättvis rättegång, jurister, inskränkningar av friheter och rättigheter,
yksityiselämän kunnioittaminen, oikeudenmukainen oikeudenkäynti, lakimiehet, oikeuksien ja vapauksien rajoitukset,

Relevant legal provisions

Chapter 38, section 1-1 of the Penal Code; section 5c of the Advocates Act

= strafflagen 38 kapitel 1 § 1 punkten; lag om advokater 5c §

= rikoslaki 38 luku 1 § 1 kohta; laki asianajajista 5c §.

ECHR-6; ECHR-8

Abstract

A and B were advocates and worked in the same law firm.They had both carried out tasks commissioned by the law firm's client, C.Later, C was suspected of an economic offence and B of aiding and abetting C.A was heard in the pretrial investigation concerning B's alleged involvement in C's offence.At the investigation, A disclosed issues he had learned while undertaking commissions for C.C claimed that A had thus breached the obligation of confidentiality between an advocate and a client.

Under the Advocates Act, an advocate shall not without due permission disclose secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity.The Supreme Court recalled that this confidentiality obligation secures a client's right to privacy and is also a prerequisite for a fair trial, as found by the European Court of Human Rights in the case of Niemietz v.Germany (judgment of 16 December 1992, Publications of the European Court of Human Rights, Series A, Vol. 251).However, the Supreme Court pointed out that the client may choose to waive the confidentiality obligation.Moreover, in the Court's view, the obligation is waived in cases where the client by his or her own actions endangers the advocate's legal position.In this case, C had in the pretrial investigation told things that threw suspicion on B's involvement in C's offence.Because A and B had together undertaken commissions for C, A had, in the Supreme Court's opinion, justified grounds to suspect that the information C had given might also incriminate A.Therefore, A had good cause to think that the confidentiality obligation no longer applied because his own legal position was at risk.Having studied the pretrial investigation report, the Supreme Court noted that A had not disclosed confidential information more than was necessary in order to avert the risk he was exposed to.Finally, the Supreme Court also considered the matter in the light of Article 8 of the ECHR and the case law of the European Court of Human Rights, giving the case of Foxley v. the United Kingdom (judgment of 20 June 2000) as an example.In the Supreme Court's view, waiving the confidentiality obligation in this case was "necessary" under Article 8-2 of the ECHR because of A's need to defend himself against the actions of C which had put A's legal position at risk.The Supreme Court concluded that A had not disclosed confidential information in a way which would have constituted a secrecy offence under the Penal Code.

12.4.2007 / 14.5.2007 / RHANSKI

Date when decision was rendered: 9.2.2009

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 185; R2008/50

Reference to source

KKO 2009:10.

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. 100-108

Subject

freedom of expression, limitations of rights and freedoms, lawyers, disciplinary punishment,
yttrandefrihet, inskränkningar av friheter och rättigheter, jurister, disciplinärt straff,
ilmaisuvapaus, oikeuksien ja vapauksien rajoitukset, lakimiehet, kurinpitorangaistus,

Relevant legal provisions

section 5 of the Advocates Act; section 12 of the Constitution Act

= lag om advokater 5 §; grundlagen 12 §

= laki asianajajista 5 §; perustuslaki 12 §.

ECHR-10

Abstract

The disciplinary board of the Finnish Bar Association had decided to issue a caution to advocate X.Considering the contents of certain announcements X had published in the newspaper and in the internet, the board found that X had acted in violation of the rules of proper professional conduct for advocates and the rules concerning advertising and marketing of legal services.X appealed against the decision, referring to his freedom of expression as guaranteed in the Constitution Act and the ECHR.

Both the court of appeal and the Supreme Court upheld the decision of the board.In its decision, the Supreme Court noted that commercial expression and advertising are not at the very core of the right to freedom of expression.Marketing practices may be limited but only to the extent it is necessary with respect to the interests protected.The Court pointed out that the purpose of the rules governing advertising and marketing of legal services is to prevent unfair competition and untruthful advertising and, more generally, to ensure respect for the profession of advocates.With reference to the case law of the European Court of Human Rights, the Supreme Court found that the assessment as to what kind of restrictions can be placed on the contents of marketing of legal services in order to ensure respect for the profession, varies in different countries and at different times (Casado Coca v.Spain, judgment of 24 February 1994).In striking a balance between the right to freedom of expression and other interests involved, national authorities have a wider margin of appreciation where there is no common ground among the Member States of the Council of Europe or there is a diversity of moral conceptions regarding the assessment at issue (Stambuk v.Germany, judgment of 17 October 2002).The Supreme Court held that in this case, the interference with X's right to freedom of expression was limited to the manner in which X marketed his services.The acceptability of X's marketing practices was assessed on the basis of regulations the members of the Finnish Bar Association themselves had chosen to impose on advertising and marketing of legal services in order to uphold respect for the profession.The Supreme Court concluded that the disciplinary board had not exceeded its discretion and that the limitation on X's right to freedom of expression, as a result of the Bar's regulations, their supervision and disciplinary sanctions, could not be considered disproportionate to the aim pursued.

5.2.2010 / 5.2.2010 / RHANSKI